author: FRIENDLY, Chief Judge:

text:
    BELL AEROSPACE COMPANY DIVISION OF TEXTRON INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 351, 352, Docket 72-1703—72-1860.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 17, 1973.
    Decided Feb. 28, 1973.

      Richard E. Moot, Buffalo, N. Y. (Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, N. Y., of counsel), for petitioner.
    Jonathan G. Axelrod, Atty., N. L. R. B. (Peter G. Nash, General Counsel, Patrick Hardin, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Leonard M. Wagman, Atty., N. L. R. B., of counsel), for respondent.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   FRIENDLY, Chief Judge:

I.

A petition by the Bell Aerospace Company Division of Textron Inc. (Bell) to review and a cross-petition by the National Labor Relations Board to enforce a bargaining order, 187 N.L.R.B. No. 30 (1972), put in question the Board’s earlier order in a representation case, 190 N.L.R.B. No. 66 (1971), adhered to on a denial of reconsideration, 196 N.L.R.B. No. 127 (1972). The representation order found that 25 buyers in Bell’s Department 121 constituted an appropriate unit and directed an election, which was won by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local 1286 (the Union). Bell refused to recognize the Union on the ground that the buyers were managerial employees and, as such, were not employees protected by §§ 7 and 8(a) of the National Labor Relations Act.

There is not much dispute about the facts: The buyers have full discretion, without limit in dollar amount, in selecting prospective vendors, preparing invitations to bid, evaluating bids, negotiating prices and terms, and preparing purchase orders. They execute all purchase orders up to $50,000, although they must obtain the approval of a superior for any commitment exceeding $5,000. Many purchases are “off the shelf” items, which are made in quantity for the general public and can be purchased from a number of distributors or sources; many are not. In some instances other Bell employees (many of them organized) or a subcontractor will have tentatively selected a vendor, and the buyer must get approval before seeking a different one. For the Minute Man project, which represents about 70% of Bell’s sales, major decisions are made by a team consisting of supervisory type personnel from the engineering, quality assurance, manufacturing and finance departments; the buyer is team chairman and signs the purchase forms but a supervisor from pricing and negotiations participates in working out the terms. Once agreement is reached, the buyer is responsible for seeing that contracts are complied with and adjusting disputes. Where the amount is less than $5,000, the buyer has authority to cancel a contract and place the order with an alternate vendor.

The case first came before the Board by transfer from the Regional Director in October, 1970. On May 20, 1971, a unanimous Board issued a direction of election, 190 N.L.R.B. No. 66, relying heavily on its recent decision in North Arkansas Electric Cooperative, Inc., 185 N.L.R.B. No. 83 (1970). North Arkansas concerned the discharge of one Len-ox, an “electrification advisor,” who had been discharged for failing to remain neutral during a union organizational campaign. On the Board’s application for enforcement of an earlier order requiring reinstatement, 168 N.L.R.B. 921 (1967), the Eighth Circuit held that the Board’s determination that Lenox was not a “managerial employee” was in error but remanded for determination whether his discharge was nevertheless in violation of the National Labor Relations Act, NLRB v. North Arkansas Electric Cooperative, Inc., 412 F.2d 324 (8 Cir. 1969). The Board, on remand, held that the Act’s protections extended to most managerial employees in general and to Lenox in particular, North Arkansas Electric Cooperative, Inc., supra, 185 N.L.R.B. No. 83. This disposed, as far as- the Board was concerned, of what had been Bell’s prime contention in the instant case, namely, that the buyers did not constitute an appropriate unit for collective bargaining within § 9(b) since they were managerial employees; the Board proceeded to reject the alternative contention “that buyers, whether considered managerial or not, are to be denied representation because there would exist a potential conflict of interest between the buyers as union members and the Employer” — notably by preferring unionized vendors and influencing ‘(make or buy” decisions in favor of “make,” thus creating additional work for sister unions in the plant.

On the very day on which the Board certified the Union, the Eighth Circuit denied enforcement of the Board’s second order in NLRB v. North Arkansas Electric, 446 F.2d 602 (8 Cir. 1971). On the basis of a review of the legislative history of the Taft-Hartley Act, 446 F.2d at 605-608, and of court decisions with respect to application of the Act to “managerial employees,” the court held that Congress did not intend the word “employee” to embrace them. No application was made for certiorari.

Predictably Bell moved for reconsideration, which the Board denied in another opinion, 196 N.L.R.B. No. 127 (1972). Disagreeing with the breadth of the Eighth Circuit’s opinion, the Board restated the position it had taken in North Arkansas. See fn.4 supra. It held that managerial employees were excluded from coverage only if they make “determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization.” This category included not only “those concerned with management policies in the labor relations area,” but also those having “responsibility with respect to policies which are inextricably intertwined and of necessity affect or infringe upon the labor relations area.” It gave as an example “a corporate representative, charged with the duty of determining where an employer’s plants should be located or what capital expenditures a corporation ought to make” if he had “broad managerial discretion.” The same might be true of “those bearing primary responsibility for determination of- financial policies, or even those charged with the direction of basic policies in the field of research and development.” The Board emphasized that the question whether “the probabilities of such conflict are sufficiently minimal” was to be determined on the facts of each case.

II.

The issue here tendered must be considered in light of the confusing pattern of Board decisions before and after enactment of the Taft-Hartley Act in 1947, 61 Stat. 136 et seq., and the less than pellucid legislative history of the provision of that statute that is here relevant.

The concept of the “managerial employee” seems to have first arisen in National Labor Relations Act cases in which either employers or unions argued for the exclusion from proposed larger bargaining units of certain employees with a close relationship to management. In Julian P. Friez & Sons, 47 N.L.R.B. 43, 47 (1943), the Board ruled that employees, who were charged with expediting the completion of orders and assuring adherence to production time schedules, were “closely related to the management,” and therefore should be excluded from a unit of production and maintenance employees. Expediters, who contacted vendors, placed orders, kept records of the progress of deliveries and had authority to reassign orders, were excluded from a unit of office, clerical, technical and professional employees in Spicer Manufacturing Corp., 55 N.L.R.B. 1491, 1498 (1944), because “the authority possessed by these employees to exercise their discretion in making commitments on behalf of the Company stamps them as managerial.” See also Rex Manufacturing Co., Inc., 7 N.L.R.B. 95, 99 (1938); Westinghouse Air Brake Co., 64 N.L.R.B. 547, 553 (1945); Electric Controller & Manufacturing Co., 69 N.L.R.B. 1242, 1245-1246 (1946). In a number of cases this principle was applied to buyers. See, e. g., Hudson Motor Car Co., 55 N.L.R.B. 509, 512 (1944); Vulcan Corp., 58 N.L.R.B. 733, 736 (1944); Barrett Division Allied Chem. & Dye Corp., 65 N.L.R.B. 903, 905 (1946). Shortly before enactment of the Taft-Hartley amendments, the Board summed up its position as regards “managerial employees” in Ford Motor Co., 66 N.L.R.B. 1317, 1322 (1946) (footnote omitted):

We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine, and effectuate management policies. These employees we have considered and still deem to be “managerial,” in that they express and make operative the decisions of management.

While the Board’s policy was clearly not to permit managerial employees to join units of rank and file personnel, the Board nonetheless viewed at least minor managerial employees as within the Act’s definition of “employee.” In an early decision, the NLRB, holding that a dispatcher was an “employee” and therefore protected by the Act against his employer’s unfair labor practices, said:

[The employee’s] position as dispatcher . . was of a minor supervisory character. Although antiunion conduct of managerial or supervisory employees has been repeatedly held to be proof that the employer has engaged in unfair labor practices, it does not follow that managerial or supervisory employees are not employees within the meaning of Section 2(3) of the Act. The statutory definition is of wide comprehension.

Atlantic Greyhound Corp., 7 N.L.R.B. 1189, 1196 (1938) (footnote omitted). And in Dravo Corp., 54 N.L.R.B. 1174 (1944), a case in which the Board excluded buyers and expediters from . a unit of office and clerical workers, it stated:

Since the work of both buyers and expediters requires much greater initiative and more direct contact with outsiders, and is of a much more responsible nature than that of employees in categories which the parties would include in the unit, we are of the opinion that it would best serve the policies and purposes of the Act to exclude the buyers and expediters from the . . . unit. This is not to say, however that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act. The precise relationship of the buyers and expediters to management here is not now being determined by us.

Id. at 1177 (emphasis added).

The Board took a somewhat different tack in Maryland Drydock Co., 49 N.L.R.B. 733 (1943), where it found that a separate union of supervisory personnel would not constitute an appropriate unit for collective bargaining, although still insisting that a supervisor was an “employee” as defined by the Act, id. 737-738. See Packard Motor Co., 64 N.L.R.B. 1212, 1214 (1945) (Herzog, Chairman, concurring); Packard Motor Co. v. NLRB, 330 U.S. 485, 492 n.3 (1947). Similarly, in Yale & Towne Manufacturing Co., 60 N.L.R.B. 626 (1945), overruled in other respects, Ford Motor Co., supra, 66 N.L.R.B. at 1322 n.12, the Board found the interests of certain time-study employees were sufficiently akin to those of management that the employees “should neither be included in a unit with other employees, nor established as a separate unit.” Id. at 628-629.

Maryland Drydock was overruled in Packard Motor Co., 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), and the Board’s decision that foremen were “employees” whom the Act entitled to form their own union was approved by the Supreme Court, Packard Motor Co. v. NLRB, supra, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040, aff’g 157 F.2d 80 (6 Cir. 1946). Since an important purpose of Congress in passing the Taft-Hartley amendments was to overturn that decision, see H.R. Rep.No.245, 80th Cong., 1st Sess. 13-14, 17 (1947) and S.Rep.No.105, 80th Cong., 1st Sess. 3-5 (1947), the dissenting opinion in Packard is more than ordinarily important. Mr. Justice Douglas, joined by Chief Justice Vinson and Justice Burton, there wrote, 330 U.S. at 494, 67 S.Ct. at 794:

For if foremen are “employees” within the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistant superintendents —indeed, all who are on the payroll of the company, including the president; all who are commonly referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application.

Arguing that, when Congress desired to include supervisory personnel in a category of employees, it knew how to do so, he called attention to other statutes in pari materia which, unlike the National Labor Relations Act, defined “employee” to include a “subordinate official,” Railway Labor Act of 1926, 44 Stat. 577; Merchant Marine Act of 1936, 52 Stat. 953, 966.

As indicated, the introduction of H.R.3020 in 1947 represented, in part, a reaction to the holdings in the Packard Motor Co. decisions that supervisory personnel constituted an appropriate unit for collective bargaining. The Bill excluded from the definition of employees not only those traditionally defined by the Board as supervisors, namely, those employees with power to hire, transfer, promote, discharge, reward, or discipline other employees, or to effectively recommend such action, see Ford Motor Co., 66 N.L.R.B; 1317, 1325 (1946) and S.Rep.No.105, supra, at 4, but also (1) personnel who fix or make effective recommendations with respect to the amount of wages earned by other employees, and those who make effective recommendations with respect to the application of factors upon which wages are determined, (2) labor relations, time-study, police and guard personnel, and (3) confidential employees. The Bill defined the latter as any employee “who by the nature of his duties is given by the employer information that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the interest of the employer.” The Committee Report accompanying the bill expressed concern over evidence that in those plants where foremen had been permitted to organize, more work stoppages occurred and productivity dropped. H.R.Rep.No.245, supra, at 14-15.

The definition of supervisor contained in the Senate bill, S.1126, was more narrowly drawn, paralleling that which had been established by the Board:

The term “supervisor” means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

But while the Senate Committee was concerned with distinguishing between supervisors vested with “genuine management prerogatives,” such as the power to hire, fire, or discipline other employees, and minor supervisors such as “straw bosses, leadmen, [and] set-up men,” it expressed the same concerns that had been voiced by the House Committee over the granting of the Act’s protections to supervisory personnel. S.Rep.No.105, supra, at 4-5. The Senate Committee felt that the organization of supervisors had upset the balance of power between labor and management, id. at 3, and it wished to prevent conflicts of interest, resulting in lower productivity, less discipline, and a correspondingly higher industrial accident rate, id. at 4-5. The Committee’s Report, S.Rep.No.105, supra, at 4, also reflected a desire to prevent the possibility, mentioned in Justice Douglas’ dissent in Packard Motor Co. v. NLRB, supra, 330 U.S. at 494, 67 S.Ct. 789, 91 L.Ed. 1040, that the Supreme Court’s reasoning in that ease could be used to justify the unionization of vice-presidents.

The Conference Committee agreed to accept the Senate’s definition of supervisors. With reference to those additional employees who had been included within the House but not within the Senate definition, the Report stated:

In the case of persons working in the labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment (hereafter discussed) applicable with respect to professional employees will cover many in this category. In the case of guards, the conference agreement does not permit the certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards.

H.R.Conf.Rep.No.510, 80th Cong., 1st Sess. 35-36 (1947).

The best we can make of this history is as follows: The Senate had been persuaded that the House definition would have barred from the protection of the Act too many people who should be within it. But neither the Senate, nor the House in yielding to it, thought the exclusion would be limited to persons precisely fitting the Act’s definition of “supervisor.” It is quite clear — and the Board does not challenge this — that Congress believed “persons working in the labor relations, personnel and employment departments” would be excluded. However, our sense of the situation is that Congress recognized there were other persons so much more clearly “managerial” that it was inconceivable that the Board would treat them as employees. Surely Congress could not have supposed that, while “confidential secretaries” could not be organized, their bosses could be. In other words, Congress failed to enact the portion of Mr. Justice Douglas’ Packard dissent relating to the organization of executives, not because it disagreed but because it deemed this unnecessary.

After passage of the Taft-Hartley amendments, the Board at first continued its previous practice of simply excluding “managerial employees” from units of rank and file employees. For example, in Denver Dry Goods Co., 74 N.L.R.B. 1167 (1947), assistant buyers, who were required to set good sales records as examples to other employees, assist buyers in various matters such as the selection of merchandise, and take over the buyers’ duties when the latter were absent, were excluded from a unit of sales, clerical and office employees, because their interests were “more closely identified with those of management.” The Board stated its policy in Palace Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323 n.4 (1947), a case in which the Board refused to exclude store managers from a store-wide bargaining unit because they were neither managerial nor supervisory employees:

We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as “managerial” employees, executives who formulate and effectuate management policies by expressing and making operative the decisions of their employer, and have excluded such managerial employees from bargaining units. . . . We believe the Act, as amended, contemplates the continuance of this practice.

The same policy was followed with respect to buyers in Denton’s Inc., 83 N. L.R.B. 35, 37 (1949).

In the 1950’s the Board went further. In American Locomotive Co., 92 N.L.R. B. 115 (1950), a case in which buyers were excluded from an office and clerical unit because they were authorized to negotiate for credit and to make substantial purchases for their employer, the Board said that, since they were managerial employees, the buyers could “not be accorded bargaining rights under the Act.” Id. at 117. Then in 1956, the Board, finding a separate unit of procurement drivers, who kept supplies of produce coming into their employer’s plant and exercised discretion in meeting competitors’ prices, to be an inappropriate unit for collective bargaining because their interests were “allied with management,” Swift & Co., 115 N.L.R.B. 752, stated:

It was the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management. Such individuals cannot be deemed to be employees for the purposes of the Act.

Id. at 753-754 (footnote omitted). Such was the Board’s announced understanding with respect not only to “managerial employees” generally but also to buyers specifically when Congress again extensively amended the National Labor Relations Act in 1959, 73 Stat. 519 et seq.

The effect to be given such a history is a delicate and difficult question. Cf. Francis v. Southern Pacific Co., 333 U.S. 445, 450, 68 S.Ct. 611, 92 L.Ed. 798 (1948). Viewing more than thirty years of failure by the Federal Trade Commission to assert power over intrastate acts of unfair competition because of their adverse effect on interstate commerce, the Court refused, in FTC v. Bunte Brothers, Inc., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881 (1941), to sanction any such power, despite the famous contrary precedent with respect to the Interstate Commerce Commission in the Shreveport Case, [Houston East and West Texas R. Co. v. United States], 234 U.S. 342, 58 L.Ed. 1341 (1914). Mr. Justice Frankfurter wrote, 312 U.S. at 352, 61 S.Ct. at 582:

Authority actually granted by Congress of course cannot evaporate through lack of administrative exercise. But just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.

On the other hand, again speaking for the Court, the same Justice said, in NLRB v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344, 351-352, 73 S.Ct. 287, 291, 97 L.Ed. 377 (1953), with respect to a post-Taft-Hartley change, in F. W. Woolworth Co., 90 N.L.R.B. 289 (1950), in the method of computing back pay:

Assuming Congress was aware of the Board’s pre-Woolworth practice of calculating back pay on the basis of the entire period from discharge to offer of reinstatement, we could say here, as we did in Gullett Gin Co. v. N.L.R.B., [340 U.S. 361, 366, 71 S.Ct. 337, 95 L.Ed. 337 (1951)] that Congress by its reenactment indicated its agreement that the Board’s practice was authorized. That leads us nowhere on the present issue, though it is only this far that what we said in Gullett Gin can lead us. In that case as here, again assuming notice, if Congress was satisfied that the Board was acting within its powers, the thing for it to do was what it did — reenact without change. In that case as here— though, of course, we had no occasion to say so in that case — if Congress had been more than satisfied with the Board’s practice, if it had wanted to be certain that the Board would not in future profit by its experience, it would have had to do more than it did; it would have had to change the language of the statute, so as to take from the Board the discretionary power to mould remedies suited to practical needs which we had declared the Board to have and which the Board was asserting and exercising. We cannot infer an intent to withdraw the grant of such power from what is at most a silent approval of specific exercises of it.

Perhaps the best reconciliation of these eminently sensible although seemingly contrary approaches is that when an administrative construction has been long in effect, the agency cannot make a big change, especially after a reenactment or substantial amendment, but can make smaller ones.

The conclusion we reach from all of the foregoing is this: The 1947 Congress clearly believed that at least some “managerial employees” other than “supervisors” were excluded from the protections of the Act. In 1956 the Board concluded that the Congress had meant to exclude all true “managerial . employees.” This exclusion embraced not only an employee “so closely related to or aligned with management as to place the employee in a position of conflict of interest between his employer on the one hand and his fellow workers on the other” but also one who is “formulating, determining and effectuating his employer’s policies or has discretion, independent of an employer’s established policy, in the performance of his duties,” Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (7 Cir. 1969). Both because of what we believe to have been the understanding of the 1947 Congress and because the Board’s interpretation of it had been so clearly defined for the 1959 Congress, the Board is not now free to decide the contrary. In this respect we follow the illuminating opinion of Judge Craven, dealing with a confidential secretary, in NLRB v. Wheeling Electric Co., 444 F.2d 783 (4 Cir. 1971), and the Eighth Circuit’s decision in North Arkansas Electric, supra, 446 F.2d 602, although we do not agree with everything said in the latter case. On the other hand, despite the series of decisions, see fn.11, typified by Swift & Co., supra, 115 N.L.R.B. 752, we do not think the Board would be precluded, on proper proceedings, from determining that buyers, or some types of buyers, are not true “managerial employees” and consequently come within the protection of § 8(a)(5) and (1).

III.

It might seem that this conclusion would lead to the grant of enforcement here, since there was substantial evidence that Bell’s buyers were not sufficiently high in the hierarchy to constitute “managerial employees,” as that term has been defined not only in Illinois State Journal-Register v. NLRB, supra, but also in such other cases as International Ladies’ Garment Workers’ Union v. NLRB, 339 F.2d 116, 123 (2 Cir. 1964) (Marshall, J.); Retail Clerks International Association v. NLRB, 125 U.S.App.D.C. 63, 366 F.2d 642, 644-645 (1966), cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18 L.Ed.2d 455 (1967) (Burger, J.); and Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7 Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970) (Fairchild, J.). See also Continental Ins. Co. v. NLRB, 409 F.2d 727, 730 (2 Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969). It does not, for two reasons:

The first is that we cannot be sure that the Board’s decision rested on such a factual determination rather than on its new and, in our view, erroneous holding that it was free to regard all managerial employees as covered by the Act unless their duties met the “fundamental touchstone" of including “determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization,” see fn.6 supra. This requires reversal and remand under the first decision in SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943), recently reaffirmed in FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972).

The second is that, while the Board was not precluded from reversing itself on the position that buyers, or some buyers, were not “managerial employees,” we hold that, particularly in light of the justified contrary belief the Board had engendered, it could not do this in the manner that was done here. This is an appropriate case in which to give effect to the Supreme Court’s observation in the second Chenery decision, 332 U.S. 194, 202, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947), largely disregarded by the Board for a quarter century:

The function of filling in the interstices of the Act should be performed, as must as possible, through this quasi-legislative promulgation of rules to be applied in the future.

Such a holding is also in line with the considered dicta in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969).

Although the precise issues in Wyman-Gordon were whether a direction made in a previous decision, Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966), that was to apply prospectively only, in fact constituted rule-making, which, if such, clearly had not been accomplished as provided in section 4 of the APA, and, if so, whether this invalidated an order, based on the prior decision, in a subsequent adjudicative proceeding, expressions by a majority of the Justices point against the procedure the Board followed here. The plurality opinion of Mr. Justice Fortas, joined by the Chief Justice, Mr. Justice Stewart and Mr. Justice White, emphasized, 394 U.S. at 764, 89 S.Ct. at 1429:

The rule-making provisions of that Act, which the Board would avoid, were designed to assure fairness and mature consideration of rules of general application. . . . They may not be avoided by the process of making rules in the course of adjudicatory proceedings.

Mr. Justice Douglas, dissenting from the holding that the Board’s violation in Excelsior had been cured in Wyman-Gordon because the rule adopted in Excelsior was being applied as part of a later adjudicative order, said this, 394 U.S. at 777-779, 89 S.Ct. at 1435 (footnote omitted):

A rule like the one in Excelsior is designed to fit all cases at all times. It is not particularized to special facts. It is a statement of far-reaching policy covering all future representation elections.
It should therefore have been put down for the public hearing prescribed by the Act.
The rule-making procedure performs important functions. It gives notice to an entire segment of society of those controls or regimentation that is forthcoming. It gives an opportunity for persons affected to be heard. .
Agencies discover [through rule-making proceedings] that they are not always repositories of ultimate wisdom; they learn from the suggestions of outsiders and often benefit from that advice.
I would hold the agencies governed by the rule-making procedure strictly to its requirements and not allow them to play fast and loose as the National Labor Relations Board apparently likes to do.

Mr. Justice Harlan, likewise dissenting, after pointing to the Board’s decision to apply the Excelsior rule only prospectively as implying that it was “such a departure from pre-existing understandings that it would be unfair to impose the rule upon the parties in pending matters,” 394 U.S. at 780-781, 89 S.Ct. at 1437, continued:

[I]t is precisely in these situations, in which established patterns of conduct are revolutionized, that rule-making procedures perform the vital functions that my Brother Douglas describes so well in a dissenting opinion with which I basically agree.
Either the rule-making provisions are to be enforced or they are not. Before the Board may be permitted to adopt a rule that so significantly alters pre-existing labor-management understandings, it must be required to conduct a satisfactory rule-making proceeding, so that it will have the benefit of wide-ranging argument before it enacts its proposed solution to an important problem.

Despite all this, Wyman-Gordon does not supply a bright line for determining just when the Board, or other agencies, must proceed by rule-making. See Bernstein, The NLRB’s Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 Yale L.J. 571 (1970). Certainly the decision does not proscribe the use of adjudication as a vehicle for the formulation of new agency policies, which “are applied and announced therein” and “generally provide a guide to action that the agency may be expected to take in future cases.” 394 U.S. at 765-766, 89 S.Ct. at 1429 (Fortas, J.). But if the statements quoted from the opinions of six Justices in Wyman-Gordon are to mean anything, they must be read as demanding rule-making here, and given the Board’s long-standing negative attitude, as requiring a court to order it. The Board was prescribing a new policy, not just with respect to 25 buyers in Wheatfield, N. Y., but in substance, to use Mr. Justice Douglas’ phrase, “to fit all cases at all times.” 394 U.S. at 777, 89 S.Ct. at 1435. There must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter. Yet the Board did not even attempt to inform industry and labor organizations, by means providing some notice though not in conformity with section 4, of its proposed new policy and to invite comment thereon, as it has sometimes done in the past, see Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729, 756-757 (1961) and did in Excelsior, 156 N.L.R.B. at 1238, without thereby satisfying the Supreme Court, 394 U.S. at 764, 89 S.Ct. 1426. Although policy-making by adjudication often cannot be avoided in unfair labor practice cases, since the parties have already acted and the Board must decide one way or the other, there is no such problem in a representation case. Finally, the argument for rule-making is especially strong when the Board is proposing to reverse a long-standing and oft-repeated policy on which industry and labor have relied. To be sure, the change of policy here in question did not expose an employer to new and unexpected liability, as it would have done in NLRB v. Majestic Weaving Co., Inc., 355 F.2d 854, 859-861 (2 Cir. 1966). The point rather is that when the Board has so long been committed to a position, it should be particularly sure that it has all available information before adopting another, in a setting where nothing stands in the way of a rule-making proceeding except the Board’s congenital disinclination to follow a procedure which, as said in Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3 Cir. 1969), “enables the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated,” despite the Court’s pointed admonitions.

The petition to review is granted and enforcement is denied to the extent that the cause is remanded to the Board for further proceedings consistent with this opinion. No costs.

      . Despite this limitation, the amount of company credit which a buyer can commit on his own authority is very substantial. For one buyer this was $1,351,983 in a 19-month period; during the same period, the aggregate amount of credit committed by the buyers without higher approval was $7,671,172.

      . Supervisors are excluded from the National Labor Relations Act’s definition of employee. See 29 U.S.C. § 152(3). Supervisors are defined as “having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Id. § 152(11).

      . The court, convinced that had the question of Lenox’s managerial status arisen in the context of a representation proceeding, the Board, in accordance with its prior decisions, would have excluded him from the bargaining unit as a “managerial employee,” said that t;he Board could not “irrespective of the illegality or unfairness of the discharge, be permitted to reach a different result because the question is presented in the context of unfair labor practice.” 412 F.2d at 328. However, in remanding to the Board, the court left open the question whether a “managerial employee,” while normally excluded from bargaining units of rank and file employees, might under some circumstances be protected from his employer’s unfair labor practices. Id. at 325.

      . The Board’s rationale was that an employee might be “managerial” insofar as he did not have “the requisite community of interest” with other employees to be included with them in a proposed unit, yet might still fall within the Act’s definition of employee and therefore be entitled to its protections. At the same time, however, the Board indicated that certain categories of managerial personnel would not be considered within the definition of employee and therefore not receive any of the Act’s protections — namely, those employees who participated in formulating, determining or effectuating policy with respect to employee relation matters, who had apparent authority in that area, or who had a conflict of interest between proper performance of their jobs and their right to engage in concerted activity. The Board found that Lenox did not fit into any of these categories.
      In footnote 8 of its decision, the Board overruled Swift & Co., 115 N.L.R.B. 752 (1956), to the extent that it was inconsistent with its views. See discussion, infra.

      . Although the Board in North Arkansas Electric Cooperative, Inc., supra, 185 N.L.R.B. No. 83, had indicated a continued adherence to its policy of excluding managerial employees from bargaining units of rank and file personnel because of a lack of “community of interest,” the Board, in the instant case, apparently felt that no such consideration opposed formation of a separate unit of buyers.

      . The decision does not make clear whether the Board regarded the buyers as managerial employees. Footnote 2 shows that Member Jenkins thought they weren’t but Member Kennedy thought they were. Footnote 3 indicates that the three other members also thought the latter.

      . The court rejected the Board’s attempt to reformulate the definition of “managerial employee,” and decried any notion that an employee could be considered within the Act’s definition of “employee” for the purpose of being protected from firing by his employer for participating in union activity but not for the purpose of organization in a proper bargaining unit. 446 F.2d at 609-610; see n. 4 supra.

      . The definition contained in S. 1126 had been modified slightly by the Senate. The Senate agreed to an amendment proposed by Senator Flanders which added the phrase “or responsibly to direct them.” See 93 Cong.Rec. 4677-4678 (1947) ; n. 2 supra.

      The Senate had rejected an amendment to S. 1126, proposed by Senator Langer, that would have replaced the “supervisor” exclusion with an exclusion for “an assistant superintendent or superintendent, or any individual occupying a higher supervisory status than assistant superintendent.” 93 Cong.Rec. 5117 (1947). A superintendent would have been defined as “any individual who, within power directly delegated by an owner, president, or board of directors, directs, controls, and administers a specific institution, plant, or function and is responsible for the successful outcome of the undertaking, and who works through assistants or subordinate foremen,” and “assistant superintendent” as “any individual having authority to regularly assist a superintendent by performing essentially the same duties as the superintendent.” Id. Although this definition of superintendent bears some resemblance to the definition of “managerial employee” that has been developed by the Board, the Senate’s rejection of this amendment should not be viewed as a rejection of the managerial employee exception. Since the effect of this amendment would have been to permit employees of supervisory status lower than assistant superintendents, such as foremen, to organize, rejection of this amendment is more easily explained by a desire to expand the definition of supervisor to include employees such as foremen than by a desire to treat superintendents and their assistants as employees. See 93 Cong.Rec. 5116 (remarks of Sen. Taft opposing the proposed amendment).

      . The report was submitted to both houses. 93 Cong.Rec. 6361, 6434 (1947).

      . We think that when the Conference Report referred to “confidential secretaries,” it used that term with the same meaning which I-I.R. 3020, as reported, had spelled out for “confidential employees,” even though in 1946, the Board had narrowed its definition of confidential employees to those “who exercise ‘managerial’ functions in the field of labor ralations.” Ford Motor Co., 66 N.L.R.B. 1317, 1322.

      . In many other cases the Board excluded buyers from units of rank-and-file employees on the ground that they were “managerial” since they could effectively commit their employer’s credit. For example:
      The duties of the assistant purchasing agent and the buyer include, among others, the placing of orders for various items of supplies and equipment. It appears that they effectively bind the Employer’s credit in the regular course of their work. In accordance with established Board practice, we find these employees are managerial employees, and we shall therefore exclude them from the unit.
      Florence Stove Co., 98 N.L.R.B. 16, 17 (1952) (footnote omitted). See also Howard-Cooper Corp., 105 N.L.R.B. 753, 754 (1953); American Lithofold Corp., 107 N.L.R.B. 1061, 1063 (1954); Temco Aircraft Corp., 121 N.L.R.B. 1085, 1089 (1958); Weaver Motors, 123 N.L.R.B. 209, 215-216 (1959); Ed’s Foodland of Springfield, Inc., 159 N.L.R.B. 1256, 1260 (1966). In other cases, the Board has done this on the basis of more specific findings about the buyer’s powers. See Mack Trucks, Inc., 116 N.L.R.B. 1576, 1577-1578 (1956); Kearney & Trecker Corp., 121 N.L.R.B. 817, 822 (1958); Federal Tel. and Radio Co., 120 N.L.R.B. 1652, 1653-1654 (1958); Albuquerque Division, ACF Industries, Inc., 145 N.L.R.B. 403, 414-415 (1963).

      . We are also not unmindful that it “is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.” Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946) (emphasis supplied), quoted in Boys Markets, Inc. v. Local 770, Retail Clerks Union, 398 U.S. 235, 241-242, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).

      . Congress may have misapprehended the Board’s pre-1947 practice with regard to confidential employees. As indicated in the case cited in fn. 10, the Board had apparently excluded such employees from bargaining units of rank and file personnel but had not ruled that they were unprotected by the Act. Thus, when the Conference Committee stated that the Board had treated these employees “as outside the scope of the act,” it may have been in error. Nevertheless, since Congress’ reason for not expanding the definition of supervisor was its belief that existing Board practices made this unnecessary, that intent should be given effect. See NLRB v. Wheeling Elec. Co., 444 F.2d 783 (4 Cir. 1971).

      . At argument we asked counsel for the Board to advise us in writing whether it had ever engaged in the rule-making on substantive matters contemplated by § 4 of the Administrative Procedure Act, 5 U.S.C. § 553. In a memorandum dated February 12, 1973, counsel advised us that the Board has recently concluded one such proceeding by promulgating a standard for the exercise of jurisdiction over private colleges and universities, 35 Fed. Beg. 18370 (1970) and 29 C.F.B. § 103.1. Also in the summer of 1972 the Board published notices of proposed rule-making on the questions whether to assert jurisdiction over the horseracing and dogracing industries and over symphony orchestras and, if so, what the standard should be. 37 Fed.Beg. 14242, 16813.

      , While nominally this comes before us as an unfair labor practice case, in substance the attack is on the Board’s decision, unreviewable at the time, in the representation proceeding.

      . Although Swift & Co., 115 N.L.R.B. 752 (1956), may be the only case in which the Board had squarely held that buyers were not entitled to organize in a union separate from rank-and-file employees, the reasoning of the many decisions in fn. 11 necessarily led to that result so long as the Board classified almost all buyers ns “managerial employees.”
      A number of the decisions that have upheld the Board’s reversing prior decisions in adjudicative proceedings have been in situations where the Board has merely prescribed a stricter remedy. See, e. g., NLRB v. A.P.W. Products Co., 316 F.2d 899, 905 (2 Cir. 1963) (retroactively overruling decisions that back pay awards are tolled by examiner’s finding of non-violation); cf. International Union of Elec., Radio and Mach. Workers, 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied, Tiidee Products Inc. v. International Union of Elec., Radio and Mach. Workers, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970); H. & F. Binch Co. Plant of Native Laces v. NLRB, 456 F.2d 357, 364-365 (2 Cir. 1972) (enlarging reinstatement rights of economic strikers).

      . In the Binch case, supra note 16, we sustained retroactive application of the Board’s decision in The Laidlaw Corporation, 171 N.L.R.B. No. 172 (1968), enforced, 414 F.2d 99 (7 Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970), mainly because it had been presaged by an earlier Supreme Court decision.

      . In March 1970 Professor Bernstein proposed “a two-year moratorium on APA rule-making requirements, during which the Board and its special public canvass their alternatives and seek suitable adjustments.” Supra, 79 Yale L.J. at 620-21. Nearly three years have passed, without significant result.


source: Caselaw Access Project

author: CAMPBELL, Circuit Judge.

license: Public Domain

text:
    Alfred WILSON et al., Plaintiffs, Appellees, v. NOOTER CORPORATION, Defendant and Third-Party Plaintiff, Appellant, v. The H. K. FERGUSON COMPANY, Third-Party Defendant, Appellee.
    No. 72-1308.
    United States Court of Appeals, First Circuit.
    Heard Dec. 6, 1972.
    Decided March 13, 1973.

      Martin L. Gross and John C. Ransmeier, Concord, N. H., with whom Sulloway, Hollis, Godfrey & Soden, Concord, N. H., was on brief, for appellant.
    Kurt M. Swenson and Dort Bigg, Manchester, N. H., with whom Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N. H., was on brief, for Alfred Wilson and Robertina Wilson, appellees.
    Joseph F. Devan, Manchester, N. H., with whom Sheehan, Phinney, Bass & Green, Manchester, N. H., was on brief, for The H. K. Ferguson Company, appellee.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

      . Cf. Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614 (1951); Kessler v. Bates & Rogers Construction Co., 155 Neb. 40, 50 N.W.2d 553 (1951).

   CAMPBELL, Circuit Judge.

Appellee Ferguson was the general contractor for the construction of a brewery in Merrimack, New Hampshire. Appellant Nooter, a boilermaker, was the sub-contractor in charge of erecting a large vat.

Appellee Wilson, a brick mason and Ferguson employee, was injured when Ferguson’s crane, operated by a Ferguson employee, snagged a cable holding up ' the scaffold upon which Wilson worked. Nooter had called in the crane to lift a heavy beam from the building which housed the vat.

Wilson and his wife sued Nooter in the district court; Nooter brought a third-party complaint against Ferguson for indemnity. Trial was before a jury of six, as required for civil cases by the district court’s local rule 30. At the close of all the evidence on liability, the court directed verdicts for Wilson and his wife against Nooter, and for Ferguson against Nooter. The jury then assessed damages. Nooter has appealed.

The principal issue is whether the district court erred in withholding from the jury the question whether Ferguson’s employees operating the crane had become Nooter’s borrowed servants, such that Nooter was liable for their negligence, if any, as well as for any negligence on the part of its own employees. On this question, New Hampshire law applies. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We hold that the question should have been submitted to the jury, and accordingly remand for a new trial on liability.

Nooter, which owned cranes but had no crane at the job site, at times used a Ferguson crane, paying therefor by accepting a back charge from Ferguson. The crane operator and the oiler (who cleaned the machine and assisted the operator) were both Ferguson employees, subject to discharge and paid by Ferguson. Nooter could, however, reject an operator if not satisfied with him.

On the present occasion, Nelson, an assistant foreman for Nooter, had asked Hall, a licensed crane operator in Ferguson’s employ, to bring the crane at his convenience to lift the heavy steel beam. One or two days thereafter, Hall, accompanied by his oiler, Bugay, appeared at the site in the crane, valued at $65,000, with a 100-foot boom and a 50-ton lifting capacity. The boom could be raised or lowered and moved laterally.

The beam was lying on the third floor near the easterly side of the building. The east wall was in the process of completion, and the beam had to be removed while access remained. Wilson was working on the east wall from a scaffold suspended by vertical cables fastened to the beams of the roof of the building. The cables were hung in pairs, the cable nearer the wall supporting the inner edge of the platform, the outer cable supporting the outer edge. The pairs were spaced five to eight feet apart along the scaffold. The space between the pairs of cables was called a “bay”.

Nelson pointed out to Hall where the boom had to go to make the hoist. Its tip had to be inserted through a bay. Hall decided where to place the crane, positioning it as close to the building as possible. The oiler, Bugay, directed Hall as he swung the boom down to clear the overhang of the roof. (Bu-gay’s attention thereafter was distracted, and he did not see the events following.) Then Hall, following signals from Nelson, who was on the third floor, lowered the boom so that its tip was in the bay. Hall could not see the beam from the cab, although it could be inferred that he could see Wilson, the scaffold, and its supporting cables. About 2Vá feet separated the boom from the cables on either side of it. Hall did not lock the boom to prevent sideways motion, although he could have done so.

Nelson signaled Hall to lower the hoisting cable, and, with another Nooter employee, Beatty, attached the hook on the cable to the beam. Nelson then signaled for short hoists so that the beam could be properly positioned to be lifted from the building. Finally, Nelson signaled Hall to raise the boom to lift the beam out. He gave no signal for lateral motion of the boom. As the tip of the boom came put of the bay, a protruding pin on the side of the boom snagged one of the scaffold support cables, pulling the scaffold away from the building. Wilson, standing on the scaffold, hung onto the wall. The cable came free of the boom, the scaffold swung back, and struck and injured Wilson. The entire operation had consumed about two hours.

The district court, in directing a verdict for Wilson and for Ferguson, ruled as a matter of law that at the time of the accident, Hall and the oiler were borrowed servants of Nooter, making Nooter responsible for any negligence, in whole or in part, that may have contributed to the accident. It emphasized that “as a matter of law” they were acting under Nooter’s direction and control, so that even if one or both were found wholly responsible for the accident, Nooter would still be liable.

Borrowed servant law is extraordinarily troublesome. See generally T. Smith, “Scope of the Business: The Borrowed Servant Problem,” 38 Mich.L.Rev. 1222 (1940). In New Hampshire, the “fundamental test” for determining liability for the negligence of a general employer’s servant doing work for another is “who exercised the ‘right of control over the performance of that work to the extent of prescribing the manner in which it is to be executed.’ ” Currier v. Abbott, 104 N.H. 299, 304, 185 A.2d 263, 267 (1962), citing Restatement of Agency 2d §§ 220(1), 227. See also Hunter v. R. G. Watkins & Son, Inc., 110 N.H. 243, 246, 265 A.2d 15, 17 (1970) (dictum). Right of control is determined, according both to the New Hampshire cases and to the Restatement, which they cite, as a “question of fact” (Restatement, § 227) by marshalling and weighing a variety of factors, no one of which is controlling and all of which are to be considered.

Several of the factors recognized in the New Hampshire cases, and in the Restatement, could lead a jury to conclude that the right to control remained in Ferguson. Hall operated a machine of considerable value and complexity; where, during the job, the interests of Nooter conflicted with those of Ferguson, it might be expected that Hall would protect Ferguson’s interests in the use of the machine. Hall and Bugay remained subject to discharge only by Ferguson, and only Ferguson could substitute other operators for them. The period of hire was brief. Hall decided where to place the crane, and Hall and Bugay on their own lowered the boom under the roof overhang. Hall, a licensed operator, had the skill of a specialist, making decisions such as whether to lock the boom to prevent sideways motion. See generally Golding-Keene Co. v. Fidelity-Phenix Fire Insurance Co., 96 N.H. 64, 70, 69 A.2d 856, 860 (1949); Restatement of Agency 2d § 227, comment c.

Other, admittedly not inconsiderable, factors suggest a shift of the right to control to Nooter. Thus, Nooter’s man, Nelson, told Hall where to place the boom, and directed Hall in the lifting of the beam. During the part of the job most directly connected with the accident, Hall, unable to see the beam, acted in response to Nelson’s signals. That Ferguson was not in the business of renting cranes but merely permitted (though not gratuitously) Nooter to use the crane would support an inference that Ferguson intended to surrender control. See generally Currier v. Abbott, supra, 104 N.H. at 303-304, 185 A. 2d at 266-267; Restatement of Agency 2d § 227, comments c and d.

The balance of factors is further complicated by the rule, “There is no inference that because the general employer has permitted a division of control, he has surrendered, it.” Restatement of Agency 2d § 227, comment b. See Cardozo, J., in Charles v. Barrett, 233 N.Y. 127, 129, 135 N.E. 199, 200 (1922).

In New Hampshire law it is for the jury to weigh the factors and decide which employer exercised the right to control. The borrowed servant question “[is] a question of fact . upon which the finding of the Trial Court cannot be disturbed if there is evidence to sustain it.” Indemnity Insurance Co. of North America v. Cannon, 94 N.H. 319, 321, 52 A.2d 855, 856 (1947). See also Restatement of Agency 2d § 227, comment a. Proponents’ verdicts are rarely directed in New Hampshire and in the federal courts; they are not directed, even on undisputed evidence, if the evidence gives rise to conflicting inferences. Boothby v. Prescott, 97 N.H. 504, 505, 92 A.2d 661, 662 (1952); Federal Insurance Company v. Summers, 403 F.2d 971, 975-976 (1st Cir. 1968). Here, although there is much support for the district court’s conclusion, we think a jury could, by attaching different weight to certain factors, have permissibly reached a different result. Like the court in Dickerson v. American Sugar Refining Co., 211 F.2d 200, 202 (3rd Cir. 1954), construing Pennsylvania borrowed servant law, we think that the evidence, taken as a whole, is subject to inconsistent inferences, and that, under New Hampshire law, these must be resolved by the jury.

We are aware of no New Hampshire case in which a directed verdict on this question was sustained. In Currier v. Abbott, supra, a case relied on by appellees, the court, although affirming a jury verdict holding liable the temporary employer, Abbott, said: “Upon the evidence in this case it could not be said that whatever Pratt did while hired out to Abbott ‘must’ as a matter of law be considered done in the service of Abbott.” 104 N.H. at 303, 185 A.2d at 266. Golding-Keene Co. v. Fidelity-Phenix Insurance Co., 96 N.H. 64, 69 A.2d 856 (1949), and Mead v. Travelers Insurance Co., 111 N.H. 27, 274 A.2d 792 (1971), involved affirmation of findings by a master and a trial court, respectively, and do not stand for the proposition that such findings were required as a matter of law.

Doubtless there may be a case where, notwithstanding the existence of a few factors looking the other way, the bulk of the evidence is so strong in one direction as to permit but one inference. But we cannot say this is that case. The tortuous history of “borrowed servant” reflects different emphases by different courts and commentators on the weight to be given different factors. The variety of emphases stems from conflicting judgments of policy: is it reasonable most often to impose liability upon the general employer, who hired and selected the man? Should it rather be placed upon the one whose immediate interests were being served at the time of the accident? New Hampshire, like some but not all jurisdictions, has decided to leave the marshalling and weighing of the factors, and the unavoidable policy judgments lurking beneath the surface of the amorphous “control” test, to a properly instructed jury. We think we must leave them there.

Since we remand for a new trial, we shall deal briefly with two other issues raised by Nooter, finding merit in neither.

We agree with the district court that any liability of Nooter attributable solely to its “borrowed servant” responsibility for the Ferguson employees’ negligence cannot be recovered back from Ferguson on a theory of implied warranty of workmanlike performance. It would be odd indeed for the law, having under one of its principles shifted responsibility for their negligence to Nooter, to shift it back to Ferguson by an implication.

Nooter relies on cases that one who entrusts a nondelegable duty with respect to his premises to a third person, usually an independent contractor, and is held liable for a breach thereof, may recover from the third party for any breach of an implied obligation to perform the job with care and in a workmanlike manner. Wentworth Hotel, Inc. v. F. A. Gray, Inc., 110 N.H. 458, 272 A.2d 583 (1970); Sears, Roebuck & Company v. Philip, N.H., 294 A.2d 211 (1972); Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567 (1938); Ryan Stevedoring Company v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). See Restatement of Restitution § 95. But a necessary aspect of the cited cases is that the third-party contractor, or his employee, remains independent of the man for whom he is performing the job. Liability of Nooter for Hall’s negligence, on the other hand, would rest on the finding that Hall lost his independence and, coming under the control of Nooter, became its servant.

Finally, we deal with Nooter’s contention that the United States and the New Hampshire constitutions, 28 U.S.C. § 2072, and Federal Rules of Civil Procedure 38, 48 (see F.R.C.P. 83), all prohibit a district court’s unilateral reduction in the size of the 12-man jury.

Nooter mounts this argument in the face of strong authority against it. If, as the United States Supreme Court held in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Sixth Amendment guarantee of jury trial in criminal cases did not freeze for all time the number of jurors at twelve, we see no reason, in history or policy, for holding that that number is frozen into the civil jury requirement of the Seventh Amendment. As Judge Wisdom said in Cooley v. Strickland Transportation Company, 459 F.2d 779, 781 (5th Cir. 1972), petition for rehearing and petition for rehearing en banc denied, “no one has ever contended that the function of the civil jury is more important than that of the criminal jury. ... It would be anomalous to the point of irrationality to construe the Constitution as sanctioning a six-member criminal jury but not sanctioning a six-member civil jury.” Accord, Colgrove v. Battin, 456 F.2d 1379 (9th Cir. 1972), cert. granted, 409 U.S. 841, 93 S.Ct. 44, 34 L.Ed.2d 80 (1972). We further agree with Judge Wisdom that the use of “at common law” in the Seventh Amendment merely distinguishes common law from equity and admiralty cases for purposes of the jury trial requirement, and does not imply a requirement that the jurors number 12. See 459 F.2d at 781-782.

Neither do we think that the enabling act, 28 U.S.C. § 2072, commits the Supreme Court, in promulgating the Federal Rules, to the preservation of 12-man juries. We agree with the Fifth and Ninth Circuits that this language was meant merely to preserve jury trials in common law cases upon the merger of law and equity. See Colgrove v. Battin, supra, 456 F.2d at 1380-1381; Cooley v. Strickland Transportation Company, 459 F.2d at 785-786. We see nothing in rule 30 inconsistent with Federal Rules 38(a) and 48. See Colgrove, 456 F.2d at 1381; Cooley, 459 F.2d at 783-785.

Alternatively, appellant argues that under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the size of the jury is a state law question, and that the New Hampshire Constitution requires a 12-man jury, citing such ancient cases as Opinion of the Justices, 41 N.H. 550 (1860), and Copp v. Henniker, 55 N.H. 179 (1875). These cases, it is true, refer to the view, doubtless then well-nigh universal, that juries consist of 12 men. They do not, however, focus on all the issues raised in Williams, and do not leave us convinced that New Hampshire, should the question arise today, would not rethink the matter. See Opinion of the Justices, 1971 Mass.A.S. 1169, 271 N.E.2d 335 (1971). Thus, we do not accept the premise that a 12-man jury (as distinct from a jury) is today an “integral” part of the state-created right. See Byrd v. Blue Ridge Electric Cooperative, Inc., 356 U.S. 525, 536, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). Further, even the so-called outcome-determinative test would not lead to application of state law, since, as the Supreme Court said in Williams, 399 U.S. at 101, 90 S.Ct. at 1906, there is “no discernible difference between the results reached by the two different-sized juries.” See Byrd, supra, 356 U.S. at 356-357, 539-540, 78 S.Ct. 893. Finally, even if outcomes might be different, we reject appellant’s argument that, upon a balancing of state and federal interest, the federal policy favoring the six-member jury is not “strong.” See Byrd, supra, 356 U.S. at 537-539, 78 S.Ct. 893. Apart from the not insignificant issues of expense and inconvenience given today’s crowded dockets, we think that it would appear fortuitous and arbitrary for civil litigants in the same federal court to be confronted with different sized juries depending on whether their cause of action is denominated federal or state.

There must be a new trial on the issue of Nooter’s liability; and we remand for that purpose. If Nooter is found to be liable to the plaintiffs, the original jury verdicts on damages shall stand. Damages need not be reassessed. We intimate no position on whether, under certain circumstances, Nooter may be able to make out any claim against Ferguson for contribution or indemnity should Ferguson’s employees be found not to be borrowed servants but nonetheless negligent.

Reversed and remanded for proceedings consistent herewith.

      . It has been said, however, that a signalman’s giving of signals to a winch operator “was not the giving of orders, but of information, and [that] the obedience to those signals showed co-operation rather than subordination. . . .” Standard Oil Co. v. Anderson, 212 U.S. 215, 226, 29 S.Ct. 252, 256, 53 L.Ed. 480 (1909).

      . The court also said, 104 N.H. at 305, 185 A.2d at 268, “. . . the evidence plainly presented issues for the jury, .” and cited Balcus v. Sterling Express Company, 93 N.H. 428, 43 A.2d 155 (1945), where, on conflicting testimony as to the terms of an agreement concerning a borrowed servant, the trial court was held to have erroneously directed a verdict against the general employer.

      . The Supreme Court has, however, yet to rule directly. Colgrove v. Battin, infra, cert. granted 409 U.S. 841, 93 S.Ct. 44, 34 L.Ed.2d 80 (1972).

      . The act says, in part:
      “Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.”

      . “[Art.] 20th. [Jury Trial in Civil Causes.] In all controversies concerning property — and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced, and except in cases in which the value in controversy does not exceed five hundred dollars, and title of real estate is not concerned the parties have a right to a trial by jury and this method of procedure shall be held sacred,


author: JOHN R. BROWN, Chief Judge:

text:
    NAT G. HARRISON OVERSEAS CORP., Plaintiff, v. AMERICAN BARGE SUN COASTER, and her appurtenances, in rem, Defendant, Thurston Crawford, Defendant-Appellant, Litton Industries Credit Corporation, Intervening Plaintiff-Appellee.
    No. 71-2663.
    United States Court of Appeals, Fifth Circuit.
    March 8, 1973.

      William H. Maness, Jacksonville, Fla., for appellant.
    George E. Patterson, Jr., Miami, Fla., Sirius C. Cook, New York City, for appellee.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Appellant Crawford, the borrower, challenges the imposition of a $300,000 plus personal judgment for the deficiency after the sale of the barge Sun Coaster. Crawford contends that (i) the District Court erred in finding that the mortgage in question was a “Preferred Ship Mortgage,” (ii) that the judgment should be purged of interest, because it was usurious under the laws of the state of Georgia, (iii) that because the interest rate is usurious under the controlling state law no personal deficiency judgment can be entered under the federal law, and (iv) that the Court incorrectly computed the application of payments on the mortgage to principal and interest, thereby charging Appellant with a higher than proper deficiency-

Concluding that (i) under the intervening decision en banc in J. Ray McDermott & Co., Inc. v. M/V Morning Star, 5 Cir., 1972, 457 F.2d 815, 72 A.M.C. 907 (reversing the panel decision, 431 F.2d 714, 70 A.M.C. 2228) the law of the state of Georgia is irrelevant, (ii) the Preferred Mortgage Act does not recognize usury when an agreement pledges a vessel as security and comes within the terms of the Act, but (iii) that the District Court’s computation of the amounts allocable to interest and principal was incorrect, we affirm in part and modify in part.

The barge Sun Coaster was built in 1963 and financed by Plaintiff-Appellee Litton Industries. The financing was secured by the first preferred ship mortgage on the barge and by a preferred ship mortgage on another vessel, the “Scintilla”. Appellant Crawford defaulted on the three promissory notes which formed the initial 1963 financing arrangement. In January of 1967 refinancing arrangements were made between Crawford and Litton Industries in order to avoid foreclosure. The new arrangement contemplated consolidation of the notes in default and the posting of additional security by the Appellant Crawford.

The original financing had stated the amount of the debt in a lump sum with both interest and principal (equaling the amount of debt) stated in a lump sum dollar figure, and providing that payments would be applied to interest and principal in a level amount. The 1967 refinancing note likewise stated interest and principal in lump sum dollar amounts which totaled the amount of the debt. It was, however, silent as to the manner in which payments were to be allocated between principal and interest.

The non-appealing Plaintiff Nat G. Harrison Overseas Corp., owned a cargo aboard the Sun Coaster when she was bound for Guantanamo Bay, Cuba from Miami, Florida on what would prove to be her last voyage. She capsized and was towed back to Florida bottom side up. Harrison Overseas libeled her and Litton Industries as the preferred ship mortgage holder intervened in the in rem proceedings and by process in rem instituted a foreclosure of the mortgage.

Appellant Crawford contends that the mortgage fails to satisfy the criteria necessary for preferred status because it violates 46 U.S.C.A. § 922(e) which provides:

“A mortgage which includes property other than a vessel shall not be held a preferred mortgage unless the mortgage provides for the separate discharge of such property by the payment of a specified portion of the mortgage indebtedness. If a preferred mortgage so provides for the separate discharge, the amount of the portion of such payment shall be indorsed upon the documents of the vessel.”

The Appellees secured their loan with non-maritime property, as well as the preferred ship mortgage. However, the other items of collateral — which included real property, and hypothecated stock— were each treated in separate security instruments. In short, this “mortgage [— was not one which — ] includes property other than a vessel * * * ” § 922(e).

The case at hand does not even approach the factual threshold where a Court would hold that § 922(e) was breached. In the present case the ship mortgage covered a single piece of property, namely, the ship. The rational of the District Court in Emma Giles, D.Md., 1936, 15 F.Supp. 502, 36 A.M.C. 1146, depends on the fact that the mortgage instrument by its terms and within the corners of a single document, purported to create a mortgage lien on both maritime and non-maritime property. The Bay Belle, D.Md., 1963, 215 F.Supp. 72, 64 A.M.C. 2674, aff’d, 4 Cir., 1963, 324 F.2d 954. In the Emma Giles the different items securing the debt were not severable. In the case at hand the collateral is dealt with by separate instruments and there is no need for severance. See, Pascagoula Dock Station v. Merchants and Marine Bank, 5 Cir., 1959, 271 F.2d 53, 55, 59 A.M.C. 2207.

Section 46 U.S.C.A. § 954(a) permits the mortgagee to bring suit in personam against the mortgagor before the Admiralty for any deficiency that the sale price of the vessel bears to the indebtedness which it secures. 46 U.S.C.A. § 926(d) specifies that:

“A preferred mortgage may bear such rate of interest as is agreed by the parties thereto.”

Like the en banc court in J. Ray McDermott & Co., Inc. v. M/V Morning Star, 5 Cir., 1972, 457 F.2d 815, 72 A.M.C. 907, we perceive no void in the statutory scheme here. And since as Morning Star makes clear that the Ship Mortgage Act provides a comprehensive scheme for the foreclosure of preferred ship’s mortgages and any remaining deficiency judgments against the debtor personally, there is no room for the operation of state law. Any adoption of state law would not only — as the court feared would occur in the Morning Star, supra — “introduce an undesirable lack of uniformity” in the Act, but in the present case it would flatly conflict with Section 926(d), supra. The remaining issue, whether the interest and principal payments were correctly computed, is only slightly more difficult.

Appellant asserts that by the structure of the underlying 1967 note monthly payments were to be applied ratably to principal and interest, and therefore the method of allocation or computation of principal and interest used by the District Court was erroneous. This was especially true, he claims, since the 1963 agreements contemplated pro rata application of payments to principal and interest and therefore a “course of dealings” has been established to which the Court must look to illuminate the intent of the parties to the note.

Appellee counters with a citation to the “United States Rule” as stated in Story v. Livingston, 1837, 38 U.S. (13 Peters) 359, 10 L.Ed. 200 where the Court said:

“The correct rule in general is that the creditor shall calculate interest whenever a payment is made. To this interest the payment is first to be applied and if it exceed the interest due, the balance is to be applied to diminish the principal. If the payment fall short of the interest, the balance of interest is not to be added to the principal so as to produce interest. This rule is equally applicable, whether the debt be one which expressly draws interest, or on which interest is given in the name of damages.”

Appellee also points to the fact that among the 1963 agreements were two smaller notes upon which the interest was stated in percentage and to which the “United States Rule” the Appellant Crawford concedes would apply.

The “United States Rule” has been with us almost since the founding of our federal system and it is an ideal source where Federal, not state, law is controlling, M/V Morning Star, supra. It has been applied to cases where interest is stated as a lump sum, as here, as well as cases where interest is stated in a percentage.

But it is a rule to apply in the absence of a clearly expressed intention to handle allocation in some other way. Here four things were done in the note: (i) a lump sum of principal was precisely stated, (ii) a lump sum of total interest was precisely stated, (iii) these were to be paid in 72 installments all but the last of which were in equal specified amounts of $6,356.39, and (iv) such an installment computation reflects that necessarily the stated sums were aggregated. Each monthly payment was to be 1/71st of the stated principal and stated interest. It is the provision for equal monthly payments for the stated period, not the fact that total interest is stated in a lump sum, cf., United States v. McLemore, supra n. 7, which reflects a purpose to apply current payments ratably to interest and principal.

Consequently, the “United States Rule” does not control and the correct amount of principal and interest must be recomputed on remand in the light of this holding. But in all other respects we fully approve the District Court’s action.

Affirmed in part: modified in part and remanded.

      . 46 U.S.C.A. § 922 et seq.

      . The Hull insurance proceeds, of which mortgagee was the loss payee, from the capsizing were sufficient to pay the Distriet Court’s judgment in full. This litigation really concerns lvow much, if any, Appellant Crawford is to receive from the insurance fund.

      . Cf. Gilmore and Black, The Law of Admiralty (1957) at 580-82.

      . The Note recites the debt and interest to be paid as follows:
      “FOR VALUE RECEIVED, I promise to pay to the order of THE IN-GALLS SHIPBUILDING CORPORATION the amount of THREE HUNDRED THIRTY-SIX THOUSAND FIVE HUNDRED FOURTEEN and 93/100 DOLLARS ($336,514.93) with interest in the total amount of One Hundred Twenty-One Thousand One Hundred Forty-Five and 37/100 Dollars ($121,145.37), payable with each installment of principal, payable in seventy-one (71) equal monthly installments of Six Thousand Three Hundred Fifty-Six and 39/100 Dollars ($6,356.39) and one (1) final installment of Six Thousand Three Hundred Fifty-Six and 61/100 Dollars ($6,356.-61), beginning on January 14, 1967, and on such date of each month thereafter until such sums are paid in full.”

      . See, e. g., Uniform Commercial Code, § 1-205 which makes a “course of dealing” part of the bargain in a sales contract. We do not mean to hold or even 'imply that the UCC would have any application to the case at hand, but only mention it by way of illustration.

      . Whiteside v. Washington Loan & Trust Co., 1937, 68 App.D.C. 172, 95 F.2d 83, followed Story, supra.

      . United States v. McLemore, 1846, 45 U.S. (4 Howard) 286, 11 L.Ed. 977.


author: McENTEE, Circuit Judge.

text:
    George C. STAFFORD, Plaintiff, Appellee, v. PERINI CORPORATION, Defendant, Appellant.
    No. 71-1221.
    United States Court of Appeals, First Circuit.
    Heard Dec. 7, 1972.
    Decided March 20, 1973.

      James C. Gahan, Jr., Boston, Mass., for defendant, appellant.
    David B. Kaplan, Boston, Mass., with whom Robert S. Wolfe, Boston, Mass., was on brief, for plaintiff, appellee.-
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Plaintiff, George C. Stafford, brought this action under the Jones Act, 46 U.S. C. § 688, for negligence and under the general maritime law for unseaworthiness to recover for personal injuries sustained while working on a barge owned by his employer, Perini Corporation. Following a jury trial, judgment was entered in plaintiff’s favor in the amount of $64,140. Arguing that the evidence was insufficient to support the jury verdict, both as to liability and damages, and that the verdict was excessive in amount, Perini appeals from the denial of its motions for a directed verdict and a new trial. For the reasons stated below, we affirm.

Construing the evidence most favorably to the plaintiff, the facts are as follows. At the time of the accident, Stafford was employed as a dockbuilder by Perini Corporation, which was then engaged in the construction of the Newport Bridge in Rhode Island. One of Stafford’s principal duties in this capacity was to build and repair certain “forms,” which were used for the pouring of concrete in erecting the piers of the bridge. This work was generally done on the deck of a barge owned by Perini (Scow 101), which was located about two miles offshore in Narragansett Bay. The barge also served as a storage area for various materials and carried a large crane which was used for the purpose of lifting the forms back and forth from the deck to the piers. In addition to building and repairing the forms, Stafford did various construction work on the piers themselves and also assisted in moving the barge from one site to another by handling its mooring and towing lines.

The crane on board Scow 101 was supported by 16 x 16 timbers which ran across the surface of the barge in such a manner as to leave only a narrow unobstructed walkway along the edge of the deck. On May 15, 1969, Stafford and a co-worker were ordered to carry a four hundred pound channel iron across the barge, although it was the usual practice to assign three or four men to this task. While carrying the channel iron across the obstructed area, Stafford slipped on some dunnage and injured his back.

A myelogram taken shortly after this incident revealed that Stafford had sustained a herniated cervical disc between his fifth and sixth cervical vertebrates. As a result of this injury, he was required to undergo surgery and did not resume work of any kind until December 14, 1969, at which time he started a new job as an automobile mechanic performing light servicing work only. Stafford was cleared by his physician for a return to his former employment on March 1, 1970, but continued to complain of headaches, difficulty in swallowing and a weakness in his arms. He testified that as a result of these symptoms, he was unable to perform heavy labor of any kind.

Prior to his employment with Perini in 1966, Stafford had worked mostly as a mechanic and a truck driver, earning less than $7,000 a year. While working as a dockbuilder, however, his average annual earnings exceeded $12,000. During a period in 1968 when work on the Newport Bridge had been temporarily suspended, plaintiff was variously employed as a mechanic, a construction worker, and a millwright. His weekly earnings in these latter two capacities were $180 and $190 respectively. Following his return to work after the accident, Stafford earned $120 per week as a light mechanic.

On the issue of damages, the district court instructed the jury that it could award plaintiff a sum which would reasonably compensate him for his past and future pain and suffering and loss of earning capacity. Under these instructions, the jury returned a $60,000 verdict in plaintiff’s favor.

Appellant’s basic argument on the issue of liability is that plaintiff did not qualify as a “member of a crew of any vessel” and was therefore not entitled to recover under the Jones Act or the general maritime law. See Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66 S.Ct. 869 90 L.Ed. 1045 (1946). In support of this contention, appellant argues that plaintiff failed to meet the test for crew-member status laid down in Offshore Company v. Robison, 266 F.2d 769, 779 (5th Cir. 1959) since the evidence was insufficient to establish (1) that he performed a substantial part of his work on board Scow 101 and (2) that the duties which he performed contributed to the function of the vessel or the accomplishment of its mission. We cannot agree with this assessment of the evidence. Contrary to appellant’s assertion that plaintiff’s work was done almost exclusively on the piers, the record clearly indicates that a significant part of his job was to build and renovate the forms used in connection with the piers’ construction. According to appellant’s own witness, this work was done on the deck of Scow 101. There was also testimony that on the day of the accident, Stafford spent at least four hours on board the barge. In light of this evidence, we cannot say, as a matter of law, that plaintiff did not perform a substantial part of his work on Scow 101. Moreover, since one of the primary functions of the vessel was apparently to provide a work area for the construction of the forms, it is clear that Stafford’s duties directly related to the performance of its mission. The question as to plaintiff’s crew-member status, therefore, was for the jury. Compare Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed. 737 (1958); Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958); Biggs v. Norfolk Dredging Co., 360 F.2d 360 (4th Cir. 1966).

Appellant also objects to the district court’s instructions to the jury on this issue, arguing that insufficient emphasis was placed on the “substantial work” requirement. The court quite clearly instructed the jury, however, that plaintiff must have had more than an irregular connection with a vessel in order to be found a member of a crew, and that this issue could be framed in terms of whether he performed a substantial part of his work on the barge. While this instruction was perhaps something less than ideal from appellant’s viewpoint, we think it was an adequate statement of the law as set forth in Offshore Company v. Robison, supra.

Appellant next argues that the evidence did not warrant a finding that it was negligent as alleged under the Jones Act claim, and that the court committed prejudicial error in its instructions to the jury on that issue. We find these arguments to be without merit. First, Perini made no objection to the court’s instructions on this aspect of the case and we therefore decline to consider its contentions on appeal. Secondly, there was ample evidence to support a finding of negligence on appellant’s part. Expert testimony established that working conditions on board Scow 101 were unsafe on the day of the accident. Moreover, plaintiff testified that the unsafe condition had existed on the deck of the barge for approximately three months before the accident, and that it was contrary to custom and practice to require only two men to carry a four hundred pound channel iron. Under these circumstances, it certainly was not error to submit the negligence claim to the jury.

Appellant’s remaining contentions relate to the issue of damages. First, Perini argues that the evidence was insufficient to establish a causal connection between the accident and plaintiff’s alleged disability at the time of the trial. When plaintiff’s expert medical witness was questioned as to whether Stafford's symptoms were reasonable in view of his original injury and the surgery which he subsequently underwent, he replied “Yes. He could have a disability related to this.” Appellant argues, however, that since this testimony only expressed an opinion as to the possibility of a causal relationship between the accident and the alleged disability, the jury was improperly permitted to include future loss of earning capacity and pain and suffering in its calculation of damages. We agree with the district court that “the combined testimony of the plaintiff and his orthopedic surgeon could fairly have been construed . . . as supporting” such an award. In Sentilles v. Inter-Caribbean Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), the Court considered a similar challenge to the sufficiency of the medical evidence to support a finding of causality. In that case, the plaintiff claimed that his pre-existing tubercular condition had been aggravated as a result of the accident in question. While none of the three medical witnesses was willing to definitely attribute the aggravation of plaintiff’s illness to the accident, they each indicated that it was a possible or probable cause. In upholding the jury’s verdict the Court stated that:

“The jury’s power to draw the inference that the aggravation of petitioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause .... The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all circumstances, including the medical testimony, into consideration” (footnote omitted). Id. at 109, 80 S.Ct. at 175.

See also Brett v. J. M. Carras, Inc., 203 F.2d 451 (3d Cir. 1953). The medical evidence in this case, when taken together with plaintiff’s testimony concerning his symptoms and the time of their onset, was sufficient to warrant the jury in finding a causal connection between the accident and plaintiff’s disability.

Appellant also argues that the district court erred in failing to grant its motion for a new trial on the grounds that the jury’s verdict was excessive. According to appellant, the size of the jury’s verdict was in large part attributable to its use of a temporary period of abnormally high wages as a standard for determining plaintiff’s future loss of earning capacity. Perini argues that prior to his employment as a dockbuilder in 1966, plaintiff had worked mostly as a mechanic and truck driver earning less than $7,000 a year; that plaintiff’s job with Perini would have ended about one month after the accident; and that no evidence was introduced as to the availability of similar jobs in the Newport area.

A motion for a new trial on the grounds of inadequate or excessive damages is addressed to the discretion of the trial court, and its decision may be reversed only for an abuse of that discretion. See Boston & Maine Railroad v. Talbert, 360 F.2d 286 (1st Cir. 1966); New York, N. H. & H. R. Co. v. Zermani, 200 F.2d 240 (1st Cir. 1952), cert. denied, 345 U.S. 917, 73 S.Ct. 729, 97 L.Ed. 1351 (1953). The evidence at trial showed that plaintiff had demonstrated an earning capacity of over $12,000 a year as a dockbuilder prior to the accident, and that subsequent to his injury he was unable to perform heavy labor of any kind. Plaintiff also testified that there were dockbuilding jobs available in the Boston area after his return to work in December of 1969, and that several of his former co-workers on the Perini job were commuting from Newport to Boston on a daily basis to work on these projects. Moreover, there was evidence that during part of 1968, plaintiff worked both as a millwright and construction worker, earning between $180 and $190 per week on these jobs, both of which required heavy physical labor. At the time of the trial, plaintiff was employed as a light mechanic earning $120 per week, and had a working life expectancy of 15.2 years. There was also considerable testimony as to the pain and suffering which he underwent as a result of his accident and the subsequent surgery. Considering all of the above circumstances, we do not believe that the jury’s verdict was excessive, and hold that the trial court was within its discretion in denying appellant’s motion for a new trial.

Finally, appellant contends that the evidence was insufficient to warrant the court’s instruction as to the aggravation of a pre-existing medical condition. In view of our holding above that the evidence adequately established a causal relationship between plaintiff’s accident and his subsequent disability, we find that this instruction was not prejudicial.

Affirmed.

      . A third count for maintenance and cure was decided by the district court in favor of the defendant. No appeal was taken from this decision.

      . For the same reason, we need not consider appellant’s argument that the district court improperly instructed the jury on the issue of proximate cause in relation to the unseaworthiness claim,


author: LIVELY, Circuit Judge.

text:
    Norman Lee HAMILTON, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 72-1501.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided March 29, 1973.

      Rollie L. Woodall (Court Appointed), Nashville, Tenn., on brief for appellant.
    Joe B. Brown, Asst. U. S. Atty., for appellee; Charles H. Anderson, U. S. Atty., M. D. Tennessee, Nashville, Tenn., on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge.

       The Honorable Don J. Young, District Judge of the United States District Court for the Northern District of Ohio, sitting by designation.

   LIVELY, Circuit Judge.

The appellant robbed a branch of First American National Bank in Nashville, Tennessee shortly after noon on September 16,1971. An off-duty policeman who was in the bank on personal business arrested appellant as he was getting into a taxi cab in front of the bank immediately after the robbery. Although appellant had told the teller from whom he took $744 that he had a gun in his pocket, when arrested he was unarmed and did not resist. While being searched for a gun appellant told the arresting officer that the money was in his pocket and indicated which pocket. The money was recovered and appellant was taken to a room in the back of the bank and held until an FBI agent could be summoned. After explaining his rights and obtaining a written waiver from appellant, the agent took a statement which appellant signed. In this statement the robbery was admitted and the reason given was that appellant needed money.

The teller who was robbed stated that she thought that appellant might be drunk because he asked her name when it was in plain view on her cage and furthermore he had no deposit slip or check in his hand when he approached her. However, she testified that appellant had no odor of alcohol about him and did not stagger. Neither the patrolman who made the arrest nor the FBI agent who took the statement thought that appellant was intoxicated, though both agreed that he showed signs of stress. In his statement to the FBI agent the appellant said that he had had six or eight beers during the morning while he was in a bar some two miles away and it was there that he had devised the plan of robbing this particular bank. The taxi driver who took appellant from the hotel to the bank stated that he might have been drinking but that he was not drunk. Appellant rode in the front seat next to the driver.

Witnesses for the government and appellant agreed that he was a chronic alcoholic and that his problem had existed for about 25 years. A psychiatric social worker from Central State Hospital testified that Mr. Hamilton had been a patient at that hospital on four occasions and that she was familiar with his case. She testified that he was a chronic alcoholic and that he had been released from the hospital on August 30 and placed in a Salvation Army rehabilitation center. However, appellant called her the night before the robbery and told her that he was drinking again and asked to be readmitted to the hospital. There was no space available at the time and the social worker told him that she would place him as soon as possible. This witness testified that Hamilton was impulsive, particularly under the influence of alcohol and would do things on the spur of the moment. She testified further that he was impaired in terms of picking out a goal and being able to obtain that goal. Appellant testified that his primary purpose in robbing the bank was to get caught and get some help.

A staff psychiatrist from the Medical Center for Federal Prisoners at Springfield, Missouri, testified that he conducted both a medical examination and psychiatric evaluation on appellant one month after the robbery. While he noted signs of chronic alcoholism, this witness testified that in his opinion appellant was competent at the time he committed the robbery. He did not believe that the evidence indicated that Hamilton was intoxicated at the time of the robbery and it was his opinion that his cerebral abilities were not so impaired by alcohol as to keep him from forming a goal-directed action and carrying it out. The witness did not believe that appellant was suffering from chronic brain syndrome or that he was so intoxicated at the time of the rob? bery as to indicate that he did not know what he was doing or was unable to resist an impulse to carry out his scheme.

In a trial by jury appellant was convicted of unarmed robbery of an insured bank. A number of grounds are urged for reversal. Appellant questions the sufficiency of the evidence on the question of whether the bank was insured by the Federal Deposit Insurance Corporation. The prosecution introduced a 1969 certificate from the F.D.I.C., and the manager of the branch where the robbery took place, who was also an assistant vice president of the banking corporation, testified that the bank which was robbed was insured. This was sufficient to establish jurisdiction of the District Court. United States v. Riley, 435 F.2d 725 (6th Cir. 1970).

Appellant’s motion to suppress the statement he gave the FBI agent was overruled after a hearing. On appeal he contends the government failed to prove that he was competent to waive his constitutional rights and give an incriminating statement. In a similar vein he maintains that his motion for acquittal should have been granted because the prosecution failed to prove that he was responsible for his conduct during the commission of the offense. No witness who observed appellant immediately after the robbery occurred thought that he was drunk. This included a policeman, an FBI agent and a taxi driver, all of whom have had ample opportunities to observe intoxicated people. Furthermore, the FBI agent described appellant’s actions and appearance and concluded that he appeared normal under the circumstances. The evidence fully supports the finding of the trial judge that appellant gave the incriminating statement voluntarily. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); 18 U.S.C. § 3501.

In support of his argument that he was entitled to a directed verdict of acquittal appellant relies upon United States v. Smith, 437 F.2d 538 (6th Cir. 1970). There we held that the prosecution must prove sanity of a criminal defendant beyond a reasonable doubt once a prima facie case of insanity has been established. In Smith the government relied on lay witnesses to rebut the evidence of insanity. That was not the case here. Dr. Rochman, staff psychiatrist from the Medical Center for Federal Prisoners, testified unequivocally that in his opinion appellant was competent at the time he robbed the bank. The trial court properly overruled the motion and submitted this issue to the jury.

Appellant offered a proposed instruction on “irresistible impulse,” using language from Pollard v. United States, 282 F.2d 450 (6th Cir. 1960). In Pollard, Chief Judge McAllister (now Senior Judge) wrote an exhaustive and scholarly opinion on the subject of the defense of irresistible impulse. It was pointed out that the irresistible impulse which constitutes a legal defense differs from uncontrollable desire and “emotional insanity.” The difference is that to constitute a defense to a criminal charge, the impulse must arise from a mental defect or mental disease. 282 F.2d at 462. In refusing to give the requested instruction the trial judge stated that the appellant could argue the theory of irresistible impulse to the jury, but that he felt it was included in his proposed charge to the jury and should not be singled out for special comment.

The court then instructed the jury on the defense of insanity using the three questions set forth in United States v. Smith, 404 F.2d 720, 727 (6th Cir. 1968). In addition, the jury was told that if it had a reasonable doubt as to whether, by reason of intoxication, the defendant was able to form a specific intent to commit the crime charged, it should find him not guilty. These instructions fully presented the defenses of insanity and intoxication. In United States v. Smith, supra, this court substantially adopted the test of criminal responsibility formulated by the American Law Institute in its Model Penal Code. While recognizing that Pollard v. United States, supra, added a major new dimension to the insanity test to be applied by the courts of this circuit, the court pointed out the serious deficiencies of the traditional irresistible impulse definition. By requiring the acquittal of a defendant suffering from a mental illness which renders him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating, the ALI test has preserved the essential elements of “irresistible impulse” without these limitations. The general test encompasses insanity in its various manifestations, and therefore, no additional instruction on a particular theory or classification is required.

The judgment of the District Court is affirmed.