United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO v. Lee Nat. Corp., AFL-CIO

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore MULLIGAN and TIMBERS, Circuit Judges, and THOMSEN; PER CURIAM
Citation513 F.2d 899
Parties89 L.R.R.M. (BNA) 2175, 76 Lab.Cas. P 10,804 UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA,, an unincorporated association, and United Rubber, Cork, Linoleum and Plastic Workers of America, , Local 102, an unincorporated association, Plaintiffs-Appellants, v. LEE NATIONAL CORPORATION, Defendant-Appellee. ocket 74-1290.
Decision Date11 April 1975
Docket NumberL,D,No. 622,AFL-CIO,AFL-CI

Page 899

513 F.2d 899
89 L.R.R.M. (BNA) 2175, 76 Lab.Cas. P 10,804
UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF
AMERICA, AFL-CIO, an unincorporated association, and United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, Local 102, an unincorporated association,
Plaintiffs-Appellants,
v.
LEE NATIONAL CORPORATION, Defendant-Appellee.
No. 622, Docket 74-1290.
United States Court of Appeals,
Second Circuit.
Argued March 26, 1975.
Decided April 11, 1975.

Page 900

William Auerbach, New York City (Auerbach & Labes, Stanley W. Taylor, New York City, of counsel), for plaintiffs-appellants.

Peyton H. Moss, New York City (Poletti, Freidin, Prashker, Feldman & Gartner, Roger H. Briton, New York City, of counsel), for defendant-appellee.

Before MULLIGAN and TIMBERS, Circuit Judges, and THOMSEN, District Judge. *

PER CURIAM:

This is an appeal from a final judgment entered by the United States District Court for the Southern District of New York, Hon. Whitman Knapp, D. J., on November 7, 1973, dismissing the plaintiffs' second cause of action at the close of their case upon defendant's motion under Fed.R.Civ.P. 41(b). The named plaintiffs (Unions) instituted this action against Lee National Corporation (Company) on the theory that the Company had forced the Unions to strike on July 16, 1963, thus effectively closing its plant and breaking its contractual commitments to make payments to union members pursuant to an existing welfare agreement.

The issue on appeal is whether the findings of fact of the court below are "clearly erroneous" within Fed.R.Civ.P. 52(a). We do not think that the findings are clearly erroneous and therefore affirm the judgment. As the Supreme Court observed in United States v. National Association of Real Estate Boards, 339 U.S. 485, 495-96, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950):

It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. See United States v. Yellow Cab Co., 338 U.S. 338, 342 (70 S.Ct. 177, 94 L.Ed. 150); United States v. United States Gypsum Co., 333 U.S. 364, 394-395 (68 S.Ct. 525, 92 L.Ed. 746). We are not given those choices, because our mandate is not to set aside findings of fact "unless clearly erroneous."

The Unions' claim that the court below was unduly influenced by an opinion of Judge Mansfield (then sitting in the Southern District)...

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3 practice notes
  • Rosenruist-Gestao E Servicos v. Virgin Enterprises, No. 06-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 27, 2007
    ...`as alternative forums of first resort rather than as forums acting strictly in aid of a primary proceeding.'" Id. (quoting Doyle I, 513 F.2d at 899). VEL's view suffers the problems identified by the First, Third, and Fifth Circuits. While § 24's authorization of subpoenas only for testimo......
  • Shark v. Thompson, No. 10845
    • United States
    • United States State Supreme Court of North Dakota
    • September 4, 1985
    ...v. Grattan, --- U.S. ----, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); United Rubber, Cork, Linoleum and Plastic Workers v. Lee National Corp., 513 F.2d 899, 900 (2d Cir.1975); American Plan Corp. v. State Loan & Finance Corp., 365 F.2d 635, 638 (3d Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct......
  • Sheehan v. Doyle, No. 75--1218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 30, 1976
    ...federal district courts 'as alternative forums of first resort rather than as forums acting strictly in aid of the primary proceeding.' 513 F.2d at 899. Thus the district court correctly interpreted our decision as ruling out administratively unauthorized * discovery of this Here, if discov......
3 cases
  • Rosenruist-Gestao E Servicos v. Virgin Enterprises, No. 06-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 27, 2007
    ...`as alternative forums of first resort rather than as forums acting strictly in aid of a primary proceeding.'" Id. (quoting Doyle I, 513 F.2d at 899). VEL's view suffers the problems identified by the First, Third, and Fifth Circuits. While § 24's authorization of subpoenas only for testimo......
  • Shark v. Thompson, No. 10845
    • United States
    • United States State Supreme Court of North Dakota
    • September 4, 1985
    ...v. Grattan, --- U.S. ----, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); United Rubber, Cork, Linoleum and Plastic Workers v. Lee National Corp., 513 F.2d 899, 900 (2d Cir.1975); American Plan Corp. v. State Loan & Finance Corp., 365 F.2d 635, 638 (3d Cir.1966), cert. denied, 385 U.S. 1011, 87 S.Ct......
  • Sheehan v. Doyle, No. 75--1218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 30, 1976
    ...federal district courts 'as alternative forums of first resort rather than as forums acting strictly in aid of the primary proceeding.' 513 F.2d at 899. Thus the district court correctly interpreted our decision as ruling out administratively unauthorized * discovery of this Here, if discov......

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