National Labor Relations Board v. Lewis

• Decision Date: 29 October 1957
• Docket Number: No. 15307.,15307.
• Citation: 249 F.2d 832
• Parties: NATIONAL LABOR RELATIONS BOARD, Appellant, v. D. B. LEWIS, President, Lewis Food Company; Henry Mello; Maynard (Mac) Folden; Grammont Banville; Joe Loera; Anastacio Holquin; William L. (Roy) Miller; Otto Schubert; Walter O. Lisser; and Walter Schmidt, Secretary-Treasurer of Association of Independent Workers of America, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

249 F.2d 832 (1957)

NATIONAL LABOR RELATIONS BOARD, Appellant, v. D. B. LEWIS, President, Lewis Food Company; Henry Mello; Maynard (Mac) Folden; Grammont Banville; Joe Loera; Anastacio Holquin; William L. (Roy) Miller; Otto Schubert; Walter O. Lisser; and Walter Schmidt, Secretary-Treasurer of Association of Independent Workers of America, Appellees.

No. 15307.

United States Court of Appeals Ninth Circuit.

October 29, 1957.

Kenneth C. McGuiness, General Counsel, Stephen Leonard, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, N.L.R.B., Washington, D. C., Owsley Vose, Melvin Pollack, Attorneys, N.L.R.B., Washington, D. C., for petitioner.

Hill, Farrer & Burrill, Ray L. Johnson, Jr., William H. Wilson, G. A. Sheppard, Alva C. Baird, Los Angeles, Cal., for respondents.

Before FEE, BARNES and HAMLEY, Circuit Judges.

BARNES, Circuit Judge.

The National Labor Relations Board appeals from an order of the District Court denying enforcement to certain subpoenas duces tecum and ad testificandum purportedly issued by the Board and directed to the appellees.

On April 30, 1956, the General Counsel, by the Regional Director in Los Angeles, California, filed a consolidated complaint against the Lewis Food Company and the Association of Independent Workers of America, alleging that the company and the union were engaging in various unfair labor practices in violation of the Labor-Management Relations Act of 1947 (hereafter "Act"). Pursuant to the written request of counsel for the General Counsel, the Regional Director, acting under Section 11(1) of the Act, 29 U.S.C.A. § 161(1); issued the subpoenas in question under the seal of the Board and the facsimile signature of Abe Murdock, a member of the Board. Appellees filed petitions to revoke the subpoenas with the Regional Director principally on the grounds that (1) the Board lacked authority to delegate its power to issue subpoenas to the Regional Director, and (2) counsel representing the General Counsel is not a "party" to an unfair labor practice proceeding and therefore is not entitled to the issuance of subpoenas. The Regional Director referred the petitions to the trial examiner. The trial examiner refused to quash the subpoenas. Appellees remained adamant in their determination not to comply with the subpoenas. The Board then filed with the court below an application for an order requiring appellees to obey the subpoenas. The unfair labor practice proceeding was continued pending the disposition of this matter. The appellees resisted enforcement of the subpoenas on the two grounds stated above, and additionally, on the ground that the trial examiner lacked authority to pass 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 to its subordinate, the Regional Director, the power to issue subpoenas? (2) Does the trial examiner have authority to rule on petitions to revoke subpoenas? (3) May a valid subpoena be issued at the request of counsel for the General Counsel?

Board counsel conceded on oral argument that the Board must prevail on all three issues to gain a reversal. Each issue turns on the meaning of Section 11 (1) of the Act.¹ They will be discussed in the order stated above.

I. Delegation of Power to Issue Subpoenas

Section 11(1) provides that the "Board, or any member thereof" may issue subpoenas. Appellees' argument, in essence, is that the section means what it says, the Congress knew how to make the power delegable if it wanted to do so as evidenced by other portions of Section 11(1) authorizing the Board or "its duly authorized agents or agencies" to perform certain functions, and that Congress' failure to make the power expressly delegable manifests an intention that it be non-delegable.

This question and the next one relating to the delegation of power to pass on petitions to revoke subpoenas pose similar problems of statutory construction. The basic problem, and a frequently recurring one in modern times, is to ascertain whether when a particular power is granted to a person or body of persons, the power is delegable to subordinates, and if delegable at all, to which subordinates it is delegable.

In each instance in the case at bar Section 11(1) explicitly empowers only the Board, or a member thereof, to perform certain functions. Nowhere does the Act make the particular powers delegable, but neither does it anywhere expressly prohibit delegation. Does this silence indicate prohibition or permission?

There is no short and automatic answer to this difficult and complex but very practical question. There is not even the frequently found presumption with which to tilt the scales. The determination of the question calls for a studied consideration of the Act, its legislative history, and its legislative objectives.

We start the journey, as with all statutes, by examining the literal wording of the section. The language of a statute is the best and most reliable index of its meaning. Where the language is clear and unequivocal it is determinative unless the literal language does not comport with the intent and objectives of the statute viewed as a whole. However, where as in the instant cause, the statute is completely silent on the point in question, it is necessary to analyze that statute as a whole, and its history and purposes, to ascertain what interpretation must be ascribed to the silence.

In regard to the delegability of the Board's subpoena issuing power to a Regional Director, no court which has considered this question has construed Section 11(1) of the Act in the narrow and restricted manner appellees urge upon us. On the contrary, all courts which have passed on the merits of this issue have interpreted the statute as empowering the Board to delegate the subpoena power. The leading decision on this precise point is National Labor Relations Board v. John S. Barnes Corp., 7 Cir., 178 F.2d 156, where the Court held that a subpoena issued by a Regional Director under the facsimile signature of a Board member is valid. That decision has had the subsequent approval of the Fifth Circuit. Edwards v. National Labor Relations Board, 5 Cir., 189 F.2d 970; Jackson Packing Co. v. National Labor Relations Board, 5 Cir., 204 F.2d 842. Even the Pesante decision, supra, held in favor of the Board on this question. The opinion in the Barnes case is sound and well-reasoned. It is fully consonant with the policies and purposes of the Act. Appellees put forth no reasons which persuade us that these cases are erroneous and should be disapproved. Therefore, we hold that subpoenas may validly be issued by a Regional Director under the facsimile signature of a Board member.

There is nothing in the Supreme Court opinions in Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, and Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375, which compels a different result or casts doubt upon the validity of our resolution of this issue. Those cases are not controlling. The Cudahy decision merely held that the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. did not grant the Administrator the power to delegate his subpoena power to subordinates, while on the other hand, the Mohawk case held that the Administrator of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. was authorized to delegate the authority to issue subpoenas. Each of those cases involved the construction of a statute different from that which concerns us. Accordingly, those decisions, one upholding the delegability of this power and the other denying it, do not govern the instant case.

II. Delegation of Power to Revoke Subpoenas

Section 11(1) states in pertinent part that "The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpoenas" and that the person to whom the subpoena is directed "may petition the Board to revoke, and the Board shall revoke, such subpoena" if the evidence sought is not relevant or is not described with sufficient particularity.

The trial examiner, not the Board, denied appellees' petitions to revoke the subpoenas. It was his action which was reviewed by the court below. If he lacked authority to pass on these petitions, then there has been no review of this matter by the proper administrative body. If such be the posture of these proceedings, it was premature to bring these proceedings before the court below before the proper and duly constituted body had passed on the petitions. Thus, if appellees' position be sustained on this point, the order denying enforcement must be affirmed.

The court below relied solely on the Pesante decision. There it was held that only the Board itself is authorized by Section 11(1) to sit on petitions to revoke subpoenas. The Fifth Circuit in National Labor Relations Board v. Duval Jewelry Co., 243 F.2d 427, agreed with the Pesante decision insofar as subpoenas duces tecum are concerned. In respect to subpoenas ad testificandum, the Fifth Circuit held that since Section 11(1) on its face makes no provision as to procedure to test the validity of subpoenas of this type, application for their enforcement cannot be considered premature even if initially reviewed by a trial examiner.²

The Seventh Circuit takes a different view. In National Labor Relations Board v. Gunaca, 7 Cir., 230 F.2d 542, it affirmed, on the opinion below, N.L.R.B. v. Gunaca, D.C., 135 F.Supp. 790, a decision upholding the right of a trial examiner to pass on petitions to revoke subpoenas.³ Both the Court of Appeals and the District Court in the Gunaca case considered the Pesante case, and the considerations therein set forth, and refused to follow. This is also the...