U.S. Supreme Court NLRB v. Bell Aerospace Co., 416
U.S. 267 (1974) National Labor Relations Board v.
Bell Aerospace Company No. 72-1598 Argued January 14,
1974 Decided April 23,
1974 416
U.S. 267 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT 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 of interest 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. 416 U. S.
274 -290.

															2. The NLRB is not required to proceed by rulemaking, rather Page 416 U. S. 268 than by adjudication, in determining whether buyers or some
types of buyers are "managerial employees." Pp. 416 U. S.
290 -295.

															(a) The NLRB is not precluded from announcing new principles in
an adjudicative proceeding, and the choice between rulemaking and
adjudication initially lies within the NLRB's discretion. SEC
v. Chenery Corp., 332 U. S. 194 ; NLRB v. Wyman-Gordon Co., 394 U.
S. 759 . P. 416 U. S.
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. 416 U. S.
294 .

															475 F.2d 485, affirmed in part, reversed in part, and
remanded.

															POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and DOUGLAS, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J.,
filed an opinion dissenting in part, in which BRENNAN, STEWART, and
MARSHALL, JJ., joined, post, p. 416 U. S.
295 .

															MR. JUSTICE POWELL delivered the opinion of the Court.

															This case presents two questions: first, whether the National
Labor Relations Board properly determined Page 416 U. S. 269 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; [ Footnote 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. I Respondent Bell Aerospace Co., Division of Textron, Inc.
(company), operates a plant in Wheatfield, New York, where it is
engaged in research and development in the design and fabrication
of aerospace products. On July 30, 1970, Amalgamated Local No. 1286
of the United Automobile, Aerospace and Agricultural Implement
Workers of America (union) petitioned the National Labor Relations
Board (Board) for a representation election to determine whether
the union would be certified as the bargaining representative of
the 25 buyers in the purchasing and procurement department at the
company's plant. The company opposed the petition on the ground
that the buyers were "managerial employees," and thus were not
covered by the Act.

															The relevant facts adduced at the representation hearing are as
follows. The purchasing and procurement department receives
requisition orders from other departments at the plant, and is
responsible for purchasing all of the company's needs from outside
suppliers. Some items are standardized, and may be purchased "off
the shelf" from various distributors and suppliers. Other items
must be made to the company's specifications, and the requisition
orders may be accompanied by detailed blueprints and other
technical plans. Requisitions often designate a particular vendor,
and, in some instances, the Page 416 U. S. 270 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," [ Footnote 2 ] they Page 416 U. S. 271 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.

															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. [ Footnote 3 ] Id. at 610.

															Encouraged by the Eighth Circuit's decision, the company moved
the Board for reconsideration of its earlier Page 416 U. S. 272 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 cross-petitioned for enforcement.

															The Court of Appeals denied enforcement. 475 F.2d 485 (1973).
After reviewing the legislative history of the Taft-Hartley Act of
1947, 61 Stat. 136, and the Board's decisions in this area, the
court concluded that Congress had intended to exclude all true
"managerial employees" from the protection of the Act. It
explained Page 416 U. S. 273 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. Turning to the merits of the present case, the court
acknowledged that there was substantial evidence that the company's
buyers were not sufficiently high in the managerial hierarchy to
constitute true "managerial employees." Nevertheless, the court
denied enforcement for two reasons. First, it was not certain that
the Board's decision rested on a factual determination that these
buyers were not true "managerial employees", rather than on

															"its new, and, in our view, erroneous holding that it was free
to regard all managerial employees as covered by the Act unless
their duties met"

															the conflict of interest touchstone. Id. at 494-495.
Second, although the Board was not precluded from holding that
buyers, or some types of buyers, were not "managerial employees,"
the court thought that, in view of the Board's long line of cases
holding the contrary, it could not accomplish this change of
position by adjudication. Rather, the Board should conduct a
rulemaking proceeding in conformity with § 6 of the Act, 29 U.S.C.
§ 156. The court therefore remanded the case to the Board for such
a proceeding. Page 416 U. S. 274 We granted the Board's petition for certiorari. 414 U.S.
816. II 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. [ Footnote 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 Page 416 U. S. 275 accord great weight to the longstanding interpretation placed on
a statute by an agency charged with its administration. [ Footnote 5 ] This is especially so where
Congress has reenacted the statute without pertinent change.
[ Footnote 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. [ Footnote 7 ] We have also recognized that
subsequent legislation declaring the intent of an earlier statute
is entitled to significant weight. [ Footnote 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." A 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 Page 416 U. S. 276 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,
1245-1246 (1946). The Board summarized its policy on "managerial
employees" in Ford Motor Co., 66 N.L.R.B. 1317, 1322
(1946):

															"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."

															Whether the Board regarded all "managerial employees" as
entirely outside the protection of the Act, as well as
inappropriate for inclusion in a rank-and-file bargaining unit, is
less certain. To be sure, at no time did the Board certify even a
separate unit of "managerial employees" or state that such was
possible. The Board was cautious, however, in determining which
employees were "managerial." For example, in Dravo Corp., 54 N.L.R.B. 1174, 1177 (1944), the Board excluded buyers and
expediters from a unit of office and clerical employees, Page 416 U. S. 277 but reserved the question whether all such employees were to be
considered "managerial":

															"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."

															During this period, the Board's policy with respect to the
related but narrower category of "supervisory employees" manifested
a progressive uncertainty. The Board first excluded supervisors
from units of rank-and-file employees, e.g., Mueller Brass
Co., 39 N.L.R.B. 167, 171 (1942), but, in Union Collieries
Coal Co., 41 N.L.R.B. 961, supplemental decision, 44 N.L.R.B.
165 (1942), it certified a separate unit composed of supervisors
who were to be represented by an independent union. Shortly
thereafter, in Godchaux Sugars, Inc., 44 N.L.R.B. 874
(1942), the Board approved a unit of supervisors whose union was
affiliated with a union of rank-and-file employees. This trend was
soon halted, however, by Maryland Drydock Co., 49 N.L.R.B.
733 (1943), where the Board held that supervisors, although
literally "employees" under the Act, could not be organized in any
unit. And in Yale & Towne Mfg. Co., 60 N.L.R.B. 626,
628-629 (1945), the Board further held that time-study men, whose
" interests and functions'" were "`sufficiently akin to those of
management,'" should neither be included in a unit with other
employees nor be established as a separate unit. Maryland Drydock, supra, was subsequently overruled in Packard Motor Car Co., 61 N.L.R.B. 4, 64 N.L.R.B. 1212
(1945), where the Board held that foremen could constitute an
appropriate unit for collective bargaining. The Board's position
was upheld 5-4 by this Court in Page 416 U. S. 278 Packard Co. v. NLRB, 330 U. S. 485 (1947). In view of the subsequent legislative reversal of the Packard decision, the dissenting opinion of MR. JUSTICE
DOUGLAS is especially pertinent. Id. at 330 U. S. 493 .
He stated:

															"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."

															"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 superintendents -- indeed, 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."

															" * * * *" "[I]f Congress, when it enacted the National Labor Page 416 U. S. 279 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 330 U. S.
494 -495. 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 330 U. S.
496 -497. Furthermore, other legislation indicated that,
where Congress desired to include managerial or supervisory
personnel in the category of employees, it did so expressly. See, e.g., Railway Labor Act of 1926, 44 Stat. 577, 45
U.S.C. § 151; Merchant Marine Act, 1936, as amended, 52 Stat. 953,
46 U.S.C. § 1101 et seq.; Social Security Act, § 1101, 49
Stat. 647. B 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), [ Footnote 9 ] provided for the exclusion of Page 416 U. S. 280 "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), [ Footnote 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 Page 416 U. S. 281 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.

															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 5. The House Report
echoed the concern for reduction of industrial output, and noted
that unionization of supervisors had deprived employers of the
loyal representations to which they were entitled. [ Footnote 11 ] And in criticizing the Page 416 U. S. 282 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).

															The Conference Committee adopted the Senate version of the bill.
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35 (1947). The House
Managers' statement in explanation of the Conference Committee
Report stated:

															"The 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 Page 416 U. S. 283 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 35-36."

															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). [ Footnote 12 ] We
think Page 416 U. S. 284 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:

															"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 491-492. [ Footnote 13 ] (Footnote omitted.) Page 416 U. S. 285 C 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 Page 416 U. S. 286 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):

															"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.) 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:

															"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."

															Buyers, who were authorized to bind the employer without prior
approval, were also excluded from a unit in Page 416 U. S. 287 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."

															Finally, in Swift & Co., 115 N.L.R.B. 752- 753-754
(1956), the Board reaffirmed its long-held understanding of the
scope of the Act. In refusing to approve a unit of procurement
drivers who were found to be representative of management, the
Board declared:

															"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.) Until its decision in North
Arkansas in 1970, the Board consistently followed this reading
of the Act. [ Footnote 14 ] It
never Page 416 U. S. 288 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.

															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,"
[ Footnote 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 (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 (1969); Retail
Clerks International Assn. v. NLRB, 125 U.S.App.D.C. 63,
65-66, 366 F.2d 642, 644-645 (1966) (Burger, J.), cert.
denied, 386 U.S. 1017 (1967); [ Footnote 16 ] International Ladies' Page 416 U. S. 289 Garment Workers' Union v. NLRB, 339 F.2d 116, 123 (CA2
1964) (Marshall, J.). [ Footnote
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 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. [ Footnote 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.

															In view of our conclusion, the case must be remanded to permit
the Board to apply the proper legal standard Page 416 U. S. 290 in determining the status of these buyers. [ Footnote 19 ] SEC v. Chenery Corp., 318 U. S. 80 , 318 U. S. 85 (1943); FTC v. Sperry & Hutchinson Co., 405 U.
S. 233 , 405 U. S. 249 (1972). We express no opinion as to whether these buyers fall
within the category of "managerial employees." [ Footnote 20 ] III 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.
[ Footnote 21 ] We
disagree. Page 416 U. S. 291 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, Page 416 U. S. 292 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 decisions, [ Footnote
22 ] and would presumably be in the nature of a general rule
designed "to fit all cases at all times."

															A similar issue was presented to this Court in its second
decision in SEC v. Chenery Corp., 332 U.
S. 194 (1947) ( Chenery II ). [ Footnote 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 332 U. S. 201 .
The Court continued:

															"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 Page 416 U. S. 293 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. "

															"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 332 U. S.
202 -203. (Emphasis added.) 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 332 U. S. 203 .
And in NLRB v. Wyman-Gordon Co., 394 U.
S. 759 (1969), the Court upheld a Board order enforcing
an election list requirement first promulgated in an earlier
adjudicative proceeding in Excelsior Underwear Inc., 156
N.L.R.B. 1236 (1966). The plurality opinion of Mr. Page 416 U. S. 294 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 394 U. S.
765 -766. 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 rulemaking powers, and
that the choice between the two was "within its informed
discretion." Id. at 394 U. S.
772 .

															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. Page 416 U. S. 295 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."

															It is true, of course, that rulemaking would provide the Board
with a forum for soliciting the informed views of those affected in
industry and labor before embarking on a new course. But surely the
Board has discretion to decide that the adjudicative procedures in
this case may also produce the relevant information necessary to
mature and fair consideration of the issues. Those most immediately
affected, the buyers and the company in the particular case, are
accorded a full opportunity to be heard before the Board makes its
determination.

															The judgment of the Court of Appeals is therefore affirmed in
part and reversed in part, and the cause remanded to that court
with directions to remand to the Board for further proceedings in
conformity with this opinion. It is so ordered. [ Footnote 1 ]

															As amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et
seq. [ Footnote 2 ]

															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.

															[ Footnote 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).

															[ Footnote 4 ]

															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 responsibility to direct them, or to adjust their
grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not
of a merely routine or clerical nature but requires the use of
independent judgment."

															29 U.S.C. § 152(11).

															[ Footnote 5 ] Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367 , 395 U. S. 381 (1969); Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12
(1965); Udall v. Tallman, 380 U. S.
1 , 380 U. S. 16 -18
(1965); Norwegian Nitrogen Co. v. United States, 288 U. S. 294 , 315
(1933).

															[ Footnote 6 ] Zemel v. Rusk, supra, at 381 U. S. 11 -12; Commissioner v. Noel Estate, 380 U.
S. 678 , 380 U. S. 682 (1965); NLRB v. Gullett Gin Co., 340 U.
S. 361 , 340 U. S.
365 -366 (1951); Helvering v. R. J. Reynolds Tobacco
Co., 306 U. S. 110 , 306 U. S.
114 -115 (1939); Norwegian Nitrogen Co. v. United
States, supra, at 288 U. S.
313 .

															[ Footnote 7 ] Zemel v. Rusk, supra, at 381 U. S. 11 -12; Costanzo v. Tillinghast, 287 U. S. 341 , 287 U. S. 345 (1932); United States v. Midwest Oil Co., 236 U.
S. 459 , 236 U. S.
472 -473 (1915).

															[ Footnote 8 ] Red Lion Broadcasting Co. v. FCC, supra, at 395 U. S.
380 -381; FHA v. Darlington, Inc., 358 U. S.
84 , 358 U. S. 90 (1958).

															[ Footnote 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."

															[ Footnote 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."

															[ Footnote 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 (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., 117 (1947).

															[ Footnote 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. [ Footnote 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 416 U. S. 297 , but later concedes that the "Conference
Committee implied that certain groups of employees were to be
excluded." Post at 416 U. S. 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 416 U. S.
297 -298. See 29 U.S.C. § 152(12). "Professional
employees," however, are plainly not the same as "managerial
employees." As the Conference Committee Report explained, the term
"professional employees" refers to "such persons as legal,
engineering, scientific and medical personnel, together with their
junior professional assistants." H.R.Conf.Rep. No. 510, 80th Cong.,
1st Sess., 36. In contrast to "managerial employees," they are not
defined in terms of their authority "to formulate, determine and
effectuate management policies." Ford Motor Co., 66
N.L.R.B. at 1322.

															[ Footnote 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
Springfield, Inc., 159 U.S. 1256, 1260 (1966); Albuquerque
Div., ACF Ind., Inc., 145 N.L.R.B. 403, 414-415 (1963); Weaver Motors, 123 N.L.R.B. 209, 215-216 (1959); Kearney & Trecker Corp., 121 N.L.R.B. 817, 822 (1958); Temco Aircraft Corp., 121 N.L.R.B. 1085, 1089
(1958); Federal Tel. & Radio Co., 120 N.L.R.B. 1652,
1653-1654 (1958).

															Surprisingly, the dissent maintains that the Board "actually
held only twice" that "managerial employees" were not covered by
the Act. Post at 416 U. S. 309 .
This is difficult to reconcile with the undisputed fact that, until
its decision in North Arkansas, the Board had never even
certified a separate unit of "managerial employees," and had stated
in case after case that managerial employees were not to be
accorded bargaining rights under the Act. E.g., Palace Laundry
Dry Cleaning, 75 N.L.R.B. 320 (1947); American Locomotive
Co., 92 N.L.R.B. 15 (1950); Curtiss-Wright Corp., 103
N.L.R.B. 458 (1953); Swift & Co., 115 N.L.R.B. 752
(1956), and cases cited above.

															[ Footnote 15 ] Palace Laundry Dry Cleaning, supra, at 323 n. 4. See Ford Motor Co., 66 N.L.R.B. at 1322.

															[ Footnote 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,' AFL-CIO, [120 N.L.R.B.
969, 973 (1958)], and those who have discretion in the performance
of their jobs, but not if the discretion must conform to an
employer's established policy, Eastern Camera and Photo
Corp., 140 N.L.R.B. 569, 571 (1963) (store managers who could
set prices are not managerial). The rationale for this Board
policy, though unarticulated, seems to be the reasonable belief
that Congress intended to exclude from the protection of the Act
those who comprised a part of 'management' or were allied with it
on the theory that they were the one[s] from whom the workers
needed protection."

															366 F.2d at 645. (Emphasis added.)

															[ Footnote 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 at 123.

															[ Footnote 18 ]

															The contrary interpretation of the Act urged by the dissent
would have far-reaching 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. [ Footnote 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.

															[ Footnote 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 65-66, 366
F.2d at 644-645. 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. 33-35, 43, 47. At the
representation hearing, the hearing officer did not indicate that
the conflict of interest 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.

															[ Footnote 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
(NLRA) empower the Board to investigate petitions involving
questions of unit representation, to conduct hearings on such
petitions, to direct representation elections, and to certify the
results thereof. 29 U.S.C. §§ 159(c)(1) and (2). Board
determinations on such representation questions would appear to
constitute "orders" within the meaning of the APA. See 5
U.S.C. §§ 551(6), (7).

															The NLRA does not specify in what instances the Board must
resort to rulemaking.

															[ Footnote 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.

															[ Footnote 23 ] Chenery II did not involve § 4 of the APA, 5 U.S.C. §
553, but is nevertheless analogous.

															MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARSHALL join, dissenting in part.

															I concur in Part III of the Court's opinion insofar as it holds
that the Board was not required to resort to rulemaking in deciding
this case, but I dissent from its holding Page 416 U. S. 296 in 416 U. S. 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,

															"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).

															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. Page 416 U. S. 297 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, much narrower than the
class of managerial employees, is provided in § 2(11):

															"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).

															Without more, it could not be concluded that Congress meant to
exclude a whole category of employees in addition to those
expressly excepted in § 2(3). To infer that all managerial
employees are not employees for purposes of the Act because a
specified managerial subgroup, supervisors, was expressly excluded,
is unwarranted, at least where Congress was careful to define
precisely what employees were within the scope of the supervisory
exclusion.

															What is more, Congress in § 2(12), 29 U.S.C. § 152(12), has
defined a special subclass of professional employees having special
skills and duties "involving the consistent exercise of discretion
and judgment in" the performance of their work. These employees are
obviously "employees" for the purposes of the Act; and in § 9, 29
U.S.C. § 159, after investing the Board with the powers necessary
to decide the units appropriate for collective bargaining, it is
provided Page 416 U. S. 298 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).

															Insofar as the face of the Act is concerned, and as compared
with an across-the-board exclusion of "managerial" employees, the
present ruling of the Board, which excludes only those managerial
employees whose work may involve them in a conflict of interest if
they are permitted to bargain collectively, is a far narrower
exclusion adhering much more closely to the rationale of the
supervisory exclusion and to the apparent intent of Congress. The
Court nevertheless not only holds that the term employee may be
construed to exclude managerial employees, but also that it must be so construed. No narrower exclusion, it is said,
in addition to those expressly provided for, will satisfy the
Act.

															Although it would appear to be a difficult and questionable feat
to rewrite the statute so substantially, the Court purports to find
license for its result in the legislative history of the 1947
amendments to the Act, read in the light of previous and subsequent
Board and court decisions. It is true that the exclusion of
supervisors from the definition of employees first occurred in
1947, but, with all respect, I find no basis in the history of
these amendments, read in the light of prior Board cases, for
concluding that Congress intended to exclude all Page 416 U. S. 299 managerial employees, in addition to supervisors, from the
benefits of the Act.

															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 Page 416 U. S. 300 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.

															The Board's position with respect to supervisors, as a class,
vacillated during this time, the Board first excluding supervisors
from rank-and-file units but recognizing units confined to
supervisory employees, then refusing to recognize any bargaining
units of supervisors, and finally returning to its earlier rule.
But even when the Board determined for a short period that
supervisors should not be permitted to organize either with other
employees or in separate units, it never went as far as to hold
supervisors not to be "employees" under the Act. This was the
Court's understanding of the Board's position in Packard Co. v.
NLRB, 330 U. S. 485 , 330 U. S. 492 n. 3 (1947), the very case which prompted the 80th Congress to go
further than the Board had ever gone and exclude supervisors
entirely from the category of employees accorded bargaining rights
under the Act. [ Footnote 2/1 ] In Maryland Drydock Co., 49 N.L.R.B. 733, 738, 740 (1943),
the Board was "no longer convinced that, from the mere
determination Page 416 U. S. 301 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.

															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 Page 416 U. S. 302 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 Page 416 U. S. 303 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.

															The Court would fill this gap by referring to the House
Managers' statement accompanying the Conference Committee Report
and explaining the adoption of the narrower Senate definition of
excluded "supervisors." This report is indeed instructive, but it
indicates even more clearly, in my opinion, that Congress did not
contemplate the exclusion of managerial employees from the coverage
of the Act:

															"The 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, Page 416 U. S. 304 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., 35-36 (1947).

															The Court emphasizes that the statutory language adopted in the
1947 amendments did not expressly exclude persons working in labor
relations, personnel, or employment departments, or confidential
employees, but that these were "impliedly excluded" from the Act's
coverage by dint of the House Managers' statements just quoted.
From this premise, the Court proceeds to assume that other
categories of employees, similarly not excluded under the express
terms of the amended definition of "employee," were also impliedly
excluded from the Act. In my view, there is no warrant for the
assumption that groups of employees, which the statute, or express
legislative statements, do not address, are to be excluded from the
Act; nor is there any legislative debate whatsoever which can
reasonably be construed as expressing an authoritative intent to
exclude managerial employees as a class.

															The House Managers' statement accompanying the Conference
Committee Report explains that the Act was not amended expressly to
exclude labor relations and confidential employees from coverage
under the Act, because it was already prevailing Board practice to
exclude these employees. This was not an entirely accurate Page 416 U. S. 305 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
(1946), 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. Such 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 Page 416 U. S. 306 Congress might have perceived the Board's rule to be with
respect to managerial employees as a class. [ Footnote 2/2 ]

															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 416 U. S. 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 Page 416 U. S. 307 nothing in the debates or other congressional materials where
the category of managerial employees, as distinguished from the
class of supervisory employees, a distinction the Board had
previously drawn, is discussed. [ Footnote 2/3 ]

															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 330 U. S. 496 .
(Emphasis supplied.) See also id. at 330 U. S. 500 .
Limiting the exclusion of managerial employees to those who are
charged with the formulation or implementation of labor relations
policies, as the Board has now done in the case before us, is Page 416 U. S. 308 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.

															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 Page 416 U. S. 309 statement was placed on the Wise, Smith & Co. case
and Westinghouse Electric case, which involved the
appropriateness of placing the managerial employees in a particular
bargaining unit. In Swift & Co., 115 NL.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 753-754. 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.

															The Board thereafter continued to exclude managerial employees
from bargaining units of other employees, occasionally citing Swift, e.g., Copeland Refrigeration Corp., 118 N.L.R.B.
1364, 1365 n. 2 (1957); AFL-CIO, 120 N.L.R.B. 969 (1958),
but more frequently excluding managerial employees from particular
units without citing that case or suggesting that the excluded
workers were not protected employees. E.g., Mack Trucks, Inc., 116 N.L.R.B. 1576, 1577-1578 (1956); Diana Shop, 118
N.L.R.B. 743, 745 (1957); Federal Tel. & Radio Co., 120 N.L.R.B. 1652, 1654 (1958); Kearney & Trecker
Corp., 121 N.L.R.B. 817, 822 (1958); Weaver Motors, 123 N.L.R.B. 209, 216 (1959); Eastern Camera & Photo
Corp., 140 N.L.R.B. 569, 572 (1963).

															Until the Board overruled Swift in North Arkansas
Electric Cooperative, Inc., 185 N.L.R.B. 550 (1970), it had
thus actually held only twice that managerial employees could not
be afforded protection under the Act, and its support for that
conclusion was without any persuasive appeal. It is true, of
course, that the Board had not held to the contrary either, and
that Page 416 U. S. 310 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 (1973); Packard Co. v. NLRB, 330 U.
S. 485 (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.

															Nor did Congress in 1959, when it again amended the statute,
expressly or impliedly enact or approve the statutory
interpretation announced in Swift & Co. The 1959
amendments dealt with secondary boycotts and picketing, and we are
cited to nothing suggesting that the attention of Congress at that
time was directed to or focused on the question whether managerial
employees were covered or excluded in the statute. Congressional
silence does not imply legislative approval of all Board rulings
theretofore made. As the Court noted in Boys Markets v. Retail
Clerks Union, 398 U. S. 235 , 398 U. S.
241 -242 (1970), which overruled Sinclair Refining
Co. v. Atkinson, 370 U. S. 195 (1962):

															"Nor can we agree that the 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. Page 416 U. S. 311 United States, 328 U. S. 61 , 328 U. S.
69 (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." See also Commissioner v. Glenshaw Glass Co., 348 U. S. 426 , 348 U. S. 431 (1955). Similarly, from the congressional silence in 1959
concerning Swift's exclusion of managerial employees from
the protection of the Act, it should not be assumed that Congress
intended to approve of Swift and foreclose the possibility
of the Board's reconsidering Swift and overruling it on
further and more examining reflection. NLRB v. Seven-Up
Co., 344 U. S. 344 , 344 U. S.
350 -352 (1953)

															The Board's decisions in this area have not established a
cohesive and precise pattern of rulings. It is often difficult to
tell whether an individual decision is based on the propriety of
excluding certain employees from a particular bargaining unit or
whether the worker under consideration is thought to be outside the
scope of the Act. But this Court has consistently said that it will
accept the Board's determination of whether a particular individual
is an "employee" under the Act if that determination "has warrant in the record' and a reasonable basis in law," NLRB
v. Hearst Publications, Inc., 322 U.
S. 111 , 322 U. S. 131 (1944); NLRB v. United Insurance Co., 390 U.
S. 254 , 390 U. S. 260 (1968). There is no reason here to hamstring the Board and deny a
broad category of employees those protections of the Act which
neither the statutory language nor its legislative history requires
simply because the Board at one time interpreted the Act --
erroneously, it seems to me -- to exclude all managerial as well as
supervisory employees. I respectfully dissent.

															[ Footnote 2/1 ]

															"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 reembraced 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."

															[ Footnote 2/2 ]

															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 416 U. S.
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.

															[ Footnote 2/3 ]

															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 when it legislated directly to exclude
supervisory employees.

Summary:
Here is a summary of the case:

The U.S. Supreme Court case NLRB v. Bell Aerospace Co. (1974) concerned a labor union's petition for a representation election among the buyer employees of the respondent company. The National Labor Relations Board (NLRB) held that the buyers constituted an appropriate collective bargaining unit and directed an election. The company refused to bargain with the union, leading to an unfair labor practice charge. The Court addressed two main issues: the scope of the exclusion of "managerial employees" from the National Labor Relations Act (NLRA) and the NLRB's choice of proceeding by adjudication rather than rulemaking.

The Court held that Congress intended to exclude all employees properly classified as "managerial" from the protections of the NLRA, not just those with conflicts of interest in labor relations. This interpretation was supported by the NLRB's early decisions, the Taft-Hartley amendments, and subsequent case law. The Court also upheld the NLRB's discretion to proceed by adjudication, given the varied duties of buyers across different industries. The NLRB was not required to establish a generalized standard through rulemaking, and it had the flexibility to develop standards through case-by-case adjudication.

This case clarified the scope of the "managerial employee" exclusion under the NLRA and affirmed the NLRB's authority to determine the appropriate bargaining units through adjudication.