1. In Corning Glass Works v. N.L.R.B., 2 Cir., 118 F.2d 625, we sustained the Board’s order and shortly thereafter entered a decree enforcing it. Subsequently, the Board appeared here, alleging non-compliance by the company with our decree, and asked for a contempt order. We then referred the issues to a special master. He has made findings of non-compliance. The Board asks our confirmation of his report, and the company excepts to it. We have heard argument and now confirm the report of the able master in all respects. In particular, the master made findings as to deductions from back pay because of (a) actual past earnings of certain of the discharged employees and (b) earnings which certain employees might have made had they not refused to accept reemploj'ment by the company in positions alleged to be equivalent to those from which they were unlawfully discharged. The master correctly found that there was no such equivalence where a reinstatement or an offer thereof was not coupled with seniority rights.
2. The master refused to hear evidence as to, or to pass upon, the propriety of deductions because of the alleged wilful or neglectful failure of certain employees to accept employment from other employers. In so refusing, he was correct, as it was plain from our order of reference and the record that that issue was not properly before him.
3. The company contends that, if that is true, that issue should now be referred to the Board for hearing and decision. The Board contends that this request comes too late. The peculiar state of the record becomes important:
(a) The Board’s order was entered, after a hearing, on September 22, 1939. During the hearing before the Board, the company did not raise the present issue as to potential earnings from other employers. That issue is, therefore, not open so far as it relates to such potential earnings up to the date of the close of the Board’s hearing. The question here is whether it is also foreclosed for the subsequent period.
(b) On September 27,1939, the company petitioned this court to review and set aside the Board’s order; the Board, by cross-petition, asked its enforcement.
(c) On or about January 5, 1940, the company moved this court for leave to adduce additional evidence as to matters occurring after the Board’s hearing; the alleged matters related to actual employment obtained by some of the employees and to offers by the company to reinstate others. The Board answered that these were mat*970ters to be considered in compliance proceedings after this court had entered its decree. This court, on January 30, 1940, without opinion, denied the company’s motion.
(d) On the petition to review and the cross-petition to enforce the Board’s order, the company’s brief was filed July 12, 1940; the Board’s brief on August 22, 1940; and the company’s reply brief on October 30, 1940. Oral argument was heard November 7, 1940.
On April 4, 1941, this court filed an opinion holding that with certain modifications, the Board’s order should be enforced. See 2 Cir., 118 F.2d 625. That order (which, in that respect, we held was not to be modified) provided that certain employees, discharged in violation of the act, should be reinstated with back pay less their net earnings. The opinion said that certain matters (i. e., essentially those referred to in the company’s motion to take additional evidence) should be considered as a defense to a contempt proceeding for non-compliance.
Up to this point, the company had said nothing as to potential earnings from potential employment by other employers. The issue as to such potential earnings for the period before the close of the Board’s hearing was, as we have said, foreclosed. The Board insists that for any subsequent period it is now also foreclosed, because the company had not raised that issue in its petition or motion or briefs thus far filed with this court. With that argument, we do not agree for these reasons:
In Phelps Dodge Corporation v. N.L.R.B., 2 Cir., July 11, 1940, 113 F.2d 202, 206, this court, on a petition to enforce, modified the Board’s order to require deduction from back pay of potential earnings from other employers. This decision was rendered the day before the company’s brief in the instant case was filed.
In. N. L. R. B. v. Yale & Towne Mfg. Co., 2 Cir., August 16, 1940, 114 F.2d 376, the company, immediately after the issuance of the Board’s order, had moved the Board to reopen the record to adduce evidence as to matters occurring subsequent to the Board’s hearing; according to an affidavit filed in support of this motion, certain of the employees had, in that interval, been re-employed by the company. The Board denied this motion. This court, in its enforcement decree, modified the Board’s order to allow for consideration of such subsequent events.1
But, as soon appeared, we took that action because of the exceptional facts in that case: In N. L. R. B. v. Acme Air Appliance Co., 2 Cir., February 3, 1941, 117 F.2d 417, 421, the Board, in its brief filed in this court, on petition to enforce its order had urged that our ruling in the Yale & Towne case was erroneous, that such matters related solely to compliance, and that they should, therefore, be dealt with by the court only in connection with a later proceeding to punish for contempt for non-compliance with the court’s enforcing decree. In the Acme Air Appliance case, this court refused to follow the Yale & Towne case, but distinguished it because of its peculiar facts, and said: “If subsequent or unproved events furnish a defense in whole or in part to the enforcement of the * * * provisions of the order for reinstatement and back pay, such a defense cannot affect the validity of the order itself, which speaks as of the time of the hearing and is founded upon the record before the Board. Such defenses * * * may be interposed to a motion by the Board to punish a refusal to obey an order of this court to enforce the Board’s order for reinstatement and back pay * * *>> True, in the Acme Air Appliance case, the defenses did not relate to potential employment with other employers. But, until, subsequently — on April 28, 1941, more than three weeks after our opinion in the instant case was filed — the Supreme Court decided Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217, it had not been ruled that such a defense was to be differentiated in treatment from the kind of defenses discussed in the Acme Air Appliance case.
The company in the instant case, when writing its briefs and arguing orally, had good reason, therefore, to believe that the defense of potential earnings from other employers could not properly be raised in a court hearing on petitions to review or enforce a Board’s order. Consequently, the company appropriately did not present that *971issue in its argument before this court in connection with its petition to review the Board’s order and the Board’s cross-petition to enforce it.
(e) On April 21, 1941, the company tendered to this court a proposed form of decree, which provided for a deduction from the back pay of each of the discharged employees such “amounts as he would have earned during such period had he accepted such other work as an employee of * * * any other employer, as he was fitted to do, and as was reasonably available to him.” That provision went back too far in time, as it covered the period before the close of the Board’s hearing. But it was otherwise properly worded under our earlier decision in Phelps Dodge (which the company cited in an accompanying memo) and squarely included the issue of potential earnings which we are now considering. It was not in line with our earlier decision in the Acme Air Appliance case.2
(f) Without opinion, this court (in line with its decision in the Acme Air Appliance case) rejected this provision and, on April 29, 1941, entered an enforcement decree calling for deduction of “net earnings.”
(g) On April 28, 1941, the Supreme Court had filed its opinion in Phelps Dodge Corporation v. National Labor Relations Board, supra, in which it said that the deductibility of amounts which employees unjustifiably refused to earn in desirable new employment was a matter which should be referred to and decided by the Board and which should not be determined in contempt proceedings.
It may well be that this court had not read that opinion when, the day before, its enforcing decree was entered. Had that opinion then been carefully considered, the decree should have contained the provision sought by the company, coupled with a further provision that that issue be referred to the Board.
(h) On May 12, 1941, the company moved this court to resettle its enforcing decree of April 29, 1941. It asked for the inclusion in the decree of a provision remanding the proceedings to the Board, with directions to hold a hearing to determine which of the discharged men “the petitioner shall be required to make whole * * * if any, and the amount due each of them for such reimbursement.” In an accompanying memo, it said that it sought to have this issue determined in a formal hearing before the Board, rather than in connection with a contempt proceeding.3
The Board now asserts that, by this motion of May 12, 1941, the company had abandoned the issue as to potential earnings from other employers which it had raised on April 21, 1941. We do not agree. The company may have been hesitant again to press that issue with which this court on April 29 (less than three weeks earlier) had refused to deal, despite the Supreme Court’s Phelps Dodge decision filed on April 28. To be sure, the provision tendered by the company on April 21, had not asked for a reference of that issue to the Board. But the company may reasonably have concluded that, if that were this court’s sole objection to the provision which the company then tendered, this court would have accepted that provision with a modification necessary to send it to the Board. It is unfair to say that, in the circumstances, the company, by its motion of May 12, abandoned the issue which it had pressed on April 29. Cf. In re Barnett, 2 Cir., 124 F.2d 1005.
However that may be, this court, without opinion, on May 16, 1941, denied the company’s motion of May 12, 1941.
(i) On October 28, 1941, the Board, alleging violation of our enforcement decree of April 29, 1941, asked this court to hold the company in contempt. The company then, on November 18, 1941, asked that, in our order of reference to the special master, we provide that he should consider to what extent the employees had wilfully *972failed or neglected to accept employment from other employers.
Our order of' January 6, 1942, referring the matter to the master, omitted that requested provision; and correctly so, as, under the Supreme Court’s Phelps Dodge decision, that was an issue to be referred to the Board and not to a master. But we might well, at that time, have referred it to the Board.
4. The result of our order of reference was that the master, properly, rejected evidence bearing on the issue of potential employment by other employers. But the consequence is that the company has not had an opportunity to be heard thereon to any extent whatever. We conclude that, under the Supreme Court decision in Phelps Dodge, that matter should long ago have been referred to the Board for decision and hearing.
5. It is suggested that that conclusion is erroneous because the company failed to seek certiorari from the decree of April 29, 1941. We reject that suggestion. Cf. Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 91, 42 S.Ct. 196, 66 L.Ed. 475; Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152; Riehle v. Margolies, 279 U.S. 218, 220, 49 S.Ct. 310, 73 L.Ed. 669; Cadillac Motor Car Co. v. Johnson, 2 Cir., 221 F. 801, L.R.A.1915E, 287, Ann. Cas.1917E, 581.
6. It is also suggested that that decree was correct because the company, on April 21, 1941, should have made a showing that there was reasonable ground for believing that the company would be able to prove that their employment by other employers was available. Having due regard to the unique record in this case, we cannot agree. It is unique for several reasons:
The procedure was then unsettled and confusing. Our decision in Acme Air Appliance indicated that such an issue should be considered in contempt proceedings. The propriety of deductions from back pay because of such potential employment was not finally decided until the Supreme Court decided the Phelps Dodge case. The regrettable delay in referring this issue to the Board was apparently due to confusion resulting from the recency of that decision at the time when our enforcement order was entered. In the unusual circumstances, we cannot say that the company was dilatory or inadequately precise in pressing the issue as to potential employment for the period after the close of the Board’s hearing. Nor can we say that the long delay, since the major labor dispute involved in this case arose in 1937, is in any considerable part ascribable to the company.4
7. However, our decision here — to send this matter to the Board at this late date— should not be regarded in any way as a controlling precedent in other cases for these reasons:
It is true that, in proper circumstances, the continuing nature of a back-pay order may call for adjustment because of new facts which have occurred after the conclusion of the Board’s hearing which led to the entry by the Board of such an order.5 We recognize that such adjustments may entail delays and other difficulties. But those delays and other difficulties were explained in the opinion of the dissenting Justices in the Phelps Dodge case,6 and were held, in the majority opinion, to be insufficient to cut off a right of reference to the Board to consider adjustments due to circumstances occurring after the close of the Board’s hearing on enforcement. The desirability of avoiding those delays and other difficulties cannot therefore be considered by us.
However, as the doctrine of the Phelps Dodge case is now known to everyone, we shall, in other cases, require a prompt and clear showing of probable evidence, bcar*973ing on such an issue — or an adequate excuse for not so showing- — before we hold that it is open and that it must be considered by the Board.
Moreover, it is obviously awkward to split the issue of “equivalent employment,” sending to the Board so much of it as relates to potential employment by other employers and sending to a master so much of it as relates to actual or potential employment by the respondent-employer. In future cases, where the issue of potential employment with other employers is raised, we shall need to consider whether such awkwardness should not be avoided by referring to the Board the entire issue of “equivalent employment” (although the Board is apparently reluctant to hear such issues when they go beyond the requirements of the Phelps Dodge decision).7 However, as the Board in this case is asking confirmation of the master’s report, we do not here pass on that question.
8. The company, in its offer of proof before the master, asserted that there were opportunities for other employment beginning not earlier than January, 1940. The amounts found due by the master up to January, 1940, must, therefore, be forthwith paid, with interest, and without further deductions.
For the period beginning January, 1940, we shall enter a conditional order for the amounts found due by the master, with interest. But from the amount due any employee under the conditional order, there shall be deducted such amount, if any, as the Board may find should have been earned in the employ of persons other than the company.
9. The Board, in passing on the amounts, if any, which should thus have been earned, will, of course, be governed by the Phelps Dodge decision [313 U.S. 177, 61 S.Ct. 855, 85 L.Ed. 1271, 133 A.L.R. 1217]. Thus, for instance, the Board need not regard “remote and speculative claims” made by the employer as to such earnings; and the governing principle is “not so much the minimization of damages as the healthy policy of promoting production and employment.” The Board need not apply “abstractly” the doctrine of mitigation of damages without regard to the basic policy of the statute. The Board has a “wide discretion” on this issue. “The board * * * does not exist for the ‘adjudication of private rights’; it ‘acts in a public capacity to give effect to the declared public policy of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining.’ ” For to limit its consideration “merely to questions of monetary loss to workers would thwart the central purpose of the Act, directed as that is toward the achievement and maintenance of workers’ self-organization.” In those and like words, the Supreme Court, in Phelps Dodge, described the wide discretion of the Board on such an issue. We take it to mean that the strict rules relating to mitigation of damages in ordinary discharged-employee cases are not applicable. Without limiting the generality of what we have said, the Board, in deciding whether any of the employees wilfully or negligently failed .to seek a position with another employer, may properly take into account what would have been the effects on that employee’s seniority privileges if he had accepted other employment.
The report of the special master is confirmed subject only to the conditions described in this opinion. The master’s statement of expenses, disbursements and his bill for services are approved. The case is remanded to the Board for the limited purposes above noted.
This was more than a month after the company’s brief in the instant case was filed. It was some two months before its reply brief was filed. But the Board was at that time contending, in tbe Acme Air Appliance case, that this court bad erred in the Yale & Towne case; and, not long after, we held that our action in the Yale & Towne case was highly exceptional.
Because it included matters occurring after the close of the Board’s hearing which, in the Acme Air Appliance case, we had said should be postponed for consideration in a compliance proceeding.
The Board answered this motion, saying that there should be no such reference to the Board as the company sought in its motion, the issues therein referred to being, said the Board, matters to be considered in a contempt proceeding. It went on to say: “In such a proceeding, the Board and the employer are in an adversary relation. If the Board proceeded to make findings of compliance, there is nothing in the statute which would entitle such findings to greater weight than the statements of any other litigant. The Board has no power to determine what constitutes compliance with the decree of this court.”
There is nothing of record showing that the following delays were ascribable to the company:
(a) From January 25, 1938, when the Board issued its complaint, until September 22, 1939, when the Board’s order was entered.
(b) From September 27, 1939, when the company’s petition to review that order was filed here, until April 4, 1941, when this court’s opinion was filed.
(c) From October 28, 1941, when the Board filed its contempt petition, until January 6, 1942, when this court referred the issues to the Master.
Similar need for adjustment, because of changed circumstances, may arise in connection with an injunction decree (United States v. Swift & Co., 286 U.S. 106, 114, 115, 52 S.Ct. 460, 79 L.Ed. 999) or a decree for alimony (19 C.J. 273ff; 27 C.J.S., Divorce, § 239).
See 313 U.S. 177, 200, 206-208, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217.
See the Board’s position quoted above in note 3.