753 F.2d 779
40 Fed.R.Serv.2d 1450
Frederick HOPTOWIT, et al., Plaintiffs-Appellees,v.John SPELLMAN, et al., Defendants-Appellants.
No. 83-4284.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 3, 1984.Decided Feb. 12, 1985.

Timothy K. Ford, American Civil Liberties Union, Richard P. Blumberg, Mark & Blumberg, Seattle, Wash., for plaintiffs-appellees.
William C. Collins, Sr. Asst. Atty. Gen., Dept. of Corrections, Olympia, Wash., for defendants-appellants.
Appeal from the United States District Court for the Eastern District of Washington.
Before DUNIWAY, FERGUSON, and NELSON, Circuit Judges.
DUNIWAY, Circuit Judge:

1
This is the second appeal in this case.  In the prior appeal, Hoptowit v. Ray, 9 Cir., 1982, 682 F.2d 1237 (Hoptowit I ), we affirmed in part, reversed in part, and remanded for further proceedings.  Our decision in Hoptowit I is the law of the case, see Planned Parenthood of Central and Northern Arizona v. Arizona, 9 Cir., 1983, 718 F.2d 938, 949;  Moore v. Jas.  H. Matthews & Co., 9 Cir., 1982, 682 F.2d 830, 833-35, and we are required to follow it, absent special considerations that are not present here.  In this opinion we assume that the reader is familiar with our decision in Hoptowit I.

2
I. Failure to Reopen the Record.

3
After our mandate went down, the trial judge set a date for a hearing on the remanded issues, in November, 1982.  Shortly before that hearing, the State had filed a motion for declaratory judgment, asking the court to declare that the penitentiary meets or exceeds the constitutional minima in areas including physical brutality and medical care.  At the opening of the hearing the State asked the district court to determine whether or not it was in compliance in those areas.  The state also moved for relief from the judgment under Fed.R.Civ.P. 60(b) on the ground that conditions at the penitentiary had improved.  The judge allowed the State to file evidence relating to the issue of changed circumstances, but ruled that the appropriate time to consider such evidence would be at a later compliance hearing.  He limited the hearing "to enter[ing] an order in conformance with the Ninth Circuit."    The judge entered the Order on Remand in May, 1983, and the State appeals.

4
The State argues that it was error for the district court to refuse to conduct a hearing regarding alleged new defendants and changed circumstances before issuing its order on remand.  We hold that the district court did not abuse its discretion.

5
A. New Defendants.

6
The State argues that the named defendants have been succeeded by others, and, therefore, the district court erred by failing to conduct a hearing to determine whether the new administration has continued and will continue the unconstitutional practices of its predecessors.  The State maintains that such a hearing is required under Mayor of City of Philadelphia v. Education Equality League, 1974, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630, and Spomer v. Littleton, 1974, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694.

7
The complaint named as defendants the Governor of the State of Washington, the Secretary of its Department of Social and Health Services (the agency responsible for the operation of the penitentiary at that time), as well as various officials within the Corrections Division of that Department.  The complaint named these defendants in both their personal and official capacities.  The State says that each of the named defendants has either left office or changed position.  It also says that, in 1981, a new Department of Corrections was created to administer the Washington State adult corrections program.

8
Those changes did not require the district court to reopen the record before issuing its order on remand.  First, the two defendants principally responsible for the administration of the penitentiary remain in control;  they have simply been promoted.  Lawrence Kinchloe, formerly the Associate Superintendent, is now the Superintendent.  James Spaulding, formerly the Superintendent, is now the Deputy Director of the Division of Prisons of the new Department of Corrections.

9
Second, the successors of the named defendants, although not named, are themselves parties by reason of Fed.R.Civ.P. 25(d)(1):

10
When a public officer is a party to an action in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party.

11
The State argues that, despite this rule, an injunction cannot be issued against a successor to public office without "supplemental findings of fact indicating that the new officer will continue the practices of his predecessor," Mayor, supra, 415 U.S. at 622, 94 S.Ct. at 1334, citing Spomer, supra.    Cases in other circuits have applied the Mayor-Spomer analysis.    See Kincaid v. Rusk, 7 Cir., 1982, 670 F.2d 737, 741;  A.C.L.U. v. Finch, 5 Cir., 1981, 638 F.2d 1336, 1345-47.  But see Santiago v. Corporacion de Renovacion, etc., 1 Cir., 1977, 554 F.2d 1210, 1213.  However, Mayor and Spomer involved circumstances quite different from those here.    Mayor was "a case devoted exclusively to the personal appointment policies of [the new mayor's] predecessor."   Mayor, supra, 415 U.S. at 613, 94 S.Ct. at 1329.    Spomer involved alleged racial discrimination by a former State's Attorney.  As the Court said, "[t]he wrongful conduct charged in the complaint is personal to [the former official], despite the fact that he was also sued in his then capacity as State's Attorney."   Spomer, supra, 414 U.S. at 521, 94 S.Ct. at 689.

12
In this case, most of the evidence does not relate to the personal conduct of the principal named defendants.  In Hoptowit I, we affirmed various findings of fact concerning institutional practices and physical conditions at the penitentiary.  These are facts "from which the continuation of the dispute is a reasonable inference," Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, etc., 5 Cir., 1980, 622 F.2d 807, 822, and not merely "idiosyncratic abuses of the particular members of the outgoing administration," A.C.L.U. v. Finch, supra, 638 F.2d at 1346-47.  This case fits squarely within the principle stated in the Advisory Committee Notes to Rule 25(d)(1):

13
In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than the one who has lost that status and power through ceasing to hold office.

14
Moreover, we do not read the record as showing a fixed determination by the judge that all of the named defendants' successors must be kept in the case as defendants.  Rather, we conclude that, at most, the record only shows that the court elected to decide, first, what findings it should make and what conclusions it should reach in the light of our remand in Hoptowit I, and then decide what it should do in response to the successors' arguments.  Surely, when two or three motions are presented to a court, it has discretion to decide the order in which it would consider and decide them.  A party claiming abuse of that discretion has a heavy burden of persuasion.  We do not think that the burden has been met here.

15
B. Changed Circumstances.

16
The State argues that the district court abused its discretion by failing to reopen the record in the light of the time which had elapsed between trial (May, 1980) and the Order on Remand (May, 1983) and in the light of alleged improvements at the penitentiary.  We disagree.

17
1. The motion was deficient.

18
The motion did not comply with the Rules of the United States District Court for the Eastern District of Washington.  E.D. Local Rule 11(c) requires that a moving party serve and file a memorandum of points and authorities "with the motion " (original italics).  The State's motion for Declaratory Judgment was filed before the remand hearing.  However, the State did not file its accompanying brief until after the hearing had taken place.  Under E.D. Local Rule 11(i),

19
A failure to timely file a memorandum of points and authorities in support of or in opposition to any motion may be considered by the Court as consent on the part of the party failing to file such memorandum to the entry of an order adverse to counsel in default.

20
2. The court did not abuse its discretion.

21
During the hearing the State again raised its claims in a motion for relief from the judgment under Fed.R.Civ.P. 60(b). Such a motion is addressed to the discretion of the district court.  Martella v. Marine Cooks & Stewards U., 9 Cir., 1971, 448 F.2d 729, 730.

22
The district court correctly explained that the purpose of the remand hearing was to follow the instructions of this court and order an appropriate remedy for Eighth Amendment violations found at the penitentiary.  The court acted within its discretion in refusing to review the State's evidence of alleged compliance until after the issuance of the order on remand.

23
II. Eighth Amendment Violations.

24
In its original opinion, the district court found that various aspects of the penitentiary's "old, dilapidated, and ill-maintained" physical plant have "serious health implications."   Hoptowit I, 682 F.2d at 1256.  More specifically, the district judge found:  overcrowding, substandard lighting, unsatisfactory plumbing, substandard fire prevention, substandard food service, vermin infestation, lack of an effective maintenance program, inadequate ventilation, safety hazards in the occupational areas, unavailable or inadequate cell cleaning supplies.  We affirmed these findings of fact, except the finding regarding overcrowding.  Id.

25
On the basis of these findings, the district court concluded that "the general condition of [the penitentiary's] physical facilities when considered in their totality ... falls below minimum standards of decency and conditions of confinement and violates [p]laintiffs' Eighth Amendment rights."    Id.  We reversed this conclusion of law on the ground that the district court improperly applied the "totality of conditions" analysis.  We instructed the district court on remand to "consider each finding and decide whether each condition amounts to an unnecessary and wanton infliction of pain."    Id.  We added:  "Of course, each condition can be considered in light of other conditions."    Id.

26
The district court followed this direction, and concluded that each of several of the conditions did violate the Eighth Amendment.  On this appeal, the State attacks the district court's legal conclusions as to several of these conditions.  We review these conclusions de novo.  Hoptowit I, 682 F.2d at 1245.

27
A. Inadequate Lighting.

28
Adequate lighting is one of the fundamental attributes of "adequate shelter" required by the Eighth Amendment.  The district court's conclusion that the lighting at the penitentiary violated the amendment is based upon evidence that the lighting was so poor that it was inadequate for reading and caused eyestrain and fatigue and hindered attempts to insure that basic sanitation was maintained.  We uphold the district court's conclusion.

29
B. Plumbing.

30
Plumbing at the penitentiary is in such disrepair as to deprive inmates of basic elements of hygiene and seriously threaten their physical and mental well-being.  Such conditions amount to cruel and unusual punishment under the Eighth Amendment.    Ramos v. Lamm, 10 Cir., 1980, 639 F.2d 559, 567-69;  Gates v. Collier, 5 Cir., 1974, 501 F.2d 1291, 1300-03.  We uphold the district court's conclusion.

31
C. Vermin.

32
The district court found vermin infestation throughout the prison.  It concluded that such a condition is inconsistent with the adequate sanitation required by the Eighth Amendment.  We agree.  The health hazard caused by vermin at the penitentiary is exacerbated by the plumbing and ventilation inadequacies.  Such vermin infestation, properly considered in the light of unsanitary conditions such as standing water, flooded toilets and sinks, and dank air, is an unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.

33
D. Fire Safety.

34
The district court concluded that the substandard fire prevention at the penitentiary endangered the prisoners' lives and therefore violated the Eighth Amendment.  Prisoners have the right not to be subjected to the unreasonable threat of injury or death by fire and need not wait until actual casualties occur in order to obtain relief from such conditions.  Leeds v. Watson, 9 Cir., 1980, 630 F.2d 674, 675-76.

35
E. Ventilation and Air Flow.

36
The lack of adequate ventilation and air flow undermines the health of inmates and the sanitation of the penitentiary, see Ramos, supra, 639 F.2d at 569.  We agree with the district court's conclusion that the condition violates the minimum requirements of the Eighth Amendment.   Id. at 568.

37
F. Safety Hazards.

38
The district court found "serious" safety hazards in the occupational areas.

39
Persons involuntarily confined by the state have a constitutional right to safe conditions of confinement.    See Youngberg v. Romeo, 1982, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28;  Santana v. Collazo, 1 Cir., 1983, 714 F.2d 1172, 1183.  Not every deviation from ideally safe conditions amounts to a constitutional violation, see, e.g., Santana at 1183.  However, the Eighth Amendment entitles inmates in a penal institution to an adequate level of personal safety.  This is required because inmates, by reason of their confinement, cannot provide for their own safety.   Santana, supra, 714 F.2d at 1183.    See also Estelle v. Gamble, 1976, 429 U.S. 97, at 103-04, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251.  We conclude that the safety hazards found throughout the penitentiary's occupational areas, exacerbated by the institution's inadequate lighting, seriously threaten the safety and security of inmates and create an unconstitutional infliction of pain.

40
G. Inadequate Cell Cleaning Supplies.

41
This problem must be evaluated in the light of the overall squalor at the penitentiary.  Failure to provide adequate cell cleaning supplies, under circumstances such as these, deprives inmates of tools necessary to maintain minimally sanitary cells, seriously threatens their health, and amounts to a violation of the Eighth Amendment.   See Ramos, supra, 639 F.2d at 570.

42
H. Segregation and Protective Custody.

43
The State challenges portions of the district court's order on remand regarding physical plant aspects of segregation and protective custody units at the penitentiary.  It does not challenge this order with respect to the penitentiary's isolation units.  Although the State considers segregation and protective custody together, the district court considered them separately, and so do we.

44
1. Segregation.

45
In Hoptowit I, at 1257, we set out the judge's findings relating to segregation.  We do not repeat them here.  We held that they were not clearly erroneous.  On remand, the judge made similar findings, omitting two, numbered 4 and 6, comparing segregation to isolation, and stating the difficulty prisoners have in working their way out of segregation.  The new findings are still not clearly erroneous.

46
2. Protective custody.

In its brief, the State says:

47
"The protective custody findings on remand do not specifically mention physical plant conditions."    Here is what the findings say:

48
25.   Conditions in the protective custody section of WSP exhibit the same or greater deficiencies as conditions elsewhere in the penitentiary area and failed to adequately promote the purposes for which protective custody exists.  These conditions cause the prisoners housed in protective custody to live in an atmosphere of fear, vulnerability, and frustration.

49
We do not understand the State's position.

50
The judge also found that protective custody guards regularly subjected protective custody prisoners to harassment and racial slurs and threatened to return those prisoners to the general population.  The State does not attack this finding, which we held not clearly erroneous in Hoptowit I, at p. 1257.  We have not changed our minds.

51
III. Relief.

52
The State argues that the following portions of the district court's order on remand, relating to physical plant, segregation and protective custody, are overbroad:

53
[Penitentiary] officials shall operate and maintain the penitentiary physical plant so that inmates receive adequate food, shelter, clothing, sanitation, medical care and personal safety.

54
[Penitentiary] officials shall provide inmates in protective custody ... [and] segregation ... with adequate food, clothing, shelter, sanitation, personal safety and medical care.

55
We agree.

56
There is no finding that there was not adequate food or adequate clothing in the prison.  To that extent the order is overbroad.  Moreover, while the court's language is taken almost verbatim from our opinion in Hoptowit I, at p. 1258, and appears verbatim in Wolfish v. Levi, 2 Cir., 1978, 573 F.2d 118, 125, which we cited, it does not follow that it is good language to embody in an injunction.

57
We agree with the view that the court should not try to tell the administrators of the prison how to cure the unconstitutional conditions that the court found.  The administrators presumably know more about how to run a prison, and how to improve conditions there, than the judge does.  Doing those things is their business, not that of the court.  The court was wise in not trying to take over the management of the prison.

58
However, as we said in Hoptowit I, the judge "must order the correction of specific violations ... and may require only that these corrections bring the conditions above constitutional minima."   Hoptowit I, supra, 682 F.2d at 1257.  The injunction should refer to the specific violations and order their correction.  It need not tell the defendants how to do the correcting.  The court can, and perhaps should, monitor what is being done in response to the order.  That is a question for the district court to decide.  As we said in Hoptowit I, the remedy should be "tailored to correct the specific violation and no more obtrusive than to satisfy the constitutional minima," p. 1258.  The judge should do some cutting and fitting.

59
IV. Conclusion.

60
We affirm the district court's findings of fact and conclusions of law.  We vacate the following provisions of the court's order of May 20, 1983:

61
Part IV, paragraph 7, and Part V, paragraph 8.  In all other respects, we affirm the order.  The case is remanded to the district court for further proceedings consistent with this opinion.  The appropriate individuals who have succeeded the defendants originally named should be brought into the case, and named as defendants.  The injunction may also be phrased to run against other successors who may take office hereafter.

62
Affirmed in part, vacated in part, and remanded.


603 F.2d 1310
102 L.R.R.M. (BNA) 2128, 86 Lab.Cas.  P 11,520
The PROCTER & GAMBLE MANUFACTURING COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,Association of Employees of the Procter & GambleManufacturing Company's St. Louis Plant,Intervenor-respondent.
No. 78-1716.
United States Court of Appeals,Eighth Circuit.
Submitted March 12, 1979.Decided Aug. 23, 1979.

Harold S. Freeman of Dinsmore, Shohl, Coates & Deupree, Cincinnati, Ohio, argued and Michael S. Glassman, Cincinnati, Ohio, on appendix and briefs, for petitioner.
Edward S. Dorsey, Atty., N. L. R. B., Washington, D.C. argued, and Andrew E. Tranovich, Atty., John S. Irving, Gen. Counsel; John E. Higgins, Jr., Deputy Gen. Counsel; Robert E. Allen, Acting Assoc.  Gen. Counsel; and Elliott Moore, Deputy Assoc.  Gen. Counsel, Washington, D.C., on brief, for respondent.
Before LAY, ROSS and McMILLIAN, Circuit Judges.
McMILLIAN, Circuit Judge.

1
The Procter & Gamble Manufacturing Company (the Company) petitions this court, pursuant to § 10(f) of the National Labor Relations Act, 29 U.S.C. § 151, Et seq., (the Act) to review a decision and order of the National Labor Relations Board (the Board).  The Board affirmed the rulings and findings of the Administrative Law Judge (ALJ) and adopted her recommended order.1  The decision and order found that the Company violated § 8(a)(5) and (1) of the Act by refusing to comply with a union request for job evaluation information, where the requested information was needed by the union to evaluate whether to pursue salary-related grievances to arbitration.  The Board ordered the Company to turn over the disputed information, post compliance notices, and cease and desist from like or related practices.  The Board, pursuant to § 10(e) of the Act, cross-appeals for enforcement of its order.  On October 24, 1978, we permitted the Association of Employees of the Procter & Gamble Manufacturing Company's St. Louis plant (the Union) to intervene in these proceedings.

2
We find that there is substantial evidence on the record as a whole to support the Board's decision, and, accordingly, deny the petition for review and order enforcement of the order.

3
Since 1937, the Union has been the exclusive representative for the bargaining unit of production and salaried office clerical employees at the Company's St. Louis plant.  The present controversy arose in June, 1976, when two clerical employees filed separate written grievances alleging discrimination in job evaluation.  Both employees alleged that their duties and job descriptions were the same as higher job classifications but both were classified in lower salary ranges.

4
The parties' collective bargaining agreement contains two sections relevant to this case.  Article III, § 6, permits the Job Evaluation Representative, a representative of the Union, to be heard before and after the evaluation or reevaluation of a job, but not to sit in on the evaluation itself.  It also permits the Union representative to present his views concerning the job descriptions and evaluations, but does not permit him to participate in the actual rating.  Finally, this section provides that the employer will train the Union representative in the theory and practice of job evaluations.  Article VIII of the agreement provides for a four-step grievance procedure covering any matter involving The interpretation or application of any provision of the agreement, or any matter affecting the employee in respect to work, wages or working conditions, culminating in final and binding arbitration.  (Emphasis added).

5
Since 1940 the Company has had a job evaluation plan.  Although the agreement refers to job evaluation, the provisions of the job evaluation plan are not specifically set forth in the agreement.  The job evaluation plan is a complicated, highly sophisticated plan used by the Company to determine job classifications and salaries.  The job evaluation committee determines the salary range for each position.  The committee is chaired by the Company's personnel manager, who appoints four other department heads.  When a job is to be evaluated or reevaluated, the five management representatives rate each of eight factors on a one to ten scale: (1) complexity; (2) experience and training; (3) contact with others; (4) dexterity; (5) concentration; (6) accuracy; (7) working conditions; and (8) responsibility.  After rating each factor, the management representatives refer to a ladder chart which contains a breakdown of where each job falls within the ten point spread for each of the eight factors.

6
After the management representatives have rated a factor, the points for that factor are averaged and the average for each factor is multiplied by a weighted percentage factor.  The weighted points for each of the eight factors are then totalled and placed in a rate group based upon the total points.  There are seven pay groups for the salaried jobs Groups A to G.  Each group has a different wage range.  The seven pay groups have a one hundred point spread.  If a job falls near the top of the point range, and additional duties are added so that when the job is evaluated or reevaluated the total points go into the point range of the next pay group, the job will receive higher wages.

7
Although the Union representative is permitted to attend job evaluations and reevaluations, he does not have a copy of the twenty-page job evaluation manual, does not have copies of the job descriptions, and does not have copies of the summary sheets or the ladder charts.  The Union's representative is neither given anything in writing nor permitted to take notes.  Nor, because of the Company's policy that rating factors and point information are confidential, is the Union's representative permitted to make copies of this material or to disclose any information received pertaining to the job evaluations to any other person, including the members of the grievance committee.

8
Both grievances filed by the two employees proceeded along parallel paths through the four-step grievance procedure.  At each step the Company denied each grievance.  Upon receipt of the fourth-step answer or denial, the Union's grievance committee asserted that it was unable to decide whether to recommend that these grievances go to arbitration.  Consequently, it turned over all the information it had on file to the Union's attorney, who also was an industrial engineer, with extensive experience in job evaluations.  After the Union's attorney had reviewed the files, he requested from the grievance committee chairperson other information and documents that he considered necessary to evaluate the merits of the grievances.

9
Being unable to obtain the sought after information from the chairperson, the attorney drafted a letter for the chairperson's signature and mailed it to the plant manager.  After informing the Company that the requested information was necessary in order to evaluate the grievance and to decide whether to process it for arbitration, the letter requested copies of the applicable job evaluation manual, which set forth the rating procedure, the rating factors, factor definitions, current job descriptions for clerk positions and any changes in job descriptions in the previous five years; the original evaluation sheet; the original reevaluation comparison sheet for those positions and fact breakdowns for the past three years; the most recent rating sheets used by the evaluators in reevaluating these positions; and the point spread for each rate group.

10
In response to the Union's request, the Company, after a reference to Article III, § 6, of the agreement, replied that the Company would be happy to meet with the Union representative and answer questions.  The Company further directed the Union representative to contact the job evaluation plan chairperson to arrange a meeting.

11
Upon the receipt of the Company's reply, the Union filed an unfair labor charge, alleging a § 8(a)(5) and (1) violation of the Act by the Company's refusal to furnish the requested information.

12
The Board found that the Union had a statutory right to the requested information, because it was relevant to the Union's role as bargaining representative; that each requested document was an integral part of the job evaluation scheme which concerns the compensation of bargaining unit employees and was directly relevant to the Union's evaluation whether to submit the grievances to arbitration; and that no waiver of the right of access to this job evaluation information occurred.  The Board further found that the Company's obligation to furnish the requested information was not fulfilled by its offer to meet and answer questions because (1) the job evaluation representative was not a member of the grievance committee, and (2) the job evaluation representative was prohibited from releasing most of the information to anyone.

13
The question for decision is whether substantial evidence on the record as a whole supports the Board's finding that the Company violated § 8(a)(5) and (1) of the Act by refusing to supply requested relevant job evaluation information that was needed by the Union to pursue a salary-related grievance to arbitration.

14
The duty to bargain in good faith requires an employer to furnish information that the bargaining representative needs for the proper performance of its duty.  A failure to so provide constitutes a refusal to bargain in violation of § 8(a)(5) and (1) of the Act.  NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 151-54, 76 S.Ct. 753, 100 L.Ed. 1027 (1956).  This obligation extends to the Union's need for information during the administering and policing of a contract as well as during contract negotiations.  NLRB v. Acme Industrial Co., supra, 385 U.S. at 435-36, 87 S.Ct. 565; Western Massachusetts Electric Co. v. NLRB, 589 F.2d 42, 46 (1st Cir. 1978); Puerto Rico Telephone Co. v. NLRB, 359 F.2d 983, 986 (1st Cir. 1966).  To refuse to furnish such relevant information violates the Act, irrespective of the employer's good or bad faith, because it conflicts with the statutory policy to facilitate effective collective bargaining.  Curtiss-Wright Corp. v. NLRB,347 F.2d 61, 68 (3d Cir. 1965); Accord, NLRB v. Ramona's Mexican Food Products, Inc., 531 F.2d 390, 394 (9th Cir. 1975).

15
Information pertaining to the wages, hours and working conditions of employees in the bargaining unit is so intrinsic to the core of the employer-employee relationship that it is considered presumptively relevant.  San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977); Accord, Teleprompter Corp. v. NLRB, 570 F.2d 4, 8 (1st Cir. 1977); NLRB v. Western Electric, Inc.,  559 F.2d 1131, 1133 (8th Cir. 1977); Curtiss-Wright Corp. v. NLRB, supra,  347 F.2d at 69.  When dealing with such information for bargaining unit employees, the Ninth Circuit held in San Diego Newspaper Guild that the employer had the burden of proving a lack of relevance.  548 F.2d at 867.  See also Prudential Insurance Co. v. NLRB, 412 F.2d 77, 84 (2d Cir.), Cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969).  Moreover, as to this type of information, the union is not required to show the precise relevancy of the requested information to particular current bargaining issues.  Teleprompter Corp. v. NLRB, supra, 570 F.2d at 8, Citing Boston Herald-Traveler v. NLRB, 223 F.2d 58, 63 (1st Cir. 1955).  And, as the Supreme Court stated in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960), "(t)he grievance procedure is . . .  part of the continuous collective bargaining process."

16
In determining whether an employer is obligated under the statute to supply particular information, the Board need only find a probability that the desired information is relevant and that it will be of use to the union in carrying out its statutory duties and responsibilities.  NLRB v. Rockwell-Standard Corp.,  410 F.2d 953, 957 (6th Cir. 1969), Citing with approval NLRB v. Acme Industrial Co., supra, 385 U.S. at 437, 87 S.Ct. 565.  The Supreme Court in Acme Industrial noted that the relevancy issue should be determined under a "discovery-type standard," 385 U.S. at 437, 87 S.Ct. 565, not a trial-type standard; hence, a broad range of potentially useful information should be allowed to the union for the purpose of effectuating the bargaining process, unless it is clearly irrelevant.  Once relevance is established, a refusal to furnish the requested information is per se a violation of the Act.  C-B Buick, Inc. v. NLRB, 506 F.2d 1086, 1091 (3d Cir. 1974); Curtiss-Wright Corp. v. NLRB, supra, 347 F.2d at 69.

17
What is or is not relevant depends on the particular facts in each case.  E. g., NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1113 (1st Cir. 1975).  Accordingly,

18
the Board's determination as to whether the requested information in a particular case is given great weight by the (Court) either because it is a question of fact, which is conclusively supported by substantial evidence . . . , or because it is a finding on a mixed question of law and fact which is within the peculiar expertise of the Board.

19
San Diego Newspaper Guild v. NLRB, supra, 548 F.2d at 867 (footnotes omitted).  Using this liberal standard of presumptive relevance as a guideline, we hold that the Board could properly conclude that, because the requested information concerned the compensation of bargaining unit employees and was needed to evaluate whether to arbitrate grievances alleging discriminatory job evaluations, the Company breached its statutory duty by failing to provide such relevant information.

20
Even the Company does not deny that a grievance can be filed over the results of a job evaluation.  The Company argues, however, that the job evaluation program is not subject to arbitration because job evaluation does not involve an application or interpretation of any provision of the bargaining agreement in that the Company's job evaluation plan is not incorporated in the agreement.  The Company further cites us to our case of Brown v. Sterling Aluminum Products Corp., 365 F.2d 651 (8th Cir. 1966), Cert. denied, 386 U.S. 957, 87 S.Ct. 1023, 18 L.Ed.2d 105 (1967), for the proposition that the arbitration clause in the agreement limits arbitration to questions involving the application or interpretation of provisions of the agreement.  From this the Company concludes that if its job evaluation plan is not included in the agreement, but rather is a separate plan, then there is no obligation to submit disputes regarding the plan to arbitration.  Our present case is distinguishable, because in the Brown case we found that there was "No agreement contained in the collective bargaining contract to submit any question of interpretation of the contract to arbitration, nor (was) there any agreement (in the contract) to settle disputes thereunder by submission to an arbitrator or some other board."  365 F.2d at 658.  Because of this we said there was a fatal defect in the contract.  Id.  Here, however, compulsory arbitration is provided for in Article VIII of the agreement.

21
Nor do we find United Steelworkers v. General Steel Industries, Inc., 363 F.Supp. 840 (E.D.Mo.1973), Aff'd in part and rev'd in part, 499 F.2d 215 (8th Cir. 1974), apposite.  In General Steel Industries we held that grievances were arbitrable even though the insurance, pension and supplemental unemployment benefits were contained in agreements separate from the bargaining agreement.  499 F.2d at 218, 219.  We also noted that the grievances involved not only the plans but also the interpretation of provisions of the agreement.  In the present case, the agreement provides for job evaluation, in Article III, § 6, and further provides that neither the Union nor the Company will discriminate against any employee.  Article I, § 8, p. 7.  Here, both grievances alleged discrimination in job evaluations, and discrimination against the grievants was discussed in Steps 3 and 4 of the grievance procedure.  Thus, whether the two grievants were discriminated against in the evaluation of their jobs in relation to other clerical jobs is a matter, in our opinion, that involves the interpretation of provisions of the agreement.

22
In any event, the sole purpose of the Company's job evaluation plan is to determine the salary range for each clerical position by placing each position into one of seven lettered categories.  The placement of a clerical position into a lower instead of a higher lettered category causes a salary differential.  When the two grievants filed grievances contending that their positions were improperly placed in a lower lettered category than each employee thought appropriate, in effect they were contending that the Company was not paying them enough money for the work they were performing.  To determine whether to submit these grievances to arbitration, the Union needed the requested information to determine whether, as the grievants contended, the duties they performed were similar to other clerk positions which were placed into a higher grade.

23
The job evaluation manual is relevant because it explains the operation of the job evaluation plan, including the factors used to evaluate clerical positions, the definition of these factors, and the weight assigned to each factor.  The current job descriptions for departmental clerks are needed to compare duties with those duties performed by the grievants.  The changes to the departmental clerks positions are needed to determine whether any additional duties or responsibilities were added to these positions resulting in their being placed into a higher letter category and when reevaluations are deemed necessary.  The original evaluation sheets, reevaluation comparison sheets, summary sheets, and the most recent rating sheets are needed to determine possible discrepancies in evaluating the positions and to compare how the members of the evaluation committee evaluated similar job duties found in the job descriptions of the two grievants and the higher-evaluated departmental clerk positions.  Finally, the point spread for each lettered category is needed to assess whether the jobs of the two grievants are so near the breakpoint that one evaluation factor might place it into a higher salary range.

24
We attach no merit to the Company's assertion that the information sought was available from other sources.  True, the employees were permitted to see their own job descriptions on request, but they were not allowed to have a copy.  Similarly, the Union's grievance committee is permitted to see only the grievants' job descriptions, but they are not allowed to have copies or to see the job descriptions for any alleged positions having similar duties but in a higher lettered category.  The grievance committee is permitted neither to see the job evaluation manual, the evaluation sheets, the summary sheets, the rating sheets, the ladder chart, the spread for each letter category, nor any of the other requested documents.  None of the requested documents is in the possession of the job evaluation representative, the grievance committee or any other union member.  Even the Company admits that copies of the requested document can only be obtained from it, and stipulated that duplication of the requested documents would not be burdensome.  By the Company withholding this requested information, the Board could have reasonably assumed that it did so either to force the Union to abandon the two grievances, and thereby risk a breach of its duty of fair representation or to force the Union to take the grievances all the way through to arbitration without an opportunity to evaluate the merits of the claim.  "Nothing in federal labor law requires such a result."  NLRB v. Acme Industrial Co., supra, 385 U.S. at 438-39, 87 S.Ct. at 569.

25
We reject the Company's argument that it had fulfilled its bargaining obligation to the Union by offering to meet with the Union's job evaluation representative and answer questions.  As found by the Board, we too find this unresponsive to the Union's request.  First, it is the grievance committee, not the Union's representative, which has the obligation on behalf of the Union to evaluate the two grievances and to recommend whether to submit them to arbitration.

26
Simply meeting with the job evaluation representative as offered by the Company will not suffice because the job evaluation representative is permitted only to look at the requested documents, but not to make any copies.  In fact, the Union's job evaluation representative is precluded by the Company from taking notes or divulging to anyone the rating process.  These restrictions make it impossible for the Union to evaluate the bargaining unit employees' grievances and insure that, even if the Union submits them to arbitration, there would be no way that the Union could sustain its burden of proving that the classification of the jobs of the two grievants was discriminatory.  Under these circumstances, the alleged confidentiality of relevant economic data needed for informed bargaining is no defense for the Company's refusal to supply the disputed information.  NLRB v. Arkansas Rice Growers Cooperative Ass'n, 400 F.2d 565, 567 (8th Cir. 1968); NLRB v. Frontier Homes Corp., 371 F.2d 974, 979 (8th Cir. 1967).

27
Finally, we hold that the Board properly rejected the Company's argument that the Union was not entitled to the data and information because of a waiver.  For there to be a waiver of a right to information, the language used must be clear and unmistakable.  Likewise, there must be a conscious relinquishment by the Union, clearly intended and expressed to give up the right.  Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 750-51 (6th Cir. 1963), Cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964); NLRB v. Item Co., 220 F.2d 956, 958-59 (5th Cir.), Cert. denied, 350 U.S. 836, 76 S.Ct. 73, 100 L.Ed. 746 (1955); See also General Electric Co. v. NLRB, 414 F.2d 918, 923-24 (4th Cir. 1969), Cert. denied, 396 U.S. 1005, 90 S.Ct. 557, 24 L.Ed.2d 496 (1970).  Here the Company's defense of waiver is not founded on any clear and unmistakable language in the agreement because there is no express language therein to support its position that the Union had waived its statutory right to the requested job evaluation data and information for purposes of investigating and evaluating grievances.  Nor do we find any side agreement wherein the Union waived its statutory right to the disputed information.

28
The Company's reliance upon the 1958 collective bargaining negotiation to support its contract waiver argument is misplaced.  First, it must show more than that the Union yielded its initial bargaining position during the 1958 negotiations that it should have all the Company's job evaluation information for all purposes.  It must go further to show that the parties intended to limit the Union's statutory right to the information.  Yet, at no point in the negotiations did either party even discuss the Union's statutory right to job evaluation information.  Likewise, we find no indication in the record that the Union bargained for a concession from the Company in exchange for a limitation on its statutory right to information.  Indeed, the selective portions of the transcripts of the 1958 negotiations show nothing more than that the Union believed that a signed bargaining agreement without a contractual right to information was better than continued insistence upon a possible strike to force acceptance of such a provision.  E. g., NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1951) (per curiam).  Secondly, we find no support for the Company's contention for waiver in the monthly meetings between the parties.  From 1946 to 1977, the Union continuously confronted the Company with the necessity of having contractual access to the job evaluation information to review each job evaluation or else only those job evaluations that might be grieved.  We have considered at length all the arguments made by the Company to support waiver and find them to be without merit.

29
We have fully considered each of the Company's contentions and find them to be non-meritorious.  Accordingly, we deny the Company's petition for review and order enforcement of the Board's order.

30
ROSS, Circuit Judge, concurring.

31
I concur reluctantly in the result reached by the majority opinion.  I have grave doubts that the grievances in question are arbitrable and if they are not, this would be a valid defense to the production of the documents requested solely for the purpose of determining whether to arbitrate.  However, because the contract does not specifically deny the right to arbitrate grievances of this nature and because of the rebuttable presumption of arbitrability in § 301 type cases, United Steelworkers v. General Steel Industries, Inc., 499 F.2d 215, 219 (8th Cir. 1974), I believe the arbitrator must make the initial decision in this case as to arbitrability.  This result, although somewhat unfair, was dictated by the Supreme Court in NLRB v. Acme Industrial Co., 385 U.S. 432, 436-39, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967), where the Court upheld the Union's statutory right to discovery prior to arbitration.  If the arbitrator decides that the grievances are not arbitrable, I assume that the Company will then be free to resume its position that information of the type requested need not be made available to the Union in future grievance cases.

1
 The Board's decision and order are reported at 237 NLRB No. 110


539 F.2d 719
U. S.v.Diaz-Perez
No. 74-2153
United States Court of Appeals, Ninth Circuit
7/28/76

1
D.Ariz.

VACATED AND REMANDED


35 Ill.2d 251 (1966)
220 N.E.2d 198
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
ALEXANDER WALLACE, Appellant.
No. 39288.
Supreme Court of Illinois.
Opinion filed September 23, 1966.
ARTHUR J. O'DONNELL, of Chicago, for appellant.
WILLIAM G. CLARK, Attorney General, of Springfield, and WILLIAM R. KETCHAM, State's Attorney, of Geneva, (FRED G. LEACH, Assistant Attorney General, and BARRY E. PUKLIN, Assistant State's Attorney, of counsel,) for the People.
Judgment affirmed.
Mr. JUSTICE UNDERWOOD delivered the opinion of the court:
This is an appeal from the circuit court of Kane County, which denied defendant a new trial requested under the provisions of the Post-Conviction Hearing Act (Ill. Rev. *252 Stat. 1963, chap. 38, par. 122-1 et seq.) by a petition filed subsequent to his conviction of murder based upon a guilty plea upon which defendant was sentenced to imprisonment in the penitentiary for a term of 33 to 55 years.
Although defendant was specifically and at length advised by the court and by his counsel as to the possible consequences of a guilty plea, he nevertheless persisted in stating that he freely and voluntarily wished to so plead. He now contends that the guilty plea was not voluntary but was the product of promises of a light sentence by the chief deputy sheriff of Kane County. It is also maintained that the guilty plea was prompted by a written confession signed by defendant, now claimed to have been obtained from him through acts of physical brutality and duress by both Chicago and Kane County authorities. Defendant argues that he was thus deprived of rights secured him by the Illinois and United States constitutions and therefore the conviction must be reversed and the cause remanded for a new trial.
On June 17, 1962, the bullet-riddled body of one Herbert Kwate was found in the country near Carpentersville, Illinois. No witnesses to the killing were or have been forthcoming. On June 19, 1962, shortly before midnight, defendant and Gary D'Allessandro, upon receiving information that a Chicago police detective wanted to talk with them, voluntarily proceeded to a Chicago police station to see the detective.
Although no warrant was issued for his arrest, defendant was there held in custody by Chicago authorities and was intermittently interrogated by them. He was from time to time transferred to various Chicago police stations. Defendant, testifying at the post-conviction proceedings, stated that during one of these "outings", he was handcuffed and placed in a squad car and "taken for a ride", during which he was questioned about robberies and hit in the stomach *253 at least 15 times. He was then taken back to a police station, placed in a cell with D'Allessandro for a short time and subsequently placed in a "drunk tank" in the same building. Later, defendant became nauseous and was taken in custody to a hospital where he was examined but made no complaints of mistreatment, physical or otherwise. No definitive treatment was given defendant at the hospital, and he left, in custody of the officers, immediately following his examination.
Defendant was on June 20, at about 4:00 P.M. delivered to sheriff's police from Kane County who, after brief questioning, took him to the Kane County jail at Geneva, Illinois. After intermittent interrogation, defendant on June 23, 1962, confessed to the killing of Herbert Kwate. He was indicted, the public defender appointed to represent him, and the guilty plea was entered on August 6, 1962. Conviction and sentence followed.
At the post-conviction proceedings defendant testified that during the interrogation that brought about the confession, electrical wires were placed against his exposed privates several times and the confession was made only because of such brutal treatment.
Before the court sentenced defendant, a hearing in aggravation and mitigation was held during which the now allegedly coerced confession was placed before the court. During this hearing, defendant made no claims of physical mistreatment or coercion by any of the authorities involved, and, further, expressed his gratitude to the Kane County authorities for what they had done for him. At the post-conviction hearing, however, defendant completely changed his story. He told of the above related brutality by both Chicago and Kane County authorities and testified that he confessed only because of inhuman treatment visited upon him by police officers and promises that his sentence would be light should he co-operate with the Kane County authorities. *254 It is also claimed that defendant's requests for counsel and to make phone calls were denied him during the period of his pre-arraignment detention.
Virtually all of the police officers present during the alleged acts of brutality and alleged promises of lenient treatment testified that no such maltreatment was visited upon defendant, that defendant did not request counsel or to make phone calls, and that no promises of leniency were made. No contention is made that all material witnesses were not called to testify or their absence not adequately explained. Defendant's mother testified that she heard a sheriff's deputy promise defendant leniency and a minimum sentence. The circuit court determined that no relief was available to defendant under the provision of the Post-Conviction Hearing Act.
It is well settled in this State that illegal detention does not, of itself, require suppression of a confession otherwise voluntarily given but is merely a factor to be given consideration by the circuit court in determining whether the confession was in fact voluntary. (People v. Novak, 33 Ill.2d 343; People v. Kees, 32 Ill.2d 299; People v. Price, 24 Ill.2d 46.) Equally well established is the rule that the determination of the circuit court on the question of voluntariness of a confession will not be disturbed unless manifestly against the weight of the evidence (People v. Hartgraves, 31 Ill.2d 375; People v. DiGerlando, 30 Ill.2d 544.) Under the circumstances here present, we believe the circuit court's determination was not only not against the manifest weight of the evidence but was more than amply supported thereby.
We are mindful that the Supreme Court of the United States, in Miranda v. Arizona, 34 Law Week 4521, 384 U.S. 436, 16 L.Ed.2d 694, has set forth new requirements for the admissibility of confessions, but the principles of that case are not mandatorily applicable to cases wherein, as here, trial and conviction occurred before the date of the *255 Miranda decision. Johnson v. New Jersey, 34 Law Week 4592, 384 U.S. 719.
As stated earlier, defendant made no claim of police brutality at the hearing in aggravation and mitigation but changed his story only after sentence was pronounced and the post-conviction proceedings instituted. He made no claims of inhuman treatment to anyone while he was in custody or when taken to a hospital for treatment for nausea. There is no showing that any objective manifestations of brutal treatment, such as marks or bruises, appeared upon defendant's person, and all mistreatment was denied by those alleged to have perpetrated it. Defendant's claimed promises of leniency were specifically denied by those stated to have made them and it was denied that requests for counsel were made. It was clearly within the province of the circuit court to disbelieve the substantially uncorroborated claims that defendant made at the post-conviction proceedings.
The judgment of the circuit court of Kane County must accordingly be, and is, affirmed.
Judgment affirmed.


762 F.2d 1017
Colev.Commissioner of I.R.S.
84-3916
United States Court of Appeals,Ninth Circuit.
5/13/85

1
W.D.Wash.

AFFIRMED


188 U.S. 486 (1903)
CLARKE
v.
LARREMORE.
No. 51.
Supreme Court of United States.
Submitted December 15, 1902.
Decided February 23, 1903.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
*487 Mr. S. Livingston Samuels for appellant.
Mr. Nelson S. Spencer for appellee.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The contention of the petitioner is that
*488 "The sheriff having sold the goods levied on before the filing of the petition in bankruptcy, the proceeds of the sale were the property of the plaintiff in execution, and not of the bankrupt, at the time of the adjudication, and the trustee, therefore, has no title to the same."
This contention cannot be sustained. The judgment in favor of petitioner against Kenney was not like that in Metcalf v. Barker, 187 U.S. 165, one giving effect to a lien theretofore existing, but one which with the levy of an execution issued thereon created the lien; and as judgment, execution and levy were all within four months prior to the filing of the petition in bankruptcy, the lien created thereby became null and void on the adjudication of bankruptcy. This nullity and invalidity relate back to the time of the entry of the judgment and affect that and all subsequent proceedings. The language of the statute is not "when" but "in case he is adjudged a bankrupt," and the lien obtained through these legal proceedings was by the adjudication rendered null and void from its inception. Further, the statute provides that "the property affected by"  not the property subject to  the lien is wholly discharged and released therefrom. It is true that the stock and fixtures, the property originally belonging to the bankrupt, had been sold, but having, so far as the record shows, passed to a "bona fide purchaser for value," it remained by virtue of the last clause of the section the property of the purchaser, unaffected by the bankruptcy proceedings. But the money received by the sheriff took the place of that property.
It is said that that money was not the property of the bankrupt but of the creditor in the execution. Doubtless as between the judgment creditor and debtor, and while the execution remained in force, the money could not be considered the property of the debtor, and could not be appropriated to the payment of his debts as against the rights of the judgment creditor, but it had not become the property absolutely of the creditor. The writ of execution had not been fully executed. Its command to the sheriff was to seize the property of the judgment debtor, sell it and pay the proceeds over to the creditor. The time within which that was to be done had not elapsed, and *489 the execution was still in his hands not fully executed. The rights of the creditor were still subject to interception. Suppose, for instance, there being no bankruptcy proceedings, the judgment had been reversed by an appellate court and the mandate of reversal filed in the trial court, could it for a moment be claimed that, notwithstanding the reversal of the judgment the money in the hands of the sheriff belonged to the judgment creditor, and could be recovered by him, or that it was the duty of the sheriff to pay it to him? The purchaser at the sheriff's sale might keep possession of the property which he had purchased, but the money received as the proceeds of such sale would undoubtedly belong and be paid over to the judgment debtor. The bankruptcy proceedings operated in the same way. They took away the foundation upon which the rights of the creditor, obtained by judgment, execution, levy and sale, rested. The duty of the sheriff to pay the money over to the judgment creditor was gone and that money became the property of the bankrupt, and was subject to the control of his representative in bankruptcy.
It was held in Turner v. Fendall, 1 Cranch, 117, that money collected by a sheriff on an execution could not be levied upon under execution placed in his hands against the judgment creditor, and that the latter could maintain an action against the sheriff for a failure to pay the money thus collected. A similar ruling was made in New York, Baker v. Kenworthy, 41 N.Y. 215, in which it appeared that a sheriff had collected money on an execution in favor of one Brooks; that he returned the execution without paying the money to Brooks, but on the contrary levied upon it under an execution against Brooks, and it was held that such levy did not release him from liability to Brooks. It was said in the opinion (p. 216):
"The money paid into the hands of the sheriff on the execution in favor of Brooks did not become the property of Brooks until it had been paid over to him. Until that was done, the sheriff could not levy upon it by virtue of the execution against Brooks then in his hands."
The rule in that State in respect to a levy upon money in the hands of a sheriff may have been changed  at least *490 so far as an attachment is concerned. See Wehle v. Conner, 83 N.Y. 231.
In Nelson v. Kerr, 59 N.Y. 224, it is said: "The money collected by the sheriff belongs to the plaintiff." But in that case the execution had been returned, and yet the officer had not paid the money to the execution creditor. See also Kingston Bank v. Eltinge, 40 N.Y. 391.
In none of those cases had anything been done to affect the validity or force of the writ of execution. Whatever was done was done under a writ whose validity and potency were unchallenged and undisturbed, while here, before the writ of execution had been fully executed, its power was taken away. Its command had ceased to be obligatory upon the sheriff, and the execution creditor had no right to insist that the sheriff should further execute its commands.
A different question might have arisen if the writ had been fully executed by payment to the execution creditor. Whether the bankruptcy proceedings would then so far affect the judgment and execution, and that which was done under them, as to justify a recovery by the trustee in bankruptcy from the execution creditor, is a question not before us, and may depend on many other considerations. It is enough now to hold that the bankruptcy proceedings seized upon the writ of execution while it was still unexecuted and released the property which was held under it from the claim of the execution creditor.
The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissented.


             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    Assigned on Briefs May 11, 2004

                      ADRIAN S. LENOX v. STATE OF TENNESSEE

                    Direct Appeal from the Criminal Court for Davidson County
                             No. 99-C-1752     Steve R. Dozier, Judge

                          No. M2003-00482-CCA-R3-PC - Filed May 20, 2004

The petitioner appeals the post-conviction court’s denial of his petition for post-conviction relief,
in which he alleged ineffective assistance of counsel. We conclude that the petitioner has failed to
establish that he received ineffective assistance of counsel. We affirm the denial of post-conviction
relief

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODALL, JJ., joined.

Dwight Scott, Nashville, Tennessee, for the appellant, Adrian S. Lenox.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Stephen Douglas Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                      OPINION

        The petitioner, Adrian S. Lenox, was convicted of aggravated burglary, vandalism, felony
evading arrest, and driving on a revoked license. He was given an effective sentence of fourteen
years. This Court affirmed the defendant’s convictions and sentences on direct appeal. State v.
Adrian S. Lennox, No. M2000-02869-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 742 (Tenn.
Crim. App., at Nashville, Sept. 14, 2001).1 The petitioner subsequently filed a petition for post-
conviction relief, and it was denied. He timely filed his notice of appeal. The petitioner contends
on appeal that he received ineffective assistance of counsel at trial. We affirm the post-conviction
court’s denial of relief.

         1
           The correct spelling of the petitioner’s last name appears to be Lenox according to the indictments, judgments,
and his signature on the petition for post-conviction relief.
I. Trial Proceedings

       The following factual background is taken from the defendant’s direct appeal:

                On March, 20, 1999, Patricia Cantrell was sunbathing in her backyard when
       she heard a car pull into her neighbor’s driveway. Through a bush between the two
       houses, Ms. Cantrell saw the feet of a man approach the back door and knock. A few
       seconds later, Ms. Cantrell heard the sound of breaking glass, and ran to her house
       to call the police. While talking to the 911 operator, Ms. Cantrell saw the back of a
       man exit the house with a television set and drive away. Ms. Cantrell was able to
       describe the car to the 911 operator as the car was leaving. She described it as an
       older model sedan with a wheel cover on the back. After the Defendant was arrested,
       Ms. Cantrell identified the Defendant’s car as the car she had seen at her neighbor’s
       house.

               Only a mile away, Officer Michael Adkins of the Metro-Davidson Police
       Department was notified about the burglary. As Officer Adkins approached a
       stoplight, he noticed a car with a television in the back seat matching the description
       of the car seen by Ms. Cantrell. When Officer Adkins attempted to pull the car over,
       the car crossed into oncoming traffic and turned down a side street. With Officer
       Adkins in pursuit, the car turned into a driveway of a private residence, drove through
       a carport and into the backyard of the residence. The car then crossed into the
       backyard of Walter Edwards who was working in his garden at the time. The car
       came within forty feet of Mr. Edwards and then struck a dogwood tree, pulling the
       tree up by the roots. The Defendant then exited the car, and, after a short foot chase,
       was apprehended. The Defendant’s hand was bleeding and he told Officer Adkins
       that he knew he was caught because his blood was at the scene of the burglary.
       Police found a television, a VCR, a camera, a crowbar, and a pair of pliers in the
       Defendant’s car.

               Carl Dupree, the victim, was notified by police that his home had been
       burglarized. Upon returning home, Mr. Dupree discovered that his back door had
       been kicked in, the glass was broken, and his television was missing. Mr. Dupree also
       discovered blood stains on the door and inside the house. Mr. Dupree was later taken
       to Mr. Edward’s backyard, where the Defendant had been apprehended, and
       identified the television in the Defendant’s back seat as his own. The repair of Mr.
       Dupree’s door cost about $1,000.

Adrian S. Lennox, 2001 Tenn. Crim. App. LEXIS 742, at **2-4.

                                                -2-
II. Post-Conviction Hearing

        The petitioner’s trial counsel testified at the post-conviction hearing that he did not interview
any witnesses in this case before the day of trial. The petitioner denied committing the crime and
informed counsel that he had traded crack cocaine for the television that was recovered from his
vehicle. According to counsel, the petitioner never provided him with the names of any witnesses
other than the “street name” of the person that the petitioner claimed to have traded him the
television for crack cocaine. After learning of the trade, counsel decided that it would not be in the
petitioner’s best interest to pursue this line of defense. Instead, the defense centered around the
question of identification. There were some discrepancies in the eyewitness’s description of the
perpetrator, and counsel recalled addressing this issue on cross-examination. Counsel testified that
he did not recall anyone named Larry Tate and was never given his address. Additionally, counsel
did not recall any specific jurors but did remember that there were challenges to some of the
members of the jury venire.

         The petitioner testified that he told counsel to contact his mother, sister, and girlfriend to
verify that he had possession of the television before the time of the incident. He testified that they
had seen him in possession of the television before he was arrested. According to the petitioner, he
had purchased the television from Larry Tate for $32.00 on the day he was arrested. He denied
telling counsel that he had traded crack cocaine for the television. Specifically, he stated that he told
counsel to contact Larry Tate in Edmonson Manor Apartments because he could verify that he sold
the television to the petitioner. The petitioner also said that he told counsel to contact Martha
Springer (the petitioner’s mother), Shana Lenox (the petitioner’s sister), and Tracy Duke (the
petitioner’s girlfriend). The petitioner also testified that he told counsel where to locate his sister
and mother and gave him Tracy Duke’s address. He further testified that Officer Adkins “made up”
his testimony concerning statements made by the defendant while being arrested.

        The petitioner’s mother and sister also testified at the hearing. His mother stated that she saw
a television in the back of the petitioner’s vehicle “shortly” before he was arrested. However, she
could not recall any specifics. The petitioner’s sister testified that she had seen a television in the
back of the petitioner’s vehicle about a week before this incident. However, she could not provide
any specific description of the television (such as size, color, etc.). No other witnesses were
presented.

        The post-conviction court accredited the testimony of counsel and found that the petitioner
never advised counsel of the witnesses or the nature of their testimony. The court concluded that
the petitioner had failed to meet his burden of showing that counsel was deficient or that he had
suffered prejudice as a result of the alleged deficiency. Accordingly, the court denied post-
conviction relief.

                                                  -3-
III. Analysis

        The petitioner now appeals the denial of post-conviction relief and contends that he received
ineffective assistance of counsel at trial. This Court reviews a claim of ineffective assistance of
counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner has the burden
to prove that (1) the attorney’s performance was deficient and (2) the deficient performance resulted
in prejudice to the defendant so as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899
(Tenn. 1990). The failure to prove either deficiency or prejudice justifies denial of relief; therefore,
the court need not address the components in any particular order or even address both if one is
insufficient. Goad, 938 S.W.2d at 370. In order to establish prejudice, the petitioner must establish
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

        The test in Tennessee to determine whether counsel provided effective assistance is whether
his or her performance was within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. The petitioner must overcome the presumption that counsel’s conduct
falls within the wide range of acceptable professional assistance. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; State v. Honeycutt, 54 S.W.3d 762, 769 (Tenn. 2001). Therefore, in order to prove
a deficiency, a petitioner must show “that counsel’s acts or omissions were so serious as to fall below
an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d
at 369 (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).

         In reviewing counsel’s conduct, a “fair assessment . . . requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.” Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The fact that
a particular strategy or tactic failed or hurt the defense does not, standing alone, establish
unreasonable representation. However, deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation. Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997); Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

        The petitioner bears the burden of proving the factual allegations that would entitle the
petitioner to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). We review
the post-conviction court’s factual findings underlying a claim of ineffective assistance of counsel
under a de novo standard with a presumption that those findings are correct – unless the
preponderance of the evidence establishes otherwise. Burns, 6 S.W.3d at 461. However, the post-
conviction court’s conclusions of law – such as whether counsel’s performance was deficient or
whether that deficiency was prejudicial – are reviewed under a de novo standard with no presumption
of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001) (citations omitted).

                                                  -4-
        First, the petitioner alleges ineffective assistance because of counsel’s failure to interview
and subpoena several witnesses including Martha Springer, Shana Lenox, Tracy Duke, and Larry
Tate. When a petitioner alleges that counsel failed to discover, interview, or present witnesses in
support of his defense, he is not entitled to relief “unless he can produce a material witness who (a)
could have been found by a reasonable investigation and (b) would have testified favorably in
support of his defense if called.” Black v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990).
In general, the only way to establish the prejudicial value of a witness’s testimony is to present that
witness at the post-conviction hearing. Id. at 757. “It is elementary that neither a trial judge nor an
appellate court can speculate or guess on the question of . . . what a witness’s testimony might have
been if introduced by defense counsel.” Id. Tracy Duke and Larry Tate did not testify at the post-
conviction hearing; therefore, the petitioner has obviously failed to establish any prejudice relating
to these two witnesses.

         In regard to the other two witnesses, neither could give a description of the television that
they claimed to have seen in the petitioner’s vehicle prior to his arrest. Additionally, Shana Lenox’s
testimony was that she observed the television in the petitioner’s vehicle about a week before this
incident. According to the petitioner, he purchased the television on the day that he was arrested.
It is unlikely that this testimony would have assisted in the petitioner’s defense. In any event, the
evidence does not preponderate against the post-conviction court’s finding that the petitioner failed
to advise counsel of the witnesses or the nature of their testimony. This issue is without merit.

         Next, the petitioner contends that he received ineffective assistance because of counsel’s
failure to challenge two of the jurors selected. Specifically, the petitioner claims that counsel should
have peremptively challenged two “obviously biased” jurors. During voir dire, juror Washington
stated that she had been the victim of a burglary. When initially asked about her ability to be
impartial despite being the victim of a crime, she responded “I don’t know.” However, after further
questioning she stated that she could be fair and impartial despite being the victim of a burglary.
Juror Collins said that he had a close relationship with the assistant district attorney prosecuting the
case. When asked if his relationship with the prosecutor would prevent him from being fair and
impartial, he responded “I don’t think so.” We conclude that these statements by the two jurors are
insufficient to establish that the petitioner was prejudiced by the jurors’ inclusion on the jury panel.
Jurors Washington and Collins did not testify at the post-conviction hearing; therefore, we take their
statements during voir dire that they could be fair and impartial at face value. This issue is without
merit.

       We conclude that the petitioner has failed to establish that he received ineffective assistance
of counsel. Based on the foregoing reasoning and the record as a whole, we affirm the denial of
post-conviction relief.

                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE

                                                  -5-


                                                                                ACCEPTED
                                                                                06-14-00064-CV
                                                                             SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                1/8/2015 2:56:58 PM
                                                                                DEBBIE AUTREY
                                                                                CLERK

                       No. 06-14-00064-CV
        _______________________________________________
                                                        FILED IN
                                                 6th COURT OF APPEALS
                 COURT OF APPEALS FOR THE          TEXARKANA, TEXAS
                  SIXTH DISTRICT OF TEXAS        1/8/2015 2:56:58 PM
                     TEXARKANA, TEXAS                DEBBIE AUTREY
        _______________________________________________Clerk

                         Joyce Steel Erection, Ltd.
                                                      Appellant,
                                    v.
                            Gordon Ray Bonner,
                                            Appellee.
         ______________________________________________

 Appeal from the 202nd Judicial District Court of Bowie County, Texas
 Case No. 11C0822-202 - Honorable Leon F. Pesek, Jr., Presiding Judge
       ______________________________________________

APPELLANT JOYCE STEEL’S UNOPPOSED FIRST MOTION FOR
 30-DAY EXTENSION OF TIME TO FILE ITS OPENING BRIEF
      ______________________________________________

 J. Jeffery Richardson                          O. Rey Rodriguez
    State Bar No. 16864450                       State Bar No. 00791557
    jeff.richardson@nortonrosefulbright.com      rrodriguez@hankinsonlaw.com
 FULBRIGHT & JAWORSKI L.L.P.                    HANKINSON LLP
 2200 Ross Avenue, Suite 2800                   750 N. St. Paul St., Suite 1800
 Dallas, Texas 75201-2784                       Dallas, Texas 75201
 214-855-8121 -- Telephone                      214-754-9190 -- Telephone
 214-855-8200 -- Telecopier                     214-754-9140 -- Telecopier

                                                Attorneys for Appellant Joyce Steel
                                                Erection, Ltd.
                       IDENTITY OF PARTIES AND COUNSEL
       Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of all
parties to the trial court’s judgment and the names and addresses of all trial and
appellate counsel:

1.    Appellant (Defendant in the trial court):

      Joyce Steel Erection, Ltd.

2.    Appellee (Plaintiff in the trial court):

      Gordon Ray Bonner

3.    Counsel for Appellant:

      J. Jeffery Richardson                      O. Rey Rodriguez
      Fulbright & Jaworski LLP                   Hankinson LLP
      2200 Ross Avenue, Suite 2800               750 North St. Paul St., Suite 1800
      Dallas, Texas 75201-2784                   Dallas, Texas 75201
      (Appellate Counsel)                        (Appellate Counsel)

      Paul A. Bezney
      J. Kevin Kindred
      Adkerson, Hauder & Bezney, P.C.
      1700 Pacific Avenue, Suite 4450
      Dallas, Texas 75201-3005
      (Trial Counsel)

4.    Counsel for Appellee:

      Robert L. Clements, Esq.                   John R. Mercy, Esq.
      Kelly R. Clements, Esq.                    Mercy Carter Tidwell, L.L.P.
      Clements & Clements                        1724 Galleria Oaks Drive
      731 N. St. Paulus Ave.                     Texarkana, Texas 75503
      Dallas, Texas 75214

                                           i
TO THE HONORABLE JUSTICES OF THIS COURT:

      Appellant Joyce Steel Construction, Ltd. respectfully files this Unopposed

First Motion for 30-Day Extension of Time to file Its Opening Brief and shows the

following:

     I.      Requested Extension is Unopposed - Certificate of Conference
      Appellant Joyce Steel’s counsel conferred with counsel for Appellee Mr.

Bonner who advised by e-mail that he does not oppose this motion.

                            II.    Length of Extension
      The Appellant’s brief is due February 4, 2015. Appellant Joyce Steel

requests a 30-day extension to and including Friday, March 6, 2015.

                           III.   Grounds for Extension
      This is an appeal from a multi-million-dollar personal injury judgment after

verdict arising from a construction accident at the Red River Army Depot. The

jury trial spanned multiple weeks and the record on appeal is voluminous.

Appellant Joyce Steel’s opening brief is currently due February 4, 2015.

      As good cause for this first unopposed request for 30-day extension,

Appellant Joyce Steel’s appellate counsel currently has other conflicting client

matters, travel plans, and schedule conflicts, that make it difficult to prepare the

opening brief by February 4, 2015. Accordingly, additional time is needed to

prepare a brief that will best assist the Court in determining this case. This request

is not sought for purposes of delay only, but so that justice may be done.

                                          1
                                  IV.   Prayer
      Appellant Joyce Steel respectfully prays that this Court grant the unopposed

extension of time to file Appellant’s opening brief until and including Friday,

March 6, 2015, and for such other and further relief to which it may be entitled

whether at law or in equity.

      Dated: January 8, 2015.

                                              Respectfully submitted,

                                              /s/ O. Rey Rodriguez
J. Jeffery Richardson                         O. Rey Rodriguez
  State Bar No. 16864450                        State Bar No. 00791557
  jeff.richardson@nortonrosefulbright.com       rrodriguez@hankinsonlaw.com
FULBRIGHT & JAWORSKI L.L.P.                   Hankinson LLP
2200 Ross Avenue, Suite 2800                  750 N. St. Paul St., Suite 1800
Dallas, Texas 75201-2784                      Dallas, Texas 75201
214-855-8121 -- Telephone                     214-754-9190 -- Telephone
214-855-8200 – Telecopier                     214-754-9140 -- Telecopier

                                              Attorneys for Appellant Joyce Steel
                                              Erection, Ltd.

                                        2
                    CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Unopposed
First Motion for 30-Day Extension of Time to File Appellant’s Opening Brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(D).

Exclusive of the exempted portions in Tex. R. App. P. 9.4(i)(1), this Unopposed
Motion for Extension of Time has 263 words. This Motion has been prepared in
proportional spaced typeface using:

   • Software Name and Version: Microsoft Word, part of Microsoft Office
     Professional Plus 2010.

   • Typeface Name and Font Size: Times New Roman 14 point.

                                                /s/ O. Rey Rodriguez
                                                O. Rey Rodriguez

                        CERTIFICATE OF CONFERENCE
      The undersigned certifies that he conferred with Mr. John Mercy, Esq.,
counsel for Appellee Gordon Ray Bonner, by email and that on January 8, 2015,
Mr. Mercy’s response e-mail arrived advising he is not opposed to the 30-day
extension requested in the foregoing motion.
                                                /s/ O. Rey Rodriguez
                                                O. Rey Rodriguez

                                      3
                           CERTIFICATE OF SERVICE
      The undersigned certifies that a copy of the foregoing motion was served in
accordance with TEX. R. APP. P. 9.5 upon the following counsel of record for
Appellees on this 8th day of January, 2015:

Robert L. Clements, Esq.
Kelly R. Clements, Esq.
Clements & Clements
731 N St. Paulus Ave.
Dallas, Texas 75214

John R. Mercy, Esq.
Mercy Carter Tidwell, L.L.P.
1724 Galleria Oaks Drive
Texarkana, Texas 75503
                                                 /s/ O. Rey Rodriguez
                                                 O. Rey Rodriguez

                                       4