National Labor Relations Bd. v. John S. Barnes Corp.
| Decision Date | 09 December 1949 |
| Docket Number | No. 9907.,9907. |
| Citation | 178 F.2d 156 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. JOHN S. BARNES CORPORATION et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward J. Fahy, Rockford, Ill., Shultz & Fahy, Rockford, Ill., and William E. Collins, Rockford, Ill., for appellants.
Robert N. Denham, General Counsel, Washington, D. C., David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Bernard Dunau, Attorney, National Labor Relations Board, Washington, D. C., for appellee.
Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges.
This in an appeal from an order of the United States District Court for the Northern District of Illinois, Western Division, requiring obedience to certain subpoenas which ordered the respondent, John S. Barnes Corporation, and Ernest J. Svenson, one of its officers, to appear and testify and to produce certain documents and data before a hearing officer of the National Labor Relations Board at a designated time and place.
The subpoenas in question were issued by the Regional Director of the Thirteenth Region of the National Labor Relations Board.
This appeal is predicated on respondents' contention that the National Labor Relations Act gives the power to issue subpoenas only to the Board or one of the members thereof and that such power is not delegable.
The subpoenas were issued in aid of an investigation by the Board into the question of whether the employees of the respondent corporation desired to be represented in collective bargaining by a labor organization. The parties stipulated that the subpoenas were issued pursuant to the general procedure followed by the National Labor Relations Board; that under this procedure the regional offices are supplied with blank subpoena forms, bearing the seal of the National Labor Relations Board and a signature of a member; that when a written application for a subpoena is filed by a party to a proceeding, the Regional Director inserts the name of the party to be served into one of these blank subpoena forms over the seal of the National Labor Relations Board and over the signature of a member of the National Labor Relations Board; that the party requesting the subpoena is then responsible for the filling-in of the other blanks of the form and for the serving of the subpoena.
The parties stipulated further that in this case the Regional Director, as a party to the proceedings, made application in writing for the issuance of the subpoenas; that the Regional Director approved his own application on behalf of the National Labor Relations Board; and that on January 26, 1949, at the Chicago Regional Office, "the names, dates and other matters were, by or at the direction of said Regional Director, typed into the blank subpoena forms over the signature of John M. Houston, a member of the Board, and over the seal of the National Labor Relations Board."
The respondent contends that since the National Labor Relations Act, as amended, gives no express authority to the Regional Directors of the Board to issue subpoenas, any such authority must depend upon delegation by the National Labor Relations Board; that if the subpoenas issued by the Regional Directors are to be valid, the National Labor Relations Board must have authority to delegate its subpoena powers.
The respondents' first proposition is that the provisions of the National Labor Relations Act, as last amended, 29 U.S.C.A. § 141 et seq., impliedly negative the power of the Board to delegate the authority to issue subpoenas. Section 11(1) of the Act provides as follows:
The respondent points out that Section 11(1) expressly authorizes the Board to delegate to its agents the right to have access to, to examine and to copy any relevant evidence of any person being investigated or proceeded against; that the same section also expressly authorizes the Board to delegate to any agent or agency the power to administer oaths and affirmations, to examine witnesses and to receive evidence; and that the power to issue subpoenas was given only to the "Board, or any member thereof" without any express authorization to delegate this power.
The respondent contends that these express authorizations to the Board to delegate certain of its powers and the failure to expressly authorize the delegation of the subpoena power indicate that Congress did not intend that the Board should have the right to delegate the subpoena power to any agent. If our examination of this question were limited to a consideration of the language contained in Section 11(1) of the Act we would be inclined to agree with this contention of the respondent.
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. We find instances of this where the Board has delegated the porformance of certain functions which the Act has expressly said that the Board shall perform. The Board authorizes subordinates to investigate representation petitions, yet Section 9(c) (1) expressly says that "The Board shall investigate such petitions." Section 9(e) (1) provides that the Board shall take a secret ballot of the employees to determine if the employees desire a union shop, yet the Board never personally takes such secret ballot.
No one doubts the authority of the Board to delegate to subordinates the performance of these functions even though the delegation of such functions is not expressly authorized by the Act. Is there any substantial reason for distinguishing between the delegation of these powers and the delegation of the subpoena power?
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. The nature and scope of the investigation or prosecution will necessarily control the number, type and content of the subpoenas required. In this expressed power to delegate the authority to prosecute we find reason to believe that Congress intended that the Board should also be authorized to delegate the incidental power to issue subpoenas.
Section 6 of the Act also throws light on the question. There the Board is given the power to make, amend and rescind such rules and regulations as may be necessary to carry out the provisions of the Act. Under this broad rule-making power the Board adopted Rule 203.58(c), National Labor Relations Board Rules and Regulations, Series 5, 12 Fed.Reg. 5656, which provides that subpoenas should be issued by the regional director or a hearing officer. We believe that this rule is "necessary to carry out the provisions of the Act." We agree that the Board could not, by its own rule, enlarge its powers beyond the scope intended by Congress, but as said in Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 121, 67 S.C. 1129, 1134, 91 L.Ed. 1375:
The purpose and policy of this Act is described in Section 1(b) as follows: "* * * It is the purpose and policy of this chapter, in order to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce."
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