Cite as: 510 U. S. 317 (1994)
Scalia, J., concurring in judgment
(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
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