1 - National Labor Relations Board

Special and Miscellaneous Litigation 175
or evidence, and have access to prehearing statements given to
a Board investigator by witnesses who have testified.'4
2. Enforcement of Subpenas
In Wilmot v. Doyle, 15 a union and an employer against whom
unfair labor practice charges were pending secured a , subpena
ordering a Board agent to produce certain information. When
the Board agent refused to obey the subpena on grounds that
the Board's rules prohibited his production of the information,
a petition to enforce it was filed in the district court in the
name of the trial examiner "on relation of" the union and the
employer. The district court enforced the subpena and, when
the Board agent refused to comply therewith, adjudged him in
contempt. On appeal, the Ninth Circuit reversed both the order
enforcing the subpena and the order adjudging the Board agent
in contempt, on the ground that the district court had no jurisdiction
to enforce the subpena. The court pointed out that section
11(2) of the Act gives district courts jurisdiction to enforce
subpenas only "upon application by the Board" and not on application
by private litigants. The fact that the petition was in
the name of the trial examiner was insufficient, since the Board's
Rules and Regulations give only the General Counsel, not the
trial examiner, authority to institute suits in the district court
on relation of private parties. The court noted that if private
litigants were free to petition district courts for enforcement of
subpenas, the courts might be flooded with such applications,
since neither the Board nor the courts would have any control
over such filings, which would be used as delaying tactics. In
its view, whether to produce the documents sought by the subpena
and whether to petition for enforcement of the subpena
were matters within the General Counsel's discretion ; if that
discretion was abused, the private litigant had an adequate remedy
in the review which would be provided on a petition to
enforce or set aside the Board's final order under section 10(e)
and (f) of the Act.
C. Enjoining State Action
In two court cases decided during the year, injunctions against
proceedings in State courts were sought. In one case, 1° the Board
" The em ployer's request for a temporary injunction pending appeal was denied, since there
was no showing of irreparable harm nor a significant likelihood that the employer would prevail
on appeal.
'4O3 F.2d 811 (C.A. 5).
16 Tyree v. Edwards, 287 F.Supp. 589 (D.0 Alaska).