Petition for Writ of Certiorari — J. H. Rutter-Rex Manufacturing Co. v. National Labor Relations Board

Ve Ose? de &

JAN 16 1969

JOHN F. DAVIS, GLERM

——

~T —— ie

-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1968

J. H. RUTTER REX

MANUFACTURING COMPANY, INC.

Cross-Petitioner

versus

NATIONAL LABOR RELATIONS BOARD and

AMALGAMATED CLOTHING WORKERS OF

AMERICA, AFL-CIO

Respondents

CROSS PETITION FOR A CRCSS-WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

PETER H. BEER

806 National Bank of Commerce Bldg.

New Orleans, Louisiana 70112

Counsel for Cross-Petitioner

J. H. Rutter Rex

Manufacturing Company, Inc.

Of Counsel:

HENRY J. READ

DANIEL LUND

MONTGOMERY, BARNETT, BROWN & READ

806 National Bank of Commerce Building

New Orleans, Louisiana 70112

INDEX

Page

Opinions Below and Jurisdiction... 1

Questions for Review 2

Constitutional Provisions and Statutes

| a FE ee Ee oe 3

Statement of the Case .... 3

Argument of the First Question... 5

Argument of the Second Question 13

Argument of the Third Question 16

Reasons for Granting Cross-Writ.... = 20

CESAR SDSS ee a 21

Certificate 22

Appendix A, Orders Extending Time

to File Cross Petition A-1

Appendix B, Statute Involved,

(28 USC § 160(c)) B-1

Appendix C, National Labor Relations

Board Order of February 18, 1956 C-1

Appendix D, Excerpt from Cruss-

Petitioner’s Brief to Fifth Circuit... D-1

eR

CITATIONS

Cases Page

Efco Mfg. Inc., 108 NLRB 245 (1964) 15

Dunn v. Retail Clerks International Ass’n.,

307 F. 2d 285 (6th Cir. 1962) 20

Florence Printing Company v. NLRB,

333 F. 289 (4th Cir. 1964) 12

Florence Printing Company v. NLRB, 376 F. 2d 216

(4th Cir. 1967), certiorari denied,

389 US 840 (1968) _ iis 12

J. I. Case Company v. NLRB, 321 US 332 (1944)... 10

NLRB v. Bird Machinery Co., 174 F. 2d 404

(1st Cir. 1949) 20

NLRB v. Brown & Root, Inc., 203 F. 2d 139

(8th Cir. 1953) 16

NLRB v. Express Publishing Company, 312 US

426 (1941) 9, 10, 20

NLRB v. Hecks, Inc., 388 F. 2d 668 (4th Cir. 1967) 9, 10

NLRB v. Rice Lake Creamery Company,

365 F. 2d 888 (D.C. Cir. 1966) 16

NLRB v. J. H. Rutter Rex Mfg. Co., Inc.,

245 F. 2d 594 (5th Cir. 1957) 6

NLRB v. J. H. Rutter Rex Manufacturing

Company, Inc., 305 F. 2d 242 (5th Cir. 1962). 13

Phelps Dodge Corporation v. NLRB, 313 U.S. 177

(1941) 19

Regal Knitwear Company v. NLRB, 324 U.S. 9

(1945) 10

II

CITATIONS

Cases . Page

Republic Steel Corp. v. NLRB, 114 F. 2d 820

(3rd Cir. 1940) - ; 9

Wallace Corp. v. NLRB, 159 F. 2d 952

(4th Cir. 1947) 19

Waterman S. S. Corp. v. NLRB, 119 F. 2d 760

ae Sa Oeee) ..

STATUTES

National Labor Relations Act, as amended (61

Stat. 136, 73 Stat. 519, 29 USC § 151 et seq.)

UH iin fo) Oo LL 7

29 USC § 158 (a) (5) ES ARR el 2

ae eee So. 3, B-1

oe ee ee ic 5

29 USC § 160 (f) _. ae ” . §

UNITED STATES JUDICIAi. CODE:

28 USC § 1264 (1) 2

ADMINISTRATIVE PROCEDURE ACT:

5 USC § 1005 (a) (1964 ed.) 19

(5 USC § 555 — 966ed.) 19

OTHER

NLRF. Rules and Regulations:

29 CFR § 101.13 ___. oeaetaets ae 18

29 CFR § 101.15 ; 18

ooo, 'ttt

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

No.

J. H. RUTTER REX MANUFACTURING

COMPANY, INC.,

Cross-Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD

and

AMALGAMATED CLOTHING WORKERS OF

AMERICA, AFL-CIO,

Respondents.

CROSS-PETITION FOR A CROSS-WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

Cross-petitioner »rays that a cross-writ .of certiorari

issue to review a judgment of the United States Court of

Appeals for the Fifth Circuit and in support of its peti-

tior. shows:

I. OPINIONS BELOW AND JURISDICTION

1. The opinion of the United States Court of Appeals

for the Fifth Circuit appears in 399 F. 2d 356 (5th Cir.

1968), and is printed in Appendix A of the petition fur

2

certiorari filed by the Board. The decision of the National

Labor Relations Board, which was enforced in part by

the Fifth Circuit Court of Appeals, appears in Appendix

D of the petition for certiorari filed by the Board.

2. The jurisdiction of this court is invoked under 28

U. S. Code § 1254 (1). The opinion of the Court of Ap-

peals was entered on July 23, 1968, and the petition for

rehearing en banc filed by the Board was denied on Oc-

tober 1, 1968. A copy of the order denying the petition

for rehearing is printed in Appendix C of the Board’s pe-

tition. Copies of the Court’s orders extending the time

for filing this cross-petition are attached hereto as AP-

PENDIX A,

Il. QUESTIONS FOR REVIEW

r-S 6 Stes eh SH oO mS he Nations! 1 Gre Be.

lations Board in an 8(a) (5) (29 USC § 158 (a) (5)) case

requiring a company to reinstate strikers immediately

upon receipt of their applications for reinstatement, and

requiring payment of backpay beginning five days after

the receipt of each application, be interpreted to require

payment of backpay on the basis of individual applications

received prior to the date of the order, where the order

does not refer to applications which preceded the order

and issues on a record which does not fix the dates upon

which applications were received?

2. Where a certified union submits a blanket applica-

tion for reinstatement on behalf of a list of striking em-

ployees at the termination of an unfair labor practice

strike, some of whom are available to return to work and

some of whom are not, does the union’s agreement with

- -«

3

the corapany that the strikers who desire to return to

their jobs will demonstate their availability by coming

in person to the company’s personnel office place upon the

National Labor Relations Board, in a backpay hearing,

the burden of proving the availability of those strikers

for whom the union applied for reinstatement who do not

comply with the agreement?

8. Does the National Labor Relations Board have an

obligation to cooperate with an employer against whom

it has issued a reinstatement and backpay order in inter-

preting and implementing the order?

Ill. CONSTITUTIONAL PROVISIONS

AND STATUTES INVOKED

The case involves the interpretation and application of

an order issued by the ivational Labor Relations Board

under 29 USC § 160 (c), printed as APPENDIX B, and

whether the manner in which the order was enforced by

the Court of Appeals violates the minimum requirements

of procedural due process.

IV. STATEMENT OF THE CASE

In April of 1954, the Amalgamated Clothing Workers

of America called a strike at cross-petitioner’s New Or-

leans piant. The strike terminated in April of 1955. In

March of 1955, while the strike was still in progr2ss, the

National Labor Relations Board conducted a hear ‘ng on

a refusal to bargain charge filed by the union. The hear-

ing took place during the strike and the sole issue was

whether cross-petitioner had illegally refused to bargain

with the union. No reinstatement problems had yet arisen,

and there was no evidence indicating that applications for

4

reinstatement had been submitted by or on behalf of any

of the strikers. On February 13, 1956, the Board issued

its order directing that cross-petitioner “upon applica-

tion, offer immediate and full reinstatement to their for-

mer or substantially equivalent position to all those em-

ployees who went on strike on April 21, 1954”. The order,

copy of which is printed as APPENDIX C, further re-

quired the payment of backpay beginning five days after

the date of each application, if the applicant was not by

that day reinstated. All of the applications upon which

the Board has predicated backpay awards in this case

were submitted prior to the date of the Board order.

The Beard’s order was enforced by the Court of Ap-

peals for the Fifth Circuit in June of 1957. On Novem-

ber 7, 1957, cross-petitioner’s counsel advised the Board

(R 957):

y- whee =e “Rye cing! es oe ey) ix. HREOC SN Pa e@eRr«a Hae.

visions of the decree, and is presently engaged

in bargaining with the representatives of the

Amalgamated Clothing Workers of America. If

any instance of a failure to fully comply with

the order is brought to your attention, we would

appreciate your contacting us promptly so that

such corrective measures as may be necessary

can be immediately taken in order to assure full

compliance with the decree.”

The Board did not respond to this letter. Although it is

the Board’s practice to suggest voluntary compliance with

its orders, particularly in matters involving backpay, the

Board made no effort to obtain voluntary compliance in

this case, made no effort to cocperate with cross peti-

tioner in the complex problems involved in implementing

the order as enforced by the Court of Appeals, and de-

~*

5

layed until November 4, 1961 the filing of a backpay

specification, asserting a claim which by that time

amounted to $342,000. The Board’s decision in the back-

pay hearing was presenied to the Court of Appeals on

petition for review filed pursuant to 29 USC § 160(f)

and a cross-petition for enforcement under 29 USC §

160 (e).

V. ARGUMENT OF THE FIRST QUESTION

The hearing on the refusal to bargain charge was held

while the strike was still in progress. The order which

issued on February 13, 1956 was fashioned to remedy

the vielation reflected in the record before the Trial Ex-

aminer, and since at the time of the hearing the strike

was still in progress, the remedial urder was framed to

remedy a pares of Section 8(a) (5) of the Act by re-

guiring croggene c ioner trabgrea ain with the union and

to ent oe imme iately upon ES tion those strikers

who applied for reinstatement when the strike ended. In

framing its order, the Board required that reinstatement

follow immediately upon application in order to avoid

the backpay penalty. The order did not by its terms pro-

vide for the reinstatement of strikers who applied for

reinstatement before the order issued, although it might

have done so if that is what the Board intended. On Feb-

ruary 13, 1956, when the Board order issued, it was in-

herently impossible to reinstate immediately upon appli-

cation the strikers who had applied for reinstatement as

early as April of 1955. It must be assumed that the order

was one with which the cross-petitioner could comply.

Unless the wording of the order contemplated applica-

tions after the date.of the order, it was impossible to

comply with the order on the date of its issuance. The

6

order should be construed as one which could be obeyed

by immediately reinstating anyone who applied.

All of the applications upon which the backpay order

is premised were submitted after the strike ended and

before the date of the order (See application dates in

backpay specification, R. vol. II, pages 754-902). The

Board must concede that its order does not, by its ver-

biage, state an obligation to reinstate on the basis of

applications which preceded the order, and so the Board

says in its Supplemental Decision and Order (R 102):

“The Board’s order is in its usual form and is

clearly drawn and intended to include a re-

quirement for reinstatement and backpay for

those employees who might already have made

proper application for reinstatement at the time

of the isswance of the order .. .”. (emphasis

supplied)

The Board relies on what it says was intended by the

order rather on the language of the order.

The determination that the strike was an unfair labor

practice strike was not made until the Board decision

and order of February of 1956. In enforcing the order

the Court of Appeals stated:

“The final order declaring it to be an unfair

labor practice strike cannot be obtained unless

the hearing on the main issues can end. Until

that is done, there is no basis for an order of

reinstatement, and nothing upon which, as a

foundation for a claim for reinstatement with

possible restitution, the employee could make

a demand fer reinstatement.” NLRB v. J. H.

Rutter Rex Mfg. Co., Inc., 245 F.2d 594, 598

(5th Cir. 1957). (emphasis supplied).

7

The Court of Appeals could not have said more clearly

that the Board order of February 13, 1956 was a condi-

tion precedent to the submission of an effective applica-

tion for reinstatement. If the Court in enforcing the

order asserted that the order was a condition precedent

to the submission of an effective application for rein-

statement, and if that order required reinstatement im-

mediately upon application, without specific reference to

applications received prior to the order, backpay liability

should not be imposed upon cross-petitioner on the basis

of applications which were submitted before the order

issued simply because the Board intended what it did not

provide for in the order.

The Board asserts that the order is “in its usual form”

but in this case has attempted to apply that form in an

unusual manner which finds no support in any of the

authorities heretofore cited by the Board. The Trial Ex-

aminer and thé Bow#® “interpreted” the erder to fequiF

the payment of backpay from the dates of applications

which preceded the order, which were not fixed by the

order, and which could not be determined by reference

to the evidence in the record from which the order ema-

nated. The Board has cited no case in any of its briefs

in which retroactive effect has been given to a reinstate-

_ment order except in cases arising under 29 USC § 158

(a) (3) involving discrimination occurring on a date fixed

by testimony before the Board, or in refusai to oargain

cases in which the record at the hearing before the Board

reflects. an application for reinstatement from the striker

or strikers on a specific date. In such cases the Board

decision provides for backpay to run from a date certain

fixed by the evidence in the hearing in which the-order

issues. An. employer: faced. with an order -which by §its

SRO AOE NTE et

Hieoiieiaiala tere

be

8

terms provides for the running of backpay from a spe-

cific date before the date of the order has its obligation

clearly defined. In the present case the order issued on a

record made during the continuance of the strike, before

any applications for reinstatement were submitted, and

obviously concerned itself with a reinstatement problem

which would arise in the future when the strike ended.

For this reason the order was couched in languaze which

required cross-petitioner to do something in the future,

i. e., reinstate immediately upon application those strikers

who applied for reinstatement. The Trial Examiner’s in-

termediate report and the Board order, 115 NLRB 388,

were clearly concerned with defining cross-petitioner’s

obligation at such time in the future as applications for

reinstatement might be submitted.

The Board order contained only a statement of the

- right of reinstatement, naming no names and fixing no

dates, and stated in language which, if the words ‘of the

order are given their customary literal meaning, defines

a future obligation, namely, the obligation to immediately

reinstate upon receipt of an application. In enforcing the

order the Court of Appeals said that until the Board

found that the strike was an unfair labor strike, which

it did on February 13, 1956, the date on which its rein-

statement order issued, there was “nothing upon which,

as a foundation for a claim for reinstatement with pos-

sible restitution, the employee could make a demand for

reinstatement” (245 F. 2d page 598). The language of

the enforcing judgment of the Circuit Court supports

cross-petitioner’s contention that the Board’s opinion and

order of February 13, 1956 was a sine qua non for the

9

submission of an effective application for reinstatement

under the terms of the order.’

Against the background of an order which by its terms

referred to cuture compliance, end an enforcing judg-

ment by the Court of Appeals which stated that the

Board opinion and order of February 13, 1956 was a

condition precedent to the submission of an effective

application for reinstatement by a striker, cross-peti-

tioner, through its counsel, addressed its letter of No-

vember 7, 1957 (R 957) to the Board. The Board did

not respond to this letter, made no attempt to work out

the details of compliance as its rules contemplate, but

simply permitted the backpay claims to accummulate

until November of 1961 when the backpay specification

was filed. The penalty imposed by the Board in this

ease is perhaps in excess of the penalty for criminal

contempt which may have been imposed if cross-petitioner,

instead of trying to comply with the Board order,*® had

adamantly disobeyed it. The order should be strictly

construed. Cross-petitioner’s liability should not be based

upon an “interpretation” of what the Board “intended”

by its order, but upon a strict construction of the ver-

biage of the order. NLRB v. Express Publishing Com-

1The question raised by cross-petitioner does not concern the

Board’s power to have issued a retroactive order under the circum-

stances of this case, although to have done so would have found no

support in prior Board practice. Rather the question is whether the

Board order by its terms imposed the obligation which the Board

claims to have intended. Similar circumstances were present in

NLRB v. Hecks, Inc., 388 F. 2d 668 (4th Cir., 1967) and in Republic

Steel Corp. v. NLRB, 114 F. 2d 820 (3rd Cir., 1940).

2Quoted on page four, supra.

3The backpay specification appearing at R vol. 2 p. 742 reflects

that all but 70 of the 600 employees on the payroll had been reinstated

or had refused reinstatement at the time the specification was filed.

Furthermore, the Board’s contention that 70 employees had been re-

fused reinstatement without cause did not prove to be correct, for the

Board later found that cross petitioner was justified in not reinstating

many of the strikers who were not reinstated.

10

pany, 312 U. S. 426, 61 S. Ct. 693 (1941); J. I. Case

Company v. NLRB, 321 U. S. 332, 64 S. Ct. 576 (1944) ;

Regal Knitwear Company v. NLRB, 324 U.S. 9, 65 S. Ct.

478 (1945).

As expressed by Justice Stone in Express Publishing

Company, 312 U.S. at 433:

“It is obvious that the order of the Board, which

when judicially confirmed, the courts may be

called on to enforce by contempt proceedings,

must, like the injunction order of a court,

state with reasonable specificity the acts which

the respondent is to do or refrain from doing.”

In NLRB v. Heck’s, Inc., 388 F. 2d 668 (4th Cir. 1967),

the coinpany operated stores at ten locations a 1 the

Board contended that a violation had occurred at one

of the stores not mentioned in tne Board order. The

Board contended that its procedure required the posting

88 QE RE er mE Meche «ere where the violation occurred

but that the cease and desist portion of the order ap-

plied to all stores. The court denied the Board’s petition

to adjudge a respondent in civil contempt of its order

on the ground that the order should be limited to its

specific terms. The language of the court follows (388

F. 2d at 669-670) :

“Our reluctance to be guided by the Board’s

procedure is based, however, upon reasons more

fundamental] than lack of uniform application.

We believe the scope of the decree should be

limited to its specific terms. It should not be

left to implication. Recently we have been re-

minded, “The judicial contempt power is a potent

weapon. When it is founded upon a decree too

vague to be understood, it can be a deadly one.’

11

International Longshoremen’s Ass’n, Local 1291

v. Philadelphia Marine Trade Ass’n, 389 U.S.

64. 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967). ;

Rule 65(d), Fed. R.Civ.P., is applicable in re- f

viewing a judgment enforcing :.n order of the

National Labor Relations Boari. Regal Knit-

wear Co. v. N.L.R.B., 324 U.S. 9, 18, 65 S.Ct. Z

478, 89 L.Ed. 661 (1945). The rule wisely re-

quires that every order granting an injunction

‘* * * shall be specific in terms; shall describe

in reasonable detail, and not by reference to the

complaint or other document, the act or acts

sought to be restrained * * *.’ The Board’s |

orders, no less than a court’s should conform to

;

f

the rule. N.U.R.B. v. Express Publishing Co., ;

312 U.S.. 426, 433, 61 S.Ct. 693, 85 L.Ed. 930

(1941).

The respondents, having consented to the de-

cree, do not complain that it does not technically

comply with Rule 65(d). Nevertheless the rule’s j

salutory provisions furnish guidance in constru-

ing the decree. The trial examiner’s observation ,

that the proceedings were limited to the 16th

Street store, and the Board’s direction to post

notices only at the 16th Street store, lead us

to construe the decree to apply to the employer’s

conduct only at that store. The admonition con-

tained in Regal Knitwear Co. v. N.L.R.B., 324

U.S. 9, 15, 65 S.Ct. 478, 482, 89 L.Ed. 661

(1945), is appropriate:

‘Enforcement orders are issued to effectuate ;

the purposes of the Act, not for the entrap- '

ment of parties, and courts no less than

parties desire to avoid unwitting contempts

as well as to punish deliberate ones.’ ” |

The Board order here did not clearly require the

cross-petitioner to do an impossible thing, i.e., reinstate

12

“immediately” strikers who had applied as much as a

year before the order issued. The Board’s failure to

clarify what it belatedly claizas to have intended by

the order until the backpay specification was filed in

November of 1961, by which time cross-petitioner was

faced with accummulated claims amounting to $342,000,

plus interest, constitutes a denial of procedural due pro-

cess.

The retroactive effect given to the Board order in

this case is unprecedented. In APPENDIX D, which

is an excerpt from cross-petitioner’s supplemental brief

in the Court of Appeals, the principal authorities relied

upon by the Board are analyzed to demonstrate that

they do not support the retroactive interpretation which

the Board says it intended in this case. In reply the

Board finally asserted that Florence Printing Company

v. NLRB, 333 F. 2d 289 (4th Cir., 1964), a backpay

decision enforced in 376 F. 2d 216 (4th Cir., 1967)

(certiorari denied, 389 U.S. 840 (1968), “applies ex-

actly such a retroactive effect under the same circum-

stances as existed here’. After complete analysis and

research, the Board cites the Florence Printing Company

case as the strongest support for its interpretation of

the backpay order against cross-petitioner. But Florence

Printing Company does not support the Board’s con-

tention. The zase does not indicate that the Board or

the enforcing court interpreted the Board order as

requiring the payment of backpay from unspecified dates

of applications for reinstatement which preceded the

order of the Board. On the contrary, the Board and the

company stipulated the dates from which backpay was

to be computed, and stipulated the amounts of backpay

due to each claimant subject to certain adjustments not

13

relevant here.’ The need for the stipulation is an apt

illustration of the point urged by cross-petitioner.

A case in which the Board has been guilty of inordinate

delay® is aot one in which to interpret a Board order in

an unprecedented manner and contrary to the words of

the order to support the backpay awards enforced by the

Court of Appeals.

VI. ARGUMENT OF THE SECOND QUESTION

Cross-petitioner received notice of the terminatien of

the strike by the union’s letter of April 5, 1955, which

enclosed a list of strikers who allegedly wished to return

to their jobs (R Vol. 10, pp. 160-163). This letter re-

quested that the union be informed “. . . when and where

these employees should return to work”. The union wrote

a similar letter on Apri! 8, 1955, closing with the same

request (R Vol. 10, pp. 164-165). Cross-petitioner’s reply

to these letters was mailed on April 11, 1955, suggest-

ing that those strikers desiring to return to work come

to cross-petitioner’s personnel office at the rate of not

more than 20 a day.

The union submitted additional names on April 22

and May 13, 1955, and in each covering letter agreed

that “We will have these individuals report to your

personnel office as per your instructions of April 11,

1955” (R. Vol. 10, pp. 168-169, 172).

‘The stipulation of the parties in Florence Printing Company

appears at 158 NLRB 775. There is no indication in any of the

opinions of the Board or of the Court of Appeals for the Fourth

Circuit that the contention raised by cross-petitioner regarding the

prospective nature of tne Board’s order was made by the company

or considered by the Board or the Court.

SNLRB v. J. H. Rutter Rex Manufacturing Company, Inc., 305 F.

2d 242, 244(5th Cir., 1962); J. H. Rutter Rex Manufacturing Company

v. NLRB, 399 F. 2d 356, 363 (5th Cir. 1968).

ee aaa |

CB? wo Wd

14

Implementing its agreement to have the strikers make

personal application at the plant, the union prepared

and gave to the strikers form letters of application ad-

dressed to cross-petitioner. These letters bore the signa-

ture of a national representative of the union and pro-

vided space for the striker to sign and a space to be

filled in with the “Application Date” (R Vol. 10, p. 173).

The Trial Examiner, affirmed by the Board, found:

“The Union, in compliance with the Company’s

request to send the employees in at the rate of

20 a day, notified the employees to go to the

plant at intervals. A number of employees testi-

fied that they did not attempt to make a personal

application for reinstatement until they were

notified by the Union to do so. The Examiner

finds that the experience of these employees

is typical of that of the strikers as a whole who

made personal applications for reinstatement

shortly after the strike ended.” (R. 174-175)

Cross-petitioner contends that the union’s agreement to

have the strikers who desired to return to work show

their availability by making personal application placed

upon the Board’s General Counsel the burden of proving

that a claimant who did not come to the personne! office

was available to return to work in order to establish a

right to reinstatement.

In the context of this case, proof of “availabinty” for

work required evidence of the strikers’ compliance with

the union’s agreement requiring p2rsonal application, or

for those who did not comply with the agreement, evidence

of physical readiness and a serious intention or desire

to return to work. re

15

Cross-petitioner does not contend that the blanket ap-

plications submitted by the union were legally ineffective.

But when the union agreed to have the strikers report

in person to the personnel office, cross-petitioner was

led to expect that the union would do what it agreed to

do and was induced to believe that the available strikers

would demonstrate their availability by coming to the

plant. Those strikers who did not come in were con-

sidered as unavailable or as not intending to return to

their jobs. In these circumstances, General Counsel!

should have been required to prove the claimants’ avail-

ability before the Board found that an obligation to

reinstate had been created.

General Counsel relied solely upon the blanket appli-

cations and offered no proof of availability. The Board

found this sufficient to support a prima facie obligation

to reinstate the strikers whose names were submitted by

the union (R 178-180) although the Board conceded, as it

held in Efco Mfg., Inc., 108 NLRB 245, 38 LRRM 1517,

1518 (1964), that a union may “. . . agree to modify an

earlier unconditional group request so as to require in-

dividual applications”.

Having conceded this point, the Board nevertheless dis-

missed the contention that the union had modified the

blanket applications by agreeing that those strikers in-

tending to return to their jobs would deinonstrate their

availability. The Board, which believed that it had no

obligation to cooperate with cross-petitioner, also felt

that the union “. . . was under no legal obligation to

facilitate the company’s reinstatement task .. .” (R 179).

The Court of Appeals ruled simply that the Union letters

were “effective notice’ and the company should have

16

“promptly reinstated” the strikers. J. H. Rutter Rex

Manufacturing Company v. NLRB, 399 F. 2d 356, 361

(5th Cir. 1968). This does not answer cross-petitioners

argument because no contention is made that the union

letters were not initially legal applications.*

The record demonstrates the difficulty inherent in the

company’s rebuilding and reinstatement task after the

year long strike. Availability of personnel was a key

factor in the rebuilding program. The union acknowl-

edged this by agreeing to an orderly application pro-

cedure and induced the company to believe that available

personnel would present themselves at the plant. These

circumstances required the union and the applicants to

take this further step. Compare NLRB v. Rice Lake

Creamery Company, 365 F. 2d 888, 896 (D. C. Cir. 1966).

General Counsel should not have been permitted to rely

solely upon the union’s blanket application without evi-

dence of the availability of the claimants to establish

an obligation to reinstate.

VII. ARGUMENT OF THE THIRD QUESTION

The Court of Appeals has enforced in part and denied

enforcement in part of the Board’s supplemental order

of June 3, 1966. The Court’s language is as follows:

“Considering that the employer was in the wrong

in 1955 and that the Board was guilty of inordi-

6NLRB v. Brown € Root, Inc., 203 F. 2d 139 (8th Cir. 1953), cited

by the Board (R 179-189) and by the Court of Appeals (399 F. 2d at

p. 361) is distinguishable, factually and legally. The cuntention in

Brown & Root was that the union’s blanket application was ineffective

The Court disagreed and held that Brown & Root could not insist upon

personal applications (203 F. 2d at p. 139). The distinction between

the burden of proof problem as it relates to this case and to Brown &

Root is that proof of an effective application in this case required

evidence of the application and availability because the union agreed

that applicants would demonstate their availability.

LL ei

17

nate delay by doing nothing before March 22,

1960, we are of the opinion that backpay awards

for this five-year period satisfy the purposes of

the law, with no injustice to the company. We

are likewise convinced that no backpay award

for any period subsequent to July 1, 1959 should

now or hereafter be enforced.” (399 F. 2d at

365).

Throughout this litigation cross-petitioner has contended

that it was prejudiced, not only by the Board’s delay in

filing the specification, but also by the Board’s failure

to discharge its duty to cooperate with cross-petitioner in

implementing the order. The Board did not respond to

cross-petitioner’s letter of November 7, 1957 (R. 957).

The Board, with benefit of hindsight, second-guessed what

cross-petitioner had done in resolving the complex prob-

lems resulting from the applications for reinstatement.

The Board’s appraisal of its obligations in the compliance

phase of the case was stated as follows:

“Moreover, the Board was under no obligation

to take affirmative steps to call to movant’s at-

tention the particulars in which it did not believe

movant had complied with the reinstatement

obligation imposed by this Court’s decree. The

decree ordered movant to reinstate ‘all those

employees who went on strike on April 21, 1954,

or thereafter * * *.’ Movant could have been

under no misapprehension as to what the aecree

required. Having chosen not to obey the decree

in haec verba, movant may not now avoid the

consequences of its conduct by alleging that the

Board was under an affirmative duty, prior to

the issuance of a backpay specification, to issue a

series of advisory judgments setting out its view

18

of the Company’s reinstatement obligation as to

individual strikers.’’’

The Board has taken the position that it was under no

affirmative duty to advise cross-petitioner regarding its

obligations under the order. The Board’s enforcement

officer testified that customarily an attempt is made

to settle backpay questions prior to the filing of a back-

pay specification, but that in this case, despite cross-

petitioner’s letter of November 7, 1957 seeking the Board’s

cooperation, no effort to settle the backpay issues was

made before the specification was filed (R 1019-1022).

The Board’s rules contain the following:

“Sec. 101.13. Compliance with Board decision

and order. Shortly after the Board’s decision

and order is issued, the director of the regional

office in which the charge was filed communi-

cates with the respondent for the purpose of

obtaining compliance. Conferences may be held

to arrange the details necessary for compliance

with the terms of the order.” (29 CFR § 101.13)

“Sec. 101-15. Compliance with court decree.

After a Board order has been enforced by a

court decree, the Board has the responsibility

of obtaining compliance with that decree. In-

vestigation is made by the regional office of the

respondent’s efforts to comply.” (29 CFR

§ 101.15)

’This is an excerpt from page 30 of the Board’s brief in NLRB v.

J. H. Rutter Rex Manufacturing Company, Inc., 305 F. 2d 242 (5th

Cir., 1962). At this stage of the case it was the Buard position that

there could be no misapprehension about what its order required, and

that it was cross-petitioner’s obligation to obey the decree in haec verba

or literally. In the present state of the case the Board’s position has

changed to a contention that cross-petitioner is being “too literal” in

objecting to a retroactive interpretation of the order. (See transcript of

argument before Court of Appeals, R. Vol. 11, p. 62-63, 66).

en

19

In this case the Board did nothing until March 22, 1960,

when the Board, admitting that it was “in the position

of having delayed action in this matter over a period of

several years”, requested cross-petitioner’s cooperation in

developing information which the Board considered perti-

nent to the compliance question (R 958). The Board’s

inaction was in violation of its rules and of the require-

ment of the Administrative Procedure Act that every

agency proceed with reasonable dispatch to conclude the

matters before it. This Court stated in Phelps Dodge

Corporation v. NLRB, 313 U.S. 177, 61 S. Ct. 845, 852

(1941) :

“The power with which Congress vested the

Board implies responsibility — responsibility of

exercising its judgment in employing statutory

powers.”

Citing Phelps Dodge Corporation, the Court of Appeals

for the Fourth Circuit, in Wallace Corp. v. NLRB, 159

F. 2d 952 (4th Cir. 1947), comments on the manner in

which the dei2!ls of compliance must be worked out fol-

lowing a Board order:

“Such general orders are analogous to inter-

locutory judgments of courts fixing liability

put leaving for future determination questions

as to amounts of liability; and our decrees af-

firming or enforcing them are analogous to our

affirmance of interlocutory judgments on ap-

peal. After the general order of the Board

for backpay and reinstatement is affirmed or

ordered enforced by us, the Board must work

out the details of reinstatement and of the

amounts to be paid as backpay under the general

$5 USCA § 1005 (a) (carried forward in material respects in the

1966 amendments, 80 Stat. 378, 5 USC § 555).

artes earache i Laie eine ca EE elie Sav ate hats en a ie oa

SP LRRD AIT SE a ey ITE RE ORAS ROY Fe

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ARETE LEI PEON LEM LE OR

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20

previsions of the order. This can ordinarily

be done by negotiation; but, if controversy

arises, the facts must be found by the Board,

the body to which Congress has committed the

administrative process. Phelps Dodge Corp. v.

NLRB, 313 US 177.” (159 F. 2d at p. 954)

The Board’s failure to discharge promptly its affirmative

duty to work out the details of compliance compounded

the difficulty which the retroactive interpretation of the

order imposed upon cross-petitioner. The Board had an

affirmative obligation to cooperate with cross-petitioner

in the compliance phase of the case. The Board breached

its obligation and cross-petitioner should not bear the

weight of the Board’s fault.®

Vill. REASONS FOR GRANTING CROSS-WRIT

The Court of Appeals, to the extent that it enforced

the Board order, has departed from the requirement of

NLEB v. Express Publishing Company, supra, that the

order state with reasonable specificity what cross-peti-

tioner was required to do. Furthermore, the extent, if

any, to which the Board is required to go in cooperating

with a respondent in resolving the compliance problems

raised by the order has not heretofore been clearly de-

fined by this court. The requirements of procedural

due process have not been met when the Board, after the

fact, interprets its order retroactively and compounds

the impact of that interpretation by its delay and its

failure to cooperate in implementing the order.

9Cf. NLRB v. Bird Machinery Co., 174 F. 2d 404 (ist Cir. 1949);

Dunn v. Retail Clerks International Ass’n, 307 F. 24 285 (6th Cir.

1962); Waterman 8. 8. Corp. v. NLRB, 119 F. 2d 760 (5th Cir. 1941).

21

IX. CONCLUSION

It is respectfully submitted that this cross-petition

should be granted and the decree of the Court of Appeals,

to the extent that it granted enforcement of the Board

order, should be reversed.

Respectfully submitted

¢a/ Peter H. Bear

806 National Bank of Commerce Bldg.

New Orleans, Louisiana 70112

Counsel for Cross-Petitioner,

J. H. Rutter Rex Manufacturing

Company, Inc.

REELS LOL ELI AT ME IPT ET RO ES I ONE SERN eS

Of Counsel:

HENRY J. READ

DANIEL LUND

MONTGOMERY, BARNETT, BROWN & READ {

806 National Bank of Commerce Building

New Orleans, Louisiana 70112

Ll hla co Le ERAS ome Ba

22

CERTIFICATE

It is certified that three copies of the foregoing cross-

petition for a cross-writ of certiorari have been served

by mail, by depositing the same in a United States mail

box, first class airmail postage prepaid, addressed as

follows:

Solicitor General

Department of Justice

Washington, D. C. 20530

National Labor Relations Board

1717 Pennsylvania Avenue

Washington, D. C. 20570

Jackson & Hess —

Attention Mr. Ralph N. Jackson

1411 Decatur Street

New Orleans, Louisiana 70116

Mr. Jacob Scheinkman

15 Union Square West

New York, New Yerk 10003

Mr. James J. Graham

46 Washington Mews

New York, New York 10003

New Orleans, Louisiana, January 14 Niner , 1969.

/s/ Peter R Seam

PETER H. BEER

Counsel for Cross-Petitioner

A-1

APPENDIX A

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968 }

No.

J. H. RUTTER REX

MANUFACTURING COMPANY, INC.,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD

LAER EL LN EI I as

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner (s).

It is Ordered that the time for filing a petition for

writ of certiorari in the above-entitied cause be, and the

same is hereby, extended to and including January 9,

1969.

/s/ Wm. J. Brennan, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 19

day of December, 1968. 1

a

are ee aan BE Salton a eee 8

A-2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1968

J. H. RUTTER REX

MANUFACTURING COMPANY, INC.,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner (s).

It is Ordered that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

Same is hereby, further extended to and including Janu-

ary 16, 1969.

/s/ Wm. J. Brennan, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 26

day cf December, 1968

B-1

APPENDIX B

Title 28, United States Code, Section 160(c).

Reduction of testimony to writing;

findings and orders of Board

(ec) The testimony taken by such member, agent, or

agency or the Board shall be xveduced to writing and

filed with the Board. Thereafter, in its discretion, the

Board upon notice may take further testimony or hear

argument. If upon the preponderance of the testimony

taken the Board shall be of the opinion that any person

named in the complaint has engaged in or is engaging

in any such unfair labor practice, then the Board shall

state its findings of fact and shall issue and cause to

be served on such person an order requiring such per-

son to cease and desist from such unfair labor practice,

and to take such affirmative action including rein-

statement of employees with or without back pay, as

will effectuate the policies of this subchapter: Provided,

That where an order directs reinstatement of an em-

ployee, back pay may be required of the employer or

labor organization, as the case may be, responsible for

the discrimination suffered by him: And provided further,

That in determining whether a complaint shall issue

alleging a violation of subsection (a) (1) or (a) (2)

of section 158 of this title, and in deciding such cases,

the same regulations and rules of decision shall apply

irrespective of whether or not the labor organization af-

fected is affiliated with a labor organization national

or international in scope. Such order may further re-

quire such person to make reports from time to time

showing the extent to which it has complied with the

OT A RO eA

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3

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BY

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B-2

order. If upon the preponderance of the testimony taken

the Board shall not be of the opinion that the person

named in the complaint has engaged in or is engaging

in any such unfair labor practice, then the Board shall

State its findings of fact and shall issue an order dis-

missing the said complaint. No order of the Board

shail require the reinstatement of any individual as an

employee who has been suspended or discharged, or the

payment to him of any back pay, if such individual was

Suspended or discharged for cause. In case the evidence

is presented before a member of the Board, or before

an examiner or examiners thereof, such member, or such

examiner or examiners as the cas2 may be, shall issue

and cause to be served on the parties to the proceeding

a proposed report, together with a recommended order,

which shall be filed with the Board, and if no exceptions

are filed within twenty days after service thereof upon

such parties, or within such further period as the Board

may authorize, such recommended order shali become

the order cf the Board and become effective as therein

prescribed.

C-1

APPENDIX C

National Labor Relation Board Order of February

13, 1956, 115 NLRB 388.

ORDER

Upon the entire record in these cases, and pursuant

to Section 10 (c) of the National Labor Relations Act,

as amended, the National Labor Relations Board hereby

orders that the Respondent, J. H. Rutter-Rex Manu-

facturing Company, Inc., New Orlears and Franklinton,

Louisiana, its officers, agents, successors, and assigns,

shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with Amaiga-

mated Clothing Workers of America, AFL-CIO, as the

exclusive representative of all its employees in the ap-

propriate unit with respect to rates of pay, wages, hours

of employment, and other terrns and conditions of em-

ployment.

(5) Threatening to refuse to bargain with the above-

mentioned Union or to close the plants or to discharge

employees for striking, soliciting strikers to return to

work, inquiring of strikers in an unlawful manner con-

cerning the Union’s activities, promising benefits, or uni-

laterally granting benefits without consulting the Union.

(c) In any other manner interfering with, restrain-

ing, or coercing its emplovees in the exercise of the right

to self-organization, to form ‘labor organizations, to join

or assist. Amalgamated Clothing Workers of America,

as aha alias

8 PESTER Te

C-2

AFL-CIO, or any other labor organization, to bargain

collective’y through representatives of their own choosing,

and to engage in other concerted activities for the pur-

pose of collective bargaining or other mutual aid or

protection, or to refrain from any or ali such activities,

except to the extent that such right may be affected by

an agreement requiring membership in a labor organiza-

tion as a condition of employment, as authorized in Sec-

tion 8 (a) (8) of the Act.

2. Take the following affirmative action which the

Board finds will effectuate the policies of the Act:

(a) Upon request, bargain collectively with Amalga-

mated Clothing Workers of America, AFL-CIO, as the

exclusive representative of the employees in the appropri-

ate unit, and embody in a signed agreement any under-

standing reached.

(b) Upon application, offer immediate and full re-

instatement to their former or substantially equivalent

positions to all those employees who went on strike on

April 21, 1954, or thereafter, without prejudice to their

seniority or other rights and privileges, dismissing if

necessary all persons hired on or after that date, and

make such applicants whole for any loss of pay suffered

by reason of the Respondent’s refusal, if any, to reinstate

them, in the manner set forth in the section of the In-

termediate Report entitled “The Remedy.”®

5We do not adopt the Trial Examiner’s modification of our conven-

tional order of affirmative remedial action for unfair labor practice

strikers. See Buffalo Arms, Inc., 110 NLRB 816. We refer particularly

to the Trial Examiner's attempt to provide for hypothetical future

situations, such as the Respondent’s business situation after the

close of the hearing when the. strikers might apply for reinstatement

or the computations of vacation pay. Such questions of compliance

may not in fact arise, but if they should they will be adjusted at the

compliance stage of this case.

C-3

(c) Preserve and make available to the Board or its

agents upon request, for examination and copying, all

payroll records, social-security payment records, time-

cards, personnel records and reports, and all other records

necessary to analyze the amounts of back pay due and

the rights of employment under the terms of this Order.

(d) Post at its plants in New Orleans and Franklin-

ton, Louisiana, copies of the notice attached hereto and

marked “Appendix A.”* Copies of said notice, to be

furnished by the Regional Director for the Fifteenth

Region, shall, after being duly signed by an authorized

representative of the Respondent, be posted by the Re-

spondent immediately upon receipt thereof and main-

tained by it for a period of sixty (60) consecutive days

thereafter in conspicuous places, including all places where

notices to employees are customarily posted. Reasonable

steps shall be taken by the Respondent to insure that

said notices ere not altered, defaced, or covered by any

other material.

(e) Notify the Regional Director for the Fifteenth

Region in writing, within ten (10) days from the date of

this Order, what steps the Respondent has taken to com-

ply herewith.

Members Murdock and Bean took no part in the con-

sideration of the above Decision and Order. ~

6In the event that this Order is enforced by a decree of a

United States Court of Appeals, there shall be substituted for the

words “Pursuant to a Decision and Order” the words “Pursuant to a

Decree of the United States Court of Appeals, Enforcing an Order.”

IL APTA: PAE

D-1

APPENDIX D

Excerpt from Brief of J. H. Rutter Rex Manufactur-

ing Company, Inc., to the United States Court of Appeals

for the Fifth Circuit (Reported at 399 F. 2d 356).

An analysis of the cases cited by the Board shows that

they do not support the Board’s retroactive interpretation

of the order:

In Buffalo Arms, Inc., 110 NLRB 816, there was an

order issued in language similar to the order enforced in

this case, but there is nothing whatsoever in the Board

decision which supports the contention that the order was

implemented retroactively and made to cover applications .

for reinstatement before the date of its issuance. It is

interesting to note that in Buffalo Arms the Trial Ex-

aminer recommended that the Board reserve the right to

modify the reinstatement and backpay provisions of the

order if made necessary by future circumstances. Re-

spondent points out, at page 66 of its original brief, that

the General Counsel could have, but did not, seek to

clarify the order against Rutter Rex to have it provide

for reinstatement of strikers who applied before February

13, 1956, if that is what the Board intended. in the

Buffalo Arms case, enforcement of the order was refused,

Buffalo Arms, Inc. v. NLRB, 224 F. 2d 105 (2nd Cir.

1955), and the order was never implemented at all.

NLRB v. Remington Rand, Inc., 97 F. 2d 195, cited

at page 30 of the Board’s brief, does not appear to pertain

to the issue here under discussion.

Mastro Plastics Corp. v. NLRB, 350 U.S. 270, cited

at page 31 of the Board’s brief, is simply authority for the

Foe NT ey on ee Te

Pe nbY MEN et i Bae oN .

D-2

proposition that unfair labor practice strikers are entitled

to reinstatement, a proposition which is of course not

questioned by respondent here.

NLRB v. Crosby Chemicals, Inc., 188 F. 2d 191, cited

at page 31 of the Board’s brief, involved an order which

specifically based the right to backpay on the employer’s

discriminatory refusal to reinstate certain strikers on a

date referred to in the evidence in the record of the hear-

ing in which the order issued. Enforcement of the Board

order was denied by this court because the strikers’ offer

to return to work was not unconditional.

NLRB v., Fitzgerald Mills Corp., 313 F. 2d 260, is one

of several cases cited at page 32 of the Board’s brief in

Support of the proposition that unfair labor practice

strikers are entitled to reinstatement upon demand, with

backpay if reinstatement is denied, without regard to

whether the applications for reinstatement precede or fol-

low the issuance of the Board order. Respondent submits

that the case simply does not so hold. On the contrary, the

order of the Board enforced in Fitzgerald referred to a

Specific date upon which discrimination occurred and or-

dered the payment of backpay to certain named individ-

uals for losses which resulted from that discrimination.

This case is an excellent illustration of respondent’s argu-

ment, which is that it is not customary to impose backpay

retroactively under a Board order except after a hearing

which determines a specific occasion on which an act of

discrimination occurred, or, if no discrimination is in-

volved, which fixes the date upon which unfair labor

practice strikers unsuccessfully applied for reinstatement,

The Board refers once again to Mastro Plastics Corp.

D-3

v. NLRB, supra, and more specifically footnote 9 in the

Opinion, as support for the retroactive effect of its order.

We have already commented on the inapplicability of

Mastro Plastics Corp. None of the authorities cited in

footnote 9 of the opinion in Mastro is authority in opposi-

tion to the argument made by respondent under Specifica-

tion of Error No. 3.

NLRB v. Waukesha Lime & Stone Co., 343 F. 2d 504,

appears at page 32 of the Board’s brief. In that case the

Trial Examiner found that applications for reinstatement

were submitted on a date fixed in his report, and the Ex-

aminer stated in his opinion that he would recommend

reinstatement and backpay from that date. This case is

an apt demonstration of respondent’s argument. Respond-

ent does not contest the Board’s right to order reinstate-

ment and backpay in an 8(a) (5) case. But no precedent

has been cited for the enforcement of a reinstatement and

backpay order by requiring the payment of backpay from

the date of appleations submitted before the date of the

order unless the record contains evidence which affords

the Board a basis upon which to determine that applica-

tions for reinstatement were actually submitted before the

date of the order. When this occurs, there can be no mis-

understanding of the order since the respondent’s obliga-

tions are clearly defined.

Stewart Die Casting Corp. v. NLRB, 114 F. 2d 849,

cited at page 32 of the Board’s brief, demonstrates the

correctness of respondent’s contention under Specification

of Error No. 3. The Stewart case is a discrimination case,

The employer violated Section 8(a) (3) of the Act by deny-

ing reinstatement on the 24th of June 1937 to 165 named

employees “because of their membership in and activity on

LIP PLONE ONT RADA RET RG at ON nS ’

D-4

behalf of the union”. This case demonstrates the distinc-

tion between the type of order it involved and the type of

order which the Board issued against Rutter Rex.

In footnote 18 at page 32 of its bricf, the Board states

that the company is in error in contending at page 59 of

the company’s brief “that backpay can run retrospective

of the Board’s order only in cases of discrimination

against strikers in violation of 8(a) (3) of the Act”. That

is not a proper statement of respondent’s position. It is

not only in 8(a)(3) cases involving discrimination in

which a backpay order may be retroactively applied, but

also in other cases “in which the Board order expressly

fixes the date from which backpay will run * * *” (page

59 of respondent’s brief).