Kleinberg, Kaplan, Wolff, Cohen & Burrows

National Labor Relations Board - Board Decisions

Nov 21, 1980

253 N.L.R.B. 450 (N.L.R.B. 1980)

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450 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
Kaplan, Wolff, Cohen Burrows, P.C.
and District 65, UAW, Petitioner. Case 2-RC-
18508
November 21, 1980

DECISION AND DIRECTION O F

ELECTION

Upon a petition duly filed under Section of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officers Leonard
Herman and Mary W. Taylor. Subsequently, pursu-
ant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations and Statements
of Procedure, Series 8, as amended, the Regional
Director for Region 2 transferred this proceeding
to the Board for decision. Thereafter, the Petition-
er and the Employer filed briefs with the Board
which have been duly considered.
The Board has reviewed the Hearing Officers'
rulings made at the hearing and finds that they are
free from prejudicial They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a law firm, organized as a
professional corporation in the State of New York,
engaged in the practice of law. The law firm em-
ploys seven attorneys, four of whom are partners
and three of whom are associates. The attorneys
are assisted by a clerical and support staff presently
consisting of four executive secretaries, an adminis-
trative secretary, a receptionist, a file clerk, and a
operator, whom the Petitioner seeks to
represent.
The Employer's request for oral argument is hereby denied. The
record, including briefs, adequately presents the issues and the positions
of the parties.
Hearing Herman revoked the Employer's subpena of material
which allegedly would demonstrate conflicts that would disable the Peti-
tioner from representing the Employer's We find that the
present record provides an adequate basis for determining the appropri-
ateness of this Petitioner's representing these employees, and. therefore,
that the Employer was not prejudiced by the revocation of the subpena.
We further find that the evidence does not warrant depriving these em-
ployees of their right to choose this Petitioner as their representative.
The Employer urges that, because of the impairment of the
client privilege that would result from the organization of law firms' em-
ployees, the Board should reconsider its decision to assert jurisdiction
over law firms generally, enunciated in Foley, Hmg Eliot. 229 NLRB
456 (1977). We decline to d o We are not persuaded that employees of
a law firm differ from other employees in a way that would justify carv-
ing out an exception to the principle that "union membership is not in-
compatible with an employee's duty of loyalty owed to his or her em-
ployer. even when the duty involves a responsibility t o maintain confi-
dentiality." Dun 240 NLRR 162 (1979). citing Foley,
supm at 457. fn. 12.
In the alternative the Employer argues, citing Foley, supm at
457, fn. that the nature of its practice brings it within the "certain
unusual situations" which might justify treating a law firm's employees
differently from other groups of employees. T o support its contention.
Employer adduced evidence of its nonlabor relations practice se-
curities. real estate, immigration. trade regulation, corporate, bankruptcy.
and employment compensation), alleging that the services it renders in
253 NLRB No. 54
The record shows that the Employer has an
annual gross revenue in excess of The
record also reveals that the Employer derives rev-
enues in excess of from clients located
within the State of New York who have annual ,
sales of goods or services in excess of out-
side the State of New York. Accordingly, we find
that the Employer is engaged in commerce within
the meaning of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction
herein.
2. The parties have stipulated, and we find, that
District 65, UAW, is a labor organization within
the meaning of Section of the Act.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.
4. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Sections and
and (7) of the Act. 4
5. The Employer contends that the bargaining
unit sought herein is inappropriate because all its
employees are "confidential," under a broad defini-
of that term which it alleges the Supreme
Court mandated in N.L.R.B. v. Bell Aerospace
Company, Division of Textron, Inc., 416 U.S. 267
(1974). In support of its argument, the Employer
relies on Hendricks County Rural Electric
ship Corporation v. N.L.R.B., 25, 28 (7th
Cir. 1979). There, the Seventh Circuit, considering
whether the Board applied the appropriate legal
standard to determine the status of the personal
secretary to the employer's general manager,
of the opinion that the "labor nexus" test applied
by the Board "was exposed to serious by
Bell Aerospace. Although admitting that the Su-
preme Court was not presented with a confidential8
question, and that policies favoring the exclusion of
managerials from the Act are inapplicable, the
court nonetheless asserted that Bell
space's interpretation of legislative history
the conclusion that all confidential secretaries are
excluded." Id. at 29.
We do not agree. As elaborated below, we
that Bell Aerospace does not require abandon-
ment of our traditional labor relations standard for
determining confidential status. From the earliest
days of the Act, we excluded from rank-and-file
bargaining units those confidential employees with
a "labor nexus." See, Brooklyn Daily Eagle, I3
these areas are entwined inextricably with the labor relations of itn
ents. We conclude that the Employer has failed to justify departure
the general principle that law firm employees will not be treated
under the Act from comparable groups of employees. Further.
find that evidence of the Employer's nonlabor relations practice is
vant to establish a basis for treating it differently from law
KAPLAN, WO ILFF, & 1 1
disposition
(1944).5
case.6
prevailing
' e.g., et a/.,
Packoge Monufocturing
Plant), 108
w g e
e.g., F. Goodrich 115
& 15 1); Michigon &
50
283-284.
pany (Chicogo (1946),
capacity persons
Motcr,
e.g.,
&
Vultee
Babeack & 900
supra; Com-
r.g., Terminols, Inc., I
Swfl & etc..
I Sargent & supra;
supro.
F.
Goodrich
;I
(1947),
rpversal
KLEINBERG,
NLRB 974, 986 (1939) (excluding personal secre-
taries to managers who handled union negotiations
and grievances). We continued throughout the pre-
Taft-Hartley years4 to exclude from bargaining
units only those confidential employees who
worked for people in the field of labor relations on
the theory that
. . . management should not be required to
handle labor relations matters through employ-
ees who are represented by the union with'
which the [employer] is required to deal and
who in the normal performance of their duties
may obtain advance information of the [em-
ployer's] position with regard to contract ne-
gotiations, the of grievances, or
other labor relations matters. Hoover Co., 55
NLRB 1321, 1323
At the same time we consciously and consistently
refused to expand our definition of confidential em-
ployees to exclude employees with access to confi-
dential business information unrelated to labor rela-
tions matters. In fact, our application of the labor
nexus standard often resulted in the exclusion of
certain employees and inclusion of others in the
same
As will become clear infra, we believe that when
Congress stated that it did not intend "to alter [the
Board practice with respect to confiden-
tial secretaries] in any respect," it knowingly en-
dorsed the standard enunciated in this lengthy line
See, Aluminum Company of America, 61 NLRB 1066
(1945); Bethlehem Steel Company, 61 NLRB 854 (1945); American Smelt-
ing & Refining Company, 61 NLRB 506 (1945); Consolidated Vultee Air-
craft Corporation. 54 NLRB 103 (1943); Poultrymen's Service Corp., 41
NLRB 444 (1942); Creamery Company (Lake Mills
34 NLRB (1941).
Subsequent to the of the Taft-Hartley amendments, we contin-
ued to limit our exclusion of confidential employees to those with a labor
nexus. See. The B. Company, NLRB 722 (1956); Sar-
gent Company, 95 NLRB 15 (195 Pole Tie Company,
88 NLRB 339 (1950); Chrysler Corporation. 76 NLRB (1948): Art
Metal Construction Company. 75 NLRB 80 (1947).
Bell Aerospace. supra at fn. 12. implies that Ford Motor Com-
Branch), 66 NLRB 1317, 1322 initiated our labor
nexus standard for defining confidential employees. In fact, this test origi-
nated in 1939 and was applied repeatedly and consistently in the ensuing
years. In Ford Motor w e merely refined our definition of confidential em-
ployees "to embrace only those employees who assist and act in a confi-
dential to who exercise 'managerial' functions in the field
of labor relations." Ford supra at 1322 (emphasis supplied).
See, Aluminum Company of Americo, supra; Bethlehem Steel
Company, supra; American Smelting Refining Company, supra; Bell Air-
craft Corporation. 56 NLRB 1356 (1944); Consolidated Aircraft Cor-
poration, supra; The Wilcox Compony, 52 NLRB (1943);
Poultrymen's Service Corp.. Creomcry Package Manufacturing
pany, supra.
After the 1947 amendments, we continued to reject arguments that em-
ployees who worked with confidential business information unrelated tc
labor relations matters should be excluded from bargaining units. See,
Detroit Marine I5 NLRB 822 (1956); Miller Electric
Company. 103 NLRB 1492 (1953); Company, 98 NLRB 746
1952); Company, Chrysler Corporation. supra; Art Metal
Construction Company.
COHEN BURROWS 45
of cases. Accordingly, we adhere to that standard,
which embraces only those employees who "assist
and act in a confidential capacity to persons who
formulate, determine, and effectuate management
policies in the field of labor relations." The B.
Company, 1 1 5 NLRB 722, 724 (1 956).
I. T H E H O L D I N G O F B E L L AEROSPACE
In Bell Aerospace the Supreme Court held that all
managerial employees, without regard to any labor
relations responsibilities, were "impliedly excluded"
from coverage under the National Labor Relations
Act, as amended in 1947. Bell Aerospace, supra at
284. The Court found that "established principles
of statutory construction," id. at 274, instruct that
"a court may accord great weight to the longstand-
ing interpretation placed on a statute by an agency
charged with its administration," id. at 274-275,
and that "congressional failure to revise or repeal
the agency's interpretation [of its statute] is persua-
sive evidence that the interpretation is the one in-
tended by Congress." Id. at 275. Application of
these principles of statutory construction, coupled
with the fact that for 35 years prior to its reversal
of position in Bell Aerospace the Board had inter-
preted the statute to exclude managerial employees,
convinced the Supreme Court "that Congress in-
tended to exclude from the protections of the Act
all employees properly classified as 'managerial."'
Ibid.
The Court also examined the legislative reaction
to the Board's assertion of jurisdiction over fore-
men, which had been upheld in Packard Motor Car
Company v. N.L.R.B., 330 U.S. 485 and
which was a major factor in precipitating the 1947
amendments to the Act. In view of this legislative
of Packard, the dissenting opinion becomes
"especially pertinent" in interpreting the amend-
ments. Bell Aerospace, supra at 278. Justice Doug-
las' concern, later echoed by Congress, was that
the Board's decision
. . . tends to obliterate the line between man-
agement and labor. . . . For if foremen are
"employees" within the meaning of the Na-
tional Labor Relations Act, so are vice-presi-
dents, managers, assistant managers, superin-
tendents, assistant superintendents-indeed, all
who are on the payroll of the company, in-
cluding the president; all who are commonly
referred to as the management, with the excep-
tion of the directors. . . . But once vice-presi-
dents, managers, superintendents, foremen all
are unionized, management and labor will
become more of a solid phalanx than separate
278.1
materia,
express-
1
(1947).]
11.
"[blased th[e llegislative [hlistory,
111.
secrotaries"
welb
(1947),l
' Sec. 2(12)
"supervisor" individual-
ernployer-
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factions in warring camps. [Packard, supra at
494, quoted in Bell Aerospace, supra at
In pari to permit unionization of manageri-
al employees would work a "fundamental change
in industrial philosophy," according to the Su-
preme Court, since the Act "was designed to pro-
tect 'laborers' and 'workers,' not vice presidents
and others clearly within the managerial hierachy
. . . . [To rule otherwise] would indeed be revolu-
tionary, for it would eviscerate the traditional dis-
tinction between labor and management. If Con-
gress intended a result so drastic, it is not unreason-
able to expect that it would have said so
y." Bell Aerospace, supra at 285, fn. 13.
In addition to Congress' concern that coverage
of those within the managerial hierarchy would
create a conflict of interest in labor relations, the
Supreme Court noted congressional interest in en-
couraging individual initiative:
Supervisors are management people. They
have distinguished themselves in their work
. . . . They abandoned the "collective secu-
rity" of the rank and file voluntarily, because
they believed the opportunities thus opened to
them to be more valuable to them than such
"security." It seems wrong, and it is wrong, to
subject people of this kind, who have demon-
strated their initiative, their ambition and their
ability to get ahead, to the leveling processes
of seniority, uniformity and standardization
that the Supreme Court recognizes as being
fundamental principles of unionism. [Id. at 28 1,
fn. 11, quoting from H.R. Rep. No. 245, 80th
Cong., 1st Sess., 16-17
Consequently, since the Board had consistently
treated all managerial employees as outside the
statute, Bell Aerospace, 416 U.S. at 285-289, and
since "the congressional debates, along with the
Senate Report, evinced a concern over the possible
extension of the Act to cover corporate vice presi-
dents and other executives who were part of man-
agement," id. at 284-285, fn. 13, the Board was no
longer free "to read a new and more restrictive
meaning into the Act." Id. at 289.
Nothing in this holding undermines the Board's
labor relations standard for determining confiden-
tial status. The Board's test has been consistently
followed, and, as the Seventh Circuit concedes, the
policies favoring a managerial exclusion do not dic-
tate similar treatment of confidential employees.
THE POSITION OF THE EMPLOYER
The Employer herein insists, however, that,
on the Supreme
Court in Bell Aerospace held, in dicta," that the
House and the House Conference Reports' refer-
ences to "confidential employees" were not limited
to those in labor relations. Dictum is, of course,
neither a holding, nor an essential element of a
court's holding. Furthermore, we do not agree that
the legislative history unmistakably indicates that
Congress intended for all employees whose work
could be characterized as "confidential" to be ex-
cluded.
LEGISLATIVE HISTORY
A. Overview
Preliminarily, we summarize the legislative histo-
ry as an outline of the detailed discussion which
follows. The House, when considering amendments
to the Wagner Act, was fully advised of Board
precedent regarding persons who exercised man-
agerial functions in the field of labor relations and
their "confidential secretaries," and approved that
practice. In addition, however, the House-passed
bill extended the treatment to employees in the
nonlabor relations managerial hierarchy (whom the
House referred to as "confidential employees") and
to their "confidential secretaries." The compromise
bill, as explained by House Conference Report No.
5 10, 80th Cong., 1st Sess. (1947) (hereinafter House
Conference Report) at 35, endorsed Board treat-
ment of those persons who exercise managerial
functions in the field of labor relations and their
"confidential secretaries," and does not extend sim-
ilar treatment to those persons in the nonlabor rela-
tions managerial hierarchy and their "confidential
secretaries." At all times Congress meant "confi-
dential employees" and "confidential
to be mutually exclusive.
Such a construction accords with the prin-
ciple that Congress is presumed to have full knowl-
edge and information as to the Board's prior inter-
pretation of the statute. Cf. Cannon v. University of
Chicago, 441 U.S. 677, 696-698 (1 979) (appropriate
to presume that Congress was aware of prior inter-
pretation of Title VI and that that interpretation re-
flected its intent with respect to Title IX). Further,
we need not indulge in any presumption, since the
language of the House Conference Report supports
our construction of the legislative history.
B. House Proposal
Both houses of Congress heard extensive testi-
mony respecting the supervisory issue. The House
bill, H.R. 3020, 80th Cong., 1st Sess.
of the House bill defined the term "supervisor" a . follows:
The term means any
(A) who has authority, in the interest of the
Continued
&
"[llabor
"[e]mployment
assign
"[d]octors,
(i)
(ii)
respect factors
(8)
gen-
era11 ."
secre-
KLEINBERG, KAPLAN, WOLFF, COHEN BURROWS 453
would have excluded those individuals who have
authority to hire, transfer, promote, discharge,
reward, or discipline other employees, or effective-
ly to recommend such action. In addition, as elabo-
rated in House Report No. 245, 80th Cong., 1st
Sess. 16 (1947) (hereinafter House Report), the
House sought to include in the definition of "super-
visor":
(1) relations people [who] negotiate
labor agreements and handle disputes not set-
tled in the shops";
(2) and personnel people
[who] hire workers, and sometimes
them to their departments";
(3) plant policemen and guards;
(4) time-study people;
(5) nurses, safety engineers, and
adjusters [who] handle claims for disability
benefits and investigate alleged hazards to
safety and health";
(6) "employees [who] handle intimate details
of the business that frequently are highly con-
fidential. Some affect the employer's relations
with labor. Others affect its relations with its
competitors."
The House Report at 23 remarked further on the
proposed definition of "supervisor":
In the discussion of the definition of the
term "employee," the reasons for excluding
from that definition persons who act for em-
ployers in the employer's dealings with labor
have been fully set forth . . . . The only im-
portant change concerns confidential employ-
ees. These are people who receive from their
employers information that not only is confi-
dential but also that is not available to the
public, or to competitors, or to employees gen-
erally. Most of the people who would qualify
to hire, transfer, suspend, lay off, recall, promote, demote, dis-
charge, assign, reward, o r discipline any individuals employed by the
employer, or to adjust their grievances, o r to effectively recommend
any such action; or
to determine, or make effective recommendations with respect
to. the amount of wages earned by any individuals employed by the
employer, o r to apply, o r to make effective recommendations with
to the application of, the upon the basis of which the
wages of any individuals employed by the employer are determined,
if in connection with the foregoing the exercise of such authority is
not of a merely routine o r clerical nature, but requires the exercise of
independent judgment;
who is employed in labor relations, personnel, employment,
police, o r time-study matters o r in connection with claims matters of
employees against employers, o r who is employed to act in other re-
spects for the employer in dealing with other individuals employed
by the employer, o r who is employed to secure and furnish to the
employer information to be used by the employer in connection with
any of the foregoing; or
(C) who by the nature of his duties is given by the employer infor-
mation that is of a confidential nature, and that is not available to the
public, to competitors, o r to employees generally, for use in the in-
terest of the employer.
as "confidential" employees are executives and
are excluded from the act in any event.
The Board, itself, normally excludes from
bargaining units confidential clerks and secre-
taries to such people as these. But protecting
confidential financial information from com-
petitors and speculators, protecting secret
processes and experiments from competitors,
and protecting other vital secrets ought not to
rest in the administrative discretion of the
Board or on the responsibility of whatever
union happens to represent the employees. The
bill therefore excludes from the definition of
employees persons holding positions of trust
and confidence whose duties give them secret
information.
Because understanding these comments is essential
to deciphering Congress' intentions as expressed in
the House Conference Report, we explicate them
in some detail:
(1) The House Report does not use "confidential
employees" in the first paragraph quoted above,
and "confidential clerks and secretaries" in the
second paragraph quoted above, synonymously.
The antecedent of the phrase "excludes from bar-
gaining units confidential clerks and secretaries to
such people as these" is the previous paragraph. If
"confidential clerks and secretaries" were identical
with any category of employees mentioned in the
previous paragraph, then the first sentence of the
second paragraph would be redundant.
(2) The terminology "confidential employees"
must refer to employees other than "confidential
clerks and secretaries," otherwise the first sentence
of the second paragraph would, in effect, read that
the Board excludes from bargaining units "confi-
dential clerks and secretaries" to themselves.
(3) Thus, paragraph one refers to a group of em-
ployees exclusive of "confidential clerks and secre-
taries." Paragraph two refers to a group of employ-
ees categorized "confidential clerks and secretar-
ies."
(4) Paragraph one is divisible into two distinct
categories: (a) those "persons who act for employ-
ers in the employer's dealings with labor," the rea-
sons for which excluding were discussed earlier in
the House Report at 16-17; (b) those employees
whose treatment by the Board the House wished to
alter, namely, "confidential employees . . . who re-
ceive from their employers information that not
only is confidential but also that is not available to
the public, or to competitors, or to employees
y
(5) Paragraph two is also divisible into two dis-
tinct categories: (a) "confidential clerks and
deali~lgs
."
that"confidentia1
effectuated-i.e.,
Act,s
Iserman,
wm I
Management 1947,
Hist.),
see
Sess.
19.=
I1
Hist.
checkers,
earning.
affect
aflcct competiton. $w
affects
firm's
act
80th
1st Sns. 2720
80th 1st Sess.
lxnnan,
Senate
ruem, confidential
exerc~sed
Sec. 2(11)
conncctlon
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taries" to "persons who act for employers in the
employer's with labor"; (b) "confidential
clerks and secretaries" to "confidential employees."
The "such people as these," whose "confidential
clerks and secretaries" the Board normally ex-
cludes from bargaining units, must be the "persons
who act for employers in the employer's dealings
with labor." This is so, because of the second sen-
tence in the second paragraph which reads, "But
protecting confidential . . . information . . and
the third sentence which reads, "The bill . . . ex-
cludes . . . ." "But" is a conjunction expressing
opposition between a preceding and subsequent
clause or idea. The preceding idea here is that
"confidential clerks and secretaries" to x are nor-
mally excluded from bargaining units, while the
subsequent idea is clerks and sec-
retaries" to y are not. The x must be the category
of employees about which no important change is
those "persons who act for em-
ployers in the employer's dealings with labor.''
They must be the remaining category, "confidential
employees," to which the House intends to extend
exclusionary treatment. The necessary implication
of "but," therefore, is that "clerks and secretaries"
to these "confidential employees" have not been
excluded, and that the House intends to alter this
fact.
C. Senate Proposal
The Senate, equally cognizant of the various
groups of employees which employers desired to
exempt from coverage under the voiced the
Both houses of Congress listened to countless proposals regarding the
supervisory issue. Theodore R. a labor relations attorney who
instrumental in drafting the House bill, see Legislative History of
the Labor Relations Act, 647 (hereinafter cited as
Leg. provided exhaustive testimony on the issue before both
House and Senate committee& including the following which was ex-
cerpted almost verbatim in the House Report at 16:
If we are to produce goods competitively and in such large quanti-
ties that many can buy them at low cost, then, just as there are
people on labor's side to say what workers want and have a right to
expect. there must be in management and loyal to it persons not sub-
ject to influence or control of unions, not only to assign people to
their work. to that they keep at their work and do it well, to
correct them when they are at fault, and to settle their complaints
and grievances, but to determine how much work employees should
do, what pay they should receive for it, and to carry on the whole
of labor relations.
Labor-relations people negotiate labor agreements and handle dis-
putes not settled in the shops. Employment and personnel people
hire workers. and sometimes assign them to their departments. Plant
policemen and guards prevent disorders and report misconduct of
employees and of unions and their members, like collecting dues and
signing up members on the firm's time and inciting strikes contrary
to the labor agreement. Time-study men help to fix the pace at
which employees work and to determine the number of men the
work calls for. Doctors, nurses, safety engineers, and adjusters
handle claims for disability benefits and investigate alleged hazards
to safety and health. Timekeepers sometimes record the hours that
employees work and the time they take for different jobs. On some
concern earlier articulated in the Packard dissent
that Board processes could be used to unionize
vice presidents, and expressed its intention to avoid
the conflict of interest that would naturally result if
management were deprived of the undivided loyal-
ty of certain employees. S. Rep. No. 105, 80th
Cong., 1st 4-5 (1947) (hereinafter Senate
Report). Nevertheless, the Senate exercised consid-
erable care to frame the exclusion to cover only
those employees who were truly supervisory.
Senate Report at
D. House Conference Report
In conference, the Senate's view regarding "su-
pervisors" prevailed. House Conf. Report at 35;
Leg. 1537 (June 5, 1947). Thus, the amend-
ments passed by Congress provided that plant po-
licemen and guards, whom the House had included
under its supervisory umbrella, would be protected
under the Act, although unions of such employees
could be certified only if independent of other em-
ployees. Further, the conference agreement pro-
tected time-study personnel, who also had been ex-
cluded as supervisors by the House. House Conf.
Report at 35.
In addition, respecting the employees the House
bill categorized as "persons working in labor rela-
tions, personnel and employment departments,"
and "confidential employees," the House Confer-
ence Report stated:
piecework, inspector& and weighers determine the
amounts of employee's
Others handle intimate details of the business that frequently are
highly confidential. Some the company's lations with labor.
Others its relations with its much of it that
labor is made available to the union ought to be determined
by collective bargaining. not by the extent to which the union can
induce employees to betray the company's confidence in them. That
which affects the company's relations with its competitors certainly
ought not to be open, through its members, to a union that deals also
with the competitors. I urge you to exempt from the operation
of the Wagner Act not only foremen but all others who for em-
ployers in dealing with labor and all who handle the employer's con-
fidential affairs.
Amendments to the National Labor Relations Act: Hearings (on
H.R. 3020) Before the Committee on Education and Labor,
Cong., (1947); see Labor Relations Program: Hearings
(on S. 1126) Before the Committee on Labor and Public Welfare.
Cong., 169 (1947) (hereinafter Senate Hearings).
We believe that Mr. who was well-versed in labor law, see
Hearings at 121, surely was conversant with the Board's long-
standing practice, see of defining employees as those
people who assisted persons who managerial functions in the
field of labor relations.
of the Senate bill contained the following definition of the
term "supervisor":
The term "supervisor" means any individual having authority, in
the interest of the employer to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, o r discipline other employees, or
to adjust their grievances, or effectively to recommend such action if
in with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of inde-
pendent judgment.
KAPI,AN, &
35.1
de-
partments"1°
"[ilt that*
F.2d
1973),
"[mlost
execu-
'0 ernploy-
men1 supra,
personnel.The
provision
Hist.
"affect
who
sqra . )
KLEINBERG, WOLFF, COHEN BURROWS 455
The conference agreement, in the definition
of "supervisor," limits such term to those indi-
viduals treated as supervisors under the Senate
amendment. In the case of persons working in
the 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 pre-
vailing 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. [House Conf.
Report at
In the preceding paragraph the report summarized
the categories of employees which the House bill
treated as supervisors, but which the Senate bill did
not, as "(A) certain personnel who fix the amount
of wages earned by other employees, such as in-
spectors, checkers, weighmasters, and time-study
personnel, (B) labor relations personnel, police, and
claims personnel, and (C) confidential employees."
Ibid. (emphasis supplied).
As is obvious, the phrases "persons working in
the labor relations, personnel and employment
and "labor relations personnel" are
used interchangeably. It is also clear, from the defi-
nition of labor relations, personnel, and employ-
ment people, and from the conference report's
statement that the Board has treated such persons
as outside the Act, that Congress was referring to
the category of employees which the Board has
traditionally treated as "persons who exercise 'man-
agerial' functions in the field of labor relations."
Ford Motor Company, 66 NLRB at 1322. Thus, as
the Second Circuit stated, "the Board does not
challenge" that is quite clear . . . Con-
gress believed 'persons working in the labor rela-
tions, personnel and employment departments'
would be excluded," Bell Aerospace Company, Divi-
sion of Textron, Inc. v. N.L.R.B., 475 485, 491
(2d Cir. since that was no more nor less than
the Board's established practice.
The conference report does not expressly state
what agreement the conferees reached regarding
the House bill's category of "confidential employ-
ees." However, according to the House Report,
of the people who would qualify as 'confi-
dential' are executives and are excluded from the act
in any event." House Report at 23 (emphasis sup-
plied). In 1947, the Board appeared to exclude all
managerial employees, many of whom are
For the House definition o f labor relations, personnel, and
people, see the text following In. 7, and the House Report at
16.
tives. In response to the Board's inclusion of fore-
men, the House bill insisted that all employees in
the managerial hierarchy be excluded. The infer-
ence is inescapable that "confidential employees"
included, inter-alia, executives, such as vice presi-
dents and other management discus-
sion by Congress of professional employees and the
ultimate inclusion of the Senate's protect-
ing their right to unionize suggest that an addition-
al group of individuals was included in the House
bill's broadly defined "confidential employees."
The term "professional employees"-"architects,
engineers, scientists, lawyers . . . nurses . . . chem-
ists," Senate Report at 11, 19; see also House Conf.
Report at 36-encompassed many whom the House
sought to exclude under its broad definition of
"confidential employees." As then Representative
Henry Jackson noted, the House bill's exclusion
would destroy the union which represented a
. . . membership who do the architectural, en-
gineering, and scientific work of the country.
They use their brains in seeking out new mate-
rials and new methods of production. By the
very nature of their work, they have confiden-
tial information which is neither available to
the public nor to their employer's competitors.
. . . They are loyal employees and use the
confidential knowledge which they have for
the benefit of their employers . . . . [I Leg.
at 847.1
These professionals, including doctors and nurses
in health-related fields, as well as executives and
other management personnel, "handle intimate de-
tails of the business that frequently are highly con-
fidential," and which [an employer's] rela-
tions with its competitors." House Report at 16.
Thus, the conferees consulted as to each group
of employees the House sought. to exclude. And, as
noted earlier, the categories "confidential employ-
ees" and "confidential clerks and secretaries" are
mutually exclusive, and when the House Report
states that the Board normally excludes the latter
category it can only be referring to those employ-
ees act in a confidential capacity to persons in
the labor relations, personnel, and employment de-
partments. (See the detailed exegesis of the relevant
passage of the House Report, Consequently,
when the conferees stated that they did not intend
to alter in any respect the prevailing Board prac-
tice regarding such people as "confidential secre-
taries," House Conf. Report at 35, both the House
and the Senate approved Board treatment of labor
relations, personnel, and employment people, and,
in addition, endorsed the Board's practice respect-
ing "confidential secretaries" who worked for
45b
"[llabor
"[e]mployment and
assign
16.
plant
Wt7 any
Act
[I1 Hist. 5 .
I '
"lilt
meanlng thr wtvds Nafional
r,ork .Manufacturer.r .4 isocrurk~n U.S 610 (1967).
Swtgmafrn BKIS. (ulvrrt Dict~llt'rr Corp.. L' S. 384. 3"J'.11)5
1): Mustro Pluctir,c Corp.. d i d Hredi 7:'. GI..
Inc r . h : L . R . B . , 288 (1956).
deemed
con-
structioii
history.12
"[m]ost[ly]
'Vndeed , Bell
I:~hor rclarlons
manager~al
ebidence the
relat~ons.
NL.RR 639 (1950). wcre
conlidcnt~al, capacity
action,
pots~bility n
relatior~s. U.S. fn.
Had cons~dered el~mlnation
rclstlons
have 11s In ap-
prov.11 Eloard caw wh~eh the In
rmployrcs ~n an log~cnlly ~t
wnuld h a w ro
DECLSIONS OF NATIONAL LABOR KELATLONS BOARD
relations people [who] negotiate labor
agreements and handle disputes not settled in the
shops" and for personnel
people [who] hire workers, and sometimes
them to their departments." House Report at
Senator Taft, who sponsored the Senate bill, reit-
erated this point. Following a detailed summary
of the principal differences between the conference
agreement and the bill which the Senate passed,
printed as part of Senator Taft's remarks, he ex-
plained that there were many minor differences.
For example:
We accepted a provision regarding
guards. We had exempted foremen in the
Senate bill, but we had not exempted plant
guards. The House bill exempted plant guards,
and also time-stud y employees and personnel
forces. did not accept of those provisions,
except that as to plant guards we provided
that they could have the protection of the
Wagner only if they had a union separate
and apart from the union of the general em-
ployees. Leg. at 1544 (June 1947)
(emphasis supplied).]
The personnel forces, to which Senator Taft al-
ludes, must be
(1) labor relations, employment, and person-
nel people, as the House defined them;
(2) "confidential clerks and secretaries" to
labor relations, employment, and personnel
people;
(3) plant policemen and guards;
(4) time-study and health-related personnel;
(5) executives and employees in the manage-
rial hierarchy other than labor relations, em-
ployment, and personnel people (i e., "confi-
dential employees," as the House used that ter-
minology); and
(6) "confidential clerks and secretaries" to
executives and employees in the managerial
hierarchy other than labor relations, employ-
ment, and personnel people.
In light of the House Conference Report and Sena-
tor Taft's remarks, these personnel forces were dis-
posed of as follows
(1) treatment of labor relations, employment,
and personnel people, as defined by the House,
continued as prior to the amendments;
The remarks of a sponsor of a hill deserve careful attention. As the
Supreme Court has had occasion to note, is the rponsor that we look
to when thr of rtatutory is in doubt." Wood-
v N.L.R.B. , 386 b I?.
quoting v. 341
(195 see French-American
350 U.S. 270.
(2) treatment of "confidential clerks and sec-
retaries" to those labor relations, employment,
and personnel people continued as prior to the
amendments;
(3) special provision was made for guards;
and
(4) time-study and health-related personnel
might be professionals.
Provisions respecting all other personnel forces
were not accepted. Of course, as Bell Aerospace
holds, the exclusion of all managerial employees, as
well as executives, is mandated by the philosophy
of the Act itself, but is implicit because Congress
it unnecessary to enact that portion of Jus-
tice Douglas' Packard dissent relating to the orga-
nization of executives. 416 U.S. at 284.
IV. CONSEQUENCES OF MODIFYING BOARD'S
TREATMENT OF CONFIDENTIAL EMPLOYEES
We believe that Congress did not intend to
modify the Board's practice respecting the determi-
nation of confidential status, and that such a
is the most logical and internally consist-
ent interpretation of the legislative history. In addi-
tion, we note the following additional reasons for
rejecting the Employer's proposed reading of the
To read the House Conference Report's
"confidential secretaries" as the equivalent of the
House bill's definition of "confidential employees"
would mean, paradoxically, that the conferees used
"secretary" to refer to a group of individuals
which the House Report described as
. . . executives." House Report at 23; see House
Conf. Report at 35.
Further, discarding the Board's consistently ap-
plied definition of "confidential employees" as
those individuals who assist and act in a confiden-
tial capacity to persons who formulate, determine,
and effectuate management policies in the field of
Aerospace itself suggests the continuing vitality of the
standard. 'The respondent there argued that, if the Su-
preme Court upheld the Board's view that only certain em-
ployees were excluded from the Act, it should be given an opportunity to
introduce relating to employees' conflict of interest in lahor
The Court cited New England Telephone and Telegraph Compa-
ny, 90 which held that certain employees not
because they did not work in a confidential to per-
sons in charge of the employer's labor relations, and others were not, be-
cause, although they made out medical report:; on employees that could
result in disciplinary the reports did not bear on the employer's
lahor relations policy. The Court then noted that the record might al-
ready be adequate for determining whether there was a of
conflict of Interest in labor Bell Aerospace, 416 at 290,
20.
the Supreme Court tha: the of the lahor
standard were a necessary clement of its holding, it would not
so confined remarks fn. 20, nor would it hare cited with
a applied erring standard order to include
appropriate unit Rather, to be consistent,
referred the managerial standard.
&
sec. 5.1
Bell Aehspace,
& & Lavan,
Angeles
960. in.
unpre-
~ a r e d
- -
em~lover-clients -
&
unde;
9(b)
Petitloner
"traffic
"traflic
KLEINBERG, KAPLAN, WOLFF, COHEN BURROWS 457
labor relations. to redefine them as those individ-
uals who have access to secret information would
have far-reaching results. Cf. Bell Aerospace, 416
U.S. at 289, fn. 18. A confidential business informa-
tion standard, even if limited to information that
constitutes "trade secrets," would deprive of pro-
tection under the Act every employee who has
access to
. . . any formula, pattern, device or compila-
tion of information which is used in one's busi-
ness, and which gives him an opportunity to
obtain an advantage over competitors who do
not know or use it. It may be a formula for a
chemical compound, a process of manufactur-
ing, treating or preserving materials, a pattern
for a machine or other device, or a list of cus-
tomers. [Restatement of Torts, 757, p.
Clearly, such a definition would vitiate collective
organization by large numbers of both white- and
blue-collar employees already organized, since
many, in the normal course of their duties, have
access to such information. Moreover, the future
impact of this broader standard would be incalcula-
ble. The Bureau of Labor Statistics has projected
that, by 1990, the economy will have created
nearly 20 million new jobs, well over half of which
will be in white-collar occupations. In the white-
collar category, clerical employees, which includes
bank tellers, bookkeepers, cashiers, secretaries, and
typists, are the fastest growing group. U.S. Depart-
ment of Labor, Bureau of Labor Statistics, News
bulletin 79-903 (December 27, 1979). Many of
these new workers would have access to confiden-
tial information in the broader sense. As a conse-
quence, in future years a rapidly growing percent-
age of workers in the work force would be de-
prived of rights under the Act. If Congress intend-
ed a result so revoluntionary, we believe that it
would have said so expressly. Cf.
416 U.S. at 284-285, fn 13.
The implications of broadening the Board's tradi-
tional definition of confidential employees are
abundantly realized here and in a companion case,
Stroock Stroock 253 NLRB No. 52
(1980). The law firms in both cases insist that a
definition excluding employees whose duties give
them secret information would exempt all of their
nonlegal staffs, although none of the employees
Nothing we state herein is intended to alter our treatment of em-
ployees who assist and act in a confidential capacity to persons who for-
mulate, determine. and effectuate management policies in the field of
labor relations, which was recently restated in Los New Hospital,
244 NLRB 4 (1979).
work in a confidential capacity to a person who
determines, formulates, and effectuates labor rela-
tions policy for their own employer. We are
to disenfranchise secretaries and other cleri-
cal personnel who neither fit in the managerial
hierarchy nor have demonstrated any desire to
abandon the "collective security" of the rank and
file. Neither the Act nor its judicial interpretation
compels such a result.
6. The Employer also insists that, even under the
Board's restricted definition, all of its clerical and
support staff are confidential employees, arguing
that its advice to . on labor matters
involves it in deciding and effectuating labor rela-
tions policies of these employers. We have careful-
ly considered this argument, and have resolved to
reiterate, in the context of law firms as employers,
that confidential status requires "that such persons
work in a confidential capacity with someone who
formulates, determines, and effectuates labor rela-
tions policies for their own employer, not some
other employer." Dun Bradstreet, supra. As
stated above, none of the petitioned-for employees
satisfv this test and we therefore conclude that
Board precedent they are not confidential
employees.
Accordingly, we find that the following employ-
ees constitute an appropriate unit for the purpose
of collective bargaining within the meaning of Sec-
tion of the Act:
All full-time and regular part-time office work-
ers, including executive secretaries, administra-
tive secretary, file clerk, mail clerk, and recep-
tionist employed at the Employer's New York,
New York office, but excluding all profession-
als, supervisors, managerial employees, confi-
dential employees, and guards under the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
would exclude the Employer's administrative secretary,
Betty Buss, from the unit on the grounds that she is a supervisory, man-
agerial, or confidential employee. Buss performs the same duties as the
executive secretaries, and enjoys the same benefits. In addition, she acts
as coordinator" to equalize workflow so that it is performed
smoothly. Her duties as coordinator" do not involve the exercise
of independent discretion, but are merely to follow instructions issued her
by the Employer.
The record, although no definitive, contains some evidence that Buss
has interviewed and hired employees. However, we note that, even if she
did at one time hire employees, she no longer possesses such authority
because of the Employer's change in hiring procedures implemented a
year prior to the filing of the instant petition.
We find that the Employer's administrative secretary possesses none of
the indicia of supervisory status. Nor is she a managerial or confidential
employee. Therefore, we shall include her in the unit found appropriate.