author: WALLACE, Circuit Judge: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Charles Eddie EVANS, Defendant-Appellee.
    No. 71-2957.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1973.
    Rehearing Denied Aug. 1, 1973.

      Bruce Babcock, Jr., Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Richard W. Nichols, Asst. U. S. Atty., Sacramento, Cal., for plaintiff-appellant.
    Charles H. Wright (argued), Sacramento, Cal., for defendant-appellee.
    Before LUMBARD, HUFSTEDLER and WALLACE, Circuit Judges.

       Honorable J. Edward Lumbard, Senior United States Circuit Judge of the Second Circuit, sitting by designation.

   WALLACE, Circuit Judge:

Evans was charged with violations of 26 U.S.C. § 5861, subsections (c) (possession of a firearm without payment of making tax), (d) (possession of an unregistered firearm), (h) (possession of a firearm with the serial number removed), and (i) (possession of a firearm not identified by a serial number). The firearm involved in each count was a sawed-off shotgun. The district court granted Evans’ motion to suppress the firearm. We reverse.

The government first contends that there was a proper consent for the search and, second, that there was probable cause for the search under circumstances not requiring the securing of a search warrant. As we concur with the second contention, it is unnecessary for us to reach the consent issue.

Two days before the search in question, the Sacramento police department received a telephone call from an unidentified female who reported that her husband had been importuned by a man named “Chuck” or “Charlie,” whom she described, to assist him in a safe-burglary. She related that this person was a safecracker who had been in San Quentin, that he had a 1964 white Buick Electra and that he carried his safe-burglary tools in its trunk in a green footlocker. She reported he possibly had outstanding charges pending against him, one local and one in Lodi, California. She expressed the fear that her husband might be arrested or injured.

That afternoon, a second call was received from the informant stating she had again seen the green footlocker. She again described the vehicle and the person involved and supplied his approximate address on Princeton Street. On the next day, the police located the Princeton Street residence and talked to the landlord who identified the occupants of the house as Frank Kane and his daughter Faye.

At 3:00 a. m. on the day of the search, a 1963 (rather than 1964) white Buick Electra was seen in the Kane driveway. The Department of Motor Vehicles reported the car as registered to Faye Kane.

Late that morning, the identity of the suspect was established as Evans, a boyfriend of Faye. The Division of Criminal Identification and Investigation was contacted and reported that Evans was suspected of being an active burglar but that there were no pending requests to hold him.

The informant called again that afternoon and reported that her husband had just returned from where “Chuck” was staying. She said that the green footlocker had been transferred to the Buick. She indicated her husband was listening to her and might go immediately to warn “Chuck.” The police assembled and proceeded to the Kane residence where Evans was arrested on a long-standing traffic warrant from Mojave, California. It is not contended that this search was incident to that arrest.

Evans disclaimed any interest in the home or car and advised the police that they were Faye’s. Faye agreed the car was hers. The police stated they desired to search the house and the ear which was then in the driveway. Evans advised Faye she need not allow a search. Faye asked, “Well, what if I don’t allow you to search the house?”; an officer replied that it would be necessary to obtain a search warrant. Faye then said, “Oh, go ahead and search.”

The car keys had already been obtained from a nightstand in the bedroom. While the car was being searched, Evans was handcuffed and in a police car. Upon opening the trunk, a green footlocker with a broken lock was discovered. The footlocker was opened and the sawed-off shotgun found. Subsequently, a vehicle approached and an occupant apparently waved at Evans, who was then in the police car, and then drove off.

The government asserts that this seizure and search were legal; Evans obviously disagrees. For the reasons which follow, we agree with the government. The motion to suppress should not have been granted.

Evans argues that the police should have obtained a search warrant before going to the Kane residence. In an interesting switch, a defendant is contending that the police had probable cause while they are arguing that they did not. The tip of an untested, unreliable informant is not sufficient for probable cause. The two-prong test requires a showing of personal knowledge of the underlying circumstances (as distinguished from suspicion, belief, or mere conclusion) and a showing of reliability. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The test may be demonstrated by corroborating facts, but they must be sufficient to raise the reliability to constitutional standards. See Spinelli v. United States, 393 U.S. 410, 417-418, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Evans contends that the standard was met prior to the police’s departure for the Kane residence and that their failure to secure a search warrant requires affirmance. Even if we agree that the police had probable cause before their departure, we do not believe that this would aid Evans in this ease. Given the informant’s message of a possible warning to Evans, the failure to delay the police investigation to secure a search warrant was not unreasonable.

The district judge did not make a precise finding that there were no exigent circumstances. He did state that:

Now, this simply is not a case where it was not practicable to secure a warrant. They had time before they went down, and they had time to send an officer downtown to obtain a warrant and come back. They knew the exact location and description well in advance, when they intended to seize it.
. This was not property within his immediate reach. This is property elsewhere. The ear wasn’t going anywhere. Where’s he going to go. They could follow him; they could find the car.

The district judge’s opinion also indicates that he believed the police’s claim that they were told by their informant that her (the informant’s) husband, who was said to be Evans’ confederate, was likely to warn Evans that the police would soon be upon him. In light of this fact, we believe that the police were justifiably concerned lest Evans or his confederate destroy or abscond with the evidence about which they had been told-by their informant.

This court has emphasized that the purpose of the Fourth Amendment “means that every search must be examined in the light of the Amendment’s requirement that it not be ‘unreasonable.’ ” (Citation omitted.) “Reasonableness” is a weighty determination to be made by the district court in the first instance, but it is not binding on this court. (Citations omitted.)

United States v. Capps, 435 F.2d 637, 641 (9th Cir. 1970). Under the circumstances of this case, we are compelled to reach a different conclusion from the district judge. We hold that, to the extent that he may have held that these facts do not constitute exigent circumstances sufficient to excuse the obtaining of a warrant, the district judge was in error. Here we are dealing with contraband, with the distinct possibility of an alerted criminal absconding with the evidence, and with the likelihood that a ■ confederate might move the evidence which was located in an automobile. Compare Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), where it is stated that the object of the search there was not contraband, that there was no alerted criminal who might leave with thé car, and that there were no confederates who might momentarily move the evidence. See also United States v. Pollard, 466 F.2d 1 (10th Cir. 1972).

Evans next contends that, once the footlocker was discovered- in the trunk of Faye’s car, the police should have stood guard over the footlocker and/or the car while one of them' attempted to obtain a search warrant to search the footlocker. The district judge, understandably, made no decision as to whether there were exigent circumstances at this point. Given probable cause, the exigencies of the search of the car were the same as the search of the footlocker. In the course of this initial intrusion, the footlocker came into the plain view of the officers. This green footlocker was already described by the informant. The government argues that the seizure and search could be upheld on the basis of probable cause and exigent circumstances. There was probable cause to search the car and to look in the footlocker at the time of the seizure. But this is not enough to justify the search. Coolidge v. New Hampshire, supra, 403 U.S. at 473-484, 91 S.Ct. 2022. See United States v. Cohn, 472 F.2d 290 (9th Cir. 1973). Whether the exigencies of the situation were sufficient to allow a warrantless search depends upon the totality of the circumstances.

The parties are concerned with the applicability of Coolidge v. New Hampshire, supra. However, we also note that the Court there found that “there was no ‘exigent circumstance’ to justify [the police’s] failure to obtain a warrant” because “the police knew of the presence of the automobile and planned all along to seize it.” 403 U.S. at 478, 91 S.Ct. at 2044. Of interest is that the Court noted that the car was not being used for an illegal purpose, that the opportunity to search was hardly fleeting, and that the objects sought “were neither stolen nor contraband nor dangerous.” 403 U.S. at 460, 91 S.Ct. at 2035. Consequently the exigencies of Coolidge differ significantly from those in this case, and the solution here must turn on these unique facts.

A warrantless search, albeit with probable cause, of a vehicle may be valid while a similar search in a home may be impermissible. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The basis of this distinction is the practical fact that evidence may more easily disappear during the time necessary to secure a warrant. The Supreme Court has recognized that there is “. . . a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U.S. at 153, 45 S.Ct. at 285. See also, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L. Ed. 151 (1938); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931). Here, we are confronted not only with the mobility of a vehicle, but also with the fact that a footlocker can be removed, carried or transported with greater ease and in a more devious and less detectable manner than a vehicle.

That Evans was handcuffed is not a total answer to the question. The police could reasonably conclude Evans would have a reasonable bail set for a traffic offense and would be free in a short time. Further, the police could reasonably believe the evidence might evaporate through the efforts of Evans’ girlfriend who owned and had a right to immediate possession of the vehicle and who could be considered as hostile. Based upon the warning by the informant that her husband might try to aid Evans, the police could properly anticipate a confederate might attempt to interfere with the efforts to secure the evidence. These facts make the reasoning of Carroll even more applicable to this case and illustrate the differences from Coolidge. See United States v. Ellison, 469 F.2d 413 (9th Cir. 1972); United States v. Ellis, 461 F.2d 962, 966-967 (2d Cir. 1972).

The proper test was succinctly stated by the Supreme Court in Chambers:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. 399 U.S. at 51-52, 90 S.Ct. at 1981.

Here the police might have seized the car pending a magistrate’s determination. This would have been the lesser intrusion upon Evans’ rights, but it would have been the greater intrusion upon the rights of Miss Kane, the owner of the ear. On the other hand, it is easy to say that the footlocker could be confiscated by the police and taken to the magistrate, but a seizing would then have already occurred — a substantial interference. Standing guard still represents the same interference with property rights as well as an unnecessary use of law enforcement personnel. Under these circumstances, either course might be reasonable under the Fourth Amendment, but the immediate search was preferable. Given probable cause, we hold that the necessary exigent circumstances were present for a warrantless search.

This reasoning is not without precedent. In United States v. Capps, swpra, we were confronted with a similar situation. The police were looking for a red bowling bag which they believed contained a machine gun. During the course of a legal search, the bag came into plain view. We neither required it to be seized and brought before the magistrate, nor staked out while a warrant was secured. We follow the same course here.

Reversed and remanded.

HUFSTEDLER, Circuit Judge

(dissenting) :

The tips of the untested citizen informant, coupled with corroborating circumstances, adequately supplied probable cause to justify the search of the Buick. (E. g., Buelna-Mendoza v. United States (9th Cir. 1971) 435 F.2d 1386; cf. Draper v. United States (1959) 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Acosta (5th Cir. 1969) 411 F.2d 627.) The question whether exigent circumstances justified the failure to get a warrant is a close one. The district court found against the Government on this point, and that finding is not clearly erroneous.

However, if exigent circumstances had existed when the police were on their way to the Kane residence, they vanished before the Buick was opened and the footlocker was searched. By that time Evans was in custody on the outstanding traffic violation. Kane’s Buick was parked in the driveway, and Kane herself was not implicated in any criminal activity. Kane did not consent to a search, as the district court found on ample evidence. The majority’s conclusion that exigencies still existed is based at best on tenuous inferences that are not supported by the evidence. But even if the inferences were permissible, it was the district court’s task to draw them; we are not at liberty to overturn the district court’s findings on the basis of inferences that the law does not compel.

All that is involved in this case is the mild inconvenience of staking out a vehicle while awaiting a warrant, or, taking the majority’s alternative, the even milder inconvenience of staking out a footlocker.

Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, will not carry the majority opinion. Unlike Chambers and like Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, the Kane automobile was parked in a private driveway. An opportunity to search either the car or the footlocker was hardly “fleeting” (403 U.S. at 460, 91 S.Ct. 2022), and it was not impracticable to obtain a warrant (403 U.S. at 462, 91 S.Ct. 2022). Accord, United States v. Payne (9th Cir. 1970) 429 F.2d 169, cited with approval in Coolidge, supra, 403 U.S. at 462 n. 19, 91 S.Ct. 2022

I would affirm.

       United States v. Capps (9th Cir. 1970) 435 F.2d 637 does not support the majority. In Capps, Treasury agents liad a warrant to searcli a Pontiac containing a machine gun located in a red bowling bag. The described Pontiac and an Oldsmobile were found parked together. The search of the Pontiac yielded nothing. The agents saw the red bowling bag in plain view on the rear seat of the adjacent Oldsmobile. We upheld the search under the exigent circumstances doctrine: “The object to be seized was an extremely dangerous weapon. It was located in a movable target for the search. Neither appellee nor Elkins was under arrest, and they were both alerted to what the officers were seeking.” (435 F.2d at 642.)
      In our case, the object of the search was burglary tools, not weapons; Evans was under arrest; and there was no evidence that Evans’ confederate had been alerted or that the car would be spirited away.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    AMALGAMATED LOCAL UNION 355, Petitioner and Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner. LOCAL 259, UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 703-705, Docket 72-1926, 72-2224, 72-2315.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 14, 1973.
    Decided July 9, 1973.

      Harold Dublirer, New York City (Dublirer, Haydon & Straci, New York City, of counsel), for Amalgamated Local Union 355.
    Leonard Leibowitz, New York City (Richard Dorn, and Sipser, Weinstock, Harper & Dorn, New York City, of counsel), for Local 259, United Automobile Aerospace and Agricultural Implement Workers of America.
    Douglas S. McDowell, Washington, D. C. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., National Labor Relations Board, Washington, D. C., of counsel), for National Labor Relations Board.
    Before FRIENDLY and OAKES, Circuit Judges, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   DAVIS, Judge:

Presented for review is a decision and order of the National Labor Relations Board determining that Amalgamated Local Union 355 violated section 8(b)(1)(A) and (2) of the National Labor Relations Act, 29 U.S.C. 151 et seq. (1970), by using the aid of Russell Motors, Inc. in organizing that company’s employees, by entering into a contract with the company at a time when Local 355 did not represent an uncoerced majority of the employees and when there was a real question as to representation raised by Local 259 of the United Automobile, Aerospace, and Agricultural Implement Workers of America, and by including in the contract and enforcing a union security clause requiring membership in Local 355 as a condition of employment. 198 NLRB No. 58 (July 21, 1972). The Board seeks affirmance and enforcement of the order as it stands. Local 355 attacks its factual foundation, as well as four of the remedial provisions. Local 259 asserts that the Board fell short of providing an adequate remedy. We first take up Local 355’s chailenge to the agency’s findings and determination, and then consider the scope of the remedy.

I.

Russell Motors is a New York corporation located in the village of Roslyn, Nassau County. Operating out of two separate facilities, the company retails and services new and used Buicks and Opels. There are separate sales and service departments, the latter having four subdivisions: the repair shop, the parts department, the body shop and the “make ready” shop (where optional equipment is installed and the car cleaned prior to delivery to the customer). In the fall of 1970, there were about 25 employees in the service department, if supervisory staff members are counted in the total.

At that time, an organizing campaign of the service department was conducted on behalf of Local 355, and Russell entered into a contract with that union. During the same period, Local 259 also acquired a sufficient number of authorization cards from employees to demand recognition. The trier found, and the Board agreed, that Russell’s “announced preference of Local 355, its open membership campaign at its own expense through its own supervisors and management-related personnel on behalf of Local 355, its deliberate misdating of the ‘collective agreement’ hastily executed with Local 355, the terms and provisions of that ‘collective agreement’ in-eluding the mandatory Local 355 membership and dues ‘checkoff’ with surrender of the right to strike and other employee rights, and its threats to shut down rather than deal with UAW Local 259 speak eloquently of a snug ‘sweetheart’ arrangement as charged” [footnotes omitted]. 198 N.L.R.B. No. 58, at 46.

Supervisory employees: Local 355 complains that, in coming to this conclusion, the Board characterized too many of Russell’s employees as supervisors, given the size and organization of the service department. Section 2(11) of the Act defines a “supervisor” as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [29 U.S.C. § 152(11) (1970).]

It is well settled that this section is to be read in the disjunctive; any of the listed elements is sufficient for an initial finding of supervisory status. N.L.R.B. v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1173 (C.A. 2, 1968); Warner Co. v. N.L.R.B., 365 F.2d 435, 437 (C.A. 3, 1966); N.L.R.B. v. Elliott-Williams Co., 345 F.2d 460, 463 (C.A. 7, 1965); N.L.R.B. v. City Yellow Cab Co., 344 F.2d 575, 580 (CA. 6, 1965); N.L. R.B. v. Quincy Steel Casting Co., 200 F.2d 293, 295 (C.A. 1, 1952). It has also been held that the Board’s findings in this area are entitled to special weight since it possesses expertise “in evaluating actual power distributions which exist within an enterprise” needed for drawing lines between managerial personnel and the rank and file. N.L.R.B. v. Metropolitan Life Ins. Co., supra, 405 F.2d at 1172; see Marine Eng’rs Beneficial Assn. v. Interlake S.S. Co., 370 U. S. 173, 179 n.6, 82 S.Ct. 1237, 8 L.Ed.2d 418 (1962).

There is no question that Russell Philpit, the president of Russell Motors, Joseph Nocella, the service manager, and James Guido, the assistant service manager, all were properly taken by the Board to be supervisors. As to the controverted status of the people in charge of the service department subdivisions, we conclude that Orval Marquand, George Guido, and Henry Mack — who were significantly connected with the giving of the unlawful assistance — were all permissibly characterized, in connection with the finding on that point, as supervisory personnel.

Marquand was manager of the parts department. On a salary plus commission basis, he had the power effectively to recommend people for hiring. He did not punch a timeclock, unlike at least one of his two regular subordinates. Local 355 insists that, with only two employees under him, Marquand could not really be considered a supervisor. It is, however, the capability of control rather than the number controlled that is decisive. Mack was foreman of the body shop. Although he worked on ears just like the other three men in that shop, he had the power to direct their work. He could decide whether the shop should accept a particular job at a particular time and could schedule work. He could also make effective recommendations for hiring, promotions, and the granting of overtime. He was the only worker in the shop not required to punch the time-clock and the only one to receive commissions in addition to his salary. George Guido, James’ brother, was foreman or manager of the make-ready shop. He assigned and scheduled work among the three other workers in his shop, doing none of the physical labor himself. Paid on straight salary, he did not punch a timeclock while the men under him did.

In the light of these facts, the Board’s conclusion as to the supervisory status of each of these men must be upheld. As we point out below, the Board could find that the other employees reasonably believed these men to be acting in the employer’s interest.

Local 355’s membership drive: There is ample evidence to support the Board’s view that supervisors participated importantly, on behalf of the employer, in obtaining signed cards authorizing Local 355 as the collective bargaining representative and also that the rank-and-file could reasonably think of these supervisory personnel -as reflecting management’s position.

In 1970, signs of employee dissatisfaction with the company’s existing hospitalization benefits had begun to appear; a series of discussions was held among the employees about the possibility of unionization. At this stage, there was no specific mention of any particular union. During one of the meetings, Richard Nocella, a mechanic in the repair shop and brother of Joseph Nocella (the service manager), volunteered to get in touch with a friend of his already in a union. Nocella then contacted, via this friend, Henry Stirt, business agent and treasurer for Local 355, and arranged for a meeting with him.

On September 8, Stirt came to Russell Motors during working hours and, in the course of a meeting with Nocella (and Marquand) in his car, handed over a substantial number of Local 355 employee authorization cards. Stirt was aware that Marquand was the parts manager but concluded that he was a supervisor in title only. In any event, cards were turned over by Stirt and Marquand ended up with three of them —one for himself and the remaining two for the other men in the parts department. He was given the cards either directly by Stirt, as Marquand testified, or from Nocella later on, as Nocella remembered it.

Henry Mack, foreman of the body shop, received a call from Richard Nocella, telling him that cards were going to be sent over to his shop; they arrived the same day. Mack told the employees in the body and make-ready shops, during working hours, that Nocella had sent the cards over. Mack said that the cards were on his desk and once they were signed he would get them back to Nocella. Mack did not personally hand the cards out but left them on the desk for the men to pick up. He reminded the men, later on, that the cards were there and asked if they had filled them out yet. He offered the comment that Local 355 was a good union. Mack told one of the workers in the body shop that if the latter wished to join the union with the majority of them, he should sign a card. The reply was that the employee “would go with the majority.” The cards were on Mack’s desk overnight and a number of men remembered returning their cards the next day. Most cards were put back on the desk and then sent, including one for Mack himself, back to Richard Nocella.

It is not completely certain that Marquand, manager of the parts department, helped to distribute any cards. Although he was given some for his subordinates, James Walker remembers receiving his card from Richard Nocella, signing and returning it to Nocella. Marquand recalls giving a card to Walker and to the other parts department employee (who never signed his).

Joseph Nocella, the service manager, also took part in the distribution of cards. Mark Kennedy, a porter, testified that he was given cards by Joseph Nocella and returned them to Nocella’s desk as instructed. Richard Walker, the repair shop working foreman, said that he too received his card from the service manager — in the latter’s office and in the presence of Richard Nocella — during working hours. With a pile of cards sitting on the desk, both Noeellas, according to Walker, said they were bringing in the union. When Walker protested that he, as shop foreman, probably should not sign a card, Joseph Nocella told him that everyone was going to have cards. Walker signed later that day and returned the card to Richard Nocella.

All this is adequate support for a finding of Joseph Nocella’s direct involvement in the card distribution, but in any event it is certain that he was aware of the activity. James Guido confronted Joseph Nocella about his brother Richard’s activity (the handing out of cards), but was told by Nocella that the company had adopted a hands off policy, that “[i]f they want a union, it’s perfectly all right.” According to Joseph Nocella, “nobody, no part of management in any manner, shape or form . was to interfere.” He did not subsequently speak to his brother, Mack, or Marquand about the distribution of the cards. Joseph Nocella did inform president Philpit about his brother’s distribution of cards, but Philpit did nothing.

While there was no posted company rule concerning solicitation on company time, it was company practice to prohibit such activities during working hours. Joseph Nocella had previously warned the men generally not to pass out union cards on company time. The administrative law judge permissibly found that Philpit’s admitted failure, on this occasion, to tell the service manager (J. Nocella) to warn the latter’s brother to desist from distribution was “strongly consistent with the desire if not intention of raising no impediment to Russell employees being exclusively ‘represented’ by Local 355.” More generally, the Board could find that the cards for Local 355 were openly distributed, and the employees were openly solicited to sign and join “almost entirely during paid working time, not only without objection or interference but in many cases with the active encouragement, support, and even participation of Russell supervisory personnel.” This attitude and activity, especially when contrasted with the treatment of Local 259, see infra, supports the finding that Local 355 was an assisted union.

Negotiation and adoption of the contract: There is further evidence of assistance in the events surrounding the negotiation and execution of the contract with Local 355 as part of the apparent effort to bar Local 259. In the Board proceedings, the management side depicted a rapid sequence of occurrences that culminated with the signing of the contract on September 10, four days before the arrival of Local 259 on the scene. According to the testimony of Richard Nocella and Henry Stirt (Local 355 agent), immediately after the meeting with Stirt in a car on September 8th, Stirt went into the building and talked with a group of employees during lunch about the union and its benefits. Richard Nocella supposedly began to hand out the authorization cards that afternoon, on September 8. While he may have handed out more on September 9, he had most of the cards back on the 9th and called Stirt that day, arranging for a meeting at a local restaurant at noon with an employee negotiating committee. At the conclusion of the luncheon meeting, Stirt supposedly went directly to see president Philpit alone, gave Philpit the authorization cards, and, after some discussion, left a form contract with him. The next day, September 10, Philpit and Stirt allegedly signed the formal contract in the presence of Joseph Nocella. Later that day, Stirt testified that he contacted Richard Nocella to tell him of the contract signing and to arrange for a meeting of employees on September 14.

But the fact-finders could discount this version in the face of other testimony which indicated that the crucial events took place after, not before, Local 259 first became involved. The latter event may have occurred as early as September 8th, or as late as September 11th. The important aspect is, however, that the record contains solid ground for concluding that the company’s signing of the contract with Local 355 did not occur until after September 11th..

In the actual negotiations with Local 355, the first critical step was the luncheon meeting between Stirt of the union and an employee negotiating committee which it is claimed took place on September 9th. The committee, picked by Richard Nocella, consisted of Nocella, Marquand, George Guido, and Henry Mack, three supervisors out of four members. There is general agreement that, at the lunch, Stirt described Local 355’s prevailing rates and benefits, some discussion followed, but there was no final agreement. Nocella, upon returning, told Joe Renaldo, a mechanic, the wage figures for each employee but did not say that a contract had been signed. Nocella reportedly stated that he might be able to get better figures. Nocella also told another mechanic essentially the same thing, again without mentioning a contract signing. Marquand did not recall Stirt’s telling at the meeting of a signed contract; he testified that “[i]f the contract had been signed, there wouldn’t have been any reason to have a meeting.” Most of the witnesses disagreed with Stirt’s testimony that the meeting took place on September 9. George Guido placed the luncheon after the meeting of Local 259 on September 14. Renaldo remembered being asked to attend after he signed his card for Local 259 on September 14. Marquand testified that the meeting took place a day or two after he signed the cards for Local 355, i. e. September 10 or 11. Henry Mack thought that he attended after the Local 259 meeting of the 14th. Richard Nocella began his testimony by placing the meeting on September 9, but ultimately was unable to remember the date, even whether it occurred before or after the Local 259 meeting.

On this testimony it is plain that the Board was free to decide that the meeting with Local 355 did not occur on September 9 as Henry Stirt said. This conclusion in turn severely undermines the possibility that the contract was signed, as claimed, on September 10.

There is, in addition, considerable circumstantial support for the agency’s determination that, in all probability, the contract was actually signed on September 15th or later. Three meetings appear to have occurred on the 14th. At one, Stirt talked to a group of employees about various benefits and there is testimony that he acted as if negotiations were still in process and did not mention a signed contract. Stirt held another such meeting on the evening of the 14th; the bulk of the testimony suggests that on that occasion, too, he never mentioned a consummated contract, phrasing his statements in terms of what Local 355 members usually received; he also described certain wage classifications that did not conform with those in the contract now argued to have been already signed on September 10th.

Ralph Diamond of Local 259 held his own discussion with the same group of men after Stirt’s evening meeting on the 14th. He talked about the wages and benefits of both unions and handed out authorization cards for Local 259 (receiving back 16 or 17 signed cards). Richard Nocella attended but never mentioned that a contract with Local 355 had been signed. Diamond asked whether there had been such a signing and was told there had not, but that a negotiating committee had been formed and was scheduled to meet with president Philpit the next day, September 15, for the first time. At the conclusion of the meeting, Diamond went to see Joseph Nocella (Philpit was not available) and demanded recognition of Local 259. When this was denied, Diamond sent a telegram to Philpit to reiterate that demand and to ask that the status quo be maintained and all negotiations with Local 355 cease until a Board election.

Another significant fragment of the mosaic is that, after the formal intervention of Local 259, president Phil-pit, again without mentioning a signed contract, upbraided George Guido for getting in touch with Local 259 (although he never protested to the supervisory personnel who aided Local 355) and said that he would not sign with 259 but would rather sell his business. This latter observation was repeated by Joseph Nocella, on September 16th, to a group of employees; Nocella indicated that he and Philpit both wanted Local 355. A number of employees talked in support of the Local 259 plan, but then Richard Nocella said that it would probably require a strike to get the latter in. The other men did not think it worth a strike.

By Friday, September 18, the contract definitely had been signed. Stirt told employee Guttilla as much on that day. Stirt also told him that the pay would be retroactive to September 10. Pay checks were handed out to the employees on September 18, covering the period September 10-16. Local 355 has argued that, since those checks showed increases for most if not all of the employees, the payroll records support a conclusion that the contract was in fact signed on the 10th. But, as the Board noted, there is no way to ascertain what date the payroll records were made up; there is the strong likelihood that, as Guttilla testified, the pay increases were retroactive to September 10.

The inability to isolate the exact date of signing does not affect the validity of the findings of the Administrative Law Judge and the Board. There is, we think it clear, substantial evidence that the contract was executed on or after September 15 (post arrival of Local 259) and either backdated or signed without changing the previously typed date of September 10. As the Board said, it is most unlikely that the employer would not inform its own supervisors that it had executed a contract and unlikely that Local 355 would not likewise promptly publicize a signing, especially in light of the activities of Local 259. Yet even at the most logical and appropriate moments, i. e., at the group meetings, there was no clear statement by Philpit, Stirt, or either of the Nocellas that a contract existed. In contrast, their statements, on the whole, were phrased in terms of future negotiations and a potential agreement.

The Administrative Law Judge weighed not only the number of witnesses testifying to a particular version of events, but also their credibility. He found the evidence of Joseph Noeella, Philpit, and Henry Stirt filled with inconsistencies (both internally and among themselves), hedging, evasiveness, and alleged memory lapses, and susceptible to disbelief. Most of the other witnesses he found to be reliable, impressive, credible and consistent. This court has said on a number of occasions that “questions of credibility are for the trier of fact and that we will not upset the decision of the Board ‘when it accepts a finding of an Examiner which is grounded upon (a) his disbelief in an orally testifying witness’ testimony because of the witness’ demeanor or (b) the Examiner’s evaluation of oral testimony as reliable, unless on its face it is hopelessly incredible * * *.’ ” N. L. R. B. v. Warrensburg Board & Paper Corp., 340 F.2d 920, 922 (C.A.2, 1965); accord, N. L. R. B. v. Marsellus Vault & Sales, Inc., 431 F.2d 933, 937 (C.A.2, 1970); N. L. R. B. v. A & S Electronic Die Corp., 423 F.2d 218, 220 (C.A.2), cert. denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 65 (1970). We have studied this record carefully, and in light of the administrative law judge’s conscientious effort to describe the factors that led him to credit some witnesses and discredit others, we can conclude that the administrative law judge’s evaluation is entitled to full respect.

The contract terms: The contract itself provides additional evidence of coercion and a speedy effort to thwart the entry .of Local 259. All service employees were required to join and maintain membership in good standing in Local 355. During the life of the agreement, there was to be “no strike, stoppage of work, slow down, picketing, boycotting, lockout, or any other economic pressure or activity of any kind by either party against the other * * There was a mandatory dues checkoff deduction from pay. The agreement automatically renewed itself from year to year unless formally renounced by one of the parties. Also, the document was incomplete in that the wage schedule appendix did not specify the wages for all of the employees, and company officials were orally included in the welfare plan, rather than by writing —emphasizing the haste of execution. As the Administrative Law Judge concluded, the text demonstrated that “whenever the contract was signed, the parties had not yet fully negotiated its terms or the terms which are normally to be found in a bona-fide collective agreement resulting from arms’-length dealing.” 198 N.L.R.B. No. 58, at 37, n. 63.

In sum, it is plain, on the whole record, that the Board could rightfully conclude that the Russell management improperly made its agreement with Local 355 “in an attempt to insure that its employees would be exclusively ‘represented’ by Local 355 and to forestall (1) its employees’ being represented by UAW Local 259 or any labor organization of their own free choice, (2) the necessity for Russell to recognize, deal or negotiate with UAW Local 259 or any labor organization of Russell’s employees’ own free choice, and (3) a Board-conducted election to determine by official secret ballot its employees’ true representational desires.” The execution of a contract in the face of the rival claim of Local 259 and the real question of representation that then existed amounts to a violation of the Act. Midwest Piping & Supply Co., 63 N.L.R.B., 1060 (1945); accord, Empire State Sugar Co. v. N. L. R. B., 401 F.2d 559, 562 (C.A.2, 1968); N. L. R. B. v. National Container Corp., 211 F.2d 525, 536 (C.A.2, 1954). By being a party to such a contract, Local 355 has infringed section 8(b)(1)(A). See I. L. G. W. U. v. N. L. R. B., 366 U.S. 731, 738, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); N. L. R. B. v. Raymond Buick, Inc., 445 F.2d 644 (C.A.2, 1971 (involving Local 355).

II.

To redress these violations, the Board ordered Local 355 (a) to cease and desist from acting as the collective bargaining representative of the company’s employees unless and until certified,„ as well as from giving effect to the collective bargaining agreement and the checkoff provisions of the authorization cards; (b) to reimburse (together with the employer) present and former employees for all initiation fees, dues, and other moneys collected on behalf of Local 355 pursuant to the union-security and checkoff authorizations; (c) to cease and desist from causing or attempting to cause an employer to discriminate against an employee in violation of section 8(a)(3) of the Act, or from restraining or coercing, in any other manner, any employee in the exercise of statutory rights; and (d) to post stated compliance notices. Both Local 259 and Local 355 challenge the order, the former as too restricted, the latter as too broad,

A. Local 259 asks us to modify and expand the order by (1) designating interest at the maximum lawful New York rate, instead of the standard six percent, (2) requiring Russell Motors and Local 355 to reimburse Local 259 for attorneys’ fees and other litigation expenses; (3) ordering the company and the rival union to reimburse Local 259 for its organizational expenses incurred in connection with the service employees of Russell Motors on and since September 14, 1970; (4) requiring Local 355 to cease for three years from representing any employees (not already validly represented by it) unless and until it shall be duly certified by the Board following a Board-conducted election; (5) requiring Local 355 to cease issuing to any employer or employee any authorization or membership application cards unless they contain statements that the Board had found the union guilty of collusion with employers to violate the rights of employees and also that the union had been adjudged in contempt of court; (6) requiring Local 355 to mail a copy of the required notice to each of its members; and (7) compelling the union to cease utilizing officials, supervisors, or agents of any employer to organize such employer’s employees. These provisions were all recommended by the administrative law judge but rejected by the Board.

There is no need to ring the changes on the agency’s broad discretion in the selection of remedies, and the deference paid by reviewing courts when such choices have been deliberately and rationally made. That much is now engrained in Board law. See, e. g. N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Lipman Motors, Inc. v. N. L. R. B., 451 F.2d 823, 828-829 (C.A.2, 1971); The Herald Company v. N. L. R. B., 444 F.2d 430, 435-437 (C.A.2, 1971), cert. denied, 404 U.S. 990, 92 S.Ct. 532, 30 L.Ed.2d 541.

In this instance, the Board addressed each of the proposals now pressed by Local 259 and gave acceptable reasons why they should not be adopted. New York’s “maximum” interest rate was rejected because “the effective administration of the Act is best served by remedies which, except as otherwise directed by Congress, are uniformly applicable throughout the Board’s jurisdiction. That purpose cannot be achieved by tailoring a remedy to fit the laws regarding lawful interest rates of the various States and Territories within our jurisdiction.” No provision was made for reimbursement of attorneys’ fees and litigation expenses because the respondents’ defenses were debatable, not frivolous, and the right to present that kind of substantial defense should not be chilled. Local 259’s organizational expenses in September 1970 were denied because they would have been incurred even if Local 355 had not engaged in unfair practices; it is now said that in the future Local 259 will have to expend substantial sums to overcome this unlawful conduct, but possible damages of that consequential type are so uncertain, speculative and indefinite that the Board cannot be faulted for failing to calculate and impose them.

The Board also refused to bar Local 355, for three years, from representing any employees unless certified, and to direct the union to show on its authorization cards that it had been found in collusion and adjudged in contempt. The agency felt that these remedies were in effect punitive — the panel specifically indicated that there was no showing that all of the local’s 5,000 members in about 275 units were unlawfully organized rather than directed to remedying the particular unfair practices found. The statutory purposes would be better served, the panel believed, “by a broad cease-and-desist order forbidding repetition of similar conduct, which may hereafter be enforced by a court of appeals, thereby subjecting Respondent Local 355 to contempt proceedings in the event it does not comply with such a court order.” Similarly, the Board thought it unnecessary to direct Local 355 to cease using employer’s officials, supervisors and agents in organizational activities because that conduct was already proscribed by the broad general provisions of the order.

We cannot find an abuse of discretion in this disposition of Local 259’s requests. The grounds given are all substantial and rational, well within the spectrum of the Board’s authority. Local 259 emphasizes what the administrative law judge called 355’s “long and consistent history of violations before the Board and Courts for more than 10 years.” 198 N.L.R.B. No. 58, at 50. The Board did take account of this parade of transgressions to the extent of expanding somewhat the conventional cease-and-desist requirements, but it felt, for the solid reasons we have summarized, that it was not warranted in going still further. The problem of how drastic to mold the remedy in a particular proceeding concerned with the latest in a series of violations calls for the sensitive exercise of administrative judgment, and we cannot substitute our own opinion for the Board’s reasoned explication.

The court of appeals’ rulings directing the Board to expand, or to consider expanding, its remedies have all involved quite different situations. In Textile Workers Union of America, AFL-CIO v. N. L. R. B., 475 F.2d 973 (C.A.D.C., 1973), the court remanded for further consideration because it felt the agency had failed to explain completely and adequately why the employer’s long history of unfair labor practices did not warrant the broader relief the charging union requested; here, on the contrary, a detailed and acceptable explanation has been given. In Int’l Union of Electrical, Radio & Machine Workers, AFL-CIO v. N. L. R. B. (Tiidee Products Inc.), 138 U.S.App.D.C. 249, 426 F.2d 1243, 1248, 1253 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256, the District of Columbia Circuit found the employer’s conduct to be a “clear and flagrant violation of the law” and its defenses “patently frivolous.” In contrast, the District of Columbia Circuit has recognized that, where, as here, a respondent’s defense requires resolution of conflicting testimony and evaluation of credibility, the defense cannot be deemed frivolous or without merit on its face. United Steelworkers v. N. L. R. B. (Quality Rubber Mfg. Co.), 430 F.2d 519, 521 (C.A.D.C., 1970); Southwest Reg. Joint Bd., Amalgamated Clothing Workers v. N. L. R. B., 142 U.S.App.D. C. 337, 441 F.2d 1027, 1035-1036 (1970); Ex-Cell-O Corp. v. N. L. R. B., 145 U.S.App.D.C. 396, 449 F.2d 1058, 1064 (1971).

B. Local 355, for its part, attacks the order in four particulars. Two involve cease-and-desist requirements extending beyond the employees of Russell Motors. In the light of 355’s general history, note 17 supra, these broader directives are justifiable; the violations covered by the challenged paragraphs resemble those which occurred in this case and the local’s propensity for comparable misconduct against employees generally has been fully established. Cf. N. L. R. B. v. Associated Musicians of Greater New York, Local 802, 422 F.2d 850, 852 (C. A.2, 1970); N. L. R. B. v. Local 25, I.B.E.W., 383 F.2d 449, 454-455 (C.A.2, 1967); N. L. R. B. v. Local 138, 138A, 138B, Int’l Union of Operating Engineers, 377 F.2d 528, 530 (C.A.2, 1963). Once again, the Board’s exercise of its administrative discretion and judgment must be accepted as reasonable.

The other two of the union’s complaints involve the form of the “Notice to Members” it is required to post. After a short summary of the violations the Board found the local to have committed, the notice says: “We [i. e. Local 355] will not do such things again.” Comparable phrasing, though perhaps not as abrupt, has been allowed. Love Box Co. v. N. L. R. B., 422 F.2d 232, 235-236 (C.A.10, 1970); Unit Drop Forge, Div. Eaton, Yale & Towne, Inc. v. N. L. R. B., 412 F.2d 108, 111 (C.A.7, 1969); N. L. R. B. v. Douglas & Lomason Co., 443 F.2d 291, 295 (C.A.5, 1971); Spartans Industries v. N. L. R. B. , 406 F.2d 1002, 1006 (C.A.5, 1969). Though tart, the challenged sentence is not unfair.

The last objection is that the notice compels Local 355 to refer to the agreement with Russell Motors as a “sweetheart contract” and to say that the Board had found it in violation of the Act by entering into a “sweetheart contract” with that company. On this point the court is divided. Judges Friendly and Oakes would delete the words “sweetheart contract” from the notice and substitute “collusive contract”. They accept the definition of a “sweetheart contract” in the Random House Dictionary, i. e. a “substandard contract made through collusion between dishonest management and labor representatives to pay low wages to union workers.” In their opinion the agreement in this case fails the two tests of dishonesty and substandard wages in that there is insufficient proof either that the employer and the union were dishonest in the normal sense, or that the wage levels inserted in the contract with Local 355 were substantially below the prevailing rates. In addition, these judges consider “sweetheart contract” to be an opprobrious epithet, not to be used unless clearly warranted by the facts. Accordingly, Judges Friendly and Oakes, constituting the majority of the panel, hold that “sweetheart” should be replaced by “collusive”.

The writer of this opinion, Judge Davis, dissents from this change. He thinks that in the circumstances the Board had the right, at its election, to use the “sweetheart” designation. His understanding of a “sweetheart” contract is that it covers any collusive arrangement between a union and an employer, made for their mutual advantage and without dominant concern on the union’s part for the employees’ interests ; the agreement does not have to be substandard in content but may be made, for example, because the company prefers to deal with the particular union as more pliable, less troublesome, etc. Judge Davis thinks that the Board could find that that occurred in this ease. Even if one adopts the Random House definition, Judge Davis also believes that the Board could find the necessary prerequisites in this instance. As he sees it, “dishonest” negotiations do not necessarily imply bribery or larceny, but rather that both management and union acted deceitfully toward the employees, being primarily moved by their mutual (and not the workers’) advantage. This record, together with Local 355’s previous history, supports such a conclusion here. On the substandard level of the wages, the record is thin and not compelling one way or the other; Local 259’s rates appear to be higher in certain respects and were claimed by that union to be “prevailing”; other aspects of the Local 259 “package” also seem more favorable to the employees. In Judge Davis’ view, the term “sweetheart” is not so derogatory or demeaning that the Board had to have more convincing proof than was offered and relied upon in this case.

The end-result is that the Board’s determination and order are affirmed on Local 259’s petition for review, and also on Local 355’s petition except that the latter’s petition is granted to the extent of substituting the words “collusive contract” for “sweetheart contract” in the Notice to Members to be posted by Local 355. The Board’s petition to enforce is also granted with this single modification.

Order modified in accordance with this opinion and as so modified enforcement granted. Despite the minor modification both the Board and Local 259 may recover costs against Local 355.

      . Local 355 is an independent union, unaffiliated with a parent organization.

      . In the same decision and order the Board found the employer, Bussell Motors, Inc., in violation of section 8(a)(1), (2), and (3) of the Act. Bussell Motors has not sought review but the Board’s application for summary enforcement against Bussell is pending before this court (No. 72-2346).

      . This case concerns attempts to organize only the service department and not the sales staff or clerical help.

      . Local 259 had represented the Bussell service employees before 1970, following an election and official Board certification. After certification, there were charges, a complaint, a Board order, and a court decree against the company for unlawful refusal to bargain with Local 259.

      . Nocella ultimately became shop steward for Local 355, a position of top seniority according to the terms of the contract.

      . There is likewise evidence that, as early as these meetings, James Guido, assistant service manager, also offered to look into the problem. Local 259’s later involvement was at Guido’s invitation. See note 9 infra. The Board was correct in finding that the defendant union in this proceeding is Local 355, not Local 259. The propriety of actions by Guido or Local 259, in the absence of filed charges of misconduct, is irrelevant to the charge against the other union.

      . Twenty-one of the authorization cards were signed and returned, dated September 9, and a few with other dates. Most were dated by the signers. However, even the cards dated by the signers do not reliably reflect when they were returned to Richard Nocella. A number of men signed and returned their cards on the same day; others who dated their cards September 9 did not return them on the same day as signed. Everything considered, September 9 is the earliest possible date that may be treated as the day on which almost all of the cards were returned signed.

      . It is unnecessary, in negating a claim of an uncoerced majority, to show mathematically that less than a majority freely signed authorization cards. A pattern of company assistance can be sufficient to invalidate all cards. See N.L.R.B. v. Jan Power, Inc., 421 F.2d 1058, 1061-1062 (C.A.9, 1970) ; Department Store Food Corp. v. N.L.R.B., 415 F.2d 74, 77 n. 4 (C.A.3, 1969) ; N.L.R.B. v. James Thompson & Co., 208 F.2d 743, 746-748 (C.A.2, 1953).

      . As already indicated, note 6 supra, James Guido, assistant service manager, inquired whether employees wished a union other than Local 355. Receiving some affirmative response, he phoned Ralph Diamond, vice-president of Local 259, telling Diamond that he didn’t like what was going on with Local 355; Guido then arranged for Diamond to come to Russell Motors on Monday, September 14th. Guido and Marquand were fairly certain that these events occurred on Friday, September 11. Diamond, however, testified that he received Guido’s call on Thursday, September 10th. Hugo Grubel stated that it occurred on the same day he signed his cards, i. e., the 9th. Joseph Nocella thought that Guido told him of his brother’s activities possibly on September 8 or 9 but he was not very certain.

      . The participation of even “minor” supervisors on negotiating committees has been belli improper. See Mon River Towing, Inc. v. N.L.R.B., 421 F.2d 1, 7-8 (C.A.3, 1969). Marquand stated’ that there was no election of the members. Others, however, do remember such an election, placing it on September 14.

      . Renaldo also was invited to attend the luncheon but refused. He remembered being asked to attend after he had signed his card for Local 259.

      . Mack thought, however, that a number of meetings occurred that he could not attend and that a contract had been signed by the time of the lunch.

      . An employer is free to make predictions about tbe probable effects of unionization on his business, but his predictions must be “carefully phrased on the basis of objective fact” to convey his beliefs about matters beyond his control, or to convey management decisions already arrived at. N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 618-620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274 n. 20, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965) ; cf. N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964) ; N. L. R. B. v. Virginia Elec. & Power Co., 314 U.S. 469, 477-478, 62 S.Ct. 344, 86 L.Ed. 348 (1941).

      . The participation in the welfare fund described in the contract was to include all officials and employees of Russell rather than just those who were members of Local 355. As the agency found, the participation of supervisors in the welfare benefits is not specifically alleged to be in violation of the Act. However, “it smacks of an accommodative element between the Employer and Local 355 suggestive of close relationship and common interest and not the usual arms’-length dealing.” 198 N.L.R.B. No. 58, at 39.

      . The fact that this was the only union agreement concluded by Russell in twenty years can also be taken into account in deciding whether a “suddenly and speedily installed union has achieved such unique ‘instant success’ as a result of employer assistance.” Cf. N .L. R. B. v. Link-Belt Co., 311 U.S. 584, 588, 61 S.Ct. 358, 85 L.Ed. 368 (1941).

      . The request that the compliance notice be sent to all union members was rejected on. the same ground that there was no evidence that these other members had been organized illegally.

      . The Board counted 14 other cases involving Local 355. The reported court decisions are: N. L. R. B. v. Lundy Mfg. Corp., 316 F.2d 921 (C.A.2), cert. denied, 375 U.S. 895, 84 S.Ct. 171, 11 L.Ed.2d 124 (1963) ; N. L. R. B. v. Fiore Bros. Oil Co., 317 F.2d 710 (C.A.2, 1963) ; N. L. R. B. v. Malcolm Konner Chevrolet, Inc., 338 F.2d 972 (C.A.3, 1964) ; N. L. R. B. v. Raymond Buick, Inc., 445 F.2d 644 (C.A.2, 1971). See also N. L. R. B. v. Amalgamated Local Union 355, 77 LRRM 3082 (C.A.2, July 12, 1971) (civil contempt judgment entered against Local 355).

      . The recent decision in Food Store Employees Union Local No. 347, Amalgamated Meat Cutters v. N. L. R. B., 476 F.2d 546 (C.A.D.C., 1973), ordered reimbursement by an employer of legal fees and litigation expenses because the Board itself had characterized the respondent’s conduct as “clearly aggravated and pervasive” misconduct, and had questioned the employer’s good faith on account of its “flagrant repetition of conduct previously found unlawful” at other of the employer’s stores. Although Local 355 has had a long history of violations of the National Labor Relations Act, the Board did not here find a comparable pattern of aggravated repetition of the unfair labor practice of accepting assistance. On the contrary, the Board specifically found Local 355’s defenses not to be frivolous and some of them to be “relatively close”.

      . One paragraph of the order directs the union to “cease and desist from attempting to cause an employer to discriminate against an employee in violation of section 8(a) (3) of the National Labor Relations Act, as amended”; the other orders the local to cease and desist “from in any other manner restraining or coercing any employee in the exercise” of his statutory rights (emphasis added).


author: GIBBONS, Circuit Judge.

text:
    Walter S. FARLEY, Jr., et al., Appellants, v. Walter S. FARLEY, Jr., et al.

      No. 71-1967.
    United States Court of Appeals, Third Circuit.
    Submitted May 18, 1973.
    Decided June 25, 1973.

      Jack Sirott, Henry F. Huhn, Sirott & Huhn, Bristol, Pa., for appellants.
    Gerald Gornish, Deputy Atty. Gen., and Israel Packel, Atty. Gen., Harrisburg, Pa., for Commonwealth of Pa.
    Power, Bowen & Valimont, Robert W. Valimont, Doylestown, Pa., for intervenors Catania and Tracey.
    Begley, Carlin, Mandio, Kelton & Pop-kin, George T. Kelton, Bristol, Pa., for intervenors Fawkes and Lindley.
    Robert T. Burke, Asst. County Sol., Doylestown, Pa., for Board of Elections of Bucks County.
    Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This appeal challenges a single-judge district court order dismissing, without convening a three-judge court, a complaint seeking injunctive and declaratory relief to invalidate on federal constitutional grounds certain Pennsylvania provisions governing the election of County Commissioners.

The inquiry of a single district court judge on an application for a three-judge district court is limited to determining whether a substantial federal question and a basis for equitable relief are alleged. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam). The Court has interpreted the requirement for a substantial federal question liberally. Recently, in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973), it noted:

“Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. ‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. [31], at 33 [82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962)]; ‘wholly insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S.Ct. 326, 327, 54 L.Ed. 482] (1910); and ‘obviously without merit.’ Ex parte Poresky, 290 U.S. 30, 32 [54 S.Ct. 3, 4-5, 78 L.Ed. 152] (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the proper decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if ‘ “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ Ex parte Poresky, supra, at 32 [54 S.Ct. at 4], quoting from Hannis Distilling Co. v. Baltimore, supra, at 288, [30 S.Ct. at 327]; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 [53 S.Ct. 549, 550, 77 L.Ed. 1062] (1933); McGilvra v. Ross, 215 U.S. 70, 80 [30 S.Ct. 27, 31, 54 L.Ed. 95] (1909).”

In this case plaintiffs raise two constitutional challenges. First, they question the practice of listing only two candidates from each political party for the three positions. The district court correctly noted that nothing in either the statute or constitution literally mandates this practice. Since this issue had not yet been decided by the Pennsylvania courts, it abstained. It is unclear on the record before us whether this particular practice is indigenous to Bucks County or is of statewide application. Our impression is that it applies throughout Pennsylvania. Where the constitutional challenge is to a statute of only local concern, then it is not proper to convene a three-judge court. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). Compare id. with Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), decided the same day. This point does raise a substantial federal question. Consequently, there should be a remand to the district court to determine whether the practice of only placing two candidates on the ballot in county commissioner decisions is of statewide application. If so, a three-judge court should be convened.

Plaintiffs’ second constitutional challenge is to the constitutional and statutory provisions which allow each voter to vote for only two candidates for the three county commissioner positions. There is no ambiguity here. These provisions apply to every county in Pennsylvania except those having home rule charters. See Brief for Intervenors Fawkes and Lindley at 7. The district court ruled that this issue did not raise a substantial federal question. This was based on the decision of a three-judge district court in Kaelin v. Warden, 334 F.Supp. 602 (E.D.Pa.1971), holding Pa. Stat. Ann. tit. 16, § 501 to be constitutional.

There are two reasons why this decision does not foreclose the issue of whether a substantial federal question is presented. First, as Chief Judge Seitz noted, it is arguable that the issue presented by the instant case was not before the Kaelin court. See 334 F. Supp. at 604. Kaelin was an action which sought to enjoin the defendant from acting as a county commissioner of Bucks County “on the ground that his appointment to fill the vacancy in that office was based on a statute which is unconstitutional on its face or as administered by the appointing authority.” Id. Thus, while the entire statute was challenged, the facts of that case really only related to the vacancy provision of the statute, which is Pa.Stat.Ann. tit. 16, § 501(b). Consequently, it is arguable that the portion of the opinion upholding the validity of § 501(a) is dicta. Probably Kaelin makes plaintiffs’ contentions “doubtful” or of “questionable merit”, Goosby v. Osser, supra, 409 U.S. at 518, 93 S.Ct. 854, but it does not make them insubstantial. The mere fact that it is unclear whether the decision in Kaelin on § 501(a) was a holding or dicta should render the federal question substantial under Goosby v. Osser, supra. Cf. LoFrisco v. Schaffer, 341 F.Supp. 743 (D.Conn.), aff’d, 409 U.S. 972, 93 S.Ct. 313, 34 L.Ed.2d 236 (1972) (per curiam).

A second and more important reason is that even if Kaelin had decided the precise issue, its holding is not a precedent binding on other courts. The decision of a three-judge court is entitled to no more weight than any other district court decision. See IB J. Moore, Federal Practice ¶ 0.402 [1] n.29 at 62. Consequently, the Kaelin decision is not necessarily binding on any other district court, id. at 61, and does not invariably have to be followed in the Eastern District. Id. at 58-59. Clearly the Kaelin case does not meet the standard for insubstantiality announced in Goosby v. Osser, supra, 409 U.S. at 518, 93 S.Ct. 854. A three-judge court should be convened.

We realize that the outcome of the case before a three-judge district court will probably be no different, and that a remand under such circumstances may seem an exercise in futility. The three-judge court statutes, unfortunately, produce many such exercises. The remedy, however, is legislative.

      . The idaintiff did not request a three-judge court. The district court must, however, on its own initiative, determine if the injunctive relief requested falls within 28 U.S.C. § 2281. E.g., Bell v. Waterfront Commission, 279 F.2d 853, 856-57 (2d Cir. 1960).

      . Even when abstaining a federal court should either retain jurisdiction or dismiss without prejudice to the right of the plaintiffs to litigate their claim in a federal court at the conclusion of the state proceeding. American Trial Lawyers Assn. v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973) (per curiam).


author: WALLACE, Circuit Judge:

text:
    UNITED CALIFORNIA BANK, Plaintiff-Appellee, v. Charles E. SALIK et al., Defendants-Appellants.
    No. 72-2140.
    United States Court of Appeals, Ninth Circuit.
    May 29, 1973.
    As Modified on Denial of Rehearing Sept. 17, 1973.

      Jack W. Crumley (argued), of Luce, Forward, Hamilton & Scripps, San Diego, Cal., Alan R. Bromberg (argued), Dallas, Tex., John C. Stiska, Michael L. Kirby, of Luce, Forward, Hamilton & Scripps, San Diego, Cal., Joel H. Pullen, of Davis, O’Connor & Pullen, San Antonio, Tex., for defendants-appellants.
    William W. Vaughn (argued), Warren Cristopher, B. Boyd Hight, Jr., of O’Melveny & Myers, Los Angeles, Cal., Sullivan, Jones, Archer & Brucher, San Diego, Cal., for plaintiff-appellee.
    Before HUFSTEDLER, TRASK and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Plaintiff-appellee, United California Bank (UCB),. sued in district court alleging a violation of federal securities law and a claim for breach of warranty under state law. Defendants-appellants are residents of the United States and former shareholders of the Salik Bank in Basel, A.G., a corporation organized under the laws of Switzerland.

The complaint stated that UCB had purchased the defendants’ shares of stock in May, 1969, pursuant to a previously-executed purchase agreement. UCB also alleged that after August, 1970, it learned that the Salik Bank (by then, UCB-Basel) had incurred undisclosed losses of more than $40,000,000, primarily as a result of unauthorized trading in commodities. UCB claims that it was forced to discontinue operations at the Swiss bank, that UCB-Basel was insolvent and that it is now in the process of liquidation. UCB’s complaint, filed February 16, 1972, attributed these results and its damages to the defendants’ actions.

In the district court, the defendants moved to dismiss the complaint, arguing that the federal claim was barred by the statute of limitations’ period specified in Cal.Corp.Code § 25506. The trial judge denied the motion, holding instead that the applicable statute of limitation was found in Cal.Code Civ.P. § 338. However, he certified that his order involved a controlling question of law and this court granted permission for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We affirm.

UCB’s federal claim alleges a violation of section 10(b) of the Securities Exchange Act of 1934 (hereinafter Act) and rule 10b-5 promulgated thereunder. The Act does not contain a statute of limitation applicable to section 10(b) and federal courts have consistently rejected attempts to apply to section 10(b) other statutes of limitation found in the Act and in the Securities Act of 1933. When, as in a case such as this, the statute is silent, we look to “an appropriate local law of limitations.”

In previous 10b-5 eases, we have applied the applicable state statute of limitations for fraud. Errion v. Connell, 236 F.2d 447, 455 (9th Cir. 1956); Fratt v. Robinson, 203 F.2d 627, 634 (9th Cir. 1953). Relying upon Errion and Fratt, we have adopted the California general fraud limitations period, Code Civ.P. § 338, for securities fraud cases arising in that state. Hecht v. Harris, Upham & Co., 430 F.2d 1202, 1210 (9th Cir. 1970); Sackett v. Beaman, 399 F.2d 884, 890 (9th Cir. 1968); Turner v. Lundquist, 377 F.2d 44, 46 (9th Cir. 1967).

However, in Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912 (9th Cir. 1971), we were faced with a choice between the Washington fraud statute adopted in Fratt and Errion, supra, and a special limitations statute for securities fraud enacted in the interim. We adhered to our selection of the former. 440 F.2d at 915-16.

Now we are again confronted by similar alternatives. Since the occurrence of the facts supporting the claims in Turner, Sackett, and Hecht, supra, the California legislature has enacted a statute of limitations for actions brought pursuant to a state statute similar to section 10(b). The defendants urge this court to reject our previous decisions and to adopt the new statute, Cal.Corp. Code § 25506. We decline to do so for several reasons.

First, as we noted in Douglass, supra:

[F]or us to change the applicable limitation period because the local law of securities regulation has changed would add an unnecessary uncertainty to the prosecution of federal claims under section 10(b). We do not believe federal policy is advanced by changing the law governing the timeliness of federal claims to correspond with each change in the substantive elements of a claim under the local securities law. Aggrieved persons have come to rely upon our prior holdings. Reasonable stability in laws pertaining to voluntary relationships between parties, and the right of access to the courts to question those relationships, is a worthwhile objective as well.

440 F.2d at 916. Second, the broad remedial policies of the federal securities laws are best served by a longer, not a shorter, statute of limitation. Under our prior rulings, a California resident may sue within three years of discovery of the fraud. Under the statute advanced, he would have only one year from discovery.

Finally, adoption of the new California statute would necessarily be piecemeal. The statute provides that a suit may be brought within one year of discovery of the violation but in no case more than four years after its occurrence. Federal policy provides that a statute of limitations shall not run until the fraud is, or should be, discovered. In the case of a fraud discovered more than three, but less than four, years after the occurrence, strict application of the California statute would afford only the balance of the fourth year within which to sue. More importantly, a fraud discovered over four years after its occurrence would be completely barred. To obviate this inconsistency with federal policy, we could judicially amend the California statute by eliminating the four-year maximum. Alternatively, we could eliminate the one-year provision but amend the four-year provision to commence upon discovery. However, piecemeal adoption of the new statute is hardly preferable to continued utilization of the older fraud statutes. Therefore, as in Douglass, we adhere to our prior decisions in Turner, Sackett, and Hecht, supra, and hold that Code Civ.P. § 338 is the statute applicable to section 10(b) actions in California.

We recognize that there is no answer that is entirely satisfactory and we doubt any will be forthcoming unless Congress enacts a federal limitations statute specifically applicable to such actions.

Affirmed.

      . Section 25506 provides:
      No action shall be maintained to enforce any liability created under Section 25500, 25501, or 25502 (or Section 25504 insofar as it relates to those sections) unless brought before the expiration of four years after the act or transaction constituting the violation or the expiration of one year after the discovery by the plaintiff of the facts constituting the violation, whichever shall first expire.
      Since UCB brought this action some eighteen months after the alleged discovery, application of § 25506 could conceivably bar its suit.

      . Section 338 provides in part: Within three years:
      4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
      The present action was probably timely under the provisions of this section.

      . 15 U.S.C. § 78j(b).

      . 17 C.F.B. § 240.10b-5.

      . 15 U.S.C. §§ 77a-77aa. See, e. g., Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912, 914 (9th Cir. 1971) ; Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965).

      . Douglass, supra, note 5, at 914. See Sackett v. Beaman, 399 F.2d 884, 890 890 (9th Cir. 1968). See also UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ; Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946).

      . Faced with analogous choices, other circuits have recently chosen the securities statute of limitations rather than that of general fraud. See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) ; Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But see Charney v. Thomas, 372 F.2d 97 (6th Cir. 1967).
      However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875).

      . See J. I. Case Co. v. Borak, 377 U.S. 426, 431-32, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ; SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963).

      . See Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir. 1967) ; Beefy Trail, Inc. v. Beefy King Int’l, Inc., 348 F.Supp. 799, 803 (M.D.Fla.1972).

      . See note 7, supra.

      . See note 1, supra.

      . See note 7, supra.

      . However, even if Congress is so disposed, it may wait until it receives The American Law Institute’s proposed Federal Securities Code. Professor Louis Loss, the reporter for the project, currently estimates that the ALI Code will reach Congress in 1976 or 1977. Federal Securities Code, Introductory Memorandum at xv (Ten. Draft No. 2, 1973). Section 1421 of the draft contains proposed federal statutes of limitations for the remedies provided by the Code.


author: PER CURIAM:

text:
    In the Matter of MERLE’S INC., a Washington corporation, d/b/a Merle’s Fine Foods and Merle’s Drive In, Bankrupt. J. P. TONKOFF, Creditor, Petitioner-Appellant, v. C. C. SYNOGROUND, Trustee and P. D. Q. Frozen Foods, Inc., et al., Petitioning Creditors, Appellees.
    No. 72-2565.
    United States Court of Appeals, Ninth Circuit.
    July 18, 1973.

      J. Peter Tonkoff (argued), Yakima, Wash., for petitioner-appellant.
    John A. Rossmeissl (argued), Morris G. Shored of Yelikanje, Moore, Countryman & Shore, Yakima, Wash., for appellees.
    Before BARNES and CHOY, Circuit Judges, and MURRAY, District Judge.

       Honorable W. D. Murray, Senior United States District Judge, District of Montana, sitting by designation.

   PER CURIAM:

This appeal involves a quarrel between the trustee in bankruptcy and Tonkoff concerning the right and title to property claimed. On the 15th of January, 1971, appellant took possession of the property to secure his loan and continued in possession; paying the monthly installments, taxes and the insurance. On March 26, 1971, the Superior Court of Yakima County quieted the bankrupt’s title to the real and personal property involved in the appellant. On March 25, 1971, three unsecured creditors filed a petition for involuntary bankruptcy of this bankrupt. Mr. Kirschenmann was appointed Receiver. Appellant assured Mr. Kirschenmann that the assets in possession of appellant would be preserved and dealt with in accordance with any court order pertaining to the same if the Receiver would not interfere with the operation of the restaurant so that rental could be applied to meet the monthly payments. Appellant Tonkoff and Mr. Kirschenmann entered into negotiations for settlement of the bankruptcy estate’s claim against Tonkoff. They resolved to settle the claim for a $5,000 payment from Tonkoff to the estate. This settlement of the claim was approved by Referee in Bankruptcy, Mr. Kerley. This approval was given without notice to the creditors. When the creditors discovered that the compromise of claim had been entered into, they immediately petitioned the court to vacate the order approving the compromise. A full evidentiary hearing was held before Referee Kerley and he determined that the order previously entered should be vacated and the trustee be given leave to institute suit against Tonkoff to recover the property. Tonkoff filed a petition for review of Referee Kerley’s order setting aside the original compromise order. Judge Powell denied the review and the order setting aside the compromise order was affirmed. It is from this denial that Tonkoff appeals.

Under subdivision (a) of 11 U. S.C. § 47, appeals will lie from either final or interlocutory decrees or orders entered in “proceedings in bankruptcy”. On the other hand, appeals from orders or decrees entered in “controversies arising in proceedings in bankruptcy” may generally be taken only when those orders or decrees are final. Colliers, Vol. 2, Sec. 24, P. 735.

The Fifth Circuit held in Hamilton-Brown Co. v. Ben L. Berwald Shoe Co., 10 F.2d 275 (5th Cir. 1926) that an order approving an offer of compromise involved a “controversy arising in proceedings in bankruptcy”. Likewise, an order disapproving an offer of compromise involves a “controversy” in that it entails matters arising in the course of a bankruptcy proceeding which are not mere steps in the administration of the estate, but which give rise to distinct and separable issues between trustees and adverse claimants, concerning the right and title to bankrupt’s property. Colliers, supra, p. 767, Harrison v. Chamberlain, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 191. Quarrels about what belongs in the bankrupt’s estate are plainly controversies rather than “proceedings”. Moore’s Federal Practice, (2d Ed.) Vol. 9, Sec. 110.19(5) p. 222.

Since the order in question involves a “controversy” rather than a “proceeding”, this court has jurisdiction to review only if the order is final and not interlocutory. A final order has been defined as follows: “A decision which finally determines the rights of parties to secure in that suit the relief they seek is a ‘final decision’.” Colliers, supra, p. 787. An interlocutory order or decree is one which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits. Collier, supra, p. 792, citing Goldie v. Carr, 116 F.2d 335 (9th Cir. 1940).

An order approving a compromise, such as the one in Hamilton-Brown, supra, is final because it finally determines the rights of the parties. An order disapproving a compromise, however, is not final. It determines no rights and settles no issues. It merely leaves the question open for future adjudication.

To be reviewable, an order involving “controversy” must have the character of a formal exercise of judicial .power affecting the asserted rights of a party; it must substantially determine some issue. Judge Powell’s order had no such finality.

11 U.S.C. § 47(a) confers no jurisdiction on this court to review interlocutory orders involving “controversies”; the appeal is therefore dismissed for lack of jurisdiction.