author: MANSFIELD, Circuit Judge: FEINBERG, Circuit Judge

text:
    HENDERSON TRUMBULL SUPPLY CORPORATION, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, REGION 2, Respondent.
    Nos. 699, 878, Dockets 73-2441, 73-2643.
    United States Court of Appeals, Second Circuit.
    Argued May 6, 1974.
    Decided July 23, 1974.

      Dwight F. Fanton, Bridgeport, Conn. (Dion W. Moore, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., of counsel), for petitioner.
    John G. Elligers, Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William Gaus, Atty., N. L. R. B., Washington, D. C., of counsel), for respondent.
    Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Henderson Trumbull Supply Corp. (the “Company” herein) seeks review, and the National Labor Relations Board (the “Board” herein) seeks enforcement, of a Board order issued against the Company on August 6, 1973, directing it to bargain collectively in good faith with Local 191, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the “Union” herein) as the certified bargaining representative for the Company’s employees. Certification was granted on October 31, 1972, based on the Union’s narrow victory (by one vote) in an election held on June 14, 1972. Because the Board granted certification and subsequently issued its order without affording the Company an evidentiary hearing on certain objections it raised with respect to the pre-election conduct of the Union, we deny enforcement of the Board’s order and remand for an eviden-tiary hearing on those objections.

The Company is a small retail seller of building materials and home supplies in Trumbull, Connecticut. Upon the Union’s filing of a petition with the Board for certification as collective bargaining representative for the Company’s employees, an election was held at the Company on June 14, 1972, which the Union won by a vote of 7 to 6 in a unit of only 15 eligible voters, two of whom did not cast ballots. Shortly after the election the Company filed timely objections with the Board, alleging that following the Union’s distribution in early June of a letter to the employees stating that the Company “had been making a great deal of money through you and your fellow employees,” the Union’s Business Agent, two days before the election, had made material misrepresentations of fact to the employees, to which the Company had had no opportunity to respond before the election. Specifically the Company charged that at a meeting of its employees held at the Union’s offices on June 12, 1972, the Union’s Business Agent, Anthony Rossetti, stated that in the previous year the Company had “made a profit ... of $1,300,000.-00” and that the Company’s Vice-President, Fred Salvati, had “just built a new residence for himself costing $75,000 to $80,000.” Both statements, according to the Company, were “absolutely false, untrue and misleading.” During the year prior to the election the Company’s [t] otal gross sales let alone profit, were “[only] $970,000” (emphasis supplied) and its profit was a much smaller amount.

Pursuant to § 102.69 of the Board’s Rules and Regulations, 29 C.F.R. § 102.-69, the Board’s Acting Regional Director conducted an independent investigation of the Company’s objections. In a report dated August 1, 1972, he found that the Union had held a meeting at its offices in Bridgeport, Connecticut, on the evening of June 12, 1972, which was attended by eight of the Company’s employees. During this meeting, after Rossetti had explained the Board’s election procedures and urged the employees to vote for the Union, the subject of discussion turned to the Company’s ability to pay the employees more money. Rossetti denied that he initiated' the discussion concerning Vice-President Salvati’s new home or placed any value on it, and the Regional Director found no evidence to contradict him. The Regional Director stated:

“Seven of the eight attending employees were interviewed by a Board Agent. Five of these employees say flatly that Rossetti did not bring the house into discussion but rather that an employee did. Two do not recall who brought the matter up. All seven agree that Rossetti placed no value on the house.”

However, four of the employees interviewed did recall that Rossetti had discussed what the Company had “made” during the previous year:

“One stated in an affidavit that Rossetti had said the Employer had made 1.3 million dollars. A second employee claimed Rossetti said the Employer had made one million dollars, without identifying the figure as gross, net or profit. This same employee, in a second statement to the Board agent made two weeks later, revised his original figure and stated that he ‘believed’ that Rossetti had claimed the Employer made 1.2 or 1.3 million dollars. He would not sign either statement. A third employee recalled that Rossetti had said ‘something about the Employer making a million dollars last year and being able to afford to pay us more.’ (The employee would not sign a statement.)
“The fourth of the employees who recalled a specific figure states that during the meeting ‘someone,’ I believe it was Rossetti, ‘said the company grossed at least one million dollars last year’ and says also that this statement was made in a context of the Company’s ability to pay increases. (This employee signed a statement.)”

The Regional Director found that although the evidence was “somewhat contradictory,” it “would support the assertion that some specific figure was stated.” Beyond this, however, he apparently did not seek to ascertain the impact of Rossetti’s statement by inquiring whether any of the interviewed employees had been influenced by it to vote in favor of the Union. Instead he concluded in effect that Business Agent Rossetti’s statements, as interpreted by him, were per se immaterial and hence that the Union's alleged misrepresentation of Company profits was meritless:

“[T]he evidence does not tend to establish that Rossetti was referring to ‘profits’ as distinguished from gross income. It is of course arguable that the use of the word ‘made’ implied a profit but there is enough ambiguity in the term, and so little an exaggeration in the figure, as to preclude a conclusion that a material misrepresentation was made. More importantly, it is clear from the nature of the statement allegedly made by Rossetti, that he was not talking from knowledge, but was expressing an opinion or making a guess and this obviously was clear also to the employees he was addressing who were competent to appraise the statement in the light of their own knowledge — or lack of it— concerning the Employer’s profits from its operations.”

Accordingly, the Regional Director recommended that the Company’s objections be overruled and that the Board certify the Union as the exclusive collective bargaining representative of the Company’s employees.

The Company filed timely exceptions to the Regional Director’s findings, conclusions and recommendations. However, on October 31, 1972, the findings and conclusions were adopted by the full Board which certified the Union as the bargaining representative for the Company’s employees. In November 1972, upon the Company’s refusal to bargain collectively with the Union over wages, hours and working conditions, the Union filed an unfair labor practice charge with the Board and on December 14, 1972, the Board issued a complaint against the Company. In its answer the Company challenged the validity of the original certification. It also alleged that subsequent events, specifically the termination of 10 out of the 15 employees who had been eligible to vote in the election for theft of the Company’s money and materials, made a revocation of certification proper, since there was a strong probability, as a result of the post-election turnover, that only a small fraction of those in the unit, and possibly more, would currently be represented by a bargaining agent of their choice if effect were given to the certification.

On August 6, 1973, the Board, on motion for summary judgment by the Board’s General Counsel, held that the Company had violated § 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to bargain collectively in good faith with the Union and ordered it to cease and desist from this unfair labor practice and to take affirmative action to carry out its bargaining duties under the Act. Since the order was issued on motion for summary judgment the sole issue we must decide, on the Company’s petition to review and set aside and upon the cross-petition of the Board to enforce the order, is whether the Company’s objections to the election or exceptions to the Regional Director’s Report warranted a hearing. We hold that they did.

Discussion

The Board first argues that the Company was not entitled to a hearing on the factual statements set forth in its objections since it failed to support them with written affidavits or other independent evidence. While the Board’s own rules do not suggest that affidavits or other evidence must be submitted when objections to an election are filed, those rules also state that “[t]he party filing objections shall, upon request, promptly furnish to the regional director the evidence available to it to support the objections.” (Emphasis supplied). See 29 C.F.R. § 102.-69(a). The Board has presented us with a letter, which its Regional Director sent to the Company shortly after its objections had been filed, containing a request for supporting evidence. There is no indication that the Company ever responded to this letter.

We believe that, while the objections may not have qualified as “evidence” in the strict technical sense of that term, any such formal deficiency should not deprive the Company of a hearing to which it would otherwise have been entitled. The objections were not “nebulous and declamatory assertions, wholly unspecified,” see Fay v. Douds, 172 F.2d 720, 725 (2d Cir. 1949), nor based on “equivocal hearsay,” NLRB v. O.K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961), but referred to specific events and listed specific people who were witnesses to these events. See NLRB v. Douglas County Electric Membership Corp., 358 F.2d 125, 129 (5th Cir. 1966). Furthermore, the objections satisfied the underlying purpose of § 102.69(a) by furnishing sufficient factual detail to enable the Regional Director to evaluate them and sufficient identification of witnesses and sources to permit verification by the Director’s staff. Under the circumstances, to hold in this case that the objections were insufficient because they were not attested to or verified would be to exalt form over substance. Being signed by the Company’s counsel they should be accorded the same weight as would be attributed to a pleading so signed. See Rule 11, F.R.Civ.P. Furthermore, whatever may have been the result if the Regional Director’s investigation had failed to uncover specific supporting evidence, any deficiency must be deemed to have been waived or excused when, as here, it uncovers evidence calling for a hearing. See United States Rubber Co. v. NLRB, 373 F.2d 602, 606 (5th Cir. 1967) (“If the investigation itself reveals . . . that material factual issues exist which can be resolved only by a hearing, then a hearing must be held; once the investigator discovers facts by his investigation it becomes immaterial that there was a pre-investigation failure to supply him with specific evidence of what he later discovered.”). Otherwise, the “specific evidence” requirement could lead to absurd results and render the Regional Director’s independent investigation, which is mandated by the Board's own rules, see 29 C.F.R. § 102.-69(e), a superfluous formality.

The essential question, therefore, is whether, despite the Board’s denial of a hearing, the evidence relied upon by the Company, as verified by the Regional Director, entitled it to a hearing. We recognize that “[t]he conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse.” NLRB v. Olson Bodies, Inc., 2 Cir., 420 F.2d 1187, 1189 (1970), cert. denied, 401 U.S. 954, 91 S.Ct. 966, 28 L.Ed.2d 237 (1971). The Board has been entrusted with broad discretion in determining the nature and extent of pre-election propaganda that will be allowed, NLRB v. Millard Metal Service Center, Inc., 472 F.2d 647, 650 (1st Cir. 1973); NLRB v. Sauk Valley Mfg. Co., 486 F.2d 1127 (9th Cir. 1973); Follett Corp. v. NLRB, 397 F.2d 91, 94 (7th Cir. 1968), and it has prided itself on its toleration of “intemperate, abusive and inaccurate statements” made by the Union during attempts to organize employees. Linn v. Plant Guard Workers, 383 U.S. 53, 61, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Modine Mfg. Co., 203 N.L.R.B. No. 77, 83 L.R.R.M. 1133 (1973), application for enforcement pending, 8th Cir., No. 73-1664; Hollywood Ceramics Co., Inc., 140 N.L.R.B. 221, 224 (1962) ; Stewart-Warner Corp., 102 N.L.R.B. 1153, 1158 (1953). Considerable deference must furthermore be given to the expertise of the Board in this area, and to the findings of its Regional Director. Undue appellate interference could threaten the essential functioning of a system that has, according to well-settled standards, governed the conduct of some 9,000 elections annually.

For these reasons the burden upon the party seeking a hearing is a weighty one. See Bausch & Lomb, Inc. v. NLRB, 404 F.2d 1222, 1226 (2d Cir. 1968). It must demonstrate by “specific evidence” that a “substantial and material factual issue” exists with respect to the employees’ exercise of a free choice, which could well have affected the election results. Of necessity the existence of such an issue depends greatly upon the nature of the misrepresentation relied upon by the challenging party and upon the surrounding circumstances. Among the factors to be considered besides the materiality of the factual misrepresentation itself are (1) the influence that it might reasonably have had upon the employees, (2) the extent to which the declarant could reasonably be viewed by the employees as a person in a position to know the facts, (3) the opportunity for reply, and (4) the ability of the employees to evaluate the statement on the basis of their own independent knowledge of the facts. NLRB v. Cactus Drilling Corporation, 455 F.2d 871 (5th Cir. 1972); NLRB v. Millard Metal Service Center, Inc., supra; Hollywood Ceramics Co., Inc., supra. In the present case the Board does not seriously dispute the fact that since Rossetti’s statement to the employees was made virtually on the eve of election there was an inadequate opportunity for reply. However, the Regional Director took the view that none of the other prerequisites was satisfied. He concluded that in referring to the specific dollar amount “made” by the Company during the previous year (1) the Union Business Agent was not describing “profits” as distinguished from “gross income,” (2) “he was not talking from knowledge, but was expressing an opinion or making a guess,” and (3) the employees “were competent to appraise the statement in the light of their own knowledge — or lack of it — concerning the Employer’s profit from its operations.” We disagree. In the absence of a hearing we are at a loss to comprehend how the Regional Director could have arrived at these conclusions. Cf. NLRB v. Janler Plastic Mold Corp., 82 L.R.R.M. 2175, 2178 (7th Cir. 1972).

In our view a statement that the Company had “made” $1.3 million in the previous year would clearly imply to the average non-accountant (and we can assume that a millhand with training in accountancy would be a rarity) that the Company had “gained” or “profited” by that amount. Indeed, we suspect that this same meaning would be attributed to the word “made” by some accountants. Use of the term “grossed” instead of “made” would have alerted the listener to the fact that the Union was referring to receipts, not profits, and would not have called for a hearing. See, e. g., NLRB v. Louisville Chair Co., 385 F.2d 922 (6th Cir. 1967). But, absent a hearing, we cannot agree that the statement that the Company had “made” $1.3 million during the previous year was not materially misleading.

Nor can we agree with the Regional Director and Board that it must have been clear to the employees that the Union Business Agent, in stating that the Company had made $1.3 million, was merely “expressing an opinion or making a guess.” In most local unions the business agent, who may be the only full-time union employee, “has the greatest power and most important functions in the local union, frequently more important than the local’s president who may be a mere figurehead,” Kheel, I Labor Law § 3.03 [2], pp. 3-17 (Matthew Bender, 1972). His function, which is to organize and serve as liaison with management, requires him to learn as much as possible about the financial condition of the employer with whom he negotiates on behalf of its employees. His position, coupled with his mention of a specific profit figure, could reasonably have led the employees to believe that he had ferreted out the information from financial books or records available to the Union through its bank or other sources or from initial conferences with Company officers. Nothing in the Regional Director’s Report supports the view that the employees believed otherwise.

We likewise cannot agree with the Regional Director’s conclusion that the employees were competent to appraise the Business Agent’s specific figure in the light of their own knowledge of the Company’s profit from its operations. Without casting any reflections upon the employees, who are “drivers, yardmen, fork-lift operators, millmen, store salesmen and stock clerks,” it strikes us as unreasonable to expect that they, with the possible exception of a store salesman, would have any knowledge as to the Company’s profits, much less access to such information. A person performing essentially manual labor within a limited sphere, such as a driver or mill-man, would normally have no exposure to his employer’s receipts, much less to its profits. Furthermore, it is irrelevant that the employees addressed by Rossetti could have conducted their own investigation into the truth or falsity of his representations. “[T]o excuse a flat misrepresentation on the ground that the deceived party, having no reason to do so, could have investigated and learned the truth, is contrary to both legal and ethical principles.” See NLRB v. Millard Metal Service Center, Inc., 472 F.2d 647 (1st Cir. 1973); Cross Baking Co. v. NLRB, 453 F.2d 1346, 1349 (1st Cir. 1971).

In sum, we hold that the evidence in this case as to the misrepresentation of the Company’s profits raised a “substantial and material factual issue” as to the employees’ exercise of a free choice. It supports the charge that a person apparently in a position to know the facts had misrepresented a material fact (i. e., the amount of money available for increase in employees’ wages and benefits) in a manner and at a time which deprived the Company of an opportunity to respond. This claim, together with the written statements obtained by the Regional Director himself, prima facie warranted setting aside the election which the Union won by only one vote. NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir. 1967), cert. denied, 389 U.S. 917, 88 S.Ct. 772, 19 L.Ed.2d 825 (1968). Where, as here, an election is extremely close, even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election. See NLRB v. Skelly Oil Co., 473 F.2d 1079, 1085 (8th Cir. 1973); NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972). In this case, absent a hearing, there was no justification for the Regional Director or the Board to assume that the employees must have interpreted the alleged statement !¿>y Rossetti as a reference to “gross” revenue or as an uninformed guess. Indeed the reasonably probable interpretations were precisely the opposite.

We agree with the Board that the Company’s allegation that Rossetti had told the employees that the Company’s Vice-President had purchased a new home worth between $75,000 and $80,000 did not by itself necessitate a hearing in light of the results of the Regional Director’s investigation into this charge. However, since a hearing is necessary with respect to the alleged misrepresentation of Company profits, we direct that the second allegation also be taken up at that hearing. The Company’s objection based on the subsequent discharge of 10 out of the 15 employees who had been eligible to vote in the election could not in any event provide a basis for setting aside the election, since it could not be sustained without destroying “the finality sought to be given to Board-conducted elections.” See Orleans Storage Company, Inc., 123 N.L.R.B. 1757, 1758 (1959). Cf. Brooks v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 99 L.Ed. 125 (1959). Accordingly, that issue need not be heard.

Remanded for further proceedings not inconsistent with this opinion.

FEINBERG, Circuit Judge

(dissenting) :

This case is a good example of judicial interference with a process which performs best with a minimum of regulation, particularly by judges. The majority has fallen into two errors which courts reviewing administrative decisions concerning the conduct of representation elections should be careful to avoid. The first is to substitute too readily judicial judgment of the likely effect of campaign propaganda for that of the Board and the Regional Director. The second is to forget that a representation election, like any experiment in democracy, is conducted in the hurly-burly of the real world, where puffing, ambiguity and rhetoric occur as part of the election process and are routinely discounted. Because the majority opinion unnecessarily undermines the finality of representation elections and is based upon unrealistic assumptions regarding the effect of a single oral statement by a union organizer, I dissent and would grant the Board’s cross-application for enforcement of its order.

The Acting Regional Director extensively investigated the objections to the election by petitioner Henderson Trumbull Supply Corporation (the Company). Thus, there were interviews with seven of the eight employees present at the meeting where union business agent Rossetti allegedly stated that the Company “made” $1.3 million in 1971. In addition, the Company was afforded an opportunity to submit evidence of its own, but failed to do so. On the basis of this investigation, the Regional Director found:

The evidence [relating to the alleged statement] is somewhat contradictory although the weight thereof would support the assertion that some specific figure was stated. In any event the evidence does not tend to establish that Rossetti was referring to “profits” as distinguished from gross income. It of course is arguable that the use of the word “made” implied a profit but there is enough ambiguity in the term, and so little an exaggeration in the figure, as to preclude a conclusion that a material misrepresentation was made. More importantly, it is clear from the nature of the statement allegedly made by Rossetti, that he was not talking from knowledge, but was expressing an opinion or making a guess and this obviously was clear also to the employees he was addressing who were competent to appraise the statement in the light of their own knowledge — or lack of it— concerning the Employer’s profits from its operations.

The Board adopted the Regional Director’s findings and conclusions, and certified the Union as the bargaining representative of the Company’s employees.

On this appeal, the majority recognizes that “[t]he conduct of representation elections is the very archetype of a purely administrative function with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse.” Quoting NLRB v. Olson Bodies, Inc., 420 F.2d 1187, 1189 (2d Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 966, 28 L.Ed.2d 237 (1971). Consequently, a party seeking a court-ordered evidentiary hearing bears the heavy burden of demonstrating by “specific evidence” that a “substantial and material factual issue” exists whether the alleged misconduct “could well have affected the election results.” Unaccountably, the majority proceeds to ignore these sound principles. On the basis chiefly of its own speculations concerning the probable reactions of the employees, the majority sets aside the conclusions of the Board and the Regional Director and remands for a hearing. The justifications offered for this drastic action are, I submit, inadequate.

The majority first reasons that Rossetti's alleged statement that the Company “made” $1.3 million would mean to the average employee that the company had realized a profit of that amount. But the Company offered no evidence that any employee so understood the statement and the Regional Director apparently detected no such understanding during his interviews with the employees. To be sure, the alleged statement is ambiguous in that it could refer either to net profits or gross receipts. However, this ambiguity is itself a strong reason for concluding with the Board and the Regional Director that the alleged statement was not likely to have had an impact upon the election. See Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 124 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974). To the extent that employees perceive the ambiguity, an unclear statement conveys its own warning that it is not to be relied upon without further inquiry. And, even accepting arguendo the majority’s improbable view that the employees here had scant knowledge of the Company’s business operations, it seems quite likely that they were aware of the difference between gross income and net profit and realized that the phrase' “made $1.3 million” could describe either.

The majority then determines that the employees may well have believed that Rossetti had special knowledge of the Company’s financial situation and that he had used his position as union business agent to ferret out information concerning the Company’s affairs. Of course, it is conceivable that the employees thought this. But there is no suggestion that Rossetti expressly represented that he had special knowledge. And, if the employees really believed he had such knowledge, it is difficult to see why this belief would not have become apparent in the course of the Regional Director’s interviews. Yet the Regional Director concluded, after questioning the employees as to what had been said and under what circumstances, that it was obvious to all that Rossetti “was expressing an opinion or making a guess.” This being so, I cannot characterize the failure to hold an evidentiary hearing here as a “glaring discrimination or abuse.”

The majority next rejects the Regional Director’s conclusion that the employees were capable of appraising Rossetti’s statement in light of their own knowledge of the Company’s financial situation. This, says the majority, was largely a unit of manual laborers and such workers are not likely to have much exposure to their employer’s receipts, much less its profits. Of course, these employees are probably unaware of the precise figures on the corporate balance sheet. But even such workers must have some familiarity with the order of magnitude of their employer’s operations. And Rossetti allegedly estimated profits at $1.3 million, substantially larger than actual gross receipts and perhaps ten to 20 times greater than the Company’s actual profits. It strains credulity to argue that workers at a small New England lumber company employing just 15 full and part-time production workers and salesmen would ’unquestioningly accept such a surprisingly large estimate of profits. In any event, it seems to me that the level of employee financial sophistication is a matter “peculiarly within the ken of the Board’s local representatives who are close to the scene . . . . ” Cf. NLRB v. Bayliss Trucking Corp., 432 F.2d 1025, 1029-1030 (2d Cir. 1970).

Finally, the majority holds that the alleged misrepresentation of the Company’s profits raises a “substantial and material factual issue” as to the employees’ exercise of free choice. But the employees’ vague recollection of what Rossetti said at the meeting belies this conclusion. See NLRB v. Visual Edu-com, Inc., 486 F.2d 639, 642-643 (7th Cir. 1973) (alleged misrepresentation not basis for requiring evidentiary hearing despite 57-55 vote because recollections of witnesses so vague that Regional Director, even without hearing, could reasonably conclude that statement had little impact on election). Accepting ar-guendo the majority’s scenario that the employees were informed by a source they believed to have special knowledge that their employer was making huge profits in which they were not sharing, we would expect Rossetti’s remarks to be etched indelibly on the employees’ minds. Yet this was not the case. Three of the seven employees interviewed did not recall Rossetti’s making any estimate of corporate income, gross or net. A fourth remembered a $1 million figure but stated that Rossetti referred specifically to gross income. A fifth recollected only that Rossetti had said “something about the Employer making a million dollars last year . . . . ” The other two employees recalled that Rossetti had observed that the Company “made” $1.3 million without identifying the figure as gross, net or profit, but apparently even these employees did not indicate to the Regional Director that they understood Rossetti to be referring to profits. In view of the employees’ own responses, then, I cannot see the pe-cessity for an evidentiary hearing to probe the impact of the alleged misrepresentation upon the election.

Of course, we would all feel somewhat better if Rossetti had referred specifically to gross receipts, eliminating all possibility of confusion. But he did not do so; union organizers on the stump, under the pressures of time, election fervor and strongly held economic views, characteristically do not choose their words with the care of judges in their chambers. Moreover, recent research studies indicate that campaign propaganda has little effect upon election results ; according to the admittedly tentative conclusions of these studies, a worker’s vote for or against collective representation , is determined largely by his general satisfaction with his job and by his prior experiences with and general attitudes toward unions. See Brotslaw, Attitude of Retail Workers Toward Union Organization, 18 Lab.L.J. 149, 168-71 (1967); Getman & Goldberg, The Myth of Labor Board Expertise, 39 U.Chi.L.Rev. 681, 696 (1972); Getman, Goldberg & Herman, The National Labor Relations Board Voting Study: A Preliminary Report, 1 Journal of Legal Studies 233 (1972). Given the practical difficulties of preventing ambiguous statements such as Rossetti allegedly made and the strong possibility that little is gained by preventing them, it is worth emphasizing that a goal of the election process should be to give speedy practical effect to the choice of employees for or against collective representation. See Samoff, NLRB Elections: Uncertainty and Certainty, 117 U.Pa.L.Rev. 228 (1968). The union or non-union status of a proposed bargaining unit should not be subjected to protracted litigation before the Board and in the courts because of a single oral statement, made in the give-and-take of an organizational meeting, apparently not deliberately false, and misleading only when one postulates a very low level of employee economic sophistication. This decision will only encourage losing parties, employers and unions, to raise objections to election results and further burden the Board, which already has to process over 1,000 such objections annually. Thirty-Seventh Annual Report of the NLRB at 244-45 (1972).

I see no merit in the Company’s other arguments.

I would deny the Company’s petition for review and grant the Board’s cross-application for enforcement of its order.

      . At the time it filed its objections the Company’s books were in the process of being audited so that no figure for net profits was available. At oral argument the Company represented that its net profits were but a fraction of the $970,000 grossed by it.

      . Section 102.69(a) of the Board’s Rules, 29 C.F.R. § 102.69(a), provided only that “any party may file with the regional director an original and three copies of objections to the conduct of the election or conduct affecting the results of the election, which shall contain a short statement of the reasons therefor.”

      . In both its objections and exceptions the Company listed the names of persons who were witnesses to the alleged statements by Rossetti.

      . Our dissenting colleague, Judge JTeinberg, emphasizes that the “Acting Regional Director extensively investigated the [Company’s] objections of the election,” conducting “interviews with seven of the eight employees present at the meeting where union business agent Rossetti allegedly stated that the Company ‘made’ $1.3 million in 1971." However, it is extraordinary that, although at least three of the seven employees quoted Rossetti as stating that the Company had “ ‘made’ $1.3 million in 1971,” a term considered ambiguous by the Director and by our Colleague, the Director apparently did not bother, despite the closeness of the 7 to 6 vote in favor of the Union, to ask them the obviously crucial question: “What did you understand to be the meaning of the term ‘made’?”

      . The Company alleged that it had not learned of Rossetti’s statements until after the election.

      . The majority puts some emphasis on the fact that the union won this election by a vote of 7-6, arguing that where an election is extremely close, “even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election.” But such a rule would make it difficult to hold a conclusive election in a small unit such as this one (15 eligible voters) where a decision by one, two or three votes is always a good possibility. More importantly, the courts have not found it necessary to order evidentiary hearings even in very close elections where the Regional Director has conducted a thorough administrative investigation and where his decision not to hold a hearing was not a “glaring discrimination or abuse.” See, e. g., NLRB v. Olson Bodies, Inc., supra, 420 F.2d at 1189 (no hearing ordered despite 110-109 vote in election) ; NLRB v. Visual Educom, Inc., supra, 486 F.2d at 643 (no hearing despite 57-55 vote) ; NLRB v. Georgia-Pacific Corp., 473 F.2d 206 (8th Cir. 1973) (no hearing despite 77-75 vote).


source: Caselaw Access Project

author: FEINBERG, Circuit Judge: FRIENDLY, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Theodore FRATTINI and Steven Cardile, Defendants-Appellants.
    Nos. 1086, 1087, Dockets 74-1262, 74-1288.
    United States Court of Appeals, Second Circuit.
    Argued May 31, 1974.
    Decided Aug. 21, 1974.

      Gilbert Epstein, New York City, for defendant-appellant, Frattini.
    Philip R. Edelbaum, White Plains, N. Y. (Edelbaum & Bodnar, White Plains, N. Y., on the brief), for defendant-appellant Cardile.
    Nicholas Figueroa, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the S. D. of N. Y., S. Andrew Schaffer, Asst. U. S. Atty., on the brief), for appellee.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   FEINBERG, Circuit Judge:

Co-defendants Theodore Frattini and Steven Cardile appeal from convictions after a jury trial in the United States District Court for the Southern District of New York, Robert L. Carter, /., on two counts of distributing and possessing (with intent to distribute) cocaine, and conspiring to do so. 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846; 18 U.S.C. § 2. On February 14, 1974, the judge sentenced each defendant to a three year term of imprisonment on count 1, execution of which was suspended except for six months, and three years of probation on count 2. On appeal, defendants press various claims of error. For reasons stated below, we reverse Frattini’s conviction but affirm as to Cardile.

I

The charges involved here stem from a government agent’s purchase of 56.35 grams of cocaine from Floyd M. Parton, a co-defendant who pleaded guilty to one count prior to trial and testified for the Government against appellants. The prosecution’s theory of the case — supported chiefly by testimony from the agent, Douglas Driver, and Parton — was that Parton functioned as middleman between appellants and the buyer, exchanging the drugs conveyed by the former for the purchase money ($1,700) provided by the latter. According to the Government’s opening statement as well as Parton’s evidence, Cardile was the one who actually supplied the drugs to Parton. Frattini participated in the transaction by negotiating with Parton and accepting the payment from him.

During the trial, the judge allowed into evidence — over Frattini’s objection — Government Exhibit Nine, a chemist’s report on the cocaine bought by Agent Driver. Aside from the chemical analysis, signed by the chemist, the document contained a notation above the signature of Agent Driver that the material submitted for testing was received by defendant Parton

from one John Doe # 1 (believed to be Theodore Frattini) who was parked in front of the Diner [where the sale took place] in a 1968 yellow Chrysler bearing N.Y. registration XT 1417.

On appeal, Frattini contends that this statement was inadmissible hearsay, the introduction of which was error; we agree, and accordingly reverse his conviction.

This case is governed by United States v. Ware, 247 F.2d 698 (7th Cir. 1957), which overturned a narcotics conviction because of the improper admission into evidence of envelopes bearing notes by government agents on the circumstances of the drug purchases. Accord, United States v. Brown, 45Í F.2d 1231 (5th Cir. 1971); Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961). Cf. United States v. Adams, 385 F.2d 548- (2d Cir. 1967) (harmful comments never received in evidence). Although the bare chemist’s report was admissible under the business records exception to the hearsay prohibition, Ware, supra, 247 F.2d at 699-700, the incriminating remarks of Agent Driver were not. Moreover, the erroneous receipt of these comments in evidence cannot be viewed as harmless since the prosecutor stressed them in summation, and the jurors were allowed to examine the exhibit during their deliberations. Ware, supra, 247 F.2d at 700-701; Brown, supra, 451 F. 2d at 1234; Sanchez, supra, 293 F.2d at 267, 269. See note 2 supra.

The Government, however, seeks to distinguish Ware in that there the hearsay declarations neatly condensed the whole case against the defendant, 247 F.2d at 700, while here the objectionable statement actually “muddie[d]” the prosecution’s proof, given by Parton, that Cardile and not Frattini transmitted the drugs. But appellee misconceives the essential thrust of this argument. In Ware, the fact that the challenged “memoranda were merely cumulative of other evidence properly in the record” was regarded as a mitigating factor. 247 F.2d at 700. In this ease, however, the exhibit at issue contained evidence not theretofore admitted and not admissible at all because it was speculation by Agent Driver based upon what he had learned from some other source. In addition, the exhibit “switched theories” on Frattini in devastatingly harmful fashion. Until admission of the report, the jurors heard no testimony placing the cocaine in Frattini’s possession. But after its receipt, they could have concluded that Frattini was directly linked to the sale. We cannot therefore say that this highly significant piece of evidence, specifically requested by the jurors for scrutiny in the jury room, did not affect their view of the case or influence them to defendant’s detriment.

The Government also contends that the part of the report relating to the yellow Chrysler was “in fact admissible as an implied prior consistent statement of Parton after his testimony had been attacked as a recent fabrication . ” According to appellee, the challenged statement tends to show that Parton had told the agent

long before he had been arrested and had a motive to fabricate, that the occupant of the Chrysler was one of the people who supplied him with cocaine. Otherwise, the agent would not have recorded and checked out the ownership of the vehicle and come to the erroneous conclusion that Frattini had handed the drugs to Parton.

Even ignoring the strained nature of the argument (which relies on supposed statements by Parton to Agent Driver to rehabilitate the former’s testimony, attacked as the product of his post-arrest lies), we would in any event reject the claim because it does not go far enough. Whatever its merits with respect to the remarks about the Chrysler, the prior consistent statement rubric clearly fails to cover the vital preceding phrase identifying Parton’s supplier as “one John Doe # 1 (believed to be Theodore Frat-tini)” since, as we have already remarked, this comment was not consistent —but, on the contrary, was wholly at odds — with the Government’s earlier proof via Parton as to the source of the drugs.

In the absence of any justification for admitting the challenged hearsay evidence, we reverse appellant Frattini’s conviction and remand for further proceedings consistent with this opinion.

II

We turn now to appellant Cardile. Although he does not urge this point, we have nonetheless considered whether our holding in co-defendant Frattini’s case dictates a similar outcome here. Upon reflection, however, we do not believe that the hearsay error as to Frattini could have had any significant prejudicial “spillover” onto Cardile, which would call for reversal of the latter’s conviction for the same evidentiary reason. We note that Cardile never objected below to the admission of Government Exhibit Nine. (Nor does he now in his brief on appeal except by a blanket adoption clause, incorporating “all of the points of argument . in the brief of the other appellant herein insofar as applicable to his case.”) This failure to raise a claim is hardly surprising in view of the fact that the agent’s hearsay comments, if anything, actually helped Cardile. Certainly, trial counsel thought so since, in his summation, in an effort to impeach the credibility of Parton, he dwelt on the discrepancy between the prosecution’s theory of the case (that Cardile supplied the contraband) and the statement inculpating Frattini.

Cardile’s principal claim on appeal is that the court improperly refused to grant a short continuance pending the arrival of a witness from Atlanta. Appellant requested an overnight adjournment for this purpose after the final defense witness had been heard. Trial counsel informed the court that the case was ending earlier than he had anticipated — hence the Atlanta witness’s absence — but that the projected testimony would consume no more than 20 minutes on the next day. The judge denied the continuance, however, on the ground that the intended evidence would be merely cumulative.

The court was told that the Atlanta witness would “testify about some conversations that he had with Floyd Par-ton . . . September 18th, the time of his arrest . . . . ” After a brief exchange between the judge and the Assistant United States Attorney, the former responded:

If that’s what he is going to testify to, you have had testimony from you [trial counsel], . . . from Mr. Mancuso, . . . from Mr. Cardile. I don’t see where that is going to be anything more than cumulative.

Cardile argues on appeal that the proposed evidence was not, as the court thought, cumulative since it dealt with an earlier talk with Parton than the one already related by others. We agree with this contention and — had we been in the trial judge’s place — might well have decided to grant the adjournment, brief as it was. But “[t]he matter of continuance is traditionally within the discretion of the trial judge . ” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). On this record, we cannot say that the failure to grant a continuance constituted an abuse of discretion. Trial counsel for Cardile never made an offer of proof, as to the contents of the alleged “conversations.” Nor did he — after the return of the verdict and the witness’s presumed arrival from Atlanta — make a motion for a new trial, with an affidavit setting forth the testimony in detail. (At that point, having had the chance to interview the witness in person, he should have known the exact nature of the proffered evidence.) Given the vagueness of counsel’s allusion to the witness’s story, the judge acted within bounds in refusing appellant an adjournment. Cf. United States v. Wyler, 487 F.2d 170, 173-174 (2d Cir. 1973).

We have considered Cardile’s other points on appeal and find them to be without merit.

We therefore affirm the conviction of appellant Cardile.

FRIENDLY, Circuit Judge

(concurring and dissenting):

While I join in the reversal of Fratti-ni’s conviction, I would also reverse Car-dile’s.

I am unable to share my brothers’ belief that it is feasible to disentangle the two defendants. The Government’s testimony linked them inextricably; there was no evidence on which the jury could rationally find Frattini innocent and Cardile guilty. Even though Exhibit 9' cast Frattini rather than Cardile in the role of the person making the actual delivery, it bolstered the Government’s case that a narcotics transaction had taken place and weakened the testimony of both defendants that nothing of the sort had occurred. Beyond this, reversal of Cardile’s conviction is necessary in justice not only to him but to Frattini. The Government’s evidence at the new trial inevitably will include reference to Cardile, the jury will wonder why he is not a defendant, and if it speculates that he has been convicted, this will work against Frattini. Furthermore, Car-dile’s testimony was helpful to Frattini; it will be the opposite if he now takes the stand and the Government shows he has been convicted. These considerations are of special weight because the Government’s case rested almost entirely on the testimony of Parton and both defendants offered plausible and partially corroborated explanations that their presence on the scene was innocent.

My belief that Cardile also should have a new trial is reinforced by what I consider an arbitrary denial of his counsel’s request for a continuance from 3:30 P.M. until the following morning for the presentation of a witness from Atlanta and an erroneous refusal to permit Cardile to explain that his apparently easy life style was due to hard work by himself and his wife rather than to narcotics profits.

This is the rare narcotics case where the defendants may be innocent. There must be a new trial in any event, and it will take only a few hours longer if both defendants are included. Our duty is to “require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106. I do not think it just to either Cardile or Fratti-ni that the new trial should be truncated by our attempting to put asunder two defendants whom the Government’s chief witness so tightly joined.

      . On February 21, 1974, Parton was sentenced to two years probation.

      . In his brief on appeal, Frattini alternatively argued that the report had never been received in evidence at all, yet was nonetheless improperly allowed to be brought into the jury room. At oral argument, appellate counsel conceded that this position was incorrect.

      . Supplementary Brief for Appellee at 2 (submitted in letter form, in response to the panel’s request at oral argument).

      . Supplementary Brief for Appellee at 2, supra note 3.

      . Id. at 3.

      . In light of our disposition of this matter, we do not reach Frattini’s second claim on appeal: that the court erred by failing to hold a hearing to determine whether one of the jurors was able to understand English. Cardile wisely does not make this argument since his counsel objected in the trial court to excusing the juror, on the grounds that “[h]e understood the questions that were put to him by [the court] and he gave answers to those questions . . . .”

      . Brief for Cardile at 11.

      . Mancuso, Cardile, and trial counsel Chris-tiansen testified to a conversation that occurred on December 3,1972.

      . Cardile additionally complains of the court’s alleged refusal to allow testimony as to his and his wife’s life style and working habits (to rebut the inference that they lived on illicit profits from drugs) and of supposed violations of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), in the admission of incriminating statements.


author: MATTHES, Senior Circuit Judge.

text:
    INDIANA STATE EMPLOYEES ASSOCIATION, INC., an Indiana not-for-profit corporation, et al., Plaintiffs-Appellants, v. Harold NEGLEY, Individually and as State Superintendent-elect of Public Instruction, Defendant-Appellee.
    No. 73-2096.
    United States Court of Appeals, Seventh Circuit.
    Argued May 20, 1974.
    Decided Aug. 9, 1974.
    Ronald E. Elberger, Indianapolis, Ind., for plaintiffs-appellants.
    Theodore L. Sendak, Atty. Gen., Robert S. Spear, Deputy Atty. Gen., Indianapolis, Ind., for defendant-appellee.
    Before FAIRCHILD and CUMMINGS, Circuit Judges, and MATTHES, Senior Circuit Judge.

       Senior Circuit Judge M. C. Matthes of the Eighth Circuit is sitting by designation.

   MATTHES, Senior Circuit Judge.

This case was spawned by Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 943, 93 S.Ct. 1370, 35 L.Ed.2d 609 (1973). In Lewis, this court generally disapproved on first amendment grounds patronage dismissals of non-policy making public employees, while affirming the right of a public executive to use political philosophy or affiliation as a basis for discharging policy making officials. A resolution of the present controversy turns on the correctness of the district court’s finding that plaintiffs, former employees of the Indiana Department of Public Instruction, occupied policy making positions.

The defendant-appellee, Harold Neg-ley, a Republican, was elected State Superintendent of Public Instruction for a two year term at the November 1972 general election, defeating the incumbent Democrat, John J. Loughlin. The Superintendent-elect assumed the office on March 15, 1973.

In January of 1973, Superintendent-elect Negley caused plaintiffs Jonetta C. Holland, E. Marie (Visher) Bonvillain, William Wallace, Ronald E. Drury, C. Michael Pitts, John J. Day, Ross B. Nor-rick, and others to be notified that their positions in the Department of Public Instruction would be terminated, effective March 15, 1973. This action precipitated the filing of the present suit on January 17, 1973, by the Indiana State Employees Association, Inc., an Indiana not-for-profit corporation, and Jonetta C. Holland, E. Marie Bonvillain, and William Wallace, individually and on behalf of all others similarly situated, against Negley and the incumbent Superintendent, Loughlin.

Jurisdiction was predicated on 42 U. S.C. § 1983 and 28 U.S.C. § 1343(3) and (4). Plaintiffs alleged that their termination was motivated by their political party affiliation as Democrats and that discharge for such reason was violative of their rights to freedom of association, equal protection, and due process, as secured by the first and fourteenth amendments to the United States Constitution and by Art. 1, §§ 9, 12 and 23 of the Indiana Constitution. Plaintiffs sought an injunction, declaratory relief, and damages.

An amended complaint was filed on January 19, 1973, in which Ronald E. Drury, C. Michael Pitts, John J. Day, and Thomas Charles Abeel joined as individual plaintiffs.

Pursuant to plaintiffs’ motion for a preliminary injunction, the district court, Judge Noland, heard evidence on March 2 and March 8, 1973. At the conclusion of the hearing on March 8, the judge orally denied the motion for a preliminary injunction. A memorandum opinion was filed on March 16, 1973, and is reported at 357 F.Supp. 38 (S.D.Ind.1973). Thereafter, pursuant to motion of plaintiffs, the court dismissed the action as to defendant John J. Loughlin. The court also ordered that the cause “not proceed as a class action as to all similarly situated non-policy making employees of the Department of Public Instruction.” At the same time, however, the court provided that additional parties plaintiff might be joined at any time prior to July 9, 1973. One other discharged employee, Ross B. Norrick, was joined as a party plaintiff by order entered on July 9, 1973. By stipulation of the parties, approved by the court, it was agreed that all evidence received upon the application for preliminary injunction would become a part of the record at the trial of the cause on the merits.

The case was tried before Judge No-land without á jury on July 9, 10 and 11, 1973. On October 24, 1973, Judge No-land filed his judgment and memorandum opinion, reported at 365 F.Supp. 225 (S.D.Ind.1973). As reference to the opinion will disclose, the district court concluded that plaintiffs were not entitled to any relief, entered judgment in favor of the defendant Negley, and dismissed plaintiffs’ complaint. Plaintiffs have appealed from that judgment.

The extensive and comprehensive trial court proceedings focused upon three questions: 1) whether the terminated plaintiffs occupied non-policy making positions; 2) if so, whether their affiliation with and allegiance to the Democratic Party was the cause of their termination; and 3) whether their termination, based upon their political association, was unconstitutional. The district court, in a soundly reasoned opinion, ruled squarely against plaintiffs on the first issue, and then proceeded to discuss but not directly decide the second and third issues.

In this court, plaintiffs first contend that “the finding of fact by the district court that plaintiffs Day, Pitts, Wallace, Bonvillain, Drury and Norrick occupied policy making positions * * * was clearly erroneous, without substantial evidentiary support and contrary to the clear weight of the evidence.”

Rule 52(a), Fed.R.Civ.P., provides that upon appellate review a district court’s, “findings of fact shall not be set aside unless clearly erroneous.” A precise delineation of the scope of review under the “clearly erroneous” standard of Rule 52 is fraught with some difficulty; indeed, Judge Learned Hand observed :

“It is idle to try to define the meaning of the phrase ‘clearly erroneous’; all that can be profitably said is that an appellate court, though it will hesitate less to reverse the finding of a judge than that of an administrative tribunal or jury, will nevertheless reverse it most reluctantly and only when well persuaded.”

United States v. Aluminum Co. of America, 148 F.2d 416, 433 (2d Cir. 1945). Nevertheless, the Supreme Court constructed a definition of what constitutes clear error in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), where Justice Reed, speaking for the Court, stated:

“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

See generally 5A Moore’s Federal Practice j[ 52.03 [1] (1969).

This test frequently has been employed by this Circuit in determining whether findings were clearly erroneous. See, e.g., Prince v. Packer Mfg. Co., 419 F.2d 34 (7th Cir. 1969); Yorke v. Thomas Iseri Produce Co., 418 F.2d 811 (7th Cir. 1969); G. R. Leonard & Co. v. Stack, 386 F.2d 38 (7th Cir. 1967) ; Krinsley v. United Artists Corp., 235 F.2d 253 (7th Cir. 1956). The appellate court must be especially circumspect in reviewing for clear error in the district court’s findings when there was conflicting evidence on controverted issues of fact. Cf. Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712 (7th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). In an opinion authored by Judge John Sanborn, a distinguished jurist, the- scope of review of the findings of the trier of fact was delineated as follows:

“The Court, upon review, will not retry issues of fact or substitute its judgment with respect to such issues for that of the trial court. [Citation of cases omitted.] The power of a trial court to decide doubtful issues of fact is not limited to deciding them correctly. [Citation of cases omitted.] In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. [Citation of cases omitted.] In determining whether there is a sufficient eviden-tiary basis for the court’s findings of fact, we must take that view of the evidence and the inferences deductible therefrom which is most favorable to the plaintiff.”

Cleo Syrup Corp. v. Coca-Cola Co., 139 F.2d 416, 417-418 (8th Cir. 1943), cert. denied, 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074 (1944).

As a corollary to the foregoing, it is settled law that the complaining party has the burden to clearly demonstrate error in the findings. This is an especially strong burden where, as here, the findings are primarily based upon oral testimony and the trial judge has viewed the demeanor and credibility of witnesses. Chalk v. Beto, 429 F.2d 225, 227 (5th Cir. 1970); St. Louis Typographical Union No. 8 v. Herald Company, 402 F.2d 553, 557 (8th Cir. 1968) and cases cited therein.

Thus we come to the crucial question, whether plaintiffs have sustained their burden of showing that Judge Noland’s finding that the individual plaintiffs were policy making employees was clearly erroneous under the standards above articulated. We are convinced they have not.

A review of the pertinent evidence bearing upon the policy/non-policy making issue is obviated in view of the extended and accurate analysis of the facts by the district court. The position of each individual plaintiff in the Department of Public Instruction, his salary, duties and responsibilities are detailed in the district court’s opinion at 365 F. Supp. 227-230. Such analysis satisfies us that the court possessed a firm grasp of the issue and that its ultimate holding was the result of a careful study of the evidence and the applicable legal principles which must be considered in resolving this troublesome question inherent in cases involving the status of public employees.

To be sure, the individual plaintiffs were unanimous in proffering self-serving conclusions that they were non-policy making employees. See 365 F.Supp. at 228 n. 14. But, as the court observed, such conclusions were'not borne out by plaintiffs’ exhibits. Moreover, defendant Negley’s testimony, if also self-serving, stood in direct contradiction. All of this led Judge Noland to conclude:

“From this statement of the facts, based upon the more credible and the uncontradicted testimony and exhibits, the conclusion is compelled that the discharged plaintiffs in fact occupied policy making positions with the Department of Public Instruction. Further, it is clear to the Court that the policy making character of these positions is even more pronounced under the current administration. Plaintiffs have asserted that they were so constrained by statute and regulation that they were mere administrative technicians. The Court cannot accept such a theory without necessarily reaching the strange conclusion that defendant Negley is also a non-policy making employee. Clearly, the policies here involved are not those of Congress, the committee which drafted the grant authorizing legislation, the Department of Labor, the Department of Health, Education and Welfare, but are the local policies of the Indiana Department of Public Instruction. These plaintiffs were not building employees, clerical workers, license examiners and the like. Their positions were highly responsible ones.”

365 F.Supp. at 231.

To approve the conclusion reached by Judge Noland in this case is not to say that judicial creation of the line between policy makers and non-policy makers is easy. The Lewis, decision was breaking new ground in determining that certain patronage dismissals are prohibited by the first amendment. See Comment, Patronage Dismissals: Constitutional Limits and Political Justifications, 41 U.Chi.L.Rev. 297, 315 (1974). The policy/non-policy making distinction arose in the following statement of the majority opinion, authored by Judge Stevens and concurred in by District Judge Campbell:

“Plaintiffs properly do not challenge the public executive’s right to use political philosophy or affiliation as one criterion in the selection of policy-making officials. Moreover, considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions.”

473 F.2d at 574. Lewis, however, concerned only “building employees, clerical workers, license examiners and the like.” 473 F.2d at 563. As to such employees, “It is difficult to believe * * * that any such justification [considerations of political affiliation or personal loyalty] would be valid * * *.” 473 F.2d at 574. It should also be noted that Lewis was an appeal from the trial court’s granting of summary judgment in favor of defendant and not, as here, from a final judgment after full trial.

Nevertheless, Judge Campbell’s concurring opinion recognized the difficulties inherent in the new rule and offered several suggestions as to its application:

“The scope and complexity of the litigation problems created by our ruling are not lessened by our limiting its applicability to ‘non-policy making’ government personnel. It is simple enough to say that janitors, clerk-typists and elevator operators are ‘non-policy making’ employees, but how far up in the bureaucratic echelon can the distinction be judicially drawn? What about a janitorial supervisor, the director of a stenographic pool, a personnel manager, a deputy assistant division head, a deputy director, or even a secretary to a top-echelon director or department head who may have access to confidential information? As Judge Stevens so aptly states, there may be instances when political affiliation constitutes a proper qualification for public employment, particularly in the selection and appointment of ‘policy-making’ officials. Indeed, no one has challenged the right of an elected official to appoint to such positions and for whatever reasons he deems proper, persons in whose loyalty and competence he has the highest confidence. The difficulty arises in attempting to fashion an appropriate and workable judicial standard for distinguishing between ‘policy-making’ and ‘non-policy malting’ positions. In my judgment, the constitution would permit a public official to hire or dismiss on the basis of political association any employee engaged directly or indirectly in the formulation or implementation of the policies of the particular governmental office or agency. A more precise standard is difficult to articulate and thus the true impact of today’s decision must necessarily await case by case determination.”

473 F.2d at 578. See also Comment, Patronage Dismissals: Constitutional Limits and Political Justifications, 41 U.Chi.L.Rev. 297, 319-20 & n. 107 (1974).

Subsequent to the Lewis decision and in partial reliance thereon, a § 1983 action was brought in the Northern District of Illinois by Arlen Gould, former Assistant to the Director and Special Education Coordinator of the Governor’s Office of Human Resources of the State of Illinois. Gould v. Walker, 356 F.Supp. 421 (N.D.Ill.1973). From the discussion of the facts in that case, suffice it to say that there appear several parallels between the duties and responsibilities of Mr. Gould and the duties and responsibilities of the present plaintiffs.

District Judge Will concluded in Gould:

“In attempting to fit Gould into the Lewis framework it can be initially and assuredly stated that he is a different type of governmental employee than the license examiners, janitors and clerks who comprised the plaintiff class in Lewis. Clearly, because of his undisputed responsibility and authority he is not covered by the strict holding of the Lewis case. In the terminology of Judge Stevens, the issue then is whether Gould is the type of governmental employee whose termination may be justified on the ground of political affiliation. We conclude that he is.
We are hard pressed to articulate a more helpful standard than that propounded by Judge Campbell which allows termination on the basis of political affiliation if the terminated employee is ‘engaged directly or indirectly in the formulation or implementation of the policies of the particular governmental office or agency.’ On the basis of the essentially undisputed affidavits in the instant case, Gould is clearly engaged directly in the implementation of the policies of GOHR and engaged indirectly in the formulation of those policies. Therefore, the defendant public officials were constitutionally entitled to dismiss or terminate Gould on the basis of his political affiliation.”

356 F.Supp. at 425.

So too, in the present ease, plaintiffs were clearly engaged in the implementation of the policies of the State Department of Public Instruction and at least indirectly in the formulation of those policies.

Having determined that the district court’s finding that plaintiffs occupied policy making positions is not clearly erroneous, we need not consider whether their terminations were motivated by political party affiliation and, if so, whether such terminations were viola-tive of first amendment rights.

Judgment affirmed.

      . Negley was elected pursuant to Art. 8, § 8 of the Indiana Constitution and Burns’ Ind. Stat.Ann. § 28-201, IC 1971, 21-1-1-55, which provided for the election of a State Superintendent of Public Instruction for a term of two years. On the same date that Negley was elected, November 7, 1972, the electorate of Indiana voted to amend Art. 8, § 8 of the Constitution to provide as follows :
      “There shall be a State Superintendent of Public Instruction, whose method of selection, tenure, duties, and compensation shall be prescribed by law.” Pursuant to such amendment, the legislature of Indiana in 1973 enacted Public Law 210, codified as Burns’ Ind.Stat.Ann. § 28-201a, IO 1971, 20-1-11.5-1, which provides that the Superintendent of Public Instruction shall not be elected at the general election in 1974, but that instead the governor shall appoint a person to that office to serve from March 15, 1975, until the second Monday in January, 1977.

      . In all, 18 employees of the Department were terminated by Superintendent Negley.

      . Counsel for plaintiffs informed this court at oral argument that plaintiffs Holland and Abeel are no longer seeking relief. As found by the district court, Superintendent Negley’s notice of discharge to Holland was withdrawn, and she continues to work for the Department as a bookkeeper-secretary. Abeel’s position as Director of the Neighborhood Youth Corps was eliminated at the end of federal funding. See 365 F.Supp. at 230-231.

      . Cited with approval in Aunt Mid, Inc. v. Fjell-Oranje Lines, supra, 458 F.2d at 718.

      . The issue in Lewis was also somewhat different. Plaintiffs alleged they were discharged because they refused to change their political affiliation.


author: COFFIN, Chief Judge.

text:
    Arlene L. CARVER and Gloria Fowler, individually and on behalf of their unborn children, and on behalf of all others similarly situated, Appellees, v. Thomas L. HOOKER, individually and as Director of the New Hampshire Division of Welfare, Appellant.
    No. 74-1079.
    United States Court of Appeals, First Circuit.
    Heard June 4, 1974.
    Decided July 18, 1974.

      John T. Pappas, Concord, N. H., with whom Warren B. Rudman, Atty. Gen., Concord, N. H., was on brief, for appellant.
    John W. Cotton, Concord, N. H., with whom George Charles Bruno, Manchester, N. H., was on brief, for appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE, Circuit Judge, and TAURO, District Judge.

       Sitting by designation.

   COFFIN, Chief Judge.

Appellant appeals the decision of the district court, 369 F.Supp. 204 (D.N.H.1973), that the state practice of denying benefits, under the Aid to Families with Dependent Children (AFDC) program of the Social Security Act, 42 U.S.C. § 601 et seq., to pregnant women during the term of their pregnancy on behalf of ■their unborn children, conflicts with the provisions of the Social Security Act and is thus invalid under the Supremacy Clause.

For appellees to prevail in this action we first must find that unborn children are eligible for assistance under the AFDC program. See Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Wilson v. Weaver, 499 F.2d 155 (7th Cir. 1974); Alcala v. Burns, 494 F.2d 743 (8th Cir., 1974). If such eligibility is established, we must find secondly, either: (a) that there is insufficient evidence to demonstrate a congressional intention to permit the extension of AFDC benefits to the unborn only at the option of the states, see Townsend v. Swank, supra at 286, 92 S.Ct. 502; or (b) that having voluntarily extended AFDC benefits to the unborn, New Hampshire is required to do so in the manner prescribed by the Social Security Act. On the basis of either theory, the order of the district court must be affirmed.

We consider first the question of eligiblity. Section 402(a) (10) of the Social Security Act, 42 U.S.C. § 602(a) (10), directs that AFDC benefits be “furnished with reasonable promptness to all eligible individuals.” Eligibility is generally defined under § 406(a), 42 U.S.C. § 606(a), which describes “dependent child” in part as a needy child who has been deprived of parental support and who is living with one of several relatives. We see no reason why a fetus may not be deprived of material and medical assistance as easily as a newborn infant, or any child for that matter, to the extent that deprivation of aid to the mother may deny the fetus adequate nutrition or medication. Nor does it appear anomalous that a fetus may be described as “living” with the mother. Indeed, a child is “living with” his mother more directly in útero than at any other time. Thus we find nothing in the languge of § 406 which precludes a determination that Congress intended to include the unborn within the meaning of “dependent child”.

While the language of the Act is thus not inconsistent with a congressional intention to benefit the unborn, it is not sufficiently unambiguous to dispose of the eligibility question, and we turn to other indices of congressional intent. We agree with the district court that the legislative history of the Social Security Act “bespeaks no specific intent on the part of Congress in respect of either the exclusion or the inclusion of the unborn child.” 369 F.Supp. at 212. It is true that isolated statements in the 1935 debate on the Act advert to the need to protect children “from the time of birth”, but there is no evidence that Congress as a body passed the Act with that limitation. It is also- true that when Congress passed the AFDC proposal as Title IV of the Act, it enacted a separate program for maternal care in Title V, see 42 U.S.C. § 701 et seq. But Titles IV and V are qualitatively different weapons against poverty and deprivation, the latter providing medical services while the former disburses cash for improvement of the home environment. Moreover, because the medical services provided under Title V extend to born as well as unborn children, it seems incongruous that Congress would not make similar provision under Title IV. Thus, the congressional concern evidenced by Title V with respect to pre-natal care does not militate against an intention to assist the unborn through AFDC payments as well. See Whitfield v. Minter, 368 F.Supp. 798 (D.Mass.1973).

A final bit of evidence from the legislative history of the Social Security Act is Congress’ recent failure to enact amendments to the Act which would have expressly excluded eligibility for the unborn. The fact that Congress thought it necessary to amend the Act to exclude the unborn suggests to us that the Act as written does make the unborn eligible for AFDC assistance, especially in light of the HEW interpretation to that effect, 45 C.F.R, § 233.90(c) (2)(ii). See Wilson v. Weaver, supra; Alcala v. Burns, supra; Whitfield v. Minter, supra. That suggestion, if weakened by the statement of the House committee considering the amendments that the change would “make clear” that the unborn child is ineligible, is strengthened by the opinion of the Senate committee that the amendments “would make unborn children ineligible.” [Emphasis added.]

Absent dispositive indications from the legislaive history of the Social Security Act, we turn to the record of its administration by the Department of Health, Education and Welfare, mindful that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969); see Wilson v. Weaver, supra, 499 F.2d 155; Doe v. Lukhard, 363 F. Supp. 823, 829 (E.D.Va.1973), aff’d, 493 F.2d 54 (4th Cir. 1974). There can be no doubt that HEW’s interpretation of the Act supports a finding of eligiblity. HEW regulations explicitly provide federal funds to states extending AFDC benefits to the unborn, 45 C.F.R. § 233.-90(c) (2)(ii), and the Department has consistently followed that practice since 1941. See Wilson v. Weaver, supra. In other words, if unborn children are ineligible under the Act, HEW and its predecessors have illegally succored them for a third of a century.

Moreover, we think that a finding of eligibility for the unborn is consistent with the purposes and policies of the Social Security Act. The Supreme Court has declared the “paramount goal” of the AFDC program to be the protecton of needy children. King v. Smith, 392 U.S. 309, 325, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Payments to the unborn are an appropriate, if not essential, means to that end, especially in light of the undisputed evidence, accepted by the district court, that pre-natal nutrition and medical care are important determinants of “later susceptibility to disease, neurological problems and long-term learning capacity.” 369 F.Supp. at 208. See Wilson v. Weaver, supra, 499 F.2d 159, n. 3. And while various provisions of the Act suggest congressional purposes subordinate to this overall policy of protecting children, we find that none of them conflict with a finding of eligibility of the unborn.

A final support for a finding of eligibility is that such a construction may be necessary to forestall a successful equal protection challenge to the AFDC legislation, brought on behalf of unborn children or their mothers. The Supreme Court has concluded that “[a]ny doubt must be resolved in favor of [a] construction to avoid the necessity of passing upon the equal protection issue”, Townsend v. Swank, supra, 404 U.S. at 291, 92 S.Ct. at 508. There is at least some doubt whether the justifications proferred here by New Hampshire, see 369 F.Supp. at 215, unrelated as they are to a recipient’s need for assistance, would survive even the “loose review” of a “rationality test”. Cf. Whitfield v. Minter, supra, 368 F.Supp. at 804.

In concert, the at least non-exclusionary language of the Act, the implicit congressional recognition of eligibility in consideration of amendments to exclude the unborn, the consistent administrative recognition of eligibility, the manifest purposes of the Act, and the significance of a constitutional challenge to a contrary interpretation, warrant our holding that unborn children are eligible for AFDC benefits under the Social Security Act, 42 U.S.C. § 606(a).

A finding that the' unborn are eligible for assistance does not end our inquiry. Though Congress may have intended to make eligible a class of recipients, it may also have intended to permit the exclusion of that class at the option of the states. See, e. g., 42 U.S.C. § 607(b). The Supreme Court has made clear, however, that upon a finding of eligibility the states bear a heavy burden to demonstrate a congressional intention to permit exclusion. Townsend v. Swank, supra, 404 Ü.S. at 286, 92 S.Ct. 502. But here there is nothing in the language, legislative history, or purposes of the Act to sustain such a burden. We recognize the consistent and long standing practice of HEW, see 45 C.F.R. § 233.90(c) (2)(ii), of permitting states the option to benefit the unborn, but this cannot substitute for “clear” evidence of congressional approval. See Alcala v. Burns, supra; Doe v. Lukhard, 363 F.Supp. 823, 828-29 (E.D.Va.1973), aff’d, 493 F.2d 54 (4th Cir. 1974). We, therefore, conclude that Congress has not “clearly evidenced” an intention to permit the exclusion of the unborn.

Alternatively, we find that even if such an optional policy exists, New Hampshire has exercised its option, though not in the manner prescribed by the Social Security Act. Appellants admit to a practice of making retroactive AFDC payments, covering the pre-natal period, under certain circumstances, after a child qualifying for AFDC benefits is born. New Hampshire permits a mother to bill the state for the costs of delivery of a child, and because of administrative difficulties in determining which portion of the total doctor bill reflects pre-natal and which post-natal costs, regularly pays the entire bill. Regardless of its reasons, New Hampshire, albeit retroactively, has recognized the eligibility of unborn children by making AFDC payments to such children. However, the Act specifically requires that AFDC payments “shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 602(a)(10). And the Supreme Court has indicated that the statute precludes the states “from denying benefits, even temporarily, to a person who has been found fully qualified for aid.” Jefferson v. Hackney, 406 U.S. 535, 545, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). New Hampshire has made its decision to comply with the provisions of the Social Security Act permitting payments to unborn children. Now it must do so fully.

The judgment of the District Court is affirmed.

      . Section 406(a) provides:
      “The term ‘dependent child’ means a needy child (1) who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the state in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment; . . . . ” 42 U.S.C. § 606(a).

      . Though the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), arguably proscribes as unconstitutional the governmental characterization of a fetus, at least during the earlier portions of pregnancy, as a “human being” for the purposes of assessing the interests implicated by a decision to abort, that decision neither proscribes the recognition of a fetus as “living” nor forbids the government to benefit the fetus.

      . Indeed, the district court concluded that the statutory language is “no help” at all. 369 F.Supp. at 212.

      . 79 Cong.Rec. 7839 (1935) (statement of Mr. Ellenbogen).

      . We agree with the district court, 369 F. Supp. at 213, that because “the enacting Congress of 1935 clearly expected the Act to be molded and developed by future legislatures, . . . it is appropriate to look at later Congressional pronouncements as indicative of an evolving legislative intention.” See Committee on Ways and Means Report, H.R. Rep.No.615, 74th Cong., 1st Sess. 16-17 (1935).

      . See H.R.Rep.No.92-231, 92d Cong., 2d Sess. 184 (1972) ; S.Rep.No.92-1230, 92d Cong., 2d Sess. 108 (1972).

      . See Committee on Ways and Means Report, H.R.Rep.No.92-231, 92d Cong., 2d Sess. 184 (1972).

      . See Senate Finance Committee Report, S. Rep.No.92-1230, 92d Cong., 2d Sess. 108 (1972).

      . We recognize that the HEW regulations, while finding the unborn to be eligible for assistance, also make payments to the unborn optional at the discretion of the states. But the question of optional exclusion is separate from the question of eligibility, and will be considered later.

      . Moreover, we agree with the court in Wilson, 160, n. 4, that a mother may be least able to care for her child during the period of pregnancy.

      . Both proponents and opponents of coverage of the unborn wrestle with provisions spelling out particular purposes. These range from encouraging “the care of dependent children in their own homes”, 42 TJ.S.C. § 601, strengthening family life, § 601, and notice to law enforcement officials in a case of abandonment by a parent, § 602(a) (11), to a plan of social services for the child and his family, § 602(a) (13)-(15), and consideration of a child’s “income and resources”, § 602(a)(8). Some of these apply quite as well to the unborn as to the born child. Some are family-oriented, with little or no bearing on eligibility. A few provisions fit more comfortably with the assumptions of the opponents, but not to the exclusion of the rationale urged by proponents. If there is a net result favoring those opposing inclusion of the unborn, it is at best a small one, deriving from a few minor provisions.

      . Appellees raised an equal protection challenge to New Hampshire’s practice of excluding the unborn, but it was not reached in light of the district court’s decision that the practice violates the Supremacy Clause. See 369 F.Supp. at 206, 215.

      . The Supreme Court has expressly disapproved the HEW “policy which permitted States to vary eligibility requirements from the federal standards without express or clearly implied congressional authorization.” Carleson v. Remillard, 406 U.S. 598, 600-601, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352 (1972), citing Townsend v. Swank, supra, 404 U.S. at 286, 92 S.Ct. 502.

      . There is no contradiction between this conclusion and our earlier reliance upon HEW interpretations in determining eligibility ; the inference from HEW practice is the same in both areas, but the standard of review is different here, where congressional intentions must be “clearly evidenced”. See Alcala v. Burns, supra; Doe v. Lukhard, supra, 363 F.Supp. at 828-829.

      . We speak here of New Hampshire’s practice of providing retroactive AFDC benefits after birth, and not of the state’s responsibilities under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. The provisions of Title XIX aid the states in extending medical assistance, including pre-na-tal care, to individuals who otherwise qualify for categorical assistance, including AFDC. Thus New Hampshire extends medical assistance to pregnant mothers who qualify for AFDC benefits because they have other children, but does not extend such benefits to pregnant mothers with no other children. Because these Medicaid provisions utilize whatever is the prevailing definition of AFDC eligibility and extend pre-natal assist-anee by that standard rather than by virtue of a recipient’s expectancy, New Hampshire’s compliance with such provisions cannot be said to concede the eligibility of the unborn under the AFDC program.