Kalodner and Van Dusen, Circuit Judges and Fullam, District Judge. Van Dusen, Circuit Judge, dissenting.
The District Court entered an Order*fn1 enforcing a subpoena*fn2 of the National Labor Relations Board ("Board"), directing the appellant Delaware Valley Armaments, Inc. ("DVA") to furnish a list of the names and addresses of its employees eligible to vote in a representation election ordered by the Board, and this appeal followed.
The background facts are as follows:
On August 9, 1968, the International Union of Electrical, Radio & Machine Workers, AFL-CIO ("Union") filed a petition with the Board's Regional Office in Philadelphia, Pa., seeking a representation election with respect to DVA's approximately 300 production and maintenance employees.
At the pre-election hearing on the petition, on August 26, 1968, DVA stipulated the Board's jurisdiction and its denial of Union's request to represent its production and maintenance workers. It, however, informed the hearing officer that it would not file a list of the names and addresses of all its employees because in its opinion the Board lacked authority to direct such filing. In doing so it specifically challenged the validity of the election eligibility list "requirement" rule laid down in Excelsior Underwear, Inc., 156 NLRB 1236 (1966),*fn3 commonly referred to as the Excelsior Rule.
On August 29, 1968, the Board's Regional Director issued a Decision and Direction of Election. The latter directed DVA to file an election eligibility list containing the names and addresses of all eligible voters within seven days, and further stated that failure to comply with this directive would be grounds for setting aside the election, upon proper objection.
On September 5, 1968, DVA filed a list containing names and addresses of only 83 of its employees eligible to vote. In its letter enclosing the list DVA said:
"For your information, DVA employs mostly women and a great number of these women complained that the union had made threats and harassed them, and DVA was asked by these women not to supply their addresses. Because of this situation, DVA requested of all employees that they specify whether or not they wished their addresses released. As you can see, a vast majority of the employees refused to have their addresses released."
The letter did not state details of the alleged harassments and threats or identify victims or perpetrators.
On September 12, 1968, DVA furnished the Board with an additional list containing the names, but not the addresses, of all eligible DVA employees. The Board took no further action, and at the representation election conducted on December 12, 1968, the Union was defeated by a vote of 220 to 93. Union then filed objections asserting, inter alia, DVA's failure to file the directed list of its employees.
On January 16, 1969, the Regional Director, after an ex parte investigation, issued a Supplemental Decision on Objections to Election and Direction of Second Election, assigning as a basis DVA's failure to comply with its directive as to filing a complete list of names and addresses of eligible employees. In the stated Supplemental Decision, DVA was again directed to file the mooted eligibility list within seven days of the ordered second election.
On January 22, 1969, DVA filed "Exceptions and Request for Review to the Second Supplemental Decision." It therein repeated its prior allegations of union threats and harassment, and charged for the first time that "a number of the Union organizers assigned to the labor campaign had known criminal records." Again, there was no specification as to the identity of harassed or threatened employees nor specification as to the identity of the concerned Union organizers or the details of their "known criminal records." The Exceptions renewed earlier challenges to the validity of the Board's Order to file the mooted eligibility list. They also requested "oral argument" with respect to the contentions made therein, but made no request for a hearing, although they stated that DVA "wishes to indicate its willingness to participate in a hearing in which the facts above, as well as additional facts, would be placed in the record."
On February 10, 1969, the Board denied the Request for Review for the assigned reason that "it raises no substantial issues warranting review."
On May 6, 1969, DVA wrote to the Board stating that in view of the Supreme Court's decision on April 23, 1969, in National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759, 22 L. Ed. 2d 709, 89 S. Ct. 1426, "it is submitted that the only appropriate way to proceed in the instant matter, is to hold a hearing so that the propriety of such a list [of ...