Before BIGGS, MARIS, JONES, and GGODRICH, Circuit Judges.
On Petition for Rehearing and Settlement of Decree.
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*fn1 but also that Baldwin's recognition of and dealings with the Federation continued down to and during the hearing on the complaint,*fn2 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 from 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:
"(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 ...