*1 faith doubt August question employees Western-Davis’ com- ing scope designated majority within status bar- claimed about union’s gaining unit included 13 or 14 light ex-Davis of the situation must be answered employees, Brothers 10 or 11 ex-Western employer requested at the time an employees,7 six employees who had case, that time was Au bargain. In this previously employed by been neither con- have us look gust 17. The would NLRB most, cern. At 14 of these employees spectacles of retro August through the supporters.8 could be deemed union As We do spectivity presumption. they did a majority, not constitute Western- the matter. We share the NLRB’s view objectively Davis had an valid basis for objective by artifice the decline to eliminate concluding obligation it no bargain had supporting doubt Weste basis for faith with the union. rn-Davis.10 seeks to NLRB avoid this con Enforcement denied. by suggesting appropriate clusion that it is employee the level of support determine McWILLIAMS, Judge, dissents. Circuit April for the union pre and then sume subsequently employees hired sup
ported the in the same proportion. union
Although presumption general appro
priate circumstances,9 other it enough in
makes great no sense to invoke it
successorship-type context to bind an em America, UNITED STATES ployer support to a of union ratio Plaintiff-Appellee, only point existed at a in time well before requested bargain. WARE, Defendant-Appellant. Omer W. rejection applicability
Our presumption NLRB’s in this circum 78-1834. No. stance employer accommodates reasonable Appeals, United States Court of expectations. being requested On to bar Circuit. Tenth gain by a employer union with has Sept. 11, Argued 1979. bargaining no collective relationship, an employer with a modicum of awareness of Sept. Decided 1979. likely National Labor Relations Act is Rehearing Rehearing En Banc majority my ask: “Do a employees Denied 1979. Oct. by favor representation this union?” It is not likely inquire: will “Did a ma
jority my employees representation favor ago?” this union four months employees, mining obligated the hire of 10 new of whom three whether Western-Davis was drivers, long-haul bargain were and the severance of with the union. one; Springs complement and the Glenwood grew by three. B., See, g., Assocs. v. N. L. R. e. Inn Pioneer Record, vol. at 261. 1978). (9th But see N. L. 578 F.2d Cir. Inc., Stamping, R. B. v. Mach. & Massachusetts uncertainty
7. The numerical results from the 1978). (1st Cir. 578 F.2d 19-20 employee working fact that one who was April August 1 left before 17. The record does case, adopting we have 10. In this view employer. prior not reveal his many Western-Davis not relied on the fact 8. This result is reached even when the Glen- petition expressing employees signed aver- employees Springs long-haul wood and the petition generated sion unionism. designated drivers are excluded from the bar- bargain employer after had refused gaining only unit. Since their inclusion would a reason for its refus- thus could not have been majority, bolster the non-union we need not B., L. al. SeeW&W Steel Co. v. N. R. appropriate decide whether for the (10th 1979). F.2d 934 Cir. NLRB to exclude them from the unit in deter- *2 Atty., Martin, U. Asst. S.
John Oliver Buchele, U. S. (James P. City, Kan. Kansas brief), plain- Kan., on the Atty., Topeka, tiff-appellee. Utah, Joslin, City, Lake Salt
Gary James defendant-appellant. DOYLE, BREITEN STEIN Before LOGAN, Judges. Circuit Judge. DOYLE, Circuit E.
WILLIAM in which case tax evasion This is a pre- failing charged with defendant in ac- return tax file an income pare and during years law cordance of 26 in violation 1974 and to a was had The trial 7203. U.S.C. § as to all guilty in verdicts of and ended was sentenced The defendant three counts. count, sen- each prison year to one concurrently. run tences to individual in which an This is a case not, isIt file tax returns. committed tax ordinary of income type ques- unusual some opposition. presents tions. his own behalf testified in defendant believe that he he did not
to the effect tax to file income legal obligation that the income the reason return for dollars, but, rather, he received was were mere notes which Reserve Federal pay and not redeemable promises to filed no he had He admitted that or silver. 1974 and tax returns income reason he was not amount and for having his re- There is no doubt about goes on specified in ceived income in the amounts to file a return. Counsel the information as follows: of the correctness say regardless have been viewpoint, it should his was that he allegation in Count I ascertaining the suffi- sidered at least $10,624.59 income, His received in 1973. *3 of element proof as to the ciency of the II, $7,001.05 1974, according in to Count was coun- willfulness. But in his oral $13,421.28. in was and his income 1975 He stated gone sel much further. has that, alleged In each count it was not- defendant, his with the his concern was not income, he withstanding the amount of his was, was with his concern client. as it Such willfully prepare and file a tax had failed to nullify obtaining ruling which would a required by return as Title 26 U.S.C. § and legal tender Treasury use of notes appeal Defendant’s contentions on are: to be obligations compel which would such First, refusing that the court erred in brief, counsel also In his paid gold in coin. instruct jury in accordance he argument which emphasized that request having with his defendant’s to do “profoundly making was intended to be require- mistaken faith belief in the “it is based on He added that serious.” ments of the law. careful, presen- reasonable very logical and Next, that the court failed to instruct the subject, statu- both tation of law on jury as to the theory defendant’s of the judicial tory judicial. It deserves case. He say cites that an decisions which scholarly courte- merit and analysis of some theory accused is of entitled to submit his very probably sy.” say What we will the case jury illogical. to the even though he makes. fully satisfy request which Defendant wished to have the told that as it will, the law It be based on law, even if his belief was ill-founded in if exists. had a faith conviction he was enti- power The not have the court does tled to the regardless instruction of wheth- power is tender. That legal declare what is er it conformed with the law or not. I, the Con 8 of Congress. in the Article His third contention is not unlike the coin stitution, Congress empowers “[t]o other two. Here argues the evi- thereof, and of Money, regulate the Value dence was insufficient to establish that the of Coin, foreign and fix Standard defendant received requisite gross in- very From the Weights and Measures.” come which would require him make a powers early days Republic, of the Also, return. the jury merely told that there regulate the value money coin and to person to file a return if he regulate broadly construed to gross had have been income exceeding $750.00 currency. was filing subject of separately, phase gross every or had a income exceeding $2,800.00 requir if the return was a powers is that Among Congress’ joint one. gold gold coin and ing the surrender of currency exchange for other certificates in
I.
v. Unit
gold.
in
Nortz
not redeemable
See
Inasmuch
appellant’s
argu-
as the
third
States,
55 S.Ct.
ed
294 U.S.
two,
ment more or less embraces the other
Also,
(1935).
power over
L.Ed. 907
its
we will consider it at the outset.
every contract for
currency extends to
obligation of
and the
payment
money,
point
Counsel’s theme in
III
assumed
parties
therefore said to be
that the defendant believed that there was
Legal
power.
with reference to that
See
a difference between Federal Reserve notes
Lee,
(12
Cases, Knox v.
79 U.S.
Tender
and dollars and that he was entitled to use
(1871); Juilli
Wall.) 457,
L.Ed. 287
earnings
actual value of his
in terms of
man,
4 S.Ct.
gold
believed,
ard v.
110 U.S.
dollars. He also
so it is ar
Green
gued,
(1884).
that the difference was substantial
in
Thus, wages would reduce his real a level be counsel to has not asked this court to require overrule low the such a Supreme standards Court or to declare any Acts of return. It is true that the trial court did unconstitutional. did, go does not mean that The court he has not in that extreme. effect asked contrary us to rule satisfy to these in our view the standard of statutes required decisions. Counsel’sar- willfulness in a failure-to-file case. gument appears to assume that given this court is The instruction reads as follows: empowered to any deal with law which is Willfulness is an essential element of contrary to his contention and in essence to the crime of failure to file an income tax establish an approach entire new to mone- “willfully,” return. The word used tary policy. must, course, We decline offense, connection with this means a vol- this invitation. only We do so not because untary, intentional violation of a known authority of lack of but also because it is stated, with duty, or otherwise inviting not an approach. wrongful purpose deliberately intend- ing not to file a return which defendant sum,
In position counsel’s contrary required by was law to file and knew he the monetary provisions of the Constitution should have filed. I, which are set forth in Article 8. These provisions plainly empower necessity to deal There is no Govern- with monetary problems and to declare had an prove ment that the defendant stances, in the case adequate instruction it, to evade defraud or intention to bar, fully supports taxes, for the evidence the defendant’s at payment of deliber- acted the accused be willful under conclusion that to file to failure returns. ately failing law. to file provision if is not “willful” conduct Defendant’s appellant trial testimony at the In his through inadvert- negligence, acted he study very careful conducted said mistake, good his faith ence, or or due fol- which he pursuing the course before requirements of misunderstanding of the Big The called was book Included lowed. out, how- pointed law. be It should Tax Against The Bluff, The Constitution ever, disagree- defendant’s neither read he also said that He further Collector. law, his own belief ment with nor The Feder- called of a book portions least such law is unconstitutional —no Monster, entitled book and still another al earnestly how held—constitute matter Hoax, Age The Federal Reserve misunderstanding defense of faith he learned said that Deception. He all citizens duty It is the or mistake. not backed note was Federal Reserve agree they with obey the law whether and fur- or silver any denomination it or not. him in decid- influenced said that this ther necessary only purpose he never a return since ing not file is the prove in this case Government gold or sil- *6 and, that, good re- leged he did in to file tax because deliberately when failed legal duty reading a to file believe that he had of books faith a of his As result turns. return, jury seminars, a tax have been told his the should he formulated attending * * they could consider such evidence that the state of to approach as personal own ac- determine whether the defendant’s viewpoint subjective adopted a law and good were the result faith belief tions Considering that these subject. law.” up led to his which the circumstances were it not given that was action, the instruction say “he Counsel no doubt that intended good to his due if his action willful was that he not did faith did believe requirements understanding of the faith legal tax duty have return.” file court added adequate. The law was however, Regardless, meaning was which out, however, pointed “It should be that intended, in rejecting did err court not disagreement neither a defendant’s instruction either form. this is that such law law, his nor belief with of the court In our view the instruction earnestly how matter unconstitutional—no True, harmony with law. it good faith a defense held—constitute say conduct failed defendant’s por- misunderstanding or mistake.” though even acted willful highly valid and of the instruction was tion did, through gross negligence. The court germane. is say that conduct “defendant’s that he appellant rationalized through negligence, willful if he acted money different standard mistake, entitled use due to his inadvertence or remainder applicable misunderstanding requirements faith is devoid citizenry, was, the law.” This under circum- standard 406 tioned. The fails to logic
reason and which is not motion ever come entitled to be specifically recognized grips in an with issue. instruction. this basic personal defendant that his contends outset this be noted is, be, belief in what law or should Sixth, Eighth court as well as supersedes the federal Constitution and Ninth had occasion to review Circuits have applied statutes as construed in which the contention tax evasion cases each Court. If citizen is a law paid has been advanced salaries himself, unto government will exist in name were federal reserve not taxable un
ORDER DENYING PETITION FOR One of arguments the made is that REHEARING AND SUGGESTION certain statute was mentioned in FOR EN REHEARING BANC 463, brief or in oral 31 argument, U.S.C. § considering precluded and that we are PER CURIAM. it. specious This is on its face. No more petition The rehearing for raises a num- needs to be said. points, ber merit, none of have but complains appli- Counsel that 463 is not since § irresponsible motion contains cable to federal reserve notes. This court statements and we charges, choose to com- suggestion did not in its make ment on it. opinion that it had direct affect on such The for opinion fundamental basis is change notes. This fact does the basic that Congress rather than the court has the opinion, thrust of the which is court’s that power regulate value money. authority is in this field. exclusive power is a guaranteed Constitution, by the and the conclusion that It in repealed courts do not is said 463 was have a was, however, role in area ques- this cannot be in October 1977. It force
407 1976), 782, (9th Cir. Schmitz, 785 542 F.2d 1975, years involved 1973, 1974 and 51 denied, 97 S.Ct. Congress took this cert. 429 U.S. The fact this case. Daly, v. (1977); United States whether L.Ed.2d 556 not affect the issue action does denied, 414 U.S. regulate Cir.), power (8th 28 cert. Congress had the 481 F.2d (1973). in the 469 was cited 38 L.Ed.2d currency. This section 94 S.Ct. of Nor- to a opinion relation discussion ease contended Finally, it is Co., 294 Ohio Railroad man v. Baltimore & it deals because en banc should be heard (1935), 885 79 L.Ed. 55 S.Ct. U.S. United monetary system of the as a valid exercise upheld the statute and patently insufficient This is States. Congress over mon- power comment. needs no further The etary system the United States. “brief” together with motion an illustration Norman case was used as many inaccura- to its due could be stricken that the authori- principle the constitutional decide, We cies deficiencies. and ty currency plenary is over cursory reading A it remain. to allow to it. tamper is not to with Judiciary it reveals its character. has say, as counsel wholly inaccurate to Judges (in Upon Circuit consideration said, heavy reliance that there was whom Logan, to Doyle, opinion) attempt this statute. The Breitenstein on submitted, case, argued it is distinguish the Norman when the case was only rehearing was cited show is denied. considered that it for petition power congressional the extent of having been rehearing petition area, monetary wholly off becomes case was panel to whom the by the denied mark. submitted, no member of argued and A further made regular active service judge in panel nor not have a value federal reserve note does having requested on the court equivalent to other forms United States banc, Rule rehearing en polled on court be However, currency. Congress has declared Procedure, Appellate Rules of Federal (1976) coins and that “All U.S.C. § banc is rehearing en suggestion (including currencies of the United States denied. * * *), regard- Reserve Notes Federal issued, less of when coined or shall be debts, private,
tender for taxes,
public charges, duties and' dues.” places federal *8 cerning whether the defendant understood Tenth Circuit. to file a return. was not May considered, Argued fully This matter was peti- only purpose 15, 1979. Decided Oct. express rehearing tion for is to the disa- 23, 1979. Nov. Rehearing Denied greement rul- of counsel with this court’s the accused as ing. Good faith belief of inconsequential in
what the law should be is
these circumstances. United States be tender satisfaction provide a gold clause was construed Cases, Legal Tender antecedent debts. it was to of value and definite standard (12 Wall.) (1871). L.Ed. U.S. currency protect against depreciation has also been held obligation by payment discharge power abrogate has the Con- prescribed. value than of a lesser clauses in private contracts call nullify- joint gress passed had resolution coin, payment gold though even preexist- stipulations in ing gold such clause tracts been executed before the enact- obligations provid- money ing contract by Congress legislation pro- ment dischargea- ing obligations that such were longer necessary pay vided was no currency coin ble dollar-for-dollar obligations coin. See Norman constituting pri- legal tender for Co., & Baltimore Ohio Railroad 294 U.S.
Notes
Federal Reserve provision shall be in or contained made with circulating Reserve banks notes of Federal respect any obligation hereafter incurred. banking and national associations. Every obligation, in- heretofore or hereafter 291, U.S. at 55 S.Ct. fn.l. at 409 curred, provision whether or legal what argu- It is also to be noted that constitutes tender. His Congress has already grips come to question ment is also in conflict with the Acts of legal whether United are policies States notes as money which establish 452, tender in provides: 31 U.S.C. rulings well as Therefore, subject. the theme which United notes shall be lawful States money, advances, legal payment namely and a tender in that the court should debts, public private, within the reestablish the standard least States, except case, United for duties on im- purposes considering his client’s ports public and interest on the debt. subject, contrary to all federal law on the constitutional, statutory judicial deci- chapter provides: Section 453 of the same sight sions. Counsel loses of the fact that Treasury Demand notes authorized change legal as to tender the standard 17, 1861, 5, July Act of chapter exclusively apply would not to the accused. February Stat. and the Act of well. apply government would to the chapter 12 Stat. shall be Thus, not effect his obli- change would lawful money and a in like tender gation to file a tax return. manner as United States notes. Trea- sury notes July issued under the Act of Accordingly, we must conclude 14, 1890, chapter shall Stat. rejected. made has to be debts, be a legal payment tender in of all private, except where otherwise II. expressly stipulated contract, in the
“redeemable received part intention on the deliberate he said he read book which ver.” One other returns, which defendant not to file tax Manhood, by one Mar- Slavery Tax file, at the he knew influ- this also Cooley. He said that vin L. them. required by time he was law file he had viewpoint as to whether enced his He also admitted appellant maintains that: to file a return. duty Counsel for the the same he had read other books at the “If forward brought evidence Tax Revolt. including one entitled nature indicating that Defendant relied trial the witness Thus, and believed in faith that he upon his admissions years al- acted during received ‘dollars’ that he established certainly stand
only.
States,
Reynolds
See
v. United
98
ap
der the Internal Revenue Code. This
145, 166-167,
(1879),
U.S.
This statute reserve par with all other forms of States United currency exchange regard- as a medium of America, STATES of UNITED less of whatever formal differences exist Plaintiff-Appellee, Cf. among currency the various statutes. (1976), and U.S.C. § U.S.C. § (1976). This is the law of the land and HOMA, Jr., George Adam upheld. must be Defendant-Appellant. that the trial court The next contention is No. 78-1220. refusing erred in to-instruct Appeals, United States