National Labor Relations Board v. Dinion Coil Co., No. 52

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: SWAN, , and L. HAND and FRANK, Circuit
• Citation: 201 F.2d 484
• Parties: NATIONAL LABOR RELATIONS BOARD v. DINION COIL CO.
• Docket Number: Docket 22421.,No. 52
• Decision Date: 24 December 1952

201 F.2d 484 (1952)

NATIONAL LABOR RELATIONS BOARD
v.
DINION COIL CO.

No. 52, Docket 22421.

United States Court of Appeals Second Circuit.

Argued November 6, 1952.

Decided December 24, 1952.

201 F.2d 485

COPYRIGHT MATERIAL OMITTED

201 F.2d 486

George J. Bott, David P. Findling, A. Norman Somers, Frederick U. Reel, Washington, D. C., and Rosanna A. Blake, Takoma Pk., Md., for National Labor Relations Board

J. A. Bruggeman, Barrett, Barrett, & McNagny, Fort Wayne, Ind., for respondent.

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

FRANK, Circuit Judge.

1. We think that, on the record as a whole, the evidence supports the findings of fact which in turn justify the Board's legal conclusions and order. Respondent offered no proof concerning the percentage of its employees who were union members on July 21, 1950. Absent such proof, the fact that, in the circumstances, more than 90% of those discharged on that date were members of the union suffices to make not unreasonable the Board's inference that respondent discriminated against union members, and that the discharges on that particular date were not caused by respondent's fear (engendered by President Truman's July 19 speech) that respondent's production of certain civilian goods would have to be drastically curtailed in favor of defense production — especially as, within a week of the election held on August 15 and at which the union succeeded, respondent began to hire back some of the discharged union employees and soon rehired almost all of them.

2. However, one employee, Tennent, although an active union member, was not discharged until July 28, a week later than the others. Holland, respondent's vice-president, testified that the sole reason for Tennent's discharge was his signal inefficiency or carelessness. According to Holland, when he learned in Baltimore on July 28 that a customer of respondent had received from it more than 6,000 defective transformers, he telephoned from Baltimore to respondent's plant directing the discharge; this he did, he testified, because the defects resulted from Tennent's failure properly to "set up" the machines on which the transformers were wound. Were this testimony believed, Tennent's discharge would not have violated the Act, 29 U.S. C.A. § 151 et seq.

But there was also this testimony by Tennent: Ayers (whom the Board, on sufficient evidence, found to be Holland's "right hand man") on July 28 "just a couple of minutes before quitting time" handed Tennent a discharge slip, and told Tennent he did not know the reason for the discharge. The discharge slip, identical in wording with those which had been handed to the employees discharged on July 21, read as follows: "Due to changes in our production requirements, it is necessary that we reduce our work force. Therefore, you are hereby notified that your employment with the Company is terminated." On December 5, 1950, Tennent, at respondent's request, returned to his former job with respondent. On February 6, 1951, he received an increase in pay. Moreover, Holland also testified that, if Tennent followed erroneous specifications, he would not have been responsible for the defective transformers; and that these transformers, after leaving Tennent's hands, had been subjected to "probably in the vicinity of between four and six inspections" for the purpose of discovering "just the thing * * * that failed in this job."

Respondent argues that there is nothing in this testimony which cannot reasonably be reconciled with Holland's testimony about the reasons for this discharge.¹ Whether, on that basis, we would

201 F.2d 487

over-turn the finding adverse to respondent we need not consider. For all the testimony was given orally before the Trial Examiner who stated in his report: "On the entire record, including his observation of the witnesses, the undersigned is not persuaded that Tennent was discharged by the Respondent for the reasons advanced by it. The undersigned does not credit Holland's testimony, to the effect that he ordered Tennent's discharge because defective material had been made in and shipped from the Respondent's plant." (Emphasis added.) The Board adopted this finding. If it stands, then Holland's testimony must be ignored. On that basis, we cannot say that the Examiner and the Board did not have ample evidence to support their conclusion that Tennent's union activities were the reason for his discharge: Although he was fired a week later than the other union members, the firing occurred before the election; when the company notified him of his discharge on July 28, his inefficiency or negligence was not assigned as a reason;² despite this alleged inefficiency, he was later rehired and subsequently his pay was increased. These facts constitute a sufficient foundation for a rational inference that Tennent's union activity induced the discharge

If, in similar circumstances, a trial judge made such a finding, we would be obliged to accept it. For the pivotal factor here is the Examiner's disbelief in Holland's testimony, a disbelief that rested on an evaluation of Holland's credibility, which in turn the Examiner founded upon "his observation of the witnesses." Repeatedly, the courts have said that, since observation of such "demeanor evidence" is open to a trier of the facts when witnesses testify orally in his presence, and since such observation is not open to a reviewing tribunal, that fact-trier's findings, to the extent that they comprise direct or "testimonial" inferences,³ are ordinarily unreviewable. True, demeanor evidence may sometimes mislead; but our courts regard it nevertheless as an excellent clue to the trustworthiness of testimony. The Federal Civil Procedural Rules, 28 U.S.C.A., reflect this view.⁴

It has had a long history. In the earlier period of Roman legal development, according

201 F.2d 488

to Millar, the witnesses testified orally before the judex, and the practice of having oral testimony heard by the judge prevailed originally in the Roman-canonical procedure.⁵ Ullman tells us that the 14th century Postglossators — who, as judges or advocates, "had their eyes fixed upon the practical administration of the law" — maintained that the "indispensable requisite for the judge to form his opinion on the trustworthiness of witnesses was that they appeared before him personally. * * * The personal impressions made upon the judge by the witnesses, their way of answering questions, their reactions and behavior in Court, where the only means of ascertaining whether their statements were trustworthy or not. * * * It was thought necessary, therefore, that the judge * * * should put on record in the files any specific reactions, e.g., that the witness stammered, hesitated in replying to a specific question, or showed fear during the interrogation * * *."⁶ Subsequently, however, written testimony became in general the norm in canon and lay continental courts until the 19th century.⁷ In English chancery it came about that the "canon law influence prevented the oral examination of witnesses save as an extraordinary measure," while at English common law the testimony was oral.⁸ For the most part, America inherited this difference between chancery and common law procedures. In the federal courts, except for a short period from 1789 to 1802, oral testimony in open court was not required in equity litigation; indeed, for many years it was virtually banned.⁹ But Rule 46 of the Equity Rules of 1912 reverted to the 1789-1802 practice of reliance on oral testimony as the normal method in equity suits. The present Civil Rules continue that valuable reform

The result of the stress on demeanor is to confer immense discretion¹⁰ on those who, in finding facts, rely on oral testimony.¹¹ But few doubt that the risk involved is, on the whole, well worthwhile. This is true despite the fact that methods of evaluating the credibility of oral testimony do

201 F.2d 489

not lend themselves to formulations in terms of rules and are thus, inescapably, "un-ruly." In his brilliant discussion of evidence, Sir James Stephen illuminated the difficult task of a trial judge who, observing a witness in the brief period when the witness appears in court, tries to ascertain how far the witness' "powers of observation and memory * * * enable him to tell the truth" and "how far the innumerable motives, by any one of which he may be activated, dispose him" to do so. "No rules of evidence * * * can perceptibly affect this difficulty," Stephen remarked. "Judges i.e., trial judges must deal with it as well as they can by the use of their natural faculties and acquired experience, and the miscarriages of justice in which they will be involved by reason of it must be set down to the imperfection of our means of arriving at truth. The natural and acquired shrewdness and experience by...