1 - National Labor Relations Board

Enforcement Litigation 157
tuating the policies of the Act," the court noted that in Laney &
Duke only a few employees were illiterate, whereas here the
Board could reasonably infer that a significant number of employees
were unable to read. Moreover, in Laney & Duke, the
Board's order had required that the notice "be read to each of
the respondent's employees, singly or collectively," whereas here
the order left to the employer the selection of the officer or agent
to read the notice and the calling of the "meeting or meetings
of all the employees" at which it was to be read. In view of the
Board's findings of numerous infringements of the employees'
section 7 rights and of a low literacy level among the company
employees, the court concluded that the requirement that the
notice be read could not be regarded as an abuse of discretion.
3. Backpay Issues
Two cases decided by courts involved significant issues concerning
the determination of the amount of backpay due to discriminatees.
In one, 84 the Third Circuit sustained the Board's
use of seniority to determine whether certain discriminatees
would, absent the discrimination against them, have been discharged
for economic reasons when the employer reduced his
work force. The employer's evidence as to the criteria which it
would have used to select employees for discharge was rejected
by the Board as contrived for the purpose of denying the discriminates
backpay. The court pointed out that the burden was
on the employer to prove, in mitigation of its backpay liability,
that the discriminatorily discharged employees would have been
laid off even absent discrimination. Here, the employer, although
given a full and fair opportunity to do so, failcd to supply credible
evidence to indicate what the situation would have been absent
discrimination. However, it admittedly used length of service as
one factor in determining which employees to retain. On this
record, the result which would have been reached in the absence
of discrimination could be determined only approximately, and
the Board's use of the seniority standard, which represented
normal industrial practice generally, could not automatically
be deemed unreasonable merely because the employer had no
formal seniority system.
In Rutter-Rex," the Fifth Circuit found that the Board's delay
in instituting a backpay specification until 4 years after the
" Jack Buncher d/b/a The Buncher Co. v. N.L R.B., 905 F.2d 787, cert. denied 396 U.S. 828.
"J. H. Rutter-Rex Mfg. Co. v. N.L.R.B., 399 F 2d 356, company petition for a writ of
certiorari was denied 393 U.S. 1117.