1. Did Hendricks argue before the Supreme Court that all employees who may have access to confidential business information are impliedly excluded from the definition of “employee” in Section 2(3)?
2. What is the Board’s labor-nexus test?
3. What is the Board’s rationale for excluding from bargaining units certain confidential employees under its labor-nexus test?
4. Was Congress under the impression that the NLRA did not cover confidential employees when it passed the Taft-Hartley Act in 1947?

[Mary Weatherman was the personal secretary to the general manager and chief executive of Hendricks County Rural Electric Membership Corporation (Hendricks). She had been employed by the cooperative for nine years. In May 1977, she signed a petition seeking reinstatement of a close friend and fellow employee who had lost his arm in the course of employment with Hendricks and had been dismissed. Several days later she was discharged. Weatherman filed an unfair labor practice charge with the NLRB, alleging that the discharge violated Section 8(a)(1) of the Act. Hendricks’s defense was that Weatherman was denied the Act’s protection because as a “confidential” secretary, she was implicitly excluded from the Act’s definition of “employee” in Section 2(3). The administrative law judge rejected this argument. He noted that the Board’s decisions had excluded from bargaining units only those “confidential employees … who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.” Applying this “labor-nexus” text, the ALJ found that Weatherman was not such a “confidential employee.” He also determined that Hendricks had discharged Weatherman for activity—signing the petition—protected by Section 7 of the Act. The ALJ thus sustained Weatherman’s unfair labor practice charge. The Board affirmed and ordered that Weatherman be reinstated with back pay. The U.S. Court of Appeals for the Second Circuit denied enforcement of the Board’s order. The Supreme Court granted certiorari.]

BRENNAN, J.…

Section 2(3) of the NLRA provides that the “term ‘employee’ shall include any employee…” (emphasis added), with certain stated exceptions such as “agricultural laborers,” “supervisors” as defined in § 2 (11), and “independent contractors.” Under a literal reading of the phrase “any employee,” then, the workers in question are “employees.” But for over 40 years, the NLRB, while rejecting any claim that the definition of “employee” in § 2(3) excludes confidential employees, has excluded from the collective bargaining units determined under the Act those confidential employees satisfying the Board’s labor-nexus test. Respondents argue that contrary to the Board’s practice, all employees who may have access to confidential business information are impliedly excluded from the definition of employee in § 2(3)….

In 1935 the Wagner Act became law. The Act’s broad objectives were to “encourag[e] the practice and procedure of collective bargaining and … protec[t] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” The employees covered by the Act were defined in § 2(3): “The term ‘employee’ shall include any employee … 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.” Although the Act’s express exclusions did not embrace confidential employees, the Board was soon faced with the argument that all individuals who had access to confidential information of their employers should be excluded, as a policy matter, from the definition of “employee.” The Board rejected such an implied exclusion, finding it to have “no warrant under the Act.” But in fulfilling its statutory obligation to determine appropriate bargaining units under § 9 of the Act, for which broad discretion has been vested in the Board, the Board adopted special treatment for the narrow group of employees with access to confidential, labor-relations information of the employer. The Board excluded these individuals from bargaining units composed of rank-and-file workers. The Board’s rationale was that “management should not be required to handle labor relations matters through employees who are represented by the union with which the [c]ompany is required to deal and who in the normal performance of their duties may obtain advance information of the [c]ompany’s position with regard to contract negotiations, the disposition of grievances, and other labor relations matters.” Hoover Co., 55 NLRB 1321, 1323 (1944)….