Retail Store Employees Union, Local 400 v. National Labor Relations Board

FAHY, Circuit Judge.

Local 400, Retail Store Employees Union, petitions us to review and set aside a Board ordér dismissing a complaint against Atlantic Mills Servicing Corporation of Wisconsin, a subsidiary of Atlantic Thrift, Inc., and the Central States Joint Board, a subordinate body of the Amalgamated Clothing Workers of America. The Company and Amalgamated were charged with conspiring in violation, respectively, of Section 8(a) (1) and (2) and 8(b) (1) (A) of the Act in connection with organizing employees of the Company at its store in Alexandria, Virginia. Two members of Amalgamated, one an employee at another of Atlantic Thrift’s subsidiaries located at Knoxville, Tennessee, and President of the Amalgamated local there, were transferred to the Alexandria store at the instance of the parent Company. These two employees succeeded in signing up a majority of the employees at the Alexandria store, some 123 out of a total of 150, within two days, followed shortly'by Company recognition of Amalgamated and the execution of a collective bargaining contract, thus bringing about in short order a change in representation to accord with the situation in some 30 other stores of the parent Company, Atlantic Thrift.

The trial examiner held a very full hearing, made a careful analysis of the evidence and concluded that the Company had violated Section 8(a) (1) and (2) as charged, that is, in the words of the Board, by entering into a conspiracy with the Central States Joint Board to install the Joint Board as collective bargaining agent at Alexandria, and that pursuant thereto the Company transferred the two employees to Alexandria at its own expense for the purpose of soliciting union membership in behalf of the Joint Board.1

The evidence clearly supports the trial examiner’s findings and conclusions. Yet the Board in deciding the case contrary to his recommendations merely says he erred, adding:

Contrary to the Trial Examiner, we believe the facts and circumstances on which he relies to find the unlawful purpose and design do not on the record as a whole support a finding of a conspiracy on the part of the Respondent-Company and the Joint Board to violate the Act.

Where substantial evidence on the whole record supports the findings of a trial examiner a summary approval of his findings by the Board is no doubt sufficient; and it is often sufficient where his findings are not approved, as in this case, for the Board to find the preponderance of evidence supports different findings. But here the Board has done no more than simply state its belief that the facts and circumstances relied upon by the trial examiner do not on the record as a whole support the conspiracy finding. They do indeed support the conspiracy finding. We realize, however, that the question now is not whether there is substantial evidence to support the trial examiner’s findings, as clearly is the case, but the legal adequacy of the Board’s decision which differs from his. The Board, to use its language, “adopts the finding of the Trial Examiner only to the extent consistent” with its decision. Since the trial examiner’s findings are abundantly supported by the evidence, this manner in which the Board intertwined acceptance and rejection of his findings, making none of its own as required by statute,2 leaves this court without the help necessary for review.

*496In a ease involving possible collusion the trial examiner’s ultimate finding naturally is drawn by inference from other findings based upon the evidence. The Board’s inference should also rest upon some findings. This is underscored by the place accorded to findings of a trial examiner in Universal Camera Corp. v. NLRB, 340 U.S. 474, 493-495, 71 S.Ct. 456, 95 L.Ed. 456 which we think requires the Board, in such a case as this, which turns significantly upon credibility, to state more clearly the basis for its disagreement, not merely that it disagrees. For we have the statutory duty of reviewing the Board’s decision when petitioned to do so. To perform our function we are entitled to more help from the Board in order intelligently to pass judgment upon its decision. See Burlington Truck Lines v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 9 L.Ed. 2d 207, recently cited in Judge Washington’s dissenting opinion in Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 375, 336 F.2d 754, 765, vacated and remanded, 85 S.Ct. 1798; Braniff Airways, Inc. v. CAB, 113 U.S.App.D.C. 132, 306 F.2d 739, and cases cited; cf. Burinskas v. NLRB, order of this court of January 8, 1964; and see Section 8(b) of the Administrative Procedure Act, 60 Stat. 242, 5 U.S.C. § 1007(b) (1964).

Our need for something more is pointed up by the analysis of the case made by our dissenting Brother; for his analysis is his own, not that of the Board We find nothing in the decision of the Board concerning preponderance of evidence, failure to sustain a burden of proof, or Board acceptance of the basic facts found by the trial examiner, with a different inference drawn therefrom. What we have is a Board statement of disbelief that the facts and circumstances relied upon by the trial examiner on the record as a whole support a conspiracy finding.

The unquestioned deference due the Board’s expertise is not a substitute for an analysis which enables the court to understand, from what the Board sets forth in findings or otherwise, the basis for its ruling. The court must not be demanding and impose a heavy burden. Yet, though a great deal is not required, too little does not suffice.

The order is set aside and the case is remanded to the Board for reconsideration in light of our conclusion that the decision now before us is inadequate to enable us to enforce the order dismissing the complaint.

It is so ordered.

. The trial examiner concluded, however, that Amalgamated itself had not committed the unfair labor practice. Section 8(b) (1) (A), ascribed to it in the complaint.

. “If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint.” 61 Stat. 147, 29 U.S.C. § 160(c) (1964).