# Petition for Writ of Certiorari — J. H. Rutter-Rex Manufacturing Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0458%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1117 ## Text 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 PS ae ARETE LEI PEON LEM LE OR RBI DTS sh ae id, ne 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 ETOP UIT ER ET a eet I A a CONS eee 3 * BY = : Re nee ee ee ee ee ee a ne 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0458%3A1. Public record. Not legal advice.