CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan, Whittaker
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This controversy grows out of an effort of a union to obtain a representation election*fn1 among the employees of respondent, Duval Jewelry Co., a retail store. The latter moved to dismiss on the ground that its interstate operations were inadequate to meet the jurisdictional
tests of the Act. Five subpoenas duces tecum and one subpoena ad testificandum were issued.*fn2 The persons to whom the subpoenas were directed moved before both the Board and the hearing officer to revoke the subpoenas.*fn3
The Board refused to entertain the motions to revoke on the grounds that those motions, under its Rules and Regulations,*fn4 require an initial ruling by the hearing officer. That officer after granting an opportunity for a hearing denied the motions to revoke. That ruling was not appealed; and respondents refused to comply with the subpoenas. Thereupon the Board instituted this proceeding in the District Court for enforcement of them.*fn5
The District Court quashed the subpoenas holding them unreasonable and oppressive. It also held they had been invalidity issued. 141 F.Supp. 860. The Court of Appeals reversed the District Court on the subpoena ad testificandum ; and no question concerning it is before us. But it upheld the District Court as respects the subpoenas duces tecum, on the ground that the Board alone could rule on motions to revoke subpoenas duces tecum in representation proceedings. 243 F.2d 427. The case is here on a writ of certiorari, 355 U.S. 809, which we granted because of a conflict among the Circuits. See, e. g., Labor Board v. Lewis, 249 F.2d 832, 836-837; Labor Board v. Gunaca, 135 F.Supp. 790, aff'd 230 F.2d 542.
There is a degree of delegation of authority in connection with a motion to revoke a subpoena duces tecum. The Board's Rules and Regulations provide that a motion to revoke is first heard by the regional director or by the hearing officer.*fn6 But the ruling of that subordinate official is not final. Machinery is provided in the Rules for an appeal from that ruling to the Board.*fn7
We are advised that in practice the aggrieved party asks the Board for leave to appeal, stating the grounds relied upon. The Board in deciding whether to grant the appeal considers the merits. If no substantial question has been raised, leave to appeal is denied. If a substantial question is presented, leave to appeal is granted. Sometimes when leave to appeal is granted, action is forthwith taken on the merits, the ruling of the hearing officer being reversed or modified.*fn8 Or where an immediate ruling by the ...