National Labor Relations Board v. Duval Jewelry Company of Miami, Inc.

PETITIONER:National Labor Relations Board
RESPONDENT:Duval Jewelry Company of Miami, Inc.
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 234
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 357 US 1 (1958)
ARGUED: May 20, 1958
DECIDED: Jun 09, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – May 20, 1958 in National Labor Relations Board v. Duval Jewelry Company of Miami, Inc.

Earl Warren:

Number 234, National Labor Relations Board, Petitioner, versus Duval Jewelry Company of Miami et al.

Mr. Come.

Norton J. Come:

May it please the Court.

This case is here on a writ of certiorari to the Court of Appeals of — for the Fifth Circuit.

The review of the judgment of that court in denying enforcement of certain subpoenas duces tecum issued in the course of a representation proceeding under the Section 9 of the National Labor Relations Act.

Section 11 (1) of the Act provides that the Board shall issue subpoenas forthwith upon the application of any party to the proceeding.

The section further provides that the person subpoenaed may contest the validity of the subpoena by filing a petition to revoke with the Board.

And the Board shall revoke the subpoena if in its opinion the evidence sought is irrelevant to the subpoena, does not describe it with sufficient particularity.

Now, by regulation, the Board has provided that whereas here, a subpoena is returnable at a hearing, the petition to revoke shall be filed with and ruled on in the first instance by the hearing officer.

His ruling is in turn subject to review by the Board itself under a special appeal procedure which I will describe in detail later.

The question presented is whether this Board regulation is authorized by the statute or a stated otherwise, thus Section 11 (1) require the Board alone to rule on petitions to revoke subpoenas or may the Board authorize the hearing officer to make the initial ruling on such petition pursuant to this procedure.

William J. Brennan, Jr.:

(Inaudible)

Norton J. Come:

There is a special appeal procedure whereby the party under the Board’s rules can request the Board for permission to appeal specially at that stage.

The party makes out the — the case that he has for offsetting the hearing officer and that question goes to the Board and if the Board determines that a substantial question is presented as to the correctness of the hearing officer’s ruling, it will grant the special appeal, consider the subpoena question and upset the hearing officer if need be.

There are situations where the Board has revoked subpoenas pursuant to this procedure.

We have reproduced several such orders in the appendix to our — our brief in this case.

William J. Brennan, Jr.:

What can a non-party (Inaudible)

Norton J. Come:

I didn’t get your question.

William J. Brennan, Jr.:

A non-party witness the subpoena.

Norton J. Come:

A non-party in the —

William J. Brennan, Jr.:

I suppose the Court’s subpoenas issued against people are not parties for the proceeding doesn’t — don’t stay on occasion.

Norton J. Come:

Well the non — the — the non-party could petition to revoke the subpoena and —

William J. Brennan, Jr.:

The same way?

Norton J. Come:

Yes, Your Honor as I understand it.

Now, the same question is — is presented in the case which follows.

However, there, the subpoenas were issued in connection with an unfair labor practice proceeding and we believe that the Administrative Procedure Act furnishes an additional source or authority for the Board’s procedure in such proceedings.

Now, briefly here, the underlying facts are these.

In November of 1955, a union, the retail clerks filed the petition with the Board’s regional office for a representation election among the employees at a retail jewelry store in Miami, Florida.

At the hearing, the employer moved to dismiss on the ground that the business of the store did not satisfy the Board’s jurisdictional yardsticks for the assertion of jurisdiction.

However, the store refused to furnish any information to substantiate that contention whereupon the hearing was adjourned for the purpose of securing the information by subpoenas.

Norton J. Come:

Five subpoenas deces tecum and one testimonial subpoena, the validity of which is not an issue here, were, thereupon, issued and served.

They were issued to the store where the union was claiming representation rights and to three other stores allegedly part of the same intrastate chain, because under the Board’s jurisdictional yardsticks, jurisdiction will be asserted over an intrastate retail store if its out of state purchases meet a certain figure and even if the purchases of the particular store do not satisfy the standard if the store is part of a chain and the total purchases of the stores is in the chain meet the figure then jurisdiction will be asserted.

So that the subpoenas here requested, merely, sufficient information to ascertain whether or not the Board’s chain store standard was met.

They were issued in accordance with the procedures similar to that followed under the federal rules of civil procedure.

That is, the Board attorney assigned to the case made application to the regional director setting forth the person to be subpoenaed and the information sought and the regional director issued the attorney blank subpoenas bearing the seal of the Board and the facsimile signature of a Board member and were filled-in by the attorney and served.

Now, upon service of the subpoenas, the respondents filed petitions to revoke the subpoena alleging that they were burdensome and has not been properly issued which petitions were addressed to and filed with the Board in Washington.

And copies were sent to the hearing officer in Miami.

The executive secretary of the Board returned the petitions calling respondents’ attention to the provision of the Board’s rules herein issue which requires that these petitions be filed with the hearing officer.

The hearing officer then fixed a date for respondents to file briefs and argue orally in support of the petitions which respondents declined to avail themselves of and the hearing officer proceeded to deny the petitions to revoke on the ground that they presented no substantial issue as to the validity of the subpoenas.

And when the hearing was reconvened, respondents appeared through counsel and indicated they would not comply with the subpoenas, whereupon, pursuant to Section 11 (2) of the Act the Board then instituted proceedings to enforce the subpoenas in the District Court.

The District Court denied enforcement of the subpoenas on the ground that they were unreasonable and oppressive and were invalidly issued and that the regional director was not a party to the proceeding entitled to utilize the subpoenas.

On appeal, the Court of Appeals for the Fifth Circuit, agreed that the subpoena should not be enforced but for a different reason.

The court was of the views that this Board procedure or ruling on this petition to revoke in the first instance by the hearing officer, constituted an unauthorized delegation of authority to the hearing officer.

And since the Board itself had not passed on respondents’ petitions to revoke, the suit in the Court’s view was thus premature and could not be maintained.

Now, the Board’s position is a two-fold.

We believe, first of all, that properly understood, the Board’s procedure for revocation of subpoenas does not present a delegation problem at all and that the Board itself retains the power of final decision through this appeal procedure which I’ve indicated at the outset.

In the alternative, however, we submit that even if the Board’s procedure were viewed as entailing a delegation of Board authority with the hearing officer, the Act does not preclude such delegation.

Now, I’ve indicated briefly that under this procedure, the Board requires that the petition to revoke first be filed with the hearing officer.

Now, in an unfair labor practice, this hearing officer is a trial examiner with the independent status conferred by the Administrative Procedure Act.

That’s the situation in the case which follows.

In a representation case, such as we have here, he is a field examiner or attorney under staff of the regional office.

The reason for the difference is that a representation case is essentially an investigation and not — not necessary a type of proceeding and is exempt from the hearing requirements of the APA.

In such cases, the Board is thus free, not restricted to the panel of hearing officers setup under that Act and can utilize other qualified personnel for the hearing officer function.

However, apart from the fact that the hearing officer in the — our case does not make recommendations to the Board.

His function at the hearing is otherwise is responsible as that of a trial examiner in an unfair labor practice case.

He may call on and examine witnesses, rule on the admissibility of evidence, regulate the course of the hearing and ensure that it’s his job to see that a full and complete record is developed for the Board.

Now, if a party is dissatisfied with the hearing officer’s action on the petition to revoke, the Board’s procedure as I indicated at the outset affords the party an opportunity to apply to the Board for permission to appeal specially and if a substantial question is presented, the Board will entertain the appeal.

Moreover, there is opportunity when the case is before the Board for final decision to obtain Board review of the subpoena question.

Now, of course, that does not afford an adequate remedy in the situation where the hearing officer has denied the petition to revoke but where he grants a petition to revoke the subpoena.

And the party aggrieved is the person requesting the subpoena.

Norton J. Come:

He is afforded an opportunity to obtain Board review in regress of that situation when the case comes before the Board for final decision because the board can as it has in such cases ordered the hearing reopened should it find that the evidence denied to the individual was material.

(Inaudible)

Norton J. Come:

I’m not too sure that I — pursuant to subpoena —

(Inaudible)

Norton J. Come:

Well, where the — where the subpoena is not quashed, the opportunity is afforded under the special appeal procedure for the individual to have the Board quash the subpoena before the subpoena is enforced.

(Inaudible)

Norton J. Come:

Now, I should point out that the Board has utilized this procedure of having the hearing officer make the initial ruling on the validity of the propriety of the subpoena subject to review by the Board itself since the earliest Wagner Act days.

Under the Wagner Act, however, the subpoena procedure was a one-step one rather than a two-step one and the decisional judgement was exercised at the stage of determining whether the subpoena should issue.

Whereas, under Taft-Hartley, the issuance is automatic and the judgment is deferred to the petition to revoke stage.

But apart from that difference, the Board’s rules, since the earliest Wagner Act days, provided for the same method of having the hearing officer initially rule on the propriety of the subpoena.

And these practical considerations explain this procedure.

William J. Brennan, Jr.:

Well, Mr. Come, tell me.

Norton J. Come:

Yes, Your Honor.

William J. Brennan, Jr.:

Does this mean that to gather the motion to quash in the first instance is made before the hearing officer.

Norton J. Come:

That is correct.

William J. Brennan, Jr.:

But he denied it.

And I understand an application may be made for what you call question appeal and got from the Board.

Norton J. Come:

Yes, Your Honor.

William J. Brennan, Jr.:

Is that — whether or not that appeal will be entertained as I gather a matter of the Board’s discretion.

Norton J. Come:

That is correct, Your Honor.

William J. Brennan, Jr.:

And if that’s denied and then I gather the witness must produce subpoena, correct?

Norton J. Come:

Well, if we get enforcement on the subpoena.

William J. Brennan, Jr.:

Oh, I see.

Then you to go into the Court and —

Norton J. Come:

That is correct, Your Honor.

The Board’s subpoenas are not self-enforced —

William J. Brennan, Jr.:

Yes, so that if it’s denied, still an opportunity with the District Court can exist, is that it?

Norton J. Come:

That is correct.

William J. Brennan, Jr.:

On a Board initiated proceedings were enforced —

Norton J. Come:

That is correct, Your Honor.

William J. Brennan, Jr.:

In this instance, there actually was a hearing, was it filed — it was before the Board?

Norton J. Come:

Before the hearing officer.

The respondent did not elect to request permission for a special appeal after the hearing officer denied his petition to revoke.

Felix Frankfurter:

What is — what are those statistics of this — the incidents of what greater (Inaudible)

How often are these appeals contested?

Are these — not a relevance when you (Inaudible)

How often is — is there a contest to the subpoena.

Any — any statistics in the report of the Board?

Norton J. Come:

I don’t think that they’re broken down insofar as —

Felix Frankfurter:

(Inaudible) what man instituted this problem?

Is this a serious problem?

Norton J. Come:

I think it could become a serious problem.

Felix Frankfurter:

It could be what?

Norton J. Come:

It could become a serious problem in terms of the number of enforcement cases that we’ve had, I’d say that they’ve averaged probably five or ten year or more, sir.

Felix Frankfurter:

Well, the Board hasn’t one the holdings sleeping all these years so that there’s likely —

Norton J. Come:

No, but I —

Felix Frankfurter:

— to create an activity in the past and then that there has been.

Norton J. Come:

I think that it’s indicative to the fact that the parties have generally been satisfied with the way this procedure —

Felix Frankfurter:

But what I want to know is how often the Board is called upon, how often they’re — they’re challenged under the present procedure how often the views are taken to the Board.

Is it not — as this is an administrative problem in part setting, you are arguing or will argue that this is why it’s ineffective which makes for the carrying out the purposes of the Congress with due regard to those rights that should be safeguarded in individuals, isn’t that the substance of it?

Norton J. Come:

That is correct.

Felix Frankfurter:

Now, as bearing on that, one wants to know what the nature of this limited problem is.

How often does this come up?

Are there any statistics in the reports of the Board (Voice Overlap)

Norton J. Come:

There are no statistics in the reports of the Board Your Honor.

I have attempted to ascertain some statistics for our regional offices and I find that — and they are set forth in our brief.

Felix Frankfurter:

Well in short, if this comes up — if the Board is called upon independent in lieu, there’s only X number of times and X is twelve a year or five a year its one problem.

If this arrived as two hundred times a year, it’s another problem.

I don’t know which way it looked because the frequency of it, the dissatisfaction with the subpoena that’s issued may prove the opposite thing.

It may either prove you shouldn’t put that burden on the Board in the first instance or it may prove that so it’s serious that it should be put on the Board.

Felix Frankfurter:

I don’t know which it is.

Norton J. Come:

Well, the information I was referring to was set forth at page 36 of our — of our brief.

It shows that in a recent fiscal year of period, there were total of about 218 subpoenas, duces tecum issued in a — in connection with representation cases and roughly, petitions to revoke or file in about 20% of those cases.

Now, potentially, everyone of those —

Felix Frankfurter:

What was the period over a year?

Norton J. Come:

Yes, Your Honor.

That was a — the fiscal year ending June 30th, 1956.

Felix Frankfurter:

So there are 40 motions for revocations filed.

Norton J. Come:

That — that is correct.

Now, however, in a representation case as the Court is aware, it is extremely urgent to proceed expeditiously and hold the election promptly because of the danger of strikes.

If the parties had a procedure open to them whereby they could come shooting into the Board in everyone of these subpoena cases, potentially, there’s no way of telling how many the Board would get.

And when the Board would get them originally as distinguished from through the special appeals procedure, the hearings could be delayed a substantial period of time.

Felix Frankfurter:

Not merely because — because an attack against the subpoena is made for dilatory purposes, the delaying purposes but because of the burden on the Board, because if — if delay is a danger, then there’s great opportunity for delay of having first the examiner and then an appeal and all the rest of it.

Norton J. Come:

Well, the parties though, over the years have appreciated that under this procedure, the Board will not entertain an — an appeal unless there’s a substantial question presented as to the hearing officer’s ruling.

Now, if you wipe out the hearing officer and they come in, in every case, they don’t have to make that showing and it also even assuming they’re acting in good faith does put an additional burden on the Board because —

Felix Frankfurter:

And I suppose they’d want to have a full hearing, lawyers and all that.

Norton J. Come:

Yes, Your Honor.

Felix Frankfurter:

And maybe opinion writing would begin.

What is the ground of attack on the scheme of motion and here is extensiveness — undue extensiveness of the inquiry?

Norton J. Come:

Well, we’ve been pretty careful in our use of subpoenas so that at least recently, that has not been a common complaint.

It’s usually irrelevance.

It doesn’t pertain to — to any matter, an issue or privilege information they sought.

They generally fall in that — in that category.

Felix Frankfurter:

Am I right in suggesting that most of them are turned down?

Norton J. Come:

I think that that is accurate.

However, in the situation where a substantial case is made up, the Board has to revoke subpoenas.

We’ve reproduced several such orders that go back over — over a period of time.

It just depends upon what the — what the problem is.

If — if this — if the hearing officer has — has gone off base, there’s an opportunity there for getting the Board to — to reverse them promptly.

Felix Frankfurter:

Are you — are you in a position to — you’ve had to say what has happened to all these prophesies of dire evil that Cudahy they’re supposed to usher in?

Norton J. Come:

No, I’m — I’m not Your Honor.

I’m not familiar with what is happening under — under Cudahy.

Now, —

Felix Frankfurter:

What is happening to the Court?

Norton J. Come:

No — no.

I mean how — how the wage in our administration has — has spared.

I strongly suspect that they’ve managed to — to get along all right because I don’t recall that the Fair Labor Standards Act as it had been amended since Cudahy.

However, I think they’ve got a — a little different problem from the kind that we’ve got here particularly with our representation cases or the need for speed in holding the election as extremely necessary and a legislative history shows that Congress was well aware of that.

Felix Frankfurter:

Am I right in inferring from what you’ve said that the examiner dispatches the complaint against the subpoena promptly that the — there’s a quick disposition of these motions to revoke?

Norton J. Come:

Yes, Your Honor, there is.

Because he’s — he’s on the — on the spot.

He’s been holding the hearing.

Felix Frankfurter:

But that’s not the problem that that’s — if you had to go to the Board, if — if you sent them out here as against the scattered authority of the examiners, they sit all over the United States, don’t they?

Norton J. Come:

That is correct, they do.

William O. Douglas:

Is the issuance of the meeting — procedure for issuance involved here?

Norton J. Come:

It is not involved in this case, no, Your Honor.

William O. Douglas:

That’s all we had (Inaudible)

Norton J. Come:

That is all that you had in Cudahy except that issuance —

William O. Douglas:

Here, the Board and I think it fills out blanks of these and distributes them in — in the regional offices.

Norton J. Come:

That is correct.

William O. Douglas:

And that od course the (Inaudible) region administrator and if he thinks a good cause has been shown he grants them one, fills it in and that’s all there is to it unless —

Norton J. Come:

You get a petition to revoke.

William O. Douglas:

You have a petition to revoke and that’s where we are in this case.

Norton J. Come:

That’s where we are in this case.

However, I think that the procedure for issuance under Cudahy was not automatic so that you had an element of the decisional judgment involved at the issuance stage in Cudahy that you have all channeled into the petition to revoke stage —

William O. Douglas:

But there’s no issue in the problem here.

Norton J. Come:

No, there is no issue in this problem.

I thought in part of the deal, they decided that the subpoena was bad because it’s having an issue problem, am I wrong?

Norton J. Come:

That was the —

That — that was the ground that the Court of Appeals’ holding.

Norton J. Come:

No, Your Honor.

That was the ground of the District Court.

Oh, I’m sorry.

Norton J. Come:

The Court of Appeals put it solely on the delegation of the petition to revoke function.

Now, and as I’ve indicated, our first position is that we don’t have a delegation problem.

We’ve got a practical procedure for using assistance in discharge of a Board function similar to —

Felix Frankfurter:

I don’t — I must say that I don’t understand that.

The — the whole point of Judge Reeves was that the statute says the Board may and the Board means the Board, and you pass it on to somebody else.

Norton J. Come:

Well, we —

Felix Frankfurter:

Is that what delegation usually means?

Norton J. Come:

That is — well delegation, of course, is a matter of — of degree as the —

Felix Frankfurter:

Well, I’m not now questioning the merits of it.

Norton J. Come:

Yes, Your Honor.

Felix Frankfurter:

But when you say there’s a delegation problem, I don’t know what you mean by that.

Norton J. Come:

Well, it isn’t the kind of —

William O. Douglas:

(Voice Overlap) delegation of the — of the power of attempt to revocation stage I think that’s what stage — was that the issue stage, is that it?

Norton J. Come:

Oh, well, that is correct but what I meant by saying that it wasn’t a delegation problem, it wasn’t — it isn’t a situation where the Board has —

Which is —

Norton J. Come:

— divested itself of responsibility for the support in its action which is what you had in Cudahy and in Mohawk because there was no provision there for any review of the —

Felix Frankfurter:

Of the 10 years, a controlled delegation —

Norton J. Come:

It is a control —

Felix Frankfurter:

— a call to reserve your right to pass on it and therefore it’s merely — I mean somebody helped you.

Norton J. Come:

That is — that is correct.

Felix Frankfurter:

Yes, but — but Judge Reeves (Inaudible) that it makes a lot of difference whether I have to do it or whether I’ll let somebody else do it was merely human nature being what it is, 24 hours in a day on the whole that these appellants are going to decide.

Norton J. Come:

Well, with — although the —

Felix Frankfurter:

That’s what he’s talking about.

Norton J. Come:

That — that is correct.

I — I think that Judge Reeves did not fully appreciate perhaps the extent to which the Board had reserved a — a control here.

He — he viewed it as simply a question of whether the Board’s power was original or — or appellate under the —

William O. Douglas:

Is there anything in this legislative history if there was any life from —

Norton J. Come:

Well, there are things in the legislative history which hurt us and there are things which — which help us.

And I intended to — to get to that now and if I do not have sufficient time I’ll finish it in the — in the next case.

The two things that looked against delegation if this were completely a — a situation where the Board hadn’t reserved an open call are that Section 11 (1) and this is what Judge Reeves emphasized, draws a distinction between the subpoena power and the power to inspect and copy evidence and the power to administer oaths.

Felix Frankfurter:

(Inaudible) the powers of the Board itself and the power to these agents (Inaudible)

Norton J. Come:

That was the point I was trying to make, Your Honor, that in speaking about the subpoena power Section 11 (1) says the Board whereas in speaking about the power to inspect and the power to copy, it talks about the Board or its agents.

Now, if you stop there, I recognize that we have a difficult world to hold.

However, as Mohawk shows, the answer as to whether Congress intended the subpoena power to be delegated, depends upon the statute as a whole.

And we believe that on examining the other facts which are pointed out in our brief, they over balance the impression that you would get from just looking at Section 11 (1) of the Act.

Felix Frankfurter:

Is there any evidence that Congress at all thought about this?

Norton J. Come:

Sir?

Felix Frankfurter:

Except the word, that it used the word, the Board may?

Is there any evidence, any evidence one way or the other, that the Board, if the Congress had in mind the difference between a divestment of authority and a retention of positive delegated authority.

Norton J. Come:

No, there is no — there is no —

Felix Frankfurter:

So, why do we fuss around finding out what Congress intended?

That’s the crucial point.

Norton J. Come:

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible) that the specific language (Inaudible) that requires an action — an application for revocation of a subpoena to bring to Board is — still empowers the Board to delegate initial action on such motions, plans, the redress from the hearing officer or trial examiners actually is only by a discretionary review which the Board may or may not allow.

And usually doesn’t allowed and then say we will examine after adverse result upon that would deal from a whole case.

And that’s what I meant about these clowns scrambling the egg.

If the testimony should not have been produced and it — and it has been required and it’s done injury that can’t be undone later, can it?

Norton J. Come:

I ask —

Charles E. Whittaker:

And do you think that this idea of allowing the Board the discretionary review after and you knew after it’s required this hearing officer as the whole of the end of a new deal that’s your protection?

Norton J. Come:

I think that it is, Your Honor, and that Congress did not intend to require anything more.

I think that the Board, although this appeal is denominated a discretionary appeal in deciding whether or not the grantee of appeal does look for what the hearing officer has done to determine whether or not there has been a substantial claim of impropriety.

And that it’s not a situation where the party is given — given the brush-off.

When a serious problem is presented, an opportunity is — is available for a Board redress before the — the action has involved.

It seems to me that the question that Justice Frankfurter raised is very important.

Really the essence in your position is that administratively to construe the subpoena power as the Court of Appeals did is going to make it difficult for the Board to operate and yet we’ve got no figures here as to the magnitude of this problem.

Norton J. Come:

Well, and as I tried to point out one of the reasons is that it has worked this way so long.

I think that we can fairly speculate, though as to what would happen, given the volatile nature of a representation case and its widespread occurrences throughout the country.

Norton J. Come:

What would happen if every —

Then you might have to go to Congress about it.

They would carry it out (Inaudible)

Norton J. Come:

Well, that is — that is correct but as I intend to show later and as we show in our brief, Congress, it could fairly be said was aware of the way the Board has been utilizing its procedure through the years, because the Attorney General’s administrative committee made reference to how this worked under the Wagner Act.

Now, its report was published to the Senate document.

This has been in the Board’s rules since as far a back as 1939 and in Taft-Hartley, when Congress got around to amending the Act, it looked at the subpoena provision.

And although there is no indication that it discussed this particular problem, it — for the House Bill proposed to make some changes in the sense of depriving the Board of the use of subpoenas prior to hearings in unfair labor practice and appoints cases.

And they provided for this step procedure and then when the — the Senate Bill proposed no change in the Wagner Act language and then when it emerged from conference, the only thing that they did was to adopt the petition to revoke a procedure, the House Bill rejecting the elimination of the use of subpoenas prior to hearing in unfair labor practice cases.

And Senator Taft said, the only change that we’re making in existing law, insofar as subpoenas are concerned is to convert it from a one-step into a two-step procedure.

Now, granted that you don’t have a specific dealing with — with this — this problem, we certainly do have a situation where Congress was looking into the Board’s subpoena procedures and the only thing that they emerged with is a change which would convert it from a one-step into a two-step procedure.

So, we think that in — in the face of that, we have to a degree at least a legislative ratification on the Board’s subpoena procedure.

Felix Frankfurter:

But all you have to argue without pushing the argument too far is that you have here administrative practice of 30 years when it had begun to be challenged in the courts.

Norton J. Come:

I think not until Taft-Hartley as nearly as I can —

Felix Frankfurter:

And that’s after Tart-Hartley?

Norton J. Come:

Until after Taft-Hartley.

Felix Frankfurter:

Well, that’s better the opposition.

You have an administrative practice not challenging this Court that in itself is alleging the argument, the respondents can deal with it (Inaudible)

An administrative fact was brought to the attention of Congress, not nearly (Inaudible) to deny the attention (Inaudible)

But they were aware of it.

They can’t do anything about to relate the date to what statute the system that isn’t obvious, it’s merely argumentatively in question to the statute, why do we have that is the case and all the other things weren’t just necessary.

Norton J. Come:

I think that Your Honor’s statement is certainly more advisory.

Earl Warren:

Mr. Hamilton.

Theo Hamilton:

Mr. Chief Justice, may it please Your Honor.

It might be well to take just a moment to fill in some things in the beginning of this case.

The National Labor Relations Board entertained their petition against one corporation in Miami of a chain of intrastate stores.

This corporation appeared at the hearing.

It filed as a counsel for the Board has stated a motion to dismiss.

It filed also with that a sworn affidavit setting up in full the business of that corporation and showing that that corporation was not subject to the National Labor Relations Board’s jurisdiction as it was then fixed.

The Board then went out and brought in three or four corporations, whose employees had nothing to do with this case in order to attempt to prove jurisdiction.

Then the subpoenas were issued.

Theo Hamilton:

And those subpoenas require that these corporations bring for an entire year all of their records into the hearing, covering every sale and every purchase between the corporations for an entire year in other words, the complete business of the corporations for a year.

In the answer in the District Court, the respondents stated and it has never been contradicted that it would have taken at least eight weeks to get this data up for the Board.

Consequently, the corporation refused to abide by the subpoenas.

One of the principal reasons was that they were oppressed — oppressing the non-reasonable and the District Court so held.

There was some statement made with the hearing officer offered to permit counsel to — to have oral argument and to file a brief.

That’s true.

But the position of the respondents has always been that the hearing officer had no authority to either hear or rule upon those petitions to revoke.

We had asked the Board itself for our argument and the opportunity to file a brief, and the Board refused to permit that.

The Board merely sent our petition back and attempted to force us to hand it through the hearing officer.

Now, in this particular case, I would like for the Court to remember that we are dealing with a representation case, not an unfair labor practice case.

There’s an innate and fundamental difference between these two types of cases.

Generally speaking, representation cases and hearing officers whose authority is in question here are not covered by the Administrative Procedures Act at all.

Hearing officers are called trial examiners in unfair labor practice cases and they are covered by the Administrative Procedures Act.

Another thing to remember is that we are not concerned with the issuance of subpoenas.

We’re concerned with a much more important problem, the revocation of subpoenas.

There has been some question about what might happen hypothetically in the future, where this Court through the hearing officers had no authority to revoke subpoenas.

And I might point out that the first court that made a decision along these lines was in the National Labor Relations Board versus Pesante case which was decided in 1954 by the District Court of the Southern District of California.

And it doesn’t seem to me that there’s been very much disruption of the National Labor Relations Board procedures, although that case was entirely against the National Labor Relations Board on the very issues that are concerned here and it was not appealed.

Hugo L. Black:

(Inaudible)

Theo Hamilton:

I’m sorry.

William O. Douglas:

What’s the name of the case, Mr. Hamilton?

Theo Hamilton:

National Labor Relations Board versus Pesante.

It’s cited in the brief for the respondents.

The Board has —

William O. Douglas:

(Inaudible) that your strongest point is to find that the section whether it was at the Board or any of it (Inaudible) the issuance of subpoenas (Inaudible) was revoked.

Theo Hamilton:

Mr. Justice Douglas, the wording of the Act is that you say it is one of the most important features but I’m going to point out to the Court what happened in Congress prior to the time this Act was passed, which has a direct bearing on it.

I need not tell this Court anything about the importance of subpoena power merely mention the fact that the subpoena power is one of the most important, one of the most delicate, one which involves the most intricate problems of constitutional statutory law.

And we have that involved here, where a hearing officer tried to issue a subpoena requiring a private citizen to produce his books and records for a period, in this case, of an entire year.

The source of all subpoena power in a hearing officer arises from the National Labor Relations Act as amended.

I want to —

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

This Section was changed into material particulars in the Taft-Hartley Law.

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

Yes, sir.

In the Wagner Act, there was no provision for revocation of subpoenas.

It was not mentioned and the Act did not require the mandatory issuance of subpoenas.

Now, those two factors were introduced by Congress and Congress presumably knew at that time what the practice of the Board was, and yet Congress changed that Act in two material particulars, each of which materially changed the handling of subpoenas, not only the issuance but the revocation of subpoenas.

The Act has passed this, the Court knows in 1947.

Administrative practice prior to that time, I would say has no bearing on this because Congress knew what the Board was doing and changed it in these two material particulars.

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

11 (1) was the Act — was the Section of the Act when it is changed.

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

I believe it is, sir.

I’m not positive of that.

There’s certainly a —

Charles E. Whittaker:

(Voice Overlap)

Theo Hamilton:

— quotation there.

As I said, the entire source of authority for the powers of a hearing officer in reference to subpoenas must be contained in the National Labor Relations Act as amended.

It is our contention that the National Labor Relations Board does not have the authority under the Act to issue or promulgate a rule by which it can delegate power to revoke a subpoena to a hearing officer, whether it’s in the initial instance or in the final instance.

The Act itself clearly states that petitions for revocation shall be referred to the Board and it has no language such as it has in many other instances of the Board handling administrative matters through its agents.

The fundamental issue is whether a hearing officer in a representation case has authority to rule upon revocation of subpoenas.

As we see it, the — the validity or invalidity of the Board’s rules and regulations has to be determined primarily upon the authority that — that the hearing officer or the Board has in relation to revocation of subpoenas.

And since the Act itself clearly says that petitions to revoke shall be referred to the Board and it does not mention the possibility of any agent or agency or does not permit the — expressly permit the delegation of that power.

We say that the Board rules are (Inaudible) the Fifth Circuit so held.

We think that citizens, appearing before the National Labor Relations Board, employers appearing before the National Labor Relations Board, witnesses, should have a responsible agency to rule upon such an important matter.

We think that the Congress intended that a responsible agency rule upon revocation of subpoenas to wit, the Board itself.

Why shouldn’t the Board have the assistance, mechanical assistance if you (Inaudible) as an examiner or sit through the — this voluminous stuff and then come up with a report that’s going to list them on the burden of —

Theo Hamilton:

I might —

— things in the Board.

I know —

Theo Hamilton:

One of the — one of the Sections of the Act clearly shows the intent of Congress that the hearing officers should not have any extensive powers.

In the Taft-Hartley Law, the Labor Management Relations Act passed in 1947, Congress inserted the provision that hearing officers could not make even recommendations as to any issue that was to go to the Board.

A hearing officer is merely, in effect, a reporter.

He takes a record.

He is not bound by the rules of evidence and every hearing officer conducts a hearing, clearly states that before he starts in the hearing.

It is not going to be governed by the rules of evidence.

The hearing officers merely get a record.

They can’t rule on motions to dismiss.

They cannot rule on any issue of representation under the Act.

They have —

Felix Frankfurter:

They make a final report of it.

Theo Hamilton:

They make a report without a recommendation.

Felix Frankfurter:

Yes, but — but that means that they pass judgment.

That involves judgment, doesn’t it?

Theo Hamilton:

I — I

Felix Frankfurter:

(Voice Overlap) —

Theo Hamilton:

— would think that the Act —

Felix Frankfurter:

So, is the report merely (Inaudible) and merely a summary of the evidence?

Theo Hamilton:

It’s merely a summary without a recommendation.

That specifically prohibits —

Felix Frankfurter:

And no — and no characterization or no way —

Theo Hamilton:

No, sir.

Felix Frankfurter:

Just as a highly intelligent IBM machine?

Theo Hamilton:

Well —

Felix Frankfurter:

Or perhaps I shouldn’t say that in — of — in fairness to the IBM machine.[Laughter]

Theo Hamilton:

Mr. Justice Frankfurter, I think that the — the actual practice of the Board in using hearing officers and the wording of the Act shows clearly that no authority is intended to be vested in hearing officers.

Charles E. Whittaker:

But that doesn’t quite answer Mr. Justice’s Harlan’s question (Inaudible) permissible or these agents of the Board to do research for him as the reports says what they find?

Theo Hamilton:

I would say that it would be permissible, first, if the law permitted it and didn’t prohibit it.

I think that the law prohibits them from doing that in this case as to revocation of subpoenas.

Charles E. Whittaker:

And what was — you’re arguing that the law prohibits them from making any ruling.

Charles E. Whittaker:

You — you argue that the law prohibits them from making any research, or recommendation, or assistance.

Theo Hamilton:

The law specifically says that they cannot make a recommendation.

Felix Frankfurter:

— may I —

William O. Douglas:

In that — in the representation?

Theo Hamilton:

That’s right sir.

Felix Frankfurter:

May I intervene in the discussion between you and my Brother Whittaker.

What — that the system that you’re attacking doesn’t make of the hearing agent — officer merely a conduit for transmission of the objection that’s put to him.

He really passes it on it and in order to get rid of this examination, there must be affirmative steps of an appeal date, is that right?

So that he isn’t merely a — a secretary, or a clerk, were to summarize under the present system.

Theo Hamilton:

I’d say that the Board is trying to make him into a judicial officer.

Felix Frankfurter:

Well, then I don’t care what the Board is trying to make.

The existing system implies — not implies, under the existing system, motion for revocation is made to him and he revokes or doesn’t revoke, he — deny — a motion denied and that does not automatically go up to the Board but it can go up only by way of appeal.

Theo Hamilton:

Only by —

Felix Frankfurter:

Is that right?

Theo Hamilton:

Either — either by —

Felix Frankfurter:

(Inaudible) he isn’t on the assumption of the question.

He isn’t just a fellow who helps the Board to decide.

He decides but the Board may pull it back, is that right?

(Inaudible)

Theo Hamilton:

He — he —

Felix Frankfurter:

(Inaudible) present scheme is that he decide what if you want to get a review of it then you appeal like any other appeal.

Theo Hamilton:

That’s right sir.

Supposing —

Theo Hamilton:

Again, here’s the word —

Supposing you prevailed on the — all these things have to go to the Board, that the Board under the statute say well, except in the unusual case, we are not going to review the subpoenas except on final — final hearing, we’ll postpone the final one.

Theo Hamilton:

Well, as a matter of fact —

Review until the case comes up to us.

Theo Hamilton:

As a matter of fact, that’s what the Executive Secretary of the Board has exactly said in a letter, in which I was counsel, Hudson Pulp and Paper Corporation, 12-CA-32 and 33 on June the 9th, 1957 in which I appealed.

And I might say that in my 16 years of practice before the Board, I’ve never had an appeal granted although, I’ve requested in many times.

This one was incorrect.

Charles E. Whittaker:

Do you — do you mean an appeal upon a motion to revoke a subpoena?

Theo Hamilton:

An appeal from any kind of a ruling of a hearing officer or trial examiner, I have never had one granted by the Board.

Felix Frankfurter:

You mean — you mean they said we wouldn’t hear the appeal or turned —

Theo Hamilton:

Here’s what they said —

Felix Frankfurter:

Or they decided against your wish —

Theo Hamilton:

It’s — no.

Here’s what they said, that I — I did not furnish sufficient facts upon which they could decide the appeal.

Felix Frankfurter:

All right.

Theo Hamilton:

So they — and here’s what they wrote back.

Special appeal is only intended to provide for interlocutory appeal in those rare cases, where an aggrieved party can show quickly that a trial examiner’s ruling should not await the procedure under Section 102 (46).

But my question was, supposing you forget about the trial examiner, take him out of the picture and then the Board said, as they have said to you in this letter, where you don’t think that this is important to review at this stage, we’ll defer it until the matter is right.

Did they have that authority under the statute?

Theo Hamilton:

Are you asking whether they would have the authority under the —

If they would have the authority to do that under the statute if you eliminate the examiner’s step in this proceeding.

Theo Hamilton:

As a practical matter, I don’t know how they could operate in that way.

I think they would have to undertake the — the entertaining of the petition to revoke because the case couldn’t proceed unless the evidence were presumed — produced presumably.

And when a petition to revoke is filed, directly with the Board, the Board rules upon it.

If the Board or the other party can’t proceed without the evidence then of course the hearing is adjourned until the evidence is produced.

Yes.

William O. Douglas:

But I gather that your point is that this — this might be (Inaudible)

Theo Hamilton:

Well, in — in justice to the counsel for the Lewis case, I’d rather not state a position on that.

In this case, his position I’m sure will be that — that you can’t do in an unfair labor practice case either.

Now, that isn’t involved in this case.

William O. Douglas:

(Inaudible)

Theo Hamilton:

I think all of it’s devoted to that, sir.

I — I’m not concerned with, in this case, with the powers of a trial examiner because they’re entirely different.

One’s under the Administrative Procedures Act, the hearing officers in representation cases are not.

All of the cases of which I am aware have involved unfair labor practice cases —

And of course, we’ll have to know the power of the Board.

Theo Hamilton:

There’s only — there’s only two cases —

(Inaudible)

Theo Hamilton:

That’s right.

There are only two cases of which I am aware, in which the power of a hearing officer to revoke a subpoena has been involved and that’s the Pesante case in California and this case.

Only two cases have ever been decided insofar, as I know.

(Inaudible)

Theo Hamilton:

Yes, sir.

It was the same as this in that respect.

Felix Frankfurter:

May I — may I interrupt you —

Theo Hamilton:

Yes, sir.

Felix Frankfurter:

I think there wasn’t (Inaudible).

As I understand you to say the — wasn’t until (Inaudible) that the specific provision regarding revocation came into the statute.

Theo Hamilton:

That’s right.

Felix Frankfurter:

And — and you’ve further to say that therefore, the proceeding prior to that can’t have the weight of continuing administrative practice because there wasn’t any, is that right?

Theo Hamilton:

In a way —

Felix Frankfurter:

(Voice Overlap) —

Theo Hamilton:

Congress — Congress changed it.

Felix Frankfurter:

Yes.

Congress changed it.

Now, were there no — under the old — under — prior to Tart-Hartley, subpoenas were issued, and the way which they’ve been issued and where there are no protests or there are no motions for revocation before the administrative authority, other than the cases that came into the Court (Inaudible)

Theo Hamilton:

The practice —

Felix Frankfurter:

What’s happened in between — was it 1936 and 1935 and 1947.

Theo Hamilton:

Very little happened in — in relation to subpoenas and I think counsel for the Board will bear me out on that, very little happened.

And the Board —

William J. Brennan, Jr.:

— I think the Board’s regulations for example cover this subject?

Theo Hamilton:

You mean prior to Taft-Hartley?

William J. Brennan, Jr.:

Yes, regulations.

Theo Hamilton:

The regulations of the Board did not cover revocation of subpoenas prior to Taft —

William J. Brennan, Jr.:

No provision at all?

Theo Hamilton:

No provision at all.

Felix Frankfurter:

(Inaudible) one — one may draw some inferences, I don’t know how valid.

Felix Frankfurter:

One, that — that things were going the way things should go mostly in a — a sensible, easy way.

Officials discharged their responsibilities.

Lawyers were reasonably, as they seem to be, if I may say so, et cetera, et cetera.

So, that isn’t a terrible problem one way or the other, which I suspected is construed.

What’s all the excitement about?

Theo Hamilton:

It is this, Your Honor.

Congress —

Felix Frankfurter:

Apart from I — I’m — I’m with you.

If Congress had something, it’s not for me to say they shouldn’t have said it.

Theo Hamilton:

Well, I’d just wanted to go into the reasons for changing the subpoena procedures in Taft-Hartley.

It’s pretty well established.

In fact, the Board admits it in its brief that the Board was one of the administrative agencies, which was under severe criticism because they permitted their own counsel to have subpoenas and — and required everybody else to only get them on a showing of relevant — relevancy on a written application for it.

So, Congress undertook to correct that criticism and changed it so that they made it mandatory that a subpoena be issued when it’s requested.

Now, that became the law in 1947.

So there was a criticism against the Board and other administrative agencies in that respect.

Then in addition to that, Congress attempted to put in the hands of the Board itself a responsible agency the question of ruling — judicial ruling, if you please, on revocations of subpoenas.

Felix Frankfurter:

I noticed your self-restraint if that’s what it is.

If you don’t say it with — the — the Cudahy case is on the books, Congress presumably knew all about it, more than half of the members of it, two-thirds of the members of Congress have voted therefore, they read our opinions usually with great care and understanding and therefore they knew about Cudahy and applied, they adopted it.

Theo Hamilton:

I wouldn’t want to disappoint you, Mr. Justice Frankfurter.

I intended to say that before (Inaudible)[Laughter]

The — I would like to quote one statement from the Act relating to the hearing officers.”

Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto.”

That’s about as broad as it could be in cutting his power down to nothing.

William O. Douglas:

That’s in representation?

Theo Hamilton:

That’s in representation proceedings only.

Now, the Board’s practice prior to the passage of the Labor Management Relations Act, in 1947, was to permit hearing officers, and they were all called trial examiners in those days.

Both hearing officers in representation cases and hearing officers in unfair labor practice cases, was to permit them to rule in the first instance on applications for subpoenas and if they chose not to issue a subpoena, they didn’t issue.

Now, the practice of the Board since the Labor Management Relations Act has been exactly the same.

The Act of Congress has not changed it and practically affected all, and the only way we can get it changed is to have a court change it.

As a practical matter, a person who’s asked for a subpoena in a hearing, in a representation case hearing, is told by the hearing officer, I’ve got to issue it because it’s mandatory but I will revoke it and he tells the other party how to revoke it.

Theo Hamilton:

In the (Inaudible) case cited by the Board, I quoted from the transcript in that case in my brief, “The hearing officer told the person that was asking for a subpoena I’ve got to issue it but I will immediately entertain a motion to revoke it and grant it.”

And then the union’s representative who had asked for it says, “Now, let me understand clearly just what you want me to do.”

So, in — in practical effect, what the Board has been doing ever since the Labor Management Relations Act is just exactly as it’s been doing before.

What good does it do in any respect, insofar as the words and the mandate of Congress is concerned, to permit a hearing officer, in a representation case, instead of saying, I will issue the subpoena.

I will issue it but I will immediately revoke it.

It subverts the intent of Congress entirely in respect to the revocation of subpoenas.

Charles E. Whittaker:

Well, you get that intent from the words in the statute do you, Section 11 (1)?

Theo Hamilton:

The intent of?

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

That and the committee reports.

And at this time I will point out the committee reports, which have a direct bearing on it.

First, again, I want to point out that the words of the Act aren’t ambiguous.

They are just as clear as the English language can make them.

Congress knew what the — the practice in the procedure.

The Board wasn’t just as obviously intended to change it so, no amount of speculation, no concern of the Board as to its convenience.

No question as to what is wise or expedience ought to be used to change that plan and on unambiguous meaning, but we can go further than that to show what Congress meant.

House resolution —

William J. Brennan, Jr.:

Well, (Voice Overlap) — and are you suggesting — was there any evidence of the abuse that you’ve described namely, of — it couldn’t have been the Court until this provision got under Taft-Hartley Act as I get it.

But you should now describe for us is that the hearers understand that they have no choice but to issue the subpoena upon request but promptly they revoke it so that the requirement that they issue it becomes meaningless and the requirement as you see it under 11 (1), that the issue of revocation will be determined only by the Board as they come in.

Is that it?

Theo Hamilton:

That’s correct, sir.

Only by the Board or by a panel of the Board.

William J. Brennan, Jr.:

And prior you say, prior to Taft-Hartley, the practice was, in the first place, the examiner would or would not issue the subpoena as you saw fit, right?

Theo Hamilton:

Yes.

William J. Brennan, Jr.:

And secondly, if he did issue it, he might also revoke it, is that it?

Prior to Taft-Hartley?

Theo Hamilton:

I — I think that the general practice and I understand corrected by the general counsel of the Board, a general practice was that they decided in the first instance whether one would be issued or not and they have no procedure for revocation.

William J. Brennan, Jr.:

I see.

Once it was issued, that was it?

Theo Hamilton:

Yes, sir.

William J. Brennan, Jr.:

And then — then what — what — what could a party do?

Would they have to obey the subpoena or would — could they await an the enforcement proceeding then?

Theo Hamilton:

Well, if — if we — well remember, we didn’t have an Administrative Procedures Act to make any differentiation between these two officers and he would just have to fall back on general law.

Frankly, I did not — I have not ever had a case involving subpoenas until after the Taft-Hartley Law.

So, in my present experience is nil on that.

And I know of — I have no personal knowledge of other cases involving subpoenas that’s prior to Taft-Hartley.

Felix Frankfurter:

Are you also going to argue that it seems the statute says the Board or members thereof that they had in mind not to put too heavy a burden on the Board of the collectivity?

Theo Hamilton:

I think they intended to permit the Board to handle matters of this kind with a three-member panel as you know they now do and I think that would — I think it has very greatly helped the Board in the handling of its cases.

House Resolution 3020, has a reason to pass by the House, contained a provision about revocation stating that the person subpoenaed might petition the Board and I quote, “Or its duly authorized agents or agent to revoke the subpoena.”

And I quote again, “If in its, his or their opinion, the subpoena did not meet the requirements of the Act.”

Now, the House conference report 510 on House Resolution 3020 contained wording of the present law, leaving out references to the agents of the Board.

And the Board’s counsel has stated here that Senator Taft made a statement.

They only intended to change the Act in one particular in his brief says and I quote from page 47, “As stated by Senator Taft, Section 11 authorizes the Board to conduct hearings and investigations in the subpoena witnesses.

This Section has not changed in the Senate amendment and was modified by the countries in only one respect.

Now, what he says is true but what he doesn’t tell you is that that’s the Senate amendment, not the Act that became law.

Because that changed it in two respects, not only the filing of mandatory issuance of subpoenas but as to revocation of subpoenas.

Do you think this matter is affected at all by the fact that before the subpoena can be enforced, the District Court has to take a look at it?

Theo Hamilton:

I think, of course, that it is.

I think that a court ought always to be permitted to rule upon administrative agencies, prior rulings in matters of this kind.

There’s no danger of contempt here or anything of that kind?

As there would — might be in a case —

Theo Hamilton:

The Board —

— of the ordinary subpoena.

Theo Hamilton:

The Board always alleges, I think, it certainly has in this case, that the respondents have been guilty of contumacious conduct.

Now, they have not pursued that.

They have a rule on contumacious conduct but I don’t believe that the rule itself would cover that but they —

Charles E. Whittaker:

(Inaudible) acted upon this?

Theo Hamilton:

The Board always alleges that it constitutes contumacious conduct but I don’t —

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

Sir?

Charles E. Whittaker:

(Inaudible)

Theo Hamilton:

[Laughs] And as I said, they’ve never tried to follow that up but they always alleged it.

Charles E. Whittaker:

(Inaudible)

It’s like cruelty and under cruelty.

Felix Frankfurter:

[Laughs]

Theo Hamilton:

I don’t — I don’t believe that there’d be any phases for pursuing it.

But I think that probably that’s a reason that they have.

Now, Congress could have made expressed provisions for delegation of authority if it wished to do so.

It did in the case of the Securities and Exchange Commission, the Federal Power Commission, the Tariff Commission, the U.S. —

Felix Frankfurter:

You mean —

Theo Hamilton:

— Maritime Commission.

Felix Frankfurter:

You mean all those acts had specific meaning?

Theo Hamilton:

Have — have specific powers to permit the delegation of other power.

Felix Frankfurter:

Did all those — were those provisions in the original Act or did they come up —

Theo Hamilton:

I’m not sure, sir, whether they were in the original Act —

Felix Frankfurter:

(Voice Overlap)

— came after Cudahy is I think.

I’m not sure.

Theo Hamilton:

I got this information from a Circuit Court of Appeals case.

Now, the Board has — not dwell too much on the Cudahy case.

The Cudahy case we think is ruling here.

The Court considered a — a case very similar on the law.

The Act in Congress had a prior history exactly the same as this Act and we think that the reasoning of the Court there should apply here.

I would like to make just one statement —

Earl Warren:

It should be brief because your time is up.

Theo Hamilton:

Thank you, sir.

I’d appreciate making one more statement.

The Board has talked about exhaustion of remedies.

I merely want to point out that the rule of the Board does not require a person to use that appeal.

It’s merely a permission to ask for permission to appeal and therefore the administrative exhaustion of — of remedies does not apply in this case.

Earl Warren:

Very well.