Biazevich v. Becker, Civ. No. 126.
| Decision Date | 31 March 1958 |
| Docket Number | Civ. No. 126. |
| Citation | 161 F. Supp. 261 |
| Parties | Paul BIAZEVICH et al., Plaintiffs, v. Henry W. BECKER et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
Hill, Farrer & Burrill, by Quentin Ogren, Los Angeles, Cal., for plaintiffs.
Daniel J. Harrington, Chief Law Officer, National Labor Relations Board, Los Angeles, Cal., for defendant.
Gilbert, Nissen & Irvin, by Robert W. Gilbert, Los Angeles, Cal., amici curiae.
This cause came on to be heard upon a complaint of Paul Biazevich et al. requesting that defendants Henry W. Becker, Regional Director of the Twenty-First Region of the National Labor Relations Board, George H. O'Brien, a Board attorney, and Karl W. Filter, a Board field examiner, be ordered to produce before defendant Wallace E. Royster, a trial examiner of the Board, before whom a hearing of the National Labor Relations Board in unfair labor practice cases is being held and in which complainants are respondents, certain specified documents pursuant to the terms of certain subpenas duces tecum issued during the hearing by said Royster; that they be restrained from further participation in the unfair labor practice cases until such documents are produced; that defendant Royster be enjoined from closing the hearing in the unfair labor practice cases until said subpenas have been fully complied with; and that Section 102.87 of the Board's Rules and Regulations, as applied in these cases, be declared unconstitutional. Defendants have filed a motion to dismiss the complaint. Upon consideration of the aforesaid complaint, motion to dismiss, memoranda of law and oral argument of counsel, the Court makes the following:
Findings of Fact
1. On November 19, 1957, in the course of the unfair labor practice hearing, counsel for plaintiffs applied to defendant Royster as trial examiner in charge of the hearing for subpenas duces tecum requiring the other defendants to produce a variety of documents allegedly containing statements made by witnesses against plaintiffs to Regional Board officials during their investigation of the cases.
2. Pursuant to Section 11(1) of the National Labor Relations Act, 29 U.S. C.A. § 161 (1), defendant Royster issued the subpenas forthwith and they were served upon the three defendant Regional Board officials.
3. Thereafter, motions to quash the subpenas were filed with defendant Royster on the ground that Section 102.87 of the Board's Rules and Regulations forbade disclosure of the documents called for in the subpenas. In applicable part this section reads as follows:
"No regional director, field examiner, trial examiner, attorney, specially designated agent, general counsel, member of the Board, or other officer or employee of the Board shall produce or present any files, documents, reports, memoranda, or records of the Board or testify in behalf of any party to any cause pending in any court or before the Board, or any other board, commission, or other administrative agency of the United States, or of any State, Territory, or the District of Columbia with respect to any information, facts, or other matter coming to his knowledge in his official capacity or with respect to the contents of any files, documents, reports, memoranda, or records of the Board, whether in answer to a subpena, subpena duces tecum, or otherwise, without the written consent of the Board or the chairman of the Board if the official or document is subject to the supervision or control of the Board; or the general counsel if the official or document is subject to the supervision or control of the general counsel. * * *"
4. Defendant Royster, reading Section 11(1) of the Act and Section 102.31 (b) of the Board's Rules and Regulations as limiting the grounds for revoking subpenas to irrelevancy and lack of specificity, ruled that the privilege ground asserted by the other defendants was not a ground for revocation of the subpenas and denied the motion to quash. Section 11(1) in applicable part states:
"* * * Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required. * *"
Section 102.31, to the extent here applicable, paraphrases Section 11(1) of the Act.
5. Thereupon, the three defendant Regional Board officials took the stand and refused to testify or produce the documents listed in the subpenas on the ground that they were prohibited to do so by Section 102.87 of the Board's Rules and Regulations.
6. Plaintiffs then requested the General Counsel of the Board to initiate subpena enforcement proceedings against the three Regional Board officials pursuant to Section 11(2) of the Act and Section 102.31(d) of the Board's Rules and Regulations. Section 11(2) of the Act provides:
"In case of contumacy or refusal to obey a subpena issued to any person, any district court of the United States or the United States courts of any Territory or possession or the District Court of the United States for the District of Columbia, 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; and any failure to obey such order of the court may be punished by said court as a contempt thereof."
Section 102.31(d) of the Rules provides:
"Upon the failure of any person to comply with a subpena issued upon the request of a private party, the general counsel shall in the name of the Board but on relation of such private party, institute proceedings in the appropriate district court for the enforcement of such subpena, but neither the general counsel nor the Board shall be deemed thereby to have assumed responsibility for the effective prosecution of the same before the court."
7. On January 10, 1958, the three Regional Board officials, on whom the subpenas were served, filed with the Board a request for leave, pursuant to Section 102.26 of the Board's Rules and Regulations, to appeal from the defendant Royster's denial of the motions to quash the subpenas. Section 102.26 in relevant part provides:
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