National Labor Relations Board v. Walton Manufacturing Company National Labor Relations Board v. Florida Citrus Canners Cooperative

• Decision Date: 09 April 1962
• Docket Number: Nos. 77 and 94,s. 77 and 94
• Citation: 369 U.S. 404,7 L.Ed.2d 829,82 S.Ct. 853
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WALTON MANUFACTURING COMPANY, and Loganville Pants Company. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLORIDA CITRUS CANNERS COOPERATIVE
• Court: U.S. Supreme Court

369 U.S. 404

82 S.Ct. 853

7 L.Ed.2d 829

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v WALTON MANUFACTURING COMPANY, and Loganville

Pants Company.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v. FLORIDA CITRUS CANNERS COOPERATIVE.

Nos. 77 and 94.

Argued March 19 and 20, 1962.

Decided April 9, 1962.

Norton J. Come, Washington, D.C., for petitioner in Nos. 77 and 94.

Robert T. Thompson, Atlanta, Ga., for respondents in No. 77.

Mr. O. R. T. Bowden, Jacksonville, Fla., for respondent in No. 94.

PER CURIAM.

These cases are here on petitions for certiorari to the Court of Appeals for the Fifth Circuit, which refused enforcement of orders of the Board. We granted certiorari (368 U.S. 810, 812, 82 S.Ct. 30, 31, 7 L.Ed.2d 20, 21) because there was a seeming noncompliance by that court with our admonitions in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. We there said that while the 'reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view,' it may not 'displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' Id., at 488, 71 S.Ct. at 465.

Each of these cases involves alleged discriminatory discharges of employees in violation of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), 29 U.S.C.A. § 158(a)(3); and in each the Board ordered, inter alia, reinstatement of the workers in question with back pay. See 124 N.L.R.B. 1331, 124 N.L.R.B. 1182. In that type of case the Fifth Circuit has fashioned a special rule that was announced in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433, a decision rendered in 1941. In case of a ceaseand-desist order, the court said that it generally 'costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order.' Id., at 438. But the court established a more onerous rule for reinstatement cases:

'Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough. The duty to weigh and test the evidence is of course on the Board. This court may not overrule a fact conclusion supported by substantial evidence, even though we deem it incorrect under all the evidence. * * * In the matters now concerning us, the controlling and ultimate fact question is the true reason which governed the very person who discharged or refused to reemploy in each instance. There is no doubt that each employee here making complaint was discharged, or if laid off was not reemployed, and that he was at the time a member of the union. In each case such membership may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ. If no other reason is apparent, union membership may logically be inferred. Even though the discharger disavows it under oath, if he can assign no other credible motive or cause, he need not be delived. But it remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point.' Id., at 438—439.

This special rule concerning the weight of the evidence necessary to sustain the Board's orders for reinstatement with back pay has been repeatedly followed by the Fifth Circuit Court of Appeals in decisions refusing enforcement of that particular type of order. See National Labor Relations Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260; National Labor Relations Board v. Alco Feed Mills, 133 F.2d 419; National Labor Relations Board v. Ingram, 273 F.2d 670; National Labor Relations Board v. Allure Shoe Corp., 277 F.2d 231; Frosty Morn Meats, Inc., v. National Labor Relations Board, 296 F.2d 617.

The Court of Appeals in No. 77, National Labor Relations Board v. Walton Mfg. Co., 5 Cir., 286 F.2d 16, 25, in resolving the issue of credibility between witnesses for the employer and witnesses for the union, as to the reasons for the discharge of the employees in question, relied on the test stated in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., supra. In No. 94, National Labor Relations Board v. Florida Citrus Canners Cooperative, 5 Cir., 288 F.2d 630, decided less than three months later, the Tex-O-Kan opinion was not mentioned. But its test of credibility of witnesses seemingly was applied. 288 F.2d at 636 638.

There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases. National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479, and the Universal Camera Corp. case, both decided the same day, were cases involving reinstatement. They state a rule for review by Courts of Appeals in all Labor Board cases. The test in the Tex-O-Kan opinion for reinstatement cases is that the employer's statement under oath must be believed unless there is 'impeachment of him' or 'substantial contradiction,' or if there are 'circumstances' that 'raise doubts' they must be 'inconsistent with the positive sworn evidence on the exact point.' But the Examiner—the one whose appraisal of the testimony was discredited by the Court of Appeals in the Florida Citrus Canners Co-operative case—sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case:

'* * * The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case.' 340 U.S., at 496, 71 S.Ct. at 469.

For the demeanor of a witness

'* * * may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one who has a motive to deny, may be uttered with such hisitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.' Dyer v. MacDougall, 2 Cir., 201 F.2d 265, 269.

We are in doubt as to how the Court of Appeals would have decided these two cases were it rid of the yardstick for reinstatement proceedings fashioned in its Tex-O-Kan decision. The reviewing function has been deposited, not here, but in the Court of Appeals, as the Universal Camera case makes clear. We 'will intervene only * * * when the standard appears to have been misapprehended or grossly misapplied.' 340 U.S., at 491, 71 S.Ct. at 466. Since the special rule for reinstatement cases announced in the Tex-O-Kan opinion apparently colored the review given by the Court of Appeals of these two orders, we remand the cases to it for reconsideration.

Reversed.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.

These cases were brought here on the claim that the Court of Appeals had exceeded its reviewing power over orders of the National Labor Relations Board under the National Labor Relations Act, 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e), requiring that 'the record considered as a whole' be canvassed. The Court does not find that the court did not assess the evidence, including inferences fairly to be drawn, in accordance with the scope of judicial review outlined in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, and its companion case, National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. But it remands the cases to the Court of Appeals because of doubt whether that court was improperly influenced in its determinations by what is deemed an erroneous legal rule as applied in National Labor Relations Board v. Tex-O-Kan Flour Mills Co., 5 Cir., 122 F.2d 433.

I am constrained to disagree with the Court's disposition of these cases on three grounds. First, the Court assumes legal identity between two cases that raise entirely different issues. Second, in neither case did the Court of Appeals apply a special and more stringent rule of review in cases of reinstatement for wrongful discharge. Finally, I think the Tex-O-Kan rule, insofar as it was applied below in Walton and is disapproved here, is in accord with prior decisions of this Court and does not conflict with the substantial evidence rule.

The Court of Appeals in Walton accepted findings by the Trial Examiner and the Board, 124 N.L.R.B. 1331 that respondents had violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), 29 U.S.C.A. § 158(a)(1), by surveillance of union activities, interrogations of employees regarding the union, and threats of reprisals for union adherence. But the court refused to enforce an order to reinstate a number of employees with back pay, holding on its reading of the same dead record that the Board had before it, that there was not substantial evidence to support the Board's findings that the employees had been discharged or laid off because of their union membership and activities. 286 F.2d 16.

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