National Labor Relations Board v. Duval Jewelry Company of Miami/Concurrence Whittaker

Mr. Justice WHITTAKER, concurring.

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 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 nondelegation argument and concur in the decision of the Court.