# Respondents Brief — National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0136%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1970 - **Citation:** 396 U.S. 258 ## Text FILE © eer 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 GravuTES INVOLVED «1. se ecereeecersereeeecercess 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. Waite asinine on... BETTE rd eae Pe PRM OUP EREU CEN ES pele ee — eile ili 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. = ~~ daal Bits... Sruiae Hy 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0136%3A05. Public record. Not legal advice.