In a proceeding under the National Labor Relations Act by a
union to obtain a representation election among the employees of a
retail store, subpoenas
duces tecum were issued, directed
to respondents, who moved before both the Board and the hearing
officer to revoke them. The Board refused to entertain the motions
on the ground that, under its rules and regulations, they required
an initial ruling by the hearing officer. That officer denied the
motions; the ruling was not appealed; respondents refuse to comply
with the subpoenas; and the Board instituted proceedings in the
District Court to enforce them. The District Court quashed them,
and the Court of Appeals sustained the District Court, on the
ground that the Board alone could rule on motions to revoke
subpoenas
duces tecum in representation proceedings.
Held: though §11(1) of the Act gives a person served
with a subpoena
duces tecum the right to petition the
Board to revoke it, there is no illegality in the Board's
delegation of authority to the hearing officer to make a
preliminary ruling on such a motion, since the Board reserves to
itself the final decision. Therefore, the judgment is reversed, and
the cause is remanded for further proceedings. Pp.
357 U. S. 2-8.
(a)
Cudahy Packing Co. v. Holland, 315 U.
S. 357, and
Fleming v. Mohawk Wrecking Co.,
331 U. S. 111,
distinguished. P.
357 U. S. 7.
Page 357 U. S. 2
(b) That special permission of the Board is required for an
appeal is not important, since that is merely a method of
ascertaining whether a substantial question is raised concerning
the validity of the subordinate's ruling, and a decision by the
Board that no substantial question is raised satisfies the
requirements of § 11(1). Pp.
357 U. S. 7-8.
234 F.2d 427 reversed and cause remanded.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This controversy grows out of an effort of a union to obtain a
representation election [
Footnote
1] among the employees of respondent, Duval Jewelry Co., a
retail store. The latter moved to dismiss on the ground that its
interstate operations were inadequate to meet the
jurisdictional
Page 357 U. S. 3
tests of the Act. Five subpoenas
duces tecum and one
subpoena
ad testificandum were issued. [
Footnote 2] The persons to whom the subpoenas
were directed moved before both the Board and the hearing officer
to revoke the subpoenas. [
Footnote
3]
Page 357 U. S. 4
The Board refused to entertain the motions to revoke on the
grounds that those motions, under its Rules and Regulations,
[
Footnote 4] require an initial
ruling by the hearing officer. That officer, after granting an
opportunity for a hearing, denied the motions to revoke. That
ruling was not appealed, and respondents refused to comply with the
subpoenas. Thereupon, the Board instituted this proceeding in the
District Court for enforcement of them. [
Footnote 5]
Page 357 U. S. 5
The District Court quashed the subpoenas, holding them
unreasonable and oppressive. It also held they had been invalidly
issued. 141 F. Supp. 860. The Court of Appeals reversed the
District Court on the subpoena
ad testificandum, and no
question concerning it is before us. But it upheld the District
Court as respects the subpoenas
duces tecum on the ground
that the Board alone could rule on motions to revoke subpoenas
duces tecum in representation proceedings. 243 F.2d 427.
The case is here on a writ of certiorari, 355 U.S. 809 which we
granted because of a conflict among the Circuits.
See, e.g.,
Labor Board v. Lewis, 249 F.2d 832, 833, 836-837;
Labor
Board v. Gunaca, 135 F.
Supp. 790,
aff'd, 230 F.2d 542.
There is a degree of delegation of authority in connection with
a motion to revoke a subpoena
duces tecum. The Board's
Rules and Regulations provide that a motion to revoke is first
heard by the regional director or by the hearing officer. [
Footnote 6] But the ruling of that
subordinate official is not final. Machinery is provided in the
Rules for an appeal from that ruling to the Board. [
Footnote 7]
Page 357 U. S. 6
We are advised that, in practice, the aggrieved party asks the
Board for leave to appeal, stating the grounds relied upon. The
Board, in deciding whether to grant the appeal, considers the
merits. If no substantial question has been raised, leave to appeal
is denied. If a substantial question is presented, leave to appeal
is granted. Sometimes, when leave to appeal is granted, action is
forthwith taken on the merits, the ruling of the hearing officer
being reversed or modified. [
Footnote 8] Or where an immediate ruling by the Board on a
motion to revoke is not required, the Board defers its ruling until
the entire case is transferred to it in normal course. [
Footnote 9]
Section 11(1) of the Act, as noted, [
Footnote 10] gives a person served with a subpoena
duces tecum the right to "petition the Board to revoke,"
and that section provides that
Page 357 U. S. 7
"the Board shall revoke . . . such subpoena if, in its opinion,"
the statutory requirements are not satisfied. The limited nature of
the delegated authority distinguishes the case from
Cudahy
Packing Co. v. Holland, 315 U. S. 357, and
Fleming v. Mohawk Wrecking Co., 331 U.
S. 111, where the person endowed with the power to issue
subpoenas delegated the function to another. While there is
delegation here, the ultimate decision on a motion to revoke is
reserved to the Board, not to a subordinate. All that the Board has
delegated is the preliminary ruling on the motion to revoke. It
retains the final decision on the merits. One who is aggrieved by
the ruling of the regional director or hearing officer can get the
Board's ruling. The fact that special permission of the Board is
required for the appeal [
Footnote 11] is not important. Motion for leave to appeal
is the method of showing that a substantial question is raised
concerning the validity of the subordinate's ruling. If the Board
denies leave, it has decided that no substantial question is
presented. We think that no more is required of it under the
statutory system embodied in § 11. No matter how strict or stubborn
the statutory requirement may be, the law does not "preclude
practicable administrative procedure in obtaining the aid of
assistants in the department."
See Morgan v. United
States, 298 U. S. 468,
298 U. S. 481;
Eagles v. Samuels, 329 U. S. 304,
329 U. S.
315-316. It is not of help to say that, on some matters,
the Board has original jurisdiction, on others appellate
jurisdiction. We are dealing with a matter on which the Board has
the final say. As in the case of many other matters coming before
hearing examiners, it merely delegates the right to make a
preliminary ruling. Much of the work of the Board necessarily has
to be done through agents. Section 5 of the Act provides that
"The Board may, by one or more
Page 357 U. S. 8
of its members or by such agents or agencies as it may
designate, prosecute any inquiry necessary to its functions in any
part of the United States."
As we have seen, [
Footnote
12] hearings on these representation cases "may be conducted by
an officer or employee of the regional office." Certainly
preliminary rulings on subpoena questions are as much in the
purview of a hearing officer as his rulings on evidence and the
myriad of questions daily presented to him. He does not, of course,
have the final word. Ultimate decision on the merits of all the
issues coming before him is left to the Board. That is true of
motions to revoke subpoenas
duces tecum as well as other
issues of law and fact. That degree of delegation seems to us
wholly permissible under this statutory system. We need not go
further and consider the legality of the more complete type of
delegation to which most of the argument in the case has been
directed.
The judgment is reversed, and the cause is remanded to the Court
of Appeals for proceedings in conformity with this opinion.
Reversed.
[
Footnote 1]
Section 9(c)(1) of the National Labor Relations Act as amended,
61 Stat. 136, 29 U.S.C. § 159, provides in part:
"Whenever a petition shall have been filed, in accordance with
such regulations as may be prescribed by the Board --"
"
* * * *"
"the Board shall investigate such petition and if it has
reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate hearing
upon due notice. Such hearing may be conducted by an officer or
employee of the regional office, who shall not make any
recommendations with respect thereto. If the Board finds upon the
record of such hearing that such a question of representation
exists, it shall direct an election by secret ballot and shall
certify the results thereof."
[
Footnote 2]
Section 11(1) of the Act provides in part:
"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
examination, and the right to copy any evidence of any person being
investigated or proceeded against that relates to any matter under
investigation or in question. The Board, or any member thereof,
shall upon application of any party to such proceedings, forthwith
issue to such party subpoenas requiring the attendance and
testimony of witnesses or the production of any evidence in such
proceeding or investigation requested in such application."
Section 102.58(c) of the Board's Rules and Regulations, 29 CFR,
1958 Cum. Pocket Supp., § 102.58(c), provides:
"Applications for subpoenas may be filed in writing by any
party, with the regional director if made prior to hearing, or with
the hearing officer if made at the hearing. Applications for
subpoenas may be made ex parte. The regional director or the
hearing officer, as the case may be, shall forthwith grant the
subpoenas requested. Any person subpoenaed, if he does not intend
to comply with the subpoena, shall, within 5 days after the date of
service of the subpoena, petition in writing to revoke the
subpoena. Such petition shall be filed with the regional director,
who may either rule upon it or refer it for ruling to the hearing
officer:
Provided, however, That if the evidence called
for is to be produced at a hearing and the hearing has opened, the
petition to revoke shall be filed with the hearing officer. Notice
of the filing of petitions to revoke shall be promptly given by the
regional director or hearing officer, as the case may be, to the
party at whose request the subpoena was issued. The regional
director or the hearing officer, as the case may be, shall revoke
the subpoena if, in his opinion, the evidence whose production is
required does not relate to any matter under investigation or in
question in the proceedings or the subpoena does not describe with
sufficient particularity the evidence whose production is required.
The regional director or the hearing officer, as the case may be,
shall make a simple statement of procedural or other grounds for
his ruling. The petition to revoke, any answer filed thereto, and
any ruling thereon shall not become part of the record except upon
the request of the party aggrieved by the ruling. Persons compelled
to submit data or evidence are entitled to retain or, on payment of
lawfully prescribed costs, to procure, copies or transcripts of the
data or evidence submitted by them."
For the counterpart of this regulation in unfair labor practice
cases,
see § 102.31.
The subpoenas in the instant case were issued by the regional
director upon application of the Board's attorney assigned to the
case. These subpoenas contained the seal of the Board and the
facsimile signature of a Board member.
See § 102.31(a) of
the Board's Rules and Regulations.
[
Footnote 3]
Section 11(1) of the Act contains the following provision
respecting the revocation of subpoenas:
"Within five days after the service of a subpoena on any person
requiring the production of any evidence in his possession or under
his control, such person may petition the Board to revoke, and the
Board shall revoke, such subpoena if in its opinion the evidence
whose production is required does not relate to any matter under
investigation, or any matter in question in such proceedings, or if
in its opinion such subpoena does not describe with sufficient
particularity the evidence whose productions is required."
[
Footnote 4]
See § 102.58(c),
supra, note 2
[
Footnote 5]
Section 11(2) of the Act provides:
"In case of contumacy or refusal to obey a subpoena issued to
any person, any district court of the United States or the United
States courts of any Territory or possession (or the District Court
of the United States for the District of Columbia), within the
jurisdiction of which the inquiry is carried on or within the
jurisdiction of which said person guilty of contumacy or refusal to
obey is found or resides or transacts business, upon application by
the Board, shall have jurisdiction to issue to such person an order
requiring such person to appear before the Board, its member,
agent, or agency, there to produce evidence if so ordered or there
to give testimony touching the matter under investigation or in
question, and any failure to obey such order of the court may be
punished by said court as a contempt thereof."
[
Footnote 6]
See § 102.58(c),
supra, note 2
[
Footnote 7]
Section 102.57(c) provides:
"All motions, rulings, and orders shall become a part of the
record, except that rulings on motions to revoke subpoenas shall
become a part of the record only upon the request of the party
aggrieved, as provided in § 102.58(c). Unless expressly authorized
by the rules and regulations in this part, rulings by the regional
director and by the hearing officer shall not be appealed directly
to the Board
except by special permission of the Board,
but shall be considered by the Board when it reviews the entire
record.
Requests to the Board for special permission to
appeal from such rulings of the regional director or the
hearing officer shall be filed promptly in writing, and shall
briefly state the grounds relied on. The moving party shall
immediately serve a copy thereof on each other party."
(Italics added.)
The foregoing regulation applies in representation proceedings.
For its counterpart in unfair labor practice cases,
see §
102.26.
[
Footnote 8]
The Board has submitted the following statistics:
"An analysis of the Board's records for the three-year period
May 1, 1955, through April 30, 1958, reveals that there were
thirteen requests for permission to appeal specially from rulings
by hearing officers and trial examiners on petitions to revoke
subpoenas; that five of these requests were granted by the Board;
and that, on four of these appeals, the hearing officer or trial
examiner was reversed and the subpoenas revoked, and that, on one
appeal, the hearing officer or trial examiner was sustained."
[
Footnote 9]
See note 2
supra. In
Hertner Electric Co., 115 N.L.R.B. 820,
821-822;
Jamestown Sterling Corp., 106 N.L.R.B. 466, 469;
International Furniture Co., 106 N.L.R.B. 127, 128, n. 2;
Bell Aircraft Corp., 98 N.L.R.B. 1277, 1282, n. 4;
Burnup & Sims, Inc., 95 N.L.R.B. 1130, n. 1;
Morrison Turning Co., 83 N.L.R.B. 687, 688, the Board
decided the cases on the merits and also reviewed the decisions of
the hearing officer or trial examiner to either revoke or refuse to
revoke a subpoena.
[
Footnote 10]
See note 3
supra.
[
Footnote 11]
See note 7
supra.
[
Footnote 12]
See § 9(c)(1),
supra, note 1
MR. JUSTICE WHITTAKER, concurring.
I concur in the Court's decision, but desire briefly to state my
reasons.
Although, in a strict legal sense, the Board has not delegated
its duty under § 11(1) to rule upon motions to revoke subpoenas
duces tecum, but has, by § 102.58(c) of its Rules and
Regulations, merely given to its regional directors, hearing
officers or examiners the task of making preliminary or interim
rulings on such motions -- recognizing, in § 102.57(c) of its Rules
and Regulations, its statutory duty finally to rule upon such
motions either upon an immediate, though discretionary,
interlocutory appeal or upon review of the completed record in
the
Page 357 U. S. 9
course of its decision of the whole proceeding -- yet, as a
practical matter, neither such discretionary appeal nor review of
the completed record affords any certainty of the protection
specified by Congress, in § 11(1), to be given by the Board against
an improper or oppressive subpoena
duces tecum. For,
notwithstanding its duty under § 11(1), the Board, under §
102.57(c) of its Rules and Regulations, may refuse to allow such
interlocutory appeal and, hence, refuse to rule upon the motion to
revoke in advance of the time fixed by such subpoena for
compliance. It is obvious that, after the illegal or oppressive
subpoena has been enforced, the Board on its review of the
completed record can no more relieve the consummated oppression
than it can unring a bell. But, as the Court's opinion points out,
Congress has provided, in § 11(2), that the Board's subpoenas may
be enforced only by a United States District Court, and thus an
effective means exists to revoke an illegal or oppressive subpoena
duces tecum before the damage has been done. For this
practical reason, I accept the legalisms of the Board's
nondelegation argument, and concur in the decision of the
Court.