National Labor Relations Board v. Barrett Co.

• Decision Date: 08 May 1941
• Docket Number: No. 7531.,7531.
• Parties: NATIONAL LABOR RELATIONS BOARD v. BARRETT CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

120 F.2d 583 (1941)

NATIONAL LABOR RELATIONS BOARD v. BARRETT CO. et al.

No. 7531.

Circuit Court of Appeals, Seventh Circuit.

May 8, 1941.

Clarence W. Heyl, of Peoria, Ill., for appellants.

Robert B. Watts, Gen. Counsel, NLRB, of Washington, D. C., and I. S. Dorfman, Regional Director, NLRB, of Chicago, Ill., for appellees.

Before EVANS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.

EVANS, Circuit Judge.

Does Section 11(1) of the National Labor Relations Act, 29 U.S.C.A. § 161(1), authorize the issuance of a subpoena duces tecum and ad testificandum, where it appears that a charge has been filed by employees with the Board, against their employer, but no complaint has been issued by the Board against said employer? This is the question which this appeal presents.

The Board appealed to the District Court for the enforcement of certain subpoenas by it issued, alleging that appellants, the Barrett Company and R. W. Morton, its president, refused to permit inspection of their books and records, which was necessary to a proper and adequate investigation of the charge which had been filed against them by the Int. Bro. of Firemen and Oilers, Local No. 8, representing employees. Following the preferment of charges, the Board also alleged in its petition for enforcement, that the Regional Director began his investigation to determine whether a formal complaint should issue against the Company; that the purpose of the examination of defendant's books and documents was to ascertain the sources of materials and the volume thereof, purchased, or received, as well as the destination of the finished product, for the period from January 1, 1939 to the date of the subpoenas. This was to determine whether the operations of the Company affected commerce, within the meaning of the Act.

The District Court ordered obedience to these subpoenas, and the appellants, aggrieved thereby, appealed.

Appellants argue that the Board may not order the issuance of subpoenas before a formal complaint against the Company has been issued and served upon it.

Section 11(1) of the Act, following the subheading "Investigatory Powers" and Sections 9 and 10 referred to in said Section 11, are all set forth in the margin.¹

In determining the extent and scope of powers granted to the Board by these sections, it is necessary to look to the purpose and objectives, generally, of the entire act.

The Board was created to avoid, through adjustment, serious labor disputes which, if they reached the strike stage, necessarily hurt all parties, the public the most. It was created so that employees with complaints might have a neutral tribunal pass on them and, if necessary, correct them.

A fair construction of the three sections here involved, seems to necessitate first, a recognition of powers granted, and, second, that the Act provides, either expressly or impliedly, for the practice and procedure to be followed when the Board's jurisdiction is invoked, and the factual and legal questions are presented for determination.

The first step is the filing of a charge by the employee. Upon its filing, the Board is required to investigate the complaint. In actual practice, it is first obliged to inquire into the employer's business and determine (tentatively, at least) whether that business is interstate. Not until it is reasonably well settled that the employer's business falls within interstate commerce, is it authorized, or at least justified, in issuing a complaint.

Its powers and its duties are closely related. Its duty to investigate before it exercises its power to file a complaint seems to us clear. In fact, its exercise of power without investigation may be justifiably questioned and legitimately criticized.

Certainly few would deny the wisdom of such a course. There may be criticisms which arise out of making the investigator, also, the trier of the fact. But that criticism, whatever its merits, is in no way involved in our inquiry, which is to ascertain whether the Act required the Board, as appellants contend, to act, that is, to issue the complaint, and then investigate the facts — or, as the Government urges, required the Board to investigate the facts set forth in the charge of the employee and issue its complaint only if it finds merit in the charge. In other words, if it appears that reasonable grounds exist for believing the allegation of the employee to be true, and that the employer is engaged in interstate commerce and has been guilty of unfair labor practice condemned by the Act, the Board should act, but not until its investigation established or tended to establish such facts.

It would seem highly desirable that the Board's position be upheld, for, if not, the employer would be in the unhappy position of being called upon to defend against false charges preferred by malicious or irresponsible parties. Somewhat comparable to such a situation would be the case of a prosecuting attorney who started criminal proceedings first and investigated afterwards.

However, appellants insist that it is not a question of reasonableness of the practice, but one of power conferred by the statute. We are dealing with a grant of powers by Congress, so they assert, — a grant of power to issue subpoenas, which obviously cannot be inferred, but exists only when expressly authorized by Congress. So far, we agree with appellants. But what are the powers granted by Sections 9 and 10? Wherein lies the restriction of power to issue subpoenas?

Specifically the questions are: (1) Does Sec. 10(b) give the power to investigate? and (2) if so, are the powers to investigate and to issue subpoenas therefor, restricted by these sections to cases which have reached the stage where a complaint against the employer has been issued by the Board?

Neither the object of the Act, 29 U.S.C. A. § 151 et seq., nor its words justify the narrow construction which appellants place upon it.

Section 11 is under the broad subdivision, "Investigatory Powers." Subsection (1) of said section 11 deals with the issuance of subpoenas and gives to "any member of the Board" the "power to issue subpenas" etc. Subpoenas may be issued for the purpose of "requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation." The power of the Board to issue complaints, to conduct hearings, and to make findings, does not, expressly or impliedly, exclude the investigatory powers. On the other hand, the investigatory powers are complementary to the powers expressly granted to the Board.

Section 10(b) does not require the Board to issue a complaint. It expressly provides that the Board "shall have power to issue and caused to be served * * * a complaint stating the charges in that respect * * *." "Power to issue" is different from "shall issue." The difference is important. In one the Board's duty is mandatory. It has no discretion. In the other, the Board has a discretion — it acts judicially. It is in the exercise of this discretionary power, that investigation becomes necessary. The power to investigate is a necessary power, which is incidental to the exercise of the power to issue a complaint. It is an implied power, quite as clearly granted as any express power enumerated in said Section 10 (b).

Ordinarily, the Board may determine the intra- or inter-state character of the employer's business from the employer itself. If, however, the employer refuses to give the information, the Board, in the exercise of its power to investigate, may secure the information, as here, through the issuance of the subpoena.

We are satisfied that 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, is clear. For discussion on a phase of the same question, see Fleming v. Montgomery Ward & Co., 7 Cir., 114 F.2d 384, decided by this court. The power to issue the subpoena and compel the attendance of a witness, in no way involves the right of the witness to refuse to testify because of possibility of self-incrimination. That question is not presented when the issuance of subpoena is the issue. Corretjer v. Draughon et al., 1 Cir., 88 F.2d 116. Moreover, the defendant corporation can not complain because of the incriminating character of the evidence. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652.

The order of enforcement of the District Court is

Affirmed.

MAJOR, Circuit Judge (dissenting).

I am unable to agree either with the conclusion or the reasons advanced in its support. A study of the Act is convincing that there was no intent on the part of Congress to confer the power claimed. The language employed, in my judgment, clearly negatives such intent.

The question presented is aptly stated in the first paragraph of the opinion. The question, "Does Section 10(b) give the power to investigate" as later stated, is beside the issue. We are not concerned merely with the power of the Board to investigate, but rather with the power to compel respondents to give the information and testimony sought in the aid of such investigation.

All power confered by Sec. 11 is expressly limited by the first paragraph thereof to that vested by Sections 9 and 10. To determine the power conferred by Sec. 11, therefore, it is necessary to ascertain the power "vested by Section 9 and Section 10." Sec. 9 is entitled "Representatives And Elections," and Par. (c) thereof confers the power of investigation. There is no other provision of the Act which expressly confers such power. This express power, however, is limited by the following phrase: "In any such investigation, the Board shall provide for an appropriate hearing upon due notice, * * *." This limitation precludes the thought that the Board is empowered to investigate, and at some later time, in its discretion, conduct an "appropriate hearing." The right to investigate is in...