*2 MAJOR, Circuit EVANS and Before BRIGGLE, Judge. District Judges, EVANS, Judge. the National La- Does 161(1), bor Relations 29 U.S.C.A. § duces the issuance of authorize testificandum, ap- and ad where tecum pears charge that a been filed em- has their ployees against with em- ployer, but no employer? This is against presents. appeal question which appealed the District The Board Court subpoenas enforcement certain appellants, issued, alleging Morton, Company R. W. Barrett president, inspection permit refused to records, which was neces- their books proper adequate investiga- sary ato which had been filed
tion of them the Int. Bro. Firemen against Oilers, representing Local No. em- preferment Following the ployees. alleged peti- charges, the Board also enforcement, Regional investigation to began his deter- Director 5S5 public the necessarily parties, hurt all formal mine whether employees pur- most. It was created so Company; that the neutral tri- complaints might have a of defendant’s examination pose of the necessary, cor- and, if pass on them the bunal ascertain was to and documents books *3 rect them. there- and volume of materials sources of, received, as well purchased or sections the three of A fair construction product, for the finished first, destination of involved, necessitate to here seems to date January 1939 period second, from and, powers granted, recognition of determine subpoenas. This was to of expressly or provides, either the Act Company af- operations of whether the procedure practice impliedly, for the and meaning of commerce, within fected jurisdic- to be followed the Act. invoked, legal and and the factual tion for determination. questions presented are District Court ordered obedience subpoenas, appellants, ag- these and the of a step filing The first thereby, appealed. grieved Upon filing, employee. its charge by the investigate the the Board is Appellants may not argue Board that the is first complaint. practice, it In actual subpoenas before order the issuance of inquire employer’s busi obliged into the Company complaint against the has formal least) (tentatively, at determine ness and and served it. issued Not is interstate. whether that business following reasonably that the it well settled until subheading “Investigatory Powers” and employer’s falls within interstate business 10 Sections 9 and referred to in said Sec- commerce, authorized, justi least or at it margin.1 tion are forth in all set complaint. fied, issuing in In and extent powers closely its duties are Its and scope powers granted investigate it related. Its before sections, necessary it look to the these complaint file exercises its purpose objectives, generally, of and fact, exercise of to us clear. In its seems entire act. investigation may justi without fiably questioned legitimately criticized. avoid, The Board was created to disputes Certainly adjustment, deny labor through serious few the wisdom of which, stage, reached the strike a course. There such criticisms 1 designated purpose hear 11. For the of all that have been or “See. selected. any ings investigations, which, in the such the Board shall provide appropriate opinion Board, hearing upon for an are * * powers proper due exercise of notice TJ.S.C.A. § (c). in it section 9 and vested section (a) empowered, title] 159 and 100 of tils “See. [sections The Board is —- duly “(1) Board, provided, prevent any or author- as hereinafter agents person engaging agencies, any or all rea- ized shall at unfair labor pur- practice (listed to, [1581) sonable times have access section 8 affect- ing copy pose examination, commerce. and the This shall be exclu- any any person being sive, by any and shall evidence investi- not be affected oth- adjustment gated proceeded against prevention er means or relates or any investigation has matter under or in been or be established Any agreement, question. code, law, Board shall or member otherwise. “(b) subpenas requiring any Whenever issue person engaged engaging attendance and of witnesses or any production practice, Board,, such unfair labor and the evidence agent agency designated by or relates matter under or Board, purposes, Board for such or in before the its mem- shall have agency ber, agent, conducting upon- or the hear- issue cause to served ” * ing investigation. person stating such or the- U.S. charges 161(1). respect, containing in that O.A. § * ** ques- “See. 9. notice the Board or a Whenever a affecting designated thereof, member or commerce arises before a concern- ing representation agent agency, place employees, fixed,, at a therein days investigate controversy serving- Board less than five after ” * * (cid:127) certify complaint. parties, writing, to the U.S.C.. b). 160(a, representatives lame names of A. § subpenas” etc. investigator, "power Board” the issue making arise out of also, Subpoenas may But that criti- the trier the fact. way cism, merits, “requiring in no in- attendance and whatever any evi- production of witnesses inquiry, ascertain and the volved in which is to our under dence that matter required the relates to whether the Act is, investigationThe power of the appellants act, that contend, hearings, complaints, to issue to conduct complaint, investigate then expressly or not, or, urges, findings, re- and to make does the Government facts — powers. impliedly, investigatory quired the facts exclude the Board to hand, pow- investigatory On the other employee and set forth in ex- complementary ers are only issue its finds merit in pressly appears granted the Board. words, if it charge. In other *4 believing grounds exist reasonable require the 10(b) Section does not true, employee allegation the to of the expressly complaint. Board to issue a in inter- employer is engaged the power provides the Board “shall un- guilty of and has been state commerce * * * to caused to be served issue and Act, the by condemned practice fair labor in that charges the stating a its in- act, until but not the respect issue” is “Power to to es- tended vestigation or established The differ- different from “shall issue.” tablish such facts. important. Board’s In the ence one highly desirable It would seem mandatory. no It has discretion. is other, not, for, upheld, if position be Board’s a acts the Board has discretion —it position unhappy employer of this judicially. is in the exercise against upon to defend being called be- discretionary power, by preferred malicious charges false power investi- necessary. The comes compa- irresponsible Somewhat inci- a which is gate is case to such a rable situation power to issue dental to the exercise of crim- started a who quite implied power, complaint. It is an investigated first af- proceedings inal power clearly granted terwards. (b). 10 said enumerated Section However, appellants that it is not insist Ordinarily, may deter prac- of the of reasonableness character mine the intra- or inter-state by tice, power conferred but one employer employer’s business dealing grant of with a statute. We are If, employer refuses itself. assert, by so powers Congress, —a information, Board, in give the subpoenas, power which issue grant power investigate, of its exercise inferred, obviously but exists cannot information, here, through secure by Con- only expressly authorized subpoena. the issuance of far, appellants. agree we with gress. So We are satisfied that the powers granted Sec- what But are duty) investigate, (as as its right well the restric- Wherein lies 10? tions 9 and investigation, of its and in the course subpoenas? power issue tion subpoenas be, to files need issue questions (1) are: Specifically the For complaint, is clear. discussion on a investi- 10(b) give Does Sec. question, Fleming see phase same v. of the so, (2) are the gate? Co., Cir., 114 & Montgomery Ward F.2d therefor, subpoenas issue investigate and to by this court. decided The cases„which by these sections to restricted compel the attend stage have reached where witness, way no involves ance employer has been testify of the witness refuse to Board? self-incrimination. possibility because object of U.S.C. Neither presented question is not when the That seq., justify nor its words A. et § subpoena is the issue. Cor issuance appellants place construction narrow al., Cir., Draughon et F.2d retjer v. upon it. corporation Moreover, the defendant complain of the incriminat because subdivision, 11 is the broad under can Hale the evidence. v. (1) character “Investigatory ing Powers.” Subsection Henkel, 43, 26 S.Ct. 201 U.S. L.Ed. 11 deals with the issuance of section subpoenas gives “any member of respect and, therefore, discretionary District of the of enforcement Tile order implied power it has Court is discre- how its Affirmed. Assuming tion shall be exercised. im- pliedly right, step to has such it is far MAJOR, (dissenting). Judge where, in presented situation here aid of agree either with I unable am compel sought sup- in its advanced clusion the reasons respondents only appear personally convincing port. study Act is A testify, produce but their books and Congress part of there was no intent on the words, they required, records. In are other The lan- claimed. confer compulsion, under to furnish the Board clearly employed, my judgment, guage and evidence which with they may negatives such intent. with violation of law. question presented aptly stated in repeated In Par. opinion. of Sec. refer- paragraph ence made to the Board, taken 10(b) give the “Does Section which, however, all of investigate” stated, connec- as later required. with therein are not concerned beside issue. We (e) (f) provide Sections that when a merely the Board to to *5 petition for by filed power the enforcement is tbe investigate, rather with but Board, petition by aor for review em- respondents information the compel give the transcript “a ployer, that of the entire rec- testimony sought in aid of such and the proceeding, in the including plead- ord investigation. the ” ** * ings testimony and shall be cer- power by express- All confer-ed 11 is Sec. by tified in and filed the Court. ly by paragraph thereof to limited language The in all paragraphs of these by To 10. de- that vested Sections is clearly to the effect power by conferred Sec. termine and evidence referred is that taken at a therefore, ascertain the upon hearing by formed issues by power and Section “vested is complaint and answer. There “Representatives entitled 10.” Sec. is evidence or testi- slightest intimation that Elections,” and And thereof con- Par. manner, any mony is in other to be taken power investigation. There fers the is place other or time. or at provision no other of the Act which ex- apparent hearings It is that the referred express power. pressly such confers This the hearings Sec. have reference to in however, following by is limited provided in Sec. and that the inves- phrase: “In such referred to have reference to tigations appropriate provide shall an Board investigations provided for in Sec. notice, hearing upon due *.” This event, right subpoena provided precludes thought that the limitation in Sec. aid can in empowered investigate, and at Board is employed only in connection with be time, discretion, in some later its conduct upon hearing issues between the “appropriate hearing.” right The an investigate doubt may there as to Whatever in is connection such hear- dispelled interpretation this soundness 10(a) em- Sec. ing, otherwise. 11(1), sentence1 of the last Sec. prevent Board unfair labor “ * ** provides: Such attendance of affecting (b), Par. practices commerce. production of such witnesses and evi- filing charge, upon the of a confers the any place in dence complaint power and notice of any Territory pos- United States or hearing. person complained against The thereof, any designated place at session right give answer and testi- given is mony hearing.” in place time fixed at words, room for doubt that person Is the words complaint. In other such there designated place upon hearing” hearing “at mean to a the issues made entitled upon than a issues existing thereto. other No by answer investigate parties? There must nega- is found in between be a power to argued to this that because answer unless an ex- the tive Sec. * * * power inspection of documents and parte to issue examin- “shall have designated can complaint,” it follows that its in of witnesses he as a ation opinion. quotation is omitted from the the footnote This sentence in appear at directing suspected “hearing.” person violate do To so his accepted meaning. office records and universally with books and common and purpose submit to examination all sub- sought, Under the construction ' whether he should im- majority, there is an scribed to course, with an offense. Of plied power investigate, in Sec. right, as I irrespective of compulsory process to have Board, investigate has the Labor assume hearing, while under Sec. where allegations with a view charge conferred, expressly conformity with ascertaining if is in with, to, and it was limited in connection predicated, the statute which it is “appropriate To me this hearing.” an faith, good made in and the information process reasoning, result strange files knowledge possessed the one who is, by implication, of which confer per- support Other charge thereof. Congress re- under Sec. 10 where doubt, sons, interviewed for no com-, mained than the silent —broader is reason- purpose ascertaining if there Congress ex- under Sec. 9 where ferred preferred. charge able cause act pressed itself. respect, authority Any possessed sought by information cry from is a far is for matter. claimed the instant firming allegation an contained places re opinion apparently .The some filed with the and which argument liance support used position sustained as a matter should be respondent. If it has a public policy. pointed out that support obtain evidence in of one to thus the efficient claimed essential issue, it would it likewise has seem that goes even administration of the right, allegations to all essential is-necessary that it urging extent charge. in the effect of contained *6 employer. There protection authority permit is the Board to those, however, may who think be advance, judge procedure a cal- a case in already has sufficient impair, destroy, a fair culated argu take desire to issue with would subsequently presented. ment here event especially This is true when made. argument legitimate forum for such is Con agency considered that the same which is gress and not the courts. conceded It preliminary this so-called inves- make under Sec. 10 is claimed advance, it so tigation and decide expressed, implied. but that it should desires, one of the issues which later out, attempted point my I have As will, event, controverted, latter is not judgment that such a construction again called to make a second de- mind, keep is well to in con tenable. It say that such To cision. any other, Act as well struing this as tentatively merely de- capable Congress employing language arise, may later termining issue which an which was intended. If it ap- aught For without substance. delegate had intended to now the sub- pears, with the aid of claimed, by the it could have done so use make' poena in will be enabled to simple In Federal Trade words. a few complete and final determination of a n v. American Tobacco Com Commission later become 305, 336, 337, 298, pany, 264 U.S. S.Ct. issue. This so because the troverted 696, A.L.R. the court L.Ed. used possessed all the evidence Board will have mind, which, my peculiarly language charge, which filed the Union said: appropriate. It by respondents,— possessed well as complaint has “ before all this * * * Anyone respects who issue has made between spirit well as the letter the Fourth respondents. would be loath to Amendment believe intended inapt Congress to authorize one of its opinion makes illustration “a n agencies sweep all our tradi- who started subordinate (Interstate fire investigated Commerce proceedings tions into criminal Brimson, 447, 479, v. U.S. procedure, Commission afterwards.” 1047), familiar, I 38 L.Ed. am not for 14 S.Ct. to direct with which expeditions private papers into on receiving fishing prosecuting attorney, possibility that disclose with a evi- complaint, to arm himself discuss do not We dence of crime. tried, if it do so could question whether it explicit lan- most nothing short attribute induce us to guage ”* intent. Congress that ap- the order my judgment reversed.
pealed from al. DELWORTH et
CARTER OIL CO. v.
No. Appeals, Circuit. Seventh Court
May 7, 1941.
Rehearing Denied June