author: RUSSELL, Circuit Judge:

text:
    Betty B. BURGESS, Individually and as Administratrix of the Estate of S. Reed Burgess, Jr., deceased, Appellant, v. CHARLOTTESVILLE SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 72-2272.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 6, 1973.
    Decided April 9, 1973.

      J. Robert Brame, III, Richmond, Va. (Robert H. Patterson, Jr., Richmond, Va., McGuire, Woods & Battle, Ellen V. Nash and Nash & Edelson, Charlottesville, Va., on brief), for appellant.
    Stephen H. Helvin, Charlottesville, Va. (William A. Parks, Hot Springs, Va., B. B. Woodson, Charlottesville, Va., Garland M. Harwood and Shewmake & Gary, Richmond, Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL, and WIDENER, Circuit Judges.
   RUSSELL, Circuit Judge:

The plaintiff and her deceased husband solicited a loan from the defendant Savings and Loan Association. In the loan application prepared by the defendant was the provision:

“Credit life, accident, health or loss of income insurance is not required to obtain this loan. No charge is made for such .insurance and no such insuranee is provided unless the borrower signs the appropriate statement below. Credit Life & Disability Income Ins. is available at a cost of $5,585.00 for the 25 year term of the initial policy. $11.95 Per Month.”

This provision was incorporated in the loan application, as a result of Regulations issued by the Federal Reserve System under authority of the Truth in Lending Act, 15 U.S.C., Section 1601. Though the plaintiff and her husband signed the form, immediately following the paragraph quoted above, thereby indicating their desire to procure credit life insurance to protect their loan, no steps were thereafter taken by the defendant to procure such insurance. A few weeks after the loan was completed, the husband died and the plaintiff individually and as administratix of her husband’s estate demanded of the defendant payment under the credit life insurance she and her husband .had indicated in their loan application they desired. When that demand was refused, suit followed in the state court.

Plaintiff’s action, as stated in her original complaint, was basically one to recover for breach of a contract to procure life insurance. In setting forth such cause of action in her complaint, the plaintiff included among her allegations the form of notice required by Federal Reserve Regulation Z under the Truth in Lending Act, which has already been quoted, and based one count in her action on the claim that the failure of the defendant to “procure the creditor life insurance as stated in its disclosure * * * violated Regulation Z and the Truth-in-Lending Act”. Because of this claim made under the Truth in Lending Act, the defendant removed the action to the federal court as one “arising under the * * * laws * * * of the United States”. After removal, the plaintiff moved to amend her complaint to incorporate a cause of action in tort for negligent failure to procure insurance. The motion was denied on the ground that the Virginia Courts, deemed controlling as the law of the place of the contract, did not recognize as a tortious wrong such a right of action, citing Hayes v. Durham Life Insurance Company (1957) 198 Va. 670, 96 S.E.2d 109 and Justice v. Prudential Insurance Company of America (4th Cir. 1965) 351 F.2d 462, decided by this Court on the basis of Virginia law. The Court, after finding federal jurisdiction on the ground that the case “involve [d] construction and interpretation of federal law, to-wit, the federal Truth-In-Lending Act”, dismissed the action, D.C., 349 F.Supp. 133, holding there was no evidence that a contract to procure insurance was ever formed. From that decree, the plaintiff has appealed.

At the threshold, we are confronted with the question of federal jurisdiction. It is- not enough that neither party has questioned federal jurisdiction. Because they are courts of limited jurisdiction, “[I]t has often been held that federal courts must be alert to avoid overstepping their limited grants of jurisdiction. At any stage of a litigation, including the appellate, subject-matter jurisdiction may be questioned. By failing to do so, the parties cannot confer jurisdiction by consent. If the court perceives the defect, it is obligated to raise the issue sua sponte.” McCorkle v. First Pennsylvania Banking and Trust Co. (4th Cir. 1972) 459 F.2d 243, 244, note 1.

As stated in the order of the District Court, federal subject-matter jurisdiction in this case is predicated entirely on the claim that the suit “arises under” federal law. Such a claim of federal question jurisdiction is to be resolved on the basis of the allegations of the complaint itself. To sustain it, the complaint must, however, contain allegations “affirmatively and distinctly” establishing federal grounds “not in mere form, but in substance” and “not in mere assertion, but in essence and effect.” Mere conclusory allegations in the complaint are insufficient to support jurisdiction. As on eCourt has well expressed it, “[I]f the concept of ‘federal question’ is to have any meaning, the court must look beyond the verbiage of a complaint to the substance of the plaintiff’s grievance, and dismiss the action, where no real basis for federal jurisdiction exists.” Thus, “[T]he mere assertion in a pleading that the case is one involving the construction or application of the federal laws does not authorize the District Court to entertain the suit” nor does federal jurisdiction attach on the bare assertion that a federal right or law has been infringed or violated or that the suit “takes its origin in the laws of the United States.” To satisfy the statutory jurisdictional requirement, a federal right must be a “real and substantial” issue in the case and “must be an element of the plaintiff’s cause of action” (Italics in opinion). It is often true that, “[A] mere incidental or collateral federal question may appear, or may lurk in the background of the record, but this is not a sufficient or adequate basis upon which federal jurisdiction may attach.” Simply stated, an. action arises under federal law only if it “really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends.” In ascertaining whether there is a real federal issue upon “which the result depends”, the Courts have observed “the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible” and federal question jurisdiction attaches only “to cases where the plaintiff’s cause of action, the rule of substance under which he claims the right to have a remedy, is the product of federal law.” (Italics added.)

It is plain that, giving effect to the principles just stated, federal subject-matter jurisdiction is absent in this case. The real basis on which plaintiff plants her cause of action is an alleged contract or agreement to procure insurance, the breach of which, under her theory, gave rise to an action both in contract and in tort under the law of Virginia. It is true the alleged agreement had its “origin” in a notice form intended by the defendant as compliance with the Act and the Regulations issued by the Federal Reserve System. That, however, was purely coincidental. Whether the form was one designed to comply with the Truth in Lending Act or not was unimportant; the basic issue in the case was whether the language used by the defendant in its form of loan application was sufficient to be the basis for the creation of a contractual right and that issue, all .parties agree, is determinable solely by Virginia law, not federal law.' In no sense can it be said that the plaintiff’s cause of action is grounded on the Truth in Lending Act or will be dependent on a construction of that Act. Nor can it be converted into an action involving the construction of that Act merely by a conclusory allegation to that effect. The Truth in Lending Act is a “disclosure” law. And, since the purpose of the Act is to permit the borrower, with full knowledge of costs, to make comparisons the disclosure must precede final closing of loan. It is the obligation to disclose, not the duty of subsequent performance, towards which the Act is directed. For failure to make disclosure as required, the Act provides its own remedy. Section 1640, 15 U.S.C. Obviously, the defendant complied fully with the Act: It made a full and exact disclosure. The plaintiff does not complain to the contrary. She accordingly has no basis for an action under the Truth in Lending Act for failure to disclose the cost of credit life insurance. She has not, by her own statement of her cause of action, any right to the statutory remedy authorized for a violation of the Truth in Lending Act. Though not essential to the determination of this case, a proper construction of the Act indicates that any private action for violation thereof is limited to the statutory remedy and can provide no basis for other relief. Cf., Jordan v. Montgomery Ward & Co. (8th Cir. 1971) 442 F.2d 78, 81-82, cert. denied 404 U.S. 870, 92 S.Ct. 78, 30 L.Ed.2d 114; Wheeler v. Adams Company (D.C.Md.1971) 322 F.Supp. 645, 659. Accordingly, any claim for relief under the Truth in Lending Act in the present action would be purely fictitious. To repeat: Her action is for failure to perform on what she claims was an offer by the defendant to procure and an acceptance of that offer by her and her deceased husband. Such action involves a construction of the language in the form used by the defendant to give the disclosure required under the Truth in Lending Act, it is true, but not for the purpose of determining whether that language represents sufficient compliance with the Act (and thus a construction of federal law) but for the purpose of determining whether such language will under the law of Virginia constitute a valid contract to procure. Such an action presents no federal question upon which the result of the action will depend. The District Court should remand the cause to the State Court.

Remanded with instructions to the District Court to remand the cause to the State Court from which it was removed.

      . 12 C.F.R., Section 226.1.

      . On the Truth in Lending Act generally, see Note, 51 N.C.L.Rev. 592 (1973). The Act and the Regulations issued thereunder are, also, discussed in Mourning v. Family Publications Service, Inc. (5th Cir. 1971) 449 F.2d 235, 238-249, cert. granted 405 U.S. 1062, 92 S.Ct. 1492, 31 L.Ed.2d 792.

      . 28 U.S.C. § 1441(b).

      . See Annotation, 29 A.L.R.2d 171; Butler v. Scott (10th Cir. 1969) 417 F.2d 471, 473.

      . Cf., however, Travelers Insurance Company v. Turner (1971) 211 Va. 552, 178 S.E.2d 503.

      . Barnhart v. Western Maryland Ry. Co. (4th Cir. 1942) 128 F.2d 709, 714, cert. denied 317 U.S. 671, 63 S.Ct. 75, 87 L.Ed. 538.

      . Cuyahoga Co. v. Northern Ohio Co. (1920) 252 U.S. 388, 397, 40 S.Ct. 404, 64 L.Ed. 626; Stanturf v. Sipes (8th Cir. 1964) 335 F.2d 224, 229.

      . Martinez v. Southern Ute Tribe (10th Cir. 1960) 273 F.2d 731, 734; Mantin v. Broadcast Music (9th Cir. 1957) 244 F.2d 204, 206.

      . Trauss v. City of Philadelphia (D.C. Pa.1958) 159 F.Supp. 672, 676.

      . Malone v. Gardner (4th Cir. 1932) 62 F.2d 15, 18; McCartney v. State of West Virginia (4th Cir. 1946) 156 F.2d 739, 741; Kilgore v. McKethan (5th Cir. 1953) 205 F.2d 425, 426, cert. denied 346 U.S. 924, 74 S.Ct. 311, 98 L.Ed. 417; Polhemus v. American Medical Ass’n. (10th Cir. 1944) 145 F.2d 357, 359.

      . Russo v. Kirby (2d Cir. 1971) 453 F.2d 548, 551; Swank v. Patterson (9th Cir. 1944) 139 F.2d 145, 146.

      . Shulthis v. McDougal (1912) 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205; Barnhart v. Western Maryland Ry. Co., supra, at 713-714 (128 F.2d).

      . McCartney v. State of West Virginia, supra, at 741 (156 F.2d).

      . McCorkle v. First Pennsylvania Banking and Trust Co., supra, at 250 (459 F.2d); McCartney v. State of West Virginia, supra, at 741 (156 F.2d); Gully v. First Nat. Bank (1936) 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70.

      . Screven County v. Brier Creek Hunting & Fishing Club (5th Cir. 1953) 202 F.2d 369, 370, cert. denied 345 U.S. 994, 73 S.Ct. 1136, 97 L.Ed. 1402; Warrington Sewer Company v. Tracy (3d Cir. 1972) 463 F.2d 771, 772.

      . Shulthis v. McDougal, supra, at 569 (225 U.S.), 32 S.Ct. 706; Barnhart v. Western Maryland Ry. Co., supra, at 713-714 (128 F.2d); Malone v. Gardner, supra, at 18 (62 F.2d).

      . Gully v. First National Bank, supra, at 118 (299 U.S.), 57 S.Ct. 100.

      . Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 225 (1948).

        . Section 1005(b), 15 U.S.C.

      . Its purpose is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” Section 1601, 15 U.S.C.

      . Bissette v. Colonial Mortgage Corporation (D.D.C.1972) 340 F.Supp. 1191, 1192-1193; see, Ratner v. Chemical Bank New York Trust Company (D.C.N.Y.1971) 329 F.Supp. 270, 273 and 276; Bostwick v. Cohen (D.C.Ohio 1970) 319 F.Supp. 875, 877; Buford v. American Finance Company (D.C.Ga.1971) 333 F.Supp. 1243, 1245.

      . See Bostwick v. Cohen, supra, at 878 (319 F.Supp).


source: Caselaw Access Project

author: ALDRICH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William FANNING et al., Defendants-Appellants.
    No. 72-1896.
    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    Rehearing and Rehearing En Banc Denied May 29, 1973.

      Klyde Robinson, Charleston Heights, S. C., for Fanning.
    Donald I. Bierman, Miami, Fla., for Marmorstein.
    Edward R. Shohat, Miami, Fla., for Dixon.
    Warren E. Magee, Washington, D. C., Theodore Klein, Miami, Fla., for Von Zamft.
    Robert W. Rust, U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., Peter M. Shannon, Jr., Atty. Criminal Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   ALDRICH, Circuit Judge:

Appellants, and others, were convicted, after a joint trial, of conspiracy to misapply funds of a national bank and of making false entries in bank records with intent to defraud. 18 U.S.C. §§ 371, 656 and 1005. Following affirmance, sub nom., Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56, they moved for dismissal of the indictment, new trial, and reduction of sentence. These motions being denied after an evidentiary hearing, they appeal. We affirm.

Appellants Von Zamft and Fanning complain that the government’s use of electronic surveillance illegally interfered with their attorney-client relationship. One of the government witnesses at the trial was David Phillips. Phillips, a lawyer, was chairman and counsel of the bank and in these capacities participated in some of the overt acts enumerated in the indictment. In affidavits submitted at the hearing these appellants stated that Phillips had on occasion acted as their personal counsel, representing them with respect to business transactions. They further stated that during part of the period covered by the indictment he counseled them concerning the government’s investigation of the bank. This, coneededly, ended prior to the indictment. Phillips did not represent any defendant at any stage of the criminal proceedings.

It appears that during the investigation, which commenced while the conspiracy was still ongoing, government agent Brody approached Phillips for information concerning it, and Phillips concluded to cooperate. At one interview he told the agent that he planned to tape-record conversations in his office in order to prevent persons involved in the conspiracy from changing “their stories in an effort to implicate him further in the case.” Brody replied that he would not participate in the recording operation. Phillips subsequently gave him several statements, but Brody testified at the hearing that he never listened to any recordings, never took possession of any, and in fact did not know whether the information received from Phillips stemmed from any conversation that had been taped. At the trial Phillips gave only the most limited testimony, the court apparently making it clear that it would not receive anything touching an attorney-client relationship.

On this basis there is nothing to the claim of illegal electronic governmental surveillance. In the light of the testimony of the agent, the court’s findings that the government “neither participated nor encouraged this and . did not in any way utilize any information, if any, so obtained,” are amply warranted. Appellants, perhaps understandably, but quite uncommendably, ignore this. Moreover, even if the government had participated, the consent of one party to the conversations— here Phillips — eliminates any claim of illegality relating to the recording per se. See United States v. White, 1971, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453; United States v. Avila, 5 Cir., 1971, 443 F.2d 792, cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258; United States v. Castillo, 5 Cir., 1971, 449 F.2d 1300.

The fact that one of Phillips’ roles was personal attorney to appellants would raise a problem if they could show he divulged privileged communications that contributed to their convictions. Passing the serious question that the communications in all likelihood involved plans to carry out illegal activities, and hence were outside the privilege, Clark v. United States, 1933, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993, appellants failed to show that information given the government by Phillips stemmed from attorney-client communications at all. Cf. United States v. Bartlett, 8 Cir., 1971, 449 F.2d 700, 703-704, cert. denied, 405 U.S. 932, 92 S.Ct. 990, 30 L.Ed.2d 808. It is not enough to show, on the one hand, interchange between Phillips and appellants and, on the other hand, interchange between Phillips and the agent; appellants were obliged to link the two together and, further, to show prejudice therefrom. Alderman v. United States, 1969, 394 U. S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176.

Correspondingly, there is no merit in appellants’ claim that they were denied effective assistance of counsel. As we stated in United States v. Zarzour, 5 Cir., 1970, 432 F.2d 1, at 3:

“[A]n intrusion by the government upon the confidential relationship between a criminal defendant and his attorney, either through surreptitious electronic means or through an informant, is a violation of the Sixth Amendment right to counsel. . However, there must be an intrusion.”

Even more fundamental, having been informed by Phillips prior to the indictment that he was no longer representing them, appellants were not even under the impression that he was representing them at any critical stage. Kirby v. Illinois, 1972, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

In this posture these appellants repetitively seek to counter by claiming that at no time have they ever seen Phillips’ statements. The claim is totally unwarranted. While the court (understandably, we think) made no finding on this point, our reading of the record persuades us that the Phillips statements called for under the Jencks Act, 18 U.S. C. § 3500, were distributed, and that appellants had ample opportunity to make the showing necessary to support their contention. Agent Brody testified at the hearing that he saw government counsel deliver Phillips’ statements to defense counsel at the trial. Moreover, the record at the trial reveals that government counsel requested and received an afternoon recess to prepare the statements for distribution and that no objections were made the following morning that would suggest he had not completed his obligations. Appellants make much of the demand, but no mention of the speaking silence thereafter.

We note, further, that when the jury retired for deliberation of appellants’ verdicts and Phillips was recalled for further testimony by another defendant who was trying his case to the judge alone, the attorney for that defendant made reference to Phillips’ statements, and indeed, asked a question concerning the “bugging” activities. And, finally, we note that at the hearing it appeared that at least some of the statements were present in the courtroom and that all of them, according to Agent Brody, were on the rostrum of the United States Attorney’s office, and available to the court, The claim that the statements were never available is wholly unsupported by the record.

Appellant Dixon charges that the district court erred in not releasing the grand jury testimony of codefendant Von Zamft made during an investigation of a theft of securities in the Southern District of New York, see post. It appears that at the hearing a defendant who has not appealed requested the judge to inspect in camera the New York testimony to see if.it was relevant; the judge did so, and found nothing of potential value. In view of the fact that no defendant — Von Zamft himself has made no objection regarding the discovery of his testimony — ever requested the court to turn the material over without inspecting it in camera, appellant Dixon’s charge that he had a right to see the testimony without prior screening is too late. More basic, the government is correct in stating that it would be impracticable and unproductive to require delivery of all statements made at any time in any jurisdiction by a defendant. Where, as here, the testimony relates to an extraneous investigation, and no showing of a “particularized need” is made, cf. Menendez v. United States, 5 Cir., 1968, 393 F.2d 312, cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 572, an in camera inspection is the most a defendant is entitled to.

The motions for reduction of sentences are also without merit, assuming an appeal lies. Von Zamft, in an affidavit, states that he was promised by prosecutors in New York that he would not have to serve any time if he cooperated in their prosecution of the securities theft case. Von Zamft did in fact cooperate in the case, which took place after his conviction and sentencing in Florida, and the New York prosecutors communicated the details of the cooperation to the judge below. The letter does not disclose, however, and the government denies, that any promise was made respecting the Florida sentence. Indeed, it is at least questionable that any binding promise could have been made by government officials in one jurisdiction with respect to a sentence already pronounced in another jurisdiction. We may add that even had a promise been proved, appellant’s claim is a far cry from Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, where the prosecutor reneged on a promise to recommend sentence after securing petitioner’s return promise to plead guilty. No such reliance is involved here.

Affirmed.

      . At the hearing, instead of the sweeping claim of never seeing any of Phillips’ statements, appellants claimed that at trial they did not see the statement relating to Phillips’ decision to tape-record conversations in his office. The extent of their proof was that, although remembering receipt of many Jencks Act statements throughout the trial, attorneys for appellants had no “recollection” of receiving the particular statement referring to the recording operation.

      . At trial the government was ordered to turn over all grand jury statements of defendants with respect to the investigation of the bank fraud conspiracy, and it did so.

      . It may be that any New York “deal” related to Yon Zamft’s New York conviction in connection with the securities theft. In that case the court sentenced Von Zamft to a term concurrent with his Florida sentence, and subject to any modification of that sentence.


author: CLARK, Circuit Judge: AINSWORTH, Circuit Judge

text:
    SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 72-3299.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.
    Rehearing and Rehearing En Banc Denied May 25, 1973.

      Richard G. Greer, Kenneth C. Pollock, Atlanta, Ga., for defendant-appellant.
    James D. Maddox, Rome, Ga., for plaintiff-appellee.
    Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Though the parties disagree as to the proper conclusions and inferences to be drawn, the evidentiary facts in this diversity case are undisputed. In June of 1968 Sharon Santolla graduated from high school in Tazewell, Virginia, where she lived with her parents. After graduation, she went to Marietta, Georgia, to stay with her sister, Carol Averill, and her brother-in-law, Wallace Averill, seeking work for the summer in Georgia prior to starting college in Virginia in the fall. She obtained employment at Six Flags Over Georgia Amusement Park in Mabelton, Georgia, on July 30, 1968. She was hired to work daily, except Friday, on the five o’clock p. m. to ten o’clock p. m. shift. She usually worked a double shift from eight o’clock a. m. until ten o’clock p. m. Wallace Averill allowed her to use one of his cars, a 1958 Karman Ghia, to drive to and from work. On every working day for approximately twenty-five days she used the car for that purpose with Averill’s knowledge and consent and without asking for separate permission each day. She never used the car or requested permission to use it for any other purpose. She purchased gasoline and some tires for the automobile while she was using it. Sharon only drove the car to and from her place of work but no one else used the car while she was at work. On the morning of August 29, 1968, Sharon was involved in a collision with a Southern Railway train, in which Bruce C. Clark, a passenger in the automobile, was injured.

Subsequently, Clark brought suit against Sharon and the Southern Railway Company. As a result of a settlement agreement, Clark recovered a joint and several verdict and judgment in the sum of 70,000 dollars against Sharon and the Railway Company. The Averill automobile was covered by a liability insurance policy written by Gulf Insurance Company. Gulf paid 10,000 dollars, the limit under its primary policy, into court. The remainder of the judgment, 60,000 dollars, was paid by Southern Railway.

Southern Railway brought this action against State Farm Mutual Automobile Insurance Company for statutory contribution, alleging that State Farm is liable under policies of insurance issued by it to Sharon’s father. Both parties moved the court below for summary judgment. The court granted Southern Railway’s motion and we affirm.

We note at the outset our approval of the district court’s holding that Southern Railway could maintain this action against State Farm. No useful purpose would be served by a lengthy discussion of that issue here in light of the district court’s opinion set out at 357 F.Supp. 810.

State Farm’s second defense to liability is more substantial. The insurance company admits that at the relevant time Sharon’s father, G. L. Santolla, was the insured under two insurance policies issued by State Farm, which provided “non-owned automobile” coverage, and it has abandoned' on this appeal its trial court contention that Sharon was not a member of her father’s household at the time of the accident. It contends, however, that Sharon was not covered by the policy while operating the Averill automobile because the vehicle was furnished to her for regular use. The district court ruled that the undisputed facts conclusively established that the Karman Ghia was not furnished Sharon for her regular use.

Under Georgia law, even where the basic facts are undisputed, as these are, the trier of fact is entitled to draw inferences or overall conclusions of fact as to whether the proof demonstrates “regular use.” See State Farm Mutual Automobile Insurance Company v. Bates, 107 Ga.App. 449, 130 S.E.2d 514 (1963); California Insurance Company v. Blumberg, 101 Ga.App. 587, 115 S.E.2d 266 (1960). Federal law compels the same result. Cf. Necaise v. Chrysler Corp., 335 F.2d 562 (5th Cir. 1964); United States v. Fewell, 255 F.2d 496 (5th Cir. 1958); Texas Company v. Savoie, 240 F.2d 674, rehearing denied, 242 F.2d 667 (5th Cir.), cert. denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51 (1957).

In this case the trial judge held that as a matter of law the undisputed evidence compelled the conclusion that the automobile was not furnished to Sharon for her regular use. It is unnecessary for this court to review the correctness of this decision, for in this non-jury case the judge was the trier of fact. There was ample evidence to support his decision construed as a factual determination. In Grace v. Hartford Accident & Indemnity Co., 324 F.Supp. 953 (N.D.Ga.), aff’d, 440 F.2d 411 (5th Cir. 1970), a district court judge learned in Georgia law found that an automobile provided by an employer for an employee’s virtually unrestricted usage for a period of time anticipated to span at least one month was not furnished for “regular use” within an identical sort of policy term. Moreover, Sharon’s entitlement to the car and her expectation of continued use were considerably more speculative and contingent than those of the employee in Grace. See also State Farm Mutual Automobile Insurance Co. v. Bates, supra; National-Ben Franklin Insurance Co. v. Prather, 109 Ga.App. 459, 136 S.E.2d 499 (1964).

Though it disagrees with the inferences and conclusions of the trial judge, State Farm has not demonstrated that there is any real dispute as to the evidentiary facts or that it has further or more probative evidence to present in this case which would call for this court to remand for a formal trial. In these circumstances a remand for a. hearing would be no more than a useless formality and a waste of judicial energy. Any error was harmless. F.R.Civ.P. 61.

Affirmed.

AINSWORTH, Circuit Judge

(dissenting) :

I respectfully dissent. In my view, the District Court committed error in denying the motion of appellant State Farm Mutual Automobile Insurance Company for summary judgment, and in granting the motion of appellee Southern Railway Company for summary judgment. On the basis of the undisputed facts which are set forth in the majority opinion, it appears as a matter of law that Sharon Santolla was furnished the 1958 Karman Ghia automobile for her regular use and was so engaged in that use at the time of the accident sued upon. Accordingly, there was no coverage by State Farm on its policy of liability insurance. The judgment should be reversed.

      . Contribution. — In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden, and one has paid more than his share, he shall be entitled to contribution from the others; and whenever the circumstances are such that an action at law will not give a complete remedy, equity may entertain jurisdiction.
      Ga.Code Ann. § 37-303 (1962).

      . The policy provides that:
      “non-owned automobile” means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative other than a temporary substitute automobile ;

      . A district judge’s determinations on questions involving the law of his state are entitled to great weight. Petersen v. Klos, 433 F.2d 911 (5th Cir. 1970).


author: HARRIS, District Judge:

text:
    Mickey M. JEFFRIES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 71-1480.
    United States Court of Appeals, Ninth Circuit.
    March 30, 1973.

      L. R. Bretz (argued), Bretz & Gabriel, Great Falls, Mont., for plaintiff-appellant.

      Otis L. Packwood, U. S. Atty. (argued), William A. Brolin, Asst. U. S. Atty., Butte, Mont., for defendant-appellee.
    Before KOELSCH and CARTER, Circuit Judges, and HARRIS, District Judge.

       The Honorable George B. Harris, Senior United States District Judge, Northern District of California, sitting by designation.

   HARRIS, District Judge:

Jeffries brought this Federal Tort Claims Act case for injuries sustained when he was hurt in a mining accident in Montana. Following trial, the district court judge found against Jeffries and in favor of the Government. Jeffries appeals.

The facts may be summarized as follows. The Government, in the course of the construction of a dam on the Kootenai River near Libby, Montana, found it necessary to escavate some seven miles of tunnel as part of the relocation of the Great Northern Railroad. Such work was begun in June, 1966.

In order to facilitate such excavation, the Government, through its Corps of Engineers, let a contract for construction to Walsh-Groves, a joint venture. The contract required, inter alia, that the contractor establish a safety program, comply with Corps of Engineers Safety Manual EM 385-1, and complete the work subject to inspection by Corps inspectors to insure compliance with the terms of the contract.

Jeffries was employed by Walsh-Groves as a miner. He worked on the crown deck (upper deck) of a multileveled movable scaffold called a “jumbo.” To accomplish the excavation, the jumbo would be moved to the face of the tunnel. Miners on the four levels of the jumbo would simultaneously drill holes into the face of the tunnel and load such holes with explosives. The jumbo would then be moved back, the loads fired, and the debris loosened by the blast removed and the operation repeated. After a blast and before drilling was resumed, the tunnel was inspected to determine if any loose rock remained in the crown or walls of the tunnel, and any rock so found was “barred down,” meaning that miners with steel bars pried out the loose rock.

On May 7, 1967, about a half hour prior to the end of his shift, Jeffries left his position at the face of the tunnel where he had been drilling in order to get some needed drill steel. At a point about twenty feet from the face of the tunnel a rock of substantial size and weight fell upon Jeffries.

On each shift a Corps safety inspector actually inspected the operations. He worked along with the Walsh-Groves employees and when he saw any dangerous practice he would give orders directly to the men to stop it. After each blast the inspector checked the crown for loose rock. On these inspections he was accompanied by one of the Walsh-Groves supervisory personnel. If the inspector thought there was a need to bar down loose rock, he would directly order the miners to do it. On the day in question Corps Inspector Trees had inspected the portion of the crown from which the rock fell, in the company of a Walsh-Groves supervisory employee. Neither the inspector nor the supervisory employee found a dangerous condition.

It was the practice in some sections of the tunnel, including the portion here in question, to place screens on the crown of the tunnel to prevent loose rock from falling. The screens were fastened by rock bolts which held them in place and also stabilized the crown. Screens had not been placed over that portion of the crown from which the damaging rock fell. Although there were contradictory accounts from the witnesses at trial, the district court judge found that no rock bolt had been drilled into the rock which fell.

Jeffries raises three specifications of error on appeal. The first concerns the Pre-Trial Order in the case. Prior to trial, the parties prepared a Pre-Trial Order which included certain stipulations of fact. It was presented to the district court judge, but he did not read or approve it at that time.

Following trial, it became apparent to the judge that certain of the stipulated facts no longer remained tenable in view of the evidence' adduced at trial. He thereupon entertained the motion of the Government to amend the Pre-Trial Order. Such motion was granted with respect to two amendments only, consisting of deletion of:

It was a duty of the Government Inspectors if they saw a dangerous condition to warn the man or men involved and/or their supervisor,

and deletion of:

At about this time Edgar R. Payne and Argol Drollinger had driven a rock bolt into a mud fault in the overhead.

The evidence revealed that the use of the word “duty” in the first sentence deleted was improper in that an obligation, rather than a legal duty, was what the judge found the Government owed. As to the second sentence deleted, the evidence was in conflict, but as noted above, the court made a specific finding contrary to the proposed stipulation.

Jeffries claims that the court should not have permitted such amendment after trial, although he makes no specific claims of prejudice and apparently was not hampered in the full presentation of his position at trial.

Rule 16 of the Federal Rules of Civil Procedure provides that a Pre-Trial Order when entered controls the subsequent course of the action “unless modified at the trial to prevent manifest injustice.”

Certainly under this standard a Pre-Trial Order is not an inexorable decree and may, under proper circumstances, be modified. See Phoenix Mut. Life Ins. Co. of Hartford, Conn. v. Flynn, 83 U.S.App.D.C. 381, 171 F.2d 982, 983 (1948); 3 Moore’s Federal Practice Para. 16.20 at 1136, 1138. The proper approach to be taken was outlined in Central Distributors, Inc. v. M. E. T., Inc., 403. F.2d 943, 945, 946 (5th Cir. 1968):

It has been suggested that proper treatment of the pre-trial order after entry requires an appropriate balance between firmness to preserve the essential integrity of the order, and adaptability to meet changed or newly discovered conditions or to respond to the special demands of justice. [Footnote omitted.]
* * * * * *
A stipulation of counsel originally designed to expedite a trial should not be rigidly adhered to when it becomes apparent that it may inflict manifest injustice upon one of the subscribers thereto. [Citation omitted.]

See also Washington Hospital Center v. Cheeks, 129 U.S.App.D.C. 339, 394 F.2d 964, 965-966 (1968).

We find that Jeffries was not prejudiced by the amendments here complained of and that they were properly granted to prevent manifest injustice.

Jeffries’ next specification of error concerns the claim that the United States should have been held liable here under the “Good Samaritan Doctrine”; because the Government gratuitously undertook to assume the duty of protecting those situated such as Jeffries from harm, it is liable for- its negligence in such undertaking.

The Good Samaritan Doctrine, which is recognized under the applicable law of Montana, is a theory of liability encompassed by the Federal Tort Claims Act. Roberson v. United States, 382 F.2d 714, 718 (9th Cir. 1967).

Roberson, the leading case on the issue now under consideration, distinguished the two forms of the Good Samaritan Doctrine as described in the Restatement of Torts, Second. Restatement of Torts, Second, § 323 provides for liability in the “two-person” situation. Restatement of Torts, Second, § 324A, the “three-person” section primarily relied on here, provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Under Roberson, supra at 721, the following elements are necessary to a claim under § 324A:

(1.) The actor, in this case the Government, must undertake, gratuitously or for consideration, to render services to another;
(2.) The services so rendered must be of a kind which the actor should recognize as necessary for the protection of third persons [in this case those situated like the plaintiff];
(3.) The actor must fail to exercise reasonable care in the performance of his undertaking;
(4.) The failure to exercise reasonable care must result in physical harm to the third persons or their things; and
(5.) The actor’s failure to exercise such care must (a) increase the risk of such harm, or (b) the undertaking must have been to perform a duty owed by the other to the third persons, or (c) the harm must be suffered because of the reliance of the other or the third persons upon the undertaking.

In Roberson, this Court held that the first element of the test had not been satisfied because by merely conducting a safety inspection program the Government was not undertaking a legal duty to render services. In Roberson, as here, the contract under which the Government had arranged for the contractor therein to build a dam obligated the contractor to provide for the safety of its employees and reserved to the Government the right of inspection. The contractor there was requested to comply with applicable safety regulations and the Government could inspect to insure compliance with such regulations. There, too, the Government utilized a safety management officer and assistants.

The district court here found Roberson to be fundamentally indistinguishable and thus controlling. That conclusion was correct.

In finding a failure of proof on the first element of the “three-person” Good Samaritan test, the Roberson Court relied upon the line of cases holding that the Government’s reservation of a right of inspection does not, without more, impose upon it a legal duty such as to render it liable for injuries suffered by the employees of its independent contractors. Numerous cases support the position taken in Roberson— and by the district court here — that reservation of such right of inspection or actual inspection, without more, does not subject the Government to liability. See, e. g., Lemley v. United States, 317 F.Supp. 350, 359-361 (N.D.W.Va.1970), affirmed, 455 F.2d 522 (4th Cir. 1971); Craghead v. United States, 423 F.2d 664, 666 (10th Cir. 1970); Irzuk v. United States, 412 F.2d 749, 751 (10th Cir. 1969); Gowdy v. United States, 412 F.2d 525, 529 (6th Cir. 1969), cert. den., 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 (1969), reh. den., 396 U.S. 1063, 90 S.Ct. 750, 24 L.Ed.2d 756 (1970); Wright v. United States, 404 F.2d 244, 247 (7th Cir. 1968); United States v. Page, 350 F.2d 28, 30-31 (10th Cir. 1965), cert. den., 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966); Kirk v. United States, 270 F.2d 110, 116-117 (9th Cir. 1959); Richardson v. United States, 251 F.Supp. 107, 111 (W.D.Tenn. 1966).

Jeffries tries to distinguish Roberson by the contention that there is here evidence that the Government assumed a duty for the benefit of third persons, namely the employees of Walsh-Groves, but the district court found to the contrary and such finding is not clearly erroneous. Although the Government may have had somewhat more direct control and supervisory power here than in Roberson, such influence also existed in other cases cited above wherein the Government was nevertheless held not liable. See Gowdy v. United States, supra; Wright v. United States, supra; Richardson v. United States, supra.

Jeffries’ third specification of error is predicated upon the extra-hazardous nature of the activity undertaken by the Government.

Jeffries recognizes that under Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Government cannot be liable without fault under the Federal Tort Claims Act simply by virtue of engaging in extrahaxardous activity. Rather, Jeffries’ theory is that the Government’s undertaking of such activity imposed upon it a non-delegable duty of due care.

The case law, however, does not support Jeffries’ position. There is substantial doubt as to whether the “nondelegable duty” theory is available under the Federal Tort Claims Act. See United States v. Page, supra, 350 F.2d at 33-34. Moreover, on the facts of this case, the applicable law of Montana would appear to deny recovery. See Ashcraft v. Montana Power Company, 480 P.2d 812, 813 (Mont.1971).

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellant, v. Jack ROBERTS et al., Appellees. UNITED STATES of America, Appellant, v. Charles Bishop SMITH et al., Appellees. UNITED STATES of America, Appellant, v. Jerome LEAVITT and Norman Shabas, Appellees. UNITED STATES of America, Appellee, v. Michael POSNER, Appellant.
    Nos. 72-1514, 72-1637, 72-1729 and 72-1799.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 11, 1973.
    Decided April 3, 1973.

      James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., John J. Robinson, Appellate Section, Crim.Div., U. S. Dept. of Justice, Washington, D. C., for United States.
    Gerald M. Werksman, William J. Stevens, Chicago, Ill., Thomas L. Robinson, Memphis, Tenn., Andrew A. Bucci, Providence, R. I., Michael B. Nash, J. Dillon Hoey, Barry J. Freeman, Nicholas M. Karzen, Jerome Rotenberg, Richard B. Caifano, Barry Goodman, Edward M. Genson, Richard H. Devine, Chicago, Ill., for Roberts, and others.
    Before SWYGERT, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.
   PER CURIAM.

These appeals involve the question whether motions to suppress the content of intercepted telephone communications should have been granted in these four cases. Numerous persons were indicted for conducting an illegal gambling business in violation of 18 U.S.C. § 1955 and making related interstate telephone calls in violation of 18 U.S.C. § 1952. The defendants filed motions to suppress evidence obtained by court-ordered wire interception. In part, the motions challenged the procedure used by the Department of Justice in authorizing the submission of the applications for the wire interception orders to the court. In Nos. 72-1514, 72-1637, and 72-1729, the motions to suppress were granted, and the Government appeals therefrom pursuant to 18 U.S.C. §§ 3731 and 2518 (10) (b). In No. 72-1799 the district court denied the motion to suppress, whereupon the defendant Michael Posner entered a plea of guilty, specifically reserving, however, the right to appeal the denial of his motion to suppress. This reservation of his right to appeal on a non-jurisdictional ground was made by agreement with the prosecutor and with the acquiescence of the trial court, and defendant Posner is now appealing pursuant to the reservation.

The applicable statute, 18 U.S.C. § 2516(1), provides in pertinent part that “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge” for an order authorizing the interception of oral or wire communications by the FBI in certain instances. In Nos. 72-1514 and 72-1637, Attorney General Mitchell did not authorize or designate an Assistant Attorney General to authorize these applications. The authorizations in question were made by Sol Lindenbaum, Executive Assistant to the Attorney General, who affixed the Attorney General’s initials as per the latter’s standing grant of authority to act when he was unavailable. Mr. Lindenbaum concluded from his “knowledge of the Attorney General’s actions on previous cases that he would approve the request if submitted to him.” For the reasons persuasively stated by Judge Sobeloff in United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), certiorari granted, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194, we conclude that the statute empowered only the Attorney General or a specially designated Assistant Attorney General — both of whom, in contradistinction to Mr. Lindenbaum, are subject to the political process of Senate confirmation — personally to authorize such applications.

When Mr. Lindenbaum initially authorized the applications, he affixed the Attorney General's initials to memoranda addressed to Assistant Attorney General Will Wilson, stating that “ [pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise those powers for the purpose of authorizing David M. Quinn to make the above-described application.” Mr. Wilson, however, did not personally authorize the application, but delegated to Deputy Assistant Attorneys General the authority to sign his name to letters of authorization for attorneys in the field. This is exactly what they did. Had the initial authorization of the application actually been made by the Attorney General (or a specially designated Assistant Attorney General), we would agree with the Government that the purported “special designation” of Mr. Will Wilson was really not the exercise of the alternative contemplated by the statute (the Attorney General never exercised this statutory prerogative) but a delegation to perform a ministerial function, which the Assistant Attorney General could subdelegate. Moreover, although the applications submitted to the trial judge identified Assistant Attorney General Will Wilson as the authorizing officer specially designated by the Attorney General, we would not be inclined to elevate form over substance to find a violation of 18 U.S.C. § 2518(1) (a) and (4) (d), requiring the identity of the authorizing officer be transmitted to the court if there had been an initially proper authorization. However, the fact is simply that in Nos. 72-1514 and 72-1637 there was no proper authorization at all; neither the Attorney General nor any Assistant Attorney General specially designated by the former authorized the wiretap applications. Therefore, the Government’s arguments against finding a violation are founded on a non-existent premise and are unavailing,

Finally, as in Giordano, supra, the Government argues that even if there were “technical errors in the procedure used,” the “drastic remedy of suppression of evidence” is unwarranted. Were it ours to decide whether or not judicially to fashion a rule of exclusion in this circumstance, we might agree with the Government. However, 18 U. 5. C. §§ 2515 and 2518(10)(a) are patently clear in expressing the Congressional judgment that these intercepted communications may not be received in evidence. United States v. Giordano, supra at 531. Therefore, the motions to suppress were properly granted in Nos. 72-1514 and 72-1637.

In No. 72-1729, the Attorney General personally approved the wiretap applications. However, Judge McMillen held that the wiretap evidence as to Leavitt and Shabas must be suppressed because the wiretaps were the progeny of the illegal wiretaps involved in No. 72-1637. We agree. 18 U.S.C. § 2515 provides that “no evidence derived” from any intercepted wire or oral communication “may be received in evidence in any trial * * * if disclosure of that information would be in violation of this chapter.” Implementing that Section, 18 U.S.C. § 2518(10) (a) provides that any aggrieved person may move to suppress “evidence derived” from an unlawfully intercepted communication, and if the motion is granted the contents of the wiretap “or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.” Taken together, these Sections required Judge McMillen to grant the motions of Leavitt and Shabas because the Government admitted that they were both overheard on the properly suppressed Smith wiretaps (in No. 72-1637) which prompted the wiretap applications in No. 72-1729. Once again, the basis for exclusion is the statutory mandate that evidence derived from an illegal wiretap be suppressed and not a judicially fashioned exclusionary rule or “fruit of the poisonous tree” doctrine arrived at by balancing the respective interests involved. While the statutory command may not be read to press the scope of suppression beyond that existing under present search and seizure law, the statute embodies the decision to suppress unlawfully obtained interceptions and evidence derived therefrom. We think it no unusual extension of the scope of suppression under existing law to conclude that the wiretap evidence in No. 72-1729 was derived from the Smith wiretap.

In No. 72-1799, involving Michael Posner, the last of the seven Detroit and Chicago wiretap orders was illegal because the interception authorization was signed by Mr. Lindenbaum instead of by the Attorney General or a specially designated Assistant Attorney General. The Government admits that some of the information supporting the first Chicago wiretap order application was obtained from the four Detroit court-authorized wiretaps. Three of those interception authorizations were signed by the Attorney General. The Government proved that the remaining one (dated April 3, 1970) was telephonically approved by the Attorney General; that satisfied Section 2516(1). Therefore, only the evidence obtained from the final Chicago wiretap was subject to suppression. The district court must now decide if the evidence obtained from the six legal orders supported the guilty plea of Posner apart from evidence obtained through the illegal order of June 5, 1970. If so, his conviction will stand.

Orders in Nos. 72-1514, 72-1637, and 72-1729 affirmed. In No. 72-1799 the judgment is reversed and remanded for further proceedings consistent herewith.

      . In No. 72-1799 the indictment was for a conspiracy to violate 18 U.S.C. § 1952.

      . In No. 72-1637, the notice of appeal was filed within 30 days of the district court’s denial of the Government’s motion to reconsider. The notice of appeal was timely filed. See United States v. Healy, 376 U.S. 75, 77-80, 84 S.Ct. 553, 11 L.Ed.2d 527.

      . The internal Justice Department procedure followed here is set forth in United States v. Pisacano, 459 F.2d 259, 263 (2d Cir. 1972), and United States v. Giordano, 469 F.2d 522, 525-526 (4th Cir. 1972), certiorari granted 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194.

      . See also United States v. Robinson, 468 F.2d 189 (5th Cir. 1972), remanded for an evidentiary hearing to determine whether the wiretap applications were properly authorized under 18 U.S.C. § 2516(1), 472 F.2d 973 (5th Cir. 1973; en banc); per contra, see United States v. Pisacano, 459 F.2d 259 (2d Cir. 1972); United States v. Becker, 461 F.2d 230, 235-236 (2d Cir. 1972).

      . United States v. Ceraso, 467 F.2d 647, 651 (3d Cir. 1972); United States v. Cox, 462 F.2d 1293, 1300 (8th Cir. 1972); United States v. Becker, 461 F.2d 230, 235 (2d Cir. 1972).

      . See cases cited in note 5, supra.

      . 18 U.S.C. § 2515 provides :
      “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”
      18 U.S.C. § 2518(10) (a) provides in pertinent part:
      “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
      “(i) the communication was unlawfully intercepted;
      “ (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.
      Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.”

      . We need not pass on the propriety of granting Shabas’ motion on the additional ground that he was not mentioned by name in either order authorizing the wiretaps. But see United States v. Kahn, 471 F.2d 191 (7th Cir. 1972).

      . Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), certiorari denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498, on which the Government relies, is not analogous. There the court properly held that testimony of an eyewitness to a crime need not be suppressed because the police had learned his identity from defendants during their illegal detention. Here Leavitt’s and Shabas’ private communications were invaded by wiretaps which emanated from the earlier illegal ones, and the contents of these communications were sought to be used against them. As then Judge Burger pointed out in Smith, even though the source of the witness’ identity was tainted, “[t]he fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.” Id. at 881-882 (footnotes omitted). However, overhearing Leavitt and Shabas on the unlawful wiretaps was not without evidentiary significance; indeed those interceptions gave rise to probable cause for the wiretaps order directly against those defendants. Moreover, the utterances of the defendants themselves cannot be equated with the testimony of an occurrence witness.

      . United States v. Pisacano, 459 F.2d 259, 263 (2d Cir. 1972).

      . Since the constitutionality of Title III of the Omnibus Crime Control Act was not raised below as a ground for suppression, we decline to consider it. See United States v. Wright, 466 F.2d 1256, 1259 (2d Cir. 1972).


author: MARIS, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Edwin RUSSELL, Jr., Appellant.
    No. 72-2031.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 29, 1973.
    Decided April 18, 1973.
    Russell B. Johnson, Christiansted, St. Croix, V. I., for appellant.
    Mary W. Mercer, Asst. Atty. Gen., Charlotte Amalie, V. I., for appellee.
    Before MARIS, VAN DUSEN and ROSENN; Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal by the defendant from a judgment of the District Court of the Virgin Islands, 9 V.I. 144, affirming, on appeal from the municipal court, his conviction in that court on a charge of aggravated assault and battery upon a police officer. The defendant asserted in the district court and asserts here that he was denied the right to a jury trial by the municipal court. Admittedly, he did not demand such a trial, a demand which, if made, would have required the transfer of the case to the district court for trial, since jury trials are not held in the municipal court.

The defendant was represented by counsel in the municipal court, as he has been in all later stages of the case. It seems clear from the record that his counsel and he were aware of his right to a jury trial since immediately after sentence his counsel moved for dismissal of the case on the ground that this right had been denied. As the district court said in its opinion on appeal (9 V.I. at p. 147), “This promptitude suggests, far more than a mere silent record would do, that the defense was at all times cognizant of its right to a jury trial upon demand.”

The defendant urged in the district court and urges here that the district court should have applied to his case the rule which it had announced in the case of Government of the Virgin Islands v. Osorio, 1971, 8 V.I. 596, which was also an appeal from the municipal court. In the Osorio case the district court held that it was the duty of the judge of the municipal court, in the kind of a criminal case in which the defendant would be entitled to demand a jury trial, to advise the defendant of his rights in that regard even though he was represented by counsel. The district court in the present case held that the rule of the Osorio case would not be applied retroactively here.

In Government of the Virgin Islands v. Parrott, 1973, V.I., 476 F.2d 1058, this court held that in order to obtain a jury trial in the Virgin Islands it is necessary for the defendant to make demand therefor as provided by section 26 of the Revised Organic Act and that only if the defendant is not represented by counsel is it necessary for the court to inform him of his right to a jury trial upon demand. When a member of the bar in good standing has been retained or appointed to represent the defendant, that lawyer may be relied upon by the court to inform his client of his rights. Indeed, this is one of the principal purposes of his retainer or appointment. In this regard we do not agree with the view taken by the district court in the Osorio case or with the rule announced in that case, except in those cases in which the defendant is not represented by counsel.

Rule 7 of the Rules Governing the Municipal Court provides that the practice and procedure in that court shall conform as nearly as may be to that in the district court in like causes, except where there is an express provision in the law or the rules to the contrary. A charge of a misdemeanor such as is here involved is a like cause since the district court has concurrent jurisdiction of it under sections 22 and 23 of the Revised Organic Act and 4 V.I.C. §§ 32, 74. The procedure of the district court in this connection is specified by its Rule 12 and is that the defendant must file a written demand for a jury not less than five days before the date set for the trial if he desires a jury trial. This requirement can be complied with by a defendant who is represented by counsel as readily in the municipal court as in the district court. If such a demand is filed in the municipal court the case must, of course, thereafter be transferred to the district court for trial since the municipal court is not presently authorized by law to conduct jury trials.

In the case before us the defendant, although represented by counsel, did not demand a jury trial as he was required to do if he desired such a trial. The court was, therefore, entitled to proceed on the assumption that he was satisfied with a trial by the judge of the municipal court. It follows that the municipal court did not err in denying the defendant’s motion, made immediately after sentence, to dismiss the proceedings for failure to grant him a jury trial and that the district court rightly affirmed the judgment of the municipal court.

The judgment of the district court will be affirmed.


author: PER CURIAM:

text:
    SCOTT-GROSS COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1680.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1973.
    Decided April 13, 1973.
    Samuel Milner, Lexington, Ky., Natalie S. Wilson, Eblen, Howard & Milner, Lexington, Ky., on brief, for petitioner.
    John M. Flynn, N. L. R. B., Peter G. Nash, General Counsel, Patrick Hardin, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Leonard M. Wagman, Stuart M. Rosenblum, Attys., N. L. R. B., Washington, D. C., on brief, for respondent.
    Before PECK, McCREE and MILLER, Circuit Judges.
   ORDER

PER CURIAM:

We consider the petition of Scott-Gross Company, Inc., to review and set aside an order of the National Labor Relations Board issued June 12, 1972 and reported at 197 NLRB No. 75. The Board has cross-applied for enforcement of the order.

The Board found that the company had violated Section 8(a)(1) of the Act by coercive interrogation, threats, promises of benefits and by compelling the writing of letters disavowing the union to coerce employees into abandoning the union. The Board also found violations of Section 8(a)(3) and (1) resulting from the laying off of four employees who had been active in an organization attempt. The Board also found that the company committed a further unfair labor practice by refusing to recognize and bargain with the union which had the support of a majority of the employees in what was determined to be an appropriate unit.

The Board ordered the company to cease and desist from continuing the unfair labor practices, to post appropriate notices and to bargain with the union.

The company concedes that there is evidence in the record to support the findings of 8(a)(1) and 8(a)(3) violations. It contends that there is no evidentiary basis for the finding of an 8(a) (5) violation and contends that the bargaining order should not have issued.

We conclude from our examination of the record that there is ample support for the finding of the 8(a)(5) violation and that the bargaining order is proper under the principles enunciated in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). We find no merit in the other issues presented by the company and determine that the petition to review will be denied and the order will be enforced.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Delmore DEATON, Defendant-Appellant.
    No. 72-3666
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    Maynard E. Cush, Shreveport, La. (Court-Appointed), for defendant-appellant.
    Donald E. Walter, U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

On direct appeal, this court affirmed Deaton's conviction for violation of 18 U.S.C. § 1072, but finding separate consecutive sentences on each count of the indictment to be multiplicitous, we remanded for resentencing. United States v. Deaton, 468 F.2d 541 (5th Cir. 1972). The appellant has now been resentenced to a single term of three years.

Deaton contends that the imposition of this sentence was improper because others involved in the same offense received lesser sentences. We reject this contention since the sentence is within the statutory limits and Deaton has demonstrated no abuse of judicial discretion which would entitle him to relief. See, e. g., United States v. Johnson, 476 F.2d 1257, 1258 (5th Cir. 1973); United States v. Bristol, 473 F.2d 439, 444-445 (5th Cir. 1973); Rodriguez v. United States, 394 F.2d 825 (5th Cir. 1968).

Deaton also asserts that the new sentence is in derogation of his constitutional rights because, had he been properly sentenced initially, he would have been eligible for parole consideration prior to the date of resentencing; whereas the initial improper sentence has precluded his application for such release up to now. The mere fact that at the time of resentencing the appellant had been in federal custody for more than one-third of maximum sentence possible on remand does not entitle him to immediate release. Thompkins v. U. S. Board of Parole, 427 F.2d 223 (5th Cir. 1970). Nor does the fact that he was erroneously barred from earlier consideration for parole entitle him, as a matter of law, to release before he has served the full sentence properly imposed on resentencing. Deaton’s eligibility for parole prior to the completion of the sentence now imposed must be determined by the Board of Parole under 18 U.S.C. § 4201-4203.

The judgment of the district court upon remand is affirmed.


author: CASTLE, Senior Circuit Judge. FAIRCHILD, Circuit Judge

text:
    PLAYSKOOL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. CHICAGO JOINT BOARD, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO and Retail, Wholesale and Department Store Union, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 72-1186, 72-1195.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 22, 1973.
    Decided March 16, 1973.
    Rehearing Denied in No. 72-1186 April 23, 1973.
    As amended April 25, 1973.

      Francis Heisler, Mark L. Schwartz-man, Robert C. Claus, John P. Jacoby, Chicago, Ill., for petitioner.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, John D. Burgoyne, Atty., N. L. R. B., Washington, D. C., for respondent.
    Before CASTLE, Senior Circuit Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.
   CASTLE, Senior Circuit Judge.

This case raises a much-litigated question as to the application and extension by the National Labor Relations Board of its Midwest Piping doctrine. The Board found that Playskool, Inc. violated § 8(a)(1) and (2) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(2) (1970) by recognizing the Retail, Wholesale and Department Store Union (RWDSU) when another union, the United Furniture Workers, was also seeking recognition for the same units of employees. The Board also found that RWDSU violated § 8(b)(1)(A) of the Act by accepting such exclusive recognition. On this appeal Playskool and RWDSU seek review of the Board’s order pursuant to § 10(f) of the NLRA; the Board has filed a cross-application for enforcement of its order, which is reported at 195 NLRB No. 89 (1971).

Since 1952, the United Furniture Workers of America have attempted to organize employees at certain Playskool plants in the Chicago area. On several occasions during this time, United has demanded that Playskool recognize it as the exclusive representative of these employees and has offered to demonstrate its majority support through a showing of authorization cards. Each time Playskool has insisted upon a Board-eon-ducted representation election instead of a card check, and each time United has lost the resulting election. The last such elections occurred in November and December, 1968, when United mustered 148 votes out of 494 eligible voters, approximately 29.9% of the total. Subsequent to this loss, United has engaged in continued organizational activity at Playskool’s Chicago plants, although the extent of both this activity and the company’s knowledge of it are disputed in this appeal. At the very least, United has confronted Playskool employees at their plant gates, solicited authorization cards, and held meetings.

The Retail, Wholesale and Department Stor Union instituted its own campaign to organize Playskool employees in March, 1969. Utilizing home visits, inside-the-plant campaigning, and organizers who spoke the native Spanish language of certain employees, this union solicited signed cards authorizing RWDSU to bargain on behalf of individual employees. In April, 1969, company supervisors learned of RWDSU’s campaign and decided that Playskool would not oppose that union because of its reputation as a “good union” that did not process many grievances or instigate many strikes. Later that month RWDSU requested Playskool to agree to a card check to verify its claim that it represented a majority of Playskool employees. After company approval, the Illinois Department of Labor’s Conciliation Service was requested to check RWDSU’s cards against a company-prepared list of employees’ names, clock numbers and addresses. On the basis of its examination the Conciliation Service announced that RWDSU had obtained valid authorization cards from at least 300 of the 500 employees listed. On May 2, the company and RWDSU executed a recognition agreement; they later agreed to the terms of a collective bargaining contract which contained union security provisions.

United filed a complaint against Playskool and RWDSU in June of 1969 which charged the two with violating the NLRA by executing a recognition agreement while United was also trying to obtain such recognition for the same employees. After hearing testimony and reviewing the evidence, the Trial Examiner issued his decision on June 22, 1971 which found no Midwest Piping violation. The Trial Examiner stated that § 8(a)(2) of the Act and the Midwest Piping doctrine could be violated only when an employer recognized one of two competing unions while the rival union raised a “question concerning representation,” and that such a “question” was established when the rival union demonstrated (1) that it had obtained a “substantial representation among the employees, normally amounting to 30%,” and (2) that it had demanded or requested recognition from the employer. Since United had met neither prerequisite, and since RWDSU had demonstrated that it represented an uncoerced majority of Playskool employees, the Trial Examiner concluded that United had not raised a “question concerning representation,” and that consequently Playskool was free to recognize RWDSU.

A panel of the National Labor Relations Board overruled the Trial Examiner and found that Playskool and RWDSU had violated the Act by their execution of a recognition agreement when United also sought to obtain recognition from Playskool. The panel disagreed with the Trial Examiner’s enumeration of the prerequisites that a rival union must meet to establish a “question concerning representation” and to preclude employer recognition of a competing union after a showing of authorization cards. The Board said:

the sole requirement necessary to raise a question concerning representation within the meaning of the Midwest Piping doctrine, as modified by the Board, is that the claim of the rival union must not be clearly unsupportable and lacking in substance.

The Board found that United had raised a question concerning representation by obtaining the required minimum of signatures to petition for an election in November and December of 1968, by polling 29.9% in the election, and by soliciting members after the election. The Board also concluded that the card check conducted by the Illinois Conciliation Service was not an “accurate barometer of the employees’ sentiments” because United had not participated in the card cheek and because some employees had evidently signed authorization cards for both RWDSU and United.

On this appeal Playskool and RWDSU challenge the findings of the Board on two grounds: (1) substantial evidence does not support its conclusion that United conducted an organization campaign among Playskool employees and notified the company of its continued interest in representing them prior to the execution of the recognition agreement with RWDSU, and (2) as a matter of law, Playskool and RWDSU did not violate the Act because United did not present a substantial representation claim. Our disposition of the second issue renders any decision on the first largely superfluous, for we find that Playskool did not violate the Act by its recognition of RWDSU after an impartial third party had certified that the union represented a majority of Playskool employees.

I. The Applicable Law

Section 8(a) (2) of the National Labor Relations Act, 29 U.S.C. § 158(a)(2) makes it an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization. . . ” A significant application of this statutory language occurred in Midwest Piping and Supply, Inc., 63 N.L.R.B. 1060 (1945), where each of two competing unions presented the employer with a claim that it represented the majority of his employees and each filed a petition for an N.L.R.B. election to determine the issue of majority support. Before the election could be held, one of the unions presented authorization cards to the employer which purportedly proved that the union represented a majority of his employees. The Board found that recognition of this union by the employer amounted to a breach of his duty of neutrality and constituted a violation of § 8(a) (2).

As the petitioners correctly represented at oral argument, the Board and the Circuit Courts of Appeals which have reviewed Board decisions have disagreed upon the application and extension of the Midwest Piping doctrine. The Board has held that this doctrine precludes recognition of any union upon the basis of a card showing when another union has raised a “question concerning representation.” The Board has not precisely defined the minimum amount of support a union must show to raise such a question, but it has held that an election between two competing unions must be held if the claim of the rival is “not clearly unsupportable and lacking in substance.” (See the Board decision in the instant case, reported at 195 N.L. R.B. No. 89.) Nor is it necessary for the rival union to present any claim to the employer that it currently has majority support, for the employer’s knowledge of organizing activity is apparently sufficient to raise the question.

The courts, on the other hand, have generally refused to find a violation of § 8(a)(2) where an employer has recognized one of two unions competing for exclusive recognition on the basis of a clear demonstration of majority support. N.L.R.B. v. Peter Paul, Inc., 467 F.2d 700 (9th Cir. 1972), Modine Manufacturing Co. v. N.L.R.B., 453 F.2d 292 (8th Cir. 1971), American Bread Co. v. N.L.R.B., 411 F.2d 147 (6th Cir. 1969), Iowa Beef Packers v. N.L.R.B., 331 F.2d 176 (8th Cir. 1964). The courts have reasoned that, in extending recognition to a union on such a showing, the employer has not “coerced or interfered with” the minority union, but has merely obeyed the duty imposed upon him to recognize the agent which his employees have designated. N.L.R.B. v. Indianapolis Newspapers, Inc., 210 F.2d 501, 503 (7th Cir. 1954). Thus, many decisions recognize that, however important the need to preserve the integrity of the Board’s election machinery, courts must protect the right of employees to select and bargain through their own representative without undue delay. Courts have also sought to implement the congressional purpose of promoting labor peace underlying the National Labor Relations Act, and have accepted a majority showing by the victorious union as a means of terminating the instability inherent in a representation contest and preventing a minority union from frustrating the majority will in order to gain campaigning time. N.L.R.B. v. Peter Paul, Inc., 467 F.2d at 702, N.L.R.B. v. Indianapolis Newspapers, Inc., 210 F.2d at 503, Getman, The Midwest Piping Doctrine: An Examination of the Need for a Reappraisal of Labor Board Dogma, 31 U.Chi.L.Rev. 292, 305 (1964).

The courts have, however, recognized exceptions to the right and duty of an employer to recognize one of two competing unions which has demonstrated its support by a majority of employees. Where it can be shown that a union’s majority support was due to unlawful coercion or deception, the courts have refused to accept the union’s majority status and have held that the employer’s recognition constituted a violation of § 8(a)(2). Oil Transport Co. v. N.L.R.B., 440 F.2d 664, 665 (5th Cir. 1971), N.L.R.B. v. Tower Iron Works, Inc., 366 F.2d 189, 191 (1st Cir. 1966), N.L.R.B. v. Air Master Corp., 339 F.2d 553, 557 (3d Cir. 1964).

On this appeal, the policy reasons of recognizing the free choice of employees and preserving labor peace lead us to adhere to the view of judicial decisions which have refused to find a violation of the Midwest Piping doctrine where one union has made a. valid demonstration of majority support among unrepresented employees. Accordingly, our first inquiry is whether RWDSU represented a majority of Playskool employees at the time it was recognized on May 2; our second inquiry is whether this majority was due to any unlawful activity on the part of Playskool or RWDSU.

II. The Evidence in the Record

The Board has argued that, even if this court should accept the view of previous circuit decisions that a convincing demonstration of majority status by one of two competing unions prior to recognition of that union precludes the finding of an 8(a)(2) violation, the evidence fails to show that RWDSU had the support of a majority of Playskool employees. It contends that (1) the union could not prove at the time of the Board hearing which cards it had given to the Illinois Conciliation Service and whether these cards were valid, and (2) authorization cards solicited in an inter-union representation contest are inherently unreliable because of the pressure upon employees to sign such cards for more than one union.

The recoi'd indicates that, pursuant to their agreement for a card check by the Illinois Conciliation Service, Playskool submitted a list of the names of 500 employees and RWDSU produced in excess of 300 authorization cards. On May 2, 1969 the Conciliation Service announced that RWDSU had proven its majority support through at least 300 valid cards. After this card check, the union commingled the cards with other undated cards at its offices. When the Board attempted to enforce a subpoena for these cards one year later, the union could only produce 347 cards which it believed that it had submitted to the Conciliation Service.

The Trial Examiner found that the General Counsel had the burden of showing that RWDSU did not in fact submit 300 valid cards to the Illinois Conciliation Service, and that he had not met this burden. Although the Trial Examiner found that some of the 347 cards had been backdated and that the signatures on others had been forged, he concluded that at least 296 of them were valid and that this number supported the earlier determination of RWDSU’s majority status by the Conciliation Service.

The Board found that the forgery of signatures and the commingling of cards after the card check made it “impossible to determine at this time whether or not the RWDSU did, in fact, represent a majority on May 2, when it was accorded recognition by Playskool.” These facts, together with its belief that authorization cards obtained during an inter-union campaign are unreliable, led it to conclude that the May 2 card check did not establish RWDSU’s majority status.

Our disagreement with the Board’s decision rests on legal and evidentiary grounds. There is no dispute that the Illinois Conciliation Service — an impartial body with some expertise in labor representation matters — certified to Playskool that RWDSU represented a majority of its employees on May 2, 1969. The record suggests no reason why Playskool should have doubted this finding at that time; nor did the Board cite any proof in its opinion that such a majority did not exist at that time. We believe that if the Board wished to establish that RWDSU had presented an insufficient number of valid cards on May 2, 1969 or that the cards were invalid because some RWDSU supporters had also signed United authorization cards, it had the burden of proving these facts. Modine Manufacturing Co. v. N.L.R.B., 453 F.2d 292, 296 (8th Cir. 1971); see also International Ladies Garment Workers Union v. N.L.R.B., 366 U.S. 731, 739-740, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961); Intalco Aluminum Corp. v. N.L.R.B., 417 F.2d 36 (9th Cir. 1969). But substantial evidence does not support the Board’s refusal to find that RWDSU had majority support from Playskool employees on May 2, 1969. No witness testified that RWDSU had less than 300 cards, and, despite some deficiencies in the list of employee names which the Trial Examiner found insubstantial, the Board has not contended that the company had significantly more than 500 employees. There is some evidence that both unions were guilty of forging and backdating authorization cards. We do not condone or accept such despicable conduct, and we recognize that evidence of such alteration should prevent any forged card from being counted for determining a union’s majority support. But substantial evidence does not support any conclusion or inference that a sufficient number of cards presented by RWDSU were altered or were signed by people who also signed United cards so that it appears that RWDSU represented less than a majority of Playskool employees when it entered into the recognition agreement on May 2, 1969. Accordingly, Playskool was justified in concluding that United was “no genuine contender” and that no real “question concerning representation” existed. St. Louis Independent Packing Co. v. N.L.R.B., 291 F. 2d 700, 704 (7th Cir. 1961), Cleaver-Brooks Mfg. Corp. v. N.L.R.B., 264 F.2d 637, 642 (7th Cir.), cert. denied, 361 U. S. 817, 80 S.Ct. 58, 4 L.Ed.2d 63 (1959), N.L.R.B. v. Indianapolis Newspapers, Inc., 210 F.2d 501, 503 (7th Cir. 1954).

The Board has also argued that, even if this court should find that RWDSU had possessed a card majority on May 2, 1969, Playskool’s recognition was invalid because of the partiality Playskool demonstrated toward RWDSU and the deception it practiced upon United. The record shows that Playskool had vigorously opposed United’s attempts to solicit support in prior years, but did not oppose RWDSU’s campaign. We find, as did the Trial Examiner, that Playskool was within its rights in engaging in such differential treatment and that § 8(c) of the Act allowed it some freedom in expressing its opinions about various unions to its employees. Coppus Engineering Corp. v. N.L.R.B., 240 F.2d 564, 571 (1st Cir. 1957). The record also shows that Playskool notified the Illinois Conciliation Service in arranging the card check that “no other union, at this time has claimed to represent” its employees. The Board argues that Playskool’s failure both to notify the Conciliation Service of United’s organizing activities and to insure United’s participation in the card check prevented “a reliable resolution of the two unions’ conflicting representation claims.” Although we agree that the better practice would have been to attempt to obtain United’s participation in the May 2 card check, we do not think United’s absence tainted Playskool’s recognition of RWDSU in this case. In telling the Conciliation Service that no union other than RWDSU had claimed to represent its employees at that time, Playskool was making a mere statement of fact, for United at that time had made no claim that it had either maintained or increased the 29.9% support it received in the 1968 elections. It is true that United could not obtain another Board-conducted election until November or December, 1969, and that it did not know whether Playskool would recognize RWDSU through an authorization card check. But these are the risks which United assumed by petitioning for the 1968 elections and which it could overcome only by attempting to obtain more authorization cards than RWDSU to prevent its recognition before another election could be held. We perceive in § 9(c)(3) a congressional attempt to reduce the instability inherent in labor campaigning by limiting the frequency of representation elections. The Board, however, is attempting to use § 9(c)(3) in this case as an excuse of United’s lethargy in securing authorization cards and for its failure to present a formal claim to Playskool that it wished to represent the company’s employees. In effect, the Board’s approach would prolong the instability of a campaign struggle between two unions in such a situation throughout the one year hiatus between elections until another election could be held. We decline to accept such a result and hold that Playskool was correct in signalling an end to the inter-union campaign by recognizing RWDSU on May 2, 1969. N.L.R.B. v. Indianapolis Newspapers, Inc., 210 F.2d 501, 503 (7th Cir. 1954).

We conclude, therefore, that Playskool and RWDSU were not guilty of interfering with the free choice of Playskool employees by execution of their recognition agreement, but were merely recognizing the employees’ choice of a bargaining representative. We deny enforcement of the Board’s order. Since the Board’s opinion did not reach the question of whether Playskool violated the proviso to § 8(a)(3) of the Act by not allowing newly-hired employees a 30-day period in which to join RWDSU, we remand this case to the Board for further consideration of this issue.

Enforcement denied.

FAIRCHILD, Circuit Judge

(dissenting).

With all respect, I am unable to excuse the employer’s failure to disclose to the Illinois Conciliation Service the substantial, and continuing interest of and support for United. Under the circumstances nondisclosure must have been purposeful. This impropriety colors and combines with the other ways in which the employer sought to smooth the path for the union it admittedly preferred. Together I think they support the conclusion that the employer unfairly contributed to and could not rely upon the attainment by the Retail Union of apparent majority status.

      . The Board found that at least one employee quit her job in order to avoid paying dues to RWDSU and held that the company violated section 8(a)(3) of the Act by threatening her with dismissal for failing to pay such dues. The Board reasoned that, since the recognition of RWDSU was illegal, any contract negotiated with RWDSU was also illegal. The propriety of the Board’s finding of the 8(a) (3) violation, then, depends upon whether the recognition of RWDSU was valid under the Midwest Piping doctrine.

      . The Board requires a showing of support by 30% of the employees in a bargaining unit to establish a “question of representation” for invoking Board election procedures pursuant to § 9 (c) (1) of the Act. But in-American Bread Co., 179 N.L.R.B. 85, 88 (1968), the Board intimated that the production of one authorization card by a rival union might be sufficient to raise a question concerning representation within the meaning of the Midwest Piping doctrine.

      . The courts, then, usually take a different initial approach than does the Board. The Board looks first to the support held by the minority union and finds a “question concerning representation” if the claim of that union is “not clearly unsupportable”; the courts look first to the support held by the majority union and find that no “question concerning representation” exists if that union has the validly-obtained support of an employee majority and the rival union is thus shown to be “no genuine contender.”

      . Among the 347 cards that RWDSU submitted in response to the subpoena, the Trial Examiner found that at least thirty-eight were signed after the card check had been conducted, four contained unauthorized signatures, and seven were mailed too late for the union to receive in time for the card check.

      . In Intalaco Aluminum, the Board sustained this burden of proof by establishing that the recognized union’s apparent card majority had been destroyed by employee defections. In the instant case the Board made no such attempt to attack the validity of the RWDSU card majority, even though it could compare the 296 cards which the Trial Examiner found were obtained by RWDSU prior to May 2, 1969 with the cards allegedly solicited by United.
      ■ We do not accept the Board’s reading of St. Louis Independent Packing Co. v. N.L.R.B., 291 F.2d 700 (7th Cir. 1961), to place the burden of proof upon the employer to show that the union be recognized had majority support once the Board has proven that a “question concerning representation” existed. St. Louis Packing involved a different factual situation where an employer continued to recognize an incumbent union that had made no acceptable showing of current support when an outside union had successfully petitioned for a Board-conducted election.
      We express no opinion in this case whether every extension of recognition to a union on the basis of a valid, uncoerced majority showing will preclude the finding of a § 8(a)(2) violation, no matter what support the minority union has obtained. Different factual, legal and policy considerations may be involved in such cases.

      . Petitioners argue persuasively in their brief that of the more than 100 cards which United presented to the Board to demonstrate its support among Playskool employees, more than half were suspect because they contained altered dates, forged signatures, and erroneous corroborating information.

      . Section 9 (c) (3) of the Act provides:
      No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held. Whenever United had offered to prove its majority support through a showing of authorization cards prior to the 1968 elections, Playskool had refused the offer and had insisted on a Board-conducted election. . . .