Hastings, Chief Judge, Castle, and Swygert, Circuit Judges.
This case presents two principal questions bearing on representation elections conducted by the National Labor Relations Board. The first and underlying question is whether an election rule, promulgated by the Board in Excelsior Underwear, Inc., 156 NLRB 1236 (1966), was a valid exercise of the Board's statutory authority. The new rule requires an employer to furnish to the Board's Regional Director, prior to a representation election, a list of names and addresses of the employees eligible to vote in the election, after which the Regional Director must make the list available to all parties to the proceeding. The second question is 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.
Crane Packing Company operates a plant at Morton Grove, Illinois. On April 13, 1966 the UAW (International Union United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO) filed a petition, pursuant to section 9(c)(1) of the National Labor Relations Act, 29 U.S.C. § 159(c)(1), seeking to represent the plant's production and maintenance employees. The IAM (District 8, International Association of Machinists and Aerospace Workers, AFL-CIO) intervened in the representation proceeding. On April 26, 1966 the company and the two unions signed a "Stipulation for Certification upon Consent Election," which was approved by the Board's Regional Director. The stipulation provided for a consent election in accordance with the Act, "the Board's Rules and Regulations, and the applicable procedures and policies of the Board." Before signing the stipulation, the company refused to give any assurance of compliance with the Excelsior election rule. Nonetheless, the Regional Director informed the parties that he was approving the stipulation subject to the rule's requirement that the company file within seven days a list of the names and addresses of all employees eligible to vote in the election.
Although refusing to file the required employee list before the election, the company permitted leaflet distribution outside the plant and distribution inside the plant by employees in time clock areas. At the same time, the company used its records to mail campaign material to its employees' homes. Two days before the election, the company permitted the UAW to examine a list of the employees' names without their addresses.
Both unions were defeated in the election, after which the UAW filed timely objections, based in part upon the company's refusal to comply with Excelsior. After investigation, the Regional Director recommended that the election be set aside because of the noncompliance with Excelsior. The Board approved the recommendation, ordered the election set aside in accordance with Excelsior, and directed that a second election be conducted in compliance with the rule in that case.
When the company remained adamant in refusing to comply with Excelsior, the Regional Director postponed the second election and caused subpoenas ad testificandum and duces tecum to be served upon the president of the company. The subpoenas directed him to appear at the Board's Regional Office to give testimony in the pending representation proceeding and to produce company records containing the names and addresses of the employees eligible to vote in the election or, in the alternative, to file a list of the eligible voters and their addresses with the Regional Director. The president still refused to comply, and the Board then filed a complaint in the district court for the enforcement of the subpoenas or, alternatively, for a mandatory injunction directing the company to comply with the Excelsior rule. Jurisdiction was predicated on section 11(2) of the Act and on 28 U.S.C. § 1337. The district court entered a judgment granting enforcement of the Board's subpoenas on the former theory, from which the defendant appealed.*fn1
The Validity of the Excelsior Rule
The Supreme Court in two cases, Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 87 L. Ed. 424, 63 S. Ct. 339 (1943), and Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494 (1946), set forth the standards governing judicial enforcement of administrative subpoenas. Duly issued subpoenas are to be enforced if the agency is seeking information "not plainly incompetent or irrelevant to any lawful purpose." Endicott Johnson Corp. v. Perkins, supra 317 U.S. at 509. We must therefore initially determine whether the list of employees' names and addresses sought by the Board was for a lawfully authorized purpose. This determination, in turn, necessitates that we resolve the question which has been implicitly raised and explicitly argued concerning the validity of the Board's rule promulgated in the Excelsior decision.
At an early stage in the judicial interpretation of the Board's powers under the Act, the Supreme Court said, "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 Steamship Corp., 309 U.S. 206, 226, 84 L. Ed. 704, 60 S. Ct. 493 (1940). Pursuant to that trust, the Board promulgated the Excelsior rule. The two-pronged purpose of the rule is 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 eliminate the time-consuming process of investigating challenges to voter eligibility on the eve of elections solely because of a lack of knowledge of voters' identity.
The company has advanced a number of contentions in attacking the Board's exercise, as exemplified in Excelsior, of its extensive power to control representation elections. We find little new in the company's attack which has not already been carefully and exhaustively considered and rejected by the Board in the Excelsior decision.*fn2 Therefore, we see no necessity to repeat the Board's well articulated rebuttal which is more than adequate to dispose of the company's contentions.
That the Board waited nearly thirty years to conceive and implement this new rule should not militate against its validity. The need for an Excelsior rule, aimed primarily at insuring that employee choice is made after full exposure to competing views, has become all the more important because of court decisions which have limited to some extent a union's access to employees during organizational campaigns.*fn3
We are aware of the Supreme Court's admonition in American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965), that "the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress." The Excelsior decision, however, ...