# Opposition Brief — Edwards v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0869%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1951 - **Citation:** 342 U.S. 870 ## Text g ) ND ia a ci ch alls chute winx hes gh Ra ONS 2 Gh adic a's Cp Lc kee WEE MG we OMENS Ore SR MN ONNNINN 55 back Gack 380 cb 4 pind 8 MaIES ener e Oe eR ETI 6253s. ras 5.4 0 iad cs a Ke aA POR RD arate ONION Sree PEA Are ree Thr lear gs ee ep oc k eivte So Cag cate aac ak ee EE ee ee RN is diy. s SSN a AC ORD ENE ee Rea ae oe ea EE 5 awa, ein do SN Tce ele tk OER RE Ce wonr NNN DE a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0869%3A2. Public record. Not legal advice.