NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 1367, INTERNATIONAL LONGSHOREMEN‘S ASSOCIATION, AFL-CIO et al., Respondents.
No. 22034.
United States Court of Appeals Fifth Circuit.
Dec. 5, 1966.
1010
Warner F. Brock, Herman Wright, Houston, Tex., Mandell & Wright, Houston, Tex., for respondents.
Before TUTTLE, Chief Judge, HUTCHESON, Circuit Judge, and CHOATE, District Judge.
PER CURIAM:
The order of the National Labor Relations Board will be enforced. See Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO v. Nаtional Labor Relations Board, 5th Cir., 368 F.2d 12. No. 22239, Dec., November 9, 1966.
HUTCHESON, Circuit Judge, dissenting.
CHOATE, Senior District Judge (concurring):
I concur in the decision to enforce the order of the National Labor Relations Board because of the respondent‘s clear failure to represent one segment of its members properly. The facts of this case show a definite breach of the union‘s duty to represent impartially all members, which amounts here to an unfair labor practice upon the part of the union.
However, I fully realize that here the Board is treading perilous waters by taking over the duties of unions. By far, the preferable procedure is to let individuals take ordinary steps, such as filing suit, to adjust such grievances. The reasoning in Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workеrs of America, AFL-CIO v. National Labor Relations Board, 5th Cir., 368 F.2d 12, No. 22239, in my opinion tends to set a dangerous precedent, in that it puts the court in the position of approving the Board‘s action in telling a labor union (a private organization) how to perform its functions.
My concurrence is largely upon the basis of expediting the remedy in a case of clear fault, rather than approving the method employed, which I recognize could be most destructive of unions if carried forward to any extent by the Board.
William A. BACHER, Joseph H. Sage, etc., Appellants, v. Joseph Patrick PATENCIO et al., Appellees.
No. 19682.
United States Court of Appeals Ninth Circuit.
Dec. 1, 1966.
Saul Ruskin, Palm Springs, Francis H. O‘Neill, William G. Coskran, Los Angeles, Cal., for appellants.
Raymond C. Simpson, Laurence M. Watson, Long Beach, Cal., James Hollowell, Palm Springs, Cal., for appellees.
Before CHAMBERS, BARNES, and ELY, Circuit Judges.
PER CURIAM:
The majority agrees with the reasoning of Judge Byrne in the court below. 232 F.Supp. 939 (S.D.Cal.1964). The
CHAMBERS, Circuit Judge (concurring):
I reach the same result as the majority.
Joseph Patrick Pаtencio, an Indian of the Agua Caliente band of Mission Indians, has reneged on his deal made by him and his California conservator to sell his federally allotted land at Palm Springs to the appellants. The land is still held by the United States for Patencio under congressional Indian laws administered by the Secretary of the Interior. (This concurrence will assume familiarity with the district court opinion, Bacher et al. v. Patencio and his conservator, 232 F.Supp. 939. Therein that court sustained a motion to dismiss appellants’ complaint wherein thеy were plaintiffs.)
I would affirm on a different ground, not reaching the ground relied upon by the trial court. Generally, the trial court held that under federal Indian law Patencio could dо with impunity just what he has done.
The Secretary‘s delegate under applicable statutes found the sale fair to the Indian and eventually approved it. But the Secretary hаs declined to issue his deed to Patencio because Patencio, not his guardian, has requested the Secretary not to issue it. At all times pertinent to this case, Patencio has had a conservator, a polite word for one type of guardian in California. The complaint shows the conservator is ready and willing (but not able) to perfоrm the private contract with appellants to sell. The contract is evidenced by escrow instructions to the bank signed by appellants, Patencio and the consеrvator. But the conservator is not able to carry out the transaction by giving his deed to the appellants because, as above related, the Secretary, at Patencio‘s behest, issues no deed to him. The state superior court in Riverside County has approved, in regular conservator-guardian proceedings, the sale.
My analysis is this: To get title to appellants, the title to the property must first be placed in the ward Patencio by the Secretary under all of the paternal provisions for handling the Indiаn trust lands. Then to get the title from the ward over to the buyers, the rights are grounded in California law.
The conservator has not breached the contract.1 No allegation is made that he has not done everything requested or demanded of him.2 But еven if the Indian is just a little bit incompetent, he has a conservator appointed under the California state probate laws.3 The existence of this conservator dеprived the Indian of his personal right to make California contracts about his land in California,4 just as if he were wildly insane. The contract, therefore, stands as if only signed by the cоnservator.5 Therefore, the In
I would like to dispose of the case by the method above outlined because I think a disposition under federal law based upon an analysis of the gamut of statutes affecting Indians would be more appropriate in a case where the Secretary of Interior is before the court. Appellants fail if they cannot clear both state and federal law. They do not here clear state law.
I have not reached the question of whether on the federal issues the Secretary of Interior is a necessary, proper or possible party.
Alvin CHESONIS, Appellant, v. John GARDNER, Seсretary of Health, Education and Welfare, United States of America, Appellee.
Nos. 15875, 15876.
United States Court of Appeals Third Circuit.
Argued Nov. 1, 1966. Decided Dec. 12, 1966.
W. J. Krencewicz, Shenandoah, Pa., for appellant.
Joseph R. Ritchie, Jr., Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O‘Keefe, U. S. Atty., on the brief), for appellеe.
Before GANEY, SMITH and FREEDMAN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This matter involves the disposition of motions for summary judgment by both the plaintiff and defendant and an appeal by the plaintiff from the granting of defendant‘s motion and the denial оf the plaintiff‘s motion.
The plaintiff filed an application for a period of disability and for disability insurance benefits on April 18, 1962, alleging he became unable to work on Novеmber 10, 1959. The application was denied initially and later reconsidered by the Division of Disability Operations of the Social Security Administration, after the Pennsylvania Board of Vocational Rehabilitation had found the plaintiff was not under a disability upon an evaluation of the evidence by a physician and a disability examiner. The hearing examiner, considering the case de novo, found, on April 11, 1963, that the plaintiff was not under a disability beginning on or before June 30, 1962, when he last had the necessary disability status. After denial of his request fоr review of the hearing examiner‘s decision by the Appeals Council, plaintiff brought an action in the District Court requesting judicial review of the decision. On its own motion, by order of January 8, 1964, the matter was remanded to the Secretary of the Department of Health, Education and Welfare for the taking of additional testimony stating that reconsideration should be given to his employment capabilities and establishment of whether such disability as he had prevented him from engaging in any substantial gainful activity. Additionally, evidence was taken by the hearing examiner, including that of a vocational consultant, and the examiner found that the plaintiff was not under a disability and, upon consideration of the whole reсord, the Appeals Council, as of December 30, 1964, rendered a decision which approved and adopted the hearing examiner‘s recommended decision оf October 9, 1964. Accordingly, the Appeals Council‘s decision was the final decision of the Secretary of Health, Education and Welfare.