Drake Bakeries Inc. v. LOCAL 50, AMERICAN BAKERY & C. WKRS.

Decision Date12 September 1961
Docket NumberDocket 26343.,No. 99,99
Citation294 F.2d 399
PartiesDRAKE BAKERIES INCORPORATED, Plaintiff-Appellant, v. LOCAL 50, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL, AFL-CIO, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

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.

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.

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such circumstances the opinion of a panel of this court, reported at 287 F.2d 155, remains in effect and should not be withdrawn.

Accordingly the opinion reported at 287 F.2d 155 is withdrawn and the order of the District Court is affirmed.

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10 cases
  • Walters v. Moore-McCormack Lines, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 14, 1963
    ...5, 1961. Involved existence of federal jurisdiction under Investment Company Act. No Supreme Court action. 17. Drake Bakeries, Inc. v. Local 50, 2 Cir., 294 F.2d 399. Decided September 12, 1961. Involved arbitrability of labor dispute. Aff'd 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 18. Un......
  • Yale & Towne Mfg. Co. v. LOCAL LODGE NO. 1717, ETC., 13654.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • February 14, 1962
    ...287 F.2d 155, 158, it was held that the no-strike clause was not within the orbit of the grievance procedure but, upon rehearing, 2 Cir., 294 F.2d 399, the court was sharply divided with three judges affirming and three judges dissenting, Judges Lumbard, Moore and Friendly, and, under the c......
  • Baker v. Pataki
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 30, 1996
    ...Co. v. United States, 317 F.2d 875, 886 (2d Cir.1963) (in banc) (per curiam); Drake Bakeries, Inc. v. Local 50, Am. Bakery & Confectionery Workers Int'l, 294 F.2d 399, 400 (2d Cir.1961) (in banc) (per curiam), aff'd on other grounds, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). 2 Acco......
  • Drake Bakeries, Incorporated v. Local 50, American Bakery Confectionery Workers International
    • United States
    • U.S. Supreme Court
    • June 18, 1962
    ...active judges of the court, who divided 3—3 on the merits, and by a 4—2 vote withdrew the panel decision and affirmed the judgment below (294 F.2d 399). The priority of this procedure was questioned in the petition for certiorari, but later petitioner abandoned the 2 'Article V—Grievance Pr......
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