National Labor Relations Board v. Lion Oil Company/Concurrence Harlan

Mr. Justice HARLAN, concurring in part and dissenting in part.

I join in so much of the Court's opinion as relates to the construction of § 8(d), agreeing with THE CHIEF JUSTICE'S reasoning and Mr. Justice FRANKFURTER'S further amplification of that problem. But I dissent from that part of the Court's opinion which dismisses respondent's breach of contract defense. That question was never passed on by the Court of Appeals, and I think that our remand should leave it open for the Court of Appeals to decide in the first instance. Further, I find the Court's opinion unclear as to whether the Court of Appeals is likewise foreclosed from now dealing with the sufficiency of the evidence as to the unfair labor practice charge against respondent a question which the Court of Appeals also did not reach because of its views on § 8(d)-and I think that question, too, should be left open for the Court of Appeals on remand.

This is the fourth time this Term that the Court has passed on questions which the court below never reached. See Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1; Thompson v. Coastal Oil Co., 352 U.S. 862, 77 S.Ct. 90, 1 L.Ed.2d 73; Gibson v. Phillips Petroleum Co., 352 U.S. 874, 77 S.Ct. 16, 1 L.Ed.2d 77. I think this practice is an unfortunate one, depriving this Court, as it does, of the considered views of the lower courts. Its dangers are particularly apparent in the present case. As my brother FRANKFURTER points out, there is at least some question as to whether respondent ever raised its breach of contract defense before the National Labor Relations Board. And on the merits the question is an unusual one because of the atypical nature of this contract, and surely requires for its reliable adjudication much sharper consideration than it is possible for this Court to give it here as an original matter. Indeed, the nature of the question is such that the Court of Appeals might well conclude that the issue should be referred to the Board for its expert views in the first instance.

This kind of original adjudication by this Court is not what litigants have a right to expect. Moreover, to decide questions which, as here, have not been raised in the petition for certiorari offends our own rules. There will no doubt be cases where remand is not justified because the questions left open by the lower court are manifestly insubstantial. It seems to me that in such instances this Court should state that it is not remanding for that reason, instead of proceeding as a matter of course to decide the questions itself, either expressly or sub silentio. The latter procedure can only have a tendency to lead this Court, as here, to decide questions which it should not pass upon in the first instance, and in my opinion represents unsound judicial administration.