Before SWYGERT, FAIRCHILD and CUMMINGS, Circuit Judges.
Per Curiam: On October 30, 1967, an authorized officer of the National Labor Relations Board (NLRB) ordered an election in a unit of employees of Duncan Foundry & Machine Works, Inc. (employer) and ordered the employer to file an eligibility list. Much of the time since that date has been consumed with proceedings concerning such order. The employer has refused to comply.
On December 15, NLRB brought a proceeding in the district court for the enforcement of NLRB's subpoena to obtain the required information. On December 26, the district court ordered the employer to file the information. bond, which the district court approved. NLRB applied to the district court for an order refusing to supersede or otherwise suspend the order of December 26 pending appeal. After hearing, the district court denied the application January 10. It appears from the transcript of the hearing that the district court either considered that a stay was automatic under Rule 62, F.R. Civ. P., or that the employer ought to be granted a stay because immediate compliance with the order would render the right of appeal ineffective.
The time problem is that an economic strike began January 29, 1967, and unless an election is held before January 29, 1968, a number of employees who went on strike will be ineligible to vote. If the stay remains in effect while the appeal runs its nomal, or even an accelerated course in this court, the public policy underlying NLRB's so-called Excelsior rule will be frustrated.
We conclude that the order of the district court compelling the employer to furnish the information sought by NLRB is sufficiently comparable to a mandatory injunction that a stay pending appeal is not a matter of right, but one of discretion, and that compliance should be stayed only when there is a substantial probability that the party seeking the stay will succeed on appeal. In re Turner (2d Cir.) 309 F.2d 69, 72. The district court did not apply this test.
This court has recently upheld the validity of the Excelsior rule, and that district court enforcement of a subpoena to obtain an Excelsior list is proper. NLRB v. Rohlen , decided November 3, 1967. The employer's claim, unsuccessfully presented to the district court, that acts of violence earlier in the strike, resulting in state court injunctions and contempt proceedings, demonstrate that disclosure of home addresses of non-striking employees would endanger such employees does not raise a sufficient probability of success on appeal to justify frustration of the public policy involved in the Excelsior rule.
On the emergency motion of NLRB, and upon consideration of the employer's answer to motion and answer to memorandum,
IT IS HEREBY ORDERED by the Court, that any stay of the district court's order dated December 26, 1967, effected by the district court's approval of the supersedeas bond, or by its order of January 10, or any other order, is hereby vacated, effective January 17, 1968.