National Labor Rel. Bd. v. Universal Camera Corp., No. 54

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, , and SWAN and FRANK, Circuit
Citation179 F.2d 749
PartiesNATIONAL LABOR RELATIONS BOARD v. UNIVERSAL CAMERA CORPORATION.
Decision Date10 January 1950
Docket NumberDocket 21395.,No. 54

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.


179 F.2d 750

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.

179 F.2d 751

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...

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215 practice notes
  • U.S. v. Hubbell, No. 98-3080
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 26, 1999
    ...the Word." United States v. McKinney, 919 F.2d 405, 422 (7th Cir.1990) (Posner, J., concurring); see also NLRB v. Universal Camera Corp., 179 F.2d 749, 753 (2d Cir.1950) (L. Hand, C.J.), vacated, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). That is to say, we believe that a § 594(e) ref......
  • NLRB v. Gotham Shoe Manufacturing Co., No. 121
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 14, 1966
    ...U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50 (1940). 1 It will be recalled that in Universal Camera the Supreme Court vacated our judgment, 179 F.2d 749, 751-754, that we were barred from taking into account the report of the examiner on questions of fact insofar as that report was rejected by......
  • Prevish v. Northwest Medical Center Oil City Campus, CENTER--OIL
    • United States
    • Superior Court of Pennsylvania
    • April 4, 1997
    ...McCandless Township v. Wylie, 375 Pa. 378, 100 A.2d 590 (1953), citing National Labor Relations Board v. Universal Camera Corporation, 179 F.2d 749 (2d Cir.1950). See also, Chiropractic, supra (under Pennsylvania law, an unliquidated personal injury tort claim is not a property right and is......
  • Universal Camera Corp v. National Labor Relations Board, No. 40
    • United States
    • United States Supreme Court
    • February 26, 1951
    ...files charges or gives testimony under that Act. The court below, Judge Swan dissenting, decreed full enforcement of the roder. 2 Cir., 179 F.2d 749. Because the views of that court regarding the effect of the new legislation on the relation between the Board and the courts of appeals in th......
  • Request a trial to view additional results
215 cases
  • U.S. v. Hubbell, No. 98-3080
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 26, 1999
    ...the Word." United States v. McKinney, 919 F.2d 405, 422 (7th Cir.1990) (Posner, J., concurring); see also NLRB v. Universal Camera Corp., 179 F.2d 749, 753 (2d Cir.1950) (L. Hand, C.J.), vacated, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). That is to say, we believe that a § 594(e) ref......
  • NLRB v. Gotham Shoe Manufacturing Co., No. 121
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 14, 1966
    ...U.S. 72, 82, 61 S.Ct. 83, 89, 85 L.Ed. 50 (1940). 1 It will be recalled that in Universal Camera the Supreme Court vacated our judgment, 179 F.2d 749, 751-754, that we were barred from taking into account the report of the examiner on questions of fact insofar as that report was rejected by......
  • Prevish v. Northwest Medical Center Oil City Campus, CENTER--OIL
    • United States
    • Superior Court of Pennsylvania
    • April 4, 1997
    ...McCandless Township v. Wylie, 375 Pa. 378, 100 A.2d 590 (1953), citing National Labor Relations Board v. Universal Camera Corporation, 179 F.2d 749 (2d Cir.1950). See also, Chiropractic, supra (under Pennsylvania law, an unliquidated personal injury tort claim is not a property right and is......
  • Universal Camera Corp v. National Labor Relations Board, No. 40
    • United States
    • United States Supreme Court
    • February 26, 1951
    ...files charges or gives testimony under that Act. The court below, Judge Swan dissenting, decreed full enforcement of the roder. 2 Cir., 179 F.2d 749. Because the views of that court regarding the effect of the new legislation on the relation between the Board and the courts of appeals in th......
  • Request a trial to view additional results

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