# National Labor Relations Board v. Baldwin Locomotive Works > Court of Appeals for the Third Circuit · May 6, 1942 · 128 F.2d 39 URL: https://www.frixlaw.com/law-library/cases/9650831 ## Case - **Full name:** National Labor Relations Board v. Baldwin Locomotive Works - **Court:** Court of Appeals for the Third Circuit - **Decided:** May 6, 1942 - **Citations:** 128 F.2d 39; 10 L.R.R.M. (BNA) 632; 1942 U.S. App. LEXIS 3517 - **Precedential status:** Published - **Opinion:** On rehearing by Jones - **Judges:** Biggs, Maris, Clark, Jones, Goodrich - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650831 ## Opinion text On Petition for Rehearing and Settlement of Decree. Before BIGGS, MARIS, JONES, and GOODRICH, Circuit Judges. JONES, Circuit Judge. The respondent has filed a petition in the nature of a petition for a rehearing for the purpose, particularly, of moving this court to delete from our original opinion the statements therein contained that “the question of the reorganized company’s responsibility for its unfair labor practices while debtor in possession is presently academic” and that “The record discloses conduct on the part of the respondent, following its emergence from the reorganization proceeding, of itself sufficient to sustain the charges of the complaint.” The respondent concedes that the record justifies a finding “that the Management of the Respondent had thus recognized the Federation [the company union] as the bargaining agent of Baldwin employees during that period [i. e. between September 23, 1938, the date of Baldwin’s discharge from the reorganization proceeding, and December 21, 1938, the date of the filing of the Board’s complaint].” Indeed, the testimony not only warrants such a finding 1 but also that Baldwin’s recognition of and dealings with *66 the Federation continued down to and during the hearing bn the complaint, 2 months after the company’s discharge as a debtor in bankruptcy. It is true that the Board’s findings with respect to the unfair labor practices for which it held the respondent accountable related to practices of the company while it was operating its plant and business as debtor in possession. In that connection, we held that the labor policy of the company while debtor in possession was, as a matter of law, to be imputed to the respondent after its emergence-from the reorganization proceeding, no substantial or material change in management or policy having taken place. Furthermore, we think that what the law thus implies, the facts fully confirm. The respondent’s labor policy was neither a sporadic nor detached matter; and what had gone before, the respondent both ratified and projected into the future by continuing to recognize and accredit the Federation after reorganization. The attitude thus implied is available upon review as independent justification for the Board’s order against the respondent regardless of any legal discrimination between the company’s status while debtor in possession and after its discharge from bankruptcy. We therefore can see no reason for deleting the statements in our original opinion as the respondent now urges. The petition for rehearing is accordingly denied. The petitioner and the respondent have each submitted a- proposed form of decree for the enforcement of the Board’s order. An examination of the two forms discloses that the parties differ only with respect to the verbiage of paragraph 1(c) and paragraph 2(b) of the form submitted by the Board. In order to admit of the direction in paragraph 1(c), which, under the original opinion of this court, the decree of enforcement should include, and yet not preclude the respondent from disputing elsewhere this court’s legal conclusion with respect to the respondent’s accountability for the labor relations existing while it was a debtor in possession of its business and property in bankruptcy, we direct that paragraph 1(c) of the Board’s form of decree be modified so as to read as follows: *67 “•[_ * * * “(c) Giving effect to the contract of October 2, 1937, with Federation of Baldwin Employees, the amendment and supplement thereto of February 14, 1938, any modification thereof, or any new contract to like effect concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, which may have been made with Federation of Baldwin Employees;” We further direct that paragraph 2 (b) of the Board’s form of decree be modified by deleting therefrom the last three lines thereof, beginning with the words “deducting, however,” so that that paragraph will conform to the directions in this court’s original opinion. In arriving at the amount of a back pay award (since Republic Steel Corporation v. National Labor Relations Board, 311 U.S. 7 , 61 S.Ct. 77 , 85 L. Ed. 6 ), the interim earnings elsewhere of a reinstated employee should be taken to include wages for work performed by him while employed on work-relief projects sponsored by governments or governmental agencies. Consequently, the direction that in determining a back pay award there shall be deducted, from the amount otherwise due the employee, moneys received by him for work performed on work-relief projects is not only unnecessary but superfluous. The deductions for earnings automatically embrace all moneys received by the reinstated employee as earnings during his lay-off or discharge. The Board’s form of decree will be modified accordingly. The witness Trestrail, the financial secretary (and after November 1938 the acting recording secretary) of Federation and an employee of Baldwin Locomotive Works for thirty-eight years, testified as follows with respect to the periodic meetings between the Baldwin management and the board of directors of the Federation provided for by the contract of October 2, 1937 (made by the Federation with Baldwin Locomotive Works while in bankruptcy): “Q. The periodical meetings with the management and the board of directors of the Federation have occurred, do I un *66 derstand correctly, on Tuesdays, did you say that, Mr. Trestrail? A. The first Thursday of the month. “Q. Once a month? A. For the three —let me be more exact. The four meetings were had with the management since the existence of the contract — we stayed away for the first eight or ten months of the contract. “Q. You were to meet once a month with the management; is that correct? A. It did not say once a month. It says ‘periodical meetings’. “Q. And you said you had four of these once-a-month meetings with the management? A. Approximately. “Q. Starting June 10, 1938? A. Sir? “Q. Starting shortly after June 10, 1938? A. I would say, about June, yes, June or July. “Q. Down to the present date? A. The past meeting arranged with the management was on a Thursday, that the three or four of the board was not working, and I was here in Philadelphia at this trial. For some reason there was not sufficient members of the Board employed at that time. We started off and had it on Friday. It is the practice at the plant now that George Hurt, Walter Brown, Lou Miller, James Keeney, Robert Elliott, that their particular department is working three or four days a week, and the days they are off happen to be on a Monday and Friday, so we did not feel we wanted to put them to working short time, and with the expense of carfares to Eddystone, and the last meeting was when I was brought up here Thursday, two weeks ago, I believe. “Q. Where do the Federation of Baldwin Employees meet with the management? A. The directors all quit work at four-thirty, and meet the management at 4:45 or five o’clock in a board room located in the second floor of the Executive Building.” (Board’s Appendix, pp. 108-109) The witness Ward confirmed the maintenance of the Federation in the year following Baldwin’s discharge from the reorganization proceeding when he testified: “Q. I show you what is in evidence as Board’s Exhibit No. 99, and ask you, is that your name, John Ward? A. Yes. ‘‘Q. Now, does that refresh your memory as to whether or not you were a shop representative for the Federation of Baldwin Employees? A. Correct. “Q. And was that in 1938 that you were shop representative for the Federation of Baldwin Employees? A. Yes. “Q. And was that in 1937 that you were a representative for the Federation' of Baldwin Employees? A. I can not recall whether it was in 1937 or not. “Q. Was it also in 1939 that you were a representative for the Federation of Baldwin Employees? A. Yes. “Q. And you still are? A. I still am.” (Board’s Appendix, pp. 441 — 442) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650831. Public record. Not legal advice.