# Appendix — 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_IA40385607_0444%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 414 U.S. 822 ## Text APPENDIX A IN THE United States Court of Appeals FOR THE FIFTH CIRCUIT No. 71-3260 J. H. RUTTER REX MANUFACTURING COMPANY, INC., Petitioner-Cross Respondent, versus NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board (Louisiana Case) (January 16, 1973) Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges. GOLDBERG, Circuit Judge: This case involves the propriety of a back-pay order issued by the N.L.R.B. against petitioner, J. H. Rutter Rex Manufacturing Company, Inc. The genesis of the back pay claim is the company’s failure to reinstate various employees 2=A 2 J.H. RUTTER REX MFG. CO,, INC. v. N.L.R.B. who had participated in an unfair labor practice strike in 1954. This is the fifth time this case has appeared before this Court and hopefully, it will be the last." The background chronology of this judicial mara- thon is as follows: In April, 1954, there was a strike at petitioner’s plant that lasted for one year. On Feb- ruary 13, 1956, the N.L.R.B. issued a decision holding that the company had violated $$ 8(a)(1) and 8(a)(5) of the N.L.R.A. and that therefore the strike had been an unfair labor practice strike. 115 N.L.R.B. 388. The Board's order of mandatory reinstatement of al] the strikers was enforced by this court. N.L..B. v. J. H. Rutter Rex Mfg. Co., Inc., 5 Cir. 1957, 245 F.2d 594. Included in that order was a requirement that Rutter Rex make whole any striker for lost earnings resulting from the company’s failure to offer reinstatement. See §$ 10(c) of the N.L.R.A., 29 U.S.C. § 160(c). Many of the strikers were denied timely reinstatement and to re- medy this the Board undertook the preparation of a back-pay specification. Four years later, in November, 1961, following a lengthy investigation, the Board issued the first back- pay specification and notice of hearing. The specifica- tion consisted of the back-pay claims of all strikers 1In 1968, the last time this case was here, Judge Coleman re- marked: “After thirteen years let the books be closed on this controversy.” 399 F.2d 356, 365. Four and one-half years later, we can only echo his words. 2The facts surrounding the strike are succinctly set out in N.L.R.B. v. Rutter Rex, 1969, 396 U.S. 258, 259-260, 24 L.Ed.2d 405, 408. The Board proceedings are more fully discussed in ae v. J. H. Rutter Rex. Co., Inc., 5 Cir. 1957, 245 F.2d 4. Ber. J. H. RUTTER REX MFG. CO., INC. v. N.L.R.B. 3 who had been denied reinstatement for any part of the period in question. An attempt by Rutier Rex to have the proceedings permanently enjoined because of the four year delay was denied by this court. N.L.R.B. v. J. H. Rutter Rex, 5 Cir. 1962, 305 F.2d 242. Extensive hearings were then held on the claims in the specification, and in June of 1964 the trial ex- aminer issued his initial findings. Two years later, in June of 1966, the Board adopted most of the trial ex- aminer’s findings and issued its first supplemental de- cision and order of back-pay liability. 158 N.L.R.B. 1414.5 This court, reviewing the Board's initial back-pay order. modified that order by terminating petitioner’s back-pay liability as of July 30, 1959. N.U.R.B. v. J.H. 2utter Rex Mtg. Co., Inc., 5 Cir. 1968, 399 F.2d 356. The primary justification for the modification was that the prolonged delay of the Board in issuing the order prejudiced the company’s ability to defend the claims and that equity therefore required that an appropriate limit be put on the liability. On appeal, the Supreme 3In its order the Board specifically reserved the possibility of further back-pay being ordered for those claimants who had not been offered reinstatement by June, 1961, which was the terminal date for computing liability for the first back-pay specification. “With respect to those employees whose backpay was still accruing, as found by the Trial Examiner in his Supplemental Decision, payment to them of the net amount found to be due and accruing constitutes satisfaction of {the Company’s] obligation only up to June 24, 1961, which is the end of the period covered by the specification.” Id. at 1425. It is the back-pay for the period after June 24, 1961, that is the subject of the appeal sub judice. ar AL Brae LON le ORG SETS SEDATE RI: 4m. 4 J. H. RUTTER REX MFG. CO., INC. v. N.L.R.B. Court reversed this court’s modification and held, in essence, that the claimants should not be penalized for the Board’s delay. N.L.R.B. v. J. H. Rutter Rex Mfg. Co., Inc., 1969, 396 US. 258, 24 L.Ed.2d 405. In April, 1970, this court, on remand from the Supreme Court, issued its judgment enforcing the Board’s orig- inal back-pay order. Following entry of the final order in the above pro- ceedings, which involved the first back-pay order {Rutter Rex I], the Board’s Regional Director began preparation of a second back-pay specification for those claimants whose back-pay claims extended be- yord June, 1961. The second back-pay specification and notice of hearing was issued on November 30, 1970. A hearing on the specification was held in February and March of 1971, and the trio] examiner's decision issued in June, 1971. On November 5, 1971, the Board issued its order granting supplemental back->av to 33 claimants who had not been offered reinstatement un- til after June, 1961. 194 N.L.R.R. No. 3 (1971). Six of the claims extended beyond 1963 and the remaining twenty-seven were for a period cf only two vears or less.* 4The tota! back-ray awareod in the secctnd order was $53 078 plus interest at 6° comme ncir-: Jure 2. 1°64. The sums awarded to individual cinimerts were as follews: Victeria Alor £2.543 TLoeul-e Jackson Sonora Berres (Rochor) 340 (deceased) $1 236 Peris E. Bowles 812) Eurice Johncon 2.772 Marguerite Bo-orier 1,691 Lita Mae Landry Miriom Cheri 530 (Co:ton) 1¢2 Bessie Ceover (Lee) 1591) Dersihv White (Learson) 1,591 Geer-iana Davis L>o-nrd Lewis 386 (Deru'sa) bp Me anh. J. H. RUTTER REX MFG. CO., INC. v. N.L-R.B. 95 On November 17, 1971, Rutter Re: filed a petition in this court for review of the Board's second supple- mental back-pay order. On December 27, 1971, the Board filed a cross application for enforcement of its order. In seeking to have this court set aside the back- pay order for the post-1961 period, the company raises the following contentions of error: (1) The Board failed to consider its own delay in setting the second back- pay award; (2) the punitive nature of the hearing, par- ticularly the Board's refusal to > rocuce various Board records, denied the company a fair hearing; and (3) the evidence failed to support the awards to many of the claimants. With the exception of the oard’s fzil- ure to produce certain notes relating to the Watford claim, we reject each of the company’s assertions. I. The Board’s Deley As it did in Rutter Kex I, the company is alleging that the Eoard’s delay prejudiced its ability to defend and that, therefore, the delay should somehow allow it to escape its liability to the claimanis. Specifically, the company claims that the Board erred in refusing Lenora Davis 236 Bevsie Montgomery 393 Alice T. Denly (Gabriel) 21 Ade'e Nash (Hall) 1,532 Gloria Dixon 191 Desideria O’'Campo 766 Minnie M. Fernandez 2.185 Yvonne Parnell Ethel Mae Foreman (Charles) 1,367 (Askin) 1.414 Dorcthy K. Reed 962 Edna Francis 1.161 Adele L. Robertson 1,181 Jimmie Lou Green 3.536 Rosalie Thornton 807 Gustavia Haynes (Gale) 4.530 Marjorie Walker 351 Victoria Henderson 2.121 Alma Wallace 52 Rose Marie Hicks 1,778 Fannie M. Watford 9,592 Beatrice White (Lane) 3,007 DY Sinn ee a pny , Om, 6 J. H. RUTTER REX MFG. CO., INC. v. N.L.R.B. to even consider the delay as a factor. In support of its argument, the company continually refers to Jus- tice Marshall's words in Rutter Rex I, in which he Said that the opinion was limited to the “circumstances of this case.” 395 U.S. at 259. Therefore, the company argues, the delay should have been considered anew in the second back-pay proceeding. We reject the com- pany’s argument for two reasons. First, there is no indication that the Board did not, in fact, consider the delay.5 Indeed, there is ample evidence to ihe contrary. The trial examiner ordered the gexera! counsel to explain the delay in issuing the second speciticaiion. Only after the e reasons therefor. First: In the Supplemental Backpay Specification, as amended, hereafter referred to as the Specification, the General Counsel seeks backpay for 32 black female claim- ants and 1 black male claimant covering the period from July 1, 1961,* until each claimant was offered reinstate- ment. With the exception of Louise Jackson, now deceased, and Alice Denley ‘Gabriel’ who presently resides in the State of California and whose claim amounts to $21, all the claimants were produced for testimony by the General Counsel and were cross-examined by Respondent's counsel. Gross backpay claims for all of the claimants, with the exception of Leonard Lewis, were based on a formula which utilized the average quarterly earnings of 15 em- ployees in a control group, excluding those quarters where their earnings were less than $100 or less than 60 percent of the average of their three previous quarter earnings. These quarters were excluded because they were not rep- resentative. The 15 employees in the control group were among those employees in the control group used in the initial backpay proceeding and were still employed by the Respondent throughout the backpay period in the instant case. This group was selected because they were female production workers and had been treated in a similar manner in the initial backpay proceeding for de- termining gross backpay. With respect to the remaining claimant, Leonard Lewis, a different formula was used because of the nature of his work and the limited backpay period. Lewis’ gros= backpay was computed by taking the gross earnings of 7 The Specification in the initial backpay proceeding ended with th. date of June 24. 1961 65-A another employee, Isaac Williams, who performed similar work and who was one of the control group used in com- puting Lewis’ backpay in the initial backpay preceeding, and comparing his earnings in the last quarter set forth in the initial backpay specification with the amount of earnings which Trial Examiner Vose feund Lewis was en- titled te for that quarter and then applying percentage ratio between the earnings of WilHams and Lewis for that quarter with Williams’ earnings for the quarter claimed in the instant cuse, thereby determining Lewis’ gross backpay. The gress curnings of the contre! group employees were computed from July 1, 1861, through the period the claim- ants were ontitlhd te backpay in the instant case. The average quarteriy earrings fer the control group em- ployees were roduced by 6) percent to compensate for nermz! absenteeism of ctiplovees:-such a reduction had been pre- vided for by Trial kxaminer Vose in the initial backpa: proceeding, ave : er : Pie earnings of the control vroup emp] iVees Were Taken from their social security earnings records. The figures ~et forth in the Specification for the quarter 170-72 are projected earnings based on the previou- quarter earnings because secial security. records for that period Were unavailable at the time the Specification was prepared, The interim earning= of the claimants reflected in the Specification were based on information taken from their social security earnings recorcs for those earnings reported to the Social Security Administration and from informa- tien obtained from each claimant fer anv earnings not 66-A reported on their social security e»*nings records. How- ever, the majority of the interim earnings were reflected on the Social Security 4180 Forms, copies of which were furnished to Respondent. The exceptions of those earnings not reported on the social security earnings records, prim- arily related to domestic work and, in one instance in- volving Georgiana Davis (Deruisa), related to earnings derived from part-time work at two different restaurants. Only one employee, Adele Robertson, claimed expenses in connection with her search for work, which expenses were deducted from her interim earnings during that par- ticular quarter. This involved a $33 train fare from New Orleans to Chicago, where she subsequently obtained em- ployment. No claims in the Specification were made for those quarters in which net interim earnings exceeded gross hackpay or for quarters or portions of quarters where the claimant was out of the labor market because of illness, maternity or personal reasons, inadequate search for work, or where backpay was tolled during the quarter. The net interim earnings set out in the Specification were those earnings of the claimants earned during the quarters or portions of the quarters claimed, less expenses incurred in seeking work. The net backpay of each claimant set forth in the Specification was determined by reducing the gross back- pay by the net interim earnings of each claimant for each quarter or portions of each quarter claimed and by adding the quarters together, giving the total amount of backpay due each claimant, not including interest. 67-A Recovery was sought for the net backpay of each claim- ant as well as interest in the amount of 6 percent to be computed on the basis of Jsis Plumbing & Heating Co., 138 NLRB 716. Joseph G. Norton, the compliance officer of the Board who had drawn the Specification, explained the formula, its application, and the computations contained in the Specification. His testimony was clear, forthright, and honest and the Trial Examiner was impressed that he was an ingenuous person, knew his business, and had drawn the Specification with great care and caution. Indeed the Trial Examiner is convinced that the testimony of Norton as well as the Specification reveal that doubts were re- solved in favor of the Respondent. There is no question in the Trial Examiner’s mind that the Specification is fairly drawn. Furthermore, the Respondent, for al! practical purposes, conceded the correctness of the gross backpay figures* contained in the Specification. The Trial Examiner finds that the formula employed by the General Counsel was fair and reasonable and that the General Counsel established a prima facie case for the amounts sought in the Specification. SIn comparing the General Counsel's formula to the Respondent's proposed formula, in support of which no evidence was adduced, counsel for Respondent said, There are some differences to a greater or lesser extent in individual cases but, in general, the overall result was substan- tially the same. .. . We don't intend to waive any contention that the method adopted by the Board as compared to a realistic departmental method, was designed to achieve the highest backpay result and, as best we can determine, it) Was purely coincidental that the figures end up as they have and we emphasize, we did not discover this until after the answer was filed but we think the legal issue is framed and we just don't choose to litigate all these details of actual gross dollar amounts. Not net but gross dollar amounts which are similar in our computation and the Board’s computation because we think that on balance that will achieve little. . . . So, we stick to our contentions about the formula but in saying this we understand you will, in all probability, adopt those gross figures. GS-A Second: The Respondent contends that the supplemental backpay claims should be dismissed because of the un- justified delay of the Board in filing the Supplemental Backpay Specification and because of the General Coun- sel’s refusal to produce evidence, As to the latter conten- tion, the Board has answered it adversely to the Respondent in the Respondent's direct appeal to the Bourd. As to the forme contention, the Supreme Court in the above-cap- tioned Matler-Re case at S95 ULS. 258 has answered it ad- versely to the Respondent. The defense, of course, would not lie, in the cases of claimants Green, Haynes, Hicks, or Lewis, who by reason of alleged strike misconduct were not offered employment until 1970, and claimants Davis and Watford, who also were not offered employment until 1970. While the Supreme Court thought it “deplorable” if the Respondent were hampered in the presentation of its defenses to the Backpay Specification by delay, it held that it was “even more deplorable” that innocent employees had to live for some years on reduced incomes as a com- bined result of the delay and the Respondent's illegal fail- ure to reinstate them. Of the Respondent, the United States Court of Appeals for the Fifth Circuit has said (399 F.2d 356) ‘after re- ferring to the Respondent's confrontations with the Board) : It convinces us, of course, that Rutter-Rex is not, and has not been, a babe in the woods, now about to be victimized fer ignorance or inadvertent in- eptitude in the field of employer-employee rela- tions, as regulated by the National Labor Re- lations Act. The court also said: 69-A The Company, experienced in labor disputes and represented by outstanding counsel, could not have possibly overlooked the plain command of the Court’s decree that employees should be reinstated upon application and made whole for any loss of pay they might have suffered by refusal to rein- state.” The Trial Examiner also found Respondent's counsel to be outstanding and surely capable of comprehending a long time ago Jusuice Marshall's sueyvestion that ‘{ilt may be that the company could have, through the courts, compelled earlier Board action.” Justice Marshall was re- ferring to Section 106e+tAr ot the Administrative Lro- cedure Act. 5 USC. 100dte: (AN C1964, which provides that courts sti “compe! agency action aniawdully with- held or unreasonably delayed.” That learned Counse! did not try this procedure, if the Respondent were npprehensive of delay. seems to indicate that the Responder accepted the delay and pursued a course which was best fitted to its antiunion needs. In any event, any discouragement of its employees’ union activities which was cuused by its withholding backpay payments for such a long period mitigated to the advantage of the Respondent, and its emn- ployees were left to wonder for many years Whether their employer was obligaied to fully comply with the Act and whether the Act really afforded them protection in the pursuit of their union activities. For the em- ployees such a state was “even more deplorable.” In light of the Supreme Court’s decision, with which the Trial Examiner is wholly in accord, the Trial Ex- aminer finds that the Respondent's contention as set out above is without merit. Under the circumstances of this It is the latter part of this decree which the Respondent seeks now to avoid, 70-A case fair play does not demand that the remedial policies of the Act be so lightly treated as to exonerate a convicted wrongdoer of the consequences of his misconduct. As a matter of public concern, it is better that the salutary purposes of the Act be accommodated. The General Counsel’s explanation for the delay is both reasonable and adequate: The Supplemental Backpay Specification in the instant case Was not issued until November 30, 1970, because of the Respondent's refusal at all times to comply with either the Trial Examiner’s Supplemental Decision in Backpay Proceeding or the Board's Supplemental Decision and Order in the initial Backpay Specification proceedings, whereby Respondent was required to pay certain amounts of backpay to the same claimants as in the instant proceeding and whose backpay was still occurring, until after the United States Court of Appeals for the Fifth Circuit issued its Sup- plemental Judgment on April 6, 1970; Respon- dent’s failure or refusal to offer reinstatement to some of these claimants until as late as May 1970; and because of the intervening proceedings before the Board and Courts between the issuance of the initial Backpay Specification and the above-men- tioned Supplemental Judgment of the Court on April 6, 1970. In addition, Respondent refused to make any of its records available for the purpose of computing the gross backpay in the Supple- mental Backpay Specification, thereby causing ad- ditional time for preparation of the Supplemental Backpay Specification, as well as time spent for settlement purposes. Third: In the recent case of Fibreboard Paper Products Corporation, 180 NLRB No. 33, the Board has reviewed 71-A and summarized some of the guiding principles applicable to backpay cases: “Willful loss of earnings is an affirmative defense, and the burden of proof is on the Respondent.” Once the Gen- eral Counsel has shown the gross amount of backpay due, the burden is upon the employer to establish facts to nega- tive or mitigate liability to a given employee.'' And finally, ‘any uncertainty is resolved against the wrongdoer whose conduct made certainty impossible.’ ” “It is accepted by the Board and reviewing courts that a discriminatee is not entitled to back pay to the extent that he fails to remain in the labor market, refuses to accept substantially equivalent employment, fails diligently to search for alternative work, or voluntarily quit alterna- The Board cites N.LRB v. Mooney Aircraft, Ine. 366 F.2d sag (CLA. 5). In such case the court commented at $12: While the General Counsel has the burden of preving unlawful discrimination on the part of the employer, and hence that backpay is due, the employer usually has the burden of estab- lishing affirmative defenses which would mitigate is liability. NUL.R.B. ¥. Miami Coca-Cola Bottling Co. supra i360 F.2d 569): VL.R.B. vy. Broiwn & Root, Inc. S Cir. 1063, 311 F.2d 447. Among these affirmative defenses are the unavailability of jobs because of nondiscriminatory faetors, the employees’ wilful loss of earnings, and employees’ interim earnings to be deducted from the backpay award, * * * * . 7 The cases are unanimous that the Employer must— establish these defenses by a preponderance of the evidence. NLRB. vy. Miami Coca-Cola Bottling Co. supra; N.L.RLB. ve Mastro Plastics Corp. 2 Cir, 1465, 254. F.2d 170; NLRB. ve Brown & Root, Tne. Supra, The Court of Appeals for the Fifth Circuit has suid in the above- captioned Rutter-Rer case OS99 Fitd 3560: ; backpay, as used in’ the applicable statute, includes moneys Which it is reasonably found that an employee would actually have received in the absence of unlawful diserim- ination: that lack of available jobs is an affirmative defense, that the burden of establishing such a detense rests on the employer, and the burden likewise rests with an employer at- tempting to prove a former employee's failure to make reason- able search for other employment. 11 See also United States Air Conditioning Corporation, Al NLRB 1278, 1280, enfd. 386 F.2d 275 (CLA. 6). 72- tive employment without good reason.” N.L.R.B. v. Mastro Plastics Corporation, 354 F.2d 170 (C.A. 2) fn. 3. The test is whether the discriminatee has made reason- able efforts to find new employment which is substantially pages to his ag are American Manufacturing Co., 167 NLRB 520, . In this respect the duty imposed on 8 ninever sana ney minimize his loss of earnings stems from “the healthy poliey of promoting production and em- ployment.” See Southern Sil: Mills, lne.. 116 NLRB 769, 772. But this duty “. . . does not require success; it only requires an honest good faith effort. . . .” NLRB. v. Cestivan Auto Co., 223 F.2d 832, 836 1C.A. 1). In computing the backpay awards the Board endeavors to restore the employee to the status quo he would have enjoyed if he had not been discriminatorily discharged. NLRB v. U.S. Aix Conditioning Co., 336 F.2d 275, 277 (CLA. 6); NLRB. ve Robert Haws Company, 403 F.2d $79 «CA. A diseriminatee who has otherwise made reason- zhle efforts to seek out new employment is not re- quired in each specific quarter t to repeat job ap- plications which from her past efferts she knows ea foredoomed to futility in order to protect er claim of bh: ackpay for that particular quarter. Rather, the entire hackpay p affirma- tive defenses articulated in its answer and its memorandum to the Trial Examiner. |The remainder of the Trial Examiner's Decision has not been reproduced, as it deals solely with the thirty-three individual claims to backpay, which the petitioner believes to be irrelevant to the instant petition. A copy of the full decision appears at page 58 of the appendix printed in the Fifth Cireuit proceeding which appendix will be certified by the Clerk of the United States Court of Appeals for the Fifth Cireuit and lodged with this Court.| 74-A APPENDIX E OPINION SUPREME COURT OF THE UNITED STATES No. 32.—October Term, 1969. On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit. National Labor Relations Board, Petitioner, v. J. H. Rutter-Rex Manufacturing Company, Inc., et al. |December 15, 1969} Mr. Justice Marshall delivered the opinion of the Court. This case presents the question whether, when an em- ployer has improperly failed to reinstate striking employ- ees, and the National Labor Relations Board has after considerable delay ordered backpay for those employees, a court of appeals may, on account of the delay, modify the Board’s order to provide an early cutoff date for backpay. In the circumstances of this case, we hold such a modification to be an unwarranted interference with the Board’s remedial power to implement the policies of the National Labor Relations Act. I The employees in question chose the Amalgamated Clothing Workers of America, AFL-CIO, as their bar- 75-A gaining representative in January 1954. After three bargaining sessions between the union and the company, the employees went out on strike in April 1954. At that point and thereafter the company refused to bargain further with the union representatives. Charges of unfair labor practices, including a refusal to bargain in good faith, were filed against the company. In April 1955, while these charges were pending, the union terminated the strike and applied for the reinstatement of many of the strikers. The company reinstated some of these em- ployees and failed to reinstate others. In February 1956, the Board found that the company had indeed been guilty of an unlawful refusal to bargain. It ordered the company to offer reinstatement to all strikers who applied, and to “make such applicants whole for any loss of pay suffered by reason of the .. . re- fusal, if any, to reinstate them.” J. H. Rutter-Rex Mfg. Co., 115 NLRB 388, 391 (1956). As is apparently the Board’s practice in reinstatement cases involving strikers, the order did not name the individuals cov- ered, but left disputes over the details of reinstatement and backpay to the compliance stage of the proceedings. The Court of Appeals enforced the Board’s order, NLRB v. J. H. Rutter-Rex Mfg. Co., 245 F. 2d 594 (C. A. Sth Cir. 1957), and entered its decree on August 19, 1957. On August 21, 1957, the Board’s regional office sent the company the standard letter describing compliance procedures, which included the following: “When you have fully complied with the af- firmative terms of the decree and there are no violations of its negative provisions, you will be notified that the case has been closed. Until 7T6-A you receive such notice you will know that the case remains open for all purposes as awaiting compliance.” On November 7, 1957, the company wrote to the re- gional office stating that it had complied with “scme of the provisions of the decree,” and asking that the regional office bring “any instance of a failure to comply fully with the order” to the company’s attention. The regional otfice did not answer this letter, and the com- pany heard nothing until Mareh 22, 1960, when a Board compliznce officer notified the company that the case had been assigned to him. and requested payroll and other records necessary to determine the employment and backpay rights of employees. On November 16, 1961, the regional office filed a 428- page backpay specification, alleging that the company owed more than $342,000 to seme 207 strikers who had either not been reinstated within five days after apply- ing, or who had never been reinstated. in violation of the board and court orders. The company applied to the Court of Appeals for a permanent stay of further action in the backpay proceedings, alleging that the Beard had delayed improperly in issuing the specifica- tion. By affidavit, the Board explained that the delay Was caused in part by the great complexity of the task of processing the claims of approximately 660 strikers, and in part by the extremely heavy caseload and severely limited staff which the New Orleans regional office ex- perienced during the late 1950's. The Court of Appeals noted that the delay was regrettable, but denied the requested stay. NLRB v. J. H. Rutter-Rex Mfg. Co, 305 F. 2d 242 +C. A. 5th Cir. 1962). After a lengthy hearing, a Trial Examiner denied backpay to 35 of the 207 claimants, and reduced the amount due to just over $160,000, He determined that each employee should receive net backpay, computed according to the Board's usual formula,’ for the period running from five days after his application for rein- statement until the company made a compiying offer. Where no offer was made, the backpay was to accrue through the last quarter of 1961, the quarter in which the specification was filed. His findings and recom- mendations were adopted with minor modifications by the Board on June 3, 1966. J. H, Retter-Ree Mig. Co. 158 NLRB 1414 (1966). Both the Examiner and the Board considered and rejected the company’s contention that the delay in issuing the specification should bar the backpay award, either in whole er in part. On review, the Court of Appeals found that the Board had been guilty of “inordinate” delay, in violation of $ Gta) of the Administrative Procedure Act, 5 U. 5. C. £ 1005'a', and to the prejudice of the company, which had been “lulled into the belief that the Board was satisfied and that no further relief was to be expected.” J. H. Rutter-Rex Mig. Co. «. NLRB, 399 F 2d 356, 365 iC. A. Sth Cir, 1968). Arguing that the purpose oi backpay awards is to “deter unfair labor practices,” /d., at 364, and believing that a substantial award of back- pay would be sufficient to achieve such deterrent effect, the court modified the Board order to eliminate all backpay accruing after July 1, 1959, thus reducing the awards of some 37 strikers who had not yet received complying offers of reinstatement by that date. We granted certiorari to consider the propriety of this modi- 1 NLRB vy. Seven-lUp Bottling Co., 344 U.S. 344, 345 (1953). 78-A fication,? 393 U. S. 1116 (1969), and we reverse the judgment below. II We start with the broad command of § 10‘c) of the National Labor Relations Act, 29 U. 8S. C. § 160(c), that upon finding that an unfair labor practice has been committed, the Board shall order the violator “to take such affirmative action including reinstatement with or without back pay, as will effectuate the policies” of the Act. This Court has stated that the remedial power of the Board is “a broad discretionary one, subject to limited judicial review.” Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 (1964). The legitimacy of backpay as a remedy for unlawful discharge or unlawful failure to reinstate is beyond dis- pute, Wastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956), and the purpose of the remedy is clear. “A back pay order is a reparation order designed to vindi- cate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice.” Nathanson v. NLRB, 344 U. S. 25, 27 (1952). As with the Board’s other remedies, the power to order backpay “is for the Board to wield, not for the courts.” NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 346 (1953). “When the Board, ‘in the exer- cise of its informed discretion, makes an order of restoration by way of back pay, the order ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be 2 The Court of Appeals also reversed backpay awards as to 10 strikers in their entirety, finding the awards not supported by substantial evidence. 399 F.2d, at 365. Certiorari was not sought as to this modifica- tion of the Board's order. 79-A said to effectuate the policies of the Act.’” Id., at 346-347. Here the Board ordered backpay through December 1961 for employees who had not yet received complying offers of reinstatement by that date. That order clearly falls within the general purpose of making the employees whole, and thus restoring the economic status quo which would have obtained but for the company’s wrongful refusal to reinstate them. The employees encompassed by the order earned less during the relevant quarterly periods than they would have had they been reinstated in their old or substantially equivalent jobs with the company. Thus the Court of Appeals’ modification, cut- ting off the accrual of backpay at the arbitrary date of July 1, 1959, left the employees who had not been reinstated by that date worse off than they would have been but for the company’s wrongful action in refusing reinstatement. Either the company or the employees had to bear the cost of the Board’s delay. The Board placed that cost upon the company, which had wrong- fully failed to reinstate the employees. In an effort to discipline the Board for its delay, the court shifted part of that cost from the wrongdoing company to the inno- cent employees. The Court of Appeals justified the modification as a proper balancing of the interests of the company, which it found was prejudiced in litigating the backpay claims by the Board’s delay, and the interests of the employees in full restitution. It found statutory support for the company’s position in what it took to be the Board’s violation of its duty under the Administrative Procedure Act “to proceed with reasonable dispatch to conclude R0-A any matter presented to it.” 5 U. S.C. § 1005ta) (1964). Thus, the Court of Appeals reasoned, the case fell within the admonition that reviewing courts in labor ‘ases not “rubber-stamp their affirmance of administra- tive decisions that they deem inconsistent with a statu- tory mandate or that frustrate the congressional policy underlying a statute.” NLRB v. Brown, 380 U.S. 278, 291 (1965). : Assuming without deciding that the delay in issuing the specification did violate the Board's duty of prompt action under the Administrative Procedure Act, it does not follow that enforcement of the full backpay remedy was an abuse of the Board's discretion. Wronged em- ployees are at least as much injured by the Board’s delay in collecting their backpay as is the wrongdoing employer. In view of “the economic hardship caused by many years of undeservediy substandard carnings,” lengthy delays “must render the back pay award a wholly inadequate and unsatisfactory remedy” to the employees for the company’s refusal to reinstate them. NLRB ov. Mastro Plastics Corp., 354 F. 2d 170, 180 iC. A, 2d Cir, 1965). This Court has held before that the Board is not required to place the consequences oi its own delay, even if inordinate, upon wronged em- ployees to the benefit of wrongdoing employers. NLRB , Electric Cleaner Co., 315 U.S. 685, 698 (1942); Labor Board v, Katz, 369 U.S. 736, 748 n. 16 (1962). The Court of Appeals reasoned further that the pur- pose of the backpay remedy is deterrence of unfair labor practices, and that the substantial backpay award which it enforced would sufficiently serve that deterrent pur- poses. But the Board could properly conclude that 81-A backpay is not only punishment for an unfair labor prac- tice, but is also a remedy designed to restore, so far as possible, the status. quo which would have obtained but for the wrongful act. Cf. Phelps Dodge Corp. °. NLRB, 313 U.S. 177, 194 (1941). Finally, the Court of Appeals reasoned that the com- pany was “lulled into the belief that the Board was satisfied and that no further action was to be expected.” 399 F. 2d at 363. We need not decide whether this sort of estoppel argument would justify a court in reducing a backpay award, for no estoppel appears in this case. The Board clearly informed the company that this case would remain open as awaiting compliance until the company received a notice that the case was closed. No such closing notice was ever given. As the Court of Appeals itself stated, the company’s subsequent letter asking that violations of the order be called to its atten- tion “could not shift or avoid its duty of compliance.” Ibid. We do not mean that delay in the administrative process is other than deplorable. It is deplorable if, as the Court of Appeais thought, the company was ham- pered in the presentation of its defenses to the backpay specification by the delay. It is even more deplorable if, as seems clear, innocent employees had to live for some years on reduced incomes as a combined result of the delay and the company’s illegal failure to rein- state them. It may be that the company could have, through the courts, compelled earlier Board action.* 3Section 10(e)(A) of the Administrative Procedure Act, 5 U.S.C. 1009(e)(A) (1964), provides the courts shall “compel agency action unlawfully withheld or unreasonably delayed.” 82-A But the Court of Appeals exceeded the narrow scope of review provided for the Board’s vemedial orders when it shifted the cost of the delay from the company to the employees in this case. Reversed, &3-A SUPREME COURT OF THE UNITED STATES No. 32.-—October Term, 1969 On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit. National Labor Relations Board, Petitioner, ? J. H. Rutter-Rex Manufacturing Company, Inc., et al. ‘December 15, 1969 Mr. Justice Douglas, with whom The Chief Justice and Mr. Justice Harlan concur, dissenting. Universal Camera Corp. v. NLRB, 340 U.S. 474, re- quires a dismissal of the writ of certiorari, To start with, the Board is allowed a wide field of diseretion over 2wards of back pay against a company found to have committed an unfair labor practice As the Court said in Phelps Dodge Corp, «. NLRB, 315 U.S. 177, 198: “The remedy of back pay, it must be remem- bered, is entrusted to the Board's discretion: it is not mechanically compelled by the Act. And in applying its authority over back pay orders, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations.” 84-A Thus the employees in this case have no automatic “right” to any award of back pay. The Universal Camera case concerned the scope of judicial review of orders of the Board. Prior to that decision, many courts had conceived their function of review as an extremely narrow one; some courts looked only for evidence which. when viewed in isolation, sub- stantiated the Board’s findings. Congress registered its dissatisfaction with this resiricted scope of review by stating the proper test in the Taft-Hartley Act as one of “substantial evidence on the record considered as a whole.” 61 Stat. 148, 29 U.S. C. $ 160te) This meant that the courts of appeals were to “assume more respon- sbility for the reasonableness and fairness of Labor Board decisions” than had been the practice of many of these courts in the past. 340 U.S., at 490. The impact of this decision was to vest the courts of appeals with general supervisory responsibility over Board decisions and orders. Accordingly, the role of this Court was to be an extremely limited one. The Court in Universal Camera put it this way: “Our power to review the correctness of appli- cation of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Court of Appeals. This Court will intervene only in what ought to be the rare instance when the standard ap- pears to have been misapprehended or grossly misapplied.” Jd., at 490-491. The problem in the present case is one of working out 85-A the equities of a back-pay order. Because the Board’s delay in initiating compliance proceedings with respect to its original order was deemed unreasonable, the Court of Appeals saw fit to modify the terms of that order. The impact of the specific facts relating to the Board’s and the company’s actions in this case were taken into account by the Court of Appeals in reviewing the terms of the back-pay order. It arrived at its judgment as an exercise of its responsibility “for assuring that the Board keeps within reasonable bounds” (/d., at 490) in a subject area that necessarily involves “diverse, com- plicated situations.” Casting the issue as one of “law” rather than as one of “fact” does not conceal the substantial departure in this case from the learning of Universal Camera: that the courts of appeals, and not this Court, are the watchdogs of the Board. I would dismiss the writ as improvidently granted. Sa Sats ch fers --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0444%3A2. Public record. Not legal advice.