ALDRICH, Chief Judge.
This is an appeal from an order of the district court enforcing compliance with a National Labor Relations Board subpoena which ordered an employer to furnish names and addresses to its employees. The issuance of the subpoena stems from efforts of two unions, the Internationa] Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Boilermakers), and the United Steelworkers of America, AFL-CIO (Steelworkers), to represent some 1750 production and maintenance employees at appellant’s plants in three Massachusetts communities. The Board’s Regional Director, after investigation and hearing, ordered an election and directed appellant, in accordance with the rule announced in Excelsior Under[396]*396wear, Inc., 1966, 156 N.L.R.B. 1236, to furnish the Board a list of the names and addresses of all employees eligible to vote. Appellant agreed to furnish a list of names, but refused to supply addresses. Notwithstanding this refusal, the election was held, resulting in 226 votes for the Boilermakers, 555 for the Steelworkers, and 903 against any union.
On objection by both unions, the Regional Director set aside the election and ordered a new one. The Board affirmed this decision. Again the Regional Director demanded an Excelsior list, and again appellant refused. The subpoena then issued. The Board filed a complaint seeking enforcement of the subpoena or, alternatively, a mandatory injunction directing appellant to comply with the Excelsior requirement. The district court ordered enforcement of the subpoena, and this appeal followed. By it appellant has launched a broadside attack against the Excelsior rule, challenging its substance, the procedure of its promulgation, and the statutory basis of the subpoena power invoked to enforce it.
The court is of one mind in not being greatly impressed by the arguments challenging the wisdom of the Excelsior rule, but this is a matter on which the majority of the court does not feel called upon to make a decision. We mention briefly the Board’s concern in insuring an informed employee electorate, and in balancing management’s right of access to employees in the plant through the mails with a right on the part of unions — and anti-union employees —to have access to the addresses of a constantly changing roster of employees. It is unnecessary to repeat the Board’s responses in Excelsior to the contentions that its authority to compel disclosure is limited to cases where other channels of information do not exist and that such compulsory disclosure invades the privacy of employees. Likewise we are not greatly impressed by the contention that compelling a list of names and addresses forces appellant to “interfere” with a labor organization, in violation of 29 U.S.C. § 158(a) (2), and to give a “thing of value” to a labor organization, in violation of 29 U.S.C. § 186. The former statute, as is indicated by the cases cited to us by appellant, is concerned with acts of favoritism. It is difficult to think that supplying the Board with information, pursuant to a Board order, which the Board will give to all persons alike who show a legitimate interest, would be considered a proscribed gift.
A threshhold question, however, is raised by appellant’s claim that the Excelsior rule is invalid because, concededly, it was promulgated in disregard of the notice and publication requirements of the Administrative Procedure Act, 5 U.S.C.A. §§ 552, 553.1 In the opinion of the majority of the court this issue is determinative.
Events leading to the establishment of the rule grew out of two consolidated cases coming before the Board on union challenges of elections on the ground that the employers had refused to supply the unions with lists of names and addresses of employees so that the unions might answer a campaign letter sent by the company to the employees. Recognizing the problem to be one affecting more than just the parties before it, the Board chose to solicit the assistance of selected amici curiae, and, ultimately, to establish a rule which not only did not apply to the parties before it, but did not take effect for thirty days.2 In so doing we consider that the Board, to put it bluntly, [397]*397designed its own rulemaking procedure, adopting such part of the Congressional mandate as it chose, and rejecting the rest.
In presently justifying its position the Board does not seek to carve out for itself the special defense suggested by our brother Coffin in dissent, but asserts that what it did was proper administrative action approved by the Court in SEC v. Chenery Corp., 1947, 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995. It is, of course, true that the Court there recognized that an adjudicatory administrative body may promulgate rules through decision as well as through more formal rule-making procedures. This is a necessary and inevitable consequence of adjudication. Normally the Board must decide cases between party and party, as the Commission did in Chenery. The result, if stare decisis is to mean anything, is that any principle, once decided, stands as a guide for the future and may be spoken of as a rule. Examples are legion. Sometimes, until the Board spoke, all parties may have thought the “rule” was the other way. This may be unfortunate, but it is normally unavoidable, as Chenery demonstrates.
In Excelsior, however, the Board did not decide a case between party and party, or, more exactly, it decided a case one way, and took occasion to lay down a future rule the other way. Chenery in no fashion suggests approval of this. On the contrary, to the extent the Board was not deciding a case, this is precisely where Congress had instructed it as to the procedure it should adopt. The Board has chosen to disregard Congress.
Although the first time in this circuit, this is neither the first nor the most severe instance of Board action approximating contravention of the APA in this manner. It has been long and severely criticized, e. g., Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961); 1 Davis, Administrative Law § 6.13 (Supp.1967), with no apparent effect. We regret that the matter comes before us in connection with a rule to which we see little or no objection and for which there is much to be said. Yet, to blink at this procedure in this instance because we may approve of the result, we believe would be neither honest nor wise.3 Congress provided no exception in the APA for rules improperly promulgated, but which some court, in a ease between the agency and some individual, was persuaded were sound. To recognize such an exception would be to emasculate the statute.
We read Judge Coffin’s dissent as disagreeing on this matter only in that he believes the rule promulgated to be “procedural” within the APA definition and therefore not subject to the requirement that advance notice of the intended rule-making, and the substance of the rule, be given and that interested parties be afforded an opportunity to comment. 5 U.S.C.A. § 553. If the rule related simply to the mechanics of conducting an election, to superintending or checking the voters, we would agree. The Excelsior
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ALDRICH, Chief Judge.
This is an appeal from an order of the district court enforcing compliance with a National Labor Relations Board subpoena which ordered an employer to furnish names and addresses to its employees. The issuance of the subpoena stems from efforts of two unions, the Internationa] Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Boilermakers), and the United Steelworkers of America, AFL-CIO (Steelworkers), to represent some 1750 production and maintenance employees at appellant’s plants in three Massachusetts communities. The Board’s Regional Director, after investigation and hearing, ordered an election and directed appellant, in accordance with the rule announced in Excelsior Under[396]*396wear, Inc., 1966, 156 N.L.R.B. 1236, to furnish the Board a list of the names and addresses of all employees eligible to vote. Appellant agreed to furnish a list of names, but refused to supply addresses. Notwithstanding this refusal, the election was held, resulting in 226 votes for the Boilermakers, 555 for the Steelworkers, and 903 against any union.
On objection by both unions, the Regional Director set aside the election and ordered a new one. The Board affirmed this decision. Again the Regional Director demanded an Excelsior list, and again appellant refused. The subpoena then issued. The Board filed a complaint seeking enforcement of the subpoena or, alternatively, a mandatory injunction directing appellant to comply with the Excelsior requirement. The district court ordered enforcement of the subpoena, and this appeal followed. By it appellant has launched a broadside attack against the Excelsior rule, challenging its substance, the procedure of its promulgation, and the statutory basis of the subpoena power invoked to enforce it.
The court is of one mind in not being greatly impressed by the arguments challenging the wisdom of the Excelsior rule, but this is a matter on which the majority of the court does not feel called upon to make a decision. We mention briefly the Board’s concern in insuring an informed employee electorate, and in balancing management’s right of access to employees in the plant through the mails with a right on the part of unions — and anti-union employees —to have access to the addresses of a constantly changing roster of employees. It is unnecessary to repeat the Board’s responses in Excelsior to the contentions that its authority to compel disclosure is limited to cases where other channels of information do not exist and that such compulsory disclosure invades the privacy of employees. Likewise we are not greatly impressed by the contention that compelling a list of names and addresses forces appellant to “interfere” with a labor organization, in violation of 29 U.S.C. § 158(a) (2), and to give a “thing of value” to a labor organization, in violation of 29 U.S.C. § 186. The former statute, as is indicated by the cases cited to us by appellant, is concerned with acts of favoritism. It is difficult to think that supplying the Board with information, pursuant to a Board order, which the Board will give to all persons alike who show a legitimate interest, would be considered a proscribed gift.
A threshhold question, however, is raised by appellant’s claim that the Excelsior rule is invalid because, concededly, it was promulgated in disregard of the notice and publication requirements of the Administrative Procedure Act, 5 U.S.C.A. §§ 552, 553.1 In the opinion of the majority of the court this issue is determinative.
Events leading to the establishment of the rule grew out of two consolidated cases coming before the Board on union challenges of elections on the ground that the employers had refused to supply the unions with lists of names and addresses of employees so that the unions might answer a campaign letter sent by the company to the employees. Recognizing the problem to be one affecting more than just the parties before it, the Board chose to solicit the assistance of selected amici curiae, and, ultimately, to establish a rule which not only did not apply to the parties before it, but did not take effect for thirty days.2 In so doing we consider that the Board, to put it bluntly, [397]*397designed its own rulemaking procedure, adopting such part of the Congressional mandate as it chose, and rejecting the rest.
In presently justifying its position the Board does not seek to carve out for itself the special defense suggested by our brother Coffin in dissent, but asserts that what it did was proper administrative action approved by the Court in SEC v. Chenery Corp., 1947, 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995. It is, of course, true that the Court there recognized that an adjudicatory administrative body may promulgate rules through decision as well as through more formal rule-making procedures. This is a necessary and inevitable consequence of adjudication. Normally the Board must decide cases between party and party, as the Commission did in Chenery. The result, if stare decisis is to mean anything, is that any principle, once decided, stands as a guide for the future and may be spoken of as a rule. Examples are legion. Sometimes, until the Board spoke, all parties may have thought the “rule” was the other way. This may be unfortunate, but it is normally unavoidable, as Chenery demonstrates.
In Excelsior, however, the Board did not decide a case between party and party, or, more exactly, it decided a case one way, and took occasion to lay down a future rule the other way. Chenery in no fashion suggests approval of this. On the contrary, to the extent the Board was not deciding a case, this is precisely where Congress had instructed it as to the procedure it should adopt. The Board has chosen to disregard Congress.
Although the first time in this circuit, this is neither the first nor the most severe instance of Board action approximating contravention of the APA in this manner. It has been long and severely criticized, e. g., Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961); 1 Davis, Administrative Law § 6.13 (Supp.1967), with no apparent effect. We regret that the matter comes before us in connection with a rule to which we see little or no objection and for which there is much to be said. Yet, to blink at this procedure in this instance because we may approve of the result, we believe would be neither honest nor wise.3 Congress provided no exception in the APA for rules improperly promulgated, but which some court, in a ease between the agency and some individual, was persuaded were sound. To recognize such an exception would be to emasculate the statute.
We read Judge Coffin’s dissent as disagreeing on this matter only in that he believes the rule promulgated to be “procedural” within the APA definition and therefore not subject to the requirement that advance notice of the intended rule-making, and the substance of the rule, be given and that interested parties be afforded an opportunity to comment. 5 U.S.C.A. § 553. If the rule related simply to the mechanics of conducting an election, to superintending or checking the voters, we would agree. The Excelsior opinion makes the suggestion that this is one of the purposes. 156 N.L. R.B., supra, at 1242-1243. However, the Board’s decision effectively contradicts its own declaration. The Board already had a valid rule requiring the employer to furnish a checklist. The additional requirement of the Excelsior rule is expressly stated not to apply when the time interval is “too brief * * * for the union to be able to make any meaningful use of this information.” Id. at 1242, fn. 14. We can only conclude [398]*398that Excelsior’s purpose is what it appears to be on its face, a provision requiring the employer to furnish interested parties with affirmative assistance in conducting their election campaigns.
Such assistance is substance, not Board procedure. It differs only in degree and not in kind from a requirement, for example, that an employer having an assembly hall or a printing press should make it available to groups requesting it. The Board’s contentions that furnishing a mailing list is not expensive or seriously burdensome, or is required only because the union has no effective substitute, may well be justifications for the rule, but they do not change its character. Judge Coffin’s emphasis on the relative lack of burden, and comparing the compilation of the list with affording space on a bulletin board, suggests factual determinations in each case that seem to us unnecessary at best. His desire to resolve questions of doubt in favor of a procedural label loses importance to us when one considers that its only purpose is to avoid affording interested parties an opportunity to present their views as to what is, quite apparently, a controversial rule.
It is also true that compliance with the rule may well increase the fairness of the election. This, however, is a conclusory argument. Many actions by the employer may add to the fairness of the election. This does not mean that ordering them to be done is procedural. We are particularly unmoved by our brother Coffin’s suggestion that the fact the rule sets up a positive as distinguished from a negative requirement is indicative that it is not substantive.
The judgment of the district court is set aside and the court is ordered to dismiss the complaint.