OCTOBER TERM, 1993
Syllabus
ABF FREIGHT SYSTEM, INC.
v. NATIONAL LABOR RELATIONS
BOARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 92-1550. Argued December 1, 1993-Decided January 24,1994
After Michael Manso gave his employer, petitioner ABF Freight
System, Inc. (ABF), a false excuse for being late to work, ABF
ascertained that he was lying and fired him on the asserted ground
of tardiness. He filed an unfair labor practice charge with the
National Labor Relations Board (Board) and repeated his false
tardiness excuse while testifying under oath before an
Administrative Law Judge (ALJ), who denied him relief upon
concluding that he had lied and that ABF had discharged him for
cause. The Board reversed in relevant part, finding that ABF did
not in fact fire Manso for lying but had seized upon his tardiness
as a pretext to discharge him for earlier union activities.
Notwithstanding his dishonesty, the Board ordered ABF to reinstate
him with backpay. The Court of Appeals enforced the order,
rejecting ABF's argument that awarding reinstatement and backpay to
an employee who lied to his employer and to the ALJ violated public
policy.
Held: Manso's false testimony under oath before the ALJ
did not preclude the Board from granting him reinstatement with
backpay. Although such misconduct is intolerable in a formal
proceeding, 29 U. S. C. § 160(c) expressly delegates to the Board
the primary responsibility for making remedial decisions, including
awarding reinstatement with backpay, that best effectuate the
policies of the National Labor Relations Act (Act) when the Board
has substantiated an unfair labor practice. Confronted with that
kind of express delegation, courts must give an agency's decision
controlling weight unless it is arbitrary, capricious, or
manifestly contrary to the Act. It cannot be said that the Board's
remedial order in this case was an abuse of its broad discretion or
that it was obligated to adopt a rigid rule that would foreclose
relief in all comparable cases. Nor can its conclusions be faulted
that Manso's reason for being late to work was ultimately
irrelevant to whether antiunion animus actually motivated his
discharge and that ordering effective relief in a case of this
character promotes a vital public interest. It would be unfair to
sanction Manso while indirectly rewarding the lack of candor of
several ABF witnesses, whose testimony the ALJ and the Board
refused to credit. Moreover, a categorical rule against relief
might force the
318
Board to divert its attention away from its primary mission and
toward resolving collateral credibility disputes. Pp. 322-325.
982 F.2d
441, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, KENNEDY, SOUTER, THOMAS, and
GINSBURG, JJ., joined. KENNEDY, J., filed a concurring opinion,
post, p. 325. SCALIA, J., filed an opinion concurring in the
judgment, in which O'CONNOR, J., joined,
post, p. 326.
John v:
Jansonius argued the cause for petitioner.
With him on the briefs were
Jill J. Weinberg
and
Alan Wright.
Deputy Solicitor General Wallace argued the cause for
respondent. With him on the brief were Solicitor General Days,
Michael R. Dreeben, Jerry M. Hunter, Nicholas E. Karatinos, Norton
J. Come, Linda Sher, and John Emad Arbab.*
JUSTICE STEVENS delivered the opinion of the Court. Michael
Manso gave his employer a false excuse for being late to work and
repeated that falsehood while testifying under oath before an
Administrative Law Judge (ALJ). Notwithstanding Manso's dishonesty,
the National Labor Relations Board (Board) ordered Manso's former
employer to reinstate him with backpay. Our interest in preserving
the integrity of administrative proceedings prompted us to
grant
* James D. Holzhauer, Timothy S.
Bishop,
and
Daniel R. Barney filed a brief for the American Trucking
Associations as
amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the
American Federation of Labor and Congress of Industrial
Organizations by Marsha S. Berzon and Laurence Gold; for the
Lawyers' Committee for Civil Rights Under Law et al. by Herbert M.
Wachtell, William H. Brown III, Norman Redlich, Thomas
J.
Henderson, Richard T. Seymour, Sharon R. Vinick, Mitchell Rogovin,
Randal S. Milch, Robert C. Bell, Jr., and Donna R. Lenhoff
E. Carl U ehlein, Jr., Joseph E. Santucci, Jr., Stephen A.
Bokat, Robin S. Conrad, and Mona C. Zeiberg filed a brief for the
Chamber of Commerce of the United States et al. as amici
curiae.
319
certiorari to consider whether Manso's misconduct should have
precluded the Board from granting him that relief.
I
Manso worked as a casual dockworker at petitioner ABF Freight
System, Inc.'s (ABF's) trucking terminal in Albuquerque, New
Mexico, from the summer of 1987 to August 1989. He was fired three
times. The first time, Manso was 1 of 12 employees discharged in
June 1988 in a dispute over a contractual provision relating to
so-called "preferential casual" dockworkers.1 The grievance Manso's
union filed eventually secured his reinstatement; Manso also filed
an unfair labor practice charge against ABF over the incident.
Manso's return to work was short lived. Three supervisors warned
him of likely retaliation from top managementalerting him, for
example, that ABF was "gunning" for him, App. 96, and that "the
higher echelon was after [him],"
id., at 96-97. See also
ABF Freight System, Inc., 304 N. L. R. B. 585, 592, 597
(1991). Within six weeks ABF discharged Manso for a second time on
pretextual groundsostensibly for failing to respond to a call to
work made under a stringent verification procedure ABF had recently
imposed upon preferential casuals.2 Once again, a grievance panel
ordered Manso reinstated.
1 ABF at this time had three dockworker classifications: those
on the regular seniority list, nonpreferential casuals, and
preferential casuals.
ABF Freight System, Inc., 304 N. L. R.
B. 585, 589, n. 10 (1991). A supplementallabor agreement ABF
negotiated with the union in April 1988 created the preferential
casual dockworker classification with certain seniority rights.
Id., at 585-586.
2 The policy required preferential casuals-though not other
dockworkers-to be available by phone prior to a shift in case a
foreman needed them to work. A worker who did not respond risked
disciplinary action for failing to "protect his shift"; two such
failures authorized ABF to discharge the worker.
Id., at
597. ABF issued a written warning to Manso on May 6, 1989, after he
failed to respond to such a call. On June 19, a supervisor again
asked a regular dockworker to summon Manso to work just prior to 6
a.m. for the 8:30 a.m. shift. When Manso did not
320
Manso's third discharge came less than two months later.
On August 11, 1989, Manso arrived four minutes late for the 5
a.m. shift. At the time, ABF had no policy regarding lateness.
After Manso was late to work, however, ABF decided to discharge
preferential casuals-though not other employees-who were late twice
without good cause. Six days later Manso triggered the policy's
first application when he arrived at work nearly an hour late for
the same shift. Manso telephoned at 5:25 a.m. to explain that he
was having car trouble on the highway, and repeated that excuse
when he arrived. ABF conducted a prompt investigation, ascertained
that he was lying,3 and fired him for tardiness under its new
policy on lateness.
Manso filed a second unfair labor practice charge. In the
hearing before the ALJ, Manso repeated his story about the car
trouble that preceded his third discharge. The ALJ credited most of
his testimony about events surrounding his dismissals, but
expressly concluded that Manso lied when he told ABF that car
trouble made him late to work.
Id., at 600. Accordingly,
although the ALJ decided that ABF had illegally discharged Manso
the second time because he was a
answer, the employee who had dialed his number asked to dial it
again, fearing he had misdialed. The supervisor denied permission
and instead had the employee sign a form verifying that Manso had
not responded. Manso was then discharged. The ALJ found that the
special call policy discriminated against preferential casual
dockworkers as a class,
id., at 598, 600; both the ALJ and
the Board concluded that it was discriminatorily applied to Manso,
id., at 600, 589, n. 11.
3 Manso told ABF management that his car had overheated on the
highway, that he had to phone his wife to pick him up and take him
to work. Manso also said a deputy sheriff stopped him for speeding
in his ensuing rush. A plant manager who looked for Manso's
overheated car on the highway found nothing, however, and the
officer who Manso said issued him a warning for speeding told ABF
officials-and later the ALJ-that Manso had been alone in the
car.
321
party to the earlier union grievance,4 the ALJ denied Manso
relief for the third discharge based on his finding that ABF had
dismissed Manso for cause.
Ibid.
The Board affirmed the ALJ's finding that Manso's second
discharge was unlawful, but reversed with respect to the third
discharge.
Id., at 591. Acknowledging that Manso lied to his
employer and that ABF presumably could have discharged him for that
dishonesty,
id., at 590, n. 13, the Board nevertheless
emphasized that ABF did not in fact discharge him for lying and
that the ALJ's conclusion to the contrary was "a plainly erroneous
factual statement of [ABF]'s asserted reasons." 5 Instead, Manso's
lie "established only that he did not have a legitimate excuse for
the August 17 lateness."
Id., at 589. The Board focused
primarily on ABF's retroactive application of its lateness policy
to include Manso's first time late to work, holding that ABF had
"seized upon" Manso's tardiness "as a pretext to discharge him
again and for the same unlawful reasons it discharged him on June
19." 6 In addition, though the Board deemed Manso's discharge
unlawful even assuming the validity of ABF's general disciplinary
treatment of preferential casuals, it observed that ABF's
disciplinary approach and lack of uniform rules for all dockworkers
"raise[d] more questions than they resolve[d]."
Id., at 590.
The Board ordered ABF to reinstate Manso with backpay.
Id.,
at 591.
4 Specifically, the ALJ held that the dismissal violated §§
8(a)(1), (3), and (4) of the National Labor Relations Act, 49 Stat.
452, as amended, 29
5304 N. L. R. B., at 590. The Board found that the record in
this case unequivocally established that ABF did not treat Manso's
dishonesty "in and of itself as an independent basis for discharge
or any other disciplinary action."
Ibid.
6Id., at 591. The Board also noted that the supervisors'
threats of retaliation and the earlier unlawful discharge under the
verification policy provided "strong evidence" of unlawful
motivation regarding Manso's third discharge.
Id., at
590.
322
The Court of Appeals enforced the Board's order.
Miera v.
NLRB, 982 F.2d
441 (CAlO 1992). Its review of the record revealed "abundant
evidence of antiunion animus in ABF's conduct towards Manso,"
id., at 446, including "ample evidence" that Manso's third
discharge was not for cause,
ibid. The court regarded as
important the testimony in the record confirming that Manso would
not have been discharged under ABF's new tardiness policy had he
provided a legitimate excuse.
Ibid. The court also rejected
ABF's argument that awarding reinstatement and backpay to an
employee who lied to his employer and to the ALJ violated public
policy.7 Noting that "Manso's original misrepresentation was made
to his employer in an attempt to avoid being fired under a policy
the application of which the Board found to be the result of
antiunion animus," the court reasoned that the Board had wide
discretion to ascertain what remedy best furthered the policies of
the National Labor Relations Act (Act).
Id., at 447.
II
The question we granted certiorari to review is a narrow one.8
We assume that the Board correctly found that ABF discharged Manso
unlawfully in August 1989. We also assume, more importantly, that
the Board did not abuse its discretion in ordering reinstatement
even though Manso
7 ABF's public policy argument relies on several decisions
refusing to enforce reinstatement orders where the employee had
engaged in serious misconduct. See,
e. g., Precision Window
Mfg. v.
NLRB, 963 F.2d
1105, 1110
(CA8 1992) (employee lied about extent of
union activities and threatened to kill supervisor);
NLRB v.
Magnusen, 523 F.2d
643, 646
(CA9 1975) (employee padded time card and lied
about it under oath);
NLRB v.
Commonwealth Foods,
Inc., 506 F.2d
1065, 1068
(CA4 1974) (employees engaged in theft from
employer);
NLRB v.
Breitling, 378
F.2d 663, 664 (CAW 1967) (employee confessed to stealing from
employer).
8We limited our grant of certiorari to the third question in the
petition:
"Does an employee forfeit the remedy of reinstatement with
backpay after the Administrative Law Judge finds that he
purposefully testified falsely during the administrative hearing?"
Pet. for Cert. i.
323
gave ABF a false reason for being late to work. We are concerned
only with the ramifications of Manso's false testimony under oath
in a formal proceeding before the ALJ. We recognize that the Board
might have decided that such misconduct disqualified Manso from
profiting from the proceeding, or it might even have adopted a flat
rule precluding reinstatement when a former employee so testifies.
As the case comes to us, however, the issue is not whether the
Board
might adopt such a rule, but whether it
must do
so.
False testimony in a formal proceeding is intolerable. We must
neither reward nor condone such a "flagrant affront" to the
truth-seeking function of adversary proceedings. See
United
States v.
Mandujano, 425 U. S. 564, 576-577
(1976). See also
United States v.
Knox, 396 U. S. 77 (1969);
Bryson v.
United States, 396 U. S. 64 (1969);
Dennis v.
United States, 384 U. S. 855 (1966);
Kay v.
United States, 303 U. S. 1 (1938);
United States v.
Kapp, 302 U. S. 214 (1937);
Glickstein v.
United States, 222 U. S. 139, 141-142
(1911). If knowingly exploited by a criminal prosecutor, such
wrongdoing is so "inconsistent with the rudimentary demands of
justice" that it can vitiate a judgment even after it has become
final.
Mooney v.
Holohan, 294 U. S. 103, 112
(1935). In any proceeding, whether judicial or administrative,
deliberate falsehoods "well may affect the dearest concerns of the
parties before a tribunal,"
United States v.
Norris,
300 U. S. 564,
574 (1937), and may put the factfinder and parties "to the
disadvantage, hindrance, and delay of ultimately extracting the
truth by cross examination, by extraneous investigation or other
collateral means."
Ibid. Perjury should be severely
sanctioned in appropriate cases.
ABF submits that the false testimony of a former employee who
was the victim of an unfair labor practice should always preclude
him from winning reinstatement with backpay. That contention,
though not inconsistent with our appraisal of his misconduct,
raises countervailing concerns. Most important is Congress'
decision to delegate to the
324
Board the primary responsibility for making remedial decisions
that best effectuate the policies of the Act when it has
substantiated an unfair labor practice. The Act expressly
authorizes the Board "to take such affirmative action including
reinstatement of employees with or without back pay, as will
effectuate the policies of [the Act]." 29 U. s. C. § 160(c). Only
in cases of discharge for cause does the statute restrict the
Board's authority to order reinstatement.9 This is not such a
case.
When Congress expressly delegates to an administrative agency
the authority to make specific policy determinations, courts must
give the agency's decision controlling weight unless it is
"arbitrary, capricious, or manifestly contrary to the statute."
Chevron U. S.
A. Inc. v.
Natural Resources Defense
Council, Inc., 467 U. S. 837, 844
(1984). Because this case involves that kind of express delegation,
the Board's views merit the greatest deference. This has been our
consistent appraisal of the Board's remedial authority throughout
its long history of administering the Act.lO As we explained over a
half century ago:
"Because the relation of remedy to policy is peculiarly a matter
for administrative competence, courts must not enter the allowable
area of the Board's discretion and must guard against the danger of
sliding unconsciously from the narrow confines of law into the more
spacious domain of policy." Phelps Dodge Corp. v. NLRB,
313 U. S. 177, 194 (1941).
9"No order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or discharged, or
the payment to him of any back pay, if such individual was
suspended or discharged for cause." 29 U. S. C. § 160(c).
10 See
Virginia Elec. &
Power Co. v.
NLRB, 319 U.
S. 533, 539-540 (1943). We stated in
Virginia Electric
that such administrative determinations should stand "unless it can
be shown that the order is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies of
the Act."
Id., at 540.
325
Notwithstanding our concern about the seriousness of Manso's
ill-advised decision to repeat under oath his false excuse for
tardiness, we cannot say that the Board's remedial order in this
case was an abuse of its broad discretion or that it was obligated
to adopt a rigid rule that would foreclose relief in all comparable
cases. Nor can we fault the Board's conclusions that Manso's reason
for being late to work was ultimately irrelevant to whether
antiunion animus actually motivated his discharge and that ordering
effective relief in a case of this character promotes a vital
public interest.
Notably, the ALJ refused to credit the testimony of several ABF
witnesses, see,
e. g., 304 N. L. R. B., at 598, and
the Board affirmed those credibility findings,
id., at 585.
The unfairness of sanctioning Manso while indirectly rewarding
those witnesses' lack of candor is obvious. Moreover, the rule ABF
advocates might force the Board to divert its attention from its
primary mission and devote unnecessary time and energy to resolving
collateral disputes about credibility. Its decision to rely on
"other civil and criminal remedies" for false testimony, cf.
St.
Mary's Honor Center v.
Hicks, 509 U. S. 502, 521
(1993), rather than a categorical exception to the familiar remedy
of reinstatement is well within its broad discretion.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE KENNEDY, concurring.
I join the opinion of the Court and agree as well with the
concerns expressed by JUSTICE SCALIA. Our law must not become so
caught up in procedural niceties that it fails to sort out simple
instances of right from wrong and give some redress for the latter.
At the very least, when we proceed on the assumption that perjury
was committed, the Government ought not to suggest, as it seemed to
do here, that one who violates his testimonial oath is no worse
than the stu-
326
dent who claims the dog ate his homework. See Tr. of Oral
Arg.42.
The Board's opinions show that it can become quite exercised
about trial-related misconduct that obstructs its own processes.
See
Lear-Siegler Management Service Corp., 306 N. L. R. B.
393, 394 (1992) (tolling the backpay award of an employee who
threatened a witness, because such manipulation undermined "[t]he
integrity of the Board's judicial process"). The Board seems more
blithe, however, about the potential for dishonesty to disrupt the
workplace. See
Owens Illinois, Inc., 290 N. L. R. B. 1193
(1988) (reinstating and awarding backpay to an employee who lied
under oath, because the employer "failed to meet its burden of
establishing that [the employee] is unfit for further employment").
True, the gravest consequence of lying under oath is the affront to
the law itself. But both employer and employee have reason to
insist upon honesty in the resolution of disputes within the
workplace itself. And this interest, too, is not beyond the Board's
discretion to take into account in fashioning appropriate
relief.
JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, concurring in
the judgment.
It is ordinarily no proper concern of the judge how the
Executive chooses to exercise discretion, so long as it be within
the scope of what the law allows. For that reason, judicial dicta
criticizing unintelligent (but nonetheless lawful) executive action
are almost always inappropriate. The context changes, however, when
the exercise of discretion relates to the integrity of the unitary
adjudicative process that begins in an administrative hearing
before a federal administrative law judge and ends in a judgment of
this or some other federal court. Agency action or inaction that
undermines and dishonors that process undermines and dishonors the
legal system-undermines and dishonors the courts. Judges may
properly protest, no matter how lawful
327
(and hence unreversible) the agency action or inaction may be.
Such a protest is called for in the present case, in which the
Board has displayed-from its initial decision through its defense
of that decision in this Court-an unseemly toleration of perjury in
the course of adjudicative proceedings.
Michael Manso, the employee to whom the Board awarded backpay
and reinstatement, testified in this case before
Administrative Law Judge Walter H. Maloney the week of January 8,
1990. He was placed under oath-presumably standing up, his right
hand raised, to respond to the form of oath set forth in the NLRB
Judges' Manual § 17008 (1984):
"Do you solemnly swear that the testimony which you will give in
this proceeding will be the truth, the whole truth, and nothing but
the truth, so help you God?"
He then proceeded to lie to the administrative tribunal, as he
had earlier lied to his employer, concerning the reason he reported
an hour late for work on August 17, 1989. He said that his car had
broken down; that he called his wife, who came in her pajamas to
pick him up; that he drove the rest of the way to work, with his
wife, and was stopped for speeding along the way. The employer
produced the officer that stopped him, who testified with assurance
that Manso was all alone; that Manso mentioned no car trouble as an
excuse for his speeding, but simply that he was late for work; and
that the officer himself observed no car trouble. Hearsay evidence
admitted (without objection) at the hearing showed that an ABF
official, after Manso told his breakdown story on August 17, drove
out to the portion of the highway where Manso said he had left the
disabled vehicle, and found it not to be there. Administrative Law
Judge Maloney found that "Manso was lying to the Respondent when he
reported that his car had overheated and that he was late for work
because of car trouble" -which meant, of course that he was also
lying under oath when he repeated that story.
ABF Freight
System, Inc., 304 N. L. R. B. 585, 600 (1991). The ALJ did
328
not punish the false testimony, but his finding that the
dismissal on August 17 was for cause had something of that effect,
depriving Manso of reinstatement.
The Board itself accepted the ALJ's finding that the
carbreakdown story was a lie, but since it found that the
real reason for the August 17 dismissal was neither Manso's
lateness nor his dishonesty, but rather retaliation for his filing
of an earlier unfair-labor-practice complaint, it ordered Manso's
reinstatement. In stark contrast to today's opinion for the Court,
the Board's opinion did not carefully weigh the pros and cons of
using the Board's discretion in the conferral of relief to protect
the integrity of its proceedings. It weighed those pros and cons
not at all. Indeed, it
mentioned the apparent perjury not
at all, as though that is just part of the accepted background
of Board proceedings, in no way worthy of note. That insouciance
persisted even through the filing of the Board's brief in this
Court, which makes the astounding statement that, in light of his
"history of mistreatment," Manso's lying under oath, "though
unjustifiable, is understandable." Brief for Respondent 22, n. 15.
(In that context, of course, the plain meaning of "to understand"
is "[t]o know and be tolerant or sympathetic toward." American
Heritage Dictionary 1948 (3d ed. 1992).)
Well, I am not understanding of lying under oath, whatever the
motivation for it, and I do not believe that any law enforcement
agency of the United States ought to be. Title 18 U. S. C. § 1621
provides:
"Whoever-
" ... having taken an oath before a competent tribunal, officer,
or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify ...
truly, ... willfully and contrary to such oath states ... any
material matter which he does not believe to be true ...
329
"is guilty of perjury and shall ... be fined not more than
$2,000 or imprisoned not more than five years, or both .... "
United States Attorneys doubtless cannot prosecute perjury
indictments for all the lies told in the Nation's federal
proceedings-not even, perhaps, for all the lies so cleanly nailed
as was the one here. Not only, however, did the Board not refer the
matter for prosecution, it did not impose, indeed did not even
explicitly consider imposing, another sanction available to it (and
not generally available to federal judges): denying discretionary
relief because of the intentional subversion of the Board's
processes.
While the Court is correct that we have no power to compel the
Board to apply such a sanction, nor even, perhaps, to require that
the Board's opinion explicitly consider it, neither was the Board's
action in this case as eminently reasonable as the Court makes it
out to be. Nor does it deserve the characterization of being
"well within [the Board's] broad discretion,"
ante,
at 325 (emphasis added). In my estimation, it is at the very
precipice of the tolerable, particularly as concerns the Board's
failure even to consider and discuss the desirability of limiting
its discretionary relief.
Denying reinstatement would not, as the Court contends, involve
the "unfairness of sanctioning Manso while indirectly rewarding
[ABF] witnesses' lack of candor."
Ibid. First of all, no
"indirect reward" comes to ABF, which receives nothing from the
Board. There is a world of difference between the mere inaction of
failing to punish ABF for lying (which is the "indirect reward"
that the Court fears) and the beneficence of conferring a
nonmandated award upon Manso
despite his lying (which is the
much greater evil that the Court embraces). The principle that a
perjurer should not be rewarded with a judgment-even a judgment
otherwise deserved-where there is discretion to deny it, has a long
and sensible tradition in the common law. The "unclean
330
hands" doctrine "closes the door of a court of equity to one
tainted with inequitableness or bad faith relative to the matter in
which he seeks relief, however improper may have been the behavior
of the defendant."
Precision Instrument Mfg. Co. v.
Automotive Maintenance Machinery Co., 324 U. S. 806, 814
(1945) (denying relief because of perjury). See H. McClintock,
Principles of Equity § 26, p. 63, and n. 75 (2d ed. 1948). And the
Board itself has sometimes applied this sanction in the past. See,
e. g., D. v:
Copying &
Printing, Inc., 240
N. L. R. B. 1276 (1979);
O'Donnell's Sea Grill, 55 N. L. R.
B. 828 (1944). In any case, there is no realistic comparison
between the ABF managers' disbelieved testimony concerning
motivations for firing and Manso's crystalclear lie that he was
where he was not. The latter is the stuff of perjury prosecutions;
the former is not.
The Court is correct that an absolute rule requiring the denial
of discretionary relief for perjury "might force the Board to
divert its attention from its primary mission and devote
unnecessary time and energy to resolving collateral disputes about
credibility."
Ante, at 325. But intelligent and
conscientious application of the Board's supposed rule
permitting denial of discretionary relief for perjury would
not have that effect-and such application should probably have
occurred, and should surely have been considered, in an obvious
case such as this. Nor am I as impressed as the Court is by the
Board's assertion that "ordering effective relief in a case of this
character promotes a vital public interest."
Ibid. Assuredly
it does, but
plenty of effective relief was ordered here
without adding Manso's reinstatement, including (1) the entry of a
cease-and-desist order subjecting ABF to severe sanctions if it
commits similar unfair labor practices in the future, (2) the award
of backpay to Manso for the period from his unlawful discharge on
June 19, 1989, to the date of his subsequent reinstatement, and (3)
the posting of a notice on ABF's premises, reciting its commitments
under the cease-and-desist order, and its commitment to give
331
Manso backpay. All of this would have made it clear enough to
ABF and to ABF's employees that violating the National Labor
Relations Act does not pay. Had the posted notice also included,
instead of ABF's commitment to reinstate Manso (which is what the
Board ordered), a statement to the effect that Manso's
reinstatement
would have been ordered but for his false
testimony, then it
also would have been made clear to ABF
and to ABF's employees that perjury does not pay.
I would have felt no need to write separately if I thought that,
as the Court puts it, the Board has simply decided "to rely on
'other civil and criminal remedies' for false testimony."
Ibid. My impression, however, from the Board's opinion and
from its presentation to this Court, is that it is really not very
much concerned about false testimony. I concur in the judgment of
the Court that the NLRB did nothing against the law, and regret
that it missed an opportunity to do something for the law.
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