National Labor Relations Board v. Universal Camera Corp. ( 1951 )

L. HAND, Circuit Judge.

By a divided vote we decided this appeal last year upon the same record that is now before us,¹ holding that the Board’s order ¡mould be “enforced.” The Supreme Court vacated our order and -remanded the cause to us for reconsideration in two particulars.² The first was that, athough the amendment of the old act was in terms limited to adding that courts of appeal should scrutinize the whole record on reviewing findings of the Board, its implications were more extended. The second was that in considering whether the Board’s findings were adequately supported by the evidence we were not altogether to disregard the findings of its examiner. As to the first, the 'Court agreed that in the case at bar we had based our review upon the whole record, but it held that the amendment had been a resultant of prolonged discussion in both Houses; and, although in form it did no more than incorporate what had always been the better practice — our own included —it was intended to prescribe an attitude in courts of appeal less complaisant towards the Board’s findings than had been proper before; not only were they to look to the record as a whole, but they were to be less ready to yield their personal judgment on the facts; at least less ready than many at times had been. Presumably that does not extend to those issues on which the Board’s specialized experience equips it with -major premises inaccessible to judges,³ but as to matters of common knowledge we are to use a somewhat stiffer standard. Just where the Board’s specialized experience ends it may no doubt be hard to say; but we are to find the boundary and beyond it to deem ourselves as competent as the Board to pass upon issues of fact. We hold that all the issues at bar are beyond the boundary and for that reason we cannot accept the Board’s argument that we are not in as good a position as itself to decide what witnesses were more likely to be telling the truth in this labor dispute.

Upon the second issue we had said that we could find no practicable mesne between giving the findings of an examiner the immunity which a court must give to those of a master, and saying that, although the Board should no doubt treat them as having some evidentiary value, it was impossible for us to measure what that ought to be; and that therefore we would decide the appeal, as though there had been no findings. Although this went too far, again it is plain that the weight which we should insist that the Board should give them must be left at large; except that we must count them for something, and particularly when —as indeed we said at length in ou-r first opinion — they were based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any rational choice. Perhaps as good a way as any to state the change effected by the amendment is to- say that we are not to be reluctant to insist that an examiner’s findings on veracity must not be overruled without a very substantial preponderance in the testimony as recorded.

In the case at bar the examiner came to the conclusion that Chairman’s discharge on January 24, 1944, was not because of his testimony two months before. He believed that Politzer had told Weintraub, a day or two after Weint-raub’s quarrel with Chairman at the end of December, that Chairman had said he was going to resign; and, although he did not believe that Chairman had in fact said so, he found that Politzer either thought he had, or told Weintraub that he had in the hope of smoothing over their quarrel. We see nothing improbable in this story, nor can we find any contradiction of it in Chairman’s testimony that on January 11th Politzer asked him if he were going to resign. Indeed, if Politzer had got the impression that Chairman was going to resign, Politzer might very naturally have followed it with an inquiry which to Chairman appeared like opening up a new subject. Be that as it may, we are satisfied, as we were before, that there was enough to justify the conclusion that, when Weintraub complained that Chairman was undermining his influence in the factory, Politzer. put him off, presumably in the hope that time might soften his animosity. Hence, even were the Board’s argument more cogent than it is, we can no longer agree that it was free to overrule the examiner’s conclusion that Weintraub’s delay in complaining to Kende was because he had been waiting for Chairman to resign. Once this is accepted as true, it becomes incredible that Chairman’s dismissal on January 24, 1944, was in fulfillment of any joint plan between Kende and Weintraub. In our first opinion we gave our reasons for thinking so; and, as we read the Board’s brief, it does not argue the contrary.

However, it does argue that, even if Kende and Weintraub had had no such joint plan, the case against the respondent was proved, for it was enough if Kende independently and of his own motion seized upon Weintraub’s complaint to vent his personal spleen upon Chairman. It is of course true that no one can be sure what may have actuated Kende at least in part; nothing is more difficult than to disentangle the motives of another’s conduct — motives frequently unknown even to the actor himself. But for that very reason those parts of the evidence which are lost in print become especially pregnant, and the Board which had no access to them should have hesitated to assume that the examiner was not right to act upon them. A story may indeed be so unreasonable on its face that no plausibility in its telling will make it tenable, but that is seldom true and certainly was not true here. In appeals from the Board we have over and over again refused to upset findings which in cold type seemed to us extremely doubtful just because we were aware that we could not know what may have been the proper deciding factors. However limited should be the regard which the Board must give to the findings of its examiner, we cannot escape the conclusion that the record in the case at bar was such that the following finding of the examiner should have turned the scale; “the undersigned is not persuaded that Kende based his decision upon any animus against Chairman for testifying rather than on an evaluation of Weintraub’s request based upon the merits.” Indeed, it is at least doubtful whether the Board meant to overrule that finding except as it was involved in its own finding that Kende and Weintraub had had a joint plan to oust Chairman. That it may not have meant more appears from the statement in note seven of its opinion: “the absence of direct and detailed evidence of such a conspiracy * * * does not militate against our conviction that it was actually because of Chairman’s testimony at the Board hearing and only ostensibly because of the resurrected December 30th episode that Wein-traub and Kende brought about Chairman’s discharge. On the evidence before us we have no substantial doubt” (surely a very curious assurance) “that discrimination occurred.” Be that as it may, upon a reexamination of the record as a whole, and upon giving weight to the examiner’s findings — now in compliance with the Court’s directions as we understand them — we think that our first disposition of the appeal was wrong, and we hold that the Board should have dismissed the complaint.

Order reversed; complaint to be dismissed.

1 . N. L. R. B. v. Universal Camera Corp., 2 Cir., 179 F.2d 749.

2 . Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456.

3 . Phelps Dodge Corporation v. N. L. R. B., 313 U.S. 177, 197-199, 61 S.Ct. 845, 85 L.Ed. 1271.