author: DIAMOND, District Judge.

text:
    UNITED STATES of America v. William Emanuel ALLEN, Anthony Sberna, Joan Sberna.
    Crim. No. 85-24.
    United States District Court, W.D. Pennsylvania.
    March 12, 1985.

      Linda L. Kelly, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.
    Thomas S. White, Asst. Fed. Pub. Defender, Pittsburgh, Pa., for Allen.
    Kim Wm. Riester, Pittsburgh, Pa., for A. Sberna.
    Norman Matlock, Pittsburgh, Pa., for J. Sberna.
   MEMORANDUM OPINION

DIAMOND, District Judge.

On February 12, 1985, a Grand Jury returned a thirteen-count indictment charging defendant William Emanuel Allen and defendant Anthony Sberna with, among other offenses, a number of violations of the Controlled Substances Act, including a drug conspiracy involving cocaine and heroin, 21 U.S.C. § 846, possession with intent to distribute cocaine and heroin, 21 U.S.C. § 841(a)(1), and, as to defendant Allen alone, engaging in a continuing criminal enterprise, 21 U.S.C. § 848(a)(1).

A detention hearing pursuant to the Bail Reform Act of 1984, Pub.L. No. 98-473, §§ 202-210, 98 Stat. 1976-87 (codified at 18 U.S.C. §§ 3141-50) (“Act”) was held before Magistrate Ila Jeanne Sensenich, who, on February 22, entered written orders of detention pending trial as to each of the defendants. Subsequently, each defendant filed a motion pursuant to 18 U.S.C. § 3145(b) to revoke or amend the order of detention entered by the magistrate, and, on March 7, 1985, a hearing was held on those motions before this member of the court.

Several threshold issues raised by the defendants must be addressed. First, the defendants argue that the Act is unconstitutional as applied to them since they are charged with committing crimes prior to October 12, 1984, the effective date of the Act. While the matter before the court has to do with detention pending trial, and the matter before the court in United States v. Miller, 753 F.2d 19 (3d Cir.1985), had to do with detention pending appeal, we believe nevertheless that the rationale and ruling of the court in Miller applies as well to the case sub judice and forecloses in this court the defendants’ Ex-Post-Facto challenge to the constitutionality of the Act.

The defendant Allen next contends in paragraph 7 of his motion to revoke or amend that the application of the Act to him violates “the statutory doctrine that laws are presumed to be prospective in application, absent, express congressional intent to the contrary.”

The short answer to this contention is that the Act is being applied prospectively to both of these defendants, since the Act became effective four months prior to the return of the indictment and the subsequent arrest and detention of the defendants. Cf. United States v. Mitchell, 600 F.Supp. 164 (N.D.Cal.1985).

The defendant Allen contended at the review hearing that he was entitled to a hearing de novo, while defendant Sberna insisted that the court should be limited to a review of the record of the magistrate’s hearing.

The language of 18 U.S.C. § 3145 providing for the review of release and detention orders by the court having original jurisdiction over the offense appears to confer broad discretion in that court to re-examine all aspects of those orders in order to make an independent decision as to whether they should be revoked or amended. There is nothing in the Act which precludes the taking of additional evidence, or “information” as § 3142(f) sometimes refers to it—particularly if it is contended, for example, that a relevant change in circumstances has occurred. And, in view of tire provisions of § 3142(f) that the “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information” at a detention hearing, there would appear to be no practical reason to preclude the court from utilizing the transcript and record of the earlier detention hearing as the basis for findings of fact. Of course, there are substantial reasons of judicial economy and speedy determination of the matter to favor such a procedure.

Accordingly, at the review hearing, the court admitted the transcripts and exhibits of the detention hearing held before the magistrate and permitted the parties to supplement the record with additional “information.”

The defendants raise several issues concerning the construction of the Act with regard to the triggering of the rebuttable presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community” which arises under § 3142(e) upon a finding by the judicial officer that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.).

The defendants argue that the judicial officer may not rely on the indictment charging a triggering offense as the basis for a finding of the requisite “probable cause to believe,” but, rather, that the government must produce independent evidence as the basis for such a finding.

Section 3142(e) provides for the triggering of a rebuttable presumption in two distinct circumstances. First, it provides that,

... a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if the judge finds that—
“(1) the person has been convicted of a Federal offense that is described in subsection (f)(1), or of a State or local offense that would have been an offense described in subsection (f)(1) if a circumstance giving rise to Federal jurisdiction had existed;
“(2) the offense described in paragraph (1) was committed while the person was on release pending trial for a Federal, State, or local offense; and “(3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1), whichever is later.

It should be noted that this presumption pertains only the question of “safety” and that the facts which trigger the presumption have to do with past convictions.

In addition, subsection (e) provides for a second presumption that “it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act.” This presumption, of course, relates to both “appearance” and “safety”.

There is ample authority for the proposition that an “indictment is a determination of a probable cause by the grand jury” and is sufficient without more to satisfy the probable cause requirements of the Fourth Amendment for the issuance of a warrant of arrest. Wright, Federal Practice and Procedure: Criminal 2d § 151, citing Gerstein v. Pugh, 420 U.S. 103, 117 n. 19, 95 S.Ct. 854, 865 n. 19, 43 L.Ed.2d 54 (1975); Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958).

Or, as stated by Professor Moore: The Fourth Amendment protects against arrest unless there is probable cause to believe that a crime has been committed and that the person sought to be arrested committed it. The finding of an indictment by a grand jury conclusively establishes this element of probable cause.... (footnotes omitted) citing Giordenello, supra.

8 J. Moore, Moore’s Federal Practice, ¶ 9.02[2] (2d ed. 1984).

And, the grand jury process is entitled to a presumption of regularity. See, In Re Grand Jury Proceedings, 632 F.2d 1033 (3d Cir.1980).

Nevertheless, the Act is not clear or explicit on the question of whether the indictment may be used to trigger the second presumption under § 3142(e). It provides only, as to the second presumption, that it arises if “the judicial officer finds that there is probable cause to believe that the person committed an offense....” § 3142(e). (emphasis added).

Subsection (f) of § 3142 prescribes some rules of procedure for the detention hearing, including that the “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.” This permits the admission and consideration of all forms of hearsay, including, presumably, the indictment itself, along with all the inferences and presumptions which flow therefrom.

In view of the ambiguity in the Act, resort to the legislative history is permissible. See Sutherland Stat. Const. § 48.06 (4th Ed.). The principal source of legislative history is found in the report of the Senate Committee on the Judiciary, S.Rep. No. 98-225, 98th Cong., 1st Sess., reprinted in 1984 U.S.Code Cong. & Ad. News at 1-40 (Supp. 9A). (Subsequent references to this report will appear at times as S.R. followed by the page number.)

We believe that a fair reading of the Act in conjunction with the legislative history supports the conclusion that the judicial officer must have a factual basis independent of the fact that an indictment has been returned upon which to make a finding of probable cause sufficient to trigger the second rebuttable presumption under § 3142(e).

Many provisions of the Act are based on a District of Columbia pretrial detention statute, D.C.Code 1973, § 23-1322, which was held to be constitutional in United States v. Edwards, 430 A.2d 1321 (D.C.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982).

Early in S.Rep. No. 98-225, the committee, referring to Edwards, recognizes that while pretrial detention is not per se unconstitutional, a pretrial detention statute may be constitutionally defective “if it fails to provide adequate procedural safeguards or if it does not limit pretrial detention to cases in which it is necessary to serve the societal interests it is designed to protect.” S.R. at 8, U.S.Code Cong. & Admin.News 1984, at 11. Accordingly, the committee points out that “the pretrial detention provisions of this section have been carefully drafted with these concerns in mind.” Id. at 8, U.S.Code Cong. & Admin.News 1984, at 11.

The report is replete with expressions of concern that pretrial detention be limited to those individuals who present specific evidence of risk of flight or dangerousness or who fall within a group as to which there is adequate empirical data indicating a high risk of flight or potential danger to others or the community; e.g. persons who have committed “grave” drug offenses. S.R. at 20. Repeated statements of the need for adequate procedural guarantees of fairness and due process are made. See generally S.R. at 8-22.

Thus, the report reflects a legislative intent carefully to circumscribe the circumstances which would give rise to pretrial detention and the intent to provide adequate procedural safeguards.

The committee noted that “[i]t [was] well known that drug trafficking is carried on to an unusual degree by persons engaged in continuing patterns of criminal activity” and that “persons charged with major drug felonies are often in the business of importing or distributing dangerous drugs, and thus, because of the nature of the criminal activity with which they are charged, they pose a significant risk of pretrial recidivism” and that “... the Committee received testimony that flight to avoid prosecution is particularly high among persons charged with major drug offenses.” S.R. at 20, U.S.Code Cong. & Admin.News 1984, at 23 (emphasis supplied). As a result the committee included the second rebuttable presumption in § 3142(e).

Notwithstanding the above, the committee nevertheless pointed out that:

[b]ecause the requirements of subsection (e) must be met before a defendant may be detained, the fact that the defendant is charged with an offense described in subsection (f)(1)(A) through (C) is not, in itself, sufficient to support a detention order. However, the seriousness of the offenses described in subsection (f)(1)(A) through (C) coupled with the government motion is a sufficient basis for requiring an inquiry into whether detention may be necessary to protect the community from the danger that may be posed by a defendant charged with one of these crimes, (emphasis supplied).

S.R. at 21, U.S.Code Cong. & Admin.News 1984, at 24.

The committee goes on to point out that the detention hearing procedures set forth in § 3142(f) are based on those of the D.C. Statute which was held to meet constitutional due process requirements in United States v. Edwards, supra.

At page 22 of the report, U.S.Code Cong. & Admin.News 1984, at page 25, the committee states in plain language its intent that there be an evidentiary basis for the facts that lead the judicial officer to conclude that pretrial detention is necessary.

Thus, for example, if the criminal history of the defendant is one of the factors to be relied upon, clear evidence such as records of arrest and convictions should be presented.... Similarly, if the dangerous nature of the current offense is to be the basis of detention, then there should be evidence of the specific elements or circumstances of the offense, such as possession or use of a weapon or threats to a witness, that tend to indicate that the defendant will pose a danger to the safety of the community if released.

S.R. at 22, U.S.Code Cong. & Admin.News 1984, at 25.

The confusion as to whether an indictment may in itself be sufficient to establish the probable cause which triggers the second presumption under § 3142(e) arises, I think, from the fact that Congress rejected as the basis for the triggering of the rebut-table presumption the “substantial probability” to believe standard set forth in the D.C. Statute and opted, instead, for the probable cause to believe standard found in § 3142(e). See S.R. at 18. Obviously, under the substantial probability test the fact that an indictment has been returned is irrelevant, since, of course, a grand jury may return an indictment on a mere finding of probable cause to believe that a crime was committed and the defendant committed it, which is a less demanding standard than substantial probability.

The committee felt that the substantial probability test created too high a standard of proof at the detention hearing stage and therefore recommended the lesser probable cause standard, which, coincidentally, just happens to be the same standard applied by grand juries in finding indictments. In doing this, however, there is nothing to indicate that Congress also intended to eliminate the need to prove probable cause by independent evidence or information supplied at a detention hearing. Indeed, the contrary appears to be the fact, since in rejecting the higher substantial probability standard the committee, nevertheless, expressed its belief “that the fact that the judicial officer has to find probable cause will assure the validity of the charges against the defendant, and that any additional assurance provided by the ‘substantial probability’ test is outweighed by the practical problems in meeting this requirement at the stage at which the pretrial detention hearing is held.” S.R. at 18, U.S. Code Cong. & Admin.News 1984, at 21 (footnote omitted) (emphasis supplied).

Moreover, it is fair to say, I think, that the defendant will have been charged by indictment in the overwhelming majority of the cases which will be the subject of a pretrial detention hearing under the Act. The exceptions will be those few emergency situations where the United States Attorney must act in haste to prevent escape or other serious consequences resulting from the delay necessary to present a case to a grand jury. Congress certainly was aware of this, and if it was its intent automatically to create the second § 3142(e) presumption in all cases where a person was charged by indictment with one of the enumerated offenses, it plainly could have said so.

In summary, although the Act may be construed to permit reliance on the indictment as the basis for a probable cause finding under § 3142(e), the Act is at best ambiguous in that regard. Since the legislative history indicates the contrary to have been the intent of the drafters, we believe and hold that there must be an independent factual basis for a such finding, albeit not constrained in that regard by the rules concerning admissibility of evidence in criminal cases.

There remains one additional procedural question. Section 3142(f) provides that “the facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.”

The defendants contend that the “clear and convincing” standard applies to both of the subsection (e) presumptions. The government argues that the second presumption, at least, is triggered simply by a finding of probable cause to believe that the person committed one of the offenses enumerated in the last paragraph of (e).

A literal reading of the above-quoted language of (f) out of context with (e) would seem to favor the construction urged by the defendants. However, such a construction would nullify the “probable-cause” based presumption in (e). And, as is clear from excerpts of Senate Report 98-225 to which we have just referred, supra, the probable cause standard was considered to be an important element of the Act and was the considered and deliberate choice of the drafters.

In the second § 3142(e) presumption, a finding of the requisite probable cause gives rise to a rebuttable presumption of both “appearance” and “safety.” If nothing is offered in rebuttal, then the defendant must be detained, since (e) provides that if “... the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.” (emphasis supplied).

It is a general rule of statutory construction that a statute must be read as a whole and that “each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretations to the one section to be construed.” (footnotes citing numerous authorities omitted). Sutherland Stat. Const. § 46.05 (4th Ed.).

Subsections (e) and (f) are in conflict and will harmonize only if we read the clear and convincing evidence standard of (f) as not applying to the second presumption under (e). This appears to be a reasonable construction for at least one good reason. The judicial officer, if he utilizes the second presumption, is not required to make a specific factual finding, as such, as. to “appearance” or “safety.” Instead, once he makes the factual finding that there is probable cause to believe that the defendant has committed one of the enumerated offenses, then the rebuttable presumption supplies the factual “finding” that the defendant presents a risk of flight or of danger. And if the defendant then produces no information or evidence, as we have indicated previously herein, the judicial officer need make no additional finding and must detain the defendant prior to trial.

Accordingly, I conclude that the clear and convincing standard of (f) does not apply to the second presumption of (e). Since the government is not relying on the first presumption under § 3142(e), we make no ruling as to it.

Applying the foregoing to the two defendants who have sought revocation or modification of the magistrate’s detention orders, I find as follows:

Defendant Allen

After an independent review of the transcript of the hearing before Magistrate Sensenich of February 20 and 21, 1985, along with my assessment of the information adduced by the parties at the hearing before me on March 7, 1985,1 find as to the defendant Allen that no condition or combination of conditions reasonably will assure his appearance as required or the safety of other persons or the safety of the community.

The written findings of fact made by Magistrate Sensenich in the Order of Detention Pending Trial which the defendant Allen seeks to have revoked or amended are based on the testimony of Drug Enforcement Agent Larry J. Carroll, Lt. Joseph R. Greco of the Donora, Pa. police department, James Brice, patrolman of the Donora, Pa. police department, and certain documents and photographs introduced through those witnesses.

I advised counsel at the hearing before me that the previous testimony would be reviewed by me. I have read the transcript of the testimony of those witnesses and examined the documents introduced at the hearing before Magistrate Sensenich. Based upon that, I adopt the findings of fact of Magistrate Sensenich and incorporate them herein by reference thereto.

In addition, at the hearing before me the government offered the testimony of Warren J. Ciabattoni, a trooper with the Pennsylvania State Police, and recalled defense witness Glenn E. Davis. Based on the foregoing, and drawing no references of fact from the return of the indictment as such, I conclude that there is probable cause to believe that defendant William Emanuel Allen has committed a violation of the Controlled Substances Act, to-wit, a violation of 21 U.S.C. § 841(a)(1) in that he did possess with the intent to distribute a quantity of cocaine, a Schedule II narcotic drug controlled substance for which offense a maximum term of imprisonment of ten years or more is prescribed.

I find that the defendant has not rebutted the presumption set forth in 18 U.S.C. § 3142(e). I find as to § 3142(g) that no conditions of release will reasonably assure his appearance or the safety of others or the community, because I find in addition to the § 3142(e) presumption:

(1) The defendant has ties and connections with individuals involved in the drug trade abroad, including Thailand, the Philipines, and Columbia.
(2) The defendant has a history of flight to avoid apprehension for motor vehicle violations such as driving while under suspension.
(3) Firearms were found in defendant’s office desk. The defendant is a convicted felon and not permitted to possess weapons.
(4) The defendant is a physically strong person who has not hesitated in the past to use his size and strength as well as firearms to assault and threaten those who have offended him.
(5) The offenses with which the defendant stands charged carry severe penalties, including life imprisonment, which present a serious temptation to flee and/or to eliminate witnesses.

Accordingly, the defendant Allen’s motion to revoke or amend the detention previously entered by Magistrate Sensenich will be denied and that order as supplemented by the aforesaid is incorporated herein by reference and will remain in full force.

Defendant Sberna

As to defendant Sberna, after independently reviewing the transcripts of the hearing before Magistrate Sensenich and the information adduced by the parties at the hearing before me on March 7, 1985, I find that:

(1) The government has not demonstrated that there is probable cause to believe that the defendant committed one of the enumerated offenses set forth under the second presumption of (e), and
(2) After review of the factors set forth in § 3142(g), I find that there are imposable conditions or combinations thereof which reasonably will assure the defendant’s appearance as required and the safety of any other person and the community.

The magistrate made two groups of “Alternative Findings.” Two findings were made in the first group. Finding number 1 was: “There is probable cause based on the grand jury indictment to believe that the defendant has committed an offense for which a maximum term of ten years or more is prescribed in 21 U.S.C., Section 841(a)(1) and 846.”

The second finding was that “the defendant has not rebutted the presumption established by finding 1....”

Since finding 1 is based solely on the grand jury indictment, that finding is rejected for the reasons previously stated herein. Finding number 2 is likewise rejected, since it does not arise in the absence of finding 1.

The magistrate’s second group of “Alternative Findings” consisted of seven separately numbered findings. These are based on evidence adduced at the hearing, and I adopt them fully and incorporate them herein by reference thereto.

On the basis of the information and evidence adduced at the hearing before Magistrate Sensenich and that which I heard, I conclude that there is no probable cause to believe that defendant Sberna has committed a violation of the Controlled Substance Act, 21 U.S.C. § 841(a)(1). The government has presented no evidence which indicates that the defendant possessed with intent to distribute a quantity of any drug for which a maximum term of imprisonment of ten years or more is prescribed.

At the conclusion of the hearing before me, I ordered government counsel to specify in a brief the evidence or information, other than the indictment, which it believed was a sufficient basis for a finding of the requisite probable cause relative to Sberna. The brief subsequently submitted by the government is silent in that regard. Nothing is offered as sufficient in the absence of the indictment. The government attempts to demonstrate probable cause by arguing that defendant Sberna associated with the defendant Allen and was known to have personal and financial ties with him. However, there is no information or evidence before us of any drug dealings between the two defendants or that any drugs or drug paraphernalia were ever found on defendant Sberna’s person or property. There also was no information or evidence that the defendant Sberna had any ties or connections with other individuals involved in drug trafficking here or abroad. The government argues that although drugs were found in the defendant Allen’s office and not on Sberna’s person or property, the drugs and related scales and packaging material were found in the vicinity of a firearm registered to the defendant Sberna. That evidence and information would be insufficient even to justify the issuance of an arrest or search warrant as to Sberna, and, we believe, a fortiari is insufficient to justify the detention of him prior to trial. See e.g. Gerstein v. Pugh, supra.

Accordingly, I find no probable cause to believe that the defendant Sberna committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substance Act, and find no other basis upon which to conclude under the Act that no condition or combination of conditions reasonably will assure his presence as required or the safety of others or the community.

An appropriate order will follow.

ORDER OF COURT

AND NOW, this 12th day of March, 1985, in accordance with the memorandum opinion filed this day, IT IS ORDERED that defendant William Emanuel Allen’s motion to revoke or amend order of detention be, and the same hereby is, denied; and,

IT IS FURTHER ORDERED that the pretrial detention order of defendant Anthony Sberna be, and the same hereby is, revoked and that the defendant Sberna be released subject to the following terms and conditions:

(1) That the defendant provide bail in the amount of $25,000 own recognizance; and,
(2) That the defendant not commit a Federal, State or local crime; and,
(3) That the defendant attempt to obtain lawful gainful employment; and,
(4) That the defendant not leave the jurisdiction and not appear at or frequent the area of 221 Fifth Street, Donora, Pa., otherwise known as Columbo Productions, Inc. and that he not associate with any known sellers or users of narcotics; and,
(5) That the defendant report to the United States Probation Office twice a week, on Monday and Friday, by local telephone call commencing Friday, March 15, 1985, and continuing until further order of court; and,
(6) That the defendant refrain from possessing any firearms, destructive devices, or other dangerous weapons; and,
(7) That the defendant refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802), without prescription by a licensed medical practitioner; and,
(8) Any failure by the defendant to conform to any of the conditions of bail will result in revocation of bail and an order for his pretrial detention.

IT IS FURTHER ORDERED that the defendant is advised that if he is convicted of an offense committed while released pursuant to this order, he shall be sentenced, in addition to the sentence prescribed for that offense to the following:

a) A term .of imprisonment of not less than two (2) years and not more than ten (10) years if the offense is a felony; or,
b) A term of imprisonment of not less than ninety (90) days and not more than one (1) year of the offense is a misdemeanor.

A term of imprisonment imposed pursuant to the above provisions shall be consecutive to any other sentence of imprisonment.

IT IS FURTHER ORDERED that the defendant is advised that if the defendant violates any other conditions of his release, the defendant shall be subject to a revocation of his release, an order of detention, a prosecution for contempt of court, and the immediate issuance of a warrant for the defendant’s arrest;

IT IS FURTHER ORDERED that the defendant be brought by the United States Marshal before Magistrate Ila Jeanne Sensenich on March 13, 1985, at 1:30 P.M., who will fully advise the defendant of the matters contained in 18 U.S.C. § 3142(h)(2)(C).

      . A third defendant also was charged in the drug conspiracy count, but no matters involving that defendant presently are before the court.


source: Caselaw Access Project

author: HALTOM, District Judge.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ONA CORPORATION, A DIVISION OF ONAN CORPORATION, Respondent. International Union, United Automobile, Aerospace and Agricultural Workers of America, Amicus Curiae.
    No. CV 84-HM-5641-NE.
    United States District Court, N.D. Alabama, Northeastern Division.
    March 12, 1985.

      Judith M. Anderson, Thaddeus R. Sobieski, N.L.R.B., Atlanta, Ga., for petitioner.
    James D. Fagan, Jr., Stanford, Fagan & Giolito, Atlanta, Ga., Joseph E. Battle, Huntsville, Ala., for amicus curiae.
    John J. Coleman, J. Richard Walton, Braxton Schell, Bradley, Arant, Rose & White, Birmingham, Ala., for respondent.
   MEMORANDUM OF DECISION

HALTOM, District Judge.

This is an action brought by the National Labor Relations Board (the “Board”) through its Regional Director pursuant to Section 100 of the National Labor Relations Act (the “Act”), 29 U.S.C. § 160C]), for temporary injunctive relief pending a final decision by the Board in Case 10-CA-20287 on unfair labor practice charges filed against Ona Corporation, a division of Onan Corporation (“Ona Corporation”). The Petition for Injunction herein was filed after issuance of a complaint by the Board based upon charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”). The Board complaint alleges in essence that Ona Corporation has engaged in, and is engaging in conduct violative of Sections 8(a)(1) and 8(a)(3) of the Act in that “on or about June 18, 1984, it discharged its employee Roger Armstrong because of his membership in and activities on behalf of [UAW] and because he engaged in concerted activities with other employees for the purposes of collective bargaining ... ”. The Petition for Injunction before this Court is predicated on the Board’s conclusion that there is reasonable cause to believe that Ona Corporation has engaged in, and is engaging in, the unfair labor practices alleged in the complaint and that temporary injunctive relief in this case, including the reinstatement of Roger Armstrong, is just and proper.

Upon the issuance of an Order To Show Cause why injunctive relief, should not be granted as prayed for in the Board’s Petition for Injunction, Respondent Ona Corporation filed its answer herein. Respondent’s answer admits the allegations of Paragraph 3 of the Petition for Injunction that on or about June 20 and July 16, 1984 UAW filed a charge and amended charge respectively in Case 10-CA-20287 alleging violation by Ona Corporation of Sections 8(a)(1) and 8(a)(3) of the Act, admits the allegations of Paragraph 4 of the Petition that following investigation and pursuant to Section 10(b) of the Act the complaint of the Board issued in Case 10-CA-20287 charging that Ona Corporation has violated and is violating Sections 8(a)(1) and 8(a)(3) of the Act, denies that the Board has reasonable cause to believe the allegations of the complaint issued by the Board attached as Exhibit 2 to the Petition, denies that Ona Corporation has engaged or is engaged in violation of Sections 8(a)(1) and 8(a)(3) of the Act as alleged in the Board’s complaint, and specifically denies that injunctive relief is reasonable or appropriate in this case. Except as specifically admitted in its answer to the Petition for Injunction Ona Corporation specifically denies each of the factual allegations of the Petition.

An evidentiary hearing on the issues raised by the Petition of the Board and the answer of Respondent Ona Corporation was held in the courtroom of the Federal Courthouse in Huntsville, Alabama on September 12, 1984. The Motion To Intervene by UAW was denied. However, UAW’s alternative motion to appear herein as amicus curiae was granted. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses and to present evidence bearing upon the issues. Proposed findings of fact and conclusions of law requested by the Court were submitted by counsel for the parties herein on October 1 and 2, 1984. As authorized by Rule 52(a), Fed.R.Civ.P., the Court in this memorandum of decision incorporates its findings of fact specially and states separately its conclusions of law thereon.

FINDINGS OF FACT

1. Respondent Ona Corporation, a division of Onan Corporation, is, and has been at all times material herein, a Delaware corporation, with an office and place of business located at Huntsville, Alabama, where it is engaged in the manufacture of gasoline and diesel engines and generators. At the time of the commission of the alleged unfair labor practices on June 18, 1984 which precipitated this litigation Ona Corporation employed approximately 700 workers at its Huntsville plant.

2. Since early April 1979 the International Union, United Automobile, Aerospace and Implement Workers of America (“UAW”) has engaged in a hotly contested effort to organize the Huntsville maintenance and production employees of Ona Corporation with Roger Armstrong, a long time Ona employee, being one of the primary UAW supporters in the Ona plant from the inception of the UAW organizational activities. Armstrong has shown his support of UAW through his solicitation of authorization and membership cards, distribution of UAW literature and paraphernalia and testimony at Board hearings. His termination of employment by Ona on June 18, 1974 without doubt removed from the plant one of the inside linchpins of UAW’s organizational efforts at such location.

3. Ona Corporation, the respondent in this case, was also respondent to a complaint which was the subject of the Board’s Decision and Order dated May 28, 1982, and reported at 261 NLRB 1378 (1982). In this earlier case (referred to hereafter as Ona I), Ona Corporation, the present respondent, was found guilty of a series of individual violations of Section 8(a)(1) of the Act prior to and following a Board conducted election on June 22, 1979 at Ona’s Huntsville plant facility involving International Union, UAW. In its Decision the Board concluded that Ona Corporation had committed 59 unfair labor practices during the ten-week period surrounding the Board election. Seventeen of Ona’s officials, from top ranking Plant Manager Don Fore to the front-line supervisors, were found to have engaged in this employer’s unlawful anti-union campaign. Ona’s illegal actions were deemed to be of sufficient gravity that the Board set aside the results of the election and entered an order directing Ona to bargain with UAW. The Board found that during UAW’s organizing campaign, Ona “embarked on a course of unlawful conduct calculated to destroy any majority support the Union may achieve.” 261 NLRB at 1381. Part of this unlawful conduct involved threats made by Plant Manager Don Fore to move the Company’s new diesel line out of Huntsville if UAW won the election. The Board concluded that Fore’s threats regarding the diesel line in and of themselves had a “lingering pernicious effect” on the employees, and were of such a nature as to make “the holding of a fair election or a rerun election impossible.” The Board therefore concluded that a bargaining order was necessary to protect the employees’ rights.

4. Shortly after the Board’s decision was issued on May 28, 1982 referred to in Finding of Fact No. 3, a union membership campaign was again initiated by UAW with respect to Ona Corporation’s Huntsville plant. The summer 1982 UAW membership campaign at respondent’s Huntsville plant resulted in additional charges by UAW of unfair labor practices allegedly committed by Ona during such campaign. Hearings were conducted on March 15 and 16, 1983 at Huntsville, Alabama by Administrative Law Judge Pargen Robertson who on June 30, 1983 found and determined that Ona had continued to engage in unfair labor practices: (1) by refusing to bargain with UAW over certain employee grievances; and (2) by maintaining documents in an employee’s personnel file identifying the employee as a “union pusher.” The Administrative Law Judge’s (“ALJ”) decision was affirmed by the Board on April 30, 1984. 270 NLRB 69 (1984) (iOna II).

5. In 1983 Ona Corporation continued to resist UAW’s organizational efforts at Ona’s Huntsville plant, which resulted in new and additional charges by UAW of unfair labor practices allegedly committed by respondent. In a Decision dated November 30, 1983 Administrative Law Judge William N. Cates found that Ona Corporation in 1983 initiated, sponsored, formed, assisted and dominated an employee labor organization at its Huntsville plant (designated “Employee Action Committee”) in violation of Section 8(a)(2) and (1) of the Act. Additionally, the AU found that by soliciting in 1983 through a memorandum grievances from its employees concerning their jobs and working conditions and promising its employees that action would be taken regarding those grievances at a time Ona had knowledge of the Union’s ongoing campaign, respondent Ona had violated Section 8(a)(1) of the Act. Judge Cate’s decision is on appeal to the Board and is entitled Ona Corporation, A Division of Onan Corporation, JD-(Atl)-107-83 (1984) (Ona III).

6. On April 9, 1984 the United States Court of Appeals, Eleventh Circuit, handed down its decision in Ona I, Ona Corporation v. N.L.R.B., 729 F.2d 713, enforcing in part, denying in part and remanding the case to the Board for further proceedings consistent with its opinion. While the Eleventh Circuit in this cited decision denied enforcement of the Board’s bargaining order (requiring Ona to bargain with UAW without an election) and granted enforcement to that part of the Board’s order which dismissed from the complaint all allegations that Ona violated Section 8(a)(3) of the Act when it discharged Dorothy Wilson, the Eleventh Circuit also enforced and upheld the Board’s findings that certain employees of Ona Corporation violated Section 8(a)(1) of the Act. Judgment was entered by the Eleventh Circuit Court of Appeals on May 24, 1984 and issued as a mandate on June 21, 1984. The cease and desist portion of this Eleventh Circuit Court judgment reads in pertinent part as follows:

“It is hereby

ORDERED AND ADJUDGED by the Court that the Petitioner, Ona Corporation, Madison, Alabama, its officers, successors and assigns, shall:

1. Cease and desist from:

(a) Interrogating employees about membership in, activities on behalf of, or desires concerning representation by International Union, United Automobile Aerospace and Agricultural Workers of America (UAW) (hereinafter called the Union).

(b) Threatening employees with loss of promotions if they join, or engage in activities on behalf of, the Union.

(c) Threatening its employees with discharge if they join, or engage in activities on behalf of, the Union.

(d) Creating among its employees the impression that it is maintaining surveillance of their activities on behalf of the Union.

(e) Threatening employees with loss of benefits if they designate or select the Union as their collective bargaining representative.

(f) Threatening its employees with unspecified reprisals if they become or remain members of the Union or give assistance or support to it.

(g) Threatening employees that they would no longer be able to bring their grievances directly to management if they designate or select the Union as their collective-bargaining representative.

(h) Threatening employees that it will close its plant if the employees designate or select the Union as their collective-bargaining representative.

(i) Instructing its employees not to discuss the Union with fellow employees during non-working time or engaging in other protected concerted activities.

(j) Threatening employees that it would not locate its new diesel plan at its Madison, Alabama plant, or that it would not make other capital improvements in said plant, if the employees designated or selected the Union as their collective bargaining representative.

(k) Threatening to blacklist the employees if they engaged in activities on behalf of the Union.

(l) Threatening its employees with more stringent enforcement of company rules if the employees designate or select the Union as their collective-bargaining representative.

(m) Soliciting the grievances of employees in order to discourage membership in, or activities on behalf of, the Union.

(n) Threatening to restrict employee movement about the plant if the employees designate or select the Union as their collective-bargaining representative.

(o) Discriminatorily enforcing its no-solicitation and non-distributión rules in the plant in order to discourage membership in, or activities on behalf of, the Union.

(p) In any other manner interfering with, restraining or coercing employees in the exercise of rights guaranteed them by the National Labor Relations Act (hereinafter called the Act).

2. Take the following affirmative action to effectuate the policies of the Act:

(a) Post at its Madison, Alabama facility copies of the attached notice, marked ‘Appendix’. Copies of said notice, on forms provided by the Regional Director for Region 10 of the National Labor Relations Board (Atlanta, Georgia),.after being duly signed by the Petitioner’s authorized representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Petitioner to insure that said notices are not altered, defaced, or covered by any other material.

(b) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this judgment, what steps the Petitioner has taken to comply herewith.”

APPENDIX

NOTICE TO EMPLOYEES

Posted Pursuant To A Judgment of the United States Court of Appeals Granting In Part, Denying In Part and Remanding In Part An Order of The National Labor Relations Board
An Agency of the United States Government

Following a hearing before an administrative law judge, the National Labor Relations Board has found that we engaged in unfair labor practices in violation of the National Labor Relations Act, as amended. The Board has ordered us to cease and desist from such conduct and to take certain affirmative action in compliance with the Order of the Board. We hereby notify our employees that:

WE WILL NOT interrogate our employees about their membership in, activities on behalf of, or desires concerning representation by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW).

WE WILL NOT threaten our employees with loss of promotions if they join, or engage in activities on behalf of, the Union.

WE WILL NOT create among our employees the impression that we are maintaining surveillance of their activities on behalf of the Union.

WE WILL NOT threaten our employees with loss of benefits if they designate or select the Union as their collective-bargaining representative.

WE WILL NOT threaten our employees with unspecified reprisals if they become or remain members of the Union or give assistance or support to the Union.

WE WILL NOT threaten our employees that they will no longer be able to bring their grievances directly to management if they designate or select the Union as their collective-bargaining representative.

WE WILL NOT threaten our employees that we will close our Madison, Alabama plant if the employees designate or select the Union as their collective-bargaining representative.

WE WILL NOT instruct our employees not to discuss the Union with their fellow employees during nonworking time or not to engage in any other protected concerted activities.

WE WILL NOT threaten our employees that we will not locate our new diesel line at our Madison, Alabama plant, or that we will not make other capital improvements in that plant, if they designate or select the Union as their collective-bargaining representative.

WE WILL NOT threaten to blacklist our employees if they engage in activities on behalf of the Union.

WE WILL NOT threaten our employees with more stringent enforcement of company rules if the employees designate or select the Union as their collective-bargaining representative.

WE WILL NOT solicit the grievances of employees in order to discourage membership in, or activities on behalf of, the Union.

WE WILL NOT threaten to restrict employee movement about the plant if the employees designate or select the Union as their collective-bargaining representative.

WE WILL NOT discriminatorily enforce no-solicitation or no-distribution rules in the plant in order to discourage membership in, or activities on behalf of, the Union.

WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their right to engage in, or to refrain from engaging in, any and all of the activities specified in Section 7 of the Act. Those activities include the right to self-organization, to join, assist, or support unions, to bargain collectively through a representative of their own choosing, and to engage in other concerted activities for the purpose of colleetive bargaining or other mutual aid or protection.

ONAN, A DIVISION OF ONA CORPORATION

(Employer)

Dated______________ By ................................... (Representative) (Title)

7. In April 1984 following the April 9, 1984 release date of the Eleventh Circuit Court of Appeals’ decision in Ona I, UAW increased the tempo of its organizational campaign at the Ona plant in Huntsville by getting employees to sign union membership cards and by distributing union caps and T-shirts. Roger Armstrong and Ezell Whorton were the leading Ona employees involved on behalf of UAW in this increased organizational effort.

8. At a quarterly meeting in early May 1984 at the Ona plant in Huntsville attended by the president and vice-president of the Company and approximately 200 Company employees, Plant Manager Don Fore publicly stated that Ona Corporation had won on all issues in the litigation against UAW in the Eleventh Circuit Court of Appeals. Ona employee Roger Armstrong, being present at the meeting, openly challenged the accuracy of Mr. Fore’s representations.

9. Roger Armstrong was employed by respondent Ona as a layout inspector on first shift at Ona’s Huntsville plant, work hours of which begin at 6:30 A.M. and conclude at 3:30 p.m. He started work for respondent on May 12, 1976. Except for various periods when he was laid off due to lack of work, Armstrong has worked continuously for respondent since he was hired. Throughout the period of his employment Armstrong progressed through various levels of the machine operator position before being promoted to the quality assurance department. Within quality assurance Armstrong has received several raises based on merit and at the time of his discharge was receiving the top wage scale in his category. Armstrong had been a leading union activist among Ona’s employees since at least 1977. He had served as union observer in at least two Board conducted union elections, had openly sported union paraphernalia such as union hats and T-shirts, had testified against Ona in four or five unfair labor practice proceedings, had distributed union caps, T-shirts and other union paraphernalia to Ona employees during nonworking hours and had openly solicited Union authorization and Union membership cards from his fellow employees. Respondent Ona was fully aware of Armstrong’s long standing and firm support of UAW’s organizational efforts and activities at the Ona Huntsville plant and of his revitalized support of the Union effort following the April 9, 1984 decision in Ona I by the United States Court of Appeals, Eleventh Circuit.

10. While there is no direct evidence in the record showing precisely when Ona Corporation was apprised of the April 9, 1984 decision by the Eleventh Circuit Court of Appeals in Ona I, this Court by reasonable inference from the evidence adduced concludes and finds that Ona Corporation and its management staff at the Huntsville plant were fully aware of such decision and the import thereof on or before April 15, 1984.

11. On June 18, 1984 employee Roger Armstrong was fired by respondent Ona Corporation for conduct which respondent claims constituted insubordination. Armstrong arrived at work on the day in question about 6:00 A.M. carrying a sack containing UAW T-shirts. He came into the plant with Ezell Whorton, another known UAW activist. Armstrong went straight to his work area and to his workbench. He set the sack down on his workbench, with one or more loose T-shirts on top. The Union emblem was showing. Armstrong sat down and began drinking coffee. Ezell Whorton was on the other end of the workbench. Ron Polk (Ona Personnel Relations Manager), James Wallace (machine operator, first shift) and Robert Stewart (third shift inspector) were in the immediate area at this timé. Armstrong saw Polk when he (Armstrong) first entered the work area, saw Polk leave the area, talk briefly on the phone at the expeditor’s desk, and then return to Armstrong’s work area with another person. When Armstrong placed the sack containing the T-shirts on his work table, one T-shirt fell off into an ashtray. Armstrong picked the shirt up, shook the ashes off and laid the shirt back on top of the sack. About the time Armstrong put the T-shirt down, Ona Personnel Relations Manager Ron Polk walked up with Steve Todd (third shift superintendent). The two men came up to Armstrong. Ron Polk said to Armstrong: “Get that damn shit off that desk.” Armstrong replied: “Are you talking to me”? Polk pointed at the T-shirt sack and said to Armstrong: “I said get that damn shit off that desk.” Armstrong picked up the sack with the T-shirts on it and put it on his personal tool box. Armstrong then went to sit back down at the workbench. Polk came behind Armstrong, grabbed the T-shirt sack up, shoved it into Armstrong’s gut, threw the sack back on the work table, put his finger in Armstrong’s face and again told Armstrong that he (Polk) had told him (Armstrong) “to get that shit out of here.” Armstrong thereupon picked the T-shirt sack up again and told Polk that he had a legal right to have that material in the plant. Armstrong then placed the T-shirt sack back on the tool box. Ron Polk thereupon told Armstrong that he, Armstrong, was going to be guilty of insubordination if he didn’t get that “damn stuff” out of the plant. Armstrong then got his toolbox and asked Polk if Polk wanted him to put the toolbox in the aisle. Polk replied “no” and again instructed Armstrong to “get that out of here.” Armstrong then inquired of Polk if he, Polk, was counting everything from the highway this way as a work area. Polk replied: “That’s right.” Armstrong then replied: “Mr. Polk, I don’t know what to do with it then.” Armstrong had no locker in which to store the sack and T-shirts. Polk then grabbed the T-shirt sack up, put it under his arm, and told Armstrong to follow him to his office. Armstrong then inquired of Polk if he (Armstrong) could have a UAW representative there to represent him. Polk replied: “No, sir.” Armstrong testified that when Polk was telling him to remove the UAW T-shirts from his work area that Polk was screaming and hollering and cussing. Polk, Todd and Armstrong went into Ron Polk’s office. The hour was 6:15 A.M. As the three men entered Polk’s office, Polk turned to Steve Todd (third-shift superintendent) and told him to sit down and keep his damn mouth shut. Polk turned and walked out of his office. Around 6:30 P.M. Charlies Gate-wood (first shift superintendent) came into Polk’s office. Roger Armstrong advised Gatewood to get somebody to cover his (Armstrong’s) department because he (Armstrong) thought Ron Polk was going to fire him. Gatewood replied that the matter had already been taken care of. About 9:20 A.M. Ron Polk came back into the office, called Steve Todd (third shift superintendent) and Charlie Gatewood (first-shift superintendent) outside of his office for just a minute to talk to them, and then came back into his office and sat down at his desk. Polk thereupon said to Armstrong: “Mr. Armstrong, we’re to pay you for the remainder of the day throughout the day. Steve Todd and Charlie Gatewood (are) going to escort you back to your work area where you can pick up all of your personal belongings, including your toolbox. And then they’ll escort you to the guard shack. And I’ll call you later on the phone to inform you whether to return to work tomorrow morning or not.” Polk did call Armstrong about 3:30 or 4:00 o’clock that afternoon and told him that as of their conversation that morning that he (Armstrong) was terminated from Ona Corporation for insubordination.

12. The hour of 6 A.M. was Armstrong’s usual time of arrival for work at the Ona plant in Huntsville, but he did not punch in on the timeelock until some time between 6:15 A.M. and 6:30 A.M. The third shift of work ended at 6:30 A.M. and the first shift (Armstrong’s shift) began at 6:30 A.M. Armstrong and his fellow employees on a regular basis ate their breakfast in their work area prior to commencement of work at 6:30 A.M. and there is no evidence in the record that such a practice was prohibited by the respondent company. The evidence here shows that on the morning of June 18, 1984 between the hours of 6:00 A.M. and 6:30 A.M. Armstrong was inside the Ona plant and in his assigned work area eating breakfast before work as he regularly and customarily did. Admittedly at this time he had in his possession certain pro-union materials in the form of UAW T-shirts contained in a sack which he had brought into the plant that morning. However, there is no evidence in this record that Armstrong passed these T-shirts out or even attempted to pass them out. There is much evidence in this record, however, which shows without contradiction other Ona employees on numerous occasions prior to June 18, 1984 brought into the Ona plant in Huntsville and kept at their desks or work areas, even during work hours, personal items including sacks of clothing, magazines, home grown vegetables and home baked goods. Often employees bringing food into the plant arranged the food on the individual employee’s table and encouraged supervisors and co-employees to partake of the food during working hours. Some Ona employees even sold candy, radios, tools, caps, T-shirts, belts, billfolds and cosmetics inside the plant. In short, this evidentiary record shows that on and long prior to the time of Armstrong’s termination on June 18, 1984 Ona employees were permitted by their employer to possess and keep virtually all types of personal items at their work stations inside the Huntsville plant, including Union paraphernalia.

13. While the solicitation of Union membership or authorization cards has been a periodic and episodic Union activity in the Huntsville plant of Ona Corporation since the end of the 1979 organizational campaign, the evidence here shows that shortly following the issuance of the April 9, 1984 decision of the Eleventh Circuit Court of Appeals in Ona I there was renewed interest in the UAW organizational effort on the part of Ona employees. They requested UAW hats, buttons, and T-shirts. 100 to 125 hats were distributed. About 50 UAW T-shirt were handed out. In fact, there was a substantial solicitation of Union membership cards underway at the Ona Huntsville plant at the time of Roger Armstrong’s termination and Roger Armstrong was an important part of such solicitation effort along with Ezell Whorton. These two men contributed the backbone of the UAW organizational effort at Ona Corporation. In June 1984 down to June 18, 1984 (date of Armstrong’s discharge) the two men turned in approximately 25 to 26 signed Union membership cards from employees of Ona Corporation. Since Roger Armstrong’s termination on June 18, 1984 to the date of the hearing of this cause on September 12, 1984 the UAW Union had received only one signed membership card from Ona employees. Since Armstrong was fired on June 18, 1984 there have been no requests from Ona employees for UAW T-shirts, hats, buttons or Union paraphernalia of any type.

The week prior to Armstrong being fired by Ona Corporation there were approximately 80 employees throughout the Ona plant in Huntsville wearing Union (UAW) hats. The number dwindled from 80 to 5 the first week after such firing. At the time of the September 12, 1984 bench hearing only one Ona employee wore a Union (UAW) hat. Of the 22 employees in Roger Armstrong’s department 7340 there were approximately 18 employees wearing Union (UAW) hats the day prior to the firing of Armstrong, dropping to 4 the day following such firing. One employee in Armstrong’s department who had worn a UAW hat at work since UAW started organizing in 1979 stopped wearing his UAW hat about a week and one-half before the hearing, leaving only one employee in the entire plant wearing a UAW hat at the time of the hearing.

14. Prior to his discharge on June 18, 1984 Roger Armstrong had never been reprimanded or disciplined by Ona Corporation for his long continued and visible Union activities. In fact he had advanced in position at Ona, having received his most recent promotion approximately one year pri- or to the bench hearing in this case. In 1977 or 1978 an Ona supervisor did write the notation “union pusher” on a layoff slip in Armstrong’s personnel file but there is no evidence of such notation being used against Armstrong prior to the June 18, 1984 termination date.

15. The Court draws and reaches what it considers is a rational and reasonable inference from the testimony and exhibits in this case that Ona’s discharge of Roger Armstrong on June 18, 1984 has led to an appreciable and substantial diminution in Ona employee support for UAW.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and the subject matter of this proceeding and is empowered to grant injunctive relief. 29 U.S.C. § 160®.

2. The test for determining the propriety of temporary relief against a party allegedly committing unfair labor practices pending final disposition of charges by the National Labor Relations Board (Board) is whether the Board has reasonable cause to believe that unfair labor practices have occurred, and whether injunctive relief is equitably necessary or just and proper. Boire v. International Brotherhood of Teamsters, 479 F.2d 778 (5th Cir.1978); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir.1975). The first question requires the Board to sustain a minimal burden of proof, but the second demands some exercise of discretion on the part of the trial judge. Boire v. Pilot Freight Carriers, Inc., supra, at 1189.

3. Section 10(j) of the National Labor Relations Act authorizing the regional director to apply to the district court for a temporary injunction in unfair labor practice cases to preserve status quo pending NLRB procedures mandates considerable deference by the district court to the regional director’s decision to petition for temporary relief. Boire v. International Brotherhood of Teamsters, supra, at pp. 803-804.

4. In determining whether reasonable cause exists to believe that unfair labor practices have been committed, the district court need only decide that the Board’s theories of law and fact are not insubstantial or frivolous. Boire v. Teamsters, supra; Boire v. Pilot Freight Carriers Inc., supra. Respondent Ona Corporation properly concedes in brief and the Court finds from this evidentiary record that the Board, through its Regional Director, has reasonable cause to believe that the June 18, 1984 discharge of Roger A. Armstrong by Ona Corporation violated Section 8(a)(1) and (3) of the Act. The evidence here shows that Armstrong and his fellow employees on a regular basis ate their breakfast in their work area prior to commencement of work when their work shift began. There is no evidence in the record that such practice was prohibited by the Company. Thus, it appears clear that on the morning in question Armstrong was engaging in a protected activity by his mere possession of Union materials in his work area. There is no evidence that Armstrong on the morning in question distributed or attempted to distribute any Union material. Thus, there is reasonable cause to believe that Armstrong was protected under the Act from retaliation due to his possession of the Union T-shirts on the occasion in question and that any attempt to deprive him of this protected right was an unfair labor practice.

The record also supports reasonable cause to believe that Armstrong’s discharge violated the Act on the alternative theory that the Company enforced its rules against Armstrong in a discriminatory manner. See Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2nd Cir.1980); Head Division, Amf., Inc. v. N.L.R.B., 593 F.2d 972 (10th Cir.1979); Midwest Regional Joint Board v. N.L.R.B., 564 F.2d 434 (D.C.Cir.1977). The uncontradicted evidence shows that Ona employees have been permitted to keep at their work stations sacks of clothing and food (Tr. 62, 64, 66), magazines (Tr. 67), home baked goods (Tr. 67) , candy (Tr. 67), radios (Tr. 68), tools (Tr. 68) , caps (Tr. 68), T-shirts (Tr. 69), belts (Tr. 69) , and other personal items (Tr. 69). The uncontradicted evidence further shows that on numerous occasions prior to June 18, 1984 that other Ona employees had Union (UAW) materials on their bodies or in their possession inside the plant in working areas during working times without being charged with infraction of Company rules.

5. The cease and desist order of May 24, 1984 entered by the Eleventh Circuit Court of Appeals in Ona I in part orders Ona to refrain from:

(o) Discriminatorily enforcing its no solicitation and no distributing rules in the plant in order to discourage membership in, or activities on behalf of, the Union.

The discharge of Armstrong on June 18, 1984 was in apparent disregard of the cease and desist order above set out, particularly in light of the admitted fact that Ona openly permitted the Employee Action Committee to distribute its literature in the work areas of Ona’s Huntsville plant (Ona III). Moreover, this unlawful conduct of Respondent in discharging Armstrong, occurred almost immediately following the Eleventh Circuit Court’s entry of its order and judgment in Ona I. As suggested by UAW’s amicus curiae brief, “The Company’s action in discharging the Union’s most vocal supporter in open defiance to the court’s order ‘speaks louder’ than- any notice that the Employer may post.”

6. This record shows that the Ona employees at the Huntsville, Alabama plant have been repeatedly subjected to proven unfair labor practices by Ona throughout UAW’s attempt to organize the Ona plant. Ona repeatedly violated Section 8(a)(1) (set out in footnote 2, ante) of the National Labor Relations Act during the ten-week period surrounding the Board conducted election on June 22, 1979. The National Labor Relations Board issued an order on May 28, 1982 affirming the AU’s findings that Ona had violated § 8(a)(1) of the Act (Ona I). On appeal to the Eleventh Circuit Court of Appeals Ona did not contest the Board’s findings that certain conduct on the part of its employees violated Section 8(a)(1) of the Act. 729 F.2d 713 at 726. An examination of the cease and desist portion of the Eleventh Circuit Court of Appeals judgment on May 24, 1984 in Ona I, ante, reveals that respondent at the outset of this bitter labor-management controversy engaged in egregious and extensive proven unfair labor practices. Thereafter, this respondent, upon rejuvenation of UAW’s organizing efforts in the spring of 1983, set up an illegal 8(a)(2) labor organization in an obvious effort to erode UAW’s support among the Ona employees. Administrative Law Judge Cates has entered an order finding this conduct to be violative of §§ 8(a)(1) and (2) of the Act (Ona III). Similarly, this employer has been found guilty of maintaining documents in Roger Armstrong’s personnel file identifying him as a “union pusher.” This conduct by Ona has been found by the Board to constitute an 8(a)(1) violation (Ona II). Finally, when UAW again attempted to revive its efforts to organize the Ona employees at Huntsville following the Eleventh Circuit’s encouraging April 9, 1984 decision in Ona I, this respondent has discharged UAW’s leading union activist at its Huntsville plant for a patently unlawful reason. The employees at Ona have undoubtedly taken this discharge of the Union’s inside linchpin as a warning that if they choose to support and deal with the Union, as has Armstrong, they risk severe Company retaliation. Moreover, Ona’s discharge of Roger Armstrong on June 18, 1984 has led to an appreciable and substantial diminution in Ona employee support for UAW (Finding of Fact 15, ante).

7. While the law of the Eleventh Circuit cautions restraint in the issuance of § 10(j) injunctions due to the extraordinary nature of the relief, it is also the law of this Circuit that § 10(j) relief is appropriate when an employee or union has committed such egregious unfair labor practices that any final order of the Board will be meaningless or so devoid of force that the remedial purposes of the Act will be frustrated. Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1192 (5th Cir.1975). Under the circumstances of this case, the revival of UAW’s organizing campaign at the Ona plant in Huntsville will be virtually impossible unless Respondent’s employees are given an affirmative signal that further union activity will not cause the kind of Company retaliation that has occurred in the past. Maintenance of the status quo is at least one consideration that should enter the § 10(j) equation. Id. at 1193. On the basis of this record, which paints a background picture of massive and coercive unfair labor practices committed by respondent throughout UAW’s efforts to organize the maintenance and production employees of Ona Corporation, this Court concludes and finds that respondent's action in unlawfully discharging Roger Armstrong was egregious conduct committed by respondent for the deliberate purpose of stamping out union support among its employees. In this particular factual situation, the reinstatement of an unlawfully discharged union supporter, namely Roger Armstrong, is clearly “just and proper” and is equitably necessary to restore the status quo. Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2nd Cir.1980); Boire v. Pilot Freight Carriers, Inc., supra. Absent injunctive relief, the basic remedial purpose of the Act might be frustrated in the instant case. It is therefore necessary that employee Roger Armstrong be forthwith reinstated by the Respondent Ona Corporation pending resolution of the matter by the Board.

An appropriate injunctive order will issue requiring Roger Armstrong’s immediate and full reinstatement by respondent to his former position, or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges. Mr. Armstrong is due to be reinstated at the wage and fringe benefit levels at which he would now be if he had not been discharged. Back pay is a form of final relief and it should be for the Board to decide whether it is appropriate in this case.

The Court’s injunctive order in this case will further provide that pending the final disposition of the matters herein involved pending before the Board, that respondent, its officers, representatives, agents, successors and assigns be enjoined and restrained from commission, continuation or repetition of any acts in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

      . 29 U.S.C. § 160(j) provides:
      The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

      . Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), makes it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights, inter alia, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

      . Section 8(a)(3), 29 U.S.C. § 158(a)(3) (1976), provides that:
      (a) It shall be an unfair labor practice for an employer ...
      (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.
      An employer violates this section when it discharges an employee because of his union activities.

      . The Board also found that Ona violated Section 8(a)(1) of the Act by coercively interrogating employees about union activities and sympathies; threatening employees with loss of promotion if they join or support the Union; threatening to discharge employees if they join or support the Union; creating among its employees the impression that it is maintaining surveillance of their activities on behalf of the Union; threatening the employees with loss of benefits if they designate or select the Union as their collective-bargaining representative; threatening its employees with unspecified reprisals if they become or remain Union members or give support to the Union; threatening employees that they would no longer be able to bring their grievances directly to management if they select the Union; threatening employees that the Company will close the plant if they select the Union as their bargaining representative; instructing its employees not to discuss the Union with fellow employees during non-working time; threatening employees that it would not make capital improvements at the plant if the employees select the Union as their bargaining representative; threatening to blacklist employees if they engage in activities on behalf of the Union; threatening its employees with more stringent enforcement of Company rules if they select the Union as their representatives; soliciting the grievances of employees in order to discourage activities on behalf of the Union; threatening to restrict employee movement about the plant if the Union won the election; discriminatorily enforcing its no-solicitation distribution rules in the plant in order to discourage union membership.

      . On September 12, 1982, UAW filed a petition in the United States District of Columbia Circuit for review of a portion of the Board’s Order, 261 NLRB 1378 (1982). On October 1, 1982 Ona filed a petition in the Eleventh Circuit Court of Appeals for review of the Board’s Order. On December 14, 1982 the Board filed a cross-application for enforcement of its Decision and Order. On February 1, 1983 all petitions relating to the Board’s Decision (261 NLRB 1378) were transferred to the Eleventh Circuit Court of Appeals.

      . Roger Armstrong, who is the alleged discriminatee in the 10(j) case herein, is the employee in whose personnel file was the "union pusher” entry.

      . Actually, Ona did not in its appeal in the Eleventh Circuit contest these unfair labor practice findings of the Board.

      . This notice marked "Appendix” is set out verbatim immediately following the Eleventh Circuit Court cease and desist order.

       Obviously incorrect. The correct name of the employer is “Ona Corporation, a Division of Onan Corporation.”

      . Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are binding upon the district courts in the Eleventh Circuit unless and until they are overruled by the Eleventh Circuit sitting en banc. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).


author: HAIGHT, District Judge:

text:
    UNITED STATES of America, v. Paul CAMPO, Defendant.
    No. 83 Cr. 243-CSH.
    United States District Court, S.D. New York.
    March 12, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City, for U.S.; Martin J. Auerbach, Asst. U.S. Atty., of counsel.
    Arthur J. Viviani, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Defendant was convicted of violating the Hobbs Act, 18 U.S.C. § 1951, following a jury trial which commenced on January 14, 1985. A previous conviction was reversed on appeal, and the case was remanded for a new trial. United States v. Campo, 744 F.2d 944 (2d Cir.1984). Following the retrial and conviction, defendant now moves for a judgment of acquittal pursuant to Rule 29(c), Fed.R.Crim.P.

The statute under which defendant was convicted proscribes “extortion,” defined in part as “the obtaining of property from another ... under color of official right.” 18 U.S.C. § 1951(b)(2). Defendant, a police officer, accepted money while on duty. In United States v. O’Grady, 742 F.2d 682 (2d Cir.1984), the en banc Court of Appeals rejected the view that “the mere acceptance of benefits by a public official is extortion ... [even though] the official knew that his office was the motivation behind the giving of the benefits.” 742 F.2d at 687. Defendant asserts that the evidence at trial demonstrated at most nothing more than this mere acceptance and moves for acquittal.

As noted, the O’Grady court held that the government must show more than mere acceptance of benefits by a public official to demonstrate a Hobbs Act violation. Instead, it must be shown that the official used his office in such a way as to induce the payments. 742 F.2d at 688; see also United States v. Margiotta, 688 F.2d 108, 138 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). The offense “begins with the public official, not with the gratuitous actions of another.” O’Grady, supra, 742 F.2d at 691.

The majority opinion in O’Grady cited two methods for demonstrating inducement: “[p]roof of a request, demand, or solicitation, no matter how subtle” and “proof of a quid pro quo.’’ 742 F.2d at 691. In an opinion which held the support of a majority of the en banc panel’s judges, although it was not the opinion- of the majority, Judge Pierce suggested a third method for demonstrating inducement: the inference of inducement may be drawn from “a finding of repeated acceptances over a period of time of substantial benefits.... [T]he repeated acceptances of such benefits could, although it need not necessarily, constitute a communicative act amounting to inducement by implication.” 742 F.2d at 694 (Pierce, J., concurring). The Campo panel cited this test approvingly. Campo, supra, 744 F.2d at 946. The government contends that the jury could properly have convicted under any of these tests.

From the evidence viewed most favorably to the government, United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984), the jury could have found the following. The chief bouncer at a nightclub located in Campo’s precinct sought special police attention for his club on weekend nights. His willingness to pay for this attention was known to some of the officers in the precinct. Campo and his partner did not ordinarily patrol the sector of the precinct in which the club was located, but they were occasionally assigned there. On one of these occasions they were flagged down by the bouncer as they passed the club on routine patrol. The bouncer explained his need for special attention, and Campo’s partner told the bouncer that they would do what they could. He warned, however, that they had other duties to perform.

The sector was a quiet one at night, and the area of the club naturally received more attention than most because it was one of the few persistent trouble spots. Campo’s partner, police officer Commisso (a witness called by the prosecution, not the defendant), testified that they did not alter their normal patrol practice in response to the bouncer’s request, but they evidently satisfied him, for near the end of their shift he flagged them down again and, when the patrol car window was rolled down, dropped fifty dollars into the front seat. After discussion, the officers kept the money.

On subsequent occasions on which they patrolled the club’s sector on weekend nights, Commisso testified that they again did not alter their normal patrol practice. However, they did make a point of driving by the club near its closing time in expectation of receiving a payment. In order to collect the payments, the officers stopped in front of the club and waited for the bouncer to deliver the money. After several such payments the officers voluntarily decided to stop accepting the payoffs, but they returned none of them.

The test under Rule 29(c) is whether on the evidence presented “a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” United States v. Lieberman, 637 F.2d 95, 104 (2d Cir.1980). The issue on this motion is whether the jury could fairly have concluded beyond a reasonable doubt that by his actions Campo induced or caused the payments which he and his partner accepted from the bouncer. As noted, the government contends that inducement could be found on any of the three grounds approved by the Court of Appeals.

It is arguable that the jury could fairly have found a quid pro quo. Although Campo’s partner denied that the officers altered their normal patrol practices to accommodate the bouncer, there was at least one time when he denied them payment because he thought that they had not given him adequate service. Plainly he thought he was being given a quid pro quo. And the contrasting evidence of payment tendered on most occasions but withheld on a particular occasion would support an inference that, contrary to Commisso’s defensive protestations, the officers gave special attention to the club.

It is not necessary, however, to resolve the issue whether the jury could have found on this evidence an actual or offered quid pro quo. That is because the jury could fairly have inferred that the payments were induced by the behavior actually admitted by Campo’s partner. There is always the risk of an appearance of coercion when police officers accept payments from private citizens for actions ostensibly within their official duties. The risk is that it may begin to appear, as the bouncer apparently believed, that the police protection is provided in return for the payments. Conversely, of course, the benefits may begin to seem a necessary prerequisite to the continuation of the police service. It is this effect to which Judge Pierce referred when he noted in O’Grady that “the jury could find that such continued acceptances of unwarranted benefits served to communicate a message inducing such benefits....” 742 F.2d at 694 (Pierce, J., concurring). Even if it is clear that the payments were initially given freely, they may come to be viewed as necessary to secure the services provided.

The evidence at trial would fairly support the inference that an effect of this sort was operating here. It was clear that the bouncer thought he was paying for the officers’ services. When they performed satisfactorily, he paid. When they did not, he did not. Although there is no direct evidence that the officers, by their words or actions, created this perception in the bouncer’s mind ab initio, the jury could fairly have found that they reinforced that perception and, ultimately, became its source. First, the officers collected their money in a proprietary manner. Apparently without prearrangement they began to stop by with the sole purpose of collecting the money. The implication was that they expected it. Second, once the bouncer clearly communicated to the officers his belief that the payments were not gratuitous but were given for services, the officers not only did not disabuse him of this notion but continued to collect the payments.

Even if the jury did not infer from this that, contrary to Commisso’s testimony, the officers were in fact providing a quid pro quo, they could readily have concluded that the bouncer continued to make payments because this behavior caused him to believe that the officers expected him to pay if they were to maintain the prevailing level of police assistance. If the officers caused him to believe that a quid pro quo was being offered or delivered, and payments were made because of this belief, a Hobbs Act violation occurred. The jury could fairly have concluded that, for the reasons stated, these officers through their behavior engendered such a belief.

Defendant argues that these payments were too small to have constituted the “substantial benefits” to which Judge Pierce referred. Although, as defendant points out, the benefits were small compared to those in O’Grady, the jury could readily have found them to satisfy Judge Pierce’s definition of “substantial”—that is, “benefits of a nature and magnitude which reasonably could affect a public official’s exercise of his or her duties.” 742 F.2d at 694. One of Campo’s fellow officers testified that for the same amount of money he was willing to abandon his normal patrol in favor of babysitting the club. Even Commisso testified that he and Campo were pleasantly surprised at the size of the payments. There was abundant evidence from which the jury could find substantiality.

Defendant also notes that some “wrongful use” of office must be shown to have induced the benefits under O’Grady. He argues that this requires some type of quid pro quo, such as altering normal patrol patterns, or a request or demand for payments. As noted, Campo’s partner denied both. However, it must be recognized, as Judge Pierce implicitly indicated, that the acceptance of money in return for the performance of official duties can itself be a wrongful use of office if the circumstances surrounding the acceptance create the impression that such payments are expected. The repeated acceptance becomes, in effect, a demand for more.

At trial the example of the postman accepting Christmas tips was debated. Plainly a postman who finds a tip-containing card in the mailbox and quietly leaves commits no Hobbs Act violation. However, if, having been given a Christmas tip accompanied by a card on which is written “Please try and keep the mail dry,” he develops a habit of occasionally standing on the doorstep after delivering the mail with an expectant look on his face until given further tips, he may well violate the Act. This is true even if he would have kept the mail dry without being paid and even if on a few occasions an irate home owner sends him away empty-handed because recently the mail had been soggy. The focus must be on the totality of the circumstances and the impression which the postman’s behavior creates in those circumstances. If he causes mail recipients to believe he expects further tips in return for continued good service, even though he believes in good faith that the tips are wholly voluntary, he has induced the tips and violated the Act. The public official bears the risk that his repeated acceptance of what he believes to be gratuities may become coercive.

On the evidence presented the jury could fairly have concluded beyond a reasonable doubt that the circumstances under which the officers collected the payments and their manner of repeatedly collecting them induced the bouncer to continue to make them. There is no ground for entering a judgment of acquittal. The motion is denied.

It is SO ORDERED.