*2 Before CUMMINGS, SPRECHER, Cir Judges, BONSAL, cuit Senior District Judge.* SPRECHER, Judge. Circuit The employer, County Hendricks Rural Electric Membership Corporation (REMC), appeals from a decision of the National Labor Relations Board finding that REMC engaged in unfair practices labor in viola tion of 8(a)(1) section of the National Labor Relations Act. 29 158(a)(1). U.S.C. § principal presented issue by this appeal is whether personal secretary gen eral manager of REMC was an “employee” under 2(3) section of the Act. 29 U.S.C. We hold that the Board did not apply the appropriate legal standard for resolving this issue and remand for a factu application proper standard. I 9, 1977, general manager of May On REMC, Dillon, per- discharged his Wallace Bonsai, Dudley Judge * The Honorable B. Senior District of the Southern District of New sitting by designation. York is secretary, ditionally sonal Mary Weatherman. that the circulation Hadley charged General Counsel that Weatherman protected by was not conduct in concerted Mary Act and that activities by section of the Na- employee protected Although the Act. tional Labor Relations Act. The adminis- judge correctly we conclude that the char- trative law a hearing conducted acterized Weatherman’s conduct as *3 that determined Weatherman was an “em- “protected,” it necessary we find to remand ployee” coverage within the that the the decision for a new determination of her engaged she had protected in concerted ac- “employee” status. tivity discharged and that Dillon for her activity.

that The judge ordered REMC to II reinstate with back pay. Weatherman prac- was of an guilty REMC unfair labor surrounding facts dis- Weatherman’s only Mary tice in this case if Weatherman charge carefully were the by established discharged was in “concerted judge. Lloyd Hadley, administrative law a purpose activities the mu- Weatherman, close injured friend of was in protection.” 7, 29 tual aid Section U.S.C. 1976, the employment course of in February petition circulation of the resulting in the an loss of arm. In March among undoubtedly the was 1977, Hadley sought with reinstatement “concerted,” disputes but REMC that it was REMC. The Board of Directors notified “purpose circulated for the aid or mutual April Hadley in that he would not rein- be protection.” stated. recently only The Board has reiter petition The first week aMay, in request- of a on petition ated that circulation behalf ing reconsideration of the decision not discharged protected is activ employee Hadley reinstate was mailed members of ity Youngstown under section 7. Osteo the petition by Board. The signed was 26 Association, Hospital pathic 224 N.L.R.B. employees. Mary signed Weatherman the activity protected 574 is even Such petition; she was employee the sixth to do discharge employee if of the was lawful. the 7, Saturday, so. On May one of the di- Co., See, g., Pepsi-Cola Bottling NLRB v. e. rectors called Dillon at home to him advise 824, (5th 1971). 449 F.2d 830 n.5 Cir. petition. the Dillon drove to the di- day rector’s home that in the order to see similarly Employee conduct should petition. petition be criticizes the when the At Monday, 10:00 a. m. on May Dillon injured refusal to reinstate an employer’s discharged At hearing, Weatherman. the judge employee. The administrative law Dillon discharged testified that he Weather- specifically petition motivat found the was man Hadley for conduct unrelated to the part by employees’ pro ed in the desire to petition. The judge administrative law being their own well should mote future conducted extensive and careful evalua- a be faced with similar misfortune. tion of the evidence and concluded that company a former em Refusal reinstate explanation Dillon’s discharge was ployee seriously injured job on is an the “ludicrous.” the issue about which REMC conclude, contrary argu We legitimate interest ... in “had ment employer, making management judge’s that the deci views to known their sion discharged that interest.” being for that without Co., for signing the Hadley petition fully sup is v. Phoenix Mutual Life Ins. 167 NLRB ported by 1948).2 the argues (7th evidence.1 ad- REMC F.2d 988 Cir. Workers, 1. The ALJ also found the Local No. that REMC violated 2. Allied Chemical & Alkali Co., improperly interrogating Pittsburgh Act cleri- 92 another 1 v. Plate Glass employee strongly petition. (1971), cal relied about the 341 We find L.Ed.2d supported employer, simply undermine conclusion also the does not evidence. clearly III which we do not consider erroneous. judge therefore concluded that Weath- ALJ Although properly conclud statutory “employee.” erman was a ed that the circulation protected activity, protection only can erred We do not believe “employ extend to an individual who is an factually by finding that Weatherman did ee” Despite capacity under the with Act. breadth of not assist in a confidential policies. “employee,” We do definition of to labor relations conclude, however, the use of the B. F. Court has catego established certain Goodrich was an error law. impliedly ries of are standard excluded from that definition. NLRB v. Bell Aero held that “con previously This Court has Co., space 94 S.Ct. fidential” are excluded from the secretaries L.Ed.2d argues REMC that in NLRB, Peerless, F.2d 1108 Act. Inc. personnel dividuals working departments (7th 1973). Wheeling also NLRB v. Cir. See or as impliedly confidential secretaries are (4th 1971). Electric Cir. *4 excluded and that Weatherman fits in both represent The B. F. standard does Goodrich categories. question on the of current Board law should be secretary whether a considered an

In determining whether Mary Weather- secretary.” excluded “confidential See Wil statutory man was a “employee,” the ALJ Co., lett Motor 227 N.L.R.B. 882 Coach applied a well-established Board standard. Co., (1977); Minneapolis Star and Tribune The judge ruled that Weatherman 342, (1976); 222 California In N.L.R.B. 343 was only the excluded from Act if she “as- Bureau, 780, spection Rating 215 N.L.R.B. and in a capaci- confidential sist[ed] act[ed] Nonetheless, (1974). 783 believe that we ty determine, persons formulate, to who to serious exposed standard was management and policies effectuate in the Supreme the the 1974 decision of Court in field of labor 236 relations.” N.L.R.B. No. Co., 267, Aerospace NLRB v. Bell Appendix 7, 212 quoting at B. F. Goodrich 1757, S.Ct. 40 L.Ed.2d 722, N.L.R.B. Exam- ining carefully, the evidence the de- Aerospace, Supreme In Bell Court termined that Weatherman “did not act ‘in buyers of whether confronted the issue a capacity’ confidential any to Dillon in employer’s purchasing department an were meaningful sense with [employ- statutory or were as employees excludable ” policies. labor relations . . . Id. managerial argued er’s] The Board employees. The ALJ also buyers found though manage- that even were not working rial, position equivalent in a to a were the Act since covered personnel department employee, jobs finding a their were unrelated to the “formula- Glass, otherwise, Pittsburgh explicitly this conclusion. In Act Plate states and shall in- any Court refused to find reduction of the clude individual whose work has ceased employees’ pensions mandatory of, with, retired consequence was a as or in connection subject bargaining. Mandatory bargaining of any dispute any or current labor because of “ only extends to the ‘terms and conditions of practice, unfair labor and who has not employment’ employer’s ‘employees’ any regular substantially obtained other . . . .” 404 U.S. at 92 S.Ct. at 390. equivalent employment, but shall not include scope activity protected under section 7 any employed agricultural individual as an broader, obviously extending much to con- laborer, any domestic or in the service activity engaged purposes certed in for the home, family person any or his or individu- at protection. mutual aid and Thus the fact that any employed by parent spouse, al his or or may obligation REMC been under have an having indepen- individual the status of an bargain Hadley’s with the over contractor, any employed dent individual or way employees’ reinstatement in no limits the supervisor, any employed as a individual or freedom to circulate a on his behalf. employer subject Railway Labor Act, time, by any time to amended from provides: 3. The Act person employer other not an as here- who is “employee” any The term shall include em- in defined. ployee, and shall not be limited to the em- 2(3), 29 U.S.C. § ployees particular employer, unless the implementation treated, presumably tion and of labor relations will continue to policies.” treat, at 94 S.Ct. at 1761. persons scope U.S. as outside the Supreme disagreed, holding Court Conf.Rep. the Act.” H.R. No. managerial all Sess., were excluded Cong., (1947) 1st 35-36 U.S.Code regard from the Act without any em- Cong.Serv. p. Relying legisla- on this ployment policies. nexus to labor relations history, Supreme tive in Bell Court Aerospace concluded that confidential em- Supreme presented Court was not secretaries, ployees, including confidential with the issue of whether all secretaries persons were “who both the House and the acting in capacity confidential are also ex- plainly believed were Senate outside cluded from the Act without to labor Act.” 416 at at 1766. relations nexus. Nor do we think that the policies favoring the exclusion of all mana- Proceeding interpretation from the gerial employees from the Act necessarily confidential secretaries were excluded from dictate the exclusion of all confidential sec- Act, manageri- the Court reasoned that Nonetheless, retaries as well. impliedly also be ex- should interpretation Court Aerospace in Bell cluded. The “The Court concluded: Court the 1947 amendment to the National Labor Appeals put in the instant case the issue ‘ Relations legislative history Act and its re- . Surely Congress well: . could not quires the that all conclusion confidential that, supposed have while sec- ‘confidential secretaries are excluded. organized, retaries’ could not be their bosses ” could be.’ Id. at at 1947, Congress passed the Taft-Hart- quoting at 491-92. 475 F.2d 485 ley amending the National Labor Rela- *5 “supervisors” tions Act to exclude from the clearly the 1947 his- The Court thus read bill, Act.4 The House H.R. 80th tory indicating Congressional as intention Cong., (1947),excluded, 1st through Sess. its to exclude The confidential secretaries. definition supervisor, those opinion segments Court’s and various “employed relations, personnel, in labor [or] legislative history clarify further that “con- employment . . . matters” as well as by fidential” status was not to be defined by those “who the nature of duties is [their] reference to labor relations. The Court given by the employer information that is stated, em- discussion of ‘confidential “[t]he nature, of a confidential and that is not ployees’ in both the House and Conference available public, competitors, to or to Reports Committee . . . unmistak- employees generally, for use in the interest ably refers to that term as defined in the employer.” n.9, 416 U.S. at 279-80 bill, just House not limited which was ” Bill, at S.Ct. 1764-1765 n.9. The Senate [employees] those in ‘labor relations.’ hand, the other did not enumerate these n.12, 1766 n.12. The U.S. at 284 94 S.Ct. at categories two for exclusion. terms, ex- Report, House in no uncertain pressed that “confidential” sta- an intention Although the Senate version of the Bill tus not be a labor nexus. restricted eventually enacted, was the Conference [Protecting financial infor- Report emphasized “per- Committee confidential relations, competitors speculators, working sons in labor mation from and personnel employment departments” protecting processes experi- and secret and and “confi- competitors, protecting dential secretaries” were considered exclud- ments from and specific provision ed. A rest in the thought ought “was not other vital secrets not to necessary . . . since the Board has administrative discretion of Board provides: action, effectively 4. The Act to recommend such if in foregoing connection with the the exercise of “supervisor” any The term means individu- merely authority or routine having authority, in the interest of the nature, requires hire, transfer, off, clerical but the use of inde- employer, lay suspend, pendent judgment. recall, promote, reward, discharge, assign, or 2(11), discipline employees, responsibly 29 U.S.C. § other or them, adjust grievances, direct or to their employ- specific job title of space, “the therefore excludes . . The bill controlling. itself is not in persons ees involved the definition of from em- Rather, particular and confidence whether holding positions of trust informa- give ‘managerial’ confidential] them secret ployees whose duties are [or employ- in terms tion. answered must be authority, job responsibilities, actual ees’ Sess., as Cong., 1st H.R.Rep.No. management.” relationship to Arkansas Electric cited in NLRB North order n.19. The n.19, at 1769 at 290 Inc., (8th Cir. Cooperative, proceedings remanded is reversed 1971). opinion. with consistent excerpted report, as The conference dissenting. BONSAL, Judge, District was above, specific exception that no states already necessary the Board excluded since me record satisfies I would affirm. fact, the Board has such individuals. “confi- not a Mary Weatherman historically only those confidential excluded by the was covered secretary” and dential working in the secretaries for individuals administrative finding of the Act. See, g., e. Consoli- field of labor relations. judge that she was Corporation, 54 dated Vultee Aircraft N.L. viz., activity, the cir- concerted Nonetheless, B. Su- R. asking reconsidera- culation “Congress preme although Court found deci- of its of Directors the Board tion Board have . . may misconstrued supported Hadley, was reinstate sion not to thought the Act practice,” “clearly it evidence. substantial employees’ even did not cover ‘confidential definition of that term.” under a broad n.12, n.12.5 at 268 at 1766 history of the Taft legislative

Hartley interpreted in Bell Aero space, requires the conclusion that all secre BETAR, Samuel J. Public Administrator capacity, working taries in a confidential County, Cook and Administrator relations, without to labor be exclud Raghubir Law, Dutt De the Estate of the Act. The administrative law ed from *6 ceased, Plaintiff-Appellant, inquiry limited his factual in this case

to a determination that Weatherman had v. capacity with not acted in a confidential DE AIRCRAFT OF CANA HAVILLAND to labor relations. We therefore DA, LTD., Corporation, a Canadian necessary the case for a find it to remand Defendant-Appellee. “by of whether the nature of determination No. 78-1911. “given by employ duties” she was [her] na er that is of a confidential information Appeals, United States Court ture, public, that is not available to the Circuit. Seventh competitors, employees generally, toor Argued April 1979. employer.” for use in the interest of the Aug. 1979. Decided 2(12)(C), Cong., 1st H.R. 3020 Sess. n.12, Rehearing Rehearing also 416 U.S. at 284 En Banc See of “confi Sept. S.Ct. 1757. The determination Denied 1979. ap dential” status is of course

propriately to Board discretion. committed in Bell Aero-

As the Court stated 1757; Sperry opinion & Hutchinson FTC 5. the Second Circuit See also note 10 of 233, 249, Bell, 31 L.Ed.2d necessity case such 6. As for remand in a this, Aerospace, see Bell 416 U.S. at