The opinion
SIMONS, Circuit Judge
(dissenting).
Undoubtedly in ordinary parlance, and by common law tests foremen are employees. So also are superintendents, department heads, managers, and executive officers. It has been made plain however by the Supreme Court that in interpreting the National Labor- Relations Act common law tests are not controlling. So those who in other aspects may be independent contractors are brought within the sweep of the term “employees” by “underlying economic facts rather than technically and exclusively by previously established legal classifications.” N.L.R.B. v. Hearst Publications, 322 U.S. 129 , 64 S.Ct. 859 , 88 L.Ed. 1170 . Similarly the responsibility of employers is not narrowly to be restricted by'the doctrine of respondeat superior, and in controversies respecting unfair labor practices supervisory employees are held to speak for management, even though unauthorized or expressly forbidden so to do. International Ass’n of Machinists v. N.L.R.B., 311 U.S. 72 , 61 S.Ct. 83 , 85 L.Ed. 50 ; Heinz v. N.L.R.B., 311 U.S. 514 , 61 S.Ct. 320 , 85 L.Ed. 309 ; N.L.R.B. v. Link-Belt Co., 311 U.S. 584 , 61 S.Ct. 358 , 85 L.Ed. 368 . This principle we have dutifully applied. Consumers Power Co. v. N.L.R.B., 6 Cir., 113 F.2d 38 ; N.L.R.B. v. Thompson Products, 6 Cir., 130 F.2d 363 ; N.L.R.B. v. Mt. Clemens Pottery Co., 6 Cir., 147 F.2d 262 .
As disclosed in the majority opinion, respondent’s foremen are a privileged class, perform no manual work, and constitute the front line of management. Their recommendations concerning pay, transfer, lay-off, discharge, demotion, and discipline are usually followed. It has been held that if foremen join or encourage plant unions, such unions are employer dominated, and so company unions. International Ass’n of Machinists v. N.L.R.B., supra. If foremen seek information as to union organization plans it is employer espionage condemned by the Act. N.L.R.B. v. Cleveland-Cliffs Co., 6 Cir., 133 F.2d 295 . Foremen are employers not only by reason of their duties and responsibilities, but by the inescapable implication of Sec. 152(2) which classifies as an employer one who is “acting in the interest of an employer, directly or indirectly.” Sec. 152(3) refers to but does not define “employee.” The two sections must be read in pari materia, and so considered the breadth of the one necessarily limits the ambit of the other.
Up to the present case, the Labor Board had held in a long series of decisions that foremen do not constitute an available unit for collective bargaining. The basis for present departure from earlier decisions is *87 that dangers previously apprehended have not materialized. We are concerned however with the interpretation of a statute and not the making of a policy. Congress formulates policy and the court’s function is to ascertain the Congressional purpose from the terms of its enactment. Since controlling authority interprets the Labor Act as clothing supervisory employees with the authority and responsibility of employers, collective bargaining provisions are not” available to them. I am in accord with the earlier view of the Labor Board and the panel of the War Labor Board and would deny enforcement to the present petition.
PER CURIAM.
The petition for rehearing is denied.