author: FEINBERG, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor, v. UNITED AIRCRAFT CORP., HAMILTON STANDARD DIVISION, Respondent.
    No. 55, Docket 73-1148.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 31, 1973.
    Decided Dec. 28, 1973.

      John Ferguson, Atty., National Labor Relations Board (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Alan D. Cirker and Ken J. Hipp, Attys., Washington, D. C., on the brief), for petitioner.
    Mozart G. Ratner, Washington, D. C. (Ratner & Driesen, Plato E. Papps, Washington, D. C., on the brief), for in-tervenor.
    Joseph C. Wells, Washington, D. C. (Michael J. Bartlett, Washington, D. C., on the brief), for respondent.
    Before MOORE, HAYS and FEIN-BERG, Circuit Judges.
   FEINBERG, Circuit Judge:

The National Labor Relations Board applies for enforcement of its order finding that the United Aircraft Corporation, Hamilton Standard Division (the Company) violated various provisions of the National Labor Relations Act: sections 8(a)(1) and (3) by withholding a scheduled wage increase because the Company’s employees selected Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) as their bargaining representative; sections 8(a)(1) and (5) by withholding the increase unilaterally, and section 8(a)(1) by distributing to its employees a letter designed to disparage and undermine the Union. 29 U.S.C. § 158(a)(1), (3), (5). We conclude that the Board’s order should be enforced, except for the alleged section 8(a)(1) violation based on distribution of the letter.

I

The relevant facts, as found by the administrative law judge and the Board, are as follows. Prior to March 1970, the Company’s employees at its plant in Broad Brook, Connecticut were unorganized. In that period, however, the Union represented employees at other Company plants, and about April 1969, the Company and the Union negotiated a three-year contract covering the Company’s plant at Windsor Locks, Connecticut. That agreement called for an eight per cent increase on April 21, 1969, followed by three per cent increases on the same date in 1970 and 1971. Shortly after the Windsor Locks agreement was executed, the Company posted a general notice at its Broad Brook plant announcing that all hourly paid employees would receive an eight per cent wage increase on April 21, 1969, and three per cent increases on April 20, 1970 and April 19, 1971.

The eight per cent increase at Broad Brook was put into effect, but the three per cent increase one year later was not. That failure of the Company to do what it had said it would is the principal subject of this proceeding. In the period before April 1970, the Union succeeded in organizing the employees at the Broad Brook plant. After an election, the Union was certified as their representative on April 16, 1970. The Company did not put the three per cent increase into effect four days later, as scheduled, and on May 13, the Union requested it to do so. About a week later, the Company replied, indicating its readiness to begin negotiations with the Union and asking it to submit its contract proposals. On May 27, the Company again wrote the Union, for the first time stating that the promised increase would not be put into effect immediately, but adding that it could be considered in the forthcoming negotiations. After a further exchange of letters, the Union, on July 6, filed a variety of unfair labor practice charges. Finally, on July 9, the Company sent a letter to the Union, putting the increase into effect retroactively, but accusing the Union of failing to bargain in good faith and of causing the delay in the implementation of the increase. This letter made clear the Company’s belief that the scheduled increase became subject to negotiation once the Union had been certified. The Company distributed the July 9 letter to the employees in the bargaining unit.

On the basis of these findings, the administrative law judge concluded that the Company had violated sections 8(a)(1) and (5) of the Act by withholding the scheduled April 20 wage increase without notifying the Union. He also determined that the Company had violated sections 8(a)(1) and (3) by withholding the increase because the employees had selected the Union as their bargaining representative. This determination rested on alternative legal theories: first, that the withholding was “ ‘inherently destructive’ of important employee rights” and hence unlawful without a specific showing of illegal intent and second, that distribution of the July 9 letter revealed that the Company’s motive from the outset was to disparage and undermine the Union by placing upon it the onus for the withholding. The administrative law judge made no finding as to whether or not the letter constituted an independent violation of section 8(a) (1).

With minor exceptions not here relevant, a three member Board panel, one member dissenting, adopted the findings and conclusions of the administrative law judge. 199 N.L.R.B. No. 68 (Oct. 11, 1972). Additionally, the Board concluded that distribution of the July 9 letter to the unit employees independently violated section 8(a)(1). The Board’s order, as amended, required the Company to cease and desist from committing the above violations, to bargain collectively with the Union upon request, and to make whole its employees for the period of the unlawful delay of the three per cent wage increase.

II

Withholding of the Wage Increase

A threshold issue before the Board was whether the scheduled April 20, 1970 wage increase was part of the conditions of employment at the Broad Brook plant. The Board found that it was, and the Company on this appeal contends vigorously that it was not. We think that the Board’s finding is supported by substantial evidence.

It is clear that conditions of employment include not only what an employer has already granted but also what it has announced it intends to grant. E. g., Armstrong Cork Co. v. NLRB, 211 F.2d 843, 847 (5th Cir. 1954); NLRB v. Dothan Eagle, Inc., 434 F.2d 93, 99 (5th Cir. 1970). The promise here, absolute on its face and made a year in advance, that a wage increase of a definite size would be put into effect on a specified date would seem to fall well within this rule. The Company’s position, however, is that the promise was implicitly conditioned on the stability of all other elements of the employment relationship at the plant. This stability, the argument goes, was disrupted by the employees’ decision to obtain union representation, thereby making probable intensified employee demands upon the Company. The Board, however, found no such condition on the announcement of the increase, and the matter could well rest there. But going further, conditioning the promise of a wage increase on the absence of union organization would itself be an unfair labor practice. See, e. g., Snyder Tank Corp. v. NLRB, 428 F.2d 1348, 1350 (2d Cir. 1970) (per curiam), cert, denied, 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 632 (1971). The Company’s attempt to phrase the condition neutrally in terms of stability of the employment relationship does not conceal the fact that the operative disruption here was the selection of the Union as bargaining representative. At best, therefore, the alleged implied condition was an improper one, and the argument that the promised increase was not really promised must be rejected.

Once it is decided that the increase was one of the conditions of employment at Broad Brook, the conclusion that the withholding was unlawful readily follows. As we recently observed, few principles of labor law are more firmly established than that an employer violates sections 8(a)(1) and (5) where, as here, it alters conditions of employment without notifying or consulting with the union that represents its employees. Firch Baking Co. v. NLRB, 479 F.2d 732, 735 (2d Cir.), cert, denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973). See NLRB v. Katz, 369 U.S. 36, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); The Developing Labor Law 322-324 (1971) (Supplements 1971 and 1972). Therefore, the Board’s conclusion that sections 8(a)(1) and (5) were violated was clearly correct. With regard to sections 8(a)(1) and (3), it is difficult to imagine discriminatory employer conduct more likely to discourage the exercise by employees of their rights to engage in concerted activities than the refusal to put a scheduled wage increase into effect because the employees, four days before, selected a union as bargaining representative. Thus, the Board was amply justified in concluding that the Company’s conduct in this case was “ ‘inherently destructive’ of important employee rights” and violative of sections 8(a)(1) and (3) without specific proof of anti-union motivation. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967).

The Company maintains, however, that it was entitled to withhold the wage increase in order to improve its bargaining position in the anticipated negotiations with the Union. It argues that it was not required to grant the increase as a “down payment” to the Union but could lawfully make it part of the “entire economic package” to be offered. Essentially, the Company is claiming that it had a “legitimate and substantial” business justification for its conduct. Id. But where, as here, the Board has reasonably concluded that employer conduct is “ ‘inherently destructive’ of important employee rights,” the Board may find that the conduct is unlawful even if the employer produces evidence of such a business justification. Id.; Local 155, Molders Union v. NLRB, 143 U.S.App.D.C. 20, 442 F.2d 742, 746-748 (1971). For the contrary position, the Company principally relies on Chevron Oil Co. v. NLRB, 442 F.2d 1067, 1074 (5th Cir. 1971), and on NLRB v. Crosby Chemicals, Inc., 274 F.2d 72, 77-78 (5th Cir. 1960). But the former decision is distinguishable, and the latter, which we find unpersuasive, antedates and is difficult to reconcile with the Supreme Court decision in Great Dane Trailers, supra. Indeed, the breadth of the Company’s rationale here for withholding the increase graphically illustrates the correctness of the Board’s conclusion. If the Company’s position were accepted, an employer would appear to be entitled, in the hope of improving his bargaining position, to alter all conditions of employment after union certification, reducing wages to the legal minimum and allowing the work environment to deteriorate. The devastating impact that such action would have upon employee exercise of section 7 rights is indisputable. While the business purpose would be “substantial,” we could not characterize it .as “legitimate.”

On this phase of the case, one further point deserves discussion. Citing NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 714-715 (2d Cir. 1969), and J. J. Newberry Co. v. NLRB, 442 F.2d 897, 899-900 (2d Cir. 1971), the Company contends that the difficulty of ascertaining in advance whether or not the promised wage increase was a condition of employment placed it in a dilemma: Both granting the increase (if it was not a condition of employment) and withholding it (if it was) might subject the Company to an unfair labor practice charge of unilaterally altering a condition of employment. This contention is not persuasive. Even assuming arguendo, and incorrectly, that the three per cent increase was not clearly a condition of employment, we perceive no dilemma. An essential element of both horns of the supposed dilemma is the need for unilateral action. But unlike the employers in Dorn’s and Newberry, where no union had become bargaining representative, t te Company here could have avoided all risk by notifying and consulting with the Union as to the course to be followed. Furthermore, the “dilemma” argument is clearly an afterthought. The Company did not produce evidence that fear of violating the law by granting the increase was the actual motive for withholding it. See GAF Corp. v. NLRB, 488 F.2d 306, 308-309 (2d Cir. 1973). To the contrary, the Company admits — even asserts — that it withheld the increase in order to improve its bargaining position.

Accordingly, we enforce that portion of the Board’s order finding that withholding the increase violated sections 8(a)(1), (3) and (5) of the Act.

Ill

Distribution of the July 9 Letter

Here, too, we are confronted with a threshold issue of consequence. The complaint issued by the General Counsel did not specify either the July 9 letter or its distribution as an independent violation of section 8(a)(1). The Company argues that, as a result, it was deprived of adequate notice of, and opportunity to litigate, this supposed violation. The Board takes a contrary position. We agree with the Company and, accordingly, deny enforcement of that portion of the Board’s order.

In considering this issue, we are guided by the Administrative Procedure Act (APA) and the Board’s own regulations. NLRB v. Majestic Weaving Co., 355 F.2d 854, 861 (2d Cir. 1966). Section 5 of the APA, 5 U.S.C. § 554(a), (b) (1970), requires that, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, the parties entitled to notice of the hearing shall be timely informed of the matters of fact and law asserted. Section 10(b) of the Act, 29 U.S.C. § 160(b), applies these standards to those charged with unfair labor practices. The Board’s regulations, 29 C.F.R. § 102.15 (1973), require a complaint to contain a clear and concise description of the acts which are claimed to constitute unfair labor practices. Only paragraph 12b of the complaint in this case even approaches compliance with these standards with respect to the July 9 letter. But even that paragraph, read in conjunction with paragraph 14, alleges merely that the unilateral grant of the wage increase on July 9 violated section 8(a)(5). The Board contends that this allegation is sufficient, relying on the principle that, as long as the underlying facts are alleged in the complaint, the Board may find that conduct violates a different section of the Act from that specified in the complaint. This principle is, however, subject to the important qualification that the shift in legal theory must not prejudice the party charged with the violation. Majestic Weaving, supra, 355 F.2d at 861-862; NLRB v. Pecheur Lozenge Co., 209 F.2d 393, 402 (2d Cir. 1953), cert, denied, 347 U.S. 953, 74 S. Ct. 678, 98 L.Ed. 1099 (1954). Here, we find such prejudice.

The Company appears to have a substantial claim that the July 9 letter constitutes communication protected under section 8(c). The section 8(a)(5) violation alleged in paragraphs 12b and 14, which was summarily dismissed by the administrative law judge, was so lacking in substance that the Company may confidently have expected to obtain its dismissal even without troubling to elaborate its claim of protected communication. And whatever incentive paragraph 12b may have created for the Company to develop this claim was eliminated by the General Counsel’s representation, in response to a request for specification of the conduct alleged to constitute independent section 8(a)(1) violations, that he would rely on no conduct other than that specified in paragraph 6 of the complaint.

We enforce the Board’s order insofar as it is based on the conclusions that the Company violated sections 8(a)(1) and (5) by withholding the April 20, 1970 wage increase without notifying the Union and that the Company violated sections 8(a)(1) and (3) by withholding that increase because its employees had obtained union representation. We deny enforcement of the order insofar as it is based on the conclusion that the Company violated section 8(a)(1) by distributing the July 9 letter to its employees.

      . The administrative law judge dismissed several unfair labor practice charges which are not involved in this appeal.

      . In making this determination, the Board stated without further elaboration that it agreed with the administrative law judge’s implicit conclusion that the letter was not protected communication under section 8(e).

      . On this view of the case, we need not discuss the administrative law judge’s alternative finding that the withholding was unlawfully motivated.

      . In Chevron, there was no alteration of an announced condition of employment. Rather the employer there modified,' with respect to one recently-organized plant, its ordinary practice of offering as bargaining proposals at those organized plants not covered by an industry-wide collective bargaining agreement the wage increases it had just negotiated in the most recent industry-wide contract. 182 N.L.R.B. 445, 449. At that plant, the employer conditioned offer of the increases on union acceptance of extensive “management rights” provisions. Id. at 447-448.

      . See the Board’s opinion in Crosby, 121 N.L.R.B. 412, 416-417 (1958), and the trial examiner’s, id. at 435.

      . During a representation campaign, as in Dorn’s and Newberry, an employer has no one to consult to escape the alleged dilemma. The union is not yet the bargaining representative, and the employees are the very persons whom the employer may be accused of bribing or coercing. Even after a union becomes bargaining representative, of course, its response to an employer’s efforts to consult may be uncooperative or ambiguous. But we do not think an employer can justifiably claim that it is faced with a legal dilemma unless it first seeks union guidance.

      . While paragraph 15 of the complaint alleges that the acts mentioned in paragraph 12b violated § 8(a)(1), this paragraph obviously alleges only a violation of § 8(a)(1) that is derivative of the § 8(a)(5) violation.

      . Member Kennedy dissented from the Board’s decision on this ground, 199 N.L.R.B. No. 68 at 5-6, and the Company’s arguments that the letter would be recognized by the employees as just another in a series of polemical exchanges between the Company and the Union and that the Union was quite capable of defending itself by distributing its own version of the facts have some force.

      . The Board argues that the Company was not prejudiced by the lack of specificity in the complaint, claiming that statements in the briefs to the administrative law judge and to the Board put the Company on notice that distribution of the letter could be regarded as an independent violation of § 8(a)(1). But since the Company may well have been able to introduce persuasive evidence in support of its claim of protected communication, the time to provide notice was before the hearing, not after. Cf. Majestic Weaving, ’supra, 355 F.2d at 861.

      . We choose to deny enforcement rather than remand because over three years have elapsed since the letter was distributed to the employees and because we see no good reason to allow the Board to reopen the proceedings at this point. Of. Majestic Weaving, supra, 355 F.2d at 862.


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    Robert PANGER, Appellee, v. DULUTH, WINNIPEG AND PACIFIC RAILWAY COMPANY, Appellant.
    No. 73-1398.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1973.
    Decided Jan. 11, 1974.

      Tyrone P. Bujold, Duluth, Minn., for appellant.
    John C. Boylan, Minneapolis, Minn., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Circuit Judge.

Defendant, Duluth, Winnipeg & Pacific Railway Co. (DW&P), appeals an $85,000 judgment entered on a jury verdict rendered in favor of its employee, Robert Panger, in this Federal Employers’ Liability Act action for injuries sustained by Panger during the course of his employment.

The plaintiff was employed as a bridge carpenter by DW&P, his job involving the building and repairing of railway bridges. On September 16, 1971, and since September 1, 1971, he was serving as a temporary lead hand due to the vacation of the regular lead hand, Mr. Tappa. The duties of a lead hand are similar to those of a sub-foreman and include the supervision of the activities of a work crew. The accident occurred September 16, 1971. Panger suffered a dislocated left shoulder and a fractured right shoulder.

On that date, Panger and the other members of the work crew arrived at Whitefaee, a station on DW&P’s tracks north of Duluth, Minnesota, at approximately 7:15 a. m. Panger, in accordance with his instructions, obtained a line-up which listed the movements of trains in the vicinity from a DW&P dispatcher at approximately 7:30 a. m. This line-up disclosed a southbound freight that left Virginia, Minnesota, north of Whitefaee, at 6:40 a. m., a- northbound freight which left Duluth at 5:10 a. m., and a work train somewhere on the line between Virginia and Harney, Minnesota, which is south of Whitefaee.

Panger’s work crew had been assigned to install culvert ends on a section of track north of Whitefaee. On the two previous days the crew had remained at Whitefaee painting boxcars due to heavy rail traffic and the presence of the work train. They could only reach their job site by use of a gasoline-powered motorcar which operated upon the railroad tracks. It was necessary before putting the motorcar upon the tracks to know what trains were on the single track between Duluth and Virginia in order to avoid a collision. The line-up procedure was used by the DW&P for this purpose. After receiving the line-up on the 16th, the crew decided that they would wait until the northbound freight from Duluth passed the station and then proceed behind it to their job site, thus gaining its interference against any southbound traffic. The testimony of Mr. Tack, the foreman of the work crew, indicated that although he felt this was an unsafe practice, he had engaged in it himself.

The crew observed the southbound freight pass Whiteface; they then waited for the northbound freight from Duluth. After it passed, they placed the motorcar upon the tracks; this took approximately five minutes and by this time the northbound train was out of sight. They then proceeded some three miles north of Whiteface and were on a sharp curve when they spotted the engine of the work train coming in their direction. Panger and other members of the crew jumped from the motorcar and in so doing Mr. Panger suffered the injuries involved in this suit. Mr. See-hus, the motorcar operator, remained on the motorcar until he brought it to a stop and then jumped. The motorcar was struck by the work train and driven some 300 feet down the tracks from the point of impact.

DW&P contends that all the negligence involved in the accident, if any, should be imputed to Panger since he was acting in a supervisory capacity. Further, the negligence causing the accident was either Panger’s decision to place the motorcar on the tracks, knowing that a work train was in the vicinity, or in Panger permitting his crew to place the motorcar on the tracks under the circumstances. DW&P asserts that it should have been granted a directed verdict or a judgment N.O.V. At trial, there was a factual dispute between the parties as to whether it was one of Panger’s duties to decide when the motorcar should be used. Further, if the railroad was negligent in not including the direction of movement of the work train in the line-up or equipping motorcars with radios as argued, this negligence would not be imputed to Mr. Panger even if he were acting in a supervisory capacity. These questions were properly left to the jury to determine.

Under this statute [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.

Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957), and

[F]or practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of this suit.

Rogers, supra at 508, 77 S.Ct. at 449.

We think there was evidence before the jury which would justify with reason a conclusion that there was at least some employer negligence involved in the accident, and thus defendant was not entitled to a directed verdict or judgment N.O.V.

The defendant presents several challenges to the trial court’s actions in admitting and excluding evidence. It argues that it was error: (1) to allow plaintiff to testify as to how the accident might have been avoided, (2) to refuse to allow proof that the line-up procedure employed was an accepted practice in the railway industry, and (3) to admit evidence of railway disciplinary proceedings. Defendant also claims prejudice in an instruction and in argument of plaintiff’s counsel.

The trial court allowed Panger to testify as to how the accident might have been avoided. Defendant objected, claiming that it was an “expert” opinion and that Panger lacked the requisite qualifications. Although the decision as to the admission and exclusion of testimony generally lies within the discretion of the trial court, Skogen v. Dow Chemical Co., 375 F.2d 692, 704 (8th Cir. 1967); Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966), there should be basic guidelines applicable to opinion and conclusionary type evidence, such as that admitted here. What should have been done to avoid the type of accident in question? We do not think, nor did the District Court, that Panger’s testimony was subject to the qualifications placed upon expert testimony. He definitely was not proposed as an expert in this field. The trial court, upon timely objection, merely ruled that he was a competent witness. Being a lay witness, he could not give an expert opinion but he should be permitted to give his opinion, for whatever weight the j'ury may care to give it, based upon his own personal knowledge of the facts, so long as those facts appear in the record. See, Boehm v. Fox, 473 F.2d 445, 448 (10th Cir. 1973); Gray v. Shell Oil Co., 469 F.2d 742, 750 (9th Cir. 1972).

The Opinion Rule has been a source of confusion in the law of evidence, one which conveniently a.t times has been resolved by merely saying that the admission of opinion testimony is a matter within the trial court’s discretion. The Advisory Committee’s Note to the Proposed Federal Rules of Evidence, Rule 701, states that “necessity as a standard for permitting opinions and conclusions has proved too elusive and too unadaptable to particular situations for purposes óf satisfactory judicial administration.” 51 F.R.D. 315, 402 (1971). Wigmore has called for its total abolition, reasoning:

The Opinion rule day by day exhibits its unpractical subtlety and its useless refinement of logic. Under this rule we accomplish little by enforcing it, and we should do no harm if we dispensed with it. * * * We should do no harm, because, even when the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if desirable, on cross-examination.

VII Wigmore, Evidence, § 1929 (3d ed. 1940).

It is unnecessary to adopt Wigmore’s position in upholding the action of the trial court in this case. An employee injured in an industrial accident is not the ordinary lay witness having no greater experience with the methods of operation in an industry than the average juror. In the performance of his duties he will become more intimately acquainted with the methods of operation of the business than the average juror. His opinion as to how the accident might have been avoided should be admissible as based upon his experience in the industry. We do not say that such an employee qualifies as an expert, but neither should he be subject to the stricter limitations placed on the ordinary lay witness’ testimony. His opinion as to the safety of certain business practices is entitled to whatever consideration the jury may feel it is worth in the circumstances of the case. The extent of his knowledge and the basis for his opinion are matters which may be challenged on cross-examination and his opinion rebutted by other witnesses. This would properly affect the weight of his testimony, not its admissibility.

There was evidence in the record that regular trains and work trains were equipped with radios to communicate with each other and the dispatcher, and evidence showing that the line-up used by DW&P indicated the direction of movement of regular trains but not work trains. Panger’s conclusion that the accident might have been avoided by equipping the motorcars with radios or indicating the direction of movement of work trains on the line-up was based upon his personal knowledge of these facts. The trial court did not abuse its discretion in admitting this testimony, but should have made clear to the jury that this was lay testimony from the victim of the accident, and the defendant should have been accorded the right to counter that evidence with either factual evidence of its own or properly proffered expert testimony.

The DW&P attempted to elicit from their expert, Mr. Libra, the assistant superintendent of roadway maintenance for the Burlington Northern Railroad, evidence as to the common use of the line-up procedure by other companies in the railway industry. The trial court excluded this testimony. We are convinced that this was error and was substantially prejudicial to the Railway’s case. The practices prevailing in an industry are some indication, although not controlling, of what a reasonable and prudent practice is, and should have been admitted. Kuberski v. New York Cent. R.R., 359 F.2d 90, 93, 95 (2d Cir. 1966); Thompson v. Camp, 163 F.2d 396, 402 (6th Cir. 1947). The plaintiff was allowed to give his opinion regarding the use of the line-up. The line-up and what information was necessary to be included therein was very much an important aspect in this case. Although we cannot know upon what basis the jury found negligence on the part of the Railway, we think exclusion of this relevant testimony substantially prejudiced the Railway’s attempt to justify its line-up procedure. We therefore reverse and remand for a new trial.

As other contentions of the defendant are likely to arise upon the new trial of this case, we will briefly discuss the remaining issues.

DW&P contends that evidence of disciplinary proceedings should not have been admitted. Plaintiff says that the results of the proceedings are admissions, as they negate the Railway’s contention that Panger was in sole charge of the work crew and motorcar. Evidence of these proceedings was used in two ways by the plaintiff. First, he introduced evidence that he was not disciplined. We think this was admissible. Plaintiff’s Exhibit 37 was a December 3, 1971, letter from DW&P requiring plaintiff to attend a formal investigatory hearing, the purpose of which was to determine the responsibility for the accident. The fact that the plaintiff was not disciplined was a fact entitled to consideration by the jury. The conduct of a party which could give rise to an inference that the facts are not as he now claims is admissible where inconsistent with contentions at trial. Employers Mutual Cas. Co. v. Mosqueda, 317 F.2d 609, 612-613 (5th Cir. 1963) ; Buhl v. Kavanagh, 118 F.2d 315, 322 (6th Cir. 1941). See also IV Wigmore, Evidence, § 1060 (3d ed. 1940). That the Railway did not find Panger responsible in its disciplinary proceedings is inconsistent with its assertion of his responsibility at trial.

However, we do not think there was an adequate foundation for allowing evidence that Mr. Seehus, the motorcar operator, was disciplined as a result of the investigation. Standing alone, this does not give rise to an inference that the DW&P determined Mr. Seehus to be responsible. There is no showing as to why the discipline was administered. On the present state of the record, it is as likely that the discipline could have been for a technical infringement of rules not connected with the question of responsibility for the accident as it is that the discipline was for conduct contributing to the accident. If plaintiff lays a proper foundation we believe that this evidence, if it does indicate the Railway found someone other than Pan-ger responsible, would be admissible as an admission at the new trial.

The other contentions of error lack merit. Defendant claims that the court placed undue emphasis upon plaintiff’s future wage loss in instructing the jury. No objection was made before the jury retired'as required by Fed.R.Civ.P. 51. Further, the court suggested to defendant’s benefit that the jury make no award for future pain and suffering, and defendant had previously agreed that there was enough evidence to go to the jury on the question of future loss of earnings. We think this issue was properly submitted by the court.

Plaintiff’s counsel in his closing argument to the jury stated that after the verdict was in it was “Goodbye, Bob.” We think it clear that this referred to the evidence in the record that Panger was at present only doing light duty work and that after the trial if he could not do the heavy work required of bridge carpenters he would be terminated by the Railway. The court further gave a cautionary instruction to assure that there was no misunderstanding. This was permissible comment upon the evidence. Lastly, defendant challenges the verdict as excessive. This issue is not properly reviewable here. Such a challenge is properly made on a motion for new trial and not on review in the court of appeals. Chicago Great Western Ry. v. Casura, 234 F.2d 441, 448-449 (8th Cir. 1956); Glendenning Motorways v. Anderson, 213 F.2d 432, 437 (8th Cir. 1954). As noted in Chicago Great Western Ry., supra at 448-449:

We have consistently held that in a tort action, at least where the verdict is not such as has been designated by the United States Supreme Court as “monstrous” or such as to shock the judicial conscience, the question of the excessiveness of the verdict is to be determined by the trial court on motion for new trial and cannot be considered as ground for reversal.

Although the matter is not properly before us, we do not view this verdict as monstrous or shocking to the judicial conscience.

The judgment is reversed and the cause remanded to the district court for further proceedings consistent with this opinion.

      . 45 U.S.C. §§ 51-60. Section 51 predicates liability on negligence “in whole or in part” of the carrier, its officers, agents or employees or “by reason of any defect or insufficiency, due to its negligence, in its cars, * * * or other equipment.”

      . Rule 701 provides :

        Opinion Testimony by Lay Witnesses

      If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
      51 F.R.D. 315, 402 (1971).

      . See also, II Wigmore, Evidence, § 461 at 493 (3d ed. 1940) ; 2 F. Harper & F. James, The Law of Torts, § 17.3 at 977-78 (1956): .
      By the great weight of modern American authority a custom either to take or to omit a precaution is generally admissible as bearing on what is proper conduct under the circumstances, but is not conclusive. Such evidence, coupled with testimony that the custom was observed may be offered to show due care.


author: SETH, Circuit Judge.

text:
    In the Matter of COLACCI'S OF AMERICA, INC. BAR CONTROL OF COLORADO, Appellant, v. Roger C. GIFFORD, Appellee.
    No. 73-1581.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 16, 1973.
    Decided Jan. 18, 1974.

      George J. Francis, Denver, Colo., for appellant.
    M. Bernard Sobol, Denver, Colo., for appellee.
    Before PICKETT, SETH and DOYLE, Circuit Judges.
   SETH, Circuit Judge.

Bar Control of Colorado, the appellant, is in the business of selling bar equipment. It had sold such equipment to a firm which was later adjudicated a bankrupt, and “repossessed” it within four months of the adjudication. The appeal is from an order of the United States District Court affirming an order of the referee in bankruptcy which required Bar Control to pay to the bankrupt estate the value of the bar equipment which it “repossessed.”

The record shows that Bar Control arranged to sell the equipment for installation in a restaurant owned and operated by Colacci’s known as “Tony Colacci’s.” After being told by Bar Control’s president, Mr. Ray O’Neal, of the various ways in which payment could be made, Mr. Leo W. Kennedy, acting on behalf of Colacci’s, agreed to a cash sale with payment to be made upon delivery and installation of the equipment. There appears to have been no inquiry at or prior to the sale as to the buyer’s solvency, and no representations made by the buyer. The equipment was delivered, and the installation by Bar Control took about two days, being completed on November 8, 1969. Mr. O’Neal then asked Mr. Kennedy of Colacci’s for payment, using the following words: “Okay, all we need is a cheek. I will mark the invoice paid and the equipment is yours.” Mr. Kennedy responded that Colacci’s was overextended and did not have the funds with which to pay for the equipment. Mr. O’Neal remonstrated that he had to have payment, and if not, then the equipment. Mr. Kennedy answered that Colacci’s would have the money “in a couple of days.” Mr. O’Neal returned “in a couple of days,” and was again told that Colacci’s did not have the money. Apparently, Mr. O’Neal’s visits over the following months to Colacci’s were numerous, but all without success in obtaining payment. The equipment remained in use at Tony Colacci’s throughout this period.

Colacci’s financial difficulties became apparent, and a committee of creditors was formed. Mr. O’Neal, the representative of Bar Control who had negotiated the sale of the equipment, was on the committee and attended meetings thereof on February 24 and on March 8, 1970. On March 18, 1970, Mr. O’Neal ordered the employees of Bar Control to remove the greater part of the equipment which Bar Control had installed at Tony Colac-ci’s. This was done about 6:30 a. m. while only two cooks were present on the Colaeci’s premises. Colacci’s was then insolvent under any test.

The referee held that under the Uniform Commercial Code, Colo.Rev.Stat. 1963, Vol. 7A, §§ 155-1-101 to 155-11-102 (1965), and more particularly Article 2 thereof, §§ 155-2-101 to 155-2-725 (1965): (1) title to the equipment passed to Colacci’s when it was installed, section 2-401(1) (2); (2) when payment was not made and Mr. O’Neal allowed the equipment to remain on the premises of Tony Colacci’s to be used daily for four months, this amounted to tacit consent to its retention by Colacci’s; (3) in the event the sale could be construed as a credit transaction, Bar Control did not claim the equipment within ten days after Colacei’s had received it, assuming that Colacei’s was insolvent at that time, and could not reclaim it under section 2-702(2); and (4) Bar Control never cancelled the contract by reason of nonpayment, at least until the equipment was “repossessed” some four months later, so that the provisions of section 2-703 would also not apply to aid Bar Control.

The referee thus concluded that the repossession of the equipment by Bar Control was a voidable transfer under sections 1(30) and 60 of the Bankruptcy Act, 11 U.S.C. §§ 1(30), 96, and ordered Bar Control to pay to the trustee the value of the equipment wrongfully retaken. The district court, on petition for review, affirmed the referee’s order.

It is apparent that the transaction was negotiated as a cash sale with payment due on delivery, which included installation. Section 2-507(2) of the Uniform Commercial Code in Colorado provides in part:

“Where payment is due and demanded on the delivery to the buyer of goods . . . , his right as against the seller to retain . them is conditional upon his making the payment due.”

The Officiál Comment to the UCC section states:

“Should the seller after making such a conditional delivery fail to follow up his rights, the condition is waived. The provision of this Article for a ten-day limit within which the seller may reclaim goods delivered on credit to an insolvent buyer is also applicable here.”

The Code provision is expressed in terms of the conditional right of the buyer to “retain” the goods delivered on a cash sale. The Official Comment, however, refers to “waiver” of the “condition” by the seller, thus again referring to the right to “retain.” We take this to mean possession and the right to possession. The record here shows that the seller did nothing while the sale was a cash sale to “follow up” his rights. Thus there was a waiver by inaction relative to retention as the Comment contemplates. This inaction, as we have indicated, continued for several months, and extended into the period when the sale had become a credit sale.

The Official Comment quoted above refers to a reclaiming seller, and states, as we understand it, that if the credit seller does not follow up on his rights as to possession, there is a waiver. The code provisions relating to a reclaiming seller contemplate, of course, a sale on credit. The sale here concerned became such a sale. Bar Control here urges that it is such a reclaiming seller entitled to the equipment as against the trustee.

The relative rights of a reclaiming seller and a trustee in bankruptcy have generated considerable controversy among UCC commentators. We find, however, that the facts of this case make it unnecessary to decide such an issue. Section 2-702 of the Code identifies the rights of a reclaiming seller as follows: “Where the seller discovers that the buyer has received goods on credit while insolvent, he may reclaim the goods upon demand made within ten days after the receipt, . . . .” The transaction under consideration became a credit sale, and a necessary prerequisite to the right to reclaim is a demand for the return of the goods made within ten days of their receipt. Neither Colorado nor other Code jurisdictions provide much help as to what constitutes sufficient “demand” for this purpose, nor how actively the seller must pursue his reclamation attempt. We must agree, however, with the referee that Bar Control by its conduct in this matter failed to achieve its desired status. Referring again to the Official Comment quoted above, the “follow up” by a person seeking to be a reclaiming seller is not defined. However, this “follow up” we take to mean a regaining of possession or a bona fide attempt to do so. Bar Control did not so act, and instead acquiesced in Colacci’s retention of the goods for some four months after they were delivered, although not without some argument and without an expressed consent. The insistent demands were for payment, and Bar Control hoped to be paid for the equipment during the stalling, and so allowed it to remain at Colacci’s. Not until March 18, 1970, and after two creditors’ meetings, did Bar Control take action to “follow up” its demand. Bar Control thus did not become a “reclaiming seller.” In re Behring & Behring, 5 U.C.C.Rptg.Serv. 600, 42 Ref.J. 92 (N.D.Tex.1968); R. Duesenberg and L. King, 2 Bender’s Uniform Commercial Code Service, Sales and Bulk Transfers, § 13.03(4) (c), at 13-18 n. 24.1 (1973 Cum.Supp.). The subsequent repossession was ineffective to improve its position in this respect or in any other respect.

Bar Control next asserts that by the retaking of the equipment, it “can-celled” the sales agreement as a remedy under the Uniform Commercial Code § 2-703 (f). The Code does not provide much detail as to this as a remedy. However, the argument of appellant based thereon is no more than an attempt to describe the consequences of seller’s action with a relation back. This as a “remedy” of the seller is unrealistic in the face of the filing of the petition for bankruptcy within four months thereafter. The “cancellation” by retaking the goods could not be effective because whatever the action is called, it was still a “transfer” within the meaning of the Bankruptcy Act “for or on account of an antecedent debt” within four months of the filing of the bankruptcy petition. See Glessner v. Massey-Ferguson, Inc., 353 F.2d 986 (9th Cir.); see also In re Helms Veneer Corp., 287 F.Supp. 840 (W.D.Va.1968).

There is nothing in the record to support an argument that the seller had even an unperfected security interest in the equipment.

We must hold that the repossession of the bar equipment by Bar Control constituted a preferential transfer under sections 1(30) and 60a of the Bankruptcy Act, 11 U.S.C. §§ 1(30), 96(a), as did the trial court and the referee. Other issues presented have been considered but need not be decided.

Affirmed.


author: ROSENN, Circuit Judge.

text:
    TOLTEC METALS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1209.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 25, 1973.
    Decided Jan. 25, 1974.
    John J. Bracken, Bracken & Craig, Newark, N. J., for petitioner.
    Fredric Sagan, Marcel Mallet-Prevost, N.L.R.B., Washington, D. C., for respondent.
    Before McLAUGHLIN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This petition involves the basic duty of an employer to continue to bargain with a union whose representative status it has orally recognized even though the recognition was solely on the basis of a check of union authorization cards. The employer contends that its subsequent “good faith doubt” of the validity of a number of the cards and the absence of any independent unfair labor practice on its part relieves it of any duty to continue bargaining until certification following a secret Board election. The NLRB found that the refusal of the employer to bargain collectively with the Union constituted an unfair labor practice and ordered the employer to bargain in good faith.

The employer, Toltec Metals, Inc., petitions this court for review of the Board order pursuant to § 10(f) of the National Labor Relations Act as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) and the Board has made cross-application for enforcement of its order pursuant to § 10(f) of the Act. Since we find that the Board’s findings are supported by substantial evidence and Toltec’s legal contentions are without merit, we grant the cross-application for enforcement of the order and deny the petition for review.

Toltec is a New Jersey corporation which manufactures, sells and distributes steel electrical enclosures and related products. In response to an employee’s request, Local 569, Sheet Metal Workers International Association, AFL-CIO (the Union), sent representatives to the Toltec plant to solicit employees to sign union authorization cards. On May 22, 1972, the Union sent a telegram to Robert Figliuolo, Vice President of Toltec, stating that the Union represented a majority of the production and maintenance employees in the plant.

On May 24, Silverstein, president of the Union, visited the plant and requested of Figliuolo that the company recognize the Union. After Figliuolo requested further proof that the Union represented a majority of workers in the unit, Silverstein showed him authorization cards signed by ten of the sixteen employees in the unit. As Figliuolo testified at the later hearing,

I made a conclusion that he [Silver-stein] had a majority of people and that is why I scheduled a meeting. As far as I was concerned at that time it was a legal majority .

A negotiating session was scheduled for May 30 and postponed until June 2. Prior to that meeting, two of the employees in the plant who allegedly knew little or no English and who had signed authorization cards told Figliuolo that they wished to have their names removed from the Union list. According to Figliuolo’s testimony at the hearing, these employees also told him that they had been told (presumably by someone who had sought their signatures to the cards) they could not continue to work for the company unless they signed the authorization cards. Figliuolo related this incident to Silverstein on June 2. Silverstein responded that the employees could not have been threatened by the Union because this was not a Union practice. Silverstein offered to reassure the two employees, but Figliuolo refused to divulge their names.

A bargaining session then took place (June 2) with five Union and two employer representatives, including Figli-uolo and Silverstein. The parties discussed specific articles contained in the Union’s standard agreement, a copy of which had previously been given to Fig-liuolo. Although there is some dispute as to which provisions were agreed to during the hour and a half negotiating session, the Trial Examiner found that agreement was reached on the standard Union recognition clause, the union security clause, and other non-economic provisions, including the establishment of a plant shop committee. When Toltec claimed financial hardship, the parties agreed, at the company’s request, to postpone discussion of economic issues until June 5, by which time a Union accountant would have examined the company’s financial records and reported to the Union. Immediately following the bargaining session, Silverstein reported on it at a meeting with all but one of the employees in the bargaining unit present. No employee expressed any interest in disassociating himself from the Union.

Before the scheduled resumption of negotiations on June 5, Figliuolo informed Silverstein that two additional employees had informed him that they did not desire to belong to the Union and that the company was going to file an RM petition with the Board. Figli-uolo refused to resume bargaining with the Union, and Toltec has since not bargained. The next day Figliuolo filed a petition with the Board requesting a Union election among company employees, and the Union filed an unfair labor practice charge with the Board alleging Toltec’s refusal to bargain since June 5.

On the basis of these facts, the Board concluded that Toltec had violated § 8(a)(5) and (1) of the National Labor Relations Act, by refusing to bargain collectively with a union that it had previously recognized voluntarily. The resulting order requires that Toltec cease and desist from refusing to bargain with the Union, and affirmatively requires that Toltec bargain upon request with the Union.

It is clear that an employer who has not committed a contemporaneous unfair labor practice, when confronted initially with a union request for recognition based on authorization cards, may decline immediate recognition of the union and insist on a secret ballot election. NLRB v. Gissel Packing Co., 395 U.S. 575, 591, 600, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); NLRB v. Frick Company, 423 F.2d 1327, 1330 n. 6 (3d Cir. 1970). In the present case, however, the Board contends that Toltec did in fact voluntarily recognize the Union, and that this initial recognition prevents the company from thereafter withdrawing recognition. The distinction between refusal to recognize in an organizational context and withdrawal of recognition from a validly recognized union is well established. See Frick, supra, 423 F.2d at 1330 n. 6.

Toltec first contends that it never recognized the Union and that therefore its refusal to bargain on June 5 did not constitute an unfair labor practice. Toltec argues that, particularly in light of its inexperience in labor matters, its actions in setting up and attending the previous bargaining session should be interpreted consistently with what it alleges were continuing good faith doubts that the Union in fact represented a majority of employees in the unit. Under this theory, we are asked to interpret these prior activities of Toltec as merely tentative discussions pending clarification of the Union’s representative status.

In support of its position that it never recognized the Union, Toltec relies heavily on Figliuolo’s testimony that because of his doubts as to the validity of a number of the union. authorization cards, his negotiations with the Union representatives were merely tentative, “a time-saver pending recognition.” The Trial Examiner, however, relying on the comparative demeanor of the witnesses and the poor memory displayed by Figliuolo, expressly refused to credit Figliuolo’s testimony in this regard. Furthermore, the Trial Examiner found inconsistencies between Figliuolo’s testimony concerning his conversations with the allegedly non-English speaking employees, and his prior sworn affidavits. He also found it unlikely that if Figli-uolo in fact considered the negotiations to be tentative, he would have permitted the Union accountant to examine the company’s confidential financial records and to agree to negotiate further after the Union audit. Finally, Figliuolo admitted that at no time during the June 2 bargaining session did he state that he considered the negotiations to be tentative, despite Silverstein’s statement that “you are unionized.”

We must uphold the Board’s factual finding that Toltec did recognize the Union if the finding is supported by substantial evidence. NLRB v. Broad Street Hospital and Medical Center, 452 F.2d 302 (3d Cir. 1971). In making this determination we must also keep in mind that “the responsibility to resolve issues of credibility is for the Board and not for the Court.” NLRB v. Wings & Wheels, Inc., 324 F.2d 495 (3d Cir. 1963). Applying these standards, we are convinced that the record more than adequately supports the Board’s finding. Figliuolo’s assertion that he considered the negotiations to be tentative was a matter of credibility for the Trial Examiner. Moreover, the assertion was inherently suspect in light of Figliuolo’s other statements and actions at the time.

Toltec next contends that even if it be deemed to have recognized the Union, its good faith belief that a number of the union recognition cards were fraudulently procured justifies its refusal to continue bargaining. We reject this contention.

First, even if a good faith doubt in the Union’s continued majority status would have justified Toltec in refusing to continue bargaining, Toltec has failed to sustain its burden that it “come forward with evidence casting ‘serious doubt on the union’s majority status.’ ” Frick, supra, 423 F.2d at 1331. As has been succinctly stated in NLRB v. Rish Equipment Co., 407 F.2d 1098, 1101 (4th Cir. 1969),

To meet this burden “requires more than an employer’s mere mention of [its good faith doubt] and more than proof of the employer’s subjective frame of mind.” What is required is a “rational basis in fact.”

In the present case, Toltec submitted no evidence to support its contention of good faith doubt other than Fig-liuolo’s testimony which the Trial Examiner found confusing and unpersuasive. Although the employees who had complained to Figliuolo were present at the hearing, Toltec did not call any of them as witnesses. Nor did Toltec introduce evidence in support of its contention that it believed the poor English of certain of its employees made it unlikely that they had understood what they signed. Toltec has not by any minimum standard sustained its burden of demonstrating good faith doubt in the continuing majority status of the Union.

In any event, however, even a good faith doubt of the Union’s continuing majority status would not have justified Toltec’s withdrawal of Union recognition on June 5. In Brooks v. National Labor Relations Board, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954), a union had won a representative election by a vote of eight to five. Just prior to Board certification of the union, nine of the thirteen employees signed a letter to the employer stating that they were not in favor of being represented by the union. The Board found that the company’s ensuing refusal to bargain with the union after certification constituted an unfair labor practice. The Supreme Court upheld the Board, approving of the Board’s policy of not permitting an employer to challenge the majority status of a certified union for a reasonable period of time, normally one year, following Board certification.

In effect, therefore, Brooks establishes an irrebuttable presumption of continued union majority status for a reasonable time, normally one year, following certification. The courts have held that the presumption continues after that period, but it can then be rebutted by an employer’s showing of good faith doubt in the continuing majority status of the union. Frick, supra, 423 F. 2d at 1330-1331. In Frick itself, we upheld the Board policy of applying an irrebuttable presumption of continued majority status for a “reasonable period of time” to voluntarily recognized unions, and applying a rebuttable presumption thereafter. 423 F.2d at 1332. In Broad Street, supra, we held that the irrebutta-ble presumption which we upheld in Frick applies equally to a voluntarily recognized union even where the recognition was never reduced to writing. Under Broad Street, therefore, Toltec had no justification for withdrawing recognition even if it could show good faith doubts as to the union’s continuing representative status. -

Toltec contends, however, that the Broad Street doctrine should not be applied because Toltec is not accused of committing any unfair labor practices aside from the refusal to bargain, and that therefore there is no danger that the alleged loss of union majority status is due to unfair labor practices of the employer. This argument assumes that Broad Street and the earlier cases were based solely upon the fear that employers would first destroy union majority status by unfair labor practices, and thereupon justifiably maintain a good faith doubt as to that majority status. However, Broad Street emphasized that voluntary recognition should also be enforced because

the inability of all parties to the collective bargaining process to rely on such recognition would produce an uncertainty potentially generative of strife and discord in industrial relations.

452 F.2d at 305. In the necessary interests of labor stability in the bargaining process which we recognized in both Frick and Broad Street, we decline to hold that an employer may at any time withdraw a voluntarily granted union recognition as long as it commits no independent unfair labor practice. The improper withdrawal of recognition itself constitutes the unfair labor practice.

Furthermore, as pointed out by the Board, Toltec’s view if accepted would discourage unions from accepting voluntary recognition even if the employer freely conceded the union’s majority status and began bargaining, since only a Board conducted election could bind the employer. The Board rightly concluded that such a consequence would disrupt the industrial peace that the Act was intended to foster. As we stated in Frick and Broad Street,

The Board has . . . struck the balance between the conflicting goals of national labor policy — free choice of representatives and providing stability for established bargaining relationships. We will not disturb that balance.

452 F.2d at 306.

The petition for review will be denied and the cross-application for enforcement will be granted.

McLAUGHLIN, Circuit Judge, dissents.

      . All transactions concerning this case occurred in New Jersey, and the jurisdiction of the Board is not contested.

      . The parties have stipulated that the 16 production and maintenance employees constitute an appropriate bargaining unit.

      . Sec. 8. (a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.
      (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9 (a).
      61 Stat. 136, 140-41 (1947). [29 U.S.C. § 158(a) (1),(5).]

      . The Board decision, 201 NLRB No. 149, adopts in full the findings, conclusions, and order of the Trial Examiner.

      . Quoted with approval by us in NLRB v. Frick Company, 423 F.2d 1327, 1331 (3d Cir. 1970). Also see cases cited in footnote 7, 8 and 9 of Frick, supra.

      . There is no contention that the period of less than a week constituted a reasonable period of time and, if made, the contention would have been implausible.


author: HASTINGS, Senior Circuit Judge.

text:
    INDEPENDENT VOTERS OF ILLINOIS, a voluntary statewide association of Illinois voters, et al., Plaintiffs-Appellants, v. Stanley T. KUSPER, Jr., Individually and as Chairman of the Board of Election Commissioners of the City of Chicago, et al., Defendants-Appellees.
    No. 73-1138.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 21, 1973.
    Decided Jan. 10, 1974.

      Thomas R. Meites, Philip J. Bakes, Jr., Michael L. Shakman, Chicago, Ill., for plaintiffs-appellants.
    Aldus S. Mitchell, Sophia H. Hall, Paul P. Biebel, Jr., Chicago, Ill., for defendants-appellees.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CHRISTENSEN, Senior District Judge.

       Senior United States District Judge A. Sherman Christensen of the District of Utah is sitting by designation.

   HASTINGS, Senior Circuit Judge.

This action arose in connection with the March 21, 1972, Democratic Party primary election for the office of Cook County, Illinois, State’s Attorney. One of the plaintiffs, Donald Page Moore, was an “independent” candidate in that election. The other plaintiffs are the Independent Voters of Illinois (IVI), a voluntary association of Illinois voters; Michael Shakman, Chairman of IVI and a previous independent candidate for elective office in Cook County who “intends to be an independent candidate for elective public office in the future”; Alan Wiseman, who filed a statutory objection to the nominating petition of the “regular” Democratic candidate for State’s Attorney, Raymond Berg; and three individuals who supported and voted for Moore in that election. In addition, the complaint states that all individual plaintiffs are registered Democratic Party voters, and that all intend to vote in future primary and general elections in Cook County. The suit is brought against the Board of Election Commissioners of the City of Chicago (“the Commissioners”); its former Chairman, Stanley T. Kusper, Jr.; and Edward J. Barrett, former Cook County Clerk. Under Illinois law, defendants are custodians of the voter registration records of all Cook County voters.

Plaintiffs filed this action on December 28, 1971. In its original form the complaint sought to require defendants to make available for inspection and copying all records and documents in defendants’ possession and control. In particular, plaintiffs sought to compel discovery of the original nominating petition filed with defendant Barrett in support of the candidacy of the before mentioned Berg, as well as all voter records which might be used as evidence by plaintiff Wiseman in support of his objection to said petition. The three-member board charged by Illinois law with hearing and ruling on objections to the petition, the Cook County Officers Electoral Board (“the Electoral Board”), was also named a defendant in the original action, as were the Democratic Organization of Cook County; the Democratic County Central Committee; Richard Daley, mayor of Chicago; the City of Chicago; and the County of Cook. None of the last-named defendants, including the Electoral Board, are parties to the amended complaint which is the subject of the present appeal. Both the original and amended complaints allege the violation of First, Fifth and Fourteenth Amendment rights, and jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1343, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. §§ 1983 and 1985.

Even though the amended complaint seeks relief only in futuro, a review of the facts which gave rise to the original action is necessary in evaluating this appeal.

Under applicable Illinois law, petitions of candidates for nomination for county office must be signed by at least one-half of one percent of the qualified electors of the candidate’s party. Ill.Rev. Stat.1971, ch. 46, § 7-10(c). For the 1972 Cook County Democratic primary this amounted to approximately 5,500 signatures. There is no upper limit on the number of signatures which may be submitted. Once the petition is filed, it is presumed valid unless objected to by means of an “objector’s petition” filed by a qualified voter within five business days after the last day for filing nominating petitions. Ch. 46, § 10-8. An administrative tribunal known as the “County Officers Electoral Board” hears and passes upon such objections. The Board is required to initiate hearings between three and five days after receipt of the objector’s petition. Ch. 46, § 10-10. ' Among the Board’s powers is the authority to issue subpoenas duces tecum for production of documentary evidence relevant to the Board’s inquiry. Id.

The nominating petition of Raymond Berg for the office of Cook County State’s Attorney was filed with defendant Barrett at 3:00 p. m. on December 20, 1971, which was the final day for filing such petitions. The Berg petition contained approximately 20,000 signatures which, according to plaintiffs’ brief, “were reportedly gathered in less than four hours with the assistance of county and city employees signing and circulating the petitions when they were supposed to be at their jobs.” Allegations of forgeries and other defects in connection with the Berg petition subsequently appeared in the press.

In anticipation of the filing of an objector’s petition, certain of the plaintiffs on December 20 requested permission from defendants to inspect the Berg petition. This request was refused. Defendants also refused subsequent requests for access to voter registration cards which plaintiffs wished to inspect in order to expose forgeries in the petition. On the afternoon of December 22, defendants for the first time provided plaintiffs with copies of the Berg petition. They freely admit that at no time did they voluntarily permit access to the registration records.

In justifying their refusal to comply with plaintiffs’ request, defendants relied both then and now on the following provision of the Illinois Election Code:

“ * * * [N]o information contained in the register of voters, except the name and address of the voter and the name of the political party in whose primary the voter voted, shall be given by the officer in charge thereof or copied by any person except in those cases where the information given or the copy made or desired is for the purpose of determining the question of the exercise of the right to vote.” Ill.Rev.Stat.1971, ch. 46, § 6-65.

The proper construction of this statute is not at issue here. For purposes of this appeal, it suffices that the statute is ambiguous and arguably condones defendants’ conduct with respect to the registration records.

On December 27, plaintiff Wiseman timely filed an objector’s petition in opposition to the Berg candidacy. The petition raised numerous objections to both individual signatures and entire sheets of signatures contained in the Berg petition. Challenged signatures were listed in an appendix; the petition requested that the Electoral Board compare such signatures with the original registration records. The petition also recounted plaintiffs’ frustrated attempts to obtain access to the records and held forth the possibility that the objections would thereafter be supplemented.

The following day, December 28, the present action was initiated in district court. The complaint asked that plaintiffs be granted immediate access to the original petition and the . registration records in order that they might thereby obtain sufficient evidence to effectively challenge the petition before the Electoral Board. In addition, the complaint asked the court to enjoin the Electoral Board from holding hearings on objections to the Berg petition “prior to a date which permits examination of the materials requested herein and proper preparation of the objections on the basis thereof.”

The parties’ initial skirmish in federal court was inconclusive. An emergency hearing on plaintiffs’ motion for a preliminary injunction was held before Judge Decker on December 29. At the conclusion of the hearing the court indicated that it was prepared to rule in plaintiffs’ favor on the strength of our opinion in Briscoe v. Kusper, 7 Cir., 435 F.2d 1046 (1970), and requested that the parties prepare an order setting .forth the procedures to be followed in conducting the inspection. The following day an agreed order was entered and the complaint was dismissed. The order nevertheless reserved for plaintiffs the right to reinstate their complaint should defendants fail to abide by their agreement. Inspection was to be accomplished before January 5, 1972. The order did not enjoin the Electoral Board from commencing hearings. The Board convened as scheduled on December 31, at which time it continued the proceedings without hearing evidence, until January 5.

On January 4, plaintiffs moved to reinstate the complaint on the grounds that defendants had failed to provide all the information required by the December 30 order. The motion also alleged that the Electoral Board had denied plaintiffs due process of law by refusing to issue certain subpoenas and by deferring until January 5 a motion by objector Wiseman for a second continuance of the objection proceedings. The court deferred ruling on the motion to reinstate until after the Electoral Board’s hearing on January 5. At that hearing the Electoral Board denied the motion for a continuance and dismissed the Wiseman objection on the ground that no evidence had been presented in its support.

There followed a return by plaintiffs to federal court. On January 13, the judge regularly assigned to the case, Judge McMillen, entered an order reinstating the complaint. A motion to vacate the decision of the Electoral Board was denied, however. Thereafter Wise-man undertook to obtain judicial review of the Electoral Board action in the state courts, which culminated in an adverse decision by the Illinois Appellate Court on March 17, 1972, four days before the election. See Wiseman v. El-ward, 5 Ill.App.3d 249, 283 N.E.2d 282 (1972). In the March 21 election, both Berg and plaintiff Moore were defeated.

Undeterred, plaintiffs on May 30,. 1972, amended their federal complaint to allege that the conduct originally complained of was of a continuing nature, and to seek an injunction requiring defendants “within a reasonable time before any primary or general election in Cook County, Illinois to make available * * * for inspection, copying and photocopying all documents and records of any kind in their possession or control relating to qualifications to vote, to hold public office, and to participate in the electoral process * * The district court finally dismissed the action on December 6, 1972, on the ground that the amended complaint failed to state a claim for which relief could be granted. The court stated that the .complaint’s deficiency “could be termed mootness, or lack of a justiciable controversy, or lack of present injury.” It noted that “[wjhether the same or similar situations will arise in the future cannot be known, but even if they do, the circumstances and participants, particularly on the plaintiffs’ side, will almost surely be different.”

On appeal, the initial issue thus concerns plaintiffs’ contention that the district court erred in concluding that the controversy was either moot or nonjusti-ciable. In substance, the complaint alleges that defendants’ past conduct in connection with the 1972 primary election is indicative of a continuing policy by defendant officials which works to deprive plaintiffs of constitutional rights. Accordingly, even though the 1972 election is now history and is not here challenged, the controversy is nevertheless, so plaintiffs assert, both justiciable and alive..

Should we find the case to be justicia-ble and not moot, we must confront the question whether there exists for these plaintiffs a federal right, constitutional or otherwise, to the discovery of evidence in the custody of a state which might be used, pursuant to procedures established by state law, to challenge the candidacy of persons aspiring to hold public office. Cf. Briscoe v. Kusper, 7 Cir., 435 F.2d 1046, 1057 (1970).

Before proceeding to these questions, two issues which are not before us need stating. First, plaintiffs do not challenge the constitutionality of the Illinois statutory procedures for objecting to nominating petitions. Even though the brief is replete with references to the difficulty caused plaintiffs by the statutory deadlines, there is no claim that by failing to provide a longer time period for the compilation of evidence prior to filing an objector’s petition or conducting hearings thereon, the Illinois Election Code is constitutionally infirm. Likewise, plaintiffs do not allege that § 6-65 of the Election Code, supra, is unconstitutional. Rather they assert that, correctly construed, the statute does not authorize defendants’ conduct.

Second, plaintiffs no longer contest the proceedings held before the Electoral Board, in which the Wiseman objection was dismissed for failure of evidence. Plaintiffs sought review of the Board’s dismissal in state court, alleging that the Board had abused its discretion and denied Wiseman due process of law. The Appellate Court of Illinois thoroughly reviewed the challenged proceedings and concluded as follows:

“* * * While we appreciate the dilemma plaintiff faced, we cannot attribute it to the Electoral Board’s exercise of discretion, nor to any denial of Due Process of Law. Rather, plaintiff was to some extent a victim of his own tactical decisions, and, perhaps equally a victim of the limitations inherent in our statutory scheme for challenging primary petitions. * * * ” Wiseman v. Elward, supra, 283 N.E.2d at 291.

Plaintiffs principally rely on Briscoe v. Kusper, supra, and Shakman v. Democratic Organization of Cook County, 7 Cir., 435 F.2d 267 (1970), cert, denied, 402 U.S. 909, 91 S.Ct. 1383, 28 L.Ed.2d 650 (1971), for the proposition that the mere passage of an election does not moot an election-related dispute involving conduct which is “of a continuing-nature.” See also, Miller v. Kusper, 7 Cir., 445 F.2d 1059 (1971); Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); and cf. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

During oral argument counsel for defendants brought to the court’s attention a bill then pending in the Illinois legislature. In somewhat modified form, this bill, designated House Bill 213, was certified by the governor and became law as Public Act 78-934 on November 14, 1973. In our view it is unnecessary to determine the applicability of Briscoe and Shakman to this case inasmuch as the passage of House Bill 213 has eliminated any question that the conduct originally complained of is of a continuing nature. Cf. Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969); United States v. Alaska Steamship Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808 (1920).

As stated previously, defendants throughout this controversy have taken the position that compliance with plaintiffs’ request for access to voter records is prohibited by Ill.Rev.Stat. ch. 46, § 6-65, quoted in pertinent part supra. House Bill 213 strikes from the Election Code the entire passage relied upon by defendants. In addition, the bill amends § 6-35 to add the following language:

“The registration cards shall be deemed public records and shall be open to inspection during regular business hours, except during the 28 days immediately preceding any election. Registration record cards may also be inspected, upon approval of the officer in charge of the cards, during the 28 days immediately preceding any election. * * *”

Viewing the record as a whole, and in light of the above cited amendments to the Illinois Election Code, we find that the “controversy” here no longer possesses the “immediacy and reality” required for the granting of relief. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941). We will not presume that defendants will violate what is no longer an ambiguous statute. The constitutional claim here pressed is a novel and difficult one, involving the interplay between a complex state statutory election scheme and the developing federal law of political rights. See Briscoe v. Kusper, supra, 435 F.2d at 1053-1054. We do not choose to rule abstractly as to whether defendants have violated such federal rights, where plaintiffs are unable to show any likelihood that the conduct complained of will ever be repeated. “The constitutional question, First Amendment or otherwise, must be presented in the context of a specific live grievance.” Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969).

Nor is this a case where the impractieality of effective review at the time the injury occurs counsels for an anticipatory ruling. While we sympathize with Wiseman’s frustrated efforts to obtain meaningful review of the Berg petition, his ultimate failure did not, as plaintiffs contend, follow inevitably from the initial refusal of access. Within two days after their complaint was filed, plaintiffs were the beneficiaries of a federal court order granting them essentially all that they had requested as against these defendants. The intent of that order was frustrated by several factors, none of which would necessarily or even likely be repeated in any future litigation. If defendants should resume conduct which plaintiffs regard as a violation of their federal rights, despite new §§ 6-35 and 6-65 of the Election Code, we see nothing to indicate that the problem will evade effective review at that time. Cf. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L. Ed.2d 214 (1969) (Mr. Justice Brennan, dissenting).

Aside from any question of mootness, which we do not here determine, the bald fact that §§ 6-35 and 6-65 grant plaintiffs the anticipatory relief sought by their amended complaint leaves no justiciable controversy remaining before us and, absent a live federal question, we have no jurisdiction to grant the relief requested.

Accordingly, the dismissal of this action by the district court is now af.firmed.

Affirmed.

      . Kusper and Barrett were Chairman and Clerk, respectively, at the time the events herein described transpired. Neither now occupies his former position: Kusper replaced Barrett as Clerk, and was succeeded as Chairman by John H. Hanly.

      . The County Clerk has custody of only such records as pertain to voters not residing in the City of Chicago. This represented only about five per cent of the total signatures contained in the Berg petition.

      . Defendant Barrett, as County Clerk, was also a, member of the Electoral Board. Ill.Rev. Stat.1971, ch. 46, § 10-9(3).

      . A detailed account of the proceedings before the Electoral Board is contained in Wiseman v. Elward, 5 Ill.App.3d 249, 283 N.E.2d 282 (1972).

      . Judge Decker agreed with plaintiffs on this issue. He' concluded that the records were relevant to the question of the right to vote and therefore, by the statute’s own terms, were not to be regarded as confidential. The agreed order specifically provided that “ [defendants shall not be deemed to be in violation of any State law by virtue of their compliance with this decree * *

      . When requested by the Board to make some showing in support of his objections, prior to ruling on the motion for a continuance, counsel for Wiseman refused, stating he wished to avoid a “bifurcated,” unlawyer-like presentation. At the time (January 5), plaintiffs had already achieved access to approximately two-thirds of the registration cards pursuant to the district court order of December 30.

      . Concerning the right to inspect and copy public records under Illinois law, see generally, An Overview of the Law Governing Access to Information Held By Public Agencies in the State of Illinois and the City of Chicago, 68 Nw.U.L.Rev. 223 (1973).

      . It is true that the amended statute does not require that nominating petitions in defendants’ custody be made available for inspection. However, it is uncontested that copies of the petition were furnished pursuant to plaintiffs’ request prior to the district court order, albeit after a two-day delay. While unreasonable administrative delay in acting on lawful requests may constitute a denial of due process, see Slate v. McFetridge, 7 Cir., 484 F.2d 1169 (1973), we believe that in the circumstances of this case, the allegation of such two-day delay, by itself, is insufficient to support a due process claim.
      With regard to other documents originally sought by plaintiffs, we find (1) the controversy with respect to polling lists was resolved by the parties (see tr., Dec. 29, at page 6), and (2) the request for records of past primary voting, even if not covered by the new amendments, is no longer in controversy in light of Pontikes v. Kusper, 345 F.Supp. 1104 (N.D.Ill.1972), aff’d 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973).

      . Plaintiffs admit in their brief that it was “feasible for the defendants to produce large portions of the information ordered by Judge Decker in a few days and for the plaintiffs to inspect and copy that material equally quickly.” The ordered discovery was not completed within the agreed time because defendants were unable to locate approximately one-third of the registration cards in their master file. Precinct binders, also in defendants’ custody, contained duplicate cards but were not included within the scope of the order. In addition, neither party at the time the order was entered contemplated that such a large percentage of the cards (95 per cent) would be in the custody of a single defendant (the Commissioners). See note 2, supra. Finally, there was some dispute regarding the most efficient method for conducting the inspection. Although plaintiffs now imply that the failure to complete inspection was owing to defendant Commissioners’ bad faith, counsel admitted during the course of the January 4 hearing that “there was fantastic mutual cooperation,” and that the delay was not the fault of the Commissioners.