National Labor Relations Board v. Delaware Valley Armaments, Inc.

VAN DUSEN, Circuit Judge

(dissenting).

I respectfully dissent and would reverse the District Court order enforcing the Board’s subpoena.

*501The Board has the authority to require the disclosure of the names and addresses of the employees of DVA, absent a validly adopted rule, only if there has been a proper “adjudicatory proceeding.” N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 766, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). However, the present record fails to show that the Board “provide [d] for an appropriate hearing” as required by Congress1 prior to (a) the issuance of its direction to file an Excelsior list before the first election, (b) its similar direction of January 16, 1969, contained in the Supplemental Decision on Objections to Election and Direction of Second Election, and (c) its May 20, 1969, issuance of the challenged subpoena enforced by the District Court order forming the basis of this appeal.

The only hearing granted to the respondent DVA by the Board, which con-cededly has the duty to weigh “the asserted interest of the employees in avoiding the problems that union solicitation may present,” 2 was the hearing of August 26, 1968. The respondent made clear that it would only agree to provide the addresses (as opposed to the names, which were furnished without challenge) of the employees who consented to that disclosure, relying on the invalidity of the Excelsior Rule for the reasons stated in Wyman-Gordon Co. v. N.L.R.B., 397 F.2d 394 (1st Cir. 1968).3 The petitioning Union answered that it did not want an incomplete list of addresses and that it reserved “its right to demand an Excelsior list with the names and addresses of the employees.” (76a). The Hearing Officer then made clear that there had been off-the-record discussions of this problem, but remarked that the recorded statements of each party were “sufficient.” 4 From the record thus incompletely transcribed, it is impossible to tell whether the Hearing Officer gave the respondent an opportunity to present the special facts of its situation or whether the Hearing Officer actually considered these facts in rendering his decision.5

Prior to and after the first election, originally scheduled for September but postponed to December, the alleged harassment of employees commenced. The respondent requested a hearing con*502cerning this harassment in January 1969 (15a), by its letter of May 6, 1969 (28a-29a), and in its Petition to Revoke Subpoena of May 28, 1969 (22a). If the Board is to require an Excelsior list under the allegedly particular facts of this case, I believe that it must grant the respondent its requested hearing. Cf. N.L.R.B. v. Sun Drug Co., 359 F.2d 408, 414-416 (3rd Cir. 1966); Tyler Pipe & Foundry Co. v. N.L.R.B., 406 F.2d 1272, 1275 (5th Cir. 1969).

. 29 U.S.C. § 159(c) (1) provides:

“(c) (1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board-—
(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented by collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section,
* * *
# * * * *
the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” See, also, 29 C.F.R. § 102.64. The applicability of this Congressional directive was specifically recognized in the opinion of Mr. Justice Black in N.L.R.B. v. Wyman-Gordon Co., supra, at 770-771 and n. 2, 89 S.Ct. 1426.

. See N.L.R.B. v. Wyman-Gordon Co., supra, at 767. 89 S.Ct. at 1430.

. At the time of this hearing, the writ of certiorari had not yet been granted. The writ was subsequently granted on 11/12/68. See 393 U.S. 932.

. There were several off-the-record discussions before and during the hearing (71a). The Hearing Officer stated (76a-77a):

“I think that should be sufficient for the record on that. We have had off-tho-record discussion on it.”

. Such a decision appears to be contemplated by the Board. For example, in Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1244 (1966), the Board stated that “ * * * if [a union subjects employees to the dangers of harassment and coercion in their homes] * * * we shall provide an appropriate remedy.”