National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Company, Inc.

PETITIONER:National Labor Relations Board
RESPONDENT:J. H. Rutter-Rex Manufacturing Company, Inc.
LOCATION:17th Judicial Circuit Green County Alabama Jury Commission

DOCKET NO.: 32
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 396 US 258 (1969)
ARGUED: Oct 22, 1969
DECIDED: Dec 15, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – October 22, 1969 in National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Company, Inc.

Warren E. Burger:

I think we will just call and have the counsel be ready and in number 32 National Labor Relations Board against Rutter.

Arnold Ordman:

— comply and indicating, well the record showed that it —

Warren E. Burger:

I would suppose that company could have complied by just reinstating strikers no matter what but what about those, this is where it had a, you might have thought a good faith defense to reinstatement now that the place to go —

Arnold Ordman:

It is.

Warren E. Burger:

— that the place to go wasn’t the Court of Appeals.

The place to go is to the, what was to litigate the matter with you people wasn’t it?

Arnold Ordman:

Precisely, and the Board had and the company had this opportunity and initiated no action.

The only request, the company might come up —

I thought it was a, I thought it was waiting for you, you told them that you’d be in touch with them or something.

Arnold Ordman:

Yes, the company predicates much of his defense on a letter it wrote in November 7, 1957 about two months after the enforcing decree.

It wrote the Board a letter saying in essence, “we have complied with some of the provisions of the Board’s order, now, will you please notify us of any instances where we have not complied.”

And the company says on that basis since we didn’t notify them, they weren’t obliged to comply any further.

Well, the court below said an offending respondent which has the primary obligation to comply can’t rid of itself of its obligation merely by saying you didn’t tell us.

The court had told what they are obliged to do.

In addition, frankly, we have a situation where as of this day, there is still a number or at least of the date of the hearing and I believe that is still true, there are still the number of strikers who have not been offered reinstatement, whose back pay claims after the litigation have been validated.

And to this day, not one cent of back pay has been paid on this claims which the Board and the court below validated.

Moreover, we notified the —

Why is it?

You said they have agreed, that they are valid and they haven’t been paid, why is it?

What ground is it?

Arnold Ordman:

I presume the, I presume the company must be of the waiting the outcome of this proceeding which only has to do with cutting back the back pay not eliminating it.

This Court denied cert on the part, denied certiorari on the portion of the order that was enforced.

Now also, this company was rather familiar as the Court below says this Company was not a babe in the woods, and I think the language of the Court is significant in this regard.

And said this company, this company is not a babe in the woods and the principle theory of premise upon which the court below limited the back pay was on the ground that the court below, the court below felt that somehow the company had been lulled into a sense by the Board’s delay into a sense that maybe it had nothing left to do and that it had no obligations anymore by the Board’s delay.

Well, this might come with more grace I think.

With an unsophisticated employer, but this is what the court below said, “the record convinces us that Rutter-Rex is not a babe in the woods about to be victimized for ignorance or inadvertent ineptitude in the field of employer-employee relations as regulated by the National Labor Relations Act.”

The order in this case which directed immediate reinstatement of strikers even if they had to hire replacements who were still employed by the company although not all strikers have been replaced, the order the court below said just could not have been misunderstood but as of today, that reinstatement obligation has not yet been full carried out and the back pay has been — none of the back pay has been paid.

And as the Trial Examiner pointed out, at the time of the back pay hearing, replacements were still working and much of the back pay hearing of this long back pay hearing was devoted to analyzing the back pay do strikers where replacements were still working at the job the strikers should have had.

Now, the record demonstrates as I said before and this is the court’s language, as it was and the impossible for the company to comply and as to many individuals it did.

We think that in this situation, with this kind of sophisticated company in the area of labor relations and also represented as the court below noted by able counsel that they weren’t lulled into any sense that they’d already complied with the decree of the court below.

Arnold Ordman:

On the contrary, we believe that to just — to affirm the Board’s — the court’s order below would be to really reward a malingering and an intransigent refusal to comply with the Board order and a court decree at the expense of the public policy, the Act is designed to bring.

I might say in regard to that letter also where this, the company tried to shelve its responsibility by a couple of months after the decree said you tell us when we violated the Act.

And now we routinely send a letter and we sent a letter right after this decree to this respondent saying we’re ready to help you comply with this order and incidentally when you have complied, we will send you a letter notifying you that the compliance has been affected and the case close.

And we also incidentally in case the company had any doubts, it had just received such a letter in an earlier unfair labor practice case where we told them, in this case you have complied and the case is closed.

We never send a closing compliance letter.

I only want to touch on —

Mr. Ordman, may I ask?

Arnold Ordman:

Yes.

The back pay which is after the court order say, may there be determined back pay whether or not a particular employee is entitled?

Arnold Ordman:

Precisely.

If it is determined that a back pay of that in a particular employee is not entitled —

Only whether he is entitled back pay of which or another consideration?

Arnold Ordman:

That is correct because for example if he is not entitled to reinstatement, he is not entitled to any back pay.

But when you get an order, reinstate all strikers with pay?

Arnold Ordman:

The order to reinstate all strikers is to reinstate them and strikers incidentally, a Board order never compensates — gives back pay to people while they are on strike.

How about reinstatement if the Court of Appeals were to reinstate?

Arnold Ordman:

The Court of Appeals —

You mean all strikers except those the Board had laid off?

Arnold Ordman:

All strike — of course because in a given situation as in this situation, real problems do arise as to whether a particular striker is entitled to reinstatement, for example in this case, there were 10 —

According to misconduct?

Arnold Ordman:

There were 10 that were not reinstated because of misconduct.

What about those that take other jobs?

Arnold Ordman:

Where they have an argument that can be made and this is what the back pay proceeding is about, where an employee has taken substantially equivalent employment or has refused substantially equivalent.

Haven’t they ordered the Court of Appeals in this way said that to reinstate all strikers but then the company says I’m not going to reinstate these 200 because I got thousand defenses and lost my defenses in the Board —

Arnold Ordman:

They —

— whenever I give a chance?

Arnold Ordman:

The Courts of Appeals and this Court have long go, settle on the proposition that we could either in a case of this kind with 600 potential claimants in the initial unfair labor practice proceeding go through the, in order that the amount of detailed work to determine respective rights or the Court stop at that point and ask where our order is challenged and there’s non-compliance, get an enforcing decree because if it’s not enforced, we don’t have to go through all that proceeding.

What was ordered (Inaudible), is that the original order?

Arnold Ordman:

The obligation of compliance, the obligation of reinstatement.

Let me get back.

The original order of the Court was reinstate all strikers.

Arnold Ordman:

That is correct.

Is that the one you are speaking of?

Arnold Ordman:

That is the one we are speaking of.

What have you say that’s open and shut because there’s still to be litigated as individual strikers whether the individual strikers will listen to positive statement not that open and shut?

Arnold Ordman:

It is not, that is not open and shut to the extent there are defenses.

Now —

Wasn’t that what this case is all about?

Arnold Ordman:

No, this case is about the large bulk of the strikers excluding those who are engaged in misconduct as to which the record shows the company have no defense.

How do you know which ones they are to have litigated?

The company says there are hundred and it turns out there were only 10.

Arnold Ordman:

This is precisely what?

The back pay proceeding contemplates and the machinery is devised in this Court throughout and among other cases in the Wallace case that the only alternative would be to labor the initial unfair labor practice proceeding with a long, long involved hearing as to what the individual rights are, and therefore, the original enforcing decree contemplates that these details about the amount of back pay or the occasional case for an employee is not entitled to reinstatement will be resolved afterwards.

In other words, as I think the Second Circuit used the language, so did the Fourth that the enforcing decrees and the nature of interlocutory order which contemplates further procedure.

What you’re saying is that employer then who runs this, if he refuses to reinstate on the grounds that he’s got a valid defense, he has to run the risks on the back, of having to pay back, back pay if he’s wrong?

Arnold Ordman:

That is correct.

And it doesn’t make any difference how long he has to wait for a hearing.

He says I’ve got a valid defense, I want an early hearing on this and the Board waits three or four years, that’s just the employer’s hard luck?

Arnold Ordman:

Your Honor, I would like to say, in the first place, we don’t think if the burden must lie somewhere.

We think it properly lies on the employer, on the party that has violated the law.

Well, how does he get a hearing before the Board?

Arnold Ordman:

He could have brought a proceeding I suspect under, not I suspect, I believe firmly, could have brought a proceeding under the Administrative Procedure Act which he relies upon to expedite this matter if he felt the Board was guilty of malingering.

Moreover, —

Sue the Board for early hearing, is that it?

Arnold Ordman:

Request an early hearing, precisely.

This lay an instrument, and reference was made to this by the Court below but we find here that this employer —

Would you have gotten around to it any sooner if it had sued you?

Arnold Ordman:

That may require Your Honor.

Now, I am not suggesting or not conceding in any sense that the Board here was guilty of culpable delay.

The record sets this forth quite accurate — quite completely.

Arnold Ordman:

The fact to the matter was that this record and the public record demonstrates that the Court, that the Board at this time was undermanned, overloaded with cases which is this Board knows, the Board initiates no cases, cases brought to it and that we had this case and we had four other compliance cases of a similar nature already pending when this decree came out.

Now, the court below says, I suspect by hindsight that this was the most important case we had.

I don’t know what the basis of its determination and said we should have expedited this particular case.

But the fact to the matter is that at that time, we are undermanned, overstuffed, frankly, we didn’t want this case here to be frank.

On the subject of the delay, we don’t believe in delay and although it’s on this side, I’m very happy to report that as of today, we’ve leaked this very serious problem of delay at least at the administrative level.

But this wasn’t the matter of culpability and if not a matter of culpability or even if we are culpable to a minor degree, then we must balance interest affected, our public interest into protecting the policies of the Act, the interest of the employer here who as I say was not a babe in the woods and knew what he was going, had great experience in unfair labor practice proceedings before the Board, and mostly, the interest of the employees here, though hadn’t even be detailed to this Court.

An employee without back pay and without reinstatement suffers during this long period.

In paralleling these interests, we believe that there is no alternative but not, that is an overstatement.

We believe how can’t that the Court ought to correct the error of the court below.

Warren E. Burger:

Mr. Ordman, you mentioned the procedure under the Administrative Procedures Act that might have led to expediting this, is that a mechanism that’s used frequently or is it used at all?

Arnold Ordman:

This mechanism was used in one case which is cited I think both in our brief and in the respondent’s brief in a case where the Board had a director, a second hearing, remanded a second hearing before the trial exam, the cases Deering against Milliken.

The company at that time asked for relief and asked the hearing be state completely because it was unnecessary dragging out this proceeding and the Court of Appeals in that case I would say simply gave the company in that case half the relief it asked for.

Warren E. Burger:

The party who felt it was being subjected to undue delay would have other difficult decision, wouldn’t he tried to decide just when to invoke this extraordinary procedure?

Arnold Ordman:

At minimum I submit, Your Honor.

It seems to me they could have come to us and said, “Now what’s the story?

Am I really through?

Don’t I have to reinstate anymore?

Don’t I have the back pay?”

We didn’t get this initial gesture.

Of course, the company says it was our job to come to them.

We want to and we do as often as we can.

We were subtle by this very difficult burden which is not only characteristic of our agency, I think characteristics of other agencies and I think the court sometimes heavily oppressed by a laborious docket.

Thank you, Your Honor.

Warren E. Burger:

Mr. Read.

Henry J. Read:

Mr. Chief Justice, may it please the Court.

It’s our position basically in this matter that the further affirmative action was required by the Board.

The Fifth Circuit ––

Would mind speaking a little louder, I can’t quite hear you.

Henry J. Read:

The Fifth Circuit in enforcing the Board order specifically said that that the numerous problems which the employer had in deciding who to reinstate and under what circumstances, the full text of the language is quoted in the brief of the numerous problems were not foreclosed by the Board order or by the enforcing opinion but were reserved for further administrative proceedings before the Board.

Promptly, upon the issuance of the Board of the enforcing opinion of the Fifth Circuit, the employer submitted a report to the Board in which it gave payroll information, the job classifications, operations numbers, strike list, the names of those persons who had applied for reinstatement and the date upon which they had been reinstated.

Henry J. Read:

The company said if any incidence of a failure to comply with this order that comes to your attention, we’d like to know about it because we intend to comply and we want to comply.

Now, the Board didn’t reply to that letter and I submit that on the face of this record, the Board should not say to the Court that we should have done anything further because the Board is on record in this proceeding as we point out in our supplemental brief, as being of the opinion that they had no duty to advise us at all about our obligations under this indefinite order and that it was up to us to comply literally or to use the terms that they used before the Fifth Circuit in haec verba.

You say indefinite order, where is the order?

Which part of it?

You say it’s indefinite.

Henry J. Read:

The order is indefinite in that it does not name the names of the persons to be reinstated and in my submission to the Court requires further implementation in administrative proceedings before the Board before there can be a final judgment as to what individual is entitled to be reinstated and when.

I thought you said they ordered all of them be reinstated?

Henry J. Read:

Well, there were – no, because the enforcing language of the court specifically reserved such questions as the availability of jobs, misconduct, the availability of the strikers and any number of specific problems which were referred to by the employer and which were specifically reserved by the court for future determination in administrative proceedings before the Board which proceedings were not held until this opinion was in 1951, in June of 1957.

They didn’t file a back pay specification until I think it was November of 1961, four years and four months later.

Thurgood Marshall:

Mr. Read, did you need any help from the Board as to available jobs?

Henry J. Read:

That was a very, very serious issue Mr. Justice Marshall for this reason.

Now, whether we were right or wrong, it was our contention and we presented the evidence of an industrial engineer to support our position.

With our contention that we may — that we maintain a balance line operation in the plant and that the production qualifications of each operator in each step of the production line had to be in balance.

All the — all of the employees would suffer if you have one operator who is capable of only 50 dozen per stated time period, whereas the line is engineered for a hundred.

Thurgood Marshall:

But don’t you have all that information in your plant?

Henry J. Read:

Yes, but the point that I’m trying to make Mr. Justice Marshall is that we had a legal issue in our minds as to whether or not we were obligated to prejudice the earnings of 14 operators in a 15-operator line by the fact that we had an application from someone whose capabilities did not measure up to the engineering of the line.

Now, whether we were right on that or not, I say is pre- admitted at this time because the fact is the court said specifically that the availability of work at various times considering the nature of this engineer — of this manufacturing operations, this raised questions which had to be resolved in further and future administrative proceeding before the Board.

Thurgood Marshall:

So rather — so rather than to have them resolve, you did nothing?

Henry J. Read:

Oh!

By no means sir, we were reinstate — we were not adamant in refusing to comply with this order, I hasten to dispel that suggestion.

We complied with this order.

Even the Board in its post hoc, critical second guessing of what we did concedes that we complied with 70% of the cases that they say that were involved.

We did not stand fast and refuse to comply.

We did comply and we took people on as we could work them into these operations.

We had other problems, for instance, there was this problem and again I’m not arguing today that I am right, I’m simply arguing that this was a problem on this point that the Union submitted letters in which they listed the names of the strikers who wish to return.

We responded and said in an orderly rebuilding process, we would ask that you send people in at 20 a day so we can work them in.

They wrote back and said we’ll do that.

Now, they say and I must say that’s too late to argue about the correctness of it, they say that this did not invalidate the original application of which they say was effective even though they agree to send people in but it has left us because we thought that the people who were interested in their jobs would come into the plant as the Union had said they would in its letter.

And in many instances, the problems which the company has today resulted from the fact that persons who did not show their availability were ultimately held by the Board to have been entitled to reinstatement by virtue of the Union letter of application.

I referred to that not to reargue that point but simply to demonstrate another area in which there was doubt, another area in which this author was indefinite, and another area in which he’d require administrative definition by the Board which was not forthcoming.

Henry J. Read:

Now —

Hugo L. Black:

May I ask you one or two questions to verify the situation in my mind.

What did the Board order?

What is the basic?

Henry J. Read:

The Board order —

Hugo L. Black:

The latest Board’s order that which this opinion of the court is concerned.

Henry J. Read:

The Board order as my memory serves me, that to reinstate as immediately upon application, reinstate all strikers and to pay them back pay within five days of application.

Hugo L. Black:

Alright, now what happens then?

Henry J. Read:

Right then, we —

Hugo L. Black:

Is that the order that’s before us?

Henry J. Read:

That’s the order that’s before us.

Hugo L. Black:

That’s the order report?

Henry J. Read:

Yes, but it was enforced Mr. Justice Black in the language to which I earlier referred in which the enforcing court specifically reserved for future determination the defenses of the employer.

Now Mr. Read, basically I can’t find anywhere in the record, is it here?

The only decree the court which I can find is the 1968 decree?

Could that be here?

Byron R. White:

(Inaudible), but we’re looking for a decree.

The 1957 decree; that does not seem —

Henry J. Read:

We’re looking for the 1957 decree of the Fifth Circuit.

That’s on page 959, the relevant part of this quote in the court below opinion, page 959 of volume 2 — volume 2 of the record.

Is it the opinion or the decree?

The decree.

This is the decree?

Oh!

Then you cite the decree of August 1957?

That’s right.

It’s just an excerpt from?

It’s an excerpt from.

But the decree itself, the complete decree, nowhere it appears?

Not in print.

No it does not.

Henry J. Read:

It’s not in the record.

Hugo L. Black:

Now, would you mind telling me what defense you set up to the Board’s order to reinstate and pay back pay?

Henry J. Read:

When the Board ultimately in 1961, the fall of 1961, filed a back pay specification we filed an answer in which we asserted numerous defenses.

Hugo L. Black:

What’s the main one that’s involved here?

Henry J. Read:

Well, we asserted a misconduct defense.

That was one.

We asserted a —

Hugo L. Black:

You mean on the part of the employees?

Henry J. Read:

Strikers.

Hugo L. Black:

What is the main defense that you setup, the one which the court sustained which deprived this people of the right to get their back pay?

Henry J. Read:

Delay.

Well now, Mr. Justice Black, these employees have not been deprived of that pay.

We are under an order which is not under review to pay back pay which is going to amount to well over a hundred thousand dollars.

Hugo L. Black:

Now, what is your contention with reference to what the order of the court below did?

Henry J. Read:

In this case?

Hugo L. Black:

Yes.

Henry J. Read:

We say that the court below properly modified the Board back pay order because of the inordinate delay of the Board.

That’s the —

Hugo L. Black:

Modified it in what way?

Henry J. Read:

They’d modified it by inserting a cutoff date —

Hugo L. Black:

Cutoff like statute of limitations?

Henry J. Read:

No, sir.

Hugo L. Black:

In effect to statute of limitation?

Henry J. Read:

Well sir, that’s a matter of argument that —

Hugo L. Black:

Well I say is it?

Is that what they’ve –-

Henry J. Read:

No, sir they said this.

If I may, if I may please —

Hugo L. Black:

Yes.

Hugo L. Black:

What I understood, maybe I’m wrong?

Henry J. Read:

Now, if I may presume —

Hugo L. Black:

I thought they have held —

Henry J. Read:

No, sir.

This is what they said —

Hugo L. Black:

That they were barred because inordinate delay?

Henry J. Read:

Well sir, we argued to the court and the court, if I may put it this way, seem to see —

Hugo L. Black:

Sustained your argument —

Henry J. Read:

Correctness of the argument that under the opinion of this Court in NLRB versus Brown, which is the decision that they referred to that it is the proper function of the reviewing court to look at the remedial order of the Board and consider its fairness and balance the conflicting interest and it evidently felt and said that this employer having submitted the information that it did about its compliance program and the Board not only having taken no action to file a specification for four years and four months but furthermore, have offered no help, no cooperation and made no attempt to work out an amicable settlement to this case prior to the day they filed a specification, the violation —

Hugo L. Black:

I understand though that but what did they decide with reference to this people getting their money?

Henry J. Read:

They said that the back pay order of the Board would be modified.

The Fifth Circuit said the back pay order of the court would be modified by inserting a cutoff date in 1959.

Hugo L. Black:

Of what date?

Henry J. Read:

I think its June of 1959.

Hugo L. Black:

June 1959.

Henry J. Read:

Yes, about five years of back pay.

It was —

Hugo L. Black:

And from then on they couldn’t get it?

Henry J. Read:

Yes sir, but that is much —

Hugo L. Black:

Is that really the basis of the dispute between you?

Henry J. Read:

That is correct, yes.

But on that point, this is in a side which I feel I must insert here, Mr. Ordman made a reference to the fact that there are employees who have not been paid their back pay as of this date.

The reason for that is, the litigation isn’t over and the Fifth Circuit remanded the case to the Board to fix back pay and we don’t know how much to pay.

Hugo L. Black:

How many of them have you paid?

Henry J. Read:

We haven’t paid any because —

Hugo L. Black:

You haven’t paid any?

Henry J. Read:

No, because they never have told us how much to pay and secondly, secondly, Mr. Ordman makes statement which I must take issue with when he says that there are people who have not been reinstated, this same mistake was made by counsel for the Union before the Fifth Circuit Court of Appeals and in post argument, correspondents which are trustees in the record, we showed that everyone with the exception of three persons had been offered reinstatement or have been disqualified.

Hugo L. Black:

Have any of them, you said none of them have been paid.

Henry J. Read:

They have not —

Hugo L. Black:

And many of them submitted a claim to you before payment is reached?

Henry J. Read:

No, sir —

Hugo L. Black:

Back pays?

Henry J. Read:

Other than in the back pay proceeding?

Hugo L. Black:

What?

Henry J. Read:

Other than in the back pay proceeding.

There is an order of the Board which is not final in my judgment because the Fifth Circuit has refused to enforce it and has remanded it to the Board for final fixing of the amounts due under that portion of the order which was enforced.

Hugo L. Black:

Have any of these employees filed with you a claim for back payment?

That’s all I want to know.

Henry J. Read:

No sir, as far as I know, no sir.

If I understand your question —

Hugo L. Black:

Never had?

Henry J. Read:

If I understand the courts — your question, the answer is in the negative.

William J. Brennan, Jr.:

Well, sometimes I just believe, when they appear in the backpay proceeding and say, “I (Inaudible)” isn’t that what it means to you?

Henry J. Read:

Well, of course, if that is the intent of the question Mr. Justice Brennan, I’ll answer it in the affirmative but I —

[Voice Overlap] with the question?

Henry J. Read:

I was having trouble understanding the question as a claim, as intending to refer to a claim submitted to the company personally.

There have been no claims asserted other than those asserted by the Board in the back pay proceeding.

Warren E. Burger:

Well, that’s the conventional way to do it, isn’t it?

Henry J. Read:

Correct, correct, yes.

Thurgood Marshall:

Mr. Read, of the 150 other people employed.

Wouldn’t that be one of that 150 that you clearly know you should pay?

Henry J. Read:

We have no objection to paying —

Thurgood Marshall:

But why haven’t you paid anyone?

Henry J. Read:

We, Mr. Justice Marshall, we have absolutely no objection, as a matter of fact —

Thurgood Marshall:

But you haven’t?

Henry J. Read:

Well, I considered tendering the amount which I thought was due but I decided against it and my client was perfectly willing to do it and is willing to do it today of course but I decided it was premature until such time as the Board tells us how much that is.

There’s absolutely no reluctance on the part of this company to pay the back pay that is not under review —

Thurgood Marshall:

Have you ever tried to pay any of them?

Henry J. Read:

No, —

And there is no reluctance?

Henry J. Read:

Well, there’s absolutely no reluctance on the part of the company and I say that without any qualification at all.

There’s no reluctance on the part of this company —

How much do you owe to the person that has been on dismissible?

Henry J. Read:

No sir, that’s my point.

(Inaudible)

Henry J. Read:

That’s correct.

That’s my appreciation of the status of the case.

But would you — let’s assume a company, after a general order like this in the Court of Appeals feels that it has some good faith defenses in connection with any number of these strikers and it says I want to litigate this for the Board, it can do that I take it.

Those matters were reserve under these orders?

Henry J. Read:

Yes.

But it can litigate it.

I would suppose you would agree that that if you lose in connection with employee “A” say and your defense is rejected and you are then ordered to reinstate them, I would suppose you would agree you have to give them back pay.

Henry J. Read:

I agree with that.

And if so, this case really boils down to whether or not you can be ordered to give back pay if the proceeding where you litigate the validity of your defenses happens to occur four years instead of two years or one year after the general order of the Court of Appeals?

Henry J. Read:

Mr. Justice —

You don’t object right now to, I gather to the part of the Court of Appeals order that says you have to pay them for two years?

Henry J. Read:

Oh!

No sir, that’s not an issue here at all as far as I know.

And of course just the other two-year back pay order.

Henry J. Read:

Correct, that is correct.

And so it’s a question of where the incidence of delay must fall on the employees or on the company?

Henry J. Read:

That’s the case, that’s the case and I’m not sure.

Now, this delay issue first was injected into the case when we tried to enjoin the back pay hearing at the time that it was filed in 1961 and the Board went into the Fifth Circuit at that time and it didn’t deny that the delay occurred, it admitted that the delay occurred and as the court said, it admitted that inordinate or unreasonable delay occurred.

But it said to the court, don’t enjoin us from holding a back pay hearing because we can take delay into consideration and we can protect the company’s interest and inferring no matter what we do, our decision with regard to delay will ultimately be reviewed by the Fifth Circuit.

Well then when the case is remand, when the case proceeds under the back pays classification, the Board doesn’t make any reduction on the grounds of delay.

In fact, the Board’s decision doesn’t say a word about delay and the Trial Examiner said that he didn’t consider and give you that exact language because I do believe it’s important.

Referring to delay, the examiner having ultimately ruled that none of —

Warren E. Burger:

Where, where are you reading from now?

Henry J. Read:

I’m reading from page 55 of the joint appendix.

The Examiner having ultimately ruled that none of this issues were properly before him for our disposition in accordance with this ruling having refused absence — absence to proffer of evidence of wrongful or unlawful conduct on the part of the general counsel which was not forthcoming to permit the parties fully to develop the facts regarding delay I interpret.

Henry J. Read:

And when the Fifth Circuit then, when the company complains about the fact that the Board didn’t take delay into consideration.

The Board comes into the Fifth Circuit and takes diametrically opposed positions.

It says that time in this proceeding that we are reviewing here now, it says no unreasonable delay occurred.

If it did, it’s up to us and our discretion to assess it.

It’s up to us to decide what if anything to do about it and the limited judicial appellate procedure available to you doesn’t accord the Fifth Circuit the right to do anything about it.

And it says furthermore, even if the Fifth Circuit had the right to review our decisions in the delayed area, it cannot do it because if it does, its applying the doctrine of laches to defeat a public right.

Now, I submit to the Court that this position on the part of the Board is wrong and a number of very serious ways.

In the first place, I do not accept the fact that the statutory scheme whether we’d be talking about the National Labor Relations Act or whether we’re talking about the Administrative Procedure Act contemplates according by the administrative agency the right to judge itself fully, finally without review.

It may have the right, in certain areas of expertise, in which it’s assumed that they have expert knowledge to judge the actions of litigants before it but it has no expertise when it comes to judging its own derelictions.

I say the Board is wrong about that.

And secondly, on the question of laches, it’s a principle case relied upon by the Board is Electric Vacuum Cleaner decision to this Court and although it doesn’t appear in the decision here and it doesn’t appear in the Circuit Court decision the Electric Vacuum Cleaner, I would like to call the Court’s attention to the proceedings before the Board which I found, they’re not in my brief but I found them in volume 101 of the transcripts of records and copies of brief for the October term 1941, I think its docket number 588.

I found the Board proceeding in that case and the Board has done in that case precisely what it says, the Fifth Circuit can’t do in this and this is how that case came about.

In the Electric Vacuum Cleaner case, the Board issued a complaint and then 13 months later it issued a finding of some sort.

The company complained about the fact that there was a 13 months delay and it also complained about the fact that the Board hadn’t issued an intermediate report which procedurally it was suppose to have done.

The company filed a petition for review under Section 10 (f) of the Labor Act just as we have done here and the Board seeing what was developing withdrew its order which the company sought to review and then moved to dismiss the petition to review because there was nothing to review.

Sometime later, I think it was, well I don’t remember the exact date but it was sometime later on that the Board then issued a new order and because of what its secretary said in that record was an administrative error on the part of the Board and because of what the company claimed was undue delay, the Board excluded from the back pay period a nine-month period and exactly in the same fashion as the Fifth Circuit has done in this case.

Now, that position which the Board took in Electric Vacuum Cleaner in the Board proceeding was consistent with the position which the Board took in the injunction case in the Fifth Circuit because at that time, there was no talk whatsoever about the inability of the Board to take its own delays into consideration of fashion a back pay order.

In substance, we say that the Board should not be permitted to issue orders which require further definition than waiting inordinate length of time before initiating the administrative procedure which is required to define the company’s obligation and then second guess the company on what it did — what it did in its reinstatement program in the meantime, that’s our basic complaint in this case.

I started to make a reference to something I consider important and I would like to say it briefly because it’s not in my brief and that is I want to make a reference to Section 101.16 of the Board’s rules which provide that after a Board order directing payment of back pay has been issued or after enforcement of such order by a court decree, if in formal efforts to dispose of the matter proved unsuccessful the regional director — regional director is then authorize at his discretion to issue a back pay specification.

I consider that significant because they didn’t, they made no effort to work this out with us at all, they simply went in and file the specification seeking $342,000 in November 1961, four years and four months after the opinion of the Fifth Circuit enforcing the decree of reinstatement with the reservation which I have referred to and the compliance officer for the Board testified at the hearing that he knew that our letter that was in the record asking to be advised of any deviation from the obligations of compliance, we were on the record as wanting to comply and he did not make any effort to discuss with us and an informal resolution of all of the problems which were — which have to be resolved before there could be a clear definition of what the Board order require.

Are there any, are there any approximation on what to, what the (Inaudible)?

Henry J. Read:

Yes, sir.

Originally, the specification sought $342,000.

In the hearing, we eliminated 45 people in the back pay.

In the hearing before the examiner and before the Court, so that’s 45 people that we were right about.

The Board order reduced the amount to approximately 162,000.

The order of the Fifth Circuit reduced it to about 90,000 or 95,000 but there is interest running since 1964 so that I make a rough approximation of the company’s obligation if it wins this case is still somewhere in the neighborhood of a $140,000.

That’s if we win this case.

Now, if we lose this case, what the Board intends to do is go back and file another specification and try to exact back pay from 1961 to date I presume.

Now, you contended before the Court I gather from its opinion but you don’t want to admit it then?

Henry J. Read:

We contended that for this reason in which we lost on this point but if I may be permitted to say I still think I’m right.

Hugo L. Black:

As a lawyer, you should.

Henry J. Read:

Well, this was the point Justice Black, the Board order said to reinstate immediately upon application.

Now, I took the position that this meant, that this was prospective in nature, but we couldn’t reinstate immediately somebody who had applied a year before the Board order.

So we took the position in the Fifth Circuit in an attempt to win the case completely.

That if, that we were only responsible to reinstate those people who applied prospectively or after the date of the order, but we lost on that unfortunately, but that is the basis of the contention that I made at that junction that we didn’t know the minute it was on the basis of the interpretation of the order which I think has some relevance here as well because its another indefinite aspect of the order.

What is the actual difference between it now?

Henry J. Read:

The difference between?

Financial?

Henry J. Read:

Financial?

Yes, in money?

Henry J. Read:

Leaving out the interest?

[Voice Overlap] interest.

Henry J. Read:

Leaving out interest, it’s a difference if you don’t hold me to accurately figure —

I know, I understand.

Henry J. Read:

— of a 162 as compared to about 95.

About 95?

Henry J. Read:

Yes, sir.

And that’s all the difference you say?

Henry J. Read:

That’s all the difference, that’s all the difference.

Byron R. White:

What’s that the Board would have done that Congress didn’t —

Henry J. Read:

Well, we won a lot of the cases Justice White on the very issues that were contemplated by the Fifth Circuit in its enforcing language.

For instance, we won some misconduct cases.

Byron R. White:

Though the Trial Examiner ordered something like 200,000?

Henry J. Read:

No, no, no, the specification claim 342, the Trial Examiner ordered about a 162.

Byron R. White:

Alright.

And thus, what the Board gives?

Henry J. Read:

Thus, the Board made some minor adjustment which is insignificant, but then when we got to the Fifth Circuit, the Fifth Circuit eliminated a few more of the cases and I also put a cutoff date which cuts it down to about 95,000.

I know my time is about up, I would like to say just one word about —

Warren E. Burger:

Your time is up counsel.

Henry J. Read:

My time is up I’m sorry.

Arnold Ordman:

If I may have —

Warren E. Burger:

Mr. Ordman, I think your time is up too.

The case is submitted.

We thank you for submission.