author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America ex rel. James ALLUM, Petitioner-Appellant, v. John J. TWOMEY, Warden, Respondent-Appellee.
    No. 72-1327.
    United States Court of Appeals, Seventh Circuit.
    Argued April 17, 1973.
    Decided Aug. 20, 1973.

      James R. Streicker, Chicago, 111., for petitioner-appellant.
    William J. Scott, Atty. Gen., James B. Zagel, Asst. Atty. Gen., Chicago, 111., for respondent-appellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

The questions raised by this appeal are whether petitioner waived his constitutional objection to the admissibility of certain evidence as a matter of Illinois procedure, and if so, whether that waiver also forecloses a federal collateral attack on his conviction.

In October, 1965, petitioner was convicted of the murder of his common-law wife. The evidence of guilt is summarized in the opinion of the Appellate Court of Illinois affirming the conviction. People v. Allum, 78 Ill.App.2d 462, 223 N.E.2d 187 (1st Dist. 1967). At his trial, and also on appeal, petitioner was represented by retained counsel. The competence of his counsel is evident from our examination of the trial transcript and is not challenged by petitioner.

Robert J. Welsh, one of the police officers who took defendant into custody immediately after the incident, testified on behalf of the prosecution. Although officer Welsh’s testimony is not mentioned in the Appellate Court’s summary of the evidence of guilt, it provides the basis for petitioner’s collateral attack on his conviction because officer Welsh described an oral statement which petitioner made after he was taken into custody.

Petitioner’s oral statement, as described in Welsh’s testimony, contained no incriminating admission, but in one respect was inconsistent with the testimony which petitioner later gave in his own defense. *In other respects, however, the in-custody statement tended to support petitioner’s defense. At no point during the testimony about petitioner’s in-custody statement did petitioner’s counsel make any objection. On the contrary, he cross-examined the officer to bring out certain facts helpful to the defense.

On November 19, 1971, petitioner initiated his first collateral attack on the conviction by filing a petition for writ of habeas corpus in the court below. He alleged that officer Welsh’s testimony about his in-custody statement was improperly received under the rule of Es-cobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758,12 L.Ed.2d 977.

The district court, after appointing counsel, dismissed an amended petition for failure to exhaust state remedies. On appeal petitioner argues that there is no available state remedy and therefore the exhaustion requirement is inapplicable. Appellee responds, alternatively, (1) it is not entirely clear that no state remedy exists and the only way to find out is for petitioner to give the Illinois courts an opportunity to consider his claim, or (2) if no Illinois remedy exists, it is because petitioner has deliberately by-passed an adequate remedy and therefore federal relief is also barred. Petitioner’s rejoinder to the second response is that he did not knowingly waive any constitutional right and should not be foreclosed by his counsel’s oversight. See Fay v. Noia, 372 U.S. 391, 438-440, 83 S.Ct. 822, 9 L.Ed.2d 837.

I.

We agree with petitioner’s analysis of the Illinois post-conviction procedures. It is perfectly clear that neither the statutory writ of error cor-am nobis, nor state habeas corpus is available. The remedy which is arguably available is relief under the Illinois Post-Conviction Hearing Act, Ill.Rev. Stat. Ch. 38, § 122-1 et seq. However, in construing that statute the Illinois Supreme Court has held that if an error which could have been raised on appeal is not raised, it is deemed waived for post-conviction purposes. There are exceptions to the waiver rule if the defendant was deprived of his right to appeal, or his appellate counsel was incompetent, or if “fundamental fairness” would be offended by enforcing a waiver. See People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25, 27 (1971). Petitioner’s analysis of the Illinois cases indicates that none of the exceptions to the waiver rule is applicable here.

Respondent argues that the “fundamental fairness” exception is sufficiently imprecise to make it inappro--' priate for a federal court to assume jurisdiction without first giving the Illinois courts an opportunity to construe their own waiver rule. We reject this argument for two reasons. First, we agree with petitioner that this exception has only been applied in fairly clear-cut situations, none of which fits this case. Second, even if a broader and more subjective test of fundamental fairness is applicable, our own appraisal of the record leads us rather confidently to the conclusion that there is nothing fundamentally unfair in the application of the waiver rule to the issue petitioner seeks to raise.

This is quite clearly a case in which the exhaustion defense, if upheld, would merely burden the state judiciary and the petitioner with a series of futile proceedings which would eventuate in the refiling of a federal petition like the one now before us. Since we would then be faced with respondent’s second argument —that the federal claim was waived by the failure to object to the admissibility of the statement at trial — the interests of justice will be served by deciding that issue now.

II.

The explanation for the unavailability of any state remedy is the failure by petitioner’s counsel to object to the admissibility of the evidence he now challenges. In these circumstances, respondent argues, the omission should be treated as a “deliberate by-pass” which bars a federal collateral attack as well as state post-conviction relief.

If an alleged error was not even called to the attention of the state trial judge, it is normally inappropriate for a federal court to review the issue unless, of course, extraordinary circumstances, such as a subsequent change in the law, are asserted. Usually, there-' fore, a waiver of a valid constitutional claim in the trial court should foreclose that claim as a basis for post-conviction collateral relief.

The Illinois procedures as a whole are tantamount to a rule providing that if an objection, even on constitutional grounds, to the admissibility of evidence is not made at or before trial, the objection should be deemed to have been waived unless “fundamental fairness” requires a different result.

If the failure to object was a deliberate tactical decision made by the petitioner himself with a full understanding of his legal rights, it would clearly waive his federal, as well as his state, right to object to the use of that evidence. If, however, the failure was a tactical decision by his lawyer, made without his express approval, or was an oversight by trial counsel, petitioner contends that the waiver should be ineffective for federal purposes though it does end state review of the issue.

Petitioner relies on language from the opinion in Fay v. Noia which has been frequently quoted. That case involved a collateral attack by one of three defendants convicted of murder on the basis of coerced confessions which had been received in evidence over their timely objections at the trial. Direct appeals and subsequent legal proceedings by the two co-defendants resulted in their release. Fay had not appealed, apparently fearing that a new trial might ultimately result in the imposition of the death penalty. Under New York practice, his failure to appeal waived error in the admission of his coerced confession. On review of the district court’s denial of federal habeas corpus relief, the Supreme Court held the waiver ineffective. See 372 U.S. at 446, 83 S.Ct. 822.

The Court’s opinion emphasizes the importance of the defendant’s participation in the waiver decision. It is worthy of note, however, that the Court did not say that a decision made by counsel, in which the defendant did not participate, can never bar relief. On the contrary, the Court stated only that such a decision “does not automatically bar relief.” 372 U.S. at 439, 83 S.Ct. at 849. We infer that in some situations the acts of counsel, although not explicitly approved by the defendant, may fairly effect a waiver.

If counsel is to have the responsibility for conducting a contested criminal trial, quite obviously he must have the authority to make important tactical decisions promptly as a trial progresses. The very reasons why counsel’s participation is of such critical importance in assuring a fair trial for the defendant, see Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158, make it inappropriate to require that his tactical decisions always be personally approved, or even thoroughly understood, by his client. Unquestionably, assuming the lawyer’s competence, the client must accept the consequences of his trial strategy. A rule which would require the client’s participation in every decision to object, or not to object, to proferrefd evidence would make a shambles of orderly procedure.

We have no doubt that a deliberate tactical decision by competent counsel not to object to the admission of evidence may waive his client’s right to claim that the use of the evidence was constitutional error. In this case, however, petitioner claims that the failure to object was the result of an “oversight” by his lawyer. He implicitly argues that the effectiveness of a waiver turns on a subjective appraisal of the advocate’s actual motivation. To make that appraisal he contends that an evidentiary hearing is required even though a perusal of the trial transcript strongly indicates that counsel made a deliberate tactical decision to permit officer Welsh to testify about the in-custody statement. We believe the Court’s recent decision in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), dictates rejection of that argument.

In Davis the Court held that a collateral attack on a federal conviction based on a claim of unconstitutional discrimination in the composition of the grand jury was foreclosed by the failure to make the objection in advance of trial. The waiver rule which the Court enforced, Rule 12(b)(2) of the Federal Rules of Criminal Procedure, provides that the failure to raise any defense to the institution of the prosecution by motion before trial “constitutes a waiver thereof, but the Court for cause shown may grant relief from the waiver.” This rule is not unlike the Illinois waiver rule which forecloses collateral relief unless “fundamental fairness” makes relief from the waiver appropriate. Since the federal rule barred the constitutional claim even though the failure to make a timely objection may well have been the product of counsel’s oversight, rather than deliberate, the Court squarely rejected the argument that cases applying the rule of Fay v. Noia make any waiver of constitutional rights ineffective unless deliberately made and expressly approved by the defendant. Even the dissenting opinion in Davis would accept certain oversights — or at least failure to act with diligence — as a “deliberate relinquishment” of a constitutional claim.

The question of whether there has been an effective (or “deliberate”) waiver turns, we believe, not on subjective motivation, but on an evaluation of the act or omission giving rise to the waiver, as well as the significance of its consequences. So analyzed, we are persuaded that the failure to object at trial to the admissibility of testimony describing petitioner’s in-custody statement gave rise to the kind of waiver that should be placed in the same category as a “deliberate by-pass” of state remedies barring subsequent collateral attack in the federal courts.

The facts which we find persuasive are these: First, the omission giving rise to the waiver occurred in the trial court as well as on appeal. Second, there was a reasonable tactical basis for counsel’s failure to object to the statement. Third, the claim in this case is entitled to no greater respect than the constitutional claim which the Court rejected in Davis. The rule of the Escobe-do case is not applied retroactively, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 ; it is enforced for prophylactic reasons and does not call into question the accuracy of the fact-finding process. Nor does this case involve conduct offensive to civilized standards of decency.

We therefore conclude that even if petitioner is correct in his interpretation of the Illinois waiver rule, the order dismissing the habeas corpus petition must be affirmed.

Affirmed.

      . The inconsistency is somewhat bizarre. Officer Casey had testified that he arrived at the decedent’s apartment in response to a call, looked through the bedroom window while standing on a ladder after attempting in vain to obtain entry into the apartment, and observed the defendant engaged in an act of sexual intercourse with the victim. Petitioner’s in-custody statement to officer Welsh was consistent with this testimony. However, at trial petitioner testified that he was merely shaking the decedent for the purpose of awakening her when the officer saw him through the window. Tr. 164, 186-187, 194, 199.

      . For example, on direct examination officer Welsh testified that the petitioner had stated that he had been having trouble with a peeping Tom in the neighborhood. Tr. 119. On cross-examination officer Welsh quoted petitioner as denying that he had had a fight with the decedent or had struck her; the officer further quoted him as saying: “He wouldn’t hurt her, she is a lovely person; that he would never hurt her” (Tr. 126), and that he had lived with her for approximately seven or eight years. The examination about the in-custody statement further tended to establish a contradiction between officer Welsh’s trial testimony and testimony he gave at the coroner’s inquest with respect to the extent of petitioner’s intoxication.

      . In the district court petitioner relied on the following excerpt from Escobedo :

      “We hold, therefore, that where, as here, pect has been taken into police custody, the the investigation is no longer a general inquiry into an-unsolved crime but has begun to focus on a particular suspect, the sus-police carry out a process of interrogations that lends itself to elicting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the State by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335] at 342, 83 S.Ct. [792] at 795, 9 L.Ed.2d 799 at 804, 93 A.L.R.2d 733, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” 378 U.S. at 490-491, 84 S.Ct. 1765.
      It is arguable that petitioner’s allegations were insufficient because the statement was not incriminating, but for purposes of decision we assume that a timely objection would have been sustained. In explanation of the failure to raise the point previously, petitioner alleged that “the man representing me gave very poor concern for my rights.” R.2, page 7.

      . 28 U.S.O. § 2254(b) provides “An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the ex- . istence of circumstances rendering such process ineffective to protect the rights of the prisoner.” (Emphasis added.)

      . Ill.Rev.Stat. Ch. 110, § 72. This remedy is limited to relief based on critical facts not of record and not known to the trial judge which, had they been known, would have prevented conviction. Burns v. People, 9 111. 2d 477, 138 N.E.2d 525 (1956). Moreover, the two-year statute of limitations, see § 72(3), would bar a 1973 claim based on a 1965 conviction.

      . The Illinois habeas corpus remedy is available if the trial court had no jurisdiction or if an event subsequent to the conviction entitles the defendant to his discharge. See 111. Rev. Stat. Ch. 65, § 22; People ex rel. Haven v. Macieiski, 38 Ill.2d 396, 398, 231 N.E. 2d 433 (1968) ; People ex rel. Skinner v. Randolph, 35 Ill.2d 589, 590, 221 N.E.2d 279 (1966).

      . “Among the small number of reported cases where ‘fundamental fairness’ necessitated the relaxation of the waiver rule are: People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456 (1965) where the issues raised in the post-conviction petition were the same issues which the petitioner had repeatedly requested his attorney to raise on direct appeal; his attorney had refused such requests; and petitioner had been denied leave to present these issues pro se on appeal; People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 663 (1969), where the petitioner alleged in his post-conviction petition that the state had knowingly suppressed evidence at trial favorable to his case; People v. Ikerd, 47 Ill.2d 211, 265 N.E.2d 120 (1970), where the allegation in the post-conviction petition was based upon a right recognized for the first time after the defendant’s direct appeal; and People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461 (1969), where the petitioner alleged that he was deprived effective assistance of counsel at trial. However, it is most significant to note that the Illinois Supreme Court went on in Somerville to invoke the waiver rule barring review of the petitioner’s additional claim that her constitutional right to be free from unreasonable search and seizure was also violated. The Illinois Supreme Court held that, ‘since no motion to suppress was made, nor was the issue raised in any way at the trial or in any way of the appeals, we must agree with the State that such claim is untimely made in this post-conviction proceeding.’ 245 N.E.2d at p. 468.” Petitioner’s brief, pp. 9-10.

      . “ . . . the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.
      “But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461], . . . ‘an intentional relinquishment or abandonment of a known right or privilege’ — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits — though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default. . . . the standard here put forth depends on the considered choice of the petitioner. ... A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court’s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. . . . Each case must stand on its own facts.” 372 U.S. at 438-440, 83 S.Ct. at 849.

      . That emphasis is, of course, entirely appropriate with respect to major decisions, such as the entry of a guilty plea, the waiver of the privilege against self-incrimination, or the decision not to appeal, which are appropriately made only with a full understanding of the consequences of the available alternatives. In such cases, counsel’s advice is of the utmost importance, but ultimately the client’s decision is controlling. The waiver in Pay v. Noia was of that character.

      . In his dissenting opinion Mr. Justice Marshall stated: “I have little difficulty in saying that, where one must present evidence in order to support a constitutional claim, the failure to exercise due diligence in searching for that evidence is a deliberate relinquishment of that claim.” 411 U.S. at 256, 93 S.Ct. at 1590.

      . In this respect this ease is therefore like Davis and unlike Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, and Fay v. Noia, supra, which the dissenters in Dams considered controlling. Accordingly, if a federal court were now to entertain petitioner’s collateral attack, it would be reviewing an issue which has never been presented to any Illinois judge. It is noteworthy that in Kaufman the first point made in explanation of the inapplicability of the “deliberate by-pass” claim was that “counsel had objected at trial. . . . ” 394 U.S. at 220 n. 3, 89 S.Ct. 1068.

      . Cf. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (opinion of Mr. Justice Harlan).

      . Compare Mr. Justice Black’s comment in dissent in Kaufman v. United States:
      “It is this element of probable or possible innocence that I think should be given weight in determining whether a judgment after conviction and appeal and affirmance should be open to collateral attack, for the great historic role of the writ of habeas corpus has been to insure the reliability of the guilt-determining process.
      * i\¡ * *
      “I would not let any criminal conviction become invulnerable to collateral attack where there is left remaining the probability or possibility that constitutional commands related to the integrity of the fact-finding process have been violated. In such situations society has failed to perform its obligation to prove beyond a reasonable doubt that the defendant committed the crime.” 394 U.S. at 234, 241, 89 S.Ct. at 1078, 1081.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The UNITED STATES of America, Appellee, v. Sherman ANDERSON, Appellant.
    No. 73-1076.
    United. States Court of Appeals, Tenth Circuit.
    Argued and Submitted June 26', 1973.
    Decided Sept. 21, 1973.

      Daniel J. Sears, Asst. U. S. Atty. (James L. Treece, U. S. Atty., Daniel J. Sears, Asst. U. S. Atty., Denver, Colo., on the brief), for appellee.
    Sandra Rothenberg, Denver, Colo., for appellant.
    Before JONES, SETH and DOYLE, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   PER CURIAM:

The appellant, Sherman Anderson, was convicted of making a sale of heroin in violation of 21 U.S.C.A. § 841(a)(1).

Prior to trial Anderson filed a motion to require that he be furnished with a transcript of the grand jury proceedings. The minutes had not been recorded. When this motion was overruled, Anderson moved to dismiss the indictment for failure to furnish a transcript of the grand jury minutes. This motion was also overruled. Error is assigned. The rulings of the district court were correct. United States v. Cooper, 10th Cir. 1972, 464 F.2d 648; cert. den. Salazar v. United States, 409 U.S. 1107, 93 S.Ct. 901, 902, 919, 921, 34 L.Ed.2d 688; reh. den. 410 U.S. 959, 93 S.Ct. 1414, 1415, 1416, 1424, 35 L.Ed.2d 695, 696; United States v. Hedges, 10th Cir. 1972, 458 F.2d 188.

The officer who negotiated the purchase of the heroin was introduced to the appellant by a Government informer, known to the officer as Tommie. The informer was not produced by the Government as a witness. Anderson requested and the court refused to give the following instruction:

“If a witness whose testimony would have been material on an issue in this case was peculiarly available to the government and was not introduced by the government and the absence of that witness has not been sufficiently accounted for or explained, then you may, if you deem it appropriate, infer that the testimony by that witness would have been unfavorable to the government and favorable to the accused.”

During his testimony the officer stated that he had not seen Tommie for some time, did not know his address and had given Anderson’s counsel the last address he had of Tommie. Under these circumstances a missing witness instruction is not required. United States v. Pugh, 1970, 141 U.S.App.D.C. 68, 436 F.2d 222; United States v. Peterson, 7th Cir. 1970, 424 F.2d 1357, cert. den. 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 266; United States v. Makekau, 9th Cir. 1970, 429 F.2d 1403, cert. den. 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141.

In his testimony the officer who negotiated the purchase identified Anderson as the person who made the sale. Objection was made to the testimony on the asserted ground that it was based upon the examination of a single photograph. The evidence showed that the officer had seen Anderson five or six times and that the examination of the photograph was not to identify Anderson but to determine his name. The objection was properly overruled. United States v. Croft, 10th Cir. 1970, 429 F.2d 884; Davida v. United States, 10th Cir. 1970, 422 F.2d 528, cert. den. 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49.

The record is free from error. The judgment of the district court is

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. An ARTICLE OF DRUG consisting; of 1 drum of 104,000 tablets, more or less, LABELED in part: (drum) “Name WHITE QUADRISECT Manufactured For Scrip, Inc., 101 South St., Peoria, Ill. Quantity 104M Ticket No. SI-31 Hyoscyamine Hbr. 0.4507 Mg. Atropine Sulfate 0.0372 Mg. Scopolamine Hbr. 0.0119 Mg. Usual Adult Dose: *** M/O-7-747 Caution: *** George N. Bell Manufacturing Chemists 7044 East 30th Street, Indianapolis, Ind. 46219”, Defendant-Appellant.
    No. 72-1349.
    United States Court of Appeals, Seventh Circuit.
    Argued April 10, 1973.
    Decided Aug. 2, 1973.
    George M. Burditt, Chicago, 111., Kent A. Noble, Peoria, 111., for defendant-appellant.
    Charles R. McConachie, Atty., Anti Trust Div., U. S. Dept, of Justice, Washington, D. C., Stephen H. McNamara, Health, Education & Welfare, Rockville, Md., for plaintiff-appellee.
    Before PELL and STEVENS, Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   PER CURIAM.

Defendant appeals from an order condemning his property, a shipment of a prescription drug, under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. The lower court condemned the shipment because the defendant’s production procedure violated the “current good manufacturing practice” (GMP) provision of the Act, 21 U. S.C. § 351(a)(2)(B). Appellant contends that that provision is unconstitutional under the Due Process Clause of the Fifth Amendment because of its alleged vagueness.

The GMP provision stems from congressional concern over the danger that dangerously impure drugs might escape detection under a system predicated only on seizure of drugs shown to be in fact adulterated. In order to insure public safety, 3 Congress determined in 1962 that it was necessary to regulate the means of production themselves:

“A drug . . . shall be deemed adulterated ... if ... the methods used in, or the facilities or controls for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that such drug meets the requirements of this chapter as to safety and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess. . . . ” 21 U. S.C. § 351(a).

By way of implementation, the FDA has promulgated detailed regulations to spell out the precise requirements of the section. 21 C.F.R. § 133 et seq.

The district court found violations of GMP standards by defendant which include the failure to keep basic production records, inadequate testing of active ingredients before use, and insufficient tests of the finished product prior to shipment. These findings are not contested on appeal and we therefore consider them established.

In Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447, the Court stated: “It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Id. at 402-403, 86 S.Ct. at 520.

Appellant contends that § 351(a)(2)(B) fails to meet this standard. We conclude that the term “current good manufacturing practice” adequately defines a standard which the Administrator was authorized to particularize in interpretative regulations. Defendant does not deny that the regulations, which he has plainly violated, were adequate to notify him that his', conduct was prohibited.

Defendant’s argument is based on attacks on the statutory terms “current” and “good.” The term “current” was considered by the Supreme Court in Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. In Connally, the court struck down an Oklahoma statute which prohibited the payment of “less than the current rate of per diem wages in the locality where the work is performed.” The crucial failing of the statute related to the nonexistence of any determinable current wage rate and the ambiguity of the term “locality.” See 269 U.S. at 393-395, 46 S.Ct. at 128. Whatever strength the Connally decision has today, it does not compel the same result in a far different context. We have no trouble with the use of the word in § 351(a)(2)(B). The term “current” fixes the point in time when the acceptability of the relevant production practices must be determined. Thus, the statute does not permit prosecution for failure to follow safety practices which were not recognized prior to the production of the subject drugs.

The term “good” likewise acquires adequate meaning when read in context even though, as defendant observes, a good dictionary lists a good many definitions of the word. Alternative definitions do not create impermissible ambiguity if the relevant definition is capable of interpretation by reference to objective criteria. We believe that § 351(a)(2)(B) affords sufficient guidance to avoid the problem encountered in Ricks v. District of Columbia, 134 U.S. App.D.C. 201, 414 F.2d 1097 (1965), and United States v. Margeson, 259 F.Supp. 256 (E.D.Pa.1966), where the challenged vagrancy statutes required one to give a “good account” of oneself. The word “good,” as used in the GMP provision, is not unduly subjective.

The Constitution requires only a reasonable degree of certainty in statutory language:

“ . . . [F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367.

Appellant also ignores the detailed regulations promulgated by the FDA which considerably illuminate the statutory language. See 21 CFR § 133 et seq.

In view of the customary presumption of constitutionality and the established high regard for the purposes of the Act, we readily sustain the GMP provision. The language utilized by Congress in this statute is neither less certain nor more difficult to interpret than language elsewhere in the same Act which has been upheld. See United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297 (“adequate directions for use, such adequate warnings against use . . . dangerous to health, or against unsafe dosage . as are necessary for the protection of users”); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (“reasonable variations shall be permitted”); United States v. 2600 State Drugs, Inc., 235 F.2d 913 (7th Cir. 1956) (“not safe for use”). The same can be said of language contained in other statutes. See Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182 (“unreasonably interfere”) ; Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304,1 L.Ed.2d 1498 (obscenity); Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (“restraint of trade”); Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 196, 57 S. Ct. 139, 81 L.Ed. 109 (“fair and open competition”); Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 18, 52 S. Ct. 103, 76 L.Ed. 136 (“unreasonable waste of natural gas”).

Moreover, an argument identical to defendant’s was made and rejected in United States v. Bel-Mar Laboratories, Inc., 284 F.Supp. 875 (E.D.N.Y.1968). Judge Mishler’s treatment of the constitutional question in that case is thorough and persuasive; we adopt his views. See also United States v. Kendall Co., 234 F.Supp. 628 (D.Mass.1971). The GMP provision is as precise as necessary under the circumstances; it is not unconstitutionally vague. We hold that defendant violated reasonably stable, definite, and ascertainable standards of current good manufacturing practice designed to insure the production of unadulterated drugs. The judgment of condemnation is

Affirmed.

      . White Quadrisect Tablets. The drug is used in the treatment of spasms in the gastro-intestinal/biliary tract.

      . “The manufacturing of drugs is a business that requires highly qualified and trained personnel, and special laboratory and other facilities and most careful internal manufacturing, packaging, and labeling controls. These requirements are necessary to the assurance that the drugs will be safe for the user and will have, and so far as possible retain, the identity, strength, quality, purity, and effectiveness that they purport to have.” H.R.Rep.No.2464, 87th Cong., 2d Sess. 2 (1962). See also 1962 U.S.Cong. & Admin.News, p. 2884.

      . See also Connally. v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894; Musser v. Utah, 333 U.S. 95, 97, 68 S.Ct. 397, 92 L.Ed. 562; Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888.

      . Appellant also argues that even if the section has a definite meaning, it creates a standard subject to such rapid change that a drug manufacturer is unable to ascertain at any point in time what is expected of him. This argument overlooks the interpretative regulations. In our opinion it is appropriate for the statute to authorize changes in regulations to reflect the Administrator’s evaluation of “current” practice. We think the GMP standard is sufficiently fixed.

      . “[T]he Secretary’s interpretative regulations as to good manufacturing practice for purposes of judging the adequacy of the methods, facilities, and controls would be prima facie evidence of what constitutes current good manufacturing practice in any proceeding involving [§ 351(a)(2)] of the Food, Drug, and Cosmetic Act as amended by the bill.” 1962 U.S.Cong. & Admin.News, p. 2890.

      . United States v. National Dairy Prod. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561; Federation of Labor v. McAdory, 325 U.S. 450, 465-466, 65 S. Gt. 1384, 89 L.Ed. 1725; United States v. L. Cohen Grocery Co., 255 U.S. 81, 92-93, 41 S.Ct. 298, 65 L.Ed. 516.

      . “The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.” United States v. Dotterweich, 320 U.S. 277, 280, 64 S.Ct. 134, 136, 88 L. Ed. 48. See also United States v. An Article of Drug, 394 U.S. 784, 798, 89 S. Ct. 1410, 22 L.Ed.2d 726; United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 91, 84 S.Ct. 559, 11 L.Ed.2d 536; United States v. Urbuteit, 335 U.S. 355, 357-358, 69 S.Ct. 112, 93 L.Ed. 61; Kordel v. United States, 335 U.S. 345, 349, 69 S.Ct. 106, 93 L.Ed. 52; United States v. Sullivan, 332 U.S. 689, 696, 68 S.Ct. 331, 92 L.Ed. 297.

      . Compare the Supreme Court’s recent comment in Weinberger v. Hynson, Westcott and Dunning, Inc.:
      “But Congress surely has great leeway. in setting standards for releasing on the public, drugs which may well be miracles or, on the other hand, merely easy money-making schemes through use of fraudulent articles labelled in mysterious scientific dress. The standard of ‘well-controlled investigations’ particularized by the Regulations is a protective measure designed to ferret out those drugs for which there is no affirmative, reliable evidence of effectiveness. The drug manufacturers have full and precise notice of the evidence they must present to sustain their NDAs, and under these circumstances we find the PDA hearing regulations unexceptionable on any statutory or constitutional ground.” 412 U.S. 609, 122, 93 S.Ct. 2469, 2479, 37 L.Ed.2d 07 (1973).


author: BARNES, Circuit Judge:

text:
    A. CHERNEY DISPOSAL CO. and O. Z. Miller, Ltd., Plaintiffs-Appellants, v. CHICAGO & SUBURBAN REFUSE DISPOSAL ASSOCIATION et al., Defendants-Appellees.
    No. 72-1303.
    United States Court of Appeals, Seventh Circuit.
    Argued April U, 1973.
    Decided June 28, 1973.
    Rehearing Denied Aug. 9, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 870.

      Jerrold E. Salzman, Chicago, Ill., for plaintiffs-appellants.
    Glenn W. McGee, Peer Pedersen, W. Donald McSweeney, Chicago, Ill., for def endants-appellees.
    Before SWYGERT, Chief Judge, and KILEY and BARNES, Circuit Judges.

       The Honorable Stanley N. Barnes of the Ninth Circuit, sitting by designation.

   BARNES, Circuit Judge:

This is an appeal in a private antitrust action from a judgment of dismissal granted and entered after defendant’s motion for summary judgment was treated as a motion to dismiss for lack of jurisdiction. We reverse and remand for further proceedings.

I. THE NATURE OF THE PROCEEDINGS IN THE DISTRICT COURT.

We here adopt from the “Judgment Order and Memorandum Opinion” of the District Court, its statement of the cause, proceedings and pleadings leading up to the dismissal.

As can be seen, the District Court took a position in the last paragraph of

its order contrary to that taken by defendants during pre-trial motions. Its authority for treating this as a motion to dismiss — not the motion for summary judgment relied on by the defendants— was to consider this “a speaking motion” — (matters apart and beyond the pleadings — here affidavits and depositions) and cite: 2A Moore’s Federal Practice, § 12.09, Pintozzi v. Scott, 436 F.2d 375 at 378, n. 3 (7th Cir. 1970).

It is true that note 3 in Pintozzi specifically held: “It is appropriate for the trial court to consider, in a motion to dismiss under rule 12(b)(1), matters outside the pleading— . . . [i.e.,] the pleadings and orders (made) in the state court, which were attached [to the] . . . motion to dismiss.” But this note actually relates to that limited portion of the Pintozzi opinion which holds that 28 U.S.C. § 1341 bars the exercise of Federal equity power which interferes with collection of state taxes under adequate state laws.

The reference to Moore’s Federal Practice Vol. 2A, § 12.09 is not specific. In that section we find certain authorities that are contrary to the rule relied upon by the district judge. We give examples in the margin.

Appellee also relies on Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416 (5th Cir. 1972). There a procedure similar to that adopted by the District Judge in this case was approved (p. 418), but on completely different facts. (1) Rose-mound, the appellant, had every opportunity to present affidavits to prove interstate commerce, but after “only the barest conclusionary statements in the complaint”, the “weak” answers to interrogatories “clearly show that none of defendant’s products were shipped out of state or entered the flow of commerce.” (2) The jurisdictional requirements of the Clayton Act and the Robinson-Pat-man Act were involved, not the Sherman Act Sec. 1 requirements (as here).

“This failure of any party to have any interstate business disposes of the Clayton Act and Robinson-Patman claims (citing cases). While these interstate activities could be found to violate the Sherman Act if they had a direct and substantial effect on interstate commerce (citing Fifth and Ninth Circuit cases), the evidence introduced below established no such connection,” (id. at 418-419); and no “nexus with interstate commerce,” (id. n. 1).

II. DID DISPUTED QUESTIONS OF FACT EXIST BEFORE THE DISTRICT COURT?

Plaintiffs’ complaint alleges, as the district judge correctly pointed out, three grounds for jurisdiction:

1. Defendants’ interference with interstate commerce in scavenger packer equipment for plaintiffs’ trucks.

2. Threatening boycotts of retail grocery chains operating in interstate commerce to prevent employment of plaintiffs.

3. Defendants’ scavenger business includes substantial transportation and sales across state lines.

If any one of these grounds is substantially disputed, the plaintiffs are entitled to have a trier of fact determine the issues.

In summary, the district court’s order held (1) the first allegation was “merely incidental to plaintiffs’ local business”; (2) that the second “did not affect interstate commerce in the business,” and “had no effect, except the most metaphysical, upon the interstate business of the third party grocery chains”; and (3) that the admitted transportation across state lines was “de minimis” in' its effect upon interstate commerce.

II (1) In support of the court’s ruling as to the plaintiffs’ first ground (garbage compacting truck equipment), the District Court relied upon Sun Valley Disposal Co. v. Silver State Disposal Co., 420 F.2d 341, 343 (9th Cir. 1969); Lieberthal v. North Country Lanes, Inc., 332 F.2d 269 (2d Cir. 1964); Marks Food Corp. v. Barbara Ann Baking Co., 162 F.Supp. 300 (S.D.Cal.1958), rev’d on other grounds, 274 F.2d 934 (9th Cir. 1960); and Page v. Work, 290 F.2d 323 (9th Cir. 1961), cert, denied, 368 U.S. 875, 82 S.Ct. 121, 7 L.Ed.2d 76 (1961).

There is no question but that the installation of equipment in one bowling alley in Plattsburg, New York as in Lie-berthal, supra, might well be held to have no possible substantial effect on interstate commerce. As Judge Hays says at 271 of 332 F.2d:

“The controlling consideration . . . is a very practical one — the degree of interstate activity in the particular business under review,” citing United States v. International Boxing Club, 348 U.S. 236, 243, 75 S.Ct. 259, 99 L.Ed. 290.

The same could be said of any “purely local restraint applied at a local level to a product which never enters into the flow of interstate commerce.” Page v: Work, 290 F.2d 323, 331 — (9th Cir. 1961, where legal advertising was involved) .

In Lieberthal, supra, the judge relied on uncontested allegations of facts as alleged in the complaint, and assumed they were true. In Page v. Work, supra, the motion for summary judgment occurred after a trial, on the stipulated limited issue of jurisdiction only.

In Sun Valley Disposal Co., supra, recovery was denied on two grounds, first, because it was held no federal cause of action exists where the defendant’s alleged illegal acts were sanctioned by the Nevada State Legislature and the Clark County Commission; and second, because the acts did not involve interstate commerce for the defendants “conducted a'wholly local garbage disposal and container leasing business,” although supplying this business from out of state. “This fact alone, does not turn what was really a local activity into an interstate one.” Thus this case, standing alone on its facts, constitutes valid authority for the general rule that authorizes the District Court’s action denying the first ground urged by appellant for antitrust jurisdiction.

Appellants, however, urge that Sun Valley is not controlling because the case of United States v. Bensinger Company, 430 F.2d 584 (8th Cir. 1970) delineates an exception to the general rule, i. e., that while the mere existence of an appreciable but minute interstate flow of supplies (as in Sun Valley, Lieberthal, Page and Marks Food) may not be sufficient to establish jurisdiction, when there is added some appreciable interstate flow to the charge that a conspiracy existed between defendants and manufacturers located outside of the state, to block that flow, then a direct restraint on interstate commerce exists, and is actionable under the Sherman Act, Sec. 1. (App. at 205-6; 266, 272). Klor’s v. Broadway-Hale Stores, 359 U. S. 207, 210, and 211, 79 S.Ct. 705, 3 L.Ed.2d 741; Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619.

If the instructions given by the District Court to the jury in Bensinger (quoted on the appeal), correctly states the law, there is merit to appellants’ position here opposing appellees’ assertion that the plaintiffs’ first ground of alleged jurisdiction is invalid. If a group boycott is alleged, Klors, supra, and Standard Oil Co., supra, require reversal.

One of the most recent cases reversing a District Court’s determination there was a lack of jurisdiction because of the local nature of the business involved, in which the trial court similiarly relied on two of the Ninth Circuit cases herein cited by appellees, states as follows:

“ . . . an important distinction should be stressed — the distinction between the jurisdictional question, with which we are concerned, and the question of whether, in other respects, a substantive violation of the Sherman Act is alleged.
“The two problems are frequently confused, and understandably so. See P. Areeda, Antitrust Analysis 59-60 (Little, Brown & Co. 1967). Section 1 of the Act prohibits contracts, combinations, and conspiracies ‘in restraint of trade or commerce among the several States.’ This single cryptic phrase defines both the conduct prohibited by the Act and the statute’s jurisdictional reach. As the Court explained in Apex Hosiery Co. v. Leader, 310 U.S. 469, 494-495, 60 S.Ct. 982, 992, 84 L.Ed. 1311 (1940): ‘[T]he phrase “restraint of trade” which . . . had a well-understood meaning at common law, was made the means of defining the activities prohibited. The addition of the words, “or commerce among the several states” was not an additional kind of restraint to be prohibited by the Sherman Act but was the means used to relate the prohibited restraint of trade to interstate commerce for constitutional purposes. . . . ’ The same general distinction is drawn in Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 235, 68 S.Ct. 996, 92 L.Ed. 1328 (1948), and United States v. Women’s Sportswear Manufacturers’ Ass’n, 336 U.S. 460, 461-462, 69 S.Ct. 714, 93 L.Ed. 805 (1949).
“Whether a defendant’s conduct constitutes a substantive Sherman Act violation is entirely a matter of congressional definition: Is the defendant’s conduct the type of conduct Congress intended to prohibit? Is that conduct a ‘restraint of trade’ within the meaning of section 1, ' . . . The jurisdictional question, on the other hand, concerns Congress’ power to reach the defendant’s conduct: ‘[T]he restraint must “occur in or affect commerce between the states . for constitutional reasons.” ’ Klor’s Inc. v. Broadway-Hale Stores, 255 F.2d 214, 224 (9th Cir. (1958) (emphasis added), reversed on other grounds, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), quoting and discussing Apex Hosiery Co. v. Leader, supra.
“We are concerned in this ease only with the jurisdictional question. We assume, but expressly do not decide, that the conduct charged constituted a ‘restraint of trade’, . . . our sole inquiry is whether the probation of that conduct falls within ‘the utmost extent of [Congress] Constitutional power.’ United States v. South-Eastern Underwriters’ Ass’n, supra [322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440].
“On its face, this test is extremely broad. Congress’ power over interstate commerce is plenary, encompassing not only the regulation of interstate commerce itself, but all measures ‘necessary and proper’ to that end, en-cluding the regulation of commerce that is purely intrastate.”

* * * * * *

Just as in Rasmussen, where the Appellate Court assumed, but could not decide, that the conduct charged constituted a “restraint of trade,” we cannot here decide that issue. Nor can we decide, on the conflicting record before us, that the alleged conduct sought to be regulated had or did not have a “substantial”- — -(or “appreciable”) “economic effect” upon interstate commerce, or “has a real and substantial relation to the national interest.”

The more recent judicial interpretations of Congressional authority to enact laws regulating interstate; commerce go far beyond what were originally thought to be the limits of that authority. Not only can Congress enact laws which prohibit acts which “interfere with,” or “affect” interstate commerce, but can “regulate the local incidents (of interstate commerce) including local activities . . . which might have a substantial and harmful effect upon that commerce.” [Emphasis added.] While this is judge made law, it is no more difficult to follow than Congressional enactments which invoke proseriptions against conduct which “tends” to create a monopoly. “A demonstrable quantitative effect is not necessary.”

In essence, the test is whether “[t]he facts of the particular situation . . . determine . . . [that the] relationship to interstate commerce is too tenuous in a practical sense to warrant federal control.”

We hold that such a conclusion can better be determined after a thorough exploration of all evidence that either side can produce, rather than by a motion to dismiss, particularly when based on conflicting affidavits.

We suggest that neither this Court nor the District Court should “substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.” Rasmussen v. American Dairy, supra, Note 15.

II (2) As to appellants’ second ground for jurisdiction (threatened boycott of retail grocery chains) the District Court cited Page v. Work, supra and Sun Valley Disposal Co., supra, and stated the test “is not whether the acts complained of affected a business which happened to be engaged in interstate commerce, but whether the acts affected the interstate part of the business.”

To say that there was “no effect” upon the interstate business of the third party grocery chains, ignores the usual effect of a boycott, actual or threatened, and the charges made in paragraph 14(c) of the complaint (App. at 19). These allegations are but partially and guardedly denied in paragraph 13 of the answer of certain defendants. (App. at 50).

See also references of threatened boycotts in the affidavit of W. Flood; paragraph 24, as to National Tea Co.; paragraph 25, as to A. & P. Foods; paragraph 26, as to Continental Engineers (App. at 207).

It may very well be that such charges of a threatened boycott can never be proved, but they exist in the record herein and are not effectively denied.

II (3) The existence of existing substantial transportation and sales across state lines.

In this area, the plaintiff’s evidence is meager and weak. There is a sworn charge in W. (Mike) Flood’s affidavit: (a) that one defendant hauled about 160 truck loads of manure in five years from Washington Park, Homewood, Illinois to the Paulowski mushroom farm in St. Johns, Indiana, (App. at 208); (b) that two other defendants hauled refuse from Lever Bros, and others from Hammond, Indiana, into Illinois, and dumped it in a land-fill at 133rd Street and Dan Ryan Expressway. (App. at 209). Some, at least, of such interstate transportation from Indiana to Illinois is admitted in the affidavit of Laurence Beck (App. at 210, et seq.), filed on behalf of defendants.

In Bensinger, supra, the alleged conspirators’ one act — a threatened refusal the Sherman Act’s Section 1, interstate to deliver a single dishwasher — -satisfied commerce requirement.

III. Conclusion.

Unlike the rule governing us on the usual appeal, where we are required to look with favor on all evidence supporting the decision of the trier of fact, we must here carefully and favorably consider all evidence tendered in support of the plaintiffs’ asserted cause of action, to determine if under any possible theory they have plead facts sufficient to entitle them to avoid a motion for summary judgment, or a motion to dismiss for lack of jurisdiction.

We conclude that despite the wide latitude ordinarily allowed the trial courts in controlling their calendars we should reverse. While we sympathize with a trial judge’s earnest desire to keep his case-load moving in order to avoid interminable delay occasioned by failure of counsel for plaintiffs to proceed in a timely manner (and particularly in antitrust litigation), and because (as here occurred) the substitution of counsel for plaintiffs was at an awkward time — we nevertheless conclude under all facts and circumstances existing that as a matter of law the defendants’ motion for summary judgment should not have been interpreted as a motion to dismiss for lack of jurisdiction, and that the motion to dismiss for lack of jurisdiction should not, on the record before us, have been granted because it required a weighing of facts disclosed in pleadings and affidavits, by the District Court.

Reversed and remanded for further proceedings in accordance with this opinion.

      . The complaint charges violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Before the court is defendants’ motion for summary judgment on all claims under Rule 56 of the Federal Rules of Civil Procedure or in the alternative for summary judgment on plaintiffs’ claims with respect to the private scavenger business.

        Plaintiffs are two small Illinois corporations engaged in the private scavenger business in the metropolitan Chicago area. Defendants consist of a large trade association of private scavengers, private scavenger company members of the Association, refuse incineration companies, individual owners and officers of the member scavenger companies, and two scavenger equipment manufacturers.
      The complaint alleges violations of Sections 1 and 2 of the Sherman Act. It alleges that the defendants have combined and conspired to restrain and monopolize the private scavenger business within the geographic area including Chicago, its suburbs, parts of Indiana, and Wisconsin contiguous to the Chicago metropolitan area and St. Joseph, Missouri. It is alleged that defendants have created unreasonable restraints on competitive opportunity and commercial freedom in the private scavenger business in the Chicago area by acts including price fixing, concerted refusals to deal, reciprocal dealing, collusive bidding, market allocation, boycotts, attempts to drive non-member scavengers out of business, and attempts to monopolize the private scavenger business for member scavengers only, beginning prior to 1960 and continuing to the present date. These acts are allegedly primarily accomplished through the rules and practices of the trade association and secondarily by pressuring non-Illinois scavenger equipment manufacturers to refuse to deal with plaintiffs. In addition, however, plaintiffs allege that defendants cause labor unrest among plaintiffs’ employees, intimidate plaintiffs with physical harm and misrepresent facts to plaintiffs’ customers.
      The court is presented here with defendants’ motion for summary judgment on all claims or in the alternative for summary judgment on plaintiffs’ claims with respect to the private scavenger business. All defendants have joined in this motion. Defendants move for summary judgment on the grounds that this court lacks jurisdiction over the subject matter of the complaint. In the alternative defendants seek summary judgment with respect to all plaintiffs’ claims which relate to the alleged conspiracy to restrain trade in and monopolize the private scavenger business in the market area, thereby reserving for trial only plaintiffs’ claim that a non-Illinois equipment manufacturer, Leach Company, refused to deal or to deal on non-diseriminatory terms with plaintiffs. Both sides have submitted affidavits and briefs in support of their positions.
      The federal courts are courts of limited jurisdiction. The threshold question for a court’s determination is whether it has jurisdiction over the cause. While in the antitrust field the result may not be different by considering an attack on the court’s jurisdiction as a motion to dismiss for failure to state a claim, or as a motion for summary judgment, it is still in substance an attack on the court’s jurisdiction. A challenge to the court’s jurisdiction is most properly raised by a motion to dismiss.
      Defendants’ effort to transform what is essentially a motion to dismiss for lack of jurisdiction into a motion for summary judgment can be of no advantage to them. The only proper court order, if the motion is successful, is dismissal since the court would have no jurisdiction to make determinations on the merits of the claims presented. Perhaps the submission of affidavits, materials outside of the pleadings, led defendants’ counsel to the conclusion that the motion should be properly labeled as a motion for summary judgment.
      If this motion were properly a motion to dismiss for failure to state a claim pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure and matters outside the pleadings were presented to the court, then the motion must be treated as a motion for summary judgment as provided in Rule 56. This would be proper because the court would have previously determined that it had jurisdiction, and the thrust of the motion to dismiss, supported by matters outside the pleadings, would go to the merits of the issues presented in the complaint. However, it is premature to look to the merits when it is jurisdiction which is being challenged.
      Further, there is no bar to the consideration by the court of matters beyond the pleadings when they are presented with a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). 2A Moore’s Federal Practice § 1209; Pintozzi v. Scott, 436 F.2d 375 at 378 n. 3 (7th Cir. 1970). Therefore, the court takes defendants’ motion for summary judgment as a motion to dismiss for lack of jurisdiction. The court now turns to the issue of jurisdiction.

      . (a) Transcript of Hearing on June 2, 1971.

      THE COURT: “Has there been a motion to dismiss on the ground that there is no interstate ...”

        MR. McGEE: “We took that under consideration, Judge, but the allegations, I think, are sufficient to sustain or to withstand a motion to dismiss.”
      (App. pp. 108-109.)
      (b) Transcript of Hearing on October 12, 1971.

      THE COURT: “Is there a motion to dismiss based on those grounds?” (Minimal interstate commerce).
      MR. McGEE: “No, your Honor, because as we said, the complaint contained sufficient allegations to withstand a motion to dismiss, so it would require a separate hearing on the issue of interstate commerce, I believe.”
      (App. p. 129.)
      The defendants’ motion was one for a summary judgment, either total or partial, and not a motion to dismiss.
      (App. p. 134, et seq.)

      . “In any case, disputed issues of facts should not be resolved by affidavits on a speaking motion any more than on a motion for summary judgment: affidavits could be used to show that no genuine issue of fact existed, but not to determine such an issue, and dismissal was proper only if plaintiff had no case as a matter of law.” § 1209; p. 2296.
      Cited as authority — (in note 18 to said § 12.09) is an opinion by Judge Kalodner of the Third Circuit in Frederick Hart & Co. v. Recordgraph, 169 F.2d 580, (3rd Cir. 1948), which supports the text above quoted.
      “It is well-settled that on motions to dismiss and for summary judgment, affidavits filed in their support may be considered for the purpose of ascertaining whether an issue of fact is presented, but they cannot be used as a basis for deciding the fact issue. An affidavit cannot be treated, for purposes of the motion to dismiss, as proof contradictory to well-pleaded facts in the complaint.”
      Citing cases, including Carroll v. Morrison Hotel Corp., 149 F.2d 404 (7th Cir. 1945) and Farrall v. District of Columbia Athletic Union, 80 U.S.App.D.C. 396, 153 F.2d 647 (1946), (per Prettyman, J.)
      “ . . ■ . the weight of authority generally in the federal courts . (and the Eighth Circuit . . .) . and the better reasoning conspire in the denial to a defendant of the right to impeach, by affidavits in support of a motion to dismiss for failure to state a valid claim, the essential allegations of a complaint and thereby in effect, to force the plaintiff into a summary trial . . . upon matters of fact explicitly averred in the complaint.”
      United States v. Assn, of Am. R. R. (D.Neb.1945), 4 F.R.D. 510; (Dele-hant, D. J.).
      And in note 21, p. 2298, Professor Moore states, after expressing the general rule that lack of jurisdiction requires a reversal:
      “When the jurisdictional issue is inextricably intertwined with the merits of the case, the courts have generally held that the former should not be decided summarily, but should await trial on the merits.”
      See: McBeath v. Inter-American Citizens for Decency Comm., 374 F.2d 359 (5th Cir. 1967), where the Court of Appeals “reversed the dismissal of an action for want of jurisdiction where the jurisdiction depended upon effect upon commerce, an issue intertwined with the allegation of conspiracy.”
      Moore’s § 12.09, p. 2311 states :
      “ . . . [qjuestions of fact on disputed proof may not be resolved without a trial” ; citing Advisory Committee Note, and a Seventh Circuit case, Butcher v. United Elec. Coal Cos., 174 E.2d 1003 (1949), quoting from p. 1006.
      A recent Ninth Circuit case involving a summary judgment stated:
      “In considering the propriety of the summary judgment herein, we, of course, must view the evidence most favorable to the appellant.”
      This was stated as such well-known law as not to require the citation of authority. Zephyr Cove Lodge, Inc., a corporation, v. The First National Bank of Nevada, etc., 478 F.2d 1121, p. 1124 decided April' 27, 1973). The dissenting opinion cited cases for the same principle.
      “ . . . all reasonable intendments touching upon the existence of a genuine issue of material fact must be indulged against the moving party. United States v. Diebold, Inc., 369 U.S. 654 [82 S.Ct. 993, 8 L.Ed.2d 176] (1962) ; Griffeth v. Utah Power & Light Co., 226 F.2d 661 (9th Cir. 1955). This traditional and necessarily rigid requirement stems from recognition that summary judgment is an extremely drastic remedy. 3 Barron & Iloltzoff, Federal Practice and Procedure § 1231 (Wright ed.), quoted in Hoffman v. Babbitt Bros. Trading Co., 203 F.2d 636, 637 n. 1 (9th Cir. 1953). Accordingly, summary judgment should be rendered only ‘if the pleadings, depositions, answers to [the] interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Fed.R.Civ.P. 56 (c). See also Consolidated Electric Co. v. United States, 355 F.2d 437 (9th Cir. 1966).”

      . The trial consisted of evidence, affidavits, stipulated facts (30 pages), answers to requests for admissions and interrogatories, depositions, exhibits, excerpts from exhibits and oral testimony.

      . “In cases involving products moving across state lines, or in the flow of corn-merce, it is not material how much commerce is involved. The Sherman Act (See. 1) brands as unlawful any contract or combination or conspiracy.”
      United States v. Bensinger, supra, p. 588 of 430 F.2d.

      . An agreement not to sell products to a small business man is :
      “ . . . not to be tolerated merely because the victim is just one merchant whose business is so small that his destruction makes little difference to the economy.” Klors, supra, at 213 of 359 U.S., at 710 of 79 S.Ct.
      “There need be no showing of the amount of commerce involved and it is no defense that the amount was small. United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1955) ; Las Vegas Merchant Plumbers Ass’n. v. United States, supra [210 F.2d 732 (9th Cir.) ] ; United States v. Pennsylvania Refuse Removal Ass’n., supra [D.C., 242 F.Supp. 794].” United States v. Bensinger Company, 430 F.2d 584, 588 (8th Cir. 1970).
      In United States v. McKesson & Robbins, Inc., 351 U.S. 305, 309-310, 76 S.Ct. 937, 940, 100 L.Ed. 1209 (1965) it is stated:
      “It has been held too often to require elaboration now that price fixing is contrary to the policy of competition underlying the Sherman Act and that its illegality does not depend on a showing of its unreasonableness, since it is conclusively presumed to be unreasonable. It makes no difference whether the motives of the participants are good or evil; whether the price fixing is accomplished by express contract or by some more subtle means; whether the participants possess market control; whether the amount of interstate commerce affected is large or small; or whether the effect of the agreement is to raise or to decrease prices.” (Footnotes omitted — emphasis added.)
      In Las Vegas Plumbers Ass’n. v. United States, 210 F.2d 732, 748 (9th Cir. 1954), cert, denied, 348 U.S. 817, 75 S.Ct. 29, 99 L.Ed. 645 (1954), the court stated: “The test of the impact on commerce is qualita-five not quantitative . . . ‘§ 1 of the Act brands as illegal the character of the restraint not the amount of commerce affected.’ U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 225, ft. note 59, 60 S.Ct. 811, 845, [84 L.Ed. 1129], and cases cited therein.”
      In an old Sixth Circuit case (Steers v. United States, 192 F. 1, 5 (1911)), it was held:
      “We do not find in the Standard Oil and Tobacco cases any holding that a direct restraint of trade: must affect an unreasonably great amount of commerce in order to be within the prohibition. As we read these opinions, the matter under consideration, from the standpoint of reason, was not the amount of merchandise or traffic affected by the restriction, but the character and extent of the restriction itself; and it was thought that, if such restriction reasonably pertained to lawful results, it was not of itself necessarily forbidden. These opinions contain no justification for the idea that a direct and absolute restraint, bearing no reasonable relation to lawful means of accomplishing lawful ends, can be permitted only because the volume of traffic affected is not very great.
      * * :¡¡ * *
      “We cannot doubt that there may be a conspiracy under the act with reference to a single shipment only, and that, in so far as the rule of insignificance may exist, it does not apply to circumstances like these. This shipment was the entire crop of these three farmers for the year. It was, to them, of large relative value. . . . ”

      . Rasmussen v. American Dairy Ass’n., 472 F.2d 517, 521, fn. 9 (9th Cir. 1972) We note that this case was decided subsequent to the decision of the district court in this case, and, of course, comes from another circuit than the Seventh.

      . Wickard v. Filburn, 317 U.S. Ill, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942).

      . Heart of Atlanta Motel v. United States, 379 U.S. 241, 255, 85 S.Ct. 348, 356, 13 L.Ed.2d 258 (1964) quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824).

      . Heart of Atlanta Motel, supra, at 258 of 379 U.S., at 358 of 85 S.Ct.

      . Clayton Act § 7; 15 U.S.C. § 18.

      . Rasmussen, supra, at 524 of 472 F.2d.

      . Rasmussen, supra, at 524.

      . And see: United States v. Penn. Refuse Removal Ass’n., 357 F.2d 806 (3rd Cir. 1966), which was a government case involving Sec. 1 of the Sherman Act, and practices allegedly illegal per se, as here (although there existed more facts more favorable to the government than those presently available to the plaintiff herein.)

      . There is no absolute nor unqualified denial. For example, certain defendants deny any “unreasonable restraints on competitive opportunity and commercial freedom in the private scavenger business. (Emphasis added.)”


author: PELL, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WIRE PRODUCTS MANUFACTURING CORP., Respondent.
    No. 72-1975.
    United States Court of Appeals, Seventh Circuit.
    Argued May 21, 1973.
    Decided Aug. 21, 1973.

      Peter G. Nash, Gen. Counsel, Alan D. Cirker, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    Leonard F. Schmitt, Merrill, Wis., for respondent.
    Before CLARK, Associate Justice, KNOCH, Senior Circuit Judge, and PELL, Circuit Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, is sitting by designation.

   PELL, Circuit Judge.

The National Labor Relations Board has applied for enforcement of its order against Wire Products Manufacturing Corp., following a finding of the Company’s unfair labor practices in violation of §§ 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. The Company has petitioned this court to review and set aside the order. Wire Products Manufacturing Corp., 198 NLRB No. 90. The controversy evolved from a lockout by the Company of its employees on September 17, 1970.

The trial examiner found, and the Board affirmed the finding, that the Company had violated § 8(a)(1) by various statements of its officers and agents to the effect that the employees should repudiate the grand lodge representative, who was the union’s chief negotiator, that the Company would not bargain with the union until another union committee had been selected, albeit it did in fact thereafter continue to bargain, that the employees would get back to work if they repudiated the union in favor of a local union not affiliated with the AFL-CIO, and that the plant would be moved to another city if the workers did not return to work.

The trial examiner did not find that the Company had violated § 8(a)(3) or § 8(a)(5) of the Act by the initiation of the lockout. In making this finding the trial examiner determined that, although the lockout was offensive in that it was not in reasonable anticipation of an immediate strike, it was not illegally motivated. The trial examiner did, however, determine that the lockout became a violation of §§ 8(a)(1) and (3) since the Company had continued operating at a reduced level by employing and utilizing its supervisory employees and non-unit personnel as temporary replacements. In reaching this conclusion, the trial examiner relied on this court’s decision in Inland Trucking Co. v. N.L.R.B., 440 F.2d 562 (7th Cir. 1971), enforcing 179 NLRB 350, cert, denied, 404 U.S. 858, 92 S.Ct. 106, 30 L.Ed.2d 100. The Board in the interim had, however, retreated from the broad scope of Inland Trucking Co. by a 3 to 2 vote (Chairman Miller, concurring) in Ottawa Silica Company, 197 NLRB No. 53 (1972). The Board decided not to reach the basis proposed by the trial examiner, but instead relied upon its own determination that the lockout was illegally motivated and thereby constituted an unfair labor practice in violation of §§ 8(a)(1) and (3).

As we read the Company’s brief in this court, it does not seriously question the facts as found by the trial examiner with respect to the various § 8(a)(1) violations. Nor can we find any reason given by the Company for our denying enforcement to those portions of the order directed towards those violations. Irrespective of the status of the Company’s position on this issue, we hold that the record taken as a whole provides substantial evidence to support the findings of the Board concerning the violations of § 8(a)(1) by Company president Lindstrom and others as noted in paragraph 3, subparagraphs (a) through (e) of the trial examiner’s decision. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The Company contests, however, the findings and conclusions of the Board relating to the illegal and improper motivation of the lockout. In this respect, as sometimes it seems to happen where the Board does not agree with the trial examiner, the Board did not overrule the trial examiner’s resolutions with respect to credibility but then proceeded to reject the inference which the trial examiner had drawn from the facts he found —that the lockout had not been illegally motivated. Stressing the various nearly contemporaneous acts (noted above) which the trial examiner had determined were § 8(a)(1) violations, the Board concluded that the improper motivation was clearly demonstrated. Although it did not purport to upset the factual determination of the trial examiner, the Board did determine only as a matter of fact and not as a matter of law that the lockout was improperly motivated. The Board, thereupon, ordered the Company to “make whole” all of its locked-out employees for any loss of earnings suffered during the lockout period. For the reasons given below, we decline to enforce this portion of the Board’s order.

Our scope of review of Board findings of fact is delimited by 29 U.S. C. § 160(e) and Universal Camera Corp. v. N.L.R.B., supra, 29 U.S.C. § 160(e) provides in pertinent part: “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” The Court in Universal Camera added the caveat that the review of the record should not be one-sided, concentrating only on evidence which might support the Board’s findings. “The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” 340 U.S. at 488, 71 S.Ct. at 464.

Of particular significance to the case before us is the fact that Universal Camera involved the situation of the Board rejecting findings of the trial examiner. The Court held that the trial examiner’s report should be considered as a part of the record and that it should be given such “probative force as it intrinsically commands.” 340 U.S. at 495, 71 S.Ct. at 468. The Court summarized its view in the following passage:

“We do not require that the examiner’s findings be given more weight than in reason and in the light of judicial experience they deserve. The ‘substantial evidence’ standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.” 340 U.S. at 496, 71 S.Ct. at 469.

Although the Board in the present ease purports not to have rejected the finding of the trial examiner with respect to any credibility determinations, it is clear from our reading of the opinions of the trial examiner and of the Board that the Board has in fact rejected the ultimate finding of the trial examiner concerning the motivation of the lockout. Although the Board contends that motivation is only an inference derived from the facts found and not in and of itself a factual determination, the Board’s opinion reveals the contrary. Reviewing the record as a whole, including the trial examiner’s opinion with its findings as to credibility of witnesses, we conclude for the reasons hereinafter set out that the finding of the Board with respect to the Company’s motivation is not supported by substantial evidence.

The Supreme Court in American Ship Building Co. v. N.L.R.B., 380 U. S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), held that an employer's use of a lockout to support his bargaining position after impasse was reached did not violate § 8(a)(1) or (3). The Court did point out “[tjhere was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved.” 380 U.S. at 313, 85 S.Ct. at 964. In the companion case of N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965), the Court stated that “where . . . the tendency to discourage union membership is comparatively slight, and the employers’ conduct is reasonably adapted to achieve legitimate business ends or to deal with business exigencies, we enter into an area where the improper motivation of the employers must be established by independent evidence.” 380 U.S. at 287-288, 85 S.Ct. at 986. American Ship Building and Brown, when read together, reflect that lockouts are not per se violations of the National Labor Relations Act. “[T]he Board must find from evidence independent of the mere conduct involved that the conduct was primarily motivated by an antiunion animus.” (Emphasis added.) Brown, 380 U.S. at 288, 85 S.Ct. at 986. Nothing in N.L. R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), leads to a contrary conclusion because there the Court concluded that the employer’s conduct was “inherently destructive” of important employee rights, thus relieving the Board of proving antiunion motivation. Further, the Company there offered no evidence of legitimate motives. This decision does not affect the holdings in American Ship Building and Brown to the effect that a lockout by an employer without more does not reach that level of destructiveness.

Prior to Brown and American Ship Building, any real concept in Board decisions of a strike and a lockout having an area of equivalency appears to have been lost in a choppy sea of semanticism. Whatever may have been true when the Wagner Act became law can scarcely furnish present day guidelines. The strike is a potent economic weapon which may, and often is, wielded with disastrous effect on its employer target. Recognition was given to the lockout as a legitimate economic weapon on the part of the employer in American Ship Building: “we cannot see that the employer’s use of a lockout solely in support of a legitimate bargaining position is in any way inconsistent with the right to bargain collectively or with the right to strike.” 380 U.S. at 310, 85 S.Ct. at 963. “[T]he right to bargain collectively does not entail any ‘right’ to insist on one’s position free from economic disadvantage.” 380 U.S. at 309, 85 S.Ct. at 962.

The implicit recognition of some degree of equivalency between the respective weapons of economic leverage should not be thwarted via an artificially contrived but substantially unsupported factual basis. Feelings are intense and deeply held by both parties when a lack of employment occurs, whether as the result of a strike or a lockout. The employees are denied their pay checks. The employer is denied the normal processes of production. Statements and conduct which could be the basis for inferring animus, which the parties each entertain toward the other, are not difficult to detect. The standard here, however, is not the existence of an inchoate animus but rather whether that feeling did in fact motivate. In the legislative scheme, the courts serve some more worthwhile purpose than that of automatically rubberstamping approval of Board determinations. In the consideration of this particular issue, “[a]n unlawful purpose is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one.” N.L.R.B. v. McGahey, 233 F.2d 406, 413 (5th Cir. 1956).

With the above principles in mind, we turn to the record in this case. The un-contradicted testimony was that the decision concerning bargaining tactics had been entrusted to the Company’s attorneys. Mr. Schmitt, the Company’s principal attorney, testified to the conditions which he imposed on the Company before he would undertake to handle the labor negotiations:

“ . . . that I would be in complete charge of the bargaining tactics and procedures, and would only come back to them [management] when it came time to ratify the final contract or provisions of the final contract.”

The Company’s president, Lindstrom, testified that “we turned this all over to Mr. Schmitt and his associate, feeling they were competent to handle our negotiations. They had full power to do so and, therefore, we didn’t want to.” Furthermore, Lindstrom confirmed Schmitt’s testimony that during the entire negotiation process the Company always went along with Schmitt’s recommendations. With respect to the decision to lock out the employees, Schmitt testified that he was the one to recommend the lockout. Further, when he actually recommended that the lockout be implemented, the owners acquiesced. Lindstrom corroborated this view as did Hill and Dupke, the other two operating officers. Finally, the actual notice of the lockout was posted at Schmitt’s direction.

The Board is correct when it states that generally a company cannot insulate itself from the illegal motivations of its officers by nominally delegating the decision-making responsibility to attorneys who have no such motivation. But the cases cited by the Board as controlling in the present case do not reach the situation before us. In both N.L.R.B. v. E.D.S. Service Corp., 466 F.2d 157 (9th Cir. 1972), and Allegheny Pepsi-Cola Bottling Co. v. N. L.R.B., 312 F.2d 529 (3d Cir. 1962), the employee was dismissed on the recommendation of a supervisor whose motivation was arguably improper. The courts held in both cases that such a dismissal based solely on an improperly motivated recommendation was not saved by the pure motives of the officer who actually ordered the dismissal. **8 What both courts focused on, quite properly, was the motivation of the actuating force. In the present case, the evidence is uncontroverted that the attorneys were that force. There is no evidence in the record to support a finding that the attorneys who conducted the Company’s bargaining had any improper motivation in using the permissible procedure of a lockout.

The evidence that the Board cites in support of its finding relates to the obvious necessity of obtaining the approval of the owners before the lockout was initiated and the evidence relating to the § 8(a)(1) violations by Lindstrom and other agents of the Company. The evidence of “intimate involvement” of Lindstrom in bringing the lockout about is just not there. The record is clear that the Company did, in fact, leave all bargaining to its attorneys. Further, the General Counsel conceded that the Company did not bargain in bad faith before the lockout. Also, there is ample support for the trial examiner’s finding that a bona fide impasse had been reached on a principal issue between the parties, that of union security. There had been 10 bargaining sessions, several with a federal mediator.

We thus are left with the Board’s contention that the § 8(a)(1) violations are proof of the illegal motivation for the lockout. As noted above, the trial examiner refused to make such a finding. The pre-lockout evidence that the General Counsel presented concerning similar activities was disbelieved by the trial examiner on the basis of a credibility determination.

The most significant indication of motivating animus on the Company’s part is found in Lindstrom’s tavern tongue-loosened remarks to various employees shortly after the notice of the lockout was posted. While, as we have stated above, there is little doubt that such threats and accusations rise to the level of § 8(a)(1) violations, we are unable to say that, taken alone, they are sufficient to establish that antiunion animus was even a partial motivating force in the decision to call a lockout. The trial examiner’s finding on this point is entitled to a substantial weight since of necessity it was based essentially on the credibility of the various witnesses who testified as to the decision-making process. Apparently, the trial examiner, in rejecting the General Counsel’s reliance on the § 8(a)(1) violations, believed the Company’s attorneys and officers when they testified that it was the attorneys who had made the decision on a lockout and that the owners merely had assented.

The other incidents on which the Board relies for support for its finding involve conversations that were not contemporaneous with the posting of the notice. Rather, they occurred over the months during which the lockout was in force. Certainly as to those incidents the probative value is marginal insofar as going to show that the lockout was improperly motivated ab initio. Neither the Board nor the trial examiner addressed the question of whether the lockout, although proper at the time it was planned and announced, became an unfair labor practice in its continuation, i.e., insofar as subsequent motivation was concerned. It would be inappropriate for us to comment on this issue without any background findings. Suffice it to say that whatever probative value the other § 8(a)(1) violations have in this case relates to that question and not, at least on the facts of this case, to the order which the Board seeks enforced.

The Board also disagreed with the trial examiner and found that the various statements made in violation of § 8(a) (1) by the Company’s officers and agents constituted in combination with the lockout itself, which the Board had determined was illegally motivated, a violation of § 8(a)(5), refusal to bargain in good faith, even though the General Counsel conceded that the Company did not “otherwise violate the Act during the bargaining sessions that took place before, during, and after the lockout.” Since we have determined that the Board’s finding that the lockout was illegally motivated ab initio is not supported by substantial evidence on the record as a whole, we also disagree with the determination of the violation of § 8(a)(5). The Board further found that the Company’s failure to pay the November health insurance premium violated § 8(a)(1) as it was conceded that the premium was not paid due solely to the allegedly illegal lockout. Because of our holding on the matter of illegal motivation, the Board’s finding on this issue is not correct. Since the premiums involved were for November and apparently December, it is conceivable that the Company would have violated § 8(a)(1) in this respect if the lockout was being continued at that time on the basis of illegal motivation. This theory was not, however, presented to the trial examiner or the Board, and we decline to pass on it initially.

Finally, we must examine the Board’s determination that the discharge of Marilyn Kufahl was in violation of §§ 8(a) (1) and (3). The trial examiner made detailed findings relating to Kufahl’s union activity and to the unequal application of the Company’s rules in her discharge. The Board adopted the trial examiner’s opinion on this point. There is clearly substantial evidence to support these findings when we view the record as a whole. Therefore, those portions of the Board’s order dealing with Kufahl’s discharge must be enforced. Universal Camera Corp. v. N.L. R.B., supra, 340 U.S. at 490, 71 S.Ct. 456, 95 L.Ed. 456.

In accordance with the foregoing and by way of disposition of all issues raised in this proceeding, the following portions of the Board’s order shall be, and hereby are ordered, enforced, to-wit: sections 1(a) through (e); sections 2(d) and 2(h); and section 2(g) to the extent that the Notice is modified to comply with this opinion. The remainder of the Board’s order is not enforced and is set aside.

Enforcement granted in part and denied in part.

      . Section 8, 29 U.S.C. § 158, provides in pertinent part:
      “(a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      * * * * *

        (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organiaztion ....
      * :|: 3: * 3:
      (5) to refuse to bargain collectively with the representatives of his emjjloy-ees, subject to the provisions of section 159(a) of this title.”

      . The trial examiner gave somewhat cursory attention to evidence which appears to us to have persuasive, probative value to the effect that the lockout was a defensive action in anticipation of a strike. Thus, for example, he stated the assertion that the grand lodge representative had a record of resorting to strike action as a tactic to gain his contract demands was unsupported by any specific proof. However, there was specific testimony of strikes called by the union representative, which testimony was not denied or explained. The trial examiner then said even if the representative had pursued such tactics in the past, no case was made to show that there was cause to anticipate such a strike here. This “strikes” us as being rather an unrealistic appraisal of matters which govern human conduct. On the negative side, the trial examiner emphasized that there had been no threats of strikes in the negotiations even though those negotiations had been in progress for more than four months. In this type of psychological maneuvering, the failure to announce intentions is not uncommon. We have selected only two examples of that which would seem to cast doubt on the correctness of the trial examiner’s finding but do not pursue the matter further because we do not rest our decision on this aspect of the matter.

      . We do not, as the Board did not, reach the issue presented by the continuance of operations during the lockout. In declining to address ourselves to this matter, we are not purporting to overrule this court’s decision in Inland Trucking Co. What we have before us is a Board order which the Board asks us to enforce. That order is squarely predicated on the matter of motivation. We are considering the order, including its underpinnings, as entered and not what might have been entered. Because of the inconclusive reflection of existing Board policy on this issue contained in Ottawa Silica Company, we are unable to determine what result the Board would have reached if it had considered the issue. We will not speculate on the matter. The only aspect of some certainty is that if the Board had resolved the particular issue adversely to its Inland Trucking Company position, there would have been no order involving that issue presented to us for enforcement.

      . On the other hand, if this is not a finding of fact, then 29 U.S.C. § 160(e) does not apply so as to bind this court to uphold the Board’s determination if that determination is supported by substantial evidence.

      . The criminal law analogue is found in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), where the Court held that the fact that an arrest was made pursuant to a police radio bulletin did not add or detract from the underlying requirement for an arrest.

      . The trial examiner, as previously noted herein, did find that the lockout became an unfair labor practice because of the use of replacement employees.