*1 bankrupt’s checking fer regular ac- identity count proof demand by it. means Nor do we know have we nor of knowing that a variation in the nominal assigned amount in- the total of accounts creased or decreased the total value basis, assigned. which was We have no therefore, invalidating any part assigned bank’s at the assets hands company’s bankruptcy time the occurred. The decree of the district court af-
firmed.
NATIONAL LABOR RELATIONS BOARD KILLOREN.
Nos. 11875. Eighth Appeals,
Circuit Court of Circuit.
Sept. 1941. 3.
Rehearing Denied Oct. *2 VALKENBURGH, Circuit VAN dissenting.
Judge,
a proceeding
corporate reorganization
Chapter
X of the Chandler
seq.
Following
501 et
af-
our
firmance of the Board’s order
toas
rein-
*3
employees
statement
pay
of
al-
and back
lowances,
Company
adjudicated a
the
was
bankrupt.
proof
The Board then filed a
of
Somers, Washington,
A. Norman
D.
of
Referee,
claim with the
of the
name
(Robert
Watts,
Counsel,
C.
B.
Gen.
and Board,
allowances,
for the back
total-
Counsel,
Halliday,
Malcolm F.
Asst. Gen.
ling $161,160.17,
employees
168
due
dis-
C.,
both Washington,
brief),
of
D.
on the
against
order,
criminated
setting
under its
appellant.
for
out
the name
each and
amount
of
the
Louis,
Harry
Gleick,
S.
of St.
Mo. which was
he
entitled
receive.
Hocker,
(Jones,
Gladney
Grand,
and
trustee,
On
the
motion of
Referee
the
Strauss,
Louis, Mo.,
Gleick &
all
St.
of
expunged
proof
of claim from the
the brief),
appellee.
on
for
record, upon
ground
a
WOODROUGH,
JOHNSEN,
Before
allowance under the National
Re-
Labor
VALKENBURGH,
VAN
and
Cirсuit
provable
lations Act
not constitute
did
a
Judges.
capable
debt or claim in bankruptcy,
of
being
asserted
the Board or
one
JOHNSEN,
Judge.
Circuit
else. His memorandum
indicates
questions
controlling
(1)
wheth.
he
purpose
conceived that the sole
of
er a back
allowance in an
of
order
only power
the Board’s order and its
under
the National Labor
whose
Relations
prevent
Company
the Act were to
“as
enforcement
directed
Cir-
going
а
concern from obstructing
again
Appeals,
provable
cuit Court of
is a
debt obstructing the flow
interstate
of
com-
subsequent bankruptcy proceeding;
merce”,
that,
Company
since the
had
(2)
so,
owing
if
whether
is a debt
gone
bankruptcy,
into
“there is
reason
no
sense
en-
Board in the
that the Board is
for affirmative
carry
remedial action to
out
proof
file
titled to
and assert a
claim
of
purposes
Act”,
pay-
of the
and “the
* * *
therefor;
(3),
prоvable
if it is such a
ment
of so-called
debt,
to the
whether
required by
not now
the Act”.
entitled
under
64
section
petition
review,
On
Board’s
Bankruptcy Act,
52 Stat.
11 U.S.C.A.
approved
District Court
confirmed
104.
order,
ap-
Referee’s
and the Board has
Company,
The Hamilton-Brown Shoe
on pealed.
complaint
hearing,
found
have
Referee
We think the
District
engaged
practices
in unfair
labor
under Court erred.
Act,
the National Labor Relations
29 U.S.
seq.,
C.A.
151 et
and was orderеd
validity
of
Board’s al
Board, among
National Labor Relations
enforcibi'lity
and the
lowance of
things,
make whole the
other
conclusively
were
settled
our
thereof
“by
against,
been discriminated
who had
affirming
directing
its en
order
them, respectively,
of
payment
each
of a
was,
valid
forcement. Such
allowance
equal
which each would nor-
sum
Act,
provisions
not a
mally
wages during
have earned as
the punitive
pur
but a remedial action.
Its
period from
date of the discrimination
was,
by way
pose
penalty against
of
against him the date of the offer
of re-
employer,
particular
but in
furtherance
placement upon
prefer-
instatement
Act,
policies
of
as
to restore
* * *,
(rehiring)
list
ential
his net
less
nearly
possible
quo
status
which
pe-
during
period.”
earnings
said
On a
existed,
discriminating
if
would
review,
portion
we affirmed this
tition for
wrong
not been committed.
National
the Board’s order and
en-
directed its
Remington
Relations Board v.
Rand
Labor
See Hamilton-Brown
Shoe Co.
forcement.
Co., Cir.,
“Making
94 F.2d
Board, Cir.,
Labor
National
v.
whole
losses suffered
ac
workers
on
49.
104 F.2d
practice
part
an unfair
labor
count
entry
order,
public policy
After
the Board’s
vindication of the
petition
pending
Phelps Dodge
while the
for review was
enforces.”
Court,
Company
Corporation
before this
instituted
National Labor Relations
applicable
legal purposes,
came
all
It is self-
A.L.R. 1217.
accumulating
retroactive and
“indebtedness
evident,
think,
materially
we
that would
due
for and on behalf
[Board]
*
**
in effectuating
policies of
aid
employees.”
National
industry
generally
workmen in
Co.,
Relations Board
v. Carlisle Lumber
protected,
they
feel assured that
108 F.2d
fully
merely in
soundly possible,
arising
was an
out
indebtedness
self-organiza-
right
the exercise
their
statute;
obligation imposed by
of an
hence
designation
tion and
representativеs
nature;
quasi
contractual
consti
against
choosing,
own
the econom-
their
but
implied con
tuted therefore a claim on an
consequences
legitimate
ic
assertion
(4)
tract
under section
*4
rights.
experience
those
The
Act,
103,
Bankruptcy
11 U.S.C.A.
decisions,
in
as reflected
its
demonstrates
;
(4)
provable
and
debt in bank
so was
the need
assurance.
Cir.,
Bernstein,
ruptcy. United
v.
8
States
in
an
no
such
be
real force
There could
233, 235;
O’Keefe,
16 F.2d
Brown
300
v.
assurancе, however,
if the Board’s order
827;
598, 606,
543,
57
U.S.
S.Ct.
81 L.Ed.
awarding
pay
particular
case
back
Piqua
National Labor Relations Board v.
actually
An
made effectual.
would not
be
Cir.,
Co.,
109
Munising Wood Products
6
hardly
paper
decree
unvindicated or
552,
F.2d
encourage self-organization
tend to
ef
obligation
It was an
or indebted
peaceful
And
and
industrial relations.
forts
character,
public
ness of a
the Board
which
permit
so, public policy cannot
such a valid
Amalgа
alone
authorized to enforce.2
es
the Board
be thwarted or
to
order
Utility
Edi
v. Consolidated
mated
Workers
any
way
pre
caped, if there is
to
266,
261, 265,
Co.,
U.S.
60 S.Ct.
son
309
employer
that an
it. The
fact
vent
mere
738;
561,
National
Rela
84 L.Ed.
Labor
certainly
may
to
cease
do business
does
Cir.,
Hearst, 9
102 F.2d
v.
tions Board
seeing
public
in
interest
involved
end
Inc.,
664;
658,
Agwilines,
v. National
pay
Act
a back
award under the
that
146,
Cir.,
Board, 5
87 F.2d
Relations
Labor
public
that
The
been
wrong
has
satisfied.1
public
in
ca
Board acts
150. “The
being
regarded
righted
cannot be
as
done
public
to
to the declared
give effect
pacity
expedient
simple
employer’s
by the
* *
National
policy
the Act
bankruptcy,
ju
that
can be
to
so
resort
v. National Labor
Co.
Licorice
dicially
payment
back
declared
569,
350, 362,
U.S.
60 S.Ct.
309
longer
any
will no
use
award
serve
576,
The
status
held not 874). pay. reinstatement A.L.R. only 2 Thus, has been held that pres- proceed right its The Board’s brief states that to institute Board has the practice contempt ings punish one its Board or ent is for the of the court pay payments, agents enforcing (Amal order the Board’s receive decree money Utility gamated to make distribution Workers v. Consolidat employees. Co., entitled Edison 309 U.S. ed demand, States, anyone debt, or claim preference owns a who and so entitled bankruptcy, may include provable R.S. 3-1 191. It relies attorney, duly agent, Fidelity his authorized Bramwell v. United States proxy”. con recognition Guaranty Co., not in Such a 46 S.Ct. flict, harmony, provisions but in with the where intended monies wards, National Relations Act and its benefit of Indian public purposes. deposited by the been jfact Superintendent that under order, employer terms Indian Board’s Reservation in a bank that subse- might discharged legal obligation, insolvent, quently his became were held payment di entitled to making as a debt rect, not, does as the United trustee States. attempts argue, right affect Board’s The purpose un- allowance name, its to seek enforcement in own where Act, der the National Labor Relations when satisfaction no has fact occurred. awarded the Board to effectuate is, policies indi- Nor is there merit above, employеe, cated an as near- leave trustee’s contention that the amount of ly possible, in the same situation that undeterminable, provable claim occupied, he would have if there had been *5 purposes bankruptcy, in because no offer of against no discrimination him. the As to reinstatement ever or could now had-been employee is, least, practical at in it a employees. be made to the The claim was legal sense, sоund nothing or less one, more cumulating up a to time bank of compensation wages. than It is. to which and, ruptcy least, at if the effect of that entitled, by he is reason his continued of proceeding nullify, to or render in employee, status under the Act as an capable enforcement, of the reinstatement which the Act and the order of obligation, wipe it certainly did not out regard constructively him having Board as make or undeterminable the amount of language specifi- earned. The of the Act pay, payable back to date. right that cally it “back pay”. ought denominates It pay, back under a to valid order of the therefore, equitably spirit not inor of obviously depend upon does not Act, given superior be either a or whether the reinstatement obligation is legal position a subordinate to the wages satisfied. reinstatement If becomes im regular employees, any other if there is pоssible, obligation never is way doing avoid so. To elevate period, theless enforcible during for the it, any purpose, correspond- for above the right which to reinstatement existed.4 ing rights employees hardly 638, other would 11 U.S.C.A. adjudication Under § tend peace, industrial bankruptcy further in which in case was effective the fundamental aim of reorganization the National Labor from the proceed date ings Similarly, instituted, place had been Relations Act. it on and the Board clearly any degree a level in lower than right compute that of and file claim, did, wage rights regular deny would it a as for that had position to which its denomination accumulated date. in it, Act entitles equal- would dilute the urges The Board its claim should purpose izing for which it was intended. be given priority (5) sub. a § Act,5 Bankruptcy Any 11 question sound consideration § (5), priorities a debt regard to the United of must therefore have “a. The debts strikers up Board in that case ordered one of bad. accumulated Phelps Dodge Corporation tate of a deceased been death. Hearst, 4 Section In National Labor Relations Board held entitled to appears ordered the time Relations “made whole Cir., also from the reinstated he became to have 102 sub. a in up F.2d employee, to the the back priority, supra, with back unemployable.” part loss in v. time of bis provides: who bad National in ad- the es wages pay, in v. .been ing proceeding, States, time, salary clerks, the date States ceed rupt estates, shall be itors, vanee of the $600 earned whether or or commission is entitled to any person, who bankrupt; * * * to be traveling due to payment within three months before and the order of the commencement of each paid the laws of the United (2) ** claimant, including workmen, basis, in full out of bank- wages, selling exclusively city dividends to cred- * whole or (5) salesmen on which have * [*] not the United debts ow- payment, servants, to ex- part
61á position rights all “not the the to each claimant exceed $600 (Italics is, Under suf- supplied.) situation. The Board Bankruptcy sense, separate 11 U.S.C.A. ficient ant claim- trustee and involved, wage to each “not to employee claims exceed $600 to each claimant, within which have earned each duly been itemized the amount to com- three months before date individual Whether correct entitled. placed computations are proceeding”, mencement of and credits made priority. Debts ow- given is, in the class of second course, proper question for States, full in their ing amount, Referee, ultimately to the United when the claim is ' fifth placed in the class considered. priority. If allowance is a back taken, we deem position Under here wage advantage, other with to have unnecessary determine whether an claims, priority, of the second neces- pur- pay may, award other of back position unequal as to sarily. is an pose, regarded due debt high preference amount for which United States. Bankruptcy Act. On the allowed questions suggested The constitutional hand, unpaid wage if there are other are, interpretation under the made of pref- beyond claims erence, the amount Act, sufficiently La- National answered employees, other status Laughlin bоr Relations v. Jones remain- general mere creditors as to their Corporation, Steel 57 S.Ct. balances, prejudiced hav- ing Agwi- 81 lines, Inc., A.L.R. 1352 and paid ing full as allowances National Labor United in the fifth due the States debts require no F.2d priority. further here. discussion *6 any The indicate record does not District Court is re- of the order wage the amount claims thing versed, fur- cause is remanded for and the present pro in the that have filed this in proceedings ther accordаnce ceeding, the of the or as to value estate. opinion. searching general prin In the remanded. Reversed and however, ciple, govern that should a situation, necessarily we are not so much VALKENBURGH, Judge Circuit VAN with the facts of an individual concerned (dissenting). case, probabilities as with the realities and my agree with I am unable to a associates field whole. of the We are appeal b.y re- disposition pay of this back allowancе should in their a judgment of the trial court treated accordingly be the same as versal of expunge claim claim, upon filed regular wage bankruptcy pur motion in by Labor Relations Board prevented doing are the National poses, unless we from awarded, provisions Bankruptcy back al- by bankruptcy for the so of the that the claim was entitled leging further Act. Board, a priority as debt to and, above that declared a We have States, therefоre, United over to the allowance, provisions Na- claims, whether of administra- all other as, is intended tional otherwise. tion or constitutes, wages which workman may constructively by be that there Incidentally, earned reason his added has employee. insufficient status as an This hands of referee continued in the are operation clearly brings it within the in full all such claims if al- view funds a(2), 11 sub. U.S.C.A. of a and allowed. lowable § wage priorities. governing If (2), hearing upon this motiоn ex- allowance to such an Act authorized had confined to the valid- agreement press damages, nature in the a dif- be made claim; no other issue ity Board’s perhaps pre- ferent situation hearing At Trustee this was involved. however, has, specifi- Congress sented. incorporated in Bankruptcy offered in pay” cally employment it “back status, in continued made individual claims of the record wage-earners sufficiently con- and this in whose names schеduled legal “wages earned” stitutes eliminate claim, who have filed in- Board’s shadows. the referee. These claims with dividual claims, offered and admitted in any difficulty presented Nor individual is transcript from the evidence, were omitted Bankruptcy Act, language by the appeal request Report counsel that, on this practice at unfair labor re- if is Board. sumed, for the National immediately Labor Relations “there will be available have, therefore, in оnly We determine existing Board an decree to court Board, appeal (a) whether contempt serve as proceedings.” basis claim; and such, authority to file contempt, Civil of course. (b) if so it is whether entitled bankruptcy In case of the function of the as, effect, in United States a debt due the procedural Board as agency to assure agencies. is or one of its This latter claim protection practice, unfair from if labor upon pro- based resumed, has been exhausted. Relief due insolvency in debts vides cases wage-earner, remains, one must be if the United shall satisfied. first States through application to court. His appellant Counsel for admit personal one, public is a award claim, monetary has no interest in the since punitive decree, one. It is the court’s it, States, neither for that nor the United procedural in government title nor its matter, if money would receive allowed agency, is basis redress bankruptcy. claim in as a wage-earner awarded. 'If judg- has a ment that can be enforced as a claim in appears present guise itself in he, procedural agent, and not a plenary trusteeship, states that its of a authority present Undoubtedly it. present practice is to receive Congress might expand the so functions payments to make distribution of but it has not done so either money employees. to the entitled But suсh expressly inferentially. practice, though acquiesced even interest, parties quality could confer no significant A limitation of the Board’s trusteeship wardship, none is nor authority Republic is found Steel Cor- granted any Congressional Act. None poration v. National Labor Relations appellant, al., the cases cited counsel for of nor et U.S. majority opinion, authority held: 6 wherein governmental priority claimed. “The National Labor Relаtions having the reinstatement with ordered Amalgamated Utility (C.I.O.) Workers found to have been dis- Co., v. Consolidated Edison charged or denied reinstatement in viola- S.Ct relied *7 tion of National Labor Relations recognizes because rather having employer directed the and to de- organization than labor filed the duct from the back such amounts as proper charges, party as the apply to for by gov- were received from contempt proceedings against employer an performed agencies ernmental for services obey for failure to a decree enforce projects, meanwhile on work relief was opinion, ment. This and cited others fail authority require without further to utterly recognize to Board or Gov employer governmental over to the interest, party ernment as a agencies the so amounts deducted.” claimant, nominal or otherwise, of that discharged emрloyees. Congress made to do not think awards “We intend- The recognized is agency gov virtually as an in the Board Board ed vest un- procedural merely punitive discretion to devise ernment sense in limited mea- prescribe dealing sures, practices; penalties with unfair labor and thus but or any may pecuniary neither sense which the Board are fines think bene dealing policies ficiaries. court there Act. was effectuate We necessity authority ‘this discriminating bе said that have to order af- procedural the Board agent go tween does not in firmative action so far as private proceedings punitive jurisdiction persons court and confer a enabling employer groups, as the unions inflict interested. It Board to attempting expand may powers penalty was not choose because he is en- authority beyond practices, gaged its in unfair labor functions even by Congress. prescribed says: (309 though the Board 270, 60 loc. cit. Act policies might U.S. cit. loc. be effectuat- 738) appropriate We procedure “The such an order’. have ed said that end is punish power to ask court to to command affirmative action remedial, punitive.” the violation its contempt”. (311 decree as U.S. is then 6.) Reference made 61 S.Ct. Conference inference, denies This, by strong status claimed governmental
Board the
it. the Board seem that itWhile would protection to assure its funсtion exhausted part of on the conduct from unfair dispo- unnecessary for bankrupt, it is in this presented only issue sition of than hold more appeal to do Ky., Joseph Bradley, Lexington, J. expunge be the motion judgment on Squire, Dempsey, and Sanders the Board ground on the affirmed without Ohio, Cleveland, appellant. Such claim. authority file the ap- Wheeler, Hazard, Ky., P. convenience T. plea of my Even view. pellee. present are lacking. claimants The real The substan- file. on and their claims HAMILTON, MC- ALLEN, Before presented. tial merits Judges. ALLISTER, Circuit back, the ma- go even case should rights of opinion, determine the jority PER CURIAM!. claimants, the individual priorities question consideration of This being cause on submitted the rec- presented. ord, situation argument briefs and counsel appearing subject that the matter of this appeal ap- considered court peal parties, No. between same re- ported in 6 114 F.2d and it fur- that, ther appearing pursuant to this mandate, court’s court caused lower its decree to carried out ordering a public properties sale as a unit of the in- FINANCE RECONSTRUCTION CORPORA- volved, and it appearing further that at KENTUCKY RIVER COAL TION v. appellant said sale herein offered a bid CORPORATION. $25,000 for the machinery mining No. 8948. equipment separate apart from the leasehold, appellee, appearing further that the Appeals, Sixth Circuit. Circuit Court Kentucky River Coal Cor- June poration, $10,000, bid at said sale machinery equipment and leasehold all in appellant, lien tlie Reconstruction *8 Corporation. Finance Now, therefore, in view of the former affirming of this court the judg- court, ment of the district adjudged it is Kentucky the bid of the River Coal Corporation present properties for the adequate whole and the court did its in confirming abuse discretion present sale, the receiver was not compelled accept appellant’s $25,- bid of machinery equip- mining apart separate ment the lease- from hold. judgment the district court is in
all matters affirmed.