The opinion of the court was delivered by: COOLAHAN
This matter came before the court upon the complaint of the National Labor Relations Board (hereinafter referred to as "Board"), seeking enforcement of a subpoena duces tecum directed to defendant Martin S. Nadler as President of Q-T Shoe Manufacturing Company, Inc., (hereinafter referred to as "Q-T Shoe"), or, in the alternative a mandatory injunction compelling defendant Q-T Shoe to produce the same material sought under the subpoena duces tecum. Jurisdiction of this court is invoked under 28 U.S.C. § 1337 and Sections 9(c) and 11(2) of the National Labor Relations Act (hereinafter referred to as "the Act"), 29 U.S.C. §§ 159(c), 161(2).
The material facts are as follows: The Board is an administrative agency created under the Act and empowered and directed to administer the provisions of that statute, including investigation of questions pertaining to employee representation and representation elections under Section 9 of the Act, 29 U.S.C. § 159. Q-T Shoe is an employer engaged in the manufacture of shoes in interstate commerce within the meaning of the Act, 29 U.S.C. § 152(6), (7). The company's plant in question is located within this judicial district, at Paterson, New Jersey.
On September 20, 1966, Joint Council No. 3 of the United Shoe Workers of America AFL-CIO (hereinafter referred to as "Union"), petitioned the Board's regional office at Newark, New Jersey for a representation election to establish its alleged majority support by the employees at the Paterson plant, and to obtain certification as their collective bargaining representative. The regional office conducted an investigation of the petition and a hearing was held on the question of representation. Thereafter, on November 25, 1966, the Regional Director issued a Decision and Direction of Election pursuant to Section 9(c)(1) of the Act, 29 U.S.C. § 159(c)(1), which directed that an election be held for a unit of approximately 250 production and maintenance employees at the plant. The election was to be conducted by the Board and in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the applicable procedure and policies of the Board.
Pursuant to the Board's rule in Excelsior Underwear, Inc., 156 NLRB No. 111 (1966), the Board ordered Q-T Shoe to furnish it with a list of names and addresses of all employees eligible to vote in the election. On December 2, 1966, Q-T Shoe notified the Board's Regional Director that it would not comply. By letter of December 5, 1966, the Union notified the Director that it did not want to proceed to election until the information was furnished. Thereafter, the Regional Director issued the instant subpoena duces tecum on December 19, 1966, pursuant to Section 11(1) of the Act, 29 U.S.C. § 161(1).
The subpoena directed the defendant Martin Nadler, President of Q-T Shoe, to produce and make available to the Board's regional office the company's personnel and payroll records, or alternatively a list of all employees eligible to vote in the election. It was personally served upon Mr. Nadler on December 19, 1966.
Although Section 11(1) of the Act, supra, and Section 102.31(b) of the Board's Rules and Regulations, 29 C.F.R. 102.31(b), provide for a period of 5 days after service of the subpoena within which any person served who wishes to object may petition the Board to revoke the subpoena, Nadler did not file such revocation petition within five days. Further, Nadler did not appear on December 28, 1966, the return date of the subpoena, and has at all times refused to produce the materials called for therein. Consequently, the Board seeks judicial enforcement by this court of the subpoena duces tecum, pursuant to Section 11(2) of the Act, 29 U.S.C. § 161(2).
The Board alleges that the information sought by the subpoena constitutes evidence relevant to a Board investigation within the meaning of Sections 11(1) and 11(2) and that therefore this court should direct the defendants' compliance.
The defendants have presented several separate defenses to the complaint, and, in addition, have moved to add as further defendants the approximately 250 employees whose addresses are sought by the Board. I am of the opinion, however, that the motion should be denied and the issues raised by the parties to the present proceeding should be resolved. In making such a ruling, the question for the court to determine is whether the employees "[claim] an interest relating to the subject of the action and [are] . . . so situated that the disposition of the action in [their] . . . absence may . . . as a practical matter impair or impede [their] . . . ability to protect that interest . . . ." Rule 19, Federal Rules of Civil Procedure. Defendants contend that the disclosure of the employees' addresses arguably violates their right of privacy under the Due Process Clause of the Fifth Amendment of the Constitution, since to provide the Union with the addresses will subject them to the dangers of harassment and coercion in their homes. In disposing of the defendants' motion, however, it is not necessary for the court to reach the merits of the constitutional right asserted above, or the specific grievance from which the alleged constitutional right arises. Rather, the court need only inquire into the question of whether the disposition of the present action in the absence of the employees will effectively preclude them from protecting their interests later on. The court is of the opinion that this question must be answered in the negative. Whatever the outcome of the present proceeding, and whether or not disclosure of the employees' addresses to the Union in and of itself violates the employees' right of privacy, the employees will be free in the future to petition the Board for a remedy to prevent any alleged harassment and coercion by the Union resulting from such disclosure. Defendants' motion is therefore denied.
My ruling above settles neither the questions whether the Board's act of supplying the Union with a list of the employees' addresses violates the employees' constitutional rights, nor whether the defendants have standing to assert such rights. These questions are taken up in a later portion of the court's opinion.
Prior to considering the Board's application for enforcement of its subpoena duces tecum, it would be helpful to briefly review the background of the Excelsior rule, the particular rule in dispute. As has been adverted to earlier, it emanates from the Board's decision in Excelsior Underwear Inc., 156 NLRB No. 111 (1966). Under the Excelsior rule, an employer must furnish the Regional Director with a list of names and addresses of all employees eligible to vote in the election, within 7 days after the Regional Director's approval of the election agreement or after the close of the determinative payroll period for eligibility purposes, whichever is later. The list is to be given to all parties, specifically including the union, in order to promote and maximize communication of election issues to the employees and also to aid in challenging possibly ineligible voters. The rule further provides that an employer's failure to file the required list of employees' names and addresses "shall be grounds for setting aside the election whenever proper objections are filed." Excelsior Underwear, supra at 5.
It is now essential to turn to the problem of whether a federal district court, pursuant to Section 11(2) of the National Labor Relations Act, 29 U.S.C. § 161(2), may enforce a Board-issued subpoena directing the employer to produce the list of names and addresses required by the Excelsior rule. The answer to this question does not turn on the validity of the rule itself, but rather, on whether the information sought by the Board is "not plainly incompetent or irrelevant to any lawful purpose . . . ." Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509, 87 L. Ed. 424, 63 S. Ct. 339 (1943). "The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly . . . [are] matters which Congress entrusted to the Board alone." NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226, 84 L. Ed. 704, 60 S. Ct. 493 (1940). The purpose behind the Board's passage of the Excelsior rule was to make certain that employees are able to exercise an informed and reasoned choice after hearing all sides of the question concerning the desirability of Union representation, and to facilitate the process of investigating challenges to voter eligibility. Keeping in mind the holding of the Waterman case, it cannot be said that the Board's purpose for seeking the information herein is an unlawful one.
Defendants contend, however, that the subpoena should not be enforced because it seeks information the disclosure of which is required by a rule which was not formulated in accordance with the rule-making requirements specified in Section 3(a)(3) and (4) of the Administrative Procedure Act, 5 U.S.C. §§ 552(a)(3), (4) 553. The short answer to this objection, however, is that the Administrative Procedure Act permits the Board to proceed by either rule-making or adjudication. See SEC v. Chenery Corp., 332 U.S. 194, 201-203, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947). Moreover, in determining whether a subpoena should be enforced under Section 11 of the National Labor ...