author: JOHN R. BROWN, Chief Judge:

text:
    George LEGNOS and John Gorman, Jr., Plaintiffs-Appellants, v. M/V OLGA JACOB, her engines, tackle, etc., Schiffahrtsgesellschaft Jacob and Co., Claimant of the M/V Olga Jacob, Flensburger Dampfer-Compagnie, and United States of America, AppelleesAppellants, v. ELLER AND COMPANY, INC., Defendant-Appellee.
    No. 73-2525.
    United States Court of Appeals, Fifth Circuit.
    Aug. 12, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 22, 1974.

      David P. Karcher, Miami, Fla., for Eller & Company.
    John Briggs, U. S. Atty., Jacksonville, Fla., Oscar Blasingame, Asst. U. S. Atty., Tampa, Fla., Alfred Boudreau, Jr., Asst. U. S. Atty., Admiralty & Shipping Section, Dept, of Justice, Washington, D. C., for U. S. A.
    James A. Dixon, Jr., Miami, Fla., James 0. Davis, Jr., Tampa, Fla., for George Legnos and John Gorman, Jr.
    Morton Hollander, Ronald R. Glancz, Dept, of Justice, Civ. Div., Washington, D. C., James F. Moseley, Jacksonville, Fla., for Flensburger Dampfer-Compagnie and others.
    Dewey R. Villareal, Jr., Tampa, Fla., for Schiffahrtsgesellschaft.
    Neil H. Koslowe, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for appellees.
    Appeal from the United States District Court for the Middle District of Florida.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Appellants Legnos and Gorman filed a complaint in rem against the M/V OLGA JACOB and in personam against the shipowner, the charterer, and the United States, as owner of the cargo seeking salvage award. The District Court found that the services rendered by the appellants in helping to extinguish a fire on board the M/V OLGA JACOB, did not entitle them to a salvage award since neither the vessel nor the cargo had been imperiled by the fire. The District Court’s decision that the ship was not in peril due to the contained nature of the fire and the readiness of local fire officials was unsupported, and we therefore vacate that portion of the District Court’s decision and remand. , On a cross appeal challenging the District Judge’s decision that he could not determine the origin of the fire, we affirm on the ground that this finding was not clearly erroneous.

The Fire

M/V OLGA JACOB was docked in Port Canaveral, Florida, to take on a cargo of sophisticated military equipment including rocket launchers, trailer vans, CONEX containers and various component parts to the missile system destined for the Republic of West Germany. On February 16, 1971 Leg-nos and Gorman were on board working as superintendent and assistant superintendent for Eller and Company, the contracting stevedore in charge of loading the cargo. In the evening, after the loading was nearly complete, fire and smoke were reported coming out of No. 5 hold. Legnos and Gorman were working elsewhere on the ship at the time the fire was reported but quickly went to No. 5. Gorman obtained a ship’s light and accompanied Legnos into No. 5 in the successful attempt to locate the fire.

Upon being notified of the fire, the ship’s master ordered that the weather deck hatch cover on No. 5 be closed to cut off any ventilation to the hold. In addition 55 flasks of C02 gas were released into the hold in an attempt to control and extinguish the fire. During this time the Pan American Fire Department, service contractors to the base, and the local Cape Canaveral Fire Department arrived on the scene and were on ready standby.

No further action was ■•taken until the next morning (February 17) when the ship’s officers, local fire officials, military and civilian representatives of the base, the German Government and marine surveyors for the vessel’s underwriters and classification societies held extensive discussions. The master was of the view that the hold should be flooded with water and about this time declared a General Average. Whether his views were sought or not Legnos took an active part in these discussions in which he emphasized the damage that would be done by such method to this highly valuable military cargo. Included in the group was a chemist from the base whose testimony revealed that the atmosphere in the hold was lethal without sustaining Scott life packs. He was also concerned that even though there was no visible evidence of continuing fire (e. g., smoke, etc.) there was an acute danger of explosion were the hatches to be opened.

It was decided that someone should descend into hold No. 5 to determine if the fire was still alive. Legnos volunteered at this time to descend into No. 5 with a Cape Canaveral or Pan American fireman in order to locate the smoldering fire. Both Legnos and the fireman wore an air pack with breathing apparatus which Gorman helped operate from the deck. On getting into the lower hold the two observed that the fire was still smoldering.

On receipt of this information it was decided with the master’s approval to use foam, then available in the local fire fighting vehicles on the dock. Legnos in the company of one or more firemen went into the lower hold with foam hoses and put the foam on the smoldering area. Gorman in the meantime was on deck handling lifelines to the men below. It was then determined that the deck hatch cover should be removed and the cargo stowed on the tween deck hatch cover so that foam could be put into the lower hold through the hatch opening. Legnos and Gorman wearing airpaeks (although some ship crew members were not) went down into the tween deck which still had smoke in it. They hooked onto a rocket launcher and later assisted crew members in removing the tween deck hatch cover.

The firefighters thoroughly foamed down the lower hold and the fire was extinguished with only minor damage to cargo or ship.

Marine Peril

There are three elements which must be shown for a valid salvage claim: (1) a marine peril, (2) service voluntarily rendered when not required as an existing duty or from a special contract, and (3) success in whole or in part, or that the service rendered contributed to such success. The Steamboat Mayflower v. The Steamboat Sabine, 1880, 101 U.S. 384, 25 L.Ed. 982. M. Norris, The Law of Salvage § 63.

The District Judge denied any salvage award to the salvors based on .his finding that “there was no peril reasonably to be apprehended with respect to the vessel or her cargo such as would entitle the plaintiffs to a salvage award.” The District Judge based his conclusion on the fact that the vessel’s crew and the local fire fighter groups acted promptly and efficiently to extinguish the fire and that there were more than adequate numbers of competent fire personnel on the scene and the fire was successfully extinguished.

But we cannot accept this finding based as it is upon an erroneous application of controlling law which takes our review out of the usual Plimsoll line standard of F.R.Civ.P. 52(a).

A non-friendly fire aboard ship so long as it remains unextinguished is a classic case of marine peril. With flammable materials almost everywhere, passages and spaces where natural convection readily permits a small smoldering to break out in a blazing fury, the history of the sea attests to fire as a cause of some of the most catastrophic of marine disasters. See, the Morro Castle and Texas City Disasters.

Norris, supra, synthesizes the life, the experience of the sea and sea law when he states:

“It is difficult to conceive of a fire aboard ship which does not place the vessel in peril. The fire may be trivial but if aid is required or requested and given which aid extinguishes or contributes toward the eventual extinguishment of the fire, a salvage service has been performed.” M. Norris, The Law of Salvage, § 64 (1958), see also §§ 20, 21, 22.

And so it was here. The bottom of the lower hold where the fire started and burned contained highly combustible materials. Had the fire not been extinguished it was just a question of time until the fire would have spread throughout the hold. Although use of CO2 was helpful, the fire continued on the morning of February 17. This led to serious consideration of the use of the drastic step of flooding the hold — drastic at least in the sense of extensive damage to technical military devices of huge value.

It was at this time that the master put the sea law’s imprimatur on peril by declaring a General Average which as one of its principal ingredients requires the existence of a common peril to the venture. Orient Mid-East Lines, Inc. v. A Shipment of Rice, 5 Cir., 1974, 496 F.2d 1032; Barnard v. Adams, 1850, 51 U.S. (10 How.) 270, 13 L.Ed. 417.

But there was much more than some act with conclusory consequences. In rejecting the proposal to flood the hold it was decided to explore the use of foam. The presence of CO2 presented risk to both life and of explosion. The peril from the continued burning of the fire was great enough to risk the peril to life as Legnos and one or more firemen entered the hold with life packs. This inspection was followed by some returning to put foam on the still smoldering fire. But the risk to cargo and ship was not yet thought to be over so the steps were taken to clear the tween deck hatch square to permit full access to the lower hold for a complete foaming.

With all of these efforts by all hands participating, the fire was out. The peril was gone. But it had been there up to the moment of success.

The finding of no peril must be rejected, not on ordinary notions of F.R. Civ.P. 52(a) clearly erroneous standards, but because we think the Judge was laboring under principles which were incorrect or confused peril with other distinguishable elements of marine salvage.

The Judge’s principal mistake was in confusing the necessity for the claiming salvors’ services with the existence of peril. And as a correlary of this he felt that Legnos and Gorman had not done anything the other firefighters would not have done.

Thus, as to the first, the Judge emphasized the calmness with which the master went about determining what to do, the efficiency and competence of those in charge of the two fire departments and the sufficiency of their actions without the need for outside help. But these factors have little to do with peril. Indeed, it was the need for these firefighters and the efficient work performed by them which proves the exis-

tence of peril. The use of CO2 might have been enough, but the continuation of the fire on the morning of the 17th led to the collective judgment that more was needed — either flooding or foaming —to eliminate the risk that the fire might break out and spread through the combustible cargo.

In this approach the Judge was also navigating under the mistaken notion that for salvors to establish peril they must prove that their actions were necessary to eliminate or alleviate such condition. The law of salvage makes no such demand. Indeed such a notion would be at odds with the humanitarian principles symbolized by the law of salvage which encourages all to render aid in the face of marine peril. Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir., 1969, 412 F.2d 1011, 1021, 1969 A. M.C. 1513. See M. Norris, The Law of Salvage § 232 (1972), quoting Brown, C. J.

It is a question of making a contribution — not the performance of actions or the furnishing of services supplied by no one else. This is clear from the century proved decision in The Blaekwall v. Sancelito Water and Steam Tug Company, 1869, 77 U.S. 1, 19 L.Ed. 870, in which the Supreme Court stated that “all who engage in the enterprise and materially contributed to the saving of the property, are entitled to share in the award which the law allows for such meritorious service, and in proportion to the nature, duration, risk, and value of the service rendered.” 77 U.S. at 12, 19 L.Ed. at 874.

Nor is it decisive whether the actions were sought by the master or the other firefighters or persons superintending the operations. So long as the services are voluntary and are not rejected by those in authority a bystander or interloper is eligible for salvage award in proportion to the value of his contributory efforts.

But all of these things bear on the contribution made, if any, and the relative value toward the successful achievement. They do not bear on the element of peril. Yet it was these factors which were evaluated for a wrong purpose by the trial court.

The conclusion of no peril cannot be sustained. Peril was positively established. Fort Myers Shell & Dredging Co. v. The Barge NBC 512, 5 Cir., 1968, 404 F.2d 137.

Since it is uncontradicted that Legnos and Gorman did perform some acts which bore directly on the successful efforts to extinguish the fire, they are entitled to have these services properly evaluated in the light of the interests at risk and the contributions of all others whether claiming or eligible to claim a salvage award in their own right. Except that some award is required, we intimate no views as to the amounts thereof.

TAG ENDS

WWLP

The trial court held that shipowner (and charterer) on their impleaders against the contracting stevedore had failed to prove with requisite certainty that the fire was caused by stevedore’s breach of WWLP. The finding is above the 52(a) Plimsoll line and with it falls the prayer for attorneys’ fees and expenses despite exoneration (momentary). See Hill v. Flota Mercante Grancolombiana, E.D.La., 1967, 267 F.Supp. 380, aff’d, 5 Cir., 1969, 405 F.2d 878, cert. denied, 395 U.S. 934, 89 S.Ct. 1995, 23 L.Ed.2d 449.

We affirm this holding and judgment.

Time Charterer

As the district court did not reach the issue of the time charterer’s liability for salvage we think this should go back on remand. It may never be necessary to resolve it, either legally or as a practical matter. And if reached the answer might turn on what was at risk from charterer’s standpoint, especially in relation to cargo and freight money.

United States as Cargo Owner

The court likewise found it unnecessary to evaluate the claim that the West German Government not the United States was the owner of the cargo laden at Port Canaveral. As with time charterer’s liability we conclude this should go back for disposition on remand.

Reversed and remanded in part. Affirmed in part.

      . Prior to arrival in Port Canaveral, M/V OLGA JACOB had taken on a partial load of baled wood pulp and rolls of liner board distributed throughout its five holds and forming the bottom load in No. 5 lower hold. Both these materials were highly combustible.

      . As Legnos and Gorman entered the hold alone their testimony is verbally uncontradicted as to the fire discovered. Their brief describes it:
      They proceeded on below into the lower No. 5 Hold, carrying a cluster light where they advanced through the maze of chains, lashing and equipment and observed a fire blazing in the forward port portion of the lower No. 5 Hold at the brow of the stow of the wood pulp and liner board. The fire appeared to be intense and blazing in a pillar like “a flame thrower”. Legnos and Gorman were driven back by the heat and smoke and returned to deck. Legnos then ran to the Captain’s cabin to notify him of the fire while Gorman and a member of the ship’s company descended into the lower No. 5 Hold again carrying fire extinguishers. Gorman and the crewmen were only able to proceed a few feet from the base of the ladder due to the intense heat and dense smoke and therefore retreated to the deck.

      . The Court never got to values but the salvors claimed the military cargo was worth 60 million dollars.

      . Borrowing a term from the insurance field, a “friendly” fire would be, e. g., a galley stove, fire under the ship’s boilers, etc.

      . Morro Castle Disaster: United States v. Abbott, 2 Cir., 1937, 89 F.2d 166, 1937 A. M.C. 533; Hyman v. Pottberg’s Ex’rs., 2 Cir., 1939, 101 F.2d 262, 1939 A.M.C. 121; Petition of Agwi Navigation and New York & Cuba Mail S. S. Co. for Limitation of Liability, S.D.N.Y., 1939, 1939 A.M.C. 895; New York & Cuba Mail S. S. Co. v. Continental Ins. Co. of City of N. Y., S.D.N.Y., 1940, 32 F.Supp. 251, 1940 A.M.C. 366.
      Texas City Disaster: In re Texas City Disaster Litigation, 5 Cir., 1952, 197 F.2d 771, aff’d sub nom., Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, 1953 A.M.C. 1175; Republic of France & Compagnie Generate Transatlantique v. United States, 5 Cir., 1961, 290 F.2d 395, 1961 A.M.C. 1082.

      . “[T]o constitute a case for general average, three things must concur:
      1st. A common danger; a danger in which ship, cargo, and crew all participate; a danger imminent and apparently ‘inevitable’, except by voluntarily incurring the loss of a portion of the whole to save the remainder . . .” 51 U.S. at 303, 13 L.Ed. at 431. See N. Healy and B. Currie, Admiralty 643, 644.
      As we read the record, declaring General Average was triggered by the likelihood of flooding the hold with its inevitable damage to valuable cargo.

      . This was reflected by the informal colloquy on post-evidence arguments which are frequently more revealing than austere post-trial formal findings:
      Mr. Dixon: [counsel for appellant salvors] If I could gather from the Court the specific point that you feel we have failed to prove, in terms of—
      The Court:
      Peril.
      Mr. Dixon:
      Marine peril—
      The Court:
      Peril — everything. The ship — the Captain was in command; the crew was in command ; and this man offered suggestions . ” (Record 1338)
      The formal findings elaborate on this underlying factor:
      “33. Ample fire fighting forces were at hand on February 17th to handle such fire fighting as was needed. Such fire as remained after the application of C02 gas could have been extinguished without any participation by the plaintiffs. I find that there was no peril reasonably to be apprehended with respect to the vessel or her cargo such as would entitle the plaintiffs to a salvage award. The evidence show there was a controlled situation on board the OLGA JACOB from the time the fire was reported to her master. The vessel’s crew acted promptly and efficiently to extinguish the fire. Thirty or forty firemen with attendant equipment were almost immediately at the scene. All the evidence affirmatively showed that all the witnesses felt these fire personnel were competent.”

      . See M. Norris, supra, § 91.
      “A successful outcome of the salvage operation is necessary .... It is not required however that the property be saved solely by the efforts of the person seeking the award . . .. It is sufficient if his efforts contributed in some way to the ultimate success.” See also Dize v. Barge Beverley, D.C.Va., 1965, 247 F.Supp. 968, 1965 A.M.C. 1886.
      Contribution may be achieved by co-salvage where several sets of salvors render service. M. Norris, supra, § 92.

      . See findings of fact Nos. 8, 20, 21, 23, 25.
      With respect to No. 8 we are unable to see how the initial exploratory efforts (see note 1, supra) by going down into lower hold No. 5 and locating the fire was involuntary in the sense of acting under legal compulsion as the contracting stevedore.

      . Thus, on remand the Court, besides fixing values of ship, cargo and freight at risk, must determine the total amount for salvage services performed by all including the two fire fighter groups and the claiming salvors and then make an award to the claiming salvors in proportion to their own contribution. H. Norris, supra §§ 221-231.
      The Judge is entitled to use the present record and may supplement it in any way which the parties agree is appropriate or as the Court finds is necessary.

      . Warranty of workmanlike performance, see D/S OVE SKOU v. Hebert, 5 Cir., 1966, 365 F.2d 341 at 345, 1966 A.M.C. 2223 at 2226; Grigsby v. Coastal Marine Service of Texas, Inc., 5 Cir., 1969, 412 F.2d 1011, 1969, A.M.C. 1513, cert. dism’d, Fidelity & Cas. Co. v. Grigsby, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531.

      . Salvor’s brief points out that:
      Norris, The Law of Salvage, § 46, cites the case of Tice Towing Line v. James McWilliams Blue Line (D.C.N.Y.1931), 51 F.2d 243, 246:
      “A claim for salvage may be maintained in personam against any party whose relationship to the vessel or thing salved is such that he might have been liable in respect of its damage or loss, ... or who, though not its owner, is benefited by its being salved. . . .”
      They cited:
      Other examples of a non-owner’s liability for salvage: The Public Bath No. 13, (D.C.N. Y.1894) 61 F. 692 (Ship Repairer) ; Five Steel Barges, L.R. 15 Prob.Div. 142 (1890) (Vendor with obligation to deliver by a certain date) and The Port Victor, 9 Asp.Mar. Law Cases (New Series) 163 (1901) (Charterer liable for safe delivery of cargo).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stephen R. JONES and William Wright, Defendants-Appellants.
    No. 73-3289
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 9, 1974.

      Milton P. Masinter, New Orleans, La., for defendants-appellants.
    Gerald Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiffappellee.
    Before WISDOM, GOLDBERG and GEE, 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^Piirt L-

   PER CURIAM:

Stephen R. Jones and William Wright have appealed their convictions for knowingly, intentionally, and unlawfully distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1970). Jones, Wright, and one Woodrow Wilson were charged in one count for incidents occurring on July 21, 1972; Jones and Wright were charged in another count for incidents occurring on July 24, 1972; and Wright alone was charged in a third count for incidents occurring on November 8, 1972. Wilson pleaded guilty before trial. Following a joint trial by jury, Jones was found guilty on the first count, not guilty on the second; Wright was not found not guilty on the first count and guilty on the second and third counts. We affirm the conviction of appellant Wright.

In response to a request from this Court, the Government has supplied a copy of an official death certificate of the State of Texas indicating that appellant Stephen R. Jones died on or about February 5, 1974, near Midway Ranch in Zapata County, Texas. “Death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.” Durham v. United States, 1971, 401 U.S. 481, 483, 91 S.Ct. 858, 860, 28 L.Ed.2d 200, 203; accord, Daniel v. United States, 5 Cir. 1959, 268 F.2d 849, 850. Accordingly, we remand the case against appellant Jones to the district court with instructions to vacate the judgment and dismiss the indictment. United States v. Hudson, 5 Cir. 1972, 460 F.2d 321; United States v. Askew, 5 Cir. 1971, 441 F.2d 258.

The only issues presented on this appeal relate to testimony from two Government witnesses regarding a burglary allegedly committed by Jones and Wright shortly before the July 21 incident charged in count I of the indictment. “The federal courts have established as a ‘universal rule’ the wise principle that ‘evidence of the commission of a wholly separate and independent crime is not admissible as a part of the case against the defendant.’ 2 C. Wright, Federal Practice and Procedure, Criminal § 410, at 123.” United States v. Goodwin, 5 Cir. 1974, 492 F.2d 1141, 1148. On the two occasions that the questioned testimony was elicited during the presentation of the Government’s case-in-ehief, the able trial judge promptly granted defense counsel’s objections and carefully warned the jury not to consider the evidence. We agree with the trial judge that given the strong evidence of guilt and the cautionary instructions, a declaration of mistrial at the close of the Government’s case was not necessary to insulate the defendants from the harmful effects of the forbidden testimony.

Subsequently a defense witness testified concerning the source of funds used to purchase the heroin. The trial judge allowed the Government to introduce the burglary testimony as rebuttal and gave a careful, detailed limiting instruction to the jury regarding the purposes for which the evidence might be considered. We see no error in the handling of this admission, and certainly none that would affect substantial rights of the accused. Indeed, that any prejudicial consequences to appellant Wright were effectively minimized, if not completely eliminated, seems clear from the fact that the evidence related most directly to the July 21 transaction, for which the jury acquitted Wright.

Affirmed in part, vacated and remanded in part.


text:
    Robert A. SHUPACK, Plaintiff-Appellant, v. Fred GROH, Special Agent, Intelligence Division, Internal Revenue Service, et al., Defendants-Appellees.
    No. 74-1855
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 9, 1974.
    Eugene M. Short, Jr., Coral Gables, Fla., for plaintiff-appellant.

      Robert W. Rust, U. S. Atty., Robert N. Reynolds, Asst. U. S. Atty., Miami, Fla., John P. Hines, U. S. Dept, of Justice, Scott P. Crampton, Asst. Atty.Gen., Meyer Rothwacks, Chief, App. Sec., Tax Div., Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before COLEMAN, DYER 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:

Shupack’s suit sought (1) to quash an Internal Revenue Service summons which had been served upon him; (2) to compel the agents of the Service to recognize him as the legal representative of the husband taxpayer, and (3) to recover actual and exemplary damages from the agents who had served the summons. The district court dismissed the suit and Shupack appealed. We affirm.

Whether the district court erred in refusing to quash the summons is moot because Shupack subsequently complied with the summons. The court is without power to decide an issue that cannot affect the rights of the litigants. North Carolina v. Rice, 1971, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413. In any event, the enforcement proceeding provided for in §§ 7402(b) and 7604(a) and (b) of the Internal Revenue Code provides an adequate remedy at law to contest an Internal Revenue summons so that an injunctive action to quash the summons is subject to dismissal for want of equity. Reisman v. Caplin, 1964, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459.

The district court refused, and properly so, to compel the Service to recognize Shupack as taxpayer’s legal representative since the Service had done so and there was nothing to indicate that it would not continue to do so. The taxpayer had filed joint returns for the years in question, but the power of attorney initially filed contained only the signature of the husband and not his wife. In such circumstances, under the Statement of Procedural Rules, Internal Revenue Service § 601.504(b)(ii), both the husband and wife must sign the power of attorney unless one spouse is authorized to sign for the other. Subsequently both taxpayers signed and filed a power of attorney, whereupon the Service recognized Shupack as taxpayer’s legal representative and indicated that it would continue to so recognize him. The filing of the jointly executed power of attorney also moots this issue.

Finally, the district court found that the summons was served upon Shupack in good faith and prior to a recommendation for criminal prosecution. Not only is this finding not clearly erroneous, it is fully supported by the record. Donaldson v. United States, 1971, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580. It follows that Shupack is not entitled to recover damages for abuse of process.

Affirmed.


text:
    UNITED STATES of America v. Joseph W. BAILEY, Appellant.
    No. 73-1693.
    United States Court of Appeals, District of Columbia Circuit.
    May 6, 1974.
    Frank F. Flegal, Washington, D. C., was on the motion, for movants.
    Earl J. Silbert, U. S. Atty., with whom John A. Terry and Albert H. Turqus, Asst. U. S. Attys., were on the opposition.
    Before WRIGHT and MacKINNON, Circuit Judges.
   ORDER

On consideration of the motion of James Sakolosky and Delbert R. Terrill for leave to enter their appearances pursuant to Rule 20 and of the response thereto, it is

Ordered by the Court that the aforesaid motion to enter appearances is denied.

PER CURIAM:

The motion before us presents a novel question of law: namely, does 18 U.S.C. § 205 (1970), which prohibits a federal employee from appearing as ai* “agent or attorney” on behalf of anyone in a proceeding to which the United States is a party, bar a federal employee enrolled in part-time legal studies from entering an appearance under Rule 20 of the rules of this court?

• The statutory language is clear, and reads in relevant part:

Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, including the District of Columbia, otherwise than in the proper discharge of his official duties—
(2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or any civil, military, or naval commission in connection with any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest—
Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

Rule 20 permits participation by “eligible law students” in appellate representation of indigents and provides for their supervision by a member of the bar.

Movants are both employees of the federal government. One is a captain in the United States Air Force assigned to non-legal duties editing an Air Force publication. The other is employed in the Office of the General Counsel of the Environmental Protection Agency, where he does legal research and writing and investigative work in the field of environmental law. Both are students in good standing of the evening division of Georgetown Law School, and are enrolled in the Appellate Litigation Seminar. As part of their academic work, both movants have already participated in investigation and drafting of legal memoranda in this case, and both represent that their employers are aware of their activities in the seminar. With the exception of 18 U.S.C. § 205, neither movant considers he has a conflict of interest which would preclude his appearance under the terms of Rule 20.

Movants make two principal arguments for their eligibility to appear in this case. The first is that the terms of the statute do not apply to such appearances. They argue that the role of a láw student appearing in this court is neither that of an “attorney” nor that of an “agent” for the appellant. Movants cite Harrison v. United States, 128 U.S. App.D.C. 245, 387 F.2d 203 (1967) for the proposition that “the bedrock minimum” attribute of an attorney is his membership in a bar, and therefore the term “attorney” cannot be used to apply to an “eligible law student.” The attorney in this case, movants argue, is the supervising member of the bar, and the students are merely assistants or “legal interns.”

We do not find the citation of Harrison compelling. The issue in that case was whether testimony elicited from a defendant during one trial by his attorney, an imposter posing as a member of the bar, could be admitted in a subsequent trial. The court held it could not, because, where effective assistance of counsel had been denied, “[t]he proceeding is void, the occurrences therein are vitiated . . . .”128 U.S.App.D. C. 245, 254, 387 F.2d 203, 212. Here, however, a special rule of court permits movants to act as agents for criminal appellants.

Movants also contend that in participating as “eligible law students” they are not “agents” for the appellant, because acts of theirs do not bind him as the principal. All services performed by student advocates are subject to the control of the supervising attorney. At all times, movants contend, it is the attorney who retains the exclusive right to act as the appellant’s agent.

However, this interpretation of the function of “eligible law students” ignores the scope of the authority delegated under our student advocacy program. Substantial responsibility for investigation, drafting and argument may be given to students by the attorney. Such duties and continuous evaluation and supervision by the supervising attorney bring students within the definition of “subagents” appointed by agents with the consent of the principal. As such, they are clearly within the scope of the ban contained in 18 U.S.C. § 205. See Restatement (Second) of Agency § 5 (1957).

Finally, movants contend that permitting them to appear will not frustrate the legislative intent of 18 U.S.C. § 205, which was designed primarily to deal with corruption and abuses of inside information by government employees. While situations might arise in which federal employees would have access to material which would create a conflict of interest between their official duties and participation as “eligible law students” in appellate advocacy before this court, movants assert that they have no such conflicts. Neither has access to any investigative or prosecutorial information, and there is no connection between their official duties and the instant criminal appeal.

We must reject movants’ attempts to narrow and distinguish the prohibition of § 205. We need not address legislative intent when, the statutory “legal interns” language is clear and unambiguous on its face. While “legal interns” who were employed by the government and were also acting as agents principally for criminal appellants charged by the government was not one of the problems that led Congress in the first place to prohibit federal employees from so acting in court and other proceedings, the clear wording of the statute unmistakably compels that result. Moreover, the principal intent of the act is to avoid conflicts of interest between an employee’s duty to his employer and his duty to his client or principal. In the ordinary situation contemplated by the act, it would be the government that would be the victim, but criminal cases could pose special problems where the defendant might also suffer, or claim to suffer, from his agent or attorney occupying a dual role, especially one where his motives might be questioned. We thus see no basis for construing the act contrary to its express wording.

The motion for leave to enter appearances under Rule 20 is denied.

So ordered.

      . PROVISIONS FOR LAW STUDENTS TO APPEAR IN THIS COURT

      I. Eligibility

      (a) An eligible law student may enter an appearance in this Court on behalf of any indigent criminal appellant entitled to the assignment of counsel. For this purpose, criminal appellants shall include persons seeking postconviction relief in collateral proceedings. The person on whose behalf he is appearing must indicate in writing his consent to that appearance and a supervising lawyer must also indicate in writing his approval of that appearance.
      (b) An eligible law student may also appear in any criminal matters on behalf of the government with the written approval of the United States Attorney or his authorized répresentative and of the supervising lawyer.
      (c) In each case the written consent and approval referred to above shall be filed in the record of the case and shall be brought to the attention of the Court.
      (d) An eligible law student may engage in other activities under the general supervision of a member of the bar of this Court outside the personal presence of that lawyer for the purpose of preparation of briefs, abstracts, and other documents to be filed in this Court but such documents must be signed by the supervising lawyer.
      (e) An eligible law student may participate in oral argument in this Court but only in the presence of the supervising lawyers. (Added March 16, 1972)
      II. Requirements And Limitations (Added March 16, 1972)
      (a) In order to make an appearance pursuant to this rule, the law student must: (Added March 16, 1972)
      (1) Be duly enrolled in a law school approved by the American Bar Association. (Added March 16, 1972)
      (2) Have completed legal studies amounting to at least four semesters, or the equivalent if the school is on some basis other than a semester basis. (Added March 16, 1972)
      (3) Be certified by the dean of his law school as being of good character and competent legal ability, and as being adequately trained to perform as a legal intern. (Added March 16, 1972)
      (4) Be introduced to the Court in which he is appearing by an attorney admitted to practice in that Court. (Added March 16, 1972)
      (5) Neither ask for nor receive any compensation or remuneration of any kind for his services from the person on whose behalf he renders service, but this shall not prevent a lawyer, legal aid bureau, law school, public defender agency, or the government from paying compensation to the eligible law student, nor shall it prevent any agency from making such charges for its services as it may otherwise properly require. (Added March 16, 1972)
      III. Certification (Added March 16, 1972)
      (a) The certification of a student by the law school dean shall be filed with the Clerk of Court and, unless it is sooner withdrawn, shall remain in effect until the expiration of 18 months after it is filed, or until the announcement of the results of the first bar examination following the student’s graduation, whichever is earlier. For any student who passes that examination or who is admitted to the bar without taking an examination, the certification shall continue in effect until the date he is admitted to the bar. (Added March 16, 1972)
      (b) The certification may be withdrawn by the dean at any time by mailing a notice to that effect to the Clerk of the Court. It is not necessary that the notice state the cause for withdrawal unless requested by the student.

      (c) The certification may be terminated by this Court at any time without notice or hearing and without any showing of cause. (Added March 16, 1972)
      IV. Supervision (Added March 16, 1972)
      The member of the bar under whose supervision an eligible law student does any of the things permitted by this rule shall: (Added March 16, 1972)
      (1) Be a lawyer in good standing of the bar of this Court. (Added March 16, 1972)
      (2) Assume personal professional responsibility for the student’s guidance in any work undertaken and for supervising the quality of the student’s work. (Added March 16, 1972)
      (3) Assist the student in his preparation to the extent the supervising lawyer considers 'it necessary. (Added March 16, 1972)

      . Earlier in the course of this litigation, one of the movants entered an appearance on behalf of the appellant pursuant to Bule 20. At that time, he was not an employee of the federal government. Since accepting a position with the government, he has not signed any of the documents filed' on behalf of appellant or appeared in any subsequent proceedings.

      . As provided by § 1(a) of Bule 20, the appellant has given his written consent to the movants’ appearance on his behalf,

      . The “legal intern” program did not exist when the statute was enacted.

      . Congress fashioned several exceptions to the prohibition in the statute itself, such as the following:
      Nothing herein or in section 208 prevents an officer or employee, including a special Government employee, from acting, with or without compensation, as agent or attorney for his parents, spouse, child, or any person for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary except in those matters in which he has participated personally and substantially as a Government employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or which are the subject of his official responsibility, provided that the Government official responsible for appointment to his position approves.
      18 U.S.O. § 205 (1970).


author: HASTIE, Senior Circuit Judge:

text:
    INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Atlantic Technical Services Corp., Intervenor. ATLANTIC TECHNICAL SERVICES CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.
    Nos. 73-1231, 73-1501.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 7, 1974.
    Decided May 7, 1974.

      Bernard Dunau, Washington, D. C., with whom Plato E. Papps, Washington, D. C., was on the brief, for petitioner in No. 73-1231 and intervenor in No. 73-1501.
    Leo P. Rock, Jr., Tampa, Fla., for petitioner in No. 73-1501 and intervenor in No. 73-1231.
    Joseph C. Thackery, Atty., N. L. R. B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, and Robert Sewell, Atty., N. L. R. B., were on the brief, for respondent.
    Before HASTIE, Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges.

       Of the Third Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   HASTIE, Senior Circuit Judge:

This controversy and the National Labor Relations Board order we now review arose out of the refusal of an employer to bargain with a union.

On April 1, 1971, under a contract with the National Aeronautics and Space Administration, Atlantic Technical Services (ATS) commenced performance of mail and freight distribution services at Kennedy Space Center. Trans World Airways (TWA), the contractor which had performed these services for seven years prior thereto, had recognized the International Association of Machinists and Aerospace Workers (the Union) as the representative of its employees, including those who constituted the mail distribution service force. Terms and conditions of employment were controlled by a labor contract between TWA and the Union.

The record shows, and the administrative law judge found, that ATS thought it important to retain as many incumbent employees as possible, and wanted and offered to hire all of them. Shortly after the award of a new contract to ATS was announced, TWA helped ATS to set up interviews with the incumbent employees. There is no finding or evidence that anyone other than incumbents was informed of or invited to attend these interviews. At the interviews, and apparently before ATS offered positions, ATS officials advised the incumbents that fringe benefits under ATS would have to be substantially less than they had been under TWA. Of the 41 incumbents, 27 accepted the ATS offer. The positions of the 14 who declined were filled pursuant to applications solicited from the general public.

The administrative law judge ruled that ATS was obligated to bargain with the Union concerning initial terms of employment on takeover. However, the Board held that the duty to bargain arose only on April 9, as a result of an employer conducted poll of employees on that date which disclosed majority adherence to the Union. In reaching this result the Board ruled that ATS was not a “successor employer”, and hence could have no obligation to the Union under the “successor” doctrine as discussed and construed in N. L. R. B. v. Burns Int’l Security Services, Inc., 1972, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61. Accordingly, the Board ordered no retroactive relief or “make whole” remedy.

On petition for review, the Union contends that the action of ATS in rejecting collective bargaining and unilaterally changing terms and conditions of employment when it took over the mail distribution operation and work force was an unfair labor practice, a refusal “to bargain collectively with the representatives of his employees” within the meaning of section 8(a)(5) of the National Labor Relations Act, as amended, 29 U. S.C. § 158(a)(5). As a remedy, the Union asks that the employees be made whole for dimunition of fringe benefits, retroactively to April 1,1971.

Also before us is the Board’s application for enforcement of its order that from now on the employer must recognize and bargain with the Union. ATS opposes the granting of any relief.

We have no doubt that ATS became obligated to bargain with the Union when its own poll disclosed union adherence by a majority of its employees. N. L. R. B. v. Sehon Stevenson & Co., Inc., 4th Cir. 1967, 386 F.2d 551; N. L. R. B. v. Nelson Mfg. Co., 6th Cir. 1964, 326 F.2d 397; Nation-Wide Plastics Co., Inc., 1972, 197 NLRB No. 136. A more substantial question is whether, as the Union contends, ATS was obligated to bargain with it over whatever changes in terms and conditions of employment this new employer contemplated upon takeover of the operation.

It is not contended that the TWA labor contract survived as such after April 1, when ATS, an unrelated entrepreneur, became the new employer of the mail service and distribution force. For a duty to bargain with the Union to survive the takeover there should be some significant indication that a majority of the employees concerned desired that the Union bargain for them collectively.

In many situations the fact that a union has represented a group of employees in the past serves as a basis for a presumption of continuing employee adherence to it. But if the circumstances of a particular case destroy the logical basis without which the presumption cannot stand, the historic relation loses evidentiary significance.

In this case, ATS interviewed the incumbent mail service employees of TWA individually and offered to continue them in their jobs upon the imminent ATS takeover of the enterprise, albeit with reduced fringe benefits; and 27 of the 41 agreed to accept the changed conditions of employment. On conflicting evidence, the Board permissibly found that on “two separate occasions prior to [the April 1] takeover, but subsequent to these prehire interviews, the Union requested respondent to recognize it and make no changes in the terms and conditions of employment without first negotiating with the Union. Respondent, however, refused to recognize and bargain with the Union, claiming, inter alia, . . . that, at all times, it had reason to doubt the Union’s continued majority status”.

If while working for the predecessor employer a majority of the 41 incumbents had made manifest their election to be represented by the Union and it had been certified as their bargaining representative, any doubt the new employer asserted about the Union’s continued majority status might not have justified a refusal to bargain collectively. But the 41 employees who constituted the" entire work force for the distinct and functionally separate operation of mailing and distributing items throughout a large installation had been added by “accretion” to an established bargaining unit of some 1100 other employees of TWA at the Space Center. This had been accomplished in 1964 by mutual informal agreement of employer and union, apparently without opportunity for expression of assent or objection on the part of the 41 persons thus added to the bargaining unit. No occasion arose then or thereafter for a formal certification proceeding or determination of majority support. Thus the fact that the Union had represented these employees in the past has less evidentiary weight than it would after Board certification. It follows that no great amount of countervailing evidence is required for us to sustain the Board’s finding. United States Molded Shapes, supra.

Here, in this unusual factual situation, in the absence of any historic manifestation of the representation preference of the mail and distribution employees, ATS undertook what in other circumstances would be the questionable action of dealing directly with the 41 individual workers concerning terms and conditions of employment to become effective April 1. And apparently the individuals thus approached acquiesced in these individual, rather than collective, negotiations. Moreover, as already pointed out, the Board found that the request of a Union official for recognition and collective bargaining was not made until after the new employer had arranged with the employees individually for their retention subject to reduced fringe benefits.

In N. L. R. B. v. Burns Int’l Security Services, Inc., supra, 406 U.S. at 294-295, the Supreme Court cautioned that even if a new employer is accorded “successor” status, “it may not be clear until the successor employer has hired his full complement of employees that he has a duty to bargain with a union, since it will not be evident until then that the [union] represents a majority of the employees in the unit . . . .” On the record, this is such a case. There was no significant indication until April 9 that either the 27 incumbents or the 14 newcomers wished the Union to represent them. Whether or not ATS belongs in the “successor” category, the Union’s pre-takeover claim of representative status had inadequate evidentiary support, historic or current, to require the new employer to bargain with it concerning initial terms and conditions of employment.

The order of the Board will be enforced.

So ordered.

      . On occasion such desire has been inferred from the circumstances that the union had been the representative chosen by the old employees, a group from which a majority of the new work force had been selected. Tom-A-Hawk Transit, Inc. v. N.L.R.B., 7th Cir. 1969, 419 F.2d 1025; Makela Welding, Inc. v. N.L.R.B., 6th Cir. 1967, 387 F.2d 40.

      . See e. g., N.L.R.B. v. Richard W. Kaase Co., 6th Cir. 1965, 346 F.2d 24; United States Molded Shapes, 1963, 141 NLRB 357; American Concrete Pipe of Hawaii, Inc., 1960, 128 NLRB 720.

      . We find it difficult to reconcile much of the Board’s reasoning on the “successor-ship” question in this case with its analysis in G.T. & E. Data Services Corp., 1971, 194 NLRB 719.


author: WILKEY, Circuit Judge: WRIGHT, Circuit Judge,

text:
    UNITED STATES of America v. Gregory T. McBRIDE, Appellant.
    No. 72-1394.
    United States Court of Appeals, District of Columbia Circuit.
    May 7, 1974.

      Laurence Gold, Washington, D. C. (appointed by this court), was on the brief for appellant.
    Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, John A. Terry, Charles H. Roistacher and Regina C. McGranery, Asst. U.S. Attys., were on the brief for appellee.
    Before HASTIE,  United States Senior Circuit Judge for the Third Circuit, and WRIGHT and WILKEY, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   WILKEY, Circuit Judge:

The appellant phrases the only question on appeal:

Whether the indictment in this case, which did not specify that the escape charged was from “custody or confinement ... by virtue of an arrest on a charge of felony [,] or conviction of any offense,” alleged with sufficient particularity the felony offense of escape from federal custody set out in 18 U.S.C. § 751(a), or whether the indictment was sufficient only to charge a misdemeanor violation of that provision.

The appellant pled guilty and received a sentence of 18-54 months, which can only be supported by an indictment charging a felony. We find the sentence valid.

Central to understanding the impact of the statute on the defendant is to know that when appellant escaped, he was confined as a result of his conviction for attempted unauthorized use of a motor vehicle, a fact well known to appellant. Section 751(a) provides that if an escapee’s “custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, [he shall] be fined not more than $5,000 or imprisoned not more than five years, or both . . . . ” Since appellant was confined by virtue of a conviction at the time of his escape, he was liable for a penalty of up to five years’ imprisonment under the statute. Thus, the trial court’s sentence was lawful.

The indictment of appellant for escape is rather artlessly drawn. It states that appellant violated 18 U.S.C. § 751(a) by “feloniously” escaping from the custody of the Attorney General on 9 December 1970. Appellant contends that since the indictment fails to allege that appellant’s confinement was by virtue of “an arrest on a charge of felony, or conviction of any offense,” the indictment can state at most a misdemeanor. Since the indictment does not specify that appellant’s confinement was “for extradition or by virtue of an arrest or charge of or for a misdemeanor,” which is the nature of custody that gives rise to a misdemeanor charge under the statute, the indictment states a misdemeanor charge no more completely than it states a felony.

The issue, therefore, is whether the indictment is sufficient to state any offense. Two criteria for measuring the sufficiency of an indictment were set out in Russell v. United States:

. . . first, whether the indictment “contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,’ ” and, secondly, “ ‘ in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ [Citations omitted.]”

As to the first criterion:

(1) Arguably, appellant’s indictment fails to state all the elements of his offense, since it omits the nature of the custody from which he escaped. However, the nature of appellant’s custody is not an “element” of appellant’s offense in the sense that it is an integral part of his mens rea, or actus reus. Rather, it is a circumstance in which he committed his offense.

(2) Appellant does not argue that the failure of the indictment to describe the nature of his custody prejudiced him in the preparation of his defense. Indeed, the court can take judicial notice of the public records that demonstrate that appellant was confined for a misdemeanor conviction when he escaped. Therefore, he could not have defended against the charge of felonious escape by proving that he was in custody on some other basis.

(3) Finally, it should be noted that appellant did not enter his guilty plea under a misapprehension about the charge against him. Before the court accepted appellant’s guilty plea, the prosecutor described all the facts that formed the basis of the Government’s charge, including the fact that appellant was confined by virtue of his conviction for attempted unauthorized use of a motor vehicle. Furthermore, appellant explicitly acknowledged that he could be sentenced to up to five years’ imprisonment for the offense charged. Thus, whatever the shortcomings of the indictment, it is clear from the record that appellant was on notice concerning the exact nature of the offense to which he pleaded guilty.

The second criterion of a sufficient indictment under Russell is that it must state the offense in a manner that precludes the defendant from suffering double jeopardy. Appellant’s indictment meets this criterion. It is clear that appellant pleaded guilty to escaping from the custody of the Attorney General on 9 December 1970. This forecloses further prosecution of appellant under 18 U.S.C. § 751(a) on the basis of appellant’s 9 December 1970 activities. Any doubt may be overcome by reference to the record previously cited, in which the details of appellant’s confinement and escape are set out.

Supporting the conclusion reached herein is United States v. Perez, in which the indictments for felonious escape not only failed to specify the reason for appellants’ confinement, but also charged the appellants under the wrong statute. Nevertheless, the Sixth Circuit held that the indictments were sufficient to charge the appellants with a felony and to support a conviction under 18 U. S.C. § 751(a).

Given the lack of complete clarity in detail in appellant’s indictment, it can be urged that the Government failed to introduce sufficient evidence before the grand jury to obtain a felony indictment and that the grand jury did not intend to return such an indictment. This possibility gives rise to the argument that appellant was denied his Fifth Amendment right to be indicted for the felony of which he was convicted. Under this approach, the prosecution’s in-court description of the details of appellant’s confinement and escape was an attempt “to usurp the functions of the grand jury by supplying an essential element of the crime.” The possibility that the grand jury did not indict appellant for the felony of escaping from custody might justify remanding the case for reindictment.

However, there is little danger that refusing to remand would prejudice the appellant. It is nearly certain that he would be indicted for the felony of escape. The first grand jury found probable cause to believe that appellant escaped from the custody of the Attorney General. A subsequent grand jury would undoubtedly make it explicit that appellant’s custody was by virtue of a conviction. Furthermore, quashing the first indictment would wipe out the guilty plea the appellant knowingly and intelligently entered and permit him to stand trial. In a case involving the similar problem of a variance between the indictment and the prosecutor’s proof at trial, Judge Leventhal for this court stated:

In every case of variance it can be argued that the grand jury that returned the indictment as is might not have been willing to return the indictment with the variance. This possibility can never be conclusively eliminated as a matter of abstract logic. Whether there is a reasonable possibility of prejudice, however, should be determined with some reference to the real world of juries and grand juries, and the realm of common sense which must guide the administration of the criminal law and rules of criminal procedure.

Reality, practicality, and common sense suggest that the possibility that the grand jury in this case did not indict appellant for a felony should not be given significant weight and that appellant’s conviction on his guilty plea to the felony of escape be

Affirmed.

WRIGHT, Circuit Judge,

concurring:

In the District Court appellant raised the issue which is the basis of this appeal by motion in arrest of judgment. In my view the indictment sufficiently charges all elements of the offense for which appellant was sentenced to survive this post-conviction remedy. Compare Gould v. United States, 10 Cir., 173 F.2d 30, cert. denied, 337 U.S. 945, 69 S.Ct. 1501, 93 L.Ed. 1748 (1949); Lucas v. United States, 4 Cir., 158 F.2d 865 (1946), cert. denied, 330 U.S. 841, 67 S.Ct. 977, 91 L.Ed. 1287 (1947).

      . Brief for Appellant at 1 (emphasis supplied) .

      . 18 U.S.C. § 751(a) (1970) (emphasis supplied) .

      . Similarly phrased indictments were reviewed in Lucas v. United States, 158 F.2d 865 (4th Cir. 1946), cert. denied, 330 U.S. 841, 67 S.Ct. 977, 91 L.Ed. 1287 (1947), and Gould v. United States, 173 F.2d 30 (10th Cir.), cert. denied, 337 U.S. 945, 69 S.Ct. 1501, 93 L.Ed. 1748 (1949), but we find those cases inconclusive here. Lucas sought to have his sentence vacated two years after its imposition, and Gould sought post-conviction relief under 28 U.S.C. § 2255. The court in each case applied the following standard: “The test is whether the indictment, by any reasonable construction, can be said to charge an escape under circumstances which would constitute it a felony.” 173 F.2d at 31. Under this standard, indictments charging that the defendants “feloniously” escaped from custody were found sufficient. Lucas, however, added: “If the question of the sufficiency of the indictment had been raised upon the trial by demurrer, motion to quash or motion for bill of particulars and had been presented by appeal from the judgment, a new trial would doubtless liave been granted for error in the proceedings.” 158 F.2d at 867 (emphasis supplied). While this statement is dictum, it makes clear that Lucas and G-ould are not directly applicable to the case at bar, in which the appellant is challenging the sufficiency of his indictment by appeal from his judgment of conviction.

      . 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962).

      . Transcript of Proceedings of 7 June 1971 at 5.

      . Id. at 4.

      . 457 F.2d 555 (6th Cir. 1972).

      . United States v. Thomas, 144 U.S.App.D.C. 44, 48, 444 F.2d 919, 923 (1971).

      . Appellant places reliance on United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971), in which the court reversed the appellant’s conviction for burglary on the ground that the indictment failed to state the particular offense the appellant intended to commit upon entry into the dwelling. However, the court found that the indictment was sufficient to charge the lesser in-eluded offense of unlawful entry. On its facts, Thomas supplies little support for McBride’s contention that his indictment is insufficient to charge the felony of escape. Furthermore, appellant would have us find that the indictment, perhaps supplemented by the prosecutor’s in-court description of appellant’s offense, note 5 supra and accompanying text, adequately states the misdemeanor of escape and remand for resentencing on that lesser charge under Thomas. However, in Thomas the court’s remand explicitly gave the Government the option of seeking reindictment on the burglary charge. 144 U.S.App.D.C. at 52, 444 F.2d at 927. Thus, even if we were to follow the Thomas decision to the letter, the Government would be able to seek, and almost surely obtain, reindictment of appellant for felonious escape.

      . Jackson v. United States, 123 U.S.App.D.C. 276, 280, 359 F.2d 260, 264 (1966).


author: WILKEY, Circuit Judge:

text:
    SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 223, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1787.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 4, 1973.
    Decided May 10, 1974.

      William T. Coleman, Jr., Miami, Fla., with whom Seymour A. Gopman, Miami Beach, Fla., was on the brief, for petitioner.
    William Gaus, Atty., N.L.R.B., for respondent. John S. Irving, Deputy Gen. Counsel, N.L.R.B., with whom Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, and Abigail Cooley Baskir, Atty., N.L.R.B., were on the brief for respondent. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., at the time the brief was filed, also entered an appearance, for respondent.
    Before ROBB and WILKEY, Circuit Judges, and ROBERT VAN PELT United States Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to Title 28, U.S.C. § 294(d).

   WILKEY, Circuit Judge:

This is a petition for review of an order of the National Labor Relations Board instructing the petitioner, Sheet Metal Workers’ Local 223 (Local 223), to cease and desist from maintaining a labor contract clause that the Board found violative of section 8(e) of the National Labor Relations Act (NLRA). We have concluded that the trial examiner and the NLRB failed to resolve or adequately to consider factors that are central to the evaluation of any labor-management agreement under section 8(e). Therefore, the record compiled in this proceeding cannot support the Board’s finding of an 8(e) violation and its corrective order.

498 F.2d — 44

I. BASIS FOR THE CONTROVERSY

At issue here are provisions of the Standard Form of Union Agreement signed by Local 223 and Gelfand Roofing Company (Gelfand), a roofing contractor and a charging party in the Board proceedings. The same agreement governs relations between Local 223 and the Florida East Coast Sheet Metal Contractors Association, a multiemployer bargaining association and an intervenor below.

The provisions in controversy, article II, section 2 and article VIII, section 2, are fairly common union standards clauses. On their face, these clauses seem designed to remove the economic incentive the employer (Gelfand) might otherwise have to deprive Local 223 members of work on its construction projects by subcontracting out sheet metal work or purchasing prefabricated sheet metal items at less than union rates. However, the trial examiner for the Board found that the provisions “were applied and sought to be enforced by [Local 223] in a manner which violates Section 8(e) of the Act.” The trial examiner made this determination on the basis of a series of fact-findings and legal conclusions summarized below.

First, the trial examiner found that prior to May 1970, when the agreement was signed by Gelfand and Local 223, Gelfand had “no contract with [Local 223] and employed members of the latter only on very rare occasions,” and further, Gelfand then had no facilities or equipment for fabricating the sheet metal items it used on its roofing projects. It had always purchased such items from distributors which were not under contract with any local of the Sheet Metal Workers’ International. As to implementing the contract clauses, the trial examiner further found that in the fall of 1970, after Gelfand had contracted with Local 223, agents of the union informed Gelfand that on its CentexWinston condominium project, it could not use prefabricated sheet metal items, specifically stucco stops and gravel stops, that did not bear union labels. The agents backed their statements with threats of monetary penalties, work stoppages, and grievance filings. Subsequently, Union business manager Wallace Strong solicited and received from Gelfand a check for the difference between the cost of some of the items purchased and the wages Gelfand would have paid had the items been fabricated by union members. The object of Local 223’s conduct, the trial examiner determined, was a secondary one: to boycott goods produced by nonunion employers. On the basis of these findings, the trial examiner concluded that Local 223 had violated section 8(b) (4) (ii) (B) of the NLRA by “threatening, coercing, and restraining . . . Gelfand . to cease using, handling, or otherwise dealing in the products of producers of metal products not bearing a union label . . . . ” Local 223 challenges neither this conclusion as to the union’s specific actions nor the related portion of the Board’s cease and desist order in this court.

With respect to the charge that Local 223 had violated section 8(e), the examiner made the following statement:

Having found and concluded that [Local 223’s] pressure on Gelfand was secondary in character, if [sic] follows that Article II, Section 2, and Article VIII, Section 2, of the contract between [Local 223] and Gelfand, set forth above, were applied and sought to be enforced by [Local 223] in a manner which violates Section 8(e) of the Act. I so find and conclude. Cincinnati Sheet Metal & Roofing Company, 174 NLRB No. 22, enfd. as modified [140 U.S.App.D.C. 83] 433 F.2d 1189 (C.A.D.C.); Cincinnati Sheet Metal Roofing Company, 174 NLRB No. 125, enfd. 425 F.2d 730 (C.A. 6). In both cases the identical contractual provisions involved in the instant ease were found violative of Section 8(e) because they were improperly implemented.

Other findings by the trial examiner concerned Local 223’s relations with Union Air Conditioning, Inc. (Union Air) and United Sheet Metal Company (United), both of which are members of the Florida East Coast Sheet Metal Contractors Association and therefore subject to the Standard Form of Union Agreement. The examiner found that agents of Local 223 had pressured Union Air and United to cease buying prefabricated air conditioning filter racks that did not bear union labels. In addition, he determined that the Local had instructed its members who were employed by Union Air and United not to install nonunion label filter racks until their employers had paid the Local the difference between the purchase price of the filter units and the projected cost of fabricating the units at union wage rates. Although the examiner had received evidence on the question of whether filter racks were customarily fabricated by employees of Union Air, United, and other contractors, he made no specific finding on this issue. Rather, he again determined that Local 223’s object was to boycott items manufactured by nonunion employers. Thus, he concluded that Local 223 had violated sections 8(b) (4) (i) and (ii) (B) by its conduct with respect to Union Air and United. Since the issue was not before him, the trial examiner did not decide whether Local 223 had violated section 8(e) of the NLRA in its contractual relations with United and Union Air.

Relying on the trial examiner’s findings, with some modifications not material here, the Board ordered Local 223 to cease and desist from the conduct that had been found to violate sections 8(b) (4) (i) and (ii)(B). The Board’s order is challenged here to the extent that it commands Local 223 to cease and desist from “ [maintaining, enforcing, or giving effect to article II, section 2, or article VIII, section 2, of the collective-bargaining agreement entered into by [Local 223] and Gelfand insofar as these clauses are applied to prohibit use of nonunion label products.”

II. SCOPE OF SECTION 8(e) AND THE APPLICABLE CASE LAW

The language of section 8(e) of the NLRA is very broad. On its face, it seems to prohibit any contractual provision under which an employer agrees “to cease or refrain” from dealing in the products of some third party. But in enacting section 8(e), Congress intended merely to close a loophole in the secondary boycott provisions of the NLRA. Prior to 1959, a union and employer could legally contract to boycott the products of third parties, so long as the union did not enforce the so-called “hot cargo” agreement by means of conduct violating section 8(b)(4)(A) (now 8(b) (4) (B)). In closing this loophole, Congress intended that the scope of section 8(e) be no broader than that of section 8(b)(4)(A). Thus, section 8(e) reaches only labor-management agreements that have secondary objectives, not those with the primary purpose of affecting relations between the union and the contracting employer.

This background makes it clear that the fundamental concept in analyzing a contractual provision under section 8(e) is the primary-secondary distinction. A helpful discussion of this distinction was supplied by the Third Circuit in A. Duie Pyle, Inc. v. NLRB:

If the object of the agreement is to benefit the employees of the bargaining unit represented by the union, it is “primary” and in such event does not fall within the proscription of § 8(e), whereas if the object is the application of pressure on an outside employer in order to require him to accede to union objectives it is “secondary” and within the prohibition of § 8(e).

In National Woodwork Manufacturers Association v. NLRB, the Supreme Court supplied more detailed criteria for determining on which side of the primary-secondary line a contractual provision allegedly violative of section 8(e) falls. The central inquiry is “whether, under all the surrounding circumstances, the Union’s objective was preservation of work ... or whether the agreements . . . were tactically calculated to satisfy union objectives elsewhere.” As surrounding circumstances, the Court identified “the remoteness of the threat of displacement by the banned product or services, the history of labor relations between the union and the employers who would be boycotted, and the economic personality of the industry.” The Court went on to say, “The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-á-vis his own employees.”

The factual setting of National Woodwork was that pursuant to a provision of a collective-bargaining agreement covering carpentry work on a construction project, the union refused to hang doors prefabricated away from the job-site. The Court first analyzed the contract provision itself and concluded that since its “objective . . . was preservation of work traditionally performed by the jobsite carpenters,” the provision did not violate section 8(e). Then the Court proceeded to evaluate the union’s maintenance of the provision and reasoned that since union members had refused to install all prefabricated doors, whether union-made or nonunion, the union’s conduct had the primary purpose of preserving door fabrication wójrk for carpenters at the jobsite and did n'ot violate section 8(b)(4)(B). Thus, the Court’s analysis clearly proceeded in two discrete stages: (1) Was the disputed contractual provision per se designed to achieve a secondary objective, in which case it would violate section 8(e)? (2) Was the union’s conduct in implementing that provision directed at a secondary objective in violation of section 8(b)(4)(B)?

Meat and Highway Drivers Local 710 v. NLRB, a case decided in this Circuit that in many respects anticipated National Woodwork, further elaborates the primary-secondary distinction in the context of section 8(e) controversies. Speaking through Judge Wright, we there stated:

Resolution of the difficult issue of primary versus secondary activity, as it relates to this case, involves consideration of two factors: (1) jobs fairly claimable by the bargaining unit, and (2) preservation of those jobs for the bargaining unit. If the jobs are fairly claimable by the unit, they may, without violating either § 8(e) or § 8(b)(4)(A) or (B), be protected by provision for, and implementation of, no-subcontracting or union standards clauses in the bargaining agreements. [Footnotes omitted.]

We emphasized that the focus in any section 8(e) scrutiny of a labor contract provision is on the provision per se and the circumstances surrounding the parties’ agreement to its terms:

To conclude that a contract term falling within the letter of § 8(e) properly falls within its prohibition there must be either a finding that both parties understood and acquiesced in a secondary object for the term, or a finding that secondary consequences within § 8(e)’s intendment would probably flow from the clause, in view of the economic history and circumstances of the industry, the locality, and the parties. [Footnotes omitted.]

The analytical process dictated by National Woodwork and Local 710 may be summarized as follows. Under the circumstances existing at the time the contractual provision in controversy was signed, was the object of the provision preservation of fairly claimable work for members of the bargaining unit, a primary objective? Or was the goal to use the contracting employer as a pawn in the union’s labor disputes with other employers? Resolution of this ultimate issue presupposes answers to two preliminary questions:

1. What is the relevant bargaining unit ?
2. In connection with the operation or project of the contracting employer, which jobs are fairly claimable by the Union? Or, in National Woodwork terms, in which jobs does the union have a valid work preservation interest?

III. INADEQUACY OF THE TRIAL EXAMINER’S FINDINGS TO SUPPORT AN 8(e) VIOLATION

It is clear on the basis of the record compiled in the Board proceeding, the trial examiner’s decision, and the Board’s decision and order that adequate consideration was not given to the important factors discussed above. Since findings with respect to those factors are prerequisites to any decision that section 8(e) has been violated, the Board’s order restricting Local 223’s administration of article II, section 2 and article VIII, section 2 of its collective-bargaining agreement with Gelfand cannot be allowed to stand.

First, the trial examiner and the Board failed to define the scope of the bargaining unit that Local 223 represents in its dealings with Gelfand. The trial examiner did find that Gelfand is not a member of the Florida East Coast Sheet Metal Contractors Association, so it is arguable that the relevant bargaining unit is limited to a single employer, Gelfand. However, the record does not clearly reveal even the number and nature of sheet metal workers employed by Gelfand. Consequently, it is unclear whose interests, if anyone’s, Local 223 could legitimately seek to protect by its administration of the union standards clauses involved here. Conceivably, no member of the bargaining unit has the skills or experience to perform the work allegedly protected by the clauses (fabrication of stucco stops and gravel stops). But the record is too sketchy to support this or any other inference about the scope and nature of the bargaining unit. On rehearing the examiner should develop the facts necessary to a finding on this question.

Second, the decisions at the. Board level contain no findings on the crucial issue of whether the work here in dispute, fabrication of stucco stops and gravel stops, is work that is fairly claimable by the bargaining unit represented by Local 223. In a section of his decision titled “The Union’s Defense of Work Preservation,” the trial examiner discusses, without reaching any conclusion, whether Local 223 had a fair claim to the work of fabricating filter racks for Union Air and United. But he is silent on Local 223’s asserted claim to the work of fabricating stucco and gravel stops for Gelfand. He did find, in another section of his decision:

Prior to May 21, 1970, Gelfand had no contract with [Local 223] and employed members of the latter only on very rare occasions, and when they were employed it was always on a job-site and never in the fabrication of sheet metal items. Indeed, the record is clear that prior to May 1970 Gelfand had no facilities to fabricate such items, and all such supplies, such as stucco stops, gravel stops, gutters, and downspouts, it purchased from local distributors, including East Coast Supply Company, Intercostal, Inc., and Southern Metals, Inc. . . .

On the basis of this finding, the Board has argued in this court that “ ‘the record clearly indicates an attempt on the part of the Union to use the contract clauses in question for the purpose of “acquiring for its members work that had not previously been theirs.” ’ ”

However, there is evidence in the record that Local 223 is asserting a claim to work for Gelfand no broader than the work rights traditionally granted to Local members by other roofing contractors under the terms of the Standard Form of Union Agreement. The trial examiner received uncontradicted testimony that Local 223 members have customarily fabricated stucco stops and gravel stops for these other contractors. Therefore, when Gelfand signed the Standard Form of Union Agreement establishing relations with Local 223 for the first time, the Local may have expected that Gelfand would allocate work to union members in the same fashion as other contractors who were signatories of the Agreement. Both the trial examiner and the Board failed to come to grips with this evidence and indeed omitted any mention of it.

The lack of findings here on the issue of what jobs were fairly claimable by the union distinguishes this case from the cases relied on by the trial examiner in his decision. In Sheet Metal Workers Local Ufl (Cincinnati Sheet Metal and Roofing Company) the trial examiner explicitly stated: “ . . .1 have found that the fabrication of the eleven items as an overall practice, to be neither unit work nor fairly claimable as unit work.” In Sheet Metal Workers Local 98 (Cincinnati Sheet Metal and Roofing Company) the same examiner as in Local HI employed almost identical language in making his finding that the union had no valid work preservation interest in the jobs claimed. The conspicuous lack of such a finding in this case is fatal to the Board’s order on this point.

Finally, the trial examiner and Board failed to accord adequate consideration to the ultimate question in any 8(e) case: Under the circumstances existing at the time the disputed contractual provision was executed, was the object of the provision preservation of fairly claimable work for the bargaining unit, or did the provision have an impermissible secondary objective? There is nothing in the record to suggest that the trial examiner inquired into “all the surrounding circumstances” of the provisions in controversy here, as required by National Woodwork. Furthermore, instead of focusing on the contractual provisions per se in evaluating their objectives, the trial examiner based his finding of an 8(e) violation on the union’s conduct in administering the provisions. He stated:

Having found and concluded that [Local 223’s] pressure on Gelfand was secondary in character, if [sic] follows that Article II, Section 2, and Article VIII, Section 2, of the contract between [Local 223] and Gelfand, set forth above, were applied and sought to be enforced by [Local 223] in a manner which violates Section 8(e) of the Act. I so find and conclude.

This approach obviously does not conform to the analysis dictated by National Woodwork and Local 710, which treat the contractual provision per se and the circumstances of its execution separately from the union’s conduct in administering the provision. Moreover, consistent application of such inverted reasoning would be grossly inequitable to unions and their members, for valid work preservation rights could then be irrevocably forfeited on the basis of fust one instance in which the union attempted to assert those rights by means of proscribed conduct tainted by an unlawful secondary purpose.

Because the trial examiner failed to inquire into what jobs were fairly claimable by Local 223, he ignored evidence in the record indicating that the objective underlying the disputed contract provisions was to ensure that the work of fabricating stucco stops and gravel stops for Gelfand’s construction projects was performed by members of the bargaining unit represented by Local 223. Union business manager Strong testified, without contradiction, that during the discussions leading up to execution of the Local 223-Gelfand contract, Abraham Gelfand stated his intention to establish a sheet metal fabricating shop and to employ sheet metal workers therein. This testimony, together with the evidence that members of Local 223 have traditionally been employed to fabricate stucco and gravel stops for other roofing contractors in the region, raises the inference that the underlying purpose of article II, section 2 and article VIII, section 2 of the Standard Form of Union Agreement is the primary one of protecting work for members of the bargaining unit. If this is true (we do not decide the factual question here), then on all precedent in the Supreme Court and this court there was no section 8(e) violation in this case.

IV. CONCLUSION

The fundamental test of National Woodwork is "whether the agreement or its maintenance is addressed to the labor relations of the contracting1 employer vis-d-vis his own employees.” There is a lack of findings, as above pointed out, on crucial factors, which is fatal to a finding of a section 8(e) violation. This case is hereby remanded to the Board for reconsideration and further evidence-gathering directed at making findings on the crucial factors enumerated herein.

So ordered.

      . 29 U.S.C. § 158(e) (1970). The Board also found violations of sections 8(b) (4) (i) and (ii) (B), 29 U.S.C. § 158(b) (4) (i)(ii) (B) (1970), which are not challenged on appeal, and are thereby enforced.

      . “ARTICLE II
      * * * * *
      “SECTION 2. Subject to other applicable provisions of this Agreement, the Employer agrees that when subcontracting for perfabrication [sic] of materials covered herein, such prefabrication shall be subcontracted to fabricators who pay their employees engaged in such fabrication not less than the prevailing wage for comparable sheet metal fabrication, as established under provisions of this Agreement.
      “ARTICLE VIII
      “SECTION 2. On all work specified in Article I of this Agreement, fabricated and/or assembled by journeymen sheet metal workers and/or apprentices within the jurisdiction of this Union, or elsewhere, for erection and/or installation within the jurisdiction of any other Local Union affiliated with Sheet Metal Workers’ International Association, whose established wage scale is higher than the wage scale specified in this Agreement, the higher wage scale of the job site Union shall be paid to the journeymen employed on such work in the home shop or sent to the job site.” Joint App. at 79, 80.

      . See Meat and Highway Drivers Local 710 v. NLRB, 118 U.S.App.D.C. 287, 294, 335 F.2d 709, 716 (1964); Sheet Metal Workers Local 26 (Reno Employers Council), 168 N. L.R.B. 893, 899 (1967) ; Comment, Subcontracting Clauses and Section 8(e) of the National Labor Relations Act, 62 Mich.L.Rev. 1176, 1190 (1964).
      General Counsel for the Board was willing to concede that the provisions are valid on their face. Trial Examiner’s Decision at 5, Joint App. at 40. However, the Board stated :
      In view of our ultimate conclusion here that article II, section 2, and article VIII, section 2, of the “Standard Form of Union Agreement” entered into between Respondent and Gelfand Roofing Company, as administered, maintained, enforced, and given effect to, are violative of Section 8(e), we need not, and do not, pass on the validity under Section 8(e) of such contract provisions on their face.
      NLRB Decision and Order at 2 n. 3, Joint App. at 66 (reported as 196 N.L.R.B. No. 112, 3 April 1972). Use of union standards clauses as mechanisms for work preservation has been upheld in Retail Clerks Local 1288 v. NLRB, 129 U.S.App.D.C. 92, 95, 390 F.2d 858, 861 (1968), and Orange Belt District Council of Painters No. 48 v. NLRB, 117 U.S.App.D.C. 233, 328 F.2d 534 (1964).

      . Trial Examiner’s Decision at 24, Joint App. at 59.

      . Id. at 5, Joint App. at 40.

      . 29 U.S.C. § 158(b) (4) (ii) (B) (1970).

      . Trial Examiner’s Decision at 24-25, Joint App. at 59-60.

      . Id. at 24, Joint App. at 59.

      . 29 U.S.O. § 158(b) (4) (i)-(ii) (B) (1970).

      . Trial Examiner’s Decision at 24-25, Joint App. at 59-60.

      . NLRB Decision and Order at 9-10, Joint App. at 73-74.

      . 29 U.S.O. § 158(e) (1970):
      It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply-to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this ' subsection and subsection (b) (4) (B) of this section the terms “any employer”, “any person engaged in commerce or an industry affecting commerce”, and “any person” when used in relation to the terms “any other producer, processor, or manufacturer”, “any other employer”, or “any other person” shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforcement of any agreement which is within the foregoing exception.

      . For a comprehensive discussion of the legislative history of section 8(e) see National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 635-644, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

      . Oh. 120, § 8(b).(4) (A), 61 Stat. 141 (1947), as amended, 29 U.S.O. § 158(b)(4)(B) (1970). This loophole was exposed by the Supreme Court’s Sand Door
        decision, Carpenters Local 1976 v. NLRB, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186 (1958).

      . National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 635, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

      . 386 U.S. at 635, 639. See also Meat and Highway Drivers Local 710 v. NLRB, 118 U.S.App.D.C. 287, 291-292, 335 F.2d 709, 713-714 (1964); Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA §§ 8(b)(4) and 8(e), 113 U.Pa.L.Rev. 1000, 1009-15 (1965).

      . 383 E.2d 772, 776 (1967).

      . 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967).

      . Id. at 644.

      . Id. n. 38.

      . Id. at 645.

      . The provision read: “No member of this District Council will handle . . . any doors or transoms which have been fitted prior to being furnished on job . . . .” Id. at 615 n. 2.

      . Id. at 646.

      . In the companion case of Houston Insulation Contractors Ass’n v. NLRB, 386 U.S. 664, 87 S.Ct. 1278, 18 L.Ed.2d 389 (1967), tlie Court described its National Woodwork holding in these terms :

        National Woodwork Mfrs., supra, holds that collective activity by employees of the primary employer, the object of which is to affect the labor policies of that primary employer, and not engaged in for its effect elsewhere, is protected primary activity.
      386 U.S. at 668. The Court held that members .of a construction local could, consistent with section 8(b) (4) (B), refuse to handle prefabricated products to protect work for members of a sister local who were employed by the same contractor. Such a boycott is primary, the Court held, because its object is to affect the labor practices of the employer of the boycotting local and thus “does not involve the employer in a dispute not his own.” 386 U.S. at 669.

      . 118 U.S.App.D.C. 287, 335 F.2d 709 (1964).

      . Id. at 291, 335 F.2d at 713 (emphasis supplied).

      . Id. at 294, 335 F.2d at 716.

      . See Sheet Metal Workers Local 98 v. NLRB, 140 U.S.App.D.C. 83, 433 F.2d 1189 (1970), in which Judge Wright, who authored the opinion in Local 710, stated in dissent :
      Primary-secondary analysis hinges on a determination of the employee group which the work preservation agreement may legally protect. Unless the relevant unit of employees is clearly established, it is impossible to decide whether a specific job has been customarily or traditionally done by them, or whether it is fairly claimable by them.
      140 U.S.App.D.C. at 93, 433 F.2d at 1199.

      . Trial Examiner’s Decision at 3, Joint App. at 38.

      . For a discussion of the peculiar problems that may arise when a multi-employer bargaining unit is involved, see Sheet Metal Workers Local 98 v. NLRB, 140 U.S.App.D.C. 83, 93-95, 433 F.2d 1189, 1199-1201 (1970) (Wright, J., dissenting). See also National Maritime Union v. Commerce Tankers Corp., 457 F.2d 1127 (2d Cir. 1972), in which the court held that “any bargaining unit for whom the union could justifiably preserve work would be composed solely of [the primary employer’s] employees and could not justifiably include all [union] members . . . who await work assignments at a central hiring hall.” 457 F.2d at 1137.

      . The following testimony of Mr. Lanny Gelfand, a partner in the Gelfand Roofing Company, is all that could be found on this subject in the hearing transcript:
      Q. [By Counsel for the Board’s General Counsel] Prior to the time you filed the charge in this case did you ever employ sheet metal workers?
      A. [By Mr. Gelfand] Very rarely.
      TRIAL EXAMINER: I take it there were some occasions when you did employ them.
      THE WITNESS: Once or twice, yes, we have employed sheet metal workers before we had this problem.
      Q. [By Mr. Grossman] About how many employees did you have altogether?
      A. I would say that before this problem arose we had on two different occasions one man each day, one man one day, and one man I believe for three days.
      Q. You mean a sheet metal worker?
      A. A sheet metal worker, right.
      Q. How many employees did you have altogether?
      TRIAL EXAMINER: Do you mean of all crafts?
      MR. GROSSMAN: Yes, sir.
      A. We have approximately 50 people working for us.
      í¡; H* sjt sjs s¡t
      Q. [By Mr. Grossman] What work had you assigned to sheet metal workers prior to the filing of the charge?
      A. None.
      Q. On those occasions when you used them—
      A. [Interposing] The first time — as a matter of fact, both times they were hanging down-spouts for us.
      Q. Did they ever fabricate any sheet metal products for you?
      A. No, sir, they didn’t.
      Q. To whom had you assigned the work of installing stucco stops and gravel stops ?
      A. My roofers.
      Hearing Transcript at 72-74, Joint App. at 130-32. It is not clear whether Mr. Gelfand’s phrase “before this problem arose” means before Gelfand signed the contract with Local 223 or during the term of the contract but before the union’s allegedly illegal actions. The trial examiner failed to clarify this ambiguity when he found: “Prior to May 21, 1970, Gelfand had no contract with [Local 223] and employed members of the latter only on very rare occasions, and when they were employed it was sions, and when they were employed it was tion of sheet metal items.” Trial Examiner’s Decision at 5, Joint App. at 40.

      . See Meat and Highway Drivers Local 710 v. NLRB, 118 U.S.App.D.C. 287, 292, 335 F.2d 709, 714 (1964).

      . The parties do not dispute Local 223’s assertion that fabrication of stucco stops and gravel stops is work covered by the terms of article II, section 2 and article VIII, section 2 of the collective-bargaining agreement, set out in note 2 supra. Article XXX, which along with article I defines the jurisdiction of Local 223, provides, “The fabrication and installation of all flashings, metal skylights, scuppers, pitch pans, roof expansion joints, gutters (excluding half round) and downspouts together shall all be considered one individual portion of a job or project site.” Thus, when article II, section 2 refers to “perfabrication [sic] of materials covered herein,” it refers to prefabrication of flashings. Uncontradieted testimony in the record establishes that “flashings” includes stucco stops and gravel stops. Hearing Transcript at 533-34, 548-49, Joint App. at 229-30, 234-35.

      . Trial Examiner’s Decision at 17-19, Joint App. at 52-54.

      . Id. at 5, Joint App. at 40.

      . Brief for Respondent at 17, quoting Sheet Metal Workers Local 98 v. NLRB, 140 U.S.App.D.C. 83, 89, 433 F.2d 1189, 1195 (1970).

      . This evidence was supplied by Sidney Raymond, general foreman for Giffin Roofing Company, and Donald Cunningham, general foreman for Central Roofing and Supply Company. Both Giffin and Central are signatories to the Standard Form of Union Agreement to which Local 223 and Gelfand are parties. The relevant testimony of Raymond and Cunningham appears in the Hearing Transcript at 534-35, 548-51, Joint App. at 230-31, 234-37.
      This evidence distinguishes the case at bar from Sheet Metal Workers Local 98 v. NLRB, 140 U.S.App.D.C. 83, 433 F.2d 1189 (1970), which was heavily relied upon by the trial examiner in his decision at 24, Joint App. at 59, and by the Board in its brief at 14, 16, 17, 18. While Local 98 did involve the same contractual provisions as those involved here, the trial examiner found that the items whose fabrication the union claimed as unit work had traditionally been purchase items throughout the industry and that union members had never previously made the items at the jobsite. 140 U.S.App. D.C. at 88, 433 F.2d at 1194.

      . Prior performance of work for the particular employer should not be a prerequisite to a fair claim to that work by the union. See Bricklayers’ Local 8 (BESCO), 180 N.L.R.B. 43 (1969), in which the Board held that a union could have a valid work preservation objective in its contractual relations with an employer that had not previously been in business. In so holding, however, the Board relied on an explicit recitation in the contract that the union had work preservation rights in the claimed jobs. Another aspect of the Board’s order was set aside in Western Monolithics Concrete Products, Inc. v. NLRB, 446 F.2d 522 (9th Cir. 1971).

      . The revelant passage is quoted in the text accompanying note 8 supra.

      . 174 N.L.R.B. 843 (1969), enforced, NLRB v. Sheet Metal Workers Local 141, 425 F.2d 730 (6th Cir. 1970).

      . 174 N.L.R.B. at 851.

      . 174 N.L.R.B. 104 (1969), enforced as modified, Sheet Metal Workers Local 98 v. NLRB, 140 U.S.App.D.C. 83, 433 F.2d 1189 (1970).

      . 174 N.L.R.B. at 112. See also note 37 supra.

      . See notes 19-20 supra and accompanying text. For example, it is not clear what “the relations between the union and the employers who would be boycotted” under the provisions are. If the Sheet Metal Workers International has been actively attempting to unionize the suppliers of prefabricated stucco stops and gravel stops, it might be inferred that one of the objectives of the disputed provisions is to use Gelfand to apply pressure on its suppliers to unionize. This would of course be an impermissible objective under section 8(e).

      . Trial Examiner’s Decision at 24, Joint App. at 59.

      . The trial examiner stated: “. . . I have concluded that I cannot credit [Strong] except in those instances where (a) the particular fact is not in dispute; (b) his testimony is in the nature of an admission against interest; or (c) he is corroborated by other evidence which I find credible.” Trial Examiner’s Decision at 8 n. 7, Joint App. at 43. However, the testimony of Strong that is cited herein was not directly contradicted by any other witness.

      . Hearing Transcript at 562-72, 630, Joint App. at 240-45, 249. Strong’s account of his conversation with Gelfand was corroborated by the testimony of Richard Tucker, who is the business representative of Local 223. Hearing Transcript at 715-16, Joint App. at 255-56.

      . See note 37 supra and accompanying text.

      . 386 U.S. at 645.

      . The Board did attempt to narrow the scope of its order by prohibiting the union from enforcing the disputed provisions only “insofar as these clauses are applied to prohibit the use of nonunion label products.” However, under National Woodwork, if the union has valid work preservation rights with respect to stucco and gravel stops, it could legally interpret the disputed provisions to preclude use by Gelfand of any stops fabricated by third parties, whether union label bearing or not. See 386 U.S. at 646.