Pittsburgh SS Co. v. National Labor Relations Bd.
| Decision Date | 08 May 1950 |
| Docket Number | No. 10372.,10372. |
| Citation | 180 F.2d 731 |
| Parties | PITTSBURGH S. S. CO. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Nathan L. Miller, Cleveland, Ohio (Nathan L. Miller, Lee C. Hinslea, Lucian Y. Ray, Cleveland, Ohio, on brief, Leckie, McCreary, Schlitz & Hinslea, Cleveland, Ohio, of counsel), for petitioner.
Robert L. Stern, Washington, D. C. (Robert L. Stern, David P. Findling, A. Norman Somers, Frederick U. Reel, and Harvey B. Diamond, Washington, D. C., on brief), for respondent.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
Writ of Certiorari Granted May 8, 1950. See 70 S.Ct. 842.
This case is before the court on remand from the Supreme Court, 337 U.S. 656, 69 S.Ct. 1283, which reversed a judgment of this court 167 F.2d 126 denying enforcement of an order of the National Labor Relations Board based upon unfair labor charges. The Supreme Court remanded the case to this court for consideration of the applicability and possible effect both upon Board procedures and the scope of judicial review of Board orders of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001 et seq., and the Taft-Hartley Act, 61 Stat. 136, 29 U.S.C.Supp. I, § 141 et seq., 29 U.S. C.A. § 141 et seq., enacted between issuance of the Board's order and this court's decision.
The applicable provisions of the Administrative Procedure Act are contained in § 1006(c), 1009(a), (c) and (e). They relate to evidence and judicial review. The relevant sections of the Taft-Hartley Act are contained in § 158(c), 160(b), (c) and (e). They relate not only to rules of evidence and procedure in the trial of labor cases and review in this court, but also to the expression of opinion and to the reinstatement and payment of back pay to employees suspended or discharged.
Both of these statutes are remedial. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 10, 61 S.Ct. 77, 85 L.Ed. 6. A remedial provision is applicable to pending actions. Ex parte Collet, 337 U.S. 55, 69 S.Ct. 944, 959. In accordance with this rule since the decision of the Board preceded the enactment and the review was subsequent to the enactment, the Administrative Procedure Act and the Taft-Hartley Act were applicable to the judicial review.
The Board concedes that the review in this court is controlled by the two statutes, but contends that the scope of judicial review as to findings of fact has in no way been affected by them. We think this contention is erroneous. The provisions of § 10(e) of the Administrative Procedure Act that the reviewing court shall hold unlawful and set aside agency action, findings and conclusions found to be "unsupported by substantial evidence" and that in making this determination the court shall "review the whole record," is new. Moreover, the rules concerning evidence have been expressly changed by both the Taft-Hartley Act and the Administrative Procedure Act. Section 10(b) of the Wagner Act provided that "rules of evidence prevailing in courts of law or equity shall not be controlling," and the Board's findings of fact were made conclusive by that statute § 10(e) if they were "supported by evidence." In the Taft-Hartley Act § 10(b) Congress eliminated this language and substituted a provision that hearings "shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States." Section 10(c) of the Wagner Act was amended to require decisions of the Board to be supported by "the preponderance of the testimony taken," and § 10(f) was amended to provide that 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.
Section 7(c) of the Administrative Procedure Act is new and emphatic. It provides as follows:
"* * * Any oral or documentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence and no sanction shall be imposed or rule or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence. * * *"
These statutes were designed to eliminate the wholesale use of hearsay, the drawing of expert inferences not based upon evidence, and the consideration of only one part or one side of the case.
Moreover, § 10(c) of the Taft-Hartley Act contains the specific provision that no order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay if such individual was suspended or discharged for cause. Section 8(c) added:
"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit."
Sections 8(c) and 10(c) cover facts such as those revealed in this case, for the Board ordered reinstatement with back pay of Howard Shartle, who had been discharged for cause, and also held that the expression of views in the Ferbert letters was evidence of an unfair labor practice, although these letters contain no threat of reprisal or force or promise of benefit.
The conclusion that the Administrative Procedure Act and the Taft-Hartley Act were intended to effect a change in procedure before the Board and to create more effective judicial review is inescapable in light of the legislative history. Thus both the Senate Committee Report and the House Committee Report on the Administrative Procedure Act contained the following language:
"The requirement of review upon `the whole record' means that courts may not look only to the case presented by one party, since other evidence may weaken or even indisputably destroy that case." (Senate Document No. 248, 79 Cong. 2d Sess.)
In the Taft-Hartley Act (80th Cong.), similar provisions were adopted applying exclusively to Labor Board decisions. These have been summarized above, and they were explained in the Report of the Conference Committee Managers, No. 510, p. 53.1
With reference to the right of free speech the legislative history shows that the amendment embodied in § 8(c) of the Taft-Hartley Act was specifically intended to prevent the Board from using unrelated non-coercive expressions of opinion on union matters as evidence of a general course of unfair labor conduct.2
The intent clearly to establish the right of free speech was further emphasized in House Conference Report No. 510, page 45.3
The Board concedes that § 8(c) of the Taft-Hartley Act as to freedom of speech has immediate effect in this case, for it agrees that the Ferbert letters have been "immunized" by this provision and that no order of the Board could restrain the use in the future of such statements as the Ferbert letters. It makes this concession on the ground that the reviewing court can not restrain action which, under the 1947 Act, is no longer illegal. This means that the letters can not be considered to constitute unfair labor practice.
Certain courts of appeals for which we have high respect have held that the Labor Management Relations Act has not changed the scope of judicial review. Cf. Eastern Coal Corp. v. National Labor Relations Board, 4 Cir., 176 F.2d 131; Victor Mfg. & Gasket Co. v. National Labor Relations Board, 7 Cir., 174 F.2d 867; National Labor Relations Board v. Continental Oil Co., 10 Cir., 1950, 179 F.2d 522; National Labor Relations Board v. Universal Camera Corp., 2 Cir., 1950, 179 F.2d 749; National Labor Relations Board v. Minnesota Mining & Mfg. Co., 8 Cir., 1950, 179 F.2d 323; National Labor Relations Board v. Booker, 5 Cir., 1950, 180 F.2d 727. But these holdings are at variance with National Labor Relations Board v. Caroline Mills, Inc., 5 Cir., 167 F.2d 212, 213, and with National Labor Relations Board v. Tappan Stove Co., 6 Cir., 174 F.2d 1007, 1008, in which this court held that the Taft-Hartley Act broadened the Wagner Act as to scope of judicial review.
We adhere to the decision in National Labor Relations Board v. Tappan Stove Co., and also point out that the case here presented is stronger in favor of the petitioner's contention than most of the cases relied on by the Board, which relate to the Taft-Hartley Act alone. If, as contended, Congress failed in the Taft-Hartley Act to enlarge the scope of judicial review because the requirement of substantial evidence to support the Board's findings added nothing in view of previous decisions of the Supreme Court, no such contention can be maintained with reference to the Administrative Procedure Act. In this statute the procedural requirements made by the Board and by the reviewing court not only are very specific but they add new tests to be applied to the validity of agency action. Every administrative agency is expressly prohibited from imposing any sanction and issuing any rule or order "except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence." The reviewing court is required § 10(e) to hold unlawful and set aside agency action, findings, and conclusions not in accordance with law and unsupported by substantial evidence, and in making its determination it is also required to review the whole record. These mandatory provisions define and make specific the requirements of judicial review and extend them beyond the requirements of the Wagner Act.
We assume that evidence admitted before the Board may be...
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