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Special and Miscellaneous Litigation 173 and quality of the investigation required will vary from case to case. The district court had found that the Regional Director had violated section 101.18 of the Board's Statements of Procedure s by refusing to check the union's authorization cards against a list of the company's employees to determine whether the union had made a sufficient showing of interest. However, the court of appeals emphasized that a showing of interest is not a jurisdictional prerequisite to the Board's direction of an election, and that the statement of procedure is simply a guideline for Board personnel, rather than a set of formal rules and regulations binding the Board to a particular form of prehearing investigation in every case. Whether there is reasonable cause to believe that a question of representation exists is essentially a factual issue to be resolved for each case. In this case, the court held, the facts before the regional director were not so plainly insubstantial that he could not reasonably conclude that further inquiry through an adversary hearing into the issues posed by the petition was warranted, and his action in ordering such a hearing was not clearly in defiance of the Act. In the other two cases, s employers sought to enjoin the Board from conducting hearings on representation petitions on the ground that the unions lacked a valid showing of interest because their authorization cards had been solicited by supervisors. The court in each case found that any issues of fact relevant to the issue of whether a question of representation existed could be raised at the hearing ; and that no purpose would be served by allowing the parties to obtain review of the Board's decision to hold a hearing, since the expenses incident to the hearing did not constitute irreparable injury. In dismissing the complaints, the courts pointed out that the requirement of investigation was designed to limit the Board's power to reject petitions rather than to give opponents of petitions a right to have them rejected. B. Subpena Rights of Private Parties 1. Availability of Investigatory Subpenas In the GEICO and Royal Insurance cases, ls the employers also sought to compel the Board to issue subpenas so that it could '29 C.F.R. 1101.18. 9 Government Employees Insurance Co. v. McLeod, 69 LRRM 2186, 58 LC 112,872 (D.C.N.Y.) Royal Insurance Co., Ltd v. Kaynard, 69 LRRM 2430, 58 LC 112,968 (D.C.N.Y.). 10Id.
174 Thirty-fourth Annual Report of the National Labor Relations Board obtain additional evidence relevant to the issue of the validity of the union's showing of interest. The employers relied on section 11(1) of the Act, which provides that, upon application by any party, the Board shall forthwith issue supenas requiring the attendance and testimony of witnesses or the production of any evidence in the proceeding or investigation requested in the application. However, the courts held that the employer could not be considered a party for purposes of the investigation required by section 9(c) (1) of the Act ; the employer could participate only as a source of relevant information. Only when an adversary hearing was held would the employer have a right to participate. Moreover, the courts pointed out, requiring the Board to issue subpenas directed to employees, as the employer sought in GEICO, might have the effect of depriving the employees of the secrecy of their choice and subject them to possible intimidation in violation of their rights guaranteed under section 7 of the Act.11 In another case, 12 an employer against whom unfair labor practice charges had been filed sought review of the Board's refusal to issue it subpenas during the precomplaint investigatory stage of the proceedings. The court held that the case did not fall within the doctrine of Leedom v. Kyne, 13 since the employer would have ample opportunity to obtain judicial review of the Board's refusal to grant subpenas if a complaint was issued. Moreover, the Board's action was consistent with section 11(1) of the Act, since that section entitles only a party to "proceedings" to subpena witnesses and evidence, and there are no "proceedings" until a formal complaint has issued. The court based this interpretation of section 11(1) on the legislative history of the Taft-Hartley Act, which indicated that Congress approved the Board's prior practice of not allowing private subpenas during investigations, and on the general statutory scheme, under which the General Counsel's responsibility for investigating unfair labor practice charges, and his decision whether to issue a complaint, are unreviewable, but once a complaint is issued, the respondent may, under appropriate circumstances, require a bill of particulars, compel the production of witnesses In GEICO, the employer also sought certain information under the Freedom of Information Act (5 U.S.C. §552(a) (3)). The court held that the employer was not yet entitled to judicial enforcement of whatever rights it had, since it had not requested the information in question from the Board's Executive Secretary or General Counsel, as required by the Board's Rules and Regulations, 29 CF R. §102.117(c). " Schrementt Bros. v. McCulloch, 69 LRRM 2233, 58 LC 1112,928 (D.G.I11.). " See fn. 1, supra, and accompanying text.
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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1 8 Thirty-fourth Annual Report of
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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V Representation Cases The Act requ
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VI Unfair Labor Practices The Board
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100 Thirty-fourth Annual Report of
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VIII Enforcement Litigation Board o
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Participating unions AFL-CIO v. AFL
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Table 20.—Injunction Litigation U
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