National Labor Relations Board v. J.H. Rutter-Rex Manufacturing Company/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. JUSTICE HARLAN concur, dissenting.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, requires a dismissal of the writ of certiorari.

To start with, the Board is allowed a wide field of discretion over awards of back pay against a company found to have committed an unfair labor practice. As the Court said in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198, 61 S.Ct. 845, 854, 85 L.Ed. 1271:

'The remedy of back pay, it must be remembered, is entrusted     to the Board's discretion; it is not mechanically compelled      by the Act. And in applying its authority over back pay     orders, the Board has not used stereotyped formulas but has      availed itself of the freedom given it by Congress to attain      just results in diverse, complicated situations.'

Thus the employees in this case have no automatic 'right' to any award of back pay.

The Universal Camera case concerned the scope of judicial review of orders of the Board. Prior to that decision, many courts had conceived their function of review as an extremely narrow one; some courts looked only for evidence which, when viewed in isolation, substantiated the Board's findings. Congress registered its dissatisfaction with this restricted scope of review by stating the proper test in the Taft-Hartley Act as one of 'substantial evidence on the record considered as a whole.' 61 Stat. 148, 29 U.S.C. § 160(e). This meant that the courts of appeals were to 'assume more responsibility for the reasonableness and fairness of Labor Board decisions' than had been in practice of many of these courts in the past. 340 U.S., at 490, 71 S.Ct., at 465.

The impact of this decision was to vest the courts of appeals with general supervisory responsibility over Board decisions and orders. Accordingly, the role of this Court was to be an extremely limited one. The Court in Universal Camera put it this way:

'Our power to review the correctness of application of the     present standard ought seldom to be called into action. Whether on the record as a whole there is substantial     evidence to support agency findings is a question which      Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare     instance when the standard appears to have been      misapprehended or grossly misapplied.' Id., at 490-491, 71      S.Ct. at 466.

The problem in the present case is one of working out the equities of a back-pay order. Because the Board's delay in initiating compliance proceedings with respect to its original order was deemed unreasonable, the Court of Appeals saw fit to modify the terms of that order. The impact of the specific facts relating to the Board's and the company's actions in this case was taken into account by the Court of Appeals in reviewing the terms of the back-pay order. It arrived at its judgment as an exercise of its responsibility 'for assuring that the Board keeps within reasonable bounds' (id., at 490, 71 S.Ct., at 466) in a subject area that necessarily involves 'diverse, complicated situations.'

Casting the issue as one of 'law' rather than as one of 'fact' does not conceal the substantial departure in this case from the learning of Universal Camera: that the courts of appeals, and not this Court, are the watchdogs of the Board.

I would dismiss the writ as improvidently granted.