1 HENDRICKS COUNTY Key Points Labor Nexus Test – Meaning - ees with a relationship to LR function not covered – Rationale - avoid conflicts of interest in labor relations (adversarial assumption) Authority of Board to interpret NLRA where it is silent or ambiguous –Legislative function of Board? “Legislative History” as a means of legal analysis Scope of “protected activity” under Sec. 7

2 Legislative History Majority (Brennan w/ White, Marshall, Blackmun, Stevens –Because House version of T-H would have excluded all confidential employees, and Senate version did not, and conference adopted Senate version, Board’s pre T-H interpretation holds –Statutory Interpretation Dissent (Powell w/ Burger, Rehnquist, O’Connor) –Conferees understood that all confidential employees excluded. –Basic principles of Act Line between labor and management

3 “In sum, our review of the Board's decisions indicates that the Board has never followed a practice of depriving all employees who have access to confidential business information from the full panoply of rights afforded by the Act. Rather, for over 40 years, the Board, while declining to create any implied exclusion from the definition of "employee" for confidential employees, has applied a labor-nexus test in identifying those employees who should be excluded from bargaining units (emphasis added) because of access to confidential business information. We cannot ignore this consistent, longstanding interpretation of the NLRA by the Board. ” (454 U.S. 170, )

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