Textron, Inc.

National Labor Relations Board - Board Decisions

May 1, 1972

196 N.L.R.B. 827 (N.L.R.B. 1972)

BELL AEROSPACE COMPANY 827
Bell Aerospace Company , Division of Textron, Inc. and
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
Amalgamated Local 1286 , Petitioner. Case 3-RC-
4987
May 1, 1972
ORDER DENYING MOTION
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS, AND KENNEDY
This case originally arose upon a petition filed by
the Union seeking to represent in a single unit the
buyers employed in the Purchasing and Procurement
Department of the Employer's Wheatfield, New
York, plant. The Employer opposed such a unit, es-
sentially on the grounds that the buyers were manage-
rial employees and as such were not entitled to
representation rights under the National Labor Rela-
tions Act, as amended. Additionally, the Employer
contended that whether or not the buyers were con-
sidered managerial, they should not be given repre-
sentation rights because a potential conflict of interest
with management might exist if the buyers were repre-
sented by a union.
The National Labor Relations Board, on May 20,
1971, found a unit of buyers appropriate for the pur-
poses of collective bargaining.' In answer to the
Employer's contentions regarding the buyers' alleged
managerial status, the Board, citing North Arkansas
Electric Cooperative, Inc.,2 stated:
In North Arkansas Electric, we found, with the
limitations there noted, "managerial" employees
are employees within the meaning of the Act and
entitled to its protection. In our opinion, their
prima facie status as employees under the Act
ordinarily entitles them not only to the protection
of the Act, but to full benefits of the Act and the
right to be represented for the purposes of collec-
tive bargaining.
The Board rejected the Employer's further contention
that an alleged conflict would exist if the buyers were
granted representation rights, and directed an election
in the unit found appropriate?
Subsequently, on August 18, 1971, the Employer
filed with the Board a Motion for Reconsideration of
the Board's Decision and Direction of Election. It
argued, in material part, that since the Board's deci-
sion herein, the United States Court of Appeals for
the Eighth Circuit had occasion to rule on the rights
' 190 NLRB No. 66.
2 185 NLRB No. 83.
3 An election was conducted on June 16 , 1971, in which a majority of the
employees voted for the Union. On August 12, 1971, the Union was certified
as exclusive bargaining agent for the Employer's buyers.
of managerial employees under the Act and judged
that "managerial" employees were excluded from the
protection of the Act. The court there denied enforce-
ment of the Board's Order in North Arkansas Elec-
tric.4 As the Board's decision in North Arkansas Elec-
tric was relied on to some extent in the Board's finding
that a unit of buyers was appropriate in the instant
proceeding, the Employer requests that the Board, in
the light of the circuit court's decision, reconsider its
previous decision and dismiss the petition herein.
The Court of Appeals for the Eighth Circuit, in the
North Arkansas Electric case, reviewed the legislative
history of Section 2(3) of the Act, which defines the
term "employees" as "any employee" and Section
2(11) which defines "supervisors." The court conclud-
ed that although the Board's practice of excluding
"managerial" employees from rank-and-file bargain-
ing units was not specifically referred to in that histo-
ry, the Congress must nevertheless have been aware of
the Board's stated policy and the failure of Congress
"to change the statute to specifically include manage-
rial employees as `employees' either in 1947 or in sub-
sequent years must be given some weight by this
court." The court then went on to review a number of
Board decisions in which managerial employees were
excluded from bargaining units and noted specifically
the Board's holding in Swift & Company, 115 NLRB
752, 753-754, to the effect that:
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.
In addition, the court referred to several court of
appeals decisions which described Board law as ex-
cluding, as managerial employees, "those who formu-
late, determine and effectuate an employer's policies"
and approving such Board law as consistent with con-
gressional intent.
The court further rejected this Board's approach in
the decision which it was reviewing, which argued for
the exclusion from the coverage of the Act of only
such managerial employees as "participated in the
formation, determination or effectuation of manage-
ment policy with respect to employee relations matters."
With all due respect to the court, we have consider-
able difficulty with its analysis of the legislative histo-
ry. It is quite true that the Congress rejected
amendments to the definition of "employee" which
would have made specific an exclusion of labor rela-
tions personnel and confidential employees. The con-
ference report submitted to the Senate deleted these
amendments "since the Board had treated, and pre-
sumably would continue to treat, such persons as out-
'North Arkansas Electric Corporation, Inc. v. N.LR.B., 446 F.2d 602.
196 NLRB No. 127
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side the scope of the Act." The rationale underlying
the Board's history of excluding such employees rests
of course upon the premise that conflicts of interest
are likely to arise between the collective employee
group represented by a labor organization and per-
sonnel working as, with, or for management repre-
sentatives whose area of responsibility includes
bargaining with such a labor organization.
But it is a long leap to reason that because Congress
declined to amend the Act to exclude a specific type
of managerial personnel it thereby meant all manage-
rial personnel, conceivably even those whose only
"managerial" functions involve a determination of
what sources of supply should be used in making
purchases of less than $5,000.
Yet, the Employer here argues, with some force,
that the broad language of the court's opinion in
North Arkansas Electric would indeed indicate that
that court believed that the Congress had specifically
intended to affirm what is said to be preexisting Board
policy with respect to the entire scope and meaning of
the term "managerial employees," used in whatever
context by this Board.
We do not agree with so broad an interpretation.
The Congressional silence with respect to managerial
employees in general, when considered in the specific
context of the legislative history, does not, we think,
indicate any intent as to Board policy in this broad
area, nor does it suggest that the Congress explored
any facet of this problem other than the Board's treat-
ment of personnel associated with the formulation
and implementation of labor relations policies.
The court was on firmer ground, however, in its
review of Board and court decisions which preceded
the Board's decision in North Arkansas Electric. It
cannot be gainsaid that this Board had, prior to North
Arkansas Electric, stated on a number of occasions its
intent to exclude from bargaining units "those who
formulate, determine, and effectuate an employer's
policies." But the question which faced us in North
Arkansas Electric and which faces us again here, albeit
in a somewhat different setting, is whether there is a
basis in the statute or in commonsense for denying
statutory protection and representational rights to all
employees who have any discretion in the formula-
tion, determination, and effectuation of any employer
policy.
It is clear enough, as the legislative commentary
and commentary in several of our own decisions has
explained, that there is sound basis for the exclusion
of those concerned with management policies in the
labor, relations area. There, the potential for conflict
of interest is apparent and thus an orderly administra-
tion of this Act requires the exclusion of such person-
nel from coverage.
And it may be that other than purely labor relations
managerial employees should unquestionably be ex-
cluded because of their responsibility with respect to
policies which are inextricably intertwined and of ne-
cessity affect or impinge upon the labor relations area.
For instance, a corporate representative, charged with
the duty of determining where an employer's plants
should be located or what capitol expenditures a cor-
poration ought to make, may well have such broad
managerial discretion as to necessarily involve the
determination of matters affecting employment and
employment policies that he should be excluded from
coverage. It may be that his decisions inevitably will
encompass the field of labor relations, even though
corporate organization charts may not, on their face,
classify him as charged directly with labor relations
policymaking.
A like analysis might also dictate the exclusion of
those bearing primary responsibility for determina-
tion of financial policies, or even those charged with
the direction of basic policies in the field of research
and development. We make no attempt to list in detail
all those managerial types who ought properly to be
excluded. Nor did we in North Arkansas, where the
only relevant consideration was the employee's lack
of authority with respect to labor relations matters.
But throughout any. attempted analysis must run
the common thread of an examination as to whether
the duties and responsibilities of any managerial em-
ployee 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 organ-
ization. That is the fundamental touchstone.
If we find, upon the facts of any case, that the
probabilities of such conflict are sufficiently minimal,
then in the absence of congressional mandate we
would see no commonsense reason to deny such per-
sons the opportunity to freely engage in concerted
activity and the right to decide for themselves whether
or not they wish to be represented in their dealings
with their employer by a labor organization.
In our original decision in this case we set forth our
reasons for finding that it had not been demonstrated
that representation of buyers with limited and specific
"policy" responsibility would necessarily create a
conflict of interest in the circumstances there present,
and we further found that there was a sufficient com-
munity of interest among these buyers so that they
constituted a separate appropriate unit for collective
bargaining. After due consideration of the court opin-
ion in the North Arkansas Electric case, we remain of
the same view.
BELL AEROSPACE COMPANY 829
Accordingly, the Employer's Motion for Reconsid-
eration is denied.
ORDER
It is hereby ordered that the Motion for Reconsid-
eration herein be, and it hereby is, denied.