This petition for enforcement brings before us another aspect of the N.L.R.B. “contract-bar” rule, which has recently concerned us in Local 1545, United Brotherhood of Carpenters and Joiners v. Vincent, 1960,
I. The Facts.
Respondent, Marcus Trucking Company, having its garage at Monroe, N. Y., transports milk and milk products in New York and New Jersey. In July, 1956, it became a member of the Dairy Transport Association, a New York membership corporation, one of whose functions is to represent members in labor matters; respondent executed a document appointing the Association its attorney-in-fact for such matters. Thereupon the Association and Local 770, I.B.T., which had been recently certified as exclusive bargaining representative of Marcus’ drivers, extended a 1955 contract to cover them.
The 1955 contract was to terminate July 31, 1957. On May 29, 1957, the Association held a meeting of its members, including Marcus. The members voted to dissolve the existing powers of attorney, but appointed a committee to negotiate a new labor contract. New powers of attorney were sent to the members; _ Marcus signed such a power, but claimed this not to have been effective since it called for an acceptance by the Association which did not occur. Per contra the General Counsel contended the dissolution of the earlier power was ineffective as a revocation because the power provided that revocation could only be made by registered mail not later than December 31 of any year, and also because respondent had agreed to keep the power alive until May 31, 1958, and the action taken on May 29, 1957 did not bind the Association as a consent to revocation since it was a vote by the members rather than the directors, see N. Y. General Corporation Law, McK.Consol. Laws, c. 23, § 27.
Bargaining between the Association’s committee and three union officials, Decker, Hickman and Hickey, took place in June, July and August, 1957; Charles H. Marcus, originally vice president and later president of respondent, was not a member of the committee but attended some sessions as an observer. Dissatisfied with lack of progress, Local 770 struck the members on August 20; the strike was shortly ended by an oral agreement with the committee as to the major provisions of a new contract. Respondent thereupon adopted wage rates and overtime provisions in accordance with the oral agreement, although Charles Marcus told the President of the Association he did not like these. Negotiations for the contract went on into November, 1957, and January, 1958.
*587 On January 20, 1958, the Association and Local 770 signed a memorandum agreeing on a draft previously submitted by the union together with a number of changes outlined in the memorandum. At some time between January 28 and February 3, 1958, the Association and Local 770 executed a contract for the period August 1, 1957-July 31, 1960, embodying this agreement. Suffixed to the contract was a legend “Dairy Transport Association Inc.’s authority to execute the foregoing agreement on behalf of this organization is confirmed,” with spaces for the signatures of the members, including respondent. A quorum failed to attend a meeting of the Association called to obtain such signatures, and the spaces provided for them remained blank. The President of the Association testified the negotiating committee’s authority was limited to a certain increase in wages, which the agreement exceeded. Meanwhile, on January 9,1958, respondent wrote the Association “revoking our power of attorney with the Association, if any did exist at any time prior to this writing.” The General Counsel claimed this was ineffective both because of the contract provision cited above and because it was not sent by registered mail before December 31, as the first power of attorney required.
A sore point with Marcus, both before and after January 20, 1958, was the union’s demand for time and a half for more than 10 hours per day; Charles Marcus complained repeatedly to his drivers that he was unable to bid competitively against another trucker whose contract, with Local 602, I.B.T., did not contain such a provision. Late in April or early in May, 1958, a large majority of respondent’s drivers held a meeting, chaired by Meisner, the shop steward; they instructed Meisner to see whether one of four I.B.T. locals, including 602, would take them. There is no evidence that respondent stimulated the meeting, save as this may have been done indirectly by Charles Marcus’ complaints as to the effect of the overtime payments on respondent’s business. Petitions for transfer to Local 602 were signed by 35 of respondent’s 46 drivers.
Local 770 responded by removing Meisner as shop steward, appointing Bedford in his stead, and calling a strike on the night of May 30. The strike was abortive. Bedford was the only employee who joined the protesting group that formed outside respondent’s garage; all the other employees continued to work. However, during the early morning hours, Charles Marcus drove to Middletown, N. Y., to confer with the Local 770 officials. They presented him with a contract covering his seven mechanics; this he refused to sign. They also requested him to sign the confirmation of the contract negotiated by the Association with respect to the drivers. The testimony is in complete accord that he did not sign but in the sharpest discord as to why. Charles Marcus testified he declined because of the petitions for transfer to Local 602, Hickman and Decker that he did so because “I have got a contract [with Local 770], and there is no reason why I should sign this one.” On Charles Marcus’ return to Middletown, the 602 representative demanded he sign a contract with a union security clause but without the offending overtime provision, threatening a really effective strike if he did not. Respondent complied.
The only other facts required to be stated at this point relate to Bedford. He was on vacation from June 15 to June 21, 1958. On returning he found he had been assigned a run to New York instead of upstate where he had previously been. Calling Charles Marcus to complain, Bedford was told, as he testified, “You have lost your seniority * * * Because you are not a member of Local 602. And you have been — they have told me to drop you to the bottom of the list.”
II. The Board’s order.
Upon this record the Board, on March 11, 1960, ordered Marcus to cease and desist from recognizing Local 602 and from giving effect to the contract of May 30, 1958, unless and until Local 602 *588 is certified by the Board as the representative of Marcus’ drivers; to recognize Local 770 as such representative and give effect to the collective bargaining agreement until July 31, 1960; to “restore to its employees * * * the system of overtime pay existing prior to May 30, 1958, and make such employees whole for any loss of earnings they may have suffered by reason of the elimination of such overtime pay”; to reimburse' its employees the dues, fees and assessments they have paid Local 602; and to restore Bedford to his prior seniority status.
The Board does not charge that Marcus pressured its employees into transferring to Local 602, and the evidence would not support such a charge. The claim is rather that when an employer who has made a valid collective bargaining agreement with a Board-certified union recognizes another union during the period of “contract-bar” protection— now two years, Pacific Coast Assn. of Pulp & Paper Manufacturers,
III. The Board’s determination that respondent entered into a new contract with Local 770.
Before we reach the question of law thus presented, we must consider the indispensable premise, namely, that respondent became bound to the three year contract between the Association and Local 770 signed in the winter of 1958. The Examiner’s finding to this effect seems to have rested on four bases: (1) the alleged ineffectiveness of respondent’s revocations of the 1956 power of attorney; (2) respondent’s alleged failure to comply with Board-prescribed “tests for withdrawing effectively from multi-employer bargaining”; (3) apparent authority of the negotiating committee; and (4) conduct of respondent ■evidencing an intention to be bound- — the two latter being grouped somewhat misleadingly under the rubric of “ratification.” The Board stated in a footnote that it was unnecessary to pass on the two former grounds; it should have overruled them and thereby prevented repetition of error. The first ground ignored the elementary principles of agency that “An agreement that the authority is to be revoked or renounced only in a particular manner is ineffective”; American Law Institute, Restatement of Agency 2d, § 119 comment a, and that “A statement in a contract that the authority cannot be terminated by either party is effective only to create liability for its wrongful termination,” id. at § 118 comment b. The second ground was equally indefensible. Passing the question whether the Board has power to alter the rules of agency applicable in multi-employer bargaining, neither Retail Associates,
The reason why the Board found it unnecessary to consider these issues was because .it agreed “with the Trial Examiner, and for the reasons stated by him, that the conduct of Respondent, through May 30, 1958, constituted a ratification of the collective bargaining agreement * * * ” Much of respondent’s conduct which the Examiner found significant does not seem so to us. It is hard to see how anything done prior to January 20, 1958, can show admission or “ratification” of a contract not made until then in any event, although it might be relevant as to apparent authority. Respondent’s placing the wage increases and overtime payments in effect-after the August 20, 1957 strike seems as consistent with a desire to go along with the union for a while and avoid trouble as *589 with a manifestation of intent to commit itself for a three-year term — with automatic increases at the end of each year. The Examiner stressed that Marcus complained about the overtime payments, yet continued to make them save for a temporary cessation for a month. But the events of August 20 had doubtless educated Marcus as to the likely consequences of failure to do this, and this evidence also is as consistent with Marcus’ having accepted the terms negotiated by the Association as a modus vivendi, as with its considering itself firmly bound. Its continued check off of dues to Local 770 pursuant to unrevoked authorizations has even less probative value. Beyond this there were Charles Marcus’ attendance at the bargaining sessions, itself quite inconclusive; the Examiner’s acceptance of the testimony of Hickman and Decker that Marcus did not protest the Association’s authority and his refusal to credit Charles Marcus’ contrary testimony, and Marcus’ failure to communicate to the union the January 9, 1958, revocation of the power of attorney, both significant in countervailing respondent’s case rather than in supporting the General Counsel’s; Hickman’s testimony that Marcus said in December, 1957, that the men “were being paid according to the agreement” (not yet made); Decker’s testimony that he had informed Marcus in March, 1958, that the union would have to “knock off” seven men “pursuant to Section 5 of the contract” if they did not pay their dues; and, finally and most important, again rejecting Charles Marcus’ testimony and accepting Decker’s and Hickman’s, that “early on May 30, 1958, before the contract with Local 602 had been signed, Marcus unequivocally admitted to Local 770’s representatives that the Respondent was under contract to Local 770.”
Whether respondent’s being hound by the contract of January 20, 1958, is a question of law or of fact, an issue discussed below, what Charles Marcus said on the night of May 30 is surely a question of the latter sort. Here the Examiner chose to credit what he described, with perhaps unwitting felicity, as “a synthesis of the credited testimony of Hickman and Decker,” and not to credit Charles Marcus, although he does not tell us why.
1
Synthetic is exactly how Hickman’s and Decker’s testimony as to the May 30 conversation Strikes us. Significantly they gave no such testimony on their initial appearance on the stand, although the incident was plainly of the first importance if it occurred; their testimony came only on rebuttal and it seems most improbable .that Marcus would have gone to such pains to declare himself bound to Local 770 when he knew its “strike” had proved a failure and deliverance by Local 602 was at hand. However, that is not enough to warrant rejection of the finding. Even after Universal Camera Corp. v. N. L. R. B., 1951,
However, even if we were free to use our own judgment and reject Hickman’s and Decker’s testimony, we would be required to uphold the Board’s finding that respondent became bound to the Association contract. For (1) this is a “question of fact” within § 10(e) of the National Labor Relations Act, 29 U.S.C. A. § 160(e), and (2) we cannot disturb findings of such a “fact” based on inferences within the range of reason although we should not have drawn them ourselves.
(1) The controversy whether application of established legal standards to raw evidentiary material is a question of law or of fact is an old one.
3
Professor Jaffe supports Holmes’ narrow definition of “fact”: “A finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect” or “a description of a phenomenon independent of law making or law applying.” Judicial Review: Question of Law, 69 Harv.L.Rev. 239, 241, 242 (1955); on that view the making of a contract would be a question of law, not of fact. Analytically that seems, indeed, to be sound, and this may well be the proper construction of “fact” in Fed.R.Civ.Proc. 52(a), 28 U.S.C.A., as we have indicated in E. F. Drew & Co. v. Reinhard, 2 Cir., 1948,
The cases presenting the issue of “question of fact” vs. “question of law” seem to fall into three major groupings, although, as would be expected, the lines between them are fuzzy:
(a) Cases, typified by Consolidated Edison Co. of N. Y. v. N. L. R. B., 1938,305 U.S. 197 , 229,59 S.Ct. 206 ,83 L.Ed. 126 ; N. L. R. B. v. Southern Bell T. & T. Co., 1943,319 U.S. 50 , 60,63 S.Ct. 905 ,87 L.Ed. 1250 , and Corn Products Refining Co. v. F. T. C., 1945,324 U.S. 726 , 739,65 S.Ct. 961 ,89 L.Ed. 1320 [discrimination], where the chief problem is the propriety of an administrative conclusion that raw facts, undisputed or within the agency’s power to find, fall under a statutory term as to whose meaning, at least in the particular case, there is little dispute;
(b) Cases where there is dispute both as to the propriety of the inferences drawn by the agency from the raw facts and as to the meaning *591 of the statutory term, e. g., Rochester Tel. Corp. v. United States, 1939,307 U.S. 125 , 145,59 S.Ct. 754 ,83 L.Ed. 1147 [control]; O’Leary v. Brown-Pacific-Maxon, Inc., 1951,340 U.S. 504 ,71 S.Ct. 470 ,95 L. Ed. 483 [course of employment];
(c) Cases where the only or principal dispute relates to the meaning of the statutory term, e. g., Gray v. Powell, 1941,314 U.S. 402 ,62 S.Ct. 326 ,86 L.Ed. 301 [producer]; Davies Warehouse Co. v. Bowles, 1944,321 U.S. 144 ,64 S.Ct. 474 ,88 L.Ed. 635 [public utility] ; N. L. R. B. v. Hearst Publications, Inc., 1944,322 U.S. 111 , 130-131,64 S. Ct. 851 ,88 L.Ed. 1170 and Packard Motor Car Co. v. N. L. R. B., 1947,330 U.S. 485 ,67 S.Ct. 789 ,91 L.Ed. 1040 [employee]; Social Security Board v. Nierotko, 1946,327 U.S. 358 ,66 S.Ct. 637 ,90 L.Ed. 718 [back pay]; N. L. R. B. v. Highland Park Mfg. Co., 1951,341 U.S. 322 ,71 S.Ct. 758 ,95 L.Ed. 969 [national or international labor organization] . 5
The cases in the last group quite clearly present questions of law; hence they are not governed by statutes such as § 10(e) of the Labor Act but raise the different issue of the degree of deference which courts should pay to decisions of administrative agencies interpreting the statutes that they apply. 6 On the other hand, the cases in the first group seem almost always to he regarded as presenting “questions of fact.” 7 The instant case differs only in that the pertinent legal terms, such as “contract,” “authority,” and “ratification,” are not contained in the relevant section of the statute. This would be a significant difference if there were doubt as to the meaning of the terms and the question was thus one of “law,” for then statutes such as § 10(e) would not govern and the reason for some judicial deference to administrative expertise in the interpretation of legal language contained in the very act which the agency administers would not apply. But if the application of undisputed legal terms in the statute to raw facts is a “question of fact” within § 10(e), as it has been held to be, it is hard to find any basis for not reading these same words in § 10(e) as covering the application of equally undisputed non-statutory legal standards. We hold they do.
(2) Even so, the Board’s finding may stand, under § 10 (e), only “if supported by substantial evidence on the
*592
record considered as a whole,” and we reach the question of the extent to which we must respect inferences drawn by the Board from evidentiary facts that are undisputed or within the Board’s power to find. Doubts that the statement in N. L. R. B. v. Nevada Consolidated Copper Corp., 1942,
IV. The unfair labor practice.
We now must consider the validity of the Board’s conclusion that respondent’s recognition of Local 602 during the period when Marcus’ agreement with Local 770 was entitled to. “contract-bar” protection came within-the mandate that an employer must not “interfere with, restrain, or coerce employees in the exercise of the rights. *593 guaranteed” in section 7, 29 U.S.C.A. § 157, “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it,” or “refuse to bargain collectively with the representatives of his employees,” Sections 8(a) (1), (2) and (5), 29 U.S.C.A. § 158(a) (1), (2) and (5), even though the new bargaining representative was freely joined by a majority of its employees. This was the principal unfair labor practice found; we shall discuss the others in dealing with the remedy.
At first sight it seems, indeed, a far cry from the objectives of the Act that we should hold it an unfair labor practice for an employer to join an uncoerced majority of its employees in action they both want, when the only injured persons are the minority and an organization whose position depends on a suffrage it no longer possesses. However, surface impressions are rarely reliable in this complicated field; and the Board’s position, more fully explicated in Hexton Furniture Co.,
The Board says the principles stated in Brooks apply not only during a period when the holding of a new election is prevented by statute, § 9(c) (3), 29 U.S.C.A. § 159(c) (3), as in that case, but also when it is precluded by the' Board’s “contract-bar” rule. The Fifth Circuit seems to have so held in N. L. R. B. v. Sanson Hosiery Mills, Inc., 1952,
V. The Remedies.
We shall deal first with paragraph 2c of the order, which requires respondent to restore “the system of overtime pay existing prior to May 30, 1958, and make such employees whole for any loss of earnings they may have suffered by reason of the elimination of such overtime pay.” Harsh as it may seem to require respondent to pay the drivers sums they voluntarily forewent, we may not ignore that, from the Board’s standpoint, this was the very nub of *594 respondent’s breach of industrial peace, and that hence respondent cannot be permitted to retain the fruits, Cascade Employers’ Association, Inc., 126 N.L.R.B. No. 118 (1960); Smith’s Van & Transport Company, Inc., 126 N.L.R.B. No. 129 (1960). The Board might well have limited the reimbursement to July 31, 1960, when the contract would have expired. However, we cannot say it was required to do that, for the contract provided that, if not renewed on or before the expiration date, “the terms and conditions thereof shall continue in full force and effect.” Still there must be some terminus; we shall establish one below.
We come next to the provisions of the order requiring respondent to cease and desist from recognizing Local 602 “unless and until such labor organization shall have been certified by the Board as the representative of the said employees” and to recognize Local 770 in the meanwhile. In N. L. R. B. v. Adhesive Products Corp., 2 Cir., 1960,
Paragraph 2d requires respondent to reimburse to its employees “the dues, fees and assessments which these employees have paid to Local 602 as a condition of employment during the period commencing May 30, 1958.” This is the so-called Brown-Olds remedy, which has not won much judicial favor, thus far.
10
Counsel urge the case to be like N. L. R. B. v. Revere Metal Art Co., Inc., 2 Cir., 1960,
The Board seems to have been right in finding the union security clause of the agreement with Local 602 unlawful in a number of respects; however, it is unnecessary to consider this in view of our sustaining the holding that the very making of the agreement was an unfair labor practice. It is similarly unnecessary to consider whether the evidence supported the finding that respondent unlawfully turned over control of its seniority practices to Local 602, in violation of the rule in Pacific Intermountain Express Co.,
The Board’s order will be enforced with the modifications indicated. We suggest the parties endeavor to agree on a decree; if not, that should be settled on notice.
Notes
. The Examiner drew no adverse inference from General Counsel's failure to extract any testimony on this subject from Bed-ford, who was present on May 30, although he discredited Marcus’ testimony as to protests over the negotiating committee’s lack of authority on the ground that the Association officers alleged to have heard such protests were not called.
. See Jaffe, Judicial Review: Question of Fact, 69 Harv.L.Rev. 1020, 1030 (1956).
. A famous instance was the debate between Holmes and Thayer with respect to negligence, see Holmes, The Common Law (1881), 126; Thayer, A Preliminary •Treatise on Evidence at the Common Law (1898), 228; but the history can be traced long before that, see Mr. Justice Doe in Gray v. Jackson, 1871,
. Other statutes using the same or similar language are listed in Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 Harv.L.Rev. 70, 76 (1944).
. Of course, this catalogue does not exhaust the situations presented in judicial review of administrative findings — another that comes readily to mind is where the agency has acted under a broad statutory policy as to whose detailed application it necessarily has wide discretion, e. g., whether “public convenience and necessity” requires the establishment or permits the abandonment of transportation service, see United States v. Detroit & Cleveland Navigation Co., 1945,
. See Jaffe, 69 Harv.L.Rev. at 251-57, 263-64.
. Professor Jaffe recognizes, 69 Harv.L.Rev. at 242-46, that his definition of “fact” must be qualified “where a word of common meaning is itself used in a statute.” And it has been forcefully urged that the distinction between law and fact is not necessarily the same when an appellate court is reviewing tbe action of an administrative agency, or a jury, as when it reviews the decision of a judge, Stern, op. cit. fn. 4, at 80-89, 105. Cf. the opinions of Chief Judge Parker and of Judge Soper in N. L. R. B. v. Southland Mfg. Co., 4 Cir., 1952,
. A basis for a contrary view would be furnished - by the statement in Pennsylvania R. Co. v. Chamberlain, 1933,
. The other Supreme Court case cited, N. L. R. B. v. Warren Co., 1955,
. Most of the cases are collected in N. L. R. B. v. United States Steel Corp. (American Bridge Division), 3 Cir., 1960,