source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee-Cross Appellant, v. GREENE’S PROPANE GAS SERVICE, INC., a corp. et al., Defendants-Appellants-Cross Appellees.
    No. 71-2339.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1973.

      George W. Hart, Atlanta, Ga., for defendants-appellants.
    Roger J. Martinson, U.S. Dept, of Labor, Beverley R. Worrell, Regional Sol., Atlanta, Ga., Peter G. Nash, Bessie Margolin, Carin Ann Clauss, LeRoy M. Jahn, Attys., U.S. Dept, of Labor, Washington, D. C., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and BELL and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The Secretary of Labor sought an injunction under § 17 of the Fair Labor Standards Act (29 U.S.C.A. § 201 et seq.) to interdict continuing violation of the Act’s minimum wage, overtime, and record keeping requirements by these multicorporate employers. The District Court found (i) that the Employers, taken together, constituted an “enterprise” within the meaning of § 3(r) of the Act, and (ii) that the enterprise was and is “engaged in commerce or in the production of goods for commerce” within the meaning of § 3(s)(l) of the Act, and (iii) that three of the four named employers failed to qualify for the exemption to coverage under FLSA contained in § 13(a)(2). With these findings, and (iv) the finding that the goods sold — propane gas — had not lost its identity as goods which have moved in interstate commerce, the District Court ordered the payment of $19,442 in back wages to named employees of the three non-exempt employers and enjoined future violations of the Act.

Accepting (i) above but challenging (ii), (iii) and (iv), all of which are essential to the District Court’s decision, the Employers ask us to reverse. Finding the decision of the District Court to be without error we affirm.

The Employers — Greene’s Propane Gas Service, Inc., [the Thomaston store], Greene’s Propane Gas Service, Inc., of Perry, Greene’s Propane Gas Service, Inc. of Macon, and Greene’s Propane Gas Service, Inc. of Albany— are retailers of propane gas and related gas appliances in the state of Georgia. Harvey R. Greene is the majority shareholder in each of these four corporate employers, the defendants here. But the Greene complex does not stop with these employers. The four employer stores buy their propane gas from Greene’s Transport Company, Inc. They lease the tank trucks with which they make deliveries from Greene’s Equipment Company (a corporation) and store the gas delivered by Greene’s Transport in tanks leased from Greene’s storage companies (four other corporations). Gas originating in Texas, Louisiana, and Mississippi is shipped to Georgia by pipeline and is purchased by Greene’s Transport Company at Pipeline Terminal Facilities in Milner and Albany, Georgia. Greene’s Transport receives the gas at the terminal facilities.

It is understandable that Employers do not challenge the holding below that they — together with the rest of the occupants of the veritable corporate cornucopia of legal entities which Mr. Greene controls — constitute an “enterprise”. The main thrust of employers’ non-coverage argument has nearly as little vitality.

Employers contend that “enterprise” coverage, added to the FLSA in 1961 by amendment, depends on individual employees being “engaged in commerce or in the production of goods for commerce”. They assert that all the 1961 amendments — namely § 203(s) and its subdivisions — did was to extend coverage to all the employees of an enterprise some of whose employees were “engaged in interstate commerce”. Employers cite much of the legislative history in support of this proposition.

What Requisite Interstate Involvement?

Even if we faced this argument on a question of first impression we could not ignore the apparently plain language of § 203 (s) which states that “enterprise engaged in commerce or in the production of goods for commerce” includes “employees’ handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person”. (Emphasis added). The tense is in the past. There is no requirement of continuity in the present. If the legislative history were compelling — and it is not- — we might still be forced to hold that what Congress has enacted, even though something different from what it thought it enacted, would still be applicable since the language of the statute is so plain. But we face no such prospects, for our opinion in Schultz v. Kip’s Big Boy, Inc., 5 Cir., 1970, 431 F.2d 530, 533 is disposi-tive. There the Court held that “the legislation was designed to regulate enterprises dealing in articles acquired intrastate after travel in interstate commerce” (emphasis in original) and the Court said that given (as is true in this case) the stipulation of enterprise sales in excess of $1,000,000 “the only test is that ‘goods amounting to $250,000 a year’ must be purchased or received for resale and have moved across state lines at sometime in the flow of commerce to the retailer, 2 U.S. Code Cong, and Admin.News, 87th Cong., 1st Sess., 1961, p. 1645”. (Emphasis in original). We think that further discussion on this point is unwarranted.

Which Gas?

Having lost in its frontal assault against the holding that the employees were covered by FLSA Employers attempt a flanking maneuver by asserting that the goods in which they deal are not the goods which have traveled in interstate commerce. That is, they argue that the propane gas loses its out-of-state identity because it is dehydrated and filtered free of accumulated debris at the time it leaves the pipeline to go into storage tanks at the pipeline terminal. The transformation — if removing the dirt and water that entered the pipeline during transit were not enough- — is completed when a chemical odorizer called petrocapitane is — as required by law in the state of Georgia — inserted into the propane at the rate of one and one-half -pounds for every ten thousand gallons of liquid propane. This odorizer allows the consumer to detect a leak in his propane system which would otherwise go unnoticed because propane is odorless.

The result is that the gas is in better condition and it can now be safely used by consumers at the burner tip, but it is still the gas that originated in the depths of Texas or Louisiana. Extraction of impurities, removal of water and odorization do not change the commodity, certainly not in a practical sense. The analogy with our holding in Placid Oil Co. v. F.P.C., 5 Cir., 1973, 483 F.2d 880 (1973) causes us to think that this “new” gas, moleeularly indistinguishable from the “old” gas, must bear the financial burden of FLSA like an added atom in its carbon ring.

Further, even where out-of-state goods have been altered in form the courts have not hesitated to hold that the goods still retained their interstate identity for -purposes of Section 3(c). In Schultz v. Kip’s Big Boy, supra, this court citing Melos, supra, with approval specifically referred to its holding that it was immaterial that the out-of-state goods upon which coverage was based had been shipped in commerce “in another form, i. e., raw stage”. The Court in Melos predicated coverage on the local purchase of ready-mix concrete which was prepared by the supplier from cement acquired out of the state. The Second Circuit stated that “[t]he interstate character of the cement as a product that ‘has been moved’ in interstate commerce is not destroyed by the fact that it is used to make a different product, ready-mix concrete, which is then purchased by Melos.”

The argument is a nice try, but it doesn’t work either molecularly or juridically. The gas is the gas.

Who An Establishment ?

Having failed to exclude themselves from mclusion Employers, by a reverse twist, attempt to include themselves in an exclusion — § 13(a)(2). This Section exempts from coverage those “establishments” which though they are included in a covered enterprise, have an annual dollar volume of sales less than $250,000. That is, an establishment which is part of an enterprise will be exempt from coverage if that establishment does less than the quarter million dollars sales outflow figure, even though the remainder of the enterprise is covered under FLSA. Employers stipulated that the annual dollar volume of sales for each of the Thomaston, Albany, and Macon Corporations was in excess of $250,000. Nonetheless they claim the exemption on the basis that each of the separate route trucks operating from these stores is a separate establishment and that therefore the deliveries made by the route trucks operating out of each respective store cannot be counted in the three stores. On such a conclusion none of the three would have sales exceeding the statutory minimum requirement.

The position that the route-men are separate business establishments is untenable in the light of the facts produced at the trial. It cannot be factually disputed that these trucks though they may be separate physical units, constitute pieces of single businesses of which they are a functional part. These trucks are simply selling agents of the store to which the route salesmen are attached. The majority of customers were billed regularly from the sales offices, which took care of ordering all supplies and equipment. In short the routemen were simply delivery agents for the store’s sales and service office which together with its delivery routes constituted the establishment. As we have said before in Wirtz v. Keystone Readers Service, Inc., 5 Cir., 1969, 418 F.2d 249, 255 and now reiterate salesmen do not themselves qualify, either individually or collectively, as an “establishment” within the meaning of the exemption.

The Trial Court’s decision comported with the canonical rule that exemptions from FLSA are to be given a niggardly construction against the employer. Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 295, 79 S.Ct. 756, 759, 3 L.Ed.2d 815, 819; Brennan v. Great American Discount and Credit Co., Inc., 5 Cir., 1973, 477 F.2d 292; Schultz v. Instant Handling, Inc., 5 Cir., 1969, 418 F.2d 1019. While it is true we are a peripatetic undulating people, constantly on the go, driven on the wheels or wings of energy consuming power units, we are not ready to endorse a contrary holding which might make every delivery driver, milkman, and other outside salesmen an exempt establishment on wheels under § 13(a) (2).

Affirmed.

      . The provisions are respectively, § 6(b) (1), (minimum wage); § 7(a) (2), (maximum hours — overtime); and § 11(c), (record keeping). § 201, etc., of 29 U.S. C.A. corresponds to § 1, etc., of the Act. Thus, § 6(b),(1) of the Act is 29 U.S.C.A. § 206(b)(1).

      . Section 3(r) defines “enterprise” as:
      (r) “Enterprise” means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements * * *.” 29 U.S.C.A. § 203 (r).

      . The scope of enterprise coverage as defined by § 3(s) and § 3(s)(l) is:
      (s) “Enterprise engaged in commerce or in the production of goods for commerce” means any of the following in the activities of which employees are so engaged, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person:
      (1) any such enterprise which has one or more retail or service establishments if the annual gross volume of sales of such enterprise is not less than $1,000,000, exclusive of excise taxes at the retail level which are separately stated and if such enterprise purchases or receives goods for resale that move or have moved across State lines (not in deliveries from the reselling establishment) which amount in total annual volume to $250,000 or more; * * 4 ”
      29 U.S.C.A. § 203 (s) (1). See Judge Moore’s opinion for this Court in Brennan v. Wilson Building, Inc., 5 Cir., 1973, 478 F.2d 1090 (1973).
      The Fair Labor Standards Amendments of 1966 (80 Stat. 830, 831) further extended the Act’s “enterprise coverage” by reducing the dollar volume requirement and deleting the $250,000 “inflow” test of § 3(s) (1). These amendments do not affect the coverage issue involved here, since the Secretary is claiming the higher wage and stricter overtime standards prescribed in §§ 6 and 7 for employees brought under the Act by the 1961 Amendments, and has proved his ease under.those standards.

      . Subsection (a) (1) of § 13 is set out here also:
      “ § 13(a) The provisions of sections 6 and 7 shall not apply with respect to—
      (1) any employee employed in a bona fide executive, administrative, or professional capacity  * *, or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary * * *) ; or
      (2) any employee employed by any retail or service establishment * * *, if more than 50 per centum of such establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located, and such establishment is not in an enterprise described in section 3(s) or such establishment has an annual dollar volume of sales which is less than $250,000 (exclusive of excise taxes at the retail level which are separately stated)  *
      29 U.S.C.A. § 213(a). The Employers claim the exception under § 13 (a) (1) only for their routemen but claimed the exemption under § 13(a) (2) for all their employees. Greene’s Propane Gas Service, Inc. of Perry came within the exception under § 13(a) (2).

      . The Secretary filed a cross appeal alleging that the District Court erred in finding that Appellant’s routemen were “outside salesmen”. The Secretary has abandoned that appeal. For this case it means that he now acquiesces in the District Court’s ruling on that question.

      . See note 4, supra.

      . Whatever the legislative history may show, the history of this legislation makes it apparent that Congress, after enactment, thought that it had legislated broadly enough to cover facts like these. In the Senate Report on the 1966 Amendments, Senate Report No. 1487, 89th Congress (1966) as reported in U.S.Code Cong, and Admin.News 1966, p. 3009, it was pointed out that “also, the operations through substantial ownership or control of a number of firms engaged in similar types of business activities constitute, in the committee’s view, related activities performed through unified operation or common control within the meaning of the definition of enterprise. The fact that the firms are independently incorporated or physically separate or under the immediate direction of local management, as in Wirtz v. Hardin, 16 Wage Hour Cases 722 (N.D.Ala.) [253 F.Supp. 579 (N.D.Ala.1964) ] is not determinative of this question.” And see Shultz v. Mack Farland & Sons Roofing Co., 5 Cir., 1969, 413 F.2d 1296.

      . See 2 U.S.Code Cong, and Admin.News, p. 1620 (1961) et seq.

      . See materials cited footnote 8, supra.

      . It is a basic principle of statutory construction fhat words in a statute must be given their “literal” or “ordinary” meaning where such “appears to be consonant with the purposes of the Act.” Commissioner v. Brown, 1965, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75, 82, Malat v. Riddell, 1968, 383 U.S. 569, 571, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102, 104; United States v. Merchants National Bank of Mobile, 5 Cir., 1958, 261 F.2d 570, 575; Buttecali v. United States, 5 Cir., 1942, 130 F.2d 172, 174.

      . The quotation is from Wirtz v. Melos Construction Corp., 2 Cir., 1969, 408 F. 2d 626, 629, which was followed by the Kip’s court. Also, the Second Circuit quoted with approval from the Labor Department’s Interpretative Bulletin on enterprise coverage as follows:
      “It is immaterial * * * that the goods may have ‘come to rest’ within the meaning of the term ‘in commerce’ as interpreted in other respects, before they are handled, sold, or otherwise worked on by the employees in the enterprise. * * * Thus, employees will be considered to be ‘handling, selling, or otherwise working on goods that have been moved in * * * commerce’ where they are engaged in the described activities on ‘goods’ that have moved across State lines at any time in the course of business, such as from the manufacturer to the distributor * * * ” 29 C.F.R. § 779.242 (1968) [408 F.2d at 629],
      This Court has recently stated that “Although courts are not bound by interpretative bulletins, they provide us with guidance simply because they reflect the position of those most experienced with the application of the Act,” Brennan v. Great American Discount and Credit Co., Inc,, 5 Cir., 1973, 477 F.2d 292.

      . Schultz v. Kip’s Big Boy, Inc., 5 Cir., 1970, 431 F.2d at 533.

      . The Administrator in his interpretive bulletin on enterprise coverage (29 CFR 779.250) states that goods do not loose their out-of-state identity merely because they may undergo some processing after their shipment in interstate commerce. The Secretary cites as an example the pasteurization of milk which is produced outside of the state, an example very close in substance to the type of processes that occurred in this case. It is well settled that such administrative interpretations are entitled to great weight. Idaho Metal Works v. Wirtz, 1966, 383 U.S. 190, 205, 83 S.Ct. 737, 746, 15 L.Ed.2d 694, 703; United States v. American Trucking Associations, 1940, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed.2d 1345, and see discussion and authorities cited at note 11, supra.

      . 431 F.2d at 533.

      . 408 F.2d at 629.

      . See footnote 4, supra.

      . Appellant’s routemen were exempted from the Act under § 13(a) (1) note 4, supra. The Government argues that since these routemen are exempted under the outside salesman exemption of § 13 (a) (1) they must of necessity not be included in the exclusion under § 13(a) (2). Beguiling as the argument is, we do not have to weigh and decide its merits at this time.

      . The burden rests upon the employer to show facts entitling him to an exemption. Brennan v. Great American Discount and Credit Co., Inc., note 11, supra.


author: MULLIGAN, Circuit Judge:

text:
    Sidney DANIELSON, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. LOCAL 275, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO et al., Respondents-Appellees, and Local 323, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Respondent.
    No. 972, Docket 73-1518.
    United States Court of Appeals, Second Circuit.
    Argued May 10, 1973.
    Decided May 31, 1973.
    Marvin Roth, Supervisory Atty., N.L. R. B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Julius G. Serot, Sp. Counsel to the Gen. Counsel, and Michael A. Caldwell, Atty., N.L. R.B., of counsel), for petitioner-appellant.

      Ralph P. Katz, New York City (Del-son & Gordon, New York City, of counsel), for respondents-appellees.
    Before SMITH, MULLIGAN and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York which denied a petition of Sidney Danielson, Regional Director of the National Labor Relations Board (the Board) for a preliminary injunction pursuant to Section 10(Z) of the National Labor Relations Act, 29 U.S.C. § 160(Z) (the Act). The Hon. Lawrence W. Pierce, District Judge, after a five day hearing, entered an order denying the petition on March 16, 1973 based upon findings of fact and conclusions of law included in his memorandum opinion filed on the same day. The petition for the Section 10(Z) injunction filed on January 29, 1973 was precipitated by a charge filed with the Board on January 10, 1973 by S.B. Apartments, Inc. (S.B.) alleging that Local 275, Laborers International Union of North America, AFL-CIO; Painters District Council No. 20 of Westchester and Putnam Counties, New York, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO; Local 55, Bricklayers, Masons and Plasterers; and Local 323, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, had engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act, 29 U.S.C. § 158(b)(7)(C). This Section, in essence, proscribes recogni-tional or organizational picketing for more than 30 days without filing with the Board a petition for an election under Section 9(c) of the Act, 29 U.S.C. § 159(c). No such petition has been filed. After investigation, the Regional Director concluded that there was reasonable cause to believe that the Unions were engaging in the unfair labor practices charged and that a complaint should issue. Accordingly, the Regional Director filed the petition in the District Court for injunctive relief pursuant to Section 10 (Z) of the Act, pending final disposition by the Board of the unfair labor practice charge. The Unions filed answers which denied the allegations of the petition. The Board has not finally adjudicated the charges.

S.B., the charging party, is the owner of real estate in Cold Spring, New York, where a 63 unit garden apartment complex is being constructed by James A. Klein, Inc. (Klein), a general contractor. Klein and S.B. (collectively referred to as the Employer) are commonly owned and controlled and constitute a single, integrated business enterprise. On October 31, 1972 the representatives of the Employer met in a pre-job conference with the Unions who stated that the job site had to be completely unionized and sought unsuccessfully to have the Employer sign a collective bargaining agreement. On November 1, 1972 the Unions began picketing the job site with between 2 and 200 pickets. The picketing by the Unions has been continuous except for a two week period in late March, 1973, and is still continuing. No petition for an election has been filed with the Board and no charge is before the Board under Section 8(a)(2) of the Act, 29 U.S.C. § 158(a)(2), alleging that the Employer has unlawfully recognized or assisted any labor organization. None of the Unions are now certified as bargaining representatives of any employees of the Employer. On this basis the Regional Director contended that the picketing was not for informational purposes but had as its object forced recognition or bargaining by the Employer with the Unions and forced acceptance by the employees of the Unions as their bargaining agents. The Court below found that the Regional Director has reasonable cause to believe that the Unions have engaged and are engaging in unfair labor practices in violation of Section 8(b)(7) (C) of the Act. Moreover the Court rejected the Unions’ claims that the picketing was informational and educational stating:

the picture that emerges to this Court is clearly one of a series of coercive tactics designed to achieve organizational and recognitional objects. The petitioner’s claim that the charging party has been subjected to a campaign of harassment is an accurate assessment of the events which followed the October 31st meeting when the employer refused to agree to the job being 100% union.

Despite these findings of reasonable cause, the lower Court refused to enjoin the union activity on the ground that in a 10(f) proceeding general equitable principles must be applied and since it found no “irreparable” damage, the Court concluded that it would not be “just and proper” to issue the extraordinary relief of a preliminary injunction. McLeod v. Local 25, IBEW, 344 F.2d 634 (2d Cir. 1965). We reverse and remand for the entry of a preliminary injunction enjoining the unfair labor practices charged pending disposition of the charges before the Board.

On appeal there is no question of jurisdiction raised nor have the Unions raised any issue with respect to the propriety of the finding that the Regional Director had reasonable cause to believe that the Unions were engaged in unfair labor practices in violation of Section 8 (b)(7)(C) of the Act. The sole issue posed by the parties is whether the issuance of a preliminary injunction under Section 10(f) depends upon the application of general equitable principles which the Court below interpreted to require a showing of irreparable harm to the Employer, or whether as the Regional Director contends the irreparable harm concept applicable in private actions is not pertinent in a Section 10 (Í) case. The Regional Director reasons that the purpose of 10(f) was not to prevent irreparable damage to the Employer but to protect the public interest in maintaining the free flow of commerce and to encourage collective bargaining.

The Supreme Court has not yet passed upon the criteria for granting a preliminary injunction under either Section 10(j) or 10(f). In McLeod v. Local 25, IBEW, supra, 344 F.2d at 638, this Court in discussing the question stated:

In § 10(1) proceedings the function of the federal district court consists of determining (1) whether the temporary injunctive relief would be “just and proper” in terms of general equitable principles and (2) whether there is “reasonable cause” for the Regional Director “to believe such [unfair labor practice] charge is true and that a complaint should issue.”

We see no reason here to depart from this statement of the law. Section 10 (l) in haec verba provides that the District Court shall have jurisdiction to grant such injunctive relief “as it deems just and proper.” The Section therefore does not mandate the preliminary injunction simply because the District Court concludes that the Regional Director has reasonable ground to believe that an unfair labor practice has occurred. The Act gives the Court discretion by employing the “just and proper” language. See United Brotherhood of Carpenters & Joiners v. Sperry, 170 F.2d 863, 869 (10th Cir. 1948). In Local 25, supra, our Court simply held that in applying the “just and proper” norm the District Court should be guided by the application of general equitable principles. We see no impropriety in this since the District Court albeit authorized by the statute to grant injunctive relief, is exercising its equity powers.

We see no point in now deciding whether irreparable harm to the Employer must always be shown in a Section 10(1) case because in any event there was a clear showing of substantial and irreparable harm to the Employer which under any construction of the Act should have resulted in the issuance of the preliminary injunction sought by the Regional Director.

We believe that the Court below was perhaps misled not by the language we have quoted from Local 25 which stated that “general equitable principles” must be applied, but by the further statement in that case that Local 25’s picketing “posed an imminent threat of irreparable injury, viz., halting the construction of the additional wing of the hospital.” 344 F.2d at 639. We cannot read this language as implying that anything less than a total work stoppage does not amount to irreparable injury. The Court below found that construction at the job site was not substantially halted; however, that the progress of the work was delayed and that extra expense was incurred and prospective rentals lost, emerges clearly from the other findings of the Court and the record before us.

Thus the Court found that on four separate dates in December the respondent Unions in concert blocked entrances and exits to the job sites and prevented employees from entering and leaving the job site; on two occasions a truck driver was prevented from making a delivery of supplies to the site; truck drivers from two other suppliers were blocked from making deliveries until police moved the pickets out of the way; extra costs of over $4000 are estimated by the Employer. In its discussion of the issues the Court states that the Employer’s original completion date was March of 1973 and now it is estimated to be June of 1973. While the record may not clearly establish that all of the delay is attributable to the picketing, it is fair to assume that some portion of it had to be caused by the continued program of harassment found below. This harassment included tires slashed, telephone wires to the Employer’s field office cut and a bulldozer smashed at the job site, together with picketing at a 500' x 500' site by from 2 to more than 200 pickets from November 1st to the present time. In addition to the $4000 extra costs claimed, the delay will obviously prevent apartment rentals from accruing to the Employer until such later time as the building may be completed.

While the Court below found that no irreparable injury to the Employer has been shown since December 1972, it is inescapable that the initial deliberate blockage of supplies and vandalism have a continued delaying effect upon the completion of the project, its availability to tenants and a postponement of rentals. The picketing concededly continues and there is reasonable cause to believe that it is unlawful. We do not agree therefore that it is just and proper to withhold equitable relief simply because the picketing has failed to shut down the operation but only delays performance which results in the incurring of expenses and prevention of profits.

The concept of irreparable injury in equity traces back to the early assumption of jurisdiction by the Courts of Chancery to enjoin waste,' continuing trespass and nuisance. Irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate. (See cases collected in Z. Chaffee & E. Re, Cases and Materials on Equity chap. 15 (5th ed. 1967)). A construction contract is characteristically one where a breach or interference with performance results in damages which are not readily or accurately determinable. (See C. McCormick, Damages § 155, at 619 (1935); 2 J. Pomeroy, Equity Jurisprudence § 442f, at 254 (5th ed. S. Symons 1941)). In this case assuming that the Unions would be responsible for damages (see San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); United Const. Workers v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954)), the amount of damage attributable specifically to union activity is clearly difficult to assess and measure.

As we have had occasion to point out recently a basic purpose of a preliminary injunction is to maintain the status quo. Exxon Corp. v. City of New York, 480 F.2d 460 (2d Cir. 1973); cf. Sen. Rep.No.105, 80th Cong., 1st Sess. (1947), in 1 Legislative History of the Labor Management Relations Act, 1947, at 433 (1948). The failure to issue an injunction here maintains not the status quo, but protects what the Court below has found the Regional Director had reasonable ground to believe, is a violation of the statute. See Henderson v. Local 701, Operating Engineers, 420 F.2d 802, 808-809 (9th Cir. 1969).

In applying general equitable prin-ples, we fail to see how there is any possible weighing of hardships in favor of the Unions. In fact the Court below found that if the injunction issued, the harm to the Unions would be “minimal” since through their 4% month continuing picketing plus extensive newspaper, radio and television coverage they have achieved whatever “educational” goals are the ostensible justification for their activity. While we fully appreciate the dangers inherent in conducting labor management relations by way of injunction even though the Act specifically confers the power on the Court, McLeod v. General Elec. Co., 366 F.2d 847, 850 (2d Cir. 1966), set aside and remanded, 385 U.S. 533, 87 S.Ct. 637, 17 L.Ed.2d 588 (1967), we are of the view that the deliberate and unlawful “campaign of harassment” found to exist by the Court below and the substantial damage inflicted as a result thereof were the type of mischief that Section 10 (1) was designed to prevent. It was “just and proper” here to issue the injunction and the failure of the Court below to do so constitutes in our view reversible error. National Maritime Union v. Commerce Tankers Corp., 457 F.2d 1127, 1133-1134 (2d Cir. 1972).

Reversed and remanded for entry of a preliminary injunction enjoining the unfair labor practices pending disposition of the charges by the Board.

      . The Operating Engineers ceased picketing in the latter part of January, 1973, and pursuant to a stipulation approved by the District Court on. February 22, 1973, the Carpenters likewise stopped picketing.

      . In a section 10(j) case, this Court has reversed the granting of a temporary injunction where the Regional Director has not shown that irreparable harm was threatened or that an injunction was necessary to preserve the status quo. McLeod v. General Elec. Co., 366 F.2d 847 (2d Cir. 1966). In staying the enforcement of this Court’s judgment, Mr. Justice Harlan noted that the standards governing the application of Section 10(j) were unsettled. McLeod v. General Elec. Co., 87 S.Ct. 5, 17 L.Ed.2d 45 (1966). The case eventually became moot before the Supreme Court could decide the question. McLeod v. General Elec. Co., 385 U.S. 533, 87 S.Ct. 637, 17 L.Ed.2d 588 (1966). The District of Columbia Circuit has rejected the idea that the Regional Director must claim irreparable harm. International Union, UAW v. NLRB, 145 U.S. App.D.C. 384, 449 F.2d 1046, 1051 (1971).
      There are readily apparent differences between 10(j) and 10(Z). In a 10(j) case the Board is not required to seek a temporary injunction and it may seek interim relief only after it has issued a complaint. Under 10 (Z), the Regional Director must seek an injunction whenever he has reason to believe that any person has committed one of the specified unfair labor practices. An ex parte restraining order under 10(Z) requires a showing of “substantial and irreparable injury to the charging party.” A comparison of 10(j) and 10(Z) has led some commentators to suggest “that in Section 10(j) cases the courts will place greater emphasis on the traditional equity criteria for injunctive relief applicable in suits between private parties than they do in Section 10(Z) cases.” ABA, The Developing Labor Law 851 (C.Morris ed. 1971).

      . The danger of laying down hard and fast rules for the guidance of courts in determining whether injunctions should issue, has been long since recognized. Wha-len v. Union Bag & Paper Co., 208 N.Y. 1, 4, 101 N.E. 805 (1913), quoting 2 J. Story, Equity Jurisprudence § 959b (10th ed.).

      . In Local 25, supra, which involved consolidated appeals in two proceedings, the picketing had ceased in one case before the injunctive relief was granted, but this Court held that an injunction would contribute to stabilizing the situation.


author: PER CURIAM: ROBERT P. ANDERSON, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Thomas DUFFY, Appellant.
    No. 757, Docket 73-1081.
    United States Court of Appeals, Second Circuit.
    Argued April 5, 1973.
    Decided May 7, 1973.
    Robert P. Anderson, Circuit Judge, dissented and filed opinion.
    E. Thomas Boyle, St. James, N.Y. (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for appellant.
    David DePetris (L. Kevin Sheridan, Asst. U. S. Atty., Robert A. Morse, U. S. Atty., on the brief), for appellee.
    Before HAYS, ANDERSON and OAKES, Circuit Judges.
   PER CURIAM:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York affirming a judgment of the Magistrate’s Court for that district which found the appellant guilty of engaging in a business without a permit at the Fire Island National Seashore in violation of 36 C.F.R. § 5.3. Appellant was sentenced to a fine of $250 the execution of which was stayed pending this appeal.

Appellant concedes that he was engaged in “commercial fishing” (as the Magistrate found) when he was arrested but he argues that commercial fishing is not prohibited at the Fire Island National Seashore under 36 C.F.R. § 5.3. Appellant argues that the prohibition in 36 C.F.R. § 5.3 against engaging in a business is superseded by 36 C.F.R. § 2.-13 (dealing generally with fishing in national parks).

We hold that the Magistrate and the District Court correctly found that appellant’s activity, commercial fishing, is prohibited by 36 C.F.R. § 5.3 and that that provision is not superseded by the general provisions applicable to fishing. It is the business activity, not the fishing, which the regulation prohibits.

Applicant next claims that his Fifth and Sixth Amendment rights were violated by the admission of certain statements of his at his trial before the Magistrate. After federal rangers had given appellant a citation for violating 36 C.F.R. § 5.3, he was taken into custody by members of the Suffolk County police who believed that an active warrant was out for him for violations of certain state vehicle and traffic laws. On the way to the police station — after being advised of his Miranda rights and waiving them — the appellant made statements to the police dealing with his fishing activity which later were admitted against him at his trial on the federal charge. We believe that appellant’s statements were not the product of “interrogation” within the meaning of the Miranda doctrine but were volunteered by appellant, see United States v. Gaynor, 472 F.2d 899 (2d Cir. 1973).

As to the claim of right to the presence of counsel at the “interrogation,” the issuance of a National Seashore Ranger’s citation to appellant could hardly be called the initiation of a “formal adversary criminal proceeding” within the meaning of United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972).

In spite of the absence of merit in appellant’s substantive contentions, we must remand the case for resentencing because the grounds upon which the sentence was based are unlawful. In regard to appellant’s sentence, the Magistrate said:

“The 250.00 fine levied on the defendant hardly will cover the costs of this proceeding which the defendant’s three associates saved the Government when they pleaded guilty. Besides the time taken up at the trial including that of the Magistrate, Court Reporter paid for by the Government, the Prosecutor, Legal Aid Society (assigned to defendant at Government expense) and an appeal including that of the District Judge, Court Reporter, Prosecutor and Legal Aid Society plus the cost of the transcript of the minutes of both proceedings, we have the time of the Government witnesses attending in court to testify. Accordingly no part of the fine is remitted.”

It thus appears that the Magistrate imposed the relatively heavy fine on Duffy as a consequence of his refusal to plead guilty. This action was, of course, improper.

We therefore remand this case to the Magistrate for reconsideration of appellant’s sentence.

ROBERT P. ANDERSON, Circuit Judge

(dissenting).

I dissent. If the conviction could be held to be valid, I would agree with the majority that the case must be remanded to the district court for resentencing; but it is my opinion that the judgment of conviction was invalid.

The appellant, Duffy, was found guilty of engaging in commercial fishing under 36 C.F.R. § 5.3 which is a general prohibition against engaging in any business within the national parks without a permit. Although he and his four companions were not operating a large scale fishing operation and the magistrate who tried the case expressed some concern over whether or not Duffy was involved in a business venture, he might conceivably have been convicted of violating this regulation, except for the existence of operative statutes and regulations which deal specifically with fishing at the Fire Island National Seashore, which the majority completely ignore. These statutes and regulations actually allow the activities in which Duffy was engaged. It is an accepted maxim that “specific terms prevail over the general in the same or another statute which otherwise might be controlling,” D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704 (1932). The application of this long recognized rule of construction requires that the information in this case be dismissed.

The statute providing for the creation of this national park reads that “[t]he Secretary shall permit hunting, fishing, and shell-fishing . . . within the Fire Island National Seashore in accordance with the laws of New York . . .,” 16 U.S.C. § 459e-4. (Emphasis added.) See also, 36 C.F.R. § 2.-13(a).

On the date of the alleged offense New York law, N.Y. Conservation Law § 320(1) (b) (McKinney’s Consol.Laws, c. 65, 1967) provided that:

“A citizen resident of the state for not less than six months immediately preceding such taking may without license take food fish in the Marine District [which includes the waters of the Atlantic Ocean] .' . . with nets other than beam trawls and otter trawls, [except in certain, waters not applicable here].”

The Government admits that Duffy did not violate New York state law, therefore, I do not see how it can be said that he transgressed federal law.

Moreover, the general limiting regulation, 36 C.F.R. § 2.13(j) (3), provides that “[i]n natural and historical areas: Fishing in fresh waters for merchandise or profit is prohibited except as provided under special regulations.” Fire Island is a recreational area, not a natural or historical one, 36 C.F.R. § 1.-2(g), (h), (i); and it should be noted that § 2.13(j)(3) prohibits commercial fishing only in fresh water, not the salt water of the Atlantic Ocean with which this case is concerned. All of this mosaic of provisions dovetails in support of the conclusion that commercial fishing in the ocean surf from the shore of Fire Island National Park is permitted.

Furthermore, permitting commercial fishing in the waters of this national seashore would not destroy the recreational value of the park, because protection is afforded by other regulations which ban fishing within “designated mooring areas, swimming beaches or surfing areas,” 36 C.F.R. § 2.13(g), and commercial vehicles are prohibited from park areas, 36 C.F.R. § 5.6.

In view of the well established principle that any ambiguity in criminal statutes must be resolved in favor of the accused to insure that no one will be subject to penalty for a particular act unless he has first been given fair warning, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), it at least must be conceded that these statutes and regulations make the applicability of the regulation against “engaging in or soliciting any business in park areas” to commercial fishing in the surf, very dubious indeed. It is my opinion that such fishing is not prohibited and the information should be dismissed.

      . 36 C.F.R. § 5.3 reads as follows:
      Engaging in or soliciting any business in park areas, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, except as such may be specifically authorized under special regulations applicable to a park area, is prohibited.


author: INGRAHAM, Circuit Judge:

text:
    Troy M. SESSIONS, Plaintiff-Appellee, v. FRITZ KOPKE, INC., et al., Defendants-Third Party Plaintiffs-Appellees and Cross Appellants, v. COOPER STEVEDORING COMPANY, INC., Third Party Defendant-Appellant and Cross Appellee.
    No. 72-1467.
    United States Court of Appeals, Fifth Circuit.
    June 1, 1973.
    As Modified on Denial of Rehearing Aug. 6, 1973.
    Frank G. Harmon, Joseph Cheavens, Houston, Tex., for Cooper Stevedoring Co.
    Dixie Smith, Houston, Tex., for Kopke.
    Warner F. Brock, Houston, Tex., for Sessions.
    Before MORGAN, CLARK and IN-GRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

The SS KARINA, a vessel owned and operated by Fritz Kopke, Inc., and under charter to the Alcoa Steamship Company, was loaded with palletized crated cargo by the employees of Cooper Stevedoring Company at Mobile, Alabama. The KARINA departed Mobile and arrived at Houston on or about July 2, 1969, where employees of Mid-Gulf Stevedores, Inc., prepared to load sacked cargo.

Troy Sessions, a longshoreman employed by Mid-Gulf, was one of the first men to enter the hold of the ship. The Mid-Gulf employees were required to walk atop the previously loaded palletized crates in order to store the cargo they were bringing aboard ship. Sessions stepped into an opening between two crates which was concealed by a covering of corrugated paper, and thereby sustained certain personal injuries.

Sessions brought an action against Fritz Kopke and the Alcoa Steamship Company (collectively referred to as the vessel) seeking to recover damages for his injuries. The vessel in turn sought indemnity against Mid-Gulf and Cooper. Prior to trial the vessel compromised and settled its claim against Mid-Gulf, which was then dismissed from the suit. After a trial to the court, sitting without a jury, the vessel -was found to be unseaworthy and damages were awarded to the plaintiff in the amount of $38,-679.90. No one appeals from this award. The court found that Cooper had negligently stowed the cargo it loaded in Mobile and had thus breached the warranty of workmanlike performance it owed to the vessel. Denying the vessel’s claim for a full indemnity, the court awarded the vessel contribution from Cooper as a joint tort-feasor for 50% of the damages.

Cooper appeals. The vessel cross-appeals, contending that there was no basis for the trial court’s denial of its claim to full indemnity from Cooper. While our appellate review of this case is made somewhat difficult by the fact that neither the vessel nor Cooper requested that the trial court make formal findings of fact or conclusions of law which specifically dealt with the various rights and liabilities of the parties, nevertheless, we find ample basis for this holding in the oral decision announced by the judge at the conclusion of the case. Fairly read, the holding does make it clear that the court considered the vessel’s conduct precluded its full recovery on the indemnity claim because it failed to fulfill its primary responsibility under its arrangement with Cooper to assure that some type of dunnage was placed on top of the cargo. On the record before us we cannot conclude that this finding was clearly erroneous.

On its appeal Cooper Stevedoring asserts that the trial court’s award of contribution in a non-collision maritime case is in direct conflict with the Supreme Court’s decisions in Halcyon Lines et al. v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972).

Halcyon, supra, held that there was no right to contribution between a shipowner and a shoreside contractor who are joint tort-feasors in a case involving injuries to an employee of the contractor while engaged in repair work on a ship. The apparent prohibition against contribution in a non-collision maritime case has been held inapplicable where the joint tort feasor against whom contribution is sought is not immune from tort liability by statute. Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (5th Cir., 1970), cert. den., 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441 (1971); Watz v. Zapata Offshore Company, 431 F.2d 100 (5th Cir., 1970); In re Seaboard Shipping, 449 F.2d 132 (2nd Cir., 1971), cert. den., 406 U.S. 949, 92 S.Ct. 2039, 32 L.Ed.2d 337 (1972).

In the present case Sessions, in "addition to suing the vessel, could have proceeded directly against Cooper Steve-doring as Cooper was not his employer and, therefore, not shielded by the limited liability of the Longshoremen and Harbor Workers Act.

The Supreme Court’s per curiam af-firmance of the Atlantic case, supra, does not necessitate a reexamination of our prior decisions. It is unclear from the district court’s opinion, 315 F.Supp. 357 (S.D.N.Y., 1970), as well as from the Second Circuit’s affirmance thereof, 442 F.2d 694 (1971), whether our Horton-Watz exception to the Halcyon rule was even applicable under the facts of Atlantic. Moreover, neither court directly questioned the decisions in Horton and Watz. In these circumstances and absent a reference in the Supreme Court’s short per curiam opinion to these decisions, we do not read Atlantic as silently overruling Horton and Watz.

Finding both parties' additional assertions of error without merit, we therefore AFFIRM the judgment of the district court.

Affirmed.


author: PER CURIAM:

text:
    William A. SMITH, III, et al., Appellants, v. Louis V. KOERBER et al., Appellees.
    No. 73-1186.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1973.
    Decided July 9, 1973.
    Paul Mark Sandler, Baltimore, Md. (Raymond F. Altman, and Ulman & Cohan, Baltimore, Md., on brief), for appellants.
    William F. Mosner, Towson, Md., for appellees.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
   PER CURIAM:

We affirm on the opinion of the District Judge. Smith v. Koerber, 352 F. Supp. 591 (D.Md.1972).

Affirmed.


text:
    RALSTON PURINA COMPANY, Plaintiff-Appellant, v. UNITED RICE MILLING PRODUCTS COMPANY, INC., Defendant-Appellee.
    No. 73-1487
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 19, 1973.
    J. R. Schmidt, John D. Kopfler, Hammond, La., for plaintiff-appellant.
    Nathan T. Gisclair, Jr., Stanley Mc-Dermott, Jr., New Orleans, La., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a judgment of the District Court finding that appellant, Ralston Purina Company, was not entitled to damages for an alleged breach of contract by appellee, United Rice Milling Products Company, Inc. We hold that the District Court did not err in finding (1) that the contracts being sued upon did not come into existence because an essential condition was not fulfilled, and (2) that appellant had received adequate notice of appellee’s intention not to perform. We also hold that the District Court did not err in not applying the doctrine of equitable estoppel. See Muhleisen v. Allstate Ins. Co., 203 So.2d 847 (La.Ct.App.1967).

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mario FLORES-RAMOS, Defendant-Appellant.
    No. 73-1040.
    United States Court of Appeals, Ninth Circuit.
    July 6, 1973.
    John J. Cleary (argued), Robert Ripley, Jr., Fed. Public Defenders, San Diego, Cal., for defendant-appellant.
    Douglas G. Hendricks, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Shelby R. Gott, Matthew T. Kissane, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
    Before CHAMBERS and CHOY, Circuit Judges, and SWEIGERT, District Judge.

       The Honorable William T. Sweigert, United States District Judge for the Northern District of California, sitting by designation.

   ORDER RECALLING ORDER

The order reversing the case on the authority of Almeida-Sanchez v. United States, -U.S. -, 93 S.Ct. 2535, 37 L.Ed.2d 596 decided June 21, 1973, is recalled.

The parties are invited to submit simultaneous briefs within 14 days on the question of whether Almeida-Sanchez is retroactive.


text:
    Freddie H. DREYER, Plaintiff-Appellee, v. Frances T. Freeman JALET, Defendant-Appellant, Robert SLAYMAN, Plaintiff-Appellee, v. Frances T. Freeman JALET, Defendant-Appellant, Donald Allen LOCK, PlaintiffAppellee, v. Frances T. Freeman JALET, Defendant-Appellant.
    No. 73-1010
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 9, 1973.
    Stuart M. Nelkin, W. W. Kilgarlin, Frederick S. Grossberg, David H. Berg, Henry M. Rosenblum, Houston, Tex., William K. Kimble, Austin, Tex., Leon S. Hirsch, Houston, Tex., for defendant-appellant.
    Max H. Jennings, Houston, Tex., for Dreyer.
    Thomas M. Phillips, Houston, Tex., for Slayman.
    Donald K. Eckhardt, Houston, Tex., for Lock.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

After consideration of the brief, trial record and reported memorandum opinion of the District Judge, D.C., 349 F. Supp. 452, we conclude that the district court should be

Affirmed.


text:
    Beatrice M. CAWOOD, Plaintiff-Appellant, v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 73-1635
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 10, 1973.
    Daniel C. B. Levy, Atlanta, Ga., for plaintiff-appellant.

      Denmark Groover, Jr., Macon, Ga., for Ga. Farm Bureau and others.
    Harry S. Baxter, George B. Haley, Jr., Atlanta, Ga., for Southern Farm.
    Before THORNBERRY, GOLDBERG and RONEY, 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:

It is ordered that the appeal in the above numbered and entitled cause is dismissed for lack of jurisdiction. Rule 54(b), F.R.Civ.P.


text:
    Daryl EVANS, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent. Appellee.
    No. 73-1191
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 28, 1973.
    Robert J. Zibilich, New Orleans, La., court-appointed, for petitioner-appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., James Garrison, Dist. Atty., New Orleans, La., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Evans brought this petition seeking habeas corpus relief alleging that his several confessions introduced into evidence during his state murder trial were involuntary. After holding an evi-dentiary hearing on the petition, the district court denied all relief. We affirm.

The involuntariness claim is premised on Evans’ contention that his oral and written statements were the product of promises by the interrogating officers that he would not receive the death penalty if he confessed to the crime. This factual issue was fully litigated and fairly resolved against Evans in the state trial court; that determination was affirmed on appeal by the Louisiana Supreme Court, where the question received full and careful consideration.

Our review of the original trial record and the transcript of the federal eviden-tiary hearing reveals more-than-substantial evidence to support the state courts’ factual resolution and the federal habeas court’s conclusion that the confessions were free and voluntary.

Affirmed.

      . State v. Evans, 249 La. 861, 192 So.2d 103 (1966), cert. denied, 389 U.S. 877, 88 S.Ct. 110, 19 L.Ed.2d 187 (1967).


text:
    NUCLEAR CORPORATION OF AMERICA, Plaintiff-Appellee, v. Bill G. HALE et al., Defendants-Appellants.
    No. 73-1865
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 10, 1973.
    Keith Nelson, Wichita Falls, Tex., for def endants-appellants.

      Terry Guy Shipley, Noble, Okl., Ralph W. Pulley, Jr., Jack L. Coke, Jr., Dallas, Tex., for plaintiff-appellee.
    Before GEWIN, -COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

After consideration of the briefs, trial record, and reported memorandum opinion of the District Judge, 355 F. Supp. 193, we conclude that the district court should be

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rodell Jerry BROOKS, Defendant-Appellant.
    No. 73-1348
    Summary Calendar.

    United States Court of, Appeals, Fifth Circuit.
    July 3, 1973.
    Frank C. Fariss, Houston, Tex., court appointed, for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

On this appeal, the appellant presents the following contentions for our review: (1) evidence was presented at trial from which the jury could infer that appellant was a state prisoner; (2) the trial court committed error by refusing appellant’s motion to disclose the notes and records of certain Government interviews with him; (3) the trial court committed error in not granting appellant’s motion for a mistrial, after counsel for the Government told the jury in his opening statement that appellant had confessed to the crime charged before the lower court had ruled on the admissibility of the confession; (4) the Government’s case was incomplete since it did not introduce the copy of the forged check used in eliciting appellant’s confession; (5) the variances between the allegations in the indictment and the evidence was fatal to the Government’s case; (6) the trial court committed error by reinstating one count of the indictment after Government counsel informed the court of the controlling legal principle; and, (7) there was insufficient evidence to support appellant’s conviction. After a complete review of the record and the prior court decisions on which the appellant relies, we conclude that appellant’s contentions are completely without merit and thus affirm. See Local Rule 21.

      . See NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5th Cir. 1970).


text:
    UNITED STATES of America, Appellee, v. Richard RUSSEUL, Appellant.
    No. 26485.
    United States Court of Appeals, Ninth Circuit.
    June 20, 1973.
    Robert E. Prince, Stern, Gay ton, Neu-bauer & Brucker, Seattle, Wash., for appellant.
    Stan Pitkin, U. S. Atty., Charles Pin-nell, Asst. U. S. Atty., Seattle, Wash., for appellee.

      Before KOELSCH, ELY and TRASK, Circuit Judges.
   PER CURIAM:

This court’s judgment in the subject cause, reported at 459 F.2d 671 (9th Cir. 1972), has now been reversed by the Supreme Court of. the United States. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The Supreme Court remanded the cause to this court “for further proceedings in conformity with the (Supreme Court’s) opinion . . . .” Pursuant to the Supreme Court’s directions, we now affirm the District Court’s judgment of conviction.

So ordered.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charlie F. PARKER, Defendant-Appellant.
    No. 73-1595
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1973.
    Joe C. LeSage, Jr., Shreveport, La., John B. Benton, Jr., Minden, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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:

The appellant sought to withdraw his plea of guilty to one count of a six count indictment charging Securities Fraud, Mail Fraud, and Conspiracy. He alleged that a plea bargain which prompted the plea had not been kept, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Upon an examination of the record, which included an evidentiary hearing and the findings of the District Court announced from the Bench at the conclusion of that hearing, we are of the opinion that the appeal from the order denying the withdrawal of the guilty plea is wholly without merit.

The judgment of the District Court is Affirmed.


author: ELY, Circuit Judges.

text:
    Robert BUSTAMONTE, Plaintiff-Appellant, v. Merle R. SCHNECKLOTH, Superintendent, California Conservation Center, Defendant-Appellee.
    No. 25678.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1973.
    S. Thomas Pollack (argued), Stuart P. Tobisman, Los Angeles, Cal., for plaintiff-appellant.
    Clifford K. Thompson, Jr., Deputy Atty. Gen. (argued), Thomas C. Lynch, Atty. Gen., Deraid E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for defendant-appellee.
   ELY, Circuit Judges.

ORDER

Before HAMLIN, MERRILL and

By order of the Supreme Court, Merle R. Schneckloth, Superintendent, California Conservation Center v. Robert Clyde Bustamonte, No. 71-732, entered May 29, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, our judgment heretofore entered in this case 448 F.2d 699, was reversed and the case remanded for further proceedings.

Judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bobby Milton McFARLAND, Defendant-Appellant.
    No. 73-1219
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 16, 1973.
    John F. Davis, Jr., Atlanta, Ga., court-appointed, for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Stanley M. Baum, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    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:

Bobby Milton McFarland appeals from his conviction for the unlawful distribution of 1.54 grams of heroin hydrochloride, in violation of 21 U.S.C. § 841(a) (1). We affirm.

We find no error in any of the various assignments of error which appellant lists as follows: Error by the court (1) in admitting evidence of other unrelated offenses during the trial, (2) in failing to grant defendant’s motion for mistrial following the admission of testimony of other offenses, (3) in admitting hearsay testimony of the Government’s confidential informant or decoy without producing him for examination by defendant and failure to give cautionary instructions in regard thereto, (4) in failing to give a “missing witness” charge, (5) in failing to find unlawful entrapment established as a matter of law, and (6) in giving a charge on “entrapment” that was equivocal, misleading or erroneous.

We have carefully examined each of appellant’s contentions in the light of the record and find that they are without merit.

Affirmed.


text:
    OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, Plaintiff-Appellant, v. OIL CITY BRASS WORKS, INC., Defendant-Appellee.
    No. 73-4811
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 20, 1973.
    Carl A. Parker, Port Arthur, Tex., for plaintiff-appellant.
    John H. Benckenstein, Beaumont, Tex., for defendant-appellee.

      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:

In this appeal from the dismissal of the Union’s suit to compel arbitration of a grievance, the Union does not attack as erroneous the district court’s findings of fact. Concluding, as we do, that the lower court’s conclusions of law stated and applied the correct legal principles to the undisputed facts, the judgment of the district court is

Affirmed.


author: MARKEY, Chief Judge.

text:
    Application of John P. GLASS.
    Patent Appeal No. 9000.
    United States Court of Customs and Patent Appeals.
    June 21, 1973.
    Rehearing Denied Aug. 9, 1973.
    John F. A. Earley, Philadelphia, Pa., (Smith, Harding, Earley & Follmer, Philadelphia, Pa.), for appellant. James W. Dent, Washington, D. C., of counsel.
    Joseph F. Nakamura, Washington, D. C., Acting Solicitor for the Commissioner of Patents. John W. Dewhirst, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE, Judges, and ALMOND, Senior Judge.
   MARKEY, Chief Judge.

This is an appeal from the decision of the Patent Office Board of Appeals sustaining the rejection of claims 12-19 under 35 U.S.C. § 103 of appellant’s application serial No. 670,335, filed September 25, 1967, for “Method of Forming a Boat Rail and the Like.” We affirm.

The Invention

The invention is clear from claim 12:

12. A method of continuously forming rails for use on boat hulls, comprising the steps of feeding a molten material which does not readily accept adhesives to an extruding die, feeding an adhesive belt into said die, said belt including an impermeable backing layer which readily accepts adhesive, an adhesive layer attached to the backing layer, and a removable cover sheet covering the adhesive layer, bonding one side only of the backing layer to said material, extruding said material and backing layer from said die as a molding form, cutting the molded form into rails, removing the cover sheet, and mounting the rails onto a boat hull by pressing the adhesive layer against the hull.

The Rejection

As presented here, the rejection is based on a French patent to Schock, number 1,411,614 (Schock’s British patent 1,076,033 by stipulation employed as the translation), Garling 3,253,971 and Egerton 1,352,739. Other patents were referred to in prosecution and before the board. Appellant points to variances in the reference combinations cited as prosecution progressed and to a change in emphasis from Garling to the French patent between the final rejection and the Answer of the examiner. Appellant also professes an inability to understand the final rejection and that he still awaits adequate clarification and citation of authority in support of the rejection.

The French patent discloses the extrusion molding of a plastic strip together with a covering strip, which may be fabric, foil, metal or the like. Gar-ling discloses a plastic base which may be cast or molded onto a laminate having a pressure-sensitive adhesive layer and a release paper layer. Egerton relates to molding of fabric layers together with a facing layer of fabric. Egerton teaches the application of adhesive to the facing layer in order to adhesively attach the molded fabric body to a support.

OPINION

We have carefully considered the entire record and are convinced that appellant was adequately apprised throughout of the basis for each rejection made. The realignment of emphasis in the Examiner’s Answer continued the same reliance on each of those references for what it individually taught. The authority for the rejection, 35 U.S.C. § 103, was consistently referred to from the outset.

Appellant argues the references individually, pointing to the failure of each to treat or solve the “problem” of adhesively attaching a boat rail to a boat hull when the rail is of a material that will not readily accept adhesive. Appellant also stresses additional steps or structures present in the references. But the consideration of references individually is not the criterion. The examiner, as required by 35 U.S.C. § 103, considered the skill of the art as reflected in the totality of the teachings of the cited references and held that the claimed method, in view of that combined body of suggestion, was obvious. The board found no adequate challenge to that position and we find none. Appellant merely alleges that the rejection is based on a hindsight reconstruction of the invention from individual steps found in separate patents. We are supplied with no reasons why the combination of teachings relied on is impractical, impossible, or self-defeating and we see no such indications in our reading of the references. Moreover, the record reflects no evidence of surprising or unexpected result and no evidence of long-felt need or commercial success attributable to the invention.

Considering the problem of adhesively attaching a material (polypropylene) which is admittedly known to resist adhesives, we think the art clearly suggests the solution of extruding (French patent) that material with a “backing layer” or facing strip (Egerton) which will accept an adhesive. While claims 12-15 include an adhesive layer and cover sheet, claims 16-19 envisage molding the backing layer alone on the rail and thereafter applying adhesive thereto.

Claims 12-15 call for extruding of the rail with a preformed “belt” or three-layered laminate of backing, adhesive and cover sheet, the cover sheet to be later removed for adhesive attachment of the rail. We think the French disclosure of extruding a strip with a cover layer and Garling's disclosure of casting a base onto a release paper layer having an adhesive layer thereon for adhesive attachment of the base clearly suggest and render obvious the extruding of the three layers in laminate form.

The briefs contain substantial argument as to whether the cover strip of the French patent is disclosed as an attaching means. In view of Egerton, we find it unnecessary to decide that question.

Appellant points to article limitations in some of the claims and to our remarks in In re Fine, 44 C.C.P.A. 746, 240 F.2d 354 (1957). Unlike the situation in Fine, however, the article limitations in the present claims do not affect the performance of the process. See In re Conix, 56 C.C.P.A. 874, 405 F.2d 1315 (1969).

No reversible error having been shown in the decision appealed from, it is affirmed.

Affirmed.


author: ANDERSON, Judge:

text:
    PLUMBERS LOCAL UNION NO. 519 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, a labor organization, Appellant, v. CONSTRUCTION INDUSTRY STABILIZATION COMMITTEE and John T. Dunlop, as Chairman of the Construction Industry Stabilization Committee, Appellee, Plumbing Industry Program, Inc., a Florida non-profit corporation et al., Appellee-Intervenor.
    No. 5-3.
    Temporary Emergency Court of Appeals.
    May 23, 1973.
    Rehearing Denied June 20, 1973.

      Joseph H. Kaplan, Miami, Fla. (Kap-lan, Dorsey, Sicking, Hessen & Roden-berg, P.A. Miami, Fla., with him on the brief) for appellant.
    Paul T. Michael, Civil Division, Dept, of Justice, Washington, D. C. (Harling-ton Wood, Jr., Asst. Atty. Gen., Washington, D. C., Robert Rust, U. S. Atty. and Raymond Ray, Asst. U. S. Atty. S. D. Florida,. William E. Nelson, Stanley D. Rose, and William C. White, Dept, of Justice, Washington, D. C., on the brief) for appellee.
    Jonathan L. Alpert, Miami, Fla. (Leo M. Alpert, Miami, Fla., on the brief) for intervenor-appellee.
    Before HASTIE, ANDERSON and JOHNSON, Judges.
   ANDERSON, Judge:

Plumbers Local Union 519, the recognized bargaining agent for approximately 1,000 plumbers in Dade County, Florida, appeals from a judgment of the United States District Court for the Southern District of Florida, denying it relief from rulings by the Construction Industry Stabilization Committee (CISC) which substantially reduced two negotiated wage increases. We affirm.

In 1970, Local 519 and Plumbing Industry Program, Inc. (PIP), the representative of the plumbing contractors in Dade County, negotiated a labor contract for the period from April 16, 1970 to April 15, 1973. This contract included hourly wage and fringe benefit increases of $1.50 and $.65 on October 16, 1971 and April 16, 1972, respectively. Because of the wage freeze during Phase I of the President’s economic stabilization program (see Executive Order 11615) the increase scheduled for October 16th was not put into effect. In January 1972, after the institution of Phase II (see Executive Order 11695) the Union applied to CISC for approval of the retroactive payment of the frozen wages. On February 25 the Committee summarily disapproved the application, prompting the Union to resubmit it with various supporting affidavits and a brief. CISC heard oral argument on April 13 and four days later reaffirmed its original decision, but authorized a $.40 increase. The Committee in the same notice informed the Union that the increase scheduled for April 16 had also been disapproved, but it subsequently granted instead, an increase of $.40.

Local 519 commenced this action on May 19, seeking an order declaring both of the original, negotiated increases valid under the Economic Stabilization Act of 1970, as amended (the Act). At the same time, the Union wrote to all the contractors who were parties to the 1970 agreement, demanding that money to cover both increases in full be put in escrow pending judicial review of CISC’s decision. CISC immediately objected to this proposal, and cited its policy against such escrows, see 6 C.F.R. § 201.41(c)(4); Pay Board Ruling 1972-125, 37 Fed.Reg. 26708 (1972); Ray Board Ruling 1972-34, 37 Fed.Reg. 9350 (1972). On June 6 the Union proposed instead an escrow account for only the $.80 in approved increases and this was accepted by PIP. On August 22, however, the appellant moved for a preliminary injunction to prevent the Committee from interfering with an escrow agreement for the full $2.15.

The preliminary injunction was denied on October 13, D.C. 350 F.Supp. 6. Cross-motions for summary judgment ensued. On December 29 the District Court granted the Government’s motion and denied the Union’s. This appeal followed.

CISC was the first body established by the President under the Act. It was created on April 3, 1971 by Executive Order 11588, “to effectuate the stabilization of wages and prices consistent with and in furtherance of effective collective bargaining in the [construction] industry.” Its existence and function have been repeatedly reaffirmed by the President during the various phases of the economic stabilization program, see Executive Orders 11695 (§ 5), 11640 (§ 15) and 11627 (§ 14). Every wage increase in the construction industry must be approved by either CISC or one of its craft dispute boards before it may legally be put into effect, Executive Order 11588 (§ 4(c)). Of course, the authority of the Committee and the scope of its review of proposed wages cannot be wider than that conferred upon the President by § 203 of the Act. More specifically, in its deliberations which are the subject of this review, CISC was bound by the provisions of § 203(c), which relate to pay increases provided by contracts executed prior to August 15, 1971.

Section 203(c) has three interrelated subparts. Section 203(c)(1) mandates the allowance of wage increases scheduled to be effective after November 11, 1971 but included in a contract executed before August 15, 1971, “unless the President determines that the increase provided in such contract is unreasonably inconsistent with the standards for wage and salary increases published under subsection (b).” Section 203 (c)(2) applies identical language to wage increases which were agreed upon before August 15, 1971 and scheduled to become effective before November 14, 1971, but not paid because of the Phase I freeze. Section 203(c)(3) provides that in addition to wage increases allowed under § 203(c)(1) and (2), those contracted for prior to August 15, 1971 should be permitted “if the President determines that . . . prices have been advanced, productivity increased, . or funds have otherwise been raised or provided for in order to cover such increases.”

Before turning to the applicability of § 203(c) to the contract between Local 519 and PIP, two disputed preliminary issues must be resolved. First, it is necessary to consider where the burden of proof lies when a party seeks to take advantage of these provisions. In making this assignment, the variation in the wording of § 203(c)(1) and (2) as opposed to § 203(c)(3) is critical. Under the former, an increase is to be permitted unless the President determines to the contrary. By the latter, an increase is to be allowed only if the President determines that it falls within the stated class. We interpret this to mean (1) that the burden of proof rests upon the Government to demonstrate that a wage increase otherwise sanctioned by § 203(e)(1) or (2) is contrary to the standards of § 203(b) and therefore impermissible, but (2) that the burden of proof rests upon the party seeking to justify a wage increase under § 203(c)(3), to demonstrate that the necessary pre-conditions, e. g., price advances or increased productivity, have occurred.

Secondly, we must decide whether CISC’s procedures were proper as a matter of administrative law. The Committee, in its notice of disapproval, merely stated that “the [proposed] wage levels [are] unreasonably inconsistent with the stabilization policies of the Committee,” without expressly delineating the basis for this conclusion. It was not until the Government moved for summary judgment in the court below that Dr. John Dunlop, then Chairman of CISC, submitted an affidavit explicitly stating what factors the Committee considered and why it concluded as it did. Appellant argues that judicial review of CISC’s decision is limited to the actual record of the Committee, which would not include Dr. Dunlop’s “self-serving affidavit” which “was nothing more than a post hoc rationalization.” Therefore, the Union contends, since there is no record of CISC’s deliberations, and nothing in its notice suggests a factual basis for its decision, the Committee failed to sustain its burden under § 203(c)(1) and (2) and Local 519 was entitled to summary judgment below.

If the deliberations of CISC were the usual administrative adjudications, subject to the full panoply of the Administrative Procedure Act, there might be a serious question as to whether CISC’s decision complied with 5 U.S.C. § 557. However, § 207 (a) of the Economic Stabilization Act of 1970, as amended, specifically exempts the agencies of the economic stabilization program from most of the Administrative Procedure Act, particularly, in their handling of such matters as those involved in this case, 5 U.S.C. § 557. While § 207(a) leaves these agencies subject to 5 U.S.C. § 555(e), the notice here sufficiently complied with that provision. It would have been preferable for CISC to have included in its notice of denial some reference to the § 208(b) standards upon which it had relied and we trust that in the future it will do so, but nonetheless, in the case at bar, the evidence relevant to the § 203(b) standards so clearly supports CISC’s conclusion as to make its terse disposition self-explanatory. Dr. Dunlop’s post-litigation affidavit was merely expository of the Committee’s obvious, although implicit findings, and the District Court therefore properly accepted and used it.

The Union asserts that by virtue of § 203(b)(3), CISC was required specifically to find that there had been no increase in productivity before it could withdraw this contract from within the scope of § 203(c)(1) and (2). But § 203(b)(3) comprises only part of the overall standards to which § 203(c)(1) and (2) refer. The basic rule of § 203(b) is that wages and prices should be “consistent with the purposes of [the Act] and orderly economic growth.” The data included in Dr. Dunlop’s affidavit, nowhere disputed by the Union, resoundingly supports the conclusion that the proposed wages would have prevented the stabilization of construction industry wages and prices in southern Florida and shattered the historical relationship between Local 519 and other craft unions in the area. Dr. Dunlop also specifically referred to CISC’s having considered the increases’ possible justifiability on the basis of increased productivity. The Committee’s allowance of two $.40 increases implicitly recognized that Local 519’s contract partially complied with the standards of § 203(b). This type of judgment, involving the balancing of interrelated economic factors, is peculiarly within the scope of the expertise with which CISC is presumptively endowed. This court has repeatedly held that great deference should be given to the expertise of the economic stabilization agencies. See United States v. Lieb, 462 F.2d 1161 (TECA 1972); University of Southern California v. Cost of Living Council, 472 F.2d 1065 (TECA 1972). This policy is particularly appropriate where, as here, the administrative judgment is of a technical nature and no flaw in the exercise of its expertise has been pointed out. It is, therefore, concluded that the Government adequately demonstrated that the proposed increases would have violated the totality of the § 203(b) standards, and that the two adjustments which were permitted, constituted the maximum which were justifiable on that basis.

With respect to the validity of these increases in the light of § 203(c)(3), we find no error in the district court’s determination. To support its claim that contractors had raised their bids in anticipation of higher wages, Local 519 submitted affidavits to that effect from two contractors. But the action, of. two firms in a large industry does not compel the conclusion that their practice is the general rule. Local 519 also submitted 151 affidavits executed by its members on forms prepared by the Union testifying to substantial increases in productivity through the introduction of new methods and materials. It was not an abuse of its discretion for CISC to ignore these self-serving documents. In the absence of an independent evidence of the alleged increased productivity of these workers, the Union failed to satisfy its burden of proving that these wage increases were justified under § 203<c) (3).

The judgment of the District Court is affirmed.

      . Appellant’s first contention is that the District Court erred by its denial of preliminary relief. However, the disposition of this case on the merits renders this issue moot. Moreover, this court has just recently approved the policy prohibiting escrows which Local 519 challenged, United States v. I.B.E.W., Local No. 11, TECA, 475 F.2d 1204 (1973). Local 519 also seeks for us to review the District Court’s denial of its motion to compel answers to certain interrogatories. The Union, however, concedes that this “is merely ancillary to its appeal on the merits” and it specifically waves any claim for a remand for additional discovery. It is, therefore, actually seeking an advisory opinion, which is beyond the power of the court. St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 87 L.Ed. 1199 (1943).

      . Section 203(b) provides that:
      “In carrying out the authority vested in him by subsection (a), the President shall issue standards to serve as a guide for determining levels of wages, salaries, prices, rents, interest rates, corporate dividends, and similar transfers which are consistent with the purposes of this title and orderly economic growth. Such standards shall—
      (1) be generally fair and equitable;
      (2) provide for the making of such general exceptions and variations as are necessary to foster orderly economic growth and to prevent gross inequities, hardships, serious market disruptions, domestic shortages of raw materials, localized shortages of labor, and windfall profits;
      (3) take into account changes in productivity and the cost of living, as well as such other factors consistent with

        the purposes of this title as are appropriate ;
      (4) provide for the requiring of appropriate reductions in prices and rents whenever warranted after consideration of lower costs, labor shortages, and other pertinent factors ; and
      (5) call for generally comparable sacrifices by business and labor as well as other segments of the economy.”
      For Phase II, such standards were issued as Part 201 of the Economic Stabilization Regulations, 6 C.F.R. § 201.1, et seq.

      . This statute provides that:
      “Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.”


author: DYER, Circuit Judge:

text:
    Leonard A. HILL, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee.
    No. 72-3390.
    United States Court of Appeals, Fifth Circuit.
    July 6, 1973.

      Hubert L. Gill, Austin, Tex., for plaintiff-appellant.
    Ralph E. Hartman, Jack Pew, Jr., Dallas, Tex., for defendant-appellee.
    Before WISDOM, DYER and INGRA-HAM, Circuit Judges.
   DYER, Circuit Judge:

Hill brought this suit against American Airlines, Inc., alleging racial discrimination in employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2, and of the Civil Rights Act of 1866, 42 U.S. C.A. § 1981. Having been unsuccessful in the district court, he raises three basic issues on appeal: (1) that the class action portion of his complaint was erroneously dismissed; (2) that the district court should have entered judgment for him for damages for discriminatory wage rates and loss of back pay; and (3) that three claims of his complaint in the court below were incorrectly dismissed as not having been raised before the Equal Employment Opportunity Commission (EEOC). We conclude that only his third specification of error has merit, and reverse and remand for further proceedings on that point.

Hill, a black, was hired by American on December 25, 1965, and worked as a Skycap, initially on a part-time basis. His work consisted primarily of performing a portering function at the San Antonio airport facility. By July 13, 1968, Hill was working full time and was earning $2.20 per hour; he was also allowed to supplement his income by accepting tips. This hourly wage rate was $.15 per hour below the maximum allowed an American Skycap. Prior to July 13, American employed six Skycaps at San Antonio and each of them was black. Three of these men earned the maximum rate of $2.35 per hour and had greater seniority than Hill; the other two earned less than Hill, with correspondingly less seniority.

In March of 1966, while Hill was still working only part time, American modified its method of baggage handling and instituted a curbside service system. Under this system the Skycaps assisted pre-tieketed outbound passengers by checking their baggage through to their destination. Because few if any tips were received by a man permanently stationed at the curbside position, the duty was rotated in order to equalize the effects on the Skycaps.

In early 1968 American again decided to modify the baggage handling procedures at its San Antonio facility. The new idea was to hire one person whose only job would be to man the curbside station for the four peak daytime hours. To staff this position American wanted a young, college-age male and, on July 13, 1968, hired Jesse Hart, a white male.

Prior to his becoming the permanent curbside attendant, Hart had been employed as a part-time International Baggage Agent for American. He was working approximately two hours daily at this job and was being paid $2.84 per hour. Hart had expressed an interest in working more hours and, when the new Skycap job became available, he was selected and was paid $2.35 per hour. The part-time position was not offered to Hill.

With a permanent curbside attendant employed, the other Skycaps performed only their portering functions during the hours Hart worked. During Hart’s off duty hours, his duties were either assumed by the other Skycaps in rotation or they were done by one Skycap who voluntarily took over Hart’s duties.

For the first year that Hart worked, Hill had little contact with him because Hill essentially worked the night shift. In July 1969, however, Hill began working the day shift and on July 12, Hart’s day off, he was assigned for the first time to perform Hart’s duties at the permanent curbside station. He refused to be so restricted and expressed his desire to perform all of the Skycap functions. This refusal netted him a two hour suspension without pay and a poor merit evaluation, and was a factor in the denial of a merit increase shortly thereafter. Subsequent to this recalcitrance, Hill did, on various occasions totaling sixteen work days, assume Hart’s position and work at the curbside station.

On August 21, 1969, Hill filed a charge with the EEOC complaining basically of the suspension, the poor merit rating, and a loss of tips. After an EEOC investigation, it issued Findings of Fact to the effect that race was a factor in American’s conduct toward Hill. On June 21, 1971, Hill received from the EEOC a notice of right to sue within thirty days based on its failure to achieve conciliation.

Hill first argues that the class action portion of his complaint, in which he purported to represent all blacks who are or might be Skycaps for American at San Antonio or elsewhere in the United States, should not have been dismissed. We disagree. At least with respect to the size of the purported class, the district court’s determination of the existence vel non of a proper class is final unless abuse is shown. Johnson v. Georgia Highway Express, Inc., 5 Cir. 1969, 417 F.2d 1122; see Arkansas Education Association v. Board of Education, 8 Cir. 1971, 446 F.2d 763; Norwalk CORE v. Norwalk Redevelopment Agency, 2 Cir. 1968, 395 F.2d 920; Cypress v. Newport News General and Nonsectarian Hospital Association, 4 Cir. 1967, 375 F.2d 648.

In considering the San Antonio aspect of the class, the district court quite correctly found that the potential class of six members was not so numerous as to require class action treatment and that it was not shown that joinder of the members would be impracticable. See Foster v. Mobile County Hospital Board, 5 Cir. 1968, 398 F.2d 227.

We similarly perceive no error in the district court’s conclusion that on these facts Hill’s potential non-San Antonio area class was inappropriate and unmanageable as a class, and that he was an inadequate representive of the purported class. We are particularly persuaded that there is an absence of any substantial common questions of law or fact on the record before us. Class actions are permissible, indeed often preferable, in actions under Title VII if the requirements of Rule 23(a) and (b) (2), Fed.R.Civ.P. are satisfied, see Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496, but when no such satisfaction occurs, the class action portion of a complaint should be dismissed.

Hill next argues that the district court erred in denying him damages. His primary contentions are: (1) that the curbside system was discriminatory in that he had to perform additional duties without additional pay; (2) that the transfer of Hart, the permanent curbside attendant, was discriminatory because Hart received $.15 per hour more from American than Hill did; (3) that Hill did not receive additional pay for the sixteen days he was assigned to and actually did perform Hart’s duties; and (4) that his suspension, his poor merit evaluation, and the resultant failure to receive a pay raise were the fruits of previous discriminatory actions on American’s part. We find no merit in any of these contentions.

Fundamental to our conclusion is the finding of fact by the district court that American did not discriminate against Hill. Despite our sensitivity to charges of discrimination, this finding is still entitled to the “clearly erroneous” protection on review afforded by Rule 52(a), Fed.R.Civ.P. Terrell v. Feldstein Co., 5 Cir. 1972, 468 F.2d 910; Austin v. Maxwell, 5 Cir. 1972, 456 F. 2d 1237.

Our review of the record reveals certain facts, in addition to those set out above, found by the district court that weigh on our consideration of Hill’s charges: (1) the duties added to a Skycap’s job in 1966 were not foreign to the duties then performed by the six black Skycaps and Hill did not clearly demonstrate a loss of income as a result of performing them; (2) the new position filled by Hart was opposed and not actively sought by Hill, and it was only a part-time position for almost a year; (3) at all times relevant to this suit, Hill, because of his tip income, had a greater gross income than Hart did; and (4) the July 12, 1969, refusal to work unquestionably occurred and the disciplinary action taken was not, by itself, discriminatory. Taking all of these facts together, along with the rest of the complete record, we are left with no definite and firm conviction that the district court erred in entering judgment for American. See Chaney v. City of Galveston, 5 Cir. 1966, 368 F.2d 774.

Hill’s final contention is that the district court erred in dismissing the portions of his complaint that alleged discrimination in vacation policy, testing, and pay increases. The district court concluded that these charges had not been presented to the EEOC and that they were not reasonably related to those which had been presented; as a result, the district court dismissed the charges for lack of jurisdiction. This was error.

Hill brought this action in the district court under both Title VII and section 1981. This point was correctly alleged in all of Hill’s pleadings and noted in the district court’s findings. Consequently, even if we assume that none of these charges was even remotely related to those pressed before the EEOC, Hill still is entitled to pursue his completely independent remedy under section-1981 without first negotiating the EEOC administrative channels. Caldwell v. National Brewing Co., 5 Cir. 1971, 443 F.2d 1044, cert. denied, 1972, 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785; see Lee v. Southern Home Sites Corp., 5 Cir. 1971, 444 F.2d 143; Boudreaux v. Baton Rouge Marine Contracting Co., 5 Cir. 1971, 437 F.2d 1011; Sanders v. Dobbs Houses, Inc., 5 Cir. 1970, 431 F.2d 1097, cert. denied, 1971, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231. Therefore, the district court does have jurisdiction over these three claims of Hill and we reverse and remand for further proceedings with respect to these charges.

Affirmed in part, and reversed and remanded in part.

      . Non-supervisory employees working for American who are not covered by a labor agreement are paid on a scale established for each type or grade of job. Each grade has a minimum rate which is normally paid to new hires, a service limit which can be attained by automatic raises given over a period of time, and a maximum which can be achieved only by merit increases. For a Skycap, grade 26, these rates in 1968 were $1.91, $2.11, and $2.35 per hour respectively.

      . Hart’s old job was a grade 30 position with a minimum of $2.58 per hour, a service limit of $3.00 per hour, and a maximum of $3.54 per hour.

      . Because Hart’s old rate of pay, $2.84 per hour, was greater than the service limit — as well as the maximum — for a skycap, he was required by American’s regulations to take a cut in his per hour wage rate. The district court found that Hart did not accept tips while serving as a Skycap and that his $2.35 rate was an attempt to recognize this fact in the context of transferring jobs to a lower service grade.

      . Hart’s employment with American was terminated in April 1970 as the result of a reduction in force at the San Antonio facility. No Skycap, white or black, since that time has been assigned the duties as the permanent curbside attendant.

      . Because the district court has Jurisdiction under section 1981, it is unnecessary for us to decide whether the charges were reasonably related to those urged before the EEOC, see Sanchez v. Standard Brands, Inc., 5 Cir. 1970, 431 F.2d 455, or whether the fact that the acts corn-plained of occurred after the EEOC complaint was filed has any significance, see Danner v. Phillips Petroleum Co., 5 Cir. 1971, 447 F.2d 159, 162, and Edwards v. North American Rockwell Corp., C.D. Cal.1968, 291 F.Supp. 199.