NATIONAL LABOR RELATIONS BOARD v. BELL AEROSPACE COMPANY, DIVISION OF TEXTRON, INC.
No. 72-1598
Supreme Court of the United States
Argued January 14, 1974—Decided April 23, 1974
416 U.S. 267
Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, Patrick Hardin, and Linda Sher.
Richard E. Moot argued the cause and filed a brief for respondent.*
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents two questions: first, whether the National Labor Relations Board properly determined
I
Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) for a representation election to determine whether the union would be certified as the bargaining representative of the 25 buyers in the purchasing and procurement department at the company‘s plant. The company opposed the petition on the ground that the buyers were “managerial employees” and thus were not covered by the Act.
The relevant facts adduced at the representation hearing are as follows. The purchasing and procuremеnt department receives requisition orders from other departments at the plant and is responsible for purchasing all of the company‘s needs from outside suppliers. Some items are standardized and may be purchased “off the shelf” from various distributors and suppliers. Other items must be made to the company‘s specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and in some instances the
Absent specific instructions to the contrary, buyers have full discretion, without any dollar limit, to select prospective vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000. They may place or cancel orders of less than $5,000 on their own signature. On commitments in excess of $5,000, buyers must obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company‘s sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman and signs the purchase order, but a representative from the pricing and negotiation department participatеs in working out the terms.
After the representation hearing, the Regional Director transferred the case to the Board. On May 20, 1971, the Board issued its decision holding that the company‘s buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N. L. R. B. 431. Relying on its recent decision in North Arkansas Electric Cooperative, Inc., 185 N. L. R. B. 550 (1970), the Board first stated that even though the company‘s buyers might be “managerial employees,”2 they
On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Bоard certified the union as the exclusive bargaining representative for the company‘s buyers. That same day, however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F. 2d 602, and held that “managerial employees” were not covered by the Act and were therefore not entitled to its protections. Id., at 610.
Encouraged by the Eighth Circuit‘s decision, the company moved the Board for reconsideration of its earlier
The company stood by its contention that the buyers, as “managerial employees,” were not covered by the Act and refused to bargain with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated
The Court of Appeals denied enforcement. 475 F. 2d 485 (1973). After reviewing the legislative history of the Taft-Hartley Act of 1947,
Turning to the merits of the present case, the court acknowledged that there was substantial evidence that the company‘s buyers were not sufficiently high in the managerial hierarchy to constitute true “managerial employees.” Nevertheless, the court denied enforcement for two reasons. First, it was not certain that the Board‘s decision rested on a factual determination that these buyers were not true “managerial employees” rather than on “its new, and in our view, erroneous holding that it was free to regard all managerial employees as covered by the Act unless their duties met” the conflict-of-interest touchstone. Id., at 494-495. Second, although the Board was not precluded from holding that buyers, or some types of buyers, were not “managerial employees,” the court thought that, in view of the Board‘s long line of cases holding the contrary, it could not accomplish this change of position by adjudication. Rather, the Board should conduct a rulemaking proceeding in conformity with
II
We begin with the question whether all “managerial employees,” rather than just those in positions susceptible to conflicts of interest in labor relations, are excluded from the protections of the Act.4 The Board‘s early decisions, the legislative history of the Taft-Hartley Act of 1947,
A
The Wagner Act,
“We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, dеtermine and effectuate management policies. These employees we have considered and still deem to be ‘managerial,’ in that they express and make operative the decisions of management.”
Whether the Board regarded all “managerial employees” as entirely outside the protection of the Act, as well as inappropriate for inclusion in a rank-and-file bargaining unit, is less certain. To be sure, at no time did the Board certify even a separate unit of “managerial employees” or state that such was possible. The Board was cautious, however, in determining which employees were “managerial.” For example, in Dravo Corp., 54 N. L. R. B. 1174, 1177 (1944), the Board excluded buyers and expediters from a unit of office and clerical em-
“This is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act. The precise relationship of the buyers and expediters to management here is not now being determined by us.”
During this period the Board‘s policy with respect to the related but narrower category of “supervisory employees” manifested a progressive uncertainty. The Board first excluded supervisors from units of rank-and-file employees, e. g., Mueller Brass Co., 39 N. L. R. B. 167; 171 (1942), but in Union Collieries Coal Co., 41 N. L. R. B. 961, supplemental decision, 44 N. L. R. B. 165 (1942), it certified a separate unit composed of supervisors who were to be represented by an independent union. Shortly thereafter, in Godchaux Sugars, Inc., 44 N. L. R. B. 874 (1942), the Board approved a unit of supervisors whose union was affiliated with a union of rank-and-file employees. This trend was soon halted, however, by Maryland Drydock Co., 49 N. L. R. B. 733 (1943), where the Board held that supervisors, although literally “employees” under the Act, could not be organized in any unit. And in Yale & Towne Mfg. Co., 60 N. L. R. B. 626, 628-629 (1945), the Board further held that timestudy men, whose “interests and functions” were “‘sufficiently akin to those of management,‘” should neither be included in a unit with other employees, nor be established as a separate unit.”
Maryland Drydock, supra, was subsequently overruled in Packard Motor Car Co., 61 N. L. R. B. 4, 64 N. L. R. B. 1212 (1945), where the Board held that foremen could constitute an appropriate unit for collective bargaining. The Board‘s position was upheld 5-4 by this Court in
“The present decision . . . tends to obliterate the line between management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating group on the one hand and the stockholder and bondholder group on the other. The industrial problem as so defined comes down to a contest over a fair division of the gross receipts of industry between these two groups. The struggle for control or power between management and labor becomes secondary to a growing unity in their common demands on ownership.
“I do not believe this is an exaggerated statement of the basic policy questions which underlie the present decision. For if foremen are ‘employees’ within the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistаnt superintendents—indeed, all who are on the payroll of the company, including the president; all who are commonly referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presidents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate factions in warring camps.
“[I]f Congress, when it enacted the National Labor
Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none.” Id., at 494-495.
MR. JUSTICE DOUGLAS also noted that the Wagner Act was intended to protect “laborers” and “workers” whose right to organize and bargain collectively had not been recognized by industry, resulting in strikes, strife, and unrest. By contrast, there was no similar history with respect to foremen, managers, superintendents, or vice presidents. Id., at 496-497. Furthermore, other legislation indicated that where Congress desired to include managerial or supervisory personnel in the category of employees, it did so expressly. See, e. g., Railway Labor Act of 1926,
B
The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947,
Significantly, both the House Report and the Senate Report voiced concern over the Board‘s broad reading of the term “employee” to include those clearly within the managerial hierarchy. Focusing on MR. JUSTICE DOUGLAS’ dissent in Packard, the Senate Report specifically mentioned that even vice presidents might be unionized under the Board‘s decision. Ibid. It also noted that unionization of supervisors had hurt productivity, increased the accident rate, upset the balance of power in collective bargaining, and tended to blur the line between management and labor. Id., at 4-5. The House Report echoed the concern for reduction of industrial output and noted that unionization of supervisors had deprived employers of the loyal representations to which they were entitled.11 And in criticizing the
The Conference Committee adopted the Senate version of the bill. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 35 (1947). The House Managers’ statement in explanation of the Conference Committee Report stated:
“The conference agreement, in the definition of ‘supervisor,’ limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment . . . applicable with respect to professional employees will covеr many of this category. In the case of guards, the conference agreement does not permit the
certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards.” Id., at 35-36.
The legislative history of the Taft-Hartley Act of 1947 may be summarized as follows. The House wanted to include certain persons within the definition of “supervisors,” such as straw bosses, whom the Senate believed should be protected by the Act. As to these persons, the Senate‘s view prevailed. There were other persons, however, who both the House and the Senate believed were plainly outside the Act. The House wanted to make the exclusion of certain of these persons explicit. In the conference agreement, representatives from both the House and the Senate agreed that a specific provision was unnecessary since the Board had long regarded such persons as outside the Act. Among those mentioned as impliedly excluded were persons working in “labor relations, personnel and employment departments,” and “confidential employees.” But assuredly this did not exhaust the universe of such excluded persons. The legislative history strongly suggests that there also were other employees, much higher in the managerial structure, who were likewise regarded as so clearly outside the Act that no specific exclusionary provision was thought necessary. For example, in its discussion of confidential employees, the Hоuse Report noted that “[m]ost of the people who would qualify as ‘confidential’ employees are executives and are excluded from the act in any event.” H. R. Rep. No. 245, p. 23 (emphasis added).12 We think
“Congress recognized there were other persons so much more clearly ‘managerial’ that it was inconceivable that the Board would treat them as employees. Surely Congress could not have supposed that, while ‘confidential secretaries’ could not be organized, their bosses could be. In other words, Congress failed to enact the portion of MR. JUSTICE DOUGLAS’ Packard dissent relating to the organization of executives, not because it disagreed but because it deemed this unnecessary.” 475 F. 2d, at 491-492.13 (Footnote omitted.)
Following the passage of the Taft-Hartley Act, the Board itself adhered to the view that “managerial employees” were outside the Act. In Denver Dry Goods, 74 N. L. R. B. 1167, 1175 (1947), assistant buyers, who
“The determination of ‘managerial,’ like the determination of ‘supervisory,’ is to some extent necessarily a matter of the degree of authority exerсised. We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as ‘managerial’ employees, executives who formulate and effectuate management policies by expressing and making operative decisions of their employer, and have excluded such managerial employees from bargaining units. We believe that the Act, as amended, contemplates the continuance of this practice.” (Citations omitted.)
Buyers and assistant buyers were again excluded in Denton‘s, Inc., 83 N. L. R. B. 35, 37 (1949), because their “interests . . . are more closely identified with management . . . .” And in American Locomotive Co., 92 N. L. R. B. 115, 116-117 (1950), the Board held that buyers could neither be included in a unit of office and clerical employees nor placed in a separate unit, stating:
“The Employer maintains that the buyers are representatives of management. As it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they are representatives of management, and as such may not be accorded bargaining rights under the Act.”
Buyers, who were authorized to bind the employer without prior approval, were also excluded from a unit in
Curtiss-Wright Corp., 103 N. L. R. B. 458, 464 (1953), because “they are representatives of management and as such may not be accorded bargaining rights under the Act.” Finally, in Swift & Co., 115 N. L. R. B. 752, 753-754 (1956), the Board reaffirmed its long-held understanding of the scope of the Act. In refusing to approve a unit of procurement drivers who were found to be representative of management, the Board declared:Until its decision in North Arkansas in 1970, the Board consistently followed this reading of the Act.14 It never“It was the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management. Such individuals cannot be deemed to be employees for the purposes of the Act. Accordingly, we reaffirm the Board‘s position that representatives of management may not be accorded bargaining rights under the Act....” (Footnotes omitted.)
Surprisingly, the dissent maintains that the Board “actually held only twice” that “managerial employees” were not covered by the Act. Post, at 309. This is difficult to reconcile with the undisputed fact that until its decision in North Arkansas the Board had never even certified a separate unit of “managerial employees” and had stated in case after case that managerial employees were not to be accorded bargaining rights under the Act. E. g., Palace Laundry
certified any unit of “managerial employees,” separate or otherwise, and repeatedly stated that it was Congress’ intent that such employees not be accorded bargaining rights under the Act. And it was this reading which was permitted to stand when Congress again amended the Act in 1959.
The Board‘s exclusion of “managerial employees” defined as those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer,”15 has also been approved by courts without exception. See, e. g., Westinghouse Electric Corp. v. NLRB, 424 F. 2d 1151, 1158 (CA7), cert. denied, 400 U. S. 831 (1970); Illinois State Journal-Register, Inc. v. NLRB, 412 F. 2d 37, 41 (CA7 1969); Continental Insurance Co. v. NLRB, 409 F. 2d 727, 730 (CA2), cert. denied, 396 U. S. 902 (1969); Retail Clerks International Assn. v. NLRB, 125 U. S. App. D. C. 63, 65-66, 366 F. 2d 642, 644-645 (1966) (Burger, J.), cert. denied, 386 U. S. 1017 (1967);16 International Ladies’ Garment Workers’ Union v. NLRB, 339 F. 2d 116, 123 (CA2 1964) (Marshall, J.).17 And in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F. 2d 602 (1971), the Eighth Circuit reviewed the history of the Act and specifically disapproved the Board‘s departure from its earlier position.
In sum, the Board‘s early decisions, the purpose and legislative history of the
In view of our conclusion, the case must be remanded to permit the Board to apply the proper legal standard in determining the status of these buyers.19 SEC v. Chenery Corp., 318 U. S. 80, 85 (1943); FTC v. Sperry & Hutchinson Co., 405 U. S. 233, 249 (1972). We express no opinion as to whether these buyers fall within the category of “managerial employees.”20
The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not “managerial employees,” it could do so only by invoking its rulemaking procedures under § 6 of the Act,
A similar issue was presented to this Court in its second decision in SEC v. Chenery Corp., 332 U. S. 194 (1947) (Chenery II).23 There, the respondent corporation argued that in an adjudicative proceeding the Commission could not apply a general standard that it had formulated for the first time in that proceeding. Rather, the Commission was required to resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court first noted that the Commission had a statutory duty to decide the issue at hand in light of the proper standards and that this duty remained “regardless of whether those standards previously had been spelled out in a general rule or regulation.” Id., at 201. The Court continued:
“The function of filling in the interstices of the [Securities] Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which
arise. . . . Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. “In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards.” Id., at 202-203. (Emphasis added.)
The Court concluded that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.” Id., at 203. And in NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), the Court upheld a Board order enforcing an election list requirement first promulgated in an earlier adjudicative proceeding in Excelsior Underwear Inc., 156 N. L. R. B. 1236 (1966). The plurality opinion of Mr.
The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board‘s discretion. Although there may be situations where the Board‘s reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion. Indeed, there is ample indication that adjudication is especially appropriate in the instant context. As the Court of Appeals noted, “[t]here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter.” 475 F. 2d, at 496. Moreover, duties of buyers vary widely depending on the company or industry. It is doubtful whether any generalized standard could be framed which would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific character of the buyers’ authority and duties in each company. The Board‘s judgment that adjudication best serves this purpose is entitled to great weight.
It is true, of course, that rulemaking would provide the Board with a forum for soliciting the informed views of those affected in industry and labor before embarking on a new course. But surely the Board has discretion to decide that the adjudicative procedures in this case may also produce the relevant information necessary to mature and fair consideration of the issues. Those most immediately affected, the buyers and the company in the particular case, are accorded a full opportunity to be heard before the Board makes its determination.
The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the cause remanded to that court with directions to remand to the Board for further proceedings in conformity with this opinion.
It is so ordered.
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, dissenting in part.
I concur in Part III of the Court‘s opinion insofar as it holds that the Board was not required to resort to rulemaking in deciding this case, but I dissent from its hold
Section 7 of the Act,
“but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the
Railway Labor Act . . . .”29 U. S. C. § 152 (3) .
The issue in this case is whether the term “employee” excludes not only those specifically excluded by § 2 but also the broad category of “managerial” employees who, although literally “employees” of the employer and not expressly excluded by § 2, are nevertheless not to be considered employees for the purposes of the Act because they make and implement managerial policies. The Court holds that no managerial employee is an employee for the purposes of the Act. I cannot agree with this conclusion.
“any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
29 U. S. C. § 152 (11) .
Without more, it could not be concluded that Congress meant to exclude a whole category of employees in addition to those expressly excepted in § 2 (3). To infer that all managerial employees are not employees for purposes of the Act because a specified managerial subgroup, supervisors, was expressly excluded, is unwarranted, at least where Congress was careful to define precisely what employees were within the scope of the supervisory exclusion.
What is more, Congress in § 2 (12),
Insofar as the face of the Act is concerned, and as compared with an across-the-board exclusion of “managerial” employees, the present ruling of the Board, which excludes only those managerial employees whose work may involve them in a conflict of interest if they are permitted to bargain collectively, is a far narrower exclusion adhering much more closely to the rationale of the supervisory exclusion and to the apparent intent of Congress. The Court nevertheless not only holds that the term employee may be construed to exclude managerial employees but also that it must be so construed. No narrower exclusion, it is said, in addition to those expressly provided for, will satisfy the Act.
Although it would appear to be a difficult аnd questionable feat to rewrite the statute so substantially, the Court purports to find license for its result in the legislative history of the 1947 amendments to the Act, read in the light of previous and subsequent Board and court decisions. It is true that the exclusion of supervisors from the definition of employees first occurred in 1947, but, with all respect, I find no basis in the history of these amendments, read in the light of prior Board cases, for concluding that Congress intended to exclude all
As I understand its decisions, the Board at no time prior to 1947 completely excluded the broad category of managerial employees from the class of employees protected by the Act. The Court concedes that the Board‘s cases during this period involved only the exclusion of managerial employees from bargaining units of rank-and-file workers. Some of the Board‘s statements may have been ambiguous, but no Board case held or had occasion to hold that managerial employees as a group would not be protected by the Act. As the Court acknowledges, the Board, in one decision excluding buyers and expediters from a unit of office and clerical employees, pointedly expressed the caveat that “[t]his is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act.” Dravo Corp., 54 N. L. R. B. 1174, 1177 (1944). In Hudson Motor Car Co., 55 N. L. R. B. 509, 512 (1944), where the Board excluded buyers from a bargaining unit of office and clerical employees, the reason given for the exclusion was “that their duties are closely allied to management, differing materially from those of the other clerical employees.” And in Vulcan Corp., 58 N. L. R. B. 733, 736 (1944), the Board excluded a buyer from a production and maintenance employees’ unit, not because a managerial employee could not be accorded bargaining rights, but “[b]ecause of the responsibility of his position and his peculiar relationship to management, and in view of the fact that his interests are apparently different from those of the production and maintenance employees.” This line of Board decisions addressed the question whether certain managerial employees had sufficient community of interest with rank-and-file employees to be included in the same bargaining unit with them, and the Board was exercising its power to designate
The Board‘s position with respect to supervisors, as a class, vacillated during this time, the Board first excluding supervisors from rank-and-file units but recognizing units confined to supervisory employees, then refusing to recognize any bargaining units of supervisors and finally returning to its earlier rule. But even when the Board determined for a short period that supervisors should not be permitted to organize either with other employees or in separate units, it never went as far as to hold supervisors not to be “employees” under the Act. This was the Court‘s understanding of the Board‘s position in Packard Co. v. NLRB, 330 U. S. 485, 492 n. 3 (1947), the very casе which prompted the 80th Congress to go further than the Board had ever gone and exclude supervisors entirely from the category of employees accorded bargaining rights under the Act.1 In Maryland Drydock Co., 49 N. L. R. B. 733, 738, 740 (1943), the Board was “no longer convinced that from the mere determina
When Congress undertook to amend the Act following this Court‘s decision in Packard upholding the Board‘s inclusion of supervisors as employees under the Act, it was acting in light of a renewed Board policy to
The Court would fill this gap by referring to the House Managers’ statement accompanying the Conference Committee Report and explaining the adoption of the narrower Senate definition of excluded “supervisors.” This report is indeed instructive, but it indicates even more clearly, in my opinion, that Congress did not contemplate the exclusion of managerial employees from the coverage of the Act:
“The conference agreement, in the definition of ‘supervisor,’ limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential employees as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel,
the special provisions of the Senate amendment . . . applicable with respect to professional employees will cover many in this category. In the case of guards, the conference agreement does not permit the certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards. The provision dealing with the certification of bargaining units for guards is dealt with in section 9 (b) оf the conference agreement. . . .” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 35-36 (1947).
The Court emphasizes that the statutory language adopted in the 1947 amendments did not expressly exclude persons working in labor relations, personnel, or employment departments, or confidential employees, but that these were “impliedly excluded” from the Act‘s coverage by dint of the House Managers’ statements just quoted. From this premise, the Court proceeds to assume that other categories of employees, similarly not excluded under the express terms of the amended definition of “employee,” were also impliedly excluded from the Act. In my view, there is no warrant for the assumption that groups of employees, which the statute, or express legislative statements, do not address, are to be excluded from the Act; nor is there any legislative debate whatsoever, which can reasonably be construed as expressing an authoritative intent to exclude managerial employees as a class.
The House Managers’ statement accompanying the Conference Committee Report explains that the Act was not amended expressly to exclude labor relations and confidential employees from coverage under the Act, because it was already prevailing Board practice to exclude these employees. This was not an entirely accu
Nor is the Court‘s position much advanced by the few passing references in the House Report and in the floor debates, which the Court cites, ante, at 283, and nn. 12 and 13, for the assumption that “executives” would be excluded from the Act apart from whether they were confidential employees or not, and for the discussion of supervisors as representatives of management whom the amendments sought to exclude. In none of the cited passages was the category of “managerial employees,” as the Board had defined it, ever addressed, and the focus of these remarks is clearly directed at the exclusion of supervisors as defined in the proposed amendments. Perhaps it was clear to Congress that a confidential secretary‘s superior would be excluded by the Act, but such an individual would either be a confidential employee himself, or a supervisor, or both. We are referred to
Finally, if we are to consider the 1947 amendments as intending to enact the views of the dissenting Justices in Packard, it should be noted that the dissent interpreted the
Following the Taft-Hartley amendments in 1947, the Board continued to hold, as it had frequently held before, that buyers, and others with managerial interests, were to be excluded from bargaining units of other employees. Denver Dry Goods, 74 N. L. R. B. 1167 (1947); Palace Laundry Dry Cleaning, 75 N. L. R. B. 320 (1947); Denton‘s, Inc., 83 N. L. R. B. 35, 37 (1949); Wise, Smith & Co., 83 N. L. R. B. 1019, 1021 n. 6 (1949); Westinghouse Electric Corp., 89 N. L. R. B. 8, 14 (1950). But in 1950, in American Locomotive Co., 92 N. L. R. B. 115, 117, the Board, in rejecting the inclusion of buyers in an office and clerical employees unit or their placement in a separate bargaining unit, said that “[a]s it appears that the buyers are аuthorized to make substantial purchases for the Employer, we find that they are representatives of management, and as such may not be accorded bargaining rights under the Act.” Reliance for this
The Board thereafter continued to exclude managerial employees from bargaining units of other employees, occasionally citing Swift, e. g., Copeland Refrigeration Corp., 118 N. L. R. B. 1364, 1365 n. 2 (1957); AFL-CIO, 120 N. L. R. B. 969 (1958), but more frequently excluding managerial employees from particular units without citing that case or suggesting that the excluded workers were not protected employees. E. g., Mack Trucks, Inc., 116 N. L. R. B. 1576, 1577-1578 (1956); Diana Shop, 118 N. L. R. B. 743, 745 (1957); Federal Tel. & Radio Co., 120 N. L. R. B. 1652, 1654 (1958); Kearney & Trecker Corp., 121 N. L. R. B. 817, 822 (1958); Weaver Motors, 123 N. L. R. B. 209, 216 (1959); Eastern Camera & Photo Corp., 140 N. L. R. B. 569, 572 (1963).
Until the Board overruled Swift in North Arkansas Electric Cooperative, Inc., 185 N. L. R. B. 550 (1970), it had thus actually held only twice that managerial employees could not be afforded protection under the Act, and its support for that conclusion was without any persuasive appeal. It is true, of course, that the Board had not held to the contrary either, and that
Nor did Congress in 1959, when it again amended the statute, expressly or impliedly enact or approve the statutory interpretation announced in Swift & Co. The 1959 amendments dealt with secondary boycotts and picketing, and we are cited to nothing suggesting that the attention of Congress at that time was directed to or focused on the question whether managerial employees were covered or excluded in the statute. Congressional silence does not imply legislative approval of all Board rulings theretofore made. As the Court noted in Boys Markets v. Retail Clerks Union, 398 U. S. 235, 241-242 (1970), which overruled Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962):
“Nor can we agree that the conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that ‘[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.’ Girouard v. United States, 328 U. S. 61, 69 (1946). Therefore,
in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to consider the decision.”
See also Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 431 (1955). Similarly, from the congressional silence in 1959 concerning Swift‘s exclusion of managerial employees from the protection of the Act, it should not be assumed that Congress intended to approve of Swift and foreclose the possibility of the Board‘s reconsidering Swift and overruling it on further and more examining reflection. NLRB v. Seven-Up Co., 344 U. S. 344, 350-352 (1953).
The Board‘s decisions in this area have not established a cohesive and precise pattern of rulings. It is often difficult to tell whether an individual decision is based on the propriety of excluding certain employees from a particular bargaining unit or whether the worker under consideration is thought to be outside the scope of the Act. But this Court has consistently said that it will accept the Board‘s determination of whether a particular individual is an “employee” under the Act if that determination “has ‘warrant in the record’ and a reasonable basis in law,” NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131 (1944); NLRB v. United Insurance Co., 390 U. S. 254, 260 (1968). There is no reason here to hamstring the Board and deny a broad category of employees those protections of the Act which neither the statutory language nor its legislative history requires simply because the Board at one time interpreted the Act—erroneously it seems to me—to exclude all managerial as well as supervisory employees.
I respectfully dissent.
Notes
“The Board also excludes from the protections of the Act, as managerial employees, ‘those who formulate, determine, and effectuate an employer‘s policies,’ AFL-CIO, [120 N. L. R. B. 969, 973 (1958)], and those who have discretion in the performance of their jobs, but not if the discretion must conform to an employer‘s established policy, Eastern Camera and Photo Corp., 140 N. L. R. B. 569, 571 (1963) (store managers who could set prices are not managerial). . . . The rationale for this Board policy, though unarticulated, seems to be the reasonable belief that Congress intended to exclude from the protection of the Act those who comprised a part of ‘management’ or were allied with it on the theory that they were the one[s] from whom the workers needed protection.” 366 F. 2d, at 645. (Emphasis added.)