444 F.2d 783 (4th Cir. 1971), 15220, N. L. R. B. v. Wheeling Elec. Co.

Docket Nº:15220, 15270.
Citation:444 F.2d 783
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHEELING ELECTRIC COMPANY, Respondent. NATIONAL LABOR RELATIONS BOARD, Respondent, v. WHEELING ELECTRIC POWER COMPANY, Petitioner.
Case Date:June 18, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 783

444 F.2d 783 (4th Cir. 1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

WHEELING ELECTRIC COMPANY, Respondent.

NATIONAL LABOR RELATIONS BOARD, Respondent,

v.

WHEELING ELECTRIC POWER COMPANY, Petitioner.

Nos. 15220, 15270.

United States Court of Appeals, Fourth Circuit.

June 18, 1971

Argued April 7, 1971.

Page 784

Joseph E. Mayer, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., and Arline Mendelson, Attys., N.L.R.B., on Brief), for petitioner and respondent N.L.R.B.

Guy Farmer, Washington, D.C. (Patterson, Belknap, Farmer & Shibley, Washington, D.C., on brief), for respondent Wheeling Electric Co. and petitioner Wheeling Electric Power Co.

Before WINTER, CRAVEN, and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge.

This is an appeal from a decision of the National Labor Relations Board that the Wheeling Electric Company violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), by discharging and refusing to rehire a confidential secretary who refused to perform her duties during a strike. We think confidential secretaries are not within the protection of the Act, and deny enforcement of the Board's order to reinstate.

The parties agree that Mrs. Imogene McConnell was the confidential secretary to the manager of the company's Mounsville, West Virginia, office, and that she was not a union member because of the confidential nature of her employment. Nevertheless, because of personal sympathies (Mrs. McConnell's husband was an official of another union not involved), she refused to cross union picket lines during a strike and was fired for it. Under the theory that her refusal to come to work under the circumstances was protected concerted activity, the Board found an 8(a)(1) violation. Whether Mrs. McConnell is within the protection of the Act depends upon whether she was an 'employee' within the meaning of the Act. On its face she would appear to be within the statutory definition. Section 2(3) reads:

The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include * * * any individual employed as a supervisor. * * *

29 U.S.C. 152(3).

Apparently, that is as far as the Board got. It did not adequately consider legislative history, or considering it, failed to grasp its significance in light of the Board's own prior decisions. Where legislative intent is perfectly clear, it should be accorded effect whether or not there is patent ambiguity in

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the statute itself. See, e.g. Pridemark, Inc. v. Commissioner of Internal Revenue, 345 F.2d 35, 40-41 (4th Cir. 1965).

When Congress redefined 'employee' in 1947 (Section 2(3)) it excluded supervisors 1 from the Act's coverage, 'thereby reversing a series of decisions in which the Board held, not only that the original Act guaranteed foremen the right to organize and bargain collectively, but also that they were authorized to bargain, if they wished, through the very union which represented their subordinates.' Cox, The Labor Management Relations Act, 61 Harv.L.Rev. 1, 4-5 (1947). The original House version of the bill, while excluding supervisors from coverage under the Act, had also excluded confidential employees 2 by including them in the definition of 'supervisor.' H.R. 3020, 80th Cong., 1st Sess. (1947). The Senate passed an amended version that did not specifically mention confidential employees as being within the 'supervisor' exemption. 93 Cong.Rec. 6371 (1947). The bill subsequently went to conference in which the Senate version was adopted. The conference report explained the basis for the compromise:

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 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 prevailing Board practice with respect to...

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