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
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
For the demeanor of a witness
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
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting.
These cases were brought here on the claim that the Court of Appeals had exceeded its reviewing power over orders of the National Labor Relations Board under the National Labor Relations Act, 29 U. S. C. § 160 (e), requiring that "the record considered as a whole" be canvassed. The Court does not find that the court did not assess the evidence, including inferences fairly to be drawn, in accordance with the scope of judicial review outlined in Universal Camera Corp. v. Labor Board, 340 U.S. 474, and its companion case, Labor Board v. Pittsburgh S. S. Co., 340 U.S. 498. But it remands the cases to the Court of Appeals because of doubt whether that court was improperly influenced in its determinations by what is deemed an erroneous legal rule as applied in Labor Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433.
I am constrained to disagree with the Court's disposition of these cases on three grounds. First, the Court assumes legal identity between two cases that raise entirely different issues. Second, in neither case did the Court of Appeals apply a special and more stringent rule of review in cases of reinstatement for wrongful discharge. Finally, I think the Tex-O-Kan rule, insofar as it was applied below in Walton and is disapproved here, is in accord with prior decisions of this Court and does not conflict with the substantial evidence rule.
The Court of Appeals in Walton accepted findings by the Trial Examiner and the Board, 124 N. L. R. B. 1331,
In Florida Citrus the Examiner and the Board found that the respondent had refused to bargain as required by § 8 (a) (5), and therefore that employees who had participated in a resulting strike had been discharged and replaced in violation of § 8 (a) (1) and (3). 124 N. L. R. B. 1182. The Court of Appeals denied enforcement of the order to cease and desist, to bargain on request, and to reinstate the discharged employees with pay; it did so because it concluded, on consideration of the record as a whole, that the critical finding of refusal to bargain was not supported by substantial evidence. 288 F.2d 630.
The Court today reverses both decisions for misapplication of the standard of review set forth in § 10 (e) of the National Labor Relations Act, 29 U. S. C. § 160 (e), and § 10 (e) of the Administrative Procedure Act, 5 U. S. C. § 1009 (e), and elaborated in Universal Camera Corp. v. Labor Board, 340 U.S. 474, 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." The Court finds that the Court of Appeals may have erroneously adopted a special rule for cases of reinstatement for wrongful discharge, forbidding the Board to discredit an employer's testimony as to the reason for discharge unless he is
That case came before the Court of Appeals for the Fifth Circuit in 1941. Judge Sibley, writing for the court, found ample evidence to sustain a cease-and-desist order against interference with union activity: "a cease and desist order on this point costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order." 122 F. 2d, at 438. But, he continued,
Accepting that the union membership of each discharged employee "may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ," the court enforced the back-pay order in several instances where no other reason for discharge was apparent, or where the reason given was refuted by the facts. But where management gave reasons for the discharge that were not contradicted by the facts—that a job had been abolished, that work had been inadequately done, that an employee had engaged in irregular conduct with company property or failed to report
2. History of Tex-O-Kan in the Fifth Circuit.
In numerous cases Tex-O-Kan has been cited and quoted by the Court of Appeals for its view that testimony justifying discharge should not lightly be disregarded. Labor Board v. Goodyear Tire & Rubber Co., 129 F.2d 661, 665; Labor Board v. Alco Feed Mills, 133 F.2d 419, 421; Labor Board v. Oklahoma Transp. Co., 140 F.2d 509, 510; Labor Board v. Edinburg Citrus Assn., 147 F.2d 353, 355; Labor Board v. McGahey, 233 F.2d 406, 411-412; Labor Board v. Drennon Food Products Co., 272 F.2d 23, 27; Labor Board v. Walton Mfg. Co., 286 F.2d 16, 25; Labor Board v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300, 306. See also Frosty Morn Meats, Inc., v. Labor Board, 296 F.2d 617, 620-621, where Tex-O-Kan was not cited. On occasion Tex-O-Kan has also been quoted to distinguish between cease-and-desist orders and those requiring payment of back pay. Labor Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260, 263; Labor Board v. Ingram, 273 F.2d 670, 673. The Tex-O-Kan
3. A Special Rule for Reinstatement?
I agree with the Court that, despite the consequences of back-pay orders, "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." However, although the Court of Appeals has several times in the past seemingly applied two different rules, and although it has not relied on Tex-O-Kan in cases dealing solely with cease-and-desist orders, I do not think either of the present cases presents an appropriate occasion for admonishing that court against applying a double standard. Both cases concerned both cease-and-desist orders and reinstatement with back pay. In neither did the Court of Appeals suggest that it was applying a special rule for reinstatement orders alone. The part of the Tex-O-Kan opinion differentiating back-pay from cease-and-desist orders, quoted by this Court, was not quoted by the Court of Appeals in either case. In Walton the court said only that "The requirements of substantiality of evidence and reasonableness of the inferences to be drawn from the evidence are not less in a case of reinstatement and reimbursement than where a cease and desist order is directed against interference"—not that the requirements are more strict. In Florida Citrus the single factual issue whether respondent had refused to bargain underlay both back-pay and cease-and-desist orders. The court
4. Tex-O-Kan's Credibility Rule and the Present Cases.
(1) In Florida Citrus collective bargaining had broken off shortly after a disastrous freeze that threatened future business. The Trial Examiner found that the company was responsible for the failure of bargaining. He recited a delay in meeting which he attributed to the company. He referred to the company's refusal to discuss the union's proposal at a meeting held just after the freeze, and to the company's failure in the face of union demands to request a postponement of negotiations to permit assessment of the effect of the freeze, as it had announced it intended to do. Finally, by resolving conflicting testimony in favor of the General Counsel's witnesses, he found that after the failure of negotiations the company had made anti-union statements and offered inducements to the employees should they forsake the union. This finding buttressed his interpretation of the company's earlier conduct when bargaining was called off. In rejecting the testimony of production manager Stephenson and accepting that of Holly, an employee to whom the alleged anti-union statements and promises had been made, the Examiner relied in part on a comparison of the demeanor of these two witnesses, saying also that Stephenson admitted such subjects as a company union had come up in the conversation; that many of the statements he was said to have made later came true; and that Holly was a logical choice to speak such sentiments to because he might reasonably have been induced to lead a movement of defection from the union.
The Board attacks this decision as in conflict with the substantial evidence test of the Labor Management Relations Act and of the Universal Camera doctrine. The crux of its objection is that the court has substituted its judgment as to credibility for that of the Examiner and the Board; in particular, it complains that the record gives no support to the court's conclusion that the Examiner was inclined to discredit on principle all company witnesses. Neither in its petition for certiorari nor its brief on the merits did the Board cite Tex-O-Kan as the ground of its objection to the decision in Florida Citrus. Yet this Court reverses the Court of Appeals' decision without reference to the facts or the holding of that case,
(2) Walton, by contrast, squarely presents a Tex-O-Kan problem. Four employees had been discharged and nine more laid off. The Trial Examiner, in each case rejecting company testimony that the employee was a substandard performer, attributed all thirteen to the employees' union activities. The Board agreed. In holding all these findings to be without substantial support, the Court of Appeals pointed out in the case of the four discharges that in addition to the company's witnesses there was evidence, sometimes given by the employee herself, either of unsatisfactory work or of meager union activity, or both. But in reversing the Board with respect to the nine layoffs the court quoted and relied on Tex-O-Kan, pointing out that management
5. Tex-O-Kan and the Substantial Evidence Test.
This Court today lays down a dogmatic rule against a Fifth Circuit evidentiary practice authorizing acceptance of plausible, uncontradicted, unimpeached testimony of motivation and apparently holds the Board's power in reviewing the dead record to determine witness credibility to be absolute and unreviewable:
This statement, torn from context in Judge Learned Hand's opinion in Dyer v. MacDougall, 201 F.2d 265, 269, is elevated into a rule of law that ignores earlier decisions of this Court and effectively insulates many administrative findings from judicial review, contrary to the command of the Labor Management Relations Act and the Administrative Procedure Act that such findings should be set aside if not supported by substantial evidence on the whole record.
The cases abound with statements that the determination of credibility is for the trier of fact and is not to be upset on appeal. E. g., Tractor Training Service v. Federal Trade Commission, 227 F.2d 420, 424 (C. A. 9th Cir.); Kitty Clover, Inc., v. Labor Board, 208 F.2d 212, 214 (C. A. 8th Cir.). Professor Jaffe has said "It is generally held that whether made by jury, judge, or agency a determination of credibility is nonreviewable unless there is uncontrovertible documentary evidence or physical fact which contradicts it." Judicial Review: Question of Fact,
The opportunity of the trier of fact to observe the demeanor of witnesses should not be overlooked. But neither should it be overlooked that the Board itself has no opportunity to observe the demeanor of witnesses. Yet the Board is not required to accept a trial examiner's credibility findings, see Universal Camera Corp. v. Labor Board, 340 U.S. 474, 492-497, and, therefore, neither is the Court of Appeals. Even where the fact-finding function is not divided, "due regard" for the advantage of the trier of fact does not require appellate impotence. Judge Hand's statement in Dyer v. MacDougall was one of logic, not of law; the court went on to affirm a summary judgment against the plaintiff, who presented no evidence and relied on the chance that defendant's witnesses would be disbelieved in their denials—because, despite the logical
In fact, Tex-O-Kan is clearly supported by at least two decisions of this Court requiring a trier of fact to accept unimpeached testimony not contradicted by substantial evidence in the record. In Dickinson v. United States,
In Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209, the Court reversed a trial judge's refusal to sustain a demurrer to the evidence on the ground that a complete defense was established by uncontradicted, unimpeached testimony. Quoting at length from cases in other courts upholding appellate review of credibility determinations, the Court concluded:
In short, the Court of Appeals was entitled to come to the conclusion to which it came, for neither the Board nor the reviewing court was bound by the Examiner's findings