454 U.S. 170 (1981), 8885, National Labor Relations Board v. Hendricks County

Docket Nº:No. 8885
Citation:454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323
Party Name:National Labor Relations Board v. Hendricks County
Case Date:December 02, 1981
Court:United States Supreme Court
 
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Page 170

454 U.S. 170 (1981)

102 S.Ct. 216, 70 L.Ed.2d 323

National Labor Relations Board

v.

Hendricks County

No. 8885

United States Supreme Court

Dec. 2, 1981

Rural Electric Membership Corp.

Argued October 5, 1981

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Syllabus

Held: There is a reasonable basis in law for the practice of the National Labor [102 S.Ct. 219] Relations Board (NLRB) of excluding from collective bargaining units only those confidential employees with a "labor nexus," while rejecting any claim that all employees with access to confidential information are beyond the reach of the definition of "employee" in § 2(3) of the National Labor Relations Act (NLRA). Pp. 177-192.

(a) There is nothing in the Taft-Hartley Act's legislative history to support any inference, let alone conclusion, that Congress intended to alter, or disapproved, the NLRB's determination prior to the 1947 passage of the Act that only confidential employees with a "labor nexus" should be excluded from bargaining units. Rather, the contrary appears. Indeed, the Taft-Hartley Act's express inclusion of "professional employees" under the Act's coverage negates any reading of the legislative history as excluding confidential employees generally from § 2(3)'s definition of "employee." Pp. 177-185.

(b) The dictum in NLRB v. Bell Aerospace Co., 416 U.S. 267, 284, n. 12, that Congress "clearly thought that the [NLRA] did not cover `confidential employees,' even under a broad definition of that term," cannot be squared with congressional intent. Nor is there any merit to the argument that the NLRB has applied the labor nexus test inconsistently. A review of the NLRB's decisions indicates that it has never followed a practice of depriving all employees who have access to confidential business information from the full panoply of rights afforded by the NLRA. Rather, for over 40 years, the NLRB, while declining to create any implied exclusion from the definition of "employee" for confidential employees,

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has applied a labor nexus test in identifying those employees who should be excluded from bargaining units because of access to confidential business information. This consistent, longstanding interpretation of the NLRA by the NLRB cannot be ignored. Pp. 186-190.

627 F.2d 766 and 631 F.2d 734, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J. filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined, post, p. 192.

BRENNAN, J., lead opinion

JUSTICE BRENNAN delivered the opinion of the Court.

The question presented is whether an employee who, in the course of his employment, may have access to information considered confidential by his employer is impliedly excluded

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from the definition of "employee" in § 2(3) of the National Labor Relations Act and denied all protections under the Act.1

I

We have before us two cases under the same docket number. We shall first state separately the factual and procedural background of each.

[102 S.Ct. 220] The Hendricks case

Mary Weatherman was the personal secretary to the general manager and chief executive officer of respondent Hendricks County Rural Electric Membership Corp. (Hendricks), a rural electric membership cooperative. She had been employed by the cooperative for nine years. In May, 1977, she signed a petition seeking reinstatement of a close friend and fellow employee who had lost his arm in the course of employment with Hendricks, and had been dismissed. Several days later, she was discharged.

Weatherman filed an unfair labor practice charge with the National Labor Relations Board (NLRB or Board), alleging that the discharge violated § 8(a)(1) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. § 158(a)(1). Hendricks' defense, inter alia, was that Weatherman was denied

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the Act's protection because, as a "confidential" secretary, she was impliedly excluded from the Act's definition of "employee" in § 2(3). The Administrative Law Judge (ALJ) rejected this argument. He noted that the Board's decisions had excluded from bargaining units only those

confidential employees . . . ["]who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations."

236 N.L.R.B. 1616, 1619 (1978), quoting B. F. Goodrich Co., 115 N.L.R.B. 722, 724 (1956). Applying this "labor nexus" test, the ALJ found that Weatherman was not, in any event, such a "confidential employee."2 He also determined that Hendricks had discharged Weatherman for activity -- signing the petition -- protected by § 7 of the Act, 29 U.S.C. § 157.3 The ALJ thus sustained Weatherman's unfair labor practice charge. The Board affirmed "the rulings, findings, and conclusions of the Administrative Law Judge," and ordered that Weatherman be reinstated with backpay. 236 N.L.R.B. at 1616.

Hendricks sought review in the United States Court of Appeals for the Seventh Circuit, and the Board cross-petitioned for enforcement. A divided panel of the court reversed and remanded for further proceedings. 603 F.2d 25 (1979). Although the majority agreed with the Board's factual finding that Weatherman did not "assist in a confidential capacity with respect to labor relations policies," id. at 28, the majority, relying on language in a footnote to NLRB v. Bell Aerospace

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Co., 416 U.S. 267, 284, n. 12 (1974), held that "all secretaries working in a confidential capacity, without regard to labor relations, [must] be excluded from the Act." 603 F.2d at 30.4 The Court of Appeals therefore remanded for a determination whether Weatherman came within this substantially broader definition of confidential secretary.

On remand, the Board found that Weatherman was not privy to the confidences of her employer, and thus concluded that she did not fall within the broader definition of confidential secretary that the Court of Appeals had directed the Board to apply. 247 N.L.R.B. 498 (1980).5 Hendricks again petitioned for review and the Board cross-petitioned for enforcement. [102 S.Ct. 221] The Court of Appeals, by a divided panel, denied enforcement. 627 F.2d 766 (1980). The majority held that the Board had "actually reapplie[d] the old standard incorporating the labor nexus," and that the evidence in the

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record failed to support a finding that Weatherman did not come within the court's broader definition of confidential secretary. Id. at 770.6

The Malleable case

This case grew out of efforts of the Office and Professional Employees International Union (Union) to represent, as collective bargaining agent, various employees of respondent Malleable Iron Range Co. (Malleable). In December, 1978, the Union sought certification as the collective bargaining representative for a unit of office clerical, technical, and professional personnel employed at the respondent's facility in Beaver Dam, Wis. At the subsequent representation hearing, Malleable challenged the inclusion of 18 employees in the unit on the ground that they had access to confidential business information. The Regional Director of the NLRB rejected Malleable's objection, concluding that none of the challenged 18 employees was a confidential employee under the Board's "labor nexus" test. App. to Pet. for Cert. 76a-94a. The Union prevailed in a later representation election, and was accordingly certified as the bargaining agent for the unit. Malleable nevertheless refused to bargain with the Union. Seeking relief, the Union filed unfair labor practice charges with the NLRB. The Board found that Malleable's refusal to bargain violated §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1), and issued a bargaining order. 244 N.L.R.B. 485 (1979).

Malleable petitioned the Court of Appeals for the Seventh Circuit for review of the order and the Board cross-petitioned for enforcement. In an unreported opinion, a divided panel of the court denied enforcement. App. to Pet. for Cert.

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56a-60a. Order denying enforcement, 631 F.2d 734 (1980). The majority noted that the Regional Director, in determining that none of the 18 individuals was a confidential employee, had applied the Board's labor nexus test, which the Seventh Circuit had rejected in the earlier decisions involving Hendricks. The court remanded the case to the Board for reconsideration consistent "with the Hendricks case." App. to Pet. for Cert. 56a, 59a.

We granted the Board's petition for certiorari in both cases to resolve the conflict among the Courts of Appeals respecting the propriety of the Board's practice of excluding from collective bargaining units only those confidential employees with a "labor nexus," while rejecting any claim that all employees with access to confidential information are beyond the reach of § 2(3)'s definition of "employee."7 450 U.S. 964 (1981). [102 S.Ct. 222] We hold that there is a reasonable basis in law for the Board's use of the "labor nexus" test. We therefore reverse the judgments of the Court of Appeals, with directions in the Hendricks case to enforce the Board's order,8 and with

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directions in the Malleable case for further proceedings consistent with this opinion.

II

Section 2(3) of the NLRA provides that the "term `employee' shall include any employee . . . " (emphasis added), with certain stated exceptions such as "agricultural laborers," "supervisors" as defined in § 2(11), and "independent contractors."9 Under a literal reading of the phrase "any employee," then, the workers in question are "employees." But for...

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