Olms interpretative Manual

SUBPOENAPOWERS

610.001LMRDA, SECTION601(b)

For the purpose of any investigation provided for in this Act, the provisions of sections 9and 10 (relating to the attendance of witnesses and the production of books, papers, anddocuments)oftheFederalTrade Commission ActofSeptember16, 1914,asamended(15U.S.C.49, 50).1/are hereby made applicable to the jurisdiction, powers, and duties of the Secretary oranyofficersdesignated by him. (Underlining supplied.)

1/FEDERALTRADE COMMISSIONACT
(Sections9and10)


Section9:That forthepurposes ofthis Actthecommission, orits dulyauthorizedagent oragents,shall at all reasonable times have access to, for the purpose of examination, and the right to copyany documentary evidence of any corporation being investigated or proceeded against; and thecommission shall have power to require by subpoena the attendance and testimony of witnessesandthe productionofallsuch documentaryevidence relatingto anymatter underinvestigation.
Any member of the commission may sign subpoenas, and members and examiners of thecommissionmayadministeroathsandaffirmations,examinewitnesses,andreceiveevidence.

Such attendance of witnesses, and the production of such documentary evidence, may berequired from any place in the United States, at any designated place of hearing. And in case ofdisobediencetoasubpoena thecommission may invokethe aidofanycourt oftheUnited Statesin requiring the attendance and testimony of witnesses and the production of documentaryevidence.

Any of the district courts of the United States within the jurisdiction of which such inquiryiscarried onmay,in caseof contumacyor refusalto obeyasubpoenaissued toany corporationorother person, issue an order requiring such corporation or other person to appear before thecommission, or to produce documentary if so ordered, or to give evidence touching the matter inquestion; and any failure to obey such order of the court may be punished by such court ascontemptthereof.

Upon the application of the Attorney General of the United States at the request of thecommission, the district courts of the United States shall have jurisdiction to issue writs ofmandamuscommandinganypersonor corporationtocomplywiththe provisionsofthisActoranyorder ofthe commission made in pursuance thereof.

The commission may order testimony to be taken by deposition in any proceeding orinvestigation pending under this Act at any stage of such proceeding or investigation. Suchdepositions may be taken before any person designated by the Commission and having power toadministeroaths.Such testimonyshallbe reducedtowriting bythepersontakingthedeposition,or under his direction, and shall then be subscribed by the deponent. Any person may becompelled to appear and depose and to produce documentary evidence in the same manner aswitnessesmaybe compelledto appearand testifyand producedocumentary evidencebefore the

Commissionashereinbeforeprovided.

Witnesses summoned before the Commission shall be paid the same fees and mileage thatare paid witnesses in the courts of the United States and witnesses whose depositions are taken,and the persons taking the same shall severally be entitled to the same fees as are paid for likeservicesinthe courts ofthe United States.

Section 10: Any person who shall neglect or refuse to attend and testify, or to answer any lawfulinquiry, or to produce documentary evidence, if in his power to do so, in obedience to thesubpoena or lawful requirement of the commission, shall be guilty of an offense and uponconvictionthereof by acourt ofcompetentjurisdiction shallbe punishedbya fine of not lessthan
$1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fineandimprisonment.

Any person who shall willfully make, or cause to be made, any false entry or statement offact in any report required to be made under this Act, or who shall willfully make, or cause to bemade, any false entry in any account, record, or memorandum kept by any corporation subject tothis Act, or who shall willfully neglect or fail to make or cause to be made, full, true, and correctentries in such accounts, records, or memoranda of all facts and transactions appertaining to thebusiness of such corporation, or who shall willfully remove out of the jurisdiction of the UnitedStates,orwillfullymutilate,alter,orbyanyothermeansfalsifyanydocumentaryevidenceofsuch corporation, or who shall willfully refuse to submit to the commission or to any of itsauthorized agents, for the purpose of inspection and taking copies, any documentary evidence ofsuch corruption in his possession or within his control, shall be deemed guilty of any offenseagainsttheUnitedStates, andshallbesubject, uponconviction inany courtof theUnited Statesofcompetent jurisdiction, to a fine of not less than $1,000 nor more than $5,000 or to imprisonmentfora termof not morethan three years, or tobothsuch fine and imprisonment.

(TechnicalRevisions:Dec. 2016)

610.005NOTRESTRICTEDTOADMINISTRATIVESUBPOENAS

A union refused to comply with a subpoena issued by the Secretary calling for theproduction of certain records on the grounds that the provisions of the Federal Trade CommissionAct, which are incorporated by reference in LMRDA and are the source of the Secretary’ssubpoena power, permit only administrative subpoenas directed to a corporation beinginvestigatedor proceeded against.

In an action to enforce the subpoena the court rejected this contention on the basis that it isan incorrect interpretation of the FTC Act. While the power of success and copyingregarding acorporate defendant in an FTC proceeding is limited as the union contends, the subpoena powerisnotso restricted.

Local 57, International Union of Operating Engineersv. Wirtz, 326 F.2d 467, 55 LRRM 2105 (1stCir.1964).

(TechnicalRevisions:Dec. 2016),

610.015SCOPE

In a summary proceeding the Federal Trade Commission applied to the U.S. District Courtforan orderto compel fivecorporate entitiesandtheir duly authorizedrepresentativestoappear,

testify and produce documentary evidence in an ex parte investigation being conducted by theCommission. The court held that under authority of section 9 of the Federal Trade CommissionAct,theCommissionisempoweredtoremovesubpoenaedbooksandrecordsfromPhiladelphia,Pa., to Washington, D.C., and may retain them for a period of thirty days for the purpose ofreproduction, if such removal and retention will not hinder the corporations’ daily businessoperations.


FederalTradeCommissionv.Standard American,Inc.,195F.Supp.801 (E.D.Pa.1961),aff’d,306F. 2d 231 (3d Cir. 1962).

NOTE:

In view of the fact that section 9 of the Federal Trade Commission Act is incorporated byreference in section 601(b) of the LMRDA, the effect of this decision is that the same authority isapplicable to the Secretary of Labor. Therefore, the Department under its subpoena power maytakeinto itscompletecustody booksand recordsproduced in responsetoa subpoenaducestecumand may remove them from their place of production and retain them for a reasonable period oftime for the purpose of reproduction, provided such retention and removal will not interrupt theorganization’sdaily business operations.

(TechnicalRevisions:Dec. 2016 and Dec. 2021)

610.100ANY“PERSON”

Section601(a)empowerstheSecretaryofLabortosubpoenaanypersonhedeemsnecessary to determine whether a violation of LMRDA has occurred, thereby granting theSecretary authority to question persons other than those directly charged with duties andresponsibilitiesunderthe Act.

Goldbergv.Battles, 196F.Supp. 749, 48LRRM 2820 (E.D. Pa.1961), aff’d, 299F.2d 937, 49
LRRM2834 (3dCir. 1962), cert. denied, 71U.S. 817,51 LRRM2222 (1962).

(TechnicalRevisions:Dec. 2016)

610.105UNIONAS“PERSON”

A local union refused to comply with a subpoena issued by the Secretary of Labor infurtheranceofaninvestigation undersection601ofLMRDAto producecertainrecords.Thedistrict court granted an order enforcing the subpoena and requiring the union to produce therecords.Theunion appealed tothis court.

Theprincipalunioncontentions onappealwere:

The subpoena was “misdirected” because it was addressed to an unincorporated voluntaryassociationandthiscaseis uniquebecauseastatutoryimmunity provisionisinvolvedandunlessthesubpoena is directedto a naturalpersontheintended immunitywillnot be achieved.

Thecourtrejected thiscontention stating:

It is well settled that an unincorporated labor union has no constitutional privilege against self-incrimination,and equally wellsettled that anofficer of suchan association isnot entitled to