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Drake Bakeries v. American Bakery and Confectionery Workers International

September 12, 1961

DRAKE BAKERIES INC., PLAINTIFF-APPELLANT
v.
AMERICAN BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL, LOCAL 50, AFL-CIO, DEFENDANT-APPELLEE.



Before LUMBARD, Chief Judge, 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 - Fed. Supp. -. They point to the three recent decisions of the Supreme Court in United Steelworkers of America v. Warrior & Gulf Navigation Co ., 363 U.S. 574 (1960); United Steelworkers of America v. American Mfg. Co ., 363 U.S. 564 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp ., 363 U.S. 593 (1960). 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 287 F.2d 155 (1961) 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such circumstances the opinion of a panel of this court, reported at 287 F.2d 155, remains in effect and should not be withdrawn.

Accordingly the opinion reported at 287 F.2d 155 is withdrawn and the order of the District Court is affirmed.

19610912

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