JH Rutter-Rex Manufacturing Company v. NLRB

• Decision Date: 01 October 1968
• Docket Number: No. 23744,23909.,23744
• Citation: 399 F.2d 356
• Parties: J. H. RUTTER-REX MANUFACTURING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 356 (1968)

J. H. RUTTER-REX MANUFACTURING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 23744, 23909.

United States Court of Appeals Fifth Circuit.

July 23, 1968.

Rehearings Denied October 1, 1968.

Henry J. Read, Peter H. Beer, Richard B. Montgomery, New Orleans, La., for J. H. Rutter-Rex Mfg. Co. Inc.

Ralph N. Jackson, New Orleans, La., Jacob Sheinkman, James J. Graham, New York City, for Amalgamated Clothing Workers of America, AFL-CIO.

Marcel Mallet-Prevost, Asst. Gen. Counsel, William S. Bishop, Atty., NLRB, Washington, D. C., for National Labor Relations Board.

Ralph N. Jackson, New Orleans, La., for intervenor.

Before COLEMAN and SIMPSON, Circuit Judges, and DAWKINS, District Judge.

Rehearings En Banc Denied October 1, 1968.

COLEMAN, Circuit Judge:

This litigation beclouds the highly respectable idea that all litigation must, some day, come to an end. 164 volumes of the Federal Reporter 2d have been published since this case first appeared in this Court, 229 F.2d 816, 1956. Indeed, the controversy has survived a complete turnover, save one, of the judges in active service on this Court.

I

To go back to the origins of the difficulty: In May, 1953, the Amalgamated Clothing Workers of America, CIO, attempted to organize the 600 employees of the J. H. Rutter-Rex Manufacturing Company, Inc. On July 30, 1953, the president of the Company, made a speech at the plant in which he stated that "he would not tolerate `any damn union in the plant'; that the last time the union had tried to organize his plant he had `personally fired 300 girls', and would fire 400 to 500 more `if necessary'", 229 F.2d at 817. The record in that appeal further reveals that a Company vice-president had exercised impermissible surveillance of employee union activities, had threatened to fire other employees for their union activities, and had coercively interrogated others. Some employees had been discriminatorily discharged. The situation was such that in its opinion reviewing that stage of the case a panel of this Court Chief Judge Hutcheson and Judges Rives and Cameron stated that the record was permeated throughout with cogent testimony of company antipathy toward the union, 229 F.2d at 819. The Court directed enforcement of the Board Order, which had found Rutter-Rex guilty of § 8(a) (1) and § 8(a) (3) violations of the National Labor Relations Act.

In 1957, we had the parties again, 245 F.2d 594. That proceeding was initiated by a petition of the Board to enforce its order dated February 13, 1956, requiring Rutter-Rex to offer immediate and full reinstatement to certain of its former employees. Again, this Court Chief Judge Hutcheson and Judges Jones and Brown decreed enforcement.

We recite the foregoing as of some assistance to an understanding of the issues we are now required to resolve. It convinces us, of course, that Rutter-Rex is not, and has not been, a babe in the woods, now about to be victimized for ignorance or inadvertent ineptitude in the field of employer-employee relations, as regulated by the National Labor Relations Act.

Enforcing the Board Order, our decree of August 19, 1957, by reference thereto, directed the Company to offer reinstatement, upon application, to all employees who went on strike on April 21, 1954, or thereafter, and to:

"make whole such strikers for any loss of pay they may have suffered by reason of the Company\'s refusal, if any, to reinstate them, by paying to each of them a sum of money equal to that which he would normally have earned, less his net earnings, during the period from 5 days after the date on which he applies for reinstatement to the date of the Company\'s offer of reinstatement. Loss of pay shall be computed on a quarterly basis", 115 NLRB 388.

The present controversy was commenced on November 14, 1961, by a Backpay Specification issued by the Regional Director, which notified the Company of its right to file an answer thereto within fifteen days. The Company filed an application in this Court for an injunction, seeking to enjoin the Board from proceeding further with the Backpay Specification because of the lapse of time in filing it. We denied a permanent injunction, 305 F.2d 242, concluding that we should not take any further action prior to such time as a final order might be entered by the Board or other final action taken. Special note is taken, however, that this Court then asserted that "there has been inordinate delay in this case." Inordinate means "in excess of reasonable limits".

We now have before us the petition of the Company, filed June 8, 1966, to review the Supplemental Backpay Order of the Board issued on June 3, 1966, 158 NLRB 1414. We likewise have the petition of the Amalgamated Clothing Workers of America, AFL-CIO (the Union) to review, set aside, and modify certain portions of that order. By its answer, the Board requests that its Supplemental Order be enforced in full. These consolidated proceedings No. 23,744 and No. 23,909 present us with a record 5297 pages in length, in addition to 297 pages of Exhibits, and more than 600 pages of briefs. We have had the case under analysis and consideration for more than half a year, as a result of which we are convinced that the appropriate disposition of the issues raised is really not so abstruse or complex as counsel, in their commendable zeal, have conceived it to be. All contentions have been thoroughly considered but this opinion will discuss only those regarded as meritorious and necessary to the appropriate disposition of the case. There is no inclination that the opinion shall unnecessarily rival the length, or the volume, of the material submitted.

As a matter of fact, we see that most, if not all, of the contentions on behalf of the Company as to generally controlling legal principles were raised and settled in W. C. Nabors Co. v. National Labor Relations Board, 5 Cir., 1963, 323 F.2d 686. Nabors was a reinstatement and backpay case, in which the Board delayed its Backpay Specification from May 31, 1955, to March 25, 1959, a period of almost four years. We there held that Nabors could not avail itself of the defense of laches, could not invoke state statutes of limitation, and could not introduce evidence to show irreparable injury caused by undue delay. The Supreme Court denied certiorari, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964). Nabors further held that backpay, as used in the applicable statute, includes moneys which it is reasonably found that an employee would actually have received in the absence of unlawful discrimination; that lack of available jobs is an affirmative defense, that the burden of establishing such a defense rests on the employer, and the burden likewise rests with an employer attempting to prove a former employee's failure to make reasonable search for other employment.

II

We start our analysis of the pending issues by recalling that the Company began digging its costly pit by refusing to bargain with the duly certified Union, National Labor Relations Board v. J. H. Rutter-Rex Manufacturing Co., 5 Cir., 1957, 245 F.2d at 595, 596. The Board ordered reinstatement of the striking employees. On June 19, 1957, we granted enforcement. The Order so enforced required reinstatement within five days after application therefor, plus backpay until the date of the offer of reinstatement, loss of pay to be computed on a quarterly basis.

The Backpay Specification of November, 1961, asserted backpay claims in the total amount of $342,000, up to July 1, 1961. Six hundred employees had gone on strike. 211 were reinstated before the strike ended. 299 were out on strike when the Union called it off, April 21, 1954. 132 were reinstated before the end of 1955, and by the close of 1956 there were but 70 who had not been reinstated. The Company contended that there were fifteen employees who were not entitled to reinstatement because they had been guilty of strike misconduct, including violence. The Board agreed as to ten of these. The Board disqualified two employees for failure to apply for reinstatement, two were disqualified for abandoning the industry, and one was disqualified for non-availability.

In the order now under review, the Board awarded $159,016.32 in backpay to 171 individuals, less than half of the amount asserted in the Specification. The Trial Examiner denied backpay to approximately thirty-five. On review, the Board in its Supplemental decision and order of June 3, 1966, 158 NLRB 1414, adopted the findings, conclusions and recommendations of the Examiner in substantial part, and modified the Examiner's award as to twelve former employees.

For reasons to be discussed, the Company says that it should not have to pay anything.

III

The Union says that the ten employees should not have been disqualified for strike misconduct and that other employees were erroneously denied backpay in varying amounts. We are of the opinion that the findings of the Board in these cases are substantially supported by the record and that the order correctly applied the law. As to these items we decline to upset the Order.

Nor do we approve Union contentions that the Board erred both in reducing the gross backpay claims by 6% to take care of absences and in awarding 6% interest on the backpay awards from June 2, 1964, rather than from the date of discrimination.

IV

We now proceed to consider the Company attack. As usual, the Company says, in effect, that all is the fault of the Board; the Board responds that all is the fault of the employer. As often happens, we do not wholly agree with either. We do agree with the Board that:

"It is not the function of this Court to try the case de novo or to substitute its own appraisal of the evidence for that of the Board. If the Board has conceived the law correctly, if it has not

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