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NLRB V. WYMAN-GORDON CO., 394 U. S. 759 (1969)

U.S. Supreme Court

NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969)

National Labor Relations Board v. Wyman-Gordon Co.

No. 63

Argued March 3, 1969

Decided April 23, 1969

394 U.S. 759


The National Labor Relations Board (NLRB) ordered a representation election among respondent's employees, and directed respondent to furnish a list of names and addresses of employees eligible to vote. Respondent refused to furnish the list, the election was held without it, and the unions were defeated. The NLRB ordered a new election and respondent again refused to obey an NLRB order to supply the list. The NLRB issued a subpoena ordering respondent to provide the list or records showing the employees' names and addresses. The NLRB filed an action in the District Court seeking to have its subpoena enforced or to have an injunction issued to compel compliance with its order. The District Court held the NLRB's order valid and directed respondent to comply. The Court of Appeals reversed, holding the order invalid because it was based on a rule laid down in an earlier NLRB decision, Excelsior Underwear Inc., 156 N.L.R.B. 1236, which rule had not been promulgated in accordance with the rulemaking requirements of the Administrative Procedure Act.

Held: The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to reinstate its judgment. Pp. 394 U. S. 761-775.

397 F.2d 394, reversed and remanded.


1. In the Excelsior case the NLRB purported to exercise its quasi-legislative power and make a rule without following the rulemaking requirements of the Administrative Procedure Act. The Excelsior "rule" is therefore invalid. Pp. 394 U. S. 763-765.

2. Here respondent was directed in an adjudicatory proceeding to submit a list of employees for use in connection with an election,

Page 394 U. S. 760

and it was not the Excelsior "rule," but this valid order, that respondent was required to obey. P. 394 U. S. 766.

3. The requirement of disclosure of employees' names is substantively valid, as the NLRB has wide discretion to ensure the fair and free choice of bargaining representatives, and such disclosure furthers this objective. P. 394 U. S. 767.

4. The list of names comes within the scope of the term "evidence" in § 11 of the National Labor Relations Act, and so may properly be subpoenaed by the NLRB. Pp. 394 U. S. 768-769.


1. The requirement that an employer supply a list of employees prior to an election is valid, and can be enforced by subpoena. P. 394 U. S. 769.

2. The Excelsior practice was adopted by the NLRB as a legitimate incident to the adjudication of a specific case, and the NLRB properly followed the procedures applicable to "adjudication", rather than "rulemaking." Pp. 394 U. S. 770-775.

(a) NLRB's adjudicatory and rulemaking powers are almost inseparably related, and the exercise of one power does not exclude the use of the other. Pp. 394 U. S. 770-771.

(b) The choice between proceeding by general rule or by adjudication lies primarily in the informed discretion of the NLRB. Pp. 394 U. S. 771-772.

(c) All procedural safeguards required for adjudication were satisfied in the Excelsior case, and that decision did constitute adjudication within the meaning of the Administrative Procedure Act. Pp. 394 U. S. 772-773.

(d) Even though the Excelsior list-furnishing requirement was to apply prospectively, the Excelsior order should not be regarded as any less a part of the adjudicatory process merely because the NLRB did not feel that it should upset Excelsior Company's reliance on past refusals to compel disclosure by setting aside that particular election. Pp. 394 U. S. 773-774.

(e) It would be impractical to require the NLRB, in effect, to proceed by adjudication only when it could decide, prior to adjudicating a specific case, that any new practice to be adopted would be applied retroactively. Pp. 394 U. S. 774-775.

Page 394 U. S. 761

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