author: VAN DUSEN, Circuit Judge. ADAMS, Circuit Judge

text:
    SUBURBAN TRANSIT CORP. and H.A.M.L. Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Highway and Local Motor Freight Drivers Local No. 701, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor. UNITED TRANSPORTATION UNION, LODGE NO. 1589, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-1377, 73-1442.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 12, 1974.
    Decided May 23, 1974.

      Alfred J. Hill, Wilentz, Goldman & Spitzer, Perth Amboy, N. J., for petitioners in No. 73-1377.
    Robert M. Saltzstein and Jeffrey S.’ Dubin, Mirkin, Barre, Saltzstein & Gordon, P.C., Great Neck, N. Y., for petitioner in No. 73-1442.
    David Friedland, Jersey City, N. J., for intervenor in No. 73-1377.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William H. DuRoss, III, John M. Flynn, Attys., N. L. R. B., for respondent.
   OPINION OF THE COURT

Before VAN DUSEN and ADAMS, Circuit Judges, and HUYETT, District Judge.

VAN DUSEN, Circuit Judge.

This case is before this court upon the petitions of Suburban Transit Corporation (“Suburban”), H.A.M.L. Corporation (“H.A.M.L.”), and United Transportation Union, Lodge No. 1589 (“UTU”) to review and set aside a decision and order of the National Labor Relations Board (hereinafter “NLRB” or “Board”) issued against Suburban and H.A.M.L. on May 4, 1973, and reported at 203 N.L.R.B. No. 69. The Board has cross-applied for enforcement of that order. This court has jurisdiction pursuant to § 10(e) and (f) of the National Labor Relations Act, as amended (hereinafter “Act”). 29 U.S.C. § 160(e) and (f).

The unfair labor practice charges, which resulted in the Board’s order in this case, were filed by the Highway and Local Motor Freight Drivers, Local No. 701, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“Teamsters”) in October and November of 1971. As amended and consolidated, the complaint filed by the Board under Section 10(b) of the Act, 29 U.S.C. § 160(b), alleged that Suburban violated (A) §§ 8(a)(1) and (2) of the Act by executing a new collective bargaining agreement with UTU while a question concerning representation existed, (B) §§ 8(a)(1) and (3) by virtue of the fact that said contract contained a union-security provision, (C) § 8(a)(1) by making threats to certain striking employees, and (D) §§ 8(a)(1) and (3) by discharging those employees. The complaint also alleged that H.A.M.L. violated (A) §§ 8(a)(1) and (2) by executing a contract with UTU at a time when UTU did not represent an uncoerced majority of H.A.M.L.’s employees and by assisting UTU in its organizing drive, (B) §§ 8(a)(1) and (3) by the inclusion of a union-security provision in said contract, and (C) §' 8(a)(1) by acts of surveillance of and assistance to union activities.

On the basis of this complaint, the Board filed a petition for an injunction under § 10(j) of the Act on January 24, 1972. Thereafter, extensive hearings were conducted by the Administrative Law Judge, the transcript of which was forwarded to the district court and made a part of the injunction proceeding by agreement of the parties. Following oral argument and submission of briefs, the district court on July 26, 1972, rendered an opinion and order denying the Board’s application for injunctive relief. See Balicer v. Suburban Transit Corp., unpublished opinion of 7/28/72 (Civil No. 158-72, D. N.J.). The Administrative Law Judge issued his decision on November 27, 1972, in which he found that Suburban and H.A.M.L. violated §§ 8(a)(1), (2) and (3) of the-Act as charged in the complaint, and he incorporated a proposed order. On May 4, 1973, a three-member panel of the Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his recommended order.

I. Charges Against Suburban

UTU has represented Suburban’s employees for approximately 30 years. In July 1971, UTU requested that bargaining for the terms of a new contract commence as the then current agreement was due to expire on September 14, 1971. In late August, Suburban employee Daniel Rava was elected chairman of UTU’s bargaining committee, which also included employees Peterson and Bowman. Although not officially members of the committee, Gerald McPhillips, a UTU international representative, and Austin Zechman, a UTU vice president, assisted the committee in its deliberations. Suburban was represented by Morris Lipschitz, officer, director and sole owner of Suburban, Lee Jacobs and Sidney Kuchin, the two other Suburban officers, and Ronnie Kohn, Suburban’s office manager.

After a series of bargaining sessions, the parties reached accord on September 13 on a three-year agreement. On September 14 a ratification meeting was held at which the employees decisively rejected the proposed contract by a vote of 49 to 3, apparently because of its three-year term. Following this meeting, the UTU committeemen agreed to bargain for a shorter, two-year contract term. However, at the next bargaining session on September 24, Suburban ■ insisted upon a three-year contract, but offered to increase its initial wage offer. The subsequent ratification meeting, attended by about 30 Suburban employees, broke up in chaos when the term of the contract was announced and no ratification vote was taken. After the meeting, McPhillips met with Rava and Peterson, and they all agreed that they had not had a fair opportunity to present the package to the men and that they should meet with Suburban again.

As early as July 1971, Rava and, at some time during that summer, several other employees, had become interested in the possibility of changing union representation from UTU to the Teamsters. Between July and September, Rava called the Teamsters on several occasions to explore avenues of having the Teamsters represent the Suburban employees. In early September, he and employee Manga met with Martin McDermott, a Teamsters international representative, at the Teamsters’ premises. McDermott agreed to check to see if there was a “no raid pact” with the UTU but warned that the Teamsters could be of no help until the contract expired. Thereafter, Rava called the Teamsters several times and was told by McDermott that there was not a “no raid pact” between the Teamsters and UTU.

On the morning of September 15, Rava requested that Peterson meet him at the Teamsters’ premises, where they discussed with McDermott ways in which a change in union representation could be effected. During this meeting, McDermott gave Rava a decertification petition and some Teamsters’ membership cards, which Rava placed in the trunk of his car. Later that day, Peterson informed McPhillips of the meeting with McDermott. McPhillips then advised UTU vice-president Kenneth Moore of Rava’s contacts with the Teamsters, and Moore requested that McPhillips obtain further information before having Rava removed from his union office.

On September 26, Rava gave the decertification petition and Teamsters’ authorization cards to Manga, who proceeded to solicit signatures. After obtaining signatures of more than 30% of Suburban’s employees, Manga filed the petition for decertifying UTU on September 29, and the Teamsters filed a representation petition the same day. Suburban received the petitions on October 2.

On September 28, Suburban officials and the UTU bargaining committee met again and agreed that it would be useless to hold another membership meeting. The mediator suggested that a petition be drawn up and that members of the committee speak to each employee, and if a majority signed the petition, then the committee could sign the contract. Rava opposed the petition and suggested instead a mail ballot, which was finally agreed upon. That night, however, while Peterson was in a meeting with Zechman at the latter’s home, Moore called Zechman and told him that Rava was collaborating with the Teamsters and that he was taking steps to have Rava removed as chairman of the wage committee. Zechman began to suspect that Rava’s suggestion of the mail ballot was designed to cause further delay and, therefore, he and Peterson decided to proceed with a petition.

The contract ratification petition was drawn up and circulated on October 1 by Peterson and another UTU official, Tom Alexander, and was returned to Zechman on October 2 with 51 signatures (out of the 61 employees constituting the unit of drivers). McPhillips contacted Suburban president Lipschitz and told him that the committee believed they had a majority and were prepared to sign a renewal agreement. The signatures on the petition were checked against the payroll forms and were found to be valid. Lipschitz agreed to sign the contract when he returned from a trip to California, and on October 14 the contract was executed.

On the evening of October 26, a meeting was held at the Teamsters’ hall and a group of Suburban employees voted to strike, apparently to protest both the discharge of two workers because of an unrelated accident and the execution of the contract with UTU. The next day, and for a few days thereafter, a number of Suburban employees went out on strike and began picketing the company’s premises, with signs reading “Employees of Suburban Transit on Strike Unfair Labor Practices Local Teamsters Union No. 701.” The number of employees who picketed is disputed, estimates ranging from 25 to 46. At most only 17 employees worked on the first day of the strike. On October 29, Suburban wrote 34 letters to striking employees, stating that they would be suspended if they did not report for work on November 2. On November 1, Suburban obtained a temporary restraining order from the Superior Court of New Jersey. While most of the employees returned to work on November 2, 19 did not. Following an investigation conducted by Suburban, all but two of the 19 strikers were discharged.

The Board’s conclusion that Suburban violated §§ 8(a)(1), (2), and (3) of the Act was based primarily on its finding that the decertification petition filed by Manga and the representation petition filed by the Teamsters (supported by authorization cards) raised a real question concerning representation and that, therefore, Suburban’s execution of a new contract with UTU, containing a union security provision, when Suburban had knowledge of those petitions, was an unfair labor practice under the doctrine of Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945). The Board recognized that this finding conflicts with our decision in NLRB v. Swift & Co., 294 F.2d 285 (3d Cir. 1961), where this court held that the mere filing of a representation petition by a competing union does not create a real question of representation so as to prevent an employer from entering into an agreement with the previously certified union, but the Board felt constrained to follow its own law on this point. We, in turn, are constrained to follow Swift and, therefore, hold that the Board’s determination that a real question of representation existed at the time of the renewal agreement between Suburban and UTU is not supported by substantial evidence. See also NLRB v. Peter Paul, Inc., 467 F.2d 700, 702 (9th Cir. 1972); NLRB v. Midtown Service Co., 425 F.2d 665, 669 (2d Cir. 1970); NLRB v. North Electric Co., 296 F.2d 137, 139-140 (6th Cir. 1961); St. Louis Independent Packing Co. v. NLRB, 291 F.2d 700, 704 (7th Cir. 1961).

As to the discharge of the 19 striking employees, the Board’s finding of a violation of §§ 8(a)(1) and (3) of the Act was based upon the premise that the strike was protected activity, despite the possible applicability of a no-strike clause in the bargaining agreement, because the Board found it was called, at least in part, to protest an unfair labor practice — i. e., the execution of the new agreement between Suburban and UTU. Since we have held that the evidence does not support the Board’s finding that this agreement constituted an unfair labor practice, its conclusion that the discharge of the strikers violated §§ 8(a)(1) and (3) must also be set aside and the case must be remanded to the Board for a determination as to whether the strike was protected activity in light of Article 13 of the bargaining agreement. Cf. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

II. Charges Against H.A.M.L.

H.A.M.L. began operations in 1968, and until November 1971, its employees were not represented by a union. On November 1, H.A.M.L. employee Lang-don contacted the Teamsters’ representative McDermott to discuss organizing H.A.M.L. employees. On the evening of November 2, H.A.M.L. employees Coudray, Rayhon and Langdon met with McDermott and Rava, obtained Teamsters’ authorization cards from Mc-Dermott, and began soliciting signatures the following morning, November 3.

Suburban’s former dispatcher, Harold Bien, testified that at 7:30 a. m. on November 3, H.A.M.L.’s manager, Patrick Kilcoyne, called on the telephone and told him that the Teamsters were organizing H.A.M.L.’s employees. Bien then told Zechman, who was present with Bien during the telephone conversation, what Kilcoyne had said, and Zechman allegedly replied, “[W]e’ll have to go down there and organize them.” Zechman then dictated UTU authorization cards and proceeded to Suburban’s office, where he duplicated them on Suburban office equipment. Shortly thereafter, he recruited H.A.M.L. employees Lobmayer, Alexander and Thomas to assist in the UTU campaign and began soliciting signatures in H.A.M.L.’s garage.

Bien also testified that at about 11:30 that morning, he called Jack Flanagan, H.A.M.L.’s dispatcher, to request that drivers be made available for the New York City runs. According to Bien, Flanagan replied: “I am going to have to cut you a couple short. We are down here getting people signing cards.” Furthermore, H.A.M.L. employee Schorr testified that when he returned to the H.A.M.L. garage following his afternoon run, Flanagan asked him to see someone in the drivers’ room, and that when he went there, Lobmayer solicited his signature for a UTU authorization card.

Later that afternoon, Lobmayer and the other UTU organizers determined they had a majority of employees signed up for UTU, having 40 signed authorization cards out of approximately 50 to 55 employees. They then notified Zechman, who in turn called H.A.M.L. vice president Kuchin and requested -recognition for UTU. At about 6 p. m., Kuchin called Kilcoyne and told him to be available. At about 7:30 p. m., Kuchin called the home of Suburban’s manager, Kohn, where a party was in progress, and told Kilcoyne to come to Suburban’s offices. Kilcoyne and his wife, who were among the guests, left the party with Kohn and went to Suburban’s offices. Awaiting them there were Zechman, Kuchin and H.A.M.L. president Jacobs, as well as the newly appointed UTU bargaining committee of Alexander, Bascocky, Lobmayer, and Fayda. Before their arrival, Kuchin had checked the UTU authorization cards and had identified 35 of the signatures. Having determined that UTU represented a majority of the employees, Kuchin extended recognition to it.

At the beginning of the meeting, Zechman stated that “it was important to get the contract signed, negotiated and signed so we could get it in before the Teamsters, certainly.” Thereafter, using the October 14 Suburban-UTU contract as a model or guide, the parties negotiated between 8:00 p. m. and 1:30 a. m. As each portion of the contract was agreed upon, Mrs. Kilcoyne typed that part. Finally, at the conclusion of the session, the contract was signed by the H.A.M.L. officers and then was taken to a motel where UTU vice-president Moore was staying. After a brief discussion, Moore executed the contract for UTU. At work later that morning, Bien asked Kilcoyne how everything had gone in regard to the contract and Kilcoyne replied, “All signed, sealed and delivered.”

On the basis of the foregoing facts, the Board concluded that H.A.M. L. violated § 8(a)(1), (2), and (3) of the Act by unlawfully assisting UTU in organizing its employees and then executing and maintaining a contract with UTU containing a union security provision. Although we accept, as supported by the evidence, the Board’s decision to credit the testimony of Bien where contradicted by that of Zechman and Flanagan, and its finding that Flanagan is a supervisor, we agree with H. A.M.L.’s contention that the facts found by the Board fail to establish that H.A. M.L. gave unlawful support or assistance to the UTU organizing drive.

We are mindful that “where, as here, we are in agreement that substantial evidence supports the Board’s findings, our scope of review is limited to determining whether the Board’s factual inferences are so irrational they cannot stand, and whether, if they stand, they justify the Board’s order.” Department Store Food Corp. of Pennsylvania v. NLRB, 415 F.2d 74, 77 (3d Cir. 1969). Nevertheless, this contention merits close examination because the Board conceded that “the evidence of direct assistance in obtaining signatures on the mimeographed UTU ‘authorizations’ is not particularly strong,” and therefore could conclude only that H.A. M.L. “gave at least tacit approval to and benevolent observation of, the UTU organizers at HAML’s garage”. The law is clear, however, that cooperation between an employer and a union does not violate but rather accords with the policy of the Act. An unfair labor practice occurs only when the employer’s acts of assistance for a union interfere with the right of the employees fairly to choose their representative. And as one court has observed, “the line between ‘close cooperation’ and ‘interference with the freedom of choice of the employees’ is a delicate one and often difficult to maintain, particularly where rival unions are involved.” NLRB v. Hunter Outdoor Products, Inc., 440 F.2d 876, 880 (1st Cir. 1971).

In its decision, the Board placed heavy emphasis on the haste with which H.A.M.L. recognized UTU as the representative of its employees and concluded a contract with it. In light of H.A.M.L.’s knowledge of the Teamsters’ drive, the Board adopted the opinion and, therefore, the reasoning of the Administrative Law Judge that such haste constituted an attempt by H.A.M.L. to favor UTU, and there is language in that opinion suggesting that this fact alone established an unlawful interference with the right of the employees to choose their own representative. We do not believe that by itself it is an unfair labor practice for an employer to grant quick recognition to a union and to negotiate a hasty contract where that union represents an uncoerced majority of the employees, even if the employer is motivated by the desire to freeze out a rival union. The issue before us is not the employer’s state of mind but the effect of its actions on the rights of the employees. Cf. International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). “So long as the acts of cooperation do not interfere with the freedom of choice of the employees, th,ere is no violation of the Act.” NLRB v. Keller Ladders Southern, Inc., 405 F.2d 663, 667 (5th Cir. 1968). Where a union has achieved the support of a majority of the employees without coercion or unlawful assistance on the part of the employer, its recognition by the employer and the negotiation and execution of a collective bargaining agreement are precisely the sort of cooperation that it is the policy of the Act to foster. Although we reject the Board’s suggestion that H.A.M.L.’s haste in recognizing UTU and negotiating a contract with it, without more, would violate the Act, the Board could reasonably infer from such haste that H.A.M.L. preferred to have its employees represented by UTU rather than the Teamsters, and could properly evaluate the other actions of the employer in the light of that preference in determining whether unlawful assistance had been given to the preferred union. See NLRB v. Keller Ladders Southern, Inc., supra at 667.

Turning to the remaining evidence, we note that all but one of the actions attributed to H.A.M.L. provide only weak support for the Board’s finding of unlawful assistance. Kilcoyne’s telephone call to Bien on the morning of November 3 indicates that H.A.M.L. had knowledge of the Teamsters’ organizing campaign, but can hardly be interpreted as an attempt to encourage a counter-drive by UTU, especially since Zechman’s learning of what was said appears to have been fortuitous. Of greater weight is the fact that Zechman duplicated the UTU authorization cards at Suburban’s office and on .Suburban’s equipment; however, the inference that the management of Suburban “permitted” Zechman to do this is weakened by the absence of any evidence that it ever knew what Zechman was doing. Similarly, Flanagan’s telling Schorr that someone in the drivers’ room wanted to speak to him suggests a possibility of cooperation with the UTU drive, since that was where the UTU organizers were soliciting signatures. However, that fact can hardly support the Board’s conclusion that “[w]hen the drivers came in to the HAML facility, they were directed by chief dispatcher Flanagan to the UTU representatives . . . .” Schorr seems to have been the only employee to testify that he was “directed” to the drivers’ room, and even if it can be reasonably inferred that Flanagan knew who wanted to see Schorr and for what purpose, there is no evidence that Flanagan’s actions had any coercive effect.

We are left, then, with Flanagan’s statement to Bien on the morning of November 3: “I am going to have to cut you a couple short. We are down here getting people signing cards.” By itself that statement does not establish a violation of the Act, since the record demonstrates that the Teamsters was also soliciting signatures that day and thus any decision to curtail dispatching drivers would have benefited both unions. Moreover, even viewing Flanagan’s statement together with the weaker evidence of assistance discussed above and in light of H.A.M.L.’s preference for UTU, as shown by the haste with which the company recognized and negotiated with that union, we do not believe that this evidence establishes such direct support and assistance to UTU as to interfere with the employees’ freedom of choice. Thus, we conclude that H.A.M. L. did not violate § 8(a)(1), (2), and (3) of the Act in according recognition to UTU and in concluding a contract with it that contained a union security provision.

The Board also found that H. A.M.L. committed an independent violation of § 8(a)(1) of the Act by requesting an employee to engage in surveillance of the union activities of other employees, and we hold that this finding is supported by substantial evidence on the record. H.A.M.L. employee Coudray testified that during the afternoon of November 5, Flanagan asked him to spy at a Teamsters’ meeting that night. Coudray went to the meeting and reported back to Flanagan the following morning, and was allegedly told to call Kilcoyne and tell him what had occurred. Kilcoyne testified that Coudray did in fact call him and tell him about the meeting, although he replied to Coudray that the information was unsolicited, that he really was not interested, and that he had given instructions to Flanagan not to get involved with the union business but to stay out of it and just do his own job.

It is well established that surveillance of the type described by Coudray is conduct prohibited by § 8(a)(1) of the Act. See NLRB v. Historic Smithville Inn, 414 F.2d 1358, 1359-1360 (3d Cir. 1969), cert. denied, 397 U.S. 908, 90 S. Ct. 904, 25 L.Ed.2d 88 (1970); NLRB v. Fishman & Sons, 278 F.2d 792, 796 (3d Cir. 1960). However, H.A.M.L. argues that the Board erred in crediting Coudray’s testimony. After a careful review of the record, including the Administrative Law Judge’s discussion of this point, and in view of our extremely limited role in reviewing the credibility of Board witnesses, NLRB v. Local 420, Plumbers, supra at 328, we find this argument to be without merit.

H.A.M.L. also contends that the finding by the Board that Flanagan is a supervisor is not supported by the evidence and that his actions were, therefore, not attributable to H.A.M.L. We disagree. Although there is some evidence suggesting employee status, it does not compel such a finding for the record also indicates that Flanagan is salaried, is the sole dispatcher for H.A. M.L.’s 55 drivers, has authority to assign overtime and determine whether to send drivers to Suburban from H.A.M.L. when requested by Suburban’s dispatchers or officials, is the person whom employees call when they are unable to work, occasionally adjusts minor grievances, and performs some of Manager Kilcoyne’s functions when the latter is absent.

For the foregoing reasons, the petition for enforcement will be granted as to that part of the Board’s order concerning H.A.M.L.’s violation of § 8(a) (1) of the Act for having requested an employee to engage in surveillance of the union activities of other employees. As to all other matters, the petition for enforcement will be denied and the petition for review granted. The case will be remanded to the Board for further proceedings not inconsistent with this opinion.

ADAMS, Circuit Judge

(dissenting):

The symbiotic relationship between legal norms and factual contexts appears perhaps in its starkest form in the field of labor law. The principles governing the affairs of employers and employees have largely evolved through attempts by legislatures, courts, and administrative tribunals to contain within a comprehensible set of rules the complicated undulations of labor-management-relations. Since our understanding of the usually complex factual situations is aequired through a detached perusal of a written record, it is not surprising that, on occasion, we; as judges, differ as to the applicable legal principles.' Separate opinions, like mine in the instant case, seem an inevitable product of the intri.cate tapestry of rule and fact constituting the law in this field.

Thus, while I agree with the majority’s disposition of the charges of unfair labor practice against Suburban, I disagree with its conclusion that the activities of H.A.M.L. surrounding the recognition of UTU and its subsequent expedited negotiation of a collective bargaining agreement with UTU did not constitute an unfair labor practice.

1. The Unfair Labor Practice Rulings Against Suburban

As for the decision with respect to Suburban, since the administrative law judge expressly disavowed this Court’s reasoning and result in Swift and since he offered no factual basis apart from Suburban’s awareness of the decertification petition for a conclusion that the employer believed that a real question of representation existed, I am constrained to agree with the majority that Suburban did not commit an unfair labor practice in reaching an agreement with UTU while the decertification petition was pending.

Swift holds in essence that the filing of a decertification petition and “an administrative determination that a hearing thereon should be held” is not sufficient evidence to establish the employer’s belief that a real question of representation exists. In Midwest Piping, the Board had held, prior to Swift, that once a representation petition had been filed with the Board, the employer’s act in recognizing one of two competing unions amounted to “unlawful assistance which interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in section 7 of the Act.” Despite some degree of agreement with the Swift rule in other circuits, the Board has continued to decide cases on the basis of the Midwest Piping rationale.

The concerns underlying the Board’s resistance to the Swift rule, thus accounting for its adherence to the Midwest Piping doctrine, are not altogether illusory. The doctrine according to the Board is but “a direct outgrowth of the parent doctrine of employer neutrality in matters relating to employees’ choice of bargaining representatives.” The doctrine promotes the general objective of preserving the employees’ free choice in several ways. First an election would appear to be a better test of employee sentiment than authorization cards or other, less formal evidence that an incumbent union retains majority status. Second, once an employer has recognized and begun to bargain with one of two competing unions, the legitimacy thereby likely conferred in the eyes of some employees on the chosen union makes it very difficult, in subsequent Board proceedings, if any there be, to determine whether the chosen union had attained majority status prior to the act of recognition. Hence, the Midwest Piping doctrine serves as a prophylactic device insofar as it discourages recognition prior to a Board-conducted election, thereby avoiding the subtle effects preelection recognition may well have on employee sentiment.

However, several policy considerations support the Swift doctrine. First, permitting the employer to continue to bargain with an incumbent union avoids the disruption in the collective bargaining process occasioned by insubstantial claims to majority status asserted by nonincumbent unions. Second, assuming that the incumbent union does, in fact, enjoy majority status, the employees’ wishes are, in effect, frustrated during that period required to conduct the representation election which Midwest Piping mandates in cases when a representation petition has been filed. Third, some would contend that labor-management relations have matured over the years to the extent that the danger of the successful establishment of a union which is unduly solicitous of the employer’s wishes and needs is minimal and, therefore, the evils of premature recognition and continued bargaining with an incumbent union whose majority status has been challenged by a representation petition are mitigated.

None of the factors tending to support rejection of the Swift rule are of recent vintage. This Court in Swift no doubt weighed these considerations in reaching its decision. Therefore, it would not appear • appropriate, at least at this time, to question the rule.

2. The Unfair Labor Practice Against H.A.M.L.

The H.A.M.L. situation is somewhat different. The H.A.M.L. workers were not represented by any union before November 3, 1971. At that time, UTU and the Teamsters were both engaged in organizational efforts. There is no indication in the record, apart from the usually suspect authorization cards, whether UTU had attained, at any time, actual majority status. The Board’s order with respect to H.A.M.L. required the employer, inter alia, to refrain from treating UTU as its employees’ representative. The enforcement of this order appears to be the prelude to a Board-conducted election.

Thus, the Swift rule and the Midwest Piping doctrine, which deal with petitions to decertify an existing union, are somewhat inapposite. Instead, we must resort to more pristine standards for determining whether the employer’s recognition of UTU constituted illegitimate assistance to that union, standards largely unsullied by the conflicting glosses of Swift and Midwest Piping.

Section 7 of the National Labor Relations Act guarantees employee-free choice in the selection of a bargaining representative as well as the right to reject all putative representatives. The employer’s awareness that a representation dispute exists is some evidence that its action in recognizing one of the disputants prior to an election interfered with the employees’ section 7 rights or contributed to the support of the chosen union. Yet, Swift makes clear that if such an awareness is acquired solely through the filing of a representation petition, bargaining with the incumbent union does not amount to .an unfair labor practice.

It is arguable, however, that when there is a closely contested representational dispute in a bargaining unit previously unrepresented, such as that comprised of H.A.M.L. employees, the impact of recognition on employee freedom of choice is perhaps more devastating than when an employer merely continues to bargain with an incumbent union despite the existence of a decertification petition. Nevertheless, when employer awareness of a representational dispute and its subsequent recognition of one of the competing unions are coupled with a finding of acts that tend to favor one of two rival unions or to render suspect the employer’s motivations in recognizing one of the unions, it becomes difficult to conclude that the employer has not interfered with employee choice.

In the case at hand, the administrative law judge relied primarily on the unusual haste surrounding the acquisition of an authorization card majority, the quickness of the employer’s recognition, and the swiftness of the negotiation of a collective bargaining agreement. The majority concludes that the rapid pace of these-events did not interfere with the employees’ freedom of choice because the UTU represented an uncoerced majority of the workers. This assertion of uncoerced majority status is founded solely upon the authorization cards submitted by UTU to H.A.M.L. Viewed against the questionable reliability of authorization cards as an indication of employer sentiment, I cannot regard the frantic efforts on the part of UTU and H.A.M.L. as “precisely the sort of cooperation that it is the policy of the Act to foster.” Instead, the circumstances surrounding the negotiations between H.A.M.L. and UTU, coupled with other factual findings of the administrative law judge, would seem sufficient to support the Board’s inference that H.A. M.L.’s actions had the effect of interfering with the employees’ freedom of choice.

The majority appears to agree that other findings of the administrative law judge are “supported by substantial evidence on the record considered as a whole.” Findings that H.A.M.L. knew about the Teamsters’ organizational activities and that H.A.M.L. suggested that UTU begin to organize in response thereto, do, in my judgment, shed substantial light on the intended and, in all probability, actual effects of the expedited recognition and negotiations.

Despite the concession by the administrative law judge that “the evidence of direct assistance in obtaining signatures on the mimeographed UTU ‘authorizations’ is not particularly strong,” there appears to exist a sufficient factual predicate to support a conclusion that H.A.M.L.’s assistance to UTU amounted to a violation of sections 8(a)(1) and 8(a)(2). Also, because of the existence of a union security provision in the contract, there would seem to be a rational basis for the conclusion that section 8(a) (3) has been violated as well.

In sum, I cannot conclude that “the Board’s factual inferences [with respect to H.A.M.L.] are so irrational they cannot stand. . . . ” Thus, I would permit enforcement of the Board’s order to the extent it is intended to remedy unfair labor practices committed by H.A. M.L.

In all other respects, I join the opinion of the majority.

      . Before the Board Suburban and H.A.M.L. attacked the order consolidating these cases, contending that the two companies do not constitute a single employer within the meaning of § 2(2) of the Act. However, the Board found that they did constitute a single employer and Suburban and H.A.M.L. now challenge that finding. It is well settled that this question is for the Board to determine and where businesses are under common ownership, control and management, they may be considered as a single employer. See NLRB v. Stowe Spinning Co., 336 U.S. 226, 227 n. 2, 69 S.Ct. 541, 93 L.Ed. 638 (1949); NLRB v. City Yellow Cab Co., 344 F.2d 575, 577-578 (6th Cir. 1965); NLRB v. National Shoes, Inc., 208 F.2d 688, 691 (2d Cir. 1953). The record in this case reveals that Suburban’s sole owner is Morris Lipschitz; its officers are Morris Lipschitz and his two sons-in-law, Lee Jacobs and Sidney Kuchin; and its directors are Morris Lipschitz, his wife, Lillian Lipschitz, and his nephew Herman Lipschitz. The owners and sole officers and directors of H.A.M.L, are Jacobs, Kuchin, and Herman Lipschitz. We therefore hold that there is substantial evidence to support the Board’s finding of a single employer.

      . “8. (a) It shall be an unfair labor practice for an employer—
      (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
      (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: . . .
      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization :

      . We note that in this opinion the district court found that there was not even “reasonable cause” to believe that Suburban and H.A.M.L. violated §§ 8(a)(1), (2), and (3).

      . UTU was formerly known as the Brotherhood of Railway Trainmen, Lodge No. 993. Suburban had a collective bargaining relationship with the Brotherhood starting in 1942. The last contract between the two parties ran from September 15, 1968, to September 14, 1971. At some time during the term of that contract, UTU became the successor to the Brotherhood and assumed and administered the aforesaid collective bargaining agreement,

      . In its findings of fact, the Board related Rava’s undisputed testimony that Morris Lipschitz told him that he should work with Peterson and Zechman to get the UTU petition signed, that if 80 or 90 per cent, of the employees signed it, “this would knock the Teamster petition right out of the box,” and that if Rava did help, he “would be in with the company one thousand per cent.” However, the Board did not rely on that testimony and at no point in its discussion of Suburban’s unfair labor practices did it allude to the possibility that the alleged statement by Lipschitz constituted unlawful employer interference in the employees’ selection of a bargaining agent.

      . Because of our holding on this issue, it is unnecessary for us to review the Board’s conclusion that Rava’s dual role as chief negotiator for UTU and collaborator in the Teamsters’ organizing effort was of no legal significance. Nevertheless, we wish to record our strong disapproval of the ethics of such activities by Rava while an official of the UTU, involving, as they appear to have done, the type of conflict of interest that makes it highly improbable that a union representative could fully carry out his responsibilities to his union and to his fellow employees. Of. § 501(a) of the Landrum-Griffin Act, 29 U.S.C. § 501(a) :
      “The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization ... to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization See also Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), where the Supreme Court stated: “The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents.”

      . Article 13 covers the grievance procedure, and it is noted that subparagraph F contains this provision:
      “F. Recourse to outside tribunals will not be made by either party until the Grand Lodge of the Union has been advised and given a reasonable opportunity to intervene and dispose of or adjust the situation as the case may be. This, with the understanding that there shall be no authorized strike during such period the dispute is pending under the discussion with either the local lodge or the Grand Lodge.”
      In its preamble, the agreement also contains this language:
      “The purpose of this agreement is to create a definite understanding between Suburban and the Union regarding rates of pay and working conditions and to establish a plan for the prompt adjustment of grievances and all other disputes arising between Suburban and the Union.”

      . Zechman denied having any conversation with Bien on the morning of November 3 concerning the Teamsters’ organizational drive or Zechman’s intention to go down to H.A.M.L. to organize on behalf of UTU. Flanagan testified that although he did call Bien on November 3 (as he normally did several times a day), he merely told Bien of rumors that one of the unions was signing up men. H.A.M.L. argues that the Board should not have believed the contrary testimony of Bien, since he was biased against H.A.M.L., having been summarily dismissed from his job as dispatcher and was financially obligated to the Teamsters and Rava, having received an interest-free loan from them at about the same time he decided to testify for the Teamsters.
      While it thus appears that there may be reason to doubt Bien’s credibility, “it is not our task to resolve questions of credibility of those who testify at the Board hearings.” NLRB v. Local 420, Plumbers, 239 F.2d 327, 328 (3d Cir. 1956). After a careful review of the record, we conclude not to disregard the reasoned evaluation by the Administrative Law Judge of the credibility of the various witnesses.

      . See p. 89, infra.

      . There seems to be substantial evidence in the record to support the Board’s finding that H.A.M.L. was aware of the Teamsters’ organizing effort. H.A.M.L. appears correct that the Board erred in finding that Zechman told everyone present at the negotiating session that it was important to get the contract signed to beat out the Teamsters; Zechman’s testimony was that he made that statement not only to Fayda but to the “entire committee,” that is, the UTU bargaining committee, not H.A.M.L.’s representatives (898a — N.T. 1484). However, as we observed above, the Board could credit Bien’s testimony concerning his conversation with Kilcoyne about the Teamsters’ drive on the morning of November 3, and could reasonably infer from H.A.M.L.’s haste in recognizing UTU and executing a contract with it that H.A.M.L. knew of the Teamsters’ effort and was trying to thwart it. On the other hand, we do not know whether the Board would have made this finding if it had understood correctly Zechman’s testimony.

      . “The scenario of that night, [November 3] almost without more, indicates that HAML was exerting every effort to keep Teamsters from becoming the employees’ bargaining representative [29a]
      “This is not a straight Midwest Piping case, for the contract was executed before the Teamsters petition was filed, without any claim to represent the employees having been made by the Teamsters. But the law does not permit an employer, in circumstances such as these, to recognize one of two competing unions when the recognition is designed to keep the other union from obtaining representation rights. UTU’s role in the affair was not, of course, illegal. As Zechman said, UTU wanted a contract signed as quickly as possible for the express purpose of keeping the Teamsters from filing a petition. If UTU had won a legitimate race to achieve a majority among HAML’s employees, with the Teamsters never getting off the ground, then the race would really be to the swift (no pun intended). But the blatant haste by HAML in cooperating with UTU’s efforts to freeze out the Teamsters is just the kind of assistance the law prohibits.” [31a-32a]

      . In the context of the present argument, UTU may be treated as representing an uncoerced majority of H.A.M.L.’s employees. Although the Board noted in its decision that between six and ten employees signed UTU authorization cards after having already signed Teamsters cards, it did not find that UTU did not in fact represent a majority of H.A.M.L.’s employees. The Board’s objection to UTU’s claim of majority status was that UTU had received unlawful assistance from H.A.M.L. in obtaining a majority of signatures. It now points out in its brief that several employees testified that when they were approached by Lobmayer and told him that they had signed Teamsters cards earlier that day, he represented that the UTU cards were just for an election. H.A. M.L., on the other hand, contends that it is incredible that those employees could have misunderstood what the UTU cards meant. As noted above, it is not this court’s task to decide issues of credibility. Since the Board made no finding on this issue, we have no reason to assume that those signatures were obtained as a result of fraud or misrepresentation on the part of Lobmayer.

      . The Supreme Court held in I.L.G.W.U. v. NLRB, supra, that an employer who recognizes a minority union commits an unfair labor practice notwithstanding a good faith belief on his part that it has majority support. The Court stated there, “We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices here involved.” Id. at 739. Following this decision, two circuit courts have held that an employer commits an unfair labor practice if he recognizes a union which his employees have been coerced to support, even if he has no knowledge of that coercion. NLRB v. Hunter Outdoor Products, Inc., supra at 879; NLRB v. Jan Power, Inc., 421 F.2d 1058, 1063 (9th Cir. 1970).

      . In its decision, the Board relied on NLRB v. Hunter Outdoor Products, Inc., supra at 880, where the First Circuit said:
      “Particularly where an employer is aware of organizing efforts by a rival union, it acts at its peril in according hasty recognition when one union claims majority support .... The most prudent course for Hunter [the employer] under the circumstances would have been to petition for a Board-conducted election pursuant to § 9 (e) of the Act.”
      The situation in Hunter, however, is distinguishable in that there the union claiming majority status had used coercive tactics to obtain employee signatures on its aüthorization cards and the company had used coercive tactics in helping that union maintain its majority support. Thus, the above-quoted excerpts from Hunter must be read to mean that an employer acts at his peril when he accords recognition to a union which turns out not to represent an uncoereed majority of the employees. This is not the case here. See note 12, supra.

      . In Department Store Food Corp. of Pennsylvania v. NLRB, supra, this court upheld the Board’s conclusion that it was an unfair labor practice for an employer to direct new employees to a union representative during the checking-in process. We reasoned that in such a situation those employees could reasonably believe that, as a condition of employment and as part of the checking-in process, the company wanted them to sign the union’s authorization cards and that the company’s assistance thus impaired the employees’ right to choose freely whether or not they wanted to join the union. In this case, H.A.M.L.’s employees were not subjected to any comparable pressure.

      . After considering the fact that Coudray did call up Kilcoyne and tell him about the meeting, the Administrative Law Judge said:
      “I cannot conceive of Coudray at that time attempting to build up a case against HAML by calling Kilcoyne, as he did, and manufacturing a story about Flanagan having told him to call. I must conclude, accordingly, that Flanagan did so tell him.”
      H.A.M.L. now argues, since the contract between H.A.M.L. and UTU had already been executed the day before, that there was no reason for Flanagan or anyone else to have Coudray spy on a Teamsters’ meeting on November 5. This argument is not persuasive. H.A.M.L. might very well have wanted to know what actions the employees supporting the Teamsters planned to take in response to that contract.

      . It is undisputed that Flanagan had no authority to hire, fire, or otherwise discipline employees, or to fix working conditions such as vacations, holidays, or hours of work; only Kilcoyne had such authority. In addition, Flanagan testified that he drove a bus fairly regularly, was paid hourly like the drivers, and received the same rate of pay, attended no supervisory meetings, received the same vacation and fringe benefits as the drivers, did not participate in the negotiation of the contract, was not paid if he was out sick, holds no stock in H.A.M.L., did nothing without Kileoyne’s approval, and did not feel part of the management. Since the Administrative Law Judge found Flanagan’s credibility suspect on other matters (30a, n. 19), he was, of course, free to determine to what extent he would credit Flanagan’s testimony on this issue.

      . See, e. g., NLRB v. Midtown Service Co., 425 F.2d 665, 669 (2d Cir. 1970) ; Getman, The Midwest Piping Doctrine: An Example of the Need for Reappraisal of Labor Board Dogma, 31 U.Chi.L.Rev. 292 (1964).

      . NLRB v. National Container Corp., 211 F.2d 525, 536 (2d Cir. 1954).

      . See NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) ; Note, Union Authorization Cards, 75 Yale L.J. 805 (1966).

      . But cf., Getman, The Midwest Piping Doctrine: An Example of the Need for Reappraisal of Labor Board Dogma, 31 U.Chi.L.Rev. 293, 305-311 (1964).

      . 29 U.S.C. § 158 (a) .(1) & (2).

      . Majority Opinion at 86.

      . 29 U.S.C. § 160(f) ; Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

      . Department Store Food Corp. v. NLRB, 415 F.2d 74, 77 (3d Cir. 1969).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sam STEIN et al., Petitioners, v. Honorable William R. COLLINSON, United States District Judge for the Western District of Missouri, Respondent, and PARKVIEW-GEM, INC., a Delaware corporation, and Parkview-Gem of Hawaii, Inc., a Hawaii corporation, Real Parties in Interest.
    No. 74-1408.
    United States Court of Appeals, Eighth Circuit.
    July 1, 1974.

      Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., filed petition for writ of prohibition or mandamus.
    Robert K. Ball, Kansas City, Mo., filed answer of respondents to petition for writ of prohibition or mandamus.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   PER CURIAM.

ORDER

The issue presented is whether, in this case, we should prevent the District Court from asserting jurisdiction in a Chapter X reorganization proceeding over the affairs of a solvent subsidiary which is not a party to the proceeding. More specifically, we are asked to nullify by mandamus or prohibition a temporary restraining order of the District Court which effectively precludes petitioners from exercising foreclosure rights as lessor under a lease in which the lessee is the subsidiary.

The reorganization proceedings were instituted in the Western District of Missouri. The leased property is located in Hawaii and consists primarily of retail store space within a shopping center. It has had an interesting history.

The original lease dated February 15, 1968 was for a term ending in 2023 and provided for fixed monthly rental installments and an additional percentage of net sales. On May 31, 1968, Gem International, Inc. acquired the rights of the lessee by assignment. On May 4, 1970, a series of documents were executed, under which (1) Gem International, Inc. assigned its rights in the lease to Alexander J. Barket, Mary Kay Barket and Tudie S. Patti; (2) the assignees executed a sublease to Gem International, Inc. as sublessee; and (3) Park-view-Gem, Inc. guaranteed the performance of the obligations of Gem International, Inc. under the sublease agreement. On April 3, 1972, petitioners acquired the interests of Alexander J. Barket, Mary Kay Barket and Tudie S. Patti. On July 29, 1972, Gem International, Inc. assigned its interests as sublessee to Parkview-Gem of Hawaii, Inc., a wholly-owned subsidiary of Parkview-Gem, Inc., pursuant to a conditional right of assignment contained in the original sublease. Shortly thereafter, on July 31, 1972, Gem International, Inc. was merged into Parkview-Gem, Inc.

On December 18, 1973, Parkview-Gem, Inc. filed a petition for reorganization in the United States District Court for the Western District of Missouri. Thereafter, in May, 1974, petitioners notified Gem International, Inc. of their election to exercise their right of cancellation of the sublease by reason of the reorganization proceeding instituted by Parkview-Gem, Inc. Upon receipt of such notice, the Trustee of ParkviewGem, Inc. sought from the District Court for the Western District of Missouri a temporary restraining order to prevent the threatened action. Following a hearing on May 31, 1974, Judge Collinson issued a temporary restraining order enjoining petitioners herein from “(1) taking or continuing any action that threatens the leasehold interest of Parkview-Gem of Hawaii, Inc., (2) interfering with or attempting to interfere with Parkview-Gem of Hawaii, Inc. in a manner that will affect the value of the stock of Parkview-Gem of Hawaii, Inc., (3) seizing or attempting to seize the property of Parkview-Gem of Hawaii, Inc. and (4) filing or threatening to file any proceeding at law or in equity against Parkview-Gem of Hawaii, Inc.” He further ordered that the temporary restraining order be continued in full force and effect until such time as the court shall have ruled on the Trustee’s pending motion for a preliminary injunction.

Petitioners contend that Judge Collin-son was without jurisdiction to enter the temporary restraining order and that in view of extraordinary monetary damages which petitioners are suffering and will suffer in the future, this court should intervene by way of the issuance of an extraordinary writ.

It is conceded that Parkview-Gem of Hawaii, Inc. is neither insolvent nor a party to the reorganization proceeding. Any jurisdiction over the affairs of the subsidiary must therefore depend upon whether the leasehold interest is “property” of the debtor, Parkview-Gem, Inc., within the meaning of § 111 of the Bankruptcy Act:

Where not inconsistent with the provisions of this chapter, the court in which a petition is filed shall, for purposes of this chapter, have exclusive jurisdiction of the debtor and its property, wherever located.
11 U.S.C. § 511.

Petitioners contend that the property interests of the subsidiary are not subject to the jurisdiction of the trial court. This contention is in agreement with the general rule that courts in Chapter X proceedings are without jurisdiction to enjoin an action against a subsidiary. 6 Collier on Bankruptcy (14th ed., 1972), § 3.11, pp. 500-01. However, there is a recognized exception to this rule where the parent and subsidiary are so completely “one” that the separate legal identity of the subsidiary may be disregarded, id., and thus it has been stated that “the meaning of the term ‘property’ turns on the particular facts of each case * * In re Beck Industries, Inc., 479 F.2d 410, 417 (2d Cir. 1973), cert. denied sub nom. Trustees of Beck Industries, Inc. v. Feldman, 414 U.S. 858, 94 S.Ct. 163, 38 L.Ed.2d 108 (1973).

In this case, respondents assert that since the subsidiary corporation is not itself in default, and the right of forfeiture is found only in the reorganization proceeding of the parent, the petitioners themselves, by seeking to declare a forfeiture, implicitly recognize that the debtor, Parkview-Gem, Inc., has some property interest in the lease. Attention is drawn to the interrelationship of the parent and the subsidiary arising out of the guarantee agreement, and the significance of the fact that the notice of forfeiture was given to Gem-International rather than Parkview-Gem of Hawaii. However these points are resolved, it is clear that significant factual questions, dispositive on the matter of jurisdiction, have been presented to the district court. Since findings and conclusions are yet to be entered, the district court has so far merely assumed a limited jurisdiction in order to determine the jurisdictional issue. Presented as it was with a condition of urgency, we cannot say that it was an abuse of the court’s discretion to enter a temporary restraining order to preserve the status quo pending such determination.

By seeking mandamus or prohibition relief, petitioners in effect ask us to resolve the jurisdictional issue in the first instance. This we cannot do upon the record presented here. As was said in American Airlines v. Forman, 204 F.2d 230, 232 (3d Cir. 1953):

It is true that this petition [for prohibition or mandamus] * * * challenges what can fairly be called a jurisdictional ruling. But that differ^ ence alone is not enough to make a peremptory writ appropriate. * * * The challenged assumption or denial of jurisdiction must be so plainly wrong as to indicate failure to comprehend or refusal to be guided by unambiguous provisions of a statute or settled common law doctrine. If a rational and substantial legal argument can be made in support 'of the questioned jurisdictional ruling, the case is not appropriate for mandamus or prohibition even though on normal appeal a reviewing court might find reversible error.

See also Holub Industries v. Wyche, 290 F.2d 852 (4th Cir. 1961); Comfort Equipment Co. v. Steckler, 212 F.2d 371 (7th Cir. 1954).

Peremptory writs are extraordinary remedies and are reserved for extraordinary situations. Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). They may not be used as substitutes for an interlocutory appeal. Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir. 1973). Upon an incomplete record, we are unwilling to bypass the limited assumption of jurisdiction by the trial court; we cannot say that the resolution of the jurisdictional issue is so obvious that it may be said that the trial judge has miscomprehended settled law and has exceeded his statutory power. We therefore refuse the writ, without prejudice to petitioners’ right to challenge jurisdiction on appeal, and without prejudice to their right to reapply for extraordinary relief in the event of unconscionable delay in the trial court’s determination.

      . (j) (i) Lessee may assign this Sublease without consent of Lessor to any corporation now or hereafter in existence, which shall be PARKVIEW-GEM, INC., parent company of Lessee, or a wholly owned subsidiary of Lessee or of said parent company, provided, however, that Lessee shall notify Lessor of any such assignment within thirty (30) days after making the same, and all rights of Lessor under this Sublease against said Lessees are expressly reserved notwithstanding any such assignment.

      . Paragraph 13(1) of the sublease provides in part:
      PROVIDED, HOWEVER and this sublease is upon the continuing condition that if the Lessee shall * * * become bankrupt or insolvent or make an assignment for the benefit of Lessee’s creditors, or if the Lessee shall file any debtor proceedings, or take or have taken against Lessee any proceedings of any kind or character whatsoever under any provisions of the Federal Bankruptcy Act seeking any readjustment, arrangement, postponement, composition or reduction of the Lessee’s debts, liabilities or obligations, * * *, then and in any such event the Lessor may at once enter into and upon the demised premises or any part thereof in the name of the whole and at its option terminate this sublease by recording in the Bureau of Conveyances at Honolulu an affidavit that default has occurred, and that notice has been given where notice is required and that this sublease has been cancelled * * * and thereupon take possession of the said premises and all improvements thereon, and thereby become wholly vested with all right, title and interest of the Lessee therein and may expel and remove from the said premises the Lessee or those claiming under the Lessee, and their effects, all without service of notice or resort to any legal process and without being deemed guilty of any trespass or becoming liable for any loss or damage which may be occasioned thereby * * * *

      . The monetary damages stem from financial commitments made by petitioners in connection with the acquisition and financing of the sublease. Forfeiture of the sublease would permit them to re-lease the property at offsetting higher rentals. Parkview-Gem of Hawaii, Inc. is not in default in any of its rental payments. The only basis for forfeiture is the petition in reorganization filed by Parkview-Gem, Inc.

      . Unreasonable delay, however, in making such determination may afford an independent basis for seeking additional relief in this court.

      . We likewise decline to rule upon petitioners’ suggestion for the requirement of a bond, which was presented in the first in- ' stance to this court.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Theodore HEINRICH, Defendant-Appellant.
    No. 73-3245.
    United States Court of Appeals, Ninth Circuit.
    June 14, 1974.
    Morris Sankary, San Diego, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Robert J. Perry, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before MERRILL and KOELSCH, Circuit Judges, and MURRAY, District Judge.

       Honorable William D. Murray, United States District Judge for the District of Montana, sitting by designation.

   PER CURIAM:

Defendant appeals from a conviction of violating 21 U.S.C. § 841(a)(1) (possession with intent to distribute marijuana).

Defendant was stopped on July 29, 1973, at the Temecula checkpoint. Pursuant to that stop the marijuana was discovered.

We held in United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), that such stops made after June 21, 1973, are unconstitutional when they do not occur at the functional equivalent of the border.

The Temecula checkpoint is 72 miles north of the international boundary and is not the functional equivalent of a border.

The evidence discovered pursuant to the stop should have been suppressed.

Reversed.


text:
    Chester P. HAYNIE, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
    No. 74-1198.
    United States Court of Appeals, Sixth Circuit.
    Argued June 14, 1974.
    Decided July 9,1974.
    Spenard & Thomas, Albert W. Spenard, William R. Thomas, Madisonville, Ky., on brief, for plaintiff-appellant.
    Marvin P. Nunley, Owensboro, Ky., for defendant-appellee; Bartlett, McCarroll & Nunley, Owensboro, Ky., on brief.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM:

Appellant was insured under a policy with Appellee which provided for special disability benefits. On July 22, 1971, Appellant was injured while working. Appellant claimed that he was entitled to disability benefits for the duration of his disability, on the ground that the injury was caused by the on-the-job accident. Appellee maintained that Appellant was entitled to disability benefits only for one year, under the clause which limited the duration of payments for disability due to sickness.

The evidence below showed that Appellant suffered a 40% disability from the combination of the accident and an arthritic condition. The arthritic condition had pre-existed the injury but was dormant until activated by it. Under the terms of the insurance policy, disability payments would be made throughout the term of the disability only if bodily injury was the source of the disability. Bodily injury was defined as harm “caused by an accident . . . and resulting directly and independently of all other causes in loss covered by this policy.”

The District Court cited Continental Casualty Co. v. Freeman, 481 S.W.2d 309 (Ky.1972), in construing the policy under -Kentucky law. In Freeman, the Kentucky Court of Appeals considered a disability clause with the identical wording as that in this case. It held that payments for the duration of the disability should be made if bodily injury was the source of the disability and if no other cause “substantially contributed” to it. On the facts of this case, the District Court found that the pre-existing arthritic condition had “substantially contributed” to the disability, so that payments would be limited to one year rather than the duration of the disability.

We find that the Freeman case clearly states Kentucky law, and we do not find the District Court’s conclusion that Appellant’s disability was partly the result of disease clearly erroneous. For these reasons the decision of the District Court should be, and it hereby is, affirmed.


author: BUTZNER, Circuit Judge:

text:
    Johnie YOUNG, Appellant, v. EDGCOMB STEEL COMPANY, a corporation, Appellee.
    No. 73-2347.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided July 11, 1974.
    Robert Belton, Charlotte, N. C. (Adam Stein, Charlotte, N. C., Jack Greenberg; Morris J. Bailer, New York City, and Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., on brief) for appellant.
    Whiteford S. Blakeney, Charlotte, N. C. (Blakeney, - Alexander & Machen, Charlotte, N. C., on brief) for appellee.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

This appeal raises a narrow issue about the role a district court should play in determining an employee’s qualifications for promotion after it has ruled that the employer violated Title VII of the Civil Rights Act of 1964. The district court held that the employee was unfitted for the position he sought. We reverse the provision of the court’s judgment denying the employee promotion and remand the case with instructions for the entry of a decree that will place on the employer the responsibility of determining the employee’s qualifications without the taint of its previous discriminatory practices.

Johnie Young has worked in a warehouse of the Edgcomb Steel Company in Greensboro, North Carolina, for more than 15 years. Because he failed the Wonderlic Personnel Test, he was denied promotion to the inside sales department. Asserting that he had been disqualified because of his race, he instituted these proceedings on behalf of himself and similarly situated black persons.

The district court held that the company had violated Title VII by discriminating against its black employees through the use of a test that was not job related and through reliance on subjective factors for promotion. This ruling is securely founded on law and fact, and the company has not appealed. Similarly, the court’s relief for the class Young represents is not an issue on appeal. The district court also held, however, that Young was not qualified for promotion. It based this ruling on errors of spelling, grammar, and punctuation in his complaint to the Equal Employment Opportunity Commission and on his mispronunciation of the names of some of his co-workers when he testified. Young has appealed from this ruling of the court.

Title VII of the Civil Rights Act of 1964 unequivocally condemns the denial of promotion because of race, but it does not demand that an employee be placed in a position for which he is not qualified. Therefore, the Act grants district courts broad discretion to design appropriate equitable remedies for unlawful employment practices. Patterns for the sound exercise of this discretion are emerging from the varied factual situations found in Title VII litigation. These situations can be roughly grouped into three classifications, each requiring a different remedy. Occasionally the classifications overlap, and a single case may involve all three.

The first class concerns employees who have demonstrated in their present jobs substantially the same skills as those required for the positions to which they aspire. This situation most frequently arises when an employer has operated racially segregated departments. Courts have remedied this unlawful practice by integrating the departments or requiring the allowance of interdepartmental transfers, so that in either event a minority employee can take his “rightful place” and advance in accordance with his ability as vacancies occur. Young does not fall within this class. His job in the warehouse does not require skills substantially similar to those of an inside salesman.

Illustrative of the second class are positions requiring particular skills that are generally attained through training and experience gained at subordinate levels within the same area of specialization. Promotion to these positions occurs almost exclusively from within, along predetermined lines of progression. Unlawful employment practices which deny employees the opportunity for this type of training inevitably preclude or delay their consideration for further advancement. Despite proof of this type of discrimination, black employees who have been deprived of experience in subordinate jobs generally are not immediately eligible for higher positions in the line of progression. But if an employee is qualified by training received outside the line of progression, he is entitled to his “rightful place,” and he cannot be relegated to a position below that to which his seniority and ability would have entitled him were it not for the company’s discrimination. Young does not fall within this class because inside salesmen occupy entry level positions which the company fills by hiring new employees as well as by promotion. '

The first and second classifications have two common characteristics-— the employer’s standards for promotion are valid, but the way the employer has applied the standards to minority employees is unlawful. Thus, the employer’s standards can be utilized by a court in a nondiscriminatory manner to determine whether an employee should be advanced. It is that factor which distinguishes the first two classes from the third. In class three are those cases where the proof establishes that the employer’s standards for promotion produce a racially discriminatory effect, and, therefore, new measurements of ability are needed. However, the formulation of the new standards is not a suitable function of the district court. This responsibility can be better discharged by the company’s management which is usually more familiar with the skills that its employees should have. The discreet remedy, we believe, is for the district court to direct the employer to reevaluate its employees using nondiscriminatory, objective, job related standards. This is the type of remedy we have previously suggested under circumstances essentially similar to Young’s. By affording the employer the opportunity to specify its qualifications for promotion, the court does not abdicate its responsibility. If the need arises, the court can appraise the new standards and determine whether they are being applied without discrimination in subsequent proceedings for the enforcement of its decree.

“The Federal Judge — -awesome as are his responsibilities and powers when invoked by a timely, proper [Title VII] suit — does not sit as a sort of high level industrial arbiter to determine whether employee X rather than Y should have a promotion.”

It is - apparent that Young falls within the third class. His employer discriminatorily refused him promotion because he failed a test which the district court properly found was not related to the position he sought. However, by substituting its own criteria for promotion, the district court, as we have previously noted, undertook a function which properly belonged to management.

The company’s vice president, who was also the general manager of the plant where Young worked, testified that in selecting inside salesmen the company sought people who displayed diplomacy, intelligence, patience, initiative, attention to detail, and ability to work under stress. Additionally, the witness emphasized that an inside salesman must have concern for the welfare of the customer, while remaining loyal to the company. The company, however, has no written job description for the position and it has not established any formal educational requirements. The ability to write and speak effectively may indeed be essential, but the record does not disclose what level of competence the company normally required in this respect. Nor does the evidence establish whether presently employed salesmen write and speak more fluently than Young. Moreover, several years ago, the company rated Young’s job performance on a par with a white co-worker who was subsequently promoted to inside salesman. Of course, satisfactory performance of one task does not always foretell ability to perform another task, but Young’s excellent rating provides further indication that he should now be reevaluated by the company in a lawful manner.

That part of the court’s decree which denies Young relief is reversed; in all other respects the judgment is affirmed. The case is remanded to the district court with directions for the entry of a decree requiring the employer to reevaluate Young’s qualifications for filling the next vacancy in the inside sales force using nondiscriminatory, objective, job related standards. If a probationary period has been used to test other inside salesmen, Young should have the same opportunity to demonstrate his qualifications since he has already shown ability in his present job comparable to that of a white employee who was previously promoted. The district court should determine what provisions are appropriate for seniority and job retention in the event Young is transferred from the warehouse to inside sales. In due course, the district court should also rule on Young’s claim for back pay. Young shall recover his costs.

      . Title 42 U.S.C. § 2000e-2(a) (1972).

      . Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

      . Title 42 U.S.C. § 2000e-5(g) (1972).

      . See, e. g., United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973).

      . See, e. g., United States v. Chesapeake and Ohio Ry. Co., 471 F.2d 582 (4th Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).
      The “rightful place” theory for relief was explained in Note, Title VII, Seniority Discrimination and the Incumbent Negro, 80 Harv.L.Rev. 1260, 1268 (1967), as follows:
      “[T]he ‘rightful place’ approach would allow an incumbent Negro to bid for openings in ‘white’ jobs comparable to those held by whites of equal tenure, on the basis of his full length of service with the employer. If he met the existing ability requirements for such a job, he would be entitled to fill it, without regard to the seniority expectations of junior white employees.”
      This theory has been utilized frequently to shape appropriate remedies. See United States v. Georgia Power Co., 474 F.2d 906, 927 (5th Cir. 1973).

      . See e. g., Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157 (8th Cir. 1971). Although ’ the Marquez court found that the employee was not qualified for the position he sought, it ordered his advancement to a lower job in the hierarchy for which he was plainly fitted.

      . Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 249 (5th Cir. 1974).

      . Judge Brown’s observations in Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 1968), albeit a factually dissimilar case, are pertinent:

      . See United States v. Jacksonville Terminal Co., 451 F.2d 418, 458 (5th Cir. 1971) ; Equal Employment Opportunity Commission Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 (1973) ; Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59 (1972).

      . In Griggs v. Duke Power Co., 420 F.2d 1225, 1236 (4th Cir. 1970), rev’d in part on other grounds, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), we said:
      “The educational and test requirements are invalid as applied to [‘certain employees’] eligibility for transfer and promotion. Thus, on remand, the district court should award proper injunctive relief to insure that these six employees are considered for any future openings without being subject to the educational or testing requirements.”

      . See United States v. Bethlehem Steel Corp., 446 F.2d 652, 659 (2d Cir. 1971); Griggs v. Duke Power Co., 420 F.2d 1225, 1236 (4th Cir. 1970), rev’d in part on other grounds, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

      . Title 42 U.S.C. § 2000e-5(g) ; Robinson v. Lorillard, 444 F.2d 794, 801 (4th Cir. 1971).


author: PER CURIAM. COFFIN, Chief Judge

text:
    Robert W. FLINT, Jr., Petitioner, Appellee, v. James MULLEN, Warden, etc., Respondent, Appellant.
    No. 74-1061.
    United States Court of Appeals, First Circuit.
    Argued May 9, 1974.
    Decided June 25,1974.

      Donald P. Ryan, Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellant.
    Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

This is an appeal by the State of Rhode Island from a decision by the district court, 372 F.Supp. 213, which granted an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on grounds that the petitioner was forced to make an unconstitutional choice between not taking the stand at his deferred sentence violation hearing, thereby sacrificing due process rights, or speaking up in his own defense and thereby risking self-incrimination in an upcoming criminal trial, based upon the same incident.

Petitioner was on probation, pursuant to a deferred sentencing procedure authorized by Rhode Island General Laws (1956) § 12-19-19, when he was arrested and indicted for bank robbery. Subsequent to the indictment, but prior to the criminal trial for robbery, the state moved to declare petitioner in violation of the deferred sentence agreement. Stressing that the deferred sentence violation hearing would compel him to reveal his defense prior to the criminal trial, petitioner thereupon moved pro se for leave to file writs of prohibition and mandamus in the Rhode Island Supreme Court, seeking to postpone the hearing until after trial. The motion was denied, Flint v. State, 106 R.I. 823, 259 A.2d 416 (1969), as was petitioner’s application to us, Flint v. Rhode Island, No. 361 (Jan. 8, 1970).

A violation hearing was held before the Superior Court at which time the petitioner had the right to be heard personally, Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964), and the state had to present factual material proving that it was reasonable to believe Flint had failed to comply with the terms of his probation. Tillinghast v. Howard, 109 R.I. 497, 287 A.2d 749 (1972). Petitioner personally, as well as through his appointed counsel, again protested the holding of a revocation hearing before the trial. His motion for deferral was again denied. Petitioner’s counsel then stated that there were facts favorable to the defense which should be presented at the hearing and that, in his opinion, the defendant should take the stand and testify. Calling five witnesses, all of whom were cross-examined by petitioner or by his counsel, the state presented evidence that defendant’s brother, John, had robbed a bank and that defendant had participated by driving the getaway car in which he and his brother were arrested shortly after the robbery in the vicinity of the bank. Petitioner then informed the court that he and his counsel were in disagreement. Counsel was permitted to withdraw, and new counsel was appointed. At the close of the presentation of the state’s evidence, the newly appointed counsel informed the court that- petitioner chose neither to present evidence nor to- take the stand because he did not wish to disclose his defense, planned for the upcoming trial. The Superior Court found petitioner in violation of his deferred sentence agreement and sentenced him to twelve years. The court emphasized that its finding was not just because an indictment was returned; it summarized the evidence and noted “we have given [defendant] the opportunity of being faced by his accusers.” Petitioner was subsequently tried and acquitted on- the robbery charge which had been at issue in the deferred sentence violation hearing.

The district court concluded that petitioner was denied due process at his deferred sentence revocation hearing, in violation of the standards enunciated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973), insofar as he was not provided with use immunity for statements he might have made in his defense. We believe, however, that the right not to speak embodied in the Fifth Amendment is not equivalent to a right to volunteer information to the government under a grant of immunity. In Simmons, supra, the Court determined that a rule which required a defendant to testify at a pretrial suppression hearing, in order to assert his Fourth Amendment claims, created an unconstitutional “tension” with defendant’s Fifth Amendment privilege against self-incrimination, since “a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment claim.” Id. at 392. In Palmigiano, supra, the court held that when an inmate’s silence is held against him, he must be provided “use” immunity for his testimony at a prison disciplinary hearing. We said that in those circumstances he faced “the constitutionally obnoxious dilemma of either remaining silent and risking greater punishment from the disciplinary board or speaking out in his own defense and risking self-incrimination in a subsequent criminal prosecution.” Id. at 1288.

Neither Simmons nor Palmigiano is directly applicable to a deferred sentence violation hearing. Unlike the defendant in Simmons, petitioner was never faced with a choice between raising one constitutional right and foregoing another. The choice whether or not to exercise one’s Fifth Amendment right to remain silent must often be made in a setting where there is a concomitant due process right to be heard. Petitioner’s decision was, in effect, the same choice he or any other defendant must make when brought to trial. In Simmons, the penalty for remaining silent was waiver of a Fourth Amendment claim; in Palmigiano the inmate was specifically advised that his silence would be held against him. Here, however, the government had to prove its case by extrinsic evidence and there is no indication that defendant was penalized for silence except to the degree that anyone who claims the privilege may be said to fore-go the possibility of persuading a court in his favor.

In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), which involved a defendant in a unitary trial faced with the difficult choice of speaking out for a lenient sentence and risking self-incrimination, or remaining silent and risking a harsh sentence, the Court held the choice did not unconstitutionally burden the defendant’s Fifth Amendment right. The Court reasoned that “[t]he criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow . . . . ,” id. at 213, such as a defendant’s decision whether to take the stand and risk strenuous cross-examination and proof of prior convictions. The defendant’s difficult, but not unconstitutional, choice in McGautha’s unitary trial is essentially the same difficult, but not unconstitutional, choice faced by petitioner in the violation hearing. The possibility of a subsequent proceeding is not a critical difference. A defendant at a criminal trial for a substantive offense may wish to speak in his own defense but refrain, fearing a subsequent conspiracy prosecution. The choice is a strategic one, within a setting which requires many strategic choices.

We would view the choice as less strategic were an adverse finding to be based on the fact of defendant’s silence, rather than independent evidence, as here. In Palmigiano, supra, the defendant’s silence in the prison disciplinary hearing could not be viewed merely as a strategic alternative, since he was advised that it would be held against him. Moreover, he had no right to appointed counsel, the role of retained counsel was limited, the right to call witnesses and cross-examine them was undermined by the possibility that the disciplinary board would rely upon informants, and the proceeding was conducted and the facts ultimately determined by correctional officials. Petitioner, however, was provided with counsel, and both petitioner and his counsel had full opportunity to cross-examine every adverse witness and could have called their own. O’Neill v. Sharkey, 107 R.I. 524, 268 A.2d 720 (1970). The violation hearing was conducted before the State Superior Court. Although the burden of proof was less than that required in a criminal trial, Tillinghast v. Howard, supra, it was not so low that, as in Palmigiano, supra, a mere allegation of wrongdoing, unaccompanied by defendant’s explanation or denial, would result in an adverse finding. In McGautha, supra at 213, the Court stated: “It is not contended, nor could it be successfully, that the mere force of evidence is compulsion of the sort forbidden by the privilege.”

Petitioner urges upon us a broader analogy than Palmigiano, and likens his plight to that of the defendants in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), where the Court held unconstitutional various penalties (disqualification from public bidding, removal from office, and disbarment) which attached to the valid exercise of the privilege against self-incrimination. Petitioner would have us view the risk of an adverse judgment in the violation hearing as a penalty upon petitioner’s right to remain silent in his subsequent criminal trial, stemming from the same incident.

Yet not every undesirable consequence which may follow from the exercise of the privilege against self-incrimination can be characterized as a penalty. For example, it is unlikely that a state’s refusal to issue a driver’s license unless an applicant’s name, address, and previous driving record were provided, would be viewed as a penalty upon the applicant’s Fifth Amendment right not to divulge such information. Cf. Garner v. United States, 501 F.2d 228 (9th Cir., en banc, 1974). If the risk of an adverse judgment in the violation hearing were to be viewed as a penalty upon petitioner’s right to remain silent in his subsequent criminal trial, stemming from the same incident, the same characterization would, no doubt, apply to the risk of an adverse judgment in any proceeding in which there is a recognized due process right to be heard and which is based on the same fact situation as a subsequent criminal trial. The result of such a broad rule might be to immunize whole classes of testimony from use in subsequent criminal trials, and place an unwarranted burden upon the state.

More importantly, the trilogy of Supreme Court employment cases on which petitioner relies all involved instances where the government was attempting to collect information for the express purpose of supplying evidence in subsequent criminal trials. Lefkowitz, supra at 81. Under these circumstances, the Court recognized that the Fifth Amendment privilege against self-incrimination was directly burdened by any penalty placed upon its exercise. Petitioner’s violation hearing, however, was not conducted for the express purpose of gathering evidence for his subsequent criminal trial. On the contrary, its purpose was to give petitioner an opportunity to be heard. The suggestion in the dissent that Rhode Island may have used the violation proceeding to gather evidence is totally inapplicable to any of the present facts; and defendant’s failure to testify at his criminal trial makes it speculative, at best, that the pendency of the latter proceeding somehow “coerced” him into silence.

To the extent that petitioner’s argument is based upon what seems to be an unfair consequence of holding the violation hearing before the criminal trial — that petitioner could be convicted of violating his deferred sentence agreement, only to be acquitted, pursuant to a higher burden of proof, at his criminal trial — we sympathize. In the ordinary case, we see little public interest served by this kind of timing. Were the order reversed, the alleged violator could be held on high bail or without bail if he were a poor bail risk. If there were a criminal conviction, the subsequent violation decision would be simple; if there were an acquittal, the court conducting the violation hearing could proceed with full knowledge of that result, remaining free to weigh evidence by a lower standard, but having in mind the acquittal. The result is apt to be, if not also appear, more just.

This would be a different case if the penalty for violating the deferred sentence agreement — institution of the deferred sentence — were really a penalty for committing the very offense which had violated the agreement, since we would then have to consider whether the violation hearing met all the constitutional requirements for a criminal trial. The subsequent criminal trial, under these circumstances, might also raise problems of double jeopardy. But the record is silent on this point and it was not raised below. Petitioner was sentenced to twelve years in prison for violating his deferred sentence agreement. The agreement had been in lieu of a prison sentence for conviction on one count of robbery. Although the other two counts had resulted in a six year concurrent sentence, robbery carries a maximum penalty of life imprisonment, Rhode Island General Laws § 11-39-1 '(1956; 1969 Reenactment).

Perhaps it would be preferable had the deferred sentence agreement stipulated the maximum sentence to be imposed if the agreement were violated, just as it would be preferable for the state to have held the violation hearing after the criminal ’ trial. The Constitution, however, does not require the state, in every case, to adopt what appear to be preferable procedures. On the record before us, we are unable to find any basis for saying that the occasional unfairness which results from the state’s ordering of the two proceedings, and convicting at the violation hearing while acquitting at the subsequent criminal trial, reaches unconstitutional proportions.

Reversed.

COFFIN, Chief Judge

(dissenting).

As I read Simmons, supra, and the employment cases, Lefkowitz., Garrity, and Spevack, a principle emerges which, in my opinion, should control the instant case: the government should not be in a position where it might be tempted by potentially coercive means to short-cut its broad investigatory responsibilities and its obligation, if it wishes to punish an individual, to “produce the evidence against him by its own independent labors”. Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). Regardless of the government’s good intentions in requiring a defendant to establish standing under the Fourth Amendment, or disqualifying contractors and removing officials from office who might be bribe-takers (and who have failed to offer information which might dispel that suspicion), these circumstances carry with them too much danger that government power to grant or deny rights and privileges will be used coercively. The safeguards which courts have created around the exercise of the Fifth Amendment’s privilege against self-incrimination are essentially bulwarks against abuse of the government’s coercive power.

In the instant ease, the government’s ability to time the violation hearing, with its lower burden of proof, so that it comes before the criminal trial on the same charge, enables the government to gain evidence for the criminal trial the easy way. The right to be heard personally in the deferred sentence violation proceeding — the right to explain one’s “side of the story” — has been thought so important to an alleged violator that Rhode Island elevated it to a constitutional requirement a decade ago, Harris v. Langlois, 98 R.I. 387, 202 A.2d 288 (1964). Yet, with the government in control of the timing of the two proceedings, an alleged violator can explain his “side of the story” only by opening himself to self-incrimination in the subsequent criminal proceeding. Control over the timing of the two proceedings is as potentially coercive as control over removal from office or disqualification from public bidding. The fact that in this ease the petitioner was subjected to a twelve year sentence for his violation while being later acquitted of the crime itself illustrates the temptations facing the government in being able to accomplish by a lower burden of proof what it would risk in a criminal trial. I see little inconvenience to the state: bail conditions or restrictions are available for the parolee awaiting trial; should the state wish to press ahead on a violation hearing in advance of trial, it could do so if it immunized the parolee for his testimony — all it would be sacrificing would be evidence which would normally be unavailable to it.

The pressures on the parolee, the latent possibility of manipulation of timing, and the minimal inconvenience placed on the state are such that I would affirm the opinion of the district court, with the proviso that the state be given the choice of providing use immunity or postponing the violation hearing until after the criminal trial.

      . The state argues that petitioner’s real concern was that he did not wish to disclose his defense, rather than that he feared self-incrimination. Yet however much he was motivated by a desire not to disclose exculpatory evidence, it seems reasonable to assume that anyone who testified in his violation hearing, preceding a criminal trial stemming from the same incident, would also run the risk of disclosing inculpating evidence, particularly when opening himself to cross-examination. We shall assume that both motives were present.

      . Petitioner had pleaded guilty five years before to three counts of robbery. He was sentenced to prison on two of these. On the third, pursuant to the deferred sentence procedure, he was placed on probation for five years from the date of his release from prison on the first two counts. As a precondition to the benefits of the deferred sentence procedure, defendant had signed an agreement with the Attorney General that sentence might be deferred “during the good behavior of the defendant, and so long as the Attorney General is satisfied that the defendant had broken none of the criminal laws of this state since the date of this agreement.”

      , After the violation hearing, the brother pleaded guilty and was sentenced. Thereafter, at defendant’s trial (at which defendant did not take the stand), the brother testified that defendant had taken no part in the crime. At the violation hearing, defendant’s counsel had expressed interest in calling the brother but noted, doubtless correctly, that the brother would probably refuse to testify on grounds of self-incrimination.

      . The timing of the .hearing before the criminal trial may not be all to the accused’s detriment. If the Court found that the accused did not commit the crime, that finding might well be res judAeata. See IB J. Moore, Federal Practice ¶ 0.418 [1], at 2702, n. 5 (2d ed. 1974).

      . In fairness to the state, however, it should be recognized that there could be justifications for “violating” an individual though his guilt probably cannot be proven beyond a reasonable doubt at a criminal trial. For example, the government may have convincing evidence that a mobster took part in several serious crimes within the period of a deferred sentence, but, because certain witnesses fear testifying, may be in doubt whether it can secure a conviction under the higher proof and evidential standards obtaining in a criminal proceeding. Deferred sentencing and parole arrangements necessarily assume that the state retain sufficient effective control over one conditionally set at large to make such flexible sentencing a socially attractive and realistic alternative.