*1
petitioner
a cer-
as did the Second Circuit that
Since
show the violation
elude
probable
prerequisite
right
cause is a
a
tificate
constitutional
to be successful in
in a
appealing
the denial of a bail motion
proceeding,
his habeas
and since there is no
proceeding.
reasons are no
habeas
Our
right
parole,
or inherent
constitutional
than those set forth in
different
Gruñe.
petitioner
say
has a hard row to hoe to
considerations that dictate
cer-
The same
a
least. Greenholtz v. Inmates
The Ne
probable
required
cause be
be-
tificate
Complex,
Penal
braska
& Correctional
peti-
the denial of
appealing
fore
a habeas
442 U.S.
99 S.Ct.
tice.” Aronson v. (1964) J., (Douglas, in cham
bers);
Solem,
see Martin v.
801 F.2d
[324]
Nardoza,
at 329-330
[
(8th Cir.1986)];
[159]
Iuteri
[
(2nd
1981)].
will
Cir.
There
be few occasions
America,
UNITED STATES of
prisoner
where a
will meet this standard.
Plaintiff-Appellee,
point in time.1 serving years these crimes and
1. Lee is a sentence of 8-15 as a role at the time he committed being on two third- prеvious result degree convicted counts of crimes. two convictions for sex has pa- sexual conduct. Petitioner was on *2 error, Vincent, (argued Atty. Asst. first two assertions of we find merit S. Van Nashville, TN, briefed), plaintiff- in the third. We thus vacate the sentence appellee. imposed disposi- and remand the case for a opinion. tion consistent with this Nashville, TN, Edwards, III,
E.E. *3 defendant-appellant. SUHRHEINRlCH,
Before: JONES and
CONTIE,
Judges; and
Senior
Circuit
Edge
In November
was introduced
Judge.
Mikels,
to Steven
an undercover officer
Drug
with the
District
Seventeenth Judicial
PER CURIAM.
County,
Task Force in Davidson
Tennessee.
Dwayne Allen1
Defendant-Appellant
negotiated
whеreby
men
two
a deal
Judgment
Edge appeals the district court’s
Edge
marijua-
deliver to Mikels
would
following guilty plea
in a Criminal Case
$13,000
“plants”
exchange
na
and
in
pled guilty to
sentencing hearing. He
and
grams
February
of cocaine. On
distributing
knowingly
intentionally
and
exchange
place.
took
The mari-
in violation of 21 U.S.C.
marijuana2
juana
trays,
delivered in ten
was
each con-
(1988).
841(a)(1)
He was sentenced
§
taining approximately
marijuana plant
imprisonment
years
and five
108 months
Edge
“clones” which
defined as
supervised
as the district court
release
larger,
plants.
more mature
The cut-
responsiblе
Edge
found
to be
for distribut-
tings
were set in a
medium which
“plants.”
ap-
marijuana
over 1000
On
rooting
was saturated
hormone.
(1)
that:
21 U.S.C.
peal,
contends
“stung”
subsequently
Edge was
and was
(1988
1991)3
841(b)(l)(A)(vii)
Ill
Supp.
&
indicted in the
States District Court
2Dl.l(c) (n.*)
and Section
of the United
for the Middle District of Tennessee on one
Sentencing
Commission’s Guide-
knowingly
intentionally
dis-
count of
(Nov.1991)
Manual
lines
[hereinafter
tributing marijuana
violation of
rights
process
violate his
to due
U.S.S.G.]4
(“Count One”)
841(a)(1)
and one
U.S.C. §
(2)
equal protection;
police
violated
knowingly
intentionally pos-
count of
right
to due
of law
not
intent
distribute cocaine
sessing with the
evidence;
(3)
preserving
relevant
(“Count
in violation of the same statute
government did not meet
its burden
18, 1991,
Two”).
pled
September
On
proving that he distributed over 1000 mari-
dis-
guilty
Two was
to Count One. Count
“plants”
majority
juana
because the
government.
missed on motion of
marijuana cuttings
confiscated
in this case
In
report
prepared.
sentencing
presentence
for federal
A
were
it,
probation
deter-
Though
readily
preparing
officer
purposes.
dismiss
Notwithstanding
years
spelled
more than life....
1. Sometimes
"Allan” in the record.
or
law,
provision of
the court shall not
other
suspend
spelled
place
probatiоn
sentence of
on
2. Sometimes
"marihuana.”
subpara-
any person sentenced under
reads,
provision
part:
graph.
person
this sub-
in relevant
No
sentenced under
3. This
during
paragraph
eligible
parole
shall be
(b) Penalties
imposed
imprisonment
therein.
the term of
provided
Except as otherwise
in section
title, any person
or 861 of this
who vio-
portion
states:
4.The
relevant
of this footnote
(a)
lates subsection
of this section shall be
sentenced as follows:
involving marihuana
In the case of an offense
(1)(A)
the case of a violation of subsection
(A)
plants,
or more
if thе offense involved
(a)
involving—
of this section
equiva-
plants,
plant
treat each
as
marihuana
(B)
than
fewer
lent to KG marihuana:
equiva-
plants,
(vii)
treat each
kilograms
marihuana
or more of a mixture or
Provided, howev-
to 100 G of marihuana.
containing
lent
er,
substance
marihuana,
a detectable amount of
1,000
weight
the marihuana
that if the actual
or more marihuana
weight
greater,
the mari-
plants regardless
weight
use the actual
...
person shall be
huana.
such
sentenced to a term of
may
(Emphasis
original.)
imprisonment which
not be less than 10
However, 1,079 grams of
cy conversion.
involved
сonviction
Edge’s
mined
215 kilo-
equivalency of
yields
kilograms of
cocaine
less
but
than 1000
Therefore, the to-
marijuana.
grams of
marijuana:
equivalent
of-
combined
The instant
tal
Level:
Offense
Base
marijua-
kilograms of
1,225
exchange transac-
drug
weight is
involved
fense
exchange
1,000
but
agreed
kilograms
least
(cid:127)
The defendant
. (cid:127)
[A]t
tion.
na.
1,000
plants
3,000 kilograms
approximately
less than
approximately
$13,000
cash
level of
offense
yield a base
to a
According
of cocaine.
kilogram
J.A.
(see
quantity table
drug
note of
foot
At
conducted.
hearing was
sentencing
C),
A
2D1.1, Subsection
Section
U.S.S.G.
*4
was introduced
evidence
hearing,
to
much
plants are
marijuana
involving
cases
cut-
marijuana
one
the
equivalent to
as
of whether
plant
the issue
on
each
treat
the transaction
federal
marijuana
for
were
of
kilogram
tings in
plants.
marijuana
that,
testified
sentencing purposes.
involved
1,010
offense,
were
there
instant
cut
exchange,
In the
had
he
the
night before
the
by the defen-
delivered
plants
marijuana
mature
tips of
growing
700 to
about
each
guidelines,
the
According to
dant.
inches
one to two
about
plants
marijuana
equivalent
one
to
as
plant is to be treated
mеdium
in a
them
placed
tall and
Consequently,
marijuana.
of
kilogram
rooting hor-
awith
was saturated
which
1,010
calculations,
the
guideline
for
clones
remainder
The
mone.
1,010 kilo-
of
equivalent
yield an
plants
night.
to that
previous
sometime
been cut
marijuana.
grams
about
cutting takes
testified
He
develop a root.
to
six weeks
three
also
offense
However, the instant
29.
to what
whether
topic of
theOn
drug transaction.
exchange
involved
gov-
the
plants,
cuttings were
the
extent
ex-
deal,
Edge was
Mr.
part of the
As
in the
witness
presented
ernment
for
plants
cash
marijuana
changing
Krai of Vander-
Dr.
botany,
Robert
field
of cocaine.
kilogram
one
approximately
Krai, a
According to Dr.
University.
held
is also
bilt
the defendant
Consequently,
of photosyn-
of co-
“the
kilogram
must have:
one
the
for
accountable
transaction,
multicel-
104;
kind of
thesis,”
“some
for in this
bargained
id. at
caine
(Rele-
105;
1B1.3
at
by [it],” id.
Section
organs
to U.S.S.G.
formed
pursuant
sex
lular
all
requires
Conduct).
section
Krai
This
Dr.
system,” id.
circulatory
vant
“a
the
part of
that were
at
plant.”
and omissions
Id.
acts
cutting
“a
testified that
or common
cut,
of conduct
course
same
as it is
soon
plant as
It is
106.
convic-
the offense
plan
schеme
Krai,
have
does not
Dr.
according to
determining
applica-
the
tion be used in
cross-examina-
at 121. On
Id.
a root.
have
Therefore,
drug
range.
guideline
ble
that, according to
tion,
admitted
Dr. Krai
in both counts
quantities referenced
a leaf or
a seed or
“plant,”
definition
included in
be
Indictment
things
the white
whatever
a “seedlet or
level.
offense
base
determination
wind”
blow the
dandelions are]
[off
total
involved a
offense
One
Count
The
id. at
“plant.”
See
be considered
could
marijuana.
Count
1,010 kilograms
admitted
He also
1,079.2 grams of cocaine
involves
Two
fol-
problem” with
“wouldn’t
hydrоchloride.
cutting
“A
becomes
lowing statement:
table
drug equivalency
30. Since
system suffi-
develops a root
plant when
combining different
for
a means
provides
open
cutting to maintain
to allow
cient
substances,
drug
be
each
controlled
gas and
exchange
can
so it
...
stomas
equivalent
converted
at
Id.
energy requirements.”
provide
drug
According
equiva-
to the
weight.
yield the
table, 1,010 kilograms will
lency
Krai ob-
hearing, Dr.
sentencing
At the
equivalen-
amount in the
same
awhile,
potted
proba-
marijuana cuttings.5
been
there
been
several of the
served
Id. at 118-19.
bly
length
a fair
of time.”
clones,
Exаmining
he noted “a
area that
looks like some
swollen
[callus
sentencing
hearing
The
was con
forming
that would be
tissue6]
February 24,
cluded on
1992. The district
beginning
callus
attributable
to the
of a
court determined that “there were a thou
Id. at
which roots will come.”
plants
formation
ten
and it will
from a thou
sand
3,000
guide
sand to
kilos of
pos-
111. The second
he examined
Hearing
purposes.” Transcript
line
Be
Id.
“[ajctual roots.”
The third cut-
sessed
Wiseman,
A.
fore
Honorable Thomas
Id. at
ting
developed
had “well
roots.”
Transcript];
Jr.
[hereinafter
cutting exam-
Regarding
the fourth
2Dl.l(c)
(n.'f). The court did not
U.S.S.G. §
ined,
stated,
Krai
at the base
Dr.
“[D]own
consider
the cocaine involved
the ex
certainly
cutting]
there is
not as
[of
change
sentencing
computations.
in its
It
much evidence of callus formation.
yielded
a base
court’s calculations
of
Id.
beginning
Hardly that.”
just the
of it.
thirty-two.
being giv
fense level of
After
113. The fifth
had a “well devel-
for a
of re
acceptance
en credit
two-level
appears
Id.
oped
system.”
at 114.
It
root
reduction,
see U.S.S.G.
sponsibility
that Dr. Krai was also asked
observe
3El.l(a), Edge was
at an of
sentenced
*5
upon
other
that had
and comment
thirty.
fense level of
With a criminal histo
to the
developed roots and were attached
II,
ry category
sentencing guidelines
of
115-17,
planting medium. See id.
at
125.
imprisonment
range was determined to be
Finally,
photograph
Dr. Krai
of
reviewed
108-135 months. He was sentenced to 108
Edge
months,
confiscated from
and no-
by
years
to be followed
five
of
algae,
plants]
supervised
have
release.7
ticed
which “means [the
samples
applicable
Apparently,
“represent
COURT: If that were
5.
these
were to
THE
105, but we will
trays]
lower end would be 120 to
that was
all the
material [from
it at 108 to—
Edge by
leave
seized from Mr.
Mr. Mikels at the time
Yes, since
ATTORNEY]:
U.S.
[ASSISTANT
Edge’s
February
of Mr.
arrest on
28.” J.A. at
my
it was
error.
added).
(emphasis
147
Transcript at 4.
authority
mandatoiy
depart
Limited
tissue,
described,
6. Callus
Dr. Krai
is the "mark-
provided in
U.S.C.
minimum sentences is
18
beginning
development
of [a]
er of
3553(e) (1988):
§
at
root." Id.
Government,
Upon motion of the
the court
authority
impose a sentence
shall have the
us,
the record before
we do not under-
7. From
by
a level established
statute as mini-
below
Edge
how the district court could find
stand
a defendant's
sentence so as to reflect
mum
(or
marijuana plants
accountable for over 1000
investigation or
assistance in the
substantial
prosecution
kilograms marijuаna)
1000
of
and not sen-
over
person
has com-
of another
who
statutory
tence the defendant to the
minimum
offense. Such sentence shall
mitted an
21
U.S.C.
of
120 months.
See
guidelines
imposed in accordance
the.
841(b)(l)(A)(vii);
(presen-
see also J.A. at 22
§
by
policy
issued
the Sentenc-
and
ing
statements
"Mandatory
report
tence
notes a
Minimum" of
pursuant
Commission
to section 994
years”).
"10
28,
title
United States Code.
understanding
may
aid to
what
As an
case,
seemingly
instant
there was
no
In the
impose nine-year
inspired the district
court to
by
government,
certainly
motion made
ten-year statutory
in the face
mini-
sentenсe
mum,
Edge
provided
substan
no contention
following colloquy
is all we have
assistance,
did
whether or not he
in fact
tial
provide
Thus,
discovered:
statutory
departing
it.
below
mandatory
THE COURT: ...
Is it a
mini-
inappropriate.
United States
minimum was
See
years
93,
Cir.1991) ("a
of ten
in this
(6th
mum
case?
Snelling,
v.
961 F.2d
97
3553(e)
Your
U.S.
Hon-
[ASSISTANT
ATTORNEY]:
departure
must be
]
Section
[under
or,
change
I believe when he
solely upon
entered
the ‘substantial assistance’
based
it,
plea
defendant”);
we had advised him of
by
States v.
United
rendered
738,
Cir.1991);
probation
Horn,
(10th
20 or five to 40. The
officer noted
United
946 F.2d
745
526,
(7th
report.
government’s
Thomas,
that in the
That is the
v.
F.2d
528-29
States
Cir.),
930
—
-,
171,
denied,
errоr.
U.S.
112 S.Ct.
cert.
Pruitt,
(1991);
mandatory,
got
It would in the
since he
States v.
filed his Notice of (1988) (“We hold that therefore L.Ed.2d 281 can show bad a criminal defendant unless II police, failure to part of the faith on the A does potentially evidence preserve useful process claims U.S.S.G. a denial.of due not constitute Beldеn, v. (n.*) law.”); 21 U.S.C. 957 F.2d United States 1.1(c) 2D § — denied, which, Cir.), 841(b)(l)(A)(vii), given 671, (9th a certain cert. U.S. 673-74 234, (1992); marijuana plants, 169 -, number of 121 L.Ed.2d threshold 113 S.Ct. Allen, 1168-69; 1000 United States marijuana plant equate 954 F.2d at Cir.1992); Gibson, (5th arbitrary and irra marijuana, are 963 F.2d grams . Malbrough, tional, F.2d thus violate his constitutional United States — denied, equal protection. cert. (8th Cir.1990), rights to due specifically -, foreclosed L.Ed.2d 1071 Edge’s argument S.Ct. decision, by published (1991). recent Holmes, (6th 599, 601-03
States v.
—
denied,
U.S.-,
Cir.),
cert.
C
(1992).
Since
purposes
“Defining
‘plant’
the word
panel’s pub
overrule another
panel cannot
Sentencing
Guidelines
issue,
the same
we are
lished decision on
to de
subject
statutory construction
Edgе’s
Holmes
reject
and thus
bound
United States
novo.review.”
v. Secre
Salmi
arguments on this score.
—
denied,
(10th Cir.),
cert.
F.2d
HHS,
tary
Cir.
*6
236,
-,
112 S.Ct.
116 L.Ed.2d
1985);
Appeals
Court of
for
United States
Bechtol,
v.
see also United States
(1991);
Circuit,
Operating Proce
Internal
Sixth
603,
(8th Cir.1991).
605 n. 3
939 F.2d
(June 12, 1991).
22.4.1
dures ch.
sentencing hearing, Dr. Krai of-
At the
“plant.”
very
a
definition
.fered
broad
B
court
the district
We are uncertain whether
Though Edge does not mention it as
finding
route to
accepted this definition en
error,
assignment
suggests
he
specific
a
plants.”
ten
“there were a thousand
right
violated his
government
ascertain the
Transcript
trying
at 3. In
by failing
preserve
due
of law
a
of what constitutes
district court’s view
cuttings.
marijuana
Since this
most of
purposes, we find the
“plant”
present
below,
raised
we will
argument was not
ex-
utility.
limited
One brief
record of
“exceptional”
only consider it if the case is
proceeded as follows:
change-
topic
on the
produce
it
refusing
or if
to consider would
My problem
FOR EDGE]:
[COUNSEL
justice.” Pinney
“plain miscarriage
a
marijuana
counting
grams
10 or 15
is
Transport
Dock
Co. v. Penn. Central
&
they are
as a million—I don’t
think
Corp.,
(6th Cir.)
(quot
were but I don’t
plants.
them
Some of
Helvering,
Hormel
312 U.S.
were. That is for
Your Honor
think all
557-58,
721-22,
pretation — States, ed); Chapman United cf. analyzers to gas possess infrared cers -, -, is oc gas exchange whether determine (1991) (“Neither U.S.C. [21 or, under growth curring Sentencing Guidelines de- 841(b) nor ] observe training in order to go botanical ‘substance,’ terms ‘mixture’ fine the expert wit appellant’s marijuana, in [the common they have established nor do time to formula, period over a ness’] therefore, terms, meaning. Those law tissue of new whether increments meaning.”). ordinary given their must be noted in Judge Devitt As appear. [Unit Bechtol, Eighth Similarly, Fitol, F.Supp. ed States [733 v.] hairs,” viz., “root cutting with held that purpose legislative (D.Minn.1990),] the stem,” coming from projections “fine . problems associated remedy the towas purposes “plant” F.2d at marijua weight determining the holding This sentencing guidelines.9 seeds whether specifically, na— stems should be Eighth Circuit by the reaffirmed weighed in the mix—and Curtis, States simplе with a more supplant this test Cir.1992). method; providing method emphasized the also courts have Other weight” regardless of “plants number of root struc systems, root importance of mandatory minimum trigger would defining marijuana tures, roots in per F.Supp. at 1315. We sentence. sentencing purposes. for federal intent was congressional ceive that See, Malbrough, e.g., complicate, the method simplify, not to apparent de in district court’s (acquiescing or low end determining high end cuttings that certain accept ap To termination mandatory sentences. system” “root own turn not have their be to that did would pellant’s formulation “plants”); United as not be counted legislative purpose. should face on the our F.Supp. Angeli, 794 intended the definition agree that We count (refusing to (D.Minn.1992) by accepted the one by Congress is no cuttings that “have marijuana “plant” court here: district added); ”) (emphasis root structure visible accompanied includes those *8 F.Supp. Fitol, 733 v. States sur- United the could Whether root balls. (“It ... clear that (D.Minn.1990) is issue; if an not be its own would vive on with planted is, cuttings, individual (cid:127)these it has a “plant” it looks like —that plants, full size con- intent be system will root reasonable —it roots, both grown had testi- which expert No “plant.” need sidered and within Section parlance common within with instrumentation fy, experiments no added); 841(b).”) United States (emphasis exchange is gaseous to monitor whether Thus, hairs” referred it seems that "root are out- Botanically speaking, root hairs to mean "hair- Apparent- should be understood in Bechtol epidermal of roots. growths cells (testimony of at 604 Telephone projections,” 939 F.2d like stems. ly, they do not stem Pohl, projections Caruso, stating that such Dr. Richard Dr. John Professor with Interview Biological system”), or "ad- Sciences, beginnings root of a University are "the Cincinnаti protruding from callus tissue. 27, 1993) roots” (Jan. Telephone Interview ventitious [hereinafter Caruso; Gibbs, Dr. see also Darnley Telephone Interview with Caruso]; also R. Dr. with Gibbs, (1950). supra, at 267-69. Evolutionary Approach Botany: An (D.Minn. sentencing federal purposes. for While all F.Supp. Speltz, may roots, plant families not 1990) (“Small plants, e.g. cut see J.A. marihuana Krai, (testimony citing “epi- of Dr. plants’ roots, are ‘marihuana tings with phytes” example), as an added), marijuana plants nonetheless.”) aff'd, 938 (emphasis By adopting test, do. aforementioned Cir.1991); see also United F.2d provide a workable we definition Lee, (10th Cir.), States — mаrijuana “plant,” one commonly which is U.S.-, denied, cert. accepted legal in both the and botanical (1992); cf. worlds. (9th Cir.1990) Carlisle, 907 F.2d determination that (finding district court’s Ill cuttings plants where were “[e]ach [cut forma ting] varying degrees of root may Since the district court have em- erroneous). clearly ployed “plant” an overbroad definition of tion” determining Edge to be accountable for specific In the absence of direction “plants,” over 1000 we vacate contrary, adopt a by Congress to the we imposed the sentence and remand the case relatively straightforwаrd version of the resentencing in accordance with this Eighth put by the Tenth and test forth opinion. We observe that at least two of A Circuits. samples shown to Dr. Krai had no sentencing purposes if there is for federal readily evidence of root forma- observable evidence of root readily observable forma tion as we have described it. Given this marijuana cutting A with root balls tion. fact, samples represent if the are to test. easily “root hairs” meets this seized, total it number of would marijuana cutting mere with Whether stand to reason that the actual number of the test is a more diffi callus tissue meets “plants” Edge responsible for is less issue, resolving important cult and is the total amount seized. The district the instant case. specific finding make a court should fact, explaining its determination of the Dr. Krai testified that “callus tissue marijuana “plants” according number beginning of the devel is a marker o/the opinion. the test we have set forth in this (emphasis opment of root.” J.A. at 109 [a] added). Examining at the one of the clones SUHRHEINRICH, Judge, hearing, sentencing he noted “a swollen concurring. form that looks like some area [callus] rejection agree majority’s I would be attributable to constitutеs a which Dr. Krai’s broad test of what beginning of a callus formation straightfor- “plant” in of the more (emphasis Id. at 111 favor roots mil come.” Tenth added). this, independent adopted by Eighth and from ward one From only research, separately I write to ex- appears that callus tissue Circuits. press underlying an concern with what not be considered a root. Callus should inappropriate expert wit- cutting is taken view as an use Of tissue is formed after a callus, statutory Admit- nesses to define terms. plant. from a mature unor mass, newly tedly, danger transferring a nondele- ganized covers the ex tissue surface, gablе responsibility interpret the cal Guide- posed or “wound.” From extend, imminent lus, then, forming lines as a matter of law is less organized cells 10 Thus, sentencing at a purposes when testifies roots.” “adventitious chosen, None- hearing only present. the court applying the test we have *9 theless, testimony to inter- marijuana cutting that a with cal use of conclude statutes, tissue, more, guidelines pret regulations and lus without is not a Caruso; system,” Telephone to have a root and ha[s] Interview with Dr. Gibbs, 267-69; Bechtol, supra beginnings projections note also were the "the hair-like cf. (discussing testimony at 604 of Dr. system, projec- a root and that a with Pohl, botanist, Richard a taxonomic who stated plant”). tions was a that, to be a words the effect "for statutory con- ties lawof force with the evi- quality of and to the nature struction context. adversarial an in presented
dence Tenth Cir by the out pointed
Finally, F.2d 856 States cuit United — U.S.-, denied, Cir.), cert. (1991), there S.Ct. intended Congress believe
no reason meaning ordinary anything other If a 859-60. Id. at statutory term. intended, meaning were highly scientific the face apparent would be that fact history. legislative statute, or in Armstrong, Deputy Associate A. Aileen “as- indication, we such Absent (briefed), Jo- Counsel, Winkler Peter Gen. meaning of ordinary sum[e] (argued), Oertel, Nancy J. Gottfried seph accurately expresses language statutory Counsel, N.L.R.B., the General Office (cita purposes.” Id. legislative Calatrello, Di- DC, Frederick Washington, omitted). tion Cleveland, OH, N.L.R.B., Region rector, petitioner. briefed), Meyer (argued C. Andrew Cleveland, OH, for Barnard,
Duvin, Cahn & respondent. MILBURN, MARTIN Before: WELLFORD, Senior Judges;
Circuit Judge. RELATIONS LABOR NATIONAL Petitioner, BOARD, Judge. WELLFORD, Senior Circuit Board Relations Labor The National of its enforcement (NLRB) petitions COMPANY, MACARONI IDEAL Ideal Macaroni against issued order Respondent. bargain recognize and (Ideal) to Company 407, International Local Teamsters No. Chauffeurs, Teamsters, Brotherhood Appeals, America Court Helpers Warehousemen reasons, following Circuit. union). Sixth (the For petition. the NLRB’s DENY 7, 1992. Argued Dec. past-manu- its part of modernized Ideal 1, 1993. April Decided new' purchasing facturing operation to an increase in 1985. Due equipment and cer- products its for some demand machines, hired Ideal its problems tain October, By employees new six prob- manufacturing March, Ideal’s need for and its alleviated lems had been result, Ideal no- aAs employees declined. on March employees three tified Ideal laid off. they would be April 1 that their uniforms employees return told paid the Ideal their lockers. out and clean vacation, even one week employees