National Labor Rel. Bd. v. Universal Camera Corp.

• Decision Date: 10 January 1950
• Docket Number: Docket 21395.,No. 54,54
• Parties: NATIONAL LABOR RELATIONS BOARD v. UNIVERSAL CAMERA CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

179 F.2d 749 (1950)

NATIONAL LABOR RELATIONS BOARD v. UNIVERSAL CAMERA CORPORATION.

No. 54, Docket 21395.

United States Court of Appeals Second Circuit.

Argued December 6, 1949.

Decided January 10, 1950.

A. Norman Somers, Asst. Gen. Counsel, Washington, D. C., David P. Findling, Associate Gen. Counsel, Ruth Weyand, Asst. Gen. Counsel, William J. Avrutis, Atty., National Labor Relations Board, Washington, D. C., for petitioner.

Kaye, Scholer, Fierman & Hays, New York City, Frederick R. Livingston, New York City, for respondent.

On petition of the National Labor Relations Board for an order, "enforcing" an order of the Board to "cease and desist from discharging * * * any employee because he has filed charges or given testimony under the Act"; to "offer one, Imre Chairman, immediate and full reinstatement to his former, or a substantially equivalent, position"; to make him "whole for any loss of pay he has suffered because of the Respondent's discrimination against him"; and to post an appropriate notice.

Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.

L. HAND, Chief Judge.

This case arises upon a petition to enforce an order of the Labor Board, whose only direction that we need consider was to reinstate with back pay a "supervisory employee," named Chairman, whom the respondent discharged on January 24, 1944, avowedly for insubordination. If the Board was right, the discharge was in fact for giving testimony hostile to the respondent at a hearing conducted by the Board to determine who should be the representative of the respondent's "maintenance employees." Chairman was an assistant engineer, whose duties were to supervise the "maintenance employees," and he testified at the hearing in favor of their being recognized as a separate bargaining unit. The respondent opposed the recognition of such a unit, and several of its officers testified to that effect, among whom were Shapiro, the vice-president, Kende, the chief engineer, and Politzer, the "plant engineer." The examiner, who heard the witnesses, was not satisfied that the respondent's motive in discharging Chairman was reprisal for his testimony; but on review of the record a majority of the Board found the opposite, and on August 31, 1948, ordered Chairman's reinstatement. The respondent argues (1) that the majority's findings are subject to a more searching review under the New Act than under the Old; (2) that in the case at bar the findings cannot be supported, because they are not supported by "substantial evidence"; and (3) that its liability to Chairman, if any, ended with the passage of the New Act.

The substance of the evidence was as follows. On November 30, 1943, Chairman and Kende testified at the hearing upon representation, after which Kende told Chairman that he had "perjured" himself; and on the stand in the proceeding at bar Kende testified that Chairman "was either ignorant of the true facts regarding the organization within the company * * * or * * * he was deliberately lying, not in one instance, but in many instances, all afternoon"; and "that there was definite doubt regarding his suitability for a supervisory position of that nature." The examiner believed the testimony of Chairman that two other employees, Goldson and Politzer, had cautioned him that the respondent would take it against him, if he testified for the "maintenance employees"; and Kende swore that he told another employee, Weintraub — the personnel manager — that he thought that Chairman was a Communist. After Politzer reported to him on December second or third that this was a mistake, Kende told him to keep an eye on Chairman. From all this it is apparent that at the beginning of December Kende was hostile to Chairman; but he took no steps at that time to discharge him.

Nothing material happened until the very end of that month, when Chairman and Weintraub got into a quarrel, about disciplining a workman, named Kollisch. Chairman swore that Weintraub demanded that he discharge Kollisch for loafing; and Weintraub swore that he only demanded that Chairman put Kollisch to work. In any event high words followed; Chairman told Weintraub that he was drunk; Weintraub brought up a plant guard to put Chairman out of the premises, and the quarrel remained hot, until one, Zicarelli, a union steward, succeeded in getting the two men to patch up an apparent truce. Two days later Weintraub saw Politzer and told him that he had heard that Politzer was looking into Chairman's statement that Weintraub was drunk, and on this account Weintraub asked Politzer to discharge Chairman. Politzer testified that he answered that Chairman was going to resign soon anyway, and this the examiner believed. He did not, however, believe Politzer's further testimony that Chairman had in fact told Politzer that he was going to resign; he thought that Politzer either was mistaken in so supposing, or that he had made up the story in order to quiet Weintraub. Probably his reason for not believing this part of Politzer's testimony was that he accepted Chairman's testimony that ten days later Politzer intimated to Chairman that it would be well for him to resign, and Chairman refused. Whatever the reason, Weintraub did not, after his talk with Politzer, press the matter until January 24, 1944, when, learning that Chairman was still in the factory, he went again to Politzer and asked why this was. When Politzer told him that Chairman had changed his mind, Weintraub insisted that he must resign anyway, and, upon Politzer's refusal to discharge him, they together went to Kende. Weintraub repeated his insistence that Chairman must go, giving as the reason that his accusation of drunkenness had undermined Weintraub's authority. Kende took Weintraub's view and Politzer wrote out an order of dismissal. No one testified that at this interview, or any time after December first, any of the three mentioned Chairman's testimony at the representation hearing.

As we have said, the examiner was not satisfied that the Board had proved that Chairman's testimony at the representation proceeding had been an actuating cause of his discharge; but, not only did the majority of the Board reverse his ruling as to that, but they also overruled his finding that Politzer had told Weintraub on January first that Chairman was going to resign. They then found that Kende and Weintraub had agreed to bring about Chairman's discharge, at some undefined time after December first, because of Chairman's testimony; and that Weintraub's complaint on January 24 was a cover for affecting that purpose. Whether these findings were justified is the first, and indeed the only important, question of fact; and as a preliminary point arises the extent of our review.

This has been the subject of so much uncertainty that we shall not try to clarify it; but we must decide what change, if any, the amendment of 1947¹ has made. Section 10(e) now reads that the findings "shall be conclusive" "if supported by substantial evidence on the record considered as a whole"; and the original was merely that they should be conclusive, "if supported by evidence." In National Labor Relations Board v. Pittsburgh Steamship Company² the Supreme Court refused to say whether this had made any change, and remanded the case to the court of appeals to decide the point in the first instance. Of the four decisions which have discussed it, two have held that no change, or no material change, was made;³ one has held that the amendment was intended "to give the courts more latitude on review," but did not decide how much;⁴ and the fourth merely held that it did not make the review a "hearing de novo."⁵ (Since the opinion in the last was written by the same judge who wrote the first, it is to be read as deciding that there was no change.) It is true that there were efforts, especially in the House, to give to courts of appeal a wider review than before; but the Senate opposed these, and, so far as concerns the adjective, "substantial," it added nothing to the interpretation which the Supreme Court had already put upon the earlier language.⁶ The most probable intent in adding the phrase, "on the record considered as a whole," was to overrule what Congress apparently supposed — perhaps rightly — had been the understanding of some courts: i. e. that, if any passage could be found in the testimony to support a finding, the review was to stop, no matter how much other parts of the testimony contradicted, or outweighed, it. That the words throughout section ten were chosen with deliberation and care is evident from the changes in § 10(c), apparently intended to confine the Board to the record before it, and in § 10(b), restricting it in the admission of evidence to Rule 43(a) of the Federal Rules of Civil Procedure, 28 U.S. C.A. It appears to us that, had it been intended to set up a new measure of review by the courts, the matter would not have been left so at large. We cannot agree that our review has been "broadened"; we hold that no more was done than to make definite what was already implied.

Just what that review was is another and much more difficult matter — particularly, when it comes to deciding how to treat a reversal by the Board of a finding of one of its own examiners. Obviously no printed record preserves all the evidence, on which any judicial officer bases his findings; and it is principally on that account that upon an appeal from the judgment of a district court, a court of appeals will hesitate to reverse. Its position must be: "No matter what you saw of the witnesses and what else you heard than these written words, we are satisfied from them alone that you were clearly wrong. Nothing which could have happened that is not recorded, could have justified your conclusion in the face of what is before us." That gives such findings great immunity, which the Rules⁷ extend even to the findings of masters, when reviewed by a district judge. The...