The opinion of the court was delivered by: CLARY
Respondent, Thomas Battes, was served with a subpoena on June 8, 1961, at the instance of the Commissioner, Bureau of Labor-Management Reports, United States Department of Labor, ordering him to appear before Thomas F. McBride of the Department of Justice to testify 'in the matter of an investigation by the Department of Justice involving a determination whether any person has violated or is about to violate any provision of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 401 et seq., except Title I or amendments made by the Act to other statutes.'
Respondent appeared on June 13, 1961, the return day of the subpoena, but refused to testify and raised through counsel objections to the subpoena and the right of the Department of Justice to proceed with the investigation. Subsequently, the Government petitioned this Court on behalf of the Secretary of Labor for an order to compel respondent to appear before the Secretary of Labor, or such representative as he may designate, to give testimony in accordance with the subpoena.
The petition averred, inter alia, that the Secretary of Labor is empowered by virtue of § 601(a) of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter referred to as the 'Act') to investigate, enter and inspect records and accounts to determine whether the Act has been or will be violated; that under § 601(b) of the Act the provisions of §§ 9 and 10 of the Federal Trade Commission Act of 1914, as amended (15 U.S.C.A. §§ 49 and 50), relating to the attendance of witnesses, are made applicable to the jurisdiction of the Secretary of Labor or any officers designated by him; and, that the Secretary has the power to issue a subpoena requiring the attendance and testimony of witnesses relating to any matter under investigation. It was further averred that under § 607 of the Act the Secretary of Labor may utilize the facilities or employees of any department or agency of the United States to assist him in the performance of his functions under the Act.
Pursuant to the petition the Court ordered respondent to show cause why an order should not issue requiring him to appear and testify. A hearing was held on July 20th, 1961, at which time the parties stipulated on the record that the facts as outlined were not in dispute, and that the exhibits attached to the petition and to petitioner's brief could be considered by the Court in disposing of this matter with the same force and effect as if they had been formally received in evidence.
Respondent's principal objections involve §§ 601 and 607 of the Act. Section 601 (29 U.S.C.A. § 521) provides:
'(a) The Secretary shall have power when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this chapter (except subchapter II of this chapter) to make an investigation and in connection therewith he may enter such places and inspect such records and accounts and question such persons as he may deem necessary to enable him to determine the facts relative thereto. The Secretary may report to interested persons or officials concerning the facts required to be shown in any report required by this chapter and concerning the reasons for failure or refusal to file such a report or any other matter which he deems to be appropriate as a result of such an investigation.'
'(b) For the purpose of any investigation provided for in this chapter, the provisions of Sections 49 and 50 of Title 15
(relating to the attendance of witnesses and the production of books, papers, and documents), are made applicable to the jurisdiction, powers, and duties of the Secretary or any officers designated by him.'
Section 607 (29 U.S.C.A. § 527) provides:
'In order to avoid unnecessary expense and duplication of functions among Government agencies, the Secretary may make such arrangements or agreements for cooperation or mutual assistance in the performance of his functions under this chapter and the functions of any such agency as he may find to be practicable and consistent with law. The Secretary may utilize the facilities or services of any department, agency, or establishment of the United States or of any State or political subdivision of a State, including the services of any of its employees, with the lawful consent of such department, agency, or establishment; and each department, agency, or establishment of the United States is authorized and directed to cooperate with the Secretary and, to the extent permitted by law, to provide such information and facilities as he may request for his assistance in the performance of his functions under this chapter. The Attorney General or his representative shall receive from the Secretary for appropriate action such evidence developed in the performance of his functions under this chapter as may be found to warrant consideration for criminal prosecution under the provisions of this chapter or other Federal Law.'
On September 24, 1959, the Secretary of Labor issued General Order No. 102, Federal Register, Vol. 24, No. 195, p. 8081, which established the Bureau of Labor-Management Reports and created the office of Commissioner. The Commissioner was empowered, inter alia, to institute investigations with respect to violations of the Act and to issue orders to compel the attendance and testimony of witnesses.
Respondent's first contention is that this General Order is a nullity because the Act does not authorize the Secretary of Labor to delegate either his investigatory function or his power to subpoena witnesses. Section 601(a), contends respondent, authorizes the Secretary alone to perform these functions, and § 601(b) merely spells out the procedure he must follow. In order to vitiate the effect of the phrase, 'the Secretary or any officers designated by jim', he contends that § 601(a) and § 601(b) must be read independently and cannot be interrelated. Reading § 601(b) without reference to § 601(a), he concludes that § 601(b) creates no powers and that the legal effect of the phrase is meaningless.
This Court cannot subscribe to such an interpretation. Section 601(a) clearly authorizes the Secretary to initiate investigations when he deems it necessary. Section 601(b), which directly supplements 601(a) and which must be read together with 601(a), provides the manner in which such investigations are to be carried out. The plain meaning of 601(b) is that the Secretary may designate officers to conduct investigations that he himself is authorized to conduct, and further, it arms these officers by the application of Sections 9 and 10 of the Federal Trade Commission Act with the power to issue subpoenas.
If this Court were to accept respondent's strained interpretation, these provisions would actually be nullities. This was certainly not the intent of the Congress. Because the language employed is unequivocal, respondent's suggestion that this was a legislative oversight cannot be accepted. In 601 of the Act Congress explicitly gave the Secretary of Labor the authority to delegate to subordinate officers both the power to conduct investigations and the power to issue subpoenas.
Cudahy Packing Co. of Louisiana v. Holland, 1942, 315 U.S. 357, 788, 62 S. Ct. 651, 86 L. Ed. 895, relied upon by respondent to support his position, does not alter this opinion. Cudahy is distinguishable from the instant case on several grounds. The question involved in that case was whether the Administrator of the Wage and Hour Division of the Department of Labor had the authority to delegate his statutory power to sign and issue a subpoena duces tecum to a Regional Director. In a 5-4 decision the Supreme Court held that no such authority was granted in the Fair Labor Standards Act, 29 U.S.C.A. 201 et seq. The legislative history of the Fair Labor Standards Act showed that a provision granting authority to delegate the subpoena power had been eliminated when the bill was in Conference. However, the ...