## Facts

- The NLRB directed a representation election among Wyman-Gordon Co.’s employees.
- Relying on its prior decision announcing an “Excelsior list” practice, the NLRB ordered the employer to provide names and addresses of employees eligible to vote.
- Wyman-Gordon refused to supply the list; the election proceeded and the unions lost.
- The NLRB set aside the election based on the refusal and ordered a new election, again directing production of the list; Wyman-Gordon again refused.
- The NLRB issued a subpoena seeking the list (or records showing employee names and addresses) and sought enforcement in federal district court.

## Issues

1. Whether the Board’s “Excelsior list” requirement was validly adopted under the Administrative Procedure Act.
2. Whether the NLRB could, in an adjudicatory proceeding, require Wyman-Gordon to produce the list and enforce that requirement by subpoena under § 11 of the National Labor Relations Act.

## Decision

- The Supreme Court reversed the court of appeals and remanded with directions to reinstate the district court judgment enforcing the Board’s subpoena/order.
- A plurality concluded the “Excelsior” requirement was invalid as a generally applicable legislative-type rule because it was announced without APA rulemaking procedures, but held the specific disclosure order issued in this case was enforceable as an adjudicatory order.
- The Court sustained the substance of requiring disclosure to support fair representation elections.
- The Court held the employee list qualified as “evidence” within the meaning of NLRA § 11 and could be compelled by subpoena.
- A concurrence agreed the subpoena/order was enforceable, but would not treat the “Excelsior” practice as invalid; it viewed the practice as permissible policymaking incident to adjudication.

## Legal Principles

- An agency may not impose a legislative-type rule of general applicability through rulemaking without complying with the APA’s notice-and-comment procedures.
- An agency may impose and enforce a disclosure requirement through an adjudicatory order, even if the order references a separately defective general rule.
- The NLRB has broad discretion to prescribe procedures that protect employees’ free choice in representation elections, including measures that reduce employer informational advantage.
- An employee name-and-address list used to conduct a fair election may be treated as “evidence” subject to compulsory process under NLRA § 11.

## Conclusion

The Court required Wyman-Gordon to provide an employee name-and-address list for an NLRB election, enforcing the Board’s subpoena authority under NLRA § 11 and upholding the disclosure order as a valid adjudicatory measure despite disagreement over the APA status of the Board’s earlier announced practice.


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