NLRB v. Delaware Valley Armaments, Inc.
| Decision Date | 11 August 1970 |
| Docket Number | No. 18390.,18390. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. DELAWARE VALLEY ARMAMENTS, INC., and (Intervenors) Edith Bishop, Emilia Comorote, Elva Love, Dorothy Parks, Helen Reynolds, Donna Rieble, Juanita Rudolph, Jenny Tremper, Anna Webber and Carolyn Werts, individually and as representatives of a class Delaware Valley Armaments, Inc., Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Roland Morris, Duane, Morris and Heckscher, Philadelphia, Pa., for appellant.
Glen M. Bendixson, N.L.R.B., Washington, D.C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Marion Griffin, Atty., N.L.R.B., on the brief), for appellees.
Before KALODNER and VAN DUSEN, Circuit Judges, and FULLAM, District Judge.
Certiorari Denied December 14, 1970. See 91 S.Ct. 354.
The District Court entered an Order1 enforcing a subpoena2 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 N.L.R.B. 1236 (1966),3 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:
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, 89 S.Ct. 1426, 22 L.Ed.2d 709, "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 employees in the instant case may be `weighed' in accordance with the demands of the Supreme Court."
The Board did not grant the suggested hearing, and on May 20, 1969, issued the challenged subpoena duces tecum directing DVA to produce its personnel and payroll records showing the names and addresses of all eligible employees, or, in lieu thereof, to file a list containing this information.
On May 29, 1969, DVA filed a "Petition to Revoke" the subpoena which alleged, inter alia, that the majority of its more than 300 employees were female and most of them had requested DVA not to submit their names and addresses because "the organizing personnel of the Union" included men "with known criminal records," and "union personnel * * * have harassed, threatened, restrained, coerced and otherwise unlawfully interfered with the employees * * *". The Petition further alleged that the Board had initially denied DVA's request for a hearing on the issue as to whether DVA should be required to submit a list of its employees.
On June 9, 1969, the Board, by telegraphic order, denied the "Petition to Revoke" and its request for a hearing, on the ground that "evidence was not shown of special circumstances why the Excelsior list need not be furnished at the time of the representation case hearing and direction of election or in response to the Regional Director's Supplemental Decision and on objection to election and direction of second election on January 16, 1969, or in petitions to revoke."
On July 18, 1969, the Board applied to the District Court for an order requiring obedience to its subpoena duces tecum.
DVA filed in the District Court proceedings a "Memorandum of Controlling Facts" in which it named three union representatives with alleged "known criminal records." The "Memorandum" cited records of the County Clerk's Office in Camden County, New Jersey, which revealed that one of the three had been found guilty of bookmaking and fined $1,000.00, and newspaper clippings showing that another had been arrested and charged with inciting to riot in picketing a strike-bound plant some 12 years earlier in 1957, and that the third had invoked the Fifth Amendment in 1957 and 1967 when he was asked by Senate committees whether he was an active Communist in 1950 and 1956. The Memorandum did not submit follow-up data as to the outcome of the incidents involving the second and third union representatives.
It may be noted parenthetically that in the affidavits accompanying the "Application for Intervention," filed by ten DVA female employees in the District Court, none of the three union organizers were charged with threats or harassment. The burden of these affidavits was that the employees were concerned that "their right of privacy" would be violated in that they might be exposed to home phone calls or visits of union organizers.
The District Court, in a "Memorandum"* accompanying its Order enforcing the Board's subpoena, held that the Board properly acted within its powers in directing filing of the list of names and addresses of DVA employees eligible to vote in the ordered representation election. It also found that: "The objection that some of the Union organizers have criminal records is without merit."
On this appeal from the District Court's Order, DVA contends that it was denied "procedural due process" when it was not afforded an "adjudicatory hearing" prior to the Board's entry of its Order directing it to file a list of the name and addresses of all its employees, and again when the Board, without a hearing, denied its "Petition to Revoke" its subpoena duces tecum for production of the list of employees.
DVA urges that its contentions are supported by the "doctrine" of Wyman-Gordon, supra.
The Board, in turn, says that Wyman-Gordon establishes the validity of the Board's list requirement order in the instant case.
We agree with the Board's stated contention.
Wyman-Gordon4 decided that a direction to an employer to submit a list of the names and addresses of its employees, when incorporated in a Board order to hold a representation election "is unquestionably valid" since it was entered "in an adjudicatory proceeding;" that the Board has "a wide discretion to insure the fair and free choice of bargaining representatives"; "the disclosure requirement furthers this objective by encouraging an informed employee...
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N.L.R.B. v. Interstate Dress Carriers, Inc.
...vote in a scheduled election. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 494 (3d Cir.), Cert. denied, 400 U.S. 957, 91 S.Ct. 354, 27 L.Ed.2d 265 (1970).2 The House Report reiterated this position:As pre......