416 U.S.

267
94 S.Ct. 1757
40 L.Ed.2d 134

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
BELL AEROSPACE COMPANY DIVISION OF TEXTRON
INC.
No. 721598.
Argued Jan. 14, 1974.
Decided April 23, 1974.

Syllabus
On a petition by a labor union for a representation election, the National
Labor Relations Board (NLRB) held that the buyers employed by
respondent company constituted an appropriate collective-bargaining unit
and directed an election. The NLRB stated that even though the buyers
might be 'managerial employees' they were nevertheless covered by the
National Labor Relations Act (NLRA) in the absence of any showing that
union organization of the buyers would create a conflict of interest in
labor relations. Subsequently the buyers voted for the union, and the
NLRB certified it as their exclusive bargaining representative. The
company refused to bargain, however, and was found guilty of an unfair
labor practice and ordered to bargain. The Court of Appeals denied
enforcement on the grounds that (1) it was not certain that the NLRB's
decision rested on a factual determination that the buyers were not true
'managerial employees' rather than on a new, and in the court's view,
erroneous holding that the NLRB was free to regard all managerial
employees as covered by the Act unless their duties met the conflict-ofinterest touchstone, and (2) in view of its previous contrary decisions, the
NLRB was required to proceed by rulemaking rather than by adjudication
in determining whether buyers are 'managerial employees.' Held:
1. Congress intended to exclude from the protections of the NLRA all
employees properly classified as 'managerial,' not just those in positions
susceptible to conflicts of interest in labor relations. This is unmistakably
indicated by the NLRB's early decisions, the purpose and legislative

history of the Taft-Hartley amendments to the NLRA in 1947, the NLRB's

subsequent construction of the Act for more than two decades, and the
decisions of the courts of appeals. Pp. 274290.
2. The NLRB is not required to proceed by rulemaking, rather than by
adjudication in determining whether buyers or some types of buyers are
'managerial employees.' Pp. 290295.
(a) The NLRB is not precluded from announcing new principles in an
adjudicative proceedings, and the choice between rulemaking and
adjudication initially lies within the NLRB's discretion. SEC v. Chenery
Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995; NLRB v. WymanGordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709. P. 294.
(b) In view of the large number of buyers employed in manufacturing.
wholesale, and retail units, and the wide variety of buyers' duties,
depending on the company or industry, any generalized standard would
have no more than marginal utility, and the NLRB thus has reason to
proceed with caution and develop its standards in a case-by-case manner
with attention to the specific character of the buyers' authority and duties
in each company. P. 294.
475 F.2d 485, affirmed in part, reversed in part, and remanded.
Norton J. Come, Washington, D.C., for petitioner.
Richard E. Moot, Buffalo, N.Y., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.

This case presents two questions: first, whether the National Labor Relations
Board properly determined that all 'managerial employees,' except those whose
participation in a labor organization would create a conflict of interest with their
job responsibilities, are covered by the National Labor Relations Act;1 and
second, whether the Board must proceed by rulemaking rather than by
adjudication in determining whether certain buyers are 'managerial employees.'
We answer both questions in the negative.

* 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.
3

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 buyer must obtain
approval before selecting a different one. Where no vendor is specified, the
buyer is free to choose one.

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,'2 they were nevertheless covered by the Act and
entitled to its protections. The Board then rejected the company's alternative
contention that representation should be denied because the buyers' authority to
commit the company's credit, select vendors, and negotiate purchase prices
would create a potential conflict of interest between the buyers as union

members and the company. In essence, the company argued that buyers would
be more receptive to bids from union contractors and would also influence
'make or buy' decisions in favor of 'make,' thus creating additional work for
sister unions in the plant. The Board thought, however, that any possible
conflict was 'unsupported conjecture' since the buyers' 'discretion and latitude
for independent action must take place within the confines of the general
directions which the Employer has established' and that 'any possible
temptation to allow sympathy for sister unions to influence such decisions
could effectively be controlled by the Employer.' 190 N.L.R.B., at 431.
6

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.3 Id., at
610.

Encouraged by the Eighth Circuit's decision, the company moved the Board for
reconsideration of its earlier order. The Board denied the motion, 196 N.L.R.B.
827 (1972), stating that it disagreed with the Eighth Circuit and would adhere
to its own decision in North Arkansas. In the Board's view, Congress intended
to exclude from the Act only those 'managerial employees' associated with the
'formulation and implementation of labor relations policies.' Id., at 828. In each
case, the 'fundamental touchstone' was 'whether the duties and responsibilities
of any managerial employee or group of managerial employees do or do not
include determinations which should be made free of any conflict of interest
which could arise if the person involved was a participating member of a labor
organization'. Ibid. Turning to the present case, the Board reiterated its prior
finding that the company had not shown that union organization of its buyers
would create a conflict of interest in labor relations.

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 crosspetitioned 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 that this 'exclusion embraced not only an employee 'so closely
related to or aligned with management as to place the employee in a position of
conflict of interest between his employer on the one hand and his fellow
workers on the other' but also one who is 'formulating, determining and
effectuating his employer's policies or has discretion, independent of an
employer's established policy, in the performance of his duties,' Illinois State
Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (7 Cir. 1969).' 475 F.2d, at
494. The court added, however, that 'the Board would (not) be precluded, on
proper proceedings, from determining that buyers, or some types of buyers, are
not true 'managerial employees' and consequently come within the protection of
8(a)(5) and (1).' Ibid.

10

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 494495. 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 rule-making 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.

11

We granted the Board's petition for certiorari. 414 U.S. 816, 94 S.Ct. 47, 38
L.Ed.2d 49.

II
12

We begin with the question whether all 'managerial employees,' rather than just
those in positions susceptible to conflicts of interest in labor relations, are
excluded from the protections of the Act.4 The Board's early decisions, the
legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and subsequent
Board and court decisions provide the necessary guidance for our inquiry. In

examining these authorities, we draw on several established principles of

statutory construction. In addition to the importance of legislative history, a
court may accord great weight to the longstanding interpretation placed on a
statute by an agency charged with its administration.5 This is especially so
where Congress has re-enacted the statute without pertinent change.6 In these
circumstances, congressional failure to revise or repeal the agency's
interpretation is persuasive evidence that the interpretation is the one intended
by Congress. 7 We have also recognized that subsequent legislation declaring
the intent of an earlier statute is entitled to significant weight.8 Application of
these principles leads us to conclude, as did the Court of Appeals, that Congress
intended to exclude from the protections of the Act all employees properly
classified as 'managerial.'
13

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 Freiz & Sons, 47
N.L.R.B. 43, 47 (1943), for example, the Board excluded expediters from a
proposed unit of production and maintenance workers because they were
'closely related to the management.' Similarly, in Spicer Mfg. Corp., 55
N.L.R.B. 1491, 1498 (1944), expediters were again excluded from a unit
containing office, technical, clerical, and professional employees because 'the
authority possessed by (the expediters) to exercise their discretion in making
commitments on behalf of the Company stamps them as managerial.' This
rationale was soon applied to buyers. See, e.g., Hudson Motor Car Co., 55
N.L.R.B. 509, 512 (1944); Vulcan Corp., 58 N.L.R.B. 733, 736 (1944); Barrett
Division, Allied Chem. & Dye Corp., 65 N.L.R.B. 903, 905 (1946); Electric
Controller & Mfg. Co., 69 N.L.R.B. 1242, 12451246 (1946). The Board
summarized its policy on 'managerial employees' in Ford Motor Co., 66
N.L.R.B. 1317, 1322 (1946):

14

'We have customarily excluded from bargaining units of rank and file workers
executive employees who are in a position to formulate, determine and
effectuate management policies. These employees we have considered and still
deem to be 'managerial,' in that they express and make operative the decisions
of management.'

15

Whether the Board regarded all 'managerial employees' as entirely outside the
protection of the Act, as well as inapproppriate 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, but reserved the question whether all such employees were to be
considered 'managerial':
16

'This is not to say, however, that buyers and expediters are to be denied the
right to self-organization and to collective bargaining under the Act. The precise
relationship of the buyers and expediters to management here is not now being
determined by us.'

17

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,
628629 (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.'

18

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 54 by this Court in Packard Motor Car Co. v.
NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). In view of the
subsequent legislative reversal of the Packard decision, the dissenting opinion
of Mr. Justice Douglas is especially pertinent. Id., at 493, 67 S.Ct. 789. He
stated:

19

'The present decision . . . tends to obliterate the line between management and
labor. It lends the sanctions of federal law to unionization at all levels of the
industrial hierarchy. It tends to emphasize that the basic opposing forces in
industry are not management and labor but the operating group on the one hand
and the stockholder and bondholder group on the other. The industrial problem

as so defined comes down to a contest over a fair division of the gross receipts
of industry between these two groups. The struggle for control or power
between management and labor becomes secondary to a growing unity in their
common demands on ownership.
20

'I do not believe this is an exaggerated statement of the basic policy questions
which underlie the present decision. For if foremen are 'employees' within the
meaning of the National Labor Relations Act, so are vice-presidents, managers,
assistant managers, superintendents, assistant superintendentsindeed, all who
are on the payroll of the company, including the president; all who are
commonly referred to as the management, with the exception of the directors. If
a union of vice-presidents applied for recognition as a collective bargaining
agency, I do not see how we could deny it and yet allow the present
application. But once vice-presidents, managers, superintendents, foremen all
are unionized, management and labor will become more of a solid phalanx than
separate factions in warring camps.

21

'(I)f Congress, when it enacted the National Labor Relations Act, had in mind
such a basic change in industrial philosophy, it would have left some clear and
unmistakable trace of that purpose. But I find none.' Id., at 494495, 67 S.Ct.,
at 794795.

22

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 496497, 67 S.Ct. 789. 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.

B
23

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),9
provided for the exclusion of 'supervisors,' a category broadly defined to
include any individual who had authority to hire, transfer, promote, discharge,
reward, or discipline other employees or effectively to recommend such action.
It also excluded (i) those who had authority to determine or effectively
recommend the amount of wages earned by other employees; (ii) those

employed in labor relations, personnel, and employment departments, as well as

police and time-study personnel; and (iii) confidential employees. The Senate
version of the bill, S. 1126, 80th Cong., 1st Sess. (1947),10 also excluded
supervisors, but defined that category more narrowly than the House version,
distinguishing between 'straw bosses, leadmen, set-up men, and other minor
supervisory employees, on the one hand, and the supervisor vested with such
genuine management prerogatives as the right to hire or fire, discipline, or
make effective recommendations with respect to such action.' S.Rep.No. 105,
80th Cong., 1st Sess., 4 (1947). It was the Senate's view that employees such as
'straw bosses,' who had only minor supervisory duties, should be included
within the Act's protections.
24

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 45. The House Report echoed the
concern for reduction of industrial output and noted that unionization of
supervisors had deprived employers of the loyal representations to which they
were entitled.11 And in criticizing the Board's expansive reading of the Act's
definition of the term 'employees,' the House Report noted that '(w)hen
Congress passed the Labor Act, we were concerned, as we said in its preamble,
with the welfare of 'workers' and 'wage earners,' not of the boss.' H.R.Rep. No.
245, 80th Cong., 1st Sess., 13 (1947).

25

The Conference Committee adopted the Senate version of the bill.

H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35 (1947) U.S.Code Cong.Serv.,
1947, pp. 1135, 1141. The House Managers' statement in explanation of the
Conference Committee Report stated:

26

'The conference agreement, in the definition of 'supervisor,' limits such term to

those individuals treated as supervisors under the Senate amendment. In the
case of persons working in labor relations, personnel and employment
departments, it was not thought necessary to make specific provision, as was
done in the House bill, since the Board has treated, and presumably will
continue to treat, such persons as outside the scope of the act. This is the
prevailing Board practice with respect to such people as confidential secretaries
as well, and it was not the intention of the conferees to alter this practice in any
respect. The conference agreement does not treat time-study personnel or

guards as supervisors, as did the House bill. Since, however, time-study

employees may qualify as professional personnel, the special provisions of the
Senate amendment . . . applicable with respect to professional employees will
cover many of this category. In the case of guards, the conference agreement
does not permit the certification of a labor organization as the bargaining
representative of guards if it admits to membership, or is affiliated with any
organization that admits to membership, employees other than guards.' Id., at
3536, U.S.Code Cong. Serv. 1947, p. 1141.
27

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).12 We think the
inference is plain that 'managerial employees' were paramount among this
impliedly excluded group. The Court of Appeals in the instant case put the
issue well:

28

'Congress recognized there were other persons so much more clearly

'managerial' that it was inconceivable that the Board would treat them as
employees. Surely Congress could not have supposed that, while 'confidential
secretaries' could not be organized, their bosses could be. In other words,
Congress failed to enact the portion of Mr. Justice Douglas' Packard dissent
relating to the organization of executives, not because it disagreed but because
it deemed this unnecessary.' 475 F.2d, at 491492.13 (Footnote omitted.)

29

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 were required to set
good sales records as examples to sales employees, to assist buyers in the
selection of merchandise, and to assume the buyer's duties when the latter was
not present, were excluded by the Board on the ground that 'the interests of
these employees are more closely identified with those of management.' The
Board reiterated this reading of the Act in Palace Laundry Dry Cleaning, 75
N.L.R.B. 320, 323 n. 4 (1947):

30

'The determination of 'managerial,' like the determination of 'supervisory,' is to

some extent necessarily a matter of the degree of authority exercised. We have
in the past, and before the passage of the recent amendments to the Act,
recognized and defined as 'managerial' employees, executives who formulate
and effectuate management policies by expressing and making operative
decisions of their employer, and have excluded such managerial employees
from bargaining units. We believe that the Act, as amended, contemplates the
continuance of this practice.' (Citations omitted.)

31

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:

32

'The Employer maintains that the buyers are representatives of management.

As it appears that the buyers are authorized to make substantial purchases for
the Employer, we find that they are representatives of management, and as such
may not be accorded bargaining rights under the Act.'

33

Buyers, who were authorized to bind the employer without prior approval, were
also excluded from a unit in Curtiss-Wright Corp., 103 N.L.R.B. 458, 464
(1953), because 'they are representatives of management and as such may not
be accorded bargaining rights under the Act.'

34

Finally, in Swift & Co., 115 N.L.R.B. 752, 753754 (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:

35

'It was the clear intent of Congress to exclude from the coverage of the Act all

individuals allied with management. Such individuals cannot be deemed to be

employees for the purposes of the Act. Accordingly, we reaffirm the Board's
position that representatives of management may not be accorded bargaining
rights under the Act . . ..' (Footnotes omitted.)
36

Until its decision in North Arkansas in 1970, the Board consistently followed
this reading of the Act.14 It never certified any unit of 'managerial employees,'
separate or otherwise, and repeatedly stated that it was Congress' intent that
such employees not be accorded bargaining rights under the Act. And it was
this reading which was permitted to stand when Congress again amended the
Act in 1959. 73 Stat. 519.

37

The Board's exclusion of 'managerial employees' defined as those who

'formulate and effectuate management policies by expressing and making
operative the decisions of their employer,'15 has also been approved by courts
without exception. See, e.g., Westinghouse Electric Corp. v. NLRB, 424 F.2d
1151, 1158 (CA7), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62
(1970); Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (CA7
1969); Continental Insurance Co. v. NLRB, 409 F.2d 727, 730 (CA2), cert.
denied 396 U.S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969); Retail Clerks
International Assn. v. NLRB, 125 U.S.App.D.C. 63, 6566, 366 F.2d 642, 644
645 (1966) (Burger, J.), cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18
L.Ed.2d 455 (1967);16 International Ladies' Garment Workers' Union v. NLRB,
339 F.2d 116, 123 (CA2, 1964) (Marshall, J.).17 And in NLRB v. North
Arkansas Electric Cooperative, Inc., 446 F.2d 602 (1971), the Eighth Circuit
reviewed the history of the Act and specifically disapproved the Board's
departure from its earlier position.

D
38

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.18 We agree with the Court of Appeals below that the Board
'is not now free' to read a new and more restrictive meaning into the Act. 475
F.2d, at 494.

39

In view of our conclusion, the case must be remanded to permit the Board to
apply the proper legal standard in determining the status of these buyers. 19 SEC
v. Chenery Corp., 318 U.S. 80, 85, 63 S.Ct. 454, 458, 87 L.Ed. 626 (1943);
FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct. 898, 907, 31

L.Ed.2d 170 (1972). We express no opinion as to whether these buyers fall

within the category of 'managerial employees.'20
III
40

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. 156.21 We disagree.

41

At the outset, the precise nature of the present issue must be noted. The
question is not whether the Board should have resorted to rulemaking, or in fact
improperly promulgated a 'rule,' when in the context of the prior representation
proceeding it held that the Act covers all 'managerial employees' except those
meeting the new 'conflict of interest in labor relations' touchstone. Our
conclusion that the Board applied the wrong legal standard makes consideration
of that issue unnecessary. Rather, the present question is whether on remand
the Board must invoke its rulemaking procedures if it determines, in light of our
opinion, that these buyers are not 'managerial employees' under the Act. The
Court of Appeals thought that rulemaking was required because any Board
finding that the company's buyers are not 'managerial' would be contrary to its
prior decisions22 and would presumably be in the nature of a general rule
designed 'to fit all cases at all times.'

42

A similar issue was presented to this Court in its second decision in SEC v.
Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (Chenery
II).23 There, the respondent corporation argued that in an adjudicative
proceeding the Commission could not apply a general standard that it had
formulated for the first time in that proceeding. Rather, the Commission was
required to resort instead to its rulemaking procedures if it desired to
promulgate a new standard that would govern future conduct. In rejecting this
contention, the Court first noted that the Commission had a statutory duty to
decide the issue at hand in light of the proper standards and that this duty
remained 'regardless of whether those standards previously had been spelled out
in a general rule or regulation.' Id., at 201, 67 S.Ct., at 1580. The Court
continued:

43

'The function of filling in the interstices of the (Securities) Act should be

performed, as much as possible, through this quasi-legislative promulgation of
rules to be applied in the future. But any rigid requirement to that effect would
make the administrative process inflexible and incapable of dealing with many
of the specialized problems which arise. . . . Not every principle essential to the

effective administration of a statute can or should be cast immediately into the

mold of a general rule. Some principles must await their own development,
while others must be adjusted to meet particular, unforeseeable situations. In
performing its important functions in these respects, therefore, an
administrative agency must be equipped to act either by general rule or by
individual order. To insist upon one form of action to the exclusion of the other
is to exalt form over necessity.
44

'In other words, problems may arise in a case which the administrative agency
could not reasonably foresee, problems which must be solved despite the
absence of a relevant general rule. Or the agency may not have had sufficient
experience with a particular problem to warrant rigidifying its tentative
judgment into a hard and fast rule. Or the problem may be so specialized and
varying in nature as to be impossible of capture within the boundaries of a
general rule. In those situations, the agency must retain power to deal with the
problems on a case-to-case basis if the administrative process is to be effective.
There is thus a very definite place for the case-by-case evolution of statutory
standards.' Id., at 202203, 67 S.Ct., at 1580 (Emphasis added.)

45

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, 67 S.Ct., at 1580.

46

And in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d
709 (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.
Justice Fortas, joined by The Chief Justice, Mr. Justice Stewart, and Mr.
Justice White, recognized that '(a)djudicated cases may and do . . . serve as
vehicles for the formulation of agency policies, which are applied and
announced therein,' and that such cases 'generally provide a guide to action that
the agency may be expected to take in future cases.' NLRB v. Wyman-Gordon
Co., supra, at 765766, 89 S.Ct., at 1429. The concurring opinion of Mr.
Justice Black, joined by Mr. Justice Brennan and Mr. Justice Marshall, also
noted that the Board had both adjudicative and rule-making powers and that the
choice between the two was 'within its informed discretion.' Id., at 772, 89
S.Ct. 1426.

47

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.
48

The possible reliance of industry on the Board's past decisions with respect to
buyers does not require a different result. It has not been shown that the adverse
consequences ensuing from such reliance are so substantial that the Board
should be precluded from reconsidering the issue in an adjudicative proceeding.
Furthermore, this is not a case in which some new liability is sought to be
imposed on individuals for past actions which were taken in good-faith reliance
on Board pronouncements, Nor are fines or damages involved here. In any
event, concern about such consequences is largely speculative, for the Board
has not yet finally determined whether these buyers are 'managerial.'

49

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.

50

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.

51

Judgment of the Court of Appeals affirmed in part and reversed in part, and
cause remanded.

52

It is so ordered.

53

Mr. Justice WHITE, with whom Mr. Justice BRENNAN, Mr. Justice
STEWART, and Mr. Justice MARSHALL join, dissenting in part.

54

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 in Part II that managerial employees as a class are not 'employees'
within the meaning of the National Labor Relations Act.

55

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,

56

'but shall not include any individual employed as an agricultural laborer, or in

the domestic service of any family or person at his home, or any individual
employed by his parent or spouse, or any individual having the status of an
independent contractor, or any individual employed as a supervisor, or any
individual employed by an employer subject to the Railway Labor Act . . ..' 29
U.S.C. 152(3).

57

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.

58

The Act is very plain on its face'any employee,' with specified exclusions, is
entitled to the benefits of the Act. Each of the exclusions is a narrow and
precisely defined class, and none of them mentions managerial employees.
'Supervisors' are excluded, but a precise definition of that class, mush narrower
than the class of managerial employees, is provided in 2(11):

59

'any individual having authority, in the interest of the employer, to hire,

transfer, suspend, lay off, recall, promote, discharge, assign, reward, or

discipline other employees, or responsibly to direct them, or to adjust their

grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.' 29 U.S.C. 152(11).
60

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.

61

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 that the Board shall not hold any bargaining unit to be appropriate 'if
such unit includes both professional employees and employees who are not
professional employees unless a majority of such professional employees vote
for inclusion in such unit.' It is apparent, it seems to me, that there are many
professional employees who would qualify as managerial employees; yet the
Act clearly treats them as employees for purposes of the Act and Congress
assumed they would have full organizational and bargaining rights unless it was
provided otherwise in accordance with congressional desires. Hence 9(b).

62

Insofar as the face of the Act is concerned, and as compared with an across-theboard 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.

63

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
managerial employees, in addition to supervisors, from the benefits of the Act.
64

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 appropriate bargaining units under 9. It
is clear that the Board at no time held managerial employees to be outside the
scope of the Act during the period prior to the Taft-Hartley amendments.

65

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 Motor
Car Co. v. NLRB, 330 U.S. 485, 492 n. 3, 67 S.Ct. 789, 91 L.Ed. 1040 (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. 1 In Maryland Drydock Co., 49
N.L.R.B. 733, 738, 740 (1943), the Board was 'no longer convinced that from
the mere determination that a supervisor is an employee it follows that
supervisors may constitute appropriate bargaining units' because 'the benefits
which supervisory employees might achieve through being certified as
collective-bargaining units would be outweighed not only by the dangers
inherent in the commingling of management and employee functions, but also
in its possible restrictive effect upon the organizational freedom of rank and file
employees.' Shortly, thereafter, the Board, faced with a claim by the employer
that foremen are not employees within the meaning of the Act, did not address
this possible ground of decision but held instead that it was 'not persuaded that
the factors militating against the establishment of units of supervisory
employees, set forth in . . . the Maryland Drydock case, are obviated by the
circumstance that the union seeking to represent such employees is an
independent, unaffiliated union.' General Motors Corp., 51 N.L.R.B. 457, 460
(1943). Moreover, the Board held in Soss Mfg. Co., 56 N.L.R.B. 348 (1944),
that while a bargaining unit of supervisory employees might not be appropriate,
a supervisor, like other employees, was nonetheless protected against an unfair
labor practice: 'We conclude that supervisors are 'employees' and that
supervisory status does not by its own force remove an employee from the
protection of Section 8(1) and (3)' of the Act. Id., at 353. Ultimately, in the
Packard cases, 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), the Board reverted to
its earlier rule that bargaining units of supervisors were entitled to recognition
under the Act as long as they included no rank-and-file members.
66

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 permit supervisory
employees to organize in separate units under the mantle of the Act's protection,
an enduring Board policy not to exclude supervisors from the statutory
definition of employees, and a further policy which excluded managerial
employees from rank-and-file units but had never denied them the right to
establish separate bargaining units or placed them outside the Act's definition of
'employee.' The amendments adopted by Congress in 1947 in light of this
pattern of Board practice clearly intended to do away with the Packard decision
approving the Board's authority to grant recognition to unions of supervisors.
The House and the Senate both proposed to exclude supervisors from the
individuals defined as employees for purposes of the Act. The Senate definition
of 'supervisor' was limited to individuals with authority, in the employer's
interest, to take or recommend action involving the employment of other

employees, if the exercise of such authority required the use of independent

judgment, S. 1126 2(11). But the proposed House definition would also have
identified as excluded 'supervisors' (a) those who could determine or effectively
recommend the wages to be paid other employees, (b) employees with
responsibility in the area of labor relations, personnel, employment, police, or
time-study matters, and (c) confidential employees, H.R. 3020 2(12). Neither
of these proposals sought to exclude in express terms the entire category of
'managerial employees,' i.e., those who are in a position to formulate,
determine, and effectuate management policies beyond the area of labor
relations, whether by defining such persons as 'supervisors' or by proposing a
separate exclusion for 'managerial employees.' Such a step could easily have
been taken had Congress intended to exclude these individuals from the
protection of the Act. But it was not, despite the fact that the Board had recently
considered whether certain employees should be denied organizational rights,
either because they were supervisory or, separately, because their job
responsibilities involved the exercise of managerial discretion. See, e.g., Ford
Motor Co., 66 N.L.R.B. 1317, 1322 (1946); Electric Controller & Mfg. Co., 69
N.L.R.B. 1242 (1946). One would expect that if Congress had intended to
eliminate the Board's authority to accord bargaining rights to managerial
employees, as well as supervisors, it would have said so, particularly as Board
practice had treated these two categories separately and differently.
67

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:

68

'The conference agreement, in the definition of 'supervisor,' limits such term to

those individuals treated as supervisors under the Senate amendment. In the
case of persons working in labor relations, personnel and employment
departments, it was not thought necessary to make specific provision, as was
done in the House bill, since the Board has treated, and presumably will
continue to treat, such persons as outside the scope of the act. This is the
prevailing Board practice with respect to such people as confidential employees
as well, and it was not the intention of the conferees to alter this practice in any
respect. The conference agreement does not treat time-study personnel or
guards as supervisors, as did the House bill. Since, however, time-study
employees may qualify as professional personnel, the special provisions of the
Senate amendment . . . applicable with respect to professional employees will
cover many in this category. In the case of guards, the conference agreement

does not permit the certification of a labor organization as the bargaining

representative of guards if it admits to membership, or is affiliated with any
organization that admits to membership, employees other than guards. The
provision dealing with the certification of bargaining units for guards is dealt
with in section 9(b) of the conference agreement . . ..' H.R.Conf.Rep. No. 510,
80th Cong., 1st Sess., 3536, (1947), U.S.Code Cong.Serv.1947, pp. 1135,
1141.
69

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.

70

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 representation of Board practice, which seemed to hold
only that such employees should not be included in rank-and-file bargaining
units, and not necessarily that they would have no protections under the Act,
see, e.g., Murray Ohio Mfg. Co., 61 N.L.R.B. 47 (1945); Ford Motor Co., 66
N.L.R.B. 1317 (1964), but even accepting the House Managers' statement as an
authoritative direction that these workers were not to be considered employees
within the meaning of 2, it does not follow that other groups of employees,
regarding whom no such explicit direction was set forth and whom the Board
had not treated in such a manner, were also intended to be excluded. The
statement implied that certain groups of employees were to be excluded, but it
also noted that some time-study personnel could qualify as professional
employees and could therefore organize in units which a majority of them
approved, and that guards were not wholly excluded from the Act, but were
restricted to units composed solely of other guards. 9(b), 29 U.S.C. 159(b).
Given that Congress made specific provision for time-study and plant
protection employees, who were to be entitled to bargaining rights, and that it
expressed a desire to exclude only labor relations and confidential employees

whom it thought the Board had previously held outside the Act, there is no
reason to suppose from the further congressional silence that special provisions,
whether of inclusion or exclusion, were intended with respect to other
categories of employees. If it be argued that the absence of any express
treatment of managerial employees by Congress was somehow intended to
codify prior Board practice, then the unavoidable fact is that Board decisions
had not held that managerial employees were unprotected by the Act. They had
only been excluded from rank-and-file bargaining units. Moreover, there is no
indication in the legislative history as to what Congress might have perceived
the Board's rule to be with respect to managerial employees as a class.2
71

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 nothing in the debates or other congressional materials
where the category of managerial employees, as distinquished from the class of
supervisory employees, a distinction the Board had previously drawn, is
discussed.3

72

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, 67 S.Ct., at 795. (Emphasis supplied.) See
also id., at 500, 67 S.Ct. 789. 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 entirely
consistent with this view and with the purposes of the Act. As the Senate
Report noted, its concern in changing the law with respect to supervisory
employees, as construed by Packard, was that the balance of power in the
collective-bargaining process had been upset by 'the successful efforts of labor
organizations to invoke the Wagner Act for covering supervisory personnel,
traditionally regarded as part of management, into organizations composed of
or subservient to the unions of the very men they were hired to supervise.'

S.Rep. No. 105, 80th Cong., 1st Sess., 3 (1947). See also H.R.Rep. No. 245,
80th Cong., 1st Sess., 13 (1947); 93 Cong.Rec. 3553. Where an employee may
be deemed managerial because of the nature of his duties apart from
supervision of other employees, however, there is no reason to suppose that
union affiliation, at least in separate units, would raise the same labor relations
concern.
73

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
statement was placed on the Wise, Smith & Co. and Westinghouse Electric
cases which involved the appropriateness of placing the managerial employees
in a particular bargaining unit. In Swift & Co., 115 N.L.R.B. 752 (1956), the
Board held that a proposed unit of procurement drivers could not be accorded
bargaining rights, even in a separate unit. There, the Board flatly asserted that it
was 'the clear intent of Congress to exclude from the coverage of the Act all
individuals allied with management.' Id. at 753754. The sole support for this
statement, which the Board has now repudiated, was a reference to the statutory
definitions of 'employee' and 'employer' and to the Conference Committee
Report's explanation of the term 'supervisors,' as quoted above and reprinted in
the Congressional Record.

74

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); AFLCIO, 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, 15771578 (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).

75

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
the conclusion was without any persuasive appeal. It is true, of course, that the
Board had not held to the contrary either, and that various courts of appeals
interpreted and deferred to the Board's position as one of total exclusion of
managerial employees from the scope of the Act, although in none of these
cases was that conclusion necessary to the result reached. But the Board has
now rejected this broad exclusion, and the question is whether the current view
should be sustained. That the Board now refuses to follow its prior precedents
is no reason to overturn it, for we have frequently sustained Board decisions
overruling its prior interpretations of the Act. E.g. Golden State Bottling Co. v.
NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Packard Motor Car
Co. v. NLRB, 330 U.S. 485, 67 L.Ed. 789, 91 L.Ed. 1040 (1947). And the face
of the Act and the events of 1947 demonstrate that the Board's present decision
is a permissible construction of the statute.

76

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, Inc. v. Retail Clerk's Union, 398 U.S. 235, 241242, 90 S.Ct.
1583, 1587, 26 L.Ed.2d 199 (1970), which overruled Sinclair Refining Co. v.
Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962):

77

'Nor can we agree that conclusive weight should be accorded to the failure of
Congress to respond to Sinclair on the theory that congressional silence should
be interpreted as acceptance of the decision. The Court has cautioned that '(i)t is
at best treacherous to find in congressional silence alone the adoption of a
controlling rule of law.' Girouard v.

78

United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946).
Therefore, in the absence of any persuasive circumstances evidencing a clear
design that congressional inaction be taken as acceptance of Sinclair, the mere
silence of Congress is not a sufficient reason for refusing to consider the
decision.'

79

See also Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S.

426, 431, 75 S.Ct. 473, 476, 99 L.Ed. 483 (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, 350352, 73 S.Ct. 287, 290
292, 97 L.Ed. 377 (1953).
80

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,
64 S.Ct. 851, 861, 88 L.Ed. 1170 (1944); NLRB v. United Insurance Co., 390
U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (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.

81

I respectifully dissent.

As amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. 151 et seq.

The opinion revealed that Board Member Jenkins did not view the company's
buyers as exercising managerial functions and therefore considered them
'employees' under the Act to the same extent as production and maintenance
employees. 190 N.L.R.B., at 431 n. 2. A majority of the Board, however,
apparently accepted the company's contention that the buyers were managerial
employees. Id., at 432 n. 3.

As mentioned, the Board had relied on its North Arkansas decision in the
present case. The Eighth Circuit's earlier opinion concerning a related issue in
the same case is reported at 412 F.2d 324 (1969).

Section 2(3) of the Act defines the term 'employee' as follows:

'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 respondibility 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).
5

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801
1802, 23 L.Ed.2d 371 (1969); Zemel v. Rusk, 381 U.S. 1, 1112, 85 S.Ct.
1271, 12781279, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 16
18, 85 S.Ct. 792, 801802, 13 L.Ed.2d 616 (1965); Norwegian Nitrogen Co.
v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933).

Zemel v. Rusk, supra, 381 U.S., at 1112, 85 S.Ct., at 12781279;

Commissioner of Internal Revenue v. Noel Estate, 380 U.S. 678, 682, 85 S.Ct.
1238, 1240, 14 L.Ed.2d 159 (1965); NLRB v. Gullett Gin Co., 340 U.S. 361,
365366, 71 S.Ct. 337, 340341, 95 L.Ed. 337 (1951); Helvering v. R. J.
Reynolds Tobacco Co., 306 U.S. 110, 114115, 59 S.Ct. 423, 425426, 83
L.Ed. 536 (1939); Norwegian Nitrogen Co. v. United States, supra, 288 U.S., at
313, 53 S.Ct., at 357.

Zemel v. Rusk, supra, 381 U.S., at 1112, 85 S.Ct., at 12781279; Costanzo

v. Tillinghast, 287 U.S. 341, 345, 53 S.Ct. 152, 153, 77 L.Ed. 350 (1932);
United States v. Midwest Oil Co., 236 U.S. 459, 472473, 35 S.Ct. 309, 312
313, 59 L.Ed. 673 (1915).

Red Lion Broadcasting Co. v. FCC, supra, 395 U.S., at 380 381, 89 S.Ct., at

18011802; Federal Housing Administration v. Darlington, Inc., 358 U.S. 84,

90, 79 S.Ct. 141, 145, 3 L.Ed.2d 132 (1958).
9

Section 2(12) of the House bill defined the term 'supervisor' as follows:
'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.'

10

Section 2(11) 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, 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.'

11

The Report also makes evident that Congress was concerned with more than
just the possibility of a conflict of interest in labor relations if supervisors were

unionized:
'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, 64 S.Ct. 576, 88 L.Ed. 762 (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., 1617
(1947).
12

The Report stated in reference to 'confidential employees':

'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.

13

The dissenting opinion first asserts that the Act is 'very plain on its face' and
covers all employees except those expressly excluded post, at 297, but later
concedes that the 'Conference Committee implied that certain groups of
employees were to be excluded.' Post, at 305. The dissent then argues that

'managerial employees' were not among those impliedly excluded because 'no
such explicit direction was set forth.' Ibid. This overlooks the fact that, as in the
case of 'confidential employees' and those working in 'labor relations, personnel
and employment departments,' no explicit exclusionary provision was necessary in 1947 because the Board had never
approved the organization of 'managerial employees' in either a separate unit or
as part of a rank-and-file unit. Indeed, every prior Board decision had resulted
in the exclusion of such employees as 'managerial.'
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 297298. 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., at 36, U.S.Code Cong.Serv., 1947, p. 1141. 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.
14

See, e.g., Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 571 (1963); AFL
CIO, 120 N.L.R.B. 969, 973 (1958); General Tel. Co. of Ohio, 112 N.L.R.B.
1225, 1229 (1955).
The cases excluding buyers or those exercising buyers' functions from other

units are legion. See, e.g., Ed's Foodland of Spring-field, 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, 215216 (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,
16531654 (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 has never even certified a separate unit of 'managerial
employees' and had stated in case after case that mangerial 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.
15

Palace Laundry Dry Cleaning, supra, at 323 n. 4. See Ford Motor Co., 66
N.L.R.B., at 1322.

16

In Retail Clerks International Assn. v. NLRB, supra, Mr. Chief Justice (then
Circuit Judge) Burger explained the Board's policy on 'managerial employees':
'The Board also excludes from the protections of the Act, as managerial
employees, 'those who formulate, determine, and effectuate an employer's
policies,' AFLCIO, (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 642, 645. (Emphasis added.)

17

In International Ladies' Garment Workers' Union v. NLRB, supra, Mr. Justice

(then Circuit Judge) Marshall explained that '(a)lthough the Act makes no
special provision for 'managerial employees,' under a Board policy of long
duration, this category of personnel has been excluded from the protection of
the Act.' 339 F.2d 116, 123.

18

The contrary interpretation of the Act urged by the dissent would have farreaching results. Although a shop foreman would be excluded from the Act, a

wide range of executives would be included. A major company, for example,

may have scores of executive officers who formulate and effectuate
management policies, yet have no supervisory responsibility or identifiable
conflict of interest in labor relations. If Congress intended the unionization of
such executives, it most certainly would have made its design plain. See n. 13,
supra.
19

The Board has had ample experience in defining the term 'managerial' in the
manner which we think the Act contemplates. See, e.g., Eastern Camera &
Photo Corp., supra, at 571. Of course, the specific job title of the employees
involved is not in itself controlling. Rather, the question whether particular
employees are 'managerial' must be answered in terms of the employees' actual
job responsibilities, authority, and relationship to management.

20

To be sure, it would also be appropriate for the Board to exclude employees

from a unit on the ground that their participation in a labor organization would
create a conflict of interest with their job responsibilities. New England
Telephone, 90 N.L.R.B. 639 (1950). See also Retail Clerks International Assn.
v. NLRB, 125 U.S.App.D.C., at 6566, 366 F.2d, at 644645. In this respect,
respondent has suggested that it was never afforded fair notice and an
opportunity to introduce evidence relating specifically to the possibility of a
conflict of interest in labor relations. Tr. of Oral Arg. 3335, 43, 47. At the
representation hearing, the hearing officer did not indicate that the conflict-ofinterest standard was relevant, and respondent proceeded on the assumption
that the only question was whether the buyers were 'managerial employees.'
App. 8, 83.
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.

21

Section 6 provides:
'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 (NLRB) 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.
22

A number of Board decisions have excluded buyers from units of rank-and-file

employees. See n. 14, supra. But American Locomotive Co. and Swift & Co.
appear to be the only cases in which the Board has held that buyers are not
entitled to organize in a separate unit.

23

Chenery II did not involve 4 of the APA, 5 U.S.C. 553, but is nevertheless
analogous.

'The Board had held that supervisory employees may organize in an

independent union, Union Collieries Coal Co., 41 N.L.R.B. 961, 44 N.L.R.B.
165; and in an affiliated union, Godchaux Sugars, Inc., 44 N.L.R.B. 874. Then
it held that there was no unit appropriate to the organization of supervisory
employees. Maryland Drydock Co., 49 N.L.R.B. 733; Boeing Aircraft Co., 51
N.L.R.B. 67; Murray Corp. of America, 51 N.L.R.B. 94; General Motors Corp.,
51 N.L.R.B. 457. In this case, 61 N.L.R.B. 4, 64 N.L.R.B. 1212; in L. A.
Young Spring & Wire Corp., 65 N.L.R.B. 298; Jones & Laughlin Steel Corp.,
66 N.L.R.B. 386, 71 N.L.R.B. 1261; and in California Packing Corp., 66
N.L.R.B. 1461, the Board re-embraced its earlier conclusions with the same
progressive boldness it had shown in the Union Collieries and Godchaux
Sugars cases. In none of this series of cases did the Board hold that supervisors
were not employees. See Soss Manufacturing Co., 56 N.L.R.B. 348.'

The majority argues that 'no explicit exclusionary provision was necessary in

1947 because the Board had never approved the organization of 'managerial
employees' in either a separate unit or as part of a rank-and-file unit.' Ante, at
284 285 n. 13. It does not dispute, however, that the Board had never
disapproved their organization either, and admits that the Board had stated in
Dravo Corp., 54 N.L.R.B. 1174 (1944), that by excluding buyers from a
clerical employees unit it did not mean to say they would be denied bargaining
rights under the Act. The Board had not held managerial employees excluded
prior to 1947, and Congress did not address itself to the class of 'managerial
employees' by that term or by reference to the Board's definition. There is,
therefore, no justification for excluding from the statutory designation of 'any
employee' an entire class that the Board had not previously excluded and that
Congress did not expressly deal with in its amendments to the Act or in the
legislative materials surrounding their adoption. If Congress had intended to
exclude managerial employees, it would have said something about them, since
it took such great pains to discuss supervisors and labor relations, confidential,
time-study, and plant protection employees.
3

The majority expresses concern that extending organizational and bargaining

rights to managerial employees would permit the extension of the Act to vice
presidents and other high level executives, thereby blurring the distinction
between management and labor. The concern is overblown; for most, if not all,
executives will obviously be 'super' supervisors, confidential employees,
professionals or within the Board's definition of those employees whose
organization would result in a conflict of interest with respect to the company's
labor policies. If there are remaining executives outside these categories who
should also be excluded, the Board should be told to exclude that particular
group, rather than to exclude the managerial class that would reach not only
vertically, but laterally, to deny 'hundreds of thousands,' 475 F.2d 485, 496, of
buyers and other relatively low-level management employees the organizational
benefits and other protections of the Act otherwise available to 'any employee.'
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 it legislated directly to exclude supervisory
employees.