National Labor Relations Bd. v. International Typo. Un.

• Decision Date: 19 March 1948
• Citation: 76 F. Supp. 895
• Parties: NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL TYPOGRAPHICAL UNION et al.
• Court: U.S. District Court — Southern District of New York

76 F. Supp. 895

NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL TYPOGRAPHICAL UNION et al.

District Court, S. D. New York.

March 19, 1948.

Robert N. Denham, General Counsel to National Labor Relations Board, of Washington, D. C. (David P. Findling and A. Norman Somers, both of Washington, D. C., and James V. Altieri, of New York City, of counsel), for applicant.

Van Arkel & Kaiser, of Washington, D. C. (Gerhard P. Van Arkel and Henry Kaiser, both of Washington, D. C., of counsel), for respondents.

MEDINA, District Judge.

This is a proceeding instituted by the National Labor Relations Board, through its General Counsel, under Section 11(2) of the National Labor Relations Act, as amended, 49 Stat. 449, 29 U.S.C.A. § 141 et seq., for the enforcement of two subpenas. By refusal to respond to the subpena ad testificandum and failure to produce the documents specified in the subpena duces tecum the respondent Woodruff Randolph, individually and as President of International Typographical Union, and the Union itself have challenged the power of the trial examiner to rule on their motions to revoke the subpenas.

Respondents' contention is based upon a literal reading of Section 11(1) which provides that "The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas" and upon a petition to revoke a subpena "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." Respondents assume that, unless in Section 11 or some other part of the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947, there is given to the Board some authority to "delegate" to trial examiners the power to determine motions to revoke subpenas, no such power exists. Therein lies the fallacy of respondents' reasoning.

Great care was taken by the Congress so to frame the text of the Labor Management Relations Act of 1947 that it would function pari passu with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., which became effective on September 11, 1946, less than a year before the enactment of the amendments to the National Labor Relations Act. This co-relation was particularly important in the case of the powers of trial examiners because of the separation in the Labor Management Relations Act of 1947 of the prosecutory functions on the one hand and the judicial and quasi-judicial functions on the other. Section 7(b) of the Administrative Procedure Act provides:

"Officers presiding at hearings shall have authority, subject to the published rules of the agency and within its powers, to (1) administer oaths and affirmations, (2) issue subpenas authorized by law, (3) rule upon offers of proof and receive relevant evidence, (4) take or cause depositions to be taken whenever the ends of justice would be served thereby, (5) regulate the course of the hearing, (6) hold conferences for the settlement or simplification of the issues by consent of the parties, (7) dispose of procedural requests or similar matters, (8) make decisions or recommend decisions in conformity with section 8, and (9) take any other action authorized by agency rule consistent with this Act."

In anticipation it would seem of just such a controversy as is now before the Court, the Congress included in Section 12 of the Administrative Procedure Act the following sentence:

"No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly."

There is no contention, nor could there well be, that Section 11 of the National Labor Relations Act as amended in 1947, or that any other provision of the Labor Management Relations Act of 1947 expressly takes from trial examiners the right to issue subpenas and rule upon motions to quash, which are in terms or by necessary implication among the powers of trial examiners, as enumerated in Section 7(b) of the Administrative Procedure Act.

Thus, as the two statutes are to be read together, it seems reasonably clear that the National Labor Relations Board was authorized to formulate rules pursuant to the terms of which trial examiners might issue subpenas and "dispose of procedural requests or similar matters," such as the determination of whether or not, to use the traditional term, subpenas should be quashed. Naturally, the rules thus formulated could touch the issuance and quashing of subpenas only when the Board had been vested by specific legislation with the subpena power. This is the significance of the preliminary phrase in Section 7(b) of the Administrative Procedure Act, "subject to the published rules of the agency and within its powers."

Despite the lengthy debates and the mass of literature, including the Conference Report and others relative to many features of this important legislation (the Labor Management Relations Act of 1947) prior to its ultimate passage and enactment, the attention of the Court has not been directed to any suggestion by anyone that trial examiners should be deprived of the power to pass upon questions affecting subpenas. No reason has been suggested during the argument or in the briefs on this motion why trial examiners should not have powers so salutary and so indispensable to the expeditious conduct of the hearings. Many reasons at once suggest themselves to support the contention that such powers exist; and not the least of these is that, in the absence of such powers, a litigant by the simple expedient of a motion to revoke a subpena might unreasonably delay proceedings until the motion could be disposed of at Washington by the Board or three members thereof convened for the purpose. An accumulation of such motions to revoke subpenas, whether the result of mere chance or of a concerted effort to sabotage the functioning of the National Labor Relations Board under the...