author: LANE, Judge.

text:
    Application of Robert M. EAST and John A. Harmon.
    Patent Appeal No. 9140.
    United States Court of Customs and Patent Appeals.
    May 9, 1974.

      Sol L. Goldstein, Mount Prospect, 111., atty. of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents. Robert D. Edmonds, Washington, D. C. of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   LANE, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the rejection of claims 11-13 of application serial No. 724,313, filed April 1, 1968, entitled “Developer Mixes.” The application is for reissue of appellants’ U.S. Patent No. 3,320,169, issued on May 16, 1967. Reissue claims 1-10 (identical to original claims 1-10) stand allowed. We affirm.

The Invention Described In The Patent

The invention described in the patent relates to electrophotographic processes for producing visible images and specifically to developer mixes for use in such processes. The specification describes these developer mixes in the following passage, which we designate [A]:

The developer mixes of this invention are three component mixtures consisting essentially of (1) magnetic carrier particles, (2) toner particles haveing a particle size smaller than the particle size of the magnetic carrier particles, the toner particles consisting essentially of a discrete mixture of pigmented resin particles having the necessary triboelectric relationship to the magnetic carrier particles so that upon admixture the toner particles acquire a charge of the desired polarity to develop the image, and (3) an aliphatic acid having from 10 to 26 carbon atoms and/or a salt of such aliphatic acid, the cation of the salt being calcium, barium, sodium, lithium, magnesium, manganese, zinc, nickel, iron, cobalt, lead or ammonium. A mixture of any two or more of these aliphatic acids and/or salts can be used. For convenience and brevity the expression “additive” will be used herein to refer to such aliphatic acid, salt thereof or mixture of such salts, or mixture of such acids, or mixture of such salts and such acids, [emphasis ours]

The specification of the patent also contains a passage which we designate [B]:

The exact explanation of why the fatty acids and the salts thereof, herein disclosed, are effective to correct the problems of prior known developer mixes is not fully understood. The improvement in print density, reduced background and minimization of mix deterioration is believed to be due in part at least to the additive affecting the triboelectric relationship between the carrier and the toner. The additive tends to maintain a proper triboe-lectric charge balance between the toner and the magnetic carrier particles so that the attraction between the latter and the toner does not override the attractive force of the charged areas of the electrostatic recording member for the toner. In reversal printing, this balance permits the proper repulsion of the toner to effect adherence thereof to the areas of the print to which the developer powder should be applied. In positive printing, this balance enables the charged image areas to attract and hold the toner.
Moreover, the presence of the additive tends to improve the mobility of the components of the developer mixes resulting in better mixing or distribution of the toner relative to the carrier particles, particularly when fresh toner is introduced into the developer mix. With the developer mixes of this invention, the introduction of fresh toner along with additive in proportions of from 0.02 to 0.4 part by weight of additive per 100 parts by weight of carrier in the case of the reversal developer mix, and from 0.02 to 0.1 part by weight of additive per 100 parts by weight of carrier in the ease of positive mix results in the more complete and uniform distribution of the fresh toner throughout the developer mix upon subjecting the mixture to agitation or mixing. Such mixing is conventional in the operation of electrostatic printing machines, [emphasis ours]

The patent contains eleven examples of specific developer mixes. In each example, the “carrier” is described as “powdered iron,” but the specification also states that: [C]

The magnetic particles can be iron, ferrites, nickel, cobalt, or other magnetic particles having an average particle size of from 25 to 500 microns, preferably 25 to 150 microns, and always larger than that of the toner particles. For reversal developer mixes, the magnetic particles and the toner particles are chosen to have a triboelectric relationship such as to produce a negative charge on the toner particles when the two are mixed. For positive developer mixes, the magnetic particles and toner particles are chosen to have a triboelectric relationship such as to produce a positive charge on the toner particles when the two are mixed.

Appearing in the initial portion of the specification are two paragraphs each describing a different technique for applying developer mixes. One paragraph, which we designate [D], describes the “magnetic brush” technique:

One known technique of applying such reversal and positive developer mixes is the so-called magnetic brush technique involving the use of a mixture of larger magnetic particles, usually iron, and smaller toner or powder particles constituted of pigmented resin and the application of this developer mix by means of a cylindrical magnetic applicator roller on the periphery of which the magnetic brush is formed and reformed during the rotation of the applicator roller to maintain enough toner in the so-called brush for proper development of the image. The image bearing member, usually paper, is passed in substantially tangential contact with this brush with the side to be developed in contact or near contact with the brush and the opposite side, herein térmed the back, positioned remote from the magnetic brush. Such type of developer is disclosed, for example, in the Paul B. Streich, Sr., United States Patent No. 3,003,462 granted October 10, 1961.

The other paragraph, which we designate [E], describes the “cascade” technique :

Another technique of developing electrostatic latent images involves the application of developer mixes by cascading said mixture over the charged surface. The electroseopic powder which adheres to the carrier particles is attracted by the imaged portions of the electrophotographic member adhering thereto as the carrier particles flow over the image.

The patent contains ten claims. Claim 1 is representative:

1. A developer mix for developing electrostatic latent images on photo-conductive insulating material employing a magnetic brush for applying the developer to the latent images, which developer mix consists essentially of magnetic carrier particles and toner particles having a particle size smaller than the particle size of the magnetic carrier particles, the toner particles consisting essentially of a pigmented thermoplastic resin having a resistivity less than 10 19 ohm-cm, and a particle size of from 1 to 75 microns, said toner particles being mixed with the magnetic carrier particles having a particle size of from 25 to 150 microns in the proportions of from 10 to 100 parts of magnetic carrier particles per part of toner particles by weight, and said developer mix containing from 0.02 to 0.4 part by weight of a third component per 100 parts by weight of carrier particles, said third component intimately mixed with and forming a coating on the exterior of said magnetic carrier particles and said toner particles, said third component being selected from the group consisting of (a) fatty acids containing from 10 to 26 carbon atoms; (b) a salt of such fatty acids, the cation of the salt being selected from the group consisting of calcium, barium, sodium, lithium, magnesium, manganese, zinc, nickel, iron, cobalt, lead and ammonium; (c) a mixture of said fatty acids; (d) a mixture containing at least one of said fatty acids and at least one of said salts; and (e) a mixture of said salts, [emphasis ours]

The Reissue Application

The specification of the reissue application appears to be identical to that of the patent. Claims 1-10 of the reissue application are identical to patent claims 1-10 and they stand allowed. The legal issues in this appeal stem from new claims 11-13 filed in the reissue application. Claim 11 is representative:

11. A developer mix for developing electrostatic latent images on photo-conductive insulating material, which developer mix consists essentially of carrier particles and toner particles having a particle size smller than the particle size of the carrier particles the toner particles consisting essentially of a pigmented thermoplastic resin having a resistivity of less than 1019 ohm-centimeters and a particle size of from 1 to 75 microns, said toner particles being mixed with the carrier particles in the proportions of from 10 to 100 parts of carrier particles per part of toner particles by weight, and said developer mix containing from 0.-02 to 0.4 parts by weight of a third component per 100 parts by weight of carrier particles said third component intimately mixed with and forming a coating on the exterior of said carrier particles, and said toner particles, said third component being selected from the group consisting of (a) fatty acids containing from 10 to 26 carbon atoms; (b) a salt of such fatty acids, the cation of the salt being selected from the group consisting of calcium, barium, sodium, lithium, magnesium, manganese, zinc, nickel, iron, cobalt, lead and ammonium; (c) a mixture of said fatty acids; (d) a mixture containing at least one of said fatty acids and at least one of said salts; and (e) a mixture of said salts, [emphasis ours]

Claim 11 is broader than original claim 1 in that claim 11 omits certain limitations. Claim 1 limited the carrier particles to “magnetic carrier particles” having “a particle size of from 25 to 150 microns,” and the preamble of claim 1 recited that the developer mix was for developing electrostatic latent images on photoconduetive insulating material “employing a magnetic brush for applying the developer to the latent images.” Reissue application claims 12 and 13 also omit these same recitations.

Proceedings In The Patent Office

The examiner rejected new reissue claims 11-13 on four grounds: (1) under 35 U.S.C. § 251 as being drawn to “new matter”; (2) under 35 U.S.C. § 112 [first paragraph] as being drawn from an inadequate disclosure; (3) under 35 U.S.C. § 112 [second paragraph] as failing to particularly point out and distinctly claim the invention because of appellants’ failure to recite the necessary particle size of the carrier; and (4) under 35 U.S.C. § 251 on the ground that no “error” had been shown in limiting the original patent claims with respect to the size of the carrier particles.

The board affirmed the examiner on the two rejections based on § 251 and on the rejection based on § 112, first paragraph. The board refused to review the rejection based on § 112, second paragraph, for the reason that appellants had acquiesced in a similar rejection during the original prosecution of the application which issued as the patent and had inserted the range of particle sizes for the carrier particles in order to overcome the rejection.

With respect to the first rejection based on § 251, the board’s opinion states:

* * * We find no support in the record for the expansion of the claimed invention so as to include nonmagnetic carrier particles. The specification clearly restricts the invention to developer mixes containing magnetic carrier particles (note especially [ [A] ]) and the original patent claims reflect this limitation. Although the discussion of the prior art [in [E]] of the specification includes a description of the cascade method, no indication whatsoever is made that the developer mixes being disclosed can be employed in such a technique. In fact, despite this acknowledgment of the cascade
Whenever any patent is, through error without any deceptive intention, deemed' wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Commissioner shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue. [first paragraph only] method of development, the invention, as disclosed and as originally claimed, is limited to developers for the magnetic brush technique.
Accordingly, we find that the appealed claims are barred under 35 USC 251, not being directed to “the invention disclosed in the original patent” and not being in compliance with the requirement that “no new matter shall be introduced into the application.” * * *

Appellants’ Contentions

Appellants’ first contention is that the disclosure in the original patent of the cascade development technique in [E] “discloses a fortiori non-magnetic carrier particles.” Appellants cite In re Smythe, 480 F.2d 1376, 1384 (Oust. & Pat.App.1973) and they state that the use of “carrier particles generally” in the improved developer mix would “naturally occur” to a person of ordinary skill in the art upon reading the specification when it was originally filed in 1964. In support of this argument, appellants rely on two affidavits — one by Dr. Luther C. Browning and one by Dr. Charles A. Kumins- — presented to the examiner. Appellants say that it is important to understand that the developer mix which is useful in magnetic brush systems can be used to full advantage in cascade systems, and that the Kumins affidavit and the Browning affidavit bring out this fact.

Appellants’ second contention is that the original patent specification in [B] supports their position that “the disclosure is not limited to magnetic carrier particles” since “carrier particles” is used therein “without any specific identification as to whether they are magnetic or non-magnetic [particles].”

OPINION

We agree with the board’s conclusion that claims 11-13 were properly rejected under 35 U.S.C. § 251 since they broadly recite the genus of “carrier particles” which is not “disclosed in the original patent.” The original patent discloses only the sub-genus of “magnetic carrier particles” and the species of “iron, fer-rites, nickel, [and] cobalt” carrier particles. Hence, claims 11-13 are drawn to “new matter” in the sense of subject matter which is not described in the original patent. See In re Welstead, 463 F.2d 1110, 59 CCPA 1105 (1972), In re Bowen, 492 F.2d 859 (Cust. & Pat.App. 1974), and In re Boles, 493 F.2d 658 (Cust. & Pat.App.1974).

Appellants’ first contention is that the disclosure in the original patent of the cascade development technique in [E] inherently discloses non-magnetic carrier particles to one skilled in this art. The board stated that despite this disclosure of the cascade technique there was not even an indication that the developer mixes containing magnetic carrier particles could be used in such a technique. Appellants dispute the board’s view on the ground that the Kumins affidavit and the Browning affidavit indicate that one skilled in the art would know that developer mixes containing magnetic carrier particles can be used in both the magnetic brush technique and the cascade technique.

We agree with appellants that the Ku-mins affidavit and the Browning affidavit indicate that one skilled in the art would know that developer mixes containing magnetic carrier particles could be used in both techniques. For example, the Kumins affidavit states: “Magnetic (e. g. iron) carrier particles can be used in cascade development as well as non-magnetic particles * * However, this fact does not help appellants’ case. We believe it is consistent with appellants’ affidavit evidence to view the disclosure of the cascade technique in [E] as merely the disclosure of an additional means of using the developer mixes containing magnetic carrier particles. Hence, the disclosure of the cascade technique does not necessarily describe the use of a developer mix containing non-magnetic carrier particles.

Viewing the disclosure of the cascade technique in this way distinguishes In re Smythe, supra, where it was “ * * * the description of the properties and functions of the ‘air or other gas’ segmentizing medium described in appellants’ specification which would suggest to a person skilled in the art that appellants’ invention includes the use of ‘inert fluid’ broadly.” (480 F.2d at 1384) (emphasis in original)

Furthermore, we find that the original patent specification in [A] states that the developer mixes are three component mixtures “consisting essentially” of (1) “magnetic carrier particles,” (2) “toner particles,” and (3) the “additive.” This language suggests exclusion of other types of carrier particles. We cannot apply the principle of In re Smythe when the express language of the specification militates against the application of that principle.

Appellants’ second contention is that the original patent specification in [B] is not limited to magnetic carrier particles. We believe it would be improper to interpret passage [B] as describing anything other than magnetic carrier particles. The terms “carrier” and “carrier particles” do appear in passage [B] without the adjective “magnetic.” But “magnetic” is clearly implied by the context as shown by the third sentence in passage [B] where “magnetic carrier particles” appears. Furthermore, the terms “carrier” and “carrier particles” in [B] must be read in light of the whole specification, including [A] which expressly limits the invention to magnetic carrier particles.

Since the claims were properly rejected under § 251, as drawn to “new matter”, we do not reach the other issues raised in this appeal. For the reasons set forth, we affirm the decision of the board.

Affirmed.

      . The record indicates that the assignee of the patent is Addressograph-Multigraph Corporation. The patent was granted on application serial No. 387,218, filed August 3, 1904, which was said to be a continuation-in-part of application serial No. 221,888, filed September 6, 1962.

      . § 251. Reissue of defective patents


source: Caselaw Access Project

author: MEHAFFY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Harry Lee BUCKLES, Appellant.
    No. 73-1780.
    United States Court of Appeals, Eighth Circuit
    Submitted Feb. 12, 1974.
    Decided May 14, 1974.

      Paul E. Gaiter, Lincoln, Neb., for appellant.
    Daniel E. Wherry, U. S. Atty., Omaha, Neb., for appellee.
    Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.
   MEHAFFY, Chief Judge.

The defendant, Harry Lee Buckles, was indicted by a federal grand jury for violation of 18 U.S.C. § 2314. Defendant was convicted after a jury trial and sentenced to six years’ imprisonment. Defendant appealed contending that his conduct did not come within the scope of activities proscribed by 18 U.S.C. § 2314; that the evidence was insufficient to establish a prima facie case; that his motion to suppress certain evidence should have been granted; that the prosecution’s opening statement went beyond the scope of the crime charged and was prejudicial; and that the court’s judgment and commitment was at variance with the indictment. For the reasons hereinafter set forth, we affirm the conviction but vacate and remand the judgment and commitment for correction of an error contained therein.

On February 21, 1973 the American Express Company sent a shipment of 180 blank American Express money orders to H & L Groceries at 4308 East 8th Street, Kansas City, Missouri. H & L Groceries was an agent authorized by the American Express Company to sell and issue American Express money orders. The records of the American Express Company reflect that these money orders were not received by their agent. On March 12, 1973 the defendant negotiated to the Ben Simon store in Lincoln, Nebraska, American Express money order #15-400,934,836 which was from the missing shipment. The money order had been completed in the amount of $95.00 and made payable to Max Van-hook. The defendant represented himself to be Max Vanhook, presented a Missouri driver’s license bearing that name and endorsed the money order “Max Vanhook.” On the same day defendant negotiated another money order from the missing shipment at another Lincoln clothing store. This money order had been completed in the amount of $100.00 and was also payable to Max Vanhook. On March 13, 1973 two additional money orders from the missing shipment were discovered in a jacket found in the house where defendant was taken into custody. The identification which defendant used when negotiating the money orders was also found in this house. The two money orders which defendant was shown to have negotiated were routed through interstate banking channels to the American Express Company in Colorado and were returned marked “REPORTED STOLEN.” Defendant was indicted and convicted for violation of 18 U.S.C. § 2314 in connection with money order #15-400,934,836.

1. Scope of Conduct Proscribed by 18 U.S.C. § 2SU.

The first issue raised by defendant is whether the activity with which he was charged comes within the scope of activities made illegal by 18 U.S.C. § 2314. Defendant contends, first, that a money order is not a security under 18 U.S.C. §§ 2311 and 2314. Although this issue has heretofore not been squarely placed before this court, we have affirmed convictions under this statute where money orders were involved. United States v. Gray, 464 F.2d 632 (8th Cir. 1972); Cloud v. United States, 361 F.2d 627 (8th Cir. 1966). This argument was rejected in a decision by the Tenth Circuit where the court stated:

This contention is grounded upon the fact that although the definition of a ‘security’ is somewhat broad, there is no specific reference to money orders. Nevertheless, it is clear that a money order is an ‘evidence of indebtedness’ and therefore included within the statutory definition.

Nelson v. United States, 406 F.2d 1136, 1138 (10th Cir. 1969).

Accord, United States v. Galardi, 476 F.2d 1072, 1076 (9th Cir. 1973), cert. denied, 414 U.S. 839, 856, 38 L.Ed.2d 75, 106; Castle v. United States, 287 F.2d 657, 660 (5th Cir. 1961), vacated on other grounds, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75. We hold that money orders are securities within the meaning of 18 U.S.C. §§ 2311 and 2314.

Defendant also argues that the statute is unclear as to whether the securities involved must amount to $5,000 and whether “causes to be transported” may support a conviction as opposed to “transported.” We have previously recognized that the third paragraph of § 2314 does not require a $5,000 minimum. Carlson v. United States, 274 F.2d 694, 696 (8th Cir. 1960); cf. United States v. Sheridan, 329 U.S. 379, 389-390, 67 S.Ct. 332, 91 L.Ed. 359 (1946). As to the question regarding “causes to be transported,” it is well settled that causing transportation of forged securities in interstate commerce by negotiation is a violation of this paragraph of the statute and will serve as the basis for prosecution and no personal transportation or mailing of the securities by the defendant need be shown. Amer v. United States, 367 F.2d 803, 804 (8th Cir. 1966); Halfen v. United States, 324 F.2d 52, 55 (10th Cir. 1963). See also Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

We find no merit in defendant’s argument that 18 U.S.C. §§ 2311 and 2314 are indefinite and unclear.

21. Sufficiency of the Evidence.

Defendant’s next point for reversal is that the prosecution failed to establish a prima facie case of forgery or false making of securities. In support of this argument defendant points to the absence of proof that defendant was not in fact Max Vanhook or was not authorized by Max Vanhook to negotiate the money orders in his name. Defendant maintains that in absence of this proof no forgery was shown. Defendant further argues that even if false making is not synonymous with forgery and does not require proof that defendant was not Max Vanhook, the evidence was insufficient to prove false making.

Implicit in this issue is the propriety of fitting the unauthorized issuance and negotiation of a blank money order within the language of the statute. The statute speaks in the disjunctive of “falsely made, forged, altered, or counterfeited securities.” Several years ago this court sought to distinguish between false making and forgery. Pines v. United States, 123 F.2d 825 (8th Cir. 1941). It was held in Pines that:

Forgery, however, does not necessarily carry such presumption but indicates that there is a genuine or real obligor in existence whose obligation has been simulated. To ‘falsely make’ is a crime not of changing or forming an instrument to resemble an existing genuine instrument or to represent that it is the act of a genuine and existing obligor, but rather to make an instrument which has no original as such and no genuine maker whose work is copied, although in form it may resemble a type of recognized security.

Pines, swpra at 828.

Application of this definition to the facts of this case is not difficult. The theory of the prosecution’s case is that the shipment of money orders was stolen or in some manner fell into unauthorized hands; that either the defendant fraudulently filled in the amount on the money order or had knowledge that it had been filled in by an unauthorized person; and that defendant negotiated the check with fraudulent intent causing the money order to be transported in interstate commerce. This theory, if proved, would constitute a forgery within the Pines definition of the term, because the money order was formed or completed by the unauthorized insertion of an amount which caused the instrument to resemble a genuine American Express obligation.

Although the indictment charged the defendant in the conjunctive with transporting or causing to transport “a falsely made and forged security,” we note that this practice is not unusual. United States v. Halfen, 467 F.2d 127 (5th Cir. 1972); United States v. Gray, supra; Cloud v. United States, supra. This form of indictment does not constitute error. See United States v. Tucker, 473 F.2d 1290, 1293 (6th Cir. 1973) cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402.

Defendant’s contention that a forgery was not proved because there was no evidence that defendant was not Max Vanhook or was not authorized by such person to endorse his name to the money order is specious. The offense charged under 18 U.SiO. § 2314 is not forgery but causing the interstate transportation of a falsely made or forged security with knowledge of its false making or forged nature, thus the prosecution was not required to show that defendant was the person who forged the money order.

The remaining question is whether the jury’s decision was supported by substantial evidence. The principle is well-established that the evidence must be viewed in the light most favorable to the Government as the prevailing party. The Government placed into the record the following evidence: (a) on February 21, 1973 a shipment of American Express money orders was sent to H & L Groceries of Kansas City, Missouri; (b) American Express Company did not receive a trust receipt from H & L Groceries, which in the ordinary course of business is the agent’s mode of acknowledging receipt of a shipment of money orders; (c) American Express Company did not receive a sales report or proceeds from H & L Groceries or any other person or business for the sale and issuance of the subject money order; (d) the subject money order was cashed by defendant at a clothing store in Lincoln, Nebraska on March 12, 1973; (e) the money order was complete in form with an amount typed on its face of $95.00 payable to Max Vanhook; (f) defendant endorsed the check with the name “Max Vanhook”; (g) the check passed through interstate banking channels and arrived at the offices of American Express Company; (h) the American Express employee who handles money orders which are lost, misplaced, stolen, raised and forged contacted H & L Groceries, stamped the subject money order “REPORTED STOLEN,” and returned the money order through banking channels; (i) on the same day that defendant cashed the subject money order he cashed another money order from the missing shipment at another Lincoln clothing store in the purchase of some shirts; (j) the witness testified that defendant selected the shirt without looking at the color or size; (k) this money order was in the amount of $100.00 and payable to Max Vanhook; (Í) a third money order from the missing shipment was discovered in a jacket found in the house where defendant was taken into custody; (m) the driver’s license, social security card and credit card in the name of Max Vanhook was found behind a toaster in the kitchen of the house where defendant was taken into custody; (n) defendant subsequently returned to the house, searched for the identification cards and remarked that the police must have them. An examination of this record satisfies us that the jury was justified in inferring that the subject money order was forged and that defendant had knowledge of this fact when it was negotiated.

S. Defendant’s Motion to Suppress.

The next issue involves defendant’s contention that the district court erred in overruling his motion to suppress evidence concerning the money orders removed from the jacket.

Testimony at the trial was to the effect that defendant and two companions had spent the night at the home of Dee Eutzy. Mrs. Eutzy testified that:

About 6:15 the doorbell rang and the police were at the door with warrants for my husband — they were traffic warrants — and he was out of town and they wanted to know if he was at the house and, if not, could they search the house, and I said yes, so they did come in the house.

In the course of that search, the police took defendant and his two companions into custody. As they were leaving the house the police seized two jackets which Mrs. Eutzy said were not hers. In one of the jackets the police found two American Express money orders of the missing shipment, one of which was admitted into evidence at the trial. Defendant maintains that this seizure was illegal and that evidence of such seizure was inadmissible for any purpose.

Defendant’s motion was properly denied. There is no question regarding the voluntariness of Mrs. Eutzy’s consent or that consent freely and intelligently given by the proper person can operate to eliminate any question otherwise existing as to the propriety of a search. Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965), cert. denied, 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353; Burge v. United States, 332 F.2d 171 (8th Cir. 1964), cert. denied, 379 U.S. 883, 85 S.Ct. 155, 13 L.Ed.2d 89. Defendant’s basis for alleging error is that Mrs. Eutzy was not the proper person to consent to a search and seizure of the jackets because they did not belong to her. This basis has no validity because Mrs. Eutzy had the primary right to the occupation of the premises, unlike the situation in Stoner v. California, 376 U. S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), relied on by defendant. It has been held that a host can consent to a search of his premises occupied by a guest. Weaver v. Lane, 382 F.2d 251 (7th Cir. 1967), cert. denied, 392, U.S. 930, 88 S.Ct. 2289, 20 L.Ed.2d 1390 (1968); Burge v. United States, supra; Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959). The consent of a joint occupant of a residence to search the premises jointly oc-

cupied is also valid against the co-occupant. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In Maxwell the defendant also argued that his coat was an item of such personal nature that it could not be seized without his consent. We rejected the proposition saying:

[T]his argument overlooks the consent to the officers’ acquisition of the coat by a person having the proprietary interest in the premises where it was. * * * It was an item which freely came into the hands of the authorities by one who had the right to make it available to them. * * *
The situation therefore appears to us to be one not involving any unreasonable search or seizure within the prohibition of the Fourth, Fifth, and Fourteenth Amendments. Reasonableness, after all, is the applicable standard. [Citations omitted.]

Maxwell v. Stephens, supra at 337, 338.

We find that the search and seizure in this case was no less reasonable and did not violate defendant’s constitutional rights.

A. Prosecution’s Opening Statement.

Defendant further contends that it was prejudicial error for the prosecutor to refer to the money orders involved as being stolen. The transcript reveals that in the course of his opening statement the prosecutor stated that the American Express Company returned the subject money orders and “reported” them stolen. Subsequent testimony proved that this was in fact done. There is no merit to this allegation of error because the routing and handling of the money orders were indeed relevant to the issues involved at the trial. Whether the money orders were stolen was not in issue, however, it was relevant to show that the American Express Company reported the money orders stolen and had them returned when they were presented for payment.

5. Variance Between Indictment and Judgment and Commitment.

Defendant complains of the variance between the indictment and the judgment and commitment. He was charged under 18 U.S.C. § 2314 with transporting and causing to be transported in interstate commerce a falsely made and forged security. The judgment and commitment states that he was found guilty of “interstate transportation of stolen property in violation of Title 18, United States Code, § 2314.” The judgment and commitment should be amended to conform with the indictment.

The judgment is vacated and the case remanded with directions to the district judge to amend the judgment and commitment consistent with this opinion. The judgment of the district court is affirmed in all other respects.

      . This section provides in pertinent part: Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited;
      * Jfc * * *
      Shall be fined not more than $10,000 or imprisoned not more than ten yeárs, or both.


author: PER CURIAM:

text:
    Ernest J. LICHTENSTEIN, Plaintiff-Appellant, v. James R. SCHLESINGER, Secretary of Defense, and Howard H. Callaway, Secretary of the Army, Defendant-Appellee.
    No. 72-3138.
    United States Court of Appeals, Ninth Circuit.
    April 29, 1974.

      Mark T. Susnow, of Susnow & Sullivan, San Francisco, Cal., for appellant.
    J. E. Holmes, III, Washington, D. C., (argued), James L. Browning, U. S. Atty., William T. McGivern, Jr., Asst. U. S. Atty., San Francisco, Cal., for appel-lee.
    Before MOORE, WRIGHT and GOODWIN, Circuit Judges.

       Hon. Leonard P. Moore, of the Second Circuit.

   OPINION

PER CURIAM:

This was an action by a former serviceman under 10 U.S.C. § 1552 and 28 U.S.C. § 1361 to change his discharge from “undesirable” to “general.” The appeal involves the issue whether O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), holding that courts martial jurisdiction extends only to service-connected offenses, is to be applied retroactively. The memorandum decision and judgment of the district court and the briefs herein preceded the Supreme Court’s opinion in Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), which discussed this issue but left it unresolved. Following the reasoning of the plurality opinion in Gosa, we affirm.

In 1956, while an enlisted man in the Army, appellant was stationed at Fort Sill, Oklahoma and lived off the post in the city of Lawton. He was arrested by local police for disturbing the peace and assaulting his wife, but he was shortly thereafter released to military authorities at the Army post. After trial before a Special Court • Martial under UCMJ Article 116, he was found guilty, and was sentenced to confinement for six months with certain pay forfeitures. Later that year, a Board of Review concluded that appellant should be separated from military service. The board considered his court martial conviction together with his entire service record which included other unrelated incidents, punishments and misconducts. Appellant was given an undesirable discharge.

He petitioned the Army Board for Correction of Military Records (under 10 U.S.C. § 1552) to change the nature of his, discharge from “undesirable” to “general.” The petition was denied as was a later request to reconsider, based upon O’Callahan v. Parker, swpra. Appellant urges this court to apply that decision retroactively to a court martial conviction rendered thirteen years earlier. He argues that his 1956 conviction was null and void.

The arguments for and against prospective versus retroactive application of O’Callahan are discussed in the Court’s opinions in Gosa v. Mayden, Justice Blackmun for the plurality, and Justice Marshall, dissenting. We need not repeat them here. We agree with the reasoning of the plurality opinion and hold that in this circuit O’Callahan v. Parker is not to be applied retroactively. We need not decide whether the other misconduct relied upon by the Board of Review and the district court was sufficient to support the undesirable discharge independent of the court martial conviction in question.

Affirmed.


author: MOORE, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLUMBIA TRIBUNE PUBLISHING COMPANY, Respondent.
    No. 73-1259.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1973.
    Decided April 22, 1974.

      John H. Ferguson, Atty., N.L.R.B., Washington, D. C., for petitioner.
    Terence C. Porter, Porter & Cleave-land, Columbia, Mo., for respondent.
    Before MEHAFFY, Chief Judge, MOORE, Senior Circuit Judge, and WEBSTER, Circuit Judge.

       LEONARD P. MOORE, Senior Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.

   MOORE, Circuit Judge.

This case is before the court on application of the National Labor Relations Board pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970), for enforcement of its order against the Columbia Tribune Publishing Company which it has found guilty of violating § 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Columbia Typographical Union No. 160 and § 8(a)(3) and (1) of the Act by refusing to reinstate unfair labor practice strikers upon their unconditional offer to return to work.

The Columbia Daily Tribune, owned by the Tribune Publishing Company, is a daily newspaper of general circulation in Columbia, Missouri. For more than thirty years the Columbia Typographical Union No. 160 of the International Ty-pographieal Union has been the collective bargaining representative for the company’s composing room employees. The latest contract between the union and the company expired on March 31, 1971.

Until April 1, 1971, the type for the Columbia Daily Tribune was set exclusively by the “hot metal process.” This is a fairly complicated method whereby skilled composing room employees cast lines of type in molten lead, assemble those lines by hand into a complete page and send the page on to the pressroom where the pressmen, workers represented by a different union, make up the press plates which actually print the newspaper.

During the fall of 1970, it became apparent to the Tribune’s management that the newspaper’s expanding requirements could not be met if the paper continued to rely on the cumbersome hot metal process. Subsequent to April 1, the company, although intending to continue to use the hot metal process in the production of classified ads, began employing a new technique, the cold type or photo composition process, for the production of most of the type used in its paper. “Cold type” is a process by which type is prepared by simply pasting printed material on a mat which in turn is photographed in a manner that transfers the image to a metal plate which when exposed to acid is etched into a finished plate ready for the press-room. The cold type process eliminates the highly complicated linotype procedure. Consequently, it does not require any of the skilled labor necessary to the hot metal process.

On January 18, 1971, Henry J. Waters, III, publisher and chief operating officer of the newspaper, summoned seven of the approximately twenty-eight composing room employees to his office to inform them of the changes to be made at the Tribune. Waters told the seven employees that he expected to reduce the number of composing room employees by about half and that although these seven, the most senior of the employees, might expect to earn $3 an hour under the new process, others would be paid less depending on what function they performed and how well they performed it.

Neither the president of the Typographical Union nor any other union official was formally notified of this meeting although one of the seven employees at the meeting happened to be the shop steward in the composing room. After learning of the meeting, Union Local President Ronald Ott insisted that the company hold a similar meeting for the entire composing room staff. On February 10, 1971, the company held such a meeting.

On February 19, 1971, after some of the new cold type equipment had arrived, Alfred Shaw, the newly elected president of the local union and successor to Ronald Ott, urged the union members to practice the cold type procedure on their own time on the newly acquired machinery. Prior to March 1, various union officials had requested the company to make the new equipment available to the' composing room employees. Although the company assured the union that such access would be permitted, it gave various excuses to forestall any immediate implementation. Similar inaction prevailed through the first two weeks of March 1972. Finally, on March 17, the union heatedly protested the company’s failure to make the new equipment available to its existing employees or to offer them opportunities for retraining. As a result of this protest, the company permitted the employees to practice on the new equipment on Friday, March 19, and Sunday, March 21.

Meanwhile, on February 28 and March 1, the Tribune had advertised employment opportunities seeking “typists” and “newspaper production trainees.” As a result of these ads, the company interviewed various applicants and on Thursday, March 11, it hired seven or eight new employees and promptly began training them in the new cold type process.

Before their current contract expired on March 31, 1972, the parties held nine bargaining sessions and thereafter, on April 16 and September 8, the parties had two further meetings in which there was significant discussion of contract issues. At these meetings the union initially proposed to continue the previous contract while improving wages and fringe benefits. The company’s initial counterproposal, on the other hand, proposed major alterations in the traditional relationship between the Columbia Daily Tribune and the Typographical Union. First, the company’s counterpro-posals on wages and hours merely restated the requirements of the Fair Labor Standards Act, 29 U.S.C. §§ 206(a)(1), 207(a) (1), viz., that the employees should receive no less than $1.60 an hour and that they should be paid time and one half for all time worked in excess of forty hours weekly. Second, the company’s counterproposal eliminated provisions in the existing contract which defined the foreman’s authority to discipline employees and which provided for union participation in the review of discharge decisions challenged by employees, replacing them with a “management’s rights” clause. Finally, and most significantly, the counterpro-posal omitted any clause, such as that in the existing contract, (1) recognizing the union as exclusive bargaining representative of the composing room employees and (2) providing that all composing room work was within the jurisdiction of the union and could only be performed by union members. The company maintained that the existing jurisdiction-unit clause did not afford it sufficient “flexibility” and that it needed the freedom to assign composing room work to ad salesmen, society and entertainment page editors, and other similar persons who were not regularly employed in the composing room.

By the fourth and fifth bargaining sessions, on March 16 and 17, the parties gave the appearance of being deadlocked on the jurisdiction-unit issue. The union felt that unless the employees were assured the exclusive right to perform unit work, the other terms of the collective bargaining agreement, including the wage scale, “wouldn’t mean a thing.” Trial Examiner’s Decision, Appendix, at 20. By the ninth and final pre-strike meeting between the parties, the company agreed to include the existing jurisdiction-unit clause as long as it was limited to “hot metal employees,” a limited concession in view of the fact that the newspaper was changing almost exclusively to a cold type process. The union rejected this offer. Finally, the company said that it would agree to the continuation of the existing jurisdiction-unit clause if a proviso were added to the effect that anyone could perform the work. The union likewise rejected this proposal on the ground that such a proviso was internally inconsistent With any jurisdiction clause and would completely nullify it. On April 16 the company reverted to its original position and demanded that the union agree to eliminate altogether the jurisdiction-unit clause appearing in the previous contract.

On various occasions when the contract negotiations were becoming snarled on the jurisdiction-unit issue, the union suggested that the parties move on to consider wages and other matters. Publisher Waters, however, resisted these union efforts to break the deadlock on the jurisdiction-unit issue and maintained that there was no use in discussing “wages or anything else” until the parties first came to agreement on the jurisdiction-unit issue. See Trial Examiner’s Decision, Appendix, at 19. On Máreh 23, Publisher Waters responded to the union’s efforts to discuss wages with the statement that “wages would be a matter solely between him and the individual employee concerned and that he (Waters) alone would decide whether the employee should receive an increase * * Trial Examiner’s Decision, Appendix, at 26.

On the evening of March 31, the union’s negotiating team reported to the membership that the company had “made a complete farce out of our negotiations” ; that in consequence no agreement had been reached; that they did not know what the wages, hours or other working conditions would be nor how the employees stood in relation to the newly hired employees; and that they did not know how many employees would be needed to work in the new process. Trial Examiner’s Decision, Appendix, at 28. The employees thereupon voted to strike and the next day began picketing the company. Using the newly hired employees, supervisory personnel, and help from other departments, the newspaper continued operations.

After an abortive attempt to settle the strike on April 16, 1972, the union filed unfair labor practice charges against the company and a complaint issued. Four months later, on August 26, the parties entered into an informal settlement which was approved by the Board’s Regional Director. Under the terms of the agreement, the company agreed that upon their unconditional offer to return to work, it would offer the striking employees “immediate and full reinstatement to their former jobs, or if their jobs no longer exist, to substantially equivalent positions,” discharging if necessary those employees who replaced the strikers. Trial Examiner’s Decision, Appendix, at 30. On September 8, the union presented the company with a list of fourteen named employees who offered to return to work. Publisher Waters, however, stated that he only had two hot metal jobs available, those needed to set the classified ads, and he took the- position that the approximately fourteen cold type positions were not substantially equivalent jobs to which the strikers were entitled under the terms of the settlement agreement. On September 15, the company offered the two most senior strikers reinstatement as hot metal printers, and advised all but two of the remaining strikers that because all hot metal positions were then filled, they would be placed on a preferential hiring list. However, one of the strikers, Mike Naughton, was informed that the company declined to reinstate him because of his “conduct during the strike,” and another striker, Jim Epper-son, was denied reinstatement on the grounds that he had failed to appear for work for two months prior to the strike. The company never elaborated upon the nature of Naughton’s alleged misconduct and no evidence of any misconduct was adduced at the hearing. With respect to Epperson, the union introduced evidence at the hearing to the effect that his absence had been due to illness.

None of the union members accepted the company’s offer of the two hot metal positions. On September 16, 1972, the union filed new unfair labor practice charges and thereafter the Regional Director issued a complaint against the company.

On the foregoing facts the Board found that the company had violated § 8(a)(5) and (1) of the Act by refusing to incorporate in any agreement a description of the appropriate bargaining unit to be represented by the union and by otherwise failing to bargain in good faith. Further, the Board attributed the strike to the company’s unfair labor practices and held the company in violation of § 8(a)(3) and (1) of the Act by failing promptly to reinstate the striking employees upon their unconditional offer to return to work on September 8.

The Board order requires the company to cease and desist from the unfair labor practices found and from any like or related behavior that interferes with its employees’ exercise of their Section 7 rights. The Board order also requires the company: to bargain in good'faith with the union; to offer James Epper-son and Michael Naughton immediate reinstatement to their former jobs or, if those jobs no longer exist, to cold type jobs; to offer the remaining twelve strikers reinstatement to their former jobs or, if those jobs no longer exist, to cold type positions upon their renewed unconditional application for such reinstatement (at the present rate being paid for composing room work); to make the fourteen strikers whole for any losses they may have suffered by reason of the discrimination against them, i. e., by payment of back pay computed on the basis of a $4.33 hourly rate and a 37% hour work week, the conditions of employment at the time the employees became unfair labor practice strikers. NLRB Decision and Order, February 1, 1973, Appendix, at 59-62, and if any employees remain for whom no positions are available, the employer must place such employees on a preferential hiring list with priority in accordance with some traditional non-discriminatory criterion and thereafter offer them reinstatement as such employment becomes available before other persons are hired. NLRB Order Amending Decision and Order, February 8, 1973, Appendix, at 65.

The core issue in this dispute is whether the Tribune Publishing Company is guilty of refusing to bargain in good faith. The determination that a party has failed to bargain in good faith must, in the first instance, be made by the National Labor Relations Board. In affirming the decision of its trial examiner, the Board found that the conduct of the employer before and during the collective bargaining negotiations proved that -it was not meeting its obligation under the National Labor Relations Act. This court can set aside the Board’s decision only “when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951).

Section 8(a)(5) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a) (5) (1970), makes it an unfair labor practice for an employer to refuse to bargain collectively over those subjects, viz., “wages, hours, and other terms and conditions of employment,” stipulated in § 8(d) of the Act. 29 U.S.C. § 158(d) (1970). In Fibreboard Corporation v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), the Supreme Court held that an employer had violated the Act by refusing to bargain with the union over his decision, reached because of economic considerations, to subcontract maintenance work that had previously been the exclusive responsibility of the unit members. The Court found that: “The subject matter of the present dispute is well within the literal meaning of the phrase ‘terms and conditions of employment.’ ” 379 U.S., at 210, 85 S.Ct., at 403. According to the Court, when an employer desires to effect cost savings by contracting out work that had been the responsibility of the union members, it is under an obligation to first “attempt to achieve similar economies through negotiation with existing employees or to provide them with an opportunity to negotiate a mutually acceptable alternative.” 379 U.S., at 214, 85 S.Ct., at 404.

While the facts in Fibreboard specifically dealt with a case in which the employer had subcontracted work previously done by unit members, there seems to be no reason why its rationale should not apply equally where, for financial reasons, an employer has decided to eliminate unit jobs completely. The Board has found the analogy compelling and has held that:

[T]he elimination of unit jobs, albeit for economic reasons, is a matter within the statutory phrase “other terms and conditions of employment” and is a mandatory subject of collective bargaining within the meaning of Section 8(a) (5) of the Act.

Town & Country Mfg. Co., 136 N.L.R.B. 1022 (1962), enforced, 316 F.2d 846 (5th Cir. 1963).

The Board reiterated its position in Rochet d/b./a The Renton News Record, 136 N.L.R.B. 1294 (1962), a ease strikingly similar to the one at bar. In that case a group of newspapers, “[i]n order to meet the demands of increased competition and expanding markets,” 136 N. L.R.B., at 1295, decided, inter alia, to switch from the hot type composing process to cold type composition. The employers were found in violation of § 8(a)(5) and (1) of the Act because they refused to bargain with the Seattle Typographical Union Local No. 202 “over the intended change of operations and its effect on the composing room employees.” Id., at 1296. In reaching its conclusion the Board observed that:

The change in the method of operations in this case is the result of technological improvements. Obviously, such improvements serve the interests of the economy as a whole and contribute to the wealth of the Nation. Nevertheless, the impact of automation on a specific category of employees is a matter of grave concern to them. It may involve not only their present but their future employment in the skills for which they have been trained. Accordingly, the effect of automation on employment is a joint responsibility of employers and the representatives of the employees involved.

Id., at 1297.

There is one substantial difference between the instant situation, where unit jobs are put into jeopardy by the advance of automation, and the Fibreboard case where the jobs were threatened by a subcontracting arrangement. In the latter instance the bargaining unit, even though it was on the verge of dissolution, was nonetheless delineated by static arid acknowledged boundaries. By contrast, one of the inherent by-products of automation is a blurring of the bargaining unit boundaries.

This added complexity has arisen in the case at bar where each side accuses the other of attempting unilaterally to alter the boundaries of the bargaining un- • it. Management contends that the union is attempting to assume jurisdiction over “newly created” photo composition positions, while the union claims that the company is trying to wrench from its control legal jurisdiction over the composing room.

The Board, however, has consistently held that the hot metal and cold type processes are merely two different methods of fulfilling the traditional composing room function of transforming raw copy into printed copy, and that the skills required for the cold type process, though “to some extent modified,” are in many respects “substantially equivalent to those found in traditional ‘hot metal’ composing rooms.” Frye & Smith, Ltd., 151 N.L.R.B. 49, 51-52 (1965). In the instant case the Board held that:

[T]he composing room unit is an appropriate unit for the purposes of collective bargaining and that the conversion by the Respondent of this operation from a hot metal to a cold type process neither impaired the appropriateness of the unit nor the union’s representative status.

NLRB Decision and Order, February 1, 1973, Appendix, at 57-58. It would seem indisputable, therefore, that the technological change brought to the composing room operation was an issue requiring discussion between management and the union which had jurisdiction over the composing room: in this case, the Columbia Typographical Workers Union No. 160.

Because the effect of automation on the. bargaining unit was a mandatory subject of collective bargaining, the employer had a statutory duty to confer in good faith with the union over the issue. It has long been recognized that while this duty does not compel either side to make concessions or to yield any positions fairly maintained, it does require the parties to bargain “with an open mind and sincere intention to reach an agreement consistent with . . . . ” Sign & Pictorial Union Local 1175 v. N. L. R. B., 136 U.S.App.D.C. 144, 419 F.2d 726, 731 (1969). Accord, N. L. R. B. v. Holmes Tuttle Broadway Ford, Inc., 465 F.2d 717, 719 (9th Cir. 1972); N. L. R. B. v. Wonder State Manufacturing Co., 344 F.2d 210, 215 (8th Cir. 1965). See also, H. K. Porter Co. v. N. L. R. B., 397 U.S. 99, 106, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970); N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 404, 72 S.Ct. 824, 96 L.Ed. 1027 (1957).

Whether a party is chargeable with an overall failure to bargain in good faith “involves a finding of motive or state of mind,” which must be inferred from the evidence viewed as a whole. N. L. R. B. v. Reed & Prince Manufacturing Co., 205 F.2d 131, 139-140 (1st Cir.), cert. denied, 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953). There is substantial evidence found in the employer’s conduct both at and away from the bargaining table to suggest that he did not bargain in good faith and, indeed, may even have , been motivated by anti-union animus.

At the bargaining table there was substantial evidence to indicate that management, in discussing the jurisdiction-unit issue, was engaged “in the dilatory tactics traditionally associated with ‘surface bargaining,’ ” Sign & Pictorial Union Local 1175 v. N. L. R. B., supra, 419 F.2d at 738-739, and thereby foreclosed negotiation on a mandatory subject of bargaining. At one point in the negotiations the employer offered to accept the union’s jurisdiction over “hot metal” employees. Another time it agreed to union jurisdiction over the composing room as long as it could assign anyone in its employ to do composing room work. Both of these “concessions”, the only bargaining on the issue undertaken by management, were patently meaningless.

Before the old contract expired, the Tribune Publishing Company delayed making the new photo composition equipment available to the composing room employees for training in preparation for the transition to the cold type process while soliciting, hiring and training new employees for the photo composition work. On various occasions, when discussing the changeover with composing room personnel, the company by-passed the union. Its actions could well be interpreted as an attempt to demean the union’s authority. See, N. L. R. B. v. General Electric Company, 418 F.2d 736, 759 (2d Cir. 1969), cert. denied, 397 U.S. 965, 90 S.Ct. 995, 25 L.Ed.2d 257 (1970). This conduct further underscores the likelihood that the company lacked good faith in its negotiations with the union.

The Board’s finding that the employer failed to bargain in good faith and was therefore in violation of § 8(a)(5) and (1) of the Act, is based on substantial evidence.

Where an employer’s refusal to bargain in good faith is a factor contributing to a strike, then, notwithstanding that other issues may also be involved, the strike is an unfair labor practice strike, and the employer is required to reinstate the strikers upon their unconditional offer to return, even if it is necessary to displace the strikers’ replacements to do so. See, Mastro Plastics Corporation v. N. L. R. B., 350 U.S. 270, 278, 76 S.Ct. 349, 100 L.Ed. 309 (1956); N. L. R. B. v. Imperial Outdoor Advertising, 470 F.2d 484, 486 (8th Cir. 1972); N. L. R. B. v. Cast Optics Corporation, 458 F.2d 398, 407 (3d Cir.), cert. denied, 409 U.S. 850, 93 S.Ct. 58, 34 L.Ed.2d 92 (1972). Here the union’s strike vote was prompted by its negotiating committee’s report that the company had “made a complete farce out of our negotiations.” At a minimum the company’s bad faith bargaining was “a factor leading to the strike.” N. L. R. B. v. Imperial Outdoor Advertising, supra, 470 F.2d at 486. It follows, therefore, that when on September 4, 1972, the union, on behalf of the strikers, made an unconditional offer to return to work on September 8, the company was obliged to offer the strikers (or at least as many of them as were’ necessary to operate the composing room under the cold type process), including Mike Naughton and Jim Epperson, reinstatement and that its failure to do so violated § 8(a)(3) and (1) of the Act.

In spite of the fact that the company was guilty of an unfair labor practice, the remedy resulting therefrom is not easily resolved. The strike coincided in point of time with the technological change-over from the “hot” to “cold” typesetting process. The informal settlement of August 26th approved by the Board’s Regional Director provided that the company would offer to the employees who had gone out on strike on or about April 1, 1971, reinstatement to their former jobs “or if those jobs no longer exist,” to “substantially equivalent positions.” If there were not sufficient jobs for all returning strikers, they were to be placed, in accordance with seniority, on a preferential hiring list of “employees who cannot be reinstated at the time of their offer.”

Disputes as to reinstatement arose and, on September 16th, the union filed new unfair labor practice charges. The Regional Director thereafter withdrew his approval of the settlement. Thus, several questions remain unresolved: what jobs are open; who is entitled to reinstatement having due regard to seniority; and what wages should be paid. The strikers were entitled to such cold type jobs as were available after the change-over and are entitled to such in preference to any replacements, hired to fill cold type jobs, even if it is necessary to dismiss such replacements. The Board recognized that technological change required the strikers, upon reinstatement, to be paid, not at the old flat rate of $4.33 per hour, but rather at the lower rate presently “being paid for the composing room work.” Decision and Order, Appendix, at 59. The Board’s decision was based on the fact that “the cold type process may require lesser skills than those exercised in the hot metal process and the Respondent may be economically justified in paying lower rates.” Id., at 58-59. Nevertheless, the Board ordered back pay to be awarded to the unfair labor practice strikers at the old contract rate, ignoring the fact that the new, less demanding photo composition technique apparently became operative at the beginning of the strike when the unskilled replacements took over the duties of the union members.

The amount which serves as the basis for the back pay award is the amount which the employee discriminated against would have earned but for the discriminatory act. It is grounded upon the rate of compensation normally to be expected during the period. See, e. g., F. W. Woolworth Co., 90 N.L.R.B. 289 (1950). Under the circumstances the rate of pay to be used in enforcing the Board’s make-whole order must be computed on the basis of earnings of employees engaged in cold type work. See, Charley Topping & Sons, Inc., 151 N.L.R.B. 1638 (1965), enforced, 358 F. 2d 94 (5th Cir. 1966). See also, East Texas Steel Castings Co., 116 N.L.R.B. 1336 (1956). Apparently, this wage rate will not be a single flat rate paid to all employees, rather it will vary with skill and experience, averaging $2.25 per hour for the period in question. Trial Examiner’s Decision, Appendix, at 11. Likewise, the back pay award may not necessarily be computed on the basis of a 37% hour work week, the work week under the expired- contract. Rather, it must be based on the work week that would have been worked by the strikers during the relevant period. Finally, back pay can only be awarded to those claimants who would have worked during the period but for the discriminatory practices of the employer. NLRB policy does not require awarding back pay except from the respective dates when each claimant would have been recalled on the basis of seniority and the availability of work. N. L. R. B. v. Robinson Freight Lines, 289 F.2d 937 (6th Cir. 1961). See, also, N. L. R. B. v. American Creosoting Co., 139 F.2d 193 (6th Cir. 1943). Thus, if the transition to the photo composition process eliminated the need for some of the employees formerly required by the hot type method, those employees are not entitled to any award of back pay.

We find that the Board’s determinations of the employer’s violations are in harmony with the evidence and we therefore enforce the Board’s order except that we believe that reinstatement should be ordered according to the jobs required under the cold type process and that the Board should not compute back pay on the basis provided by the expired labor contract. We remand to the Board its make-whole order so that it may compute the award in a manner consistent with this opinion.

      . Under the expiring contract all the composing room employees were receiving $4.33 an hour, regardless of their function.

      . In response to questioning by the Trial Examiner, below Publisher Waters elaborated on the Tribune’s desire for flexibility.
      Waters: [T]he new process * * * was the same kind of work [presently] done by many, many people in the plant. * * * The new process, of course, involved, as we saw here, photoprodueed matter, right reading, the kind of elements that all advertising people had been using all along to make ad layouts, the same kind of elements that people involved in editorial make-up had been using all along to make editorial summaries, dummies, For this reason we felt it imperative the new process could not be properly taken advantage of unless the company had flexibility of using matter produced by people all over the plant which was because of the nature of the new process camera ready or already produced without having to do that duplicated or have a generic function in the other departments listed in a contract with the Typographical Union or any other group,
      T. at 292-94.

      . The Board has had a great deal of experi•ence in resolving disputes of this type. See, J. A. Jones Constr. Co., 135 N.L.R.B. 1402 (1962). See also, Cleveland Newspaper Guild, 191 N.L.R.B. 236 (1971) ; Platt, “The Duty to Bargain as Applied to Management Decisions,” 19 Labor L.J. 143 (1968).


author: GIBBONS, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Parry BELLOTT, Appellant.
    No. 72-2057.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 3, 1973.
    Decided March 27, 1974.

      Julio A. Brady, Joel D. Sacks, U. S. Attys., Frederick G. Watts, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Geoffrey W. Barnard, Isherwood, Colianni, Christiansted, St. Croix, V. I., for appellant.
    Before SEITZ, Chief Judge, and GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

Perry Bellott was indicted for first degree murder, 14 V.I.C. § 922(a), was found guilty by a jury, and was sentenced to life imprisonment. The victim was a paramour with whom Bellott quarreled, apparently over her decision to leave him. The defense offered the testimony of two expert witnesses, a clinical psychologist and a psychiatrist, to the effect that Bellott was, on the date of the offense, suffering from a mental illness and that the act for which he was indicted was committed in consequence of that mental illness. See United States v. Currens,- 290 F.2d 751 (3d Cir. 1961). The government, to meet its burden of proof on the issue of sanity, relied on the observations of persons who saw and dealt with Bellott shortly after the event. With respect to the expert testimony and the government’s burden the trial court, in an opinion dealing with post-verdict motions said:

“Apropos the government’s burden of proof, there is no question but that . the defendant came forward with a sufficient quantum of evidence to overcome the presumption of sanity. The defendants’ challenge to their convictions must be met and dealt with on the clear understanding that it was incumbent upon the government to prove the mental competence of each defendant beyond a reasonable doubt.
****** Defendant Bellott ... at the threshold argues that new trial relief should be granted him as a matter of course inasmuch as the court should have instructed the jury, as a matter of law, that defendants had sufficiently raised the question of the mental illness to cause the burden to shift to the government.” (Memorandum Opinion at 3-4).

Bellott’s position on the post-verdict motion is consistent with Defendant’s Requested Instruction No. 5. quested a charge: Bellott re-

“In this case, the issue of the mental capacity of the defendant to commit the criminal act alleged in the complaint — that is, the question of whether or not his conduct resulted from a mental illness — has been sufficiently raised by the defendant, and the burden of proving sanity as an element of this case beyond a reasonable doubt is on the prosecution.”

The trial court rejected this charge and the instruction given follows:

“Now, Dr. Hogan has testified that in his professional opinion the man is mentally ill and that in his professional opinion the man was mentally ill in December of 1970 and that in his professional opinion the acts with which this man is charged were done by him in consequence or as a consequence of that mentall illness. This is for you to determine. Without encroaching on your province as finders of fact and without suggesting that you find that to be the fact, I do suggest only that this is a sufficient quantum of evidence which you might regard as causing the burden of proof to shift to the Government. It may or may not be enough to warrant a verdict of not guilty by reason of mental illness. It may or may not be enough even to cause the burden to shift when you assess it, but in commenting on the evidence, as is my right to do and as I have said you may reject, but by way of suggestion to you I think it at least satisfies the requirement that the burden should shift.
******
To sum up then that charge, this portion of the charge, if you find that the testimony of the experts called by the defense sufficiently raises the question of the defendant’s soundness, then the burden shifts to the prosecution and you must then search the evidence to see whether the prosecution has satisfied you beyond a reasonable doubt that the defendant had the mental capacity to commit the offense charged or any of the lesser included, because it stands to reason if he hadn’t the mental capacity to commit the offense charged then he hadn’t the mental capacity to commit any of the lesser included.” (Tr. at 253, 255).

The effect of this charge was to place upon the defendant a burden of proof on the issue of his capacity to commit the offense, which he must first overcome before the government has the burden of establishing sanity beyond a reasonable doubt. That charge was improper.

In Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), the Court considered a charge:

“You are to be satisfied beyond a reasonable doubt of the guilt of this defendant before you convict. When you start into a trial of a case, as I have already told you, you start in with the presumption of sanity. Then comes in the responsibility resting upon the defendant to show his condition; to show his irresponsibility under the law. He is required to show that — to your reasonable satisfaction, I say, to your reasonable satisfaction —that it is a state of case where he is excusable for the act.” 160 U.S. at 478, 16 S.Ct. at 354.

Reversing, Justice Harlan, for a unanimous court wrote:

“We are unable to assent to the doctrine that in a prosecution for murder, the defence being insanity, and the fact of the killing with a deadly weapon being clearly established, it is the duty of the jury to convict where the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing. On the contrary, he is entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.
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In a certain sense it may be true that where the defence is insanity, and where the case made by the prosecution discloses nothing whatever in excuse or extenuation of the crime charged, the accused is bound to produce some evidence that will impair or weaken the force of the legal presumption in favor of sanity. But to hold that such presumption must absolutely control the jury until it is overthrown or impaired by evidence sufficient to establish the fact of insanity beyond all reasonable doubt or to the reasonable satisfaction of the jury, is in effect to require him to establish his innocence, by proving that he is not guilty of the crime charged.
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Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defense is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return of the verdict, is whether upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged.”

160 U.S. at 484, 486-488, 16 S.Ct. at 357. See also Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 41 L.Ed. 750 (1897); Matheson v. United States, 227 U.S. 540, 33 S.Ct. 355, 57 L.Ed. 631 (1913). It is true that the presumption of sanity relieves the prosecutor of adducing affirmative evidence of sanity until some evidence of insanity is offered from some source. If no such evidence is introduced the court need not charge on the insanity issue. Whether the charge is appropriate in a given case is a matter to be decided by the court. But once some evidence of insanity is introduced, either in the government’s case or by the defense, the correct charge is that, as with all other elements of the offense, the government has the burden of proof beyond a reasonable doubt. The confusion here arose from the fact that the trial court treated the presumption of sanity as if it imposed the burden of proof to some degree upon the defendant. As United States v. Davis, supra, makes clear, it does not. When in United States v. Currens, supra, the Third Circuit concluded that the Supreme Court would not in 1961 follow the apparent approval by the Davis Court of the M’Naghten rule it cast no doubt whatever upon the continued validity of Davis insofar as that case dealt with burden of proof. See 290 F.2d at 767.

This court has not, so far as we have been able to find, considered the precise issue here presented. We have, however, dealt with two analogous problems, and our opinions suggest that the' charge was error. In United States v. Alle-grucci, 258 F.2d 70 (3d Cir. 1958), we dealt with the so-called “presumption” that unexplained possession of recently stolen goods permitted an inference of guilty knowledge. The trial court charged that “possession of recently stolen goods casts upon those holding them the burden of explaining their possession.” See 258 F.2d at 72. We reversed, holding that such a charge shifted to the defendant the burden of proof on an element of the offense rather than merely permitting an inference to be weighed along with other evidence in determining whether the government had proved the ease beyond a reasonable doubt. In United States v. Barrasso, 267 F.2d 908 (3d Cir. 1959), and United States v. Marcus, 166 F.2d 497 (3d Cir. 1948), we dealt with the so-called “alibi” defense. Both cases rejected a charge that the defendant’s testimony must be believed by the jury in order to raise a reasonable doubt. The rule is that once evidence of alibi is in the case the defendant is entitled to a charge that the government’s burden of proof includes this defense as well as other elements. Thus, we conclude that there has been no departure from the Davis rule that the court’s charge on sanity cannot place any part of the burden of proof on the defendant.

This is not to say that the jury may not be told that there is a presumption of sanity. As the Davis case makes equally clear, that presumption is one of those circumstances of ordinary life which the jury may take into account in weighing all of the evidence to determine whether the government has proved guilt beyond a reasonable doubt. The Tenth Circuit in Otney v. United States, 340 F.2d 696 (10th Cir. 1965), has held that the court may not in charging the jury even refer to the presumption of sanity. That holding seems to go beyond what is required by Davis v. United States, supra. We hold that (1) the court must determine whether there is some evidence, either in the government’s or the defendant’s case, that his act was a consequence of mental illness; (2) if it so finds the court must then instruct the jury that the government throughout the trial has the burden of proving beyond a reasonable doubt that the offense was not the consequence of a mental illness; (3) if it so finds, the court should also instruct the jury that there is a presumption of sanity which it may take into account along with all the evidence in the case in determining whether the government has proved beyond a reasonable doubt that the offense was not the consequence of a mental illness. Since the charge as given placed on the defendant a burden of convincing the jury that the government had the burden of proof on sanity, Bellott must be afforded a new trial.

Bellott contends, however, that he is entitled to a judgment of acquittal because the evidence of his mental condition, as related by the defense experts to the offense, was such that no reasonable man could conclude that the government had met its burden beyond a reasonable doubt. The thrust of his argument is that because he produced expert testimony and the government did not the only reliable evidence of his mental condition suggested that the event was the product of a mental illness. We reject this contention. In addition to the presumption of sanity, there is in the record considerable lay testimony suggesting sanity at the time in question. Bellott contends that lay testimony cannot meet the government’s burden in the face of defense expert opinion evidence. This contention was rejected by the Eighth Circuit in Dusky v. United States, 295 F.2d 743 (8th Cir. 1961), in which Judge (now Justice) Blackmun reiterated the continued validity of the general rule that properly qualified lay witnesses may testify as to the sanity of an accused and that such testimony is sufficient to satisfy the burden of the prosecution even though there is contrary expert opinion. Bellott urges that in a jurisdiction such as the Virgin Islands where the Currens rather than the M’Naghten standard of criminal responsibility applies the rule should be otherwise. Cf. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 994 (1972). We need not decide that issue on this appeal, however, because in addition to the testimony of lay witnesses there is extensive cross-examination of the experts casting considerable doubt upon the factual premises upon which their opinion rested. Since the experts conceded that if the factual premises were incorrect their opinions would be different' there is ample evidence from which reasonable men could have rejected their opinions entirely. Thus, we reject Bellott’s contention that we should reverse his conviction and direct the entry of a judgment of acquittal. That is not to suggest that we think it good prosecutorial practice to rely on cross-examination of experts called by the defendant when the government has prior notice of an insanity defense. Prudence dictates that government expert testimony on the Currens defense be available for the jury’s enlightenment.

The judgment of sentence will be reversed and the case will be remanded to the District Court of the Virgin Islands for a new trial.

      . The opinion dealt with two defendants.

      . Our decision requiring that the Virgin Islands follow the federal rule' of Davis v. United States, supra, should not be understood as a holding that state courts may not use a charge imposing some burden on a defendant with respect to an insanity defense. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).

      . This must be done in language equivalent to that approved in United States v. Currens, supra.