*1 Cir., credibility 1969, 661, 668-669, the were choices for has These justifying the facts to make and there set out the issu- trier of the factors g., Mfg. bargaining See, Hendrix ance of e. order matter ends. under Gissel. 100, Cir., 1963, NLRB, Systems, As in find American Cable Co. v. ample was that case should remanded for 105. The evidence this be inquiry findings by finding express foreman’s that board as to the em- the union sentiments Gissel criteria. into ployees overtone of threat carried the questions The other several asserted security em- to the economic by company in its brief in the na- ployees to coerce. and thus tended ture of defenses have been considered and are found to be without merit. found also examiner company superintendent portion com The cease and desist that 8(a) retalia threats of economic order as it concerns violations municated of § unionization, tion, (1) to a the event is enforced. Enforcement expectation bargaining employee off order is denied and laid the case findings. be carried back the threats would is remanded for that further finding employees. awas the other from drawn inference reasonable surrounding circumstances facts in violation are Such threats
this event. City (1). 8(a) Plant NLRB of § 1964, Cir., F.2d 511. Steel un that an also found It was bonus, paid precedented Christmas Roy COMPTON, Plaintiff-Appellee, L. only employees two company to its election, was before scheduled weeks LUCKENBACH OVERSEAS CORPORA- influencing TION, Defendant-Appellant. given purpose of for the considering say, cannot We election. No. 34155. Docket finding was whole, this that record Appeals, United States Court of clearly erroneous. Second Circuit. Finally, it was found Argued March 1970. company to its letter, distributed May 1, Decided 1970. inferring union employees, company its might close force coercive hire new crews or to
mine 8(a) (1). The determi and violated § statements such
nation whether than reasonable rather threats
coercive unionization
predictions effects primarily the board. a function Inc., Co., Packing v. Gissel See NLRB supra, 395 U.S. testimony regard examining the After surrounding
ing the circumstances
letter, find this conclude we cannot clearly
ing erroneous. bargaining regard to the
With order, board be noted Supreme order before
entered Pack Gissel NLRB v. decision Co., Inc., supra. court This Inc., Systems, NLRB American Cable *2 City Hopkins, L. New York
Walter Walker, Wilson, (Wilson & A. William City, Walker, on the Clare E. York New brief), defendant-appellant. for City, Phillips, Ned R. York New Freedman, City, York Abraham E. New brief), plaintiff-appellee. on the for FEINBERG, Cir Before MOORE BONSAL,* Judges, District cuit Judge. Judge.
FEINBERG, Circuit
Cor-
Overseas
Defendant Luckenbach
judgment
poration
appeals
from
District
States
in the United
of New
for
District
Southern
$40,000 in favor
in the
York
amount
injuries
Compton for
plaintiff Roy
L.
job
doing
as
allegedly
suffered while
Lucken-
a seaman
vessel.
defendant’s
judge, Walter
claims
trial
bach
denying
J.,
Mansfield,
its
R.
erred
notwithstanding
judgment
motions
trial. We
af-
the verdict and for a
judgment
district court.
firm the
complaint
contained
Plaintiff’s
joinder
action under
of an
usual
Act,
a claim
Jones
46 U.S.C. §
upon
The trial
based
unseaworthiness.
days
testi-
four
witnesses
took
and seven
jury
fied,
key issue before
but
*
York, sitting
designation.
New
the Southern District of
Of
simple:
plain-
Clearly plaintiff’s
strong
believe
whether
case was not
injured.
fully
tiff’s
how he was
and all of
version
its weaknesses were
ex-
posed
jury
argument
he
Plaintiff
testified that
was told
steering
up
drippings
clean
oil
defendant’s
counsel.
engine
vessel,
fairly presented
room
ex-
the issues and the basic
slippery,
question
cessive oil there made his shoes
before
was whether
ascending
slipped
plaintiff’s
knee condition was
to a
due
*3
his
metal
and that he
he
ladder
twisted
fall as
claimed or
nor-
to the strain of
knee, striking
edge
injured
it on
previously
of the stairs mal work on a
knee.
injuring
testimony
jury
and
plaintiff.
it. The
toas
chose to believe
on
unusual amount of oil
was
deck
We are told that
the trial
by
employee,
a fellow
who
corroborated
judge
jury
had to set aside the
leak;
oil
dis-
attributed the
to
this was
a
against plaintiff
because the evidence
puted by
a witness for defendant.
1
“destroyed
credibility.”
However,
his
plaintiff
suf-
that
had
evidence showed
agree.
do not
we
of
of
Resolution
issues
injury
prior
knee
fered a
to his
football
credibility
place
determining
is
of
in
out
undergone
August
surgery
and
in
had
judgment notwithstanding
motion for
1961,
plaintiff
at
not
did
disclose
which
least,
verdict;
Act cases
in Jones
at
physical
signing
his
examination before
whether, “[looking] only
the issue is
to
However, plaintiff
on
testi-
the vessel.
the evidence and reasonable inferences
spring of
until
fied that from the
tend
which
to
case of [the
1966,
May
had
in
knee
the accident
non-moving party],”
suffi
there was
all,
given
difficulty at
when
him
even
no
go
jury.
cient
to the
evidence to
Wilker
activity.
engaged in
he was
strenuous
57,
McCarthy,
son
U.S.
why
a number
reasons
There were
413, 415,
(1949);
The trial a mature judicial discretion, view Judge (dissenting). MOORE, Circuit setting of the overall trial; respectfully deter- from the I dissent consider the character of the my there was complexity brothers evidence and the or sim- mination of legal plicity in the failure principles error of law of which the no reversible appellant recovery this on 3. It also attacks the for unseaworthiness is not clear whether theory. ground grant merely on a new trial such that “the trial would weight against of the verdict was have reached a different verdict” and the doing so, power grant I In wish to launch evidence. a new trial when principle “overwhelmingly against attack on the stated verdict is weight majority once trial has de- of the evidence.” termined that is not a verdict always Courts seem to encounter se- weight evidence, of the his determination difficulty articulating mantic verbal cannot be set aside when denial a new evaluating standards for appeal trial judgment. on from the final is reviewed post-verdict the evidence in motions. I Portman American Cf. dissent, have little confidence that this Home Products applied when to another set of circum- (grant 1953) trial held of new Cir. stances, enlighten would the dark corners Judge reviewable). Mans- But here Nevertheless, problem. on clearly field made the determina- case, particular facts of am I left “overwhelming tion that there was evi- with the firm conviction that there has against the dence would militate [which] miscarriage justice. Recogniz- been plaintiff's claim.” ing the strict limitations on review Although appeal trial, should defer to denial of a for motion a new judge’s weight Moore, a trial evaluation 59.08[5] ¶[ evidence, 1966), believing yet we need not defer to con- 3816 the role clusions of based on law such determi- of a trial should more than to of a nation. The view taken below as a conduit between serve judge’s passing post-verdict judgment, role in on a entry the clerk’s office *5 motion was articulated be that: I would to the trial so that remand again may for a rule on the motion jury’s “We disturb light trial in own evaluation unless there was evi- substantial court’s discus- of the evidence and this dence to it.” discretion. sion of the extent of his This statement is cor- law “disturbing jury’s if rect verdict” entering judgment means notwithstand- It is not correct verdict. if ordering
means
a new trial.
stated
As
Wright’s
Professor
on Federal
treatise
Courts:
George VASILJ, Appellant,
M.
long
“It has
been understood that
if
the trial
is not satisfied with
UNITED
America,
STATES of
right
jury,
the verdict of a
has the
.he
Appellee.
duty
—and indeed
set aside
—to
No. 24150.
the verdict and
a new trial.”
order
1970).
Id. at
ed.
United States
Appeals,
Court of
Ninth Circuit.
Once the
has made the de-
April 30, 1970.
that the
termination
of the evi-
“overwhelmingly” against
dence is
Certiorari Denied
June
verdict,
duty
exercise
has
See
appellate court should to insist be able legal
that a formulation be utilized recog-
exercise of this discretion power
nizes the distinction between grant the evidence a new trial when