Petition — National Labor Relations Board v. Hendricks County Rural Electric Membership Corp.

Supreme Court brief1981

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Side tee d aT

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FILED

JAN 3 198!

MICHAEL RODAK, JR., CLERK |

IN THE SUPREME COURT OF THE UNEPED-—STApES————

OCTOBER TERM, 1980

No. 80-1103

HENDRICKS COUNTY RURAL ELECTRIC

“MEMBERSHIP CORPORATION, PETITIONER

NATIONAL LABOR RELATIONS BOARD

CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

WARREN D. KREBS

PETER L. OBREMSKEY

Counsel for Petitioner

PARR, RICHEY, OBREMSKEY

& MORTON

225 West Main Street

P. O. Box 666

Lebanon, Indiana 46052

(317) 482-0110

7 *

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

HENDRICKS COUNTY RURAL ELECTRIC

MEMBERSHIP CORPORATION, PETITIONER |

NATIONAL LABOR RELATIONS BOARD

CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

QUESTION PRESENTED

In applying the jurisdictional standard

established by the Supreme Court in NLRB

v. Bell Aerospace Co. that employees

"impliedly excluded" from the coverage

of the National Labor Relations Act

"where persons working in ‘labor

relations, personnel and employment

departments,' and ‘confidential employees'

without limiting confidentiality to

(I)

(II)

labor relations, did the Court of

Appeals improperly apply this standard

by concluding that the Board had found

that the personal secretary to the chief

executive officer and general manager of

the company was not a personnel depart-

ment employee.

TABLE OF CONTENTS

Opinions Below. . . «+ « « « «

Jurisdiction . « »« e's © « e

Statutory Provisions

Involved . .« « « © © «© « «

Statement e ° ° 7 . e e . 7. e

Reasons for Granting the

Cross-Petition ee eee

COMGEGRION bo 6 6. oh B86. 0 ee

Appendix

° . e a . e e ° °

Appendix B ..«.e.eeesee

AOOORGLE: Co ne ete ewe Be

Appendix D

Appendix E

Appendix

TABLE OF AUTHORITIES

Cases:

Besser Manufacturing Co. v.

United States, 343 U.S.

444, 96 L.Ed. 1063, 72

B.Cts 838 ° e e e e ad 7 °

(IIT)

Page

l4a

16a

22a

33a

56a

(Iv)

Cases--Continued Page

Harkin v. Brundage, 276 U.S.

36, 72 L.Ed. 457, 48 S.Ct.

268 (1928) « « « «© © «© © © © 16

NLRB v. Allied Products

Corp., 548 F.2d 644,

) . °* e . @ 7 ee . 17, 18

NLRB v. Bell Aerospace

Co., 416 U.S. 267,

40 L.Ed.2d 134, 94

S.COE. AIST ce ee o ote BI, 20

Statute:

National Labor Relations

Act, 29 U.S.C. 152 et

seq.:

Section 2, 29 U.S.C.

152(3) . * e@ * e e* . e 3

‘Section 2, 29 U.S.C.

152(11) BORO O20, 8h. Oo 4

Section 7, 29 U.S.C.

157 * 2 ” e - ° ° o - . — 5

Section 8(a), 29 U.S.C.

158 ¢a) CA) ce) 0 \e..0 0 60 5

Section 8(a)(1), 29

U.S.C. 158(a) (1) ee 8 @ 7

Miscellaneous:

H.R. 3020 §2(12)(C), 80th

Cong., lst Sess. (1947)... 12

The Hendricks County Rural Electric

Membership Corporation, cross-petitions

for a Writ of Certiorari to review the

judgments of the United States Court of

Appeals for the Seventh Circuit in NLRB

v. Hendricks County Rural Electric

Membership Corporation.

OPINIONS BELOW

The Opinion of the Court of Appeals

in Hendricks II (App. A, infra, la-13a)

is reported at 627 F.2d 766. The

Supplemental Decision and Order of the

National Labor Relations Board (App. C,

infra, 16a-21a), on prior remand from

the Court of Appeals, are reported at

247 N.L.R.B. 68. The Opinion of the

Court of Appeals in Hendricks I reversing

and remanding the case to the Board

(App. D, infra, 22a-32a) is reported at

603 F.2d 25. The Board's original

(1)

Decision and Order (App. E, infra,

33a-55a) are reported at 236 N.L.R.B.

1616.

JURISDICTION

The Judgment of the Court of

Appeals in Hendricks I (App. F, infra,

56a-57a) reversing the Board's Order and

remanding was entered on July 26, 1979.

The Judgment of the Court of Appeals in

Hendricks II (App. B, infra, 14a-15a)

denying enforcement of the Board's

Supplemental Order was entered on

July 21, 1980. On October 8, 1980,

Justice Stevens extended the time for

filing the Petition for a Writ of

Certiorari to and including November 18,

1980. On November 10, 1980, Justice

Stevens further extended the time for

filing the Petition for a Writ of

Certiorari to and including December 2,

1980. The Solicitor General filed the

Board's Petition for a Writ of Certiorari

on December 2, 1980, Cause No. 80-885,

and Hendricks County REMC received a

copy thereof on December 4, 1980. This

Cross-Petition is filed pursuant to Rule

19.5 of the Rules of the Supreme Court.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 2 of the National Labor

Relations Act, 29 U.S.C. 152, provides

in relevant part:

When used in this subchapter--

* * * * *

(3) The term "employee"

shall include any employee, and

shall not be limited to the

employees of a particular

employer, unless the Act

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.

* * * * *

(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 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.

* * * * *

Section 7 of the National Labor

Relations Act, 29 U.S.C. 157, provides:

Employees shall have the

right to self-organization, to

form, join, or assist labor

organizations, to bargain

collectively through representa-

tives of their own choosing,

and to engage in other concerted

activities for the purpose of

collective bargaining or other

mutual aid or protection,

and shall also have the right

to refrain from any or all of

such activities except to the

extent that such right may be

affected by an agreement

requiring membership in a

labor organization as a condition

of employment as authorized in

section 8(a)(3).

Section 8(a) of the National Labor

Relations Act, 29 U.S.C. 158(a), provides

in relevant part:

It shall be an unfair labor

practice for an employer--

(1) to interfere with,

restrain, or coerce employees

in the exercise of the rights

guaranteed in section 7.

STATEMENT

1. The Administrative Law Judge

(ALJ) and the Board found that on May 9,

1977, the “top executive officer" and

"General Manager” of the Hendricks

County Rural Electric Membership Corpora-

tion (Hendricks or REMC) had discharged

his secretary, Mary Weatherman, because

she had signed a petition directed to

the REMC's board of directors requesting

that they reconsider the board's decision

not to reinstate Lloyd Hadley as an

employee. Mr. Hadley became disabled in

February, 1976, as a result of an

employment accident, and in April, 1977,

the Board notified Hadley that he would

not be reinstated as an employee (App.

E, infra, 38a-39a). On the date of her

discharge, Weatherman filed an unfair

labor practice charge with the National

Labor Relations Board, alleging that her

discharge violates Section 8(a)(1) of

the National Labor Relations Act, 29

U.S.C. 158(a)(1)- In addition to

contesting that the discharge was an

unfair labor practice, Hendricks claimed

at the evidentiary hearing and in its

Trial Brief of February 6, 1978, to the

ALJ, that Weatherman was excluded from

the coverage of the Act and that the

Board lacked jurisdiction for two

separate reasons: (1) As a "confiden-

tial employee” in her capacity as

secretary to the General Manager and top

executive and operating officer of the

employer, and (2) As a person working in

"personnel and employment departments".

Although the ALJ specifically concluded

"that Weatherman was not a confidential

employee as the Board defines that

term," he made no decision as to

whether she was excluded from the Act as

an employee working in "personnel and

employment departments" (App. E, infra,

49a). However, in reviewing the

evidence regarding his conclusion as

to Weatherman not being a confidential

employee based upon the Board's "labor

nexus" standard, the ALJ determined

that Weatherman opened mail addressed to

Hendricks and Dillon except for cor-

respondence from Hendricks' lawyers to

the union, kept and processed all

insurance claims of employees, typed

Manager Dillon's letters and notices as

to the dates of labor negotiation

meetings, and typed minutes of the

meetings of the REMC's board of directors

including minutes containing references

to Hadley's request for reinstatement

and to other personnel matters. Addi-

tionally, the ALJ stated that Dillon was

present at labor negotiation meetings

with the union, collected papers relating

to labor contract negotiations including

copies of positions developed by the

REMC's negotiating committee and his

notes taken during negotiations; and

that Assistant Manager Spencer had

testified that while he (Spencer) made

determinations of "management policy

concerning the interpretations of the

labor contract with the IBEW" union,

that such determinations were approved

by Dillon (App. E, infra, 45a-47a).

Hendricks filed five specific

Exceptions to the Decision of the ALJ

with the Board including that the ALJ

had failed to rule upon the issue of

the exclusion of Weatherman from the

Act's coverage due to the fact that

she worked in the personnel and employ-

ment department of the REMC. ‘The

Board adopted the Decision and Order of

the ALJ without specifically ruling upon

the Exceptions presented by Hendricks

(App. E, infra, 33a-35a).

Thereafter, Hendricks filed a

Petition To Review Orders of the NLRB

with the United States Circuit Court of

Appeals for the Seventh Circuit and

argued by its Brief and orally five

separate issues including the Board's

failure to rule upon the issue of the

exclusion of Weatherman from the juris-

diction of the Act due to her working in

the personnel and employment department.

The NLRB petitioned the Court for

enforcement of its Order. The Court of

Appeals concurred in the Board's finding

that Weatherman was discharged for

engaging in protected activity and that

she was not a "confidential employee"

under the Board's "labor nexus" standard.

However, the Board stated that it was

"necessary to remand the decision for a

new determination of her ‘te iployee'

status” (App. D, infra, 24a, 26a, 27a).

The Court of Appeals after discussing

the decision of the Supreme Court in

NLRB v. Bell Aerospace Co., 416 U.S. 267

(1974), held that "The legislative

history of the Taft-Hartley Act, as

interpreted in Bell Aerospace, requires

the conclusion that all secretaries

working in a confidential capacity,

without regard to labor relations, be

excluded from the Act" and concluded

that the ALJ had "limited his factual

inquiry to a determination that

Weatherman had not acted in a confi-

dential capacity with respect to labor

relations". The Court of Appeals

remanded the case to the Board "for a

determination of whether 'by the nature

of [her] duties' she was ‘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.’ H.R.

3020 §2(12)(C), 80th Cong., 1st Sess.

(1947)." (App. D, infra, 3la). Addi-

tionally the Court of Appeals stated

regarding the personnel and employment

department exclusion that "The ALJ also

found that Weatherman was not working in

a position equivalent to a personnel

department employee, a finding which we

do not consider clearly erroneous."

(App. D, infra, 27a).

2. On October 10, 1979, the Board

accepted the Court's remand and advised

the parties that they may file "“State-

ments of Position with the Board with

respect to the issues raised by the

remand." In its Statement of Position,

Hendricks stated "that the Board should

order a reopening of the proceedings to

present further evidence regarding the

issues on remand" and specifically

pointed out to the Board that the REMC

competes with another utility and was

involved in litigation cases with that

utility during Weatherman's employment.

The Board failed to rule upon Hendricks'

request to reopening the record on

remand, and issued its Supplemental

Decision and Order on January 22, 1980,

and stated therein that "Accepting the

court's criteria for resolving questions

of confidential employee status as the

law of this case only, we find that

Weatherman was not a confidential

employee" (App. C, infra, 18a & 19a).

Hendricks again filed a Petition for

Review of the Board's Order with the

Court of Appeals, and thereafter, the

NLRB petitioned the Court of Appeals for

enforcement of its Order. The Court of

Appeals granted the Petition for Review

and denied enforcement of the Order

stating that "we adhere to everything we

said in Hendricks" I and holding that

the Board had erred in not allowing a

new evidentiary record and by not

applying the new standard to define a

confidential employee as determined in

Hendricks I. The Court stated "We are

asked to enforce an order which purports

to apply the new standard to the old

record but actually reapplies the old

standard incorporating the labor nexus.”

(App. A, infra, 6a, 7a & 8a).

REASONS FOR GRANTING

THE CROSS-PETITION

Hendricks only seeks the granting

of its Cross-Petition for a Writ of

Certiorari in connection with the

Solicitor General's and Board's Petition

for a Writ of Certiorari and the

question presented therein by the

Solicitor General in Cause No. 80-885.

Hendricks believes and argues to this

Court that in the event the Court grants

the Solicitor General's Petition for

Writ, that the Court should consider

also the question presented in

Hendricks’ Cross-Petition for a Writ,

which question is related to the issue

presented by the Solicitor General. The

Court of Appeals’ conclusion in

Hendricks I that "The ALJ also found

that Weatherman was not working in a

position equivalent to a personnel

department employee, a finding which we

do not consider clearly erroneous," is

an erroneous conclusion since the

Administrative Law Judge failed to rule

on this issue in his written decision.

In fact, Hendricks argued to the Board

as an exception to the ALJ's decision

and to the Court of Appeals in its

Brief, the failure to rule upon the

issue of the exclusion of employee

Weatherman from the jurisdiction of the

Act due to the fact that she worked in

the “personnel and employment department"

of the REMC. Although the Supreme Court

should ordinarily acquiescence in a

conclusion of fact made by the lower

court, the Supreme Court will review the

conclusion if it is not supported by the

evidence in the record and constitutes a

glaring error. Harkin v. Brundage, 276

U.S. 36 (1928); Besser Manufacturing Co.

v. United States, 343 U.S. 444 (1952).

Additionally, by upholding such a

perceived conclusion that Weatherman

was not an employee working in a personnel

department, the oduct of Appeals placed

itself in conflict with the decision of

the United States Court of Appeals for

the Sixth Circuit in NLRB v. Allied

Products Corp., 548 F.2d 644 (1977), a

case also cited in the Solicitor

General's Petition for a Writ as being

in conflict with the Seventh Circuit's

definition of the term “confidential

employee" also established in Hendricks

I. The Sixth Circuit in Allied Products

determined that the Board had committed

error by including in a bargaining unit

the personal secretary to the "general

manager and chief labor relations

administrator of the plant" and the

secretary to a division manager who did

not "formulate, determine and effectuate

company labor relations policy," but did

"formulate, determine and effectuate

———_

company-wide management policies which

critically affect labor relations." The

Sixth Circuit excluded the general

manager's secretary from the Act's

coverage since she did open all mail to

him not marked confidential and did type

any labor relations paperwork that he

might generate; and, the Court of

Appeals excluded the division manager's

secretary since the manager was involved

in management policies and since his

secretary at times substituted for the

secretary to the general manager. NLRB

v. Allied Products Corp., supra, at 648,

649, 650. Very similarly, in Hendricks,

Weatherman was the "personal secretary

to its general manager and chief execu-

tive officer” (App. A, infra, 2a),

opened mail addressed to the REMC

and to the general manager except for

correspondence from lawyers to the

union, maintained files for employees

making insurance claims which she

processed, typed all of the general

manager's letters and notices of dates

of union negotiation takings: typed the

minutes of the meetings of the board of

directors which included personnel

matters, and shared a partitioned office

with Manager Dillon (App. E, infra, 45a

& 46a; App. C, infra, 19a). Addi-

tionally, the ALJ and Board in Hendricks

found that the general manager attended

labor negotiation meetings, collected

papers relating to labor contract

negotiations including positions

developed by the REMC's negotiation

committee and notes taken during nego-

tiations, and approved “determinations

of ‘management policy concerning inter-

pretations of the labor contract with

the IBW'" (App. E, infra, 47a).

Furthermore, the Supreme Court in

NLRB v. Bell ‘Awrospace Co., 416 U.S.

267, 283 (1974), specifically held that

“Among those mentioned as impliedly

excluded were persons working in

‘labor relations, personnel and employ-

ment departments’, and ‘confidential

employees'", which holding was

reiterated by the Seventh Circuit in

Hendricks I (App. D, infra, 29a).

Nevertheless, the Seventh Circuit failed

to apply the “labor relations, personnel

and employee departments" portion of the

exclusion by erroneously concluding that

the ALJ had determined that Weatherman

was not a personnel department employee.

CONCLUSION

In the event that the Solicitor

General's Petition for a Writ of |

Certiorari is*granted in Cause No. 80-885,

then the Cross-Petition for a Writ

of Certiorari should also be granted.

Respectfully submitted.

January 2,

1981

WARREN D. KREBS

PETER L. OBREMSKEY

Counsel for Petitioner

PARR, RICHEY, OBREMSKEY

& MORTON

225 West Main Street

P.O. Box 666

Lebanon, Indiana 46052

(317) 482-0110

APPENDIX A

IN THE UNITiSD STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 80-1283

HENDRICKS COUNTY RURAL ELECTRIC

MEMBERSHIP CORPORATION, PETITIONER

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

Petition for Review and Cross-Application for

Enforcement of Order of the

National Labor Relations Board

ARGUED JUNE 3, 1980—DEcIDED JULY 21, 1980

Before SPRECHER and CUDAHY, Circuit Judges, and

CAMPBELL, Senior District Judge.*

SPRECHER, Circuit Judge. This review causes us to

examine again the questions (1) what standard is to

be applied to determine a confidential employee ex-

cluded under the National Labor Relations Act, 29

* Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

U.S.C. §§ 151 et seq., and (2) whether the Board’s

finding that an employee was not a confidential em-

ployee is supported by substantial evidence on the

record considered as a whole. See 29 U.S.C. § 160(e).

On July 17, 1978, the Board issued its order finding

that the Company had violated section 8(a)(1) of

the Act by discharging Mary M. Weatherman, the

personal secrtary to its general manager and chief

executive officer, for signing a petition calling for the

reinstatement of an injured employee, and by in-

terrogating another employee regarding the petition.

The Board ordered the Company to cease and desist

from discharging or taking other adverse action

against any employee for engaging in protected, con-

certed activity, and from coercively interrogating em-

ployees concerning such activity. The Board further

ordered the Company to reinstate Weatherman to

her former job, or a substantially equivalent position,

with back pay. 236 N.L.R.B. 1616 (1978).

On July 26, 1979, this court enforced the Board’s

order concerning the 8(a)(1) interrogation. How-

ever, we reversed and remanded the portion of the

order dealing with the discharge of Weatherman and

ordered the Board to use the legal standard outlined

in our opinion to determine whether she was a con-

fidential employee and therefore not covered by the

Act. 603 F.2d 25 (7th Cir. 1979).

On October 10, 1979, the Board advised the parties

that it had “decided to accept the remand from the

Court of Appeals... , and all parties are hereby ad-

vised that they may file Statements of Position with

the Board... .” The Company in its statement in-

dicated that it believed that the record already con-

° 8a

tained enough evidence to require the conclusion that

Weatherman was not an employee under the standard

established by this court. The Company added:

However, if the Board believes that its prior con-

clusions and testimony hereinbelow does [sic] not

mandate such a conclusion, the... [Company]

believes that it is entitled to and that the Board

should order a reopening of the proceedings to

present further evidence regarding the issues on

remand.

Record, Statement of Position of Hendricks County

Rural Electric Membership Corporation, at 3.

Instead of taking further evidence, the Board re-

examined the previous record and reaffirmed its prior

conclusion that Weatherman was an employee under

the Act. 247 N.L.R.B.:No. 68 (1980).

The case is again before the court upon the Com-

pany’s petition for review and the Board’s cross-

application for enforcement.

In. National Labor Relations Board v. Bell Aero-

space Co., 416 U.S. 267 (1974), the Supreme Court

held that Congress intended to exclude from the pro-

tection of the National Labor Relations Act all em-

ployees properly classified as “ ‘managerial,’ rather

than just those in positions susceptible to conflicts

of interest in labor relations.” Id. at 274. To reach

this holding, the Court first concluded that “confi-

dential employees” were excluded from coverage un-

der a “broad definition” not limited to those having

a labor nexus. The Court said:

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 “con-

fidential employees” in both the House and Con-

ference Committee Reports, however, unmistak-

ably refers to that term as defined in the House

bill, which was not limited just to those in “labor

relations.” Thus, although Congress m:y have

misconstrued recent Board practice, it clearly

thought that the Act did not cover “confidential

employees” even under a broad definition of that

term.

416 U.S. at 284 n.12.

Immediately following in the text, the Court quoted

with complete approval the Court of Appeals state-

ment in Bell Aerospace as follows:

“Surely Congress could not have supposed that,

while confidential secretaries could not be or-

ganized, their bosses could be.”

Id. at 284, quoting 475 F.2d 485, 491-92 (2d Cir.

1973).

Thus, although the Bell Aerospace holding ousiied

to managerial employees, the statement in note 12

about confidentia! employees was not a mere dictum,’

but was the basis, or at least part of the basis, upon

which the holding itself was constructed. In United

States v. Bukowski, 485 F.2d 1094, 1101 (7th Cir.

1970), we noted that a court of appeals could not

depart, at its own choosing, frum an analytical con-

struct uniformly adhered to in decisions of the Su-

preme Court.

1A dictum in a Supreme Court opinion may be brushed

aside by the Supreme Court as dictum when the exact

question is later presented, but it cannot be treated lightly by

inferior federal courts until disavowed by the Supreme Court.

See 1B Moore’s Federal Practice { 0.402, at p. 112 & n.3.

Although the Board has accepted our prior decision

in this case, in at least one subsequent case pending

on review before us, Malleable Iron Range Co. v.

N.L.R.B., No. 79-1991, the Board strongly urges that

our prior decision be overruled,’ either on the basis

that the Supreme Court was in error or misled as to

the legislative history in footnote 12, or because of

the Court’s later opinion in N.L.R.B. v. Yeshiva Uni-

versity, 100 S.Ct. 856 (1980).

Not only are decisions of the Supreme Court of the

United States and their clear implications absolutely

binding on inferior federal courts,’ but this is es-

pecially true of matters of legislative history and

congressional purpose, In re Continental Investment

Corp., 586 F.2d 241, 248 (1st Cir. 1978), and of

standards to be applied by an administrative agency

or lower court. Patterson v. Brown, 393 F.2d 733,

736 (10th Cir. 1968). While we seriously doubt that

the Supreme Court could be misled by counsel, a

court of appeals is not at liberty to go behind an

opinion or its clear implications on the ground that

the Supreme Court “was not fully apprised by coun-

sel in that case as to the legislative history ... .”

United States v. Russell, 461 F.2d 605, 608 (10th

Cir. 1972).

We find nothing in the Yeshiva case which under-

mines or impliedly overrules anything said in Bell

2 However, this decision is the law of this circuit unless and

until this court sitting in banc would determine otherwise or

unless higher authority makes a contrary determination.

Powell v. United States, 388 F.2d 556, 557 (7th Cir. 1964).

% The judicial Power of the United States, shall be vested

in one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish.

U.S. Const., Art. ITI, § 1.

Aerospace, which is cited with approval throughout

the opinion. Therefore, we adhere to everything we

said in Hendricks County Rural Electric Member-

ship Corp. v. N.L.R.B., 603 F.2d 25 (7th Cir. 1979),

despite the Board’s opinion that it is erroneous inso-

far as it relies upon note 12 of Bell Aerospace. Any

changes in the substance of note 12 must come from

higher authority.

Ill

In our prior opinion, we concluded that:

The administrative law judge in this case limited

his factual inquiry to a determination that

Weatherman had not acted in a confidential ca-

pacity with respect to labor relations. We there-

fore find it necessary to remand the case for a

determination [under the proper standard] ....

603 F.2d at 30 [footnote omitted].

The administrative law judge in his original opin-

ion made it clear that the only standard he applied

and the only one that the record evidence supported

was the labor nexus standard:

The record shows that Weatherman did not

act “in a confidential capacity” to Dillion [the

general manager] in any meaningful sense with

respect to... [the Company’s] labor relations

policies....

* * * ¥

Weatherman’s “duties do not involve her in a

confidential capacity with his responsibilities”

with respect to labor policies. Accordingly, I con-

clude that Weatherman was not a confidential

employee as the Board defines that term.

236 N.L.R.B. at 1619, 1620.

The record context in which the above statements

were made by the administrative law judge was as

follows. Early in the proceedings, the Company filed

a written motion to dismiss on the ground that

Weatherman was a confidential employee excluded

under the Act. In an order dated July 22, 1977, an

administrative law judge other than the one who

eventually heard the evidence ruled that the motion

would be reserved for the judge who would conduct

the hearing. When the hearing began before the

second judge, he noted the pendency of the motion

and reserved his ruling. Near the beginning of the

general manager’s testimony intended to establish the

confidential nature of Weatherman’s job, the admin-

istrative law judge admonished the general manager

to “stick to personnel files” and “to files pertaining to

the employees.” Transcript, Vol. II, at 101. A read-

ing of the administrative record makes it obvious

that the admonitions were observed inasmuch as there

is clearly a conscious effort by all participants to re-

strict the evidence to that which pertains to labor or

personnel matters.

If we had believed that the prior record was suf-

ficient to support a finding under the Bell Aerospace

standard, we would not have remanded the proceed-

ing to the Board. Upon remand, the Board asked

for statements of position, and the Company’s posi-

tion was that the proceedings should be reopened to

present further evidence. When an erroneous stand-

ard for the admission of evidence is used, it follows

almost mandatorily that a new record is needed, not

only to add evidence in patchwork fashion but also

possibly to rehear all the relevant evidence under the

different admission standard.

The Board did not reopen the proceedings under ~

the different standard, did not take any additional

evidence, did not remand the proceedings to the ad-

ministrative law judge who heard the original evi-

dence, and has sent us the same record we reviewed

before. We are asked to enforce an order which

purports to apply the new standard to the old record

but actually reapplies the old standard incorporating

the labor nexus.* 3

The new broad standard was found to apply to the

old record on the basis of “Dillon’s statement that

the ... [Company] simply did not have secret papers

or documents.” Memo. op. at 5. Dillon’s statement

was that the Company had “nothing to hide from the

members,” Transcript, Vol. II, at 115 [emphasis sup-

plied], and was supposedly supported by the Board’s

gratuitous conclusion that the Company “is a co-

operative, and that all members presumably have ac-

cess to [its] documents ... .” Memo. op. at 4 n.8

[emphasis supplied]. That a company has no secrets

from its members does not mean that it does not

have matters or documents which are confidential in-

sofar as its non-confidential employees are concerned,

insofar as its competitors are concerned, insofar as

regulatory agencies are concerned, and insofar as the

public is concerned.

The petition to review is granted, and the applica-

tion to enforce the order is denied.

ENFORCEMENT DENIED

*The order is larded with labor nexus language: (1)

“[A]mong the mail she did not see was that regarding union

relations”; (2) “this correspondence apparently did not relate

to labor relations or personnel matters”; (3) “[w]hile these

meetings [of the Board of Directors] apparently occasionally

involved personnel matters”; (4) “Weatherman did not type

internal memoranda regarding labor relations or personnel or

employment matters.”

CUDAHY, Circuit Judge, dissenting.

Unfortunately, the majority analysis here leads to

a quite unjustifiable outcome. The result is that Mary

Weatherman, personal secretary to the general man-

ager of a rural electric membership corporation, has

been lawfully fired for signing a petition asking for

the reinstatement in his job of a friend and fellow

worker who lost his arm in the course of his employ-

ment. Whatever may be our discomfiture at the

Board’s maneuvers on remand, only the gravest of

reasons should lead us to sanction such a lamentable

injustice.

While it might have been more politic for the Board

to have reopened the hearing, the Company argues

only one specific fact which it would have tried to

establish during such a reopening: the Company’s

“involve[ment]” in “three (3) litigation cases” (pre-

sumably with a competitive investor-owned utility).

There is slight likelihood that this “new fact” would

materially change the basis for evaluating Weather-

man’s status as a “confidential secretary.” The fact

is that Weatherman’s status was well explored and

ventilated at the original hearing, and both we and

the Board should be able to reach the requisite con-

clusion based on that record.

Hendricks County Rural Electric Membership Corp.

v. N.L.R.B., 603 F.2d 25 (7th Cir. 1979) (“Hendricks

I’) does indeed hold that a confidential secretary is

excluded from the protection of the Labor Act

(whether or not the confidences are labor relations-

related). Hendricks I is , for better or for worse, the

present law of this Circuit.’ But there is abundant

evidence in the record to support the Board’s con-

1 But see Union Oil Company of California v. N.L.R.B., 607 _

F.2d 852 (9th Cir. 1979), which reaffirmed the traditional

10a

clusion that Weatherman is not properly classified as

a confidential secretary.

The Company’s strongest (or at least most fully

developed) argument to the contrary seems to be that

Weatherman was responsible for processing employ-

ees’ medical and disability insurance claims—ad-

mittedly confidential. But these were the confidences

of employees she had to keep. It is simply ludicrous

that one should be classified as part of “management”

and lose the protections conferred on “labor” because

one is entrusted with the confidences of one’s fellow

workers.

On a broader issue, the majority seems to assert

that Hendricks I holds that “confidential employees”

(not limited to secretaries and, of course, not limited

by the labor relations’ nexus) are unprotected under

the Act. With the most profound deference, I find

the holding of Hendricks I to be more narrowly di-

rected specifically to secretaries. That case teaches

that:

The legislative history of the Taft-Hartley Act,

as interpreted in Bell Aerospace, requires the

conclusion that all secretaries working in a con-

fidential capacity, without regard to labor re-

lations, be excluded from the Act. 603 F.2d at

30.

This conclusion of our Court may be consonant with

the dicta of Bell Aerospace,’ which found, quoting the

Second Circuit that, “surely Congress could not have

Board standard under The B. F. Goodrich Co., 115 N.L.R.B.

722, 724 (1956), that the employee, to be excluded, must assist

in a confidential capacity with respect to labor relations.

Accord, N.L.R.B. v. Allied Products Co., Richard Bros. Div.,

548 F.2d 644 (6th Cir. 1977).

2 N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974).

lla

supposed that, while “confidential secretaries could

not be organized, their bosses could be.” 410 U.S. at

234 (quoting 475 F.2d at 491-92). If there is any-

thing relating to confidential employees “upon which

the holding [in Bell Aerospace] itself was con-

structed” (as the majority here perceives the issue),

it is most evidently the relationship of confidential

secretaries to their “managerial” bosses.

Everything else—beyond confidential secretaries—

that relates to “confidential employees” is at the

farther reaches of dictum, both in Bell Aerospace and

in Hendricks I. Nothing about confidential employ-

ees generally is found in the holding in either case,

nor is the status of such employees generally, a part

of the essential framework from which the respective

holdings emerge.

The majority admonishes us of the need for defer-

ence to the dicta of the Supreme Court. I have no

quarrel with this as far as it goes, but the fact re-

mains that the broad dicta in footnote 12 of Bell

Aerospace about “confidential employees” are am-

biguous* and essential to nothing. There are dicta

and there are dicta, and the rule of stare decisis must

give them effect appropriate to the circumstances

under which they appear.‘ To build a whole new

3 Thus footnote 12 contains the following quotation from a

House Report: “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.”

Does this suggest that lower-level employees, not clerks or

secretaries to executives, are rarely to be excluded?

* The Supreme Court long ago stated:

It is a maxim not to be disregarded, that general ex-

pressions, in every opinion, are to be taken in connection

12a

body of law about “confidential employees” unin-

volved in labor relations, on the footnote dicta of

Bell Aerospace—all in the name of deference to the

Supreme Court—is quite simply totally unwar-

ranted.’ To paint with a broad brush about the pur-

ported exclusion of “confidential employees” (other

than those having the well-accepted “labor nexus’’)

from the protection of the Act may be to strike a

major blow at white collar unionism. Many, if not

most, white collar workers are involved in something

which may be argued to be “confidential” in some

general sense. There are matters of credit, of costs,

of designs, of customer lists, of prices, of medical

records—the list is endless.° I do not perceive at all

with the case in which those expressions are used. If they

go beyond the case, they may be respected, but ought not

to control the judgment in a subsequent suit when the

very point is presented for decision. The reason of this

maxim is obvious. The question actually before the court

is investigated with care and considered in its full extent.

Other principles which may serve to illustrate it, are

considered in their relation to the case decided, but their

possible bearing on all other cases is seldom completely

investigated. Cohens Vv. Virginia, 19 U.S. (6 Wheat.) 264,

399-400 (1821).

5In Hendricks I this court said in commenting on Bell

Aerospace, “Nor do we think that the policies favoring the

exclusion of all managerial employees from the Act neces-

sarily dictate the exclusion of all confidential secretaries as

well.” 603 F.2d at 29.

*“Because most employees have an arguably confidential

relationship with management, and because an expansive

application of the exclusionary rule would deprive many

employees of the right to bargain collectively, the Board has

narrowly construed the definition of confidential employee.”

Union Oil Company of California v. N.L.R.B., supra, n.1 at

853.

13a

that the dicta of Bell Aerospace point down this road.

Nor does Hendricks I require such a journey.

With the utmost respect, I dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

l4a

APPENDIX B

Opinion by Judge Sprecher

Judge Cudahy dissenting

NLRB JUDGMENT—ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 80-1283

Before

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. RICHARD D. Cubany, Circuit Judge

Hon. WILLIAM J. CAMPBELL, Senior District Judge *

July 21, 1980

HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP

CORPORATION, PETITIONER

v8.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

Petition for Review and cross-Application for

Enforcement of an Order of the

National Labor Relations Board

This cause came on to be heard on the record from

the National Labor Relations Board, and was argued

by counsel.

On consideration whereof, it is ordered and ad-

judged by this Court that enforcement of the order

* Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

lda

of the National Labor Relations Board reviewed in

this matter be, and the same is hereby, DENIED,

with costs, in accordance with the opinion of this

court entered this date.

A True Copy:

Teste:

/s/ Kathy Davis

Deputy Clerk of the

U.S. Court of Ap-

peals for the Seventh

Circuit

l6éa

APPENDIX C

FPT

D—6002

Danville, IN

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD

Case 25—CA—8921

HENDRICKS COUNTY RURAL ELECTRIC

MEMBERSHIP CORPORATION

and

Mary M. WEATHERMAN, an Individual

SUPPLEMENTAL DECISION AND ORDER

On July 17, 1978, the National Labor Relations

Board issued a Decision and Order in the above-en-

titled proceeding,’ finding that the Respondent had

violated Section 8(a) (1) of the National Labor Re-

lations Act, as amended, by discharging Mary M.

Weatherman, personal secretary to its general man-

ager, for signing a petition calling for the reinstate-

ment of an injured employee, and by interrogating

another employee regarding the petition. The Board

ordered the Respondent to cease and desist from dis-

charging or taking other adverse action ag: inst any

employee for engaging in protected, conceited activ-

ity, and from coercively interrogating er ployees con-

cerning such activity. The Board fur.her ordered

the Respondent to reinstate Weainerman to her

former job or, show'4 the* Jub no longer exist, to a

substantially equivalent position, and to make her

1236 NLR’, No. 212.

17a

whole for any loss of earnings she may have suffered

by reason of her discharge.

Thereafter, the Respondent filed a petition for re-

view of the Board’s Order in the United States Court

of Appeals for the Seventh Circuit, and the Board

filed a cross-application for enforcement of its Order.

On July 26, 1979, the court issued its decision,’? which

enforced the Board’s Order concerning the 8(a) (1)

interrogation, but reversed and remanded the aspect

of the case dealing with the discharge of Weather-

man to determine whether she was a confidential

employee and therefore not covered by the Act under

a different standard than that used by the Board.

On October 10, 1979, the Board advised the parties

that it had decided to accept the remand, and that

they might submit statements of position with re-

spect to the issue raised by the remand. Thereafter,

the General Counsel and the Respondent filed state-

ments of position.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

tional Labor Relations Board has delegated its au-

thority in this proceeding to a three-member panel.

The issue on remand is narrowly limited to the

alleged confidential status of Weatherman, as the

court concluded that the Board’s finding that she

was discharged for participating in protected, con-

certed activity—signing a petition requesting the re-

instatement of an injured emplovee—was supported

by the evidence.

In our original decision, we found that Weather-

man was not a confidential employee measured

2? Hendricks County Rural Electric Membership Corpora-

tion v. N.L.R.B., 603 F.2d 25.

18a

against our traditional standard that such employees

are “persons who assist and act in a confidential

capacity to persons who formulate, determine, and

effectuate management policies in the field of labor

relations.” * And the court agreed with our factual

determination that, as personal secretary to Wallace

Dillon, the Respondent’s general manager, Weather-

man did not act and assist him. in a confidential

capacity with respect to labor relations policies. The

court also agreed with our finding that she did not

work in a position equivalent to a personnel depart-

ment employee. However, the court concluded, in

light of its interpretation of the Supreme Court’s

opinion in N.L.R.B. v. Bell Aerospace Company, Di-

vision of Textron, Inc.,* that B. F. Goodrich does not

enunciate the correct legal standard for judging con-

fidential employee status under the Act. Rather, the

court held that the proper criteria to be applied is

whether, by the nature of the employee’s duties, the

employee 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 gener-

ally, for use in the interest of the employer. Accord-

ingly, recognizing that “[t]he determination of ‘con-

fidential’ status is . . . a question appropriately com-

mitted to Board discretion,” the court remanded the

case to us to decide under this standard if Weather-

man was a confidential employee in terms of her

“actual job responsibilities, authority, and relation-

ship to management.” * Accepting the court’s criteria

for resolving questions of confidential employee status

3 The B. F. Goodrich Company, 115 NLRB 722, 724 (1956).

*416 U.S. 267 (1974).

5603 F.2d at 30.

19a

as the law of this case only, we find that Weather-

man was not a confidential employee.

When she was discharged in May 1977, Weather-

man had been personal secretary to Dillon, the Re-

spondent’s general manager and top executive officer,

for a little more than 4 years. In this capacity, she

answered the telephone and opened mail addressed

to the Respondent and Dillon, except for some mail

which was removed before it reached her by Office

Manager Donald Douglas and given to Dillon by him.°

Although Weatherman typed all of Dillon’s letters,

this correspondence apparently did not relate to labor

relations or personnel matters other than occasional

letters referring to the dates of negotiating meetings

with a union. Nor is there any evidence that it con-

cerned confidential matters of any description.

Weatherman generally did not place Dillon’s tele-

phone calls, nor did she keep a record of his appoint-

ments. Weatherman did share a partitioned office

with Dillon, but no personnel records or confidential

records of any type were kept there, excluding Dil-

lon’s testimony that he kept some papers concerning

labor negotiations in a file behind his desk.’ Weather-

man did not attend meetings of Respondent’s board

of directors or other management meetings. How-

ever, she did type minutes of meetings of the board

® Among the mail she did not see was that regarding union

relations.

7 As we pointed out in the initial decision herein, Weather-

man had no duties concerning labor negotiations, nor was

there any evidence that she was even aware of the existence

of Dillon’s file.

Weatherman did maintain some files respecting routine

insurance claims filed by employees, which she was respon-

sible for processing, for her own convenience.

20a

of directors and the agenda for such meetings. While

these meetings apparently occasionally involved per-

sonnel matters, there is no indication that such mat-

ters, or any other issues discussed during them, were

confidential. Weatherman did not type internal

memoranda regarding labor relations or personnel or

employment matters. Finally, and most significantly,

Dillon conceded at the hearing that the Respondent

did not maintain secret or classified papers or docu-

ments. ;

As previously noted, the court of appeals affirmed

not only our earlier finding that Weatherman did not

work in a confidential capacity in respect to labor

relations matters, but also that she was not the

equivalent of a personnel department employee. Thus,

for Weatherman to qualify as a confidential employee

under the standard erected by the court, the record

would have to disclose that she performed confidential

duties in connection with nonlabor relations or per-

sonnel areas. Quite clearly, however, the evidence

taken at the hearing contains no hint that Weather-

man had any such responsibilities, That this was not

merely an oversight in the course of litigation is con-

firmed by Dillon’s statement that the Respondent

simply did not have secret papers or documents.

Therefore, we reaffirm our conclusion, made in the

original decision in this case, that the Respondent

discharged Weatherman in violation of Section 8(a)

(1) of the Act, and our remedial Order concerning

that violation.’

8 We noted in our original decision that the Respondent

is a cooperative, and that all members presumably have

access to documents such as the minutes of board meetings.

* It is unnecessary to reaffirm our previous Order in regard

to the Respondent’s violation of Sec. 8(a) (1) by coercively

2la

ORDER

It is hereby ordered that the Order issued by the

Board in Hendricks County Rural Electric Member-

ship Corporation, 286 NLRB No. 212 (1978), con-

cerning the discharge of Mary M. Weatherman in

violation of Section 8(a)(1) of the Act be, and it

hereby is, reaffirmed.

Dated, Washington, D.C. January 22, 1980

JOHN H. FANNING, Chairman

JOHN A. PENELLO, Member

JOHN C. TRUESDALE, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL]

interrogating an employee, inasmuch as the court has al-

ready enforced that portion of our Order.

22a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 78-2127

HENDRICKS COUNTY RURAL ELECTRIC

MEMBERSHIP CORPORATION, PETITIONER

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

A Petition for Review of an Order from

the National Labor Relations Board

ARGUED APRIL 13, 1979—DECIDED JULY 26, 1979

Before CUMMINGS, SPRECHER, Circuit Judges, and

BONSAL, Senior District Judge.*

SPRECHER, Circuit Judge. The employer, Hend-

ricks County Rural Electric Memebership Corpora-

tion (REMC), appeals from a decision of the Na-

tional Labor Relations Board finding that REMC

engaged in unfair labor practices in violation of sec-

* The Honorable Dudley B. Bonsal, Senior District Judge of

the Southern District of New York, is sitting by designation.

23a

tion 8(a)(1) of the National Labor Relations Act.

29 U.S.C. § 158(a) (1). The principal issue presented

by this appeal is whether the personal secretary to

the general manager of REMC was an “employee”

under section 2(8) of the Act. 29 U.S.C. § 152(3).

We hold that the Board did not apply the appropriate

legal standard for resolving this issue and remand

for a factual application of the proper standard.

On May 9, 1977, the general manager of REMC,

Wallace Dillon, discharged his personal secretary,

Mary Weatherman.: The General Counsel charged

that Weatherman was discharged for engaging in

concerted activities protected by section 7 of the Na-

tional Labor Relations Act. The administrative law

judge conducted a hearing and determined that

Weatherman was an “employee” within the coverage

of the Act, that she had engaged in protected con-

certed activity and that Dillon discharged her for

that activity. The judge ordered REMC to reinstate

Weatherman with back pay.

The facts surrounding Weatherman’s discharge

were carefully established by the administrative law

judge. Lloyd Hadley, a close friend of Weatherman,

was injured in the course of employment in February

1976, resulting in the loss of an arm. In March 1977,

Hadley sought reinstatement with REMC. The Board

of Directors notified Hadley in April that he would

not be reinstated.

The first week in May, a petition requesting recon-

sideration of the decision not to reinstate Hadley was

mailed to members of the Board. The petition was

signed by 26 employees. Mary Weatherman signed

the petition; she was the sixth employee to do so. On

24a

Saturday, May 7, one of the directors called Dillon

at home to advise him of the petition. Dillon drove

to the director’s home that day in order to see the

petition.

At 10:00 a.m. on Monday, May 9, Dillon dis-

charged Weatherman. At the hearing, Dillon testified

that he discharged Weatherman for conduct unre-

lated to the Hadley petition. The administrative law

judge conducted an extensive and careful evaluation

of the evidence and concluded that Dillon’s explana-

tion of the discharge was “ludicrous.”

We conclude, contrary to the argument of the

employer, that the judge’s decision that Mary Weath-

erman was discharged for signing the Hadley peti-

tion is fully supported by the evidence. REMC ar-

gues additionally that the circulation of the Hadley

petition was not conduct protected by the Act and

that Mary Weatherman was not an employee pro-

tected by the Act. Although we conclude that the

judge correctly characterized Mary Weatherman’s

conduct as “protected,” we find it necessary to remand

the decision for a new determination of her “em-

ployee” status.

REMC was guilty of an unfair labor practice in

this case only if Mary Weatherman was discharged

for engaging in “concerted activities for the purpose

of . . . mutual aid or protection.” Section 7, 29

U.S.C. § 157. The circulation of the petition among

the employees was undoubtedly “concerted,” but

1The ALJ also found that REMC violated the Act by im-

properly interrogating another clerical employee about the

petition. We find this conclusion is also supported by the

evidence.

25a

REMC disputes that it was circulated for the “pur-

pose of mutual aid or protection.”

The Board has only recently reiterated that cir-

culation of a petition on behalf of a discharged em-

ployee is protected activity under section 7. Youngs-

town Osteopathic Hospital Association, 224 N.L.R.B.

574 (1976). Such activity is protected even if the

discharge of the employee was lawful. See, e.g.,

NLRB vy. Pepsi-Cola Bottling Co., 449 F.2d 824, 830

n.5 (5th Cir. 1971).

Employee conduct should similarly be protected

when the petition criticizes the employer’s refusal to

reinstate an injured employee. The administrative

law judge specifically found the petition was moti-

vated in part by the employees’ desire to promote

their own future well being should they be faced

with a similar misfortune. Refusal to reinstate a

former company employee seriously injured on the

job is an issue about which the REMC employees

“had a legitimate interest ... in making known their

views to management without being discharged for

that interest.” NLRB v. Phoenix Mutual Life Ins.

Co., 167 F.2d 983, 988 (7th Cir. 1948).?

2 Allied Chemical & Alkali Workers, Local No. 1 v. Pitts-

burgh Plate Glass Co., 404 U.S. 157 (1971), strongly relied

on by the employer, simply does not undermine this conclu-

sion. In Pittsburgh Plate Glass, the Court refused to find

that reduction of the retired employees’ pensions was a man-

datory subject of bargaining. Mandatory bargaining extends

only to the “ ‘terms and conditions of employment’ of the

employer’s ‘employees’... .” 404 U.S. at 164. The scope of ac-

tivity protected under section 7 is obviously much broader, ex-

tending to concerted activity engaged in for the purposes of

mutual aid and protection. Thus the fact that REMC may not

have been under an obligation to bargain with the employees

over Hadley’s reinstatement in no way limits the employees’

freedom to circulate a petition on his behalf.

26a

Ill

Although the ALJ properly concluded that the cir-

culation of the petition was protected activity, that

protection can only extend to an individual who is an

“employee” under the Act. Despite the breadth of the

definition of “employee,” * the Supreme Court has es-

tablished that certain categories of employees are im-

pliedly excluded from that definition. NLRB v. Bell

Aerospace Co., 416 U.S. 267 (1974). REMC argues

that individuals working in personnel departments or

as confidential secretaries are impliedly excluded and

that Weatherman fits in both categories.

In determining whether Mary Weatherman was a

statutory “employee,” the ALJ applied a well-estab-

lished Board standard. The judge ruled that Mary

Weatherman was only excluded from the Act if she

“assist[ed] and act[ed] in a confidential capacity to

persons who formulate, determine, and effectuate

*The Act provides:

The term “employee” shall include any employee, and

shall not be limited to the employees of a particular

employer, unless the Act 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 in-

dividual 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 contrac-

tor, or any individual employed as a supervisor, or any

individual employed by an employer subject to the Rail-

way Labor Act, as amended from time to time, or by any

other person who is not an employer as herein defined.

§ 2(3), 29 U.S.C. § 152(3).

27a

management policies in the field of labor relations.”

236 N.L.R.B. No. 212 Appendix at 7, quoting B. F.

Goodrich Co., 115 N.L.R.B. 722, 724 (1956). Exam-

ining the evidence carefully, the judge determined

that Weatherman “did not act ‘in a confidential ca-

pacity’ to Dillon in any meaningful sense with re-

spect to [employer’s] labor relations policies... .”

Id. The ALJ also found that Weatherman was not

working in a position equivalent to a personnel de-

partment employee, a finding which we do not con-

sider clearly erroneous. The judge therefore con-

cluded that Weatherman was a statutory “employee.”

We do not believe that the judge erred factually

by finding that Weatherman did not assist in a confi-

dential capacity with respect to labor relations poli-

cies. We do conclude, however, that the use of the

B. F. Goodrich standard was an error of law.

This Court has previously held that “confidential”

secretaries are excluded from the Act. Peerless, Inc.

v. NLRB, 484 F.2d 1108 (7th Cir. 1973). See also

NLRB v. Wheeling Electric Co., 444 F.2d 783 (4th

Cir. 1971). The B. F. Goodrich standard does repre-

sent current Board law on the question of whether a

secretary should be considered an excluded “confiden-

tial secretary.” See Willett Motor Coach Co., 227

N.L.R.B. 882 (1977) ; Minneapolis Star and Tribune

Co., 222 N.L.R.B. 342, 343 (1976); California In-

spection Rating Bureau, 215 N.L.R.B. 780, 783

(1974). Nonetheless, we believe that standard was

exposed to serious question by the 1974 decision of

the Supreme Court in NLRB vy. Bell Aerospace Co.,

416 U.S. 267 (1974).

In Bell Aerospace, the Supreme Court confronted

the issue of whether buyers in an employer’s purchas-

ing department were statutory employees or were ex-

28a

cludable as managerial employees. The Board argued

that even though the buyers were managerial, they

were covered by the Act since their jobs were unre-

lated to the “formulation and implementation of labor

relations policies.” 416 U.S. at 272. The Supreme

Court disagreed, holding that all managerial em-

ployees were excluded from the Act without regard

to any employment nexus to labor relations policies.

The Supreme Court was not presented with the

issue of whether all secretaries acting in confidential

capacity are also excluded from the Act without re-

gard to labor relations nexus. Nor do we think that

the policies favoring the exclusion of all managerial

employees from the Act necessarily dictate the ex-

clusion of all confidential secretaries as well. None-

theless, the Supreme Court interpretation in Bell

Aerospace of the 1947 amendment to the National

Labor Relations Act and its legislative history re-

quires the conclusion that all confidential secretaries

are excluded.

In 1947, Congress passed the Taft-Hartley Act,

amending the National Labor Relations Act to ex-

clude “supervisors” from the Act.* The House bill,

H.R. 3020, 80th Cong., Ist Sess. (1947), excluded,

4 The Act provides:

The term “supervisor” means any individual having

authority, in the interest of the employer, to hire, trans-

fer, 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 fore-

going the exercise of such authority is not of a merely

routine or clerical nature, but requires the use of inde-

pendent judgment.

§ 2(11), 29 U.S.C. § 152(11).

29a

through its definition of supervisor, those employees

“employed in labor relations, personnel, [or] employ-

ment ... matters” as well as those “who by the na-

ture of [their] duties is given by the emp'oyer infor-

mation that is of a confidential nature, and that is

not available to the public, to competitors, or to em-

ployees generally, for use in the interest of employer.”

416 U.S. at 279-80 n.9. The Senate Bill, on the other

hand, did not enumerate these two categories of em-

ployees for exclusion.

Although the Senate version of the Bill was event-

ually enacted, the Conference Committee Report em-

phasized that “persons working in labor relations,

personnel and employment departments” and “con-

fidential secretaries” were considered excluded. A

specific provision “was not thought necessary .. .

since the Board has treated, and presumably will

continue to treat, such persons as outside the scope

of the Act.” H.R. Conf. Rep. No. 510, 80th Cong.,

Ist Sess., 35-36 (1947). Relying on this legislative

history, the Supreme Court in Bell Aerospace con-

cluded that confidential employees, including confi-

dential secretaries, were persons “who both the House

and the Senate believed were plainly outside the Act.”

416 U.S. at 283.

Proceeding from the interpretation that confidential

secretaries were excluded from the Act, the Court

reasoned that managerial employees should also be

impliedly excluded. The Court concluded: “The Court

of Appeals in the instant case put the issue well:

‘. . . Surely Congress could not have supposed that,

while ‘confidential secretaries’ could not be organized,

their bosses could be.’” Jd. at 284, quoting 475 F.2d

at 491-92.

The Court thus clearly read the 1947 history as in-

dicating a Congressional intention to exclude con-

30a

fidential secretaries. The Court’s opinion and various

segments of the legislative history further clarify that

“confidential” status was not to be defined by refer-

ence to labor relations. The Court stated, “[t]he dis-

cussion of ‘confidential employees’ in both the House

and Conference Committee Reports . . . unmistakably

refers to that term as defined in the House bill, which

was not limited just to those [employees] in ‘labor

relations.’’” 416 U.S. at 284 n.12. The House Re-

port, in no uncertain terms, expressed an intention

that “confidential” status not be restricted by a labor

nexus.

[P]rotecting confidential financial information

from competitors and speculators, protecting

secret processes and experiments from competi-

tors, and protecting other vital secrets ought not

to rest in the administrative discretion of the

board .... The bill therefore excludes from the

definition of employees persons holding positions

of trust and confidence whose duties give them

secret information.

H.R. Rep. No. 245, 80th Cong., 1st Sess., as cited in

NLRB v. North Arkansas Electric Cooperative, Inc.,

446 F.2d 602, 606 (8th Cir. 1971).

The conference report, as excerpted above, states

that no specific exception was necessary since the

Board already excluded such individuals. In fact, the

Board has historically excluded only those confidential

secretaries working for individuals in the field of

labor relations. See, e.g., Consolidated Vultee Air-

craft Corporation, 54 N.L.R.B. 103, 118 (1948).

Nonetheless, the Supreme Court found that although

“Congress may have misconstrued . . . Board prac-

tice,” it “clearly thought that the Act did not cover

Sla

‘confidential employees’ even under a broad definition

of that term.’” 416 U.S. at 268 n.12.°

The legislative history of the Taft-Hartley Act, as

interpreted in Bell Aerospace, requires the conclusion

that all secretaries working in a confidential capacity,

without regard to labor relations, be excluded from

the Act. The administrative law judge in this case

limited his factual inquiry to a determination that

Weatherman had not acted in a confidential capacity

with respect to labor relations. We therefore find it

necessary to remand the case ° for a determination of

whether “by the nature of [her] duties” she was

“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.” H.R. 3020 § 2

(12) (C), 80th Cong., 1st Sess. (1947). See also 416

U.S. at 284 n.12. The determination of “confidential”

status is of course a question appropriately committed

to Board discretion. As the Supreme Court stated

in Bell Aerospace, “the specific job title of the em-

ployees involved is not in itself controlling. Rather,

the question whether particular employees are ‘man-

agerial’ [or confidential] must be answered in terms

of the employees’ actual job responsibilities, authority,

and relationship to management.” 416 U.S. at 290

n.19. The order is reversed and remanded for pro-

ceedings consistent with this opinion.

5 See also note 10 of the Second Circuit opinion in Bell. 475

F.2d 485, 492.

® As to the necessity for remand in a case such as this, see

Bell Aerospace, 416 U.S. at 290; FTC v. Sperry & Hutcherson

Co., 405 U.S. 233, 249 (1972).

32a

BONSAL, District Judge, dissenting.

I would affirm. The record satisfies me that Mary

Weatherman was not a “confidential secretary” and

was covered by the Act. The finding of the adminis-

trative judge that she was discharged for engaging

in protected concerted activity, viz., the circulation of

the petition asking reconsideration by the Board of

Directors of its decision not to reinstate Hadley, was

supported by substantial evidence.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

88a

APPENDIX E

HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP

CORPORATION and MARY M. WEATHERMAN

Case 25-CA-8921

July 17, 1978

DECISION AND ORDER

By CHAIRMAN FANNING AND MEMBERS PENELLO

AND TRUESDALE

On April 4, 1978, Administrative Law Judge Ber-

nard Reis issued the attached Decision in this pro-

ceeding. Thereafter, the Respondent filed exceptions

and a supporting brief and the General Counsel filed

a brief in support of the Decision of the Administra-

tive Law Judge.’

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

tional Labor Relations Board has delegated its au-

thority in this proceeding to a three-member panel.

1The Respondent has also filed a motion entitled “Motion

to Strike General Counsel’s Brief to the Board.” In its

motion, the Respondent characterizes the General Counsel’s

brief as an answering brief and asserts that it does not com-

ply with Sec. 102.46(d) (1) and (2) of the Board’s Rules and

Regulations, Series 8, as amended, which govern the filing of

answering briefs. The General Counsel’s brief, however, is

clearly denominated as a brief in support of the Decision of

the Administrative Law Judge. We note that Sec. 102.46(a)

of the Rules and Regulations sets forth the provisions regard-

ing the filing of such briefs and, upon careful examination,

we have determined that the General Counsel’s brief complies

with the pertinent portion of that section in all respects. Ac-

cordingly, the Respondent’s motion to strike is denied.

34a

The Board has considered the record and the at-

tached Decision in light of the exceptions and briefs

and has decided to affirm the rulings, findings, and

conclusions of the Administrative Law Judge, to mod-

ify his remedy,” and to adopt his recommended Order.

In agreement with the Administrative Law Judge,

we find that the Respondent’s discharge of Mary

Weatherman in violation of Section 8(a)(1) of the

Act necessitates an orcer requiring the Respondent

to cease and desist from infringing in any other man-

ner upon the rights guaranteed employees by Section

7 of the Act. In our view, the Respondent’s action in

discharging Weatherman for engaging in protected

concerted activity strikes at the heart of the rights

intended to be protected by the Act. See N.L.R.B. v.

Entwistle Mfg. Co.,° and Electrical Fittings Corpora-

tion, a subsidiary of ITE Imperial Corporation. We

specifically note the Respondent’s rapid retaliation

shortly after being made aware of Weatherman’s

participation in protected activity and the blatantly

pretextual reasons given for her discharge. We fur-

ther note that the Respondent coercively interrogated

Martha Sellers who, like Weatherman, was one of the

Respondent’s 10 unrepresented clerical employees,’ re-

garding the identity of the employee chiefly respon-

sible for the circulation of the petition herein. Ac-

cordingly, we view the above-stated facts as estab-

lishing the Respondent’s intention to thwart the basic

2 See Isis Plumbing & Heating Co., 188 NLRB 716 (1962),

for rationale on interest payments.

4120 F.2d 532, 536 (C.A. 4, 1941).

*216 NLRB 1076 (1975).

‘The Respondent’s entire employee complement is com-

prised of approximately 35 employees.

35a

purposes of the Act, and therefore conclude that a

broad order is justified under the circumstances pres-

ent in this case.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Re-

lations Board adopts as its Order the recommended

Order of the Administrative Law Judge and hereby

orders that the Respondent, Hendricks County Rural

Electric Membership Corporation, Danville, Indiana,

its officers, agents, successors, and assigns, shall take

the action set forth in the said recommended Order,

except that the attached notice is substituted for that

of the Administrative Law Judge.®

APPENDIX

NoTICcE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing at which all parties had the oppor-

tunity to present their evidence, it has been decided

that we violated the law and we have been ordered to

post this notice. We intend to carry out the Order

of the Board and abide by the following:

The Act gives all employees these rights:

To engage in self-organization

To form, join, or help unions

*The Administrative Law Judge inadvertently failed to

conform the notice with his recommended Order. We shall

correct the notice accordingly.

86a

To bargain collectively through a repre-

sentative of their own choosing

To act together for collective bargaining

or other mutual aid or protection

To refrain from any and all of these

things.

WE WILL NOT discharge or otherwise discipline

any employee for engaging in concerted activities

protected by Section 7 of the National Labor

Relations Act.

WE WILL NOT coercively interrogate employees

about such activities.

WE WILL NOT in any other manner interfere

with, restrain, or coerce employees in the exer-

cise of their rights guaranteed in Section 7 of

the National Labor Relations Act.

WE WILL offer to Mary M. Weatherman imme-

diate and full reinstatement to her former job

or, if that job no longer exists, to a substantially

equivalent one, without prejudice to her senior-

ity or other rights, privileges, or working condi-

tions.

WE WILL make Mary M. Weatherman whole,

plus interest, for any loss of pay or other bene-

fits suffered by her as a result of her discharge.

HENDRICKS COUNTY RURAL ELECTRIC

MEMBERSHIP CORPORATION

DECISION

BERNARD RIES, Administrative Law Judge: This

matter was heard on December 22, 1977, and Janu-

ary 9, 1978, in Indianapolis, Indiana. The complaint,

37a

denied in all material respects, alleges that the Re-

spondent, Hendricks County Rural Electric Member-

ship Corporation, violated Section 8(a)(1) of the

National Labor Relations Act, as amended, by dis-

charging Mary M. Weatherman on May 9, 1977, and

by coercively interrogating another employee 2 weeks

thereafter. I find the complaint supported by the

evidence.

The parties have submitted briefs. On the basis

of the demeanor of the witnesses, the entire record,’

and the arguments advanced on brief, I make the

following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I, JURISDICTION

Respondent is engaged, at Danville, Indiana, in the

business of supplying electricity and related services.

During the year preceding issuance of the complaint,

it purchased and received in Indiana goods valued in

excess of $50,000 from other States, and sold elec-

tricity at a value in excess of $500,000. Upon the

factual concessions made in Respondent’s answer to

the complaint, I find that Respondent is an employer

engaged in commerce within the meaning of the Act.

JI.. THE RELEVANT EVIDENCE

Respondent is a rural electric membership coopera-

tive. While fundamental policies are established by

a 10-man board of directors, its top executive officer

is General Manager Wallace E. Dillon, who has occu-

pied that position for 14 years. The basic issue pre-

sented is whether, on May.9, 1977, Dillon discharged

1 Errors in the transcript have been noted and corrected.

38a

Mary Weatherman, his secretary, because of her par-

ticipation in concerted activities protected by Section

7 of the statute. At the time of her discharge, Weath-

erman had been employed by Respondent for more

than 9 years, and had served as Dillon’s secretary

for 4 years.

Lloyd Hadley, a longtime employee of Respondent

and a close friend of Weatherman’s, was injured in

the course of employment in February 1976, suffering

the loss of an arm. Hadley recovered sufficiently so

that, in March 1977, he sought reinstatement with

Respondent. In April, the board of directors notified

Hadley that he would not be considered for reinstate-

ment to active employment.

Toward the end of April, a petition, addressed to

the board of directors, circulated among Respondent’s

employees. The petition praised Hadley’s outstanding

past service to Respondent, stressed his surprising

recuperation, spoke of his intense desire to return to

work, and asked that the board reconsider its deci-

sion. The petition was signed by 26 employees, in-

cluding both “outside” workers and office clerical em-

ployees.* Mary Weatherman signed the petition; she

was the sixth employee to do so.

Copies of the petition were mailed to members of

. the board in the first week of May. At 3 p.m. on

Saturday, May 7, Director Truax called General Man-

ager Dillon at home, ascertained that Dillon had not

seen the petition, and asked Dillon to come to Truax’s

house so that he might see Truax’s copy. Dillon drove

some 7 miles to do so.

2 The outside employees, about 25 in number, are repre-

sented by the International Brotherhood of Electrical Work-

ers; the 10 clericals are not represented by a labor organi-

zation.

~~.

39a

At 10 a.m. on Monday, May 9, Dillon discharged

Weatherman. The reason given her for the termina-

tion and, as Dillon testified at the hearing, the only

reason for the action, was that she had lied to him

in the preceding week. The date of the incident re-

lied on by Dillon as the sole reason for discharge is

in dispute: Dillon testified that it occurred on Fri-

day, May 6, but Weatherman said it was Thursday,

May 5. The basic facts of the incident, however, are

not in controversy.

In March, Dillon had received from Respondent’s

group retirement administrator two forms relating to

Lloyd Hadley’s disability claim, one a form to be

filled out by Hadley, and the other to be completed

by Hadley’s physician. The forms were neeced to

establish Hadley’s disability so that a waiver of pre-

miums for his life insurance could be obtained. As

of the first week in May, Hadley’s form was virtually

completed, except, apparently, for Hadley’s signature,

but Dillon was awaiting return of the other docu-

ment by the physician. Dillon intended to return both

forms to the retirement administrator at the same

time.

On May 5 or 6, Dillon, who was in his office perus-

ing a file folder which contained xeroxed copies of

the Hadley form, asked Weatherman about her per-

sonal knowledge of Hadley’s intentions (“if he was

' going to draw his long-term disability or what he

was going to'do about it”), and also inquired about

the location of the original forms. Weatherman

‘stated that the doctor had not returned his. Looking

at the copy of Hadley’s form, and noting the absence

of any notation that the original had been mailed out,

Weatherman asked Dillon if the original was in the

file. When he said it was not, she said she must have

40a

mailed it to a firm named J. F. Molloy and Associ-

ates, which administers Respondent’s group medical

insurance program.’

A while later, Dillon again inquired about the form,

and Weatherman repeated that she must have sent

it to Molloy. Several minutes later, Dillon inquired

once more, received the same answer, and then asked

her to call Molloy and tell them, if they had the form,

to forward it to Respondent’s broker. When Weath-

erman called and was told by Molloy that it had not

received the form, she looked in her file on Hadley,

which she thought Dillon had already done, and found

the missing document.‘ She informed Dillon of the

discovery and asked if he wanted it mailed to the

broker; he said not to send it until the doctor’s form

had been received, at which time both could be sent

together.°

On Monday, May 9, at or about 10 a.m., the first

working day after he saw the petition with Weather-

man’s name on it, Dillon called Weatherman into his

office and told her that because she had “fibbed” to

him the previous week about having mailed out the

form, she was discharged.

* Weatherman testified that it was the practice to mail any

forms with the designation “Bankers Life Company” on them

(as the Hadley form had) to Molloy.

4 Weatherman had not checked her files before because she

had assumed that the file Dillon was looking at was her own.

The record shows that Dillon maintained his own separate

file on the Hadley case, and I assume that was in fact the

file which Weatherman saw open before him.

5 The foregoing findings are based on the testimony of

Weatherman, a much more impressive witness than Dillon

There is, however, not a great deal of conflict between their

accounts.

—— oe

—--

4la

At the threshold, I find that the disputed incident

occurred on Thursday, May 5, rather than the follow-

ing day. Weatherman testified that, after the solu-

tion of the missing form mystery, Dillon told her to

tell Hadley to come in to see him the next time Had-

ley visited the office. The next day, May 6, Hadley

dropped in, Weatherman conveyed the message, and

Hadley apparently met with Dillon. Hadley, a credi-

ble witness, corroborated Weatherman’s testimony.’

I further find that the sole reason for the discharge

of Weatherman was the fact that she had signed the

Hadley petition.

Dillon’s claim that he discharged her for “fibbing”

to him is preposterous. The facts surrounding the

temporarily missing document, discussed above, make

it plain that any sane person (which Dillon is) would

have regarded Weatherman’s failure te immediately

locate the form as a simple error, not a deception.

Asked at the hearing if he could conceive of any rea-

son why Weatherman would want to lie about having

sent the form to Molloy, Dillon could think of none.

Dillon, who testified that he delayed firing Weather-

man in order to spend the weekend considering the

matter, unquestionably would have recognized, in so

deliberating, that any “lie” about having sent the

letter to Molloy would have been pointless, since, even

if Weatherman had done so, it would have been the

simplest matter to retrieve the form from Molloy, a

* Respondent introduced, for purposes of impeachment, a

note written by Weatherman on May 18 to a former business

associate in which she discussed the circumstances of her

discharge. In doing so, she stated in the first paragraph that

Dillon had asked about the status of the form on “May 6th.”

In the second paragraph, however, Weatherman wrote, “This

was on Thursday.” The reference to May 6 was, as Weather-

man testified, an obvious inadvertence.

42a

local concern. In addition, since Respondent had, to

Dillon’s knowledge, retained a copy of the form, there

was no possibility of loss.

I find too ludicrous for serious consideration the

claim that Dillon, who purportedly debated the poten-

tial discharge at some length, finally concluded that

this minor mistake should be characterized as a lie

and the basis for discharging an employee with 9

years’ tenure. The incredulity expressed by Weather-

man in her final conversation with Dillon was apt:

“Are you telling me that you are terminating me be-

cause of an insurance form that I said I had mailed

and it hadn’t been mailed but we didn’t want it

mailed anyway, and he said that’s right.”

Further support for the conclusion of pretext is

found in Dillon’s wholly inept attempt to explain the

delay in firing Weatherman for the reason asserted.

Since, had the incident actually occurred on Thurs-

day, he could not have easily justified more than a

1-day delay, until Friday, for the asserted purpose of

thinking the matter over, he shifted the date of the

occurence to Friday, thus hoping to lend some plausi-

bility to an otherwise surprising discharge at the be-

ginning of the week.

But he did more. He added, as a reason for wait-

ing until Monday, instead of having immediately

punished Weatherman for the offense which allegedly

occurred on Friday, that he had held back because he

did not want to discharge her until he received the

form from Hadley’s doctor: “Over the weekend I

had determined that when the form came in and I

had it in my hand, then I was going to terminate

her.” Upon inquiry, he could furnish no explanation

for this strange precondition. What he appeared to

be saying was that it was critically important that

Weatherman, and only Weatherman, be there to per-

43a

sonally open the letter containing the doctor’s form,

or to write a letter asking for it, and yet he had no

explanation why her presence was indispensable to

such mundane tasks. There were nine other clericals

in the office and Dillon was in good health; any of

them, I feel certain, was up to the job of opening an

envelope. This nonsensical explanation for delay fur-

ther depreciates the value of Dillon’s perilously frail

reason for discharge.

I conclude, therefore, with no reservations, that

the appearance of Weatherman’s signature on the

petition, seen by Dillon on Saturday, caused him to

reach back to the preceding Thursday and magnify

into a dischargeable offense the trivial incident which

had occurred on that day.’ Respondent, however, ad-

*I have taken into account Weatherman’s open testimony

that, on Thursday, she had the “impression” that Dillon

thought she “had intentionally held the form back for some

reason,” although “he didn’t say that.” How much of that

impression is hindsight unconsciously influenced by the

reason given to her for the discharge and by Dillon’s testi-

mony is unascertainable. But even if it were true that Dillon

evinced such an attitude, I find, in view of the delay, the fact

that no rational mind, after considering the matter, could

have concluded that she had been intentionally lying, the

deception about when the incident occurred, and the fatuous

story about retaining Weatherman until the doctor’s letter

was received, that the precipitating cause for discharge of

this 9-year employee was Dillon’s interim awareness of the

petition.

That Dillon would have been particularly upset about

Weatherman’s participation (and that of other employees)

in the petition sent to the directors is, I note, demonstrated

by her uncontradicted testimony that, in February 1977, when

she had contacted some directors about certain innocuous

travel plans, Dillon angrily warned her, “I never again want

you to call the directors.”

In reaching my conclusion about Dillon’s motive, I have

considered the testimony of Assistant Manager Wayne Spen-

44a

vances two legal defenses to the claimed violation

here. The first is that Weatherman was confidential

employee and therefore not protected by the Act.

In Wheeling Electric Company, 182 NLRB 218,

220-221 (1970), the Board held that confidential em-

ployees are entitled to the safeguards afforded by

Section 8(a)(1). That decision was reversed on re-

view, 444 F.2d 783 (C.A. 4, 1971). Subsequently, al-

though without reference to Wheeling, the Board ap-

proved the conclusion of a Trial Examiner that “there

can be no inference that [confidential employees] are

not accorded the protection of the Act from unfair

labor practices.” Peerless of America, Incorporated,

198 NLRB 982, 987 (1972). Finding persuasive the

Fourth Circuit’s Wheeling opinion, the Seventh Cir-

cuit denied enforcement of Peerless on this point. 484

F.2d 1108, 1112 (1973).

It would appear that Wheeling and Peerless rep-

resent the Board’s last say on the issue, and I am

therefore bound to reject the defense. In any event,

my evaluation of the evidence leads me to conclude

that the defense has no sufficient factual predicate.

The Board defines confidential employees as “per-

sons who assist and act in a confidential capacity to

persons who formulate, determine, and effectuate

management policies in the field of labor relations.”

The B. F. Goodrich Company, 115 NLRB 722, 724

(1956). There are thus two essential elements. The

first is that the employee assist “in a confidential

capacity.” The second is that the person assisted ful-

cer, who testified that Dillon displayed no “irritation” when

he told Spencer, around May 10, about the petition, and that

Dillon later said to Spencer that Weatherman had been

terminated because she “storied to him about a letter.” Spen-

cer’s testimony does not alter some rather plain facts.

45a

fill all three roles vis-a-vis labor relations policies;

in B. F. Goodrich, the Board stressed the word “and”

between “determine” and “effectuate,” and in Weyer-

haeuser Company, 173 NLRB 1170, 1172 (1968), it

reiterated that “the quoted considerations are to be

assessed in the conjunctive.” *

The record shows that Weatherman did not act “in

a confidential capacity” to Dillon any meaningful

sense with respect to Respondent’s labor relations

policies; it discloses, in fact, that the range of her

duties was deliberately restricted so as to preclude her

from doing so. By and large, Weatherman’s duties

related to the routine operations of Respondent’s busi-

ness. While she opened mail addressed to Respondent

and Dillon, she credibly testified that she never saw

copies of correspondence from Respondent’s lawyers

to the union which represented the outside workers,

because Office Manager Donald Douglas removed all

such mail before it reached her desk and gave it

directly to Dillon. Weatherman further credibly tes-

tified that Dillon normally placed his own telephone

calls, and that she did not keep a list of Dillon’s

appointments.’

There were no personnel files maintained in the

partitioned office shared by Weatherman and Dillon.

As she testified, and Dillon substantially agreed, the

only files she maintained were for those employees

who made insurance claims; Weatherman kept these

files for her own convenience, to use in processing the

claims, and they were apparently destroyed after a

short period of time.

* This approach, however, seems vulnerable to attack. It is

hard to conceive that, if the assisted person only “formulates”

policy, his confidential assistant will not be excluded.

*I do not believe Dillon’s contrary testimony.

46a

While Weatherman typed Dillon’s letters, there is

no evidence that any of them related to union or

personnel matters. She said that the only union-

related letters typed by her were notices to Respond-

ent’s counsel about the dates of the negotiating meet-

ings held every few years. She testified without con-

tradiction that she typed no intramural memoranda

regarding labor policies, did not attend board meet-

ings or internal management meetings, was not in-

volved with negotiations, grievances, discipline, or re-

wards, and had nothing to do with payroll matters.”

Despite the fact that Weatherman worked for Dil-

lon for 4 years, the only documents typed by her

which Respondent introduced in evidence were min-

utes of meetings of the board of directors.’ Those

introduced contain references to the Hadley request

for reinstatement, and I assume that other sets of

minutes refer occasionally to personnel matters. How-

ever, these documents can hardly be considered con-

fidential, since Respondent is a cooperative and pre-

sumably all members are entitled to see the minutes.”

Moreover, the Board has held that occasional typing

of material relating to personnel problems does not

render an employee confidential in nature. ITT Grin-

10 Dillon testified that interviews with prospective employees

“usually” are held in a conference room, and that, when

“labor relations problems with the clerical people or with the

outside people” arise, they are first handled by Spencer and

Douglas, and then, if not resolved, “usually” considered by

Dillon in a joint discussion in the conference room, where

there is space for the participants.

11 Weatherman typed these from drafts prepared by Re-

spondent’s counsel.

12 Dillon agreed that Respondent has no “secret” papers.

47a

nell Corporation, 212 NLRB 734 (1974); Weyer-

haeuser Company, supra.

It is questionable whether Dillon falls into the

category of “persons who formulate, determine, and

effectuate” labor policies in the conjunctive sense in-

tended by the Board in B. F. Goodrich, supra. While

Spencer testified that Dillon was “responsible . . . for

formulating management policies with regard to labor

relations,” Dillon himself testified that the board of

directors in fact performed that function. While

Spencer testified that determinations of “management

policy concerning interpretations of the labor contract

with the IBEW” were made by Spencer with “the

approval” of Dillon, the latter testified that he had

“no” function in “interpreting the labor contracts and

labor relations among employees.” Dillon further said

that he participated “very little” in contract negotia-

tions, although he would apparently be present at the

meetings. It seems clear from Dillon’s testimony that

he plays a most passive role in labor and employee

relations matters, and this obviously reflects on the

assertedly “confidential” character of Weatherman’s

employment.

Dillon did, however, collect some papers relating to

labor contract negotiations, including copies of the

positions developed by Respondent’s negotiating com-

mittee * and notes taken by. him at negotiations, in

“a file behind [his] desk.” Weatherman has no duties

with respect to these matters, and there is no evi-

dence that she was even aware of thé existence of the

file.'* But assuming that fact, the Board has never

18 These are handed to him directly by Respondent’s counsel.

% Dillon also “kept... at my desk” reports by an executive

committee of the board appointed to consider Hadley’s re-

quest for reinstatement. These also were handed to him by

Respondent’s counsel.

48a

held that potential physical access to confidential

matters is sufficient to characterize an employee as

a confidential.

Early on, the Board noted that the exception ap-

plied to employees “who in the normal performance

of their duties may obtain advance information of

the Company’s position with regard to contract ne-

gotiations, the disposition of grievances, or other la-

bor relations matters.” The Hoover Company, 55

NLRB 13821, 13823 (1944), emphasis supplied. In

The Santa Fe Trail Transportation Company, 119

NLRB 1302, 1804 (1958), the Board refused to ex-

clude the “head file clerk who has charge of files in

the general manager’s office,” and in Hotel E’mploy-

ers Association of San Francisco, 159 NLRB 143,

150 (1966), the Board stated, “Mere access to per-

sonnel records does not qualify an employee as a con-

fidential employee.” Following this line of cases, it

was held in Service Technology Corporation, a Sub-

sidiary of LTV Aerospace Corporation, 196 NLRB

1036, 1041 (1972), that an employee who had “ac-

cess to [the project manager’s] files, including those

relating to personnel matters and such grievances as

might arise,” did not thereby act in a “confidential

capacity” to him. Accord: California Inspection Rat-

ing Bureau, 215 NLRB 780 (1974). The possibility

that Weatherman may have been in a position to

rifle Dillon’s desk no more makes her a confidential

employee than does that same possibility convert the

other nine clericals into confidentials; the fact is that

she did not work with these concealed papers “in the

normal performance of [her] duties.”

Thus, even if Dillon were found to be the sort of

conjunctive manager contemplated in B. F. Goodrich,

it is clear that, as in John Sexton & Co., Division of

49a

Beatrice Foods Co., 224 NLRB 1841 (1976), Weath-

erman’s “duties do not involve her in a confidential

capacity with his responsibilities” with respect to la-

bor policies. Accordingly, I conclude that Weather-

man was not a confidential employee as the Board

defines that term.

Respondent’s final contention is that Weatherman’s

signing of the petition did not constitute Section 7

activity because the petition concerned the plight of

a former employee.”

Respondent relies on Allied Chemical & Alkali

Workers of America, Local Union No. 1 v. Pittsburgh

Plate Glass Co., Chemical Division, et al., 404 U.S.

157 (1971), which held that changes in the benefits

of retired employees are not a mandatory subject of

bargaining. The question of whether retired em-

ployees are statutory “employees” represented by a

union for purposes of Section 8(d) is, however, quite

a different question from whether a petition circu-

lated by active employees for the purpose of seeking

the reemployment of a former colleague constitutes

“concerted activities for the purpose of collective bar-

gaining or other mutual aid or protection” within the

meaning of Section 7.’°

15 Although the record is unclear on this matter, and Hadley

himself could not say exactly what his status was, I assume

here that, as of May 1977, he had been officially removed

from employment with Respondent. Dillon said Hadley

“stop[ped] being an employee” in “approximately” April

1977.

16 Indeed, in Pittsburgh Plate Glass, the Court did not deny

the applicability of the statute to “applicants for employ-

ment” and “persons who have quit or whose employers have

gone out of business”; it distinguished those cases because

they involved individuals “who, unlike the pensioners here,

were members of the active work force available for hire

50a

In any event, the short answer to Respondent’s

argument, as General Counsel points out, is that the

Board has only recently held that circulation of a

petition seeking the reinstatement of a discharged

employee is a protected concerted activity. The

Youngstown Osteopathic Hospital Association, 224

NLRB 574 (1976).

I might also note the longstanding application of

Section 7 to activities engaged in on behalf of non-

employees, N.L.R.B. v. Peter Cailler Kohler Swiss

Chocolates Company, Inc., 180 F.2d 503 (C.A. 2,

1942), and employees in other bargaining units, Sig-

nal Oil and Gas Company, 160 NLRB 644 (1966),

enfd. 390 F.2d 338 (C.A. 9, 1968). These cases turn

on the potential for reciprocal support which the act-

ing employees might bank on in the future. In the

present case, there is the added factor that, in cir-

culating the petition, the signers clearly had in mind

not only Hadley’s welfare but also their own future

well being. The petition states, in part:

It seems that the problem is no one is willing

to speak up or defend what is right if it might

mean jeopardizing one’s own self. As long as

you take care of number one, yourself, no one

else matters. Well, other people do matter and

Lloyd Hadley matters, to us and to many other

people.

+ * * +

You hear much talk today about employees not

wanting to give a full day’s work for a full day’s

and at least in that sense could be identified as employees”

(unlike the case before the Court, involving “individual [s]

who [have] ceased work without expectation of further

employment”). 404 U.S. at 168. But “further employment”

for Hadley was precisely what the petition sought.

5la

pay, and not having any pride in their job; well,

you just lost one that did. But what about the

other side. Doesn’t a company owe any kind of

loyalty to an employee? When an employee gives

you 15 years of work, doing more than his share,

and then almost gives you his life, is this what

he gets in return?

It seems plain that the Hadley case touched a col-

lective nerve which inspired a group of ordinary citi-

zens, who might not be individually “willing to speak

up” because “it might mean jeopardizing one’s own

self,” to boldly band together, finding needed

strength in unity. And, in so uniting, they sought to

arouse in Respondent a “kind of loyalty” which

might not only serve Hadley’s interest but also their

own as well. By sparking some compassion for Had-

ley, the employees might have focused Respondent’s

attention on the need for greater generosity toward

the work force as a whole. By taking up the

cudgels for Hadley, the employees might have moved

Respondent to appraise futv e disability retirement

actions pertaining to themselves more conscientiously

and deliberately. And, by obtaining Hadley’s return

to work and his successful performance thereof, the

employees might have paved the way for their own

return to work in similar circumstances.

In addition, it is reasonable to say that just as an

expressed desire to have members of another racial

group working alongside present employees literally

relates to terms or conditions of employment, N.L.R.B.

v. Tanner Motor Livery, Ltd., 349 F.2d 1, 4 (C.A. 9,

1969); so too did this expression of a wish to have

Hadley returned to the employment roster.

On the foregoing considerations, I conclude that

the discharge of Weatherman on May 9, 1977, vio-

lated Section 8(a) (1) of the Act.

52a

The complaint contains a separate allegation of un-

lawful interrogation. Martha Sellers, a bookkeeper,

credibly testified that, on May 24, she went to Dillon

“to talk to him about some problems in the office and

about some feelings I had.” She expressed the un-

ease of the employees, in view of Weatherman’s dis-

charge, about having signed the petition. Dillon said

the petition “had nothing to do with it” and that, if

she did her job, she need not worry.” Sellers per-

sistently alluded to the petition as the cause of

Weatherman’s discharge, and Dillon told her not to

“mess with management.” After some further dis-

cussion of other matters, Dillon asked “who passed

the letter around and I said we weren’t supposed to

be talking about the letter.” _

Dillon did not testify about this conversation, and

I, credit Sellers. I further conclude that the question

about “who passed the letter around” had a reason-

able tendency to coerce Sellers in the exercise of such

protected activity. It is true that Sellers initiated

the conversation. It is also true that Dillon had at-

tempted to assuage her concern that Weatherman’s

signature on the petition had caused her discharge.

But Sellers had begun the talk by expressing her fear,

and, by pressing the issue, had indicated to Dillon her

continued uncertainty. When, after the discussion had

passed on to other subjects, Dillon reverted to the

matter which concerned Sellers and openly questioned

her about the identify of the chief provocateur, I

cannot imagine that such probing would not reason-

ably have led Sellers to infer an inordinate, and

threatening, management interest in the matter. Her

evasive answer so indicates.

17 Weatherman had filed her charge with the Board on the

same day she was terminated.

53a

I therefore find that Respondent coercively interro-

gated Sellers by the question Dillon posed on May

24, 1977.

CONCLUSIONS OF LAW

1. Hendricks County Rural Electric Membership

Corporation is an employer engaged in commerce

_ within the meaning of Section 2(6) and (7) of the

Act.

2. By discharging Mary M. Weatherman on May

9, 1977, Respondent violated Section 8(a)(1) of the

Act. |

3. By coercively interrogating Martha Sellers on

May 24, 1977, Respondent violated Section 8(a) (1)

of the Act.

4, The aforesaid unfair labor practices affect com-

merce within the meaning of Section 2(6) and (7)

of the Act.

THE REMEDY

Having found that Respondent has violated the Act

by certain unfair labor practices, I shall recommend

that it be required to cease and desist therefrom and

tal:e certain affirmative action necessary to effectuate

the policies of the Act.

I shall recommend that Respondent be required to

offer reinstatement to Mary M. Weatherman, and to

make her whole for any loss of earnings she may

have suffered by reason of her unlawful discharge,

by payment to her of a sum of money equal to that

which she normally would have earned from the date

of discharge to the date of a valid offer of reinstate-

ment, less her net earnings during that period, to be

computed in the manner described in F. W. Wool-

worth Company, 90 NLRB 289 (1950), and Florida

Steel Corporation, 231 NLRB 651 (1977). I shall

54a

also recommend that Respondent post an appropriate

notice.

Upon the foregoing findings of fact and conclusions

of law, the entire record, and pursuant to Section 10

mended:

ORDER *

The Respondent, Hendricks County Rural Electric

Membership Corporation, Danville, Indiana, its of-

ficers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Discharging or taking other adverse action

against any employee in circumstances constituting

interference with, restraint of, or coercion of em-

ployees in the exercise of their rights under Section

7 of the Act.

(b) Coercively interrogating employees about their

protected concerted activities.

ing, or coercing employees in the exercise of the rights

guaranteed in Section 7 of the Act.

2. Take the following affirmative action which is

designed to effectuate the policies of the Act:

(a) Offer to Mary M. Weatherman immediate and

full reinstatement to her former job or, if such job

no longer exists, to a substantially equivalent job, and

18In the event no exceptions are filed as provided by Sec.

102.46 of the Rules and Regulations of the Nationa! Labor

Relations Board, the findings, conclusions, and recommended

Order herein shall, as provided in Sec. 102.48 of the Rules and

Regulations, be adopted by the Board and become its findings,

conclusions, and Order, and all objections thereto shall be

deemed waived for all purposes.

ao~

«>.

55a

make her whole in the manner set forth in the section

of this Decision entitled “‘The Remedy.”

(b) Preserve and, upon request, make available to

the Board or its agents, for examination and copying,

atl payroll records, social security payment records,

timecards, personnel records and reports, and all other

records necessary to analyze the backpay due under

the terms of this recommended Order.

diana, copies of the attached notice marked “Ap-

pendix.” * Copies of said notice, on forms provided

by the Regional Director for Region 25, after being

duly signed by its representative, shall be posted by

Respondent immediately upon receipt thereof, and be

maintained by it for 60 consecutive days thereafter,

in conspicuous places, including all places where no-

tices to employees are customarily posted. Reason-

able steps shall be taken by the Respondent to insure

that said notices are not altered, defaced, or covered

by any other material.

(d) Notify the Regional Director for Region 25, in

writing, within 20 days from the date of this Order,

what steps Respondent has taken to comply herewith.

In the event that this Order is enforced by a Judgment

of a United States Court of Appeals, the words in the notice

reading “Posted by Order of the National Labor Relations

Board” shall read “Posted Pursuant to a Judgment of the

United States Court of Appeals Enforcing an Order of the

National Labor Relations Board.”

56a

APPENDIX F

Opinion by Judge Sprecher

Judge Bonsal dissenting

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

No. 78-2127

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. Robert A. Sprecher, Circuit Judge

Hon. Dudley B. Bonsal, Senior

District Judge*

July 26, 1979

Hendricks County Rural Electric

Membership Corporation, Petitioner

vs.

National Labor Relations Board,

Respondent

Petition for Review of an Order

from the National Labor Relations Board

*The Honorable Dudley B. Bonsal,

Senior District Judge of the Southern

District of New York, is sitting by

designation.

57a

This cause came on to be heard on

the transcript of the record from

the National Labor Relations Board, and

was argued by counsel.

On consideration whereof, it is

ordered and adjudged by this Court that

the order of the National Labor Relations

Board in this cause be, and the same is

hereby, REVERSED, with costs, and

REMANDED, in accordance with the opinion

of this Court filed this date.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.