author: BUTZNER, Circuit Judge:

text:
    Joseph C. BERGEN, Appellant, v. FOURTH SKYLINE CORPORATION et al., Appellees.
    No. 74-1094.
    United States Court oí Appeals, Fourth. Circuit.
    Argued May 7, 1974.
    Decided Aug. 15, 1974.

      Lawrence J. Pascal, Washington, D. C. (Lee C. Ashcraft and Joseph H. Koonz, Jr., Washington, D. C., on brief) for appellant.
    Norman F. Slenker, Arlington, Va. (Slenker, Brandt, Jennings & O’Neal, Arlington, Va., on brief) for Fourth Skyline Corp.
    Frank L. Ball, Jr., Arlington, Va. (Ball, McCarthy, Ball & Green, Arlington, Va., on brief) for Charles E. Smith-Skyline Development Co.
    Anthony E. Grimaldi, Washington, D. C. (Cornelius H. Doherty, Jr., Burton Schwalb and Rodney F. Page, Washington, D. C., on brief) for Miller & Long Co. of Va.
    Royce A. Spence, Falls Church, Va., for Sterling Concrete Corp.
    Henry R. Furr, Falls Church, Va. (Robert W. Dowler, Falls Church, Va., on brief) for Fairfax County and the Fairfax County Bd. of Supervisors.
    Before WINTER, CRAVEN, and BUTZNER, Circuit Judges.
   BUTZNER, Circuit Judge:

Joseph C. Bergen appeals from summary judgment, certified as final under Rule 54(b) of the Federal Rules of Civil Procedure, which exonerated Fourth Skyline Corp., Charles E. Smith-Skyline Development Co., Miller & Long Co., and Sterling Concrete Corp., as well as Fairfax County, Virginia and its Board of Supervisors, from common law liability for injuries caused by the collapse of an apartment building being constructed in the county. The district court ruled that the corporate appellees were not liable because Bergen’s exclusive remedy was under the Virginia Workmen’s Compensation Act, Va.Code Ann. § 65.1-1 et seq. (1973 Repl.Vol.). It held that the claim against Fairfax County and its Board was barred by the doctrine of sovereign immunity. We affirm the dismissal of all the ap-pellees except Sterling. The judgment in its favor is vacated, and the case is remanded because determination of Sterling’s status requires plenary consideration.

I

Fourth Skyline Corp., empowered by its charter to own and construct the apartment, engaged Charles E. Smith-Skyline Development Co. to plan and supervise the job. The Development Company in turn negotiated contracts with subcontractors in the owner’s name. Miller and Long undertook the concrete work, and purchased mixed concrete from Sterling.

Bergen, an employee of Otis Elevator Co., was installing elevators when he was injured by debris from the collapsing building. He applied to his employer for compensation and instituted this negligence action against other participants in the project.

The rationale and coverage of Virginia’s Compensation Act has been explained frequently in decisions of the Supreme Court of Virginia and of this court. In Turnage v. Northern Virginia Steel Corp., 336 F.2d 837, 841 (4th Cir. 1964), a case dealing with the construction of an apartment house under contractual arrangements similar in many respects to those in this case, Judge Boreman lucidly analyzed the Act and the authorities construing it as follows:

“[I]t is the aim of the Virginia Workmen’s Compensation Act, as interpreted by that state’s highest court, that the financial risk of accidental personal injuries inherent in any project be borne by and limited to that project to the extent specified therein. Consequently, where a project is undertaken either by an owner as part of his trade, business or occupation or by a general contractor, the responsibility in damages of any party to a workman injured in the project must be tested with reference to his relationship to the overall project. If the defendant was engaged in work which was part of the undertaking of the owner or general contractor, regardless of his relationship to the injured workman and his immediate employer, the sections previously mentioned operate to place the economic loss upon the project and to limit the workman’s recovery to that specified in the Act. On the other hand, where the injury was caused by the negligence of one not engaged in the over-all undertaking, a ‘stranger to the business,’ it is not an accident inherent in the project, the cost of which should ultimately be borne by the project, and the injured workman’s rights and remedies outside of the statute are preserved.”

With the exception of Sterling, we agree with the district court that no genuine issue of fact exists concerning the status of Fourth Skyline and its subcontractors. Construction of the apartment was a part of the business of Fourth Skyline even though the actual work was performed by other companies. Consequently, by the terms of the Act, all persons engaged in the work, as well as the owner, were shielded from common law actions for damages. See Anderson v. Thorington Construction Co., 201 Va. 266, 110 S.E.2d 396 (1959); Turnage v. Northern Virginia Steel Corp., supra. Accordingly, we affirm the summary judgment dismissing all the corporate appellees other than Sterling.

II

Bergen charges that inferior concrete sold by Sterling was a cause of the apartment’s collapse. In Virginia, a materialman delivering mixed concrete is not considered to be engaged in the construction of a building. Therefore, as a stranger to the business, he may be sued at common law by a workman whom he has injured on the project. Hipp v. Sadler Materials Corp., 211 Va. 710, 180 S.E.2d 501 (1971). But if in addition to supplying materials, he also engages in the business of the owner-eon-tractor by working on the job, he is immune from suit. Cf. Turnage v. Northern Virginia Steel Corp., supra. The critical point, therefore, is whether there is a genuine issue of fact concerning Sterling’s status. The district court granted summary judgment because Sterling had a batching plant at the site and additionally because several of its workers were assigned to the construction project under the supervision of Miller & Long. These employees, the record disclosed, conducted tests and advised about problems relating to the concrete. One of Sterling’s employees testified that the company’s duty was to supply concrete and take tests. He claimed that the tests were more extensive than those customarily conducted by suppliers because neither the county, the owner, nor the concrete contractor appeared to be making them. On the other hand, the Development Company’s general superintendent described Sterling as “doing some testing of their own,” and he reiterated that Sterling’s tests were for Sterling’s own use.

Bergen contends that Sterling was a materialman, as evidenced by a contract that required it to do nothing more than to supply mixed concrete, and he suggests that Sterling’s other activity was simply a matter of its own convenience. He relies on cases that fully support his general thesis that a materialman is not protected from common law liability by the Act. See, e. g., Hipp v. Sadler Materials Corp., supra; Burroughs v. Wal-mont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969).

Sterling contends that it is shielded by the Act because it engaged in the actual construction of the building. It relies on two cases, Haynes v. James H. Carr, Inc., 427 F.2d 700 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970), and Turnage v. Northern Virginia Steel Corp., supra, which held that alleged materialmen were in reality subcontractors.

Sterling’s reliance on Haynes and Turnage may ultimately prove to be justified, but at the present state of the proceedings it is premature. Those cases were decided after evidentiary hearings that probed every aspect of the relation between the alleged materialmen and the prime contractors, including the customs of the trade, the capability of the contractor to do the work in question, and the reasons the materialmen worked on the project. In Turnage, on which Sterling places special reliance, the court noted that the alleged materialman was paid a fee for the services it performed on the job over and above the materials it supplied.

Without thoroughly considering all of the aspects of Sterling’s relation to Miller & Long and Fourth Skyline, it is impossible to determine its status. From the record developed on the motion for summary judgment, one may indeed infer that Sterling engaged in the business of the owner-contractor by performing services beyond those customarily-furnished by companies delivering mixed concrete. On the other hand, its work on the job may have been incidental to its obligations as a materialman. Its employees may have been present for Sterling’s own benefit, to assure quality control and deal with complaints or inquiries from Miller & Long. The absence of reimbursement for the extra work which Sterling now claims to have done and the testimony of the Development Company’s general superintendent tend to indicate that it was not engaged in the work of the owner or the concrete contractor. We do not, however, suggest which inference is correct. The meager facts on which the court based its conclusions and the ambiguity created by the testimony of Sterling’s employee and the Development Company’s superintendent leave conflicting inferences which render summary judgment inappropriate. American Fidelity & Casualty Co. v. London & Edinburgh Ins. Co., 354 F.2d 214 (4th Cir. 1965).

Ill

Other issues require only brief comment. Bergen alleged that Fairfax County’s building inspectors negligently failed to enforce the county building code and regulations. Applying Virginia law, as we must in this diversity action, we affirm dismissal of the county and its board on the ground of sovereign immunity. Fry v. County of Albemarle, 86 Va. 195, 9 S.E. 1004 (1889).

We previously upheld the constitutionality of Virginia’s Workmen’s Compensation Act in Haynes v. James H. Carr, Inc., 427 F.2d 700, 702 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970). Bergen’s renewal of the attack provides no grounds for overruling this decision.

The judgment dismissing Fourth Skyline, the Development Co., Miller & Long, and Fairfax County and its Board is affirmed, and they shall recover their costs against Bergen.

The judgment dismissing Sterling Concrete Corp. is vacated, and the case is remanded for further proceedings. Bergen shall recover his costs against Sterling.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Albert PRICE, Ronald Watkins, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. LUCKY STORES, INC., Warehouse, Mail Order & Retail Employees, Local 853, Defendants-Appellees.
    No. 73-1289.
    United States Court of Appeals, Ninth Circuit.
    July 23, 1974.

      Henry S. Hewitt (argued), of Legal Aid Society of Alameda County, Oakland, Cal., for appellants.
    Andrew W. La Frenz (argued), of Donahue, Gallagher, Thomas & Woods, Oakland, Cal., for appellees.
    Before CHAMBERS and MERRILL, Circuit Judges, and PALMIERI, District judge.

       United States District Judge for the Southern District of New York, sitting by designation.

   PER CURIAM:

Plaintiffs brought this action under 42 U.S.C. § 2000e et seq. and 28 U.S.C. § 1343(4) against the defendants employer and labor association alleging a denial of rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Upon motion of the defendant union, the district court ordered that the complaint be dismissed with leave to amend with the exception of allowing the amended complaint to state grounds for a class action. This appeal followed, with the plaintiffs asserting that the district court’s order was appealable under 28 U.S.C. § 1292(a)(1) because its effect was to limit the scope of injunc-tive relief against the defendants sought by the plaintiffs on behalf of the class of persons similarly situated which they purported to represent.

The complaint alleged that the defendants had acted in various ways to discriminate against persons who are members of “minority” groups; in its class allegation, the complaint sought to have the defendants enjoined from continuing these discriminatory practices.

Under our decision in Spangler v. United States, 415 F.2d 1242, 1246-1247 (9th Cir. 1969); see also Yaffe-v. Powers, 454 F.2d 1362, 1364-1365 (1st Cir. 1972); Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, 286-287, 289-290 (concurring opinion), 290-295 (dissenting opinion) (2d Cir. 1971); Brunson v. Board of Trustees, 311 F.2d 107,108 (4th Cir. 1962), the order is an appealable one under 28 U.S.C. § 1292(a)(1) because its effect is a “denial of the broad injunctive relief” which the plaintiffs sought on behalf of the class. Cf. Fed.R.Civ.P. 54(b); 28 U.S.C. §§ 1292(b), 1291; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-172, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). We express no opinion as to whether a plaintiff in an action under Title VII might obtain relief benefit-ting nonparties and broader than that necessary to protect his own individual interests. Cf. Gregory v. Litton Systems, Inc., 472 F.2d 631, 633-634 (9th Cir. 1972). Here the plaintiffs attempted to bring the suit as a class action and the complaint sought injunctive relief on behalf of the class.

A class action determination under Fed.R.Civ.P. 23 is one of a trial court’s considered discretion. As was stated in City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2d Cir. 1969), “the judgment of the trial court should be given the greatest respect and the broadest discretion, particularly if . . .he has canvassed the factual aspects of the litigation.” This is so because the district court is in the best position to consider the most fair and efficient procedure for conducting any given litigation. Such a determination by the court will not be disturbed on appeal unless the party challenging it can show an abuse of discretion. Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir. 1973); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Hackett v. General Host Corp., 455 F.2d 618 (3d Cir. 1972); City of New York v. International Pipe & Ceramics Corp., supra.

Implicit, however, in each of these cases and in Fed.R.Civ.P. 23 itself is the requirement that a trial court, in determining whether or not the case should proceed as a class suit, should make certain findings as to the Rule’s provisions and their application to the case at bar. The Tenth Circuit has held that, “in denying class action status, it was sufficient for the trial court to determine on an adequate record and for good reasons stated that the procedure was not superior to other procedures irrespective of whether common issues of fact or law were predominant.” Wilcox v. Commerce Bank of Kansas City, supra, 474 F.2d at 345.

Here the district court simply stated that it had been “fully advised in the premises” and that the complaint “fails to state a proper case for permitting this suit to be brought as a class action.” At this juncture, from a liberal reading of the complaint, it appears that with the possible exception of numerosity, Fed.R.Civ.P. 23(a)(1), the requirements of subsection (a) of the Rule have been met. As to the claim of injunctive relief, it appears that treatment of the case under subsection (b) (2) might be appropriate. Other considerations, such as those specifically set out in subsection (b)(3), should be taken into consideration. There is, however, at this initial stage of the proceedings on a bare record of complaint, answer and motion to dismiss, nothing to show why a class action should not proceed. See - Esplín v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 566 (2d Cir. 1968).

This is not to say, of course, that upon remand, the trial court cannot determine on an adequate record and with findings keyed to the various subsections of Rule 23 that a class action should not proceed as to any or all of the issues or parties in question.

Accordingly, the order of the district court striking the class action allegation is vacated and the cause remanded to that court with instructions to reinstate the class status without prejudice to the court’s making proper findings upon an adequate record and at an appropriate time that the case does not merit class action proceedings.


author: .OAKES, Circuit Judge:

text:
    UNITED STATES ex rel. Alejandro DANEFF, Appellant, v. Robert HENDERSON, Superintendent, Auburn Correctional Facility, Auburn, New York, Appellee.
    No. 1052, Docket 74-1124.
    United States Court of Appeals, Second Circuit.
    Argued May 14, 1974.
    Decided Aug. 7, 1974.

      Abraham Werfel, Jamaica, N.Y., for appellant.
    David E. Spiegel, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y.; Samuel A. Hirshowitz, Asst. Atty. Gen. New York City, of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and HAYS and OAKES, Circuit Judges.
   .OAKES, Circuit Judge:

This appeal is from a denial of a writ of habeas corpus by Judge Wyatt below in a memorandum opinion handed down October 9, 1973. The relevant facts, as set forth in the district court’s opinion, need to be reiterated here.

Appellant was indicted on February 9, 1970, for criminal possession of a dangerous drug in the first degree, a “class A felony” under New York Penal Law § 220.33 (renumbered § 220.23 effective April 24, 1970). That indictment charged appellant with possession of 18 ounces of “light [white] powder” in which there was “cocaine present.” It was apparently stipulated in the trial court by the State and appellant’s counsel (who is also his counsel on this appeal) that “cocaine was present in each” of the two bags in which the 18 ounces of powder were found. No chemical analysis — other than that detecting the presence of some cocaine in the white powder — was performed to determine the “purity” of the 18-ounce mixture, that is, the extent of cocaine present. Appellant at no time requested or moved to have such a test made, but he did demur to the indictment on April 20, 1970, on the same grounds of unconstitutionality of the underlying statutory scheme advanced here, a motion which was in due course denied. In an apparent plea bargain appellant pleaded guilty on September 22, 1970, of violation of Penal Law § 220.22, a class B felony. The record shows that appellant raised before the trial court — -by motion in arrest of judgment — and before all possible appellate courts, including by petition for certiorari to the United States Supreme Court, the fourteenth amendment argument he advances here, to no avail. People v. Daneff, 37 A.D.2d 917, 325 N.Y.S.2d 902 (1971) (conviction aff’d without opinion), aff’d mem., 30 N.Y.2d 793, 334 N.Y.S.2d 897, 286 N.E.2d 273, motion to amend granted, 31 N.Y.2d 667, 336 N.Y. S.2d 903, 288 N.E.2d 805 (1972), cert. denied, 410 U.S. 913, 93 S.Ct. 977, 35 L.Ed.2d 276 (1973). There is no question that appellant exhausted all available state remedies and that his petition was properly before the court below.

I. “Waiver” and “Standing”

Before proceeding to the merits of appellant’s claim, it is necessary to consider whether he has “standing” to raise the claim he makes in this habeas petition.

A. The Guilty Plea. The State argues that appellant by knowingly and voluntarily pleading guilty to a violation of § 220.22, “waived” any right he otherwise would have had to challenge the constitutionality of the statutes under which he was convicted. A similar contention was carefully considered and flatly rejected by this court in United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974). The fact that certiorari was granted on the State’s petition, 417 U.S. 967, 94 S.Ct. 3170, 41 L.Ed.2d 1138 (1974) (No. 73-1627), does not deprive Newsome of precedential value for us. The State argues that Newsome is dis-. tinguishable in that the attack made there was “collateral” to the main question preserved on appeal — that of the refusal of the trial court to suppress certain evidence. Here, the State argues, there is no other such issue, and the attack goes to the “heart” of the guilty plea itself. The short answer to the State’s contention is that the appellate courts of New York including the New York Court of Appeals, implicitly rejected this argument of the State by themselves considering and rejecting appellant’s constitutional claim on the merits. Thus, the State’s contention reduces to the proposition that appellant’s guilty plea, while it did not preclude him from raising his constitutional claim in the state appellate courts, should be read to prevent his raising the same claim on federal habeas corpus. This argument was rejected in Newsome, 492 F.2d at 1170-1171, and we reject it here.

B. The “Purity” Question. The court below raised, without deciding, the question whether appellant had “standing” to challenge the statutes under which he was convicted. We note at the outset that appellant does not simply attack the constitutionality of the statute, § 220.22, under which he pleaded guilty and was convicted. Rather, he, in essence, attacks as violative of the due process and equal protection clauses of the fourteenth amendment the entire statutory scheme of New York which imposes penalties for possession of various drugs, including cocaine, on the basis of the weight of the mixture possessed as opposed to the actual content of the dangerous drugs themselves. Appellant’s claim throughout, most simply put, is that there is no rational basis for this statutory scheme which assesses punishment on the basis of the possession of a quantity of “mixture” without regard to the actual quantity of the dangerous drug present in that mixture. One of several examples offered by appellant is that a person in possession of 54 grains of pure cocaine — one grain less than Ys ounce — would, if convicted, be subject to punishment as a misdemean-ant, whereas one possessing the same 54 grains, of cocaine mixed together with 16 ounces of milk sugar or other diluent would be subject to punishment as a class A felon.

The State argues here, and the court below was concerned by the fact, that nowhere in the record does it appear as to how much cocaine, by weight, was present in the 18 ounces of “white powder” which was seized while in appellant’s possession. Thus, the State contends, we must assume for purposes of this appeal that, in light of the guilty plea, the mixture seized could have contained, at least theoretically, 18 ounces of pure cocaine. Assuming this arguendo, appellant’s attack on the statutes would be of no avail to him because, the argument runs, reading the statutes to punish on the basis of quantity of drug rather than quantity of mixture possessed results in appellant’s still being amenable to punishment as a class A felon. In other words, assuming appellant was carrying pure cocaine, he was not “injured” by the enforcement of the statutes himself. Before reaching the merits of this argument, we note that none of the state appellate courts passing on Daneff’s claim ever remotely suggested that Daneff did not have “standing” in this sense to raise his claim. While state-court determinations of standing are not binding on the lower federal courts considering federal questions previously raised in and decided by state courts, cf. Coleman v. Miller, 307 U.S. 433, 466, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (Frankfurter, J., concurring), it also seems to us that state-court recognition of standing to raise federal constitutional questions in criminal cases might well be particularly persuasive in federal habeas proceedings. If the State considers one of its citizens sufficiently “injured” by the operation of a state statute to pass on that citizen’s claim of injury, then the additional federal requirements that the claim be fairly presented to the state courts in the first instance, Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), should serve to ensure that only genuine claims are presented and decided.

The State claims that the burden was on appellant to introduce evidence as' to the amount of pure cocaine present in the 18 ounces of white powder seized. This argument would have greater force if the provisions of N.Y.C.P.L. § 240.20, permitting rather broad discovery along the lines of Fed.R.Crim.P. 16, had been in effect prior to appellant’s conviction. But appellant’s failure or omission to move for inspection and scientific analysis before pleading can well be explained by the very narrow view of permissible defense discovery taken over the years by the New York courts in the exercise of their general supervisory powers and absent the express liberalizing statute now embodied in C.P.L. § 240.20. E. g., People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 33-34, 156 N.E. 84 (1927). See Practice Commentary to C.P.L. art. 240, at 465-466 (McKinney 1971). By what we must consider the appellant’s inability to obtain pretrial scientific analysis of the drug in question under the New York law applicable to the conviction here in question, the State must be deemed precluded from assertion of the “standing” argument here.

II. The Merits

The thrust of Daneff’s equal protection and due process claim is that the sentencing scheme established for possessors of dangerous drugs creates inherently unequal, and indeed irrational, treatment of offenders who are guilty of what he contends are identical offenses. Under the New York statutes, the possession of a given amount of pure cocaine (or heroin or marijuana or other drug) and the possession of the same amount of cocaine (or other drug) mixed with various amounts of diluent are viewed as different offenses, the latter carrying heavier sanctions (the sanction varying with the quantities involved). Our inquiry under both fourteenth amendment claims is here the same: under the equal protection clause we must only ascertain whether there is a rational basis for the classifications drawn by the New York legislature, McGinnis v. Roy-ster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), the very same inquiry to be made under the due process clause. We think there is such a basis.

Appellant’s argument, and a very skillful one it is, may be more fully stated as follows. The statutes differentiate in terms of sanction between persons who possess the same amount of narcotic substance on the basis of the amount of inert or non-narcotic substance or material with which the narcotic is commingled. As a matter of common knowledge he points out that heroin is generally received in the United States in an 80 to 90 per cent pure state, then “cut” perhaps several times to reach the user in a state of 77 per cent or under “purity.” Cocaine or, more accurately, cocaine hydrochloride, is marketed, as evidenced by, e. g., Turner v. United States, 396 U.S. 398, 401, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), in a mixture often containing as low a percentage as 5 per cent or less of the narcotic. To treat the possessor of 54 grains of pure cocaine only as a misdemeanant and one who possessed that quantity mixed in 18 ounces of powder as a class A felon, he argues hypothetically, is wholly irrational. And he answers the suggestion that possession of the larger quantity of mixture is an indication of likelihood or potentiality of the possessor’s being a seller or distributor and of the scale on which he might operate as such by pointing out not only that the statutes here involved (and offense charged) relate only to possession and not sale or transfer and, indeed, the New York legislature deliberately eliminated any “presumption of sale” from the possession of larger quantities of narcotics. See § 1751, N.Y. Penal Law (repealed).

But appellant’s argument proves both too much and too little. Too much, in the sense that, by accepting appellant’s own premise that narcotics such as heroin and cocaine are generally marketed in mixtures or compounds, it does not seem unreasonable or irrational for a legislature to deal realistically with the marketing of the mixture or compound rather than the handling of the pure narcotic. Too little, in the sense that while it may not be wise to let the possessor of the pure or a purer product escape with a lighter penalty than that going to the possessor of the drug in its ordinary marketable form, it is not necessary for a legislature to attempt to eradicate all evil, but only part of it; as the Court said in Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937), “The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for [the state’s] determination.”

No doubt the New York legislature, when it adopted the statutory scheme here in question in 1965, had in mind a more flexible pattern of handling drug offenses than that used by the United States or other states at that time, considering that possessors of greater quantities of drugs should be punished more seriously because they are more likely to be dealers or to be capable of becoming such than possessors of smaller quantities, or because the greater quantities present a greater threat to society. Certainly to this extent the legislation cannot be treated as irrational. Taking the additional knowledge that heroin and cocaine at least are generally marketed in a diluted or impure state, the rationale of striking at the mixture or compound rather than at the pure quantity involved becomes evident: the possessor of 50 “bags” of five per cent pure heroin should arguably be punished no differently from a possessor of 50 bags with 10 per cent pure heroin. The State cannot be expected to make gradations and differentiations and draw distinctions and degrees so fine as to treat, all law violators with the precision of a computer; at the time the New York scheme of punishment was initially proposed in the mid 1960’s, it represented probably the most advanced thinking in the country on the difficult and complex question of penalizing trafficking in narcotic drugs in an urban society.

To be sure appellant has put to us some extreme cases where literal application of the statutes could cause some rather remarkably unjust results, particularly with the new (but for purposes of this case irrelevant) New York statute making conviction of a class A-l drug felony subject to a mandatory life sentence. One such example relates to the use of methadone, where a daily dose in methadone programs may consist of two tablets weighing 80 milligrams or the same substance in a two-ounce juice mixture. To the extent these extreme cases are not themselves handled by pros-ecutorial discretion, the rulings of the New York courts, or the exercise of more perspicacious legislative insight, we leave their resolution to the day they are presented to us. Suffice it to say in the case of heroin and cocaine possession offenses we do not view the New York statutes that were applied in this case unconstitutional on their face.

Appellant’s argument under the eighth amendment’s prohibition of cruel and unusual punishment, to the extent that it duplicates his argument under the fourteenth, is rejected for the same reasons as is his equal protection or due process claim, again leaving any questions under the 1973 revision of the New York statutes unanswered. To the extent that this eighth amendment claim is independent of the fourteenth amendment claims, it was apparently never properly raised before the state courts and is therefore not within our jurisdiction to decide. Picard v. Connor, supra.

Affirmed.

      . The statutes herein involved were repealed and replaced by a new statutory scheme effective September 1,1973.

      . Under § 220.05, the possession of (my quantity of a “dangerous” drug is a class A misdemeanor, punishable — as a first offense — by a maximum penalty of imprisonment for one year. Under § 220.15, possession of “preparations, compounds, mixtures or substances,” containing a drug, of an aggregate weight of less than one ounce but at least Ys ounce is punishable as a class D felony. Under § 220.20, possession of such a “mixture” of less than eight ounces but at least one ounce is punishable as a class O felony. Under § 220.-22, possession of a “mixture” of less than 16 ounces but at least eight ounces is punishable as a class B felony. Under § 220.23, possession of a “mixture” of 16 ounces or more is punishable as a class A felony, with a sentence of life imprisonment being possible under § 70.00.

      . The provisions of C.P.L. § 240.20, effective Sept. 1, 1971, were rather broadly construed in People v. Johnson, 68 Misc. 2d 708, 327 N.Y.S.2d 690 (Dutchess Cty.Ct.1971) (Al-drich, J.), but not so broadly as to permit the defense to obtain pretrial scientific analysis of a seized drug in People v. Goetz, 352 N.Y.S.2d 829, 832-833 (Dutchess Cty.Ct. 1974) (Aldrich, J.). The reasoning of Goetz appears open to question in an appropriate case, however, see United States v. Reid, 43 F.R.D. 520 (D.I11.1967), and there are other favorable decisions permitting scientific testing by a defendant under Fed.R.Crim.P. 16. S. g., United States v. Acariño, 270 F.Supp. 526 (S.D.N.Y.1967).

      . See, e. g., United States v. Haynes, 398 F. 2d 980, 987 (2d Oir. 1968) (federal narcotics laws draw no distinctions based on quantity of heroin in substance or total quantity of mixture).

      . See N.Y. Times, June 19, 1974, at 1, col. 2 (city ed.) (certain New York prosecutors agree to prosecute “low-level” methadone offenders under the misdemeanor sections of the New York statutes to assure “humane and rational dispositions” for reformed heroin addicts).

      . So, too, we leave until another day any determination with reference to the 1973 New York statutes which, inier alia, escalated the penalty for possession and sale in relation to the quantity of drug mixture involved. See N.Y. Penal Law, art. 220, Ilechtman, Supp. Practice Commentary 6 (1973-74 Cum. Ann.Pkt.Pt.).


author: CASTLE, Senior Circuit Judge. JAMESON, Senior District Judge

text:
    Allen BENCE, as an Individual and as a representative of the class of Milwaukee Policemen similarly situated, et al., Plaintiffs-Appellees, v. Harold A. BREIER, as an Individual and as Chief of Police of the City of Milwaukee and the City of Milwaukee, a municipality, Defendants-Appellants.
    No. 73-1655.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1974.
    Decided Aug. 14, 1974.

      Rudolph T. Randa, Asst. City Atty., Milwaukee, Wis., for defendants-appellants.
    Gerald P. Boyle, Milwaukee, Wis., for plaintiffs-appellees.
    Before CASTLE, Senior Circuit Judge, CAMPBELL  and JAME-SON,  Senior District Judges.

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

       Senior District Judge William J. Jameson of the District of Montana is sitting by designation.

   CASTLE, Senior Circuit Judge.

Defendants Harold A. Breier, Chief of Police of Milwaukee, Wisconsin and the City of Milwaukee appeal from an order granting summary judgment in favor of plaintiffs Allen Bence and Carl E. Hanneman, Milwaukee policemen, and the Milwaukee Professional Policemen’s Protective Association (“MPPPA”), in a civil rights action to compel the Milwaukee Police Department to remove official reprimands issued against Bence and Hanneman from its personnel files. On appeal, the defendants contend that the lower court erred in its determination that a Departmental rule proscribing “conduct unbecoming a member and detrimental to the service” was unconstitutionally vague. We affirm the order of the district court.

On July 13, 1970, the members of the Milwaukee Police Department’s late shift, which normally commenced work at midnight, were alerted at 7 p. m. to stand by in their homes and be available' for duty if a potential emergency situation materialized. Subsequently, the entire late shift was called to duty early, including thirty-six sergeants and patrolmen who were on their regular off day. In accordance with the terms of a contract between the City of Milwaukee and the MPPPA (the recognized bargaining agent for all members of the Milwaukee Police Department of the rank of sergeant or below), twenty of the thirty-six men were compensated at the rate of time and one-half. However, sixteen men did not receive the additional increment at that time, because their superiors failed to place the appropriate “CODE 8” or “CODE 9” designation on their time cards, as required by Departmental rule.

On the following day, Bence and Hanneman, the MPPPA’s president and trustee, respectively, sent a letter to the City's chief labor negotiator, James J. Mortier, entitled “RE: OUR BARGAINING DEMAND FOR NEGOTIATIONS, YEAR 1971, ITEM 37, STANDBY [sic] TIME and ABRIDGEMENT OF BENEFITS UNDER CURRENT CONTRACT.” In the letter, Bence and Hanneman referred to the Department’s alert on the previous evening as an example of a stand-by situation, which Mortier had allegedly previously asserted “never happens.” The men then gave notice of their intention to press a demand for contractual compensation of stand-by time at the next bargaining session between the City and the MPPPA. Bence and Hanneman further stated that in their opinion many of the policemen called to duty early were on their regular off day, and they erroneously asserted, “None of these men on a regular off day July 13th, who were called to early duty on this regular off day, were compensated at the rate of time and one-half.” The policemen requested that the labor negotiator investigate their information concerning uncompensated personnel and direct payment be made to those police patrolmen and sergeants entitled to the additional amount. Finally, the letter suggested that the term “regular off day” and similar terms be defined by the parties to the collective bargaining agreement in order to prevent any future misunderstandings. Bence and Hanneman had copies of this letter posted on MPPPA bulletin boards at various police locations.

Prior to sending the letter, Bence and Hanneman neither attempted to verify the accuracy of their allegation through consultation with their commanding officers nor sought to remedy the supposed breach of the collective bargaining agreement through intra-departmental demands. Rule 29, section 69, of the Rules and Regulations of the Milwaukee Police Department provides:

Members of the Department who wish to air grievances regarding conditions of employment or other conditions which they believe are contrary to the best interests of the public service shall consult with their commanding officers in an effort to resolve their grievances. If the member feels that the matter requires further consideration, he shall make a detailed report through his commanding officer to the Chief of Police.

Bence told police investigators that his basis for the incorrect allegation in the letter was information received from policemen in a particular police district, while Hanneman stated that he relied on a discussion at a meeting of the MPPPA board of trustees.

On December 23, 1970, both Bence and Hanneman were officially reprimanded for violating rule 44, section 8, of the Department’s rules and regulations, which provides:

Any member of the Department may be dismissed from the service or suffer such other punishment as the Chief of Police may direct when charged with and when any of the following offenses are substantiated:
Conduct unbecoming a member and detrimental to the service. . .

The officers were advised that their reprimands would be made part of their personnel records, and they were admonished for using poor judgment and for failing to attempt to resolve the matter first through Departmental channels.

The sole issue presented on this appeal is whether the district court correctly concluded that the phrase “conduct unbecoming an officer and detrimental to the service” is unconstitutionally vague.

It is a central tenet of constitutional law that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). In that ease, the Supreme Court sought to determine whether a criminal statute was “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Id. At issue in the present case is a rule adopted by the Milwaukee Police Department to regulate the conduct of its members. However, it is well-settled that the prohibition against vagueness extends to administrative regulations affecting conditions of governmental employment as well as to penal statutes, for the former may be equally effective as a deterrent to the exercise of free speech as the latter. Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); see, Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969). In both contexts, the policies underlying the proscription against vagueness are applicable:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters for resolution on an ad hoc and subjective basis, with all the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked” (citations omitted). Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) (Marshall, J.).

Vagueness, however, is a .matter of degree and context. We recognize that “there are limitations in the English language with respect to being both specific and manageably brief,” United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973), and that “[c]ondemned to the use of words, we can never expect mathematical certainty from our language.” Grayned v. City of Rockford, supra at 110, 92 S.Ct. at 2300. Moreover, we recognize that there “are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision,” Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605, 42 U.S. L.W. 4393, 4398 (Mar. 25, 1974) and therefore the vagueness doctrine is “not a principle designed to convert into a constitutional dilemma the practical difficulties in- drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). Yet, the “root of the vagueness doctrine is a rough idea of fairness.” Id.

In contrast with Colten v. Kentucky, supra, and Waters v. Peterson, 495 F.2d 91 (D.C.Cir. 1973), there is no basis in this case for concluding that the conduct which the Chief of Police sought to proscribe is inherently unsusceptible to language expressing more specific prohibitions. Indeed, the Chief of Police was able to specifically identify thirty other grounds for termination or punishment, each of which would presumably also be unbecoming conduct. This case is also significantly different from 'Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), where the Supreme Court held that the provision authorizing removal or suspension of federal civil service employees “for such cause as will promote the efficiency of the service” was not unconstitutionally vague, given the intent of Congress to lay down an admittedly general standard “in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection.” In the present case, any vagueness inherent in the rule was not bom of the necessity of broad application of a uniform rule to large populations engaged in multitudinous activities. Rather, the standard here was formulated by the Milwaukee Police Department to apply to an essentially homogeneous group of employees performing essentially similar job functions.

In determining whether the rule “conduct unbecoming a member and detrimental to the service” conforms with the constitutionally-mandated “rough idea of fairness,” it is necessary to examine whether the rule creates a standard of conduct which is capable of objective interpretation by those policemen who must abide by it, by those Departmental officials who must enforce it, and by any administrative or judicial tribunal which might review any disciplinary proceeding. Bence v. Breier, 357 F.Supp. 231 (E.D.Wis.1973). On its face, the rule proscribes only conduct which is both “unbecoming” and “detrimental to the service.” It is obvious, however, that any apparent limitation on the prohibited conduct through the use of these qualifying terms is illusory, for “unbecoming” and “detrimental to the service” have no inherent, objective content from which ascertainable standards defining the proscribed conduct could be fashioned. Like beauty, their content exists only in the eye of the beholder. The subjectivity implicit in the language of the rule permits police officials to enforce the rule with unfettered discretion, and it is precisely this potential for arbitrary enforcement which is abhorrent to the Due Process Clause. Further, where, as here, a rule contains no ascertainable standards for enforcement, administrative and judicial review can be only a meaningless gesture. There is simply no benchmark against which the validity of the application of the rule in any particular disciplinary action can be tested. The language of the rule additionally offers no guidance to those conscientious members of the Department who seek to avoid the rule’s proscription. Assuming that the Department (A) formulated the rule to apply to specific acts which it might constitutionally regulate, while (B) choosing not to regulate or to regulate in the remaining thirty prohibitions other acts which it might also constitutionally regulate, given the language of the rule, whether any particular act could be classified as (A) or (B) would be purely a matter of guesswork for policemen seeking to abide by the Department’s rules. Thus, the rule at issue conforms with the classic definition of vagueness. See, Amsterdam, The Yoid-For-Vagueness Doctrine, 109 U.Pa.L.Rev. 67, 76 (1960).

Moreover, because this vague rule does abut on sensitive first amendment freedoms, it may operate to chill the exercise of those freedoms. Grayned v. City of Rockford, supra; Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Keyishian v. Board of Regents, 385 U.S. 589, 605, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). There is no authoritative interpretation of the rule, and nothing in the language of the rule purports to limit unbecoming conduct to exclude constitutionally-protected expressive conduct, whatever the intent of the framers of the rule. See, Arnett v. Kennedy, supra. Clearly, the application of this vague rule could result in the destruction of the limited right of the policeman, as a public employee with unique characteristics, to speak on matters concerning his employment — a right which this court recognized in Muller v. Conlisk, supra.

The defendants rejoin that even if the rule appears superficially vague, the phrase is rooted in the history of the law and has “a well-settled common-law meaning notwithstanding an element of degree in the definition as to which estimates might differ.” Connally v. General Construction Co., supra at 391, 46 S.Ct. at 128. Historically, the rule is derived from ancient military tradition, including the British Articles of War of 1765 and the American Articles of War of 1775 and 1806; and the proscription against “conduct unbecoming an officer and a gentleman” is presently embodied in Article 133 of the Uniform Code of Military Justice. In Parker v.‘ Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 42 U.S.L.W. 4979 (June 19, 1974), the Supreme Court reversed the Third Circuit’s determination that Articles 133 and 134 were void for vagueness. Sub nom. Levy v. Parker, 478 F.2d 772 (3d Cir. 1973). The Third Circuit had found little difficulty in concluding that “as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians,” the general articles would “not pass constitutional muster.” Id. at 793. That court additionally found no “countervailing military considerations which [would] justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values.” Id. at 796. Significantly, the Court in reversing that decision disputed the latter finding of the Third Circuit, but as Mr. Justice Stewart pointed out in his dissent, the opinion of the Court did not seriously contend that the challenged articles were not vague on their face. The Court began its analysis by recognizing its tradition of viewing the military as a “specialized society separate from civilian society” with “a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” 417 U.S. at 743-744, 94 S.Ct. at 2555-2556, 42 U.S.L.W. at 4982. After noting that the military has developed “customary •military law” or “general usage of military service” in order “to maintain the discipline essential to perform its mission effectively,” Mr. Justice Rehnquist stated for the Court, “Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134” (emphasis added). Id. at 744-747, 94 S.Ct. at 2556-2557, 42 U.S.L.W. at 4982-4983. Additionally, the Court determined that both articles had been construed by the United States Court of Military Appeals or by other military authorities, such as the Manual for Courts-Martial, in “such a manner as to at least partially narrow [the rule’s] otherwise broad scope.” Id. at 752, 94 S.Ct. at 2560, 42 U.S.L.W. at 4985. See, e. g., United States v. Howe, 17 U.S.C.M.A. 165, 177-178, 37 C.M.R. 429, 435 (1967) (limiting the scope of Article 133). The Court concluded that there “cannot be the slightest doubt that under the military precedents that there is a substantial range of conduct to which both Articles clearly apply without vagueness or imprecision.” 417 U.S. at 754, 94 S.Ct. at 2561, 42 U.S. L.W. at 4986. Moreover, “even though sizeable areas of uncertainty as to the coverage of the Articles may remain after their official interpretation . . , further content may be supplied even in these areas by less formalized custom and usage.” Id. The Court then clarified the law of standing, observing that “Levy had fair notice” from the rule as authoritatively construed and that “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Id. The Court also stated that because of the factors distinguishing military society from civilian society, a greater presumption of validity attaches to military rules. More specifically, the Court held that “the proper standard of review for a vagueness challenge to the Articles of the Uniform Code of Military Justice is the standard which applies to criminal statutes regulating economic affairs.” Id.

However, even though the phrase “conduct unbecoming an officer and a gentleman” has attained a fixed and certain content in the military which is constitutionally sufficient to withstand an attack on vagueness grounds, it does not follow that that content is transferable to civilian police department rules incorporating the same language. None of the military precedents or military authorities has application in a civilian context, and the longstanding customs and usages, which have developed historically in the military, are unfamiliar to nonmilitary personnel. Moreover, “[t]he fundamental necessity for obedience, and the consequent necessity for imposition of discipline,” which “differentiate military society from civilian society” and which permit Congress “to legislate both with greater breadth and with greater flexibility when proscribing the rules by which the former shall be governed than . . . when prescribing rules for the latter,” id. at at 756, 94 S.Ct. at 2561, 42 U.S.L.W. at 4986-4987, is less exigent in a civilian police context. In Muller v. Conlisk, 429 F.2d at 904, this court rejected the military-civilian police analogy as too inexact to have utility when a determination of constitutional rights is at issue, holding that the demand for police discipline is simply one factor “to influence the balance which Pickering says must be struck in each case.” Thus, we conclude that neither the narrowing authoritative interpretations nor the rationale permitting a somewhat more flexible test of vagueness has currency in the case presented here.

The defendants next assert that under Wisconsin law relating to the operation of police departments, “conduct unbecoming” has a specific, definable content in that it is synonymous with “cause” for removal and likewise reflects a violation of the inherent responsibilities of public service. See Wis.Stats. § 62.-13(5) (b) (1971). There is no Wisconsin authority, however, construing unbecoming conduct as synonymous with cause. While some jurisdictions have developed expansive definitions of cause, see e. g., Appeal of Emmons, 63 N.J.Super. 136, 164 A.2d 184, 187 (1963), the Wisconsin Supreme Court has expressly stated that cause contemplates misfeasance or nonfeasance [except when there is an economic justification, see Wis. Stats. § 62.13 (5m)]. Schoonover v. City of Viroqua, 244 Wis. 615, 12 N.W. 2d 912 (1944). It was in this context that the Wisconsin Supreme Court rejected a vagueness challenge to an “unbecoming conduct” rule as apparently immaterial in Wisconsin ex rel. Gudlin v. Civil Service Commission, 27 Wis.2d 77, 86, 133 N.W.2d 799, 804 (1965). The court stated in dicta: “We point out the impropriety of the appellant’s conduct [adultery] has been determined by the legislature, in proscribing criminal penalties for it, and the commission did not have to resort to any subjective standard in order to deem it immoral, unbecoming and offensive” (emphasis added). Id. However, since cause is limited to misfeasance and nonfeasance and since the regulation in this case specifically proscribes both misfeasance and nonfeasance in addition to the unbecoming conduct prohibition, unbecoming conduct could neither be synonymous with cause nor have any ascertainable, exclusive content. It is precisely because unbecoming conduct is, as the Wisconsin Supreme Court noted, a subjective standard that it is capable of arbitrary application and therefore must fall under the Due Process Clause.

We similarly find no guidance in comprehending the conduct proscribed in the rule from examining cases from other jurisdictions cited by the defendants. For example, the Pennsylvania Supreme Court in the case of In re Zever’s Appeal, 398 Pa. 35, 156 A.2d 821 (1959) found, “Unbecoming conduct on the part of a municipal employee, especially a policeman ... is any conduct which adversely affects the morale or efficiency of the bureau to which he is assigned. . . . Unbecoming conduct is also any conduct which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.” Clearly, this definition is vague, as the proscribed conduct is phrased in such generalities as to leave the policeman bereft of any ascertainable standard with which to guide his conduct. It was this recognition that “conduct unbecoming” presents a standard “so impalpable as to be no standard at all” which lay at the heart of the recent holdings of the Michigan Court of Appeals that the phrase is unconstitutionally vague. Hamtramck Civil Service Commission v. Pitlock, 44' Mich.App. 410, 205 N.W.2d 293, 295 (1973); Sponick v. City of Detroit Police Department, 49 Mich.App. 162, 211 N.W.2d 674 (1973).

Even if the rule at issue in this case were not unconstitutionally vague on its face, its application in these circumstances would be constitutionally impermissible. Bence and Hanneman, as officers of the policemen’s collective bargaining unit, merely sent a letter to the city’s labor negotiator outlining a proposed bargaining demand for the next round of negotiations, explaining the incident which provided the basis for the demand, and requesting that if the facts relative to the incident were found to be true, the appropriate compensatory measures be taken. To inform the MPPPA membership of action taken by their officers, copies of the letter were posted on various MPPPA bulletin boards. First, even if the rule respecting prior intradepartmental consulation on employment conditions could be constitutionally applied to Milwaukee policemen in general (an issue we need not reach), that rule could hardly be intended to stifle or filter communications between duly elected representatives of the officially recognized collective bargaining unit of the Milwaukee Police Department and the city’s chief labor negotiator. Moreover, in permitting the erection of MPPPA bulletin boards at police stations and bureaus, the Milwaukee Police Department obviously realized that the boards would be used to display matters pertaining to conditions of employment and implicitly recognized that the dissemination of such matters through the use of the bulletin boards would not constitute unbecoming conduct.

Because the rule in this case is vague as applied to the plaintiffs, Bence and Hanneman, the case is readily distinguishable from other cases involving similar language where courts have determined that the plaintiffs lack standing to challenge the vagueness of a regulation, because the plaintiffs’ conduct was deemed to provide notice (i. e., the rule was not vague as applied to a plaintiff). In Allen v. City of Greensboro, 452 F.2d 489 (1971), the Fourth Circuit stated that a police detective “knew the precise nature of the charge” [improper advances toward a young woman during the course of a police investigation] in rejecting a vagueness challenge on a regulation proscribing “conduct unbecoming an officer and a gentleman.” Significantly, the court added that “the argument that the regulation is so vague as to provide no guidance to police officers in ascertaining the proper standard of conduct may well be valid in other circumstances. . . . ” Id. at 491. Similarly, Judge Leventhal, writing for the D. C. Circuit in Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 835 (1968), mod. 138 U.S.App.D.C. 38, 425 F.2d 469 (1968), aff’d en banc, 138 U.S.App.D.C. 41, 425 F.2d 472 (1969), dismissed a vagueness contention respecting a rule prohibiting “conduct unbecoming an officer” apparently on standing grounds: “We think it is inherent in the employment relationship as a matter of common sense if not common law that [a governmental] employee . . . cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory [cartoons] .... [Dismissal in such circumstances does not come] as an unfair surprise or is so unexpected or uncertain as to chill his freedom to engage in appropriate speech.”

The order of the district court is affirmed.

Affirmed.

JAMESON, Senior District Judge

(concurring in part, dissenting in part):

I am unable to agree with the majority that the rule of the Milwaukee Police Department proscribing “conduct unbecoming a member and detrimental to the service” is unconstitutionally vague.

It is, of course, well settled that due process requires that a penal statute be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” A statute which “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Moreover, where the statute’s literal scope “is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Go-guen, 415 U.S. 566, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).

On the other hand, the test for vagueness is less stringent in other contexts. For example, with respect to criminal statutes regulating economic affairs, “Void for vagueness simply means that criminal responsiblity should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). In the recent case of Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 42 U.S.L.W. 4979 (June 19, 1974), the Court held that the proper standard of review for a vagueness challenge to the Uniform Code of Military Justice was that applicable to criminal statutes regulating economic affairs. Applying that standard, the Court upheld an article to the Code providing for punishment of an officer for “conduct unbecoming an officer and gentleman.”

It is true, as Judge Castle has set forth in his opinion, that Parker v. Levy recognized that “[f]or the reasons which differentiate military society from civilian society . . . Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed. . . .” The Court continued : “But each of these differentiations relate to how strict a test of vagueness shall be applied in judging a particular criminal statute.”

The decisions of the Supreme Court construing the vagueness doctrine have not considered the proper test for vagueness in the precise situation presented in this case. Here, we are not concerned with a penal statute which may leave the general public uncertain as to the criminal conduct it prohibits, but rather with a rule adopted by the Police Department to govern its own internal affairs and regulate the conduct of its employees. While the prohibition against vagueness extends to administrative regulations affecting conditions of governmental employment, a less stringent standard should be applied by reason of employees’ familiarity with the duties of their employment and the impracticability of defining precisely all prohibited conduct. “It is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibitive conduct of employees includes ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’ ” Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 835 (1968), mod., 138 U.S.App.D.C. 38, 425 F.2d 469 (1968), aff’d en banc, 138 U.S. App.D.C. 41, 425 F.2d 472 (1969). “Moreover, where criminal prosecution is not at issue, a broad regulation can be given content by the authorities through its proper application.” Waters v. Peterson, 495 F.2d 91, 99 (D.C.Cir. 1973).

The less stringent standard for the military followed in Parker v. Levy was justified in part by the historical and traditional recognition of the phrase “conduct unbecoming an officer” and in part by the “fundamental necessity for obedience, and the consequent necessity for imposition of discipline.” To a large extent the same considerations apply to a police officer. Custom and usage have given content to the phrase “conduct unbecoming a member and detrimental to the service.” Certainly with respect to a member of a police department, there is need for “maintenance of discipline” and the “elimination of conduct which may reasonably be thought to have ‘impeded’ proper performance of duty.” See, Goldwasser v. Brown, 135 U.S.App. D.C. 222, 417 F.2d 1169, 1177 (1969).

The mere fact that every offense to which any sanction may apply is not specifically defined does not, in my opinion, vest “unfettered discretion in the Chief of Police.” His discretion is confined within accepted bounds and is subject to review.

While I am not persuaded that the rule in question is vague per se, I do agree with the majority that its application under the circumstances of this case was constitutionally impermissible. On this basis I join in affirming the order of the district court.

      . Rule 44, Section 8, of the Rules and Regulations of the Milwaukee Police Department provides in full:
      Any member of the Department may be dismissed from the service or suffer such other punishment as the Chief of Police may direct when charged with and when any of the following offenses are substantiated :
      Commission of a felony or misdemeanor under any law or ordinance whatever
      Intoxication
      Cowardice
      Habitual indulgence in narcotic drug
      Insubordination or disrespect toward a superior officer
      Overbearing, oppressive, or tyrannical conduct in discharge of duty
      Neglect of duty
      Neglect or disobedience of any order
      Absent from duty without leave
      Immorality
      Conduct unbecoming an officer and detrimental to the service
      General inefficiency and incompetency
      Incapacity for duty, either mental, physical or educational
      Breach of discipline

        Neglect or refusal to pay just debts
      Communication information relating to police work without permission
      Making a false official statement
      Willful maltreatment of a prisoner
      Discourtesy or insolence
      Untruthfulness
      Sleeping while on duty
      Uncleaniness in person or dress
      Smoking while in uniform
      Accepting bribe
      Keeping fee, gift or reward
      Criticizing department orders
      Aiding persons to escape arrest
      Refusing to give number of badge when requested
      Neglecting to give receipt for property taken from prisoners
      Failure to report any member violating rules or orders of department
      Failure to report known violations of law or ordinances
      Any other act or omission contrary to good order and discipline, or constituting a violation of any provisions of the Rules and Regulations of the Department, or any department order.

      . Precisely because the “root of the vagueness doctrine is a rough idea of fairness,” Colten v. Kentucky, supra, we take issue with the pronouncement in Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 835 (1968), mod., 138 U.S.App.D.C. 38, 425 F.2d 469 (1968), aff’d. en banc, 138 U.S.App.D.C. 41, 425 F.2d 472 (1969), that “ [i] t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation.” Rather, we think a more correct interpretation of the law is that it is necessary in so far as it is feasible for the Government to delineate for its employees all conduct which might result in sanctions. The D. C. Circuit was, we believe, closer to the mark in Waters v. Peterson, 495 F.2d 91 (D.C.Cir. 1973), when it adopted the standard of impracticality of further precision of employee regulation. Assuming a lawful variance exists in permissible vagueness between criminal statutes and employee regulation, we do not think it just to simply defer to a mere governmental assertion of impracticality respecting rules challenged for vagueness. Due process demands that each challenged rule be examined in its context to determine whether in fact further specificity would be feasible or practicable.
      We reject the suggestion in Waters v. Peterson, id. at 99, that “[wjhere criminal prosecution is not at issue, a broad regulation can be given content by the authorities through its proper application.” While it is true that a vague regulation can be salvaged through prior, narrowing interpretation, e. g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 42 U.S.L.W. 4979 (June 19, 1974), a vague regulation cannot be saved through prospective “proper application” simply because the rule contains no objective criteria for determining precisely what constitutes a “proper application.” We further reject the intimation that the importance of Due Process varies with the severity of the punishment meted out to the employee. We cannot agree that punishment in the form of a reprimand, as in the case here, “substantially defangs the bite of a claim of unfairness due to vagueness.” Waters v. Peterson, supra at 100. A reprimand, even when it “betoken [s] a determination that there has been a poor judgment,” id., unjustifiably besmirches an employment record that may otherwise be satisfactory and thus may limit promotion possibilities and salary advancement. Finally, we deem it highly significant that the Waters court recognized that the “necessity of ‘catchall’ regulations as a matter of administrative convenience does not obviate . . . the need to give content to such prohibitions by warnings, which give the general regulations a requisite concreteness, alerting the employee to the activity prohibited” (emphasis added). Id. at 99-100. The court then cited examples of supervisory warnings given the defendants in Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169 (1969) and Meehan v. Macy, supra. The obvious negative implication is that in the absence of such concretizing warnings (or limiting interpretation provided by an administrative manual, see, Parker v. Levy, supra), which is the case here, such “catchall” provisions must be considered impermissibly vague.

      . In Wisconsin ex rel. Richey v. Neenali Police and Fire Commission, 48 Wis.2d 575, 180 N.W.2d 743, 747 (1970), the Wisconsin Supreme Court erroneously cited Gudlin for the proposition that “ ‘conduct unbecoming an officer’ is not too vague to define a cause for discharge.” That point was not squarely reached in Gudlin. See, Wisconsin ex rel. Richey v. Neenali Police and Fire Commission, supra at 749 (Heffernan, J., dissenting) . See also, Wisconsin ex rel. Momon v. Milwaukee County Civil Service Commission, 61 Wis.2d 313, 312 N.W.2d 158 (1973).

      . See, Gieringer v. Center School District No. 58, 477 F.2d 1164, (8th Cir. 1973), cert. den., 414 TJ.S. 832, 94 S.Ct. 165, 38 L.Ed. 2d 66 (1974).

      . We do not believe that these few idiosyncratic instances in which conduct has given rise to notice under a similar rule amount to the substantial clarifying precedent necessary to save a rule which is vague on its face. See, Parker v Levy, supra.

      . With respect to a penal statute, due process is denied where statutory language of “standardless sweep allows policemen, prosecutors, and juries to pursue their personal predelietions.” Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974).

      . In addition, governmental rules or regulations are construed by the employer or superior officer rather than being indiscriminately construed by “policemen, prosecutors, and juries.” See n. 1.

      . In addition, it may be noted that in Parker v. Levy, supra, a four year prison sentence had been imposed. Here the punishment was an official reprimand which became a part of appellees’ personnel record. As noted in Waters v. Peterson, supra, “The vagueness problem is diluted, even when there has been no specific warning implementing the general regulation, when the sanction has only the ambiguous quality of reprimand.” Id. at 100.


author: PELL, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary, United States Department of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Republic Creosoting Company, Division of Reilly Tar & Chemical Corporation, Respondents.
    No. 73-1304.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 11, 1974.
    Decided Aug. 16, 1974.

      Walter H. Fleischer and Karen K. Sie-gel, Attys., Dept, of Justice, Washington, D. C., for petitioner.
    Carl T. Reis, Indianapolis, Ind., for respondents.
    Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

The Secretary of Labor appeals from a decision of the Occupational Safety and Health Review Commission, which found that the respondent Republic Creosoting Company had not committed any violations of the Occupational Safety and Health Act, 29 U.S.C. § 651. The underlying facts are not in dispute on appeal, these facts being either stipulated by the parties or testified to at the hearing before the administrative law judge.

Republic Creosoting Company (Republic), a division of Reilly Tar and Chemical Corporation, operated five railroad tie marshalling yards in southern Indiana, including one in Jeffersonville, Indiana. Despite its name, Republic did not at the Jeffersonville yard engage in the creosoting process but it did, upon the acquisition of newly cut or “green” ties, undertake the first step of seasoning or drying the wood for its eventual use. Republic ultimately resold the ties to railroad companies. These ties weighed approximately 150 to 235 pounds each.

The truckloads of ties arriving at the Jeffersonville yard were secured by chains to the transporting trucks. In twenty to twenty-five percent of the truckloads, the ties were bound together into packages, with each package held together by a single narrow steel band. Each package contained 25 to 45 ties, five ties high, five to nine ties across and one tie in length. The packaged ties were loaded lengthwise along the length of the truck, generally one package high and two packages across.

Republic unloaded the truckloads of banded ties in the following manner. The truckdriver ordinarily removed the chains holding the packages of ties onto the truck. The unloader operator (an employee of Republic) then moved the unloader (a forklift truck) into position so that it supported a package of banded ties. Only after the unloader was supporting a package, did the truckdriver, standing on an adjacent package, cut the band on the package to be unloaded. Under no circumstances would the band be cut before the unloader was in position. The unloader then removed the loosened ties from the truck. This process was repeated package by package until the truck was completely unloaded. During the entire operation, all Republic employees, other than the unloader operator, remained a safe distance from the truck.

On July 9, 1971, a truckload of banded ties was delivered to the Jeffersonville yard. Raymond Davis, a new employee working his fourth day for Republic, was present at the yard on that date. Davis had been hired to sort and stack ties after the completion of the unloading process. The unloader operator, James Wiseman, suggested to Davis on the day in question that he come to the unloading so that he could help sort the ties after they had been unloaded. Davis had never witnessed the unloading operation before nor had it been described to him. The field superintendent, Wallace Worley, however, when hiring Davis had told him “not to get around no trucks; the unloader done all the unloading.”

Davis was originally standing some distance from the truck and Worley and Wiseman expected him to remain there until the unloading was completed. The chains had, at this time, already been removed from the truck but the unloader had not yet been moved into position. Without being ordered to do so and without informing anyone of what he intended to do, Davis went up to the truck and while standing on the ground next to the truck, cut the steel band on a package of ties with an ax. As a result, five of the ties fell on Davis, fatally in-jurying him.

On July 30, 1971, a compliance officer for the Secretary of Labor conducted an inspection of the Jeffersonville yard. On the basis of the inspection, the Secretary issued two citations to Republic for alleged violations of the Occupational Safety and Health Act: a “Citation for Serious Violation” based on the Davis accident; a “Citation” based on the lack of warning signs and barricades around the piles of ties in the yard.

Republic filed a notice of contest and a hearing was held before an administrative law judge, who affirmed both citations but raised the second citation from a nonserious to a serious violation. The total penalty imposed was $1300.

Republic petitioned for discretionary review by the Occupational Safety and Health Review Commission. 29 C.F.R. § 2200.91 (1973). The Commission (with one Commissioner dissenting) reversed the administrative law judge and vacated the citations.

The Secretary raises two issues on appeal: (1) whether the Occupational Safety and Health Review Commission erroneously held that the employer had not violated the “general duty clause” (Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S. C. § 654(a)(1)), by failing to instruct and supervise properly an untrained employee regarding the hazards of unloading railroad ties; (2) whether the Commission erroneously held that the employer had not violated Section 5(a)(1) in permitting railroad ties to be stacked in unstable piles without warning signs or barricades.

I.

The Occupational Safety and Health Act seeks to provide “so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). Penalties may be imposed by the Commission on employers in interstate commerce who violate the Act by failing to eliminate preventable dangers.

We note at the outset that the Occupational Safety and Health Review Commission is presumed to have technical expertise and experience in the field of job safety. A court must, therefore, defer to the findings and analysis of the Commission unless such findings are without substantial basis in fact. Federal Power Comm’n v. Florida Power & Light Co., 404 U.S. 453, 463, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972). The Act itself states: “The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.” 29 U.S.C. § 660. In addition, the Commission’s interpretations regarding the meaning of the Act should be given substantial deference by a court.

II.

The citation issued to Republic on the basis of the Davis accident alleged a serious violation of the “general duty clause” of the Act, 29 U.S.C. § 654(a) (1), which provides:

“Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. ti

A “serious violation” is present only where there is “a substantial probability that death or serious physical harm could result from a condition which exists or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violations.” 29 U.S. C. § 666 (j). Republic does not dispute that the cutting of the band before the unloader was in place gave rise to “a substantial probability that death or serious physical harm could result.” The issue on appeal is whether an employer, using reasonable diligence, would have foreseen the danger in question.

The Secretary contends that where an inexperienced, untrained employee is placed at the site of a potentially dangerous operation, the employer should foresee that the employee is likely, because of his ignorance of the safe procedures, to injure himself. Davis, the Secretary points out, was a new employee, working his fourth day for Republic. He had neither seen the unloading operation nor had it described to him. Davis was, nonetheless, asked by the unload-er operator to be present at the place of the unloading. Since Davis did not know what the safe procedure for unloading the ties was, it was foreseeable, the Secretary argues, that Davis would do something unsafe and, thereby, injure himself — even if the exact nature of his unsafe actions, i. e., cutting the band, could not have been foreseen. The fact that Davis was not assigned to assist in the actual unloading operation itself is irrelevant, according to the Secretary, since Davis was requested to be present at the unloading site. In such a situation, it is argued, the employee should be instructed in the safe procedure for the operation which is going on in his presence.

The Commission rejected the Secretary’s argument on the theory that the Act does not require that a new employee always be trained in proper procedures for a task simply because he is required to be present at the place of the operation in question in which he is not a participant. We agree with the Commission’s interpretation of the Act. The Act clearly requires that, for a serious-violation citation to be sustained, the danger must be one of which the employer knew or, with reasonable diligence, could have known. Whether training is necessary and the amount of any training required will depend on a number of factors, such as the experience of the employee in the particular field of work, the extent of the employee’s participation in the operation in question, and the complexity and danger involved in the operation. Where an employee is directly participating in a job, the employer may well, as the Commission noted, have a duty under the Act to instruct him on the safe procedure for handling the job. On the other hand, the Commission accurately recognized that training may be unnecessary for an employee who is wholly disassociated with the operation in question and who would not be foreseeably exposed to danger.

The instruction given to Davis was general but explicit and unambiguous. Worley testified: “I told him not to get around no trucks; the unloader done all the unloading.” We find that, under these circumstances, this instruction was sufficient to satisfy the employer’s duty under the Act. It is true that the unloading could be dangerous if the proper procedure was not followed. Davis’ relationship with the trucks and the unloading, however, was very simple: he merely had to stay away from the trucks. This he was clearly told to do. The fact that he did not know the correct procedure for unloading a truck is immaterial since his own position with respect to the trucks had been stated in no uncertain terms: he was to stay away. In this situation, we agree with the Commission that a reasonably diligent employer would not have foreseen that Davis would injure himself.

This is not a case where the injury and death of Davis was the result of his, despite the admonition of Worley, getting too close “around” the truck and being hit by a falling tie when, for example, a defective or stress-weakened band had snapped. Instead, the ties fell only because of the precipitous unanticipated act of Davis in chopping the band with an ax. The Secretary other than by bald statement does not indicate how this act could have been foreseen.

We would not characterize the warning given to Davis, although explicit, as “the best conceived and most vigorously enforced safety regime,” National Realty & Constr. Co., Inc. v. Occupational Safety & Health Review Comm’n, 489 F.2d 1257, 1266 (D.C.Cir. 1973) (J. Skelly Wright, J.). We are merely deciding that, in the absence of promulgated standards requiring appropriate warning signs or better training of employees, the conclusion reached by the Commission was within the scope of its discretion in interpreting the statute which it has special responsibility to enforce. Further, we agree with Judge Wright that “Congress intended to require elimination only of preventable hazards.” Id.

III.

The second citation issued to Republic states:

“1. Adequate warning signs prohibiting unauthorized foot or vehicle traffic in storage yard were not posted to cover all areas.
“2. Unstable piles of cross ties are not barricaded or otherwise made safe.”

This citation as issued did not propose a penalty; however, the administrative law judge modified the citation from nonserious to serious and imposed a penalty of $700.

As to part 1 of the citation, Republic argues that employees are authorized persons working in and around the piles of ties and that part 1 is therefore meaningless inasmuch as the Act is designed only for the safety of employees. There would appear to be merit in the contention, which we do not find satisfactorily countered by the Secretary. In any event, a disposition of part 2 of the citation contra to the position of the Secretary would seem to eliminate the necessity of the warning signs since the only claimed dangerous condition cited as the result of the inspection was that relating to the piles of ties.

There is substantial evidence with reference to the piles of ties as follows. The lift fork places the ties as they are removed from the truck in windrowed piles which are neatly stacked. The ties ordinarily remain as placed by the un-loader for a short time although occasionally this may be for a few days. Employees pull or push the ties from the stacks and after sorting them put them into stacks of like kind ties which are also described as windrowed piles. As a part of this process, stacking strips, two inches by two inches, are placed between layers of ties which facilitates the passage of air. Windrowing, which according to Webster would appear to have its origin in drying processes of agricultural products, as used at the yard was merely a banausic way of accomplishing by air drying the necessary seasoning of the green wood.

It is not entirely clear from the citation whether part 2 was directed just to the original piles at the time of the removal from the truck, to the second apparently more carefully stacked phase, or to both. Employers subject to safety orders carrying the possibility of substantial penalties should not have to speculate as to the scope of a citation. Imprecise orders, of course, run the risk of "being set aside but resort to the expenses, delays, and uncertainties of litigation should not be necessary.

For the present purposes, we will assume that the citation part 2 applies to all windrowed piles of ties.

The employer’s obligation under the general duty clause is to maintain a workplace free from “recognized hazards” which are causing or are likely to cause death or serious physical harm to employees. A “recognized hazard” has been defined as “a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. . . . [Wjhether or not a hazard is ‘recognized’ is a matter for objective determination. . . . ” The issue before the Commission was whether the failure to place barricades and warning signs around the win-drowed piles of ties was a “recognized hazard,” as this term is used in the Act.

The Secretary argues that the win-drowed piles of green ties, which tend to warp slightly, are unstable and, therefore, the failure to barricade such piles is hazardous. After reviewing the testimony and stipulated facts, the Commission concluded that the Secretary had failed to prove that any hazard, if one existed at all, was recognized by the appropriate industry. This finding of the Commission must be upheld if supported by substantial evidence.

Upon the basis of the record, we hold that there is substantial evidence to support the Commission’s finding. At the hearing, the Secretary’s compliance officer admitted that employees could tell whether a particular stack of ties was stable and that they could work safely with windrowed piles, if the employees knew what they were doing. The evidence also indicated that Republic had not had a serious accident resulting from the work with the piles in seven years.

Noting that the Secretary has the burden of proving all elements of a violation, 29 C.F.R. § 2200.73, we agree with the Commission that the Secretary failed to present sufficient evidence that the hazard was a “recognized hazard” in the industry.

Finally, we note that the dissenting Commissioner took the position, which is urged by the Secretary on this appeal, that the Commission erred in putting Republic in the wood treatment industry rather than material handling as to which the Secretary’s representative who had made the inspection testified as an expert witness, “ . . . this is a recognized hazard in materials handling, that unstable piles will cause — will fall and cause serious injury. . . . ”

As the majority Commissioners point out, the windrowed piling was done for a specific purpose, i. e., that of seasoning the wood. This was not a case of employees constantly being engaged in the handling and moving in and out of materials. While no doubt any employee who is engaged in handling heavy materials for placing them in a quasi-storage basis may be injured during the course of that handling we do not conceive that Congress intended the Act to impose strict liability.

In sum, the decision of the Commission is supported by substantial evidence and it therefore is

Affirmed.

      . Decision and Order of the Occupational Safety and Health Review Commission, OSHRC Docket No. 22, Feb. 9, 1973. Review by this court is available under 29 U. S.C. § 660(b).

      . Issued pursuant to 29 U.S.C. § 658.

      . The following “Description of alleged violation” was set forth in the citation:
      “Binders on the cross tie load were released without securing with unloading lines or other unloading device. This is a serious condition which' could, in fact did, cause a fatality to an employee.”

      . In addition to this general duty to eliminate avoidable hazards to life, limb or health of the workers, the employer has, under the Act, the duty to conform to any health and safety standards promulgated by the Secretary of Labor. In the present case, the parties agree that there were no such specific standards applying to Republic at the time that the citations were issued.

      . The Secretary of Labor does not appear to argue that the normal unloading procedure followed by Republic was unsafe.

      . We also note that in his original brief the Secretary refers to Davis being ordered to assist a crew in unloading the truck, and in his reply brief he states that “Davis was actually ordered to assist a crew in unloading ties.” (Emphasis in original.) These statements are without support in the record before us. Likewise the Secretary’s brief references to an untrained employee being permitted “to participate in a hazardous unloading operation” are unwarranted and inconsistent with the facts before the Commission.

      . This definition was originally offered by Congressman Daniels, 116 Cong.Rec. 38377 (1970). See also National Realty & Constr. Co., Inc. v. Occupational Safety & Health Review Comm’n, supra at 1265 n. 32.

      . The evidence indicated that Republic did train its employees as to the proper methods for working with the piles.

      . The lack of an accident could have been fortuitous but a high rate of accidents re-suiting in injuries from the same cause is often given some weight as being symptomatic of a dangerous situation. Conversely, we cannot say that the lack of accidents does not enter the substantial evidence picture as a factor.