National Labor Relations Board v. Southland Mfg. Co.

SOPER, Circuit Judge

(concurring).

I concur in the result, although the decision of the Board on the facts, particularly with respect to the award of back pay to certain discharged employees, comes close to the ‘boundaries within which it becomes the duty of a Court of Appeals to refuse enforcement of a Board order. Something, however, may be added to the opinion of the court with respect to the function of the appellate court in passing upon the findings of fact of the Labor Board in a case. *249 of this kind. An adequate understanding of the matter can hardly be obtained from broad statements to be found in cases which were decided before the passage of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1001 et seq., and the Taft-Hartley Act of 1947, 29 U.S.C.A. § 151 , &c., or without taking into consideration the decision of the Supreme Court in Universal Camera Corp. v. Labor Board, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 , in which these statutes were given an authoritative interpretation.

We learn from these sources that the scope of the power of the Court of Appeals to review the findings of fact of the Labor Board was extended by the provision of Sec. 10(e), 5 U.S.C.A. § 1009 (e), of the Administrative Procedure Act, that the court should set aside administrative findings unsupported by substantial evidence to be sought by a review of the whole record of the case, and by the provision of Sec. 101 (e) of the Taft-Hartley Act, 29 U.S.C. A. § 160 (e), that on review the findings of fact of the Board, “if supported by substantial evidence on the record considered as a whole shall be conclusive.”

The court interpreted these 'broad phrases in the light of the purpose of Congress, manifested in its debates, to meet the public criticism that in some cases administrative agencies, including the Labor Board, had relied upon suspicion, surmise and incredible evidence in making their findings, and the reviewing courts had failed to make adequate use of their corrective power. The court said that Congress had left “no room for doubt as to the kind of scrutiny which a court of appeals must give the record before the Board to satisfy itself that the Board’s order rests on adequate proof”; and that in considering the substantiality of the evidence the court “must take into account whatever in the record fairly detracts from its weight”; and that the court should set aside a Board decision when it cannot conscientiously find that the evidence supporting the decision is substantial when viewed in the light of the whole record, including the evidence opposed to the Board’s view,

The court reached the final conclusion that the two statutes directed the courts to assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past, and admonished the courts that they should not abdicate their conventional judicial function, and although the Board’s findings are entitled to respect, they must be set aside “when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or 'both.” 1

*250 By this decision the Supreme Court in effect overruled decisions of the Courts of Appeals of this and four other circuits, which were in agreement that the two statutes had made no material change in the reviewing power. See 340 U.S. 476 , Note 1, 71 S.Ct. 456 . Decisions of the Supreme Court itself, it was noted, may have led to this end. But it is now obvious that we may not continue to apply the rules which we announced in West Virginia Glass Specialty Co. v. N. L. R. B., 4 Cir., 134 F.2d 551 , before the Acts of 1946 and 1947 were passed, and which we repeated in Eastern Coal Corp. v. N. L. R. B., 4 Cir., 176 F.2d 131 , after these statutes were enacted. Specifically we may not say that the findings of fact of the Board must be sustained unless the supporting evidence is so weak that we would direct a verdict if the case hid been tried by a jury; and we :may not say broadly that it is beyond our power to inquire whether the findings are so clearly erroneous that an injustice has been done, or that we are not permitted in any case to substitute our judgment for that of the Board.

True it is that the judgment of the Board is entitled to respect, and weight must be given to its expertness in its specialized field and we may not try the case de novo or displace the Board’s choice between two fairly conflicting views; yet we must exercise our independent judgment and substitute it for that of the Board’s if it is clear to us that the Board has not made a fair estimate of the worth of the testimony or we cannot conscientiously find that the supporting evidence is substantial when viewed in the light supplied by the entire record, including the evidence opposed to the Board’s view. Indeed it is difficult to draw the line between the function of an appellate court in passing upon the decision of a trial judge sitting without a jury in an action at law or in a suit in equity, on the one hand, and the function of the court in reviewing the decision of an administrative tribunal on the other. • The decision of a trial court must be sustained in any case unless it is clearly erroneous, and its greater opportunity to learn the truth based upon its more intimate contact with the case must be respected. In like manner the conclusions of the administrative body and its expertness may not be lightly set aside; but they too may not be given effect if they are so erroneous or so unjust as to shock the conscience of the court. The mental processes of the reviewing authority which are called into action in each situation are so similar that they can hardly be distinguished.

. See the following paragraphs from the Court’s opinion, 340 U.S. at pages 488, 490, 71 S.Ct. at page 465 .

“To he sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing •court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies ■presumably equipped or informed by experience to deal with a specialized field •of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s -choice between two fairly conflicting views, even though the court would justifiably have made a different choice had ■the mntier be^n before it de novo. Congress has merely made it clear that a 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. *******

“We conclude, therefore, that the Administrative Procedure Act and the TaftHartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it *250 is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”