EDWARDS, Circuit Judge.
Petitioners seek review of a National Labor Relations Board order for back wages which resulted from a prior NLRB order arising out of an unfair labor practice complaint. This court granted enforcement of the prior order in 325 F. 2d 68 (C.A. 6, 1963). In turn the NLRB petitions for enforcement of its supplemental back wage order.
The only issue presented to us now pertains to the fact that the NLRB Trial Examiner (with subsequent affirmance of the Board) quashed a subpoena
duces tecum
previously obtained from the Board and served upon the Michigan Employment Security Commission by petitioners. By this subpoena petitioners sought to obtain records of unemployment compensation claims made by the employees involved in this case. An Assistant Attorney General, representing the State of Michigan, appeared at the hearing and moved to quash the subpoena on the ground that under Michigan Compiled Laws § 421.11(b) (Mason Supp.1961), Mich.Stat.Ann. § 17.511(b), these records were confidential and could not be produced under subpoena in open court. Petitioners claim prejudicial error in the quashal.
The case raises two questions. The first is procedural- — -whether or not the Trial Examiner had the power to quash the subpoena. Petitioners rely in this regard upon language somewhat favorable to their position in N. L. R. B. v. Cashman Auto Company, 223 F.2d 832 (C.A. 1, 1955), while the NLRB relies upon General Engineering, Inc. v. N. L. R. B., 341 F.2d 367 (C.A. 9, 1965).
We deal herein with á subpoena
duces tecum.
The National Labor Relations Act specifically sets forth power in the Board to revoke such a subpoena. 61 Stat. 150 (1947), 29 U.S.C. § 161(1) (1964).
The
Board has established a rule delegating the exercise of this power to the Trial Examiner
and setting standards for his doing so.
Petitioners, however, point out that the statute authorizes revocation where the document sought “does not relate to any matter under investigation” or the subpoena is lacking in “sufficient particularity,” while the rule adds the general language “or if for any other reason sufficient in law the subpoena is otherwise invalid.”
It should be noted that the statute is mandatory in its language, while the Board rule is discretionary. The United States Supreme Court in construing Section 11(1) approved the Board’s action extending the power specifically granted in this section to issue a subpoena
duces tecum
to a subpoena
ad testificandum.
Lewis v. N. L. R. B., 357 U.S. 10, 78 S.Ct. 1029, 2 L.Ed.2d 1103 (1958).
In the
General Engineering
case, in a well-reasoned opinion interpreting Section 11(1), the Ninth Circuit said:
“The statute in question does not state that petitions to revoke subpoenas can only be made on the two grounds therein stated, or that the trial examiner or Board may revoke only on those grounds. It does provide that a person served with such a subpoena may petition for revocation of the subpoena and the Board
shall
revoke it if one of the two specified circumstances exist. Insofar as that statute is concerned, the Board may also revoke a subpoena on any other ground which is consonant with the overall powers and duties of the Board under the Act considered as a whole.
******
“In short, section 11(1) is not intended as a complete and inclusive catalogue of all grounds upon which a Board subpoena may be revoked.” (Emphasis in original) General Engineering, Inc. v. N. L. R. B., supra 341 F.2d at 372-373.
Still another section of the NLRA grants general rule-making power to the NLRB to make “such rules and regulations as may be necessary to carry out the provisions of this subchapter.” 61 Stat. 140 (1947), 29 U.S.C. § 156 (1964). The Board has exercised this power in issuing the rule referred to above.
We hold that the language of the Board rule relied upon here by the Trial Examiner represents a reasonable employment of the rule-making power con
veyed upon the Board by Congress. 29 U.S.C. § 161(1) (1964); 29 U.S.C. § 156 (1964); Lewis v. N. L. R. B., supra at 14, 78 S.Ct. 1029. See also N. L. R. B. v. Duval Jewelry Co., 357 U.S. 1, 78 S.Ct. 1024, 2 L.Ed.2d 1097 (1958).
To the extent that N. L. R. B. v. Cash-man Auto Co., supra, may be read as contrary to this holding, we decline to follow it in the light of the subsequent United States Supreme Court holdings cited above.
As its second issue, appellant contends that the Michigan Statute, M.S.A. § 17.511(b),
relied upon by the Trial Examiner in quashing this subpoena did not prevent the production of the records at the NLRB hearing. We recognize that this question is not without difficulty since the statutory language as of the date with which we are concerned made no specific reference to legal proceedings.
Nor can we find any assistance in interpretations of this statute by the Michigan Supreme Court. None are cited to us, nor does our research discover any. Michigan has, however, followed a strict construction policy pertaining to confidentiality or privilege provisions in other statutes. Bowman v. Montcalm Circuit Judge, 129 Mich. 608, 89 N.W. 334 (1902); Williams v. Brown, 137 Mich. 569, 100 N.W. 786 (1904); People v. Atwood, 188 Mich. 36, 154 N.W. 112 (1915) [dictum]; In re Reid, 155 P. 933 (E.D. Mich.1906)
But cf. Bell v. Bankers Life & Casualty Co., 327 Ill.App. 321, 64 N.E. 2d 204 (1945); Annot., 165 A.L.R. 1302 (1946).
The only specific interpretation of the instant statute is that given by the Michigan Attorney General
in an opinion dated March 2, 1945. That opinion, referring to the statute now under dispute, said:
“The statute in question, (being Mich.Stat.Ann. 17.511, Sec. 11(b)), clearly provides that any information obtained from any employing unit or individual pursuant to the administration of the Unemployment Compensation Act shall be held confidential and shall be a privileged communication; except as such information, under Commission regulations, may be made available to certain agencies for certain purposes.
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EDWARDS, Circuit Judge.
Petitioners seek review of a National Labor Relations Board order for back wages which resulted from a prior NLRB order arising out of an unfair labor practice complaint. This court granted enforcement of the prior order in 325 F. 2d 68 (C.A. 6, 1963). In turn the NLRB petitions for enforcement of its supplemental back wage order.
The only issue presented to us now pertains to the fact that the NLRB Trial Examiner (with subsequent affirmance of the Board) quashed a subpoena
duces tecum
previously obtained from the Board and served upon the Michigan Employment Security Commission by petitioners. By this subpoena petitioners sought to obtain records of unemployment compensation claims made by the employees involved in this case. An Assistant Attorney General, representing the State of Michigan, appeared at the hearing and moved to quash the subpoena on the ground that under Michigan Compiled Laws § 421.11(b) (Mason Supp.1961), Mich.Stat.Ann. § 17.511(b), these records were confidential and could not be produced under subpoena in open court. Petitioners claim prejudicial error in the quashal.
The case raises two questions. The first is procedural- — -whether or not the Trial Examiner had the power to quash the subpoena. Petitioners rely in this regard upon language somewhat favorable to their position in N. L. R. B. v. Cashman Auto Company, 223 F.2d 832 (C.A. 1, 1955), while the NLRB relies upon General Engineering, Inc. v. N. L. R. B., 341 F.2d 367 (C.A. 9, 1965).
We deal herein with á subpoena
duces tecum.
The National Labor Relations Act specifically sets forth power in the Board to revoke such a subpoena. 61 Stat. 150 (1947), 29 U.S.C. § 161(1) (1964).
The
Board has established a rule delegating the exercise of this power to the Trial Examiner
and setting standards for his doing so.
Petitioners, however, point out that the statute authorizes revocation where the document sought “does not relate to any matter under investigation” or the subpoena is lacking in “sufficient particularity,” while the rule adds the general language “or if for any other reason sufficient in law the subpoena is otherwise invalid.”
It should be noted that the statute is mandatory in its language, while the Board rule is discretionary. The United States Supreme Court in construing Section 11(1) approved the Board’s action extending the power specifically granted in this section to issue a subpoena
duces tecum
to a subpoena
ad testificandum.
Lewis v. N. L. R. B., 357 U.S. 10, 78 S.Ct. 1029, 2 L.Ed.2d 1103 (1958).
In the
General Engineering
case, in a well-reasoned opinion interpreting Section 11(1), the Ninth Circuit said:
“The statute in question does not state that petitions to revoke subpoenas can only be made on the two grounds therein stated, or that the trial examiner or Board may revoke only on those grounds. It does provide that a person served with such a subpoena may petition for revocation of the subpoena and the Board
shall
revoke it if one of the two specified circumstances exist. Insofar as that statute is concerned, the Board may also revoke a subpoena on any other ground which is consonant with the overall powers and duties of the Board under the Act considered as a whole.
******
“In short, section 11(1) is not intended as a complete and inclusive catalogue of all grounds upon which a Board subpoena may be revoked.” (Emphasis in original) General Engineering, Inc. v. N. L. R. B., supra 341 F.2d at 372-373.
Still another section of the NLRA grants general rule-making power to the NLRB to make “such rules and regulations as may be necessary to carry out the provisions of this subchapter.” 61 Stat. 140 (1947), 29 U.S.C. § 156 (1964). The Board has exercised this power in issuing the rule referred to above.
We hold that the language of the Board rule relied upon here by the Trial Examiner represents a reasonable employment of the rule-making power con
veyed upon the Board by Congress. 29 U.S.C. § 161(1) (1964); 29 U.S.C. § 156 (1964); Lewis v. N. L. R. B., supra at 14, 78 S.Ct. 1029. See also N. L. R. B. v. Duval Jewelry Co., 357 U.S. 1, 78 S.Ct. 1024, 2 L.Ed.2d 1097 (1958).
To the extent that N. L. R. B. v. Cash-man Auto Co., supra, may be read as contrary to this holding, we decline to follow it in the light of the subsequent United States Supreme Court holdings cited above.
As its second issue, appellant contends that the Michigan Statute, M.S.A. § 17.511(b),
relied upon by the Trial Examiner in quashing this subpoena did not prevent the production of the records at the NLRB hearing. We recognize that this question is not without difficulty since the statutory language as of the date with which we are concerned made no specific reference to legal proceedings.
Nor can we find any assistance in interpretations of this statute by the Michigan Supreme Court. None are cited to us, nor does our research discover any. Michigan has, however, followed a strict construction policy pertaining to confidentiality or privilege provisions in other statutes. Bowman v. Montcalm Circuit Judge, 129 Mich. 608, 89 N.W. 334 (1902); Williams v. Brown, 137 Mich. 569, 100 N.W. 786 (1904); People v. Atwood, 188 Mich. 36, 154 N.W. 112 (1915) [dictum]; In re Reid, 155 P. 933 (E.D. Mich.1906)
But cf. Bell v. Bankers Life & Casualty Co., 327 Ill.App. 321, 64 N.E. 2d 204 (1945); Annot., 165 A.L.R. 1302 (1946).
The only specific interpretation of the instant statute is that given by the Michigan Attorney General
in an opinion dated March 2, 1945. That opinion, referring to the statute now under dispute, said:
“The statute in question, (being Mich.Stat.Ann. 17.511, Sec. 11(b)), clearly provides that any information obtained from any employing unit or individual pursuant to the administration of the Unemployment Compensation Act shall be held confidential and shall be a privileged communication; except as such information, under Commission regulations, may be made available to certain agencies for certain purposes. The Department of Revenue is not such an agency.
“It follows that the Legislature intended that information gained from an employer in the course of the statutory administration by the Michigan Unemployment Compensation Commission was to be privileged from a use such as has been attempted in the appeal before the State Board of Tax Appeals.
X’ X X X X X
“The right to examine the records and reports in possession of the Michigan Unemployment Compensation Commission by another governmental agency does not waive the confidential and privileged provisions of the statute in
behalf of the informant when he is involved in a proceeding with another governmental agency foreign to the administration of the Unemployment Compensation Act.” Ops. Att’y General, 253-54 (1945).
In the absence of more persuasive authority, we choose to follow the reasoning and interpretation of the Attorney General’s opinion.
It might be well to note that subsequent to the proceeding below (and hence not relied upon for our decision) the Michigan Legislature amended the disputed statute to make its confidentiality in the sort of situation we now deal with crystal clear for the future by adding the following sentence:
“Except as hereinafter provided, such information and determination shall not be used in any action or proceeding before any court or administrative tribunal unless the commission is a party or complainant therein.” Mich. Stat.Ann. § 17.511(b) (Current Material Supp.1966).
The petition for review is dismissed. The cross-petition for enforcement is granted.