Drake Bakeries Incorporated v. Local 50, American Bakery & Confectionery Workers International, Afl-Cio , 294 F.2d 399 ( 1961 )

294 F.2d 399

DRAKE BAKERIES INCORPORATED, Plaintiff-Appellant,
v.
LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, Defendant-Appellee.

No. 99.

Docket 26343.

United States Court of Appeals Second Circuit.

Submitted April 25, 1961.

Decided September 12, 1961.

Weil, Gotshal & Manges, New York City (Robert Abelow, Milton Haselkorn and Marshall C. Berger, New York City, on the brief), for plaintiff-appellant.

O'Dwyer & Bernstien, New York City (Howard N. Meyer, New York City, on the brief), for defendant-appellee.

Rubenstein & Rubenstein, New York City (Jerome S. Rubenstein, New York City, on the brief), for International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO, amicus curiae.

Edward Maguire and Herman A. Gray, New York City, for New York State AFL-CIO, amicus curiæ.

Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY and SMITH, Circuit Judges.

PER CURIAM.

1

This case was submitted to and considered by the active judges of this court after a majority of them had voted to grant the appellee's motion for rehearing in banc. Judges Clark, Waterman and Smith vote to affirm the order of the District Court for the Southern District of New York, reported at 196 F.Supp. 148. They point to the three recent decisions of the Supreme Court in United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; and United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. Judges Lumbard, Moore and Friendly, not considering these decisions to be controlling, agree with the views of a panel of this court as expressed in an opinion written by Judge Swan and reported at 2 Cir., 1961, 287 F.2d 155 which reversed the order of the District Court.

2

Four judges are of the view that under such circumstances the order of the District Court is affirmed. Judges Lumbard and Friendly dissent and are of the opinion that under such circumstances the opinion of a panel of this court, reported at 287 F.2d 155, remains in effect and should not be withdrawn.

3

Accordingly the opinion reported at 287 F.2d 155 is withdrawn and the order of the District Court is affirmed.