text:
    Kenneth EASTIN et al., Plaintiffs-Appellants, v. CITY OF NEW ORLEANS et al., Defendants-Appellees.
    No. 73-3350
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 8, 1973.
    Kenneth J. Berke, New Orleans, La., for plaintiffs-appellants.
    Byron P. Legendre, Asst. Dist. Atty., Charles Foti, Jr., New Orleans, La., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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:

After viewing a film entitled “Deep Throat” an officer of the New Orleans Police Department made a detailed affidavit for a search warrant of the motion picture house for the purpose of seizing and confiscating the film prints as being obscene. A judge of the municipal court issued the warrant without holding a prior adversary hearing. Not only were prints of the film taken but check stubs, personnel records, and an address book were also seized. Two employees, Eastin and Brazier, arrested for contributing to the delinquency of a minor, and the owner of the theater brought suit in the district court for the return of property, for an injunction from interfering with the exhibition of the picture or other films, and for an order suppressing the use by the defendants of any material seized in any proceeding against Eastin and Brazier.

At the hearing before the district court the defendants offered to return to the plaintiffs everything seized except one print of the film which they desired to retain for use as evidence in the State court proceeding against Eastin and Brazier, for contributing to the delinquency of a juvenile and not for the purpose of confiscating the print as obscene. The district court made this tender a part of the record and, finding no bad faith harassment in connection with the State court prosecution, denied the plaintiffs injunctive relief against further proceedings in the State court. The court took under advisement the defendant’s motion to dismiss. This appeal ensued.

We are convinced that the plaintiffs have failed to make any showing of bad faith, harassment or any other unusual circumstance that would call for equitable relief. Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward Mickael RYTMAN, Defendant-Appellant.
    No. 72-3366
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 20, 1973.
    Brooks Taylor, Crestview, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

Rytman was convicted of a misdemeanor violation of 18 U.S.C. § 641, having been found guilty of knowingly retaining an air-conditioner compressor stolen from the United States Government.

The sole issue on appeal is whether or not the search warrant described the item with the particularity necessary to withstand the strictures of the Fourth Amendment.

The item was described in the search warrant as a Bendix-Westinghouse motor compressor CH490TA-9-2085, Serial #AA00-2002, located in an air conditioning unit at appellant’s home. In actuality the stolen part was a Bendix-Westinghouse motor compressor CH490 TA-9-A2085, Serial #A90-2002.

An error in a description is not automatically fatal to the validity of a search warrant. United States v. Melancon, 462 F.2d 82, 94 (5th Cir., 1972); United States v. DePugh, 452 F.2d 915 (10th Cir., 1971).

In the present case there was only one air conditioning unit located at the described premises, and, further, only one Bendix compressor installed in said unit. The warrant cannot be described as sanctioning a general exploratory search. Nor does the inclusion of a slightly erroneous numerical series give rise to a discretionary determination on the part of the executing officer.

We are satisfied that the Fourth Amendment requirement of particularity has been met.

The judgment of the district court is affirmed.


text:
    Clarence TATE, Jr., Petitioner-Appellant, v. Olin G. BLACKWELL, Warden, et al., Respondents-Appellees.
    No. 71-1577

    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 15, 1973.
    Certiorari Denied May 29, 1973.
    See 93 S.Ct. 2743.
    Clarence Tate, Jr., pro se.
    John W. Stokes, Jr., U. S. Atty., Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    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:

Clarence Tate, Jr., an inmate of the United States Penitentiary in Atlanta, Georgia, initiated the present action under the Civil Rights Act, 42 U.S.C. § 1983 et seq., against his warden and others for damages resulting from personal injuries allegedly incurred while engaged in assigned duties at the prison. Tate contended that Warden Blackwell and other prison officials conspired to make him fall off a ladder in order to deprive him of his constitutional rights. The district court granted defendants’ motion for judgment on the pleadings. We affirm.

It is evident from the complaint the plaintiff relies solely upon the negligence of the prison authorities and there is no connection between the defendants’ alleged negligence and the deprivation of any of the plaintiff’s constitutional rights. Our decision is without prejudice to the plaintiff’s right to pursue a possible remedy under 18 U.S.C. § 4126, which provides compensation for federal prisoners injured in the performance of assigned work duties at a federal penitentiary.

Affirmed.


author: HASTINGS, Senior Circuit Judge. SWYGERT, Chief Judge.

text:
    LOCAL 7-210, OIL, CHEMICAL AND ATOMIC WORKERS, INTERNATIONAL UNION, AFL-CIO, Plaintiff-Appellant, v. UNION TANK CAR COMPANY, Defendant-Appellee.
    No. 71-1798.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 3, 1972.
    Decided March 7, 1973.
    Rehearing En Banc Denied Apr. 27, 1973.

      Arnold E. Charnin, Chicago, Ill., for plaintiff-appellant.
    Harvey M. Adelstein, Joel H. Kaplan, Chicago, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge.

      . The company would avoid this analysis by noting that arbitrator Platt “did not hold that the Company violated the OCAW agreement by moving the work from Whiting or that it was required to build a new plant separate and apart from Plant No. 1.” Def. Brief at 33 (emphasis supplied). This may be true if the arbitrator’s opinion is read narrowly, but it is hardly a compelling reason to reverse the arbitrator when his ultimate determination of a contract violation is unimpeachable. It is also significant that the company does not argue that OCAW failed to raise the above contentions before the arbitrator.

   HASTINGS, Senior Circuit Judge.

On April 6, 1971, pursuant to § 301 of the Labor Management Relations Act, as amended, Title 29, U.S.C.A. § 185, plaintiff-appellant, Local 7-210, Oil, Chemical and Atomic Workers International Union, AFL-CIO (OCAW), filed .an action in the federal district court against defendant-appellee, Union Tank Car Company (Company). It sought thereby to enforce compliance with the provisions and award of a decision by Labor Arbitrator Harry Platt.

This action was the culmination of the tortuous course of a labor dispute between the parties. The administrative procedures included an initial and final decision by Arbitrator Platt, a succession of unfair labor practice charges, representation petitions and unit clarification petitions before the National Labor Relations Board and a decision by Impartial Umpire David Cole under the AFL-CIO Internal Disputes Plan.

For many years the Company had been engaged in the manufacture of

railway tank cars for lease and sale and in the repair and maintenance of completed tank cars at plants located throughout the United States, including facilities involved here located at East Chicago and Whiting, Indiana.

The facility in East Chicago was located on Tod Avenue. Until the latter part of 1969, it was primarily used in the manufacture (fabrication) of tank car shells. Aside from some tank car finishing functions there, the usual procedure was to ship the tank car shells to its Whiting plant for finishing. In 1961, the Whiting facility had been engaged principally in the repair and maintenance of damaged tank cars.

In 1966, the Company acquired a vacant facility, known as Plant No. 1, in East Chicago, across the street from its Tod Avenue plant. It then began remodeling Plant No. 1 with the intention of building, for the first time, an integrated manufacturing facility where new tank cars could be completely manufactured in one place. At that time the Company claimed it had no intention of curtailing the finishing operations at Whiting but did plan to engage in finishing operations at Plant No. 1 when it was ready. In late 1969, because of financial reasons, such as market projections, general economic forecasts and orders, the Company decided, sometime after Plant No. 1 was completed, that it would not be feasible to maintain Whiting as a finishing operation. Accordingly, in early 1970, the major portion of the finishing operation was curtailed there and Whiting went back to being a repair and maintenance facility. By late 1970, finishing work at Whiting ceased.

In the meantime, fabrication work commenced at Plant No. 1 in 1968 and was timed with the phase-out of the Tod Avenue plant. It was accomplished by the transfer of employees from Tod Avenue. By August 1970, peak employment at Plant No. 1 was reached. This included 200 employees working in the finishing operation, some of whom had been transferred from Whiting.

Beginning in 1945, when the Tod Avenue plant in East Chicago was owned and operated by Graver Tank and Manufacturing Company, and continuing from 1957, when it was acquired by the Company, the production and maintenance employees in East Chicago were and still are represented by Local 374, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Boilermakers). Likewise, at all times relevant here, the employees performing finishing and repair and maintenance work at Whiting were represented by OCAW. Boilermakers and OCAW were parties to separate collective bargaining agreements with the Company at all material times. All employees at Plant No. 1 were covered by the Boilermakers’ contract. After notifying OCAW of its intention to curtail the Whiting operations, the Company and OCAW were unable to resolve their differences, OCAW taking the position that the Company was required to apply the OCAW agreement to the finishing operations at Plant No. 1. The above mentioned labor administrative procedures resulted.

The ruling of Arbitrator Platt sought to be enforced in the instant § 301 complaint was:

“(a) Contingent upon a determination by the National Labor Relations Board that it would not violate the provisions of the NLRA, the Company is directed to apply the existing OCAW Agreement to the finishing operations performed in Plant No. 1.
“(b) The Company is directed to reimburse and make whole all OCAW-represented employees for all lost wages and benefits, including health and welfare and retirement benefits, caused by the violation of Article II, Section 1 as heretofore determined.”

Defendant Company filed a motion to dismiss the complaint and for summary judgment. Plaintiff OCAW filed a cross-motion for summary judgment. Subsequently, OCAW advised the district court, as it does now on this appeal, that it no longer seeks to enforce that part of the Platt award requiring the application of the OCAW contract at Plant No. 1 as set out in part (a), supra. OCAW no longer asserts any claim for representative status at Plant No. 1 or any bargaining right or the right to negotiate a new agreement with the Company. It merely seeks to enforce part (b) of the award requiring the reimbursement and “make whole” remedy for former OCAW-represented employees.

OCAW’s action in not further asserting any right to apply the existing OCAW agreement to the finishing operations performed in Plant No. 1 is but a compelled recognition of the determination by the National Labor Relations Board on April 28, 1971, that the employees, including those previously employed at Whiting and now employed at Plant No. 1, were properly within the Boilermakers’ unit and that the “appropriate unit of Plant No. 1 is a plantwide production and maintenance unit, including the finishing operations and that the employees in this unit are presently, and have been since June 1969, represented by the Boilermakers as their exclusive bargaining representative.” In short, in making its ruling on April 28, 1971, the NLRB had the entire situation before it and pre-empted the field and chose to determine OCAW’s rights under the National Labor Relations Act.

In substance, OCAW contends that the two provisions in the Platt award are separable and that the contingency upon an NLRB determination in part (a) is limited to that section and does not cover the remedial directions in part (b). The Company makes the opposite contention. Viewed as a common law breach of contract question, a persuasive argument could be made for OCAW’s position. However, we are in agreement with the district court that this case must be decided within the context of the Labor Act. If so, the action taken by the NLRB cannot be restricted to the representation matter, but it must be said to embrace all other matters, such as working conditions, wages and the like which are implicit in the rights accorded the certified representative of the employees at the plant covered by the collective bargaining agreement there in force.

The Company did not apply the OCAW contract to Plant No. 1 because it could not legally do so, for such would have been an unfair labor practice. Having acted in accord with the NLRB decision, how may the Company be liable for damages for refusing to violate the law? There was no breach of contract because OCAW’s contract was never in force at Plant No. 1.

On August 4, 1970, Arbitrator Platt specifically ruled: “The Company violated Article II, Section 1 of the Agreement [with OCAW] by failing to apply the OCAW Agreement to the finishing operation when it was moved from the Whiting Plant to Plant No. 1.” This, of course, is in direct conflict with the later NLRB ruling, and OCAW has now abandoned any claims under part (a) of the Platt award. The remedial direction in part (b) of the Platt award is “to reimburse and make whole all OCAW-represented employees” for losses “caused by the violation of Article II, Section 1 as heretofore determined.” This, too, is in direct conflict with the later NLRB ruling and cannot be separated from the contingency in part (a). Since there were never any OCAW-represented employees at Plant No. 1, because all employees there were represented by Boilermakers, it necessarily follows that the Company could not be made to respond in damages for the breach of a contract never in force at Plant No. 1.

In defining the limits and scope of arbitration in the field of national labor policy in Carey v. Westinghouse Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), Mr. Justice Douglas, writing for the majority, said: “Should the Board [NLRB] disagree with the arbiter, by ruling, for example, that the employees involved in a controversy are members of one bargaining unit or another, the Board’s ruling would, of course, take precedence; and if the employer’s action had been in accord with that ruling, it would not be liable for damages under § 301.” Id. at 272, 84 S.Ct. at 409. The Court further noted that “[t]he superior authority of the Board may be invoked at any time,” but continued to recognize “the therapy of arbitration.” Id. See NLRB v. Plasterers Local 79, 404 U.S. 116, 136-137, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971). Cf. U. S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971).

A district court put some flesh on the bare bones of the Supreme Court’s dicta in Carey in Dock Loaders Local 854 v. W. L. Richeson & Sons, E.D.La., 280 F.Supp. 402, 404-405 (1968). There, two unions, Teamsters and Dock Loaders, were locked in a dispute as to which should perform certain unloading work. Dock Loaders, following a grievance, won an arbitration award granting it the work and sought to enforce it in the federal district court. Following threat of a strike by Teamsters, the NLRB, responding to an unfair labor practice charge by the employer, awarded the work to Teamsters. Dock Loaders then filed a § 301 suit against the employer to enforce its arbitration award. The employer moved to dismiss and for summary judgment. The court held lid. at 404] that there “would seem to be no question that, as between a grievance committee award of disputed jobs to certain employees and a conflicting NLRB allocation of the same jobs to different employees, the latter takes ‘precedence,’” citing New Orleans Typographical Union No. 17 v. NLRB, 5 Cir., 368 F.2d 755, 767 (1966). In Dock Loaders, the court held that the dicta in Carey command respect, and in view of such language it ruled that the Labor Board’s decision awarding the disputed work to Teamsters barred the recovery of damages in the § 301 case under the arbitrator’s award. Cf. Ironworkers Local 395 v. Lake County Council, Bhd. of Carpenters, N.D.Ind., 347 F.Supp. 1377, 1380 (1972).

Finally, in Smith Steel Workers v. A. O. Smith Corp., 7 Cir., 420 F.2d 1 (1969), we were concerned with a case in which two unions claimed representation rights over certain disputed job classifications. The employer sought a unit clarification by the Labor Board to determine the dispute. The Labor Board awarded the representation rights to one union. Nevertheless, the losing union demanded arbitration, which the employer refused. The losing union then sought to have the federal district court compel arbitration. The employer filed unfair labor practice charges against the losing union, alleging the union’s actions in continuing to seek representation of its workers violated the Labor Act. The Labor Board found a violation of § 8(b)(3) of the Act on the ground that it had held the losing union to be inappropriate in its unit clarification decision. It entered an appropriate cease and desist order.

The district court dismissed the complaint, holding (1) that it lacked jurisdiction to set aside the Board’s action, and (2) that under § 301(a) of the Act it could not compel the employer to arbitrate the representation question which had already been determined by the Labor Board in its prior unit clarification order. In its memorandum opinion, reported at 285 F.Supp. 1011 (1968), relying on Retail Clerks International Association v. Montgomery Ward & Co., 7 Cir., 316 F.2d 754, 757 (1963), the district court said: “Plaintiff now seeks to enforce a contract which would require defendant Company to take action directly contrary to a Board determination. Neither the policy of the Labor Management Relations Act nor prior court decisions support plaintiff’s position.” 285 F.Supp. at 1016.

We affirmed the district court’s order, and Circuit Judge Cummings, writing for our court, said:

“The district court was also correct in refusing to compel arbitration of the unit representation issue after its determination by the Board. Arbitration provides an alternative means of resolving disputes over the appropriate representational unit, but it does not control the Board in subsequent proceedings. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 268-272, 84 S.Ct. 401, 11 L.Ed.2d 320. In this case no arbiter’s award existed to which the Board could defer. All the parties involved in the dispute joined in petitioning the Board for clarification of the certificates and the arbitration hearing was accordingly postponed. The Board was not bound to delay its consideration of the issue under these circumstances. The Board’s 1967 determination of the appropriate units fully disposed of the question. It defined the lawful limits of coverage of the contract which the Union sought to have enforced under Section 301(a) of the Labor Management Relations Act (29 U.S.C. § 185(a)). As in Retail Clerks International Ass’n v. Montgomery Ward & Co., 316 F.2d 754, 757 (7th Cir. 1963), the Board’s order deprived the Union of any right to recognition as the representative of the laboratory technicians and experimental workers. See also McGuire v. Humble Oil & Refining Company, 355 F.2d 352, 357-358 (2d Cir. 1966), certiorari denied, 384 U.S. 988, 86 S.Ct. 1889, 16 L.Ed.2d 1004. The court could compel neither arbitration nor enforce any arbiter’s award in conflict with the Board’s order. National Lieorice Co. v. National Labor Relations Board, 309 U.S. 350, 365, 60 S.Ct. 569, 84 L.Ed. 799.” 420 F.2d at 7.

Further, after recognizing that the duties imposed on employers and unions by the Labor Act are complementary and must be construed in harmony with one another, we found that the same is true of the bargaining responsibilities created by the Act. The employer was required to bargain only with the proper representative of the appropriate bargaining units, even though the employer had previously bound himself by contract to bargain with an inappropriate representative. Id. at 8, citing appropriate cases.

Quoting further from Smith, id. at 9: “Moreover, the unit clarification procedure is designed to present an alternative to an unfair labor practice charge as a means for obtaining an official determination of the correct bargaining units.” And, id. at 10: “In addition, the Board’s unit clarification order precluded any recourse by the Union to arbitration or other grievance procedure. As a result of that order, no contractual issues existed which could be arbitrated or settled by bargaining.”

A complete reading of Smith, and its recognition of Carey and related cases, makes clear to us the relevance of the supremacy doctrine, and that once the Board has acted, either before or after the arbitrator’s award, the Board’s order overrides the arbitrator’s decision. Smith further makes it clear that contractual rights cannot exist separately and apart from the union’s right to represent the unit. Id. at 12-13.

We have carefully reviewed the various contentions made by OCAW and find them unpersuasive in light of Carey, Dock Loaders and Smith, supra, and National Licorice Co. v. NLRB, 309 U.S. 350, 365, 60 S.Ct. 569, 84 L.Ed. 799 (1940). We are in accord with the well reasoned memorandum opinion of the district court, 337 F.Supp. 83 (1971), and the final conclusion reached by Judge Parsons, when he said:

“In view of these decisions, it would appear that the law thus established is that where there is a conflict between an arbiter’s award and a later NLRB ruling, the arbiter’s findings must give way before the superiority of the NLRB decision. If the employer has acted in accord with the NLRB decision, it is not liable for damages.” Id. at 87-88.

For the foregoing reasons, we affirm the action of the district court in denying the monetary remedial relief sought by the plaintiff. The judgment denying plaintiff OCAW's motion for summary judgment and granting defendant Company’s motion to dismiss the complaint and for summary judgment is affirmed.

Affirmed.

SWYGERT, Chief Judge.

I respectfully dissent. In support of affirmance, the majority asserts (1) that the facts of the case display no breach of contract by the company and (2) that the damage award of arbitrator Platt is in conflict with a unit clarification ruling by the Labor Board, thereby unenforceable on the authority of Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1 (7th Cir., 1969), and Dock Loaders and Unloaders Local Union No. 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402 (E.D.La., 1968). With deference to the view held by my Brothers, I believe their reliance on Carey and its progeny is misplaced; if the arbitrator erred in finding a violation of contract, his award must fall for that reason and not because the award conflicts with a Board ruling. Moreover, if the arbitrator did not err, I cannot agree that his award is in conflict with a decision of the Labor Board.

I

Article II, Section I of the 1969 OCAW agreement reads:

This agreement shall apply only to the operations of the Company at its Whiting, Indiana plant; provided, however, if such plant or operation is moved to another location in the Calumet area, this agreement shall also apply to such other location.

The history of bargaining between the company and OCAW from 1959 reveals that this removal provision and analogous predecessors were insisted upon by OCAW to assuage its concern that the company would relocate operations performed by OCAW members at the Whiting plant despite representations by the company that it had every intention of continuing the Whiting operations. As it turned out, the fears of the Union proved justified; only a few months subsequent to consummation of the 1969 agreement, the company informed OCAW that it was terminating the finishing operation at Whiting and reestablishing it at East Chicago, where the company had already extended recognition to the Boilermakers.

Negotiations ensued. OCAW took the position that the company was bound by the removal provision to apply the 1969 agreement to finishing operations at East Chicago. The company’s response was to dispute the Union’s interpretation of the contract and to argue that it could not lawfully recognize OCAW or apply the OCAW contract at East Chicago inasmuch as it had already extended representation recognition to the Boilermakers. The company persisted in the latter position throughout the course of litigation on the matter, and, on March 10, 1971, invoked the Board’s representation processes by filing a unit clarification petition requesting that the Boilermakers’ bargaining unit at East Chicago be clarified to specifically include the employees working in the finishing operation at that location.

Thus it is fair to say that the company, both at the time of and subsequent to its decision to relocate the Whiting finishing operation, had no intention of applying the OCAW contract at East Chicago, and, indeed, was convinced that to do so would violate its legal obligation to the Boilermakers as the exclusive bargaining representative for East Chicago employees.

II

The majority’s holding that no contract violation occurred is summed up by the following paragraph of Judge Hastings’ opinion:

The Company did not apply the OCAW contract to Plant No. 1 because it could not legally do so, for such would have been an unfair labor practice. Having acted in accord with the NLRB decision, how may the Company be liable for damages for refusing to violate the law? There was no breach of contract because OCAW’s contract was never in force at Plant No. 1.

From this I discern two separate positions. The first is that the company was excused from compliance with the removal clause of the OCAW contract because of impossibility of performance ; the second is that the company could not have breached the contract because it “was never in force at Plant No. 1 [East Chicago].”

While the quoted excerpt is a correct statement of fact, it fails as a premise to support its conclusion. That the contract sued upon was in force at Whiting is beyond dispute; the issue before us is whether the contract was violated at that location, not at East Chicago.

In resolving this issue a cardinal principle of contract law must be kept in mind. Professor Williston states it as follows:

It is a principle of fundamental justice that if a promiser is himself the cause of the failure of performance either of the obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure. 5 Williston, Contracts § 677 (3d ed. 1961).

Professor Corbin is of like mind:

Whatever be the meaning given to the term impossibility, whether it be objective or subjective, and even though it be used to include varying degrees of difficulty and expense, the supervening situation that is so described does not excuse a promisor from his contractual duty if he himself wilfully brought it about, or if he could have foreseen and avoided it by the exercise of reasonable diligence and efficiency. In such a case, the promised performance was not impossible in any sense, either at the time the contract was made or for some time thereafter. 6 Corbin, Contracts § 1329 (1962).

To put it another way, and with specific reference to the agreement at issue, the requirement of the removal clause that the OCAW agreement be applied at any new site of operation embodies a prohibitory mandate that the company undertake no move which would foreclose application of the contract. And the facts leave no room for dispute that the company found it impossible to obey the removal clause because it chose to move the Whiting operation to a plant where exclusive representation had already been granted to another union. The real issue, then, is whether the company exercised “a reasonable degree of effort and diligence” in attempting to comply with the removal clause. ,6 Corbin, Contracts § 1329 (1962).

The arbitrator found that the move from Whiting was motivated solely by economic considerations. The company admits this: “In late 1969 . . .serious financial considerations such as market projections, general economic forecasts and orders, caused the Company to reconsider [its] plans to maintain dual facilities.” Def. Brief at 5. Generally speaking, however, changed economic circumstances do not validate a defense of impossibility. This is not a case like United Auto Workers v. Hamilton Beach Mfg. Co., 40 Wis.2d 270, 162 N.W.2d 16 (1968), In re Curtiss-Wright Corp. and Office Employees’ International Union, Local 279, 43 Lab.Arb. 5 (1964), or In re Safeway Stores, Inc. and Retail Clerks International Union, Local No. 648, 42 Lab.Arb. 353 (1964), where the union contract contained no express provision dealing with plant removal, and legitimate business motives were found to justify a move of operations. See also Shoe Workers v. Brooks Shoe Mfg. Co., 183 F.Supp. 568 (E.D.Pa., 1960). This, instead, is a case where plant removal was barred except upon the condition that the contract be applied at any new site of operation. This provision was not complied with. Absent extreme economic hardship, cf. In re Curtiss-Wright Corp. and Office Employees’ International Union, Local 279, 43 Lab.Arb. 5 (1964) — which the company certainly has failed to establish — no excuse lies for its breach of the removal clause. See In re Jack Meilman and Amalgamated Clothing Workers of America, 34 Lab.Arb. 771 (1960), In re Centra Leather Goods Corp, and Pocketbook Workers Union of New York, 25 Lab.Arb. 805 (1956).

III

Smith Steel Workers v. A. O. Smith Corp., 420 F.2d 1 (7th Cir., 1969), holds that a unit clarification decision by the Labor Board provides an absolute defense to employer liability for violation of contract provisions respecting work assignments when work is assigned by the employer in conformity with the Board’s ruling. Dock Loaders and Unloaders Local Union No. 854 v. W. L. Richeson & Sons, Inc., 280 F.Supp. 402 (E.D.La., 1968), adds the corollary that employer violations of work assignment contract provisions are wiped out if his actions prove to be in conformity with national labor policy as interpreted by the Labor Board in a subsequent unit clarification ruling.

I do not agree with the majority that these cases are dispositive of the instant appeal. The company did not violate its contract with OCAW by refusing broadly to apply the work assignment provisions of the contract. It entirely avoided the OCAW contract by moving its finishing operation to a location where the NLRA — and, later, an NLRB decision — foreclosed adherence thereto, in direct violation of the contract’s removal clause. The distinction is important. Arbitral decisions on the issue of work assignment and Labor Board unit clarification decisions go to the heart of an identical question: Who shall perform disputed work? An arbitrator’s decision that a company has violated its contract by moving the site of a given operation is an entirely different matter. In short, the decision by arbitrator Platt is wholly compatible with the unit clarification by the Board.

Had the relocation of operations at issue been required by the Act or by a Board decision, I would agree that Smith and Dock Loaders fully dispose of OCAW’s sought damage award. This case, however, is one step removed; free from statutory or administrative compulsion and motivated solely by thoughts of financial gain, the company placed itself in a position where it could not apply the OCAW contract. While the end result of the company’s decision to remove has a surface similarity to the situations in Smith and Dock Loaders, the fact remains that the dilemma in which the company assertedly found itself prior to the NLRB decision was entirely of its own making and the product of its willful violation of the collective bargaining contract. In Smith and Dock Loaders the employer had no way of avoiding the eventual disputes with competing unions. If he favored one union, the other protested breach of contract and violation of the NLRA. This case does not present that situation. Had the company chosen to comply with the removal clause by staying at Whiting or moving to another location where compliance was practicable, it is difficult to imagine that the Boilermakers or the Board would have been heard to complain.

Although I agree that not all remedies may be open to an arbitrator when a violation of contract is found, the fact that one remedy may be unavailable hardly justifies a denial of liability. This, in essence, is what the company is arguing here; since, it asserts, an injunctive remedy requiring application of the OCAW contract at East Chicago is precluded by the Board unit clarification, damages on the same contract would be inconsistent. This is not correct. The company violated the OCAW contract in a manner which — unlike a work assignment violation — is not protected by the Board clarification decision. That the Board decision precludes injunctive relief for that violation is no reason to withhold all relief.

I would therefore reverse the decision of the trial court and remand the cause for a determination of damages to OCAW.

      . The record shows that the impartial umpire, David Cole, under the AFL-CIO Internal Disputes Plan, had held a hearing and ruled that OCAW liad violated its agreement with AFL-CIO by its attempts to interfere with the Boilermakers’ established collective bargaining status “as to employees doing finishing or ear completion work at Plant No. 1.”

      . See also Iron Workers, Local 395 v. Carpenters, 347 F.Supp. 1377 (N.D.Ind., 1972), a case very close on its facts to Doch Loaders.

      . A clarifying interpretation is needed for the statement that the company “acted in accord with the NLRB decision.” There was no such decision in existence when the company chose to move the finishing operation from Whiting. The company relied solely on the NLRA in refusing to apply the OCAW contract at East Chicago. Furthermore, neither the NLRA nor the eventual unit clarification ruling by the Board ordered the company to move its finishing operation; each dictated only that operations at East Chicago were solely within the jurisdiction of the Boilermakers.

      . Assume that arbitrator Platt required the company to reestablish finishing operations at Whiting, rather than awarding the contingent injunctive relief that he did. See In re Centra Leather Goods Corp. and Pocketbook Workers Union of New York, 25 Lab.Arb. 805 (1956). In that event I doubt that the company would argue that Smith and Dock Loaders require vacation of the damage award, since company compliance with the arbitral mandate would eliminate any possibility that company action would conflict with the Board clarification of the East Chicago unit. This case differs only in that the injunctive relief sought by OCAW did raise such a conflict. But it bears repeating that the injunctive remedy is not now at issue; as the arbitrator himself recognized, that remedy was necessarily “contingent upon a determination by the National Labor Relations Board that it would not violate the provisions of the NLRA.”


author: JAMES HUNTER, III, Circuit Judge.

text:
    Bernard SAMOFF, Regional Director of the Fourth Region of the National Labor Relations Board, For and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. The BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, Respondent-Appellee.
    No. 72-1759.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 5, 1972.
    Decided Feb. 27, 1973.

      Marvin Roth, N. L. R. B., Washington, D. C., for appellant.
    Peter G. Nash, General Counsel, Julius G. Serot, Sp. Counsel to General Counsel, Marvin Roth, Supervisory Atty., Alan Banov, Atty., N. L. R. B., Bernard N. Katz, Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa., for respondentappellee.
    Shawe & Rosenthal, Baltimore, Md., Warren M. Davison, Washington, D. C., for Samuel E. Long, Inc., amicus curiae.
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This is an appeal from an opinion and order of the district court in which that court declined to issue a preliminary injunction under § 10 (l) of the Labor Management Relations Act of 1947, as amended 61 Stat. 149; 73 Stat. 544; 29 U.S.C. § 160(l). This court has jurisdiction under 28 U.S.C. § 1292.

Samuel Long is a non-union contractor, i. e., none of his workers belong to unions. But sub-contracting on his construction jobs is often given to sub-contractors with union labor contracts. Appellee Building and Construction Trades Council is a trade association with area construction unions as members. Appellee decided to picket Long’s latest job site, the district court found, solely to force him to employ only sub-contractors who use union labor, when and if he chooses to sub-contract. He would apparently have a free choice concerning whether to sub-contract. The appearance of the pickets caused a disappearance of all union labor at Long’s latest job site, bringing work to a standstill.

Long filed a charge with the National Labor Relations Board, claiming that appellee was engaging in an unfair labor practice prohibited by § 8(b)(7)(C) of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 158(b)(7)(C). Pursuant to § 10(i), the Board moved for a preliminary-injunction against the picketing pending a final decision by the Board as to whether the picketing was in fact an unfair labor practice.

For there to be an unfair labor practice under § 8(b)(7), two conditions must be met. First, the introductory clause must be satisfied, i. e., a labor organization must be picketing an employer with an objective of forcing that employer to recognize the organization as a representative of his employees. Secondly, one of the conditions in sub-paragraphs (A), (B) or (C) also must be met.

Although the Council’s purpose was not to represent Long’s employees but to force him to accept union sub-contractors, the Board still claims that the introductory clause was violated. The Board reasoned that contracting out of work which might be performed by Long’s employees was a term or condition of employment of Long’s employees. If, therefore, Long was forced to deal with the Council on the issue of sub-contracting, he would in effect be recognizing the Council as the agent of his employees on that particular issue. This issue is important enough to have a susbtantial impact on Long’s employees. Therefore, it should be sufficient to satisfy the introductory clause. In support of this argument, the board relied heavily upon Dallas Building & Construction Trades Council v. N. L. R. B., 130 U.S.App.D.C. 28, 396 F.2d 677 (1968), enf’g. 164 N.L.R.B. 938 (1967) and also Lane-Coos-Curry-Douglas Counties Building & Construction Trades Council v. N. L. R. B., 415 F.2d 656 (9th Cir. 1969), enf’g. 165 N.L.R.B. 538 (1967). The NLRB felt that sub-contracting was an important issue to Long’s employees even though the agreement the Council wanted Long to sign stated only that when he sub-contracted, he had to sub-contract with union employers.

The Board then claimed that sub-paragraph (C) of § 8(b)(7) was also violated since no petition for an election under § 9(C) had been filed and since none of the exceptions to § 8(b)(7)(C) had been met.

The district court, after a comprehensive consideration of the legislative history and related case law, determined that the union’s picketing did not violate the introductory clause of § 8(b)(7). The Court reasoned that read in the context of sub-paragraph (C), the introductory clause means that for picketing to be “recognitional,” it must have as a goal the recognition of the bargaining agent (here the Council) as the “full collective bargaining agent of those employees.” According to the district court, since the effect of the proposed agreement at most would be that the Council would be the representative of Long’s employees as to only one issue (sub-contracting), the introductory clause would not be violated. After holding that it was not required to issue a preliminary injunction where it disagreed with the legal theory upon which the Board relied, the court denied the Board’s motion for that relief.

The Board has appealed from this denial. Its primary contention is that the district court applied an incorrect standard of law in determining when a § 10 (i) injunction should issue. The Board claims that the district court misinterpreted our decision in Schauffler v. Local 1291, International Longshoremen’s Association, 292 F.2d 182 (3d Cir. 1961).

In Schauffler, this circuit was reviewing the decision of a district court to grant a § 10(1) injunction. We said that whether such an injunction should be issued turned on whether there was reasonable cause to believe that an unfair labor practice listed in that section had been committed:

“The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous.” Schauffler v. Local 1291, supra at 187.

This test was designed to effectuate the Congressional purpose in enacting § 10(i).

“The Section 10(i) procedure reflects the congressional determination that certain unfair labor practices are so disruptive that where there is reasonable cause to believe that they are being engaged in their continuance during the pendency of charges before the Board should not be permitted. S.Rep.No.105, 80th Cong., 1st Sess., pp. 8, 27.
“If, in a Section 10 (i) proceeding, a district court or a court of appeals undertook to finally adjudicate such questions it would not be acting consistently with the congressional policy underlying Section 10 (Z). That Section’s usefulness as a tool with which the status quo may be preserved pending final adjudication would be diminished insofar as the Board would be required to finally litigate questions of substance at a preliminary stage. Moreover, the court would not have the benefit of the Board’s opinion on questions of fact and novel questions of labor law when making its decision. Thus, the court would, to some extent, usurp the Board’s function as the primary fact finder in cases arising under the Act and its function as primary interpreter of the statutory scheme.” Schauffler v. Local 1291, supra, 292 F.2d at 187, 188.

The district court noted that Schauffler set the applicable standard for determining when a § 10 (Z) injunction should be granted. But it went on to say:

“We do not read § 10 (i), as thus construed, to require a District Court, charged with granting injunctive relief under § 10 (l) where it is ‘just and proper’, to grant relief based upon legal theories advanced by the Board, which, while thoughtfully presented and not frivolous, are, in the view of the Court, erroneous.” (Emphasis added).

This is a misinterpretation of Schauffler. As dictated by that decision, the district courts have a limited role in § 10(J) proceedings. Schauffler requires only that the Board’s theory be substantial and not frivolous; and if it is, it does not matter whether the district court ultimately agrees with it or not. The Board met its burden here for we feel that the district court’s statement that the Board’s theory was “thoughtfully presented and not frivolous” can fairly be interpreted to mean that the Board’s theory was substantial and not frivolous.

This does not mean that a district court must always grant an injunction even though it disagrees with the Board’s legal theory. If the district court can characterize the theory as insubstantial and frivolous, it may refuse the injunction. If the Board’s theory cannot be so characterized, however, the district court must grant the injunction since this will best effectuate the Congressional policy against disruption of commerce expressed in § 10 (l).

Appellee argues that a motion for a preliminary injunction under § 10(0 is addressed to the discretion of the district court and that its decision should not be reversed unless there has been a clear abuse of its discretion. E. g., Samoff v. Williamsport Building and Construction Trades Council, 451 F.2d 272, 274 (3d Cir. 1971). It points out that Schauffler was an appeal from the grant of a preliminary injunction whereas this case is an appeal from a denial of such an injunction.

Appellee’s argument could possibly be successful if we were reviewing the decision of the district court after it had applied the proper legal standard in reaching its decision. As previously mentioned, however, the district court misinterpreted Schauffler and thus applied an incorrect standard.

To accept appellee’s argument and the district court’s decision would circumvent the statutory process of review in these cases. We have no authority to decide these cases finally until the NLRB has acted on them. See § 10(e) and § 10(f) of the Labor Management Relations Act, supra. But if a district court were to determine that the Board’s legal theory was incorrect, we would be able to review that determination since it is a question of law. If we made such a review we would be deciding many of these cases on the motion for a preliminary injunction and before the NLRB had a chance to act on them. Adhering to Schauffler will guard against premature review.

We emphasize that this decision should in no way be taken as approving or disapproving the ultimate merits of the Board’s legal position as advanced in the district court. Presumably, that adjudication will occur pursuant to either § 10 (e) or § 10(f) of the Act.

The decision of the district court will be reversed.

      . This decision is reported at 346 F.Supp. 1071 (E.D.Pa.1972).

      . Section 10(l) provides as follows:
      “Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(A), (B), or (C) of section 8(b) or section S(o) or section 8(b) (7), the preliminary investigation of such charge shall bo made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may he referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any district court of the United States (including the District Court of the United States for the District of Columbia) within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law : * * * Provided further, That such officer or regional attorney shall not apply for any restraining order under section 8(b)(7) if a charge against the employer under section 8(a)(2) has been filed and after the xireliminary investigation, he has reasonable cause to believe that such charge is true and that a complaint should issue. Upon filing of any such petition the courts shall cause notice thereof to be served upon any person involved in the charge and such person, including the charging party, shall be given an opportunity to appear by counsel and present any relevant testimony: Provided further, That for the purposes of this subsection district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in promoting or protecting the interests of employee members. ,¡t t|t it >>

      . Section 8(b) (7) of the Act, provides that it shall be an unfair labor practice for a labor organization or its agents:
      “to picket or cause to be picketed, or threaten to picket or cause to be picketed, any emxiloyer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring tlie employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
      “(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under Section 9(c) of this Act.
      “(B) where within the preceding twelve months a valid election under Section 9(c) of this Act has been conducted, or,
      “(C) where such picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of Section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this Section 8(b).”

      . The merits of this case were decided by the National Labor Relations Board, see The Building and Construction Trades Council of Philadelphia and Vicinity and Samuel E. Long, Inc., 201 N.L.R.B. No. 42 (1973), after this opinion had been written and approved by the panel who sat on the case, but before it was filed. The Board has urged that we declare the matter moot and vacate the judgment of the district court. Appellee argues that the case is not moot, and we agree with it.
      As mentioned above, the opinion had already been written and approved before the N.L.R.B. acted. The case had been argued in a complete adversary context, and the opinion was written while the dispute was very much alive. And even if the doctrine of mootness did apply, in appropriate circumstances we can still review § 10(1) proceedings because of the problems inherent in perfecting an appeal before the Board’s final adjudication. See Solien v. Miscellaneous Drivers & Helpers Union, Local No. 610, 440 F.2d 124 (8th Cir. 1971), cert. denied Sears, Roebuck & Co. v. Solien, 403 U.S. 905, 91 S.Ct. 2206, 29 L.Ed.2d 680 (1971), reh. denied 404 U.S. 960, 92 S.Ct. 305, 30 L.Ed.2d 277 (1971). Of course, this opinion has no effect either on the right of the Board to petition for an order of enforcement of its decision pursuant to § 10(e) of the Act or the right of the Trades Council to appeal that decision pursuant to § 10(f).

      . Other circuits have set up similar standards envisioning a limited role for the district courts in these proceedings. McLeod v. National Maritime Union, 457 F.2d 1127, 1133 (2d Cir. 1972); Sachs v. Local Union No. 48, Plumbers, 454 F.2d 879, 882, 883 (4th Cir. 1972); San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 544 (9th Cir. 1969); Local Joint Board v. Sperry, 323 F.2d 75, 77-79 (8th Cir. 1963); Madden v. International Organization of Masters, Mates & Pilots, 259 F.2d 312, 313-314 (7th Cir. 1958), cert. denied 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 229 (1958); American Federation of Radio & Television Artists v. Getreu, 258 F.2d 698, 699, 701 (6th Cir. 1958).

      . The Senate Report on the bill that was enacted stated:
      “Because of the nature of certain of these practices, especially jurisdictional disputes, and secondary boycotts and strikes for specifically defined objectives, the committee is convinced that additional procedures must be made available under the National Labor Relations Act in order adequately to protect the public welfare which is inextricably involved in labor disputes. “Time is usually of the essence in these matters, and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives — the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices.” S.Rep.No.105, 80th Cong., 1st Sess., pg. 8; I Legislative History of the Labor Management Relations Act, 1947, 414.

      . See fn. 6. In this case, for example, construction of a school was substantially delayed by the dispute between the parties.

      . See note 4, supra.


author: SWYGERT, Chief Judge. PELL, Circuit Judge CASTLE, Senior Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony Charles DURHAM, Defendant-Appellant.
    No. 72-1067.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 18, 1972.
    Decided Feb. 28, 1973.

      David F. McNamar, Indianapolis, Ind., for defendant-appellant.
    Stanley B. Miller, U. S. Atty., Charles Goodloe, Jr., Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.
   SWYGERT, Chief Judge.

Anthony Charles Durham appeals from his conviction by a jury for the armed robbery of the treasurer of the Drover Street Federal Credit Union in Indianapolis in violation of 18 U.S.C. § 2113(a). Durham asserts four reasons for the reversal of his conviction: (1) the erroneous admission of testimony concerning his purported confession in violation of the fifth and sixth amendments to the Constitution, (2) the erroneous admission of a government agent’s memorandum and notes as to the purported confession for the purpose of reinforcing the agent’s credibility, (3) the erroneous admission of irrelevant prejudicial evidence concerning a black Impala Chevrolet that Durham had allegedly stolen, and (4) the absence of any evidence to establish that Durham had knowledge or intent to rob a federal credit union in violation of the federal statute.

The defendant was indicted on March 20, 1961 and found guilty by a jury on May 19, 1961. He received a twenty-year sentence which was vacated on August 8, 1961. He was resentenced to ten years after the district judge had received a study of Durham in accordance with 18 U.S.C. § 4208(c). The August 8, 1961 sentence was vacated on November 25, 1964 since Durham and his attorney were not present at the first re-sentencing, in accordance with the requirements of United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), affirming 312 F.2d 223 (7th Cir. 1962). Durham then received the same ten-year sentence. That sentence was later vacated on September 30, 1971 after Durham had filed a petition for writ of error coram nobis under 28 U.S. C. § 2255, based on the failure of the court or his attorney to inform him of his appellate rights. He was then given a ten-year sentence to be served concurrently with another sentence with credit allowed for time already served. After the final resentencing, Durham’s counsel moved for judgment of acquittal or for a new trial raising all of the issues presented in this appeal. The district court denied the motion.

Special Agent Fred Doerner of the Federal Bureau of Investigation, the agent in charge of the investigation, testified at Durham’s trial that the defendant confessed having committed the crime when Doerner interviewed him at the Marion County jail. Doerner testified that prior to the taking of the orally admitted committing the crime and that on January 23, 1961 he, Doerner, took a statement of confession from the defendant which the defendant refused to sign. Doerner further testified that prior to the taking of the statement, he informed “Durham that he was not required to make any statement; that any statement he did make could be used against him in court, and that he was entitled to the services of an attorney.” The defendant denied making the statement of confession.

Counsel on behalf of Durham argues that it was error to admit the testimony without a hearing on the voluntariness of the confession since Doerner knew that the defendant was represented by counsel and yet counsel was not present when the statement was obtained. The Government in reply maintains that although the defendant denied making the statement, he did not deny that he had been advised by Doerner of his rights to counsel and to be silent. The Government also argues that Durham did not raise the voluntariness issue at trial and is therefore precluded from raising it for the first time on appeal, especially since there were no “alerting circumstances.” United States ex rel. Lewis v. Pate, 445 F.2d 506, 508 (7th Cir. 1971). Finally, the Government contends that Durham never asserted that he requested counsel and therefore it may properly be concluded that he waived this right.

The robbery occurred on December 9, 1960. Joseph Mazelin, counsel for the defendant, spoke with agent Doerner on the telephone on December 20, 1960 and thereafter had Durham talk with the agent. Doerner was also in municipal court on December 30, 1960 and saw Mazelin representing Durham on a state criminal charge. Mazelin also represented Durham at the preliminary hearing before the United States Commissioner on January 5, 1961, at which Doerner was present. Doerner interviewed the defendant on January 2, 9, 16, 20 and 23, 1961 while Durham was in the Marion County jail. Attorney Mazelin was not present at any of these interviews.

It is undisputed that agent Doerner knew that Durham was represented by counsel when he obtained the incriminating statements. Although the agent’s first interview with Durham on December 20, 1961 was arranged by his counsel, there is nothing in the record that indicates that Doerner ever informed Durham’s counsel of the five subsequent interviews in the Marion County jail.

The defendant contends that the statements obtained from him in the absence of his attorney deprived him of his sixth amendment right to have assistance of counsel for his defense in the criminal prosecution. This issue was first raised in his motion for a new trial.

The Supreme Court in Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), held that Massiah had been denied his sixth amendment right to assistance of counsel “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Here, agent Doerner, knowing Durham was represented by counsel, obtained incriminating statements from him in the absence of counsel and after his arrest and the preliminary hearing.

Although the Government has not raised the issue, we think it is necessary for us to consider two questions in applying the principles of Massiah to this case. The first is whether Massiah is to be applied retroactively. Durham points to the comparative time sequence of his case with that of Massiah and Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Regardless of the comparative time sequences of those eases, we believe the question is controlled by McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), mem. rev’g 1 Ohio St.2d 60, 203 N.E.2d 349 (1964). There, McLeod willingly made inculpating statements to the chief deputy sheriff and the assistant prosecuting attorney after his indictment and in the absence of counsel. At the time the statements were made, McLeod had not been arraigned and had not requested appointment of counsel. The statements were subsequently introduced at his trial for murder. The Supreme Court reversed the conviction and applied Massiah retroactively. See also United States ex rel. Graham v. Mancusi, 457 F.2d 463, 470 (2d Cir. 1972); United States ex rel. O’Connor v. State of New Jersey, 405 F.2d 632, 637 (3d Cir. 1969); Hancock v. White, 378 F.2d 479, 482-483 (1st Cir. 1967).

The second question is whether Massiah is limited to post-indictment statements or whether it includes statements obtained after arrest and preliminary hearing. I read Massiah to bar the admissibility of the statements obtained here since the Government had initiated “adversary judicial criminal proceedings” against Durham prior to the time the statements were obtained. Cf. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Although the Government was entitled to continue its investigation subsequent to the defendant’s arrest and preliminary hearing, it could not, in my opinion, permissibly interview the defendant without advising his counsel. The facts here are similar to McLeod, except that, unlike McLeod, the government agents obtained the incriminating statements from Durham in the absence of retained counsel known to be representing the defendant on this criminal charge. Such conduct would appear to raise ethical questions.

Doerner attempted to obtain incriminating statements from Durham on four separate occasions while the defendant was in jail even though he denied complicity during the first three interviews. In my opinion, the Government had the burden to show that the agents had informed Durham’s counsel of the intended interviews after his arrest. It failed to adduce such proof.

Since Doerner’s testimony concerning Durham’s incriminating statements should not have been admitted, it follows that the written statement prepared by Doerner of Durham’s confession was also inadmissible. There was no need to reinforce Doerner’s credibility since his original testimony should have been suppressed.

The defendant further contends that the trial judge erred in admitting evidence relating to a stolen black Impala Chevrolet. The Government presented a number of witnesses who testified that a black Impala Chevrolet had been stolen prior to the robbery. Another Government witness testified that he had been arrested for possession of a stolen black Impala Chevrolet and that he had borrowed the car from the defendant several times during December 1960. Lastly, another witness testified that on the day of the robbery he noticed two men in a black Impala Chevrolet which was parked near the Drover Street Federal Credit Union. The witness could not identify the defendant as either of the two men. The foregoing evidence, standing alone, was completely irrelevant to the charge on which the defendant was tried. The only possible basis for its admission was certain statements made by the defendant to agent Doerner. Since these statements were inadmissible for the reasons I have heretofore stated, it follows that the evidence relating to the stolen Chevrolet automobile was also inadmissible.

The defendant’s final contention is that the Government failed to prove that he had a specific intent to rob an officer of a federal credit union in violation of 18 U.S.C. § 2113(a) and that such intent was a necessary element of the offense. There was no specific evidence of intent by Durham to rob a federal credit union officer other than his admission on January 9, 1961 to Doerner that he knew it was a federal offense to rob the credit union because he had seen the sticker on the front door which related that fact. Thus if Durham’s jail statements are inadmissible, there is no evidence of intent to rob a federal credit union officer. I see no reason under the circumstances of the disposition of this appeal to decide whether or not proof of intent is an element of the offense.

The judgment of conviction is reversed and remanded for further proceedings not inconsistent with this opinion. In my judgment, the further proceedings would be in the form of a new trial; however, the views of Judge Castle and Judge Pell, which control in this respect, requires only as a first step a hearing on the voluntariness issue, with a new trial to follow only if the voluntariness issue is resolved against the Government.

PELL, Circuit Judge

(concurring in part and dissenting in part).

To the extent that the opinion of Chief Judge Swygert rests upon a per se rule that would exclude confessions when counsel is not notified of or present at the interrogation, I dissent from the opinion.

In my opinion, the authorities cited in Judge Castle’s dissenting opinion correctly state the law that notwithstanding the existence of counsel, either appointed or retained, a defendant may waive the presence and assistance of that counsel, provided it very clearly appears that the accused deliberately and understandingly chose to forego that assistance. I cannot agree, however, with Judge Castle’s opinion that the record demonstrates that Durham did so here.

The factual context in which the continuing interviews were conducted is far different than that involved in United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), and in that case we observed “[o]n the basis of the particular factual situation before us, and we go no farther than that, we are of the opinion that the confession of May 18 was properly received into evidence.” Id. at 1352.

In Springer an extensive evidentiary hearing was held. In the present case the matter was not explored. While it is true that there are overtones of waiver of the issue vis-á-vis trial tactics emphasis on denial of any confession at all, I conceive the right to effective assistance of counsel to be such a fundamental constitutional guarantee that when the interrogation takes place after knowledge of the existence of counsel the situation calls for a ventilated determination that there was a deliberate and knowledgeable waiver. The burden in this factual situation on the prosecutor is a heavy one but I do not agree with the implicit premise of Judge Swygert’s opinion that it is an impossible accomplishment.

Inasmuch as I do not find that the confession was necessarily involuntarily given, its admission as evidence in the trial may not have been improper. I therefore would remand for a hearing on the matter of voluntariness. If it is determined that the confession was voluntary, i. e., that the defendant understandingly waived the presence of counsel and otherwise was not coerced, the conviction should stand. If the confession was not voluntary, then a new. trial is necessary, Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

I find no other error requiring reversal if the confession is determined to be voluntary. However, if the opposite result is reached, the testimony regarding the black Chevrolet would have had no proper basis for admission.

CASTLE, Senior Circuit Judge

(dissenting) .

Two compelling reasons lead me to find that Durham’s confession of the robbery was properly admitted at trial: 1) Durham voluntarily and knowingly waived any right to have his counsel notified of the interview at which he made his confession, and 2) under applicable constitutional doctrines governing the admissibility of confessions existing at the time of trial, the trial court had to first find some indication that Durham’s confession was involuntary before it was required to hold a sua sponte hearing on its admissibility and on the validity of any waiver of notice to Durham’s attorney. On the strength of these reasons, I respectfully dissent from the views of Judges Swygert and Pell.

I.

Judge Swygert holds in his opinion that the FBI was obligated to inform Durham’s counsel of the interview, and that in the absence of such notification, any statement taken at the interview would be inadmissible. This analysis, however, fails to consider whether Durham waived any right to have his retained counsel notified of the FBI interview on January 23, 1961, and whether this waiver would relieve the FBI from the duty of telling Durham’s counsel of its planned meeting with his client.

The facts of this case show an undisputed case of voluntary and knowing waiver. Durham knew and was told that he could contact his counsel and have him present, but he decided that he did not need or want him. FBI agents testified without contradiction that they advised Durham of their identity, advised him that anything he said might be used against him, and advised him that he had the right to the services of an attorney. In spite of these warnings— and their obvious implications that Durham could either remain silent or have his counsel present while he gave a statement — Durham chose to go ahead and to admit his participation in the robbery. These facts demonstrate Durham’s clear and knowing waiver of any right to have his counsel notified of the interview.

The circumstances surrounding this waiver lend added credence to the conclusion that it was knowing and voluntary, for defendant had freely indicated his willingness to talk to FBI agents without his counsel being present on several occasions prior to the date of his confession. On December 20, 1960, the date on which Durham was first questioned by the FBI, his counsel arranged the time and place for the meeting. Yet, when Durham showed up for the session, his counsel was not accompanying him, even though the session was to last four hours. Durham freely admitted at trial that on subsequent occasions he “always talked at will” with FBI Agent Doerner about “anything he would ask me.” Furthermore, after defendant balked at signing the confession he gave to the FBI, he told agents that he wanted to clear the matter up and that he would give them another statement after he had talked with his counsel. In short, the record indicates many occasions where the defendant felt that he had no need for his counsel’s presence, and it supports the uncontradicted fact that he waived any right to have his counsel notified or present on January 23, 1961 when he confessed to the robbery.

Applicable case law holds that because of this waiver, there was no need for FBI agents to notify Durham’s counsel of the impending questioning session. The authority cited in Judge Swygert’s opinion does not contradict this fact. Both Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), are irrelevant to situations involving a waiver of the right to have counsel present, for, as Judge Cummings correctly pointed out in United States v. Crisp, 435 F.2d 354, 358 (1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971), both these cases involved the deliberate acquisition of information under circumstances preventing an effective exercise or waiver of rights to counsel. On the contrary, the circumstances surrounding Durham’s confession did not prevent an effective waiver of the right to have counsel notified. In fact, the attempt to fashion a per se rule that will exclude all confessions obtained when retained or appointed counsel has not been notified of the questioning session is contrary to established authority in this circuit that no such automatic rules should apply in such circumstances. United States v. Springer, 460 F.2d 1344, 1350 (7th Cir. 1972), United States v. Crisp, 435 F.2d at 358, United States v. Smith, 379 F.2d 628, 633 (7th Cir.), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486 (1967).

Given the evidence that Durham knowingly waived his right to have his counsel notified of the interview, and in the absence of persuasive authority that FBI agents should have given the notification in spite of the waiver, I believe that this case is governed by a plethora of decisions which have admitted confessions made under similar circumstances. These decisions have concentrated on the issue of whether the defendant’s waiver was voluntary and knowing, and all have admitted confessions made without notice to counsel because the defendant was notified of his rights and deliberately waived them. These cases plainly indicate that it makes no difference whether the police or the defendant initiate the interviews, or how often or long the defendant is questioned, for the main concern is the validity of his waiver. On the strength of these decisions, I find that defendant Durham’s contention that he was entitled to have his counsel notified of the interviews — despite his waiver of representation and notification — is without merit.

II.

Judge Pell accepts the fact that Durham could waive his right to have his counsel notified of the interviews, but holds that it was necessary for the trial court to conduct a hearing on the deliberateness and understanding of Durham’s waiver.

Such a hearing was unnecessary, for Durham’s confession was given in 1961, when the law governing the elicitation and admissibility of confessions was quite different from what it is today. Therefore, United States v. Springer, 460 F.2d 1344 (7th Cir. 1972), is not determinative of the conditions for admissibility, for Springer was based upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which was decided five years after Durham’s confession was given, and which has not been applied retroactively. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Instead, .the crucial determination governing the admissibility of a pr e-Miranda confession is whether the will of the defendant had been overborne so that his confession was not a free or voluntary act. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). Under this standard, the fact that the defendant was not represented by counsel when he gave his confession is not in itself sufficient proof of coercion to make a confession inadmissible, for the lack of representation by counsel goes only to the weight to be given other evidence of actual coercion. Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), United States ex rel. Lathan v. Deegan, 450 F.2d 181, 184 (2d Cir. 1971), cert. denied, 405 U.S. 1071, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972). Therefore, even if Durham could prove that his waiver was not knowing and voluntary, his failure to point to any other proof of coercion would make his confession admissible under pr e-Miranda law. Since Durham has suggested, and the record indicates, no indication of FBI coercion in obtaining the confession, the trial court was not required to conduct a sua sponte hearing on its admissibility. United States ex rel. Lewis v. Pate, 445 F.2d 506, 508 (7th Cir. 1971). If there were such evidence of coercion tp require a hearing on the voluntariness of the confession, the trial court might then consider the validity of Durham’s waiver of notice to his counsel in order to assess how much weight the lack of counsel gives to the other evidence of coercion. But in the absence of such other evidence, such a consideration of the validity of the waiver is irrelevant.

Since the majority vote of this panel requires that this ease be remanded for further proceedings of some kind, I am forced to agree with Judge Pell that a hearing on the voluntariness of Durham’s confession can be held independent of a new trial. Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). However, my understanding of the law governing the admissibility of Durham’s 1961 confession leads me to doubt that this hearing will find that the confession was involuntary and that a new trial is necessary.

III.

I find that, given the admissibility of the confession, the other assignments of error raised by Durham do not constitute an abuse of discretion by the trial judge in admitting evidence or rise to the level of prejudicial error.

      . McLeod, as here, was a direct appeal in which the trial was held prior to the Supreme Court’s decision in Massiah.

      . The American Bar Association, Code of Professional Responsibility, DR 7-104 (A) (1) provides:
      During the course of his representation of a client a lawyer shall not:
      (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or by law is authorized to do so.

      . United States v. Smith, 379 F.2d 628, 631 (7th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486, is distinguished from this case in that there false exculpatory statements made by Smith were uttered immediately after Miranda warnings had been given and before representation by counsel. A similar fact situation existed in United States v. Cassell, 440 E.2d 569, 571 (7th Cir. 1971). But here, there were repeated attempts by Doerner to obtain an incriminating statement from the incarcerated Durham in the absence of counsel known by Doerner to be representing Durham.
      United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116, is also distinguished from the instant case in that there the incriminating statement was the result of a request by the incarcerated Crisp to speak with the federal agents. In this case, Durham did not initiate the interviews and it was not until the fourth day of the interviews in jail that he admitted having committed the crime.

      . My view would be entirely different if the Government at a retrial establishes that defense counsel throughout the post-arrest interviews was aware of the interviews and approved of them.

      . Prior to and during the trial, Durham’s only argument concerning his purported confession was that he had never confessed anything to the FBI agents. He did not raise the issues of voluntariness and his right to have counsel present until after the trial. In conducting our review of this case, we must view all evidence in the light most favorable to the government and assume that Durham in fact made the confession. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

      . In Massiah, law enforcement officers indirectly questioned the defendant without warning that they wore doing so — here Durham had no doubt that FBI agents were questioning him. In McLeod, police failed to toll defendant of his right to get an attorney — here FBI agents notified Durham of this right.

      . United States v. Springer, 460 F.2d at 1351-1352 (FBI persuaded defendant to sign confession shortly after arraignment at which counsel had been appointed), United States v. Brown, 459 F.2d 339, 323 (5th Cir. 1971) (agents talked defendant into giving statement immediately after her attorney advised her to remain silent), United States v. Crisp, 435 F.2d at 358-359 (defendant asked to speak to agents and gave statement; agents failed to notify court-appointed counsel before going to jail for interview), United States v. Dowells, 415 F.2d 801 (9th Cir. 1969) (defendant gave statement after questioning about robbery without notice to counsel appointed at arraignment 11 days previously for another robbery), Arrington v. Maxwell, 409 F.2d 849, 853 (6th Cir.), cert. denied, 396 U.S. 944, 90 S.Ct. 381, 24 L.Ed.2d 245 (1969) (defendant gave statement after being told that his counsel could be called), United States v. Fellabaum, 408 F.2d 220, 225 (7th Cir.), cert. denied, Pyne v. United States, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 (1969) (counsel not notified of three questioning sessions at which defendant gave statements), Reinke v. United States, 405 F.2d 228, 229-230 (9th Cir. 3968) (defendant volunteered statement after preliminary hearing at which counsel had been appointed for him), Wilson v. United States, 398 F.2d 331, 333 (5th Cir. 3968), cert. denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712 (1969) (FBI interrogated defendant that it knew was represented by counsel and took statement), United States v. Hale, 397 F.2d 427, 430-431 (7th Cir. 1968), cert. denied, 393 U.S. 1067, 89 S.Ct. 723, 21 L.Ed.2d 710 (1969) (appointed counsel not told of time at which FBI was to interrogate his client), Coughlan v. United States, 391 F.2d 371, 372 (9th Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968) (police did not tell court-appointed counsel that they were to interrogate defendant), United States v. Smith, 379 F.2d at 633 (defendant gave statement to FBI agents in automobile; interrogation stopped after FBI telephoned defendant’s court-appointed counsel), Davidson v. United States, 371 F.2d 994 (10th Cir. 1966) (defendant gave statement to FBI while held on state charge and represented by local counsel).


author: LEWIS, Chief Judge.

text:
    Paul SPURLOCK, Plaintiff-Appellant, v. UNITED AIRLINES, INC., Defendant-Appellee.
    No. 71-1645.
    United States Court of Appeals, Tenth Circuit.
    Oct. 10, 1972.
    Rehearing Denied May 8, 1973.

      Philip M. Jones, of Lewis & Jones, Denver, Colo., for appellant.
    D. Monte Pascoe, of Ireland, Staple-ton, Pryor & Holmes, Denver, Colo. (William G. Imig, Denver, Colo., with him on brief), for appellee.
    John F. Goemaat, Washington, D. C. (John de J. Pemberton, Jr., Acting Gen. Counsel, and Julia P. Cooper, Chief, Appellate Section, E. E. O. C., Washington, D. C., were with him on brief), for E. E. O. C. as amicus curiae.
    Before LEWIS, Chief Judge, DOYLE, Circuit Judge, and BRATTON, District Judge.
   LEWIS, Chief Judge.

The appellant Spurlock, a black, brought this action alleging that United Airlines unlawfully discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. After a full trial, the trial court found that there was no proof of an intent on the part of United to discriminate in its employment of flight officers; that the job qualifications and testing procedures established by United are fair and reasonable; that they are uniformly applied without reference to race; that they do not accomplish discrimination in fact; and that they are job-related.' Having made findings in United’s favor, the trial court dismissed appellant’s complaint. The trial court’s opinion in this case is reported at D.C., 330 F.Supp. 228. We are in accord with the trial court’s reasoning and result and summarize and extend it only because of the appellate posture and emphasis with which the ease has been presented to us.

The evidence established that on May 19, 1969, the appellant applied for the position of flight officer. At that time, appellant did not meet United’s qualifications to be considered for flight officer. He was 29 years of age, had two years of college, principally in music education, had logged 204 hours of flight time, and had obtained a commercial pilot’s license. United’s minimum requirements for flight officer were 500 hours flight time, 21 to 29 years of age, a commercial pilot’s license and instrument rating, and a college degree.

When appellant’s application was received by mail in United’s employment office, it was reviewed by a clerical employee. He circled in red the respects in which the appellant’s qualifications were deficient. Appellant was then advised by letter that United had other applicants whose qualifications more nearly met United’s requirements. No one at United saw or interviewed the appellant, and no one knew his race.

From the evidence, the trial court found an absence of an intent to discriminate on the part of United in hiring its flight officers. While it is important to examine the intent of a company charged with a Title VII violation, absence of discriminatory intent does not necessarily establish that the company’s employment practices have no discriminatory effect. Title VII is aimed at the consequences of employment practices, not simply the motivation. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. Thus, when a plaintiff is claiming that the criteria used by a company in screening job applicants discriminate against a minority group, he need only establish that the use of such criteria has a discriminatory result. Griggs v. Duke Power Co., supra. It is not necessary to prove a discriminatory intent but only that the discriminatory criteria were used deliberately, not accidentally. Jones v. Lee Way Motor Freight, Inc., 10 Cir., 431 F.2d 245, cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237.

In order to establish that United’s flight officer qualifications resulted in discrimination against blacks, the appellant showed that out of the approximately 5900 flight officers in United’s employ at the time of the trial only 9 were blacks. Appellant contends that these statistics establish a prima facie case of racial discrimination. United claims that these bare statistics establish nothing unless accompanied by similar information as to the number of qualified black applicants for the flight officer position. The circuitousness of this bootstrap argument becomes obvious when one recalls that it is United’s qualifications for flight officer that appellant claims are discriminatory against blacks. We hold, therefore, that by showing the miniscule number of black flight officers in United’s employ, the appellant established a prima facie case of racial discrimination in hiring practices. See Jones v. Lee Way Motor Freight, Inc., supra. This is true even though it is clear from the record that United applied its employment criteria without regard to race or color.

Employment practices which are inherently discriminatory may nevertheless be valid if a business necessity can be shown. And pre-employment qualifications which result in discrimination may be valid if they are shown to be job-related. Thus, once the appellant had established a prima facie case of racial discrimination, the burden fell upon United to show that its qualifications for flight officer were job-related. The trial court found that the burden had been met and that United’s job qualifications were job-related. We agree.

The two job qualifications that appellant challenges are the requirements of a college degree and a minimum of 500 flight hours. The evidence at trial showed that United does not train applicants to be pilots but instead requires that their applicants be pilots at the time of their application. It cannot seriously be contended that such a requirement is not job-related. United also showed through the use of statistics that applicants who have higher flight hours are more likely to succeed in the rigorous training program which United flight officers go through after they are hired. The statistics clearly showed that 500 hours was a reasonable minimum to require of applicants to insure their ability to pass United’s training program. The evidence also showed that because of the high cost of the training program, it is important to United that those who begin its training program eventually become flight officers. This is an example of business necessity. We conclude that the evidence amply supports a finding that the requirement of 500 hours flight time is job-related.

With regard to the college degree requirement, United officials testified that it was a requirement which could be waived if the applicant’s other qualifications were superior, especially if he had a lot of high quality flight time, that is, flight time in high speed jet aircraft. The evidence showed that United flight officers go through a rigorous training course upon being hired and then are required to attend intensive refresher courses at six-month intervals to insure that all flight officers remain at peak performance ability. United officials testified that the possession of a college degree indicated that the applicant had the ability to understand and retain concepts and information given in the atmosphere of a classroom or training program. Thus, a person with a college degree, particularly one in the “hard” sciences, is more able to cope with the initial training program and the unending series of refresher courses than a person without a college degree. We think United met the burden of showing that its requirement of a college degree was sufficiently job-related to make it a lawful pre-employment standard. In reviewing the trial court’s findings in this matter, we are limited to the clearly erroneous standard. Fed. R.Civ.P. 52(a). We conclude that the evidence supports the trial court’s finding that United’s requirements are job-related. The finding is thus not clearly erroneous.

When a job requires a small amount of Skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court’s satisfaction that his employment criteria are job-related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job-related. Cf. 29 C.F.R. § 1607.5(c) (2) (iii). The job of airline flight officer is clearly such a job.’ United’s flight officers pilot aircraft worth as much as $20 million and transport as many as 300 passengers per flight. The risks involved in hiring an unqualified applicant are staggering. The public interest clearly lies in having the most highly qualified persons available to pilot airliners. The courts, therefore, should proceed with great caution before requiring an employer to lower his preemployment standards for such a job. We conclude that United Airlines met its burden of proving that its • employment requirements are job-related and the trial court’s finding in that regard is not clearly erroneous.

Affirmed.

      . The statistics presented were for the period February 1965 through April 1967 and were based on United’s experience With approximately 1300 trainees, 82 of whom did not complete the training program. The statistics produced the following results: