National Labor Relations Board v. Anchor Rome Mills, 13990.

• Decision Date: 12 June 1952
• Docket Number: No. 13990.,13990.
• Citation: 197 F.2d 447
• Parties: NATIONAL LABOR RELATIONS BOARD v. ANCHOR ROME MILLS, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 447 (1952)

NATIONAL LABOR RELATIONS BOARD v. ANCHOR ROME MILLS, Inc.

No. 13990.

United States Court of Appeals Fifth Circuit.

June 12, 1952.

Harvey B. Diamond, Atty., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, National Labor Relations Board, Washington, D. C., for appellant.

Frank A. Constangy, Atlanta, Ga., John W. Maddox, Rome, Ga., for appellee.

Before HUTCHESON, Chief Judge, and RUSSELL, and STRUM, Circuit Judges.

HUTCHESON, Chief Judge.

Appealing from an order denying enforcement of a subpoena, the regional director had issued in an investigatory proceeding,¹ the Board is here insisting that the order was erroneous and must be reversed.

The district judge, of the opinion that neither the Act nor the Board's Rules and Regulations authorized the issuance of a subpoena in aid of investigation before a complaint had been filed, held that the subpoena had been issued without authority and denied enforcement of it.

The Board is here, pointing out that by express provisions of Sec. 11² of the Act, 29 U.S.C.A. § 161, the subpoena powers it confers on the Board extend to "all hearings and investigations, which, in the opinion of the Board are necessary and proper for the exercise of the powers vested in it by sections 9 and 10 of the act", and that it has been held in N. L. R. B. v. Barrett Co., 7 Cir., 120 F.2d 583, 586, that it is "the Board's right (as well as its duty) to investigate, and in the course of its investigation, if need be, to issue subpoenas before it files a complaint". So pointing, it insists that the order appealed from finds no support in law.

The appellee does not see the matter as the Board does. Taking no issue with the Board's position, that the district judge erred in holding that "subpoenas duces tecum may not be issued by the Regional Director until after the filing of a complaint", appellee puts forward in support of the ruling below the claim that the procedure employed in the issuance of the subpoena violated Sec. 1002(a)³ and 1005(c)⁴ of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. As appellee states it in its brief:

"It is submitted that the Board may create by appropriate regulation under the terms of the National Labor Relations Act and the Administrative Procedure Act, an informal pre-hearing or pre-trial procedure. It is submitted further that under certain circumstances it is conceivable that the Board may provide by regulation for the issuance of certain subpoenas in connection with such matters. Whatever the legal authority of the Board may be it may not exercise it until it has implemented the authority by valid and appropriate regulations promulgated in accordance with the terms of the Administrative Procedure Act. It has not done so. Insofar as the type of procedure involved in this appeal and use of subpoenas to implement it, the Board has not adopted such appropriate Rules and Regulations as would authorize either the procedure apparently here contemplated or the use of subpoenas implementing such procedure.

"The gravamen of the Appellant\'s position is that it implies from its present published regulations some inherent power to hold a pre-trial hearing; to require a prospective respondent in an unfair labor practice complaint to be subjected by subpoena, administratively issued by the prospective moving party in the unfair labor practice action, to submit himself to full questioning; to submit his records and books which in turn may be impounded; to permit full examination and disclosure of an ultimate position in litigation the issues of which have not been formulated. This apparent procedure is without the reservation of right of cross-examination, the right of representation by Counsel, or any of the other Constitutional rights contemplated by the Constitution of the United States and implemented by the Congress in adopting the Administrative Procedure Act."

We cannot agree with these views. Indeed, we find no basis for them in either the Administrative Procedure Act or the Labor Management Act. We cannot find, in the enforcement of subpoena process in investigatory proceedings, any basis for the imagined fears of appellee that Constitutional rights will thereby be invaded and trampled upon. Neither can we agree with appellee's view that the Rules and Regulations, on which the Board relies, do not provide for, or authorize the issuance of, the subpoena in question here. We are, on the contrary, of the clear opinion that, by the express terms of the Statute, supplemented by its Rules and Regulations, the Board was authorized to proceed, as it has done, and that, in holding as he did that the subpoena was not enforcible because issued without authority of law, the court erred.

This is not to say that the subpoena must be enforced precisely according to its terms and without modification....