MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents two questions: first, whether the National Labor Relations Board properly determined
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 procurement 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 participates 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,"
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 Board 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.
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 §§ 8 (a) (5) and (1) of the Act, 29 U. S. C. §§ 158 (a) (5) and (1), and an order compelling the company to bargain with the union. 197 N. L. R. B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second Circuit for review of the order and the Board cross-petitioned for enforcement.
The Court of Appeals denied enforcement. 475 F.2d 485 (1973). After reviewing the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and the Board's decisions in this area, the court concluded that Congress had intended to exclude all true "managerial employees" from the protection of the Act. It explained
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 § 6 of the Act, 29 U. S. C. § 156. The court therefore remanded the case to the Board for such a proceeding.
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.
The Wagner Act, 49 Stat. 449, did not expressly mention the term "managerial employee." After the Act's passage, however, the Board developed the concept of "managerial employee" in a series of cases involving the appropriateness of bargaining units. The first cases established that "managerial employees" were not to be included in a unit with rank-and-file employees. In
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 employees,
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
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, 44 Stat. 577, 45 U. S. C. § 151; Merchant Marine Act, 1936, as amended, 52 Stat. 953, 46 U. S. C. § 1101 et seq.; Social Security Act, § 1101, 49 Stat. 647.
The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947, 61 Stat. 136. The House bill, H. R. 3020, 80th Cong., 1st Sess. (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.
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 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 House 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).
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
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:
Buyers, who were authorized to bind the employer without prior approval, were also excluded from a unit in
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.
The Board's exclusion of "managerial employees" defined as those who "formulate and effectuate management polices by expressing and making operative the decisions of their employer,"
In sum, the Board's early decisions, the purpose and legislative history of the Taft-Hartley Act of 1947, the Board's subsequent and consistent construction of the Act for more than two decades, and the decisions of the courts of appeals all point unmistakably to the conclusion that "managerial employees" are not covered by the Act.
In view of our conclusion, the case must be remanded to permit the Board to apply the proper legal standard
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, 29 U. S. C. § 156.
A similar issue was presented to this Court in its second decision in SEC v. Chenery Corp., 332 U.S. 194 (1947) (Chenery II).
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 holding
Section 7 of the Act, 29 U. S. C. § 157, provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing . . . ." Section 8 (a) (1), 29 U. S. C. § 158 (a) (1), makes it an unfair labor practice to interfere with the rights guaranteed in § 7, and under § 8 (a) (5), 29 U. S. C. § 158 (a) (5), it is an unfair practice for the employer to refuse to bargain collectively with representatives of his "employees." For the purposes of the foregoing sections, the term "employee" as defined in § 2 (3) of the Act, means "any employee" of the employer,
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.
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), 29 U. S. C. § 152 (12), has defined a special subclass of professional employees having special skills and duties "involving the consistent exercise of discretion and judgment in" the performance of their work. These employees are obviously "employees" for the purposes of the Act; and in § 9, 29 U. S. C. § 159, after investing the Board with the powers necessary to decide the units appropriate for collective bargaining, it is provided
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 and 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 case 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.
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 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 accurate
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 National Labor Relations Act to "put in the employer category all those who acted for management not only in formulating but also in executing its labor policies." 330 U. S., at 496. (Emphasis supplied.) See also id., at 500. Limiting the exclusion of managerial employees to those who are charged with the formulation or implementation of labor relations policies, as the Board has now done in the case before us, is
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 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." 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):
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.
Milton Smith, Gerard C. Smetana, and Jerry Kronenberg filed a brief for the Chamber of Commerce of the United States as amicus curiae.
"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 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, as amended from time to time, or by any other person who is not an employer as herein defined." 29 U. S. C. § 152 (3).
Supervisory employees are expressly excluded from the protections of the Act. That term is defined in § 2 (11):
"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, or discipline other employees, or responsibility 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).
"The term `supervisor' means any individual—
"(A) who has authority, in the interest of the employer—
"(i) to hire, transfer, suspend, lay off, recall, promote, demote, discharge, assign, reward, or discipline any individuals employed by the employer, or to adjust their grievances, or to effectively recommend any such action; or
"(ii) to determine, or make effective recommendations with respect to, the amount of wages earned by any individuals employed by the employer, or to apply, or to make effective recommendations with respect to the application of, the factors 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 or clerical nature, but requires the exercise of independent judgment;
"(B) who is employed in labor relations, personnel, employment, police, or time-study matters or in connection with claims matters of employees against employers, or who is employed to act in other respects for the employer in dealing with other individuals employed by the employer, or 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 information that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the interest of the employer."
"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, or discipline other employees, 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."
"Supervisors are management people. They have distinguished themselves in their work. They have demonstrated their ability to take care of themselves without depending upon the pressure of collective action. No one forced them to become supervisors. They abandoned the `collective security' 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 demonstrated 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. (J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332 (1944).) It is wrong for the foremen, for it discourages the things in them that made them foremen in the first place. For the same reason, that it discourages those best qualified to get ahead, it is wrong for industry, and particularly for the future strength and productivity of our country." H. R. Rep. No. 245, 80th Cong., 1st Sess., 16-17 (1947).
"These are people who receive from their employers information that not only is confidential but also that is not available to the public, or to competitors, or to employees generally. Most of the people who would qualify 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 secretaries to such people as these." Ibid. (Emphasis added.)
In 1946 in Ford Motor Co., 66 N. L. R. B. 1317, 1322, the Board had narrowed its definition of "confidential employees" to embrace only those who exercised " `managerial' functions in the field of labor relations." The discussion of "confidential employees" in both the House and Conference Committee Reports, however, unmistakably refers to that term as defined in the House bill, which was not limited just to those in "labor relations." Thus, although Congress may have misconstrued recent Board practice, it clearly thought that the Act did not cover "confidential employees" even under a broad definition of that term.
Moreover, it cannot be denied that Congress thought that "executives" were excluded from the Act, for the House Report so stated in express terms. See n. 12, supra. And the congressional debates, along with the Senate Report, evinced a concern over the possible extension of the Act to cover corporate vice presidents and other executives who were part of management. See, e. g., 93 Cong. Rec. 3443, 4136, 5014.
In addition, the dissent completely ignores the fundamental change in industrial philosophy which would be accomplished through unionization of "managerial employees." As MR. JUSTICE DOUGLAS explained in his Packard dissent, the Wagner Act was designed to protect "laborers" and "workers," not vice presidents and others clearly within the managerial hierarchy. Extension of the Act to cover true "managerial employees" would indeed be revolutionary, for it would eviscerate the traditional distinction between labor and management. If Congress intended a result so drastic, it is not unreasonable to expect that it would have said so expressly.
The dissent also relies upon the specific inclusion of "professional employees" within the Act to support its assertion that "managerial employees" were to be similarly treated. Post, at 297-298. See 29 U. S. C. § 152 (12). "Professional employees," however, are plainly not the same as "managerial employees." As the Conference Committee Report explained, the term "professional employees" refers to "such persons as legal, engineering, scientific and medical personnel together with their junior professional assistants." H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 36. In contrast to "managerial employees," they are not defined in terms of their authority "to formulate, determine and effectuate management policies." Ford Motor Co., 66 N. L. R. B., at 1322.
The cases excluding buyers or these exercising buyers' functions from other units are legion. See, e. g., Ed's Foodland of Springfield, Inc., 159 N. L. R. B. 1256, 1260 (1966); Albuquerque Div., ACF Ind., Inc., 145 N. L. R. B. 403, 414-415 (1963); Weaver Motors, 123 N. L. R. B. 209, 215-216 (1959); Kearney & Trecker Corp., 121 N. L. R. B. 817, 822 (1958); Temco Aircraft Corp., 121 N. L. R. B. 1085, 1089 (1958); Federal Tel. & Radio Co., 120 N. L. R. B. 1652, 1653-1654 (1958).
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 Dry Cleaning, 75 N. L. R. B. 320 (1947); American Locomotive Co., 92 N. L. R. B. 15 (1950); Curtiss-Wright Corp., 103 N. L. R. B. 458 (1953); Swift & Co., 115 N. L. R. B. 752 (1956), and cases cited above.
"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.)
The present record may well be adequate for purposes of this determination. However, if new and relevant information on this point is tendered on remand, the Board should consider reopening the record for purposes of its admission.
"The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this subchapter." 29 U. S. C. § 156.
The Administrative Procedure Act (APA) defines "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . ." 5 U. S. C. § 551 (4). The rulemaking requirements include publication in the Federal Register of notice of the proposed rulemaking and hearing; an opportunity for interested persons to participate; a statement of the basis and purpose of the proposed rule; and publication in the Federal Register of the rule as adopted.
The APA defines "adjudication" as "agency process for the formulation of an order," and "order" is defined as "the whole or a part of a final disposition whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." 5 U. S. C. §§ 551 (7), (6). Proceedings for "the certification of worker representatives" are exempted from the Act's procedural requirements for an "adjudication." 5 U. S. C. §§ 554 (a) (6), 556 (a), 557 (a).
Sections 9 (c) (1) and (2) of the National Labor Relations Act (NLRA) empower the Board to investigate petitions involving questions of unit representation, to conduct hearings on such petitions, to direct representation elections, and to certify the results thereof. 29 U. S. C. §§ 159 (c) (1) and (2). Board determinations on such representation questions would appear to constitute "orders" within the meaning of the APA. See 5 U. S. C. §§ 551 (6), (7).
The NLRA does not specify in what instances the Board must resort to rulemaking.
To argue, as the majority does, that had Congress intended to include managerial employees, it would have said so expressly, ignores the fact that the Act covers "any employee" and that the burden properly falls on those who would exclude managerial employees to demonstrate that it was the intent of Congress to exclude this category when it legislated directly to exclude supervisory employees.