text:
    SULLIVAN ELECTRIC COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-2104.
    United States Court of Appeals, Sixth Circuit.
    Argued April 18, 1973.
    Decided June 19, 1973.

      Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, Tenn., on brief, for petitioner.
    Steven C. Kahn, N.L.R.B., Washington, D. C., for respondent; Elliott Moore, Deputy Asst. Gen. Counsel, Washington, D. C., on brief.
    Before EDWARDS and MILLER, Circuit Judges, and LAMBROS, District Judge.

       Honorable Thomas D. Lambros, United States District Judge for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

Petitioner, Sullivan Electric Company, seeks review and setting aside of an order of the National Labor Relations Board requiring it to recognize and bargain with a union and to reinstate 13 employees. The Board in turn petitions for enforcement of its order (199 N.L.R.B. 97 (1972)).

Petitioner, Sullivan, is an electrical contractor based in Nashville, Tennessee. The instant dispute concerns Sullivan’s operation on a construction project in Madisonville, Kentucky, where it was employing a 17-man crew, largely hired from the vicinity and under supervision of a superintendent.

On October 8, 1970, a union representative for the International Brotherhood of Electrical Workers contacted petitioner’s superintendent, told him he had signed up a majority of the Madison-ville employees, and demanded recognition and bargaining. On being told by the superintendent that he had no authority to deal with such matters and that he would have to talk to the company officials in Nashville, the IBEW representative left and indicated that there would be a strike the following day unless they heard from the company. Later that afternoon the superintendent distributed pay checks to the employees and (as found by the Hearing Examiner and the Board subsequently from substantial evidence) asked ten or eleven of the seventeen employees whether they had signed up, in each instance receiving an affirmative answer.

The following day the union did call a strike and thirteen of the employees failed to report for work. The company replaced them with other company employees sent in from outstate. On October 27, when an unconditional offer to return to work was made, the company informed the men that they had been permanently replaced.

On these facts the Board found that the company had voluntarily conducted a poll of its employees and thus ascertained that in fact a majority of them had joined the union. On that basis the Board found that the company had violated the Act in refusing to bargain and that therefore the strike had been an unfair labor practice strike and the company was required to reinstate the thirteen employees with back pay. The Board found the company’s refusal to reinstate to constitute violations of sections 8(a)(1) and 8(a)(3) of the Act. (29 U.S.C. § 158(a)(1) and (3) (1972)).

There is substantial evidence to support the Board’s finding that the employer’s own poll disclosed a clear union majority. If the facts warranted the Board’s finding of a duty to bargain, clearly there was substantial evidence on the whole record to support the Board’s findings of 8(a)(1), 8(a)(3) and 8(a)(5) violations.

Although the petitioner had briefed this case as if it were a substantial evidence case, at oral argument petitioner’s counsel contended principally that the Board’s finding of a duty to bargain and violation of 8(a)(5) was inconsistent with the Board’s own cases, including Green Briar Nursing Home, Inc., et al., 201 N.L.R.B. 73 (1973); R & M Electric Supply Co., 200 N.L.R.B. 59 (1972), and Linden Lumber Division, Summer & Co., 190 N.L.R.B. 116 (1971). In these cases the Board was engaged in interpreting the effect of the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). There the Supreme Court recognized the discretionary right of the Board to enter a remedial bargaining order based on employee choice of a union as expressed through representation cards where employer unfair labor practices had been such as to damage the possibility of a fair NLRB election.

In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. NLRB v. Gissel Packing Co., supra at 614-615, 89 S.Ct. at 1940. (Footnote omitted.)

In Gissel the Supreme Court also said, with apparent approval:

The Board pointed out, however, (1) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union, . . . . Id. at 594, 89 S.Ct. at 1930.

In the instant case the Board held that petitioner had discovered by means of its poll that the union had a majority, and that it could not thereafter disclaim the result. Green Briar Nursing Home, Inc., 201 N.L.R.B. 73 (1973); Soil Mechanics Corp., 200 N.L.R.B. 60 (1972); Sullivan Electric Co., 199 N.L.R.B. 97 (1972); Nationwide Plastics Co., Inc., 197 N.L.R.B. 136 (1972).

In Green Briar Nursing Home (a case relied upon by petitioner) the Board provided its own rationale for reconciling its post-Gissel cases:

In Linden Lumber and our later decision in Sullivan Electric Company, [1972 CCH NLRB ff 24,699] 199 NLRB No. 97, we made it clear that an employer will not be found in violation of Section 8(a)(5) of the Act solely upon the basis of his refusal to accept union-proffered evidence of majority status other than the results of a Board election, unless his conduct precluded resort to an election In those cases we pointed out that an election would be precluded by substantial employer misconduct in violation of the Act, by an employer’s action in agreeing upon another method of ascertaining whether a union majority existed, or by an employer’s conduct of a poll of employees which established the existence of a majority. None of these factors, nor any others precluding a resort to an election, exists here; as noted infra, the Employer’s misconduct was not found to be of a character which would prevent the running of a fair election. We therefore find that the Respondent did not violate Section 8(a)(5) of the Act by refusing to bargain with the union despite the union’s asserted card majority. Green Briar Nursing Home, Inc., 201 N.L.R.B. 73 (1973). (Footnote omitted.) (Emphasis added.)

We believe the Board’s reasoning in establishing the above-described exceptions to the general policy of determining bargaining representation by a Board election is consistent with the leading case law established in NLRB v. Gissel, supra.

Enforcement of the Board’s order is granted.

      . Local 1701, International Brotherhood of Electrical Workers, AFL-CIO.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Minot Wayne ESTESE, Defendant-Appellant.
    No. 72-2067.
    United States Court of Appeals, Sixth Circuit.
    Argued April 6, 1973.
    Decided and Filed June 19, 1973.
    Terry M. Tranter (Court Appointed), Cincinnati, Ohio, for defendant-appellant.
    Byron E. Trapp, Asst. U. S-. Atty., for plaintiff-appellee; William W. Milligan, U. S. Atty., Anthony W. Nyktas, Asst. U. S. Atty., Cincinnati, Ohio, on brief.
    Before WEICK and EDWARDS, Circuit Judges, and PRATT, District Judge.

       Honorable Philip Pratt, United States District Judge for the Eastern District of Michigan, Southern Division, sitting by designation.

   PER CURIAM.

Appellant appeals from his conviction before the United States District Court for the Southern District of Ohio on the charge of possession of an illegal firearm (a sawed-off shotgun), in violation of 26 U.S.C. § 5861(b) (1970). He was tried to the court without a jury and sentenced to a term of one year on probation.

Appellant’s appeal is directed solely at the denial by the District Judge of appellant’s motion to suppress evidence, i. e., the sawed-off shotgun. This motion was heard and decided before the trial itself.

Relevant facts include these: Local police responded to a radio call reporting a breaking and entering at appellant’s apartment. They found the door open and observed evidence that it had been pried open. Appellant was not at home at the time. After police reinforcements arrived, the officers entered the apartment' and searched for the burglar. They found a cereal bowl full of marijuana in plain view on the table, and on looking under a water bed, where a burglar could have been hiding, they found a broken-down sawed-off shotgun emplaced in the holes of the concrete block supports employed for the bed.

The police then left the shotgun in place and left one of their members guarding the building while others sought an arrest warrant for appellant. They also summoned federal officers to the scene to look at the weapon.

When appellant returned to his apartment, he was arrested and the sawed-off shotgun was removed. After Miranda warnings, appellant admitted ownership of the gun.

On these facts appellant contends that the warrantless seizure of the gun required the District Judge to suppress evidence, including the gun and the statements of an inculpatory nature made by appellant.

The District Judge’s rationale in denying the motion to suppress is set forth in the record on said motion as follows:

As far as the facts go, they aren’t in dispute. It is clear that the Silver-ton Police were called to this apartment and believed and had reason to believe that a burglary was in progress. It just has not been disputed, and that the report came in and that in response to a call the first officer got there, saw pry marks on the door, saw the door ajar and believed, properly, that the burglary suspect might still be in there. So, he called for assistance.
When he called for assistance, the Chief and another patrolman responded. They searched the apartment as they were required to under the circumstances to see if the burglar was anywhere under the bed, behind the curtains, in closets. And that was a good idea for the additional reason that it was something they should do, too, in the interests of their own safety. In other words, there were exigent circumstances, to use the wording of the cases.
What they saw in plain view they had a right to seize.

Clearly in this case the basic invasion of appellant’s privacy had been accomplished by the burglar. Subsequently facts indicated that he had made off with appellant’s TV before the officers arrived. On their arrival the officers had no way of knowing this, but there was probable cause for the officers on the scene to believe that a burglary had been or was being committed and to search the apartment for the burglar.

We likewise believe that the discovery of the sawed-off shotgun under the water bed in the course of the search referred to immediately above should be regarded as invoking the plain view doctrine of Harris v. United States, 390 U. S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). In the Harris case the Supreme Court said:

It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43 [83 S.Ct. 1623, 1634] 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U. S. 559 [47 S.Ct. 746] 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57 [44 S.Ct. 445] 68 L.Ed. 898 (1924). Harris v. United States, supra 390 U.S. at 236, 88 S.Ct. at 993.

Since the officers never left the scene or gave up effective possession of the sawed-off shotgun, we feel the District Judge was justified in viewing the seizure as having been accomplished during the lawful search for the burglar. Cf. Chambers v. Maroney, 399 U. S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

The judgment of the District Court is affirmed.


author: PER CURIAM:

text:
    Mary LAYTON and Stanley Gregory Walker, etc., PetttionersAppellants, v. Dale CARSON, as Sheriff of Duval County, Fla., et al., Respondents-Appellees.
    No. 73-1913
    Summary Calendar.

    United States, Court of Appeals, Fifth Circuit.
    June 18, 1973.
    Deitra Micks, Duval County Legal Aid Assoc., Jacksonville, Fla., for petitioners-appellants.
    Charles W. Arnold, Jr., First Asst. State Atty., Jacksonville, Fla., Reeves Bowen, Asst. Deputy Atty. Gen., Dept, of Legal Affairs, for respondents-ap-pellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This is an appeal from a dismissal by the district court of a habeas corpus petition for failure to exhaust state remedies. We conclude that it would be futile for the appellants to apply for relief in the state courts. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings.

The appellants, Mary Layton and Stanley Walker, were convicted of shoplifting in a Florida Justice of the Peace Court and each was ordered to pay a $200 fine or spend 60 days in jail. Since they were indigents and unable to pay the fines, they were automatically committed to jail. Layton and Walker brought petitions for writs of habeas corpus in Duval County Circuit Court, alleging that they had been imprisoned solely because of their indigency. The Circuit Court granted the writs, vacated the sentences, and remanded for resentencing. On remand the sentencing court, knowing that Layton and Walker were indigent, vacated the fines and sentenced them to 19 and 23 days’ imprisonment respectively. Layton and Walker then filed habeas corpus petitions in federal district court challenging the constitutionality of the state court’s action in resentencing them to imprisonment without providing them the option of paying a fine by some alternative means. The district court dismissed their petitions for failure to exhaust state remedies. Layton and Walker brought this appeal, contending that resort to the state courts would have been futile in light of the Florida Supreme Court’s decision in Phillips v. Allen, Fla. 1971, 255 So.2d 528.

Petitioners for federal habeas corpus need not exhaust state remedies when it is plain that resort to the state courts would be futile. If the state’s highest court has recently rendered an adverse decision in an identical case, and if there is no reason to believe that the state court will change its position, a federal court should not dismiss a petition for federal habeas corpus for failure to exhaust remedies. See Davis v. Smith, 5 Cir. 1970, 430 F.2d 1256; Bruce v. Beto, 5 Cir. 1968, 396 F.2d 212; McDonald v. Moore, 5 Cir. 1965, 353 F.2d 106; Reed v. Beto, 5 Cir. 1965, 343 F.2d 723, aff’d on other grounds sub nom. Spencer v. Texas, 1967, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606; Rowe v. Peyton, 4 Cir. 1967, 383 F.2d 709, aff’d, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed. 2d 426.

In Phillips v. Allen, Fla.1971, 255 So.2d 528, decided little more than a year ago, the Florida Supreme Court had before it a case substantially similar to the present case. Phillips, an indigent, had been given an alternative sentence of jail or fine, and because of his inability to pay the fine he was imprisoned. His sentence was vacated on his application for state habeas corpus. On remand the sentencing court vacated his fines and resentenced him to a shorter term of imprisonment. Phillips challenged the modified sentence on the same theory advanced by the appellants in the present case. The Florida Supreme Court held that the modified sentence did not violate his constitutional rights, stating that:

With this modification of petitioner’s sentences, any issue regarding the fine evaporates and no further question exists regarding a possible violation of Tate v. Short, supra, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) or Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970).

255 So.2d at 528-529.

Since the present case is indistinguishable from Phillips, and since we find no reason to expect that the Florida Supreme Court would depart from its precedent in Phillips, it is apparent that resort by the appellants to the state courts would be futile. The district court therefore erred in dismissing their petitions for failure to exhaust state remedies.

Exhaustion is the sole point raised before this Court. The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion, but without intimating any view whatsoever on the merits of petitioner’s claim.

      . See Tate v. Short, 1971, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; Morris v. Schoonfield, 1970, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773; Williams v. Illinois, 1970, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586; Frazier v. Jordan, 5 Cir. 1972, 457 F.2d 726.

      . See Frazier v. Jordan, 5 Cir. 1972, 457 F.2d 726, 729-730.

      . The appellee suggests that this case is distinguishable from PMllips in that, in the present case, the sentencing judge learned that the appellants were indigent before resentencing them. Presumably the sentencing judge in Phillips had the same knowledge, however, since the Florida Supreme Court in Phillips directed reconsideration of the sentence in light of Tate v. Short, 1971, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130, and Martin v. State, Fla.1971, 248 So.2d 643.