Labor Law–The Judicial Role in the Enforcement of the “Excelsior Rule”

The NLRB has sought such judicial assistance in almost a dozen cases, and in most of these the courts have assumed an active role in the enforcement of the Excelsior rule. However, a few courts have not been receptive to such enforcement, and the NLRB itself has experienced some difficulty in settling upon the proper grounds for requesting judicial aid. To date, the NLRB has advanced two theories as bases for court enforcement of the requirement that employers produce Excelsior lists: (I) it has sought-under section 1337 of the Judicial Code-to invoke the general jurisdiction of federal district courts to issue injunctions compelling employer compliance; (2) it has attempted to subpoena employee lists as “evidence” under section 11(1) of the National Labor Relations Act (NLRA) and to secure court enforcement of such subpoenas under the procedure in section 11(2). This Note will examine these theories and the initial reception given them by the courts.