National Labor Relations Board v. Gunaca, 55-C-265.
Decision Date | 22 November 1955 |
Docket Number | No. 55-C-265.,55-C-265. |
Citation | 135 F. Supp. 790 |
Parties | NATIONAL LABOR RELATIONS BOARD, on Relation of KOHLER CO., Applicant, v. John GUNACA, Respondent. |
Court | U.S. District Court — Eastern District of Wisconsin |
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Jos. I. Nachman, N. L. R. B., Washington, D. C., for N. L. R. B.
Jerome Powell & Wm. F. Howe, Washington, D. C., and Lyman C. Conger, Kohler, Wis., for Kohler Co.
D. Charles Marston, Detroit, Mich., for Gunaca.
Max Raskin, Milwaukee, Wis., amicus curiae.
This matter is before the Court on an order to show cause by the applicant why an order should not be entered requiring the respondent to obey a certain subpoena ad testificandum issued by the Board and served on the respondent.
The record shows that in connection with a proceedings before a National Labor Relations Board examiner on the question of an unfair labor practice the relator requested and the trial examiner of the Board issued a subpoena to the respondent which was duly served upon him calling upon him to attend a hearing before the trial examiner of the Board at Sheboygan, Wisconsin, on August 18, 1955. At the time of the return of the subpoena respondent appeared by an attorney (he stated he was making a special appearance), and filed a petition to revoke the subpoena. This was heard by the trial examiner who denied the petition to revoke the subpoena. In the proceedings before the examiner, and here, many contentions are urged.
The record discloses that the respondent is a resident of Detroit, Michigan. It further discloses that a warrant for the arrest of the respondent on a charge of a felonious assault was issued in Sheboygan County, Wisconsin; that request was made for the extradition of the respondent from the state of Michigan to answer that charge; that the Governor of Michigan has not granted extradition as of the time of the hearing in this matter, but that respondent did post bond with a state court in Michigan. The terms of this bond are not shown by the record, but it can only be assumed from the record that the bond is conditioned upon his appearance if extradition is granted. The respondent claims that he would be unable to get a fair trial if he were to come to Wisconsin to answer the charges.
The Court will take up the various contentions of the respondent which are as follows:
I.
Respondent contends that the venue in this proceeding is incorrect and that it should have been brought in the District Court in Michigan. Title 29 U.S.C.A. § 161(1) provides that the Board or any member thereof shall, upon application of any party to proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or production of evidence.
The plain language of the statute gives to the Board the right to bring this proceedings in either the District Court within the jurisdiction of which the inquiry is being carried on or within which such person is found or resides. The city of Sheboygan is within the jurisdiction of the Eastern District of Wisconsin. Respondent has cited no decision nor has the Court been able to find one holding that the quoted language means other than what it says.
II.
Respondent contends that this Court has no jurisdiction over the person of the defendant. The provisions above quoted also seem on their face to answer that contention. Subsection (5) specifically provides:
"All process of any court to which application may be made under sections 151-166 of this title may be served in the judicial district wherein the defendant or other person required to be served resides or may be found."
That language is not susceptible of any holding that the process of the Court in this proceedings is confined to the Court's district. Again, no decision has been cited, or found by the Court, limiting such language.
"Congress may authorize the civil process of a federal district court to be served upon persons in any other district." Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 683, 55 S.Ct. 595, 609, 79 L.Ed. 1110.
III.
The contention is made that even if process of this Court reached into Michigan, this Court could not punish a Michigan resident for contempt, in other words, could not enforce the process. Title 29 U.S.C.A. § 161(2) above quoted, in addition to giving the Court power to issue an order requiring such person to appear before the Board or its agent, expressly provides:
"* * * any failure to obey such order of the court may be punished by said court as a contempt thereof."
Here again is an express provision in the Act of Congress not susceptible in the Court's opinion to any interpretation other than just what it states. Counsel have cited no decisions to the contrary.
In N. L. R. B. v. Hearst, 9 Cir., 102 F. 2d 658, 662, the court said in answer to a contention that valid service could not be made outside the judicial district fixed by the Board in which the unfair labor practice occurred:
IV.
Respondent contends that the Board itself must act on the issuance and revocation of a subpoena before the Court can enforce such subpoena. This claim is based upon the position that the Board cannot delegate its powers of issuance and revocation of subpoenas.
We next find the matter considered by the Seventh Circuit Court of Appeals in N. L. R. B. v. John S. Barnes Corp., 178 F.2d 156, 159. The court there stated, among other things:
While it may not have been necessary to the decision of the case, the court thereafter said this with reference to the matter of revocation of subpoenas:
Neither of the above decisions has been reversed or overruled so far as the Court has been able to ascertain.
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Lewis v. National Labor Relations Board
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National Labor Relations Board v. Gunaca, 11641.
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