National Labor Relations Board v. Gunaca, 55-C-265.

• Decision Date: 22 November 1955
• Docket Number: No. 55-C-265.,55-C-265.
• Citation: 135 F. Supp. 790
• Parties: NATIONAL LABOR RELATIONS BOARD, on Relation of KOHLER CO., Applicant, v. John GUNACA, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

135 F. Supp. 790

NATIONAL LABOR RELATIONS BOARD, on Relation of KOHLER CO., Applicant, v. John GUNACA, Respondent.

No. 55-C-265.

United States District Court E. D. Wisconsin.

November 22, 1955.

COPYRIGHT MATERIAL OMITTED

Jos. I. Nachman, N. L. R. B., Washington, D. C., for N. L. R. B.

Jerome Powell & Wm. F. Howe, Washington, D. C., and Lyman C. Conger, Kohler, Wis., for Kohler Co.

D. Charles Marston, Detroit, Mich., for Gunaca.

Max Raskin, Milwaukee, Wis., amicus curiae.

GRUBB, District Judge.

This matter is before the Court on an order to show cause by the applicant why an order should not be entered requiring the respondent to obey a certain subpoena ad testificandum issued by the Board and served on the respondent.

The record shows that in connection with a proceedings before a National Labor Relations Board examiner on the question of an unfair labor practice the relator requested and the trial examiner of the Board issued a subpoena to the respondent which was duly served upon him calling upon him to attend a hearing before the trial examiner of the Board at Sheboygan, Wisconsin, on August 18, 1955. At the time of the return of the subpoena respondent appeared by an attorney (he stated he was making a special appearance), and filed a petition to revoke the subpoena. This was heard by the trial examiner who denied the petition to revoke the subpoena. In the proceedings before the examiner, and here, many contentions are urged.

The record discloses that the respondent is a resident of Detroit, Michigan. It further discloses that a warrant for the arrest of the respondent on a charge of a felonious assault was issued in Sheboygan County, Wisconsin; that request was made for the extradition of the respondent from the state of Michigan to answer that charge; that the Governor of Michigan has not granted extradition as of the time of the hearing in this matter, but that respondent did post bond with a state court in Michigan. The terms of this bond are not shown by the record, but it can only be assumed from the record that the bond is conditioned upon his appearance if extradition is granted. The respondent claims that he would be unable to get a fair trial if he were to come to Wisconsin to answer the charges.

The Court will take up the various contentions of the respondent which are as follows:

I.

Respondent contends that the venue in this proceeding is incorrect and that it should have been brought in the District Court in Michigan. Title 29 U.S.C.A. § 161(1) provides that the Board or any member thereof shall, upon application of any party to proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or production of evidence.

"Such attendance of witnesses * * * may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing."

Congress could not have used broader language with reference to the geography. Subsection (2) provides that in case of contumacy or refusal to obey a subpoena

"* * * any district court of the United States * * * 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 * * * 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 the evidence if so ordered * * *."

The plain language of the statute gives to the Board the right to bring this proceedings in either the District Court within the jurisdiction of which the inquiry is being carried on or within which such person is found or resides. The city of Sheboygan is within the jurisdiction of the Eastern District of Wisconsin. Respondent has cited no decision nor has the Court been able to find one holding that the quoted language means other than what it says.

II.

Respondent contends that this Court has no jurisdiction over the person of the defendant. The provisions above quoted also seem on their face to answer that contention. Subsection (5) specifically provides:

"All process of any court to which application may be made under sections 151-166 of this title may be served in the judicial district wherein the defendant or other person required to be served resides or may be found."

That language is not susceptible of any holding that the process of the Court in this proceedings is confined to the Court's district. Again, no decision has been cited, or found by the Court, limiting such language.

"Congress may authorize the civil process of a federal district court to be served upon persons in any other district." Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 683, 55 S.Ct. 595, 609, 79 L.Ed. 1110.

III.

The contention is made that even if process of this Court reached into Michigan, this Court could not punish a Michigan resident for contempt, in other words, could not enforce the process. Title 29 U.S.C.A. § 161(2) above quoted, in addition to giving the Court power to issue an order requiring such person to appear before the Board or its agent, expressly provides:

"* * * any failure to obey such order of the court may be punished by said court as a contempt thereof."

Here again is an express provision in the Act of Congress not susceptible in the Court's opinion to any interpretation other than just what it states. Counsel have cited no decisions to the contrary.

In N. L. R. B. v. Hearst, 9 Cir., 102 F. 2d 658, 662, the court said in answer to a contention that valid service could not be made outside the judicial district fixed by the Board in which the unfair labor practice occurred:

"The contention is based on an alleged lack of geographic reach. * * * the act specifically permits the Board to designate the place of hearing, § 10(b), which implies that service can be made anywhere in the United States. Since `Congress may authorize the civil process of a federal district court to be served upon persons in any other district' * * *, it has power, we think, to authorize service by this act anywhere in the United States."

IV.

Respondent contends that the Board itself must act on the issuance and revocation of a subpoena before the Court can enforce such subpoena. This claim is based upon the position that the Board cannot delegate its powers of issuance and revocation of subpoenas.

This contention presents a close question and one upon which there has been disagreement. Thus, in N. L. R. B. v. International Typographical Union, D.C., 76 F.Supp. 895, 898, when the matter was presented to District Judge Medina, he held that the power could be delegated. He placed great stress upon the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. His decision seems to this Court to be logical and reasonable. He points out that if the Act were to be interpreted otherwise and without reference to Section 7(b) of the Administrative Procedure Act,

"* * * the result might well be a most burdensome and unnecessary deluge of motions to revoke subpoenas and the Board, in many if not most cases, would find it impossible to determine such motions on the merits without procuring lengthy transcripts of proceedings before trial examiners, together with copies of voluminous documents and exhibits. In the absence of clear language to that effect, it is not to be supposed that the Congress intended to involve the National Labor Relations Board in such a morass of procedural detail."

We next find the matter considered by the Seventh Circuit Court of Appeals in N. L. R. B. v. John S. Barnes Corp., 178 F.2d 156, 159. The court there stated, among other things:

"However, if we are to determine the intent of Congress, we must go further than an investigation of the language of the particular section of the Act. We must consider the Act as a whole, its various provisions, its purpose, what Congress expected the National Labor Relations Board to accomplish under the Act, and its legislative history.

"The mere fact that certain sections of this Act authorize the delegation of certain powers by the Board has not been generally construed as depriving the Board of the power to delegate certain other powers, the delegation of which is not expressly authorized.

* * * * * *

"By Section 5 of the Act, the Board was given the power `by one or more of its members or by such agents or agencies as it may designate, (to) prosecute any inquiry necessary to its functions in any part of the United States.' The issuance of subpoenas is a necessary incident to the power to investigate and prosecute."

While it may not have been necessary to the decision of the case, the court thereafter said this with reference to the matter of revocation of subpoenas:

"If we were to adopt the restrictive construction of this section for which the respondents contend, we would necessarily be compelled to also hold that all such petitions must be submitted to the Board and must be acted on by not less than three members of the Board. This would necessarily require sending to the Board sufficient information concerning the matters under investigation to make it possible for the Board to intelligently pass upon such petition.

"If we were to hold that the Board, or one of its members, must personally do every act essential to the execution and issuance of each subpoena in every proceeding being conducted under this Act throughout the United States and its Territories, and that the Board must then, as a Board, pass upon every petition for the revocation of any subpoena, it would be physically impossible for the Board and its members to perform the many other more important duties which they are required to perform to accomplish the purpose of the Act."

Neither of the above decisions has been reversed or overruled so far as the Court has been able to ascertain.

There is one decision holding...