The opinion of the court was delivered by: BONSAL
Applicant, the National Labor Relations Board (the Board), seeks an order under Section 11(2) of the National Labor Relations Act (the Act) (29 U.S.C. § 161(2)) directing the respondent, Beech-Nut Life Savers, Inc. (Beech-Nut), to comply with a "subpena duces tecum " or in the alternative, an order under Section 9(c) of the Act (29 U.S.C. § 159(c)), in the nature of a mandatory injunction, directing Beech-Nut to file with the Regional Director for Region 2, New York, New York (the Regional Director) a list with the names and addresses of its salesmen eligible to vote in a representation election directed by the Board pursuant to Section 9(c) of the Act (29 U.S.C. § 159(c)). Jurisdiction is asserted under Section 11(2) of the Act, 29 U.S.C. § 161(2), and 28 U.S.C. § 1337.
On February 18, 1966 Office & Professional Employees International Union, Salesmen's Division, Local 153, AFL-CIO (Local 153) petitioned the Board for a representation election, claiming support among a substantial number of Beech-Nut's salesmen. Two other unions, District 65, Retail, Wholesale and Department Store Union, AFL-CIO (District 65), and Joint Organizing Committee of Locals 342, 400, 464, 474 and 489, Amalgamated Meat Cutters & Food Employees Union, AFL-CIO (Joint Committee), intervened in the representation proceeding to compete with Local 153 for certification as collective bargaining representative.
On April 14, 1966 pursuant to Section 9(b) of the Act, 29 U.S.C. § 159(b), the Regional Director determined that all Beech-Nut salesmen in Division 1 constituted the appropriate unit for the purpose of collection bargaining and ordered an election to determine whether the salesmen desired to be represented by any of the three unions or by no union. The Regional Director ordered Beech-Nut to file a list of the names and addresses of all salesmen eligible to vote in the election (the Excelsior list), which list the Regional Director would make available to the three unions. Excelsior Underwear Inc., 156 N.L.R.B. No. 111 (1966).
The order stated that failure to file the list would be grounds for setting aside the election. Beech-Nut did not file the Excelsior list but on the day before the election, submitted the names (but without addresses) of its salesmen eligible to vote.
The election was conducted on July 21, 1966. Out of a total of 226 votes, 88 were cast for Local 153, 3 were cast for the Joint Committee, none were cast for District 65, and 135 were cast against representation by any union. On July 26, 1966 Local 153 filed objections to the election based upon Beech-Nut's refusal to file an Excelsior list and on August 9, 1966 Beech-Nut filed an answer to the objections. On August 10 the Regional Director sustained Local 153's objections, set the election aside and directed that a second election be held. On August 26, 1966 the Acting Regional Director ordered Beech-Nut to submit an Excelsior list within 7 days of the issuance of Notice of the Second Election. On September 9, 1966 Beech-Nut filed exceptions to the orders of August 10 and 26 and a request for review which the Board denied in a telegram dated September 23, 1966. On October 14, 1966 the Regional Director granted the requests of District 65 and the Joint Committee to withdraw from participation in the second election, and on November 29, 1966 the Regional Director issued a Notice of Rerun Election and ordered Beech-Nut to submit an Excelsior list no later than December 7, 1966. In a letter dated December 5, 1966 Beech-Nut informed the Regional Director that it would not submit an Excelsior list since it believed the Excelsior "rule" was invalid. The Regional Director thereupon postponed the second election indefinitely.
On December 13, 1966 pursuant to Section 11(1) of the Act, (29 U.S.C. § 161(1)), the Board issued a " subpena duces tecum " which was served on Beech-Nut the next day. The subpena directed that Beech-Nut either, (1) produce before the Regional Director its corporate records, including personnel and payroll records, showing the names and addresses of all its salesmen in Division 1; or, (2) furnish the Regional Director a list of the names and addresses of its salesmen in Division 1. On December 19, 1966 Beech-Nut filed a petition to revoke the subpena which the Board denied in a telegram dated December 29, 1966. Thereafter, the Board instituted the proceeding now before the court.
Beech-Nut contends that, (1) the subpena is invalid since it does not call for the production of "evidence" within the meaning of Sections 11(1) and (2) of the Act;
(2) there was substantial compliance with the Excelsior "rule" since Local 153 had the names and addresses of Beech-Nut's salesmen prior to the first election which should not have been set aside; (3) the Excelsior "rule" is invalid because: (a) production of the addresses of Beech-Nut's salesmen will subject Beech-Nut to a risk of serious competitive injury and will infringe upon the salesmen's right of privacy and their right not to participate in union activities; (b) the "rule" was not promulgated in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 1001-1011; (4) the court does not have jurisdiction to issue an order compelling the production of an Excelsior list.
The court holds that it has jurisdiction under Section 11(2) of the Act, sustains the Board's subpena, and directs Beech-Nut to comply therewith.
The language of Section 11 of the Act is broad enough to permit the Board to subpena material needed to assist it in conducting representation elections (N.L.R.B. v. Duval Jewelry Co. of Miami, 243 F.2d 427 (5th Cir. 1957), reversed on other grounds, 357 U.S. 1, 2 L. Ed. 2d 1097, 78 S. Ct. 1024 (1958); D. G. Bland Lumber Co. v. N.L.R.B., 177 F.2d 555 (5th Cir. 1949); N.L.R.B. v. Northern Trust Co., 148 F.2d 24 (7th Cir.), cert. denied, 326 U.S. 731, 90 L. Ed. 435, 66 S. Ct. 38 (1945)), including material such as payroll records needed to assist the Board in determining which employees are eligible to vote. Cudahy Packing Co. v. N.L.R.B., 117 F.2d 692 (10th Cir. 1941); N.L.R.B. v. New England Transportation Co., 14 F. Supp. 497 (D. Conn. 1936).
In Excelsior, the Board concluded that disclosure of the names and addresses of employees would assist the Board in handling challenges to the eligibility of employees to vote in representation elections. This conclusion is not arbitrary or unreasonable. Swift & Company v. Solien, 274 F. Supp. 953 (E.D. Mo. 1967). See N.L.R.B. v. A. J. Tower Co., 329 U.S. 324, 331, 91 L. Ed. 322, 67 S. Ct. 324 (1946) (" . . . the Board must adopt policies and promulgate rules . . . in order that employees' votes may be counted accurately, efficiently and speedily."); N.L.R.B. v. Waterman Steamship Corp., 309 U.S. 206, 226, 84 L. Ed. 704, 60 S. Ct. 493 (1940) ("The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone."); see also N.L.R.B. v. Friedman, 352 F.2d 545 (3d Cir. 1965); N.L.R.B. v. C.C.C. Associates, Inc., 306 F.2d 534, 538 (2d Cir. 1962) (scope of judicial review is "extremely limited" with respect to an application by the Board under Section 11 of the Act). Accordingly, since the Excelsior list will assist the Board in conducting a representation election, the subpena does not exceed the Board's power under Section 11 of the Act. Swift & Company v. Solien, supra; N.L.R.B. v. Wyman-Gordon Co., 270 F. Supp. 280 (D. Mass. 1967); N.L.R.B. v. British Auto Parts, Inc., 266 F. Supp. 368 (C.D. Calif. 1967); see N..L.R.B. v. Rohlen, 274 F. Supp. 715 (N.D. Ill. 1967); N.L.R.B. v. Wolverine Industries Division, 64 L.R.R.M. 2060 (E.D. Mich. 1966). Contra N.L.R.B. v. Montgomery Ward & Co., 385 F.2d 760 (M.D. Fla. 1967); NLRB v. Hanes Hosiery Division, 63 L.R.R.M. 2513 (M.D.N.C. 1966).
The fact that the Board makes the Excelsior list available to the participants in the election, does not mean that the Excelsior list is not "evidence" (Swift & Company v. Solien, supra; cf. N.L.R.B. v. Friedman, supra) since the disclosure of the list to election participants is of assistance in handling challenges to the eligibility of employees to vote.
In support of its contention that there was substantial compliance with the Excelsior "rule" in the first election Beech-Nut points out that (1) according to the election literature mailed out by Local 153, Local 153 had the names and addresses of Beech-Nut's salesmen; and (2) Local 153 fully communicated with and presented its arguments to Beech-Nut's salesmen.
If Local 153 had the names and addresses of Beech-Nut's salesmen, prior to the first election, Beech-Nut would not have been injured by complying with the Excelsior rule. See Swift & Company v. Solien, supra. In addition, the list compiled by Local 153 may not have been accurate and complete and, even if it was, a list of eligible voters is likely to change with time. The Board is entitled to require Beech-Nut to submit a list so that it can be checked with any lists obtained by the participants in the election. The Excelsior decision points out that this process of checking minimizes the number of challenges to the eligibility of voters that have to be ruled on by the Regional Director or the Board. With respect to Beech-Nut's contention that the first election should not have been set aside, it is clear that this court has no jurisdiction to review the decision of the Board setting the election aside. See, e.g., Boire v. Greyhound Corp., 376 U.S. 473, 11 L. Ed. 2d 849, 84 S. Ct. 894 (1964).
Beech-Nut argues that it has a substantial proprietary interest in preserving the secrecy of the names and addresses of its salesmen, and that if their names and addresses are made available, it will be subjected to a risk of serious competitive injury. In support of this argument Beech-Nut has submitted the affidavit of its director of marketing and sales administration which points out that Beech-Nut is in the highly competitive business of manufacturing and marketing foods, beverages and confections; that its salesmen have knowledge of marketing and advertising plans prior to their implementation when these are not known to Beech-Nut's competitors who would benefit from advance knowledge thereof; and that if the names and addresses of Beech-Nut's salesmen were available to participants in representation ...