author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Norman HILL, Defendant-Appellant.
    No. 73-2922.
    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 1, 1974.

      Joel Hirschhorn, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Robert N. Reynolds, Asst. U. S. Atty., Miami, Fla., Robert D. Keefe, Dept, of Justice, Grim. Div., Government Regulations Section, Washington, D. C., for plaintiff-ap-pellee.
    Before MOORE , AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   RONEY, Circuit Judge:

On February 22, 1973, agents for the Federal Bureau of Investigation, acting on a tip from an informer, arrested James Norman Hill in the Miami International Airport. Immediately prior to his arrest, Hill had deplaned from a Califoria flight and had claimed his “baggage,” which contained 623 reels of 8mm non-sound color motion picture film depicting a variety of explicit sexual acts. When the grand jury returned its two count indictment against Hill for violations of 18 U.S.C.A. § 1462 and § 1465 on May 3, 1973, the Supreme Court had not yet announced its decisions in the Miller group of obscenity cases, so that the Roth-Memoirs test still prevailed. The attorneys in the instant case, however, agreed to postpone Hill’s jury trial until the Supreme Court decided the pending Miller cases. With instructions that incorporated the language of the Miller decisions, the jury found Hill guilty as to both counts of the indictment. After ruling on the obscenity vel non of the films, the District Court adjudged Hill guilty and sentenced him to three years confinement on each count, to run concurrently, and fined him $10,000, $5,000 on each count. We affirm.

On appeal, Hill presents several grounds for the reversal of his conviction. The most significant legal argument which Hill advances is his contention that he was constitutionally entitled to be tried under the Roth-Memoirs standard of obscenity and that the trial court, by basing its instructions on the Miller test, subjected him to an ex post facto application of the law prohibited by Article I, Section 9 of the United States Constitution and deprived him of due process of law under the Fifth Amendment.

In handling the post-Miller appeals of federal obscenity convictions where the trial was held under the Roth-Memoirs test, this Court has reviewed the materials under both the Roth-Memoirs and the Miller standards to assure defendants of the benefit of both tests as a matter of constitutional review. United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), cert. denied, -U.S.-, 94 S.Ct. 3222, 41 L.Ed.2d 1170 [No. 73-1075, July 25] (1974). This Court, however, has not decided the question of whether a defendant, arrested and indicted under the Roth-Memoirs standard, is subjected to an ex post facto application of the law and deprived of due process of law when the jury is instructed to judge the factual content of the material under the Miller test. We find, however, that we do not have to decide whether a charge based solely on the language in Miller would require a reversal of Hill’s conviction because we view the instructions as sufficient under both tests.

The defendant argues that the two standards are enunciated as follows:

The Roth-Memoirs Standard:

1. Dominant theme of material taken as a whole appeals to the prurient interest in sex;
2. The material is patently offensive because it affronts contemporary community standards relating to the representation of sexual matters; and
3. The material is utterly without redeeming social value.

The Miller Standard:

1. Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest in sex;
2. Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable law; and
3. Whether the material lacks serious literary, artistic, political or scientific value.

Assuming without deciding that something other than the varying semantics of different words to articulate the same idea is involved in the Miller decision and that it does articulate a standard different than Roth by which a jury could reach different conclusions on the material involved in this case, an examination on the charge to the jury reveals that the defendant was given the benefit of both standards. Although the Court first instructed the jury that the test of whether the material was obscene depended on the existence of the three elements of the Miller standard, it then went on to satisfactorily, we think, instruct the jury as to the social value element found in Roth-Memoirs. The Court said:

Freedom of expression is fundamental to our society and has contributed much to the development and well-being of our free society. In the exercise of the constitutional right to free expression which all of us enjoy, sex may be portrayed and the subject of sex may be discussed, freely and publicly, so long as the expression does not fall within the area of obscenity. However, the constitutional right to free expression does not extend to the expression of that which is obscene.
Furthermore, obscenity is excluded from constitutional protection because it is without social value. Of course, the mere fact that material deals with sex does not mean that it cannot have value to society. Indeed, such material can have social importance if it portrays sex in a manner that advocates ideas or that has literary, scientific or artistic value. It is for you to determine whether the materials at issue in this case are of value to society.

Although the Court did not use the words “utterly without redeeming social value” as expressed in Memoirs, we do not deem it necessary that a jury instruction recite the precise words of judicial opinions in order to convey the ideas therein expressed. Defendant would have us hold that the law is revealed to the jury by some magical incantation of the exact words of a legal opinion, and anything short of that is reversible error. We think the above passage of the Court’s charge, read with the instructions as a whole, was sufficient to inform the jury that they should not convict the defendant if they found the materials to be of any social value.

The precise effect of the Court’s instructions to the jury in the instant case was to secure for the defendant the same protection at trial as to the facts which a Thevis review by this Court affords him on appeal as a constitutional matter. By charging the jury under both the Miller and the Roth-Memoirs tests of obscenity, the District Court gave the defendant the benefit of both standards. We need not involve ourselves in the controversy over whether the materials should be judged under a local, state, or national standard. The materials here are not constitutionally protected under any standard. The defendant requested that the jury be instructed that its judgment should be based on a state standard, such an instruction was given, and the defendant cannot now assert any error in this regard.

Although the point was not argued to us, we have determined on a review of the materials that they are not constitutionally protected under either the Roth-Memoirs standard or the Miller standard. United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), cert. denied, -U.S.-, 94 S.Ct. 3222, 41 L.Ed.2d 1170 [No. 73-1075, July 25] (1974). 'The several films not being the subject of individual counts, the unprotected obscenity of any one of them would be sufficient to support the conviction.

The rest of the points raised on appeal have either been decided contrary to the defendant’s position in controlling cases of this Court or the Supreme Court, or a review of the record reveals them to be without merit. We decide each point in the order in which it was asserted by defendant.

The defendant complains that the failure to add to the master jury wheel the names of newly registered voters since 1968 or 1969 occasioned the systematic exclusion of potential veniremen of certain “cognizable groups,” namely young adults between the ages of 21 and 25 years and newly arrived Latin Americans. This argument falls under previous decisions of this Court, United States v. Pentado, 463 F.2d 355 (5th Cir.), cert. denied, Ocha v. United States, 409 U.S. 1079, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972); Noa v. United States, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973), and United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971), the authority of which has now been bolstered by the recent Supreme Court decision in Hamling v. United States, -U.S.-, 94 S.Ct. 2887, 41 L.Ed.2d 590 [No. 73-507, June 24] (1974).

Faced with a similar argument in Hamling, the Supreme Court said:

Congress could reasonably adopt procedures which, while- designed to assure that “an impartial jury is drawn from a cross-section of the community,” Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), at the same time take into account practical problems in judicial administration. Unless we were to require the daily refilling of the jury wheel, Congress may necessarily conclude that some periodic delay in updating the wheel is reasonable to permit the orderly administration of justice. Invariably of course, as time goes on, the jury wheel will be more and more out of date, especially near the end of the statutorily prescribed time period for updating the wheel. But if the jury wheel is not discriminatory when completely updated at the time of each refilling, a prohibited “purposeful discrimination” does not arise near the end of the period simply because the young and other persons have belatedly become eligible for jury service by becoming registered voters. Whitus v. Georgia, 385 U.S. 545, 551, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); see Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972);

-U.S. at -, 94 S.Ct. at 2918.

Contrary to what the defendant argues that the law should be both sections under which he was convicted, 18 U.S.C.A. § 1462 and § 1465, have been held to be constitutional against a charge of vagueness and overbreadth. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); United States v. New Orleans Book Mart, Inc., 490 F.2d 73 (5th Cir. 1974); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), cert. denied, -U.S.-, 94 S.Ct. 3222, 41 L.Ed.2d 1170 [No. 73-1075, July 25] (1974).

Hill’s appeal from the denial of the motion to suppress is based on his contention that the affidavit was • insufficient to support the issuance of a warrant for arrest. Assuming a legal arrest, the search was constitutional.

An affidavit based solely upon an unidentified informer’s tip may provide the probable cause basis for the issuance of a warrant if the affidavit contains objective assertions from which a detached magistrate may conclude that the hearsay is credible. United States v. Sellers, 483 F.2d 37 (5th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974); see Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The affidavit upon which the Magistrate in the case at bar issued the arrest warrant was legally sufficient under the Sellers test. Paragraphs 2 through 4 of the affidavit allege adequate facts for the Magistrate to determine the informant’s source of information, the reliability of that information, and the reliability of the informant in the past.

We find no abuse of discretion in the court’s failure to ask certain questions on voir dire proposed by defendant, to submit special interrogatories to the jury, or to allow closing arguments to exceed twenty minutes in length.

There was no error in letting the jury view four films and deliberate on 24 titles. The films were all the subject of the same two charges and it was only necessary for conviction that the jury find one of the films obscene, even if it found that all of the others were not. There is no indication that the jury’s verdict hinged on the unseen films.

There was no error in refusing to let the defense show that Florida did not have a valid, enforceable obscenity law at the time of Hill’s interstate travel. The community standard is not necessarily gauged by the state law, and the fact that a three-judge federal court in Meyer v. Austin, 319 F.Supp. 457 (M.D.Fla.1970), app. dismissed, 413 U.S. 902, 93 S.Ct. 3029, 37 L.Ed.2d 1017 (1973), declared Florida Statutes § 847.011 (1967) unconstitutional was not relevant to this federal obscenity prosecution.

Defendant argues that the trial court erred in its failure to make proper findings of law as to the obscenity vel non of the films in the instant case. We find, however, that the trial judge made quite explicit findings when he stated,

I think clearly, under the opinions handed down last Thursday, you want to know if this is obscene. I cannot imagine any test the Supreme Court has ever enunciated or promulgated by which the material here would not be classified as obscene. It is hard core to its flintiest hardness. No way around that interpretation.

The trial court did not err in denying defendant’s motion for mistrial. Ordinarily, a motion for mistrial is addressed to the sound discretion of the trial court. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); Rothaus v. United States, 319 F.2d 528 (5th Cir. 1963). On review, we are unable to say that the trial judge abused his discretion in denying defendant’s motion.

Appellant Hill contends that the trial court erred in refusing to admit into evidence The Report of the Commission on Obscenity and. Pornography. A trial court has wide discretion in determining the relevance and materiality of evidence and its ruling should not be disturbed in the absence of an abuse of discretion. United States v. Garr, 461 F.2d 487 (5th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 170, 34 L.Ed.2d 135 (1972); O’Brien v. United States, 411 F.2d 522 (5th Cir. 1969). In the instant case, the Court denied the admission of the Report into evidence on the basis of United States v. Manarite, 448 F.2d 583 (2d Cir.), cert. denied, 404 U.S. 947, 92 S.Ct. 298, 30 L.Ed.2d 264 (1971). The Court in Manarite found that the trial court had properly excluded the work “. . . as in large part irrelevant and as usurping the function of the jury.” 448 F.2d at 593. On the facts before us, we are unable to say that the District Court abused its discretion in excluding The Report of the Commission on Obscenity and Pornography from evidence in the instant trial.

The evidence was sufficient for the jury to determine that the defendant had general knowledge that the material is sexually oriented, the only scienter required for conviction under 18 U.S.C.A. § 1462 or § 1465. United States v. Grito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. Groner, 494 F.2d 499 (5th Cir. 1974); United States v. New Orleans Book Mart, Inc., 490 F.2d 73 (5th Cir. 1974); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), cert. denied, —U.S.-, 94 S.Ct. 3222, 41 L.Ed.2d 1170 [No. 73-1075, July 25] (1974). See also Hamling v. United States, - U.S.-, 94 S.Ct. 2887, 41 L.Ed.2d 590] (1974).

It is established that the Government is not required to produce expert testimony in obscenity cases when the materials themselves are placed in evidence. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). We find without merit the argument that, despite this principle, expert testimony should have been required of the Government in the case sub judice because the materials are of a bizarre nature and involved deviant sexual conduct which is not within the common knowledge or full understanding of the average person, or which would not or could not appeal to the average person.

Defendant contends that his conviction and sentence for violation of both 18 U.S.C.A. § 1462 and § 1465 constitute multiple punishment for a single act in violation of the constitutional prohibition against double jeopardy and cruel and unusual punishment. This Circuit follows the “different evidence” test, see United States v. Costello, 483 F.2d 1366 (5th Cir. 1973); United States v. Young, 482 F.2d 993 (5th Cir. 1973), under which convictions for separate offenses arising from a single fact pattern are upheld if each statute proscribing the conduct requires proof of different facts and different elements as to each separate offense. In the instant case, the statutes under which Hill was convicted and sentenced meet the “different evidence” test: section 1462 requires the use of a common carrier, section 1465 does not, and section 1465 requires the intent to sell or distribute, section 1462 does not.

Affirmed.

      . 18 U.S.C.A. § 1462 reads in pertinent part:
      Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce— (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
      Whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is here made unlawful—
      Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

      . 18 U.S.C.A. § 1465 reads in pertinent part:
      Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both.
      The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

      . Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).

      . Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)]; Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    James SMITH et al., Plaintiffs-Appellants, v. LOCAL NO. 25, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, Defendant-Appellee.
    No. 73-2338.
    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 1974.

      Jack N. Price, Longview, Tex., for plaintiffs-appellants.
    David R. Richards, Austin, Tex., for defendant-appellee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   THORNBERRY, Circuit Judge:

Charlie Smith and James Smith were suspended and expelled from their Union for their failure to pay dues. Appellant Wylie Smith was suspended for the same delinquency, but was reinstated to membership in good standing after he had tendered the required payments. Subsequent to the suspension and expulsion episode, all three brought suit in federal court contending that the Union had consistently discriminated against them, and in favor of other Union members, in job referrals within the Union’s trade area “contrary to the provisions of section 8 of the National Labor Relations Act, as amended.” The two expelled members contended additionally that the Union had “deliberately and fraudulently” refused to permit their membership reinstatement pursuant to the Union’s constitution.

The district court concluded that appellants’ first claim presented a matter within the exclusive jurisdiction of the NLRB because appellants accused the Union of engaging in conduct which is arguably an unfair labor practice under section 8(b)(2) of the Labor Management Relations Act, citing Local 100 of United Ass’n of Jour. & App. v. Borden, 1963, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, and San Diego Building Trades Council v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. The district court rejected appellants’ effort to predicate the suit on section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), and thus to avoid preemption, William E. Arnold Co. v. Carpenters District Council, 1974, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620, by noting that section 301(a) was inapplicable since the appellants had neither alleged a violation of any collective bargaining agreement nor even introduced such an agreement in evidence. The district court concluded that the appellants’ reliance upon a claim that the Union had breached its duty of fair representation was misplaced since a DFR claim is jurisdictionally cognizable only in the context of a section 301(a) action. The court further held that the two plaintiffs seeking reinstatement were not entitled, as nonmembers, to claim a duty of fair representation from the Union, and as nonmembers, could not avail themselves of section 102 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 412.

Appellants contend that their claims are not preempted, that jurisdiction properly lies in the federal district court, and that this court should reverse and remand for trial. Although the issues involved have been briefed and argued, the procedural posture of this case is still somewhat puzzling. Shortly after the filing of the suit, depositions were taken and interrogatories were answered. Armed with the information there disclosed and with supporting affidavits, the Union filed a motion for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiffs responded in kind, attempting to demonstrate that material issues of fact existed warranting a trial on the merits. The Union counter-attacked with a brief styled “In Support of Motion for Summary Judgment and in Support of Motion to Dismiss for Want of Jurisdiction.” The plaintiffs, not to be outdone, responded with a brief of their own.

The result of the battle was the granting of a dismissal “for lack of jurisdiction.” The order, however, does not stop with its decision of the jurisdictional question. There, are references in the order to matters normally reserved for dispositions under Fed.R.Civ. P. 12(b)(6), where the plaintiff has failed to state a claim upon which relief can be granted. Additionally, however, the district court relied upon affidavits, other extra-pleading materials, and oral argument on the motion, thus automatically converting what might have been an alternative dismissal for failure to state a cause of action into a summary judgment on the merits, the requirements of which are governed by Fed.R. Civ.P. 56. Arrington v. City of Fairfield, Alabama, 5th Cir. 1969, 414 F.2d 687, 692; Carter v. Stanton, 1972, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569. Consequently, although styled a dismissal for lack of jurisdiction, we treat the order for what it is: a dismissal for lack of subject matter jurisdiction or alternatively a grant of summary judgment on the merits. While we disagree with much of what the district court said in its order, we are in agreement as to the result: the Union was entitled to summary judgment on both claims.

In finding that the appellants’ job referral claim was preempted by the NLRB’s exclusive jurisdiction, the district court relied upon tests announced by the Supreme Court. In enacting the National Labor Relations Act and later the Labor Management Relations Act,

Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies ... A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of sub- , stantive law .

Garner v. Teamsters, etc., Union, 1953, 346 U.S. 485, 490-491, 74 S.Ct. 161, 165-166, 98 L.Ed. 228. Consequently, as a general rule, neither state nor federal courts have jurisdiction over suits directly involving “activity [which] is arguably subject to § 7 or § 8 of the Act.” San Diego Building Trades Council v. Garmon, supra, 359 U.S. at 245, 79 S.Ct. at 780.

It is true of course that union discrimination in job referrals against a member of the bargaining unit is a matter normally within the exclusive jurisdiction of the NLRB. Journeymen & Apprentices Local 100 v. Borden, 1963, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638. But even this general rule is not without exception. In Int’l. Brotherhood of Boilermakers v. Hardeman, 1971, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 10, the Court held that a federal district court had jurisdiction to entertain a suit arising under the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq., even though the subject matter of the suit was a claim of union discrimination against a member in job referrals. Our first task is to decide whether an exception to the general rule is available here, in light of the preemption doctrine.

The appellants contend that their first claim falls within the exception to the preemption doctrine first recognized in Smith v. Evening News Ass’n, 1962, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, for suits brought pursuant to section 301(a) of the Taft-Hartley Act, 29 U.S. C. § 185(a). Théy argue that this is a section 301(a) action because the duty of fair representation is imposed upon the Union by the very nature of the collective bargaining agreement. Therefore, they contend, a suit to remedy a breach of the duty of fair representation is one of the class of “suits for violation of contracts between an employer and a labor organization,” 29 U.S.C. § 185(a), which the federal courts are expressly empowered to hear.

We agree with the district court that section 301(a) provides no jurisdictional basis for this suit. The duty of fair representation arises not out of the collective bargaining agreement but out of sections 8(b) and 9(a) of the Labor Management Relations Act, 29 U.S.C. §§ 158(b), 159(a). Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048; Sanderson v. Ford Motor Co., 5th Cir. 1973, 483 F.2d 102, 109-110; Local Union No. 12, United Rubber, C., L. & P. Wkrs. v. NLRB, 5th Cir. 1966, 368 F.2d 12, 17, 5 A.L.R.Fed. 353; Humphrey v. Moore, 1964, 375 U.S. 335, 351, 84 S.Ct. 363, 373, 11 L.Ed.2d 370 (Goldberg, J., concurring). It is the Union’s statutory recognition as exclusive bargaining agent both before and after the execution of a collective bargaining agreement which imposes upon the Union the duty to represent fairly the interest of each employee in the unit in dealings with the employer. Retana v. Apartment, Motel, Hotel & El. Op. Union, 9th Cir. 1972, 453 F.2d 1018, 1024; Sanderson v. Ford Motor Co., supra.

However,- for the very reason that the Union’s duty of fair representation is not wholly dependent upon the existence of a collective bargaining agreement, we reject the district court’s holding that suits claiming a DFR breach are cognizable only in the context of an action jurisdictionally predicated on section 301(a). In Vaca v. Sipes, 1967, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, an employee complained that his Union’s failure to press a grievance had contributed to his employer’s action in discharging him in violation of the collective bargaining agreement. The Supreme Court held not only that the employer might be guilty of a breach of the labor contract but also that the Union may have breached its duty as exclusive bargaining agent to represent plaintiff employee fairly. The wrong charged to the Union was not a violation of the collective bargaining agreement but rather a DFR breach.

The district court interpreted the Court’s holding in Vaca to mean that the DFR claim is merely “a species of the exception embodied in section 301.” It was settled long before Vaca, however, that the preemption doctrine did not oust the courts of jurisdiction over breach of contract claims against unions or employers under section 301(a), see Humphrey v. Moore, supra; Smith v. Evening News Ass’n, supra. In our judgment, union conduct may be consistent with or even unrelated to the terms of a collective bargaining agreement and yet violative of the duty of fair representation. See Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Wallace Corp. v. NLRB, 1944, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216; Retana v. Apartment, Motel, Hotel & El. Op. Union, supra, 453 F.2d at 1023-1024. As the Court recently pointed out in Amalgamated Ass’n of St., E.R. & M.C.Emp. v. Lockridge, 1971, 403 U.S. 274, 299, 91 S.Ct. 1909, 1924, 29 L.Ed.2d 473, the Vaca holding goes much further than the district court or the Union would urge by bestowing on DFR suits across-the-board immunity from preemption:

. Indeed, in Vaca v. Sipes, . , we held that an action seeking damages for injury inflicted by a breach of a union’s duty of fair representation was judicially cognizable in any event, that is, even if the conduct complained of was arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit was bottomed on a collective agreement .

This suggests additionally that it makes no difference that the complaint alleges union conduct which is arguably prohibited by section 8 of the Labor Management Relations Act, 29 U.S. C. § 158, contrary to what we had said earlier in United Rubber Workers, supra. There we held that

[r] ecognition of a breach of the union’s duty of fair representation as an unfair labor practice will have the necessary effect of bringing such controversies within the primary jurisdiction of the Board .

United Rubber Workers, supra, 368 F.2d at 21. But Vaca and Lockridge, and subsequent action by the Board, have forced us to reappraise our preemption position.

In Vaca the Supreme Court considered our United Rubber Workers decision and concluded that even on the assumption that a DFR breach constitutes an unfair labor practice, in DFR cases exclusive Board jurisdiction has been discarded in favor of concurrent jurisdiction in the courts. Vaca v. Sipes, supra, 386 U.S. at 178, 87 S.Ct. at 910. The Court reached this conclusion because “it could not fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB” in DFR cases. Id., 386 U.S. at 179, 87 S.Ct. at 911; see also Truck Drivers and Helpers, Loc. U. 568 v. NLRB, 126 U.S.App.D.C. 360, 379 F.2d 137 at 142; Amalgamated Ass’n of St., E.R. & M.C.Emp. v. Lockridge, supra, 403 U.S. at 299, 91 S.Ct. at 1924.

This court’g preemption position in United Rubber Workers derived in great part from “the Board's express desire to assume jurisdiction” in DFR cases. United Rubber Workers, supra, 368 F.2d at 21. That desire first evidenced itself in NLRB v. Miranda Fuel Co., Inc., 140 NLRB 181, enforcement denied, 2nd Cir. 1963, 326 F.2d 172, where the Board’s majority held that section 7 of the National Labor Relations Act, 29 U.S.C. § 157, gives employees “the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment,” and that “section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair.” 140 NLRB at 185. But since our decision in United Rubber Workers, the Board has shown very little inclination to use Miranda Fuel, choosing instead to fall back upon traditional unfair labor practice concepts. See Bryson, supra, 51 Tex.L.Rev. 1037, 1075-84 (1973).

In this particular case, were we to hold that the appellants’ job referral claim is preempted, we would effectively tell them that there is no forum for their claim, for the Board has refused to issue a complaint, a refusal which is not subject to review by any court. Vaca v. Sipes, supra, 386 U.S. at 182, 87 S.Ct. at 913; NLRB v. Bar-Brook Mfg. Co., 5th Cir. 1955, 220 F.2d 832, 834; Henderson v. Int’l. Longshore. & W.U. Loc. 50, 9th Cir. 1972, 457 F.2d 572, 578; Newspaper Guild, Erie News. Guild, Local 187 v. NLRB, 3rd Cir. 1973, 489 F.2d 416, 426. Of course, the Board uses different criteria in determining whether to issue a complaint from those which the courts employ in adjudicating a controversy.

. The public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee is always the Board’s principal concern in fashioning unfair labor practice remedies

Vaca v. Sipes, supra, 386 U.S. at 182 n. 8, 87 S.Ct at 913, n. 8; see 29 U.S.C. § 160(c); Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271. But “the existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union’s breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine.” Vaca v. Sipes, supra, 386 U.S. at 182-183, 87 S.Ct. at 913.

Of highest importance is the fact that “the duty of fair representation was judicially evolved, without the participation of the NLRB.” Amalgamated Ass’n of St., E.R. & M.C.Emp. v. Lockridge, supra, 403 U.S. at 301, 91 S.Ct. at 1925. Thus,

A primary justification for the preemption doctrine — the need fo avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose — is not applicable to eases involving alleged breaches of the union’s duty of fair representation

Vaca v. Sipes, supra, 386 U.S. at 180-181, 87 S.Ct. at 912.

Every Circuit which has faced the question has concluded that the federal courts have subject matter jurisdiction over a bare DFR claim under 28 U.S.C. § 1337, which authorizes federal suits arising under any Act of Congress regulating commerce. The National Labor Relations Act is an “Act of Congress regulating commerce.” See Capital Service v. NLRB, 1954, 347 U.S. 501, 504, 74 S.Ct. 699, 702, 98 L.Ed. 887. Suit for breach of a duty of fair representation is one “arising under” the National Labor Relations Act within the meaning of § 1337 by virtue of section 9(a)’s dual creations of exclusive power in the bargaining agent to represent all employees in the unit and the correlative obligation to represent those employees fairly in dealings with the employer. See Nedd v. United Mine Workers of America, 3rd Cir. 1968, 400 F.2d 103, 106; Retana v. Apartment, Motel, Hotel & El. Op. U. Loc. No. 14, supra, 453 F.2d at 1022; De Arroyo v. Sindicato de Trabajadores Packinghouse, 1st Cir. 1970, 425 F.2d 281, 283 n. 1; Cunningham v. Erie Railroad Co., 2nd Cir. 1959, 266 F.2d 411, 414; see also Brady v. Trans World Airlines, Inc., 3rd Cir. 1968, 401 F.2d 87, 94; Tunstall v. Brotherhood of Locomotive, etc., 1944, 323 U.S. 210, 213, 65 S.Ct. 235-237, 89 L.Ed. 187; Avco Corp. v. Aero Lodge No. 735, I. A. of M. & A. W., 1968, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126.

Thus, we conclude that the district judge erred in dismissing the appellants’ first contention for lack of jurisdiction. We must now decide whether the district court’s alternative grant of summary judgment was appropriate. A motion for summary judgment should be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56.

The district court made no express finding that there was no genuine issue as to any material fact. Instead, as an alternative disposition, the court appears to have challenged the legal sufficiency of the appellants’ claim by holding that a union owes a duty of fair representation only to its members. On the contrary, the duty is owed to all employees in the bargaining unit. Steele v. Louisville & N.R.R., 1944, 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Turner v. Air Transport Dispatchers’ Ass’n, 5th Cir. 1972, 468 F.2d 297, 301; Wallace Corp. v. NLRB, supra, 323 U.S. at 255-256, 65 S.Ct. at 241-242. As noted earlier, it is the exclusivity of the bargaining agent’s authority under the National Labor Relations Act which compels the Union to represent fairly the interests of members and nonmembers alike in dealings with the employer.

Nevertheless the depositions, answers to interrogatories, and affidavits indicate that there is no genuine issue of material fact with regard to the question of whether the Union has discriminated against the appellants in job referrals. Appellants’ counter-affidavit filed in response to the Union’s motion for summary judgment and affidavits in support thereof does not mention the issue. Their answers to interrogatories and deposition testimony offer no specific evidence in support of their claim other than vague and general references to a lack of job referrals from their first day in the Union until the time of suit. Our independent search of the record convinces us that, in light of appellants’ failure “to come forth with a showing of any specific facts supporting [their] position,” summary judgment is approppriate. Driskill v. Dallas Cowboys Football Club, Inc., 5th Cir. 1974, 498 F.2d 321; Encina v. Tony Lama Boot Co., 5th Cir. 1971, 448 F.2d 1264; Fed.R.Civ.P. 56.

We conclude that the district court was correct in dismissing the second claim alleging arbitrary refusal to reinstate appellants Charlie Smith and James Smith as members in good standing. Appellants alleged that the Labor Management Reporting and Disclosure Act provided a jurisdictional basis for their claim, but they have directed us to no provision of the Act which affords them a right or a remedy. The Act provides that

Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate

29 U.S.C. § 412. Under the most generous reading of the rights secured by the Act, see 29 U.S.C. § 411, we cannot understand how appellants’ claim fits within any of them. “The provisions of the L.M.R.D.A. were not intended by Congress to constitute an invitation to the courts to intervene at will in the internal affairs of unions.” Gurton v. Arons, 2nd Cir. 1964, 339 F.2d 371, 375. The Act expresses the congressional judgment that in certain specific areas the interests of individual members need special protection against the danger of overreaching by entrenched union leadership. Rota v. Brotherhood of Ry., Airline & S.S. Clerks, 7th Cir. 1973, 489 F.2d 998, 1003, cert. denied, 414 U.S. 1144, 94 S.Ct. 896, 39 L.Ed.2d 99. Expulsion for failure to pay dues is not such an area. See Lewis v. American Fed. of State, Cty. & Mun. Emp., 3rd Cir. 1969, 407 F.2d 1185, 1192; Williams v. Int’l. Typographical Union, 10th Cir. 1970, 423 F.2d 1295, 1297. Appellants have alternatively contended that the Union’s refusal to reinstate them constitutes yet another breach of its duty of fair representation. Having viewed this contention and the record with greatest judicial imagination, we fail to see how the Union’s actions could constitute, a breach of the duty to represent a member of the bargaining unit fairly in dealings with the employer. A DFR breach occurs only when a union’s dealings with the employer, ostensibly on behalf of a member of the bargaining unit, show that the union’s conduct toward the member has been arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, supra, 386 U.S. at 190, 87 S.Ct. at 916; Amalgamated Ass’n of St., E. R. & M.C. Emp. v. Lockridge, supra, 403 U.S. at 301, 91 S.Ct. at 1925.

Appellants have not suggested that their failure to pay dues is not a proper basis for suspension or expulsion from membership. Nor do they contend that the duty of fair representation imposes upon a union the duty to open wide its doors to anyone. See Moynahan v. Pari-Mutuel Employees Guild of Cal., Loc. 280, 9th Cir. 1963, 317 F.2d 209, 211. Moreover, the appellants’ claim does not demonstrate any injury to the employment relationship or to rights granted by the National Labor Relations Act.

In short, while we have said much about the correct legal principles to be applied, we are convinced that the Union was entitled to summary judgment on both of appellants’ claims.

Affirmed.

      . “It is a familiar principle that the label a district court puts on its disposition of a case is not binding on a court of appeals.” Tuley v. Heyd, 5th Cir. 1973, 482 F.2d 590, 593.

      . Since Garmon, the Supreme Court has carved out several exceptions to the general preemption principle. The exceptions permit courts to adjudicate cases involving suits for violent torts or libel under state law, Linn v. Plant Guard Workers Local 114, 1966, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582, section 301 suits for breach of the collective bargaining agreement, 29 U.S.C. § 185(a), William E. Arnold Co. v. Carpenters District Council, 1974, 417 U.S. 12, 94 S.Ct. 2069, 40 L.Ed.2d 620, damage suits under section 303, 29 U.S.C. § 187, Teamster Local 20 v. Morton, 1964, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280, some suits brought under section 14(b), 29 U.S.C. § 164(b), Retail Clerks etc., Local 1625 v. Schermerhorn, 1963, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179, claims brought under the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 412, Int’l. Brotherhood of Boilermakers v. Hardeman, supra, some matters of “peripheral concern to the LMRA,” Int’l Ass’n of Machinists v. Gonzales, 1958, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, and at least some suits under the rubric of the duty of fair representation, Vaca v. Sipes, 1967, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842. See Bryson, supra, 51 Tex.L.Rev. 1037, 1041 (1973).

      . “For the courts to abandon jurisdiction in favor of the Board on the easy assumption that the Board regularly employs the Miranda doctrine to regulate union abuses could have serious consequences. The courts that rely on the continued vitality of Miranda to justify their preemption holdings may be overestimating both the potential conflict between court and Board jurisdiction and the availability of a Board remedy to DFR plaintiffs. At this point, the Miranda decision in large part lives on only in the preemption decisions of the federal and state courts.” Bryson, supra, 51 Tex.L.Rev. 1037, 1084 (1973).

      . The question of preemption is to be distinguished from the question of the possible res judicata effect of the Board’s action here. Since the proceeding before the General Counsel was administrative only, neither formally adversarial nor like a trial, and since the General Counsel invokes different criteria in deciding whether to issue a complaint from those which a court would employ in adjudicating, no res judicata or collateral estoppel effect attaches to the refusal for purposes of bringing suit in the federal courts. American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 5th Cir. 1974, 494 F.2d 3, 9-10; Int’l. Union of Electrical Workers, et al., v. General Electric Co., 2nd Cir. 1968, 407 F.2d 253, 264; NLRB v. Baltimore Transit Co., 4th Cir. 1944, 140 F.2d 51, 54-55, cert. denied, 321 U.S. 795, 64 S.Ct. 848, 88 L.Ed. 1084. This does not mean, however, that express findings in a refusal to issue a complaint are to be ignored. Here the Regional Director and the General Counsel expressly found that “there is no evidence that the union has refused to refer [appellants] to available jobs or discriminated toward [appellants] in job referrals in any manner [and] the evidence establishes that the union has shown no discrimination in utilizing its out-of-work list for the benefit of its members, or failed to refer on a rotating basis when open requests are received for sheet metal workers.” The Union was entitled to use this finding in its summary judgment motion, and the appellants were then obligated to demonstrate by affidavit that a genuine issue of material fact existed in spite of the Board finding.

      . 28 U.S.O. § 1337 provides:
      The district courts shall jiave original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

      . Appellants did not rely on 28 U.S.C. § 1337 in the court below. But federal jurisdiction may be sustained if granted by a federal statute even though such statute is not pleaded or relied upon in the district court. We look to the substance of the complaint, not the labels attached. Paynes v. Lee, 5th Cir. 1967, 377 F.2d 61, 63; Humphrey v. Moore, supra, 375 U.S. 335, 352, 84 S.Ct. 363, 373, 11 L.Ed.2d 370 (Goldberg, J., concurring) .

      . Indeed, under some circumstances the duty of fair representation has been found to extend beyond the bargaining unit. See Brotherhood of Ry. Trainmen v. Howard, 1952, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; Rolfes v. Dwellingham, 8th Cir. 1952, 198 F.2d 591; see also Clark, The Duty of Fail-Representation : A Theoretical Structure, 51 ' Tex.L.Rev. 1119, n. 2 (1973).

      . In their complaint appellants appear to have alleged that the Union was discriminating against them in job referrals because of their dues delinquency or expulsion. But in their depositions, they admit that they are complaining of discrimination not merely from the time of their delinquency or expulsion but from their first day in the Union. This admission tends to undercut their claim that union members were favored over nonmembers. See Radio Officers’ Union, etc. v. NLRB, 1954, 347 U.S. 17, 42, 74 S.Ct. 323, 336, 98 L.Ed. 455. Without evidentiary support for their position, we cannot say that any issue of fact exists warranting a further consideration of a claim that the Union has somehow violated a duty of fair representation.