National Labor Relations Board v. Northern Trust Co.

• Decision Date: 05 April 1945
• Docket Number: 8652,8667,8685.,No. 8657,8657
• Citation: 148 F.2d 24
• Parties: NATIONAL LABOR RELATIONS BOARD v. NORTHERN TRUST CO. et al. SAME v. AMERICAN NAT. BANK & TRUST CO. OF CHICAGO et al.
• Court: U.S. Court of Appeals — Seventh Circuit

148 F.2d 24 (1945)

NATIONAL LABOR RELATIONS BOARD v. NORTHERN TRUST CO. et al. SAME v. AMERICAN NAT. BANK & TRUST CO. OF CHICAGO et al.

Nos. 8657, 8667, 8652, 8685.

Circuit Court of Appeals, Seventh Circuit.

February 28, 1945.

Rehearing Denied April 5, 1945.

Lewis F. Jacobson, David Silbert, and Sidney C. Nierman, all of Chicago, Ill., for American Nat. Bank & Trust Co. of Chicago.

John E. MacLeish, Leland K. Neeves, and Harold D. Burgess, all of Chicago, Ill., for Northern Trust Co.

Malcolm F. Halliday, Charles F. McErlean, Alvin J. Rockwell, Gen. Counsel, and Thomas B. Sweeney, Atty., National Labor Relations Board, all of Washington, D. C., for National Labor Relations Board.

Before EVANS, SPARKS, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Pursuant to § 11(2) of the National Labor Relations Act, 29 U.S.C.A. § 161(2), the District Court entered orders requiring appellants, The Northern Trust Company, American National Bank and Trust Company, American National Safe Deposit Company, and certain officers of the banks, to obey certain subpoenas duces tecum and ad testificandum. These subpoenas had been issued by the National Labor Relations Board, hereinafter called the Board, under § 11(1) of the Act, 29 U.S.C.A. § 161(1), and were enforced in slightly modified form.

There is no significant difference in the legal questions presented by the two appeals. The facts are very similar; hence a condensed version of the important facts will suffice.¹

The Union, Local 240 of the Protective Service Employees of Chicago, affiliated with the Building Service Employees International Union (A. F. of L.), filed a petition with the Board for investigation and certification of representatives pursuant to § 9(c) of the Act, 29 U.S.C.A. § 159(c). The petition alleged that certain employees of the bank, working as armed guards, constituted an appropriate unit for the purposes of collective bargaining; that the bank had refused to recognize the Union as representative of the employees until certified by the Board as such representative; and that the question concerning representation was a question affecting commerce within the meaning of the Act.

In accordance with its customary practice the Board instituted a preliminary investigation to determine whether the petition should be entertained. During the investigation a Board agent requested the bank to furnish certain information with respect to its operations and the employees in the alleged appropriate unit. The bank refused to supply the information. The Board then issued subpoenas specifying certain books and records and witnesses who were ordered to testify at a hearing held by the Board in Chicago before a trial examiner. This hearing was conducted as part of the Board's investigation under § 9(c) and the bank was represented by counsel at the hearing. The witnesses subpoenaed did not appear nor did the bank produce the documents subpoenaed. Counsel for the bank protested that it was not subject to the Act because no question affecting commerce within the meaning of the Act and the Constitution was involved and that the unit requested by the Union was not appropriate for collective bargaining; counsel stated that it and its officers would not comply with the subpoenas. Nor did the bank submit a statement in lieu of such records, though requested to do so. Thereupon the trial examiner adjourned the hearing pending the filing of an application with the court for an order requiring obedience to the subpoenas.

The District Court issued an order requiring appellants to show cause why the Board's application should not be granted. Appellants filed a joint and several answer raising many of the contentions raised on these appeals. After oral argument and the filing of briefs, the court modified slightly the Board's order and entered the instant orders requiring obedience to the subpoenas. To reverse the orders, these appeals and cross-appeals are prosecuted.

The relevant parts of the statute are set out below.²

The parties to these appeals have variously stated the issues involved. The fundamental issue is, in our view, what tribunal shall make the initial determination that a question affecting commerce has or has not arisen. Appellants argue that upon application to the District Court for enforcement of the subpoenas, that court must necessarily decide that such a question has arisen before entering an order of enforcement. The Board says, and the court held, that such determination must be made in the first instance by the Board.

A condensed paraphrase of the District Court's reasoning is that the Act shows conclusively that Congress intended to empower the Board to have its order compelling obedience to the subpoenas enforced without first showing that the bank is engaged in interstate commerce or that its activities affect commerce; that to hold otherwise would be to put upon the court the burden of investigation that Congress intended should be borne by the administrative body; that the Board would dismiss the Union's petition if it found that no question affecting commerce was involved; and that even if the Board should find that the bank's business was of such a character as to make it subject to the Act, the Board could make no order that could be enforced without action by a court, where the bank's rights will be fully protected.

Appellants contend that by oversight or design the Act treats the scope of the Board's powers under § 9(c) quite differently from its powers under § 10(a), 29 U.S.C.A. § 160(a). They argue that unlike § 10(a) which gives exclusive power to the Board to determine, in the first instance, whether the employer is subject to the Act, § 9(c) contains no equivalent provision.

To evaluate appellants' contention, we first examine the words of the statute. This shows that § 9(c) provides that "Whenever a question affecting commerce arises concerning the representation of employees, the Board may investigate * * *." Section 10(a) states that "The Board is empowered * * * to prevent any person from engaging in any unfair labor practice * * * affecting commerce. This power shall be exclusive, * * *." It is true that the latter says the Board's power is exclusive while the former does not, but this makes no difference because the plain mandate of § 9(c) is that the Board, not the court nor any other body, shall investigate. Moreover, there is adequate opportunity for judicial review of any order which the Board may enter under § 10(a) and likewise any order resulting from the Board's ultimate action after investigation under § 9(c). In both cases, to enforce obedience the Board must apply to a court. Indeed, under § 9(c) the investigation is merely preliminary. Furthermore, and this is very significant, § 10(a) grants the Board power only as to practices which affect interstate commerce, and § 9(c) provides the same basis for Board action, namely, practices (or in the literal words of the statute, question s) affecting commerce. Thus the yardstick for determining whether the Board has jurisdiction under both sections is the existence of interstate commerce. Under § 10(a) it is settled that the Board, not the court, is the proper tribunal to make the initial determination of whether the practices affect such commerce. National Labor Relations Board v. Barrett Co., 7 Cir., 120 F.2d 583; Myers v. Bethelehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 58 S.Ct. 466, 82 L.Ed. 646. Since the yardstick is the same under § 9(c), no good reason appears why the Board should not make the initial determination of the existence of a question affecting interstate commerce in proceeding under that section. Not only consistency of construction of the two parts of the same statute but also numerous other considerations dictate this conclusion. For example, the opposite holding would oust the Board of jurisdiction to determine whether it has jurisdiction and thus violate the will of Congress as expressed in the statute. It would require the Board to come into the District Court and affirmatively prove that a question affecting interstate commerce had arisen before it (the Board) had had the chance to investigate whether such a question actually existed. To our way of thinking, that would be putting the cart before the horse. The Myers and Newport News cases, supra, make it plain that the initial determination of jurisdiction by the Board may not be enjoined, and obviously this prohibition would become meaningless if judicial examination of the same question were permitted in a subpoena enforcement action.

Appellants have made a valiant effort to distinguish Endicott Johnson Corporation v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424, but while they have pointed out certain factual differences, they have failed to demonstrate the inapplicability of the principle therein enunciated.

Because they lack persuasiveness, appellants' other arguments will be disposed of with little discussion. The constitutionality of the Act both substantively and procedurally and, in particular, § 9 thereof, is well settled. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; American Federation of Labor v. National Labor Relations Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251.

We refuse to lay down a blanket ruling, as appellants in effect contend that we should, that as a matter of law no bank can be engaged in interstate commerce. National Labor Relations Board v. Bank of America Nat. Trust & Savings Ass'n, 9 Cir., 130 F.2d 624; American National Bank of St. Paul v. National Labor Relations Board, 8 Cir., 144 F.2d 268; cf. Polish National Alliance v. National Labor Relations Board, 322 U.S....