Goodyear Tire & Rubber Co. v. National Labor R. Board, 8878.

• Decision Date: 15 August 1941
• Docket Number: No. 8878.,8878.
• Citation: 122 F.2d 450
• Parties: GOODYEAR TIRE & RUBBER CO. et al. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Sixth Circuit

122 F.2d 450 (1941)

GOODYEAR TIRE & RUBBER CO. et al. v. NATIONAL LABOR RELATIONS BOARD.

No. 8878.

Circuit Court of Appeals, Sixth Circuit.

August 15, 1941.

Dwight K. Parsons and L. M. Buckingham, both of Akron, Ohio (Buckingham, Doolittle & Thomas, of Akron, Ohio, on the brief; Howard L. Hyde, of Cleveland, Ohio, and Walter E. deBruin, of Akron, Ohio, of counsel), for appellants.

A. Norman Somers, of Washington, D. C. (Robert B. Watts, Malcolm F. Halliday, A. Norman Somers, and David Rein, all of Washington, D. C., on the brief), for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from an order of the District Court granting an application of the National Labor Relations Board for an order directing obedience to certain subpoena duces tecum theretofore issued by the Board pursuant to § 11(1) of the National Labor Relations Act, Title 29, U.S.C., § 151 et seq., 29 U.S.C.A. § 151 et seq.

Two questions are presented: (1) Whether the proceeding instituted in the District Court to compel compliance with the subpoenas of the Board is a suit of a civil nature governed by the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and (2) whether the District Court erred in ordering full compliance with the subpoenas duces tecum without first requiring the Board to show that it had reasonable grounds for believing that the data and records which the appellants had refused to furnish contained evidence tending to prove the charges of unfair labor practice made in the complaint.

The company urges that the proceeding is a civil suit and that the District Court must be reversed for failure to issue process, to grant a hearing, and to make findings of fact and conclusions of law in accordance with such rules. We agree with the District Court that the proceedings plainly are of a summary nature not requiring the issuance of process, hearing, findings of fact, and the elaborate process of a civil suit. We think the procedure to be followed in the District Court is controlled by § 11(2) of the Act, Title 29, U.S.C., § 161(2), 29 U.S.C.A. § 161 (2) which reads:

"In case of contumacy or refusal to obey a subpena issued to any person, 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 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."

It is significant that the statute calls for an "application" rather than a petition, for an "order" rather than for a judgment, and that it details no other procedural steps. Obviously, if the enforcement of valid subpœnas, the issuance of which is a mere incident in a case, were to require all of the formalities of a civil suit, the administrative work of the Board might often be subject to great delay. We think that such was not the intention of the Congress, and that this clearly was indicated by the use of the simple and unambiguous words with which it described this proceeding. Our conclusion is fortified by the Notes of the Advisory Committee as to Rule 45 of the Federal Rules, which state that it "does not apply to the enforcement of subpœnas issued by administrative officers and commissions pursuant to statutory authority. The enforcement of such subpœnas by the district courts is regulated by appropriate statutes."

A similar conclusion has been reached as to this question in numerous cases arising in the District Courts and in one Circuit Court case, Cudahy Packing Co. v. National Labor Relations Board, 10 Cir., 117 F.2d 692. The cases relied upon by appellants as requiring a contrary conclusion were decided before the adoption of the rules and do not construe either the rules or the particular statute. We think they are not controlling here.

A more difficult question is presented with reference to the merits, namely, whether the order should be affirmed in the form in which it was issued, or whether it should be modified to limit the scope of the subpœnas. The complaint before the Board was issued on April 26, 1939, and the various charges cover the period from February 3, 1936, up until that date. It charges the company with unfair labor practices in connection with the alleged formation and encouragement of a company union, the disparagement of the United Rubber Workers of America, Goodyear Local No. 2, affiliated with the C. I. O., and in that connection with the discharge in 1937 of six named employees, with the demotion in 1937 and 1938 of thirteen named employees, with the lay-off from employment and failure to recall to employment or with the failure to recall to employment during 1938 of sixty-eight named employees, and with the failure to recall to employment during 1938 and 1939 of six named employees, and alleges in substance that the company discriminated against these employees because of their membership in or activity on behalf of the union.

The subpœnas served are extremely sweeping. They demand, among other documents agreed to be given, and not here discussed, (1) the continuous service cards and requisition cards of all individuals now working in 158 of some 300 departments of the company's factory; (2) all employment record cards and all compensation records of all employees now working in such 158 departments; (3) the compensation records of all individuals employed in such 158 departments; (4) all employment and compensation records of a list of some 135 individuals; (5) the names of all employees hired in, transferred to or from the 158 departments from January 1, 1937, to the date of service of the subpœnas and the employment record cards of all such employees; (6) a card index of all active and inactive employees showing the name, department and clock-card number. This last item, appellants state, would require the company to give the Board 600,000 names.

The company has offered to give the Board detailed information contained in employment records, compensation cards, and payroll information with reference to all employees in any operation in any of the departments who are charged to have been preferred over the persons alleged in the complaint to have been unfairly treated. Repeated requests were made by the company's attorneys for the names of any individuals who the Board contends have been preferred over any one of the complainants. These requests were not complied with.

The company shows by affidavits, which are in no way...