author: FAHY, Senior Circuit Judge:

text:
    BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRICKLAYERS, STONE MASONS, MARBLE MASONS, TILE SETTERS AND TERRAZZO WORKERS, LOCAL UNION NO. 1 OF TENNESSEE.
    Nos. 72-1117, 72-1254.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 1, 1972.
    Decided March 1, 1973.

      Laurence Gold, Washington, D. C., for petitioner in No. 72-1117 and respondent in No. 72-1254. J. Albert Woll, Washington, D. C., also entered an appearance for petitioner in No. 72-1117 and respondent in No. 72-1254.
    Avrum M. Goldberg, Atty., National Labor Relations Board, with whom Marcel Mallet-Prevost, Asst. General Counsel, and Joseph E. Mayer, Atty., National Labor Relations" Board wére on the brief for petitioner in No. 72-1254 and respondent in No. 72-1117.
    Before FAHY, Senior Circuit Judge, and WRIGHT and WILKEY, Circuit Judges.
   FAHY, Senior Circuit Judge:

A jurisdictional dispute arose between the tile setters and bricklayers of a local union, the Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee, an affiliate of the Bricklayers, Masons and Plasterers International Union of America (hereinafter referred to as the Unions). The dispute concerned the right to install acid proof paver floors for the Shelby Marble & Tile Co., a contractor employed in construction at the Joseph Schlitz Brewing Co., Memphis, Tennessee.

The employer, Shelby, filed an unfair labor practice charge under the National Labor Relations Act, as amended, 29 U. S.C. § 151 et seq. (1970), that the Unions had violated section 8(b)(4)(ii)(D) of the Act by engaging in prohibited activity with an object of forcing or requiring Shelby to assign the work to the bricklayers rather than to the tile setters. Shelby had assigned the work to the latter.

The Board first initiated a proceeding to resolve the jurisdictional dispute, as required by section 10 (k) of the Act. Upon the basis of the evidence adduced at the hearing the Board itself, without a recommended decision by the Trial Examiner, which was requested by the Unions, decided the jurisdictional dispute in favor of the tile setters. The prohibited activity continuing an unfair labor practice complaint was issued against the Unions. Since no additional evidence was sought to be introduced respecting the prohibited activity the Board granted its General Counsel’s motion for summary judgment that the Unions were in violation of section 8(b) (4) (ii) (D) of the Act “by attempting to force or require the Employer to assign the work ... to bricklayers . . . .” An appropriate cease and desist and notice-posting order was issued. The Board petitions under section 10(e) of the Act for enforcement of its order and the Unions petition under section 10(f) for its review. We grant the petition of the Board.

I

The Unions contend that the Board erred in deciding the jurisdictional dispute without a recommended decision of the Trial Examiner who received the evidence at the section 10 (k) hearing. With certain stated exceptions the Administrative Procedure Act (A.P.A.) requires such a recommended decision “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . .”, 5 U.S.C. § 554(a), “[w]hen the agency makes the decision without having presided at the reception of the evidence . ...” 5 U.S.C. § 557(b). An adjudication is defined as “agency process for the formulation of an order,” 5 U.S.C. § 551(7).

From the foregoing it appears that, except as to certain rules not now relevant, only if a section 10 (k) determination is an adjudication within the meaning of section 554 would a recommended decision have been required. We hold that a determination in a section 10 (k) proceeding is not an adjudication within the meaning of 5 U.S.C. § 554. The term, it is true, is used ordinarily in contrast to “rulemaking”:

“Adjudication” has not been defined generally in statutes, except by implication or reference to particular subjects and orders. However, since there are only two basic types of administrative justice — rulemaking and adjudication — the words “other than rulemaking” serve to make the essential distinction.

Nevertheless, it does not encompass all forms of agency action other than rule-making. If the action in question does not lead to a “final disposition” by the agency, it may not be an adjudication. Moreover, while there is an explicit exclusion of a “certification of worker representatives” from the requirement of a recommended decision, indicating that otherwise it might be considered an adjudication, this exclusion may have been due simply to recognition that such certifications, which “rest so largely upon an election or availability of an election,” had previously been held by the Supreme Court not to be adjudicatory like a final order of the Board in an unfair labor practice proceeding. American Federation of Labor v. NLRB, 308 U.S. 401, 408-412, 60 S.Ct. 300, 84 L.Ed. 347 (1940). That decision it is true was only that a certification of representatives was not an “order” reviewable under the particular statutory scheme of the Labor Act, but it nevertheless has some relevance to our problem because of the similarity between the nature of a section 9 representation proceeding and a proceeding under section 10(k). An intermediate report by the examiner is not required in the former for reasons applicable to the latter:

The need for intermediate reports, to the extent that they provide a method for obtaining the judgment of the trial examiner on issues of fact dependent for their resolution upon the demeanor of witnesses, is rarely present in a representation proceeding. The evidentiary material relates to economic facts such as the nature of the employer’s business, the duties of certain employees, and the history of collective bargaining in the plant. Issues of credibility are rarely present.

For comparable reasons the Board adopted the same practice in section 10 (k) hearings shortly after that section followed section 9 into the Act, subsequent tó the enactment of the A.P.A.:

The Board adopted such procedure because the decision in the proceedings under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved. It is to the subsequent adversary hearing, which leads to a final Board adjudication, that Section 8 [section 557] of the Administrative Procedure Act applies.

National Union of Marine Cooks and Stewards (Irwin Lyons Lumber Co.), 83 N.L.R.B. 341 (1949).

In NLRB v. Plasterers’ Union No. 79, 404 U.S. 116, 122, n. 10, 92 S.Ct. 360, 365, 30 L.Ed.2d 312 (1971) the Supreme Court appraised section 10 (k) in like manner:

The § 10(k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10 (k) decision, the Board must prove the union guilty of a § 8(b)(4)(D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later § 8(b)(4)(D) determination. 'International Typographical Union, 125 N.L.R.B. 759, 761 (1959). Both parties may put in new evidence at the § 8(b)(4)(D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10 (k) hearing as a basis for the Board’s determination of the unfair labor practice. Finally, to exercise its powers under § 10 (k), the Board need only find that there is reasonable cause to believe that a § 8(b)(4)(D) violation has occurred, while in the § 8(b)(4)(D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, 125 N. L.R.B. 759, 761, n. 5 (1959).

The non-adjudicatory character of the section 10 (k) determination is indicated by the relationship between a jurisdictional dispute, a decision with respect to it, and the relevant section 8(b) (4)(ii)(D) unfair labor practice. The threat to or coercion of the employer which gives rise to the charge of the unfair labor practice is sought by Congress through section 10 (k) to be ended so that the work can proceed. Voluntary settlement is encouraged. If this does not eventuate, hope remains that the ensuing determination of the dispute by the Board will solve the matter. If it is accepted by the union which has been charged with violating section 8 (b) (4) (ii) (D), no unfair labor practice complaint issues against the union. Though acceptance of the Board’s solution is not required, it is persuasively encouraged because, otherwise, a complaint does issue. Then the question is whether the prohibited conduct has continued, not whether the Board’s determination is complied with.

The Supreme Court has explained the matter as follows:

But the § 10 (k) decision standing alone, binds no one. No cease-and-desist order against either union or employer results from such a proceeding; the impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer’s § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work .are legally bound to observe the § 10 (k) decision, but both will losé their § 8(b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board’s decision. This is the design of the Act; Congress provided no other way to implement the Board’s § 10(k) decision. (Footnote omitted.)

NLRB v. Plasterers’ Union No. 79, supra, 404 U.S. 126-127, 92 S.Ct. at 367.

The scheme for and consequence of a section 10(k) hearing thus are not adjudicatory, notwithstanding that in reaching its determination the Board resolves a factual issué. That may be the case also in a section 9 representation proceeding but would not for that reason require an intermediate report of the hearing officer, even were such a certification not explicitly excepted from section 554 of the A.P.A.

The Unions point out that the protections of the A.P.A. are to be given generous scope, with limitations not lightly to be implied, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 139-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Court was concerned there with access to the courts for judicial review of final agency action, as to which the Court said, “a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” 387 U.S. at 140, 87 S.Ct. at 1511. This does not help the Unions. Other considerations bear upon our present problem of statutory construction. In the first place there is need,, obviously, for as expeditious a resolution of the jurisdictional dispute as is reasonably possible. We must also give consideration to the deep-seated concern Congress had with delays caused by judicial intervention in representation cases in pre-Wagner Act days. See American Federation of Labor v. NLRB, supra. Furthermore, we are faced with an unusually impressive administrative interpretation supporting the conclusion we reach, first adopted by the Board as long ago as 1949 in National Union of Maritime Cooks and Stewards (Irwin Lyons Lumber Co.), supra, repeated in 1959 in Local 8, Longshoremen (General Ore, Inc.), 124 N.L.R.B. 626, and until now, we believe, not questioned by courts or Congress. This interpretation of section 10 (k) by the Board is entitled to great weight. United States v. American Trucking Assns., Inc., 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933). Cf. United States v. Florida East Coast Ry. Co., supra, 410 U.S. 224, 236, n. 6, and dissenting opinion at 246, 93 S.Ct. 810, 35 L.Ed.2d 223. It is noteworthy also that in neither NLRB v. Plasterers’ Union, No. 79, supra, nor NLRB v. Radio & Television Broadcast Engineers Union No. 1212, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961), was there a hearing officer’s recommended decision in the section 10 (k) proceedings there involved, although, we must add, no question in that respect was raised.

It can well be argued that the result of the section 10 (k) hearing has so formidable a bearing upon the unfair labor practice which might ensue that an intermediate finding of the hearing officer should be required, especially where, as here, in concluding that the parties had not agreed to a voluntary means of settlement which would, have precluded a Board determination of the dispute, credibility of the witnesses was a factor. Nevertheless, unless the A.P.A. so required, a trial examiner’s recommended decision was not essential, for the Constitution did not mandate it as a condition to the resolution of the factual issue by the Board. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938); Morgan v. United States, (Morgan II), 304 U.S. 1, at 26, 58 S.Ct. 773, 82 L.Ed. 1129 (1938). In its discretion we doubt not the Board could require such a procedure, but if so we would find no abuse of discretion in the present case. Cf., United States v. Florida East Coast Ry. Co., supra, 410 U.S. 224, 236, n. 6, 93 S.Ct. 810, 35 L.Ed.2d 223.

II

We have reviewed the conflicting evidence as to whether all parties had agreed to a means of voluntary settlement of the jurisdictional dispute. This issue having been raised, its resolution by the Board was ancillary to the exercise of its power to determine the jurisdictional dispute under section 10(k). The evidence is not so clear one way or the other that the court should substitute a judgment of its own rather than accept the conclusion reached by the Board; and the need for the Board to resolve that issue in order to go further under section 10 (k) did not change the character of the proceedings so as to bring them within section 554 of the A.P.A. as being adjudicatory. Their non-adjudicatory character is drawn from their over-all purpose and effect, rather than from the need for the resolution of such a factual issue in a particular case.

III

When, as at present, the section 10 (k) determination does not end the matter and an unfair labor practice complaint issues, the proceedings become adjudicatory. Should a factual issue be involved as to the unfair labor practice, the usual intermediate decision of the Trial Examiner would be required under the,A.P.A., section 554(c)(2). Here, however, the prohibited conduct constituting the unfair labor practice was not denied. The only factual dispute was whether thére had been an agreed method of settlement. This had been resolved by the Board in the section 10(k) proceedings. To relitigate it, as the Unions sought, would not have been consistent with the plan of the statute. Nor does that plan require the Board, after the unfair labor practice complaint has issued, to require the evidence upon which it has rendered its section 10 (k) decision to be reconsidered by a Trial Examiner who would then recommend a decision.

The question whether there was a voluntary agreement on a method of settlement having been resolved by the Board in the section 10 (k) proceeding, the Board’s resolution remained subject only to judicial review, unless there were occasion for the Board to open the matter for reconsideration. Such an occasion did not here arise beyond consideration of the May 18 letter, a matter disposed of in Part IV of this opinion. Accordingly, we do not fault the Board in granting its General Counsel’s motion for summary judgment, for, as above stated, our review léads to no basis for upsetting the resolution by the Board of the voluntary settlement issue.

IV

An additional matter is considered.

When the Board made its section 10 (k) decision a timely petition for rehearing was filed by the Unions, and, also, a motion to supplement the record. This motion included a request that a letter from the Company to the International Executive Board of the Union be admitted in evidence. The purport of the motion was that the letter supported the Unions’ position that Shelby had agreed to a voluntary means of settlement of the dispute by the hierarchy of the International. In denying the petition for rehearing the Board also denied the Unions’ motion to admit the letter, on the ground it was not newly discovered or had been unavailable at the previous hearing. We are inclined to agree with Chairman Miller in his dissent from the Board’s refusal to supplement the record by admitting the letter; but, in its ruling to the contrary the Board also stated that this “supplemental exhibit does not, in our opinion, either expressly or impliedly authorize Respondent International to make a binding settlement of the dispute.” It seems to us that this clearly demonstrates that the Board considered the letter, and decided it made no difference in its determination of the issue of voluntary agreement to settle, a determination which as we have stated we do not feel justified in overruling. If there were error in not admitting the letter, the requirement that “due account shall be taken of the rule of prejudicial error,” 5 U.S.C. § 706, we think precludes granting of the Unions’ present petition.

The order of the Board is enforced and the petition of the Unions is denied.

      . 29 U.S.C. § 158(b) (4) (ii)CD), which provides as follows:
      (b) It shall be an unfair labor practice for a labor organization or its agents—
      (4) (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
      (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work:

      . 29 U.S.C. § 160 (k), which provides as follows:
      Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.

      . I. e., rules “required by statute to be made on the record after opportunity for an agency hearing . . . . ” 5 U.S.C. § 553(c).

      . In case of adjudication sections 556 and 557 are to be complied with. 5 U.S.C. § 554(e)(2).

      . Senate Judiciary Comm., The A.P.A. Legislative History, Sen.Doc. No. 248, 79th Cong., 2d Sess., at 14 (1946) (hereinafter cited as The A.P.A. Legislative History). See also, United States v. Florida East Coast Ry. Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973).

      . The A.P.A. Legislative History, at 14, 197 and 254.

      . 5 U.S.C. § 554(a)(6). The Senate Report in reference to the exceptions specified in 5 U.S.C. § 554 stated the following :
      It should be noted that these exceptions apply only “to the extent” that the excepted subject is involved and, it may be added, only to the extent that such subjects are directly involved.
      The A.P.A. Legislative History, at 202.

      . The A.P.A. Legislative History, at 202 and 261.

      . The A.P.A. was originally enacted in 1946. Act of June 11, 1946, ch. 324, 60 Stat. 237.

      . Accord, NLRB v. International Brotherhood of Electrical Workers, 308 U.S. 413, 60 S.Ct. 306, 84 L.Ed. 354 (1940).

      . The Attorney General’s Committee on Administrative Procedure in Government Agencies, Monograph No. 5, S.Doc. No. 10, 77th Cong., 1st Sess., Pt. 5, at 35, n. 144 (1941).
      However, if an unfair labor practice charge is raised in a representation hearing, it was the practice of the Board separately to dispose of such charge in adjudicatory proceedings prior to the determination of the representation issues. Id. at 33-34. Unfair labor practice proceedings required intermediate reports by the examiners. Id. at 21.

      . Section 10 (k) was added to the statute by the Act of June 23, 1947, ch. 120, 61 Stat. 149, approximately one year after the A.P.A. was enacted. See, note 9, supra.

      . In NLRB v. Radio & Television Broadcast Engineers Union No. 1212, supra, there was a section 8(b) (4) (ii) (D) hearing, with an intermediate report by the examiner. 121 N.L.R.B. 1207, 1209-1213 (1958).

      . Though in employee representation eases there is sometimes, though not often, a credibility issue, Congress has not for that reason required a recommended decision of the hearing officer. See text and note 11 at p. 1319, supra.

      . See, note 2, supra.

      . The letter reads as follows:
      Shelby Marble & Tile Co.
      May 18, 1970
      Mr. Thomas F. Murphy, President
      B.M.P.I.U. of A.
      815 Fifteenth Street, N. W.
      Washington, D. C. 20005
      Re: Schlitz Brewery — Plant #11 Memphis, Tennessee

        Dear Mr. Murphy,
      We will greatly appreciate anything you and the Executive Board are able to do to keep the installation of acid proof paving tile in the hands of the tile setters. We sincerely feel after reviewing the installation specification and the Union Constitution and By-Laws that this is, in this instance, tile setter’s work.
      Further, the tile-setters in this area need this work, badly and we in turn need them to do this work for us.
      Very truly yours,
      SHELBY MARBLE & TILE COMPANY
      /S/
      Charles A. Price, Vice President
      CAP :hp


source: Caselaw Access Project

author: PER CURIAM;

license: Public Domain

text:
    Andrew KENNY, et al., Appellants, v. Robert E. HAMPTON, Chairman, United States Civil Service Commission, et al.
    No. 71-1290.
    United States Court of Appeals, District of Columbia Circuit.
    March 15, 1973.
    Rehearing Denied May 21, 1973.

      William G. Polking, Carroll, Iowa, was on the brief for appellants.
    Daniel Reiss, Jr. and L. Chris Lam-pros, Washington, D. C., were on the supplemental memorandum for appellants.
    Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry, Ellen Lee Park, and James A. Adams, Asst. U. S. Attys., were on the brief for appellees.
    Before MeGOWAN, LEVENTHAL and WILKEY, Circuit Judges.
   PER CURIAM;

Appellants are three former federal employees who, prior to October 1, 1956, voluntarily left the civil service before reaching the age of sixty-two. Each having spent more than five but less than twenty years in creditable service, the Civil Service Retirement Act of 1930 (Act) then entitled them to elect to receive either (1) a present lump sum settlement or (2) a deferred annuity beginning at age sixty-two. Each elected to receive the deferred annuity. In 1958 and 1965 Congress enacted cost-of-living annuity increases, amending the Act to adjust certain civil service annuities based on service terminated prior to October 1, 1956. The Civil Service Commission refused in part to pay these increases to appellants. Challenging these denials, appellants sued in the District Court for declaratory and injunctive relief. We affirm the trial court’s dismissal of the complaint after it considered the parties’ cross-motions for summary judgment and granted that of the Government.

The 1958 increase provided in relevant part :

1. That
(a) the annuity of each retired employee . . . who, on August 1, 1958, is receiving or entitled to receive an annuity . . . based on service which terminated prior to October 1, 1956, shall be increased by 10 per centum
(b) The annuity otherwise payable . to (1) each survivor who on August 1, 1958, is receiving or entitled to receive an annuity based on service which terminated prior to October 1, 1956 . . . shall be increased by 10 per centum.
3. (a) An increase in annuity provided by subsection (a), or clause (1) of subsection (b), of the first section of this Act shall take effect on August 1, 1958.

Act of Jun. 25, 1958, Pub.L. No. 85-465, 72 Stat. 218 (emphasis added).

Appellants as retired employees seek to bring themselves within the terms of Section 1(a) of the increase by alternative arguments. Specifically, they assert either (1) that out of the class of all retired employees whose service terminated prior to October 1, 1956, to deny the annuity increase only to those whose deferred annuities commence after August 1, 1958 amounts to an unconstitutional discrimination, or (2) that the interpretation of “entitled to receive an annuity” as rendered by the Court of Claims with regard to Section 1(b)(1) of the increase, Hurtt v. United States, 309 F.2d 404, 159 Ct.Cl. 126 (1962), be extended to Section 1(a). We think that, contrary to appellants’ contentions, there is a rational basis for distinguishing between both those whose annuities commence before and after August 1, 1958, and annuitants covered by Sections 1(a) and 1(b)(1).

Appellants assert that, although each of their deferred annuities were to begin subsequent to August 1, 1958 — after which date they became sixty-two, see note 1 supra — they were still “entitled” to those annuities on the specified date, and thus were qualified for the Section 1(a) increase. The Court of Claims ruled on this same question in Schellfeffer v. United States, 343 F.2d 936, 170 Ct.Cl. 178 (1965), finding inter alia that the legislative history of the increase reflected a Congressional intent that the coverage of Section 1(a) “be confined to annuitants already on the rolls (i. e., actually receiving an annuity or fully entitled to an immediate annuity) on August 1, 1958. ...” 343 F.2d at 940.

The basis for this coverage limitation was to deter federal employees from separating from the service voluntarily before age sixty-two by insuring that those who did so separate would not benefit by annuity increases put into effect before they reached that age. We think the objective was a legitimate one, and the limitation reasonably calculated to achieve it. It was thought that those who voluntarily separate before age sixty-two would probably do so to realize more lucrative employment, which might also entitle them to Social Security benefits in addition to their Civil Service annuity. That some who so separated might not be as comfortably situated as was contemplated does not affect the validity of the view that the ordinary circumstances of such a separation would appear to mitigate the economic consequences of the coverage limitation. The Commission’s interpretation of the statute’s compass, supported by the Court of Claims and the Congress,

cannot necessarily be charged with unreasonableness because in particular applications the . . . general interpretations may grind with a rough edge.

Gulf Oil Corp. v. Hickel, 140 U.S.App.D.C. 368, 435 F.2d 440, 447 (1970) (Leventhal, J.).

Appellants’ alternative claim fares no better. Section 1(a) by its terms applies to “retired employees” while Section 1(b)(1) applies to “survivors.” It was in the latter context that Hurtt, supra, decided that a widow of a federal employee was “entitled to receive an annuity on August 1, 1958” even though her annuity would not commence until after that date. Appellants are differently situated in that Mrs. Hurtt’s right to annuity payments was based on an involuntary termination of federal service (her husband’s death). The deterrence rationale for the coverage limitation of Section 1(a) as to those who may consider voluntary separation is thus inapplicable to Section 1(b)(1) survivors such as Mrs. Hurtt. Appellants cannot therefore bring themselves within the rationally more generous embrace of the latter increase provision.

Appellants’ objection to the Commission’s refusal to grant them.the maximum benefit under the 1965 increase is not clear. That increase provides in relevant part:

(a) Effective December 1, 1965, each annuity . . . having a commencing date before December 2, 1965 is increased by—
(1) The percent rise in the price index . . . plus
(2) 6% percent if the commencing date . . . occurred before October 2 1956.

5 U.S.C. § 8340 (1970) (emphasis added). The use of the phrase “commencing date,” see note 2 supra, eliminates the potential ambiguity of the “entitled to receive” language found in the 1958 increase. Appellant Dolan could not benefit from the 1965 increase at all because her annuity commenced after December 1, 1965. Appellants Kenny and Fox could not realize the 6% percent increase because their annuities began after October 2, 1956, although they do benefit from the price index increase. We see ho infirmity in the distinctions clearly drawn by the 1965 increase.

The order of the District Court is

Affirmed.

      . Appellant Kenny attained that age in November, 1961; appellant Fox in May, 1959; and appellant Dolan in January, 1967.

      . Our decision on the merits of this appeal pretermits the question whether the action was properly brought in the District Court. And our affirmance makes it unnecessary to decide whether some of the appellants failed to exhaust their administrative remedies; or whether one or more of the appellants may be properly certified as a representative of the class of annuitants similarly situated.

      . Shortly after the decision in Schellfeffer Congress enacted a clarification of the terms at issue which confirmed the court’s interpretation of them:
      [F]or the purposes of section 1(a) . the words “entitled to receive an annuity” shall, from and after the . effective [date of the annuity increase] . . . not include any person whose annuity commencing date occurs after the effective date of the annuity increase.
      Act of May 1, 1965, Pub.L. No. 89-17, 79 Stat. 109 (emphasis added).

      . Neither does the Commission’s denial of increased payments based on this interpretation constitute rule-making requiring, as appellants claim, concomitant rule-making procedures. 5 U.S.C. § 553(b) (A) (1970). And, with respect to appellants’ attack on the District Court’s denial of their application for a three-judge court under 28 U.S.C. § 2282 (1970), our analysis supports the view of the trial judge that their challenge to the statutory scheme failed to raise the substantial constitutional issue deemed necessary to support such applications. Green v. Board of Elections, 380 F.2d 445, 448 (2d Cir. 1967) (Friendly, J.), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968).


author: PER CURIAM:

text:
    UNITED STATES of America v. Robert A. RICKS, Appellant.
    No. 72-1363.
    United States Court of Appeals, District of Columbia Circuit.
    March 19, 1973.
    As Amended March 19, 1973.

      Joseph D. Gelb, Washington, D. C. (appointed by this court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, Brian W. Shaughnessy, and Paul L. Friedman, Asst. U. S. Attys., were on the brief for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and MaeKINNON, Circuit Judges.
   PER CURIAM:

Prior to the jury verdict in this criminal case one of the jurors was excused because of the death of her father and the trial, with the approval of the defendant and his counsel, proceeded to verdict. The alternate jurors had already been dismissed.

Actually, the defendant and his counsel stipulated in open court to the continuance of the trial with the remaining 11 jurors. When the situation arose the following took place:

THE COURT: What is your recommendation?
MR. SHAUGHNESSY [the prosecutor] : Well, my suggestion is that we go forward with the rest. However, that must be favorable to the defendant.
MR. MATONIS [defense counsel]: Let me discuss that with the defendant.
My client has arrived at the decision that we should go ahead with the other 11 jurors.
THE COURT: Very well. You understand that, Mr. Ricks, and you are willing to go forward with the jurors?
THE DEFENDANT: Yes.
(Jury entered the courtroom) 10:16 a. m.
THE COURT: Ladies and Gentlemen, I am sorry about the delay, but it takes time to get all of the parties together. I do not know if you have been informed, but Juror No. 10, Mrs. Edna Davis, had a death in her family. Her father died, and for that reason she is obviously not here this morning. It has been agreed by both sides that you will go forward in your deliberations with 11. The same instructions remain in effect. Your verdict must be unanimous. You will at this time resume your deliberations.
(Jury out at 10:18 a. m.)
(At 10:57 a. m. the jury entered the courtroom with the verdict of guilty as to counts one, three and four.)
(The jury was polled and all concurred in the verdict.) (Copeland Tr. 2-3.)

Government br., p. 4.

Fed.R.Crim.P. 23(b) provides:

(b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.

The difficulty arises because the stipulation was not in writing. However, we see no resulting prejudice to defendant of which he can complain. He entered into the stipulation freely and voluntarily, after consulting his counsel. The stipulation of all the required parties, the Government, the defendant (his counsel) and the court, was entered into in open court, and appears on the trial record prepared by the reporter. If anything, an oral stipulation entered into, under such circumstances, carries more inherent protection of the defendant’s basic rights than a written stipulation executed by the defendant out of court and out of the presence of the judge, where no record is made of the arguments or circumstances which were advanced to bring it about. The formal requirement of a writing in Rule 23(b) is procedural only and not a constitutional requirement.

Verdicts by 11 jurors are valid where, as here, there is an intelligent, knowing and express waiver by the defendant in open court, with the consent of both counsel and with the approval of the trial judge. Williams v. United States, 332 F.2d 36, 39 (7th Cir. 1964), cert. denied, 379 U.S. 976, 85 S.Ct. 672, 13 L.Ed.2d 566 (1965); Rogers v. United States, 319 F.2d 5 (7th Cir. 1963), cert. denied, 375 U.S. 989, 84 S.Ct. 524, 11 L.Ed.2d 525 (1964); and Horne v. United States, 264 F.2d 40 (5th Cir.), cert. denied, 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549 (1959) all involved a stipulation at the start of trial to waive up to two jurors if necessary. In Williams, there appears to have been no subsequent stipulation when the jury was reduced to 11 although the defendant was held to have consented since he was present at a prior oral stipulation even though he did not affirmatively acquiesce. Rogers involved an express oral stipulation in the record by the defendant. In Horne the attorneys for the parties entered into a subsequent stipulation when the vacancy occurred, and, while the defendant did not affirmatively acquiesce, he was held to be bound by the waiver because he was aware of the colloquy between the court and the attorneys and voiced no protest. Cf. United States v. McCurdy, 450 F.2d 282 (9th Cir. 1971) (waiver of a jury trial). United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir. 1971) held that it was necessary to personally address the defendant to secure his proper acquiescence to the waiver of a juror where the stipulation was entered into in open court and this was done here. The general principles applicable to waiver of a juror during trial are set forth in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930).

Appellant also contends that it was an abuse of discretion for the trial court to refuse to permit an investigator (Christensen) for defendant to refer to his notes in order to refresh his recollection so he could establish that it was physically impossiblé for him to be present at the scene of the crime. Appellant attempted to establish that he was at “Noone’s” 1.2 miles away from the Quality Carry-Out, the scene of the crime. Courts should be free in allowing expert witnesses to refresh their recollection from notes, records, sketches and the like. To do so makes for complete testimony as it goes in and does not leave loose tag ends to be filled in later in the trial when their relevance and meaning may not be as obvious. However, we do not see that appellant here was in any way prejudiced by the court’s ruling. The addresses of Noone’s and the Quality Carry-Out, and their locations with respect to each other, were established through other witnesses and by a plat of the area. There was also other evidence that the distance between the two places was in fact 1.2 miles (Tr. 84-85). Appellant thus did not suffer any prejudice.

Affirmed.


text:
    Jessie Mae WARREN, Appellant, v. Albert LOPATIN et al.
    No. 24710.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 12, 1972.
    Decided March 20, 1973.
    Marilyn Fisher, Washington, D. C., for appellant. Maribeth Halloran and Christine LeFlore, Washington, D. C., were on the brief for appellant.
    Leonard C. Collins, Washington, D. C., for appellee.
    Before BAZELON, Chief Judge, and WRIGHT and ROBINSON, Circuit Judges.
   PER CURIAM:

This appeal challenges a judgment of the District Court denying an injunction sought to permanently restrain the sale of appellant’s home to satisfy the lien of a second deed of trust thereon. The deed of trust secures the payment of a negotiable promissory note in the original principal sum of $3,900 bearing interest at the rate of 6% per annum. The note is payable, as to both principal and interest, in 59 monthly installments of $39 each and a final installment at 60 months for the unpaid balance. Appellant has defaulted in timely payment of the installments, and the power of sale conferred by the deed of trust has been invoked. The District Court’s judgment if left standing will, of course, allow the sale to go forward.

The note and deed of trust emanated from the second of two transactions by which appellant was to have received a loan of $1,000 from Northwest Mortgage Corporation. As the uncontradicted evidence demonstrated and the District Court found, appellant was duped into signing the papers calling for repayment of the much larger sum. Northwest subsequently negotiated the note to Howard Investment Corporation which, in turn, sold it to appellee.

One of the contentions advanced on appeal is the claim that appellee has not established that he is a holder in due course and consequently, that he took the note subject to two defenses to payment. One defense is presented by appellant’s assertion that the note is usurious, and on that score the District Court found that in return for the $3,900 interest-bearing note, appellant received only $625. The other defense is erected by appellant’s allegations that her execution of the note and deed of trust was obtained by fraud. In that connection the District Court found, as to the first transaction, that “[t]he papers were placed rapidly in front of her for signature, one on top of the other so as to shield the contents from her view, and were snatched away after she affixed her signature so as to preclude her from reading them.” As we read the Court’s opinion, it was of the view that at the second transaction the treatment was not essentially different.

The District Court held, however, that appellee was a holder in due course, and that for that reason neither of appellant’s defenses could prevail. Although the court found that the note was usurious, it ruled that the illegality could not be successfully urged against such a holder. And although the court characterized appellant as “a victim of a group of ‘fast operators,’ ” it further ruled that she had a reasonable opportunity to obtain knowledge of the terms of the note before signing it and, as a consequence, her fraud defense was unavailing against a holder in due course. So it was that the court’s conclusion that appellee occupied that status became critical. And so it is that, because in the present state of the record we are unable to satisfactorily review all facets of that determination, we must remand the record to the District Court for the development of additional information.

The substantive and evidentiary prerequisites to holding in due course are specified by the Uniform Commercial Code. “A holder in due course,” the Code states, “is a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” Our instant concern, of course, stems from the lack-of-notice requirement. The Code further provides that "[a]fter it is shown that a defense exists,” as indeed appellant did show, “a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.” Two circumstances hamper our efforts to ascertain whether these standards have been met.

The first is an apparent inconsistency in the District Court’s findings as to whether the note was overdue when appellee acquired it. The court stated that “[o]n August 10, 1966,” appellee “gave Howard Investment $3,080.98 for the note” and “ascertained that payments were current at the time of purchase. . .” The note stipulated, however, that installments were to be paid on the 9th of each month, and while it is clear that the installment due July 9, 1966, was paid on July 20, the record indicates that the installment due August 9 was not paid until August 12. The significance of these circumstances derives from the Code’s provision that a purchaser “has notice that an instrument is overdue if he has reason to know . that any part of the principal amount is overdue. . . .” One of the objectives of our remand is a determination as to exactly when appellee became holder of the note and the payment status of the note at that time.

Our second difficulty stems from the fact, evidenced by numerous references in the record, that appellee purchased the note on the recommendation of his accountant. The District Court found that there was nothing irregular in the purchase transaction that should have aroused appellee’s own suspicions, but the probe into notice cannot end at that point. Additional questions are whether the relationship between appellee and his accountant was such that appellee was chargeable with notice of facts within the knowledge of the accountant, and whether the accountant had any information which if possessed by appellee himself would have impaired his status as a holder in due course.

The record shows that appellant had previously purchased another note on the accountant’s advise. It indicates, too, that the accountant may have serviced the accounts of Howard Investment Corporation, appellee’s vendor, and llene Investment Company, Howard’s collection agent. That the accountant had some acquaintance with the note is evident from his recommendation that appellee buy it. Appellee cannot discharge his burden of establishing that he is a holder in due course without a satisfactory explanation of these circumstances. And should it develop that, as a result of their relationship, notice to the accountant is imputable to appellee, we are unable to perceive how the disclosure of the accountant’s knowledge can be satisfactorily made without calling him as a witness in the proceeding.

The record in this case is remanded to the District Court to enable the inquiries and determinations we have identified, and any related matters which may come to its attention. We reserve, in the meantime, our decision on the issues presented on appeal.

So ordered.

      . Appellant also sought, and was denied, cancellation of the deed of trust and the note which it secured.

      . The District Court first issued a temporary restraining order, and later a preliminary injunction, to maintain the status quo pending decision as to a permanent injunction. After denying the latter, the court enjoined foreclosure of the deed of trust pending this appeal on condition, however, that appellant keep current the indebtedness secured by the first deed of trust.

      . The first transaction netted $436 in cash for appellant and her note and deed of trust in the amount of $1,590 for Northwest. Appellant claims that she was given no opportunity to read the papers before signing. See text infra following note 8. When she protested to Northwest and was told that she did not receive more money because her note was not large enough, she indicated that she was willing to sign a note for as much as $2,300 to get an additional $360 which she needed. The second transaction followed, and it led to cancellation of the original papers, execution of the note and deed of trust in suit, and $189 more for appellant. When, two weeks later appellant learned of the size of her new indebtedness, Northwest’s telephone had been disconnected.

      . See text infra following note 9.

      . Northwest and its principal officer were made parties to appellant’s suit but process could not be served on either.

      . The balance then due was $3,851.23. Appellee paid $3,080.98 for the note.

      . See note 3, supra.

      . See note 3, supra.

      . The opinion is unpublished.

      . Northwest Mortgage Corporation obviously was not a holder in due course, and the District Court made no finding as to whether Howard Investment Corporation was. Therefore, it was necessary for appellee to demonstrate that he himself was a holder in due course since the record does not establish that he held through one.

      . Appellant urges additional grounds in support of her position that appellee is not a holder in due course. We reserve our ruling on all contentions until after completion of the remand.

      . D.C.Code § 28:1-101 et seq. (1967).

      . Uniform Commercial Code § 3-302(1), D.C.Code § 28:3-302(1) (1967).

      . Uniform Commercial Code § 3-307(3), D.C.Code § 28:3-307(3) (1967).

      . Uniform Commercial Code § 3-304(3), D.C.Code § 28:3-304(3) (1967).

      . But see discussion in text following note 14.

      . See Uniform Commercial Code § 1-103, D.C.Code § 28:1-103 (1967); Bowen v. Mount Vernon Sav. Bank, 70 App.D.C. 273, 274-277, 105 F.2d 796, 797-798 (1939).


text:
    FARRELL LINES, INC., Petitioner, v. FEDERAL MARITIME COMMISSION and the United States of America, Respondents.
    No. 72-1644.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 31, 1973.
    Decided March 23, 1973.
    Edward Aptaker, Washington, D. C., with whom Edward J. Sheppard, IV, Washington, D. C., was on the brief, for petitioner.
    John Robert Ewers, Atty., Federal Maritime Commission, with whom James L. Pimper, General Counsel, Edward G. Gruis, Deputy General Counsel, Federal Maritime Commission, and Irwin A. Seibel, Atty., Department of Justice, were on the brief, for respondents.
    Before LEVENTHAL and ROBB, Circuit Judges, and OLIVER GASCH, United States District Judge for the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 292(a) (1970).

   PER CURIAM:

Petitioner Farrell Lines challenges an order of the Federal Maritime Commission, approving Agreement No. 9944. Agreement No. 9944 is a Joint Service Agreement filed with the Commission by Refrigerated Express Lines (REL) and Maritime Fruit Carriers Co. (MFC). REL and MFC are both members of the Australia/U.S. Atlantic and Gulf Conference. Farrell Lines is also a member. Under the Agreement REL and MFC remain separate corporate entities but are in effect united in one commercial entity, sharing all profits and losses, and coordinating their shipping schedules. The argument of Farrell Lines focuses on Section 3 of the Agreement which permits REL and MFC to retain their individual voting rights within the Conference. Farrell Lines argues that this provision, giving the REL-MFC combination two votes, is unjustly discriminatory as between the combination and the other members of the Conference, each of which has one vote. If this contention is valid the Commission is required by 46 U.S.C. § 814 (1970) to withhold approval of the Agreement.

We affirm the decision of the Commission but remand for modification of its final order.

The Conference is presently composed of six members. Three of the members, Atlanttrafik, REL, and MFC operate conventional and palletized ships. The remaining three members, Farrell Lines, Pacific America Container Express Line (PACE), and Columbus Line, now or in the near future will employ only containerships as cargo vessels. Within the six-member Conference a unanimous vote is required to amend any provision of the Conference Agreement, while a three-quarters vote is necessary in all other matters.

Farrell Lines contends that Section 3 of the Agreement is inherently discriminatory because it gives two out of six votes, amounting to a veto power, to the commercial entity composed of REL and MFC. Although the reason why such an entity should have more than one vote is not immediately apparent to' us, we note that Commissioner Morse in his concurring opinion cites several instances in which the Commission has approved joint service agreements without restricting the number of votes allocated to the members of the joint services. Moreover, the Commission found no evidence of danger that in this case the grant of two votes to the REL-MFC entity would result in harmful discrimination. The Commission in its Report (J.A. 50) explained further:

Conference voting mechanisms are at best delicate things, presumably arrived at after due deliberation of alternatives. By and large the various procedures, and they cover a wide range, work well when considered in the light of the large number and variety of agreements existing in our foreign commerce. These considerations, when taken with the continuing change in carrier relationships, trade conditions and economic and competitive circumstances, makes us on the one hand cautious in the interference with existing voting procedures absent a showing of need; and on the other, makes it extremely difficult to formulate hard and fast rules for the governance of future voting procedures. (Federal Maritime Commission Report, Docket No. 71-80, page 6 mimeographed copy, Served May 8, 1972.)

We think that in light of the Commission’s experience and specialized knowledge in the field of conference voting rights the challenged approval was within the limits of its discretion; at least we cannot say that the Commission has acted arbitrarily or unreasonably in the exercise of its judgment. Certainly “[i]t is part of the genius of the administrative process that its flexibility permits adoption of approaches subject to expeditious adjustment in the light of experience.” American Airlines v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (1966); cf. Airline Pilots Ass’n v. CAB, 154 U.S.App.D.C. -, at -, 475 F.2d 900, at 904 (decided January 4, 1973).

The Commission concluded that the Agreement might become “ * * * unfair as between carriers only in a particular and given circumstance * * * the circumstance is the impact [of] voting status on conference operations.” (J.A. 50). Counsel for the Commission informed us at oral argument that any complaint of unfairness resulting in the future from the impact of voting status would require the filing of a new petition and the opening of a new docket. We believe, however, that such a procedure may not be adequate to assure that there will be “expeditious adjustment” for the protection of the members of the Conference if experience reveals that the Agreement is working unfairness. We think the Commission should retain jurisdiction over the matter so that it may act expeditiously to modify or terminate the Agreement if unfairness in its operation appears. We remand the case to the Commission with instructions to modify its order accordingly; otherwise the order is affirmed.

It is so ordered.

      . Conventional ships are ships which carry cargo which is separately packed and stowed in the hold of the ship. Palletized ships are ships which carry cargo which is separately packed and then arranged on a pallet before loading into the vessel. Conventional and palletized ships are the traditional methods of handling cargo.

      . Containerships are vessels in which the cargo is carried preloaded in containers usually 8' x 8' x 40' or 8' x 8' x 20'. Instead of the traditional cargo hold arrangement the containership hold is fitted with container guides into which the preloaded containers are fitted,


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Elmer Paul PITMAN, Defendant-Appellant.
    No. 72-1387.
    United States Court of Appeals, Ninth Circuit.
    Feb. 22, 1973.
    As Amended on Denial of Rehearing May 2, 1973,
    Rehearing and Rehearing En Banc Denied May 17, 1973.

      Ron Bain (argued), Los Angeles, Cal., for defendant-appellant.
    Joseph Golant, Asst. U. S. Atty. (argued), Richard J. Trattner, Eric A. Nobles, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS, BROWNING and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

After a five-day trial, the jury found Pitman guilty of one count of theft from an interstate shipment of freight. 18 U.S.C. § 659. Pitman raises many questions on appeal, some of which require no answer and none of which require reversal.

Pitman was a truck driver for a company which picked up shipments of cartons from the distribution center of Avon Products, Inc., in Monrovia, California, for transfer and delivery. On November 10, 1970, Pitman signed a bill of lading which indicated that he had received a shipment of 65 cartons consigned to Andrews’ Trucking Service in Hilo, Hawaii. That shipment included two cartons addressed to Mrs. K. Sakamoto of Laupahoehoe, Hawaii. ' When the shipment was delivered to Continental Airlines at the Los Angeles airport, four cartons were missing. Mrs. Sakamoto ultimately received only one of her two cartons. Pitman was convicted on the count which charged him with.the theft of Mrs. Sakamoto’s missing carton.

Pitman challenges the sufficiency of the evidence to sustain his conviction. In addition to the facts already stated, an F.B.I. agent related that Pit-man admitted his participation with Laard Bell, another company driver, in a scheme to steal cartons from the Avon shipments. He was involved in this plan for about one year and stated that he stole goods on two occasions during November of 1970, the last of which occurred on November 9th or 10th. Taken in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence was clearly sufficient to sustain the verdict.

Pitman also argues that his confession was inadmissible because it was obtained in violation of his constitutional rights and because it was not sufficiently corroborated. The record indicates that the F.B.I. agents gave Pitman a full explanation of his constitutional rights before the questioning began. There is ample evidence of the voluntariness of his confession. As Pitman never specifically admitted the crime involved here to the F.B.I. agent, it is questionable whether this is a confession which required corroboration. To the extent that Pitman admitted other instances of theft, those admissions were evidence of a common plan or scheme, were not elements vital to this case, and hence did not require corroboration. See Smith v. United States, 348 U.S. 147, 155, 75 S.Ct. 194, 99 L.Ed. 192 (1954). To the extent that the jury may have believed that Pitman admitted this specific crime, there was sufficient corroboration to show that his admissions were trustworthy. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954). The cartons were reported missing soon after they were in Pitman’s exclusive control.

Additionally, Pitman complains of several evidentiary rulings. First he argues that the trial court erred in admitting the government’s Exhibit 3-D. When an Avon sales representative, such as Mrs. Sakamoto, reports a lost order valued in excess of $25, Avon’s Pasadena office prepares a lost order tracer. Exhibit 3-D was such a report that one of Mrs. Sakamoto’s cartons had not reached her. The tracer also bears the phrase “reported short.” This notation was entered by a clerk at the Monrovia office whose job involved the tracing of the lost orders. Andrews’ Trucking Service in Hilo had reported the shortage to her.

Pitman contends that these recorded reports from Mrs. Sakamoto and Andrews’ Trucking Service, though memorialized by Avon, are double hearsay and inadmissible despite the first step hearsay exception afforded for business records. 28 U.S.C. § 1732. However, the second step of hearsay is also admissible when the entry is “. . . made by an authorized person, to record information known to him or supplied by another authorized person.” Standard Oil Company of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); see also LaPorte v. United States, 300 F.2d 878, 882 (9th Cir. 1962); Olender v. United States, 210 F.2d 795, 801 (9th Cir. 1954); United States v. Grayson, 166 F.2d 863, 869 (2d Cir. 1948).

Consequently the admissibility of the lost order tracer prepared at the Pasadena office from Mrs. Sakamoto’s report depends upon whether she was an authorized person within Avon’s business. The resolution of this inquiry turns upon the uniqueness of Avon’s operations. Avon manufactures and distributes its products to its own independent sales representatives. The sales representative, as Mrs. Sakamoto, is essentially a retail outlet for Avon's products. Mrs. Sakamoto places her orders for cosmetics or toilet goods with Avon’s Pasadena office, and the goods are shipped to her from the Monrovia plant. Upon receipt, as a representative of Avon only, she sells and delivers them to her customers.

Thus a sales representative is an integral part of the Avon organization, and consequently Mrs. Sakamoto is not an outsider but rather an authorized person within the meaning of Standard Oil. Therefore, the lost order tracer embodying her report that one of her cartons was missing was admissible under § 1732.

The notation “reported short” was a result of the report of Andrews’ Trucking to Avon. However, it is unnecessary to decide whether that company was also an authorized agent. Since this notation was on the same form as the other, at worst, it was cumulative of the admissible evidence and the record reflects no prejudice to Pitman. See Bailey v. United States, 282 F.2d 421, 426 (9th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961).

Pitman’s second asserted evidentiary error involved the admission of certain rebuttal evidence. During cross-examination, the prosecutor asked Pitman whether he had told the F.B.I. agents that, on at least five occasions, he had aided a man named Bob in carton thefts from Avon. There was no objection, and Pitman denied that he had made the statement. After the defense rested, the government called an F.B.I. agent in rebuttal. Over objection, the agent testified that Pitman had admitted to him his participation with Bob in the thefts. The trial judge then instructed the jury that the evidence had been admitted for impeachment purposes only.

Pitman contends that the admission of this evidence was error because it constituted an attempt to impeach him on a collateral matter. Pit-man is incorrect. The proper test of collateralness is: “Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?” 3A Wigmore, Evidence § 1003, at 961 (Chadbourn rev. 1970). In this case, the fact shown was Pitman’s admission of participation in other thefts at the Avon plant. Independent of the impeachment, this evidence would have been admissible if relevant and not against public policy. Character evidence to prove conduct in conformity with it is always relevant but ordinarily excluded. However, evidence of prior similar criminal acts may be admissible to prove motive, common plan, scheme, or conspiracy. United States v. Jones, 425 F.2d 1048, 1051 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970); United States v. Jiminez-Robles, 415 F.2d 308, 310 (9th Cir. 1969). In this case, Pitman was charged with the theft of a carton of Avon products delivered to his truck at the Monrovia plant. He admitted to the F.B.I. agent using his truck to assist Bob in a series of thefts from the same plant. The similarity is sufficient, and the evidence could have been admitted during the case-in-ehief. Consequently it was not collateral.

We note that the trial judge gave an instruction limiting the use of this evidence to impeachment. Additionally, because this was evidence of prior similar acts, Pitman might have requested a limiting instruction concerning the probative use of the evidence. However, he did not, and thus the only question in this regard is whether the failure to so instruct was plain error. Fed.R.Crim.P. 52(b). We hold that it was not. See DeCarlo v. United States, 422 F.2d 237, 239 (9th Cir. 1970); United States v. Johnson, 415 F.2d 653, 655 (9th Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 588, 24 L.Ed.2d 511 (1970).

Affirmed.

      . Appellant stresses the fact that the intermediate consignee, Andrews’, indicated by invoice that the entire shipment had been received in Hilo. The jury could reasonably resolve the inconsistency between the reported shortages at Los Angeles and Laupahoehoe and the Hilo invoice in favor of the government. Apparently it chose to do so.

      . The question asked in rebuttal was not proper for impeachment. Instead of asking the F.B.I. agent the leading question of whether Pitman had said to him substantially what Pitman earlier denied, the question was “Will you tell us what he told you with regard to this dock worker named Bob?”, which produced a narrative account far exceeding the limited question asked Pitman. However, that error was not preserved because the defense objected only to the question as being collateral.

      . See Attorney General v. Hitchcock, 1 Exch. 91, 99 (1847); Smallfield v. Home Ins. Co., 244 F.2d 337, 341 (9th Cir. 1957); Shanahan v. Southern Pac. Co., 188 F.2d 564, 568 (9th Cir. 1951); Dillard v. United States, 141 F. 303, 310 (9th Cir. 1905).

      . On direct, F.B.I. Agent Williams testified that Pitman had admitted systematic thefts from Avon over a one-year period and particular thefts at a Union Pacific yard and an Eneo weighing station. The defense also made no request for an instruction limiting the use of this evidence.