Before the National Labor Relations Board, a union charged an
employer with unfair labor practices, including the formation and
domination of a plant union to forestall the efforts of the
complaining union to organize the employees. The Trial Examiner
rejected an offer by the employer to prove through the testimony of
1,200 employees that they had not been coerced to join the plant
union, and excluded evidence that the formation of the plant union
followed strike threats and violence by the complaining union
against other plants. The Board ordered disestablishment of the
plant union. The Circuit Court of Appeals found no basis for
setting aside the proceedings as unfair on the ground that either
the Examiner or the Board was biased, held that the Board properly
limited the evidence to issues raised by the complaint, and found
no impropriety in the exclusion of evidence offered to prove
misconduct on the part of the complaining union. However, it found
that the employer had been denied a fair hearing in not being
allowed to present testimony of its employees that the plant union
was truly independent and that they had joined it voluntarily.
Accordingly, it denied enforcement of the order and remanded the
case to the Board "for further proceedings not inconsistent with
the opinion of this Court." The Board denied the employer's
application for a new examiner, and assigned the case to the
original examiner for further hearing. This time, the Examiner
heard eleven of the 1,200 employees named in the offer of proof
rejected in the earlier proceeding, and allowed the president of
the employer corporation to testify fully, but excluded all
evidence of events subsequent to the termination of the first
hearing. Upon findings and recommendations substantially the same
as previously made, the Board issued virtually the same order.
The
Page 330 U. S. 220
Circuit Court of Appeals denied enforcement "for want of due
process in the proceedings upon which the order is based."
Held:
1. Upon the record, there was no want of due process in the
Board's proceedings. Pp.
330 U. S.
225-238.
2. In view of the nature of the administrative process with
which the Board is entrusted, and in the light of the statement in
the Court's opinion in the first review that
"the least that the Board can do . . . is . . . to accord the
petitioners an opportunity to introduce all of the competent and
material evidence which was rejected by the Trial Examiner, and to
receive and consider such evidence together with all other
competent and material evidence in the record before making new
findings and a new order,"
the remand on the first review did not require a proceeding
de novo before the Board, nor a rehearing on issues as to
which the original hearing was adequate. Pp.
330 U. S.
225-238.
3. Upon examination of the whole record, it cannot be said that
the Board disregarded the ruling of the Circuit Court of Appeals
that the Board should consider testimony of employees to the effect
that they voluntarily organized and joined the plant union, and
that the union's affairs were uninfluenced by the employer. Pp.
330 U. S.
222-231.
4. Discriminatory treatment by the Board is not established by
the fact that evidence as to the effect of violence by an outside
union on the formation of the plant union was limited to events
within six months of the formation of the plant union, whereas
evidence of coercion by the employer in the formation of the plant
union was admitted though related to a period two years prior to
the formation of the plant union. Pp.
330 U. S.
231-232.
5. The Board was not bound on the second hearing to admit
evidence of the complaining union's misconduct, inasmuch as there
already was evidence in the record to apprise the Board of alleged
misconduct by the complaining union if, on that score, the Board
chose not to entertain charges of unfair labor practices against
the employer.
Labor Board v. Indiana & Michigan Electric
Co., 318 U. S. 9,
distinguished. Pp.
330 U. S.
233-236.
6. The power of the Circuit Court of Appeals under § 10(e) to
require the Board to take additional evidence cannot be employed to
enlarge the statutory scope of judicial review. Pp.
330 U. S.
234-235.
7. The Board's denial of the employer's application for the
designation of a new examiner for the hearing on the remand was not
improper. Pp.
330 U. S.
236-237.
Page 330 U. S. 221
8. The Circuit Court of Appeals not having considered the
question of the sufficiency of the evidence to sustain the findings
on which the order of the Board was based, the case is remanded to
that court for determination of this issue. Pp.
330 U. S.
237-238.
151 F.2d 854, reversed.
A cease and desist order of the National Labor Relations Board,
21 N.L.R.B. 164, against an employer was denied enforcement by the
Circuit Court of Appeals, which remanded the case to the Board. 123
F.2d 215. A second order of the Board, issued after a further
hearing, 50 N.L.R.B. 241, was also denied enforcement. 151 F.2d
854. On petitions of the Board and the complaining union, this
Court granted certiorari. 327 U.S. 775.
Reversed and
remanded, p.
330 U. S. 238.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
On March 6, 1940, the National Labor Relations Board, on finding
that the Donnelly Garment Company had engaged in labor practices
condemned as "unfair" by the
Page 330 U. S. 222
Wagner Act, issued an order against the Company "to effectuate
the policies" of the Act. The Circuit Court of Appeals for the
Eighth Circuit denied enforcement of the order and remanded the
case to the Board. 123 F.2d 215. After carrying out what it
conceived to be the directions of the Court, the Board again found
against the Company. The Court below denied enforcement of the
Board's second order "for want of due process in the proceedings
upon which the order is based." 151 F.2d 854, 875. The correctness
of this ruling is now before us, for we brought the case here, 327
U.S. 775, to rule on important issues in the administration of the
Wagner Act. This protracted litigation has given rise to a swarm of
questions. In view of the fact that the case comes to us after it
has been twice before the Board and three times before the court
below, on a record of thirteen volumes with a total of more than
5000 pages, even an earnest attempt at compactness cannot avoid a
somewhat extended opinion.
The case presents limited legal phases of one of those bitter,
unedifying conflicts with which American industrial history is
unfortunately replete. For other litigation growing out of this
strife,
see 20 F. Supp.
767;
21 F. Supp.
807;
304 U. S. 304 U.S.
243;
23 F. Supp.
998; 99 F.2d 309; 119 F.2d 892; 121 F.2d 561; 47 F. Supp. 61;
Donnelly Garment Co. v. Dubinsky, 47 F. Supp. 65; 47 F.
Supp. 67;
Donnelly Garment Co. v. International Ladies' Garment
Workers' Union, 55 F. Supp. 572;
Donnelly Garment Co. v.
Dubinsky, 55 F. Supp.
587;
Donnelly Garment Co. v. International Ladies' Garment
Workers' Union, 147 F.2d 246; 154 F.2d 38. It has its roots in
a campaign by the International Ladies Garment Workers Union
(hereafter designated as International) to unionize the women's
garment industry in Kansas City, Missouri. Because of its
importance, the Donnelly Garment Company (to be called Company for
short) became the particular target of these unionizing efforts.
These continued with varying intensity over a period of years, but
met with little success among the Company's employees.
Page 330 U. S. 223
In 1938, International began proceedings before the Board
charging the Company with a series of unfair labor practices in
violation of §§ 2(6), (7), and 8(1), (2), (3) of the National Labor
Relations Act, 49 Stat. 449, 29 U.S.C. § 151
et seq. The
main charge was that the Company, to counteract the efforts of
International, had stimulated the formation of a plant union, the
Donnelly Garment Workers Union (hereafter called Union), and had
dominated it through financial and other aid. Following the usual
procedure, there was a hearing before a trial examiner. At the
hearing, the Examiner rejected an offer by the Company to prove,
through the testimony of 1200 employees, that they had not been
coerced by the Company to join Union, but that each of them had
done so of his own free will, and that they had no knowledge of
Company influence in the affairs of Union. The Examiner also
excluded evidence to show that the formation of the Union followed
strike threats and violence by International, successful against
smaller competitors of the Company, to coerce the Company into a
closed shop agreement with International. To these and other less
important exclusions, the Company duly excepted on the submission
of the Trial Examiner's intermediate report. The Board upheld the
Examiner's rulings on evidence, accepted his findings of fact, and,
with a qualification not here relevant, adopted his
recommendations. Thereupon it issued the usual cease and desist
order, and directed the disestablishment of Union and reimbursement
to employees of the amount of the dues which the Company had
checked off on behalf of Union (21 N.L.R.B. 164).
Review of this order came before the Circuit Court of Appeals on
the Company's petition to set it aside and on the Board's
cross-petition for its enforcement. On several contentions, the
disposition of which is relevant to
Page 330 U. S. 224
the questions now calling for decision, the Court sustained the
Board. It found no basis for setting aside the proceedings as
unfair on the claim that either the Examiner or the Board was
biased. It held that the Board properly limited the evidence to
issues raised by the complaint, and, since International was not on
trial, it found no impropriety in the exclusion of evidence offered
to prove its misconduct. The Court did, however, find that the
Company had been denied a fair hearing in not being allowed to
present the testimony of its employees to the effect that Union was
truly independent and that they had joined it voluntarily. The
Court remanded the case to the Board "for further proceedings not
inconsistent with the opinion of this Court."
The Board thereupon set the case for a second hearing before the
original Examiner. Insisting that he was biased and had prejudiced
as valueless "the evidence to be adduced at the pending hearing,"
the Company moved for a new trial examiner. The Board denied the
application, and the case proceeded to hearing. This time, the
Examiner heard eleven of the 1200 employees named in the offer of
proof rejected in the earlier proceeding, but declined to hear the
rest on the ground that their testimony would be merely cumulative.
He allowed the President of the Company, whom illness had kept from
the earlier hearing, to testify fully. Otherwise, he received no
evidence that had been available but was not offered at the earlier
proceeding, and excluded all evidence of events subsequent to the
termination of the first hearing. The Examiner's findings and
recommendations, in respects here material, were substantially the
same as those he had previously made, and the Board, acting upon
his intermediate report, issued virtually the same order. 50
N.L.R.B. 241. The Company again petitioned the Circuit Court of
Appeals to set aside the order, and the Board again requested its
enforcement.
Page 330 U. S. 225
During the pendency of these proceedings, the Company invoked §
10(e) of the Wagner Act and asked the Court leave to adduce before
the Board evidence which it claimed had been erroneously excluded.
This motion was not granted. Instead, as already noted, the Court
denied the Board's petition for enforcement "for want of due
process in the proceedings upon which the order is based." 151 F.2d
854, 875. The Court set forth its views in a careful opinion of
more than thirty pages in the printed record. There was also a
concurring opinion and a dissent.
The Court canvassed many items of evidence. As to some of the
Board's rulings which it disapproved, the Court stated explicitly
that, by themselves, they would not have afforded sufficient ground
for reversal. Rulings which individually would not invalidate an
order of the Board do not in combination acquire the necessary
strength to undo what the Board, acting under authority given it by
Congress, has done. We do not find that, in their combination,
these rulings amounted to unfairness. We must therefore consider
one by one those objections which the Court deemed sufficient to
vitiate the Board's order. For the Court below did not suggest that
the Board as a tribunal was so biased as to be incapable of fair
judgment in this case. It found that such a finding against the
Board was not justified.
First. The controlling basis of the Court's finding of
unfairness in the Board proceedings related to testimony proffered
by the Company at the second hearing before the Examiner. This
second hearing was not a new proceeding. It was a stage in a
process consisting of the first proceeding before the Board, the
remand resulting from review of the Board's order in the Circuit
Court of Appeals, and the second proceeding before the Board in
response to this remand. The correctness of the Court's judgment
refusing enforcement of the Board's
Page 330 U. S. 226
second order must be judged in the light of the interrelation of
the two proceedings before the Board, and the Board's justifiable
interpretation of the directions which it received upon remand of
the first order. Indeed, the disposition of the present case turns
decisively on the view that is taken of the Board's interpretation
of its duty under the Court's mandate.
It becomes necessary therefore to revert to the precise terms of
the Court's mandate. The order was remanded by the Circuit Court of
Appeals "to said Labor Board for further proceedings not
inconsistent with the opinion of this Court." The Court's opinion
yields this gloss upon its mandate:
"Our conclusion is that the petition of the Board for
enforcement of the order under review must be denied. We think that
the least that the Board can do, in order to cure the defects in
its procedure caused by the failure of the Trial Examiner to
receive admissible evidence, is to vacate the order and the
findings and conclusions upon which it is based; to accord to the
petitioners [the Company and the plant union] an opportunity to
introduce all of the competent and material evidence which was
rejected by the Trial Examiner, and to receive and consider such
evidence together with all other competent and material evidence in
the record before making new findings and a new order."
123 F.2d 215, 225.
The Board based its new order upon the record of the first
proceeding, reopening the hearing only for the purpose of admitting
the erroneously excluded testimony of the employees. In short, the
Board did not understand the remand to call for a new trial. The
Court, when called upon to construe it four years later, took a
different view of the meaning of its decision of November,
1941:
"It is, we think, apparent that what this Court, in effect,
Page 330 U. S. 227
ruled was that the Company and the plant union were entitled to
a new trial upon the evidence already taken, and such competent and
material evidence as might be proffered upon a further
hearing."
151 F.2d 854, 856. From this point of view, the Court could
readily conclude that the record which came to it "presents an
incomplete picture."
We have recognized that
"the court that issues a mandate is normally the best judge of
its content, on the general theory that the author of a document is
ordinarily the authoritative interpreter of its purposes."
But, we continued,
"it is not even true that a lower court's interpretation of its
mandate is controlling here.
Compare United States v.
Morgan, 307 U. S. 183. Therefore, we
would not be foreclosed by the interpretation which the Court of
Appeals gave to its mandate, even if it had been directed to a
lower court."
Federal Communications Commission v. Pottsville Broadcasting
Co., 309 U. S. 134,
309 U. S. 141.
Here, as in that case, a much deeper issue is involved. As we had
occasion to point out in the
Pottsville case, there are
significant differences between the relations of an appellate court
to a lower court and those of a court to a law-enforcing agency,
like the Board, whose order is subject only to restricted judicial
review. These differences may be particularly telling upon remand
of an order to the agency. Due regard for these differences must
guide us through the maze of details in this case.
In the context of the opinion remanding the Board's original
order and of the nature of the administrative process with which it
is entrusted, the Board was justified in not deeming itself under
duty to grant a "new trial" in the sense in which a lower court
must start anew when an upper court directs such a new trial. There
was no reference to a "new trial," nor was any intimation given
that such was the breadth of what the remand required.
Page 330 U. S. 228
From the Court's opinion, there appears only a very restricted
dissatisfaction with the original proceedings before the Board,
calling for a correspondingly restricted correction. "The least
that the Board can do," wrote the court,
"is . . . to accord to the petitioners an opportunity to
introduce all of the competent and material evidence which was
rejected by the Trial Examiner, and to receive and consider such
evidence, together with all other competent and material evidence
in the record, before making new findings and a new order."
123 F.2d at 225. "The least that the Board can do" may well
imply that the Board is authorized to draw on the wide scope of its
statutory discretion. But to advise the Board of "the least that
[it] can do" does not put the Board in default for not doing more.
Due process does not afford a party the right to treat as a
rehearsal a hearing on the issues for which the hearing was
adequate. And the Wagner Act does not require that ground be
covered a second time, or piecemeal.
Second. Since, in our view, the remand did not call for
a proceeding
de novo, the Board was not required to reopen
any issue as to which its ruling was left unassailed by the Circuit
Court of Appeals in its first decision. We shall therefore consider
the particular defects which the Circuit Court of Appeals found in
the second hearing by treating that hearing not as a new trial, but
as the sequel of the first hearing under a remand by the Circuit
Court of Appeals for the limited purpose of correcting the prior
erroneous exclusion of testimony.
(1) The Board's decision that the Company had engaged in unfair
labor practices, to a large extent, turned on the Company's
relation to the plant union. It is fair to infer that the lower
court's denial of enforcement of the Board's order was influenced
most by its finding that the Trial Examiner and the Board did not
comply with the Court's mandate on the first review regarding
the
Page 330 U. S. 229
proffer of testimony of the Company's employees to the effect
that they voluntarily organized and joined the Union and that, to
their knowledge, its affairs were uninfluenced by the Company. At
the second hearing the Examiner admitted the testimony of eleven
such employees, excluding further oral testimony of the same nature
as merely cumulative. The court below did not quarrel with
confining this line of testimony to eleven witnesses. But it
reached the view that neither the Examiner nor the Board took this
testimony into account in reaching the findings on which the
Board's second order was based. It was principally from this that
the Court concluded that the Company was denied the full hearing to
secure which the case was remanded to the Board.
According to an early English judge, "[t]he devil himself
knoweth not the mind of man," and a modern reviewing court is not
much better equipped to lay bare unexposed mental processes. It is
a grave responsibility to conclude that, in admitting the testimony
of the Company's employees, the Board went through a mere pretense
of obedience to the Court's direction, and heard the testimony with
a deaf ear and a closed mind. In light of the authority with which
Congress has endowed the Board, and with due regard to the
conscientiousness which we must attribute to another branch of the
Government, we cannot reject its explicit avowal that it did take
into account evidence which it should have considered unless an
examination of the whole record puts its acceptance beyond reason.
Since this matter is crucial, it is appropriate to quote fully the
Board's decision on the point:
"In remanding the case to the Board for further hearing, the
Circuit Court directed that the respondent [the Company] and the
D.G.W.U. [the plant union] be permitted to adduce the previously
proffered testimony of respondent's [the Company's] employees to
show, in substance, that they formed
Page 330 U. S. 230
and joined the D.G.W.U. of their own free will, and that they
were not influenced, interfered with, or coerced by the respondent
in choosing that organization as their bargaining representative.
In compliance with the Court's mandate and pursuant to the
respective offers of proof submitted by the respondent and the
D.G.W.U. at the original hearing, the Board permitted the
introduction of such testimony. We have carefully considered all
such evidence adduced by the respondent and the D.G.W.U. We find,
however, that the testimony in question does not overcome more
positive evidence in the record that the respondent committed acts
of interference and assistance in the formation and administration
of the D.G.W.U. which subjected that organization to the
respondent's domination and which removed from the employees'
selection of the D.G.W.U. the complete freedom of choice which the
Act contemplates. Since we find the testimony here adduced totally
unpersuasive that the employees voluntarily designated the
D.G.W.U., we are, moreover, impelled to adhere to the opinion,
derived from our experience in administration of the Act, that
conclusionary evidence of this nature is immaterial to issues such
as those presented in this case. A consideration of all the
evidence convinces us, and we find, that the respondent dominated
and interfered with the formation and administration of the
D.G.W.U. and contributed support thereto, and that the respondent
thereby interfered with, restrained, and coerced it employees in
the exercise of the rights guaranteed in Section 7 of the Act."
50 N.L.R.B. 241.
We cannot read this otherwise than as an assurance by the Board
that it did not merely go through the motions of allowing the
testimony of these witnesses to get into the record as an empty
formality, but that it duly heeded the
Page 330 U. S. 231
order of the Court and reflected upon the testimony. The Board
judged of its worth, as it had a right to, in light of the mass of
other testimony in the case, and found it unpersuasive. Had the
Board said no more, the court below could hardly have found
disregard of its mandate. The Board's skeptical expression
regarding this kind of testimony hardly disproves obedience to the
Court's mandate. Even lower courts sometimes indicate disagreement
with a ruling they are bound to enforce. Out of repeated instances
of hearing the same thing, a generalization as to its worth will
almost inevitably emerge in the thoughts of a tribunal. As to this
sort of testimony, it has been observed that a feeling by employees
"that they were under no sense of constraint . . . is a subtle
thing, and the recognition of constraint may call for a high degree
of introspective perception." Judge Magruder, in
Bethlehem
Shipbuilding Corp. v. Labor Board, 114 F.2d 930, 937. We are
not called upon to lay down a general rule of materiality regarding
such testimony. Suffice it is to say that the Board obeyed the
decision of the Circuit Court of Appeals that the testimony of the
Company's employees regarding Union was to be adduced and
considered. Its probative value was for the Board.
See
Pittsburgh Plate Glass Co. v. Labor Board, 313 U.
S. 146,
313 U. S. 163.
And the Court did not rule that the rest of the record repelled the
Board's assurance that it "carefully considered" the evidence the
Court bade it to consider. It expressly withheld consideration of
the Board's order on the basis of the whole record.
(2) The new testimony of the Donnelly employees led to rulings
on evidence by the Examiner, approved by the Board, which, in the
view of the Court below, contributed to render the hearing unfair.
The testimony related to the offensive aspect of International's
unionizing efforts and the bearing of this upon the claim of
Company that Union was quite independent, and not the Company's
Page 330 U. S. 232
instrument. The employees were allowed to testify that they were
antagonized by acts of violence on the part of International, and
that they sought self-protection in a union of their own,
voluntarily formed. The Examiner limited this line of testimony to
acts of violence within six months preceding the organization of
Union. This was based on the notion that a time limit had to be
drawn somewhere in ascertaining the effect of known violence in
persuading Donnelly employees to form their own union, and that a
period longer than six months was too remote, or, in any event, had
not sufficient probative value. Surely this was a reasonable ruling
by the hearing tribunal. At any rate, it was not so circumscribing
of proof in establishing the issue toward which the evidence was
directed as to call for correction. But it is urged that, while the
Company was so restricted on proof of this issue, the Board allowed
evidence further back calculated to show a continuous state of mind
toward influencing employee association by the Company. By way of
rebuttal to the employees' testimony that the plant union of 1937
was a spontaneous effort of the employees wholly uninfluenced by
the Company, the Board admitted evidence to show that the Company
fostered a company union in 1935. It does not follow that the
limitation of time on admissible evidence is the same regardless of
the issue for which the evidence is tendered. Certainly we cannot
say that it was not admissible to allow this evidence of company
coercion in 1935 as bearing on the independence of the new plant
union in 1937. And so we cannot find a solid enough ground to
establish discriminatory treatment by the Board because, on this
issue, it went back to 1935, whereas, on the issue of the influence
of International's violence in the formation of the 1937 plant
union, it drew the line at events six months prior thereto.
Page 330 U. S. 233
(3) While we think that the Board properly construed the scope
of the remand not to require a retrial of issues canvassed at the
first hearing, time does not stop still even for the administrative
process. Change in circumstances may make relevant at the second
hearing what was irrelevant at the first hearing. The Circuit Court
of Appeals found such a change in circumstances in a decision of
this Court rendered after the first review below. In its decision
of November 6, 1941, the Circuit Court of Appeals sustained the
exclusion by the Board of testimony to prove misdeeds by
International. The tenor of its reasoning was that an inquiry into
charges of unfair labor practices by the Company did not make
relevant charges of misconduct against International, the
complainant. The Board issued the order now challenged on June 9,
1943. In the meantime, on January 18, 1943, this Court decided
Labor Board v. Indiana & Michigan Electric Co.,
318 U. S. 9. That
case, so the court below thought, required the admission at the
second hearing of the offer of proof regarding International's acts
of violence.
We regard this as a misapplication of the
Indiana &
Michigan case. This case is not that case. They have in common
an accusation of grave misconduct against a complainant before the
Board. Otherwise, the circumstances of the two cases, and the legal
issues they raise, are very different. The
Indiana &
Michigan case involved a proceeding under § 10(e) of the
National Labor Relations Act authorizing the Circuit Court of
Appeals to order additional evidence to be taken before the Board
when it is shown "to the satisfaction of the court that such
additional evidence is material," and that there were reasonable
grounds for the failure to adduce the evidence" at the hearing. We
have previously held that such an application "was addressed to the
sound judicial discretion
Page 330 U. S. 234
of the court."
Southport Petroleum Co. v. Labor Board,
315 U. S. 100,
315 U. S. 104.
Section 10(e) in effect formulates a familiar principle regarding
newly discovered evidence. Even without such explicitness, this
Court has, on occasion, not allowed administrative orders to stand
where there has been a drastic change in circumstances. In
Indiana & Michigan, the offer of proof related to
events subsequent to the Board's hearing tending to show acts of
serious violence on behalf of a complaining union. The Board had
refused to reopen the case, and the Circuit Court of Appeals for
the Sixth Circuit granted the application under § 10(e). 124 F.2d
50. We held that, in the light of the circumstances before it, the
Circuit Court of Appeals did not abuse its discretion in ordering
additional evidence to be taken before the Board. The proffered
testimony was held relevant on three grounds: (1) inasmuch as the
Board, by the very nature of its case load, must exercise
discretion in entertaining complaints, the newly revealed
misconduct on the part of the complainant might affect not the
jurisdiction of the Board, but the exercise of its power to
entertain a charge; (2) the new evidence bore materially upon the
credibility of some important witnesses before the Board; (3) the
Board had attributed to the Company responsibility for the conduct
of some of its supervisory employees, and the new evidence might
lead the Board to conclude that their conduct was to be attributed
to self-interest, and not charged against the employer.
Here, we have a totally different situation. We are not
reviewing an allowable exercise of judicial discretion by the
Circuit Court of Appeals in ordering the Board to hear newly
discovered evidence. On review of its order, the Board cannot be
compelled to admit evidence which it excluded unless such exclusion
was clearly insupportable. The power to adduce additional evidence
granted
Page 330 U. S. 235
to the Circuit Court of Appeals by § 10(e) cannot be employed to
enlarge the statutory scope of judicial review. The short of the
matter is that the Court deemed it reversible error on the part of
the Board not to entertain testimony on a matter which the court
deemed irrelevant to the issues at the first hearing. It did so
because it interpreted the
Indiana & Michigan case to
hold that failure by the Board to allow a full-dress inquiry into
the misconduct of a complainant, particularly if very serious,
renders the proceedings unfair as a matter of law. We were not
dealing with such an abstraction in the
Indiana &
Michigan case. Nothing short of such an abstraction will
justify invalidation of the order in this case, because the Board
did not deal with the charges against International as a separate
issue, or as though the International had been on trial. The only
consideration affecting the behavior of a complainant that played a
part in the decision in
Indiana & Michigan, and which
may here be invoked, is the suggestion that the character of a
complainant may rightfully influence the Board in entertaining a
complaint. But the charges against International had, in fact, been
brought to the attention of the Board, even though not in the way
in which International would have been tried had it been formally
charged with crime. It would be unreal to deny that there was
plenty of evidence in the record to apprise the Board of alleged
misconduct by International if, on that score, it chose not to
entertain charges of unfair labor practices against the company. In
the light of the Board's opinion, it would be doctrinaire to assume
that it would have reached any other result if evidence of
International's misconduct had been more voluminous.
Pittsburgh
Plate Glass Co. v. Labor Board, supra. The two other respects
in which newly discovered evidence as to violence was ordered to be
heard in the
Indiana & Michigan case are
Page 330 U. S. 236
completely lacking here. Here, we have not new evidence material
to the credibility of important witnesses or relevant in assessing
the responsibility by an employer for conduct of supervisory
employees. The refusal of the Board, in effect, to try
International did not impair the validity of the Board's order.
Even in judicial trials, the whole tendency is to leave rulings
as to the illuminating relevance of testimony largely to the
discretion of the trial court that hears the evidence.
See,
e.g., Morgan, Foreword, American Law Institute Code of
Evidence, p. 15. Courts of Appeal are less and less inclined to
base error on such rulings. Administrative tribunals are given even
freer scope in the application of the conventional rules of
evidence.
See Tagg Bros. v. United States, 280 U.
S. 420,
280 U. S. 442.
It is significant that the Wagner Act specifically provided that
"the rules of evidence prevailing in courts of law or equity shall
not be controlling." § 10(b).
Third. This brings us to the only other objection to a
ruling of the Board made after the first hearing. On the first
review, the court below rejected the Company's contention that the
Examiner was biased. 123 F.2d at 219. On the second review, the
Court was of opinion that the Board improperly denied the Company's
application for a new Examiner. It did so, apparently, not because
it found actual bias on the part of the Examiner demonstrated at
either hearing. The Court seemed to be moved by the generous
feeling that a party ought not to be put to trial before an
examiner who, by reason of his prior rulings and findings, may not
be capable of exercising impartiality. Certainly it is not the rule
of judicial administration that, statutory requirements apart,
see Judicial Code, § 21, 28 U.S.C. § 25, a judge is
disqualified from sitting in a retrial because he was reversed on
earlier rulings. We find no warrant for imposing
Page 330 U. S. 237
upon administrative agencies a stiffer rule whereby examiners
would be dissentitled to sit because they ruled strongly against a
party in the first hearing. The Board might have gone beyond the
legal compulsions, and ordered the new evidence to be heard before
a new Examiner who could report with a mind wholly free from prior
litigious embroilments. The Board might have been well advised also
to allow greater leeway in admitting evidence not strictly
relevant. It takes time to avoid even the appearance of grievances.
But it is time well spent, even though it is not easy to satisfy
interested parties, and defeated litigants, no matter how fairly
treated, do not always have the feeling that they have received
justice. In any event, we are not the advisers of these agencies.
And we have no right to upset their orders unless they fall afoul
of legal requirements.
Cf. Inland Empire Dist. Council v.
Millis, 325 U. S. 697. We
do not find that the Board's order offends them.
Fourth. We have examined all the issues pressed here,
but we need not enlarge upon our conclusion that they are without
merit. There remains the proper disposition of the case. Having
found infirmities in the proceedings which led to the order, the
Court below did not consider the sufficiency of the evidence to
sustain the findings on which the order was based. This controversy
has been so long in litigation that, other things being equal, it
would be highly desirable finally to dispose of the whole case
here. But other things are not equal. It is not the function of
this Court to review in the first instance the sufficiency of
evidence on which the Board's order is based. Congress placed that
function in the Circuit Court of Appeals. And this case is
peculiarly not one in which we should do the unusual thing and pass
on evidence without its prior consideration by the lower court. It
is not for us to make an independent examination of this entire
record. The demands
Page 330 U. S. 238
of the work of this Court preclude an independent canvass of a
record of thirteen volumes, containing more than 5000 pages. Two
judges below who had gone over this mass of evidence reached
opposite conclusions regarding its sufficiency to support the
Board's findings. For the determination of this issue, we remand
the case to the Circuit Court of Appeals.
Reversed and remanded.
* Together with No. 39,
International Ladies' Garment
Workers' Union v. Donnelly Garment Co. et al., also on
certiorari to the same Court.