author: MARKEY, Chief Judge:

text:
    CAROLINA ENVIRONMENTAL STUDY GROUP, Petitioner, v. The UNITED STATES of America and the United States Atomic Energy Commission, Respondents, Duke Power Company, Intervenor.
    No. 73-1869.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 31, 1974.
    Decided Jan. 21, 1975.

      George S. Daly, Jr., Charlotte, N. C., and Norman B. Smith, Greensboro, N. C., were on the brief for petitioner.
    Marcus A. Rowden, Gen. Counsel, Raymond M. Zimmet, Asst, to Sol., Joseph Di Stef ano, Atty., Atomic Energy Commission, Wallace H. Johnson, Asst. Atty. Gen., Dept, of Justice, Edmund B. Clark and Peter R. Steinland, Attys., Dept, of Justice, were on the brief for respondents.
    William H. Grigg, Charlotte, N. C., W. L. Porter, Louisville, Ky., Troy B. Conner, Jr., Joseph B. Knotts, Jr., and J. Michael McGarry, III, Chevy Chase, Md., were on the brief for intervenor.
    Before ROBB and WILKEY, Circuit Judges, and MARKEY, Chief Judge, of the United States Court of Customs and Patent Appeals.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   MARKEY, Chief Judge:

This is an appeal under 42 U.S.C. § 2239(b) and 28 U.S.C. § 2342 from a decision of the Atomic Safety & Licensing Appeal Board [Appeal Board] of the Atomic Energy Commission [A.E.C.] which resulted-in a final order granting Duke Power Company [Duke] a construction license to build two nuclear reactors for generation of electricity. We affirm.

The two nuclear reactors are of the “pressurized water” type and are to be located on Lake Norman, approximately 17 miles from Charlotte, North Carolina.

Duke’s construction application was filed with the A.E.C. in 1970. A public notice of hearings pursuant to 10 C.F.R. 2.104 was issued. Thereafter, Carolina Environmental Study Group [Study Group] was made a party-intervenor under 10 C.F.R. 2.714. Hearings were held during 1972 and the Atomic Safety & Licensing Board [Board] issued its decision on February 21, 1973, granting the construction licenses sought by Duke. The Appeal Board’s June 13, 1973 decision upheld the Board’s decision and became the final order of the A.E.C. (10 C.F.R. 2.770). This appeal followed.

The Study Group also filed an action in the District Court for the Western District of North Carolina, seeking to overturn the Appeal Board’s decision and raising essentially the contentions raised here. On the A.E.C.’s motion to dismiss for lack of jurisdiction, countered by the Study Group’s allegation of jurisdiction under the Administrative Procedure Act (5 U.S.C. § 703), District Judge McMillan stayed the action pending our decision on this appeal.

THE ISSUES

The Study Group contends that the A.E.C. failed to comply with sections 102(2)(C)(i) and 102(2)(C)(iii) of the National Environmental Policy Act [NEPA] because its Environmental Impact Statement reflects inadequate consideration of the impact of a breach-of-reactor containment accident and the alternatives of no power, other power sources, or the possibility of a decreasing demand for power. Appellant requests that we declare the final order of the A.E.C. illegal and order Duke’s construction license stricken.

The Study Group further prays that we remand this action and order proceedings in the District Court in North Carolina because the A.E.C. cannot accord them “the due process and unbiased consideration to which they are entitled.” Appellant alleges that the question of whether construction permits should issue was never truly open because of the A.E.C.’s “bias” in favor ■ of commercial nuclear power development. Appellant points to the A.E.C.’s failure to consider in this and other cases certain environmental factors, its deferral of such consideration until the licensing stage herein, and its allowance of construction exemptions.

OPINION

(I) ENVIRONMENTAL IMPACT CONT SIDERATION

Section 102(2)(C)(i) of NEPA requires a “detailed statement” on “the environmental impact of the proposed action.” That language requires description of reasonably foreseeable effects. A “rule of reason” is used to ascertain those effects anticipated. Natural Resources Defense Council v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972). The “detailed statement” is required as a basis for intelligent balancing of the effect on the environment with the economic and technical factors. Calvert Cliffs Coordinating Committee v. A.E.C., 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). A “finely tuned” balance is envisioned.

The A.E.C. has classified hypothetical reactor accidents from Class 1 (trivial incidents with high occurrence probability) to Class 9 (ultimate severity with occurrence highly unlikely). The Class 9 accident, known as a breach-of-reactor containment accident, involves concurrent rupture of the three-foot thick concrete containment vessel and the several inches of steel surrounding the reactor core, resulting in the exposure of the radioactive core to the atmosphere. Such an accident would necessarily involve simultaneous malfunction of all safety systems.

The A.E.C.’s Final Environmental Statement, section V, page 3, included this comment:

The postulated occurrences in Class 9 involve sequences of successive failures more severe than those required to be considered in the design bases of protective systems and engineered safety features'. The consequences could be severe. However, the probability of their occurrence is so small that their environmental risk is extremely low. Defense in depth (multiple physical barriers), quality assurance for design, manufacture and operation, continued surveillance and testing, and conservative design are all applied to provide and maintain the required high degree of assurance that potential accidents in this class are, and will remain, sufficiently small in probability that the environmental risk is extremely low.

What the A.E.C. means by the small probability of such accidents is seen in its report that

some experts held that numerical estimates of a quantity [of major accidents] so vague and uncertain as the likelihood of occurrence of major reactor accidents have no meaning. They declined to express their feeling about this probability in numbers. Others, though admitting similar uncertainty, nevertheless ventured to express their opinions in numerical terms. Estimations so expressed of the probability of reactor accidents having major effects on the public ranged from a chance of one on 100,000 to one in a billion per year for each large reactor. However, whether numerically expressed or not, there' was no disagreement with the opinion that the probability of major reactor accidents is exceedingly low.

Focusing on the degree of possible damage resulting from the occurrence of a Class 9 accident, the Study Group argues that the risk is very real, thus tending to equate damage with risk. At the same time, the Study Group accuses the A.E.C. of equating probability with risk. We agree with neither equation.

The A.E.C. is required by NEPA to set forth the factors involved, to the end that the ultimate decision on a proposed course of action shall be enlightened by prior recognition of its impact on the quality of human environment. Viewing the record as a whole, we cannot say that the A.E.C.’s general consideration of the probabilities and severity of a Class 9 accident amounts to a failure to provide the required detailed statement of its environmental impact. That the probability of a Class 9 accident is remote and that its consequences would be catastrophic are undisputed. Neither the A.E.C.’s finding of low probability, nor its methodology or basis for that finding, are challenged here by appellant.

Because each statement on the environmental impact of a proposed action involves educated predictions rather than certainties, it is entirely proper, and necessary, to consider the probabilities as well as the consequences of certain occurrences in ascertaining their environmental impact. There is a point at! which the probability of an occurrence ! may be so low as to render it almost ¡ totally unworthy of consideration. Nei- / ther we, nor the A.E.C. on this record, would treat lightly the horrible consequences of a Class 9 accident. Recognition of the minimal probability of such an event is not equatable with nonrecognition of its consequences. We find nothing in the instant record which would indicate that the A.E.C. findings regarding Class 9 accidents are clearly erroneous or that the A.E.C.’s compliance with NEPA Section 102(2)(C)(i) in this case was inadequate.

(II) ALTERNATIVES ,

The Study Group’s challenge under NEPA Section 102(2)(C)(iii) is bottomed on the prejmise that “[i]n the Detailed Statement, an analytically unsound conclusion of an urgent need for power led to short shrift in consideration of alternative means of producing power and no consideration of not producing power.” Duke predicted the area’s future need for electrical generating capacity by extrapolating its historic increase in demand for electricity. Although the Study Group takes issue with those predictions, Duke’s prior forecasts of future demand have been accurate within llA% for one year predictions and within 5% for 5 year forecasts. The Study Group has not persuaded us that Duke’s predictions or its prediction methodology was irrational.

Notwithstanding Duke’s past success with future demand predictions, the Study Group argues that the environmental statement should have discussed at greater length the alternatives of no power, less power, and other means for power generation. Discussing the scope of NEPA’s requirement to consider alternatives for proposed action, this court stated in Calvert Cliffs, supra, that

NEPA requires that an agency must— to the fullest extent possible under its other statutory obligations — consider alternatives to its actions which would reduce environmental damage. That principle establishes that consideration of environmental matters must be more than a pro forma ritual. Clearly, it is pointless to “consider” environmental costs without also seriously considering action to avoid them. (Emphasis in original.)

and further in Natural Resources Defense Council v. Morton, supra, that:

A sound construction of NEPA * * requires a presentation of the environmental risks incident to reasonable alternative courses of action. The agency may limit its discussion of environmental impact to a brief statement, when that is the case, that the alternative course involves no effect on the environment, or • that their effect, briefly described, is simply not significant. A rule of reason is implicit in this aspect of the law. (Emphasis added.)

The Study Group argues that because the nuclear plant is to operate for several decades, alternative power sources which may be developed, such as oil shale, geothermal energy, and solar energy, should have been considered. That contention presupposes future developments which are both speculative developments which are both speculative and remote. Natural Resources Defense Council v. Morton, supra, is dispositive:

We do not suppose Congress intended an agency to devote itself to extended discussion of the environmental impact of alternatives so remote from reality as to depend on, say, the repeal of the antiturst laws.
In the last analysis, the requirement as to alternatives is subject to a construction of reasonableness, and we' say this with full awareness that this approach necessarily has both strengths and weaknesses. Where the environmental aspects of alternatives are readily identifiable by the agency, it is reasonable to state them — for ready reference by those concerned with the consequences of the decision and its alternatives. As already noted, the agency may make references to studies already made by other agencies (including impact statements) or appearing in responsible journals.
There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of “alternatives” put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities * * *.

The requirement is not to explore every extreme possibility which might be conjectured. Rather, we view NEPA’s requirement as one of considering alternatives as they exist and are likely to exist.

The A.E.C.’s environmental statement considered the alternatives of no power, purchased power, and hydroelectric generation and concluded each to be impractical. Of the fossil fuels considered, use of coal was considered most feasible. A detailed discussion of the environmental impact of the use of coal vis-a-vis the use of nuclear reactors was included in the environmental statement. Much of the argument concerning the A.E.C.’s conclusion that in this instance nuclear power is economically superior to coal revolves about the numerical value assigned the “station factor.” The “station factor” is a measure of time during which the generating plant is shut down. The Study Group’s calculations lead to a figure lower than that reached by Duke and the A.E.C. Accepting the “station factor” most favorable to the Study Group, we find that nuclear generation of power would still result in a substantial yearly saving over coal-generated electricity.

We conclude that the A.E.C.’s consideration of alternatives to. the proposed action is within the scope of the reasonableness test set forth in Natural Resources Defense Council v. Morton, supra.

(Ill) DUE PROCESS

The Study Group maintains that because the A.E.C. Act places responsibility for the encouragement of peaceful uses of atomic energy upon the A.E.C., the agency has displayed a promotional bias favoring use of atomic energy over its reasonable regulation as glossed by NEPA. The possibility of such a conflict of interests is obvious. However, the record does not indicate that such a conflict occurred or blinded the A.E.C.’s judgment herein. Nor does the record suggest a failure to, give the Study Group “the due process and unbiased consideration to which they are entitled.”

Agencies are required to consider in good faith, and to objectively evaluate, arguments presented to them; agency officials, however, need not be subjectively impartial. Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972). The challenged actions of the A.E.C. herein were neither arbitrary nor capricious and would appear to be good-faith attempts to hear all interested parties and t,o fairly respond to all arguments.

Opportunity was afforded other interested agencies and groups to present their views in order to obtain a full and accurate disclosure of information required by NEPA. Some seventeen federal, state, and local agencies submitted comments on the Draft Environmental Statement, the texts of the comments appearing as appendices to the Final Environmental Statement. Earlier, the Study Group was afforded opportunity, during hearings before the Board, to present its views and evidence relating to the contested issues.

The three specific subsidiary actions of the A.E.C. (failure to consider certain factors; deferral of considerations until the licensing stage; grant of construction exemptions) are not seen by us as illustrative of or as tainted by agency bias. The Study Group was not denied the opportunity to be heard, either directly or through the rule-making procedure by which the action was taken, in relation to any of these subsidiary actions. We find nothing in the record to suggest that the Study Group was denied the “fair play” that due process requires. Appellant’s request for remand is accordingly denied.

For all of the foregoing reasons, the decision of the A.E.C. is affirmed.

Affirmed.

      . Each unit is scheduled to have a 3,411 megawatt thermal capacity corresponding to an electrical output of 1,180 megawatts.

      . 42 U.S.C. § 4332
      The Congress authorizes and directs that, to the fullest extent possible: ... (2) all agencies of the Federal Government shall—
      * * ' * * jfs *
      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the guality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action, * * *

      . A.E.C. report WASH-740 (1957), “Theoretical Possibilities & Con sequences of Major Accidents in Large Nuclear Power Plants,” page viii.

      . A.E.C. report WASH-740, pg. viii, estimated that a Class 9 accident in a reactor approximately one-seventh the size of one of Duke’s reactors would result in up to 3,400 deaths, 43,000 injuries, and $7 billion property damage.


source: Caselaw Access Project

author: BAZELON, Chief Judge:

license: Public Domain

text:
    RETAIL CLERKS INTERNATIONAL ASSOCIATION LOCAL NO. 455, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. RETAIL CLERKS UNION, LOCAL NO. 560 RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 74-1208, 74-1209.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 9, 1975.
    Decided Feb. 4, 1975.

      Carl L. Taylor, Washington, D. C., with whom Irwin H. Soeoloff, Washington, D. C., was on the brief, for petitioners. George R. Murphy, Washington, D. C., also entered an appearance for petitioners.
    Judith P. Wilkenfeld, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John D. Burgoyne, Atty., N. L. R. B., were on the brief, for respondent.
    Before BAZELON, Chief Judge, ROBB, Circuit Judge, and PARKER, District Judge for the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   BAZELON, Chief Judge:

Since 1963 Local 455 of the Retail Clerks Union and the grocery stores of the Kroger Company in southern Texas have agreed to collective bargaining contracts which include a so-called “additional store clause.” Under such clauses the employer agrees to recognize the Union as the bargaining agent for the employees in any stores added to the originally certified bargaining unit after the making of the contract. In Local 455’s case, the original unit consists of all Kroger stores in the Company’s “Houston Division” which are in the state of Texas. In early 1972, Kroger for administrative reasons transferred two stores from its non-unionized “Dallas Division” into the “Houston Division.” On March 22, 1972, the Retail Clerks requested recognition from the Company as the bargaining agent of the employees of those stores on the basis of the “additional store clause” and also proffered concededly valid union authorization cards from a majority of the employees in those two stores. The Company refused to recognize the Union first stating that it did not believe the Union had a majority in the two stores and later arguing that the two stores should be a separate bargaining unit outside of the multi-store “Houston Division” unit. On March 30, 1972 the Company filed representation petitions before the Labor Board seeking a Board-conducted election to determine majority status in the two stores. As is often the case in labor disputes of this ilk, the' Union quickly followed with a § 8(a)(5) charge, a charge which in the Board’s view takes precedence over the election petition and indeed caused the Regional Director to dismiss the election petition.

A similar chain of events occurred in Pocatello,’ Idaho. During 1971 contract negotiations with the Pocatello Multiemployers Bargaining Association, Local 560 of the Retail Clerks Union was able to obtain agreement to an “additional store clause.” A few weeks before the Association and Union agreed to a new contract, Smith’s Management Corporation, an Association member, purchased an independent grocery — Frazier’s Market — and authorized the Association to represent it in bargaining with respect to Frazier’s. Smith’s did sign the agreed-to contract, but only after striking the words “and future” from the “additional store clause” mentioned above and here set out in the margin. After Board proceedings, described in •more detail below, on June 29, 1972 the Board ordered Smith’s to sign the negotiated contract.

On March 28, 1972 Smith’s opened Mark-It, a new Pocatello store. On July 17 the Union requested recognition in Mark-It on the basis of the “additional store clause” and also proffered concededly valid union authorization cards from a majority of the new store’s employees. Smith’s refused to recognize the Union and filed a petition for a Board-conducted election. The Union, of course, responded with a § 8(a)(5) charge and the case moved on to the Board.

In both the Kroger case and the Mark-It case, the Board found that the employer was under no obligation to recognize and bargain with the Union and thus did not violate § 8(a)(5). The Board’s reasoning was that the “additional store clauses” involved in the two cases did not manifest a complete “waiver” of the employer’s right to petition the Board for an election. This right is guaranteed by the NLRA and is buttressed by Labor Board policy on recognition on the basis of authorization cards. The latest incarnation of this shifting policy came in Linden Lumber Div., Summer & Co., 190 N.L.R.B. 718 (1971), rev’d sub nom. Local 413, Truck

Drivers v. NLRB, 159 U.S.App.D.C. 228, 487 F.2d 1099 (1973), reinstated sub nom. Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974). There the Board held that the employer had no obligation to recognize a union on the basis of authorization cards unless there is an agreement between the parties on an alternative means for resolving the question of recognition. In the Kroger case, the Board held that Linden Lumber’s language on voluntary agreement referred only to agreement after the relevant employees had been determined and not to agreement as to future employees whose identity is not yet known. The Board thought it proper to use this authorization card policy to interpret the “additional store clause” in the absence of the above-mentioned complete “waiver” of the employer’s rights under that policy.

In two cases decided after Linden Lumber but before the instant cases, the Board held that “additional store clauses” were a legal subject of bargaining. Smith’s Management Corporation involved the previously mentioned Smith’s Frazier’s Market. There the Board held that the employer could not refuse to sign a collective bargaining agreement which contained an “additional store clause.” In White Front Stores the Board held, as one ground for decision, that a union did not violate § 8(b)(2) when it applied economic pressure on an employer to obtain recognition when the employer had agreed to an additional store clause and the union presented valid authorization cards from a majority of the relevant employees. In both these cases the Board made its holding contingent upon a sufficient presentment of majority support for the union such that the employer would not violate § 8(a)(2) by recognizing the union.

The Board in the Kroger case, and by implication in the Mark-It case, purported to reaffirm Smith and White Front Stores. However, at a minimum the Board must admit that it has altered the holdings of those two cases. In the instant cases the Board not only requires a sufficient presentment of majority support for the union to avoid § 8(a)(2) problems but further requires specific evidence that the employer has “waived” resort to Board election procedures. We would be inclined to affirm even this sub silentio modification if we were convinced that the Board’s “waiver” argument is sound. However, we think it is not and on that ground reverse the Board’s determination in these two cases.

The Board’s “waiver” argument in couched in terms of contract interpretation. Though we recognize that it is interpretation with an eye to existing labor policy, a certainly permissible practice, it is interpretation nevertheless. The Board’s argument to the extent it relies on contract interpretation alone, and not enunciation of policy, is entitled to no particular deference. The problem with the Board’s suggested interpretation is illumined by the following question: if the “additional store clauses” involved in these cases do not constitute a “waiver” of the employer’s right to a Board-conducted election, what do they mean? The Board’s opinion in the Kroger case suggests that an “additional store clause” would be permissible if it specifically described a recognition procedure other than a Board ordered election. But this simply restates the question. What ambiguity is there in the present clauses which suggests that present clauses do not specify that some, indeed, any method other than a Board ordered election of recognition is agreeable to the parties?

The answer to the question is that the “additional store clause” can have no purpose other than to waive the employer’s right to a Board ordered election. If the clause is “interpreted” to permit the employer to petition for a Board election, then the clause means nothing to the union. The union and the employer have under the NLRA a right to seek an election. They do not need a contract clause to grant them . that right. It follows that if the clause is interpreted to permit the employer to petition for an election, the clause is a nullity since it permits the employer to do what he could do without a contract. We conclude that the “additional store clauses” involved here can only be interpreted to mean that the employer waives its right to a Board ordered election. The specific non-election recognition procedures which the clauses permit is a matter for the parties to consider in the first instance and we express no opinion whether authorization cards or other procedures may be utilized or objected to consistent with the clauses in issue here.

A careful reading of the Board’s opinion in the Kroger case suggests that the true purpose of the ruling was not to interpret the contract but to declare that “additional store clauses” are inconsistent with authorization card policy and, therefore, illegal. Both in its opinion and at oral argument, the Board intimates that authorization cards (and perhaps other non-election recognition procedures) are insufficiently reliable and inherently coercive of the § 7 rights of employees and that any employer agreement in advance to recognize on the basis of such procedures is not permissible. The Supreme Court in Linden Lumber clearly avoided this issue and this intimated position would have to confront the legislative history which indicates that Congress intended to permit non-election recognition procedures. But we are not prepared to state that this position is so unreasonable that the Board should be ordered instanter to find Kroger and Smith’s in violation of § 8(a)(5). Rather we decide to remand the cause to the Board. If it wishes to overtly advance the position we suggest above, it should over-rule White Front Stores and Smith’s Management Corporation and explicate why national labor policy requires that “additional store clauses” be held illegal. But the Board may not attempt, as it has done here, to accomplish this result through a process of statutory construction which purports to uphold the legality of “additional store clauses” while silently nullifying them. We, therefore, reverse the Board’s decisions in these two cases and remand for proceedings consistent with this opinion.

So ordered.

      . The Kroger contract read:
      The Union shall be the sole and exclusive bargaining agent for all employees employed by the Houston Division of Kroger Food Stores in stores operating in the State of Texas, excluding all persons employed in the meat departments.

      . See National Labor Relations Act § 8(a)(5), 29 U.S.C. § 158(a)(5) (1970) which proscribes an employer’s illegal refusal to bargain with a union. Before Bernel Foam Prods. Co., 146 N.L.R.B. 1277 (1964), the union was required to choose between an election petition and a § 8(a)(5) charge, but Bernel Foam overruled that practice.

      . The contract read:
      The employer hereby recognizes the . Union ... as the sole and exclusive bargaining agent, for all employees of the employer employed in the employer’s present and future retail food stores situated within the area of Pocatello, Idaho and immediate vicinity except: [three listed exceptions].
      There is no dispute that the additional stores involved in this suit are covered by these contract clauses.

      . Retail Clerks representation of Frazier’s Market employees is not in dispute in this case.

      . Houston Div., Kroger Co., 208 N.L.R.B. No. 122 (1974); Smith’s Management Corp. d/b/a Mark-It Foods, 208 N.L.R.B. No. 123 (1974). In these opinions the Board conceded the validity of the authorization cards proffered by the two union locals.
      A predicate for the Board’s decision which is not challenged by either party is that the additional stores “may constitute a separate appropriate [bargaining] unit”, Melbet Jewelry Co., 180 N.L.R.B. 107, 110 (1969). The implicit holding is that neither the Melbet Jewelry holding nor the holdings in the instant cases are applicable if new employees, covered by an “additional store clause” or a clause similar in nature are added or “accreted”, as the Board calls it, to an existing unit in a form which would not be under any circumstances a separate appropriate unit. The object of the Board’s concern is apparently the case where the employer simply hires additional employees for an existing store or other bargaining unit.

      . § 9(c)(1)(B), 29 U.S.C. § 159(c)(1)(B) (1970).

      . See Mike Vela, Sr. d/b/a R & M Electric Supply Co., 200 N.L.R.B. No. 59 (1972), applying the Linden Lumber decision.

      . In so holding, the Board interpreted one of the more ambiguous old chestnuts in the authorization card field, Snow & Sons, 134 N.L. R.B. 709 (1961), enforced, 308 F.2d 687 (9th Cir. 1962), as permitting only such post hoc agreements.

      . 197 N.L.R.B. 1156 (1972).

      . Local 870, Retail Clerks, 192 N.L.R.B. 240 (1971).

      . 29 U.S.C. § 158(b)(2) (1970).

      . This is the principle of Melbet Jewelry Co., 180 N.L.R.B. 107 (1969) which has been often approved. See Sperry Systems Mgmt. Div. v. NLRB, 492 F.2d 63 (2d Cir.), cert. denied sub nom. Local 445, Electrical Workers v. Sperry Systems Mgmt. Div., 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974); Boire v. International Bhd. of Teamsters, 479 F.2d 778, 795-97 (5th Cir. 1973); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970); Local 919, Retail Clerks v. NLRB, 135 U.S.App.D.C. 103, 416 F.2d 1118 (1969); NLRB v. Sunset House, 415 F.2d 545 (9th Cir. 1969); Spartans Industries v. NLRB, 406 F.2d 1002 (5th Cir. 1969).

      . See NLRB v. Universal Services, Inc., 467 F.2d 579, 584 n. 5 (9th Cir. 1972); L. Jaffe, Judicial Control of Administrative Action 549-50 (1965).

      . Houston Div., Kroger Co., 208 N.L.R.B. No. 122 (1974), Joint App. at 39 (Members Fanning & Jenkins, dissenting): “If the majority’s interpretation of these clauses means that the employer can voluntarily recognize the Union or demand an election, then such an interpretation renders these clauses totally meaningless and without effect, for the Unions need no contract authorization to establish their representation status in a Board-ordered election.”
      While the Board does not raise the point, it could be argued that these clauses are saved from complete oblivion by an interpretation which gives the Union a right to require the
        employer to petition for an election, a right which the Unions do not have under present authorization card practice founded in Linden Lumber. However, nothing in the record indicates that Linden Lumber was considered by the parties in formulating the contract clauses in issue here and the employers who certainly would make this contention if it had been contemplated have not suggested the point either before the Board or on appeal. Furthermore, as noted the Board did not rely on this point. We thus do not think the clause can be so interpreted.

      . It is a settled rule of contract interpretation that contract language should not be interpreted to render the contract promise illusory or meaningless. See Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1131 (3d Cir. 1969); Cordovan Assoc., Inc. v. Dayton Rubber Co., 290 F.2d 858, 861 (6th Cir. 1961); Gray v. Travelers’ Indemnity Co., 280 F.2d 549, 552 (9th Cir. 1960); J. C. Millet Co. v. Distillers Distributing Corp., 258 F.2d 139, 142 (9th Cir. 1958). The interpretation suggested by the Board would clearly make the employer’s promise illusory since it would make compliance with the clause dependent on the “mere will or inclination of the promisor.” Eastern Transportation Co. v. Blue Ridge Coal Corp., 159 F.2d 642, 643 (2d Cir. 1947). Illusory promises are, of course, not enforceable. The Board’s view of the “additional store clause” thus renders it legally unenforceable. It is certainly true that in interpreting contracts, the interpreter should avoid that view which will violate the law. See Perry Coal Co. v. NLRB, 284 F.2d 910, 914 (7th Cir. 1960), mod. denied, 291 F.2d 126, cert. denied, 366 U.S. 949, 81 S.Ct. 1903, 6 L.Ed.2d 1242 (1961). However, in this case there is neither an ambiguity sufficient to bring into play this rule of construction nor is there a determination by the Board that the Unions’ view which we accept here is contrary to public policy. It follows from this discussion that the “additional store clause” was a “clear and unmistakeable” waiver of the employers’ rights to a Board conducted election. See Office and Professional Employees Union v. NLRB, 136 U.S.App.D.C. 12, 419 F.2d 314, 321 (1969); International Union, Auto Workers v. NLRB, 127 U.S.App.D.C. 97, 381 F.2d 265, 267 (D.C.Cir.), cert. denied, 389 U.S. 857, 88 S.Ct. 82, 19 L.Ed.2d 122 (1967). Here, as noted, we have more than “contract silence”, International Tel. & Tel. v. NLRB, 382 F.2d 366, 373 (3d Cir.), cert. denied, 389 U.S. 1039, 88 S.Ct. 777, 19 L.Ed.2d 829 (1967); NLRB v. Perkins Machine Co., 326 F.2d 488, 489 (1st Cir. 1964); rather we have a specific contract clause which is rendered illusory unless deemed a “waiver.”
      Counsel for the Board at oral argument suggested that the “additional store clause” was really an agreement as to the appropriate bargaining unit. However, it is absolutely clear that the Board and the Board alone has the power under the Act to designate appropriate bargaining units. NLRA § 9(b), 29 U.S.C. § 159(b) (1970). While the Board may defer to arbitration on the issue of accretion to an existing unit, both the Board and the courts have required that any award be consistent with Board bargaining unit policy. See Boire v. International Bhd. of Teamsters, 479 F.2d 778, 794-95 (5th Cir. 1973) and authorities cited. In any event, an agreement on the issue of accretion (and hence on the issue of the appropriate unit) is really an agreement by the employer to recognize the union without an election and thus, to be nonillusory, must require the employer to recognize outside of the Board election processes.

      . In this case neither the Board nor the employer voiced any concern with recognition other than through a Board conducted election. We thus limit our decision to a holding that the “additional store clause” does not permit resort to a Board conducted election.

      . For a discussion of the dangers to § 7 rights involved in the use of authorization cards, see Note, Union Authorization Cards: Linden’s Peacemaking Potential, 83 Yale L.J. 1689, 1698-1707 (1974) and authorities collected. The most obvious danger is that described by counsel for the Board in response to a question from Judge Robb: with cards, the potential union member hears only one side of the story while in an election he or she will hear two or more sides.

      . Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 95 S.Ct. 429, 434 n. 9, 42 L.Ed.2d 465 (1974).

      . See Local 413, Truck Drivers v. NLRB, 159 U.S.App.D.C. 228, 487 F.2d 1099, 1106-07, (1973), rev’d sub nom. Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 95 S.Ct. 429, 435, 42 L.Ed.2d 465 (1974) (Stewart, J. dissenting).

      . We further note that the Board’s interpretation process in this case shows insufficient regard for the integrity of collective bargaining agreements, a most basic policy of the national labor law. See § 301 of the NLRA, 29 U.S.C. § 185(a) (1970); S.Rep.No.105, 80th Cong., 1st Sess. 15-18 (1947); cf. Danielson v. Painters Dist. Council No. 20, 305 F.Supp. 1108, 1115 (S.D.N.Y.1969).


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Gregorio JARAMILLO, Appellee. UNITED STATES of America, Appellant, v. Michael Eugene STURDEVANT, Appellee.
    Nos. 74-1651, 74-1652.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1974.
    Decided Jan. 31, 1975.
    Kenneth E. Tilsen, St. Paul, Minn, and Robert C. Heeney, Rockville, Md., for appellees.
    Edward R. Korman, Atty., Dept, of Justice, Washington, D. C., for appellant.
    Before LAY and HEANEY, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

Appellees Gregorio Jaramillo and Michael Eugene Sturdevant were charged, by indictment in the United States District Court for the District of South Dakota, with violating and attempting to violate 18 U.S.C. § 231(a)(3). The charges arose out of the occupation of Wounded Knee by members of the American Indian Movement. The case was transferred to the District of Nebraska pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. Trial was to the court. After both sides had rested, the trial judge, by order denominated “JUDGMENT OF ACQUITTAL,” found the appellees not guilty of the offense charged and released them from custody. The government appeals. We hold that we are without jurisdiction to hear the cause and dismiss the appeal.

The power of the government to appeal from a judgment in favor of the defendant in a criminal case is conferred by statute. United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892). Controlling in this case is 18 U.S.C. § 3731, as amended by the Omnibus Crime Control Act § 14(a), Pub.L. No. 91-644, 84 Stat. 1890 (1971). It reads in relevant part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
* sfc * * H< 5$C '
The provisions of this section shall be liberally construed to effectuate its purposes. * * *

The government attempts to fit this case to the statutory language by arguing: (1) the order of the District Court was in fact a dismissal and hence appealable; and (2) the statute allows government appeals in all cases where the appeal does - not offend the double jeopardy clause of the Fifth Amendment and there is no offense here.

I.

The District Court’s final disposition of the matter on the merits looked beyond the face of the record and was bottomed on facts adduced at trial. It was thus properly characterized as an acquittal. United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970).

The charging statute, 18 U.S.C. § 231(a)(3), requires, as an element of the government’s proof, that the law enforcement officer affected by the appellees’ acts be “lawfully engaged in the lawful performance of his official duties incident to and during the commission of [the] civil disorder.” As part of its defense in chief, the appellees introduced evidence of the military involvement in the Wounded Knee operation. The purpose of this evidence was to show that the law enforcement officers were not “lawfully engaged in the lawful performance” of their official duties, but were acting in violation of 18 U.S.C. § 1385, the posse comitatus statute. It reads:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. * * *

The government concedes that the issue of lawfulness was determined by the District Court as the fact-finder but argues that the determination was in reality a dismissal under Rule 12 because it was based on a defense in law to the prosecution’s evidence. It also argues that the District Court erred in entering this “dismissal” on § 1385 grounds since even if the federal officers violated the section, the violation did not render their activities unlawful.

We find no merit to the government’s assertion that the determination was a dismissal. The trial judge decided rightly or wrongly after both parties rested that “lawful engagement” and “lawful performance” were essential elements of the government’s case and had to be proved by it. It looked beyond the face of the record, considered all of the evidence adduced at trial and decided that the government had failed to meet its burden. This conclusion went to the very heart of the appellees’ guilt or innocence, and was properly characterized as an acquittal, because the trial judge determined, on the basis of the evidence developed at trial, that the proof was insufficient to support beyond a reasonable doubt the allegations of the indictment. See United States v. Sisson, supra 399 U.S. at 290 n. 19, 90 S.Ct. 2117; United States v. Jorn, 400 U.S. 470, 478 n. 7, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Federal Rules of Criminal Procedure 29(a). The statute does not provide for a government appeal from an acquittal. United States v. Brown, 481 F.2d 1035, 1039 (8th Cir. 1973) (dictum).

II..

Even if we accept for purposes of this appeal the government’s contention that the statute permits an appeal in those criminal cases in which the appeal would not be barred by the double jeopardy provision of the Constitution, we cannot accept its argument that the Constitution would not be offended by this appeal from an acquittal.

The government’s constitutional argument confronts the decisions of the Supreme Court that have held since Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904), that the double jeopardy clause prohibits a government appeal from an acquittal in a criminal case. In the words of the Court in Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (Per Curiam):

The petitioners were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject matter. * * * It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless “[the] verdict of acquittal was final, and could not be reviewed * * * without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution.” * * *

Id. at 143, 82 S.Ct. at 672 (Citations omitted.).

The government attempts to distinguish Kepner and Fong Foo by pointing out that a reversal on the merits in them would have resulted in a new trial, whereas a new trial would not be necessary here. It argues that the central policy of the double jeopardy clause is the protection it affords the individual from the hazards of a second trial. See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). If a second trial is truly unnecessary, it asserts that the public’s interest in the even application of the criminal law and the conviction of the guilty outweighs any harm to the individual. Hence in such situations, the argument goes, the double jeopardy clause should not prohibit appellate jurisdiction.

The government conceded in oral argument, however, that this limiting of the earlier cases is to no avail unless the dictum in United States v. Sisson, supra, is disregarded. There, a reversal on the merits would not have resulted in a second trial because the government was appealing from an order of the trial judge setting aside the jury verdict of guilty. Yet, after finding that the trial judge had acquitted the defendant, and then ruling that the appeal was prohibited by statute, the Court said:

* * * Quite apart from the statute, it is, of course, well settled that an acquittal can “not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. $ * *11 $ * *

Id. 399 U.S. at 289, 90 S.Ct. at 2129 (Citations omitted.).

We believe that the dictum has constitutional significance and that Sisson at least stands for the proposition that the government cannot appeal from a judgment of acquittal under the circumstances of this case. We are persuaded to this view by the long acceptance of Kepner v. United States, supra, and the discussion of a unanimous Court in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

In Price, the defendant was charged in a state court with murder and convicted of the lesser included offense of voluntary manslaughter. On appeal to the Court of Appeals of Georgia, the conviction was reversed. In the second trial, the state again charged the defendant with murder, rejecting his plea of double jeopardy. The defendant was again convicted of voluntary manslaughter and appealed to the Supreme Court. That Court reversed the conviction, holding that the acquittal of murder in the first trial was final and could not be retried. It said:

* * * [T]he holding in the Kepner case — that there could be no appeal from an acquittal because such a verdiet ended an accused’s jeopardy — was applicable.
* * * [T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal * * *

Id. at 329, 90 S.Ct. at 1761.

This unequivocal statement that the double jeopardy clause makes final a judgment of acquittal even after appeal by the defendant accords the “dictum” in Sisson the weight of an alternative holding.

In the light of these decisions of the Supreme Court, we fail to see how we can accept jurisdiction of this case consistent with the double jeopardy clause. Moreover, we believe there are good policy reasons for dismissing the government’s appeal.

The relief sought necessarily requires that we remand the case to the trial court for further findings on the basis of the record previously developed, for the judge below expressly declined to rule upon all elements of the offense charged. This would subject the appellees to the same hazards incurred in a second trial that are clearly prohibited by the double jeopardy clause. The remand would provide the government with another chance to convict the appellees by exhaustively reviewing the record, marshaling the facts and rearguing the case in a manner not previously presented. The appellees would be put to further expense, ordeal and anxiety. Moreover, while it is probable that the parties would be before the same trial judge on remand, there is no way to guarantee that result. Thus, a new trial may well be required. Even if the same trial judge were available on remand, there is nothing to insure that the passage of time and the resultant dimming of the memory will not adversely affect the rights of the appellees. Finally, a rule that would permit a new trial in every judge-tried criminal case where the trial court specifically applied an erroneous rule of law in deciding to acquit, would discourage the court trial of criminal cases. Such a rule would permit court-acquitted defendants to be tried a second time while sparing jury-acquitted defendants from the same ordeal even ■ though the court’s instructions to the jury were clearly wrong. See Green v. United States, supra. For these reasons and those previously expressed, we dismiss the appeal for lack of appellate jurisdiction.

Appeal dismissed.

      . The indictment against Gregorio Jaramillo reads:
      On or about the 9th day of March, 1973, at Wounded Knee, in the District of South Dakota, Gregorio Jaramillo did wilfully, knowingly and unlawfully commit an act to obstruct, impede and interfere with U. S. Marshals and agents of the F. B. I., and did wilfully, knowingly and unlawfully attempt to commit an act to obstruct, impede and interfere with U. S. Marshals and agents of the F. B. I., who were then engaged in the lawful performance of their official duties incident to and during the commission of a civil disorder at Wounded Knee, South Dakota, which civil disorder obstructed, delayed and adversely affected commerce and the conduct and performance of a federally protected function, in that Gregorio Jaramillo did attempt to enter the community of Wounded Knee with a firearm, ammunition, medical supplies and clothing, in violation of 18 U.S.C. § 231(a)(3).
      The indictment against Michael Eugene Sturdevant is substantially identical.

      . 18 U.S.C. § 231(a)(3) reads:
      (3) Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function—
      Shall * * * [be punished].

      . The fact that a full-blown trial had taken place is one fact that distinguishes this appeal from recently permitted government appeals. See Serfass v. United States, 492 F.2d 388 (3rd Cir. 1973), cert. granted, 416 U.S. 955, 94 S.Ct. 1967, 40 L.Ed.2d 305 (1974); United States v. Martin Linen Supply Co., 485 F.2d 1143 (5th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1412, 39 L.Ed.2d 470 (1974); United States v. Pecora, 484 F.2d 1289 (3rd Cir. 1973); United States v. Velazquez, 490 F.2d 29 (2nd Cir. 1973).

      . This factor is the most significant and distinguishes this appeal from two recently permitted government appeals. See United States v. Brown, 481 F.2d 1035 (8th Cir. 1973); United States v. Clay, 481 F.2d 133 (7th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 247 (1973).

      . The trial court’s thought processes are revealed in its opinion. It stated:
      * * * If there was “use” of “any part of the Army or the Air Force” to “execute the laws” and if that use pervaded the activities of the United States marshals and the Federal Bureau of Investigation agents, the marshals and the agents cannot be said to have been “lawfully engaged” in the “lawful performance” of their official duties.
      The court went on to say:
      Upon consideration of the evidence, I conclude that there is a reasonable doubt as to whether the law enforcement officers were “lawfully engaged in the lawful performance of their official duties.” Beyond a reasonable doubt the aerial reconnaissance was of no usefulness to the law enforcement officers. I cannot say, however, beyond a reasonable doubt that Colonel Warner’s advice to Department of Justice officials, including Special Agent in Charge Trimbach of the Federal Bureau of Investigation and Director Colburn of the United States Marshal Service, was not utilized by the recipients of the advice and that conduct of the operation before and during March 9 was not appreciably affected by his advice. Neither can I find beyond a reasonable doubt that military personnel who repaired and maintained the armored personnel carriers did not contribute materially to the operation being carried out by the law enforcement officers.
      It follows that the defendants must be acquitted.
      Lest anyone be misled, let it be emphasized that this court is not finding that the actions of the Federal Bureau of Investigation agents or the United States marshals were unlawful or that anyone violated 18 U.S.C. § 1385, the posse comitatus statute. The prosecution’s burden was to prove in court that the actions of those officers were lawful. It failed to carry that burden. My holding means no more than that.

      . The government’s position as to when jeopardy attaches seems to change from time to time. In a brief filed with the Supreme Court in Serfass v. United States, supra, at page 9, it states the rule to be that “a defendant has been placed in jeopardy only upon the commencement of a trial before the trier of fact.” In United States v. Jenkins, 490 F.2d 868 (2nd Cir. 1973), cert. granted, 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974), Brief for the Appellant at 10, it states the rule to be that jeopardy does not attach even after trial if a purely legal error can be isolated and corrected on appeal, at least where a retrial is not necessary for a fact already found. Its position in Jenkins is close to its position here. However, here, further fact-finding is necessary, and a new trial may be required if the original fact-finder is not available on remand. We feel that the Second Circuit correctly decided the Jenkins case against the government’s position. See also United States v. Wilson, 492 F.2d 1345 (3rd Cir. 1973), cert. granted, 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974).

      . The government appears to assume that no second trial would be necessary here, an assumption that may or may not be true. If the judge who heard .the matter initially were still available when the case was remanded, no new trial would be required. If he were not available, a new trial would be necessary as the judge who tried the case did not make findings as to all elements of the offense.

      . See Atlas, Double Jeopardy and Government Appeals of Criminal Dismissals, 52 Texas L.Rev. 303 (1974); Mayers and Yarbrough, Bis Vexaro: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1 (1960); Miller, Appeals by the State in Criminal Cases, 36 Yale L.J. 486 (1927).

      . The appeal arose under the pre-amended version of 18 U.S.C. § 3731.

      . Eight members of the Court joined in the opinion of the Chief Justice. Mr. Justice Blackmun did not participate.