*1 ground interpretation scope fear that the interview will This of the of sec- to employ- adversely tion 7 is consistent our affect his continued with decision working agrees conditions.” Texaco and the conclusions ment, or even Fourth and Seventh Circuits. (footnote omitted). F.2d at 1024 Enforcement denied. hinges The crux of this thus on a interpretation proper of the of section 7 argu- The Board centers its NLRB.1 language guaranteeing em- ment on the right ployees for to act concert right protection. This
mutual aid and contends, employee
triggered, it when
being basis interviewed has a reasonable believing job jeopardy. that his is in DAVIS,Plaintiff- James denial of re- it concludes that a Thus Appellee, point quested representation con- at 8(a)(1).2 section - violation stitutes CRAVEN,Defendant Walter E. disagree. Appellant. No. 71-2813. purpose of sec While a basic engage employees tion allow to Appeals, States Court for their mutual aid concerted activities Ninth Circuit. protection, a need does arise such Sept. 1973. investigatory at an interview. To extend scope protection of the to such Act’s preliminary an em contacts between - ployee employer and his would be to interpretation
apply an overbroad to sec
tion 7. We follow Seventh Circuit’s Mobil, supra,,
decision in but find it
unnecessary approve time or (see disapprove part great placed empha pressure on the economic function of sis investiga section 7. that an We believe premature
tory interview would be stage requirement at which to invoke a representation in
of union the absence purpose of the
of some that the merely to facts was not elicit
interview concerning employee to im conduct but
pose disciplinary the em measures grievance hearings
ployee later so that put merely the em the seal on would prejudgment.
ployer’s requiring NLRA, agreement § be affected 1. Section 7 of U.S.C.A. membership organization provides: in a con- labor employment Employees right in sec- have the to self-or- dition of as authorized shall (3) ganization, form, join, 158(a) labor title. or assist tion of this collectively through organizations, bargain choosing, 158(a)(1) representatives 8(a)(1), their own 29 U.S.C.A. § Section prac- provides engage in activities for it shall be an unfair labor other concerted with, bargaining employer, purpose re- or other “to interfere of collective tice for an protection, employees have in the exercise and shall also strain or coerce mutual aid right rights guaranteed in of this or all of such section 157 to refrain right except to the extent that such title [section 7].” activities *2 first-degree
ing robbery for sentence intent to commit mur- assault with der.
At the close of Davis’ trial court, said: Court, “It of this based on the evidence that we have case, guilt heard in this Defendant case has been proved beyond doubt as to reasonable each counts the Indictment. of the your you I would caution it is right your duty to exercise the judgment independence same weighing Judge’s comments on you are to exer- entitled evidence testimony weighing cise in arguments of coun- and the witnesses sel. you keep in
“You will
mind
judges
exclusive
questions
and of all
the witnesses
you.
au-
submitted
Such
facts
Judge
thority
has to ex-
as the trial
thoughts
personal
press
on
to the sole
matters is confined
these
arriving
aiding you
purpose
at a
may not
and is
be used
verdict and
impose his
in this
used
ease
Deputy
Cuneo,
Atty.
B.
Gen.
James
you
compel
verdict.”
or to
will
Younger,
Gen.,
Atty.
(argued), Evelle J.
guilty.
found Davis
Atty.
Ashby, Chief
Herbert L.
Asst.
ap
was affirmed on
conviction
James,
Atty.
Gen.,
E.
Asst.
William
Davis, 1968,
People
peal.
260 Cal.
Gen.,
Granucci,
Atty.
Deputy
Robert R.
denied,
Cal.Rptr.
App.2d 211,
35, cert.
Cal.,
Gen.,
Francisco,
for defend-
San
L.
ant-appellant.
Brock,
Citing People v.
Ed.2d 169.
(argued),
Thomas J. Graff
Environ-
Cal.Rptr. 321,
66 Cal.2d
Fund, Berkeley, Cal.,
mental
Defense
a decision of the Califor
P.2d
plaintiff-appellee.
disapproving an al
nia
ap
instruction,
most
the state
identical
CHAMBERS, MERRILL,
Before
pellate
held that
KOELSCH, BROWNING, DUNIWAY,
un
error
comment on Davis’
WRIGHT,
ELY,
HUFSTEDLER,
law, but
the error was
der California
TRASK,
CHOY, GOODWIN WAL-
harmless.
LACE,
Judges.
Circuit
unsuccessfully petitioning
After
for a
the state courts
of habeas
.writ
OPINION
corpus,
federal
Davis turned to the
DUNIWAY,
Judge:
corpus
courts.
In the federal habeas
proceedings,
held that
the district court
The State of California
(acting^
“[jjudicial
jury,
through
warden) appeals
reflect
its
from an or-
ing
granting
corpus
court’s view that the
der
habeas
a writ of
guilty,
prima
Davis,
prisoner
facie an unconstitu-
serv-
behalf
James
regard
testimony
deprivation
of wit
of the due
tional
right
jury in
nesses. He
advise the
re
fairness.”
dis-
of fundamental
facts,
agree
spect of the
but the decision of
and reverse.
fairly
issues of fact must be
left to
Craven,
jury,
Patton
v. United
we dealt with an al
276, 288,
*3
U.S.
S.Ct.
74 L.Ed.
[50
given
instruction,
most
in a
.identical
Quercia
States,
854];
v. United
289
declined to
California criminal case. We
698,
466,
U.S.
S.Ct.
77 L.Ed.
[53
deprived
hold
the
that
the instruction
1321], Although
power
the
the
of
defendant-petitioner
due
of
of
express
judge
opinion
to
as to the
present case,
ordered
law.
In the
a
exists,
the
it should
of
hearing in
to
banc
consider whether
cautiously
be exercised
and
in ex
correctly decided, or should
Gonsior was
ceptional
expression
cases.
Such
that
be overruled. We conclude
of
to
was held not warrant a
decided,
dispositive
correctly
was
of
is
upon
undisputed
reversal where
the
case,
should not
overruled.
this
be
and
and admitted facts the
vol
defendant’s
“constitutionalizing,”
We do not favor
untary conduct
to the com
amounted
imposing
states,
the re
thus
on the
by
mission of the
the
crime defined
sult reached in United
dock, 1933,
v. Mur
States
Horning
statute.
bia,
v.
of Colum
District
389,
223,
U.S.
54
290
S.Ct.
78
135,
53,
65 L.
[41 S.Ct.
L.Ed. 381.
present, however,
Ed.
The
is
185].
only Supreme
the
Murdock is
Court
case,
not such a
unless the word ‘will
brought
decision
to our attention that
fully,’
upon
in the
used
sections
which
comparable
involved a
to
instruction
founded,
the indictment was
no
means
given
judge
by
the
in Davis’ case.
(290
voluntarily.”
more than
U.S. at
Here is the instruction in Murdock:
394,
emphasis added.)
H41 eluding par- elements, second bailiff, or the three unknown to quite from what which is: ties, which different Davis’ case. happened in Murdock and in “(2) in the be should opportunity for there was no In Parker superintend- presence and under Moreover, as the it. court to correct having power in- ence of (p. 364, pointed out in Parker and advise struct them as to the law 468), statement the bailiff’s S.Ct. (em- respect facts;” them in testimony by the received amounted added.) phasis subject open court, jury, not in Quer- or cross-examination confrontation in Murdock also The Court cites safeguards trial. Con- other ica v. United done situation what was trast that by 77 L.Ed. In that S.Ct. expressed He case, p. 699, p. here. at *4 open court, evidence, opinion of in quotes the Sir Matthew Hale: accompanied di- clear and and with a it “ able, judge] he is ‘Herein [the opin- statement that it was rect emerging upon in of law the matters jury and that and did not bind the ion jury]; to direct them [the disregard jury it and the was free to also, and in matters of fact to way. other find the great light by them and assistance can Nor we read Parker as establish- weighing before his them, the evidence ing proposition any the error which observing ques- and where the go be said to “to the fundamental can lies, knot tion and and business evaluating assessing process of evi- and by them his even process. dence” is a violation of due fact; great of ad- matters which is a jump is a make. This cannot light vantage laymen.’ Hale, and reasons, job For obvious it not of is the 291, History Law, of the Common 292. provide jury a bailiff to dence, the with evi- Under the Federal Constitution the es- jury or to decide what evidence prerogatives judge sential of the trial may may hear, not or aid them in they by as were secured of the rules evaluating However, the evidence. the common law maintained the precisely is latter a role of the trial federal courts.” judge; indeed, Supreme Court has long just judicial held that this function The trial is Davis’ case did part say of the fundamental Hale and the nature of a what by jury guaranteed may by as the Fed- he do. It incon- would be gruous eral performing Constitution. to hold that error in this valuable function Fed- violates the Murdock, In the Court cites Patton v. eral Constitution.2 States, 1930, 276, 288, United 253, say Patton, judicial 50 S.Ct. 74 In This is not to L.Ed. 854. mis- page 288, by judges page 254, at the cited takes 50 can never rise to' S.Ct. by jury the Court defines a in- the level of federal as constitutional error.3 proposed E.g. 2. The new constitutional rule can- this Court. United States v. Jacobo rationally Gil, Cir., 1973, not 1213; be limited to cases such 9 as 474 F.2d United one; logical consequence Eskridge, Cir., 1972, this its is a com- States v. 9 456 F.2d plete limiting 1202, 1205-1206; States, re-examination and of the trial Louie v. United jury. Cir., 1970, Papadakis 1398, 1402; role as advisor to the For ex- 426 F.2d ample, seriously Cir., 1953, 945, can it be contended that a 208 F.2d judicial short, by comment to the effect that a defend- 954. it is no means clear questioned only casualty ant’s should be because Gonsior will be the if were personal stake in it. does not to overrule “go assessing to the fundamental evaluating evidence,” Mississippi, 1973, or that it Chambers equivalent 1038, 297, be the the “ulti- S.Ct. 35 L.Ed.2d question” Tennessee, mate in certain cases? But such Brooks v. approved regularly by comments have been L.Ed.2d do illustrate jury its up to come illus- that it was instances can occur That such jury conclusion, was Cir., Braley own by trated disregard entirely liberty the com- is no that case but ment. point v. Glad- more in here than Parker Oregon Braley den, supra, arose from Lucia v. rel. De ex United States Oregon prosecution for murder. Under McMann, F.2d law, the first de- of murder in to convict point. It not in involved likewise taking gree, re- a unanimous verdict unauthorized view of an offenses, quired. included For lesser members of the crimes some scene so 10 to 2 verdict sufficed. Parker, supra, jury. As jury. acquit to 2 a 10 informed the To by jurors reception ex of evidence judge, how- safeguards verdict also sufficed. The parte and without ever, jury tell that. More- did not point case is no more of a trial. The over, forms received while expressly re Parker, on which it than is guilty verdicts, it none for received lies. acquittal. This was done in context er- We find no federal constitutional sufficiency of an instruction ror here. conviction, reading: a 10 to 2 verdict holding unnecessary to makes it Our requires your one “Just verdict which argument consider the state’s further verdict to be unanimous all the out *5 error, if of di constitutional you.” (403 I have verdicts submitted to mension, beyond a was harmless reason 859-860.) per- F.2d at held that this California, Chapman doubt under v. able deprived Braley proc- formance of due 87 S.Ct. 17 L. ess. One of the due elements of progeny. Ed.2d and its jury in the context trial is a knowl- appealed The order from is reversed. edge by jury may acquit, that it may acquit. Braley, of how it In Judge GOODWIN, happened “constituted, said with whom that what Judges Browning, Merrill, effect, severely Ely and Huf- a adverse comment (dissenting): judge, impermissibly grave stedler concur trial judicial insinuation of attitude toward agree While I it is unwise unnec- guilt (Em- the issue innocence.” essarily status to constitutional phasis added.) context, Read in this is procedure rules of which commend- have hardly holding any comment indi- ed federal themelves one or more cating judge’s a state attitude toward courts, I believe the the issue or innocence violates least as much of a case was Braley Federal In Constitution. threat to the fairness of trial as nothing did to counteract the judicial were the errors and omissions judicial “insinuation of attitude” that constitutionally which were found be happened. Davis, found in what In Gladden, fatal such cases as Parker v. hand, making the other after 87 S.Ct. L.Ed.2d comment, Braley (1966); made it clear 420 v. Naughten (9th 1968); only comment, Cir. it was fact from time to establish to time the In Brooks court had confession. the trial “constitutionalizes” a rule that some might applied a de- think deals a Tennessee rule under which error with rather fendant, than desired witness with violation of if he to take the the constitution. Nei- stand, case, however, remotely ther so before of his own even had to do resembles testify. held that witnesses Davis case. could Chambers the court held privileges applied that a rule this violated his fifth amendment against improperly prevented difference that case self-incrimination. charged Davis case who cases and the between these two murder another man had obvious. confessed to the mur- appeared der under circumstances
H4g (9th 1972), Cupp, F.2d 845 Cir. granted, 93 S.Ct.
cert. Further, (1973). L.Ed.2d 408 overruling Craven,
by not banc, (9th en while F.2d 20 Cir. leaving piece of work
we are undone a
that will have to be done later.
Accordingly, I dissent. America, STATES
UNITED Petitioner-Appellant,
MARTIN LINEN SUPPLY COMPA- Respondents-Appellees. al., NY et 72-2796,
Nos. 72-2800. Appeals,
United States Court
Fifth Circuit.
Oct.