source: Caselaw Access Project

author: McWILLIAMS, Circuit Judge.

license: Public Domain

text:
    UNION EQUITY COOPERATIVE EXCHANGE, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-1722.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 30, 1973.
    Decided July 2, 1973.
    Frank Carter, Enid, Okl. (Otjen & Carter, Enid, Okl., of counsel, on the brief), for petitioner-appellant.
    Carolyn R. Just, Atty., Tax Div., Dept, of Justice (Scott P. Cramp ton, Asst. Atty. Gen., Meyer Rothwacks and Leonard J. Henzke, Jr., Attys., Tax Div., Dept, of Justice, on the brief), for respondent-appellee.
    Before MURRAH, Circuit Judge, and DURFEE, Judge, Court of Claims, and McWILLIAMS, Circuit Judge.

       Sitting by designation.

   McWILLIAMS, Circuit Judge.

This is an appeal from the United States Tax Court. The Union Equity Cooperative Exchange, hereinafter referred to as the taxpayer, is an Oklahoma cooperative marketing association incorporated under the Oklahoma Cooperative Marketing Act, 2 O.S. § 361 et seq., and the so-called Capper-Volstead Act, 7 U.S.C. §§ 291-292, and was the petitioner in the tax court. The Commissioner, the respondent in the tax court, had determined that there was a deficiency in the taxpayer’s income tax for the taxable year ending March 31, 1961, in the sum of $81,266.77, and in the sum of $138,164.30 for the taxable year ending March 31, 1963. The taxpayer sought review of such determination in the tax court and the judge of that court, the Honorable Bruce M. Forrester, in a carefully prepared opinion upheld the determination of the Commissioner. That opinion is now reported at 58 T.C. 397 (1972).

All material facts were stipulated to by the parties before the tax court and are set forth in detail by the tax court in its decision. Accordingly, reference to the facts in this opinion will only be made as is necessary to give meaning to the issues here presented.

The issues now before us are: (1) Was the tax court correct in sustaining the Commissioner’s determination that the taxpayer, a nonexempt cooperative in the fiscal year 1963, must charge its 1963 capital stock dividend payments against net earnings derived from members as well as nonmembers, thereby decreasing the amount of the patronage dividend “deduction” allowable to the taxpayer? (2) Was the tax court correct in sustaining the Commissioner’s determination that the taxpayer did not sustain an operating loss in the fiscal year ending March 31, 1964, which could be carried back to its fiscal year ended March 31, 1961, since in computing its fiscal 1964 patronage dividend deduction allowable under Subchapter T (Sections 1381-1388 of the Internal Revenue Code of 1954) it must reduce its net earnings by capital stock dividends actually or constructively paid in that year, rather than by dividends which were declared in that year but not paid till the succeeding fiscal year? And (3) was the tax court correct in holding that the Commissioner was not estopped from challenging the taxpayer’s method of computation for patronage dividends in the taxable years here in question because agents of the Internal Revenue Service had not previously challenged its method of determining patronage dividends in prior years ?

In our view, the tax court acted correctly in its determination of each of these matters and accordingly its decision is affirmed. We shall consider each of these matters separately.

I. Deficiency for the taxable year ending March 31, 1963.

Under the applicable law for the taxable year 1963, capital stock dividends paid by the taxpayer to its members as a return on their investment were not deductible from taxpayer’s net income, the taxpayer in 1963 being a nonexempt farmers’ cooperative. However, so-called patronage dividends to its members were deductible. We realize there is some difference of opinion as to whether this is truly a “deduction,” or should more properly be referred to as an “exclusion from gross income.” Like the tax court, however, we shall refer to it as a deduction.

A patronage dividend represents a return by the taxpayer of the profits realized during a given year to its members in proportion to their dealings with the taxpayer during the year in question. The amounts returned, in whatever qualified form of property, are designed to be a true correction and deferred price adjustment on transactions the cooperative had with its members resulting in a net profit to the cooperative. See Consumers Credit Rural Elec. Cooperative Corp. v. Commissioner, 319 F.2d 475 (6th Cir. 1963).

The bylaws of the taxpayer in effect for the year 1963 provided, inter alia, for the payment from net earnings of a dividend not to exceed 5% on outstanding capital stock, with the remainder of net earnings to be distributed to its members as a patronage dividend. The bylaws in effect in 1963 did not provide for patronage dividends to nonmembers. The bylaws also provided for the separate handling of net earnings accrued on business transacted “with or for nonmembers,” and the net earnings accrued on business transacted “with or for members.” With this brief background, let us examine the different manner in which the taxpayer and the Commissioner would determine the patronage dividend for 1963.

For the taxable year of 1963, taxpayer’s total net earnings derived from business transacted with members and nonmembers before adjustments for patronage dividends and dividends on capital stock were $1,519,884.69. During that taxable year, taxpayer’s “member business” constituted 57.18% of its total business, with the remaining 42.82% representing “nonmember business.” It is agreed to by the parties, and the tax court proceeded on such premise, that in the absence of evidence to the contrary the Commissioner would assume that taxpayer’s dealings with members and nonmembers were equally profitable, and thus that member business for 1963 generated 57.18% of taxpayer’s net earnings, with the remainder of the net earnings being generated from nonmember business.

In its determination of the patronage dividend, the taxpayer accordingly first determined that its members generated $869,070.07 of its net earnings, this sum representing 57.18% of its total net earnings. After making certain insignificant deductions, it then distributed to its members $861,795.83 (65% in cash and 35% in capital stock) as a patronage dividend and claimed such amount as a deduction on its 1963 tax return. From that portion of the taxpayer’s total' net earnings deemed to have been generated from nonmember business, i. e., 42.82% of $1,519,884.69, the taxpayer paid its taxes therefrom and transferred the balance to its general or surplus reserve, and out of the latter declared a 5% capital stock dividend for its members.

It is the Commissioner’s position that taxpayer’s method of computing its patronage has the effect of charging the dividend on capital stock solely to the earnings generated by nonmember business and that by charging capital stock dividends only to income generated by business done with nonmember patrons, rather than ratably against total income, the taxpayer’s net earnings from business done with member patrons is overstated. In his determination of the patronage dividend, the Commissioner accordingly would first deduct the capital stock dividend actually paid its members in 1963 ($439,374.44) from the taxpayer’s total net earnings and would then allocate 57.18% of the remainder as a patronage dividend for its members. By such computation the Commissioner determined the patronage dividend to be some $223,660.36 less than that claimed by the taxpayer.

As was noted by the tax court, the deduction of patronage dividends from the earnings of a nonexempt cooperative was not explicitly recognized by statute till the Revenue Act of 1962, which added Subchapter T to the Internal Revenue Code of 1954, although the Revenue Act of 1951 had made some reference thereto. However, for many years prior to any statutory recognition of patronage dividends, the allowance of a deduction of true patronage dividend to nonexempt cooperatives had long been an administrative practice of the Treasury Department and the Internal Revenue Service.

In order to qualify as a patronage dividend the Commissioner asserts that the following three requirements must be fulfilled:

1. The allocations must have been made pursuant to a legal obligation which existed at the time the patron transacted his business with the cooperative.
2. The allocations must have been made out of profits or income realized from transactions with the particular patrons for whose benefit the allocations were made, and not out of profits or income realized from transactions with other persons or organizations which were not entitled to participate in such allocations.
3. The allocations must have been made equitably; so that profits realized on the one hand from selling merchandise or services to patrons, and those realized on the other hand from marketing products purchased from patrons, were allocated ratably to the particular patrons whose patronage created each particular type of profit.

In support of the foregoing, see, for example, Pomeroy Cooperative Grain Co. v. Commissioner, 288 F.2d 826 (8th Cir. 1961), and Petaluma Co-operative Creamery v. Commissioner, 52 T.C. 457 (1969).

The tax court concluded that the taxpayer’s claimed patronage dividend, and more particularly its method of computation, did not meet the second of the three requirements above set out, namely, it failed to satisfy the requirement that the dividend in question “be made out of profits or income realized from transactions with the particular patrons for whose benefit the allocation was made.” In thus concluding, the tax court observed as follows:

“On the one hand the stockholder-patron receives a distribution from its cooperative solely in respect of its status as stockholder. This is a normal dividend from net earnings which is not deductible at the cooperative level in the same manner that a distribution of earnings and profits by an ordinary corporation is not deductible at the corporate level. The distributions are based on the stockholder’s investment in the cooperative and represent a return on that investment — the greater the investment, the greater the dividend on capital stock.
“On the other hand, the stockholder-patron also receives a distribution solely in respect of its status as patron. This latter distribution is based on its patronage with the cooperative during the year — the greater the patronage, the greater the patronage dividend.
“In attributing the entire dividend paid on capital stock to nonmember business, petitioner is saying, in effect, that its stockholders have invested only in those of petitioner’s operations and assets which were used to transact nonmember business. * * * We are unable to find any indication that the stockholders here invested in anything but the undivided totality of petitioner’s operations and assets. By following a computational path that fails to reflect the reality underlying its mode of operation, petitioner has substituted accounting fiction for taxable fact.
“Consequently, in the absence of any evidence to the contrary, we uphold respondent’s determination that the dividend paid on petitioner’s capital stock was properly attributable to net earnings realized from member business and to net earnings realized from nonmember business in proportion to the business transacted with members and nonmembers respectively. Conversely, the amount of member earnings available for distribution as a true patronage dividend would have to be reduced by that part of the dividend on capital stock which was attributable to member earnings.”

We generally agree with such reasoning and in support thereof see Des Moines County Farm Service Company v. United States, 324 F.Supp. 1216 (S.D.Iowa 1971), aff’d. per curiam, 448 F.2d 776 (8th Cir. 1971); cf. Fertile Co-Operative Dairy Ass’n. v. Huston, 119 F.2d 274 (8th Cir. 1941). The Des Moines case is virtually on all fours with the instant case and in that case the Eighth Circuit Court of Appeals upheld the trial court’s determination that to the extent that payment of a capital stock dividend of a nonexempt cooperative was not charged ratably against all net earnings, the total amount paid to member patrons as patronage dividends was not excludable from the cooperative’s taxable income.

In this court, as in the tax court, the taxpayer relies heavily on United States v. Mississippi Chemical Company, 326 F.2d 569 (5th Cir. 1964). The tax court distinguished that case from the instant case on the ground that there the trial court found as a fact that.no part of the sum paid as a patronage dividend was paid, directly or indirectly, from the profits gained from business transacted with nonmembers and that on appeal the Fifth Circuit Court of Appeals characterized this finding as being “particularly correct”; whereas, in the instant case, according to the tax court, such a finding was not made,- and could not have been made, for the reason that in reaching the conclusion that it did “we [the tax court] have necessarily found that a part of the sum which petitioner called a patronage dividend was in fact attributable to profits from nonstock holder business.” We need not here debate whether the Mississippi Chemical Company case is completely distinguishable from the instant case. It is sufficient to state that the result and reasoning of the Des Moines County Farm Service Company case are to us more persuasive than that of Mississippi Chemical.

II. Net operating loss for taxable year ending March 31, 1964, which could be cai’ried back to taxable year ending March 31, 1961.

In 1964 the taxpayer became an organization exempt from tax under Section 521, I.R.C.1954, as contemplated in Section 1381(a)(1), and for that year under applicable tax laws it became entitled to deduct both capital stock dividends and patronage dividends from its gross earnings. Int.Rev.Code of 1954, Sections 1381(a)(1), 1382(b)(1), 1382(c)(1), and 1382(c)(2). Accordingly, in its return for that year, the taxpayer reported net earnings before dividends of $750,139.44, and deducted therefrom capital stock dividends paid during that year in the sum of $476.-410.65 and patronage dividends in the sum of $430,013.00, thereby arriving at a claimed net operating loss of $156,284.21 for the year 1964. The taxpayer thereupon applied for and was allowed a tentative adjustment of its taxes for the fiscal year ending March 31, 1961, on account of the carryback of this claimed net operating loss for the fiscal year ending March 31, 1964. Subsequently, an examination of the taxpayer’s return resulted in the Commissioner’s reduction of the amount claimed by the taxpayer as a patronage dividend deduction by $223,660.36 for the year 1964 thus resulting in an elimination of the so-called net operating loss for 1964 and of the claimed carryback to 1961.

In computing its patronage dividend for the year 1964, the taxpayer deducted from its net earnings, among other items, the sum of $245,112.50 declared as a capital stock dividend in 1964 but not paid in that taxable fiscal year. In computing its patronage dividends, the taxpayer ignored the fact that in 1964 it had actually paid a capital stock dividend of $476,410.65. By using the lesser sum, the taxpayer inflated the amount properly available for its patronage dividends and the corresponding deduction.

At the same time, however, the taxpayer, now being an exempt cooperative, deducted, as it had the right to do, its capital stock dividend, but in so doing deducted the sum of $476,410.65, which was the stock dividend paid in 1964. In other words, the taxpayer was attempting to have the best of two worlds, by using the lesser capital stock dividend figure in computing its patronage dividend figure, and thereby inflating its patronage dividend deduction, but using the greater dividend figure when deducting the capital stock dividend from its net earnings. It was the Commissioner’s position that the taxpayer should use the same dividend-on-capital stock figures in both computations and urged that under the applicable statute, see Int.Rev.Code of 1954, Section 1388(a)(1), the proper figure is the one which represents the dividend actually paid in the year in issue. The tax court upheld that position, and we agree.

The language of Subchapter T, which was applicable to the taxpayer in 1964, as well as the regulations, would appear to require that in calculating a patronage dividend deduction, net earnings available for patronage dividends should first be reduced by the dividends paid on capital stock for the year in question. Int.Rev.Code of 1954, Section 1388(a); Treas.Reg., Section 1.1388-1 (1963). See Des Moines County Farm Service Company v. United States, supra.

III. Equitable Estoppel.

The taxpayer argues that the Commissioner is equitably estopped from asserting a deficiency for the year 1963 because the taxpayer’s method of determining its patronage dividend by charging its capital stock dividend entirely to earnings derived from nonmember business had been used by the taxpayer from 1950 to and through 1962 and had never been questioned by the Commissioner, even though its returns had from time to time been audited. In this regard we agree with the tax court that the doctrine of equitable estoppel is inapplicable to the present controversy.

It is true that the doctrine of consistency or quasi-estoppel has on occasion been applied to prevent an injustice, but such has been done generally where there has been fraud or unfair conduct on the part of the Commissioner, with some degree of reliance thereon by the taxpayer to the latter’s detriment. None of these aspects are present in the instant case.

And to the contrary, it is well established that the Commissioner is not estopped from challenging erroneously reported items where Internal Revenue agents have failed in prior years to .challenge similarly erroneously reported items. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); Massaglia v. Commissioner, 286 F.2d 258 (10th Cir. 1961); and Sanders v. Commissioner, 225 F.2d 629 (10th Cir. 1955). Language in the Massaglia case is particularly appropriate:

• “The very nature of government operations requires us to apply the principles of estoppel to its conduct with circumspection. * * * At the same time, we will not allow the government to deal dishonorably or eapriciously with its citizens. It must not play an ignoble part or do a shabby thing. * * * ‘The right and wrong of things and equitable principles have a place in tax matters.’ Alamo National Bank v. Commissioner, 5 Cir., 95 F.2d 622. These standards of conduct may impose a duty of consistency on the government as well as the taxpayer. * * * But neither the duty of consistency, nor the principles of equitable estoppel bind the Commissioner to unauthorized acts of his agents * * * nor preclude him from correcting mistakes of law in the imposition and computation of tax liability, including the power to retroactively correct his rulings, regulations and decisions upon which taxpayers have relied. * * *” (Citations omitted.)

Accordingly, the decision of the tax court is affirmed.


author: ALDRICH, Senior Circuit Judge:

text:
    AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, DISTRICT LOCAL NO. 540, Plaintiff-Appellant, v. NEUHOFF BROS. PACKERS, INC., Defendant-Appellee.
    No. 72-2426.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1973.

      G. William Baab, James L. Hicks, Jr., Dallas, Tex., for plaintiff-appellant.
    Fritz Lyne, Dallas, Tex., for defendant-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   ALDRICH, Senior Circuit Judge:

From October 1969 to January 1970, Neuhoff Bros. Packers, Inc. (Neuhoff), defendant-appellee, a Dallas, Texas meat packing concern, missed meat from its meat packing plant and suspected several of its employees of theft. Following investigation it discharged two employees, Franklin and Green, who thereupon instituted arbitration proceedings pursuant to the collective bargaining agreement in effect between Neuhoff and the employees’ representative union, Amalgamated Meat Cutters and Butcher Workmen of North America, District Local 540, plaintiff-appellant. After hearing the evidence, the arbitrator ruled the discharges to be without “proper cause” and ordered reinstatement of the grievants with back pay. Neuhoff has refused to abide by the arbitrator’s order, thus prompting the union to seek the assistance of the district court in the enforcement of the arbitrator’s award as provided by section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Denied relief below, the union appeals. We reverse.

Evidence adduced at the arbitration hearing indicated that grievant Franklin had taken a lie detector test but had refused to take a second one when ordered to do so by Neuhoff. Green, the other grievant, took both lie detector tests and allegedly failed to clear himself of dishonesty. The arbitrator admitted the tests’ results into evidence, but only for the purpose of showing that Neuhoff had received certain statements from the grievants and not as evidence of whether the person taking the test was telling the truth. The arbitrator, (1) concluded (a) that in cases involving “moral turpitude or criminal intent,” Neuhoff had the burden of proving its allegations of such actions “beyond a reasonable doubt” and had failed to do so here, and (b) the results of polygraph tests need not be considered as evidence of guilt even though the collective bargaining Zheement provided that the company rid require polygraph tests of any employee suspected of theft of company property; and (2) declined to rule that grievant Franklin’s refusal to take a second lie detector test was per se grounds for discharge under the parties’ agreement. The district court, in refusing to enforce, (1) found the arbitrator had (’a) violated the collective bargaining agreement provision that he not “. . . add to, modify, detract from or alter [it] in any way . . .’’by imposing upon Neuhoff the burden of proving grievants’ guilt “beyond a reasonable doubt” and (b) exceeded his authority in that his refusal to consider the tests’ results was nonrecognition of the collective bargaining agreement’s provision that Neuhoff reserved the right to require polygraph tests of any employee suspected of theft; and (2) found grievant Franklin’s refusal to take the second polygraph test to be of itself proper cause for his discharge.

The scope of judicial review of an arbitrator’s award is extremely narrow: in order to promote the federal policy favoring settling labor disputes by arbitration the factual and the legal accuracy of arbitrators’ findings will not be reviewed. See Safeway Stores v. Bakery Workers Local 111, 5 Cir., 1968, 390 F.2d 79, 82; Dallas Typographical Union v. A. H. Belo Corp., 5 Cir., 1967, 372 F.2d 577, 582. Only when the award does not draw “its essence from the collective bargaining agreement” should a court refuse to enforce an award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424. We cannot agree that in placing on the employer the burden of proof beyond a reasonable doubt the arbitrator violated the agreement’s provision that he not “add to, modify, detract from or alter [it] in any way . . . . ” The agreement does not define standard of proof; the only relevant provision is that employees may be discharged for “proper cause.” What is proper cause is a question of fact, separate from the question of quantum of proof necessary to establish the fact.

In these circumstances it was not impermissible for the arbitrator, as a basic part of his decisional process, to establish what he considered an appropriate standard, viz., proof beyond a reasonable doubt. We note, further, that the arbitrator’s selection was consistent with general arbitration practice under similar agreements where the discharge involves criminal intent or moral turpitude. See Skaggs-Stone Inc., 1963, 40 L.A. 1273, 1278; United States Steel Corp., 1957, 29 L.A. 272, 276-77; Cannon Electric Co., 1957, 28 L.A. 879, 883; Howell Refining Co., 1956, 27 L.A. 486, 491; Kroger Co., 1955, 25 L.A. 906, 907, 908. While this standard is perhaps offensive to judicial thinking, which might regard it peculiar that the more reasonable an employer’s wish to be rid of an employee, the more difficult it. is to prove, cf. Aaron, Some Procedural Problems in Arbitration, 10 Vand.L.Rev. 733, 740-42 (1957), we are obliged to recognize that arbitration proceedings are sui generis. Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co., 1971, 143 U.S.App.D.C. 210, 442 F.2d 1234, 1238.

The company next claims that the terms of the agreement were violated by the arbitrator’s exclusion of the polygraph tests taken by the employees. The agreement provides that the company “reserves the right to require .... polygraph-tests of any employee in case the company suspects . . . theft of company property.” It makes no mention, however, of the use vel non of such tests in an arbitration proceeding. Since, as the company concedes, polygraph tests may be valuable in a number of ways, including preliminary investigation, to deny their use in one specific context does not render the contract provision meaningless. Viewed as a question of admissibility of evidence, the arbitrator has great flexibility and the courts should not review the legal adequacy of his evidentiary rulings. See Washington-Baltimore Newspaper Guild v. Washington Post Co., supra, at 1239; American Bakery & Confectionery Workers v. National Biscuit Co., 3 Cir., 1967, 378 F.2d 918, 925. Cf. United Fuel Gas Co. v. Columbian Fuel Corp., 4 Cir., 1948, 165 F.2d 746, 751. This must particularly be so when the issue, the admission of lie detector tests, is one that even the courts have found debatable.

The final issue concerns the refusal of one of the employees, Franklin, to take a second polygraph test. Although the arbitrator made no finding on this point, the district court ruled that, as a matter of law, Franklin’s refusal constituted proper cause for discharge. We must regard this action by the district court as singularly unwarranted. The agreement does not specify individual grounds for discharge. Rather, by using only the general words “proper cause,” it leaves the question of what is a good reason for discharge —the ultimate disciplinary measure — for subsequent interpretation. As the court said in International Union of Electrical Radio and Machine Workers v. Otis Elevator, 2 Cir., 1963, 314 F.2d 25, 28, cert. denied 373 U.S. 949, 83 S.Ct. 1680, 10 L. Ed.2d 705, “To separate the just causes for discharge from the unjust was precisely what the parties clothed the arbitrator with the authority to do.” See, also, Dallas Typographical Union v. A. H. Belo Corp., supra, 372 F.2d at 583, where we said it “matters not whether his reasons were sound or unsound.” Every violation of the agreement cannot be presumed to be automatic grounds for discharge as distinguished from a lesser sanction. The company has the power to bargain for a specific list of violations that will be considered sufficient grounds for discharge. Failing that, the decision is for the arbitrator.

The award must be reinstated and enforced. Reversed.


author: TUTTLE, Circuit Judge: GODBOLD, Circuit Judge

text:
    SAN ANTONIO NEWSPAPER GUILD LOCAL NO. 25, and American Newspaper Guild, AFL-CIO, CLC, Plaintiffs-Appellants, v. SAN ANTONIO LIGHT DIVISION and the Hearst Corporation, Defendants-Appellees.
    No. 72-3302.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1973.

      Frank Herrera, Jr., San Antonio, Tex., for plaintiffs-appellants.
    L. Bruce Fryburger, San Antonio, Tex., for defendants-appellees.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   TUTTLE, Circuit Judge:

This action was brought by the San Antonio Newspaper Guild (hereinafter Union) under Section 301 of the Labor Management Relations Act, as amended, 29 U.S.C.A. § 185, for enforcement of an arbitrator’s award. On the basis of a different arbitrator’s subsequent interpretation of the original award, the district court entered summary judgment in favor of the Company, and the Union now appeals. We affirm in part and reverse in part.

The facts are as follows: On May 6, 1971, John Sweet, a sports reporter, was discharged by the Company and was at that time given severance pay in the amount of $4,760.28 and pay in lieu of notice in the amount of $340.02. In due course Sweet grieved his discharge pursuant to a collective bargaining agreement then in effect which provided for final resolution of disputes by arbitration. On September 20, 1971, an arbitration hearing was held before Arbitrator Peter Florey who thereafter rendered the following award:

“(1) Grievant shall be reinstated forthwith without loss of seniority.
(2) Grievant shall be made whole for any loss in earnings for the period of May 6, 1971, to July 23, 1971, and from September 20, 1971, to the date of his reinstatement.
(3) The Publisher shall comply with the mandate of Article IV, Section 1.”

It is the second directive in this award which led to the dispute here involved. By letter of January 10, 1972, the Business Manager of the Company advised Sweet that he was subject to immediate reinstatement, but that Sweet should first contact the business office to resolve the financial details of his reinstatement. The parties, however, could not reach agreement on the financial implementation of the award. The Company’s position was that the amount it would otherwise have owed Sweet as back pay for the period prior to his reinstatement ($4,386.26) should be set-off against the total of Sweet’s interim earnings of $3,560.00, his severance pay of $4,760.28, and pay in lieu of notice of $340.02. Under this method of computation there existed an overage of $4,274.-04 in Sweet’s favor which, the Company claimed, he was obliged to repay. Sweet, however, was of the view that the award required the Company to pay him the full amount of back pay for the period specified, the only permissible deduction therefrom being payments for unemployment compensation which, in his case were not made. He therefore declined the Company’s proposed financial settlement, although he offered to return to work prior to resolution of the financial issues which he advised should be worked out with the Union’s attorney.

The parties remained at odds with the result that on January 20, 1972, the Company requested the Union to join it in a request to Arbitrator Florey for clarification of his award. The Union refused to do so on the premise that the original award was unambiguous, making no provision for any of the deductions which the Company claimed.

On January 20, 1972, the Company filed a grievance against the Union, pursuant to the grievance machinery of the collective bargaining agreement, seeking return of the overage of dismissal pay and pay in lieu of notice received by Sweet. Shortly thereafter the Union brought this action in the district court for enforcement of Arbitrator Florey’s award. While the court action was pending, the Company invoked the procedures of the American Arbitration Association to secure arbitration for the purpose of interpreting the financial aspects of Arbitrator Florey’s original award. Thereafter the Company and the Union jointly selected Arbitrator Guy Horton before whom a second arbitration hearing was held on April 1, 1972. Although both parties fully participated in this hearing, the Union contended throughout that Arbitrator Horton was without jurisdiction to consider the matter and that a finding on the merits would be of no force and effect. Upon hearing Arbitrator Horton concluded as follows:

“(1) The Arbitrator has jurisdiction to interpret the award of Arbitrator Peter Florey.
(2) The Arbitrator interprets the award of Arbitrator Peter Florey to require the deduction of interim earnings, severance and dismissal pay from earnings due Sweet by the Company.
(3) The Company does not owe Sweet lost earnings as the interim earnings, severance and dismissal pay exceed lost earnings by $4,274.04.
(4) The Arbitrator does not have jurisdiction to award either party additional remedies.
(5) Mr. John E. Sweet will be reinstated forthwith without loss of seniority.”

On the basis of Arbitrator Horton’s interpretation of Arbitrator Florey’s original award the Company moved for summary judgment in the district court. The Union, contending that Arbitrator Horton’s interpretation was a nullity, cross-moved for summary judgment enforcing Arbitrator Florey’s award, which, the Union averred, did not require deductions of any kind from the back pay money owed to Sweet. The district court entered judgment in favor of the Company and directed the Union to “comply with the award of Arbitrator Horton, including the return of all monies due upon reinstatement.”

The Union appeals from that judgment. It here argues that Arbitrator Florey’s award was unambiguous and that Arbitrator Horton was without jurisdiction to interpret Florey’s award. Moreover, the Union urges, even if Arbitrator Horton’s interpretation is to be given effect, the district court erred in ordering the Union, which did not receive the money, to repay the Company the amount of the overage existing in Sweet’s favor.

It is the Union’s primary contention that the Company’s grievance, seeking interpretation of Arbitrator Florey’s award, was not an arbitrable matter and that as a result Arbitrator Horton did not have jurisdiction to consider it. Such a contention, of course, is properly the subject of judicial review in post-award proceedings. However, under the peculiar circumstances of this case we find it unnecessary to decide the issue. While we might otherwise be inclined to agree with the Union that even under the usual standard the Company’s grievance did not present an arbitrable matter, we think that Arbitrator Horton’s award in this instance, having resolved the dispute between the parties, should be given full effect. Fieri non debet, sed factum valet.

The difficulty we have with the Union’s argument is that it would have us ignore Arbitrator Horton’s award altogether and enforce Arbitrator Florey’s award. This we would be unable to do under the circumstances. Arbitrator Florey’s award, we think, at least insofar as it relates to financial matters, was ambiguous and thus unenforceable unless and until clarified.

Paragraph 2 of the award provided simply that Sweet was to be “made whole for any loss in earnings” for the specified period. Although the Union and the Company each contended that this portion of the award clearly supported its position, there existed between them a legitimate disagreement as to its actual implementation. Arbitrator Horton was likewise of the view that the award was “incomplete and indefinite.” He said:

“While paragraph 2 of the award definitely provides that the grievant is to be made whole for any loss of earnings, it is not clear whether such earnings are confined to those he would have received from the Company during his period of discharge or should include earnings received from other employers. The award is silent as to severance and dismissal pay

We agree with Arbitrator Horton’s conclusion. The term “make whole for any loss of earnings” in the context of this case could be, and was, interpreted in a variety of ways. On the one hand, as the Union claimed, it might be construed as relating exclusively to what Sweet would have earned in wages from the Company had he not been wrongfully discharged, regardless of whatever other outside income he might have received, in which event the Company would be obliged to make him whole for those particular wages. Yet this construction strains the meaning of the words “to make whole” which imply that other sources of income ought to be taken into account in computing what Sweet actually lost in earnings. But to what extent? The Company contended that Sweet should be put in exactly the same financial condition as he would have been in had he not been discharged, and no better. However, it might be concluded as well that within the meaning of the award the Company was obliged simply to see to it that Sweet was put in as good a position as if he had not been discharged and that any overage inured to his benefit. We conclude, therefore, that the second paragraph of Arbitrator Florey’s award was ambiguous.

The question next arises as to whether this court should itself resolve this ambiguity in the original award. We think not. We agree with the conclusion reached by the Court of Appeals for the Ninth Circuit in Hanford Atomic Metal Trades Council v. General Electric Company, supra. In an analogous situation that court said:

“We share the view of the district court that the opinion [of the arbitration committee] required clarification and interpretation. We also share the view of the district court that this was a task to be first performed by the arbitration committee and not the court, and that the court properly remanded the matter to the arbitration committee for such clarification and interpretation. See United Steel Workers of America v. American Manufacturing Company, 363 U.S. 564 [80 S.Ct. 1343, 4 L.Ed.2d 1403] (1960); United Steel Workers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, [80 S.Ct. 1347, 4 L.Ed.2d 1409] (1960); and United Steel Workers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, [80 S.Ct. 1358, 4 L.Ed.2d 1424] (1960). It is appellant’s position that once the arbitrators have acted, it is the duty of the court to interpret and enforce the award, rather than to send the matter back to the arbitrators, to the end that the further delay involved in sending the matter back can be avoided. We think, however, that all of the foregoing cases accept the philosophy that where the parties have elected to submit their disputes to arbitration, they should be completely resolved by arbitration, rather than only partially resolved.” 353 F.2d at 307-308.

Indeed such a conclusion, we think, is dictated by the Supreme Court’s admonition that “[i]t is the arbitrator’s construction which was bargained for.”

The normal course of action in such cases, then, is for the court to remand the matter to the original arbitrator for clarification. To do so in this case, however, would be a pointless gesture. There has already been a clarification of Arbitrator Florey’s award, albeit by a different arbitrator, Arbitrator Horton. Nonetheless Arbitrator Horton has done precisely what Arbitrator Florey would do were we to remand to him, that is, he resolved the ambiguity in the original award by careful reference to the terms of the collective bargaining agreement. We, therefore, are of the view that an appropriate resolution of this already too-lengthy dispute would in no way be served by remanding to Arbitrator Florey for yet another interpretation of his original award. On that basis we accept as binding on the parties Arbitrator Horton’s interpretation which, we think, finally and fully resolves the issue between the parties.

The district court, however, did more than simply enforce Arbitrator Horton’s award. In addition he directed the Union to repay the Company the amount of the overage of $4,274.04 existing in Sweet’s favor, this, notwithstanding the fact that Arbitrator Horton, in construing Arbitrator Florey’s award, determined only that Sweet should be reinstated forthwith, but that he was not entitled to any back pay to make him whole because he had already received $4,274.04 more than would have been necessary to place him in the same position financially as he would have been in had he not been discharged.'' We thus think it was error for the court to enter judgment against the Union for the overage in Sweet’s favor.

We conclude, moreover, that the award, as interpreted, must be deemed conclusive of the financial issues between the parties including any claim that the Company might have had for a refund of the overage in Sweet’s favor. In argument before the district court counsel for the Company stated:

“an award cannot be implemented piecemeal but you have to implement the entire award, and this has been the problem all along. We haven’t been able to implement it because we haven’t been able to agree with the Union on what it means.”

Consistently therewith the Company had submitted to Arbitrator Horton the issue of how paragraph 2 of Arbitrator Florey’s award should be implemented, it being the position of the Company, then and thereafter, that the financial aspects of the matter should be fully resolved so that the award could be implemented in its entirety. This, then, was the issue which Arbitrator Horton took under advisement.

Having interpreted Arbitrator Florey’s award to mean that the Company did not owe Sweet anything for lost earnings, Arbitrator Horton concluded that he “did not have jurisdiction to award either party additional remedies,” thus indicating, of course, that as a legal matter he could not add to nor subtract from the remedies originally provided by Arbitrator Florey. Although the Company had claimed that it was entitled to a refund of the overage existing in Sweet’s favor, Arbitrator Horton, in interpreting Arbitrator Florey’s award, must have concluded that no provision for such a refund could be found in the original award; otherwise he would not have decided that he lacked jurisdiction to grant such a remedy. Moreover, it must be assumed that Arbitrator Florey’s award comprehended all of the financial relations between the parties since his decision was to be final and binding. Inasmuch as Florey must, therefore, have intended his award to be dispositive of the financial relations of the parties and since Arbitrator Horton was unable to find in that award any provision for a refund to the Company of any overage existing in favor of Sweet, we think the question of refund is no longer open and that all of the issues between the parties have been finally resolved. Such a conclusion is completely in accord with the Company’s consistently-stated position that it was satisfied with Arbitrator Horton’s award and that it sought only to implement the award in its entirety.

Affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this opinion.

GODBOLD, Circuit Judge

(concurring in part and dissenting in part):

I concur in the opinion written by Judge Tuttle except for the last portion in which he concludes that the award, as interpreted, “must be deemed conclusive of the financial arrangements between the parties including any claim that the Company might have had for a refund of the overage in Sweet’s favor.”

When Sweet was discharged he was paid severance pay plus pay in lieu of notice. He filed a grievance contesting his discharge. Arbitrator Florey rendered an award which, (1) unambiguously said that Sweet should be reinstated forthwith, and (2) ambiguously said that Sweet should be “made whole” for any loss of earnings. The Company offered to reinstate Sweet but contended that from what it would have owed him as back pay there should be deducted his interim earnings and the severance and notice pay he had received, with the result that rather than the Company’s owing Sweet he was indebted to the Company in the amount of $4,274.-04, which the Company insisted he should pay. Sweet and the Union took the position that Sweet was entitled to the full amount of back pay, with nothing deducted therefrom. With the parties pursuing interpretations 180 degrees apart, the company asked for arbitration to determine what Florey’s award meant. The Union refused and filed suit to enforce Florey’s award.

The Company proceeded with the interpretive arbitration before arbitrator Horton, with the Union present but disputing his jurisdiction. Horton interpreted what Florey had said to mean the following:

—The award required the deduction of interim earnings, severance and dismissal pay, from earnings due Sweet by the Company. (|f 2).
—The Company owed Sweet nothing, since the deductions exceeded lost earnings by $4,274.04. (¶ 3).
—“The arbitrator does not have jurisdiction to award either party additional remedies.” (|[ 4).
■ — Sweet must be reinstated immediately. (|f 5).

In the subsequent proceedings in the District Court the court rejected the contention of the Union that arbitrator Horton was without authority, rejected the contention of the Union that Florey’s award meant that Sweet could keep all his back pay without any deductions, accepted the contention of the Company that monies paid to Sweet must be refunded, and directed the Union to return the money.

In interpreting Florey’s award, Horton dealt first with the subject matter of whether the award required that there be deductions from accrued back pay. He answered that question in the affirmative. His next step was to consider the effect of making the deductions, and to that question he said two things — first, the Company doesn’t owe Sweet anything (¶ 3), and second, “the arbitrator does not have jurisdiction to award either party additional remedies” (If 4). Paragraph 3 is clear. What does paragraph 4 mean ?

Three significant paragraphs of Horton’s opinion dealt with the matter of return of the overage.

The Company requests the arbitrator to make Sweet’s reinstatement contingent upon his paying the Company the overage and that the arbitrator set a deadline within which Sweet may do this or forfeit his job. To grant the company’s requested remedy would create an award in the nature of granting monetary relief. Awards for money damages are based upon a violation of the working agreement and Sweet’s refusal to return the overage cannot be considered as a violation of the contract for its language does not cover such a situation. This reduces the question to one of whether the present arbitrator may fashion a remedy of the type requested by the Company. He is not convinced he has jurisdiction to do so. (emphasis added.)
* * * * * *
The arbitrator has not found, nor has he been cited, any case law or arbitration awards which provide that the employee’s reinstatement shall be contingent upon the return of dismissal or severance pay within a certain period of time, and this may be said to be particularly true where the arbitrator’s jurisdiction is confined to the interpretation and implementation of a former award. The arbitrator’s refusal to grant the relief requested by the Company does not prejudice the Company’s right to pursue any legal remedy it may have for the recovery of the overage. (emphasis added.)
It should be observed that Sweet or any other discharged employee similarly situated may or may not have retained the overage, or all of the same, and unable to raise the sum required to be paid by the deadline fixed by the arbitrator. In such a case, as here, this could result in the employee losing his job and its related benefits — a job from which it had been determined the employee had been unjustly discharged.

Quite clearly, Horton said that there was no way in which he could order Sweet to pay what would amount to money damages because the failure to return the overage was not a violation of the working agreement and, therefore, was not within the scope of arbitration under the contract. Equally clearly, Horton construed Florey’s award to leave open to the Company the right to seek recovery of the overage through “any legal remedy it may have.” The quoted language dovetails exactly with Horton’s earlier statement that an award could not be made in the arbitration because Sweet’s failure to return the money did not violate the working agreement. Horton’s interpretation was that whether the Company could recover the money by reason of legal relationships and obligations existing between it and Sweet in the penumbra outside the working agreement was a matter left open for other forums. In short, he construed Florey’s award and implemented it to the extent he considered possible, and he recognized that further implementation must occur in a judicial proceeding. Indeed any other conclusion by Horton would have been inappropriate. “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice.” United Steelworkers v. Enterprise Corporation, 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428 (1960).

It is at least arguable whether the matter of return of the overage was, as Horton thought, outside the scope of his arbitral power or was a part of the “merits” of the controversy over inter7 pretation which he was brought in to arbitrate. And it is arguable as well whether Horton’s task was a proper function for an arbitrator. See footnote 2 of majority opinion and accompanying text. The majority avoid these questions by concluding that in the peculiar circumstances it would be pointless to remand the first award to Florey for yet another interpretation and that an appropriate resolution is to accept Horton’s interpretation as binding. Judge Tuttle’s opinion says, “we think that Arbitrator Horton’s award in this instance, having resolved the dispute between the parties, should be given full effect,” and repeats, “we accept as binding on the parties Arbitrator Horton’s interpretation which, we think, finally and fully resolves the issue between the parties.” That pragmatic approach is an appropriate one. But the “full resolution” reached by Horton included his determination that the overage issue was beyond the scope of arbitration and was a matter to be pursued in legal proceedings. The majority do not give “full effect” to his award but only carry it out to the extent it resolved the dispute, and insofar as it held the overage issue unresolvable in arbitration they reject the award and construct a new award on their own. Stated in shorthand, that new award is that the overage issue has been resolved by arbitration because the parties intended it to be resolved, although the arbitrators did not resolve it and Horton found it to be unresolvable. Stated at somewhat greater length, what my brothers have done is to say that the Company lost its right to seek return of the overage, not because Florey said that Sweet was entitled to keep the money — Florey said no such thing — and not because Horton said that Florey had said any such thing — Horton said no such thing — but rather because it was intended by the parties that Horton’s award (interpreting Florey’s award) be final and binding with respect to all financial dealings between the parties. I must confess that I am baffled by that reasoning. The fact that the parties and Horton desired and intended that Horton’s award be a full implementation settling all matters does not mean that it did settle everything. ' Horton, as the interpreter of Florey’s award, found that the first award did not settle everything. He found that he, as second arbitrator, lacked the power to settle everything. All members of the panel agree that his interpretations are to be accepted. Yet the majority sweep all this away and grant to Sweet a favorable judgment on a disputed matter the merits of which neither arbitrator reached.

As a supporting reason, my brothers say that to treat the awards as dispositive of all issues accords with the Company’s position that it was satisfied with Horton’s award and sought to implement that award. Indeed the Company did seek enforcement of Horton’s award. But it did so with the accompanying contention, made in the District Court and on appeal, that Horton’s award finally disposed of the refund issue by obligating Sweet to repay the overage and to do so forthwith. That contention was accepted by the District Court, but on appeal the Company lost on that point. The fact that the Company argued that the awards settled all issues, including settling the refund issue in its favor, is not probative at all that the awards settled all issues, including settling the refund issue in Sweet’s favor. This would be true in any event— it seems to me not even arguable when the awards specifically left the matter open.

The appropriate result in this case is, of course, to leave the Company open to seek recovery by legal remedies. Whether it is entitled to recover would be determined in such a proceeding, if brought.

      . Article VI of the Agreement, pertaining to adjustments of disputes, provides in pertinent part as follows:
      “(1) A grievance committee, designated by the Guild, shall be established to settle amicably with a committee appointed by the Publisher, all grievances arising under this agreement.

      (2) A grievance shall be submitted only by written notice from the complaining party to the other party briefly setting forth the facts giving rise to the grievance, the ground of complaint, and the action sought.”
      (Emphasis added).
      Article VI then outlines the procedures to be followed by the parties in securing arbitration of a dispute and provides finally that “the award of the arbitrator shall be final and binding.”

      . It is by now well-established that although courts refuse to review the merits of any given arbitration award, the question whether the underlying labor dispute was subject, in the first place, to arbitration under the collective bargaining agreement is ordinarily one for the courts to determine. See, e. g., United Steel Workers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; Teamsters Local Unions v. Braswell Motor Freight Lines, 392 F.2d 1 (5th Oir. 1968) ; Safeway Stores v. American Bakery and Confectionery Workers International Union, 390 F.2d 79 (5th Cir. 1968).

      . The Supreme Court has indicated that a particular dispute should not be deemed non-arbitrable “unless it may be said with positive assurance that the arbitration clause is not suspectible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steel Workers of America v. Warrior and Gulf Navigation Co., supra at 582-583 of 363 U.S., at 1353 of 80 S.Ct.
      Utilizing this standard we note that the collective bargaining agreement here at issue — upon which Arbitrator Horton’s authority to act necessarily rested — makes no provision for grieving the award of an Arbitrator which, according to the language of the contract itself, “shall be final and binding.” Bather, the grievance machinery may be invoked, either by the Union or the Company, for “all grievances arising under this agreement.” We doubt that the award of an arbitrator — as opposed to the procedure for securing arbitration — falls within the four corners of tlie agreement before us. If not, tlie award itself would not constitute an arbitrable issue.
      There may be, however, special circumstances where invocation of grievance machinery might be appropriate following the award of an arbitrator. Ordinarily this would occur where a collateral dispute arises from an award which is not self-executing. See International Association of Machinists and Aerospace Workers v. Aerojet-General Corporation, 263 F.Supp. 343, (D.C.Cen.D.Cal.1966) ; District 50, United Mine Workers v. Revere Copper and Brass, Inc., 204 F.Supp. 349 (D.C.Md.1962). This is not such a case. Arbitrator Florey’s award was clearly intended to be and would have been self-executing but for an ambiguity therein, discussed below, which left the parties at odds over its interpretation.

      . Hanford Atomic Metal Trades Council v. General Electric Company, 353 F.2d 302 (9th Cir. 1966) ; United Steel Workers of America v. Timken Roller Bearing Company, 324 F.2d 738 (6th Cir. 1963) ; Local Union No. 494, International Brotherhood of Electrical Workers v. Brewery Proprietors, 289 F.Supp. 865 (D.C.E.D.Wis.1968). See also, International Association of Machinists v. Crown Cork and Seal Company, 300 F.2d 127 (3rd Cir. 1962).

      . United Steel Workers of America v. Enterprise Wheal and Car Corporation, 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960).

      . See cases cited at n. 4, supra. See also, Transport Workers Union Local No. 234 v. Philadelphia Transport Company, 228 F.Supp. 423 (D.C.E.D.Pa.1964). But see, Lynchburg Foundry Company v. United Steel Workers of America, 404 F.2d 259 (4th Cir. 1968).

      . Arbitrator Horton interpreted Arbitrator Florey’s award as requiring “the deduction of interim earnings, severance and dismissal pay from earnings due Sweet by the Company.” Horton then noted that “the Company does not owe Sweet lost earnings as the interim earnings, severance and dismissal pay exceed lost earnings by $4,274.04,” and concluded that he did not have jurisdiction to award either party additional remedies. We do not see in this award any indication that Sweet, let alone the Union which had never received the monies, was to reimburse the Company for the overage existing in Sweet’s favor. Horton merely concluded that Sweet’s interim earnings and the like were to be deducted from the amount which the Company owed him as lost earnings and that since such deductions exceeded lost earnings, the Company did not owe Sweet anything.

      . At the hearing before Arbitrator Horton counsel for the Company stipulated the issue involved as follows:
      “ [The] award by Arbitrator Florey was in two parts: One part being reinstatement, the other parts being made whole, I think was the language he used, and I guess you could divide it up into the financial aspects of the back pay part of the award which is the thing that we’re here for today, to find out in Mr. Horton’s interpretation the meaning of that part of the award by Arbitrator Florey and how we can implement it.” Later Mr. Bannick, president of the Company, testified: “You can’t implement, it seems to us, the award unless you implement the entire award. And part of that is Mr. Sweet’s reinstatement. Another part of it is the settlement of the financial matters. Certainly all parts of it would have to be resolved.”

      . Obviously the direction to the Union was wrong. The money had not been paid to it.

      . Note the reference by Chief Judge Brown in Safeway Stores v. American Bakery, Inc., 390 F.2d 79 at 81 (CA5, 1968) to “slip [ping] off into that habit, easy for Judges, of deciding the merits” of arbitration matters. “The question of interpretion of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers v. Enterprise Corp., supra, at 599, of 363 U.S., at 1362 of 80 S.Ct., at 1429 of 4 L.Ed.2d (1960).


author: CELEBREZZE, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. D. H. FARMS CO., Respondent.
    No. 72-2195.
    United States Court of Appeals, Sixth Circuit.
    Argued June 7, 1973.
    Decided July 24, 1973.
    Michael S. Wolly, N. L. R. B., for petitioner; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Paul J. Spielberg, Atty., N. L. R. B., Washington, D. C., on brief.
    Thomas H. Schwarze, Detroit, Mich., for respondent; Keller, Thoma, Mc-Manus, Toppin & Schwarze, Detroit, Mich., on brief.
    Before CELEBREZZE and McCREE, Circuit Judges, and MOYNAHAN, District Judge.

       The Honorable Bernard T. Moynahan, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.

   CELEBREZZE, Circuit Judge.

This case is before us on petition by the Board for enforcement of its order of June 5, 1972, reported at 197 NLRB No. 47. In that order and the accompanying decision, the Board rejected the Trial Examiner’s recommendation that the complaint be dismissed and found that Respondent (hereinafter the Company) had violated Sections 8(a)(1) and 8(a)(3) of the Act in failing to recall for summer work in 1971 employees who had been laid off on July 8,1970.

The Company is engaged in the manufacture of impregnated paper sensitivity discs. Its production workers are involved in the various phases of this manufacturing operation, which include impregnating large sheets of paper with a chemical solution, cutting the paper into small discs, printing the paper with appropriate dots, and packaging the finished discs. The Trial Examiner found that the various production operations are of a relatively unskilled nature and that there is considerable interchange of employees within the manufacturing process. The Company also employs laboratory and maintenance workers, but the Trial Examiner found that there is generally no interchange between these and the production employees.

On July 8, 1970, the Company laid off some 40 production employees, which constituted all but the supervisors and loaders on the manufacturing side of the Company’s operations. It is undisputed that this lay-off was motivated by economic considerations. Within two weeks of the lay off and after the Company had reviewed its future production needs, 15 of the laid-off employees were recalled to permanent employment without a loss in seniority.

Pursuant to a July 10, 1970, petition for a representation election among the Company’s production, laboratory, and maintenance workers, a pre-election representation hearing was held on August 8, 1970, to determine the eligibility to vote of some 24 production workers who remained laid-off on that date. Although the Company asserted at this time that these employees were permanently laid-off, the Regional Director found that they had a reasonable expectation of recall within a reasonable time in the future and that they were therefore eligible to vote.

The election was held on September 22, 1970, with 19 of the 24 laid-off employees voting under Company challenge. The unchallenged ballots of the active employees showed 10 votes for the Union and 18 against. Since the 19 challenged ballots by the laid-off employees could thus affect the outcome of the election, the Regional Director conducted an inquiry into the Company’s challenges and ruled that in light of the August 8th pre-election hearing on this issue these laid-off employees were eligible to vote. The challenged ballots were opened on February 26, 1971, resulting in 19 additional votes for the Union, which was ultimately certified as the unit representative.

Meanwhile, between that pre-election hearing on August 8, 1970, and the opening of the challenged ballots on February 26, 1971, the Company recalled to permanent positions five more of the laid-off employees. Four of these were recalled on August 17th, October 12th, November 12th, and December 29th, respectively, with no loss in seniority; the fifth was recalled on January 27th as a “new hire,” pursuant to the decision of the Company’s general manager that laid-off employees would thenceforth be recalled as new employees, with no accrued seniority rights.

No one from the remaining group of some 20 laid-off employees was recalled after the challenged ballots were opened on February 26, 1971. On May 17, 1971 and June 1, 1971, however, a total of four temporary employees — all college students — were hired to work in the Company’s manufacturing operations during that summer. On September 17, 1971, one temporary employee was hired to work in the Company’s print shop for a period of one week. Although none of these temporary employees was among those laid off on July 8, 1970, each of them had previously worked for the Company.

The complaint charged that the Company refused to recall its laid-off employees to fill the above positions in the summer of 1971 because those employees had voted for the Union, as revealed when their ballots were opened on February 26, 1971. In rejecting this charge, the Trial Examiner found that each of the four college students hired to fill the temporary summer positions in 1971 had worked on previous summer months as temporary employees and that when they were first hired they were told that they were being hired as temporary employees without any fringe benefits such as health insurance, paid holidays, and paid vacations. The evidence revealed that two of these employees were hired after they personally came to the plant to apply for work and the other two were called by the plant manager, who had retained their applications. Emphasizing that these four employees were expressly hired for temporary positions in the summer of 1971 and the absence of any showing whatsoever of anti-union animus on the part of the Company in so hiring these employees, the Trial Examiner ruled that the General Counsel had failed to prove discrimination against the laid-off regular employees who were not engaged to fill these temporary positions.

The Trial Examiner further found no discrimination in the hiring of a temporary employee in the print shop for one week commencing September 17, 1971. This employee had previously worked as a supervisory trainee in the print shop, had applied for a job about one month prior to the above date, and was hired specifically to perform this job for which she had previously been trained.

Rejecting these findings by the Trial Examiner, the Board ruled that the Company’s failure to recall laid-off employees to fill the temporary vacancies in the summer of 1971, when considered in conjunction with the results of counting the challenged ballots, “obviously” presented a significant change in the Company’s hiring practices, establishing a prima facie case of discrimination. Moreover, without setting forth the Company’s purported legitimate business justifications for its actions, the Board summarily ruled that the Company had failed to rebut this prima facie case. From the record as a whole, we are unable to find substantial evidence to support these conclusions by the Board.

As to the Board’s finding a prima facie case of discrimination against the laid-off employees, it is significant to note that the Board gave no apparent weight to the fact — as emphasized by the Trial Examiner — that the five employees hired for production work in May through September, 1971, were expressly hired on a temporary basis, whereas the laid-off employees recalled prior to the opening of the challenged ballots were recalled to permanent positions. Although it cited as evidence of discrimination .the Company’s hiring for permanent employment two employees from outside the group of laid-off employees, the Board totally disregarded the fact that these permanent employees were hired for non-production jobs and the Trial Examiner’s express finding that there was generally no interchange of employees between manufacturing and other operations of the Company. Moreover, it appears that the Company’s hiring of both permanent and temporary non-production workers is outside the scope of the complaint, which merely charged discrimination in the Company’s failure to recall laid-off employees “to their former positions of employment.”

We are thus unable to find substantial evidence to support the Board’s finding a “significant change” in the Company’s hiring practices after the challenged ballots were opened. The laid-off employees recalled prior to the opening of the challenged ballots were clearly hired as permanent employees. We conclude that absent any showing whatsoever of anti-union animus on the part of the Company, its failure to further recall laid-off employees to fill the temporary production positions during the summer months of 1971 does not present a prima facie ease of discrimination.

Finding no substantial evidence to support the Board’s finding of a prima facie ease, we need not consider the Board’s further finding that the Company failed to adduce evidence of a legitimate business justification for its actions. See N. L. R. B. v. Great Dane Trailers Co., 388 U.S. 26, 33-34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967).

Enforcement of the Board’s order is denied.

      . The Board also found that the Company had violated Section 8(a) (5) of the Act 6 by altering its policy respecting recall of laid-off employees without consulting with the Union. That determination assumes the Union’s right to recognition as the bargaining agent. Since this issue was remanded to the Board by this Court in N.L.R.B. v. D. H. Farms Co., 465 F.2d 1230 (6th Cir. 1972), and is presently pending before the Board (see note 2, infra), enforcement of its order herein insofar as it relates to the Section 8(a) (5) violation is not sought in the present petition.

        . Finding no substantial issue warranting review, the Board upheld this finding by the Regional Director. In a subsequent unfair labor practice proceeding in which the Company further challenged the representation proceeding, this Court remanded the case to the Board for a hearing on the eligibility of the laid-off employees to vote at the time of the September 22, 1970, election. N.L.R.B. v. D. H. Farms Co., 465 F.2d 1230 (6th Cir. 1972). The Board’s decision and order in the present case were rendered prior to that remand, and that case is presently pending before the Board. Because the portions of its June 5, 1972, order for which the Board presently seeks enforcement do not rest upon the voting eligibility status of the laid-off employees, our disposition of the present case need not await the Board’s final resolution of this issue.

      . The last of the laid-off employees recalled was hired as a new employee, with no accrued seniority or benefits, on January 27, 1971. The record discloses, however, that slip was not designated as a temporary employee, as were those hired in the summer months of 1971 for production work.


author: McCREE, Circuit Judge. WEICK, Circuit Judge

text:
    Robert L. DIXON, Plaintiff-Appellant, v. PENN CENTRAL COMPANY, Defendant-Appellee.
    No. 72-1554.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 7, 1972.
    Decided July 27, 1973.
    Milford J. Meyer, Philadelphia, Pa., for plaintiff-appellant; Austin T. Klein, Cleveland, Ohio, Joseph Smukler, Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., on brief.
    Thomas R. Skulina, Cleveland, Ohio, for plaintiff-appellee; John F. Dolan, Cleveland, Ohio, of counsel.
    Before WEICK, McCREE, and MILLER, Circuit Judges.
   McCREE, Circuit Judge.

We consider an appeal in an action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. (1970), to recover damages for injuries. The jury returned a verdict in the amount of $80,000 but, in response to special interrogatories, found the plaintiff 50% contributorily negligent. The court thereupon reduced the award to $40,000. Plaintiff appeals from denial of his post-trial motions for judgment n. 0. v. or for amendment of the judgment, and contends that there was no evidence from which the jury could have properly found contributory negligence. We agree that the jury should not have been allowed to consider the issue of contributory negligence, and we reverse and remand the case for entry of the full verdict of $80,000.

Dixon was employed as a block operator by defendant, and his duties included operating chest-high mechanical levers located in a control tower. The levers threw track switches controlling the movement of trains through cross-overs and onto sidings. There was a history of trouble with one of the switches controlled by a lever in plaintiff's tower, but the evidence indicated it had not been overhauled or replaced despite defendant’s knowledge of its condition. The switch malfunctioned on the day of the accident and Dixon, who was not responsible for such repair work, called for and received assistance from a signal maintainer and signal foreman. While they worked at trackside on the switch, plaintiff remained approximately 100 feet away in the tower. He had agreed to operate the lever in response to hand signals from the repairmen.

No one was with Dixon in the tower, and his testimony is the only direct evidence how the injury occurred. At first he jiggled the lever to help the repairmen locate the problem. He testified that after the switch had been worked on for some time, the repairmen gave him a signal to throw the lever. When he made the attempt, the lever went in about halfway and then stopped. Dixon testified this partial success encouraged him to think he might be able to finish throwing it. When he pushed again, the lever moved approximately six more inches and then bounced back. The jury found that this occurrence caused plaintiff's injury. Dixon underwent multiple hospitalizations for a herniated intervertebral disc, its removal, a spinal fusion, and other treatment, but did not derive sufficient benefit to feel able to resume his employment.

The repairmen testified that there was nothing in the lever’s mechanism which could make it bounce back and contradicted Dixon on several other points. For example, there was conflicting evidence about the number of times Dixon threw the lever and the manner in which he reported the accident. Defendant’s medical expert testified that a back injury of the sort claimed by Dixon was a possible but improbable result of pushing on a chest-high lever. It was the physician’s opinion that plaintiff had not suffered a herniated disc and that his complaints stemmed not so much from physical causes as from mental factors unrelated to the claimed accident.

These conflicts in evidence, which bore primarily on whether the accident had occurred and the extent of Dixon’s injuries, were resolved in his favor by the jury. Its findings concerning defendant’s negligence and the total amount of injury are not at issue here. At issue is whether there was any evidence of contributory negligence on the part of Dixon. If so, the District Court’s decision to send the issue to the jury was a proper one. Ganotis v. New York Central R. Co., 342 F.2d 767 (6th Cir. 1965), established that the same causation standard — -whether the act contributed in any way to the injury— applies both to defendant’s negligence and plaintiff’s contributory negligence. Accordingly, the FELA cases that allow plaintiffs to reach the jury on a very slim showing of negligence permit defendants to go to the jury on the issue of plaintiff’s negligence with equally slim showings. However, just as an FELA plaintiff has no ease if he cannot produce some showing of negligence, neither has a defendant who fails to produce any evidence at all on the issue.

Turning to a consideration of the respects in which Dixon may have negligently contributed to his own injuries, we think analysis will be aided by considering separately those events that immediately preceded his attempt to throw the lever and those that occurred during the attempt. Under the former heading is the question whether Dixon was negligent in attempting to throw the lever without ascertaining that the repairs had been successfully completed, as well as whether he negligently misread the signal. Under the latter heading is the question whether Dixon negligently balanced or positioned himself while throwing the lever, or used more force than was safe in the attempt. Defendant would add the further ground that Dixon “ [negligently failed to effectively use ordinary care for his own safety and wellbeing [sic],” but this is a mere conclusion and gets us no closer to a resolution of the question.

Concerning the events preceding Dixon’s attempt, defendant does not contend that Dixon was negligent in volunteering to assist the repairmen by trying to throw the lever. Because Dixon knew the switch was defective, he may be said to have assumed the risk that the lever would operate erratically. However, the doctrine of assumption of risk is not a defense in FELA cases, 45 U.S.C. § 54 (1970), and the Supreme Court has made it clear that “every vestige” of the doctrine has been eliminated. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58, 63 S.Ct. 444, 87 L.Ed. 610 (1943). Although the possibility exists that a plaintiff may negligently choose to assume a risk, we do not think that is the ease here and defendant does not press the point. It is often difficult to decide whether a particular fact situation is classifiable solely as assumption of risk, solely as contributory negligence, or as some mixture of the two. “[T]he defenses . . . overlap, and are as intersecting circles, with a considerable area in common, where neither excludes the possibility of the other.” W. Prosser, Law of Torts § 67, at 451 (3d ed. 1964). Nevertheless, it is clear that “an employee cannot be charged with contributory negligence simply because he ‘assumed the risk’ . . ..” Tiller, supra, 318 U.S. at 71-72, 63 S.Ct. at 453 (Frankfurter, J., concurring). Defendant argues that there was “ample evidence for the jury to believe that Mr. Dixon prematurely threw his weight into the switch lever which he knew was being repaired without first ascertaining that it was fixed.” (Brief of Appellee at 9.) We think this is only another way of saying that Dixon assumed the risk.

The whole point of plaintiff’s attempt to throw the lever was to ascertain if it was fixed; neither the repairmen nor Dixon could know whether the switch had been fixed without testing the lever. After the repairmen had worked on the defective part of the switch — a worn “motion plate” that would not slide across the ties — we may assume they formed a definite opinion about the success of their efforts. Nonetheless, their opinion had to be tested and proven correct, and that is precisely the test Dixon attempted to make. He “assumed the risk” the defect might still prevent the lever from operating smoothly, but he cannot be said to have been negligent solely for this reason. See Tiller v. Atlantic Coast Line R. Co., supra. The apparent risk to Dixon in attempting to throw the lever was very slight and on balance was far outweighed by the need to return the switch to serviceable condition. Defendant did not suggest that the procedure chosen by the repairmen and Dixon was not the usual one, or that any less hazardous procedure existed. If Dixon had declined to assist the repairmen, and one of them had suffered a similar injury while trying to throw the lever, it would have been ineffectual for defendant to have argued that the repairman chose an inappropriate way to test the progress of the work. It is immaterial that Dixon rather than one of the repairmen actually tried to throw the lever.

Although Dixon did not know whether the lever would operate smoothly when he first attempted to throw it, he certainly had reason to know something was amiss when he tried to finish throwing it after it had stopped halfway. However, contributory negligence here does not turn on this distinction; Dixon's state of mind is relevant to assumption of risk, but his assumption of risk is irrelevant unless it was negligent. Plaintiff testified that it was customary to attempt to finish throwing a lever once it had gone that far. Defendant did not dispute this claim or introduce evidence that a reasonable man would have done otherwise. Assuming that a prudent man would use extra caution after the lever stopped, we find nothing in the record to suggest that such caution is inconsistent with a further attempt to throw the lever.

Did Dixon misread a signal? Defendant contends that “if he misread a signal or failed to make reasonably sure as to the nature of the signal and threw [the lever] while it was still in disrepair that he was not using ordinary care.” (Brief of Appellee at 9, emphasis in original.) We have already disposed of the contention that anything turns solely on whether the switch was defective when Dixon threw the lever. Since defendant tacitly concedes that Dixon’s attempt was made in response to a signal of some kind, our inquiry must center on the ambiguous nature of the hand signals, discussed in note 1 supra. It was demonstrated at trial that Dixon could have stepped out onto the platform of the control tower and yelled to the repairmen to tell him exactly what their signal meant. However, we attach no significance to the existence of alternate reasonable courses of action unless there is some showing that the course of action pursued was unreasonable. Since no attempt was made to dispute Dixon’s interpretation of the hand signals, or to show that the repairmen meant for him only to jiggle the lever (on the contrary, it seems clear they did not), we conclude there is no evidence that plaintiff was negligent with respect to the signals.

The discussion so far concerns whether Dixon negligently assumed a risk or was otherwise negligent at some point before he made the attempt which the jury must have concluded caused his injuries. We turn now to the attempt itself.

Did plaintiff negligently balance or position himself while throwing the lever, or use more force in the attempt than was safe ? As we have noted, Dixon was the only direct witness, and defendant does not suggest there was anything negligent about the way he claimed to have braced himself. The only evidence that remotely bears on the issue of contributory negligence is indirect — defendant’s medical expert testified that the alleged injury was unlikely to result from a chest-high throw. In effect, Dixon’s specific injury is claimed to be evidence that he was negligent in incurring it. The physician’s testimony may be some evidence that plaintiff did not grip the lever as he said he did. However, that is different from saying it is evidence Dixon gripped the lever negligently, and in fact the only evidence of any kind concerning what constituted a proper grip was plaintiff’s statement that both hands should be used, not too near the top in ease they slipped.

An instructive contrast is presented by a case defendant cites, Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir. 1966). There, plaintiff fell on an escalator that stopped suddenly, and the issue of her contributory negligence turned on whether she was holding the handrail as she claimed. Defendant introduced evidence that another person standing on the escalator with plaintiff had not fallen because he was holding the handrail. Further, defendant conducted tests indicating that people who hold on to the handrail will not fall when an escalator stops. This court concluded that defendant had introduced enough evidence to reach the jury, and that the jury should have been allowed to draw the inference that plaintiff lied when she said she held the handrail. In contrast, the defendant railroad here made no showing that a proper grip on the lever would have prevented the accident.

Nonetheless, defendant argues that Domany is authority for submitting the issue of contributory negligence to the jury whenever plaintiff’s credibility is in issue, because juries are free to believe or disbelieve any witness wholly or in part. Albeit the credibility of witnesses is properly in the province of the jury, defendant’s conclusion does not follow. Contributory negligence is an affirmative defense on which defendant has the burden of proof. It is true Dixon’s credibility was in issue; plaintiff’s credibility was also in issue in Domany; indeed, in the sense that a jury may always disbelieve a witness, the credibility of a plaintiff is always in issue. However, a defendant is not entitled to reach the jury on an issue on which he bears the burden of proof on- nothing but the incredibility of the plaintiff’s testimony. . Other evidence of the matter to be proved must be adduced. Thereafter, defendant may be assisted in sustaining his burden by the jury’s disbelief of plaintiff’s testimony.

The contention that Dixon used more force than was safe can be disposed of quickly, since it suffers from most of the failings outlined earlier: defendant did not quarrel with the amount of force Dixon admitted using, did not introduce evidence to show how much effort was ordinarily used, and did not attempt to establish that the use of less force would have prevented the accident.

We have searched carefully for some evidence of contributory negligence because an appellate court should be reluctant to conclude from afar that the trial judge on the scene erred in a factual determination. Nevertheless, we find no evidence of contributory negligence here, and conclude it was error to submit that issue to the jury. Plaintiff’s request for a peremptory instruction eliminating contributory negligence should have been granted. Failing that, his post-trial motions for judgment n. o. v. or amended judgment in the full amount of $80,000 should have been granted.

Reversed and remanded for entry of judgment on the full verdict.

WEICK, Circuit Judge

(dissenting).

I respectfully dissent for the reason that it is for the jury, and not an appellate court, to draw inferences from the evidence (whether controverted or uncontroverted) and to determine the issues of negligence, contributory negligence (comparative negligence), and proximate cause in an FELA ease. Here, this Court has undertaken to determine, as a matter of law, that acts of contributory negligence were really acts of assumption of risk, which is not a defense, and in consequence the Court has increased the verdict and judgment for plaintiff from $40,000 to $80,000.

The defendant did not plead assumption of risk, which is an affirmative defense, and it was therefore not in the case, Rule 8(c) Fed.R.Civ.P. Although it was not in the case, the plaintiff himself injected it in the case by persuading the District Court to charge on this subject. It is submitted that this was not proper. Dilley v. Chesapeake & Ohio Ry., 327 F.2d 249 (6th Cir.), cert, denied, 379 U.S. 824, 85 S.Ct. 47, 13 L.Ed. 2d 34 (1964).

The defendant in its answer pleaded contributory negligence, as follows:

“At the time and place of the occurrence complained of, Mr. Dixon—
(a) Negligently failed to effectively position himself as he operated the switch lever.
(b) Negligently failed to effectively balance himself as he operated the switch lever.
(e) Negligently exerted more effort in operating the switch lever than is reasonably required under the circumstances then and there existing.
(d) Negligently failed to effectively use ordinary care for his own safety and wellbeing; all directly and proximately causing the occurrence of which he now complains.”

Plaintiff’s interrogatory 8 and defendant’s answer thereto, are as follows:

“8. If defendant claims that plaintiff’s alleged accident was caused or contributed to by his own negligence, state upon what facts such claim is based.
Answer. Exerting himself beyond own known capabilities using equipment he was familiar with and was well aware of its condition and operation.”

Plaintiff requested the trial judge to instruct the jury that there was no evidence of contributory negligence, but the Court declined to do so, and the Court submitted to the jury the issues of negligence, contributory negligence, and proximate cause. It is not claimed that the Court erred in its instructions to the jury.

The jury returned its verdict and answered special interrogatories, as follows :

“We, the jury, find for the plaintiff and assess his damages in the sum of $80,000 less 50 percent negligence, $40,000. Signed Michael T. O’Brien, dated February 4, 1972.
“Members of the jury, is this your verdict ?
“(Thereupon, the jury indicated in the affirmative.)
“The Court: I have the Answers of the jury to the Interrogatories that were submitted.
“Interrogatory No. 1. Was the defendant negligent?
“The answer to that is ‘Yes’.
“Interrogatory No. 2. Did defendant’s negligence cause or in any way contribute to plaintiff's injury or damage ?
“The answer to that is ‘Yes’.
“Interrogatory No. 3. Was plaintiff negligent in any way which caused or contributed to his own injury or damage?
“The answer is ‘Yes’.
“Interrogatory No. 4. To what extent, expressed in percentage, did plaintiff’s negligence contribute to his' injury or damage?
“The answer is ‘50 percent.’
“Interrogatory No. 5. What amount do you find, without any reduction for any negligence which you may find on the part of the plaintiff, will fairly and adequately compensate the plaintiff for the injury or damage he received?
“And the answer is ‘$80,000.’ ” (App. 327-328).

What this Court is doing is setting aside not only a portion of the general verdict, but also setting aside the jury’s answers to the special interrogatories finding that plaintiff was negligent, which negligence caused or contributed to cause his own injury or damage, to the extent of fifty per cent.

The record shows that the switch was in a state of disrepair. Plaintiff had knowledge of this condition because he reported it to the company. At the time of his injury he was assisting two fellow-employees who were maintenance men and who were engaged in repairing the switch. This can hardly be classified as dangerous work.

Plaintiff’s function was to move the lever which operated the switch from a tower. The maintenance men were located on the ground while repairing the switch, and they could be seen and heard by plaintiff from windows in the tower or from the tower’s rear platform. Plaintiff was to jiggle the lever or throw the switch when the maintenance men signaled him by hand to do either. The difference between a hand signal to jiggle the lever or to throw the switch, is not clear from the record (App. 114). Plaintiff had jiggled the lever on a number of occasions just prior to his alleged injury. He received a hand signal which he testified that to the best of his knowledge was to throw the switch. The maintenance men were still on the ground and plaintiff could easily have called out to them from the rear platform, when he was having trouble in moving the switch, to ascertain whether they had completed the repairs and wanted the switch thrown. He did not do so; instead, he jiggled the lever a few times and when it would not move farther, he pushed hard against it in order to throw the switch. Plaintiff claims that the lever then bounced back, and he felt a severe pain in his back, which resulted in a serious injury.

Since plaintiff was operating the lever in front of him, it is clear that the lever never struck him in the back. The medical evidence as to the nature and extent of his injury is conflicting.

Plaintiff testified that he called to his fellow employees to tell them about his accident and that in response to his call they came to the tower. Both of them testified that plaintiff never mentioned anything about either his accident or his injury. Plaintiff also testified that on one previous occasion he had received a slight injury to his neck while operating the lever. His fellow-employees testified that it was not possible for the switch to bounce back. Because of his previous experience with the lever, plaintiff could have braced himself when applying force to the lever.

The Act provides that the railroad shall be liable in damages for an injury to an employee “resulting wholly or in part” from the negligence of its officers, agents, or employees. 45 U.S.C. §§ 51, 52. In its general verdict the jury assessed damages for the part resulting from defendant’s negligence, namely, $40,000. In answer to an interrogatory, the jury found that defendant was negligent. The defendant does not question the sufficiency of the evidence to support this finding. Section 53 of the Act abolishes contributory negligence as a defense, and substitutes comparative negligence. Section 54 abolishes assumption of risk as a defense.

The decision of the Supreme Court in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), makes it clear that in FELA cases issues of negligence and contributory negligence, as well as inferences to be drawn from the evidence, are for the jury and not for the Court to decide. In that case, the defendant contended and offered evidence to prove that it was physically impossible for the accident to have occurred in the manner claimed, and that the decedent was murdered. However, the Supreme Court held that the'jury had the right to infer negligence from various facts in the case, and upheld recovery.

It was for the jury to say whether there is a reasonable basis in the record for concluding that plaintiff’s alleged injury was caused in part by his own negligence. The inferences to be drawn from conflicting testimony are questions for the jury. An appellate court invades the jury’s function when it draws contrary inferences from uneontroverted, as well as controverted, facts, or concludes that a conclusion different from that reached by the jury is more reasonable. Ellis v. Union Pac. R.R., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947); Tennant v. Peoria & P. U. Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944).

We followed Lavender and Ellis in Ganotis v. New York Cent. R.R., 342 F.2d 767, 768-769 (6th Cir. 1965), stating:

“One of the purposes of the Federal Employers’ Liability Act, as amended, was to abolish the common law defenses of assumption of risk, fellow servant rule and contributory negligence. With respect to contributory negligence it established the rule of comparison of negligence instead of barring the employee from all recovery because of contributory negligence. Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. We do not believe that the Act also intended to make a distinction between proximate cause when considered in connection with the carrier’s negligence and proximate cause when considered in connection with the employee’s contributory negligence. If it had so intended, express words to that effect could easily have been used. We do not agree with appellant’s contention and find no error in the trial judge’s instructions. Gans v. Baltimore & Ohio Railroad Co., 319 F.2d 802, 804, C.A. 3rd.
We are also of the opinion that the evidence was sufficient to take the case to the jury on the question of plaintiff’s contributory negligence and to sustain its answer to the interrogatory on that issue. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Ellis v. Union Pacific R. Co., 329 U.S. 649, 652-653, 67 S.Ct. 598, 91 L.Ed. 572.”

I would affirm the judgment of the District Court.

      . There was apparently nothing to distinguish a signal to jiggle the lever from a signal to throw it. Dixon testified there was an “unspoken agreement” that the signal could mean either thing, and that if the lever appeared to respond when force was applied, an attempt to throw it completely would be made. The testimony of the repairmen was not inconsistent with Dixon’s interpretation. In any case, the repairs eventually progressed to a point where the repairmen wanted Dixon to try to throw the lever instead of merely jiggling it.

      . Plaintiff had reported a minor neck injury suffered while operating the same lever six months before the events at issue here, although the earlier incident was caused when the lever went in suddenly rather than bounced back. While he might have been negligent had he failed to take precautions against the risk the lever might again go in suddenly, the earlier incident does not seem to furnish any warrant for charging him with knowledge that the lever posed other dangers to him.

      . It may be relevant to observe that defendant’s medical expert did not believe Dixon had suffered a herniated disc. Of course, this does not vitiate his medical opinion of the back stress occasioned by throwing a lever, but it does make it clear he did not have Dixon’s back specifically in mind.