author: PER CURIAM:

text:
    ISLAND EQUIPMENT LAND CO., a corporation, and Pacific Retread, Inc., a corporation, Plaintiffs-Appellants, v. GUAM ECONOMIC DEVELOPMENT AUTHORITY, a public corporation, et al., Defendants-Appellees.
    No. 71-2108.
    United States Court of Appeals, Ninth Circuit.
    Feb. 27, 1973.

      William C. Anderson (argued), Agana, Guam, for plaintiffs-appellants.
    Walter S. Ferenz (argued), of Barrett, Ferenz, Bramhall & Klemm, Agana, Guam, Gerald E. Stinson, Asst. Atty. Gen. (argued), Richard D. Magee, Asst. Atty. Gen., Vincent T. Perez, Atty. Gen., Agana, Guam, E. R. Crain, Agana, Guam, for defendants-appellees.
    Before BROWNING, WRIGHT, and CHOY, Circuit Judges.
   PER CURIAM:

Appellants sue as Guam taxpayers and citizens to set aside a 90-year sublease of certain public lands by defendant Guam Economic Development Authority (GEDA) to defendant Dillingham Corporation for use as a site for a shopping center.

Acting pursuant to statutory authority, the Governor of Guam leased the property to GEDA in 1966 for a period of 50 years on condition (1) that the property be “administered, maintained and used as light industrial areas and for no other purpose”; and (2) that it be sublet only “for light industrial use.” Consideration for the original lease was $1.00 and GEDA’s promise to use the property in “the promotion of the economic development of Guam.”

In 1967 the Governor agreed to an amendment to the lease adding additional land to the leasehold and extending the lease term to 99 years. Early in 1969 the Guam legislature terminated the Governor’s authority to lease public lands. Thereafter, on September 15, 1969, the Governor agreed to a “Clarifying Amendment” to the lease providing that GEDA “may use the demised land for any purpose included within and treated as an allowable use under M-l Light Industrial zone as determined in accordance with the zoning laws of Guam existing as of date of the amendment.” Under Guam zoning law, commercial uses, including use as a shopping center site, are allowable in light industrial zones. The sublease to Dil-lingham Corporation followed.

Appellants claim (1) that the 1967 amendment adding to the leasehold and extending the term of the lease is void for want of consideration; (2) that the 1969 “Clarifying Amendment” is void because in excess of the Governor’s authority; and (3) that the sublease is therefore void because GEDA lacked authority to sublease the lands for the term and use provided.

The district court ruled that appellants had standing to bring this suit, but granted summary judgment against them on the merits. The court held that the promise to use the additional lands to promote Guam’s economic development was adequate consideration for the 1967 amendment, and that if the Governor lacked authority to execute the 1969 amendment it would make no difference because the amendment “does not alter the lease in any material manner,” and is “nothing more than a statement of clarification of a term and condition already included in the original lease.” The court based the latter conclusion on the ground that the term “light industrial areas” in the lease meant the same as the term “M-l Light Industrial Zone” in the zoning laws of Guam.

We held in Reynolds v. Wade, 249 F.2d 73, 76-77, 17 Alaska 401 (9th Cir. 1957), that the rule of federal taxpayer standing announced in Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) (see also Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)), was not applicable to a suit by a territorial taxpayer against his territorial government because a territorial taxpayer, like a state taxpayer, has a substantially greater pecuniary interest in his government than a federal taxpayer. Accord, Buscaglia v. District Court of San Juan, 145 F.2d 274, 284 (1st Cir. 1944).

Whether Guam citizen-taxpayers have standing to question acts of the territorial government is a matter of purely local concern. The District Court of Guam has held that appellants have such standing, and “[t]he decision of a territorial court on a matter of purely local public policy should be sustained unless there is no tenable theory on which the decision can be based.” Capital Insurance & Surety Co. v. Globe Indemnity Co., 382 F.2d 623, 626 (9th Cir. 1967). See Bonet v. Yabucoa Sugar Co., 306 U.S. 505, 509-510, 59 S.Ct. 626, 83 L.Ed. 946 (1939); San Geronimo Development Co. v. Treasurer of Puerto Rico, 233 F.2d 126, 133 (1st Cir. 1956).

The district court’s decision does rest upon a “tenable theory.” While it is true, as appellees point out, that the traditional rationale for a taxpayer suit is that the taxpayer-plaintiff has sustained pecuniary loss because the challenged government action wasted public funds derived from taxation (see Lyon v. Bateman, 119 Utah 434, 228 P.2d 818, 823 (1951); Henderson v. McCormick, 70 Ariz. 19, 215 P.2d 608, 611 (1950)), it is also true that a clear, if less generally accepted, line of authority supports the theory that a citizen-taxpayer has standing to question the lawfulness of the sale or lease of public property without showing pecuniary harm, and, indeed, even though the sale or lease may be economically advantageous. See, e. g., Lien v. Northwestern Engineering Co., 74 S.D. 476, 54 N.W.2d 472 (1952); Colwell v. City of Great Falls, 117 Mont. 126, 157 P.2d 1013 (1945); City of Bessemer v. Huey, 247 Ala. 12, 22 So.2d 325 (1945); City of Shreveport v. Kahn, 194 La. 55, 193 So. 461 (1939); Hanlon v. Levin, 168 Md. 674, 179 A. 286 (1935).

We therefore turn to the merits.

We agree with the district court’s summary rejection of appellants’ attack upon the 1967 amendment. There is no dispute of fact material to this issue, and, as a matter of law, GEDA’s promise to use the additional lands to further the economic development of Guam for the additional term was sufficient consideration.

We disagree, however, with the court’s summary rejection of appellants’ challenge to the validity of the 1969 amendment. As to this issue, we think the record was not ripe for summary judgment. Appellees failed to carry their burden of establishing that no triable issue of'fact was presented as to whether or not the parties to the original lease intended to authorize GEDA to sublet the property for use as a site for a shopping center.

The language of the lease authorizing GEDA to sublet the property “for light industrial use” is hardly a clear and unambiguous authorization to sublet as a shopping center site. The only other possibly relevant material before the court was certain letters to GEDA from businessmen, including officers of appellants, protesting use of the land for the shopping center development. These letters, dated in January 1968 and July and August 1969, were offered by appel-lees only to show that appellants were aware of the planned use. All of the letters were written long after the execution of the original lease, and, in any event, reflect only the knowledge of appellants, not the intent of the parties to the lease. Moreover, the author of one of the letters objected to the proposed development on the precise ground that use of the property for a shopping center bore no relationship to the authorized use for “light industrial” development.

Since appellees failed to demonstrate the absence of any material issue of fact, appellants were not obliged to file counter-affidavits. “Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” Advisory Note of 1963 to Subdivision (e), Rule 56, quoted in 6 Moore’s Federal Practice 2823; see Byrnes v. Mutual Life Insurance Co., 217 F.2d 497, 501 (9th Cir. 1954).

The judgment is reversed. The cause is remanded to the district court with instructions to enter an order under Federal Rules of Civil Procedure 56(d) regarding the issues raised with respect to the 1967 amendment, and to conduct such further proceedings as may be required to resolve the issues of fact and law raised with respect to the 1969 amendment.

      . Appellants do not assert a claim against third parties on behalf of the Government of Guam, as in Government of Guam ex rel. Camacho v. Bird, 398 F.2d 314 (9th Cir. 1968), and Salas v. United States, 384 F.2d 922 (9th Cir. 1967); they challenge the lawfulness of acts of government itself.
      Appellees’ reliance upon the bar of § 526(7) of the Guam Code of Civil Procedure seems misplaced in view of its limitation to action by “an authorized person.”

      . The letter reads, “It is our understanding that the property you propose to develop as a shopping center was acquired by you for the sum of $1 for use as light industrial development and to induce industry to come to Guam. There is no relationship or industrial purpose served by using the property as a shopping center.”


source: Caselaw Access Project

author: TRASK, Circuit Judge:

license: Public Domain

text:
    Nancy K. EARLY et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 71-2521.
    United States Court of Appeals, Ninth Circuit.
    Feb. 22, 1973.

      Stephen S. DeLisio (argued), Edward A. Merdes, of Merdes, Schaible, Staley & DeLisio, Fairbanks, Alaska, Robert A. Parrish, Fairbanks, Alaska, for plaintiffs-appellants.
    ' Walter H. Fleischer, Atty. (argued), Alan S. Rosenthal, Ronald R. Glanz, Robert Greenspan, Morton Hollander, Attys., Dept, of Justice, Washington, D. C., G. Kent Edwards, U. S. Atty., Stephen Cooper, Asst. U. S. Atty., Fairbanks, Alaska, for defendant-appellee.
    Before MERRILL, DUNIWAY and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

Only questions of damages are at issue in this Federal Tort Claims Act proceeding, 28 U.S.C. § 1346(b) et seq. The plaintiffs who are husband and wife recovered an aggregate of $380,000 for personal injuries and related claims. They appeal from the court’s award because they believe it was not enough; the government cross appeals for the opposite reason.

The injury occurred when Mrs. Early fell down a flight of stairs at Eielson Air Force Base, striking her head upon the concrete floor below. She was immediately hospitalized and discharged two days later. Because of persistent headaches she was admitted to another hospital a day and a half after her first release where she remained for nine days undergoing tests. Approximately two months after her second trip to the hospital she returned for a reevaluation where results of tests were normal.

On the issue of damages the trial court heard approximately one thousand pages of testimony. The family history of Mrs. Early was developed from an early age and her life habits and personality traits before and after the injury were related in detail. On the date of the injury, September 29, 1967, she was 24 years old and three children had been born of her marriage to Sergeant Gar-nett C. Early.

The court found that Mrs. Early suffered damage to the central nervous system and particularly to the brain as a proximate result of the fall occasioned by the negligence of the United States. These injuries altered her personality and have caused much pain and suffering. Finding 36e of the trial court is as follows:

"c. That Nancy Early Is entitled to recover past damages as well as future damages In a reasonable amount for the foregoing, computed on the basis of her life expectancy, which Is 49 years, as follows:
1. Pain and suffering, all causes, past and future $225,000.00
2. Loss of sense of smell and taste, past and future 20,000.00
3. Loss of enjoyment of sex, past and future 30,000.00
4. Psychotic conditions, Including personality change and schizophrenic reaction, past and future 20,000.00
5. Future medical care (Including psychiatric) 15,000.00
6. Future medications 25,000.00
7. Future household assistance 15,000.00
Total damages to Nancy Early $350,000.00'

An award of $30,000 was made to her husband, Garnett C. Early, for loss of consortium, past and future.

Appellants insist that damages are inadequate. Their expert witness, a neurologist, testified that the salary for a nurse to assist the injured plaintiff in her household duties and to provide nursing care would be “roughly $500 per month.” Because there was testimony that during some headache attacks Mrs. Early would be totally disabled, he further stated that nursing would require three eight-hour shifts costing $1,500 per month. Based on this figure over Mrs. Early’s life expectancy, appellants calculated that an award for household assistance and nursing care should be $894,240. This same method of calculation was used to assert a claim of $127,750 for future psychiatric care, $44,712 for future medications, $61,300 for past loss of earning capacity and $766,600 for future loss of earning capacity. There was no expert testimony to dispute these estimates. The testimony did not bear out such a mathematical computation, however, as it showed that Mrs. Early did not employ a housekeeper or nurse full time, let alone on 24-hour duty; that she did not regularly consult psychiatrists; and that she was not completely disabled from working should she desire to do so. On the basis of conflicting evidence, the court made its own determinations and we cannot say they were clearly erroneous.

As stated in County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 444 F.2d 372, 378 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971):

“When it comes to finding facts from the evidence, juries enjoy a near-total independence. Neither a court, The Conqueror, 166 U.S. 110, 131-133, 17 S.Ct. 510, 41 L.Ed. 937 (1897), nor a jury, Head v. Hargrave, 105 U.S. 45, 49, 26 L.Ed. 1028 (1881), is bound to accept an expert witness’ opinion, either as to whether the contract specifications were fulfilled or as to the amount of damages, regardless of whether he is in any way contradicted or impeached.”

Here there was much more evidence bearing on damages than the testimony of the neurologist. There was the testimony of the plaintiffs themselves and that of other witnesses called by both parties. All of the testimony was relevant on the damage issue.

The last argument advanced by appellants is that the court erred in failing to make an award for loss of affection and services sustained by the three children of appellants. Neither statute nor court decision in Alaska provides for such an award, although none denies it. In by far the majority of jurisdictions which have passed upon the question, such a claim has been rejected. Pleasant v. Washington Sand & Gravel Co., 104 U.S.App.D.C. 374, 262 F.2d 471 (1958); Meredith v. Scruggs, 244 F.2d 604 (9th Cir. 1957); Turner v. Atlantic Coast Line R. R., 159 F.Supp. 590 (N.D.Ga.1958); Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57 (1962); Jeune v. Del E. Webb Construction Co., 77 Ariz. 226, 269 P.2d 723 (1954).

Under such circumstances we accord great deference to the views of the trial court as to what the law of Alaska would be in the event the matter was presented and passed upon there. West v. Morrison-Knudsen Co., 451 F.2d 493 n. 5 (9th Cir. 1971); Turnbull v. Bonkowski, 419 F.2d 104 (9th Cir. 1969); Bellon v. Heinzig, 347 F.2d 4 n. 3 (9th Cir. 1965). He made no such award although he was importuned to do so, and again we cannot say that his judgment was clearly erroneous.

The government, on its cross appeal, first urges the excessiveness of the trial court’s award for pain and suffering. In order for an award of damages for pain and suffering to be set aside as inadequate or excessive under the Federal Tort Claims Act, one must look to the law of the state where the cause of action arose. United States v. Sutro, 235 F.2d 499 (9th Cir. 1956). Alaska, consistent with the general rule, holds that to be reversible, such an award must be “manifestly unjust, such as being the result of passion or prejudice or a disregard of the evidence or rules of law.” Beaulieu v. Elliott, 434 P.2d 665, 676 (Alas.1967). We cannot say that, applying such a test, the award of the trial court was improper.

The other claim of the government on cross appeal is that the trial court erroneously failed to reduce to its present worth its award of $55,000 for future medical, housekeeping and medication expenses. (Items 5, 6, and 7). The government did not submit evidence on computation of future awards and we are unable to say that the amounts fixed by the court .are clearly erroneous in view of all of the evidence. We therefore reject the government’s attack made upon the amounts of those awards based upon alleged failure to discount them.

The judgment is affirmed.


author: ESCHBACH, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Peter TERESI, Defendant-Appellant.
    No. 72-1009.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 22, 1972.
    Decided March 2, 1973.

      Douglas R. Carlson, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Theodore T. Scudder, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before DUFFY, Senior Circuit Judge, STEVENS, Circuit Judge, and ESCH-BACH, District Judge.

      . District Judge Jesse E. Esclibach of the Northern District of Indiana is sitting by designation.

   ESCHBACH, District Judge.

Defendant was convicted after a bench trial of a charge of wilfully refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. Appendix § 462. His appeal raises four questions: (1) whether the local board should have reopened his classification to consider his claim for a hardship deferment, (2) whether the board’s actions constituted a de facto reopening of his classification, thus cancelling his prior order to report for induction, (3) whether the induction order was invalidated by successive postponements granted by the board, contrary to applicable regulations, and (4) whether the use by the appeal board of a resumé of defendant’s Selective Service file deprived him of due process and rendered invalid his I-A classification and the induction order based thereon. We have concluded that the conviction must be affirmed.

On May 3, 1966, defendant registered with his local board. His responses to questions contained in a Classification Questionnaire indicated that he did not claim to be a conscientious objector, that he suffered from no disqualifying physical condition, and that he had no family or other problems. He later informed the board that he had enrolled in college and was granted a II-S student deferment. On January 16, 1969, shortly after defendant’s withdrawal from college he was reclassified I-A. Defendant appealed this classification on the basis of his claims that he suffered from a disqualifying medical condition, despite the fact that he had not yet received an Army physical examination. The appeal board classified defendant I-A on June 16, 1969. On August 18, 1969, defendant was given the customary physical examination, including a consultation with a specialist regarding his claims of disqualification. All medical papers were then reviewed by the Surgeon General, and, on October 15, 1969, the local board notified defendant that he remained physically qualified for induction.

On November 18, 1969, defendant was ordered to report for induction on December 1, 1969. On the date for induction, defendant’s wife telephoned the local board to explain that defendant’s car had broken down in Michigan. On December 11, 1969, the board notified defendant that his induction would be postponed until the first induction call after January 1, 1970. On January 5, 1970, the board sent to defendant a second notice, rescheduling his induction for January 19, 1970 pursuant to the earlier postponement notice. Defendant again failed to report on January 19, 1970, this time without explanation. During February and March, 1970, the board was unable to locate defendant.

On April 13, 1970, defendant wrote to his board, acknowledging his failure to report for the second induction. He explained that he and his wife had fought in late December and then separated. On January 2, 1970, defendant had left and traveled in the West.

On April 21, 1970, the local board mailed a notice to defendant, rescheduling a third date of May 11, 1970 for his induction. Three days later, the board received for the first time defendant’s request for a hardship deferment (III— A) and immediately mailed a Dependency Questionnaire to be filled out and returned by defendant. Defendant informed the board that he was not living with his wife and that her address was unknown; his eight-month-old daughter was living with him in his home. He stated that his wife' had been taking drugs and was not capable of taking care of their daughter. Prior to the separation in December and defendant’s subsequent disappearance, he and his wife and daughter had been living with defendant’s parents. After defendant’s disappearance, his wife and daughter moved to the home of her parents. Defendant stated that while he was away, his wife left her parents’ home from time to time, including a period of six days while she was away with another man. During these times, she left her daughter with neighbors.

When defendant returned from his travels, a former employer rehired him as a die-cutter. While defendant worked ten hours a day, a good friend served as babysitter. Defendant, on the form provided by the board, listed a group of unidentified bills totaling $1,302 and monthly expenses of $326. He stated his earnings were $160 per week. He claimed that his wife was unfit to take custody of their child, that her parents and his father worked, and that his mother could not care for the child because she had been having epileptic fits. A note from defendant’s mother-in-law attached to the questionnaire stated that her daughter was emotionally unable to care for the child.

Following receipt of the foregoing information, the board asked defendant to appear for an interview on June 11, 1970. On the basis of that interview and a review of defendant’s file, the board decided not’to cancel defendant’s induction notice. On June 12, 1970, the board, in a letter to defendant, informed him of its decision. On June 19, 1970, the local board issued an order rescheduling a fourth induction date for July 22, 1970.

On July 17, 1970, defendant wrote to the board requesting SSS Form No. 150 for conscientious objectors. He stated that he did not previously know that he could apply for several deferments. On the same date, defendant’s induction was postponed until further notice and he was mailed the appropriate form to be filled out and returned. Defendant returned the completed form on August 17, 1970.

On August 27, the board reviewed defendant’s file and, on August 31, wrote to defendant that all evidence had been considered and his classification had not been reopened. A fifth notice was mailed to defendant on September 4, 1970, rescheduling his induction for September 17, 1970. Defendant reported on that date but refused to submit to induction.

I.

Defendant first contends that his classification should have been reopened upon the presentation of what he claims was a prima facie claim for a hardship deferment. Selective Service regulations provide that where an induction order has already been issued, reopening may occur under the following conditions: (1) Facts are presented which were not considered when the registrant was classified; (2) such facts, if true, would justify a change in the registrant’s classification; and (3) the local board specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control. 32 C.F.R. § 1625.2 (1972). The requirement that a local board must have a “basis in fact” for an original classification, Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953), “is equally applicable to the action of the board in determining whether or not changed conditions justify a reopening of the registrant’s classification and consideration of his claim to a different classification.” United States v. Ransom, 223 F.2d 15, 17 (7th Cir. 1955); see also Woo v. United States, 350 F.2d 992, 996-997 (9th Cir. 1965); Radel v. Volatile, 312 F.Supp. 1300, 1303 (E.D.Pa.1969). Thus, if the board had a basis in fact for concluding that any one or more of the above-stated conditions for reopening was not satisfied, then its refusal to reopen defendant’s classification may not be overturned. We think that such a basis in fact did exist at least with respect to the conclusion that there had been no change in defendant’s status resulting from circumstances beyond his control. Defendant’s conduct in voluntarily absenting himself for a period of some three months was a factor which clearly negatived any claim that he had no control over changes which may have occurred in the interim. It was primarily during defendant’s prolonged and unexplained absence that the circumstances relating to his wife’s alleged lack of fitness to care for their daughter arose. An examination of defendant’s file reveals that whatever conditions of hardship may have developed subsequent to defendant’s original I-A classification were caused in large part by his own conduct.

In addition to the absence of circumstances over which defendant had no control, the board’s refusal to reopen was also justified by defendant’s failure to present a prima facie case for reclassification. In his request for a hardship deferment defendant claimed that his wife had been leaving their child with neighbors and that he was requesting the deferment “out of necessity to support and care for my child”. However, although he stated that the child was living with him in his home, he was working ten hours a day as a die-cutter while he left his daughter to be taken care of by a friend. While he claimed that his wife was unfit to care for the child, he took no steps to obtain custody and did not seek a legal separation from his wife. Moreover, defendant’s claim that he was the only person who was financially or otherwise able to support and care for his child is rebutted by the fact of his disappearance from early January, 1970, until the middle of April, 1970, during which time he was completely out of contact with his family and provided no support, or care for his daughter. Under . these circumstances the board had ample basis in fact for a finding that defendant had failed to present a prima facie case for a hardship deferment. Even if, standing alone, some of defendant’s claims had been sufficient to make out a prima facie case, the board properly considered defendant’s entire file, including reliable information contained therein which conclusively refuted defendant’s claims of extreme hardship. See Mulloy v.. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970); United States ex rel. Luster v. McBee, 422 F.2d 562 (7th Cir. 1970), cert. denied, Luster v. Cooksey, 400 U.S. 854, 91 S.Ct. 74, 27 L.Ed.2d 92 (1970); United States v. Burlich, 256 F.Supp. 906, 911 (S.D.N.Y.1966).

II.

Defendant contends that the board, while purporting to refuse to reopen his classification, did in fact reopen by inviting him to appear before the board and by deciding the merits of his claims on two occasions. Such a de facto reopening, he claims, cancelled his prior induction orders and gave him the right to a formal personal appearance and an administrative appeal. We find nothing in the record of this case to indicate a de facto reopening of defendant’s classification based upon either the informal interview of June 11, 1970, or the board’s consideration of the merits of defendant’s claims. The interview was granted to defendant as a matter of courtesy so that all possible information relevant to the question of reopening could be considered. The mere granting of such an interview does not constitute a reopening of a registrant’s classification. United States ex rel. McBee v. Luster, supra, 422 F.2d at 568.

Defendant points to the following notes of the board based upon his interview on June 11, 1970, to support his contention that a decision on the merits was reached:

2:30 Reg has separated from wife is taking care of 9 mo. child — Friend is taking care of child — is employ as die cutter; the separation not legal, wife on drugs — salary 100 per week —exp $326 per mo — works 10 hrs per day. All info considered and should be re-ordered for induction.

Defendant further relies upon the following language in the letter he received from the board subsequent to that interview :

Please be advised from your informal interview of 11 June 1970, the Local Board considered the information in your file and the information given at your interview. They did not feel they could cancel your induction notice and reclassify you. Therefore, you will be re-ordered to report for induction with our next call.

Although neither the board’s notes nor the letter to defendant contains any reference to a refusal to reopen, the board did state in its letter that it could not cancel defendant’s induction notice. A reopening would have required such cancellation (32 C.F.R. § 1625.14), as well as the issuance of a new classification, even if defendant were placed in the same class he was in prior to reopening (32 C.F.R. § 1625.11). In reviewing the determinations of Selective Service boards, we have “carefully refrained from imposing any requirement that they promulgate a court-like formal finding of fact”. United States ex rel. Hemes v. McNulty, 432 F.2d 1182, 1187 (7th Cir. 1970). Thus, although the findings of the board in this case could have been more explicitly stated, we do not regard the omission of a specific reference either to the refusal to reopen or to the absence of circumstances beyond defendant’s control as conclusive evidence of a de facto reopening.

The written findings of the board do not indicate an inquiry into the merits of defendant’s hardship claim to any greater extent than was necessary to determine that a prima facie case was not presented. As indicated above, defendant’s hardship claim was conclusively refuted by information contained in his file and supplemented by the informal interview. No “evaluative determination adverse to the registrant’s claim on the merits”, Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970), was made by the board in this case. Even if the board had made such a determination, the presence in defendant’s file of information conclusively refuting his claim of a change in status due to circumstances beyond his control provided an independent ground for the refusal to reopen. See United States v. Jones, 447 F.2d 589, 592 (7th Cir. 1971). The absence of a specific finding to that effect did not result in a de facto reopening. The board was precluded from reopening unless it specifically found a change in status resulting from circumstances beyond defendant’s control. 32 C.F.R. § 1625.2 (1972). The regulations do not contain a converse requirement of a specific finding of no such change in status before the board may refuse to reopen.

For substantially the same reasons, no de facto reopening occurred when the board considered defendant’s claim for conscientious objector status (I-O) in August, 1970. The board stated in its Report of Information on August 27, 1970, as follows:

The local board reviewed the complete file of this registrant and felt that he was not sincere in any of the requests that he has made.

On August 31, 1970, the local board wrote to defendant as follows:

The local board reviewed your file and your SSS Form 150 that was submitted August 17, 1970. All evidence was considered. No change in the registrant’s status resulting from circumstances over which he had no control. The classification was not reopened.

It is well settled that consideration by a local board of a registrant’s post-induction order 1-0 claim does not result in a de facto reopening of his classification. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971); United States v. Martin, 452 F.2d 630 (7th Cir. 1971); United States v. Jones, supra; Wright v. Ingold, 445 F.2d 109 (7th Cir. 1971). Since the only claim pending before the board on August 27 was the claim for conscientious objector status, we do not read the board’s reference to “the complete file” and “any of the requests” as a reopening for further consideration of the prior hardship claim. In any event, no new evidence relating to that claim was presented to the board, and the letter of August 31, 1970 stated explicitly that the board found no change in defendant’s status resulting from circumstances beyond his control.

III.

Defendant next contends that the board’s postponements of his induction were contrary to 32 C.F.R. § 1632.2 (1972) in the following respects: (1) his induction was postponed more than twice and for more than 60 days beyond the second postponement; (2) his induction was postponed, on July 17, 1970, “until further notice”, and for more than 60 days beyond that date; and (3) his induction was postponed four times for reasons other than those authorized by 32 C.F.R. § 1632.2(a). Defendant argues that his original induction order of November 18, 1969, expired 60 days after the postponement of April 21, 1970, because the board was without authority to grant further postponements. He claims that he was prejudiced in that the resulting invalidity of that induction order required the board to apply pre-induction order standards to his III-A and 1-0 claims, under which standards a reopening of his classification would have been required, along with personal appearance and administrative appeal rights. However, every postponement granted defendant by his local board was due to his actions and for his benefit. Under these circumstances it was within the discretion of the board to aid defendant by allowing him more time than the regulations specify. United States v. Benson, 469 F.2d 1356 (7th Cir. November 28, 1972); United States v. Foster, 439 F.2d 29 (9th Cir. 1971). A registrant who has already failed without excuse to report for induction as ordered by his local board, as did this defendant on January 19, 1970, is in a particularly poor position to assert excessive postponements. See United States v. White, 447 F.2d 1124 (9th Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 714, 30 L.Ed.2d 740 (1972). In granting defendant several postponements and in considering his belated claims for deferment, instead of reporting him to the U. S. Attorney for prosecution, the local board extended defendant every conceivable courtesy. Therefore, in accordance with 32 C.F.R. § 1632.2(d) (1972), the postponements complained of by defendant operated only to postpone the reporting date and did not render invalid the original induction order of November 18, 1969.

IV.

Finally, in a completely unrelated argument, defendant contends that the appeal board’s use of a-resumé of his Selective Service file in reviewing his classification on June 16, 1969 was improper and constituted a denial of due process. He argues that the summary was not placed in his file, but was either lost or destroyed, and that therefore he was never informed of its existence and was afforded no opportunity to rebut its contents. Defendant does not claim, however, that the summary was anything more than just that — a summary of material already present in his file. The use of siich summaries by an appeal board promotes efficient review of a large number of cases and, at least where the insertion of extrinsic materials is not alleged, does not violate due process. See United States v. Young, 324 F.Supp. 69, 72-73 (D.Minn.1970). Even if the procedure used by the appeal board were improper, defendant has shown no resulting prejudice. The only claim raised by the defendant in appealing his I-A classification was a claim for deferment based upon physical disqualification. On June 16, 1969, when the appeal board reviewed his classification, however, defendant had not yet been given a pre-induction physical examination. He was subsequently given such an examination, as well as a consultation with a specialist and a review of his medical claims by the Surgeon General. Under these circumstances any defect in the proceedings of the appeal board was cured by this full review of defendant’s claims and could have resulted in no prejudice to him.

For the foregoing reasons, the judgment of conviction is affirmed.


author: TALBOT SMITH, Senior District Judge:

text:
    UNITED STATES of America, Appellee, v. MAJOURAU et al., Appellants.
    Nos. 72-2307, 72-2344 and 72-2401.
    United States Court of Appeals, Ninth Circuit.
    Feb. 16, 1973.

      Jerrold M. Ladar (argued), San Francisco, Cal., Keith C. Monroe (argued), James D. Riddet, George H. Chula, Santa Ana, Cal., Russell E. Parsons (argued), Los Angeles, Cal., Marvin S. Cahn, Judd C. Iversen, San Rafael, Cal., for appellants.
    Shelby Gott, Asst. U. S. Atty. (argued), Michael E. Quinton, Donald P. Shanahan, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
    Before ELY and TRASK, Circuit Judges, and TALBOT SMITH, District Judge.

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

   TALBOT SMITH, Senior District Judge:

The defendants before us were charged in two counts with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Motions to suppress on the grounds, among others, of the “warrant-less search of the defendants and their vehicles” were brought and denied. Trial by jury was waived and the cases, consolidated upon motion, tried upon stipulated facts. Upon the conclusion of the trial, all defendants were found guilty on both counts and all have appealed. Among other claimed errors, it is urged that the motions to suppress were improperly denied, since, it is argued, the search here made was neither a border search, nor supported by probable cause. We regard this issue as dispositive of the case.

As to the border search, the appellee-government summarizes from the stipulation as follows:

“In the instant case, Inspector Catalan’s suspicions were aroused when the appellants arrived at the Port of Entry at San Luis, Arizona. A search of the vehicle disclosed some wet clothing in the trunk. Further, all of the appellants appeared to be anxious to depart the Port of Entry and the appellant Curtis claimed to be ill but showed no visible signs of illness.
“All of these circumstances were related to Customs Agent Land after the vehicle had been allowed to enter the United States. Agent Land knew from experience with prior narcotics smuggling cases that a common method of smuggling narcotics from Mexico into the United States was by wading or swimming across the Colorado River near the Port of Entry at San Luis, Arizona. For this reason he considered the presence of wet clothing in the car suspicious. In addition Agent Land was aware that an investigation was being conducted on the appellant Rafter concerning his activities in relation to the illegal smuggling of narcotics into the United States.
“All of these circumstances led to a surveillance of the vehicle containing the three appellants being initiated by Agents Ford, Land and Stephenson. The surveillance began about twelve miles north of the Port of Entry at San Luis, Arizona, at a point approximately two to three miles east of the Colorado River, which constitutes the border between Mexico and the United States, and continued to where the appellants were apprehended.
“After beginning the surveillance, the agents observed the vehicle stop at a market in Yuma, Arizona, and the appellant Rafter make a telephone call. The vehicle then proceeded to the Yuma Public Library parking lot where it remained for approximately fifteen minutes. While in the Yuma County Library parking lot, the appellant Rafter got out of the vehicle, walked across the street to an unidentified vehicle, and returned at approximately three minutes, carrying a brown package. The appellants remained in the parking lot for approximately two more minutes and then departed the area. The vehicle was then followed to the point of apprehension.’’

In addition, appellant Rafter points out certain geographical and chronological facts which do not appear challenged; namely, that San Luis (where entrance occurred) is 25 miles south of Yuma, that El Centro is 60 miles from Yuma, and that the stop and search took place 4 miles north of El Centro. Thus, the travelled distance from border contact to the searching point was between 80 and 90 miles approximately. In addition, the time element between border crossing at 2:00 p. m. and search at 5:00 p. m. was some three hours, which included driving time on the road as well as stops made.

Upon these facts, again we confront the problem of the border search. It has been examined exhaustively in opinions of this and other courts as well as the legal periodicals, and we need not here attempt further gloss.

The sweeping statutory authorization under consideration must be reconciled with the requirements of the Fourth Amendment, United States v. Weil, 432 F.2d 1320 (9th Cir., 1970); United States v. Glaziou, 402 P.2d 8 (2nd Cir. 1968). Herein lies the problem, since the controls exercised cannot be confirmed to the precise geographical line of demarcation between the national sover-eignties if effective enforcement of the act is to be accomplished. Thus, the restriction by the courts to “border searches,” United States v. Weil, supra.

We have not, in the past, attempted a delineation of the boundaries of the area within which a border search may be conducted, or any formula of demarcation, if, indeed, such were possible. Rather we have considered in detail the facts of each ease, and have stressed, in decision, the “totality of the surrounding circumstances.” Alexander v. United States, 362 F.2d 379 (9th Cir., 1966). Fortuitous emphasis upon surveillance in certain of the cases led us to point out recently in the Weil case that it is not a sine qua non of a valid “border search” that the contents of a ear when searched must necessarily have been its contents when it crossed the border (if, in fact, it even did), in view of such devices as the transfer of contraband thereat or near thereto.

The government relies heavily upon the Weil case, citing it to the argument that search is permissible if the officers “have reasonable grounds to believe that a vehicle in the border area contains a person or contraband that has entered the country illegally.” The argument made is far top broad and unjustified by Weil. No time limitation is thus expressed and the words “border area” merely restate our problem. That the Weil case does not open the door to searches far removed in time or space from the border itself was made clear in United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971), where we cited Weil to the point that “The car searched need not have recently crossed the border if it is ‘reasonably certain’ that it contains goods or persons which have just crossed the border illegally” (footnote added; emphasis in original).

At the time of the search this car was remote in both time and space from the border. It had not recently, or “just,” crossed the border. There was no showing whatever that it contained goods which had just crossed the border illegally. There had been no continuous surveillance. Under the totality of the circumstances, the search was clearly illegal.

Based upon probable cause the search fares no better. • Here the government paints with a broad brush, reciting to us chronologically the entire sequence of events from the crossing of the border to the final arrest. Thus, the car crossed from Mexico, it contained wet clothing, and appellants “seemed to be abnormally impatient,” a reaction in our judgment not unreasonable in one detained for inspection. Moreover, appellant Curtis “claimed to be sick,” and, in addition Agent Land was told that appellant Rafter was engaged in smuggling contraband. In Yuma, it is added, the appellants made a telephone call, waited in a parking lot and picked up a brown paper bag from another car. Finally, the appellants’ car drove in an erratic manner upon leaving Yuma.

These various steps in the journey from border to arrest take on a sinister coloration only upon the theory that a crime has been committed and these are steps in its perpetration. The brown bag, the seeming impatience, the wet clothes, the erratic driving, all add up at the most to mere suspicion. And as to suspicion, the ease of Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), is clear: “Arrest on mere suspicion collides violently with the basic human right of liberty.”

Finally, the government seeks to justify on the ground that the “initial stopping of a vehicle can be justified as a routine investigatory stop by law enforcement officers.” The problem here is that this was not a mere routine investigatory stop. The appellants’ car had been followed for some 80 or 90 miles in an approximate two-hour period. It is a fair reading of the record that zealous officers were actively seeking suspected contraband. Moreover, customs agents “are not, like local or state police, general guardians of the public peace.” They are “customs agents, with duties and powers limited to activities of the type that the title implies.” United States v. Jackson, 423 F.2d 506 (9th Cir. 1970); United States v. Blackstock, 451 F.2d 908 (9th Cir. 1971), dissent at 911. The point is without merit.

Reversed. The search was illegal and upon the mandate going down the indictment will be dismissed.

      . Alexander v. United States, 362 F.2d 379 (9th Cir., 1966); Leeks v. United States, 356 F.2d 470 (9th Cir., 1966); Rodriguez-Gonzalez v. United States, 378 F.2d 256 (9th Cir., 1967); Lannom v. United States, 381 F.2d 858 (9th Cir., 1967); Bloomer v. United States, 409 F.2d 869 (9th Cir., 1969); United States v. Jackson, 423 F.2d 506 (9th Cir., 1970), cert. denied 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970); Castillo-Garcia v. United States, 424 F.2d 482 (9th Cir., 1970); United States v. Weil, 432 F.2d 1320 (9th Cir., 1970); United States v. Markham, 440 F.2d 1119 (9th Cir., 1971); United States v. Glaziou, 402 F.2d 8 (2nd Cir., 1968); United States v. Almeida-Sanchez, 452 F.2d 459 (9th Cir., 1971), cert. granted, 1972, 406 U.S. 944, 92 S.Ct. 2050, 32 L.Ed.2d 331.

      . 21 Rutgers L.R. 513 (1967); 53 Cornell L.R. 891 (1968); 77 Tale L.R. 1007 (1968); 10 Ariz.L.R. 457 (1968); 8 San Diego L.Rev. 435 (1971).

      . 19 U.S.C. § 482 (1965).

      . Webster’s Third International Dictionary, Unabridged (1968) defines “Just” as meaning . . . “but a very short time ago” . . . “very recently.” See also, State v. Hinton, 49 La.Ann. 1354, 22 So. 617: “ ‘Just’ as an abverb of time is equivalent to ‘at this moment’ or the ‘least possible time since’ . . .”

      . cf., Pace v. Beto, 469 F.2d 1389 (5th Cir. 1972), an arrest for a traffic offense. “The officer noticed that Pace was very nervous. His suspicions aroused, the officer first searched Pace’s person for weapons.” After further discussion or the search, the court commented, “Pace’s nervous conduct is not surprising in view of the fact that he had just been arrested, and such conduct by itself could not give rise to probable cause to believe that he had committed any offense other than the traffic violation, cf., Wong Sun v. United States, 1963, 371 U.S. 471, 483, 83 S.Ct. 407, 9 L.Ed.2d 441.”

      . The Court is here quoting from Hogan and Snee, The McNabb-Mallory Rule : Its Rise, Rationale and Rescue, 47 Geo.L.J. 1.

      . U. S. v. Mallides, 473 F.2d 859 (9th Cir., 1973).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cecil Eugene ANTHONY, Defendant-Appellant.
    No. 72-2566
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1973.

      David Crosland, III, Atlanta, Ga., Court-appointed for defendant-appellant.
    John W. Stokes, U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Cecil Eugene Anthony appeals his conviction of aiding and abetting unknown persons in stealing a Massey Ferguson farm tractor from an interstate shipment in violation of 18 U.S.C.A. § 659. Appellant contends that the District Court erred (i) in admitting into evidence certain damaging statements uttered by the Appellant following his arrest and, assuming arguendo that the damaging statements were properly admitted into evidence, (ii) in failing to require sufficient corroboration of guilt. We find both of these contentions without merit and affirm the conviction.

The succession of events which culminated in this conviction began on August 7, 1971.

At 5:55 p. m. on that day Appellant went to a Gulf Service Station on More-land Avenue in Atlanta and rented a Ryder U-Haul van. At about 7:00 or 7:30 the evening of August 7, two men were observed cutting tie-down chains and removing a Massey Ferguson farm tractor from a railroad car at the Constitution yard of Southern Railway in Atlanta. The two men then loaded the tractor into a Ryder U-Haul van and then began to depart. Two of the witnesses pursued the departing van in an automobile. They saw another car joining up with the van. Upon stopping, three men emerged from the two vehicles and conversed.

The stolen farm tractor was discovered around noon on August 8 in the backyard of Walter T. Jones. Jones testified that the tractor had been left across the street from his house and he had first seen it there sometime around 11:00 p. m. Saturday night. He indicated that he had moved it from across the street to his backyard early Sunday morning.

At about 4:55 p. m. Sunday, August 8, Appellant returned to the Gulf Station on Moreland Avenue with the rented van where he was taken into custody by FBI and Railroad Security agents. Arrest was made and it is undisputed that Appellant was correctly advised of his constitutional rights. It was at this point in time that the damaging statements (in the nature of exculpatory statements), whose admission into evidence the Appellant attacks, were made (see note 4, supra).

Appellant entered a timely objection to the government’s proffer of testimony relating to his damaging statements uttered at the time of his arrest (see note 4, supra). At this time the trial Judge conducted a suppression hearing to determine the voluntariness of the statements. He ruled the statements admissible. At the conclusion of the government’s case the Court overruled Appellant’s motion for a judgment of acquittal.

In support of his first argument Appellant relies on the ease of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, its ancestors and its progeny. He contends that where the right to counsel attaches, as it did here (see note 4, supra), any statement obtained in the absence of counsel must be suppressed, independent of any issue of the voluntariness of the statement. He further alleges that once there has been a request for an attorney or a refusal to waive rights has been made, a subsequent knowing and intelligent waiver is impossible. Appellant contends that the trial court addressed their inquiry to the voluntariness of the statements but did not make a proper determination of waiver.

Of course Miranda places upon the government a heavy burden both with regard to inculpatory and exculpatory remarks “to demonstrate that the defendant knowingly and intelligently waived his * * * right to retained or appointed counsel.” Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. at 1628. But we disagree with Appellant’s appraisal of the effect of the dialogue between him and the. arresting officer at the time of the arrest. There is no evidence that the FBI agent persisted in the interrogation after Anthony invoked his right to counsel (see note 4, supra). Nor is there evidence that Anthony manifested inconsistent conduct because of confusion. See United States v. Hopkins, 5 Cir., 1970, 433 F.2d 1041. The Judge could conclude that Anthony himself initiated further conversation with the officer.

In Hopkins, supra, we held that if the accused initiates the conversation, his statements do not result from “interrogations” and are therefore admissible. Though there is no requirement that an accused be continually reminded of his rights once he has intelligently waived them, United States v. Phelps, 5 Cir., 1971, 443 F.2d 246, the record in this case shows that the FBI agent went the second mile by a second admonishment to Appellant. We conclude that the ensuing questions asked by the FBI agent were designed merely to pursue the line of inquiry begun by Appellant and uphold the trial Judge’s ruling that Anthony waived his constitutional privilege. United States v. Hopkins, supra; United States v. Jacquillon, 5 Cir., 1972, 469 F.2d 380.

We find the remainder of Appellant’s argument unpersuasive. The guilty verdict is adequately supported by the evidence. It is undisputed that Appellant departed with the van from the rental agency and subsequent to the commission of the crime returned with the van. The evidence is clear that the van was used in furtherance of the crime. Witnesses observed three men in active participation of the crime. While the evidence is not uncontradicted that Appellant was one of these three, the guilt of the Appellant may be established without proof that Appellant personally did every act constituting the offense charged. Aiding and abetting means to assist the perpetrator of the crime. United States v. Williams, 1951, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 747. To be an aider and abettor requires that a defendant “associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seeks by his action to make it succeed.” United States v. Harris, 10 Cir., 1971, 441 F.2d 1333. Here, if he did nothing else, Appellant provided the truck necessary to transport the stolen tractor.

Affirmed.

      . § 659. Interstate or foreign shipments by carrier ; State prosecutions
      Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any pipeline system, railroad car, wagon, motor-truck, or other vehicle, or from any tank or storage facility, station, station house, platform or depot or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment of freight, express or other property;
      * * * * *
      Shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both; but if the amount or value of such money, baggage, goods or chattels does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

      . At the trial two witnesses for the Appellant testified that he was in their company from approximately 6:30 p. m. until 11:30 p. m. Saturday night. Two other witnesses testified that Appellant had spent the remainder of that Saturday night with them from about 11:55 p. m. until the next morning. Appellant’s wife testified that about 5:30 p. m. on the evening of August 7 she had spoken to the Appellant via long distance from Alabama where she was staying concerning his renting a truck for the purpose of moving her and her furniture back to Atlanta.

      . During their pursuit of the van these witnesses were able to record and testify to the registration and tag numbers of the van.

      . As to the subsequent events and dialogue FBI agent testified as follows :
      Q. After placing him under arrest, can you tell the jury what, if anything, you did in advising him as to his constitutional rights?
      A. I advised him he was not required to make a statement, any statement he did make could be used against him. He had a right to consult with an attorney before making any statement. If he could not afford an attorney, one would he appointed for him. If he decided to answer questions, he had a right to stop answering at any time and have him present during questioning.
      Q. Did you understand he understood his rights?
      A. He stated he wanted an attorney present.
      Q. Then what did you do?
      A. We didn’t interview him at that time. He asked me then specifically what he was being charged with and at that time, I advised him he was being charged with theft of a farm tractor from the Southern Railway.
      Q. Just one minute, back up a minute. Did you cease your questioning of him at this time when he said he wanted an attorney; is that correct, sir?
      A. I did.
      Q. Who instigated the next conversation?
      A. He did.
      Q. Are you sure of that?
      A. Yes.
      Q. Tell us how he did.
      A. He asked me just what he was being charged with. I told him he was being charged with the theft of a farm tractor from the Southern Railway.
      Q. What else happened?
      A. At that point,' he said lie might steal an automobile or truck or something ho could sell, but he certainly wouldn’t steal a farm tractor. lie didn’t have any need for a farm tractor. He stated he rented a truck. At that point, I interrupted him to state anything he said could be used against him. He continued on after renting the truck, he turned it over to two individuals and that they had taken the truck and then they called him at four o’clock in the morning and told him where the truck could be found. lie had just gotten the truck and returned it. I then asked him who the two individuals were and he stated that a good thief never rats on another thief.
      Q. Did he state anything else?
      A. I asked him if he considered himself a good thief, he said he did.

      . We recognize and reaffirm the validity of our decisions, United States v. Phelps, 5 Cir., 1971, 443 F.2d 246; United States v. Blair, 5 Cir., 1972, 470 F.2d 331, which hold that once the suspect has requested an attorney that the interrogation must cease. But this in no way denigrates our holding today. For what we hold is that, on the facts of this case, the challenged statements were not the products of interrogation at all, but the voluntarily offered words of the Defendant.


author: MERRILL, Circuit Judge:

text:
    The STATE OF CALIFORNIA, on behalf of itself and all others similarly situated, and as parens patriae, Plaintiff-Appellee, v. FRITO-LAY, INC., et al., Defendants-Appellants.
    No. 72-1269.
    United States Court of Appeals, Ninth Circuit.
    Feb. 7, 1973.
    Certiorari Denied May 21, 1973.
    See 93 S.Ct. 2291.
    Francis R. Kirkham (argued), William E. Mussman, Terrence A. Callan, of Pillsbury, Madison & Sutro, San Francisco, Cal., Julian von Kalinowski, Irwin F. Woodland, Don J. Belcher, J. Edd Stepp, Jr., of Gibson, Dunn & Crutcher, Reed Stout, William A. Plourde, of Law-ler, Felix & Hall, Laughlin E. Waters, Richard Mainland, of Nossaman, Waters, Scott, Krueger & Riordan, Thomas R. Sheridan, Edward E. Medvene, Patrick Horgan, of Simon, Sheridan, Murphy, Thornton & Medvene, Los Angeles, Cal., William H. Orrick, Jr., William L. Riley, of Orrick, Herrington, Rowley & Sut-cliffe, San Francisco, Cal., William I. Cohen, Palo Alto, Cal., James F. Matthews, of Malovos, Mager & Chasuk, San Jose, Cal., for defendants-appellants.
    Herbert Davis, Deputy Atty. Gen. (argued), Elwood Lui, Deputy Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for plaintiff-appellee.

      Before MERRILL and TRASK, Circuit Judges, and FREY, District Judge.

       Honorable William C. Frey, United States District Judge for the District of Arizona, sitting by designation.

   MERRILL, Circuit Judge:

This interlocutory appeal, allowed under 28 U.S.C. § 1292(b), is taken from an order of the District Court, 333 F. Supp. 977, denying appellants’ motion to dismiss the second cause of action stated by California in its complaint to recover treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15. The suit was brought against twelve manufacturers of “snack foods,” charging a conspiracy to fix and maintain prices in violation of the Sherman Act, 15 U.S.C. § 1.

The state’s second cause of action reads as follows:

“The State of California, as sovereign, agent and protector of all its citizens, sues parens patriae as representative of its citizens who are natural persons and who have not sued in their own right. This action is brought for treble the amount of damages suffered by its citizens due to the defendants’ violations of the antitrust laws of the United States. It is impractical or impossible for the citizens represented herein to bring individual suits to recover damages and the duty to protect their interests and to enforce the policy of the antitrust laws rests with their sovereign, the State of California.”

Thus this appeal presents the question whether a state, as parens patriae, may sue and recover treble damages on behalf of its citizen-consumers for the injuries suffered by them.

This is quite a different question from that presented in Hawaii v. Standard Oil Company of California, 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). There, Hawaii sought treble-damage recovery for injury to a quasi-sovereign interest of the state itself — in essence, an injury to the general economy of the state. It was held that this was not injury to business or property of the state under § 4 of the Clayton Act. 405 U.S. at 264, 92 S.Ct. 885.

Here, it is for injury to business or property of the state’s citizens that recovery is sought. The question presented is the authority of the state to sue in a representative capacity as parens patriae to recover for that injury.

Judicial recognition of such authority would be a substantial departure from the scope of parens patriae authority as it has been recognized in this country to date. Where it has hitherto been recognized, it has been to halt injury to a quasi-sovereign state interest. Hawaii v. Standard Oil Company of California, supra, 405 U.S. at 257-259, 92 S.Ct. 885. This interest has been defined as “an interest apart from that of particular individuals who may be affected.” Georgia v. Pennsylvania Railroad, 324 U.S. 439, 451, 65 S.Ct. 716, 722, 89 L.Ed. 1051 (1945).

Parens patriae has received no judicial recognition in this country as a basis for recovery of money damages for injuries suffered by individuals. In a series of cases the Supreme Court has rejected parens patriae as a basis for invoking the court’s original jurisdiction where individuals were the real parties in interest.

As authority for extending the concept of parens patriae into this area the state relies on the historic “royal prerogative” of a king “as general guardian of all infants, idiots and lunatics.” It asserts that the practical inability of an injured citizen to bring an individual suit in his own behalf creates a comparable disability and warrants the establishment of a state prerogative to act for his protection.

It is true that in the United States this royal prerogative function of the king has passed to the states. However, its need has been met by provisions for court-administered guardian-ships. Efforts to provide for the disability which the state asserts to exist have found expression in provisions for class actions.

It would thus appear that the state is seeking to act here not as parens patriae in the sense in which that term is recognized in this country, but as guardian ad litem for the disabled members of the class it purports to represent.

The state is looking beyond recovery for injuries to its citizens to its own ultimate acquisition of the recoveries obtained. That acquisition, it asserts, will serve a valid public purpose by providing the injured citizens with the closest equivalent of the recovery which, individually, is beyond their reach.

This may be a worthy state aim, but in our judgment it is not the type of state action taken to afford the sort of benefit that the common-law concept of parens patriae contemplates. The means for conferring such benefit, based as they are on management and acquisition of the property of others, free from the safeguards which legislation and rule have thrown up around both guardianships and class actions, constitute state action of a sort that does! not fit the common-law concept. We would, in effect, be restoring to the substance of the common law rules of law in an area which has been pre-empted by legislation because of the need for careful control.

The state most persuasively argues that it is essential that this sort of proceeding be made available if antitrust violations of the sort here alleged are to be rendered unprofitable and deterred. It would indeed appear that the state is on the track of a suitable answer (perhaps the most suitable yet proposed) to problems bearing, on antitrust deterrence and the class action as a means of consumer protection. We disclaim any intent to discourage the state in its search for a solution.

However, if the state is to be empowered to act in the fashion here sought we feel that authority must come not through judicial improvisation but by legislation and rule making, where careful consideration can be given to the conditions and procedures that will suffice to meet the many problems posed by one’s assertion of power to deal with another’s property and to commit him to actions taken in his behalf.

We conclude that the authority of the state to act here as representative of its citizens cannot be founded on its common-law capacity as parens patriae.

Reversed and remanded with directions that the state’s cause of action No. 2 be dismissed.

      . Section 4 of the Clayton Act reads:
      “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

      . This proposition has been considered and rejected in at least three District Court opinions: by Judge Pence, in Hawaii v. Standard Oil Company of California, 301 F.Supp. 982, 986 (D.Haw.1969); by Judge Lord, in Philadelphia Housing Authority v. American Radiator and S. Fan. Corp., 309 F.Supp. 1057, 1061 (E.D.Pa. 1969); and by Judge Real, in In re Motor Vehicle Air Pollution Control Equipment, 52 F.R.D. 398 (C.D.Cal. 1970) .

      . But see Note, Wrongs Without Remedy: The Concept of Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 43 S.Cal.L.Rev. 570, 584-93 (1970); Note, Damage Distribution in Class Actions: The Cy Pres Remedy, 39 U.Chi.L.Rev. 448, 453-56 (1972) [hereinafter cited as Damage Distribution],

      . New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176, 27 L.Ed. 656 (1883); Oklahoma v. Atchison, Topeka and Santa Fe Railway, 220 U.S. 277, 31 S.Ct. 434, 55 L.Ed. 465 (1911); Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed. 342 (1923); Oklahoma v. Cook, 304 U.S. 387, 58 S.Ct. 954, 82 L.Ed. 1416 (1938). The rationale of these decisions is that “[A]n action brought by one State against another violates the Eleventh Amendment if the plaintiff State is actually suing to recover for injuries to designated individuals.” Hawaii v. Standard Oil Company of California, 405 U.S. at 258 n. 12, 92 S.Ct. at 889.

      . Blackstone Commentary 47-48 (12th Ed. E. Christian Ed. 1794).

      . Hawaii v. Standard Oil Company of California, 405 U.S. at 257, 92 S.Ct. 885.

      . See, e. g., Cal.Civil Pro.Code § 372 (West 1954). The same provisions exist in the federal courts. Fed.R.Civ.P. 17(c).

      . “Rule 23 of the Federal Rules of Civil Procedure provides for class actions which may enhance the efficacy of private actions by permitting citizens to combine their limited resources to achieve a more powerful litigation posture. * * *■ The fact that a successful antitrust suit for damages recovers not only the costs of the litigation, but also attorney’s fees, should provide no scarcity of members of the Bar to aid prospective plaintiffs in bringing these suits.” Hawaii v. Standard Oil Company of California, 405 U.S. at 266, 92 S.Ct. at 893.
      For a criticism of the efficacy of the class action procedures in private antitrust litigation, see Handler, The Shift from Substantive to Procedural Innovations in Antitrust Suits — The Twenty-Third Annual Antitrust Review, 71 Colum.L.Rev. 1, 9-10 (1971).

      . This form of parens patriae action has also been labeled a “Class Action Supplement” by one commentator. Note, State Protection of its Economy and Environment : Parens Patriae Suits for Damages, 6 Colum.J.L. & Soc.Prob. 411, 423-32 (1970) [hereinafter cited as State Protection], This characterization seems to be a more accurate description of the form of action presented by California than “parens patriae.” No matter how it is labeled, a basic problem still exists. The class action safeguards of Fed.R.Civ. P. 23 are absent. See note 11 infra.

      . The California Unclaimed Property Act, Cal.Civil Pro.Code § 1500 et seq. (West 1972), provides that intangible property held by the state and unclaimed by the owner for more than seven years escheats to the state.

      . A number of theories have been advanced concerning ways to provide individual citizens with equivalency recovery. For a discussion of the more prominent theories see State Protection, supra, note 9, at 424 — 29; Damage Distribution, supra, note 3, at 453.
      To a greater or lesser degree these theories attempt to utilize class action principles without the class action safeguards so carefully worked out by the drafters.
      “The first [policy] argument offered as support for the extension of parens patriae capacity to treble damage claims based on injury to individual consumers, which concerns the inadequacy of the class action device provided by Rule 23 is as follows: Where the nature of antitrust litigation precludes separate damage suits by individual consumers, and the careful framework of Rule 23 • makes a class action untenable, there may be no practical remedy for an antitrust violation. An action by the State, as parens patriae, would (so the argument goes) be a logical substitute in such cases. This position, however, ignores the difficult problems which the Supreme Court and the Advisory Committee attempted to resolve when they revised Rule 23 in 1966. The joining of the claims of numerous, dispersed claimants in a single judicial action is inherently complicated and requires safeguards if injustice is to be avoided. In essence, the class action procedure permits numerous absent parties to be represented, but it does so by tying their fate to that of the representative plaintiff and by requiring that both representative and class members stand or fall together. * * * to ensure the fairness of the use of this device, the Rule mandates * * * that the court find that all of the members of the alleged class are in similar legal positions. Indeed, if the purported representatives were to have interests which might conflict with those of absent parties, the entire procedure would be open to constitutional attack. The proposed parens patriae device would disregard all of Rule 23’s safeguards without providing new guidelines as to when such wholesale determination of claims may be appropriate or even within the bounds of due process. Furthermore, since a parens patriae suit for the benefit of consumers would not necessarily preclude a class action on behalf of the same individuals, defendants could well be faced with two massive actions based on identical claims. This would * * frustrate not only the careful balancing of policy factors, but also the goal of judicial economy which the draftsmen of Rule 23 sought to achieve.” Malina & Blechman, Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 65 Nw.L.Rev. 193, 215-17 (1970).


author: TIMBERS, Circuit Judge: MANSFIELD, Circuit Judge

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, and Rochester Telephone Corporation, Intervenor, v. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 1170, Respondent.
    No. 69, Docket 72-1298.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 17, 1972.
    Decided Dec. 21, 1972.
    Mansfield, Circuit Judge, concurred in result and filed opinion.
    Joseph C. Thaekery, Atty., NLRB, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Robert A. Giannasi, Atty., NLRB, Washington, D. C., on brief), for petitioner.
    Eugene D. Ulterino, Rochester, N. Y. (Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., on brief), for interve-nor.
    Richard Lipsitz, Buffalo, N. Y. (Lawrence A. Schulz and Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N. Y., on brief), for respondent.
    Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

The petition- to enforce an order of the National Labor Relations Board, 194 N.L.R.B. No. 144 (1972), in this somewhat off the beaten path labor case, presents essentially two issues:

(1) Whether there was substantial evidence to support the Board’s conclusion that the Union violated Section 8(b)(3) of the Act by its adoption of an embargo against acceptance of temporary supervisory assignments in contravention of a practice agreed upon between the parties, although not incorporated in the existing collective bargaining agreement.
(2) Whether there was substantial evidence to support the Board’s conclusion that the Union violated Section 8(b) (1) (A) of the Act by subjecting employees to disciplinary action for refusing to comply with the embargo.

For the reasons stated below, we hold that there was substantial evidence to support the Board’s conclusions on both issues. We enforce the Board’s order.

I.

This case is concerned with the Company’s practice of assigning unit employees to temporary supervisory positions.' Such practice has never been covered by a provision in a collective bargaining agreement between the Company and the Union, including the one in effect at the time of the Union’s embargo and disciplinary action to enforce the embargo referred to below. The Company and the Union have entered into successive collective bargaining agreements since the early 1950’s.

In 1960, the Company began the practice of assigning unit employees to act as temporary supervisors. This was to replace supervisors who were on vacation or sick leave. The Union frequently complained about this practice. Its complaints were directed chiefly at assignments that lasted more than 30 days and those where unit employees were assigned to supervise their own work groups.

It was not until the 1967 contract negotiations, however, that the Union proposed complete elimination of the temporary supervisory assignment practice. After considerable discussion of the proposal and much backing and filling by both parties, the upshot was that the Union withdrew its proposal altogether and the Company agreed to outline in a letter to the Union (not to be incorporated in the contract) its procedures with respect to temporary supervisory assignments. On the following day, the 1967 collective bargaining agreement was signed. It contained no mention of temporary supervisory assignments.

As agreed, the Company did inform the Union by letter in June 1967 of its temporary assignment procedures, including the promise that “whenever possible” employees would not be assigned to supervise their own work groups. In an-exchange of letters with the Union in October 1967, the Company reaffirmed its earlier agreement to limit such assignments to no longer than 30 days.

In 1968, at the Union’s request, the entire collective bargaining agreement was renegotiated. The subject of temporary supervisory assignments was not raised by either party. The new agreement contained no restrictions on the Company’s right to make such assignments. It has continued to make them.

In July 1970, the Union for the first time filed a formal grievance complaining of one temporary supervisory assignment that lasted six weeks. In settling this grievance, the Company again confirmed in writing its policy that such assignments should not exceed 30 days.

Also in 1970, the Union and the Company entered into a written agreement with respect to the equalization of overtime among unit employees. This agreement contained a provision that an employee who was away from his regular job on a temporary supervisory assignment would be charged with the actual overtime hours worked.

At no time since 1967 has the Union sought to abolish, or requested to bargain about, the Company’s temporary supervisory assignment practice.

On November 9, 1970 — eleven months before the expiration of the 1968 collective bargaining agreement — at a regularly scheduled membership meeting, the Union voted (1) an embargo on acceptance of all temporary supervisory assignments effective December 1, 1970, and (2) to penalize those who violated the embargo.

Since imposition of the embargo, the Company has had difficulty getting unit employees to accept temporary supervisory assignments. Two employees, one a Union member and one a nonmember, who accepted such assignments despite the embargo have had charges filed against them by the Union.

Following the filing of charges against the Union by the Company on February 23, 1971, pleadings were filed and in due course an evidentiary hearing was held before a trial examiner in Rochester, New York on May 28, 1971. The examiner on August 19, 1971 filed his decision which included findings of fact, conclusions of law and a recommended order. The Board on January 6, 1972 filed its decision and order. 194 N.L.R.B. No. 144. The Board’s order, which adopted the examiner’s recommended order with certain modifications, required the Union to cease and desist from conduct found to be in violation of §§ 8(b)(3) and 8(b)(1)(A) of the Act and to take certain affirmative action to remedy such violations.

II.

In the light of the foregoing summary of the evidence and prior proceedings leading to the instant petition by the Board for enforcement of its order, we turn directly to the central issue before us: Whether the Union’s action of November 9, 1970 in voting an embargo on acceptance of all temporary supervisory assignments constituted an unfair labor practice in violation of § 8(b)(3). We hold that it did.

Under § 8(b)(3), it is an unfair labor practice for a representative union “to refuse to bargain collectively with an employer.” The collective bargaining obligation, as defined in § 8(d), includes a duty not to terminate or modify an existing contract unless the party seeking such termination or modification gives to the other party specified notification in advance of the expiration date or offers to reopen negotiations. Coneededly there was no such notification or offer to reopen negotiations on the part of the Union here.

The crux of the controversy therefore is whether the Union’s unilateral adoption of an embargo on acceptance of temporary supervisory assignments in midterm of the Union’s collective bargaining agreement with the Company was in derogation of an agreed-upon practice not incorporated in the collective bargaining agreement.

We hold that the evidence clearly established a contemporaneous bargain, made at the time the parties entered into the 1967 collective bargaining agreement, with respect to the Company’s practice of assigning unit employees to temporary supervisory positions. In short, we hold that there was substantial evidence to support the Board’s specific finding in this regard:

“In the instant case . . . the parties bargained about abolishing the Company’s practice of assigning unit employees to temporary supervisory positions and reached an accord, pursuant to which the Union agreed to withdraw, and did withdraw, its demand to abolish the practice, in return for a letter of commitment from the Company outlining its procedures in implementing the practice. This agreement, therefore, became part of the contemporaneous bargain which the parties made in executing their 1967 contract, (citing The Jacobs Manufacturing Company, 94 N.L.R.B. 1214, 1227-28 (1951), enforced, 196 F.2d 680 (2 Cir. 1952)). And, since the Union did not renew its demand in the 1968 contract negotiations, the Company had a right to rely on the Union’s prior acquiescence in the practice, subject to the limitations agreed to by the Company, and to assume that its rights remained unchanged.”

Under similar circumstances, we recently have held that a union’s attempt unilaterally and in midterm to alter an existing collective bargaining agreement constituted a violation of § 8(b)(3). New York Dist. Council No. 9 v. NLRB, 453 F.2d 783 (2 Cir. 1971), cert. denied, 405 U.S. 988 (1972) (the Westgate case). In Westgate, the collective bargaining agreement provided for a 35 hour work week. The union, during the term of the bargaining agreement, adopted a rule limiting to 10 the number of rooms which unit employees were allowed to paint per week, thus reducing the average weekly output per man from 11.5 rooms to 10. The contract was silent regarding the matter on which the union acted unilaterally. We held that:

“By enforcing the rule the Union is in substance modifying this term to stipulate that journeymen are not to work a five day, seven-hour per day work week, but are to work only so long as it takes them to paint 10 rooms. We therefore agree with the Board that before the Union can enforce this modification of the collective bargaining agreement, it must bargain collectively with the Association over the issue.” 453 F.2d at 787.

The evidence in the instant case establishes even more clearly than in West-gate the existence of an agreement between the parties on the matter with respect to which the Union acted unilaterally, although the contracts in both cases were silent on the matter. In Westgate, the contract’s silence was due to the fact that the parties, having bargained during their last contract negotiations about maximum production standards, failed to reach agreement on the matter. In the instant case, the contract’s silence reflected the parties’ agreement to continue the Company’s practice of assigning employees to temporary supervisory positions. As the Board found, based on substantial evidence, “[i]n fact, the earlier understandings and written statement of policy clearly were intended to, and did, continue as an integral part of the totality of the contract between the parties.”

Upon these facts, we find the principle enunciated by the Supreme Court in Scofield v. NLRB, 394 U.S. 423, 432-33 (1969), to be applicable here. In Sco-field, the Court, in upholding as not vio-lative of § 8(b)(1) the enforcement of a union rule regarding production quotas, held as follows with respect to the position of the company which is strikingly similar to that of the Union in the instant case:

“The company has repeatedly sought an agreement eliminating the piecework ceiling, an agreement which, had it been obtained, unquestionably would have been violated by the union rule. But the company could not attain this. Although, like the union, it could have pressed the point to impasse, . it has never done so. Instead, it has signed contracts recognizing the ceiling, has tolerated it, and has cooperated in its administration by honoring requests by employees to bank their pay for over-ceiling work. We discern no basis in the statutory policy encouraging collective bargaining for giving the employer a better bargain than he has been able to strike at the bargaining table.” 394 U.S. at 432-33. (citation and footnote omitted).

Here, as in Scofield, we find no statutory policy in favor of giving the Union a better bargain than it was able to strike at the bargaining table.

We hold that there was substantial evidence to support the Board’s conclusion that the Union’s embargo against acceptance of temporary supervisory assignments constituted a violation of § 8(b)(3).

III.

The sequel to our holding above that the Union’s embargo constituted a violation of §8(b)(3) is that the Union’s enforcement of the embargo constituted a violation of § 8(b) (1) (A).

With respect to the nonmember of the Union against whom written charges were brought (DiMaria), the Union’s action restrained and coerced her in the exercise of her § 7 rights in violation of § 8(b)(1)(A). See Booster Lodge No. 405 v. NLRB, 459 F.2d 1143, 1150-55 (D.C.Cir.1972), aff’d,-U.S. —-“(May 21,1973) (per curiam). With respect to the Union member (Cammarata), the Union’s similar disciplinary action also constituted a restraint and coercion not sanctioned by the proviso to § 8(b)(1) (A) because the charges against her did not stem from violations of a lawful union rule dealing with purely internal union matters but sought to enforce conduct we have held violated §§ 8(d) and 8(b)(3).

As the Supreme Court said in Sco-field, “it has become clear that if the rule invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating § 8(b)(1).” 394 U.S. at 429. We have held above that the adoption of the embargo was in violation of §§ 8(d) and 8(b)(3), and therefore was invasive of an overriding policy of the labor laws.

We hold that there was substantial evidence to support the Board’s conclusion that the Union’s conduct in subjecting employees to disciplinary action for refusing to comply with the embargo constituted a violation of § 8(b)(1)(A).

IV.

We have considered and find without merit the Union’s alternative contention that the Board should not have assumed jurisdiction over this dispute since, according to the Union, it arose over the terms and meaning of an agreement and should have been settled by resort to the grievance and arbitration procedures provided for in the collective bargaining agreement.

Enforced.

MANSFIELD, Circuit Judge

(concurring) :

Although I concur in the result reached in Judge Timbers’ carefully considered opinion, I am not entirely in agreement with one aspect of its reasoning.

I agree that the Board’s finding that the parties reached a prior understanding, partly oral and partly written, regarding temporary assignment procedures was supported by substantial evidence and that the Union’s unilateral embargo in disregard of that understanding violated its obligation “to bargain collectively” in accordance with § 8(b)(3), 29 U.S.C. § 158(b)(3). But in my view we could enforce the Board’s order, as interpreted by it, only if we agreed with it that the past practices' and prior understandings as to assignment of temporary supervisors were “contained in a contract” as that phrase is used in § 8(d), 29 U.S.C. § 158(d), which defines the phrase “to bargain collectively.” I would so hold. Under such a holding the Company would not be “required ... to agree to, or even to bargain with the Union about, changing the existing agreement during its term.” Decision of the Board, Appendix 6. The reasoning of the majority opinion, however, by relying on the “contract’s silence” and analogizing the case to Westgate, New York Dist. Council v. N. L. R. B., 453 F.2d 783, 787 (2d Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972), upon which the Trial Examiner relied, should logically permit the Union at any- time during the term of the contract to initiate bargaining on the issue, since the contract is “silent on the matter.” The Board, modifying the Trial Examiner’s proposed order, rejected such reasoning.

Section 8(d) bars reopening or modification of an existing collective bargaining agreement except upon stated conditions that were not followed by the Union in this case. It further provides that these conditions “shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period. . . . ” (emphasis supplied). I am persuaded that, absent a clause to the effect that the formal agreement incorporates all understandings between the parties — and no such term is found in the formal agreement here — a prior understanding of the type in this case, partly oral and partly written, may constitute a term of the “contract” between the parties within the meaning of § 8(d) even though it has not been physically incorporated in a formal collective bargaining agreement. This view is amply supported by precedent. United Steelworkers v. NLRB, 456 F.2d 248, 249 (3d Cir. 1972); Jacobs Manufacturing Co., 94 N.L.R.B. 1214, 1227 (1951) (concurring opinion), enfd., NLRB v. Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1952); Spei-del Corp., 120 N.L.R.B. 733, 738 (1958).

“I believe that this Respondent was not under a duty to discuss the Union’s group insurance demand.
* * ■» -X- * *
“In my opinion, it is only reasonable to assume that rejection of the Union’s basic proposal, coupled in this particular instance with enhancement of the substantive benefits, constituted a part of the contemporaneous ‘bargain’ which the parties made when they negotiated the entire 1948 contract. In the face of this record as to what the parties discussed and did, I believe that it would be an abuse of this Board’s mandate to throw the weight of Government sanction behind the Union’s attempt to disturb, in midterm, a bargain sealed when the original agreement was reached.
“To hold otherwise would encourage a labor organization — or, in a Section 8(b)(3) case, an employer — to come back, time without number, during the term of a contract, to demand resumed discussion of issues which, although perhaps not always incorporated in the written agreement, the other party had every good reason to believe were put at rest for a definite period.” Jacobs Manufacturing Co., supra at 1227-28.

In Westgate, relied upon by the majority, the failure of the parties to reach agreement on production quotas barred the Union from unilaterally modifying the 35-hour work week provision of the ‘formal collective bargaining agreement and entitled the employer to restrict the Union to the four corners of that agreement. I do not view that case as supporting the proposition upon which our decision depends, namely, that where earlier understandings constitute part of the contract between the parties they may rely upon such terms, even though the terms are not found within the four corners of the formal written agreement.

      . Communications Workers of America, AFL-CIO, Local 1170 (the Union).

      . National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970) (the Act).

      . Rochester Telephone Corporation (the Company).

      . The only material modification of the trial examiner’s recommended order made by the Board was deletion of the provision directing the Union to bargain with the Company. The Board held that, “although the Union was free to request discussion, the Company was not required by Section 8(d) of the Act to agree to, or even to bargain with the Union about, changing the existing agreement during its term.”

      . Section 158(d) defines the phrase “to bargain collectively” as the
      “performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—
      (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date.
      (2) offers to meet and confer with the other party. . . .
      (3) [notifies the appropriate conciliation services]. . .
      (4) [does not resort to strike or lock out and gives full force to contract] for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: “ . . . [t]he duties so imposed [2-4] shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for .a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. . . . ” 29 U.S.C. § 158(d). (Emphasis supplied)

      . “In our opinion the Union’s enforcement of the 10-room rule violates the term of the September 9th collective bargaining agreement that stipulates that the standard work week for journeymen painters shall consist of five seven-hour days. ■ By enforcing the rule the Union is in substance modifying this term to stipulate the journeymen are not to work a five day, seven-hour per day work week, but are to work only so long as it takes them to paint 10 rooms. We therefore agree with the Board that before the Union can enforce this modification of the collective bargaining agreement, it must bargain collectively. . . . This obligation includes, of course, compliance with the four classes of section 8(d).” 453 F.2d 783, 787 (2d Cir. 1971).