The Supreme Court/The Supreme Court.iso/pc/ascii/1992/92_1550/92_1550.zc1

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SUPREME COURT OF THE UNITED STATES
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No. 92-1550
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ABF FREIGHT SYSTEM, INC., PETITIONER v. NA-
TIONAL LABOR RELATIONS BOARD
on writ of certiorari to the united states court
of appeals for the tenth circuit
[January 24, 1994]

  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 adminis-
trative 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 (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 adjudica-
tive 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.  Adminis-
trative 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.  304 N. L. R.
B. 585, 600 (1991).  The ALJ did 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
car-breakdown 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 retalia-
tion 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 tesify . . . truly, . . .
willfully and contrary to such oath states . . . any
material matter which he does not believe to be true
. . . . . -is guilty of perjury and shall . . . be fined
no 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 prosecu-
tion, 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 8 (empha-
sis 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.-  Ante, at 7.  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 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, 816 (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 compar-
ison between the ABF managers' disbelieved testimony
concerning motivations for firing and Manso's crystal-
clear 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
7-8.  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.-  Ante,
at 7.  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
back-pay to Manso for the period from his unlawful
discharge on June 19, 1989 to the date of his subse-
quent 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
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 commit-
ment to reinstate Manso (which is what the Board
ordered), a statement to the effect that Manso's rein-
statement 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.-  Ante, at 8.  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.