Kleinberg, Kaplan, Wolff, Cohen & Burrows

Kleinberg, & 9(c) error.2 mail/xerox ' Otliier employees. attorney- & so. & Bmdstmet, Hmg Hwg. 12. the ii.e., $250,000. $50,000 $50,000 i 2(5) 8 ! 1 9(c)(l) 2(6) f i " I j tion 4 Member 603 F.2d was quastion" Hen- dricks Aera "require8 con* clude e.g., clr lrtwu dill@. ently w t ~ r r c b firms genernl. 450 DECISIONS O F NATIONAL LABOR RELATIONS BOARD Kaplan, Wolff, Cohen Burrows, P.C. and District 65, UAW, Petitioner. Case 2-RC- 18508 November 21, 1980 DECISION AND DIRECTION O F ELECTION Upon a petition duly filed under Section of the National Labor Relations Act, as amended, a hearing was held before Hearing Officers Leonard Herman and Mary W. Taylor. Subsequently, pursu- ant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director for Region 2 transferred this proceeding to the Board for decision. Thereafter, the Petition- er and the Employer filed briefs with the Board which have been duly considered. The Board has reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is a law firm, organized as a professional corporation in the State of New York, engaged in the practice of law. The law firm em- ploys seven attorneys, four of whom are partners and three of whom are associates. The attorneys are assisted by a clerical and support staff presently consisting of four executive secretaries, an adminis- trative secretary, a receptionist, a file clerk, and a operator, whom the Petitioner seeks to represent. The Employer's request for oral argument is hereby denied. The record, including briefs, adequately presents the issues and the positions of the parties. Hearing Herman revoked the Employer's subpena of material which allegedly would demonstrate conflicts that would disable the Peti- tioner from representing the Employer's We find that the present record provides an adequate basis for determining the appropri- ateness of this Petitioner's representing these employees, and. therefore, that the Employer was not prejudiced by the revocation of the subpena. We further find that the evidence does not warrant depriving these em- ployees of their right to choose this Petitioner as their representative. The Employer urges that, because of the impairment of the client privilege that would result from the organization of law firms' em- ployees, the Board should reconsider its decision to assert jurisdiction over law firms generally, enunciated in Foley, Hmg Eliot. 229 NLRB 456 (1977). We decline to do We are not persuaded that employees of a law firm differ from other employees in a way that would justify carv- ing out an exception to the principle that "union membership is not in- compatible with an employee's duty of loyalty owed to his or her em- ployer. even when the duty involves a responsibility to maintain confi- dentiality." Dun 240 NLRR 162 (1979). citing Foley, supm at 457. fn. 12. In the alternative the Employer argues, citing Foley, supm at 457, fn. that the nature of its practice brings it within the "certain unusual situations" which might justify treating a law firm's employees differently from other groups of employees. T o support its contention. Employer adduced evidence of its nonlabor relations practice se- curities. real estate, immigration. trade regulation, corporate, bankruptcy. and employment compensation), alleging that the services it renders in 253 NLRB No. 54 The record shows that the Employer has an annual gross revenue in excess of The record also reveals that the Employer derives rev- enues in excess of from clients located within the State of New York who have annual , sales of goods or services in excess of out- side the State of New York. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The parties have stipulated, and we find, that District 65, UAW, is a labor organization within the meaning of Section of the Act. 3. The labor organization involved claims to rep- resent certain employees of the Employer. 4. A question affecting commerce exists concern- ing the representation of employees of the Employ- er within the meaning of Sections and and (7) of the Act. 4 5. The Employer contends that the bargaining unit sought herein is inappropriate because all its employees are "confidential," under a broad defini- of that term which it alleges the Supreme Court mandated in N.L.R.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S. 267 (1974). In support of its argument, the Employer relies on Hendricks County Rural Electric ship Corporation v. N.L.R.B., 25, 28 (7th Cir. 1979). There, the Seventh Circuit, considering whether the Board applied the appropriate legal standard to determine the status of the personal secretary to the employer's general manager, of the opinion that the "labor nexus" test applied by the Board "was exposed to serious by Bell Aerospace. Although admitting that the Su- preme Court was not presented with a confidential8 question, and that policies favoring the exclusion of managerials from the Act are inapplicable, the court nonetheless asserted that Bell space's interpretation of legislative history the conclusion that all confidential secretaries are excluded." Id. at 29. We do not agree. As elaborated below, we that Bell Aerospace does not require abandon- ment of our traditional labor relations standard for determining confidential status. From the earliest days of the Act, we excluded from rank-and-file bargaining units those confidential employees with a "labor nexus." See, Brooklyn Daily Eagle, I3 these areas are entwined inextricably with the labor relations of itn ents. We conclude that the Employer has failed to justify departure the general principle that law firm employees will not be treated under the Act from comparable groups of employees. Further. find that evidence of the Employer's nonlabor relations practice is vant to establish a basis for treating it differently from law KAPLAN, WO ILFF, & 1 1 disposition (1944).5 case.6 prevailing ' e.g., et a/., Packoge Monufocturing Plant), 108 w g e e.g., F. Goodrich 115 & 15 1); Michigon & 50 283-284. pany (Chicogo (1946), capacity persons Motcr, e.g., & Vultee Babeack & 900 supra; Com- r.g., Terminols, Inc., I Swfl & etc.. I Sargent & supra; supro. F. Goodrich ;I (1947), rpversal KLEINBERG, NLRB 974, 986 (1939) (excluding personal secre- taries to managers who handled union negotiations and grievances). We continued throughout the pre- Taft-Hartley years4 to exclude from bargaining units only those confidential employees who worked for people in the field of labor relations on the theory that . . . management should not be required to handle labor relations matters through employ- ees who are represented by the union with' which the [employer] is required to deal and who in the normal performance of their duties may obtain advance information of the [em- ployer's] position with regard to contract ne- gotiations, the of grievances, or other labor relations matters. Hoover Co., 55 NLRB 1321, 1323 At the same time we consciously and consistently refused to expand our definition of confidential em- ployees to exclude employees with access to confi- dential business information unrelated to labor rela- tions matters. In fact, our application of the labor nexus standard often resulted in the exclusion of certain employees and inclusion of others in the same As will become clear infra, we believe that when Congress stated that it did not intend "to alter [the Board practice with respect to confiden- tial secretaries] in any respect," it knowingly en- dorsed the standard enunciated in this lengthy line See, Aluminum Company of America, 61 NLRB 1066 (1945); Bethlehem Steel Company, 61 NLRB 854 (1945); American Smelt- ing & Refining Company, 61 NLRB 506 (1945); Consolidated Vultee Air- craft Corporation. 54 NLRB 103 (1943); Poultrymen's Service Corp., 41 NLRB 444 (1942); Creamery Company (Lake Mills 34 NLRB (1941). Subsequent to the of the Taft-Hartley amendments, we contin- ued to limit our exclusion of confidential employees to those with a labor nexus. See. The B. Company, NLRB 722 (1956); Sar- gent Company, 95 NLRB 15 (195 Pole Tie Company, 88 NLRB 339 (1950); Chrysler Corporation. 76 NLRB (1948): Art Metal Construction Company. 75 NLRB 80 (1947). Bell Aerospace. supra at fn. 12. implies that Ford Motor Com- Branch), 66 NLRB 1317, 1322 initiated our labor nexus standard for defining confidential employees. In fact, this test origi- nated in 1939 and was applied repeatedly and consistently in the ensuing years. In Ford Motor we merely refined our definition of confidential em- ployees "to embrace only those employees who assist and act in a confi- dential to who exercise 'managerial' functions in the field of labor relations." Ford supra at 1322 (emphasis supplied). See, Aluminum Company of Americo, supra; Bethlehem Steel Company, supra; American Smelting Refining Company, supra; Bell Air- craft Corporation. 56 NLRB 1356 (1944); Consolidated Aircraft Cor- poration, supra; The Wilcox Compony, 52 NLRB (1943); Poultrymen's Service Corp.. Creomcry Package Manufacturing pany, supra. After the 1947 amendments, we continued to reject arguments that em- ployees who worked with confidential business information unrelated tc labor relations matters should be excluded from bargaining units. See, Detroit Marine I5 NLRB 822 (1956); Miller Electric Company. 103 NLRB 1492 (1953); Company, 98 NLRB 746 1952); Company, Chrysler Corporation. supra; Art Metal Construction Company. COHEN BURROWS 45 of cases. Accordingly, we adhere to that standard, which embraces only those employees who "assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." The B. Company, 1 1 5 NLRB 722, 724 (1 956). I. T H E HOLDING O F BELL AEROSPACE In Bell Aerospace the Supreme Court held that all managerial employees, without regard to any labor relations responsibilities, were "impliedly excluded" from coverage under the National Labor Relations Act, as amended in 1947. Bell Aerospace, supra at 284. The Court found that "established principles of statutory construction," id. at 274, instruct that "a court may accord great weight to the longstand- ing interpretation placed on a statute by an agency charged with its administration," id. at 274-275, and that "congressional failure to revise or repeal the agency's interpretation [of its statute] is persua- sive evidence that the interpretation is the one in- tended by Congress." Id. at 275. Application of these principles of statutory construction, coupled with the fact that for 35 years prior to its reversal of position in Bell Aerospace the Board had inter- preted the statute to exclude managerial employees, convinced the Supreme Court "that Congress in- tended to exclude from the protections of the Act all employees properly classified as 'managerial."' Ibid. The Court also examined the legislative reaction to the Board's assertion of jurisdiction over fore- men, which had been upheld in Packard Motor Car Company v. N.L.R.B., 330 U.S. 485 and which was a major factor in precipitating the 1947 amendments to the Act. In view of this legislative of Packard, the dissenting opinion becomes "especially pertinent" in interpreting the amend- ments. Bell Aerospace, supra at 278. Justice Doug- las' concern, later echoed by Congress, was that the Board's decision . . . tends to obliterate the line between man- agement and labor. . . . For if foremen are "employees" within the meaning of the Na- tional Labor Relations Act, so are vice-presi- dents, managers, assistant managers, superin- tendents, assistant superintendents-indeed, all who are on the payroll of the company, in- cluding the president; all who are commonly referred to as the management, with the excep- tion of the directors. . . . But once vice-presi- dents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate 278.1 materia, express- 1 (1947).] 11. "[blased th[e llegislative [hlistory, 111. secrotaries" welb (1947),l ' Sec. 2(12) "supervisor" individual- ernployer- 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factions in warring camps. [Packard, supra at 494, quoted in Bell Aerospace, supra at In pari to permit unionization of manageri- al employees would work a "fundamental change in industrial philosophy," according to the Su- preme Court, since the Act "was designed to pro- tect 'laborers' and 'workers,' not vice presidents and others clearly within the managerial hierachy . . . . [To rule otherwise] would indeed be revolu- tionary, for it would eviscerate the traditional dis- tinction between labor and management. If Con- gress intended a result so drastic, it is not unreason- able to expect that it would have said so y." Bell Aerospace, supra at 285, fn. 13. In addition to Congress' concern that coverage of those within the managerial hierarchy would create a conflict of interest in labor relations, the Supreme Court noted congressional interest in en- couraging individual initiative: Supervisors are management people. They have distinguished themselves in their work . . . . They abandoned the "collective secu- rity" of the rank and file voluntarily, because they believed the opportunities thus opened to them to be more valuable to them than such "security." It seems wrong, and it is wrong, to subject people of this kind, who have demon- strated their initiative, their ambition and their ability to get ahead, to the leveling processes of seniority, uniformity and standardization that the Supreme Court recognizes as being fundamental principles of unionism. [Id. at 28 1, fn. 11, quoting from H.R. Rep. No. 245, 80th Cong., 1st Sess., 16-17 Consequently, since the Board had consistently treated all managerial employees as outside the statute, Bell Aerospace, 416 U.S. at 285-289, and since "the congressional debates, along with the Senate Report, evinced a concern over the possible extension of the Act to cover corporate vice presi- dents and other executives who were part of man- agement," id. at 284-285, fn. 13, the Board was no longer free "to read a new and more restrictive meaning into the Act." Id. at 289. Nothing in this holding undermines the Board's labor relations standard for determining confiden- tial status. The Board's test has been consistently followed, and, as the Seventh Circuit concedes, the policies favoring a managerial exclusion do not dic- tate similar treatment of confidential employees. THE POSITION OF THE EMPLOYER The Employer herein insists, however, that, on the Supreme Court in Bell Aerospace held, in dicta," that the House and the House Conference Reports' refer- ences to "confidential employees" were not limited to those in labor relations. Dictum is, of course, neither a holding, nor an essential element of a court's holding. Furthermore, we do not agree that the legislative history unmistakably indicates that Congress intended for all employees whose work could be characterized as "confidential" to be ex- cluded. LEGISLATIVE HISTORY A. Overview Preliminarily, we summarize the legislative histo- ry as an outline of the detailed discussion which follows. The House, when considering amendments to the Wagner Act, was fully advised of Board precedent regarding persons who exercised man- agerial functions in the field of labor relations and their "confidential secretaries," and approved that practice. In addition, however, the House-passed bill extended the treatment to employees in the nonlabor relations managerial hierarchy (whom the House referred to as "confidential employees") and to their "confidential secretaries." The compromise bill, as explained by House Conference Report No. 5 10, 80th Cong., 1st Sess. (1947) (hereinafter House Conference Report) at 35, endorsed Board treat- ment of those persons who exercise managerial functions in the field of labor relations and their "confidential secretaries," and does not extend sim- ilar treatment to those persons in the nonlabor rela- tions managerial hierarchy and their "confidential secretaries." At all times Congress meant "confi- dential employees" and "confidential to be mutually exclusive. Such a construction accords with the prin- ciple that Congress is presumed to have full knowl- edge and information as to the Board's prior inter- pretation of the statute. Cf. Cannon v. University of Chicago, 441 U.S. 677, 696-698 (1 979) (appropriate to presume that Congress was aware of prior inter- pretation of Title VI and that that interpretation re- flected its intent with respect to Title IX). Further, we need not indulge in any presumption, since the language of the House Conference Report supports our construction of the legislative history. B. House Proposal Both houses of Congress heard extensive testi- mony respecting the supervisory issue. The House bill, H.R. 3020, 80th Cong., 1st Sess. of the House bill defined the term "supervisor" a. follows: The term means any (A) who has authority, in the interest of the Continued & "[llabor "[e]mployment assign "[d]octors, (i) (ii) respect factors (8) gen- era11 ." secre- KLEINBERG, KAPLAN, WOLFF, COHEN BURROWS 453 would have excluded those individuals who have authority to hire, transfer, promote, discharge, reward, or discipline other employees, or effective- ly to recommend such action. In addition, as elabo- rated in House Report No. 245, 80th Cong., 1st Sess. 16 (1947) (hereinafter House Report), the House sought to include in the definition of "super- visor": (1) relations people [who] negotiate labor agreements and handle disputes not set- tled in the shops"; (2) and personnel people [who] hire workers, and sometimes them to their departments"; (3) plant policemen and guards; (4) time-study people; (5) nurses, safety engineers, and adjusters [who] handle claims for disability benefits and investigate alleged hazards to safety and health"; (6) "employees [who] handle intimate details of the business that frequently are highly con- fidential. Some affect the employer's relations with labor. Others affect its relations with its competitors." The House Report at 23 remarked further on the proposed definition of "supervisor": In the discussion of the definition of the term "employee," the reasons for excluding from that definition persons who act for em- ployers in the employer's dealings with labor have been fully set forth . . . . The only im- portant change concerns confidential employ- ees. These are people who receive from their employers information that not only is confi- dential but also that is not available to the public, or to competitors, or to employees gen- erally. Most of the people who would qualify to hire, transfer, suspend, lay off, recall, promote, demote, dis- charge, assign, reward, or discipline any individuals employed by the employer, or to adjust their grievances, or to effectively recommend any such action; or to determine, or make effective recommendations with respect to. the amount of wages earned by any individuals employed by the employer, or to apply, or to make effective recommendations with to the application of, the upon the basis of which the wages of any individuals employed by the employer are determined, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the exercise of independent judgment; 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 re- spects 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 infor- mation that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the in- terest of the employer. as "confidential" employees are executives and are excluded from the act in any event. The Board, itself, normally excludes from bargaining units confidential clerks and secre- taries to such people as these. But protecting confidential financial information from com- petitors and speculators, protecting secret processes and experiments from competitors, and protecting other vital secrets ought not to rest in the administrative discretion of the Board or on the responsibility of whatever union happens to represent the employees. The bill therefore excludes from the definition of employees persons holding positions of trust and confidence whose duties give them secret information. Because understanding these comments is essential to deciphering Congress' intentions as expressed in the House Conference Report, we explicate them in some detail: (1) The House Report does not use "confidential employees" in the first paragraph quoted above, and "confidential clerks and secretaries" in the second paragraph quoted above, synonymously. The antecedent of the phrase "excludes from bar- gaining units confidential clerks and secretaries to such people as these" is the previous paragraph. If "confidential clerks and secretaries" were identical with any category of employees mentioned in the previous paragraph, then the first sentence of the second paragraph would be redundant. (2) The terminology "confidential employees" must refer to employees other than "confidential clerks and secretaries," otherwise the first sentence of the second paragraph would, in effect, read that the Board excludes from bargaining units "confi- dential clerks and secretaries" to themselves. (3) Thus, paragraph one refers to a group of em- ployees exclusive of "confidential clerks and secre- taries." Paragraph two refers to a group of employ- ees categorized "confidential clerks and secretar- ies." (4) Paragraph one is divisible into two distinct categories: (a) those "persons who act for employ- ers in the employer's dealings with labor," the rea- sons for which excluding were discussed earlier in the House Report at 16-17; (b) those employees whose treatment by the Board the House wished to alter, namely, "confidential employees . . . who re- ceive from their employers information that not only is confidential but also that is not available to the public, or to competitors, or to employees y (5) Paragraph two is also divisible into two dis- tinct categories: (a) "confidential clerks and deali~lgs ." that"confidentia1 effectuated-i.e., Act,s Iserman, wm I Management 1947, Hist.), see Sess. 19.= I1 Hist. checkers, earning. affect aflcct competiton. $w affects firm's act 80th 1st Sns. 2720 80th 1st Sess. lxnnan, Senate ruem, confidential exerc~sed Sec. 2(11) conncctlon 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taries" to "persons who act for employers in the employer's with labor"; (b) "confidential clerks and secretaries" to "confidential employees." The "such people as these," whose "confidential clerks and secretaries" the Board normally ex- cludes from bargaining units, must be the "persons who act for employers in the employer's dealings with labor." This is so, because of the second sen- tence in the second paragraph which reads, "But protecting confidential . . . information . . and the third sentence which reads, "The bill . . . ex- cludes . . . ." "But" is a conjunction expressing opposition between a preceding and subsequent clause or idea. The preceding idea here is that "confidential clerks and secretaries" to x are nor- mally excluded from bargaining units, while the subsequent idea is clerks and sec- retaries" to y are not. The x must be the category of employees about which no important change is those "persons who act for em- ployers in the employer's dealings with labor.'' They must be the remaining category, "confidential employees," to which the House intends to extend exclusionary treatment. The necessary implication of "but," therefore, is that "clerks and secretaries" to these "confidential employees" have not been excluded, and that the House intends to alter this fact. C. Senate Proposal The Senate, equally cognizant of the various groups of employees which employers desired to exempt from coverage under the voiced the Both houses of Congress listened to countless proposals regarding the supervisory issue. Theodore R. a labor relations attorney who instrumental in drafting the House bill, see Legislative History of the Labor Relations Act, 647 (hereinafter cited as Leg. provided exhaustive testimony on the issue before both House and Senate committee& including the following which was ex- cerpted almost verbatim in the House Report at 16: If we are to produce goods competitively and in such large quanti- ties that many can buy them at low cost, then, just as there are people on labor's side to say what workers want and have a right to expect. there must be in management and loyal to it persons not sub- ject to influence or control of unions, not only to assign people to their work. to that they keep at their work and do it well, to correct them when they are at fault, and to settle their complaints and grievances, but to determine how much work employees should do, what pay they should receive for it, and to carry on the whole of labor relations. Labor-relations people negotiate labor agreements and handle dis- putes not settled in the shops. Employment and personnel people hire workers. and sometimes assign them to their departments. Plant policemen and guards prevent disorders and report misconduct of employees and of unions and their members, like collecting dues and signing up members on the firm's time and inciting strikes contrary to the labor agreement. Time-study men help to fix the pace at which employees work and to determine the number of men the work calls for. Doctors, nurses, safety engineers, and adjusters handle claims for disability benefits and investigate alleged hazards to safety and health. Timekeepers sometimes record the hours that employees work and the time they take for different jobs. On some concern earlier articulated in the Packard dissent that Board processes could be used to unionize vice presidents, and expressed its intention to avoid the conflict of interest that would naturally result if management were deprived of the undivided loyal- ty of certain employees. S. Rep. No. 105, 80th Cong., 1st 4-5 (1947) (hereinafter Senate Report). Nevertheless, the Senate exercised consid- erable care to frame the exclusion to cover only those employees who were truly supervisory. Senate Report at D. House Conference Report In conference, the Senate's view regarding "su- pervisors" prevailed. House Conf. Report at 35; Leg. 1537 (June 5, 1947). Thus, the amend- ments passed by Congress provided that plant po- licemen and guards, whom the House had included under its supervisory umbrella, would be protected under the Act, although unions of such employees could be certified only if independent of other em- ployees. Further, the conference agreement pro- tected time-study personnel, who also had been ex- cluded as supervisors by the House. House Conf. Report at 35. In addition, respecting the employees the House bill categorized as "persons working in labor rela- tions, personnel and employment departments," and "confidential employees," the House Confer- ence Report stated: piecework, inspector& and weighers determine the amounts of employee's Others handle intimate details of the business that frequently are highly confidential. Some the company's lations with labor. Others its relations with its much of it that labor is made available to the union ought to be determined by collective bargaining. not by the extent to which the union can induce employees to betray the company's confidence in them. That which affects the company's relations with its competitors certainly ought not to be open, through its members, to a union that deals also with the competitors. I urge you to exempt from the operation of the Wagner Act not only foremen but all others who for em- ployers in dealing with labor and all who handle the employer's con- fidential affairs. Amendments to the National Labor Relations Act: Hearings (on H.R. 3020) Before the Committee on Education and Labor, Cong., (1947); see Labor Relations Program: Hearings (on S. 1126) Before the Committee on Labor and Public Welfare. Cong., 169 (1947) (hereinafter Senate Hearings). We believe that Mr. who was well-versed in labor law, see Hearings at 121, surely was conversant with the Board's long- standing practice, see of defining employees as those people who assisted persons who managerial functions in the field of labor relations. of the Senate bill contained the following definition of the term "supervisor": The term "supervisor" means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to adjust their grievances, or effectively to recommend such action if in with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of inde- pendent judgment. KAPI,AN, & 35.1 de- partments"1° "[ilt that* F.2d 1973), "[mlost execu- '0 ernploy- men1 supra, personnel.The provision Hist. "affect who sqra.) KLEINBERG, WOLFF, COHEN BURROWS 455 The conference agreement, in the definition of "supervisor," limits such term to those indi- viduals treated as supervisors under the Senate amendment. In the case of persons working in the labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the pre- vailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. [House Conf. Report at In the preceding paragraph the report summarized the categories of employees which the House bill treated as supervisors, but which the Senate bill did not, as "(A) certain personnel who fix the amount of wages earned by other employees, such as in- spectors, checkers, weighmasters, and time-study personnel, (B) labor relations personnel, police, and claims personnel, and (C) confidential employees." Ibid. (emphasis supplied). As is obvious, the phrases "persons working in the labor relations, personnel and employment and "labor relations personnel" are used interchangeably. It is also clear, from the defi- nition of labor relations, personnel, and employ- ment people, and from the conference report's statement that the Board has treated such persons as outside the Act, that Congress was referring to the category of employees which the Board has traditionally treated as "persons who exercise 'man- agerial' functions in the field of labor relations." Ford Motor Company, 66 NLRB at 1322. Thus, as the Second Circuit stated, "the Board does not challenge" that is quite clear . . . Con- gress believed 'persons working in the labor rela- tions, personnel and employment departments' would be excluded," Bell Aerospace Company, Divi- sion of Textron, Inc. v. N.L.R.B., 475 485, 491 (2d Cir. since that was no more nor less than the Board's established practice. The conference report does not expressly state what agreement the conferees reached regarding the House bill's category of "confidential employ- ees." However, according to the House Report, of the people who would qualify as 'confi- dential' are executives and are excluded from the act in any event." House Report at 23 (emphasis sup- plied). In 1947, the Board appeared to exclude all managerial employees, many of whom are For the House definition of labor relations, personnel, and people, see the text following In. 7, and the House Report at 16. tives. In response to the Board's inclusion of fore- men, the House bill insisted that all employees in the managerial hierarchy be excluded. The infer- ence is inescapable that "confidential employees" included, inter-alia, executives, such as vice presi- dents and other management discus- sion by Congress of professional employees and the ultimate inclusion of the Senate's protect- ing their right to unionize suggest that an addition- al group of individuals was included in the House bill's broadly defined "confidential employees." The term "professional employees"-"architects, engineers, scientists, lawyers . . . nurses . . . chem- ists," Senate Report at 11, 19; see also House Conf. Report at 36-encompassed many whom the House sought to exclude under its broad definition of "confidential employees." As then Representative Henry Jackson noted, the House bill's exclusion would destroy the union which represented a . . . membership who do the architectural, en- gineering, and scientific work of the country. They use their brains in seeking out new mate- rials and new methods of production. By the very nature of their work, they have confiden- tial information which is neither available to the public nor to their employer's competitors. . . . They are loyal employees and use the confidential knowledge which they have for the benefit of their employers . . . . [I Leg. at 847.1 These professionals, including doctors and nurses in health-related fields, as well as executives and other management personnel, "handle intimate de- tails of the business that frequently are highly con- fidential," and which [an employer's] rela- tions with its competitors." House Report at 16. Thus, the conferees consulted as to each group of employees the House sought. to exclude. And, as noted earlier, the categories "confidential employ- ees" and "confidential clerks and secretaries" are mutually exclusive, and when the House Report states that the Board normally excludes the latter category it can only be referring to those employ- ees act in a confidential capacity to persons in the labor relations, personnel, and employment de- partments. (See the detailed exegesis of the relevant passage of the House Report, Consequently, when the conferees stated that they did not intend to alter in any respect the prevailing Board prac- tice regarding such people as "confidential secre- taries," House Conf. Report at 35, both the House and the Senate approved Board treatment of labor relations, personnel, and employment people, and, in addition, endorsed the Board's practice respect- ing "confidential secretaries" who worked for 45b "[llabor "[e]mployment and assign 16. plant Wt7 any Act [I1 Hist. 5 . I ' "lilt meanlng thr wtvds Nafional r,ork .Manufacturer.r .4 isocrurk~n U.S 610 (1967). Swtgmafrn BKIS. (ulvrrt Dict~llt'rr Corp.. L' S. 384. 3"J'.11)5 1): Mustro Pluctir,c Corp.. d i d Hredi 7:'. GI.. Inc r . h:L.R.B., 288 (1956). deemed con- structioii history.12 "[m]ost[ly] 'Vndeed, Bell I:~hor rclarlons manager~al ebidence the relat~ons. NL.RR 639 (1950). wcre conlidcnt~al, capacity action, pots~bility n relatior~s. U.S. fn. Had cons~dered el~mlnation rclstlons have 11s In ap- prov.11 Eloard caw wh~eh the In rmployrcs ~n an log~cnlly ~t wnuld h a w ro DECLSIONS OF NATIONAL LABOR KELATLONS BOARD relations people [who] negotiate labor agreements and handle disputes not settled in the shops" and for personnel people [who] hire workers, and sometimes them to their departments." House Report at Senator Taft, who sponsored the Senate bill, reit- erated this point. Following a detailed summary of the principal differences between the conference agreement and the bill which the Senate passed, printed as part of Senator Taft's remarks, he ex- plained that there were many minor differences. For example: We accepted a provision regarding guards. We had exempted foremen in the Senate bill, but we had not exempted plant guards. The House bill exempted plant guards, and also time-stud y employees and personnel forces. did not accept of those provisions, except that as to plant guards we provided that they could have the protection of the Wagner only if they had a union separate and apart from the union of the general em- ployees. Leg. at 1544 (June 1947) (emphasis supplied).] The personnel forces, to which Senator Taft al- ludes, must be (1) labor relations, employment, and person- nel people, as the House defined them; (2) "confidential clerks and secretaries" to labor relations, employment, and personnel people; (3) plant policemen and guards; (4) time-study and health-related personnel; (5) executives and employees in the manage- rial hierarchy other than labor relations, em- ployment, and personnel people (i e., "confi- dential employees," as the House used that ter- minology); and (6) "confidential clerks and secretaries" to executives and employees in the managerial hierarchy other than labor relations, employ- ment, and personnel people. In light of the House Conference Report and Sena- tor Taft's remarks, these personnel forces were dis- posed of as follows (1) treatment of labor relations, employment, and personnel people, as defined by the House, continued as prior to the amendments; The remarks of a sponsor of a hill deserve careful attention. As the Supreme Court has had occasion to note, is the rponsor that we look to when thr of rtatutory is in doubt." Wood- v N.L.R.B., 386 b I?. quoting v. 341 (195 see French-American 350 U.S. 270. (2) treatment of "confidential clerks and sec- retaries" to those labor relations, employment, and personnel people continued as prior to the amendments; (3) special provision was made for guards; and (4) time-study and health-related personnel might be professionals. Provisions respecting all other personnel forces were not accepted. Of course, as Bell Aerospace holds, the exclusion of all managerial employees, as well as executives, is mandated by the philosophy of the Act itself, but is implicit because Congress it unnecessary to enact that portion of Jus- tice Douglas' Packard dissent relating to the orga- nization of executives. 416 U.S. at 284. IV. CONSEQUENCES OF MODIFYING BOARD'S TREATMENT OF CONFIDENTIAL EMPLOYEES We believe that Congress did not intend to modify the Board's practice respecting the determi- nation of confidential status, and that such a is the most logical and internally consist- ent interpretation of the legislative history. In addi- tion, we note the following additional reasons for rejecting the Employer's proposed reading of the To read the House Conference Report's "confidential secretaries" as the equivalent of the House bill's definition of "confidential employees" would mean, paradoxically, that the conferees used "secretary" to refer to a group of individuals which the House Report described as . . . executives." House Report at 23; see House Conf. Report at 35. Further, discarding the Board's consistently ap- plied definition of "confidential employees" as those individuals who assist and act in a confiden- tial capacity to persons who formulate, determine, and effectuate management policies in the field of Aerospace itself suggests the continuing vitality of the standard. 'The respondent there argued that, if the Su- preme Court upheld the Board's view that only certain em- ployees were excluded from the Act, it should be given an opportunity to introduce relating to employees' conflict of interest in lahor The Court cited New England Telephone and Telegraph Compa- ny, 90 which held that certain employees not because they did not work in a confidential to per- sons in charge of the employer's labor relations, and others were not, be- cause, although they made out medical report:; on employees that could result in disciplinary the reports did not bear on the employer's lahor relations policy. The Court then noted that the record might al- ready be adequate for determining whether there was a of conflict of Interest in labor Bell Aerospace, 416 at 290, 20. the Supreme Court tha: the of the lahor standard were a necessary clement of its holding, it would not so confined remarks fn. 20, nor would it hare cited with a applied erring standard order to include appropriate unit Rather, to be consistent, referred the managerial standard. & sec. 5.1 Bell Aehspace, & & Lavan, Angeles 960. in. unpre- ~ a r e d - - em~lover-clients - & unde; 9(b) Petitloner "traffic "traflic KLEINBERG, KAPLAN, WOLFF, COHEN BURROWS 457 labor relations. to redefine them as those individ- uals who have access to secret information would have far-reaching results. Cf. Bell Aerospace, 416 U.S. at 289, fn. 18. A confidential business informa- tion standard, even if limited to information that constitutes "trade secrets," would deprive of pro- tection under the Act every employee who has access to . . . any formula, pattern, device or compila- tion of information which is used in one's busi- ness, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufactur- ing, treating or preserving materials, a pattern for a machine or other device, or a list of cus- tomers. [Restatement of Torts, 757, p. Clearly, such a definition would vitiate collective organization by large numbers of both white- and blue-collar employees already organized, since many, in the normal course of their duties, have access to such information. Moreover, the future impact of this broader standard would be incalcula- ble. The Bureau of Labor Statistics has projected that, by 1990, the economy will have created nearly 20 million new jobs, well over half of which will be in white-collar occupations. In the white- collar category, clerical employees, which includes bank tellers, bookkeepers, cashiers, secretaries, and typists, are the fastest growing group. U.S. Depart- ment of Labor, Bureau of Labor Statistics, News bulletin 79-903 (December 27, 1979). Many of these new workers would have access to confiden- tial information in the broader sense. As a conse- quence, in future years a rapidly growing percent- age of workers in the work force would be de- prived of rights under the Act. If Congress intend- ed a result so revoluntionary, we believe that it would have said so expressly. Cf. 416 U.S. at 284-285, fn 13. The implications of broadening the Board's tradi- tional definition of confidential employees are abundantly realized here and in a companion case, Stroock Stroock 253 NLRB No. 52 (1980). The law firms in both cases insist that a definition excluding employees whose duties give them secret information would exempt all of their nonlegal staffs, although none of the employees Nothing we state herein is intended to alter our treatment of em- ployees who assist and act in a confidential capacity to persons who for- mulate, determine. and effectuate management policies in the field of labor relations, which was recently restated in Los New Hospital, 244 NLRB 4 (1979). work in a confidential capacity to a person who determines, formulates, and effectuates labor rela- tions policy for their own employer. We are to disenfranchise secretaries and other cleri- cal personnel who neither fit in the managerial hierarchy nor have demonstrated any desire to abandon the "collective security" of the rank and file. Neither the Act nor its judicial interpretation compels such a result. 6. The Employer also insists that, even under the Board's restricted definition, all of its clerical and support staff are confidential employees, arguing that its advice to . on labor matters involves it in deciding and effectuating labor rela- tions policies of these employers. We have careful- ly considered this argument, and have resolved to reiterate, in the context of law firms as employers, that confidential status requires "that such persons work in a confidential capacity with someone who formulates, determines, and effectuates labor rela- tions policies for their own employer, not some other employer." Dun Bradstreet, supra. As stated above, none of the petitioned-for employees satisfv this test and we therefore conclude that Board precedent they are not confidential employees. Accordingly, we find that the following employ- ees constitute an appropriate unit for the purpose of collective bargaining within the meaning of Sec- tion of the Act: All full-time and regular part-time office work- ers, including executive secretaries, administra- tive secretary, file clerk, mail clerk, and recep- tionist employed at the Employer's New York, New York office, but excluding all profession- als, supervisors, managerial employees, confi- dential employees, and guards under the Act. [Direction of Election and Excelsior footnote omitted from publication.] would exclude the Employer's administrative secretary, Betty Buss, from the unit on the grounds that she is a supervisory, man- agerial, or confidential employee. Buss performs the same duties as the executive secretaries, and enjoys the same benefits. In addition, she acts as coordinator" to equalize workflow so that it is performed smoothly. Her duties as coordinator" do not involve the exercise of independent discretion, but are merely to follow instructions issued her by the Employer. The record, although no definitive, contains some evidence that Buss has interviewed and hired employees. However, we note that, even if she did at one time hire employees, she no longer possesses such authority because of the Employer's change in hiring procedures implemented a year prior to the filing of the instant petition. We find that the Employer's administrative secretary possesses none of the indicia of supervisory status. Nor is she a managerial or confidential employee. Therefore, we shall include her in the unit found appropriate.