offered Hynes and Krueger re-employment at the yard on or about November 11, 1958, and if so, what were the conditions of that offer. Neither party has requested that the matter be adjusted through the grievance procedure under the Contract.
We do not believe that we erred in granting the motion. All that was before us on the motion was the question whether the Arbitrator had the authority under the Contract to make the Awards under Grievances Nos. 921 and 923. The application of the Awards under those grievances to the facts for the purpose of ascertaining the damages to each of the men involved was not before us. We do not know how many men there were, the names of all of them, their length of service and rate of pay. As a matter of fact the complete Contract has not been put in the record before us. Under these circumstances, even if we assume that it was our job to do so, it was impossible for this court to have determined the amount of damages each man was entitled to receive under the Awards.
Getting beck to Hynes and Krueger, the Company asserts that it has complied with the Arbitrator's Award as of November 11, 1958, regarding Hynes and Krueger, by offering each of them 'any of seven jobs then available within the collective bargaining unit that they wished to take but each of them refused the reemployment offered.' The Union claims on behalf of Hynes and Krueger that the offer did not comply fully with the Awards, and, therefore, the two men were justified in refusing to accept the offer. In support of the justification, the Union cited N.L.R.B. v. Poultrymen's Service Corporation, 138 F.2d 204, 210-211 (3 Cir., 1943), and N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3, 1949) wherein the National Labor Relations Board, after having found that the discharges of a number of employees were in violation of the Labor Management Relations Act, ordered the employers, under § 10 of the Act, 29 U.S.C.A. § 160, to reinstate or make them whole by payment to each of them of a sum of money equal to that which they would have normally earned as wages from the date of discharge to the date of the offer of non-discriminatory reinstatement, less their net earnings during such period. The Court of Appeals for this Circuit held, in decreeing the enforcement of the Board's orders, that the rejection by the employees of offers of limited or discriminatory reinstatement by the employers did not have the effect of tolling the running of back pay beyond those dates. On the other hand, the Company argues that the rule announced in those cases is not to be applied here, but the one based on state law, set forth in United Protective Workers of America, Local No. 2 v. Ford Motor Co., 223 F.2d 49, 52, 48 A.L.R.2d 1285 (C.A. 7, 1955), should govern. That rule is: Where a wrongfully discharged employee has not used reasonable diligence to find other suitable work, the damages for the discharge will be reduced by the amount he could have been able to earn if he had used reasonable diligence.
Which rule should be applied here? The case of Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957), gives us some clue. At pages 456-457 of its opinion, at page 918 of 77 S. Ct., the Court states:
'The question then is, what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. * * * Federal interpretation of the federal law will govern, not state law. * * * But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. * * * Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.'
If in attempting to discharge Hynes and Krueger, or in refusing to reinstate them, the Company had committed an unfair labor practice, as set forth in § 8 of the Labor Management Relations Act, 29 U.S.C.A. § 158, there might be good reason for adopting the rule suggested by the Union. For we think that some distinction in the rule of damages should be made where the discharge or refusal to reinstate involves an unfair labor practice. However, up to this point there is nothing in the record before us, including the findings made by the Arbitrator, that the Company has been guilty of any such practices. Until it has been shown to have done so, we think the rule, in modified form, fashioned after state law and championed by the Company is to be applied in determining the damages to be awarded Hynes and Krueger. Hence, if it is found that the Company offered either Hynes or Krueger, or both of them, re-employment, the net amount each of them would have earned at the job, provided it was not too far out of line with the position from which he was discharged
or one that he is incapable of performing, is to be deducted from the amount he would have been entitled to receive had the job not been offered him.
Accordingly, we will adhere to our ruling on the motion for summary judgment, and we will order this action to be placed on the trial calendar of this court so that the matter in dispute may be heard if the parties so desire.
The plaintiffs may submit an order.