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decided: June 9, 1958.



Warren, Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan, Whittaker

Author: Douglas

[ 357 U.S. Page 2]

 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

[ 357 U.S. Page 3]

     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

[ 357 U.S. Page 4]

     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

[ 357 U.S. Page 5]

     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

[ 357 U.S. Page 6]

     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 Board on a motion to revoke is not required, the Board defers its ruling until the entire case is transferred to it in normal course.*fn9

Section 11 (1) of the Act, as noted,*fn10 gives a person served with a subpoena duces tecum the right to "petition the Board to revoke"; and that section provides that

[ 357 U.S. Page 7]

     "the Board shall revoke . . . such subpoena if in its opinion" the statutory requirements are not satisfied. The limited nature of the delegated authority distinguishes the case from Cudahy Packing Co. v. Holland, 315 U.S. 357, and Fleming v. Mohawk Wrecking Co., 331 U.S. 111, where the person endowed with the power to issue subpoenas delegated the function to another. While there is delegation here, the ultimate decision on a motion to revoke is reserved to the Board, not to a subordinate. All that the Board has delegated is the preliminary ruling on the motion to revoke. It retains the final decision on the merits. One who is aggrieved by the ruling of the regional director or hearing officer can get the Board's ruling. The fact that special permission of the Board is required for the appeal*fn11 is not important. Motion for leave to appeal is the method of showing that a substantial question is raised concerning the validity of the subordinate's ruling. If the Board denies leave, it has decided that no substantial question is presented. We think that no more is required of it under the statutory system embodied in § 11. No matter how strict or stubborn the statutory requirement may be, the law does not "preclude practicable administrative procedure in obtaining the aid of assistants in the department." See Morgan v. United States, 298 U.S. 468, 481; Eagles v. Samuels, 329 U.S. 304, 315, 316. It is not of help to say that on some matters the Board has original jurisdiction, on others appellate jurisdiction. We are dealing with a matter on which the Board has the final say. As in the case of many other matters coming before hearing examiners, it merely delegates the right to make a preliminary ruling. Much of the work of the Board necessarily has to be done through agents. Section 5 of the Act provides that "The Board may, by one or more

[ 357 U.S. Page 8]

     of its members or by such agents or agencies as it may designate, prosecute any inquiry necessary to its functions in any part of the United States." As we have seen,*fn12 hearings on these representation cases "may be conducted by an officer or employee of the regional office." Certainly preliminary rulings on subpoena questions are as much in the purview of a hearing officer as his rulings on evidence and the myriad of questions daily presented to him. He does not, of course, have the final word. Ultimate decision on the merits of all the issues coming before him is left to the Board. That is true of motions to revoke subpoenas duces tecum, as well as other issues of law and fact. That degree of delegation seems to us wholly permissible under this statutory system. We need not go further and consider the legality of the more complete type of delegation to which most of the argument in the case has been directed.

The judgment is reversed and the cause is remanded to the Court of Appeals for proceedings in conformity with this opinion.



234 F.2d 427, reversed and cause remanded.


I concur in the Court's decision, but desire briefly to state my reasons.

Although in a strict legal sense the Board has not delegated its duty under § 11 (1) to rule upon motions to revoke subpoenas duces tecum, but has, by § 102.58 (c) of its Rules and Regulations, merely given to its regional directors, hearing officers or examiners the task of making preliminary or interim rulings on such motions -- recognizing, in § 102.57 (c) of its Rules and Regulations, its statutory duty finally to rule upon such motions either upon an immediate, though discretionary, interlocutory appeal or upon review of the completed record in the

[ 357 U.S. Page 9]

     course of its decision of the whole proceeding -- yet, as a practical matter, neither such discretionary appeal nor review of the completed record affords any certainty of the protection specified by Congress, in § 11 (1), to be given by the Board against an improper or oppressive subpoena duces tecum. For, notwithstanding its duty under § 11 (1), the Board, under § 102.57 (c) of its Rules and Regulations, may refuse to allow such interlocutory appeal and, hence, refuse to rule upon the motion to revoke in advance of the time fixed by such subpoena for compliance. It is obvious that, after the illegal or oppressive subpoena has been enforced, the Board on its review of the completed record can no more relieve the consummated oppression than it can unring a bell. But, as the Court's opinion points out, Congress has provided, in § 11 (2), that the Board's subpoenas may be enforced only by a United States District Court, and thus an effective means exists to revoke an illegal or oppressive subpoena duces tecum before the damage has been done. For this practical reason I accept the legalisms of the Board's non-delegation argument and concur in the decision of the Court.

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