National Labor Relations Board v. Cashman Auto Co., 4681.
| Decision Date | 22 June 1955 |
| Docket Number | No. 4681.,4681. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CASHMAN AUTO COMPANY et al., Respondents. |
| Court | U.S. Court of Appeals — First Circuit |
Arnold Ordman, Atty., N.L.R.B., Washington, D. C., with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L. R.B., Washington, D. C., was on motion, for petitioner.
Joseph A. McVeigh, Boston, Mass., with whom Bernard Helman, Boston, Mass., was on memorandum in opposition to motion, for respondents.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
We entered a decree in this case on December 11, 1952, wherein in accordance with a per curiam opinion of that date, 1 Cir., 200 F.2d 412, we ordered enforcement of an order of the National Labor Relations Board requiring the respondents, among other things, to reinstate with back pay three employees found to have been discriminatorily discharged for union activity. Informal negotiations to fix the precise amount of back pay due these employees failing, the Board ordered a supplemental hearing before a trial examiner for the purpose of taking evidence and determining that issue. At the hearing the parties reached an agreement as to the amount of back pay due one of the employees, Pignato, and the hearing proceeded as to the other two, Shawcross and Marshall. The Board affirmed the trial examiner's finding that these two were entitled to back pay in the net amounts of $1,866.83 and $1,403.81 respectively, and now petitions this court for the entry of a decree enforcing its supplemental order directing the respondents to pay the above sums to these two men.
The respondents resist the issuance of such a decree on three grounds. Their first contention is that the Board erred in affirming the trial examiner in revoking and quashing, in the absence of a motion to that effect, a certain subpoena duces tecum issued prior to the hearing by the Board's Regional Director on the respondents' application directing the person in charge of the records of the Division of Employment Security of the Commonwealth of Massachusetts to produce the employment, registration, job referral, and other records of the Division pertaining to Shawcross and Marshall.
It is conceded that this subpoena was issued in accordance with the Board's Rules and Regulations, Series 6, implementing § 11(1) of the Labor Management Relations Act, 61 Stat. 150 (1947), 29 U.S.C.A. § 161(1), which requires the Board, or any member thereof, to issue subpoenas forthwith on the application of any party to a proceeding before it. Furthermore it is conceded that the subpoena was duly and properly served on the general counsel of the Massachusetts Division of Employment Security and that it was returnable on the opening day of the hearing before the trial examiner. The general counsel for the Division did not promptly petition the Board to revoke the subpoena on the ground that the evidence demanded was immaterial or was not described with sufficient particularity, which would have raised an issue for decision by the Board under § 11(1) of the Act wherein it is provided: "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." Instead he flatly refused to obey the subpoena on the ground of a statutory privilege, for he wrote to counsel for the respondents two days before the subpoena was returnable and the hearing was to open as follows:
"Confirming telephone conversation with your Office, inasmuch as information obtained pursuant to the Massachusetts Employment Security Law is confidential (General Laws, Chapter 151A, Section 46) and cannot be divulged,1 we are, therefore, returning to you herewith our check for $4.50 representing witness fees."
By refusing to obey the subpoena, general counsel for the Division of Employment Security raised no question for decision by the Board, for nowhere in § 11 (1) supra, of the Act, or elsewhere, is the Board given power to enforce obedience to its subpoenas. That power is conferred exclusively upon the district courts of the United States by § 11(2) of the Act which 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...
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