Respondents Brief — National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co.

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IN THE

JOWN F. BAVIS, CLERK

Supreme Court of the United States

October Term, 1968

No. 986 i=

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

J. Hp RUTTER-REX MANUFACTURING COMPANY, INC.,

et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

CourT OF APPEALS FOR THE FIFTH CIRCUIT

————

—$__—_—__——

BRIEF FOR RESPONDENT, AMALGAMATED

CLOTHING WORKERS OF AMERICA,

AFL-CIO

Fie SHEINKMAN

15 Union Square West

New York, New York 10003

RALPH N. JACKSON

1411 Decatur Street

New Orleans, Louisiana 70116

Attorneys for Amalgamated Clothing

Workers of America, AFL-CIO

James J. GRAHAM

46 Washington Mews

New York, New York 10003

of Counsel

OpINIONS BELOW «1. cee cee cee ceeceneeneeerccnseess

JURISDICTION os eeeeeeereeceererecrceseeracecesess

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Question PS) oo lc penesevaniwanebabee we

SraTEMENT OF THE CASE ...-- +0 ee ee eereereceeceees

Background .......eeeceerceseeeeeeeeerererees

The Backpay Proceedings ......-.+++++++eeeeees

AnGUMENT:

Port I—The Tolling of Backpay Contravenes

Well-Established Law .......--+---++seeee

Pont I]—The Tolling of Backpay Constitutes

an Unwarranted Interference with the Board’s

Expertise .......--0-sceeeeceeseceeceeeeees

Powr I1]—The Tolling of Backpay Does Vio-

lence to the Equities in This Case .........--

CEN, on ccc nccscccccccnsscencvcesvoeveseen

Authorities Cited

CASES :

Deering Milliken, Inc. v. Johnston, 295 F. 2d 856

(4th Cir. 1961) ........ceceeeeccccsccverevess

Lochner v. New York, 198 U.S. 45 (1905) ........

W. C. Nabors v. NLRB, 323 F. 2d 686 (5th Cir.

12

14

8

12

1963), certiorari denied, 376 U.S. 911 (1964).... 6, 7,8

Nathanson v. NLRB, 344 U.S. 25 (1952) .......-.

NLRB v. Brown, 380 U.S. 278 (1965) ........-+--

10

ii

NLRB vy. Ozark Hardwood Company, 282 F. 2d 1

(8th Cir. 1960)

NLRB y. Truck Drivers’ Local Union No, 449, 353

U.S. 87 MOR AAR ei rGeNa Vo econo nicks. (

NLRB y, Babcock & Wileow Co., 351 U.S. 105

Leetonia ee y

NLRB vy. Insurance Agents International Union,

361 U.S, 477 cst ORE EE Ty ty tO 1)

NLRB y. Electric Vacuum Cleaner Co. Ine., 315

U.S. 685 sities Te ae 10,1]

NLRB vy. Mastro Plastics Corporation, 354 ¥, 2d

170 (2nd Cir. 1965), certiorari denied, 384 U.S.

hither BE ae ll

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) 10,13

J. WH. Rutter-Rex Manufacturing Company, Ine,

1. 86 NLRB 470 cmos TPT Te 4

2. 90 NLRB 130 (1950), enf’d denied, 189 F,

2d 610 (5th Cir. a RAE ee ee annie 4

3. 111 NLRB 1099 (1955), enf’d 229 F, 24 816

(5th Cir, wasp EET SERN T OT ee 4,12

4. 115 NLRB 388 (1956), enf’d 245 F, 24 594

(Sth Cir, copa ERT ee 4, 5-12, 13

qr

158 NLRB 388 (1956), enf’d in part and

reversed in part, 399 F. 2d 396 (Sth Cir.

1968); petition for Rehearing en banc

denied October 1, 1968. -2, 4,5, 6, 7, 7n, 8, 11, 12, 13

Snell et al. y. Wyman, Commissioner, et al. (S.D,

N.Y. 1968) aff'd, per curiam — U.S. —, 89 Sup.

Ct. 553

Thorpe v. Housing Authority of Durham, — US.

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SraTUTES : PAGE

National Labor Relations Act, as amended (61

Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.)

§B(a)(1) on. cre cececenreneeenerevesereens 4)

ss cacao tuvaverasanne nok deans 2,3

§10(e), 10(f) ... cc ccecevccenceseveveccseencs 8, 9

Administrative Procedure Act

§ 6(a), 5 U.S.C. (1964 ed.), § 1005(a) ........ 3

§10(e), 5 U.S.C. (1964 ed.), § 1009(e) ....... 3

DEORE EG BS

Supreme Court of the United States

October Term, 1968

No. 925

ray

— Vv

NavrionaL Lasor Revations Boarp,

Petitioner,

Vv.

J. H. Rurrer-Rex Manvuracrurine Company, Inc., et al.,

Respondents.

On Writ or Certiorarr To THE UNITED STATES

Courr oF APPEALS FoR THE FirtH CircultT

ray

oS

BRIEF FOR RESPONDENT, AMALGAMATED

CLOTHING WORKERS OF AMERICA,

AFL-CIO

The Respondent, Amalgamated Clothing Workers of

America, AFL-CIO (the ‘‘Union’’), a party to the pro-

ceeding in the court below, submits this brief pursuant to

Rule 21, par. 6, of the Rules of this Court, in support of

the position of petitioner, National Labor Relations Board

(the ‘‘Board’’) on writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth Circuit.

Peaster ncaa

Opinions Below

The opinion of the court of appeals (A. 957) is rp.

ported at 399 F. 2d 356 (1968). The Board’s supplemental

decision and order (A. 3) are reported at 158 N.L.RB,

1414 (1966).

Jurisdiction

The judgment of the court of appeals was entered oy

August 26, 1968 (A. 974). On October 1, 1968 it denied

_ timely petitions by the Board and the Union for rehearing

en banc (A. 976). On December 23, 1968 Mr. Justice

Fortas extended the time for filing a petition for writ of

certiorari to and including January 9, 1969. The writ was

granted on March 3, 1969. The jurisdiction of this Court

has been invoked under 28 U.S.C. § 1254(1).

Statutes Involved

The relevant provisions of the National Labor Relations

Act, as amended (61 Stat. 136, 29 U.S.C. 151 et seq.) are

as follows:

* . *

PREVENTION oF UNFAIR Lasor Practices

Sec. 10. * * *

(c) * * * If upon the preponderance of the tes-

timony 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 person to cease and desist from such

unfair labor practice, and to take such affirmative

action including reinstatement of employees with or

without back pay, as will effectuate the policies of

this Act: Provided, That where an order directs

reinstatement of an employee, back pay may be

— “

required of the employer or labor organization, as

the case may be, responsible for the discrimination

suffered by him:

* *

The relevant provisions of the Administrative

Procedure Act (60 Stat. 237, 5 U.S.C. 1001, et seq.)

are as follows:

ANCILLARY MatTreRs

Sec. 6. Except as otherwise provided in this Act

—(a) Apprarance.—* * * Every agency shall pro-

ceed with reasonable dispatch to conclude any mat-

ter presented to it except that due regard shall be

had for the convenience and necessity of the parties

or their representatives. * * *

Sec. 10.* * *

(e) Scope or Review.—So far as necessary to

decision and where presented the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and deter-

mine the meaning or applicability of the terms of

any agency action. It shall (A) compel agency action

unlawfully withheld or unreasonably delayed; and

(B) hold unlawful and set aside agency action, find-

ings, and conclusions found to be (1) arbitrary,

capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) contrary to constitu-

tional right, power, privilege, or immunity; (3) in

excess of statutory jurisdiction, authority, or limita-

tions, or short of statutory right; (4) without ob-

servance of procedure required by law; * * *

Question Presented

Whether the court of appeals erred in denying em-

ployees backpay to which they were otherwise entitled

under the National Labor Relations Act because of the

Board’s alleged ‘‘inordinate delay’’ in processing the

backpay claims for submission to a recalcitrant employer

represented since prior to the commission of the under-

lying unfair labor practices by the same firm of experi-

enced labor counsel.

Masia

+

Statement of the Case

Background

In the words of the court of appeals the ‘‘origins of

the difficulty’? (A. 958; 399 F. 2d 307) lie in the Union's

efforts to organize the 600 employees of respondent, J, 1

Rutter-Rex Manufacturing Company, Ine. (the “Cop.

pany’’). These efforts began in 1949 and were marred by

threats and unlawful promises of benefits as found by the

Board (86 N.L.R.B. 470; 90 N.L.R.B. 130) and the Fifth

Cireuit Court of Appeals (189 F. 2d 610).

Continued unfair labor practices by the Company pre.

vented the employees from exercising their organizational

rights. The court of appeals (229 F. 2d 817) sustained a

Board finding (111 N.L.R.B. 1099, 1105) that in 1953 the

President of the Company made a speech in which he

threatened to discharge, if necessary, four or five hundred

employees to keep the Union out of his plant. The record

in that earlier case, said the court below, was ‘‘ permeated

throughout with cogent testimony of company antipathy

toward the union’’ (A. 958; 399 F. 2d 397, citing 229 F. 24

819).

Even though the Union’s efforts culminated in 1954

with certification after election of the Union as collective

bargaining agent of the Company’s employees, the court of

appeals in the case which gave rise to the instant pro-

ceeding concurred (245 F. 2d 594) in the Board’s finding

(115 N.L.R.B. 388) that the one year strike of 1954-1955

was provoked by the Company’s categorical refusal to con-

tinue negotiating. The Board’s Trial Examiner found

‘multiple uncontradicted proof that Company representa-

tives from J. H. Rutter on down declared at various times

to individual strikers that the Company would not sign

any contract with the Union’? (115 N.L.R.B. 388, 396).

ae

The Backpay Proceedings

The Board order in the unfair labor practice case under-

lying the instant proceeding contained the usual require-

ment that strikers be reinstated to their ‘‘former or

substantially equivalent positions’’ with an employee’s

backpay to commence five days after his application for

reinstatement (115 N.L.R.B. 391).

On August 21, 1957, two days after the entry of the

decree by the Court of Appeals for the Fifth Circuit

enforcing the Board order, Board attorneys wrote the

Company offering their assistance in ‘‘effecting prompt

compliance’? and advised the Company that notification

of closing of the case would follow full compliance with

the court’s decree. ‘‘Until you receive such notice you will

know that the case remains open for all purposes as await-

ing compliance’ (A. 967; 399 F. 2d 362). On November

7, 1957, counsel for the Company wrote the Board that his

client had already complied with ‘‘some’’ of the provisions

of the decree and was then engaged in bargaining with the

Union. Counsel asked to be advised of any instance of a

failure to ‘‘fully’’ comply (A. 966; 399 F. 2d 362).

Pursuant to a letter dated March 22, 1960, the Board

commenced an investigation of Company records to ascer-

tain the extent of compliance (A. 968; 399 F. 2d 362).

On November 16, 1961, the Board issued a backpay specifi-

cation which alleged as of July, 1961 monetary claims

totalling approximately $342,000 on behalf of only 207 of

575 strikers who sought backpay (A. 961; 399 F. 2d

359). Following a hearing which concluded on September

30, 1963, after more than fifty-eight sessions (A. 971;

399 F. 2d 364), the Board’s Trial Examiner denied backpay

entirely to 35 of the claimants and reduced the money total

to $160,894.69 as of June 30, 1961 (R. 7-8, 166-554). In

sustaining its examiner in significant part, the five-man

Board reduced slightly the Company’s monetary liability

to $159,016.32 (A. 961; 399 F. 2d 359). The court of

Pitesti cin: SVR Ake kt ee

=

6

appeals further narrowed the examiner’s recommended

order by refusing to enforce the award as to ten employees

and tolling backpay entirely as of June 30, 1959 (A. 972.

399 F. 2d 365).

During the crucial hiatus between the Company’s letter

of November 7, 1957 and the issuance of the specification

in 1961, admittedly the manpower resources of the Board’s

regional office in New Orleans were extremely limited (R,

732-4, 968-9). Moreover, the Company did not seek court

relief or clarification of the Board’s reinstatement order

or advice as to further proceedings until after the Board’s

letter of March 22, 1960 (A. 969; 399 F. 2d 363). On

November 7, 1957, when the Company asked to be informed

of ‘‘any instance of a failure to fully comply with the

order’’ (A. 966; 399 F. 2d 362) over two years after

the strike ended, the Company, ‘‘experienced in labor dis-

putes and represented by outstanding counsel’? (A. 963-4:

399 F. 2d 360) had failed to reinstate at least seventy em-

ployees while retaining approximately fifty-three replace-

ments on the payroll (R. 196-7).

In the opinion presently on review, the court of ap-

peals, on authority of W.C. Nabors v. NERB, 323 F. 2d

686 (5th Cir. 1963), cert. denied, 376 U.S. 911 (1964), re-

jected the Company’s defense of laches. In reciting this

Company’s history of unfair labor practices, the court also

noted that the Company ‘began digging its costly pit by

refusing to bargain with the duly certified union”’ (A. 960;

399 F. 2d 359). The Company was aware of the difficul-

ties that would result from ‘its forthright but risky course

of declining to bargain at all...” (A. 963; 399 F. 2d 360;

citing 245 F. 2d 598). The Company, said the court, could

not have ‘‘misunderstood”’ the 1957 decree enforcing the

Board’s reinstatement order (A. 964; 399 F. 2d 360).

The court concluded, however, despite an earlier find-

ing that this employer was no ‘‘babe in the woods, now

about to be victimized for ignorance or inadvertent inepti-

wn

tude in the field of employer-employee relations’’ (A. 958,

999 F. 2d 358), that the Company, receiving no reply for

two and one half years to its 1957 letter, ‘‘was lulled into

the belief that the Board was satisfied and that no further

action was to be expected’’ (A. 970; 399 F. 2d 363).

Accordingly, for the stated objectives of vindicating the

purposes of the Act, effectuating the intent of Congress

and preserving the Company’s due process rights, the

court unequivocally and forever terminated all accrued

backpay as of July 1, 1959 after ‘‘the three years” (sic)

between the end of the strike and the decree of enforce-

ment,* plus two additional years (A. 972; 399 F. 2d 365).

ARGUMENT

POINT I

The Tolling of Backpay Contravenes Well-Estab-

lished Law.

The lower court decision presently under review cites

no authority that explicitly sustains its essential holding.

In fact, the court implictly disregards its prior decision in

W.C. Nabors v. NLRB, supra, a case involving a similar

delay by the Board in which the court held that the Com-

pany could not avail itself of the defense of laches, could

not invoke a state statute of limitations and could not in-

troduce evidence of irreparable injury caused by undue ad-

ministrative delay. A fortiori, this case, where the em-

ployer at a hearing held before Nabors came down was

given every opportunity by the Trial Examiner to show

irreparable injury but failed to do so.

* The strike ended on April 5, 1955. The decree granting en-

forcement was issued on August 31, 1957 (A. 964-6; 399 F. 2d 360,

362).

ated —

...

8

The decision in this case attempts to avoid Nabors by

relying upon the court’s statutory power to modify Board

orders (A. 970-1; 399 F. 2d 363-4), citing NLRB vy. Brown,

380 U.S. 278, 291 (1965); National Labor Relations Act,

as amended §§10(e), (f), 29 U.S.C. §$$160(e), (f) (1958

ed.) ; but since the court could not quarrel with the Board's

findings of fact nor the agency’s reliance upon existing law,

the court modified on grounds that can only suggest the

equitable defense of laches explicitly rejected in Nabors.

Moreover, the court of appeals incorrectly interprets

Brown and Deering Milliken Inc. vy. Johnston, 295 F. 24

806 (4th Cir. 1961) to permit circuit courts to strike a “bal.

ance between the interest of the Board, of the Union, and

of the employer’? (A. 971; 399 F. 2d 364). It is sig.

nificant, for our purposes, that the court’s formulation

omits any reference to the aggrieved employees, but it is

apparent from a close reading of the decisions of this Court

and of the Fourth Circuit that both tribunals simply af.-

firmed the obligation of the federal courts to scrutinize

judgments made by the Board ‘‘as to the proper balance

to be struck between conflicting interests’. NLRB y.

Brown, supra at 291; ef. Deering Milliken, Inc. y. John-

ston, supra at 856.

In another circuit court decision, cited as authority

for the decision below (A. 971; 399 F. 2d 364), NLRB

v. Ozark Hardwood Company, 282 F. 2d 1 (Sth Cir. 1960)

the case was remanded, without prejudice, to the Board to

determine whether certain backpay awards should be re-

jected because some employees might have retired during

the backpay period (at 7-8). In other words, the court

in Ozark Hardwood Company, in conformity with estab-

lished law, simply refused to enforce a Board order that

apparently was unsupported by substantial evidence and

legal principles governing backpay determinations. The

court below in this case exercised the same authority,

though without enunciating reasons, in disqualifying an

additional ten claimants (A. 972; 399 F. 2d 365).

While this Court in Brown emphasized that the balance

struck by the Board was not immune from judicial exami-

nation and reversal in ‘‘ proper cases’’ (380 U.S. 298), such

situations (at 298, note 5) included NLRB v. Babcock &

Wilcox Co., 351 U.S. 105 (1956) where a Board finding that

an employer’s refusal to allow distribution of union litera-

ture on a company owned parking lot violated § 8(a) (1)

of the Act, was set aside ‘‘as resting on an erroneous legal

foundation’’ (emphasis supplied) (380 U.S. 298, note 5).

This Court in Brown also said (ibid.) that since NLRB v.

Truck Drivers’ Local Union No. 449 (Buffalo Linen Supply

Co.), 353 U.S. 87 (1963) ‘‘numerous Board orders have

been set aside as outside of the Board’s statutory aw

thority’’ (emphasis supplied).

There is nothing in the lower court decision in this

ease to indicate that the Board exceeded its statutory au-

thority, or that the Board order conflicts with prior law or

is unsupported by substantial evidence on the record con-

sidered as a whole or constitutes an unreasonable exercise

of the Board’s administrative discretion. Instead, the

court, enunciating new principles of substantive law as

well as judicial review not contemplated by §10(e) of the

National Labor Relations Act or § 10(e) of the Administra-

tive Procedure Act chose to punish the Board for its

administrative delays by denying backpay to innocent em-

ployees.

POINT II

The Tolling of Backpay Constitutes an Unwar-

ranted Interference with the Board’s Expertise.

It is a matter of historical record that the Board, a

regulatory agency, exists to bring special expertise to the

volatile area of labor-management relations. In a 1941

decision, this Court said ‘‘the relation of remedy to policy

is peculiarly a matter for administrative competence.

=

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10

Courts must not enter the allowable area of the Board's

discretion and must guard against the danger of sliding

unconsciously from the narrow confines of law into the

more spacious domain of policy’’. Phelps Dodge Corp. ¥,

NLRB, 313 U.S. 177, 192 (1941).

In this case, the lower court wrongly substituted jts

own judgment for that of the Board in deciding what

remedy in this case would best effectuate the Purposes of

the Act. In so doing, however, it is ironie that the court

arrogated to itself an extra-statutory authority more ex.

alted than the*kind usually associated with the Board on

reversals, ‘‘Congress has not given the Board untram.

meled authority to catalogue which economie devices shall

be deemed freighted with indicia of unlawful intent.”

NLRB vy. Insurance Agents’ International Union, 361 US,

477, 498 (1960).

The court sought to protect what it described as the

‘*Due Process’? and statutory rights of one respondent

employer while disregarding the Board's principal mandate

to effectuate public policy and not private rights. In Phelps

Dodge Corporation, supra, this Court sustained an order

calling for the reinstatement with interim backpay of dis.

criminatees who had obtained ‘substantially equivalent em-

ployment”’ elsewhere (313 U.S, 192). To do otherwise, this

Court held, would restrict the Board to the correction of

private injuries (ibid.),

Moreover, the backpay remedy is ‘*designed to vindicate

the publie policy of the statute by making the employee

whole for losses suffered on account of an unfair labor

practice’’, Nathanson vy. NLRB, 344 US, 25, 27 (1952).

While the court’s attempt to protect this Company’s due

process rights against lawful Board activity flies in the face

of all precedent, this Court in one case declined to shorten

the period of backpay compensation despite the Board’s

two-year delay in issuing a decision and order; this Court

refused to ‘‘penalize the employees”’’ for the delay. NLRB

we

11

y, Electric Vacuum Cleaner Co., Inc., 315 U.S. 685, 698

(1942).

In this case, the concern of the court of appeals is mis-

placed. Board delays will generally discourage employees

in the exercise of their organizational rights but in most

cases, as in this one, the lapse of time between the en-

forcement of a Board order and issuance of a backpay

specification will have no serious impact, financial or other-

wise, on the delinquent employer. For example, interest

(at a modest rate of 6%) did not begin to accrue on the

money owing by this Company until June 2, 1964 (A. 962;

399 F. 2d 360), the date of the Trial Examiner’s decision,

nine years after the strike ended. At the same time, the

drastic court modification conceivably will persuade other

employers that the National Labor Relations Act may be

defied with near impunity.

Perhaps most important, in substituting its own judg-

ment for that of the Board, the court, of necessity, had to

make a factual determination, unsupported by the evidence,

that the Board’s delay was ‘‘inordinate’’. Aside from the

fact that the record is barren of any evidence that earlier

issuance of the specification would have altered the posture

of this case, the record does contain uncontroverted testi-

mony that the Board’s New Orleans region ‘‘had an ex-

tremely heavy case load’’ (A. 969; 399 F. 2d 363). But

the court gratuitously decided that the regional office could

have deployed one or more of its six attorneys to work on

this case (ibid.). In a similar case the Second Circuit,

more realistically, attributed delay in issuing a specifica-

tion to the ‘‘inherently time-consuming nature of the back-

pay remedy, complicated by a serious and protracted

shortage of Board personnel capable of preparing the

specification’. NLRB v. Mastro Plastics Corporation, 354

F.2d 170, 180-1 (2nd Cir. 1965), cert. denied 384 U.S. 972

(1966).

In short, the court of appeals substituted its own judg.

ment for the expertise of the Board, acknowledged by this

Court in many decisions, to effectuate the policies of the

National Labor Relations Act; in so doing, however, and

against the weight of the evidence, the court decided hoy

the Board should best conduct its internal affairs.

POINT III

The Tolling of Backpay Does Violence to the

Equities in This Case.

We have shown above that the lower court, contrary to

precedent, in effect granted the Company's defense of

laches and, in excess of its authority, not only undertook

to balance itself the competing interests among the parties

but also substituted its judgment, based on speculation only,

for that of the Board in conducting the daily operations of

the New Orleans regional office.

But assuming arguendo that we are wrong on these

points, it is nevertheless clear that the court of appeals

has chosen to make new law at the expense of innocent

employees and for the benefit of an employer who con-

sciously embarked on a course of conduct designed to

frustrate the purposes of the Act, as the lower court itself

has documented (229 F. 2d 816; 245 F. 2d 594).

More important, however, the court of appeals expressed

concern for the ‘‘Due Process’’, i.e. substantive, property

rights of the Company (A. 972; 399 F. 2d 365); contra,

Snell, et al. v. Wyman, Commissioner, et al., 281 F. Supp.

853 (S.D.N.Y. 1968) aff’d per curiam — U.S. —, 89

Sup. Ct. 553 (1969); Thorpe v. Housing Authority

of Durham, — U.S. —, 89 S. Ct. 518 (1969), ef. Lochner

v. New York, 198 U.S. 45 (1905). The court suggested,

without evidentiary support, that the Company was handi-

capped at the hearing in attempting to prove fzets in miti-

gation of damages. The court speculated that the Com-

pany’s problems were compounded by the delay (A. 971).

wi

But the court also overlooked its earlier finding that

both the Company and its counsel, to use a euphemistic

expression, were highly sophisticated in labor matters (A.

963-4; 399 F. 2d 360). Charged with knowledge of the

reinstatement obligation in unfair labor practice situations

enunciated by the Supreme Court fourteen years earlier in

Phelps Dodge Corp., supra (at note 7), the legal repre-

sentatives of this employer could not reasonably have sup-

posed that the Board would drop the claims of strikers

denied reinstatement. Indeed, a complaint had issued and

| a hearing held on the refusal to bargain charge before the

strike ended (115 N.L.R.B. 388).

Moreover, the resolution of most of the problems re-

ferred to by the court, e.g. ‘‘proving there was a job avail-

able... whether a discharge after reinstatement was made

in good faith .. .’’ (A. 971; 399 F. 2d 364) was solely

within the power of the Company. The Company failed to

adduce proof at the hearing not because of the delay factor

but because this company had chosen to brazenly disregard

its reinstatement obligation.

Even in the limited area of search for employment,

where the Company to some extent had to refute the oral

testimony of claimants, the Company’s experienced counsel,

in examining uneducated witnesses, sometimes unfairly

adduced contradictions in testimony. It is true that many

claimants could not remember dates and places of searches

for employment but it is naive to suppose that a witness’s

recollection of factories visited during specific calendar

quarters would be clearer two years rather than three or

four years after the events. Certainly, any respondent in

a backpay proceeding will have difficulty on this score but

this is included among the foreseeable consequences of his

wrongdoing.

Moreover, the court of appeals erred in its gratuitous

assertion that ‘‘ Actually, about all the Company could do

... Was to cross-examine .. .’’ (A. 971; 399 F. 2d 364).

Ss Mckee ex.

14

On the contrary, the Company was furnished statement

made by claimants to Board personnel as well as records

of interim earnings and unemployment insurance payments

The Company, with some success, introduced spurious

‘‘business records’? into evidence that, if fully accepted by

the examiner, would have destroyed most of the backpay

claims (A. 205-7). The Company was able to use applica-

tions for employment to attack claimants’ credibility as to

periods of pregnancy, ete.

Finally, the absence of documentary evidence of interim

employment creates at least a serious inference that these

low-income claimants, faced with deep suffering as an alter-

native, did not work solely because employment was un-

available and not in reliance upon the remote possibility

of an NLRB backpay remedy some years later.

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed and the Board’s backpay order

reinstated.

Dated: New York, New York

April 10, 1969

Respectfully submitted,

Jacop SHEINKMAN

15 Union Square West

New York, New York 10003

Rap N. Jackson

1411 Decatur Street

New Orleans, Louisiana 70116

Attorneys for Respondent

JAMEs J. GRAHAM

46 Washington Mews

New York, New York 10003

of Counsel