National Labor Relations Bd. v. Southland Mfg. Co.

• Decision Date: 31 December 1952
• Docket Number: No. 6486.,6486.
• Citation: 201 F.2d 244
• Parties: NATIONAL LABOR RELATIONS BOARD v. SOUTHLAND MFG. Co.
• Court: U.S. Court of Appeals — Fourth Circuit

201 F.2d 244 (1952)

NATIONAL LABOR RELATIONS BOARD v. SOUTHLAND MFG. Co.

No. 6486.

United States Court of Appeals Fourth Circuit.

Argued November 12, 1952.

Decided December 31, 1952.

Mary E. Williamson, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Frederick U. Reel, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Richard E. Wardlow and F. Grainger Pierce, Charlotte, N. C. (W. S. Blakeney and Pierce & Blakeney, Charlotte, N. C., on the brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board which directed the Southland Manufacturing Company of Wilmington, N. C., to cease and desist from certain unfair labor practices and to restore with back pay four employees found to have been discriminatorily discharged because of union membership and activities. The company resisted enforcement of the order on the ground that it was not supported by substantial evidence. We think that it was so supported. The facts are fully set forth in the decision and order of the Board and the intermediate report of the trial examiner and need not be repeated here. It is sufficient to say that, upon consideration of the whole record, there is substantial evidence to support the findings of the Board to the effect that, upon an attempt being made to organize the company's employees, it engaged, through its supervisory employees, in interrogations, threats and coercion, in violation of 8(a) (1) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a) (1), for the purpose of preventing their organization, and in violation of 8(a) (3) of the act discharged on account of union membership and activities, four of them who had long periods of service. The company does not seriously contest the findings as to the 8 (a) (1) violations but denies that the four employees were discharged in violation of 8(a) (3).

Upon review of the Board's action, we do not try the facts as a trial court nor do we review them as upon an appeal in equity. Our function is limited to determining upon the record, considered as a whole, whether the findings of the Board are supported by substantial evidence, i. e., by evidence which presents a substantial basis for the findings. The questions presented as to the discharges are pure questions of fact and we cannot say that the findings of the Board are without support by substantial evidence on the record considered as a whole. As we said in Hartsell Mills Co. v. N. L. R. B., 4 Cir., 111 F.2d 291, 293:

"It must be remembered, in this connection, that the question involved is a pure question of fact; that, in passing upon it, the Board may give consideration to circumstantial evidence as well as to that which is direct; that direct evidence of a purpose to violate the statute is rarely obtainable; and that where the finding of the Board is supported by circumstances from which the conclusion of discriminatory discharge may legitimately be drawn, it is binding upon the courts as they are without power to find facts or to substitute their judgment for that of the Board."

See also N. L. R. B. v. English Mica Co., 4 Cir., 195 F.2d 986; N. L. R. B. v. United Distillers of America, 4 Cir., 188 F.2d 353; N. L. R. B. v. Greensboro Coca Cola Bottling

Co., 4 Cir., 180 F.2d 840, 843; N. L. R. B. v. Dixie Shirt Co., 4 Cir., 176 F.2d 969, 973-974; N. L. R. B. v. Piedmont Wagon & Mfg. Co., 4 Cir., 176 F.2d 695, 696; N. L. R. B. v. Harris-Woodson Co., 4 Cir., 162 F.2d 97, 101.

The difference between review in equity, or in law of a case heard without a jury, and the review of an order of an administrative agency, is that in the former case we are given power to review the facts, whereas, in the latter, our power is limited to setting aside the findings of the agency if not supported by substantial evidence. In the one case we review the facts, in the other the sufficiency of the evidence to sustain the agency's findings. If Congress had intended to give a power of review similar to that on appeals in equity, it knew perfectly well how to do so, as shown by the provision for review of Tax Court decisions. See 26 U.S.C. § 1141(a), as amended. The proposition was fully considered and was rejected because the effect of its adoption would have been to destroy the unified administration attained by the creation of a single agency and to make of the eleven courts of appeals eleven super agencies. Adequate judicial review was granted when the courts were given power to determine whether the findings of the agency have substantial support in the record considered as a whole; and it should be noted that such determination is analogous to the other powers of review vested in the courts of appeals with respect to agency action, all of which are designed to grant redress against action which is illegal or arbitrary. See 5 U.S.C.A. § 1009(e).

When Congress used the test of "substantial" evidence, it was not legislating in a vacuum. The term was well understood and had been recently defined by the Supreme Court, speaking through Chief Justice Hughes, in Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126. It was there said "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". In support of that definition, the court cited the decision of this court in Appalachian Electric Power Co. v. N. L. R. B., 4 Cir., 93 F.2d 985, 989, where we said:

"We are bound by the Board\'s findings of fact as to matters within its jurisdiction, where the findings are supported by substantial evidence; but we are not bound by findings which are not so supported. 29 U.S.C.A. § 160(e) (f); Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 57 S.Ct. 648, 650, 81 L.Ed. 965. The rule as to substantiality is not different, we think, from that to be applied in reviewing the refusal to direct a verdict at law, where the lack of substantial evidence is the test of the right to a directed verdict. In either case, substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences."

The National Labor Relations Act, section 10(e) provided that the findings of the Board if supported by "evidence" should be conclusive. The Supreme Court interpreted this to mean "substantial" evidence and defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". In section 10(e) of the Labor-Management Relations Act the language of section 10(e) of the earlier statute was amended by inserting the word "substantial" and providing that the record as a whole should be considered, so that the provision now reads "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive". 29 U.S. C.A. § 160(e) as amended.

The provision that the record shall be considered as a whole does not provide for review of the facts as in equity or anything analogous to such review. It simply means that, in determining whether or not the findings are supported by substantial evidence, the court shall look to the whole record and not to isolated portions thereof, as had been the practice of some courts, but not of this court. Evidence of circumstances, considered without reference to other circumstances appearing in the record, might well tend to support a conclusion but have no such tendency when considered in the light of other portions of the record. The requirement of the statute is that the whole record be considered in determining what conclusions can reasonably be drawn from the evidence relied on, not that the court shall attempt to pass on the credibility of witnesses or find the facts anew from the preponderance of the evidence. As we said in Eastern Coal Corp. v. N. L. R. B., 4 Cir., 176 F.2d 131, 135:

"Our conclusion is that although the Board is warned to decide labor controversies upon the whole record and in accordance with the preponderance of the evidence, the court in reviewing the decisions is not empowered to weigh one bit of evidence against another with a view of determining which it will accept as true or to substitute its judgment for that of the Board in determining what ultimate facts are established by the circumstances in evidence. The court reviews the findings of the Board as it reviews the findings of a jury on a motion n. o. v., that is to say, the findings, like the verdict, must stand if there is substantial evidence in the record to support them."

There is nothing to the contrary in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 459, 95 L.Ed. 456. The court there speaks of the dissatisfaction arising out of the view that the isolated portions of the record, apart from the record as a whole, might be considered in applying the substantial evidence rule, saying:

"The very smoothness of the `substantial evidence\' formula as the standard for reviewing the evidentially validity of the Board\'s findings established its currency. But the inevitably variant applications of the standard to conflicting evidence soon brought contrariety of views and in due course bred criticism. Even though the whole record may have been canvassed in order to determine whether the evidentially foundation of a determination by the Board was `substantial,\' the phrasing of this Court\'s process of review readily lent itself

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