NATIONAL LABOR RELATIONS BOARD v. WALTON MANUFACTURING CO. et al.
No. 77.
Argued March 19, 1962.
Decided April 9, 1962.
Norton J. Come argued the cause for petitioner in both cases. With him on the briefs were Solicitor General Cox, Stuart Rothman, Dominick L. Manoli, Frederick U. Reel, Russell Specter and Allan I. Mendelsohn.
Robert T. Thompson argued the cause for respondents in No. 77. With him on the briefs was Alexander E. Wilson, Jr.
O. R. T. Bowden argued the cause and filed briefs for respondent in No. 94.
Together with No. 94, National Labor Relations Board v. Florida Citrus Canners Cooperative, also on certiorari to the same Court, argued March 19-20, 1962.
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) because there was a seeming noncompliance by that court with our admonitions in Universal Camera Corp. v. Labor Board, 340 U. S. 474. 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.
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); 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 Labor Board v. Tex-O-Kan Flour Mills Co., 122 F. 2d 433, a decision rendered in 1941. In case of a cease-and-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 believed. 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 Labor Board v. Williamson-Dickie Mfg. Co., 130 F. 2d 260; Labor Board v. Alco Feed Mills, 133 F. 2d 419; Labor Board v. Ingram, 273 F. 2d 670; Labor Board v. Allure Shoe Corp., 277 F. 2d 231; Frosty Morn Meats, Inc., v. Labor Board, 296 F. 2d 617.
The Court of Appeals in No. 77, Labor Board v. Walton Mfg. Co., 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 Labor Board v. Tex-O-Kan Flour Mills Co., supra. In No. 94, Labor Board v. Florida Citrus Canners Cooperative, 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. Labor Board v. Pittsburgh S. S. Co., 340 U. S. 498, 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 Cooperative 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.
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 hesitation, 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, 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. 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.
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