National Labor Relations Board v. Pesante

Decision Date17 February 1954
Docket NumberNo. 16030.,16030.
Citation119 F. Supp. 444
CourtU.S. District Court — Southern District of California
PartiesNATIONAL LABOR RELATIONS BOARD v. PESANTE et al.

Geo. J. Bott, General Counsel, David P. Findling, Associate General Counsel, Washington, D. C., Charles K. Hackler, Chief Law Officer, Geo. H. O'Brien & Ernest L. Heimann, Attorneys, National Labor Relations Board, Los Angeles, Cal., for N. L. R. B.

Hill, Farrer & Burrill, Los Angeles, Cal., Carl M. Gould, J. Rex Dibble, Los Angeles, Cal., for respondents.

HALL, District Judge.

The National Labor Relations Board seeks an order requiring obedience to 30 subpoenas issued in connection with a "representation proceeding" before it under Section 9(a, c) of the Taft-Hartley Act, 29 U.S.C.A. § 159.

On January 27, 1954, I signed an order for judgment for the plaintiff overruling the objections of the defendants. The basis of the order was that the petition to the Board to revoke the subpoena had not been filed within the five days required by Section 11 of the Taft-Hartley Act, 29 U.S.C.A. § 161. On motion to vacate, attention was directed to provisions of the regulations prescribed by the Board, 29 Code of Federal Regulations § 102.1 et seq., which permit an additional 3 days where service is made by mail, as the subpoenas were in this instance, and omits the counting of the Sundays and holidays between the first and last day. The subpoenas were deposited in the mail on September 25, 1953. By the correct calculations made under 29 C.F.R. § 102.81 and § 102.83, the time to have filed the petition to revoke the subpoenas would have expired on October 8, 1953. The petition was in fact filed on October 6, 1953. Consequently the petition to revoke the subpoenas was filed within the time required by the statute and my previous ruling was in error. The Order of January 27, 1954 is, therefore, vacated.

On June 18, 1953, a charge was filed against McMahan Furniture Co., 317 American Avenue, Long Beach, California, in a case given No. 21-CA-1719, alleging certain "unfair labor practices" under Section 10 of the Taft-Hartley Act, 29 U.S.C.A. § 160. On August 24, 1953, this charge was withdrawn. The subpoenas involved in the instant proceeding were not issued in connection with that charge, but it is mentioned in view of the fact that voluntary disclosures were sought while it was still pending.

In the meanwhile, on July 22, 1953, a petition for a "representation" proceeding under Section 9(c) (A) was filed by the President of the Long Beach Local (692) of the Teamsters' Union against three McMahan stores only, viz.: "McMahan Furniture Company, 317 American Avenue, Long Beach, 1895 E. Anaheim, Long Beach, 909 Avalon Blvd., Wilmington." Nothing is said in either the petition or the notice of hearing which was dated September 23, 1953 and set for hearing on October 15, 1953 at 111 West Seventh St., Los Angeles, about any of the other 26 different stores located in the 24 other cities covered by the subpoenas now sought to be enforced.

One subpoena is directed to an individual, viz., Pesante, and the others to 29 different retail organizations using the name "McMahan" in connection with furniture and appliance businesses (whether individuals doing business under fictitious name, or partnerships or corporations, does not appear). Twenty-eight of them are located in Southern California and one in Phoenix, Arizona. The 29 stores are located in 26 different cities, Phoenix, Arizona, and the following cities located in Southern California, viz., Santa Monica, Long Beach, Wilmington, Bakersfield, Taft, Delano, Wasco, Eagle Rock, Inglewood, Huntington Park, Pasadena, Burbank, Van Nuys, San Fernando, Santa Paula, Glendale, Santa Barbara, San Luis Obispo, Ventura, Santa Maria, Oxnard, Monrobia, El Monte, Bellflower and North Hollywood.

No proceedings are now, or at any time herein involved have been pending against any of such organizations and none of them are "parties" under 29 C.F.R. § 102.8 to the above proceeding, except the two stores in Long Beach and the one store in Wilmington. Pesante, the individual subpoenaed, is likewise not such a "party."

The subpoenas are signed by rubber stamp, one having the name Ivar H. Peterson, a member of the National Labor Relations Board, and all of the others, Abe Murdock, a member of the National Labor Relations Board, thereon. They are all dated Washington, D. C., and recite "In testimony whereof, the seal of the National Labor Relations Board is affixed hereto, and the undersigned, a member of said National Labor Relations Board, has hereunto set his hand at Washington, D. C., this 25th day of September 1953" appearing immediately above the rubber stamped name of the Board member.

The subpoenas have no imprint seal but have printed on the paper a reproduction of a seal of the National Labor Relations Board.

It is conceded that neither Mr. Peterson nor Mr. Murdock signed the subpoenas; that no member of the Board "set his hand" to the subpoenas at Washington, D. C., on September 25, 1953, but a batch of rubber stamped blank subpoenas were previously furnished to the Regional Director's Office and they were filled in by Ernest Heimann, one of counsel for Regional Director, 21st Region, National Labor Relations Board, without any personal authorization from the National Labor Relations Board or any member thereof: and that Heimann requested authority of the Regional Director to do so. All of them are subpoenas duces tecum, except the one to the individual Pesante and require them to produce papers, documents, etc., described as follows:

"Books, records, correspondence and documents showing:
"1. Names and addresses of owners, partners, officers, directors and stockholders, with interest of each, of the McMahan store (giving location);
"2. Area and exclusive selling agreements, franchises, and licenses, under which the McMahan store (giving location) sells at wholesale or retail;
"3. The over-all purchases and sales in amount and value for the last calendar year of the McMahan store (giving location);
"4. The sales, in amount and value, made by the McMahan store (giving location) to points outside the State of California during the last calendar year;
"5. The names and addresses of the supply and wholesale firms and manufacturers from which the McMahan store (giving location) purchased or otherwise acquired goods, articles, materials or equipment, either for its own use or for sale or resale, during the last calendar year, and the value of the goods, articles, materials or equipment acquired from each firm or manufacturer;
"6. The original source of goods, articles, materials and equipment purchased or otherwise acquired by the McMahan store (giving location), either for its own use or for sale or resale, during the last calendar year;
"7. Exchanges, transfers and loans of personnel between the McMahan store (giving location) and any other McMahan store, during the last calendar year;
"8. Exchanges, transfers, loans or purchases of goods, articles, materials and equipment between the McMahan store (giving location) and any other McMahan store, during the last calendar year, and the value thereof;
"9. Agreements or contracts of any kind between the McMahan store (giving location) or the persons, partnership, or corporation owning it, and any other McMahan store or persons, partnerships or corporations owning any other McMahan store, concluded or in effect between January 1, 1952, and July 16, 1953;
"10. Loans or advances of money, capital or credit from the McMahan store (giving location) or the persons, partnership, or corporation owning it, to any other McMahan store or to persons, partnerships or corporations owning any other McMahan store, or vice versa, during the last calendar year, and the value thereof. (On subpena to Phoenix and 317 American Ave., Long Beach, only:)
"11. The business relationship between McMahan's of Long Beach and McMahan's Furniture Co. in Phoenix, Arizona, and the family relationship between any owners, partners, officers, directors or stockholders of these two companies."

except one, which requires the following:

"1. Names and addresses of owners, partners, officers, directors and stockholders, of each McMahan store in the Santa Monica Division, of McMahan Furniture Stores, with interest of each;
"2. Area and exclusive selling agreements, franchises and licenses under which the Santa Monica Division of McMahan Furniture Stores, and each or any store in the Santa Monica Division of McMahan Furniture Stores, sells at wholesale or retail;
"3. The overall purchases and sales in amount and value for the last calendar year of the Santa Monica Division of McMahan Furniture Stores and of each store in the Santa Monica Division of McMahan Furniture Stores;
"4. The sales, in amount and value, made by the Santa Monica Division of McMahan Furniture Stores, and each and any store in the Santa Monica Division of McMahan Furniture Stores, to points outside the State of California during the last calendar year;
"5. The names and addresses of the supply and wholesale firms and manufacturers from which the Santa Monica Division of McMahan Furniture Stores, and each and any store in the Santa Monica Division of McMahan Furniture Stores, purchased or otherwise acquired goods, articles, materials or equipment, either for its own use or for sale or resale, during the last calendar year; and the value of the goods, etc., acquired from each firm or manufacturer;
"6. The original source of goods, articles, materials, and equipment, purchased or otherwise acquired by the Santa Monica Division of McMahan Furniture Stores, and by each and any store in the Santa Monica Division of McMahan Furniture Stores, either for its own use or for sale or resale, during the last calendar year."

The Court will take judicial notice of the fact that Phoenix is approximately 400 miles from Los Angeles and that the various other 25 cities...

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7 cases
  • Nat'l Labor Relations Bd. v. Fresh & Easy Neighborhood Mkt., Inc.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 13, 2015
    ...E.E.O.C. v. Lutheran Soc. Servs., 186 F.3d 959, 965 (D.C.Cir.1999) (internal quotation omitted); see also N.L.R.B. v. Pesante, 119 F.Supp. 444, 456 (S.D.Cal.1954) (“The power of the Board to hear petitions to revoke was placed in the board and the board only.”). Excuse from the exhaustion r......
  • Lewis v. National Labor Relations Board
    • United States
    • U.S. Supreme Court
    • June 9, 1958
    ...in the District Court for their enforcement. The District Court denied enforcement on the authority of National Labor Relations Board v. Pesante, D.C., 119 F.Supp. 444. The Court of Appeals reversed. 9 Cir., 249 F.2d 832. The case is here on a writ of certiorari. 355 U.S. 929, 78 S.Ct. 413,......
  • Nat'l Labor Relations Bd. v. Fresh & Easy Neighborhood Mkt., Inc., 12-55828
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 13, 2015
    ...E.E.O.C. v. Lutheran Soc. Servs., 186 F.3d 959, 965 (D.C. Cir. 1999) (internal quotation omitted); see also N.L.R.B. v. Pesante, 119 F. Supp. 444, 456 (S.D. Cal. 1954) ("The power of the Board to hear petitions to revoke was placed in the board and the board only."). Excuse from the exhaust......
  • National Labor Relations Board v. Lewis
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 29, 1957
    ...upon their petitions. The court below sustained their position without opinion, citing only the decision in National Labor Relations Board v. Pesante, D.C.S.D.Cal., 119 F.Supp. 444. There are three questions raised by this appeal. (1) Does the Board have authority under the Act to delegate ......
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