*1 woman rumors about false culated
employee.7 America, UNITED STATES Plaintiff-Appellee, find that the Arbiter did That along ought not, his fellow Grievant prey workers, fallen to the la BAKER, to have Dennis Adrian Defendant- frailty giving Appellant. cred a little mentable ought just loosened and rumor ence to a No. 24024. by pri irritation have added not later to Appeals United States Court of charges vately wom repeating Circuit. Ninth long, way long from employee is a Sept. 17, 1969. short, charges. Employer’s upholding In did facts held that Arbiter discharge, consequently warrant “just cause.” and lawful
it was not for provisions course, under board Of arbitration,8 the com was within it рetence to determine of the Arbiter9 merited, discharge was not
that while discipline
some less awesome was substan
order.10 This meted
tially postponing commencement making pay, bear Grievant
back thus himself. considerable loss
Rejecting the cases these attacks and
urged by Employer, as we we end this arbiter chosen
have others. “The Judge. spoken. be the That has There ends.”
Affirmed. event, legislative decision, may policy con- 7. be a involved for In what preferred imposed upon decision, tradiction, part men a as a such Texas affords any obligation law, party protection Vernon’s a written either to arbitrate subjects Code, any For herein Art. Penal 1220. which Ann. Texas agreed subjects upon provocative are for arbitra- women as less protected situations tion, may they, against such slander nor at least imputation Agree- malicious, false, decision, a of this wanton affect reformation Code, provisions thereof, chastity.” ment, nor Texas Penal or “want of the arbitrator rule Art. 1293. scope grievance favor to excеed the of the pro- agreement jurisdiction bargaining hereunder.” of his 8. The collective grievance procedure, an elaborate vides “any only and, I, 6, 10. of the in the Arbitral determination event § Article ** amicably grievance but of fitness ad- existence of misconduct is not routinely grist punishment justed provided, is manner and settled in the Dunau, supra, submitted, note writ- for the arbitral mill.” 2, shall be at same Union, request at and n. 62. to Board ten Lynchburg Foundry is See also Co. The contract Arbitration America, explicit Local United Steel Workers of 2556, Cir., 1968, decision the Arbitrator’s parties binding F.2d 259. on all “shall be final and controversy grievance in such involved Bakery Safeway 1 1. conclusively Stores v. American determine shall Confectionery I, Workers Union & Inter. § Art. same.” 3. Cir., 79, Local Dunau, supra, It note § See also 9. No basis for the attack found self-discipline judicial prescribed takes of an exact “Section 4. Thе arbi- which supra, Jones, grievance See at 879. order. to the trators shall confined *2 Judge, Kilkenny, dissented. District Arthur (argued), Brunwasser San
Francisco, Cal.,
Paul
(argued),
G. Sloan
Asst. U. S.
Atty.,
Poole,
Atty.,
Cecil F.
U. S.
San
Cal.,
Francisco,
appellee.
KOELSCH,
very
Cir Circuit in a
recent
well
reasoned
HAMLEY
Before
regula-
KILKENNY,
involving
Judges,
opinion
District
cuit
Judge.*
that an order of the
tion has concluded
contingent upon a later call is valid
Board
implied
and that such an order
Judge:
KOELSCH, Circuit
*3
classifying
aof
from the action
board
registrant
Baker,
a
Adrian
Dennis
registrant
I-A. United States
Pow-
military
(i.
for
available
I-A
e.
classified
Cir., July 14,
ers,
judgment
service) appeals
con-
from the
1969). We are in accord with
deci-
failing
comply
the
victing
to
with
him of
sion and note that
Brede
United
report
to
his Local Draft Board
of
order
modified 400 F.2d
of
forces
into the armed
induction
for
involving
Cir., 1968),
(9th
a case
(50 App.
America.
States of
the United
registrant
(cоnscientious objector)
1-0
462)
U.S.C. §
regulation analogous
1631.7,
and a
to §
against
attack is directed
Baker’s sole
principles.
these same basic
we endorsed
argues
it
that was invalid
He
order.
the
being
There
evidence that Baker had
“First,
the lo-
because
for two reasons:
I-A,
classified
the Gоvernment was
meeting
ap-
hold a
and
did not
cal board
obliged
prove
express
not
to
an
order of
Order,
prove
of
as re-
the issuance
the
the Board directed to Baker.1
by
quired
32 C.F.R.
1631.7 under
§
and, second,
rule,
the local
Brede
because
proper order.
out
call
2. The
of
рroper
of the
board
out
Notice of
Director’s
Call
The State
by
required
regulations
order
with-
201)
required
(SSS Form
Board
Local
any apparent
justifica-
or
excuse
21 men
to select and deliver
the Board
sepa-
tion.” We discuss
contentions
following
delinquents)
(in
to
addition
rately.
by
required
26 C.F.
the order of selection
pertinent
portion of
The
report
R.
1631.7.
induction.
§
to
order
for
provides that “Such
1631.7
§
Report
Induction
The Order
* * *
and
selected
ordered
shall be
convic-
upon
(SSS
which
Form
following
report
or
induction in
signed by an assistant
tion rests
*
**
(3) Nonvolunteers who
der:
and
of the Board
сlerk
years
age of
and
attained the
have
meeting
no
the Board held
concedes
years
(sic)
age of
attained
have
receiving
Director’s
the State
after
(A) do
with
not have
wife
who
(SSS Form
on Local Board
Notice of Call
family
they maintain a bona fide
whom
201) to
and deliver
No.
select
homes,
relationship in
their
the order
induction.
of birth with
oldest
of their dates
Regulation
§
Service
Selective
first,
being
(B)
or
a wife
selected
a local board
provides in
1631.7
they married after
whom
effective
* *
*
receiving
“upon
a Notice
Call
sub-paragraph
date of this amended
for induc
select and order
shall
they
fide
with whom
maintain
bona
required to fill
of men
number
tion the
relationship
homes,
family
in their
in the
among
registrants.
its
call
of birth
of their dates
order
”
* *
*
language
suggest
does
This
being
*.”
selected first.
oldest
meeting
post-call
of a
for a
need
board,
Manifestly,
a literаl
we are clear that
the order of
af
however
call
registrants’
rights.
required.
First
In-
fects
substantial
construction
*
The Honorable John
formal order sent
Oregon,
the clerk
States District
does
sitting
his
by designation.
question
assistant
him.
F.
for the District
Kilkenny,
At
the time 32
authority
sign the
utes of the
was evidence that
he is authorizеd to do so
duly
official
availed itself
adopted
§
papers
1604.59
meetings.
issued
and entered in the min-
permitted
this Board
regulation.
by
* * local boards
a clerk to
resolution
”
There
duly
sign
“if
explained
numerous
existed
regarded
reasons
matter
Congress has
deed
opera-
by-passing
that ordi-
fairnеss
vital
as so
appeared
System
narily
information
of the Selective
tion
subject.
He then
ad-
of each
legislation prohibiting an
file
enacted
change
present
he had examined the files
meth-
testified
ministrative
explained that the file con-
determining
the six but
the relative
od
age
privileged
specified
he could
and that
tents were
within
induction
“assign
(2).
man
App.
455(a)
reason to an individual
groups.
50 U.S.C.
§
concerning
violating
compliance
law
con-
is without
a strict
hold that
And
registrant’s
fidentiality
validity
of an individual
Order
essential
affirming
Then, after
that he had
file.”
Report for Induction.
regard
“with
a dеtermination
Ordinarily
need
the Government
*4
why
were
those
”
affirmatively prove that a
not
was asked to
not ordered
he
rely upon
the
but
so selected
was
“simply advise the Court what reasons
surrounding
regularity
of
presumption
you
examining
found in
files.”
those
that
proceedings
to establish
official
objected.
he
Before
answered Baker
The
States,
378
v. United
Greer
fact.
ruling
court made no formal
on this ob-
1967);
(5th
Yates v. United
Cir.
931
jection
cryptically
but
observed “Since
1968).
States,
462
Cir.
404 F.2d
they
possibili-
are of
multitudinous
such
Baker adduced
case
in the instant
But
ties,
go
there is no reason to
into this.”
out of
he was called
evidence
direct
question-
The Government ceased further
Neil-
of Colonel
examination
order. His
ing.
attorney
son,
field
Selective
appeal
On this
the Government invokes
System,
the names of six
elicited
doctrine
error
to
the
of invited
saddle
registrants,
Baker and
than
also
oldеr
all
responsibility
any
Baker with the
de-
I-A,
carried in the
who were
classified
ficiency
argument
the
The
evidence.
Register
(SSS
102)
Form
Classification
objection effectively
is that
the
led
Baker’s Local Board
maintained
adequate
court to foreclose a more
show-
not included
the Clеrk’s De
were
who
not now
and therefore Baker should
Registrants.
livery
of
Since Baker
List
permitted
complain.
to
youngest
21
was the
report on November
ordered
have serious
that the court’s
We
doubt
obviously would not have been ordered
he
observation,
ruling,
moti-
in effect
was
on that
if
for induсtion
date
objection. Rather,
vated
rec-
any one
these
had been called.
of
six
suggests
ord
the mis-
that the court held
proper
taken
order of call
view
proof presented
This
what has
was not an
of
of-
essential element
“perhaps
referred to as
rare
been
supra.
States,
fense. Yates v. United
produce
case where a defendant can
evi However,
aside,
such doubts
since
person
of a
who should
dence
been
have
proof,
Government
no offer of
we
called before him but was not.” Yates
way
knowing
of
such
have no
whether
Statеs,
p.
supra,
v. United
466. The ef
testimony
to warrant
would have tended
put
fect
least
was
sufficient
apparent
irregularity.
regularity of the order of call in issue
able,
objection
Government,
Moreover,
if
Baker’s
and to
taken;
question
by was
well
justify by
evidence
affirmative
testimony
concerning the
оf the witness
registrants.
particular passing of the
writings
which were
contents
Smith,
g.,
See,
291
v.
e.
United States
registrants’
service
the older
selective
(D.N.H.1968).
F.Supp. 63
writings
The
evidence of such
files.
best
attempted
writings
the Government
Thereafter
was of
themselves
course the
showing
showing.
that the latter
Neilson
was madе
Colonel
make such
regis-
produced
did
the six
dence was
And while
were unavailable.2
trants,
any
them,
objection,
any
one
“should'
point
his
basis
con-
before
It is
been called”
the Government
convinced
are
regis-
other
thereby
ceded
files of the
misled.
trants
are confidential.
§§
judgment
is revеrsed.
however,
1606.31,
Director,
1670.5.
proper
application may
on
waive
(dissent-
KILKENNY,
District
permit
privilege
examination.
ing) :
1606.35(b), 1670.17(b). Ap-
C.F.R. §§
pellant,
there
if
believed
had
conceding
Even
the correctness of
deferment
an abuse of discretion
branding the order
call as an
doctrine
or more
these
one
offense”,
“element
essential
right
petition
to file a
and ask
Lybrand,
v.
stated
United States
respective
permission
to examine the
F.Supp.
(E.D.N.Y.1967),
would
right
words,
seek
files.
In other
place
burden
permission
is not
limited to
producing
registrants’
records
other
Yates,
When the author of
Governmеnt.
proper
show
call. Greer
p.
concluded
clerk
that:
“since the
(5th
Cir.
validity
testify
case
must
;
Sandbank,
United States
*5
report,
there is little
the order
(2d
1968);
Yates v.
Cir.
and
government
to have
extra
on the
burden
States,
United
Cir.
call,”
testify
prepared to
on order of
him
,
do not
that result.
belief,
not, my
that the
hе did
in
intimate
charge
Those in
of the administration
should have available the files
Clerk
System
of our Selective
face
registrants,
other
nor did he intend
problems
exercising
monumental
their
place on
the burden
legal
on
under
discretion
when and
what
n
securing
from
Director
a waiver
registrant’s
call
circumstances
a
should
privilege.
of the confidential
All
deferred,
be
and
called in his
another
might
was
testi-
author said
that a clerk
Greer,
Sandbank
stead. The decisions in
fy
records and
that he had reviewed the
and Yates
ground
are on sound
re-
registrant
next
found
was
that
quiring
registrant
a
to show the invаlid-
that
the order of call. The
fact
naked
ity
of the call
of his
defense.
subject
originally
to call
teaching
Yates did not
depart
from that
called,
appellant, were not
does
before
recognizing
“rare
a
case
that
where
not, my way
thinking,
overcome
produce
defеndant
can
evidence of
presumption
regularity
as to those
person who should have been called be-
presumption
postponements.
If the
is
Yates, supra, p.
fore him but was not.”
meaningful,
encompass
it must
be
Here,
appellant
and
asked for
granting post-
of the Board in
discretion
Judge,
hearing
received a
before
ponement of calls.
jury.
presence
outside
He
Neilson,
above,
qualified
re-
Colonel
officer
Aside
must
Service,
developed
appellant
of Selective
asked
member
reg-
registrants
hearing.
put
the call numbers
in issue the
of six
were
He there
by making
appellant's. However,
ularity
ahead of
no evi-
call
Colonel
correctly,
taming
state,
prior
trial,
2. The witness did
of call
files were
See
no effort
to show that such
§§
confidential.
but
1606.31, 1670.5;
however,
Director,
sought.
approval
was
And even on a
upon proper
аpplication may
showing
waive the
the Director
had refused
permit
privilege
use,
request,
their
32 C.F.R.
it is doubtful
a court should
secondary
1606.63(a), 1670.17(b).
Govern-
See
allow
evidence.
Jencks v.
§§
States,
657, 671,
United
S.Ct.
ment was on notice that Baker
intended
353 U.S.
(1957) ;
raise
call
issue at
sprained wrist, “Mr. he continued: requested up I look each
Brunwasser1 them but can’t reveal law summary I did make a individual case. eight men all the reasons assign requested, can’t
that he but I
reason to an individual man without violating concerning the law confi- COMPANY, RALSTON PURINA registrant’s dentiality of an individual Appellant, keep file.” must We mind that Colonel Neilson was called as a witness SUPPLY, PARSONS FEED & FARM cross-exаmination, the defendant. On INC., Parsons, Parsons, Thurman Inez he testified that made a determination Parsons, Parsons, Glenn Ap- and Alma regard why regis- (two cases). pellees trants were not ordered to on or Nos. *6 day before the same Mr. report. ordered to When asked to advise Appeals United Stаtes Court Eighth Court what he had found on the Circuit. postponements examining files Aug. 27, defendant’s counsel made general objection prevented and thus developing the Government from
reasons. No where in the record did
defendant raise the issue of the best objection
evidence rule. If such made, Judge might well have hearing
continued the until the files had
been made available the Director. By telephone this consent could have been most, or,
obtained within minutes
hours. support need cite authorities permitting
of the universal rule a wide
latitude in cross-examination. theOn us,
record before vouches credibility of Colonel Neilson
calling him as a witness establish the postponements, “objection” but cries attempts
when to cross-
1. Defendant’s counsel.