author: ROBERT P. ANDERSON, Circuit Judge: FRIENDLY, Circuit Judge

text:
    Carmine PALMAROZZO, Plaintiff-Appellee, v. COCA-COLA BOTTLING COMPANY OF NEW YORK, INC., Defendant-Appellant.
    No. 21, Docket 73-1287.
    United States Court of Appeals, Second Circuit.
    Submitted Oct. 10, 1973.
    Decided Dec. 18, 1973.

      Paul J. Curran, U. S. Atty., S.D.N.Y., and Joseph D. Danas, Asst. U. S. Atty., on the brief, for plaintiff-appellee.
    Stanley Israel, Leon L. Sacks, and Bluestone, Kliegman & Israel, New York City, on the brief, for defendant-appellant.
    Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

Carmine Palmarozzo worked as a permanent employee of the Coca-Cola Bottling Company of New York from June 4, 1962 until September 21, 1962. He then served six months in the Armed Forces and returned to work for Coca-Cola from March 23, 1963 until June 22, 1967, at which time he voluntarily left the company. Coca-Cola employees qualified for severance pay after accumulating five years of service credits, but Palmarozzo was denied severance pay because the company refused to include in its calculation of his service credits the time which he spent in the military. Palmarozzo brought this suit in the Southern District of New York to collect $200 severance pay and to force Coca-Cola to contribute toward his severance pay for the period he spent in the service. He charged that the company, by refusing so to contribute, violated his right as a veteran to be restored in employment with no loss of seniority under the Universal Military Training and Service Act, 50 U.S.C. App. §§ 459(b) (B) and (c). (June 24, 1948, c. 625 Title I, 62 Stat. 614, as amended).

Pursuant to a contract with the International Teamsters, Coca-Cola added twenty cents to the Soft Drink Workers Local 812 Retirement Fund for each hour worked up to 40 hours a week. The Rules and Regulations of the Retirement Fund determined the availability of severance benefits, and Article III of those rules stated that if an employee severed employment after accumulating five or more service credits, he was entitled to severance pay.

An employee received % of a service credit for every 400 hours actually worked during a year, but he could never acquire more than one credit per year, representing a total of 1600 hours. The hours actually worked, for purposes of calculating service credits, were determined by Coca-Cola’s fund payments, which never exceeded compensation for 40 hours per week. Therefore, an employee received no service credit for overtime during the week or for work in excess of 1600 hours per year.

Employees who worked regularly could easily achieve one service credit each year, and their severance benefits increased with every five service credits —or approximately with every five years of continuous service.

Palmarozzo accumulated 4% credits during his employment. The District Court found the Act required Coca-Cola to presume for purposes of calculating severance pay that Palmarozzo had been continuously employed while he was in the service, and the court ordered the employer to contribute to the fund for such time. The District Court held the case was governed by Accardi v. Penn. Ry. Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966), and both parties on appeal agree.

In Accardi, the Supreme Court analyzed a “compensated service” plan, similar to the “service credit” plan in this case, and held that denial of credit for time served in the armed forces violated the veteran’s right not to lose seniority. The Court ordered the Pennsylvania Railroad to base firemen’s severance benefits on length of actual service including time spent in fulfilling military-obligations. The Court stated:

“The requirements of the 1940 Act are not satisfied by giving returning veterans seniority in some general abstract sense and then denying them the perquisites and benefits that flow from it. We think it clear that the amount of these allowances is just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall. We hold that the failure to credit petitioners’ ‘compensated service’ time with the period spent in the armed forces does not accord petitioners the right to be reinstated ‘without loss of seniority’ guaranteed by § 8(b) (B) and (c).” 383 U.S. at 230-231, 86 S.Ct. at 772.

AppellantCoca-Cola seeks to limit Ac-cardi to severance plans which are based primarily on terms of years with a company rather than work time. Appellant states the “compensated service” plan in Accardi was a sham, because credit could be given for any year in which a fireman had worked only one day per month for seven months. Coca-Cola contends the Supreme Court held the plan violated the Act because of the “bizarre result” that a man who only worked seven days a year was preferred over the veteran who worked six full months but could not complete the year due to his military service.

But Accardi is not so limited. The “bizarre results” in that case illustrated that the compensated service benefits, despite pretentions to being equated to working time, were actually proportionate to length of service. Similarly, Coca-Cola’s plan gave one credit for each year of continuous service, based benefits on five-year plateaus of accumulated credits, and allowed no credit for overtime or work in excess of 1600 hours per year. In both Accardi and the present' case, length of continuous service, rather than the nature of that service, produced the benefits.

Coca-Cola contends that its service credit plan was sufficiently related to the amount of time actually worked that the benefits were in the nature of compensation, as opposed to a seniority benefit. The Act only requires that the veteran not lose seniority; and the employer is under no obligation to compensate him for time spent in the armed forces. This argument was presented in Accardi, and the Supreme Court disposed of it as follows:

“ . . . the real nature of these payments was compensation for loss of jobs. And the cost to an employee of losing his job is not measured by how much work he did in the past — no matter how calculated — but by the rights and benefits he forfeits by giving up his job. Among employees who worked at the same jobs in the same craft and class the number and value of the rights and benefits increase in proportion to the amount of seniority, and it is only natural that those with the most seniority should receive the highest allowances since they were giving up more rights and benefits than those with less seniority.” 383 U.S. at 230, 86 S.Ct. at 772. (Emphasis added.)

The Supreme Court, therefore, recognized that the “real nature” of severance benefits which accrue with years of service was not compensation no matter how the benefits. were calculated, but rather was payment for loss of seniority rights acquired over years of employment. The Court perceived that it would be inconsistent to protect seniority rights without guaranteeing the veteran that payment for loss of those rights was also protected. Such severance benefits have become a major form of security from lay-offs and new technologies for employees in mass production industries. Max S. Wortman, Jr., George C. Witterfeld, Labor Relations and Collective Bargaining, (1969), 228, 256. To these employees, the benefits represent an offset against losses of preference in lay-offs, automatic wage increases and promotion possibilities. Bradley v. General Motors Corporation, 283 F.Supp. 481, 482 (E.D.Mo.1968). The Act protects the veteran from loss of all these seniority preferences and rights, and as the Court held in Accardi the Act also guarantees that those rights, as accumulated by the veteran and expressed in severance benefits, will have the same value to him as they would have to someone who was not absent because of military service to the country.

The seniority status of the employee in military service has been analogized to that of a person riding an escalator; although not actually continuing his civilian employment, he rises to the same seniority level he would have reached because he stays on the step he occupied when he was employed. Fishgold v. Sullivan Drydock Corp., 328 U.S. 275, 66 S. Ct. 1105, 90 L.Ed. 1230 (1946). In relationship to employee seniority and severance pay, one court has stated:

“The ‘escalator principle’ can mean only this: the escalator had steps both up (continued employment and possible promotion), and out (discharge in exchange for severance pay) [I]t was impermissible to restructure it so as to leave him the steps up, and remove those leading out.” Taylor v. So. Pac. Co., 308 F.Supp. 606, 610 (N.D. Cal.1969).

Coca-Cola’s contention that the service credit plan is compensatory, or produces benefits which are not perquisites of seniority, is an attempt to remove these severance payments from the seniority escalator because, under the rules and regulations of the fund, they do not flow automatically from length of employment.

Coca-Cola asks that this court examine the plan in the same manner as the Supreme Court looked for “bizarre results” in the compensated service plan in Accardi. If the benefits are not proportionate to hours actually worked, Coca-Cola concedes the plan is a sham, but if the benefits are proportionate, Coca-Cola asks the court to declare that the plan is a legitimate work requirement and not related to seniority, and, thus, not in violation of the Act. Seattle Star v. Randolph, 168 F.2d 274 (9 Cir. 1948).

This would be the same approach this circuit took in Siaskiewicz v. General Electric Co., 166 F.2d 463 (2 Cir. 1948). General Electric denied veterans vacations because the employment contract required the employees actually to work six months during the preceding year to qualify for vacation time. The court held this practice did not violate the Act, as the benefits were contingent on actual work requirements, not seniority, even though the employees would have worked the previous year but for their military service. After Accardi and the Supreme Court’s subsequent per curiam holding in Eagar v. Magma Copper Co., 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1967), to the effect that a similar denial of vacations was illegal under the Act, the validity of the work requirements test in Siaskiewicz has been severely challenged. Ewert v. Wrought Washer Mfg. Co., 477 F.2d 128 (7 Cir. 1973); Locaynia v. American Airlines, Inc., 457 F.2d 1253 (9 Cir. 1972), cert, den. 409 U.S. 982, 93 S.Ct. 317, 34 L. Ed.2d 246 (1973); but see Kasmeier v. Chic., Rock Is. & Pac. R. Co., 437 F.2d 151 (10 Cir. 1971).

Nonetheless, commentators have asked that courts not interpret Accardi as a flat rule for all severance benefits which increase with length of employment, but rather utilize the “sham” or work requirements analysis as each severance plan is reviewed. Thomas R. Haggard, Veteran's Reemployment Rights and the “Escalator Principle”, 51 B.U.L.Rev. 539 (1971). Some courts have followed this approach. Hoffman v. Bethlehem Steel Corp., 477 F.2d 860 (3 Cir. 1973).

Yet such a case-by-case review of the various calculations of severance benefits based upon period of employment, already held in Accardi to be perquisites of seniority, would give no firm assurance to veteran employees that they are protected, would cause unnecessary confusion as to what is a legitimate work requirement, and would ultimately defeat the purpose of the Act by delegating to private parties the public trust established for the veteran.

Employees should be able to rely on receiving severance pay based on seniority, including time served in the military forces. This expectation should not turn on whether severance benefits are calculated in the union contract according to hours actually worked or length of service, because the “real nature” of the benefit is payment for loss of accumulated seniority rights, which are determined on the basis of length of service including military service. The Supreme Court has stated that for purposes of calculating seniority rights, a man in the military is presumed to be “continuously employed,” regardless of any possibilities of sickness, lay-off, and other economic uncertainties. Brooks v. Missouri Pac. R. Co., 376 U.S. 182, 84 S.Ct. 578, 11 L.Ed.2d 599 (1964). The employee-plaintiffs in Accardi expected that seniority for purposes of calculating rights was the same as seniority for the purpose of calculating the value of those rights; they did not know they were parties to a “sham” compensated service plan, and it seems very doubtful that any of them actually received credit for working seven days out of a year. 80 Harv.L. Rev. 142, at 149 (1966). Similarly, veterans under the Coca-Cola plan could not have foreseen whether this plan was a sham or not, but they knew that their seniority rights as defined by the Act automatically included time spent in the military and should have had the assurance that severance pay, as the measure of those rights, was based on the same period of time.

Since the passage of the Act, veterans have had to turn to the Supreme Court for definition of rights of seniority. Fishgold, supra, Oakley v. Louisville & N. R. Co., 338 U.S. 278, 70 S.Ct. 119, 94 L.Ed.2d 87 (1949); Diehl v. Lehigh Valley R. Co., 348 U.S. 960, 75 S.Ct. 521, 99 L.Ed. 749 (1955), Tilton v. Missouri P. R. Co., 376 U.S. 169, 84 S.Ct. 595, 11 L. Ed.2d 590 (1964). While contracts between employers and employees have been consulted by the Court to define “seniority” in general terms, the rule for interpreting individual contracts once a benefit has been determined to be a perquisite of seniority has always been:

“The legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need And no practice of employers or agreements between employers and unions can cut down the service adjusted benefits which Congress has secured the veteran under the Act.” Fishgold, 328 U.S. at 285, 66 S.Ct. at 1111.

If a benefit is a perquisite of seniority, the purpose of the Act — to establish and protect the seniority rights of veterans — -is defeated if lower courts allow collective bargaining agreements to redefine a benefit simply by making it contingent on work time rather than seniority.

The Act was premised on the recognition that the man in the military is not represented at the bargaining table and that any special status accorded veterans is an inconvenience to union and management alike. Veterans’ Reemployment Rights Under Selective Service Interpretations, 54 Yale L.J. 417 (1945). To say that severance benefits accruing with years of service are protected under the Act as perquisites of seniority as the Court said in Accardi and then to make those rights contingent on the extent to which the union contract incorporates work requirements as a condition for receipt of benefits would render the Act entirely nugatory.

This is because any perquisite of seniority can be based upon actual work hours, rather than length of employment. “Seniority provisions give rise to more problems in their application than most other provisions of the contract” in large part because arbitrators are not in agreement as to whether seniority means length of continuous service or actual working presence. Russell A. Smith, Leroy S. Merrifeld, Donald P. Rothschild, Collective Bargaining and Labor Arbitration (1970) 421. To incorporate this confusion into the Act would greatly endanger the security guaranteed the veteran.

Similar attempts by unions and employers to make wage advances contingent on actual work time rather than length of service, have been voided as illegal under the Act. Blair v. Page Aircraft Maintenance, Inc., 336 F.Supp. 1011 (M.D.Ala.1971), reversed on other grounds, 467 F.2d 815 (5 Cir. 1972); Moe v. Eastern Air Lines, 246 F.2d 215 (5 Cir. 1957). There is no reason to suppose that promotion or lay-off preferences could be contingent on work requirements, rather than length of service, without violating the Act. The same considerations of fairness to the employed veteran which invalidate attempts to remove wages or lay-offs from the traditional seniority framework also prevent work requirements from providing justification for not crediting veterans’ military time toward the qualifying employment period for severance pay.

Work requirements could be a justification for not according the veteran deferred compensation or profit-sharing which he might have received if he had not been in the military. Similarly, work requirements could be relevant in deciding whether pension rights are related to seniority or whether a certain skill has been learned, Tilton v. Missouri & Pac. R. Co., swpra, but none of these circumstances is presented here. The veteran has a right to be credited with time spent in the service of his country.

Such a right does not favor the veteran over the nonveteran or grant him any superseniority. Fishgold, supra. Rather, the right expresses the real nature of severance pay which is based essentially on employment for a particular period of time as inherently a part of seniority and guarantees equal competitive status.

Coca-Cola has also asked this court to rule that the severance benefits are “other benefits” within the meaning of § 8(c) of the original Act, § 459(c), and, therefore, the veteran is only entitled to be treated as if he were on furlough or leave. This request ignores the holding in Accardi that the real nature of these severance benefits is payment in lieu of lost rights accumulated through seniority and also overlooks the disposal of the same statutory argument for the compensated service plan. This circuit had held in Accardi v. Penn. R. Co., 341 F.2d 72 (2 Cir. 1965), that severance benefits were “other benefits” and not subject to the escalator principle, but the Supreme Court reversed and said, “Without attempting in this ease to determine the exact scope of this provision of § 8(c) it is enough to say that we consider that it was intended to add certain protections to the veteran and not to take away those which are granted him by § 8(b) (B) and the other clauses of § 8(c).” 383 U.S. at 232, 86 5. Ct. at 773. Under this reasoning, the “other benefits clause must be viewed as a separate addition to the seniority provisions of the Act and can no longer be used as a basis for defining and limiting the perquisites of seniority. 80 Harv.L. Rev. 142, at 148 (1966).

The judgment of the court below is affirmed.

FRIENDLY, Circuit Judge

(dissenting) :

Agreeing that this case is governed by the principles set out in Accardi v. Pennsylvania Railroad Co., 383 U.S. 225, 86 S.Ct. 768, 15 L.Ed.2d 717 (1966), I dissent from the conclusion that Accardi requires us to hold that the severance benefit here at issue is a perquisite of seniority. If it is not that but rather one of the “other benefits offered by the employer relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces,” Palma-rozzo must lose, since it is agreed that time on furlough or leave of absence did not qualify for the severance payments.

The union and the railroad in Accardi had negotiated the severance payments to cushion the blow of a severe cutback in employment. Under the arrangement, any fireman with less than 20 years seniority was discharged, while those with 20 years or more were given the option of staying on. Those discharged or opting to quit were awarded severance pay, based upon the amount of “compensated service” they had accumulated with the railroad. The Court noted that the “compensated service” scheme was rather “bizarre,” 383 U.S. at 230, 86 S.Ct. 768, 15 L.Ed.2d 717, in that the requirement for a “year” of compensated service could be met by working one day a month for seven months; this was consistent with the plan’s obvious objective to distinguish betweeen old and new firemen. It was thus the details of the plan that led the Court to decide that the allowances were actually based on seniority, not on the total amount of service rendered by the employee. The Court made clear that only because of its determination that the severance pay scheme in Accardi was “based primarily on the employees’ length of service with the railroad” did it hold the Act applicable. Accardi thus requires a close inquiry into whether the benefits in each case are based primarily on the employee’s length of service or on the actual total service rendered by the employee ; the case-by-case review disdained by the majority is precisely what is required by the statute as construed by the Supreme Court. If Congress had meant that employees entering military service should be treated in all respects on their return precisely as if they had been working all along, its language was singularly inept to express this.

Coca-Cola paid into the union fund 20 cents for every hour worked by each employee. Out of this fund, the union provided employees with several benefits, including pension, death and severance payments. As the majority notes, the union plan premised severance benefits on the number of hours worked per year, awarding one quarter unit of credit for each 400 hours worked up to 1600 hours. Five credits were required to earn a minimum of $200 in severance pay, the amount that Palmarozzo claims is due him here. It is true that this scheme tended to give greater rewards to those who left the job with greater seniority. However, seniority and total compensated work naturally tend to correlate fairly highly. Even a scheme that scaled severance payments according to the precise number of hours worked would incidentally give greater rewards to employees with higher seniority since they would normally have accumulated more credits. The crucial point is that the scheme in this case is gauged, albeit not with precise exactitude, by the amount of work done, not by the length of service with the company. The plan thus does not constitute a manifestation of seniority sufficient to bring it within § 9(b) of the Act, 50 U. S.C. App. § 459(b) (B) (i). I would not require that Palmarozzo be credited for work he did not perform.

The cases cited by the majority do not support its position that the severance benefit in this case is a perquisite of seniority. The most closely analogous recent case, Hoffman v. Bethlehem Steel Corp., 477 F.2d 860 (3 Cir. 1973), cuts quite the other way. The Third Circuit noted, 477 F.2d at 863:

The trial court has properly observed there is a distinction between rights which accrue with the passage of time and those for which some further act is required. Those which accrue with the passage of time are seniority rights which are protected under § 9(b). Those for which some other act is required, such as days of work, are not seniority rights protected by § 9(b) and would not accrue after the veteran returns.

Although the Hoffman court found that the unemployment benefit plan in question was almost as “bizarre” as that in Accardi and thus held that the benefits in that case were based on seniority, the court’s distinction between rights that accrue with the passage of time and those predicated on some further act by the employee would lead to a reversal here. Most of the courts that have applied § 9(b) have employed an analysis similar to that used in Hoffman.

It is true that in a per curiam decision in Eagar v. Magma Copper Co., 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1967), a divided Court awarded an employee vacation and holiday rights even though, because of military duty, he was not technically employed at the times required for eligibility under the company’s rules. In Eagar, however, the veteran who had met the work requirements would have been eligible for the benefits if he had simply been on the company’s payroll at the relevant times whether he had been working or not. Since Accardi had held that the absent employee must be treated as if he had kept his job continuously throughout the period of his military service, it made sense to hold that Eagar should not be denied a right contingent merely on technical employment throughout the relevant period. In “paid vacation” cases subsequent to Eagar, the courts have generally scrutinized vacation eligibility plans to determine whether they turned on seniority or work actually done. Both the Fifth Circuit in Dugger v. Missouri Pacific Railroad Co., 403 F.2d 719 (5 Cir. 1968), aff’g 276 F.Supp. 496 (S.D.Tex.1967), cert, denied, 395 U.S. 907, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969), and the Tenth in Kasmeier v. Chicago, Rock Island & Pacific Railroad Co., 437 F.2d 151 (10 Cir. 1971), have held vacation benefits not to be perquisites of seniority where the employees had to satisfy a substantial work requirement before becoming eligible for the benefits. Upholding a 110-day work requirement as a .prerequisite-to vacation benefits, the Kasmeier court wrote, “Whereas in Accardi the compensated service requirement was a mere label to obscure the real nature of the payments, in this controversy the 110-day requirement is not a mere facade to veil the true nature of the benefits; it is a legitimate, uniformly applied condition precedent to vacation benefits.” 437 F.2d at 154. In Ewart v. Wrought Washer Mfg. Co., 477 F.2d 128, 129 (7 Cir. 1973), the Seventh Circuit upheld a veteran’s vacation claim, but suggested that a different result might follow if the vacation rights were “purely additional compensation for services actually rendered.” Similarly, in Hollman v. Pratt & Whitney Aircraft, 435 F.2d 983, 988-989 (5 Cir. 1970), the court made it clear that vacation rights would be granted to veterans only if “they would automatically accrue . . . but for induction.” See also Tuttle v. U. S. Plywood Corp., 293 F.Supp. 401 (D.Or. 1968); Connett v. Automatic Electric Co., 323 F.Supp. 1373 (N.D.Ill.1971); Fees v. Bethlehem Steel Corp., 335 F. Supp. 487 (W.D.Pa.1971).

In any event, the “paid vacation” cases are distinguishable from the case at bar. In virtually all- of those cases, the “work requirement” prerequisite to being granted vacation rights was expressed in terms of a minimum number of days on the job. Such a requirement is close to the requirement, as in Eagar, that the employees be “on the payroll” for a specified period prior to the vacation or holiday in order to be entitled to paid time off. In this case, however, the work requirement amounted to much more than a requirement that the employee be technically on the payroll. The entire operation of the compensation plan depended upon a rough equivalence between the employer’s contribution for employee hours worked and the credits earned by the employee for working those hours. The work requirement was no sham; on the contrary, it was central to the operation of the severance benefit scheme.

In analyzing employee benefits of other kinds, courts have uniformly inquired whether the benefits are awarded merely for tenure, or are intended as compensation for acquired expertise or work actually performed. It is only when an employer has provided automatic promotions or pay increases to his employees on the basis of length of service rather than work that the courts have held the employer must restore the veteran at a pay or job level that he would have attained if he had continued in the company’s employment during the period of his military service. Hatton v. Tabard Press Corp., 406 F.2d 593 (2 Cir. 1969) ; Power v. Northern Illinois Gas Co., 388 F.2d 427 (7 Cir. 1968); Wienberg v. United States, 425 F.2d 1244 (Ct.Cl. 1970); Wood v. Southern Pac. Co., 447 F.2d 486 (9 Cir. 1971). Courts have used the same analysis for absence allowance credits, Bradley v. General Motors Corp., 283 F.Supp. 481 (E.D.Mo. 1968); pension eligibility, Litwicki v. PPG Indus., 84 L.R.R.M. 2538 W.L.Pa. Sept. 19, 1973); and general welfare benefits, Gentile v. United States Trucking Corp., 355 F.Supp. 960 (S.D.N.Y. 1973). See Haggard, Veterans’ Reemployment Rights and the “Escalator Principle,” 51 B.U.L.Rev. 571 (1971). The decision here seems counter to the strong current of authority.

Finally, the majority relies on the “escalator” metaphor, which has been employed extensively in construing the “seniority, status and pay” language of § 9(b). This principle is that if the passage of time would automatically have elevated the employee to a higher level, the veteran is entitled to assume that level upon his return; in Mr. Justice Douglas’ language, the veteran “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946). But when the employer or the union in good faith conditions benefits on performance rather than mere tenure, it is not required to place the veteran in a position he could only have obtained through his own work as an employee. The escalator metaphor does not fit such cases; rather the employer should not be required to put the veteran in a position he could have obtained only by climbing up the stairs.

I would reverse the judgment of the district court and direct it to dismiss the complaint.

      . 50 U.S.C.App. § 459 [§ 8 of original Act) in pertinent part provides :
      “(b) Reemployment rights
      In tlie case of any such person who, in order to perform such training and service, has left or leaves a position (other than a temporary position) in the employ of any employer and who (1) receives such certificate and (2) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year—

        % $ $ $ $
      (B) If such position was in the employ of a private employer, such person shall—
      (i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay; or
      (ii) if not qualified to perform the duties of such position by reason of disability sustained during such service but qualified to perform the duties of any other position in the employ of such employer or his successor in interest, be restored by such employer or his successor in interest to such position the duties of which he is qualified to perform as will provide him like seniority, status, and pay, or the nearest approximation thereof consistent, with the circumstances in his case, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so;
      (c) Service considered as furlough or leave of absence
      (1) Any person who is restored to a position in accordance with the provision of paragraph . . . (B) of subsection (b) (of this section) shall be considered as having been on furlough or leave of absence during his period of training and service in the armed forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time sucli person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
      (2) It is declared to be the sense of the Congress that any person who is restored to a position in accordance with the provisions of paragraph . . . (B) of subsection (b) (of this section) should be so restored in such manner as to give him such status in his employment as he would have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration of such employment.
      (3) Any person who holds a position described in paragraph . . . (B) of subsection (b) (of this section) shall not be denied retention in employment or any promotion or other incident or advantage of employment, because of any obligation as a member of a reserve component of the Armed Forces of the United States.

      . The lower court opinion was not published.

      . Such a guarantee does not create a per se rule applying to any and all compensation termed “severance pay” or to any and all payments upon termination of service. Ae-eardi demands that courts look through “false labels”, whether “service credit” or “severance pay”, and determine if the benefits primarily relate to length of service. 383 U.S. at 230, 86 S.Ct. 768, 15 L.Ed.2d 717.
      Consequently, any lump sum payment which does not increase in size with length of employment — regardless of whether it is labeled a “severance benefit” — is not a perquisite of seniority within the meaning of § 459(b) and (c). Such payments might aid an employee to find a new job or acquire new skills, and if the increment or the existence of the payments does not depend on years of service, the Act does not protect them for the veteran. At the same time, if the severance benefits do increase with length of continuous employment, the real nature of the payments is compensation for forfeited seniority rights. 383 U.S. at 230, 86 S.Ct. 768, 15 L.Ed.2d 717.

      . Even if Coea-Cola’s “service credit” plan were analyzed as it requests, the plan could not be considered a legitimate work requirement. The denial of any credit for overtime and the failure of the company to credit' any hours in excess of 1600 per year show that this is a plan rewarding a continuous relationship with the company, rather than giving compensation for work actually performed. Also, the exact correlation between service credits and years of continuous employment as well as the increase in benefits with every five credits, or every five years, emphasize that the purported work requirements are just a crude means of measuring rewards for longevity.

      . Employee reliance on the protected value of seniority rights will be weakened if courts apply a work requirements test to each contract. Hoffman v. Bethlehem Steel Corporation, 335 P.Supp. 968 (W.D.Pa.1972), is an example of the danger to employee expectations inherent in this approach. In its appeals brief Coca-Cola referred to this lower court opinion as “squarely on point.” Hoffman, a veteran, sought credit for military time under a Supplemental Unemploy-, ment Benefits Plan (SUB), which awarded % credit for every 40 hours actually worked. SUB benefits were based on the number of SUB credits received. The lower court held that this was a legitimate work requirement and denied the veteran recovery. After Coca-Cola had submitted its brief on appeal, the Third Circuit reversed the lower court because 40-hour weeks were defined by the contract as any week in which an employee worked one hour; the Court of Appeals held the SUB plan was, therefore, a sham and granted the veteran recovery. Hoffman v. Bethlehem Steel Corp., 477 F.2d .860 (3 Cir. 1973). Retreating from its contention that tlie case is “on point”, appellant now asks the court to just follow the analysis pursued by the Third Circuit.

      . Whether the Act protects pension rights or deferred compensation plans is not decided here, and no position on the issue is intimated. See 80 Harv.L.Rev. 142, at 149 (1966). When such benefits are analyzed, the extent to which the payments compensate for work performed, rather than for loss of seniority rights, will determine the real nature of the benefits within the meaning of the Act, and in this respect, correlation between the amount received and actual work requirements may be relevant.

      . The operation of the severance pay plan poses further difficulties to the majority’s conclusion which it appears to overlook. Unlike Accardi, this case involves a payment made by the union, not the employer. The collective bargaining agreement binds the employer only to pay 20 cents per hour up to 40 hours per week into the union Retirement Fund. The Fund, wholly a union plan, then provides severance payments out of the income from the employer’s contributions. While I agree that employers generally should not be permitted to subvert the statute by delegating all fringe benefit payments to the union, this case presents some troubling problems in this regard. The employer’s only duty under the statute is to restore the employee to a position of “like seniority, status, and pay.” If the collective bargaining agreement had fixed employees’ wages at a rate 20 cents per hour higher than here, and the union had increased its dues by the same amount, putting the extra 20 cents into the Retirement Fund, I would not anticipate that the employer would be liable for any deprivation of seniority benefits for returning veterans. The case here does not seem significantly different. The employer’s payments into the Fund are clearly based on work actually done, not on seniority, and under the circumstances of this case, he should not be required either to make payments into the fund for hours the employee did not work, or to make payments that the employee claims are due him out of the union’s own fund. However, since I conclude that neither the employer’s payments nor the union’s benefit plan are based on seniority, I do not find it necessary to reach the difficult question of when § 9(b) applies to union obligations stemming from, or related to a collective bargaining agreement.

      . The Eighth Circuit, in Morton v. Gulf, Mobile & Ohio Railroad Co., 405 F.2d 415 (8 Cir. 1969), and the Sixth Circuit in Edwards v. Clinchfield Railroad Co., 408 F.2d 5 (6 Cir. 1969), aff’g 278 F.Supp. 751 (E.D. Tenn.1967), appear to be to the contrary. See also Saleck v. Great Northern Ry., 277 F.Supp. 936 (D.Minn.1967) ; Barry v. Smith, 285 F.Supp. 801 (D.Mass.1968) ; cf. Messina v. Consolidated Freightways Corp., 315 F. Supp. 340 (W.D.N.Y.1970).
      The majority cites the Ninth Circuit’s brief opinion in Locaynia v. American Airlines, Inc., 457 F.2d 1253 (9 Cir.), cert, denied, 409 U.S. 982, 93 S.Ct. 317, 34 L.Ed.2d 246 (1972), as undercutting the work requirements test for vacation benefits. I do not read that opinion so broadly. The vacation plan at issue in Locaynia premised eligibility on periods of “continuous service” with the company, much like the plan in Eagar. The court directed its attention to the “narrow issue” of whether “this vacation pay [was] a perquisite of seniority.” 457 F.2d at 1255 (emphasis added). Nothing in the opinion indicates that the court would hold that a veteran was entitled to vacation pay if the plan in question contained a liona fide work requirement. A district court in the same circuit has recently read Loeaynia as limited to vacation plans not including a work requirement. Young v. Southern Pacific Trans. Co., 84 L.R.R.M. 2546 (C.D.Cal. Sept. 19, 1973).

      . The only post-Bagar “paid vaction” case I have been able to find in which there was a work requirement expressed in total number of hours of compensated service is Tuttle v. tl. S. Plywood Corp., supra, 293 F.Supp. 401. The court there held that the work requirement took the vacation benefit out of the scope of § 9(b).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Milwood W. C. HUGHES, Jr., Defendant-Appellant.
    No. 494, Docket 73-2525.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 8, 1974.
    Decided Jan. 11, 1974.
    Donald L. Doernberg, New York City (Levy, Gutman, Goldberg & Kaplan, Jeremiah S. Gutman, New York City, on the brief), for defendant-appellant.
    George E. Wilson, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., S. Andrew Schaffer, Asst. U. S. Atty., on the brief), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
   PER CURIAM:

Milwood W. C. Hughes, Jr., appeals from a judgment of conviction for failure to report for induction into the armed forces, 50 U.S.C. App. § 462(a), after a non-jury trial in the United States District Court for the Southern District of New York, Irving Ben Cooper, J., 364 F.Supp. 310 (1973). Appellant was sentenced as a young adult offender to six months in prison and 18 months probation thereafter.

Appellant’s basic claim is that the failure of appellant’s local board to act upon his allegedly timely request for reclassification vitiated the induction order. Appellant, a permanent resident alien from British Honduras, was supposed to report for induction on July 16, 1970. A few days prior to that date, appellant allegedly returned to British Honduras and mailed to his local board a letter requesting reclassification under 32 C.F.R. § 1622.42(e) as an alien “who.has departed from the United States.” The letter was dated July 14, but was not received by the local board until July 20. The stated reason for the departure was that appellant’s “kid brother is ill,” thus creating an “emergency.” While the record hardly justifies this characterization, but does make clear appellant’s evasive tactics, we need not tarry over his good faith or lack of it. Although the circumstances were curious, we may assume, as did Judge Cooper, that the letter was actually mailed before July 16. However, we agree with the trial judge that the controlling date is when the request for reclassification was actually received by the local board. United States v. Baldridge, 454 F.2d 403 (1st Cir. 1972); United States v. Daniell, 435 F.2d 834 (1st Cir. 1970) (per curiam), cert, denied, 401 U.S. 982, 91 S.Ct. 1201, 28 L.Ed.2d 334 (1971).

The claim that Local Board Memorandum No. 72 requires a different result is without merit. That Memorandum clearly applies only to specified situations where the registrant’s response is triggered by board action and restricted to specified time limits. United States v. Baldridge, supra, 454 F.2d at 404-405. Here, Hughes presumably was not responding to the induction order, but to his brother’s alleged illness. Since appellant’s request for a change in classification was received by the local board after the date scheduled for his induction, he was required to obey the induction order. It may be that a situation will arise where an unusual delay in the mails or some other equitable circumstance would raise due process questions if a mailed request for reclassification was therefore received too late to be considered. See id.; Blades v. United States, 407 F.2d 1397, 1399 n. 1 (9th Cir. 1969). But this is far from such a case.

Judgment affirmed.

      . The regulation at the time provided in relevant part:
      (c) In Class IV-C shall be placed any registrant who is an alien and who has departed from the United States. Such alien shall be placed in Class IV-C even though he is a delinquent but this classification shall in no way relieve Mm from liability for prosecution for violation of the selective service law. If any registrant so classified under this paragraph returns to the United States, Ms classification shall be reopened and he shall be classified anew.
      Executive Order 10659, 21 Fed.Reg. 1103. The regulation has since been amended to eliminate the second sentence.

      . Although the letter had British Honduras stamps and registered mail markings on it, it carried only a July 18 postmark of receipt by a Bronx post office.

      . Local Board Memorandum No. 72 provides:
      SSS Reg.
      1624.1
      1626.2
      1627.3 1641.6
      LOCAL BOARD MEMORANDUM NO. 72 ISSUED: DECEMBER 17, 1962
      SUBJECT: TIMELY 'PILING OR SUBMISSION OF NOTICES OR INFORMATION
      1. Selective Service Regulations provide that a registrant and other specified persons, to be entitled to a procedural right or to qualify for a status, must file with or submit to the local board a notice or information within a specified period of time or before a “cutoff” date.
      2. When such a notice or information is filed with or submitted to the local board by mail, the date of mailing as shown by the postmark on the envelope and not the date it was received by the local board shall be used in determining whether the filing or submission is timely.
      3. The envelope in which any such notice or information is received shall be placed in the registrant’s cover sheet attached to the contents of the envelope.

      . The Memorandum indicates on its face that it applies to the registrant’s duties under what were at the time of its issuance 32 O. F.R. §§ 1624.1 (request for personal appearance before local board), 1626.2 (appeal to state board), 1627.3 (appeal to President), and 1641.6 (computation of time for response to notices).
      The Memorandum was rescinded in 1972, after the relevant dates in this case, and was replaced by Registrants Processing Manual § 603.6, which appears to be broader in its application.


author: ALDRICH, Senior Circuit Judge: CHOY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff, Appellee, v. John Alfred HAMILTON, Defendant, Appellant.
    No. 73-2124.
    United States Court of Appeals, Ninth Circuit.
    Jan. 2, 1974.
    Rehearing Denied March 18,1974.

      Choy, Circuit Judge, dissented and filed opinion.
    Kevin J. Melnerney (argued), San Diego, Cal., for defendant, appellant.
    Harry D. Steward, U. S. Atty., Stephen G. Nelson, Shelby R. Gott (argued), Asst. U. S. Attys., San Diego, Cal., for plaintiff, appellee.
    Before ALDRICH, ELY and CHOY, Circuit Judges.

       Honorable Bailey Aldrich, United States Senior Circuit Judge, First Circuit, sitting by designation.

   ALDRICH, Senior Circuit Judge:

Defendant Hamilton, the driver of a Chevrolet pickup truck, was arrested on August 12, 1972, following a successful search of the vehicle for contraband as a result of information supplied to the United States Border Patrol by an informant. After a non-jury trial he was found not guilty of importing, but guilty of possessing the 264 pounds of marijuana found in the truck, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The sole question on defendant’s appeal is the legality of the warrantless search.

The same hiatus in the surveillance between the vehicle’s apparently lawful entry from Mexico (at 2:30 PM) and its apprehension and the discovery of the marijuana (at 6:30 PM) which required a finding of not guilty on the importation count, makes frivolous the government’s claim that the “search was the functional equivalent of a border search.” We merely note, in passing, that this is not a case of a short hiatus after suspicion had been aroused. See, e. g., Alexander v. United States, 362 F.2d 379 (9th Cir. 1966), cert, denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439; Leeks v. United States, 356 F.2d 470 (9th Cir. 1966). Even less supportable is the government’s extraordinary assertion that the “plain sight” doctrine embraces objects revealed only as a result of entering the truck and lifting a plywood floorboard. It is conceded that until the plywood was raised, exposing a false compartment, no evidence of marijuana was noted, even by smell. As the Court has said many times, the plain view doctrine is applicable only when there has been no prior unjustified intrusion. See, e. g., discussion in Coolidge v. New Hampshire, 403 U.S. 443 (1971).

We turn, therefore, to the district court’s finding that the search was supported by probable cause. The facts are these. At about 4:30 PM on the day in question one Fernán, a Border Patrol agent was informed by a previously demonstrated reliable informant that a truck, which he pointed out to him parked across the street from the Customs Agency in Calexico, California, had marijuana concealed in a false compartment in the body bed. If the informant gave Fernán any explanation, source or basis for this information, the government failed to introduce it. Fernán reported by telephone to Walker, a Customs special agent. The precise nature of what was said is important. According to Walker, the sole testifier, the “informant indicated that there was a false compartment in the bed of this vehicle, and that it contained an unknown quantity of marijuana.” We cannot take Walker’s word “indicated” as meaning pointed out the compartment as distinguished from merely stating it existed, because in the sentence almost immediately preceding Walker had used the word “indicated” as clearly meaning by word of mouth. It is true that there were visible plywood boards over the compartment, but no witness suggested that a plywood flooring in a pick-up truck was unusual or suspicious. Even the government did not claim that the testimony of agent Salinas of seeing the compartment after the flooring was removed, or the snapshots then taken, suggested that it was previously visible. Nor do we so construe the record. The burden is on the government, and if we were to draw any inference, it would be that there would be no point in having a false compartment if its existence was apparent.

Having seen the truck, Fernán obviously was able to describe it accurately. Walker went to the window and looked out, but the truck had gone. A general call was sent out. At 6:30 PM a truck meeting the description stopped of the driver’s own accord at a then closed highway checkpoint to clean the windshield. Some fortuitously present government agents recognized it, effected the search, and arrested the defendant.

The government asserts that the fact the informant was of proven reliability is all that was needed to establish probable cause for the search. While support may be found for this view, e. g., Costello v. United States, 324 F.2d 260 (9th Cir. 1963), cert, denied, 376 U.S. 930, 84 S.Ct. 699, 11 L.Ed.2d 650, it is now clear that, as the court said in United States v. Davis, 461 F.2d 1026, at 1033 (3rd Cir. 1972), there is a “two-pronged” test. It is necessary to make some showing of the validity of the conclusions made by the reliable informant. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). This aspect can be satisfied by evidence of “some underlying circumstances” warranting the informant’s conclusions in the particular instance, Travis v. United States, 362 F.2d 477, at 479 (9th Cir. 1966), cert, denied, 385 U. S. 885, 87 S.Ct. 179, 17 L.Ed.2d 113, or by corroboration of his information from other sources, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958); see Whiteley v. Warden, 401 U.S. 560, 567, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); or, perhaps, by the information itself if it is so detailed as to be inherently reliable. Thus in Draper v. United States, ante, where the informant not only described the suspect, but stated that he would be arriving by train from Chicago carrying a brown satchel, the Court considered the subsequent fulfillment of this prophecy to be sufficient corroboration of the informant’s statement that the suspect would be carrying contraband. The probative significance of this subsequent event was noted in Spinelli v. United States, ante, 393 U.S. at 416-417, 89 S.Ct. 584. In the case at bar all the government had was a statement supported by nothing that was not open and obvious to anyone. We know of no case suggesting that this is enough. Cf. Whiteley v. Warden, ante, rejecting informer’s un-amplified “tip” that described individuals, in a described car, had stolen gold coins.

Finally, the government, in keeping with its other views in this case, offers as an alternative ground the fact “the information provided was verified.” It is hornbook law that ex post facto verification does not satisfy the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963).

Reversed.

CHOY, Circuit Judge

(dissenting):

I respectfully dissent. I would sustain as not clearly erroneous the district court’s factual finding that there was probable cause for the warrantless search. Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963), cert, denied, 376 U.S. 390, 84 S.Ct. 699, 11 L. Ed.2d 650 (1964).

Not only was the informant of proven reliability, but also his information was corroborated by government agents (Fernán and Salinas) before Agent Salinas made any attempt to lift the ply-board sheet covering the false compartment in the pickup truck-bed to smell the marijuana. The corroborative facts preceding the search and the reasonable inferences therefrom are:

The well-described truck, which the informant indicated had a false compartment in its bed containing a quantity of marijuana, was parked where the informant said it was.
The plyboard cover to the false compartment in the open truckbed was clearly visible.
Fernán inspected the truck where it was originally parked and saw the false cover.
Salinas saw the plyboard cover and recognized it as covering the false compartment before he raised it.

I find this case indistinguishable from Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958). I would not second guess the district judge and say he was clearly erroneous. We are concerned here with whether there was probable cause to search, not with whether a prima facie case to convict for possession of 264 pounds of marijuana was established before Salinas made the search.

I would affirm.


author: FAIRCHILD, Circuit Judge. CHRISTENSEN, Senior District Judge

text:
    Jeff JACOBS et al., Plaintiffs-Appellees, v. The BOARD OF SCHOOL COMMISSIONERS, etc., et al., Defendants-Appellants.
    No. 72-2030.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 19, 1973.
    Decided Dec. 14, 1973.

      Lawrence MeTurnan, Lila J. Young, Indianapolis, Ind., for defendants-appellants.
    Craig Eldon Pinkus, Ronald E. Elber-ger, Indianapolis, Ind., for plaintiffs-ap-pellees.
    Before FAIRCHILD and CUMMINGS, Circuit Judges, and CHRISTENSEN, Senior District Judge.

       Senior District.Judge A. Sherman Christensen, of the District of Utah, is sitting by designation.

   FAIRCHILD, Circuit Judge.

Defendants are officials of the Indianapolis school system. They appeal from a judgment enjoining the enforcement of certain rules governing the distribution by students of communicative written materials within the Indianapolis public school buildings and upon the grounds of such buildings. The named plaintiffs were or had been high school students when the action was started. They challenged defendants’ suppression of an unofficial student newspaper, entitled the Corn Cob Curtain, in the publication and distribution of which plaintiffs had participated. The relevant rules of the Board were amended while the action was pending. The decision and judgment appealed from are reported, Jacobs v. Board of School Com’rs of City of Indianapolis, 349 F.Supp. 605 (S.D.Ind., 1972).

1. Refusal to appoint a guardian ad litem.

Plaintiffs were minors, represented by counsel. They alleged that activities of defendants violated their first and fourteenth amendment rights. They sued on behalf of themselves and all other high school students under defendants’ jurisdiction. They primarily sought injunc-tive relief except that they also prayed for $150 compensatory damages and nominal or other punitive damages. Except for the prayer for damages in modest amount, plaintiffs won.

The district court denied defendants’ petition for appointment of a guardian ad litem. Under the present circumstances, it is doubtful that defendants have a sufficient interest to raise this point on appeal. There is little reason to suppose that defendants would be exposed to any risk as a result of a claim that plaintiffs or class members are not bound by the judgment because there was no personal representative, next friend, or guardian ad litem. In Roberts v. Ohio Casualty Insurance Company, 256 F.2d 35 (5th Cir., 1958), relied on by defendants, and where a judgment was reversed for failure to appoint, it was the unrepresented minor who sought reversal. Nevertheless, defendants argue that the judgment should be reversed on this ground.

Rule 17(e), F.R.Civ.P., provides in part: “The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”

Defendants apparently concede that neither the appointment of a guardian ad litem nor a protective order in lieu thereof is mandatory, and neither is required if the court considers the matter and makes a judicial determination that the infant is protected without a guardian. Roberts, supra, p. 39. See Till v. Hartford Accident & Indemnity Co., 124 F.2d 405, 408 (10th Cir., 1941); West-cott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir., 1946).

Here the question was argued and considered. We do not agree with defendants that the court’s emphasis, in its oral ruling, on the fact that constitutional issues were presented, and that substantial monetary recovery was not sought, demonstrates a failure to decide the appropriate question. Moreover, there is nothing in the record which indicates that the minors were represented inadequately or that any party was prejudiced by the absence of a guardian ad litem. See Till and Westcott, supra, and Rutland v. Sikes, 203 F.Supp. 276 (E.D. S.C., 1962), aff’d on other grounds, 311 F.2d 538 (4 Cir.), cert, denied 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053.

2. The Constitutionality of the Board’s Regulations.

During the 1971-1972 public school term, five issues of the Corn Cob Curtain were published. They contained letters, articles about politics, education, student affairs, religion, and American history, music, movie, and book reviews, poetry, and cartoons. The first four issues were distributed in Indianapolis high schools. At the time the fifth issue was ready for distribution, school authorities notified the student population that school board rules prohibit sales or solicitations on school grounds without the express prior approval of the General Superintendent. After conferring with various school officials, the named plaintiffs were informed that the Corn Cob Curtain could no longer be distributed because it contained obscene materials. Appellees refrained from distributing the fifth issue pending resolution of these issues in the courts.

At the time of the above events, Sections 11.05 and 11.06 of the Board’s rules prohibited the sale or distribution of literature in the public schools without express prior approval of the General Superintendent. After the district judge stated his belief that these rules were unconstitutional prior restraints under Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir., 1972), the defendants amended the rules to their present form. The district court held that the amended rules were unconstitutional.

The amended rules involved are set forth at 349 F.Supp. 607-609. Rule •11.05 consists of a series of numbered items or paragraphs, designated in the district court judgment as provisos. We adopt that term, and proceed to consider the arguments made by defendants with respect to them.

(a) Amended Rulell.05, Proviso 1.1.1.3.

Reading provisos 1.1.1. and 1.1.1.3 together, they provide:

“No student shall distribute in any school any literature that is . either by its content or by the manner of distribution itself, productive of, or likely to produce a significant disruption of the normal educational processes, functions or purposes in any of the Indianapolis schools, or injury to others.”

The district court held that this rule was both vague and overbroad. We agree.

It is well established that a criminal statute is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); United States v. Dellinger, 472 F.2d 340, 355 (7th Cir., 1972), cert, denied 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706. Vague laws are constitutionally offensive for several reasons:

“First, because we assume that man is .free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘ “steer far wider of the unlawful zone” than if the boundaries of the forbidden areas were clearly marked.’ ” Grayned, supra, 408 U.S. at 108-109, 92 S.Ct. at 2299, footnotes omitted.

Here, there is no criminal statute before us. Nonetheless, a student who violates amended Rule 11.05 is subject to suspension or expulsion or other disciplinary action. Proviso 1.61. We conclude that the penalties for violation are sufficiently grievous to mandate careful scrutiny for vagueness. See generally Bag-gett v. Bullitt; 377 U.S. 360, 374, 84 S. Ct. 1316, 12 L.Ed.2d 377 (1964). We note the substantial danger of inadequate warnings to students, of arbitrary enforcement by teachers and principals, and of inhibition of full exercise of students’ first amendment rights.

We think that proviso 1.1.1.3 is vague in defining the consequences which will make a distribution of literature unlawful. Those consequences are articulated as “a significant disruption of the normal educational processes, functions, or purposes in any of the Indianapolis schools, or injury to others.” Is decorum in the lunchroom a “normal educational . . . purpose”? If an article sparks strident discussion there, is the latter a “disruption”? When does disruption become “significant”? The phrase “injury to others” is also vague. Does it mean only physical harm? Does it include hurt feelings and impairment of reputation by derogatory criticism, short of defamation, since libelous material is already covered by proviso 1.1.1.2?

Defendants argue unpersuasively that proviso 1.1.1.3 is not over-vague because of its similarity to the text of the standard by which the Supreme Court tested a precise regulation against wearing armbands in Tinker v. Des Moines School Dist., 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731. It does not at all follow that the phrasing of a constitutional standard by which to decide whether a regulation infringes upon rights protected by the first amendment is sufficiently specific in a regulation to convey notice to students or people in general of what is prohibited.

Proviso 1.1.1.3 is also unconstitutionally overbroad. In United States v. Dellinger, supra, 472 F.2d at 357, this court stated: “The doctrine of over-breadth applies when a statute lends itself to a substantial number of impermissible applications, such that it is capable of deterring protected conduct, when the area affected by the challenged law substantially involves first amendment interests, and when there is not a valid construction which avoids abridgement of first amendment interests.” (footnotes omitted). These factors are present here.

The overbreadth stems both from the vagueness described above and from the inelusiveness of the phrase “productive of, or likely to produce” in the proviso. Expression may lead to disorder under many circumstances where the expression is not thereby deprived of first amendment protection. See Braxton v. Municipal Court, 10 Cal.3d 138, 109 Cal. Rptr. 897, 514 P.2d 697 (1973). We do not read Tinker as authorizing suppression of speech in a school building in every such circumstance where the speech does not have a sufficiently close relationship with action to be treated as action. See Dellinger, supra, 472 F.2d at 360.

Where the boundaries between prohibited and permissible conduct are ambiguous, we can not presume that the curtailment of free expression is minimized. NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); United States v. Dellinger, supra, 472 F.2d at 356-357. Instead the plaintiffs are permitted to attack the regulation by suggesting impermissible applications without demonstrating that their own conduct “could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). See Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Proviso 1.1.1.3 at least threatens a penalty for a student who distributed a controversial pamphlet in a lunchroom resulting in robust arguments or who distributed a newspaper including derogatory but not defamatory remarks about a teacher. Absent extraordinary circumstances, the school authorities could not reasonably forecast substantial disruption of or material interference with school discipline or activities arising from such incidents. See Tinker, supra. Finally, we note that this court lacks jurisdiction to place an authoritative limiting construction upon this state regulation in contrast with the power of federal courts with respect to interpretation of federal statutes or regulations. United States v. 37 Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), cert, denied 403 U.S. 924, 91 S.Ct. 2221, 28 L. Ed.2d 702.

(b) Amended Rule 11.05, Proviso 1.1.14.

Reading provisos 1.1.1 and 1.1.-1.4 together, they provide:

“No student shall distribute in any school any literature that is . not written by a student, teacher, or other school employee; provided, however, that advertisements which are not in conflict with other provisions herein, and are reasonably and necessarily connected to the student publication itself shall be permitted.”

We have no doubt that this rule abridges first amendment rights of plaintiffs, although not for the reason assigned by the district court. Whether the student distribution of literature be viewed as individual speech or as press publication, we think that authorship by a non-school person of the material distributed is not germane to any of the constitutional standards which must be met before conduct which is also expression can be prohibited.

Defendants suggest that student distribution of materials written by non-students and outside organizations tends to produce disorder and interference with school functions, and cite the example that “stores would undoubtedly pay students to distribute flyers advertising their products.” Assuming, however, some area of possible validity, the rule is overbroad. It would prohibit use of materials written by individuals from all sorts of walks of life whose views might be thought by the students to be worthy of circulation. “Predictions about imminent disruption . . . involve judgments appropriately made on an individualized basis, not by means of broad classifications, especially those based on subject matter.” Police Department of Chicago v. Mosley, 408 U.S. 92, 100, 92 S.Ct. 2286, 2293, 33 L.Ed.2d 212 (1972).

(c) Amended Rule 11.05, Proviso l.S.1.6.

Literature not proscribed under 1.1.1, l.l.l.l to 1.1.1.4, is referred to as 'distributable literature.” (Proviso 1.-1.2). Reading provisos 1.3.1 and 1.3.1.6 together, they provide:

“No distributable literature shall be distributed by any student in any school . . . unless the name of every person or organization that shall have participated in the publication is plainly written in the distributable literature itself.”

In Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), the Supreme Court held invalid a city ordinance prohibiting the distribution of handbills in any place unless the handbills disclosed the names and addresses of the persons who printed, wrote, manufactured and distributed the handbills. Noting the historical importance of anonymous publications as a vehicle for criticizing oppressive practices and laws, the Court held that the broad prohibition of the ordinance violated the first amendment. Talley, supra, 63-65, 80 S. Ct. 536.

Anonymous student publications perform similarly within the school community ; without anonymity, fear of reprisal may deter peaceful discussion of controversial but important school rules and policies. Although the rule leaves students free to distribute anonymous literature beyond the school house gate, the question here, as in Tinker, is whether the state has demonstrated a sufficient justification for this prohibition within the school community, where students and teachers spend a significant portion of their time. See Tinker, supra, 393 U.S. 506, 89 S.Ct. 733. Defendants contend that the names of persons who have “participated in the publication” of literature must be provided so that those responsible for the publication of libelous or obscene articles can be held accountable. However, here as in Talley, the requirement is not limited to material as to which such justification might be urged. Indeed, if the regulation be read literally, 1.3.1.6 applies only to literature the content of which is acceptable. School authorities could not reasonably forecast that the distribution of any type of anonymous literature within the schools would substantially disrupt or materially interfere with school activities or discipline. See Tinker, supra, 514, 89 S.Ct. 733.

(d) Amended Rule 11.05, Proviso 1.3.1.5 and Rule 11.06.

Reading 1.3.1 and 1.3.1.5 together, they provide:

“No distributable literature shall be distributed by any student in any school ... in immediate exchange for money or any other thing of value . . ., whether the transaction is characterized as a sale of the distributable literature, as a contribution to finance the publication or distribution of the distributable literature, or as any other transaction whereunder money or any other thing of value (or a promise of either) immediately passes to or for the direct or indirect benefit of the student who is distributing the distributable literature. . . .”
Amended Rule 11.06 provides that: “No person, including students and organizations or corporations, other than the school corporation acting through its designated agents, or organizations of parents and teachers or students whose sole use of funds is for the benefit of the particular school in which they are organized or in attendance, may sell merchandise or material, collect money, or solicit funds or contributions from the students for any cause or commercial activity within any school or on its campus.”

Plaintiffs suggest that these rules were adopted to accomplish indirectly that which can not be accomplished directly: the blanket prohibition of the distribution of the Corn Cob Curtain and other similar student newspapers. Plaintiffs alleged the dependence of the paper upon contributions of money for survival. It can readily be observed that a ban upon the receipt of contributions on school grounds would create financial difficulties in raising the $120 to $150 necessary to publish each edition of the Corn Cob Curtain. In Grosjean v. American Press Company, 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1935), the Supreme Court considered the constitutionality of a Louisiana tax upon the advertising revenue of newspapers with a circulation of more than 20,000 copies per week. After finding that the effect of the tax might be to destroy both the advertising and circulation of the newspapers and noting with suspicion the form of the tax, the Court concluded that the tax was a “deliberate and calculated device ... to limit the circulation of information to which the public is entitled,” in violation of the first amendment. Grosjean, supra, 244, 250, 56 S.Ct. 444, 449.

Assuming, however, that the rules are not a “deliberate and calculated device” to suppress the student newspaper, it becomes necessary to analyze the justification offered by defendants. They assert the legitimacy of an interest in preventing the use of school premises “for non-school purposes — particularly commercial activities.” Rule 11.06 is a general prohibition against sales of materials and solicitation of funds except for the benefit of the school. If there were any question of its intended applicability to sales by students of their unofficial newspaper, proviso 1.3.1.5 makes specific application.

We have little question of the legitimacy of the interest of the school authorities in limiting or prohibiting commercial activity on school premises by persons not connected with the school, either acting directly or through students as agents. But because students have first amendment rights within the school, as recognized in Tinker, we think that the propriety of regulation of their conduct involving the exercise of protected rights must be independently justified. It is not enough to say that such activity by students is similar to commercial activity by others.

Sale of the newspaper, or other communicative material within a school, is conduct mixing both speech and non-speech elements. In order to determine whether a “sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms,” we must consider whether the regulation “is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), reh. denied 393 U.S. 900, 98 S.Ct. 63, 21 L.Ed.2d 188.

Ultimately, defendants rely on the proposition that “Commercial activities are time-consuming unnecessary distractions and are inherently disruptive of the function, order and decorum of the school.”

Provisos 1.3.1.2, .3 and .4 already regulate the place and manner of distribution so as to avoid interference with others and littering. They have not been challenged here. It has not been established, in our opinion, that regulation of the place, time, and manner of distribution can not adequately serve the interests of maintaining good order and an educational atmosphere without forbidding sale and to that extent restricting the first amendment rights of plaintiffs.

(e) Amended Rule 11.05, proviso l.S.1.1.

Reading provisos 1.3.1 and 1.3.-1.1. together, they provide:

“No distributable literature shall be distributed by any student in any school . . . while classes are being conducted in the school in which the distribution is to be made.”

It is well established that the right to use public places for expressive activity is not absolute and that “reasonable ‘time, place and manner’ regulations [which] may be necessary to further significant governmental interests” are constitutionally permissible. Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), and cases cited therein. The question here is whether the Board could reasonably forecast that the distribution of student newspapers anywhere within a school at. any time while any class was being conducted would materially disrupt or interfere with school activities and discipline. See Grayned v. City of Rockford, supra at 118, 92 S.Ct. at 2294. In determining - whether “the manner of expression is basically incompatible with the normal activity of a particular place at a particular time, ... we must weigh heavily the fact that communication is involved [and] the regulation must be narrowly tailored to further the State’s legitimate interest.” Grayned v. City of Rockford, supra at 116-117, 92 S.Ct. at 2304.

We are hampered in evaluating proviso 1.3.1.1 by the paucity of evidence in the record with respect to arrangements and schedules of classes in the Indianapolis secondary schools. Nonetheless, it does appear that there are periods in the morning, around noon, and in the late afternoon when, although some classes are in session, substantial numbers of students are on the premises, are not involved in classroom activity, and are barred by proviso 1.3.1.1 from distributing and indirectly from receiving student newspapers. We conclude that the defendants have not satisfied their burden of demonstrating that the regulation banning distribution at all these times is narrowly drawn to further the state’s legitimate interest in preventing material disruptions of classwork. See Tinker, supra 513, 89 S.Ct. 733.

3. Defendants’ claim concerning obscenity and profanity.

Defendants’ original answer averred, among other things, that plaintiffs’ publications are obscene, indecent, vulgar, and profane. While the action was pending, the rules were amended so that when Rule 11.05, provisos 1.1.1 and 1.1.-1.1, are read together, they provide: “No student shall distribute in any school any literature that is obscene as to minors. ...”

The district court did not directly decide defendants’ claim that the existing issues of Corn Cob Curtain were obscene. Presumably the court deemed the proviso valid, for the decision indicates that the appropriate inquiry concerning obscenity would be whether future issues of the paper would be obscene as to minors. The decision, 349 F.Supp. at 610, set forth the then controlling Roth-Memoirs definition of obscenity, the concept of variable obscenity permitting a less exacting standard where material is directed at children, and other limitations to be regarded in making the determination.

Necessarily we observe that proviso l.l.l.l lacks the specific definition of sexual conduct the description of which is prohibited as now required for a valid law under Miller v. California, 413 U.S. 15, 26, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419 (1973).

In any event, a substantial portion of defendants’ brief is devoted to what it terms the most crucial issue, “whether school authorities may constitutionally and legitimately prevent and/or punish the use of defamatory, obscene and indecent language in the school house which is contrary to the moral standards of the community.”

In the first place, the issues of the Corn Cob Curtain in the record are very far from obscene in the legal sense. A few earthy words relating to bodily functions and sexual intercourse are used in the copies of the newspaper in the record. Usually they appear as expletives or at some similar level. One cartoon depicts a sequence of incidents in a bathroom. This material amounts only to a very small part of the newspapers; which are tabloid size, containing eight or twelve pages. These issues contain no material which is in any significant way erotic, sexually explicit, or which could plausibly be said to appeal to the prurient interest of adult or minor. See Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

In Miller, swpra, the Supreme Court limited the scope of the obscenity exception to first amendment protection to “works which depict or describe sexual conduct” and “which, taken, as a whole, appeal to the prurient interest in sex, which portray, sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Clearly the newspaper issues in the record do not even approach fulfillment of this defnition.

Nor need we speculate about the exact effect of Miller on the variable obscenity concept exemplified by Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L. Ed.2d 195 (1968). Making the widest conceivable allowances for differences between adults and high school students with respect to perception, maturity, or sensitivity, the material pointed to by defendants could not be said to fulfill the Miller definition of obscenity.

It is well established that a distinction must be drawn between obscene materials and non-obscene materials containing profanity. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed. 2d 284 (1971); Fujishima v. Board of Education, 460 F.2d 1355, 1359 n. 7 (7th Cir., 1972). The only possible question is whether the Board’s educational responsibilities justify its preventing the use by students in these circumstances of words considered coarse or indecent. Clearly a university can not constitutionally regulate expression on that ground. Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973). Although there is a difference in maturity and sophistication between students at a university and at a high school, we conclude that the occasional presence of earthy words in the Corn Cob Curtain can not be found to be likely to cause substantial disruption of school activity or materially to impair the accomplishment of educational objectives. Scoville v. Board of Ed. of Joliet T.P.H.S. Dist. 204, Etc., Ill., 425 F.2d 10, 13 (7th Cir., 1970).

The injunction is broad enough to cover enforcement of the particular rules at all schools under the jurisdiction of defendants. At oral argument, plaintiffs conceded that their case was limited to the application of the rules in high schools. We therefore had no occasion to decide whether or not age difference and the like would lead to a different ruling concerning elementary schools. Should defendants apply to the district court to limit the injunction to high schools, nothing in this decision forecloses the consideration of the application on its merits.

The judgment appealed from is affirmed.

CHRISTENSEN, Senior District Judge

(concurring in part and dissenting in part):

I am in general agreement with the majority opinion as it relates to the guardian ad litem problem and the invalidity of Provisos 1.1.1.4, 1.3.1.6, 1.3.1.5 and 1.3.1.1 of Rule 11.05, and Rule 11.06 of the appellant board.

I dissent, however, from those parts of the opinion holding that Rule 11.05, Proviso 1.1.1.3, is invalid for vagueness and overbreadth and that certain language used in the Corn Cob Curtain was not “obscene as to minors” in the high school context and thus in contravention of Amended Rule 11.05, Proviso 1.1.1.1.

And I find myself in disagreement with the conclusion “that the occasional presence of earthy words in the Corn Cob Curtain cannot be found to be likely to cause substantial disruption of school activity or materially to impair the accomplishment of educational objectives”. The euphemisms employed to describe contents of the publication do not fully indicate the type of language and imagery that are given rein; whether constituting the predominant part, or merely an inescapably dominating part of any particular issue, it seems clear that expressions az’e used which in a high school, not to mention an elementary school would materially impair the accomplishment of educational objectives.

More likely obscene in these contexts are certain Corn Cob expressions than those involved in Papish v. University of Missouri Curators, 410 U.S. 667, 93 S. Ct. 1197, 35 L.Ed.2d 618 (1973), would be in the setting of a university. Hence, it may not be pz-esumptuous to suppose that v/hen a situation is evaluated corresponding to the one we have before us the majozúty of that court may be inclined to accept an extrapolation of the views expressed in the dissent of the Chief Justice to the effect that preclusion of the regulation of such material by school authorities would not protect values inherent in the First Amendment but would demean them (410 U.S. at p. 672, 93 S.Ct. 1197), and those of Mr. Justice Rehnquist, with whom the Chief Justice and Mr. Justice Blackmun joined, that “insistence on equating, for constitutional purposes, the authority of the State to criminally punish with its authority to exercise even a modicum of control over the university [high school or elementary school] which it operates serves neither the Constitution nor public education well.” (410 U.S. at p. 677, 93 S.Ct. at p. 1202.)

That at oral argument “plaintiffs conceded that their case was limited to the application of the rules in high schools” does not seem to me a sufficient reason for our failure to hold as to elementary schools of all places that the trial court’s decision involved error. Appellees should not be pez’mitted to waive the contentions of appellants, who have argued here both overbreadth and invalidity of the injunction. To the extent hereinabove indicated, I am of the opinion that appellants are right on both scores. And to that limited extent it appears to me that until now this court, as well as the Supreme Court, has not committed itself to an irreconcilable view.

      . In Tinker, the Supreme Court held that a state may restrain students from fully exercising their first amendment rights only if it is demonstrated that the school authorities reasonably forecast substantial disruption of or material interference with school activities or discipline. Tinker, supra 393 U.S. at 514, 8& S.Ct. 733.

      . E. g., Miller v. California, 413 U.S. 15, 26, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419 (1973).

      . We note that in the recent case of Branzburg v. Hayes, 408 U.S. 665, 680 ff, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court carefully distinguished the question of whether a newspaper reporter must respond to a grand jury subpoena from the question of whether the press could be required to publish or indiscriminately disclose all its sources.

       No determinative difference is perceived between this rule and its rewording which the trial court thought “more apt to be constitutionally acceptable”. 349 F.Supp. at pp. 611-612.