Opposition Brief — Edwards v. National Labor Relations Board

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CITATIONS

Cases:

Cudahy Packing Company v. Holland, 315 U. S. 357.... .7, 8,9

Evans v. International Typographical Union, 76 F. Supp.

MARES. CAS oe Reon Koaargie criti st ember) Coban tC nected

Fleming v. Mohawk Wrecking and Lumber Co., 331 U. 8.

1 SS SPS Psare Geen ear ne erie MRie ott Mergen yretta Woe ree 8,11

National Labor Relations Board v. John S. Barnes Corp.,

ARE TE | ane gn ae RAW Re gen Par 5, 7, 8, 9, 10-11

National Labor Relations Board v. Gullett Gin Co., 340

eee EON iain Fk Gack iis eee eaters ars ll

National Labor Relations Board v. International Typo-

graphical Union, 76 F. Supp. 895..................

Statutes:

National Labor Relations Act (49 Stat. 455-456, 29 U.S.C.

BN OE ROR DIO bi Ss ok fies wk wR cee oe 6

Labor Management Relations Act, 1947 (61 Stat. 136, 29

gS be oe be Cer ee rn a ees 2

NINND ED eg haa ot hoy WR GaNt sane owe See Toad oe 9,13

RE rsh C0 oui kia cab Sea «te ek ee EEO 8,13

REPS Noh, carey ohne Foe sae 4, 5, 6,10, 11,13

Miscellaneous:

Att’y. Gen. Comm. Ad. Proc., NLRB, S. Doe. No. 10, Part

Dy 3-CU) GONG., AEG OME BONO es ice ce nena. 10

Oe Cm Ti, a ae vn i dnc s cee eceseics 5, 6

Final Report, Atty. Gen. Comm. Ad. Proc., 8. Doe. No. 8,

PEE GS Ue Ss GIs oven vcs cchcesayesreds 10

H. Conf. Rep. No. 510, 80th Cong., 1st Sess., 58........ 5

Rules and Regulations of the National Labor Relations

Board, 13 Fed. Reg. 3091, 6266:

NEE Bo hiv dir kodues Der pacaue ihe cache snes 4

Yuthe Supreme Court of the Wnited States

OctToBER TERM, 1951

No. 332

J. B. Epwarps, SECRETARY-TREASURER RELIANCE

CLay Propucts Company, INDIVIDUALLY, AND

RELIANCE CLay Propucts CoMPANY, PETITIONERS

Uv.

NationaL LAasor Reiations Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (R. 49-50) is re-

ported at 189 F.2d 970. The opinion of the United

States District Court for the Northern District of

Texas, contained in the preamble to its order (R.

38), is unreported.

(1)

2

JURISDICTION

The judgment of the court below was entered on

June 30, 1951 (R. 50). The petition for a writ of

certiorari was filed on September 17, 1951. The

jurisdiction of this Court is invoked under 28

U.S. C. 1254 (1).

QUESTION PRESENTED

Whether the National Labor Relations Board

may assign to its regional directors the ministerial

function of issuing subpoenas.

STATUTE INVOLVED

The pertinent provisions of the Labor Manage-

ment Relations Act, 1947 (61 Stat. 136, 29 U.S. C.,

Supp. IV, 141, et seqg.), are set forth in the Ap-

pendix, infra, pp. 13-14.

STATEMENT

On May 5, 1950, pursuant to Section 10 of the

Act, a complaint was issued alleging that Reliance

Clay Products Company had engaged in unfair

labor practices in violation of Section 8 (a) (1)

and (3) of the Act (R. 11-14). On May 23, 1950, a

hearing upon the complaint was begun before a

trial examiner of the Board, and the hearing was

completed except for the taking of evidence to as-

certain whether the operations of the Company af-

fect commerce (R. 6, 31).

Prior to the hearing the Regional Director for

the Sixteenth Region of the Board granted a sub-

poena duces tecum requiring J. B. Edwards, as

3

secretary-treasurer of the Company, to produce

at the hearing specified data pertaining to the Com-

pany’s commerce (R. 5, 17-19). The subpoena was

granted pursuant to the general procedure fol-

lowed by the Board (R. 20). By this procedure,

the Regional Office is supplied by the Washington

Office of the Board with blank subpoena forms

bearing the seal of the Board and a stamped signa-

ture of a member (R. 20). Upon application for

a subpoena by a party to a proceeding, the Regional

Director, after inserting on the form the name of

the person to be served with the subpoena, delivers

the form to the applicant who is then responsible

for filling in the remainder of the subpoena and

for its service (R. 20). In this case, upon applica-

tion made by counsel for the General Counsel of

the Board, the Regional Director on May 16, 1950,

authorized issuance of the subpoena which was

served on May 18, 1950 (R. 21).

After its service, the Company filed with the

trial examiner a petition to revoke the subpoena,

claiming in substance that the Regional Director

was without authority to issue it and that it was

too broad in scope (R. 21-26). The examiner ruled

that the subpoena was validly issued, but he nar-

rowed the breadth of the data to be produced, and

as so modified he directed compliance with the sub-

poena (R. 26-30).

Upon refusal to obey the subpoena, the Board

filed an application with the United States Dis-

4

trict Court for the Northern District of Texas for

an order requiring obedience to the subpoena (R.

1). The District Court held that the subpoena was

validly issued, and after further narrowing its

scope, it ordered compliance with it (R. 38-40).

Upon appeal, the court below affirmed the District

Court, holding that the ‘‘Court did not err in di-

recting obedience to the subpoena duces tecum

against the contention that it was invalid because,

in the circumstances, its issuance constituted an

unlawful delegation of power by the National La-

bor Relations Board to the Regional Director.

National Labor Relations Board v. John S. Barnes

Corp.,178 F. 2d 156”’ (R. 49-50).

ARGUMENT

Section 11 (1) of the Act (Appendix, pp. 13-14,

infra) provides that ‘‘The Board, or any member

thereof,’’ shall issue a subpoena upon application

of any party to a proceeding under section 10 of

the Act. Section 6 of the Board’s Rules and Regu-

lations (13 Fed. Reg. 3091, 6266), in effect at the

times pertinent to this proceeding, provides in

part that:

Regional Directors; their delegations of au-

thority. Under the general supervision and

direction of the General Counsel the Regional

Directors have the following authority :

* * « - *

(e) To grant applications for subpenas, to

receive and rule upon or refer to the hearing

5

officer or the Board motions to revoke sub-

penas in representation cases; to receive and

refer to the Trial Examiner or the Board mo-

tions to revoke subpenas in complaint cases;

* * *, [Italics in subsection (e) supplied. ]

Thus, by its rules the Board has conferred upon

its regional directors the authority to grant sub-

poenas upon application. Sustained by the court

below, in conformity with the thorough opinion of

the Court of Appeals for the Seventh Circuit in

National Labor Relations Board v. John S. Barnes

Corp., 178 F. 2d 156, the assignment of this function

to regional directors is plainly within the statutory

authority of the Board and presents no substantial

question warranting review.

1. The exercise of the Board’s subpoena power

is divided into two steps. The first step deals with

the grant of the subpoena, and the second step—

not here involved—deals with the revocation of the

subpoena.

‘“‘Upon application of any party’’ to the pro-

ceeding, it is mandatory upon ‘‘the Board, or any

member thereof,’’ to grant subpoenas ‘‘forthwith.”’

The language of Section 11 (1) and its legislative

history make plain that the subpoena must be

granted ‘‘as a matter of course on the request of

any party’’ (H. Conf. Rep. No. 510, 80th Cong.,

Ist Sess., 58; 93 Cong. Rec. 6445). The first step

is therefore purely ministerial.

The second step brings into play the Board’s

discretion. A person who is required to produce

ere. Ks

6

evidence in response to a subpoena may within

five days after its service ‘‘petition the Board to

revoke’’ the subpoena, and the Board is required

to revoke it if the data demanded is not relevant

or adequately described. Again it is clear from

the language of Section 11 (1) and its legislative

history that this ‘‘procedure for obtaining a sub-

pena’”’ does not dispense ‘‘with the requirements

of materiality and relevancy.’? Those questions

are merely deferred for ruling ‘‘on a motion to

quash if the evidence required is not relevant or

not described with sufficient particularity’ (93

Cong. Rec. 6860).

Before the amendment of the Act in 1947, the

Board’s subpoena power was defined by Section

11 (1) in the following terms:

* * * Any member of the Board shall have

power to issue subpenas requiring the attend-

ance and testimony of witnesses and the pro-

duction of any evidence that relates to any

matter under investigation or in question, be-

fore the Board, its member, agent, or agency

conducting the hearing or investigation. [49

Stat. 455-456, 29 U.S. C. 161 (1).]

The primary reason which led Congress to change

the Board’s procedure was to require the grant of

the subpoena without any preliminary inquiry

into the relevance or the scope of the data re-

quested. National Labor Relations Board v. In-

ternational Typographical Union, 76 F. Supp. 895,

897 (S. D. N. Y.).

———

7

Accordingly, it is plain that the grant of the

subpoena is a ministerial act entailing no exercise

of discretion. National Labor Relations Board v.

John S. Barnes Corp., supra, at 160. Since a sub-

poena must be granted forthwith upon request, and

preliminary inquiry into its propriety before issu-

ance is barred, the function performed by a regional

director in granting a subpoena is little more than

the physical act of delivering a document. The

transfer of such a function presents no question

of the propriety of a delegation of authority from

an agency head to a subordinate official. A prob-

lem of delegation exists only where the subordi-

nate official is authorized to perform a discretion-

ary act involving the exercise of independent judg-

ment. Since no act of discretion is embraced in

the grant of a Board subpoena, the Board does no

more than to utilize its regional directors as its

arms in the performance of a ministerial act. The

Act obviously contemplates that the Board may

designate others to perform acts of this character

on its behalf. National Labor Relations Board v.

John S. Barnes Corp., supra.

2. There is no conflict between the decision be-

low and this Court’s decision in Cudahy Packing

Co. v. Holland, 315 U. 8. 357.

a. In Cudahy, where the Administrator under

the Fair Labor Standards Act was held not to be

authorized to delegate his power to issue subpoenas

to subordinates, the act of issuance embraced the

a on Sara tte RO ONY ORR

8

discretionary function of determining the pro-

priety of the subpoena before its grant was ef-

fected. Under the National Labor Relations Act,

however, the act of issuing a subpoena is a minis-

terial function entailing no element of discretion.

There is nothing in Cudahy to suggest that where

the issuance of the subpoena is ministerial, its del-

egation may not be effected. National Labor Rela-

tions Board v. John S. Barnes Corp., supra, at 161.

b. Section 6 of the Act (Appendix, p. 13, infra)

vests the Board with broad rule-making power

authorizing it to adopt ‘‘such rules and regula-

tions as may be necessary to carry out the pro-

visions of this Act.’’? As explained by this Court

in Fleming v. Mohawk Wrecking & Lumber Co.,

331 U.S. 111, 121, in upholding the authority of the

Administrator under the Emergency Price Control

Act to delegate his subpoena power to subordi-

nates, ‘‘Such a rule-making power may itself be

an adequate source of authority to delegate a par-

ticular function, unless by express provision of

the Act or by implication it has been withheld.”’

In Cudahy, however, the Administrator had

neither rule-making power nor adjudicating

power, his subpoena authority being incident only

to a power of investigation. Thus, the administra-

tive scheme under the National Labor Relations

Act is wholly unlike that involved in Cudahy. Na-

tional Labor Relations Board v. John S. Barnes

Corp., supra, at 161-162.

7

9

ec. Section 5 of the Act (Appendix, p. 13, infra)

states that ‘‘The Board may, by one or more of its

members or by such agent or agencies as it may

designate, prosecute any inquiry necessary to its

functions in any part of the United States.”’ (Em-

phasis supplied.) By this provision, authority to

grant subpoenas may be delegated to regional di-

rectors, since to use subpoena power is preemi-

nently to ‘‘prosecute”’ an ‘inquiry necessary to’’

the Board’s ‘‘functions”’ for the exercise of which

the Board ‘‘may designate’’ agents. National La-

bor Relations Board v. John S. Barnes Corp., supra,

at 159; see also Evams v. International T ypographi-

cal Union, 76 F. Supp. 881, 887 (S. D. Ind.). No

comparable provision existed in Cudahy. National

Labor Relations Board v. John S. Barnes Corp.,

supra, at 161-162. And unlike Cudahy, since by

this provision the authority to delegate is specifi-

cally granted as an incident to the prosecution of

inquiries, there does exist a ‘legislative guide for

determining which [functions] may and which

may not be delegated’’ (315 U. S., at 361). See

also, Evans v. International Typographical Un-

ton, 76 F. Supp. 881, 889 (S. D. Ind.).

d. In Cudahy, this Court reserved decision on

whether, as here, the issuance of the subpoena, but

not its signing, may be delegated. Discussing the

practice of several agencies, including the Board,

this Court observed that (315 U.S., at 365, n. 8):

‘Apparently the actual issuance of subpoenas,

a eae ae

10

though not their signing, is delegated to subordi-

nates in some of these agencies. We are not con-

cerned here with the validity of such a practice,

since both the signing and issuance of subpoenas is

delegated by the Administrator.” (Emphasis

supplied.)

This practice of the Board was well known to

Congress, for it had been reported to it by the

Attorney General’s Committee on Administrative

Procedure as early as 1941,’ and it was likewise re-

corded in the Board’s Rules and Regulations which

throughout the administration of the Act, before

and since amendment, openly and consistently au-

thorized the regional directors of the Board to

grant subpoenas.” When Congress by amending

Section 11 (1) of the Act changed the Board’s

subpoena procedure, Congress subjected its ad-

ministration to close scrutiny (supra, pp. 5-6).

At no point did it intimate any criticism of the

Board’s practice of entrusting its regional direc-

tors with the authority to share in the exercise of

subpoena power, and it used no language which

would disallow continuance by the Board of its pre-

existing practice in this regard. ‘‘Failure of the

Congress, under these circumstances, to expressly

forbid the delegation of subpoena power when

1 Atty. Gen. Comm. Ad. Proc., NLRB, S. Doc. No. 10, Part 5,

77th Cong., Ist Sess., 18-19; Final Report, Atty. Gen. Comm.

Ad. Proc., 8. Doc. No. 8, 77th Cong., Ist Sess., 423.

2 Section 6(e), quoted supra at page 4, or a version similar

in effect to it, has appeared in the Board’s Rules since 1939,

when the first rules were adopted.

11

amending Section 11 (1), must be considered as leg-

islative ratification of the Board’s construction and

procedure.’ National Labor Relations Board v.

John S. Barnes Corp., supra, at 161. See also, Na-

tional Labor Relations Board vy. Gullett Gin Co.,

340 U.S. 361, 365-366.

e. Section 11 (1) of the Act requires that sub-

poenas shall be issued ‘‘forthwith’’ upon applica-

tion. If each application for a subpoena were re-

quired to be referred to a member of the Board at

Washington for his personal action, and if ‘‘the

proceedings were being held on the West coast or

at any other far distant point, the expression

‘forthwith’ would lose all significance.”” N ational

Labor Relations Board v. John S. Barnes Corp.,

supra, at 160. Furthermore, to facilitate effectua-

tion of its manifold program, the National Labor

Relations Act ‘‘should be construed so as to give it

the administrative flexibility necessary for prompt

and expeditious action on a multitude of fronts.”’

National Labor Relations Board v. John S. Barnes

Corp., supra, at 162; ef. Fleming v. Mohawk

Wrecking & Lumber Co., 331 U. 8. 111, 122.

a SE STE OES SELENE IR BESTA LMR OSE MRIS SERINE (AG KUEN RTES ST i 1 Siw aR ce ORES

12

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Respectfully submitted,

Purp B. PERLMAN,

Solicitor General.

GerorcE J. Bort,

General Counsel,

Davip P. FINDLING,

Associate General Counsel,

Mozart G. RATNER,

Assistant General Counsel,

BERNARD DUNAU,

Attorney,

National Labor Relations Board.

OcToBER, 1951.

13

APPENDIX

The relevant provisions of the Labor Manage-

ment Relations Act, 1947 (61 Stat. 136, 29 U.S. C.,

Supp. IV, 141 et seq.), are as follows:

* * * * *

Sec. 5. The principal office of the Board

shall be in the District of Columbia, but it may

meet and exercise any or all of its powers at

any other place. The Board may, by one or

more of its members or by such agents or

agencies as it may designate, prosecute any in-

quiry necessary to its functions in any part

of the United States. A member who partici-

pates in such an inquiry shall not be disquali-

fied from subsequently participating in a de-

cision of the Board in the same case.

Sec. 6. The Board shall have authority

from time to time to make, amend, and rescind,

in the manner prescribed by the Administra-

tive Procedure Act, such rules and regulations

as may be necessary to carry out the provisions

of this Act.

* * * * *

‘*INVESTIGATORY POWERS

Sec. 11. For the purpose of all hearings

and investigations, which, in the opinion of

the Board, are necessary and proper for the

exercise of the powers vested in it by section

9 and section 10—

(1) The Board, or its duly authorized

agents or agencies, shall at all reasonable times

have access to, for the purpose of examina-

14

tion, and the right to copy any evidence of any

person being investigated or proceeded

against that relates to any matter under in-

vestigation or in question. The Board, or any

member thereof, shall upon application of any

party to such proceedings, forthwith issue to

such party subpenas requiring the attendance

and testimony of witnesses or the production

of any evidence in such proceeding or investi-

gation requested in such application. Within

five days after the service of a subpena on

any person requiring the production of any

evidence in his possession or under his control,

such person may petition the Board to re-

voke, and the Board shall revoke, such sub-

pena if in its opinion the evidence whose pro-

duction is required does not relate to any mat-

ter under investigation, or any matter in

question in such proceedings, or if in its opin-

ion such subpena does not describe with suffi-

cient particularity the evidence whose produc-

tion is required. Any member of the Board,

or any agent or agency designated by the

Board for such purposes, may administer

oaths and affirmations, examine witnesses, and

receive evidence. Such attendance of wit-

nesses and the production of such evidence

may be required from any place in the United

States or any Territory or possession thereof,

at any designated place of hearing.

* * * * *

bg U. S. GOVERNMENT PRINTING OFFICE: 1981 970097 281