6 Due Process and Not 6 Due Process and Not

6.1 Universal Camera Corp. v. NLRB 6.1 Universal Camera Corp. v. NLRB

340 U.S. 474 (1951)

UNIVERSAL CAMERA CORP.
v.
NATIONAL LABOR RELATIONS BOARD.

No. 40.

Supreme Court of United States.

Argued November 6-7, 1950.
Decided February 26, 1951.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

[475] By special leave of Court, Frederick R. Livingston, pro hac vice, argued the cause for petitioner. With him on the brief was James S. Hays.

[476] Mozart G. Ratner argued the cause for respondent. With him on the brief were Solicitor General Perlman, David P. Findling and Bernard Dunau.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The essential issue raised by this case and its companion, Labor Board v. Pittsburgh Steamship Co., post, p. 498, is the effect of the Administrative Procedure Act and the legislation colloquially known as the Taft-Hartley Act on the duty of Courts of Appeals when called upon to review orders of the National Labor Relations Board.

The Court of Appeals for the Second Circuit granted enforcement of an order directing, in the main, that petitioner reinstate with back pay an employee found to have been discharged because he gave testimony under the Wagner Act and cease and desist from discriminating against any employee who files charges or gives testimony under that Act. The court below, Judge Swan dissenting, decreed full enforcement of the order. 179 F. 2d 749. Because the views of that court regarding the effect of the new legislation on the relation between the Board and the Courts of Appeals in the enforcement of the Board's orders conflicted with those of the Court of Appeals for the Sixth Circuit[1] we brought both cases here. 339 U. S. 951 and 339 U. S. 962. The clash of opinion obviously required settlement by this Court.

[477] I.

Want of certainty in judicial review of Labor Board decisions partly reflects the intractability of any formula to furnish definiteness of content for all the impalpable factors involved in judicial review. But in part doubts as to the nature of the reviewing power and uncertainties in its application derive from history, and to that extent an elucidation of this history may clear them away.

The Wagner Act provided: "The findings of the Board as to the facts, if supported by evidence, shall be conclusive." Act of July 5, 1935, § 10 (e), 49 Stat. 449, 454, 29 U. S. C. § 160 (e). This Court read "evidence" to mean "substantial evidence," Washington, V. & M. Coach Co. v. Labor Board, 301 U. S. 142, and we said that "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229. Accordingly, it "must do more than create a suspicion of the existence of the fact to be established. . . . it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300.

The very smoothness of the "substantial evidence" formula as the standard for reviewing the evidentiary validity of the Board's findings established its currency. But the inevitably variant applications of the standard to conflicting evidence soon brought contrariety of views and in due course bred criticism. Even though the whole record may have been canvassed in order to determine whether the evidentiary foundation of a determination by the Board was "substantial," the phrasing of this Court's process of review readily lent itself to the notion [478] that it was enough that the evidence supporting the Board's result was "substantial" when considered by itself. It is fair to say that by imperceptible steps regard for the fact-finding function of the Board led to the assumption that the requirements of the Wagner Act were met when the reviewing court could find in the record evidence which, when viewed in isolation, substantiated the Board's findings. Compare Labor Board v. Waterman Steamship Corp., 309 U. S. 206; Labor Board v. Bradford Dyeing Assn., 310 U. S. 318; and see Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105. This is not to say that every member of this Court was consciously guided by this view or that the Court ever explicitly avowed this practice as doctrine. What matters is that the belief justifiably arose that the Court had so construed the obligation to review.[2]

Criticism of so contracted a reviewing power reinforced dissatisfaction felt in various quarters with the Board's administration of the Wagner Act in the years preceding the war. The scheme of the Act was attacked as an inherently unfair fusion of the functions of prosecutor and judge.[3] Accusations of partisan bias were not wanting.[4] The "irresponsible admission and weighing of hearsay, opinion, and emotional speculation in place of factual evidence" was said to be a "serious menace."[5] No doubt [479] some, perhaps even much, of the criticism was baseless and some surely was reckless.[6] What is here relevant, however, is the climate of opinion thereby generated and its effect on Congress. Protests against "shocking injustices"[7] and intimations of judicial "abdication"[8] with which some courts granted enforcement of the Board's orders stimulated pressures for legislative relief from alleged administrative excesses.

The strength of these pressures was reflected in the passage in 1940 of the Walter-Logan Bill. It was vetoed by President Roosevelt, partly because it imposed unduly rigid limitations on the administrative process, and partly because of the investigation into the actual operation of the administrative process then being conducted by an experienced committee appointed by the Attorney General.[9] It is worth noting that despite its aim to tighten control over administrative determinations of fact, the Walter-Logan Bill contented itself with the conventional formula that an agency's decision could be set aside if "the findings of fact are not supported by substantial evidence."[10]

[480] The final report of the Attorney General's Committee was submitted in January, 1941. The majority concluded that "[d]issatisfaction with the existing standards as to the scope of judicial review derives largely from dissatisfaction with the fact-finding procedures now employed by the administrative bodies."[11] Departure from the "substantial evidence" test, it thought, would either create unnecessary uncertainty or transfer to courts the responsibility for ascertaining and assaying matters the significance of which lies outside judicial competence. Accordingly, it recommended against legislation embodying a general scheme of judicial review.[12]

[481] Three members of the Committee registered a dissent. Their view was that the "present system or lack of system of judicial review" led to inconsistency and uncertainty. They reported that under a "prevalent" interpretation of the "substantial evidence" rule "if what is called `substantial evidence' is found anywhere in the record to support conclusions of fact, the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate—unless indeed the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case and, if they find any evidence there, the administrative action is to be sustained and the record to the contrary is to be ignored."[13] Their view led them to recommend that Congress enact principles of review applicable to all agencies not excepted by unique characteristics. One of these principles was expressed by the formula that judicial review could extend to "findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence."[14] So far as the [482] history of this movement for enlarged review reveals, the phrase "upon the whole record" makes its first appearance in this recommendation of the minority of the Attorney General's Committee. This evidence of the close relationship between the phrase and the criticism out of which it arose is important, for the substance of this formula for judicial review found its way into the statute books when Congress with unquestioning—we might even say uncritical—unanimity enacted the Administrative Procedure Act.[15]

[483] One is tempted to say "uncritical" because the legislative history of that Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will. On the one hand, the sponsors of the legislation indicated that they were reaffirming the prevailing "substantial evidence" test.[16] But with equal clarity they expressed disapproval of the manner in which the courts were applying [484] their own standard. The committee reports of both houses refer to the practice of agencies to rely upon "suspicion, surmise, implications, or plainly incredible evidence," and indicate that courts are to exact higher standards "in the exercise of their independent judgment" and on consideration of "the whole record."[17]

Similar dissatisfaction with too restricted application of the "substantial evidence" test is reflected in the legislative history of the Taft-Hartley Act.[18] The bill as reported to the House provided that the "findings of the Board as to the facts shall be conclusive unless it is made to appear to the satisfaction of the court either (1) that the findings of fact are against the manifest weight of the [485] evidence, or (2) that the findings of fact are not supported by substantial evidence."[19] The bill left the House with this provision. Early committee prints in the Senate provided for review by "weight of the evidence" or "clearly erroneous" standards.[20] But, as the Senate Committee Report relates, "it was finally decided to conform the statute to the corresponding section of the Administrative Procedure Act where the substantial evidence test prevails. In order to clarify any ambiguity in that statute, however, the committee inserted the words `questions of fact, if supported by substantial evidence on the record considered as a whole . . . .' "[21]

This phraseology was adopted by the Senate. The House conferees agreed. They reported to the House: "It is believed that the provisions of the conference agreement [486] relating to the courts' reviewing power will be adequate to preclude such decisions as those in N. L. R. B. v. Nevada Consol. Copper Corp. (316 U. S. 105) and in the Wilson, Columbia Products, Union Pacific Stages, Hearst, Republic Aviation, and Le Tourneau, etc. cases, supra, without unduly burdening the courts."[22] The Senate version became the law.

[487] It is fair to say that in all this Congress expressed a mood. And it expressed its mood not merely by oratory but by legislation. As legislation that mood must be respected, even though it can only serve as a standard for judgment and not as a body of rigid rules assuring sameness of application. Enforcement of such broad standards implies subtlety of mind and solidity of judgment. But it is not for us to question that Congress may assume such qualities in the federal judiciary.

From the legislative story we have summarized, two concrete conclusions do emerge. One is the identity of aim of the Administrative Procedure Act and the Taft-Hartley Act regarding the proof with which the Labor Board must support a decision. The other is that now Congress has left no room for doubt as to the kind of scrutiny which a Court of Appeals must give the record before the Board to satisfy itself that the Board's order rests on adequate proof.

It would be mischievous word-playing to find that the scope of review under the Taft-Hartley Act is any different from that under the Administrative Procedure Act. The Senate Committee which reported the review clause of the Taft-Hartley Act expressly indicated that the two standards were to conform in this regard, and the wording of the two Acts is for purposes of judicial administration identical. And so we hold that the standard of proof specifically required of the Labor Board by the Taft-Hartley Act is the same as that to be exacted by courts reviewing every administrative action subject to the Administrative Procedure Act.

Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation [488] definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. Committee reports and the adoption in the Administrative Procedure Act of the minority views of the Attorney General's Committee demonstrate that to enjoin such a duty on the reviewing court was one of the important purposes of the movement which eventuated in that enactment.

To be sure, the requirement for canvassing "the whole record" in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.

There remains, then, the question whether enactment of these two statutes has altered the scope of review other than to require that substantiality be determined in the light of all that the record relevantly presents. A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. [489] Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character and the constant play of an informed professional critique upon its work.

Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment. The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms.

Whatever changes were made by the Administrative Procedure and Taft-Hartley Acts are clearly within this area where precise definition is impossible. Retention of the familiar "substantial evidence" terminology indicates that no drastic reversal of attitude was intended.

But a standard leaving an unavoidable margin for individual judgment does not leave the judicial judgment at large even though the phrasing of the standard does not wholly fence it in. The legislative history of these Acts demonstrates a purpose to impose on courts a responsibility which has not always been recognized. Of course it is a statute and not a committee report which we are interpreting. But the fair interpretation of a statute is often "the art of proliferating a purpose," Brooklyn National Corp. v. Commissioner, 157 F. 2d 450, 451, revealed more by the demonstrable forces that produced it than by its precise phrasing. The adoption in these statutes of the judicially-constructed "substantial evidence" test was a response to pressures for stricter and more uniform practice, not a reflection of approval of all existing practices. [490] To find the change so elusive that it cannot be precisely defined does not mean it may be ignored. We should fail in our duty to effectuate the will of Congress if we denied recognition to expressed Congressional disapproval of the finality accorded to Labor Board findings by some decisions of this and lower courts, or even of the atmosphere which may have favored those decisions.

We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.

From this it follows that enactment of these statutes does not require every Court of Appeals to alter its practice. Some—perhaps a majority—have always applied the attitude reflected in this legislation. To explore whether a particular court should or should not alter its practice would only divert attention from the application of the standard now prescribed to a futile inquiry into the nature of the test formerly used by a particular court.

Our power to review the correctness of application of the present standard ought seldom to be called into action. [491] Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.

II.

Our disagreement with the view of the court below that the scope of review of Labor Board decisions is unaltered by recent legislation does not of itself, as we have noted, require reversal of its decision. The court may have applied a standard of review which satisfies the present Congressional requirement.

The decision of the Court of Appeals is assailed on two grounds. It is said (1) that the court erred in holding that it was barred from taking into account the report of the examiner on questions of fact insofar as that report was rejected by the Board, and (2) that the Board's order was not supported by substantial evidence on the record considered as a whole, even apart from the validity of the court's refusal to consider the rejected portions of the examiner's report.

The latter contention is easily met. It is true that two of the earlier decisions of the court below were among those disapproved by Congress.[23] But this disapproval, we have seen, may well have been caused by unintended intimations of judicial phrasing. And in any event, it is clear from the court's opinion in this case that it in fact did consider the "record as a whole," and did not deem itself merely the judicial echo of the Board's conclusion. The testimony of the company's witnesses was inconsistent, and there was clear evidence that the complaining [492] employee had been discharged by an officer who was at one time influenced against him because of his appearance at the Board hearing. On such a record we could not say that it would be error to grant enforcement.

The first contention, however, raises serious questions to which we now turn.

III.

The Court of Appeals deemed itself bound by the Board's rejection of the examiner's findings because the court considered these findings not "as unassailable as a master's."[24] 179 F. 2d at 752. They are not. Section 10 (c) of the Labor Management Relations Act provides that "if upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact . . . ." 61 Stat. 147, 29 U. S. C. (Supp. III) § 160 (c). The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner's findings only when they are "clearly erroneous." Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required.

The Court of Appeals concluded from this premise "that, although the Board would be wrong in totally disregarding his findings, it is practically impossible for a [493] court, upon review of those findings which the Board itself substitutes, to consider the Board's reversal as a factor in the court's own decision. This we say, because we cannot find any middle ground between doing that and treating such a reversal as error, whenever it would be such, if done by a judge to a master in equity." 179 F. 2d at 753. Much as we respect the logical acumen of the Chief Judge of the Court of Appeals, we do not find ourselves pinioned between the horns of his dilemma.

We are aware that to give the examiner's findings less finality than a master's and yet entitle them to consideration in striking the account, is to introduce another and an unruly factor into the judgmatical process of review. But we ought not to fashion an exclusionary rule merely to reduce the number of imponderables to be considered by reviewing courts.

The Taft-Hartley Act provides that "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 61 Stat. 148, 29 U. S. C. (Supp. III) § 160 (e). Surely an examiner's report is as much a part of the record as the complaint or the testimony. According to the Administrative Procedure Act, "All decisions (including initial, recommended, or tentative decisions) shall become a part of the record . . . ." § 8 (b), 60 Stat. 242, 5 U. S. C. § 1007 (b). We found that this Act's provision for judicial review has the same meaning as that in the Taft-Hartley Act. The similarity of the two statutes in language and purpose also requires that the definition of "record" found in the Administrative Procedure Act be construed to be applicable as well to the term "record" as used in the Taft-Hartley Act.

It is therefore difficult to escape the conclusion that the plain language of the statutes directs a reviewing court to determine the substantiality of evidence on the record including the examiner's report. The conclusion [494] is confirmed by the indications in the legislative history that enhancement of the status and function of the trial examiner was one of the important purposes of the movement for administrative reform.

This aim was set forth by the Attorney General's Committee on Administrative Procedure:

"In general, the relationship upon appeal between the hearing commissioner and the agency ought to a considerable extent to be that of trial court to appellate court. Conclusions, interpretations, law, and policy should, of course, be open to full review. On the other hand, on matters which the hearing commissioner, having heard the evidence and seen the witnesses, is best qualified to decide, the agency should be reluctant to disturb his findings unless error is clearly shown."[25]

Apparently it was the Committee's opinion that these recommendations should not be obligatory. For the bill which accompanied the Final Report required only that hearing officers make an initial decision which would become final in the absence of further agency action, and that agencies which differed on the facts from their examiners give reasons and record citations supporting their conclusion.[26] This proposal was further moderated by the Administrative Procedure Act. It permits agencies to use examiners to record testimony but not to evaluate it, and contains the rather obscure provision that an agency which reviews an examiner's report has "all the powers which it would have in making the initial decision."[27]

[495] But this refusal to make mandatory the recommendations of the Attorney General's Committee should not be construed as a repudiation of them. Nothing in the statutes suggests that the Labor Board should not be influenced by the examiner's opportunity to observe the witnesses he hears and sees and the Board does not. Nothing suggests that reviewing courts should not give to the examiner's report such probative force as it intrinsically commands. To the contrary, § 11 of the Administrative Procedure Act contains detailed provisions designed to maintain high standards of independence and competence in examiners. Section 10 (c) of the Labor Management Relations Act requires that examiners "shall issue . . . a proposed report, together with a recommended order." Both statutes thus evince a purpose to increase the importance of the role of examiners in the administrative process. High standards of public administration counsel that we attribute to the Labor Board's examiners both due regard for the responsibility which Congress imposes on them and the competence to discharge it.[28]

[496] The committee reports also make it clear that the sponsors of the legislation thought the statutes gave significance to the findings of examiners. Thus, the Senate Committee responsible for the Administrative Procedure Act explained in its report that examiners' decisions "would be of consequence, for example, to the extent that material facts in any case depend on the determination of credibility of witnesses as shown by their demeanor or conduct at the hearing."[29] The House Report reflects the same attitude;[30] and the Senate Committee Report on the Taft-Hartley Act likewise indicates regard for the responsibility devolving on the examiner.[31]

We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve. The "substantial evidence" standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult [497] than to heed the other factors which in sum determine whether evidence is "substantial."

The direction in which the law moves is often a guide for decision of particular cases, and here it serves to confirm our conclusion. However halting its progress, the trend in litigation is toward a rational inquiry into truth, in which the tribunal considers everything "logically probative of some matter requiring to be proved." Thayer, A Preliminary Treatise on Evidence, 530; Funk v. United States, 290 U. S. 371. This Court has refused to accept assumptions of fact which are demonstrably false, United States v. Provident Trust Co., 291 U. S. 272, even when agreed to by the parties, Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281. Machinery for discovery of evidence has been strengthened; the boundaries of judicial notice have been slowly but perceptibly enlarged. It would reverse this process for courts to deny examiners' findings the probative force they would have in the conduct of affairs outside a courtroom.

We therefore remand the cause to the Court of Appeals. On reconsideration of the record it should accord the findings of the trial examiner the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board's order is substantial. But the court need not limit its reexamination of the case to the effect of that report on its decision. We leave it free to grant or deny enforcement as it thinks the principles expressed in this opinion dictate.

Judgment vacated and cause remanded.

MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS concur with parts I and II of this opinion but as to part III agree with the opinion of the court below, 179 F. 2d 749, 753.

[1] Labor Board v. Pittsburgh Steamship Co., 180 F. 2d 731, affirmed, post, p. 498. The Courts of Appeals of five circuits have agreed with the Court of Appeals for the Second Circuit that no material change was made in the reviewing power. Eastern Coal Corp. v. Labor Board, 176 F. 2d 131, 134-136 (C. A. 4th Cir.); Labor Board v. La Salle Steel Co., 178 F. 2d 829, 833-834 (C. A. 7th Cir.); Labor Board v. Minnesota Mining & Mfg. Co., 179 F. 2d 323, 325-326 (C. A. 8th Cir.); Labor Board v. Continental Oil Co., 179 F. 2d 552, 555 (C. A. 10th Cir.); Labor Board v. Booker, 180 F. 2d 727, 729 (C. A. 5th Cir.); but see Labor Board v. Caroline Mills, Inc., 167 F. 2d 212, 213 (C. A. 5th Cir.).

[2] See the testimony of Dean Stason before the Subcommittee of the Senate Committee on the Judiciary in 1941. Hearings on S. 674, 77th Cong., 1st Sess. 1355-1360.

[3] See, for example, the remarks of Laird Bell, then Chairman of the Committee on Administrative Law of the Chicago Bar Association, writing in 1940 in the American Bar Association Journal. 26 A. B. A. J. 552.

[4] See Gall, The Current Labor Problem: The View of Industry, 27 Iowa L. Rev. 381, 382.

[5] This charge was made by the majority of the Special Committee of the House appointed in 1939 to investigate the National Labor Relations Board. H. R. Rep. No. 1902, 76th Cong., 3d Sess. 76.

[6] Professor Gellhorn and Mr. Linfield reached the conclusion in 1939 after an extended investigation that "the denunciations find no support in fact." Gellhorn and Linfield, Politics and Labor Relations, 39 Col. L. Rev. 339, 394. See also Millis and Brown, From the Wagner Act to Taft-Hartley, 66-75.

[7] Wilson & Co. v. Labor Board, 126 F. 2d 114, 117.

[8] In Labor Board v. Standard Oil Co., 138 F. 2d 885, 887, Judge Learned Hand said, "We understand the law to be that the decision of the Board upon that issue is for all practical purposes not open to us at all; certainly not after we have once decided that there was `substantial' evidence that the `disestablished' union was immediately preceded by a period during which there was a `dominated' union. . . .

"[W]e recognize how momentous may be such an abdication of any power of review . . . ."

[9] 86 Cong. Rec. 13942-13943, reprinted as H. R. Doc. No. 986, 76th Cong., 3d Sess.

[10] S. 915, H. R. 6324, 76th Cong., 1st Sess., § 5 (a).

[11] Final Report, 92.

[12] Referring to proposals to enlarge the scope of review to permit inquiry whether the findings are supported by the weight of the evidence, the majority said:

"Assuming that such a change may be desirable with respect to special administrative determinations, there is serious objection to its adoption for general application.

"In the first place there is the question of how much change, if any, the amendment would produce. The respect that courts have for the judgments of specialized tribunals which have carefully considered the problems and the evidence cannot be legislated away. The line between `substantial evidence' and `weight of evidence' is not easily drawn—particularly when the court is confined to a written record, has a limited amount of time, and has no opportunity further to question witnesses on testimony which seems hazy or leaves some lingering doubts unanswered. `Substantial evidence' may well be equivalent to the `weight of evidence' when a tribunal in which one has confidence and which had greater opportunities for accurate determination has already so decided.

"In the second place the wisdom of a general change to review of the `weight of evidence' is questionable. If the change would require the courts to determine independently which way the evidence preponderates, administrative tribunals would be turned into little more than media for transmission of the evidence to the courts. It would destroy the values of adjudication of fact by experts or specialists in the field involved. It would divide the responsibility for administrative adjudications." Final Report, 91-92.

[13] Id., 210-211.

[14] The minority enumerated four "existing deficiencies" in judicial review. These were (1) "the haphazard, uncertain, and variable results of the present system or lack of system of judicial review," (2) the interpretation permitting substantiality to be determined without taking into account conflicting evidence, (3) the failure of existing formulas "to take account of differences between the various types of fact determinations," and (4) the practice of determining standards of review by "case-to-case procedure of the courts." They recommended that

"Until Congress finds it practicable to examine into the situation of particular agencies, it should provide more definitely by general legislation for both the availability and scope of judicial review in order to reduce uncertainty and variability. As the Committee recognizes in its report, there are several principal subjects of judicial review— including constitutional questions, statutory interpretation, procedure, and the support of findings of fact by adequate evidence. The last of these should, obviously we think, mean support of all findings of fact, including inferences and conclusion of fact, upon the whole record. Such a legislative provision should, however, be qualified by a direction to the courts to respect the experience, technical competence, specialized knowledge, and discretionary authority of each agency. We have framed such a provision in the appendix to this statement." Id., 210-212.

The text of the recommended provision is as follows:

"(e) Scope of review.—As to the findings, conclusions, and decisions in any case, the reviewing court, regardless of the form of the review proceeding, shall consider and decide so far as necessary to its decision and where raised by the parties, all relevant questions of: (1) constitutional right, power, privilege, or immunity; (2) the statutory authority or jurisdiction of the agency; (3) the lawfulness and adequacy of procedure; (4) findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence; and (5) administrative action otherwise arbitrary or capricious. Provided, however, That upon such review due weight shall be accorded the experience, technical competence, specialized knowledge, and legislative policy of the agency involved as well as the discretionary authority conferred upon it." Id., 246-247.

[15] 60 Stat. 237, 5 U. S. C. § 1001 et seq. The form finally adopted reads as follows:

"SEC. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion—

.....

"(e) SCOPE OF REVIEW.—So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error." 60 Stat. 243-244, 5 U. S. C. § 1009 (e). (Italics ours.)

In the form in which the bill was originally presented to Congress, clause (B) (5) read, "unsupported by competent, material, and substantial evidence upon the whole agency record as reviewed by the court in any case subject to the requirements of sections 7 and 8." H. R. 1203, 79th Cong., 1st Sess., quoted in S. Doc. No. 248, 79th Cong., 2d Sess. 155, 160. References to competency and materiality of evidence were deleted and the final sentence added by the Senate Committee. S. Rep. No. 752, 79th Cong., 1st Sess. 28; S. Doc. No. 248, supra, 39-40, 214. No reason was given for the deletion.

[16] A statement of the Attorney General appended to the Senate Report explained that the bill "is intended to embody the law as declared, for example, in Consolidated Edison Co. v. National Labor Relations Board (305 U. S. 197)." Section 10 (e) of Appendix B to S. Rep. No. 752, supra, reprinted in S. Doc. No. 248, supra, 230. Mr. McFarland, then Chairman of the American Bar Association Committee on Administrative Law, testified before the House Judiciary Committee to the same effect. Id., 85-86.

[17] The following quotation from the report of the Senate Judiciary Committee indicates the position of the sponsors. "The `substantial evidence' rule set forth in section 10 (e) is exceedingly important. As a matter of language, substantial evidence would seem to be an adequate expression of law. The difficulty comes about in the practice of agencies to rely upon (and of courts to tacitly approve) something less—to rely upon suspicion, surmise, implications, or plainly incredible evidence. It will be the duty of the courts to determine in the final analysis and in the exercise of their independent judgment, whether on the whole record the evidence in a given instance is sufficiently substantial to support a finding, conclusion, or other agency action as a matter of law. In the first instance, however, it will be the function of the agency to determine the sufficiency of the evidence upon which it acts—and the proper performance of its public duties will require it to undertake this inquiry in a careful and dispassionate manner. Should these objectives of the bill as worded fail, supplemental legislation will be required." S. Rep. No. 752, supra, 30-31. The House Committee Report is to substantially the same effect. H. R. Rep. No. 1980, 79th Cong., 2d Sess. 45. The reports are reprinted in S. Doc. No. 248, supra, 216-217, 279.

See also the response of Senator McCarran in debate, to the effect that the bill changed the "rule" that courts were "powerless to interfere" when there "was no probative evidence." Id., 322. And see the comment of Congressman Springer, a member of the House Judiciary Committee, id., 376.

[18] 61 Stat. 136, 29 U. S. C. (Supp. III) § 141 et seq.

[19] H. R. 3020, 80th Cong., 1st Sess., § 10 (e), reprinted in 1 Legislative History of the Labor Management Relations Act, 1947, p. 71.

[20] The history of the evolution of the Senate provision was given by Senator Morse. 93 Cong. Rec. 5108, reprinted in 2 Legislative History 1504-1505. The prints were not approved by the Committee.

[21] S. Rep. No. 105, 80th Cong., 1st Sess. 26-27, reprinted in 1 Legislative History 432-433. The Committee did not explain what the ambiguity might be; and it is to be noted that the phrase it italicized is indistinguishable in content from the requirement of § 10 (e) of the Administrative Procedure Act that "the court shall review the whole record or such portions thereof as may be cited by any party . . . ."

Senator Taft gave this explanation to the Senate of the meaning of the section: "In the first place, the evidence must be substantial; in the second place, it must still look substantial when viewed in the light of the entire record. That does not go so far as saying that a decision can be reversed on the weight of the evidence. It does not go quite so far as the power given to a circuit court of appeals to review a district-court decision, but it goes a great deal further than the present law, and gives the court greater opportunity to reverse an obviously unjust decision on the part of the National Labor Relations Board." 93 Cong. Rec. 3839, reprinted in 2 Legislative History 1014.

[22] H. R. Rep. No. 510, 80th Cong., 1st Sess. 56, reprinted in 1 Legislative History 560. In Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105, 107, we reversed a judgment refusing to enforce a Board order because "upon an examination of the record we cannot say that the findings of fact of the Board are without support in the evidence." The sufficiency of evidence to support findings of fact is not involved in the three other decisions of this Court to which reference was made. Labor Board v. Hearst Publications, Inc., 322 U. S. 111; Republic Aviation Corp. v. Labor Board and Labor Board v. Le Tourneau Co., 324 U. S. 793. The language used by the court offers a probable explanation for including two of the decisions of Courts of Appeals. In Wilson & Co. v. Labor Board, 126 F. 2d 114, 117, the Court of Appeals for the Seventh Circuit sustained a finding that the employer dominated a company union after stating that it had "recognized (or tried to) that findings must be sustained, even when they are contrary to the great weight of the evidence, and we have ignored, or at least endeavored to ignore, the shocking injustices which such findings, opposed to the overwhelming weight of the evidence, produce." Labor Board v. Columbia Products Corp., 141 F. 2d 687, 688, is a per curiam decision of the Court of Appeals for the Second Circuit sustaining a finding of discriminatory discharge. The court said of the Board's decision on a question of fact, "Though it may strain our credulity, if it does not quite break it down, we must accept it . . . ." The reason for disapproval of Labor Board v. Union Pacific Stages, 99 F. 2d 153, is not apparent. The Court of Appeals for the Ninth Circuit there enforced the portion of the Board's order directing the company to disavow a policy of discrimination against union members, on the ground that there appeared "to be evidence, although disputed," that some company officials had discouraged employees from joining. 99 F. 2d at 179. The bulk of the lengthy opinion, however, is devoted to a discussion of the facts to support the court's conclusion that the Board's findings of discriminatory discharges should not be sustained.

[23] Labor Board v. Standard Oil Co., 138 F. 2d 885; Labor Board v. Columbia Products Corp., 141 F. 2d 687. See notes 8 and 22, supra.

[24] Rule 53 (e) (2), Fed. Rules Civ. Proc., gives finality to the findings of a master unless they are clearly erroneous.

The court's ruling excluding from consideration disagreement between the Board and the examiner was in apparent conflict with the views of three other circuits. Labor Board v. Ohio Calcium Co., 133 F. 2d 721, 724 (C. A. 6th Cir.); A. E. Staley Mfg. Co. v. Labor Board, 117 F. 2d 868, 878 (C. A. 7th Cir.); Wilson & Co. v. Labor Board, 123 F. 2d 411, 418 (C. A. 8th Cir.); cf. International Assn. of Machinists v. Labor Board, 71 App. D. C. 175, 180, 110 F. 2d 29, 34 (C. A. D. C. Cir.).

[25] Final Report, 51.

[26] §§ 308 (1) and 309 (2) of the proposed bill, quoted in Final Report, 200, 201.

[27] § 8 (a), 60 Stat. 242, 5 U. S. C. § 1007 (a). The quoted provision did not appear in the bill in the form in which it was introduced into the Senate. S. 7, 79th Cong., 1st Sess., § 7. It was added by the Senate Judiciary Committee. The Committee published its reasons for modifying the earlier draft, but gave no explanation for this particular change. See S. Doc. No. 248, supra, 32-33. It is likely that the sentence was intended to embody a clause in the draft prepared by the Attorney General's Committee, which provided that on review of a case decided initially by an examiner an agency should have jurisdiction to remand or to "affirm, reverse, modify, or set aside in whole or in part the decision of the hearing commissioner, or itself to make any finding which in its judgment is proper upon the record." § 309 (2), Final Report, 201. The substance of this recommendation was included in bills introduced into the House. H. R. 184, 79th Cong., 1st Sess., § 309 (2), and H. R. 339, 79th Cong., 1st Sess., § 7 (c), both quoted in S. Doc. No. 248, supra, 138, 143.

[28] Salaries of trial examiners range from $7,600 to $10,750 per year. See Appendix to the Budget of the United States Government for the fiscal year ending June 30, 1952, p. 47.

[29] S. Rep. No. 752, supra, 24, reproduced in S. Doc. No. 248, supra, 210.

[30] H. R. Rep. No. 1980, 79th Cong., 2d Sess. 38-39, reprinted in S. Doc. No. 248, supra, 272-273. The House Report added that "In a broad sense the agencies' reviewing powers are to be compared with that of courts under section 10 (e) of the bill." The language of the statute offers no support for this statement.

[31] S. Rep. No. 105, 80th Cong., 1st Sess. 9, quoted in 1 Legislative History of the Labor Management Relations Act, 1947, p. 415.

6.2 NLRB v. Bell Aerospace Co. 6.2 NLRB v. Bell Aerospace Co.

NATIONAL LABOR RELATIONS BOARD v. BELL AEROSPACE COMPANY, DIVISION OF TEXTRON, INC.

No. 72-1598.

Argued January 14, 1974

Decided April 23, 1974

*268Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, Blackmun, and Rehnquist, JJ., joined. White, J., filed an opinion dissenting in part, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 295.

Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, Patrick Hardin, and Linda Sher.

Richard E. Moot argued the cause and filed a brief for respondent.*

Mr. Justice Powell

delivered the opinion of the Court.

This case presents two questions: -first, whether the National Labor Relations Board properly determined *269that all “managerial employees/’ except those whose participation in a labor organization would create a conflict of interest with their job responsibilities, are covered by the National Labor Relations Act;1 and second, whether the Board must proceed by rulemaking rather than by adjudication in determining whether certain buyers are “managerial employees.” We answer both questions in the negative.

I

Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) for a representation election to determine whether the union would be certified as the bargaining representative of the 25 buyers in the purchasing and procurement department at the company’s plant. The company opposed the petition on the ground that the buyers were “managerial’ employees” and thus were not covered by the Act.

The relevant facts adduced at the representation hearing are as follows. The purchasing and procurement department receives requisition orders from other departments at the plant and is responsible for purchasing all of the company’s needs from outside suppliers. Some items are standardized and may be purchased “off the' shelf” from various distributors .and suppliers. Other items must be made to the company’s specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and in some instances the *270buyer must obtain approval before selecting a different one. Where no vendor is specified, the buyer is free to choose-one.

Absent specific instructions to the 'contrary, buyers have full- discretion, without any dollar limit, to select' prospective, vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000, They may place or cancel orders of less than $5,000 on their own signature. ’ On commitments in excess of $5,000, buyers must' obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company’s sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman and signs the purchase order, but a representative from the pricing and negotiation department participates in working out the terms.

After the representation hearing, the Regional Director transferred the case to the Board. On. May 20, .1971, the Board issued its decision holding that the company’s buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N. L. R. B. 431. Relying on its recent decision in North Arkansas Electric Cooperative, Inc., 185 N. L. R. B. 550 (1970), the Board first stated that even though the company’s buyers might be “managerial employees,” 2 they *271were nevertheless covered by the Act and entitled to its protections^ The Board then rejected the company’s alternative contention that representation should be denied because the buyers’ authority to commit the company’s credit/ select vendors, and negotiate purchase prices would create a potential conflict of interest between the buyers as union members and the company. In essence, the company argued that buyers would be more receptive to bids from union contractors and would klso influence “make or buy” decisions in favor of “make,” thus creating additional work for sister unions in the plant. The Board thought, however, that-any possible conflict was “unsupported conjecture” since the buyérs’ “.discretion and latitude for independent action* must take place within the confines of the general directions which the Employer has established” and that “any possible temptation to allow sympathy for sister unions to influence such decisions could effectively be controlled by the Employer.” 190 N. L. R. B., at 431.

On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Board certified the union as the exclusive bargaining representative for the company’s buyers. That same day, ■ however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F. 2d 602, and held that “managerial employees” were not covered by the Act and were therefore not entitled to its protections.3 Ia., at 610.

Encouraged by the Eighth Circuit’s decision, r,he company moved the Board for reconsideration of its earlier *272order. The Board denied the motion, 196 N. L. R. B. 827 (1972), stating that it disagreed with the Eighth Circuit and. would adhere to its'own decision in North Arkansas'. In the. Board’s view, Congress intended to excludé from the Act only those “managerial employees” associated with the “formulation and implementation of labor relations policies.” Id., at 828. In each case, the “fundamental touchstone” was “whether the duties and responsibilities of any managerial employee or group of managerial employees do or do not include determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization.” Ibid. Turning to the present case, the Board reiterated,its prior finding that the company had not shown that union organization of its buyers would create a conflict of interest in labor relations.

The company stood by its contention that the buyers, as “managerial employees,” were not covered by the Act and refused to bargain .with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated §§ 8 (a) (5) and (1) of the Act, 29 U. S. C. §§ 158 (a)(5) and (1), and an order compelling the company to bargain with the union. 197 N. L. R. B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second .Circuit for review" of the order and the Board cross-petitioned for enforcement:

The Court of Appeals denied enforcement. 475 F. 2d 485 (1973). After reviewing the legislative history'of the. Taft-Hartley Act of 1947, 61 Stat. 136, and the Board’s decisions in this area, the court concluded that Congress had intended to exclude all true “managerial employees” from the protection of the Act. . It explained *273that this “exclusion embraced not only an employee ‘so closely related to or aligned with management as to pla,ce the employee in a position of conflict of interest between his employer on the one hand and his fellow workers on the other’ but also one who is ‘formulating, determining and effectuating his employer’s policies or has discretion, independent of an employer’s established policy, in the performance of his duties,’ Illinois State Journal-Register, Inc. v. NLRB, 412 F. 2d 37, 41 (7 Cir. 1969).” 475 F. 2d, at 494. The court added, however, that “the Board would [not] be precluded, on proper proceedings, from determining that buyers, or some types of buyers, are not true ‘managerial employees’ and consequently come within the protection of § 8 (a)(5) and (1).” Ibid.

Turning to the merits of the present case, the court acknowledged that there was substantial evidence that the company’s buyers were not sufficiently high in the managerial hierarchy to constitute true “managerial employees.” Nevertheless, the court denied enforcement for two reasons. First, it was not certain that the Board’s decision rested on a factual determination that these buyers' were not true “managerial employees” rather than .on “its new, and in our view, erroneous holding that it- was free to regard all managerial employees as covered by the Act unless their duties met” the conflict-of-interest touchstone. Id., a.t .494-495. Second, although the Board was not precluded from holding that buyers, or softie types of buyers, were not “managerial employees,” the court thought that, in view of the Board’s long line of cases holding the contrary, it could not accomplish this change of position by adjudication. Rather, the Board should conduct a rulemaking proceeding in, conformity with § 6 of the Act, 29 U. S. C. § 156.1 The court therefore remanded the case to the Board for such a proceeding.

*274We granted the. Board’s petition for certiorari. 414 U. S. 816.

II

We begin with the question whether all “managerial employees,” rather than just those in positions susceptible to. conflicts of interest in labor relations, are excluded from the protections of the Act.4 The Board’s early decisions, the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and subsequent Board and court decisions provide the necessary guidance for our inquiry. In examining these authorities, we draw on several established principles of statutory construction. In addition to the importance of legislative history, a court may *275accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration.5 This is especially so where Congress has re-enacted the statute without pertinent change.6 In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.7 We have also recognized that subsequent legislation declaring the intent of an earlier, statute is entitled to significant weight.8 Application of these principles-leads us to conclude, as did the Court of Appeals, that Congress intended to exclude from the protections of the Act all employees properly classified as “managerial.”

A

The Wagner Act, 49 Stat. 449, did not expressly mention the term “managerial employee.” After the Act’s passage, however, the Board developed the concept of “managerial employee” in a series of cases involving the appropriateness'of bargaining units. The first cases established that “managerial employees” were not to be included in a unit with rank-and-file employees. In *276Freiz & Sons, 47 N. L. R. B. 43, 47 (1943), for example, the Board excluded expediters from a proposed ■ unit of production and maintenance workers because they were “closely related to the management.” Similarly, in Spicer Mfg. Corp., 55 N. L. R. B. 1491, 1498 (1944), expediters were again excluded from a unit containing office, technical, clerical, and professional employees because “the authority possessed by [the expediters] to exercise their discretion in making commitments on behalf of the Company stamps them as. managerial.” This rationale was soon applied to buyers. See, e. g., Hudson Motor Car Co., 55 N. L. R. B. 509, 512 (1944); Vulcan Corp., 58 N. L. R. B. 733, 736 (1944); Barrett Division, Allied Chem. & Dye Corp., 65 N. L. R. B. 903, 905 (1946); Electric Controller & Mfg. Co., 69 N L. R. B. 1242, 1245-1246 (1946). The Board summarized its policy on “managerial employees” in Ford Motor Co., 66 N. L. R. B. 1317, 1322 (1946):

“We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine and effectuate management policies. These employees we have considered and still deem to be ‘managerial/ in that they express and make operative the decisions of management.”

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

“This is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act. The precise relationship of the buyers and expediters to management here is not now being determined by us.”

- During this period the Board’s policy with respect to the related but narrower category of “supervisory employees” manifested a progressive uncertainty. The Board first excluded supervisors from units of rank-and-file employees, e. g., Mueller Brass Co., 39 N. L. R. B. 167, 171 (1942), but in Union Collieries Coal Co., 41 N. L. R. B. 961, supplemental decision, 44 N. L. R. B. 165. (1942), it certified a separate unit composed of supervisors who were to be represented by an independent union. Shortly thereafter, in Godchaux Sugars, Inc., 44 N. L. R. B. 874 (1942), the Board approved a unit of supervisors whose union was affiliated with a union of rank-and-file employees. This trend was soon halted, however, by Maryland Drydock Co., 49 N. L. R. B. 733 (1943), where the Board held that supervisors, although literally “employees” under the Act, could not be organized in any unit. And in Yale & Towne Mfg. Co., 60 N. L. R. B. 626, 628-629 (1945), the Board further held that timestudy men, whose “ ‘interests and functions’ ” were “ ‘sufficiently akin to those of management,’ ” should neither be included in a unit with other-employees, nor be established as a separate unit.”

Maryland Drydock, supra, was subsequently overruled in Packard Motor Car Co., 61 N. L. R. B. 4, 64 N. L. R. B. 1212 (1945), where the Board held that foremen could constitute an appropriate unit for collective bargaining. The Board’s position was upheld 5^1 by this Court in *278Packard Co. v. NLRB, 330 U. S. 485 (1947). In view of the subsequent legislative reversal of the Packard decision, the dissenting opinion of Mr. Justice Douglas is especially pertinent. Id., at 493. He stated:

“The present decision . . . tends to obliterate the line between .management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor but the operating'group , on
the one hand and the stockholder and bondholder group on the other. The industrial problem as so defined comes down to a contest over a fair division of the gross receipts of industry between these two groups. The struggle for control or . power between ■management and labor becomes secondary to a growing unity in their common demands on ownership.
“I do not believe this is an exaggerated statement of the basic policy questions which underlie the present decision. For if foremen are ‘employees’ within-the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistant superintendents — -indeed, all who are on the payroll of the company, including the president; all who are commonly• referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presidents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate factions in warring camps.
“[I]f Congress, when it enacted the National Labor *279Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none.” Id., at 494-495.

Mr. Justice Douglas also noted that the Wagner Act was intended to protect “laborers” and “workers” whose right to organize and bargain collectively had not been recognized by industry, resulting in strikes, strife, and unrest. By contrast, there was no similar history with respect to foremen, managers, superintendents, or vice presidents. Id., at 496-497. Furthermdre, other legislation indicated that where Congress desired to include managerial or supervisory personnel in the category of employees, it did so expressly. See, e. g., Railway Labor Act of 1926, 44 Stat. 577, 45 U. S. C. § 151; Merchant Marine Act, 1936, as amended, 52 Stat. 953, 46 U. S. C. § 1101 et seq.; Social Security Act, § 1101, 49 Stat. 647.

B

The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947, 61 Stat. 136. The House bill, H. R. 3020, 80th Cong., 1st Sess. ’ (1947),9 providéd for the exclusion of *280“supervisors,” a. category broadly defined to include any individual who had authority to hire, transfer, promote, discharge, reward, or discipline other employees or effectively to recommend such action. It also excluded (i) those who had authority to determine or effectively recommend the amount of wages earned by other employees; (ii) those employed in labor relations, personnel, and employment departments, as well as police and time-study personnel; and (iii) confidential employees. The Senate version of the bill, S. 1126, 80th Cong., 1st Sess. (1947),10 also excluded supervisors, but defined that category more narrowly than the House version, distinguishing between “straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management *281prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action.” S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). It was the Senate’s view that employees such as “straw bosses,” who had only minor supervisory duties, should be included within the Act’s protections.

Significantly, both the House Report and the Senate Report voiced concern over the Board’s broad reading of the term “employee” to include those clearly within the managerial hierarchy. Focusing on Mr. Justice Douglas’- dissent in Packard, the Senate Report specifically mentioned that even, vice presidents might be unionized under the Board’s decision. Ibid. It also noted that unionization of supervisors had hurt productivity, increased the accident rate, upset the balance of power in collective bargaining, and tended to blur the line between management and labor. Id., at 4^5. The House Report echoed the concern for reduction of industrial output and noted that unionization of supervisors had deprived employers of the loyal representations to which they were entitled.11 And in criticizing the *282Board’s expansive reading of the Act’s definition of the term “employees,” the House Report noted that “[w]hferu. Congress passed the Labor Act, we were concerned,' as we said in its preamble, with the welfare of ‘workers’ and ‘wage earners,’ not of the boss.” H. R. Rep. No. 245, 80th Cong., 1st Sess., 13 (1947).

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

“The conference agreement, in the definition of ‘supervisor,’ limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the aet. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment . . . applicable with respect to professional employees will cover many of this category. In the case of guards, the conference agreement does not permit the *283certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards.” Id., at 35-36.

The legislative history of the Taft-Hartley Act of 1947 may be summarized as follows. The House wanted to include certain persons within the definition of “supervisors,” such as straw bosses, whom the Senate believed should be protected by the Act. As to these persons, the Senate’s view prevailed. There were other persons, however, who both the House and the Senate believed were plainly outside the Act. The House wanted to make the exclusion of certain of these persons explicit. In the conference agreement, representatives from both the House and the Senate agreed that a specific provision was unnecessary since the Board had long regarded such persons as outside the Act. Among those mentioned as impliedly excluded were persons working in “labor relations, personnel and empldyment departments,” and “confidential employees.” But assuredly this did not exhaust the universe of such excluded persons. The legislative history strongly suggests that there also were other employees, much higher in the managerial structure, who were likewise regarded as so clearly outside the" Act that no specific exclusionary provision was thought necessary. For example, in its discussion of confidential employees, the House Report noted that “[m]ost of the people who would qualify as ‘confidential’ employees are executives and are excluded from the act in any event.” H. R. Rep. No. 245, p. 23 (emphasis added).12 We think *284the inference is plain that “managerial employees” were ■paramount among this impliedly excluded group. The Court of Appeals in the instant case put the issue well:

“Congress recognized there were other persons so much more clearly ‘managerial’ that it was inconceivable that the Board would treat them as employees. Surely Congress could not have supposed that, while ‘confidential secretaries’ could not be organized, their bosses could be. In other words, Congress failed to enact the portion of Mr. Justice Douglas’ Packard dissent relating to the organization of executives, not because it disagreed but because it deemed this unnecessary.” 475 F. 2d, at 491-492.13 (Footnote omitted.)

*285c

Following the passage of the Taft-Hartley Act, the Board itself adhered to the view that “managerial employees” were outside the Act. In Denver Dry Goods, 74 N. L. R. B. 1167, 1175 (1947), assistant buyers, who *286were required to set good sales records as examples to sales employees, to assist buyers in the selection of merchandise, and to assume the buyer’s duties when the latter was not present, were excluded by the Board on the ground that “the. interests of these employees are more closely identified with those of management.” The Board reiterated this reading of the Act in Palace Laundry Dry Cleaning, 75 N. L. R. B. 320, 323 n. 4 (1947):

“The determination of ‘managerial,’ like the determination of ‘supervisory,’ is to some extent necessarily a matter of the degree of authority exercised. We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as' ‘managerial’ employees, executives who formulate and effectuate management policies by expressing and making operative decisions of their employer, and have excluded such managerial employees from bargaining units. We believe that the Act, as amended, contemplates the continuance of this practice.” (Citations omitted.)

Buyers and assistant buyers were again excluded in Denton’s, Inc., 83 N. L. R. B. 35-37 (1949), because their “interests . . . are more-closely identified, with management . . •. .” And in American Locomotive Co., 92 N. L. R. B. 115, 116-117 (1950), the Board held that buyers could neither be included, in a unit of office and clerical employees nor placed in a separate unit, stating-:

“The Employer maintains that the buyers are representatives of management. As it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they aie representatives of management, and as such may not be accorded bargaining rights under the Act.”

Buyers, who were authorized to bind the employer without prior approval, were also excluded from a unit in *287Curtiss-Wright Corp., 103 N. L. R. B. 458, 464 (1953), Because “they are representatives of management and as such may not be accorded bargaining rights under the Act.”

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

“It was the clear' intent of Congress to" exclude from the coverage of-the Act all individuals allied with management. Such individuals' cannot be deemed to be employees for the purposes of the Act. Accordingly, we reaffirm the Board’s position that .representatives of management may not be accorded bargaining rights under the Act (Footnotes omitted.)

Until its decision in- North Arkansas in 1970, the Board consistently followed this reading of the Act.14 It never *288certified any unit of “managerial employees,” separate or otherwise, and repeatedly stated that it was Congress’ intent that such employees not be accorded bargaining rights under the Act. And it was this reading which was permitted to stand when Congress again amended the Act in 1959. 73 Stat. 519.

The Board’s exclusion of “managerial employees” defined as those who “formulate and effectuate management policies by expressing and making operative the decisions of their employer,” 15 has also been approved by courts without exception. See, e. g., Westinghouse Electric Corp. v. NLRB, 424 F. 2d 1151, 1158 (CA7), cert, denied, 400 Ü. S. 831 (1970); Illinois State Journal-Register, Inc. v. NLRB, 412 F. 2d 37, 41 (CA7 1969) ; Continental Insurance Co. v. NLRB, 409 F. 2d 727, 730 (CA2), cert, denied, 396 U. S. 902 (1969); Retail Clerks International Assn. v. NLRB, 125 U. S. App. D. C. 63, 65-66, 366 F. 2d 642, 644-645 (1966) (Burger, J.), cert, denied, 386 U. S. 1017 (1967); 16 International Ladies’ *289Garment Workers’ Union v. NLRB, 339 F. 2d 116, 123 (CA2 1964) (Marshall, J.).17 And in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F. 2d 602 (1971), the Eighth Circuit r ^viewed the history of the Act and specifically disapproved the Board’s departure from its earlier position.

D

In sum, the Board’s early decisions, the purpose and legislative history of the Taft-Hartley Act- of 1947, the Board’s subsequent and consistent construction of the Act for more than two decades, and the decisions of the courts of appeals all point unmistakably to the conclusion that “managerial employees” are not covered by the Act.18 We agree with the Court of Appeals below that the Board “is not now free” to read a new and more restrictive meaning into the Act. 475 F. 2d, at 494.

In view of our conclusion, the case must be remanded to permit the Board to apply the proper legal standard *290in determining the status of these buyers.19 SEC v. Chenery Corp., 318 U. S. 80, 85 (1943); FTC v. Sperry & Hutchinson Co., 405 U. S. 233, 249 (1972). We express no opinion as to whether these buyers fall within the category of “managerial employees.” 20

III

The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not “managerial employees,” it could do so only by invoking its rulemaking procedures under § 6 of the Act, 29 U. S. C. § 156.21 We disagree.

*291At the outset, the precise nature of the present issue must be noted. The question is not whether the Board should have resorted to rulemaking, or in fact improperly-promulgated a “rule,” when in the context of the prior representation proceeding it held that the Act covers all “managerial employees” except those meeting the new “conflict of interest in labor relations” touchstone. Our conclusion that the Board applied the wrong legal standard makes consideration of that issue unnecessary. Rather, the present question is whether on remand the Board must invoke its rulemaking procedures if it deter*292mines, in light of our opinion, that these buyers are not “managerial employees”' under the Act. The Court of Appeals thought that rulemaking was reqfiired-because any Board finding that the company’s buyers are not “managerial” would be contrary to its prior decisions22 and would presumably be in the nature of a general rule designed “to fit all cases at all times.”

A similar issue was presented to this Court in its second decision in SEC v. Chenery Cory., 332 U. S. 194 (1947) (Chenery II).23 There, the respondent corporation argued that in an adjudicative proceeding the Commission could not apply a general standard that it had formulated for the first time-in that proceeding. Rather, the Commission was required tó resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court first noted that the Commission had a statutory duty to decide the issue at hand in light of the proper standards and that this duty remained “regardless of whether those standards previously had been spelled out in a general rule or regulation.” Id., at 201. The Court continued:

“The function of filling in the interstices of the [Securities] Act should be performed, as much as possible, through this quasi-legislative promulgation of rules, to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which *293arise. . . . Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold.of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.
“In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards.” Id., at 202-203. (Emphasis added.)

The Court concluded that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the. administrative agency.” Id., at 203.

And in NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), the Court upheld a Board order enforcing an election list requirement first promulgated in an earlier adjudicative proceeding in Excelsior Underwear Inc., 156 N. L. R. B. 1236 (1966). The plurality opinion of Mr. *294Justice Fortas, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice White, recognized that “[adjudicated cases may and do . . . serve as vehicles for the formulation of agency policies, which are applied and announced therein,” and that such cases “generally provide a guide to action that the agency may be expected to take in future cases.” NLRB v. Wyman-Gordon Co., supra, at 765-766. The concurring opinion of Mr. Justice Black, joined by Mr. Justice Brennan and Mr. Justice Marshall, also noted that the Board had both adjudicative and rulemaking powers and that the' choice between the two was “within its informed discretion.” Id., at 772.

The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion. Although there may be situations where the Board’s reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion. ' Indeed, there is ample indication that adjudication is especially appropriate in the instant context. As the Court of Appeals noted, “[t]here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter.” 475 F. 2d, at 496. Moreover, duties of buyers vary widely depending on the company or industry. It is doubtful whether any generalized standard could be framed which would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific character of the buyers’ authority and duties in eg'ch compapy.- The Board’s judgment that-adjudication best serves this purpose is entitled to great weight.

*295The possible reliance of industry on the Board’s past decisions with respect to buyers does not require a different result. It has not been shown that the adverse consequences ensuing from such reliance are so substantial that the Board should be precluded from reconsidering the issue in an adjudicative proceeding. Furthermore, this is not a case in which some new liability is sought to be imposed on individuals for past actions which were taken' in good-faith reliance on Board pronouncements. Nor are fines or damages involved here. In any event, concern about such consequences is largely speculative, for the Board has not yet finally determined whether these buyers are “managerial.”

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

The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the cause remanded to that court with directions to remand to the Board for further proceedings' in conformity with this opinion.

It is so ordered.

Mr. Justice White,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join, dissenting in part.

I concur in Part III of the Court’s opinion insofar as it holds that the Board was not required to resort to rule-making in deciding this case, but I dissent from its hold*296ing in Part II that managerial employees, as a class are not “employees” within the .meaning of the National Labor Relations Act.

Section 7 of the Act, 29 U. S. C. § 157, provides that “[ejmployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing____” Section 8(a)(1),-29 U. S. C. § 158 (a)(1), makes it an unfair labor practice to interfere with the rights guaranteed in § 7, and under §8 (a)(5), 29 U. S. C. § 158 (a) (5),"it is an unfair practice for the employer to refuse to bargain collectively with representatives- of his “employees.” For the purposes of the foregoing sections, the term “employée” as defined in § 2 (3) of the Act, means “any employee” of the employer,

“but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act . . . ?’ 29 . U. S. C. § 152 (3).

The issue in this case is whether the term “employee” excludes not only those specifically excluded by § 2 but also the broad category of “managerial” employees who, although literally “employees” of the employer and not expressly excluded by § 2, are nevertheless not to be considered employees for the purposes of the Act because they make , and implement managerial policies. The Court holds that no managerial employee is an. employee for the'purposes of the Act. I cannot agrén with' this conclusion. ■

*297The Act is very plain on its face — “any employee,” with specified exclusions, is entitled to the benefits of the Act. Each of the exclusions is a narrow and precisely defined class, and none of them mentions managerial . employees. “Supervisors” are excluded, but a precise definition of that class, much narrower than the. class of managerial employees, is provided in §2 (11):

“any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them,,. or to adjust their grievances, or effectively to recommend -such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U. S. C. § 152 (11).

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

What is morei Congress in § 2 (12), 29 U. S. C. § 152 (12), has defined a special subclass of professional employees having special skills and duties “involving -the consistent exercise of discretion and judgment in” the performance of their work. These employees are obviously “employees” for fhe purposes of the. Act; and in § 9, 29 U. S. C. § 159, after investing the Board with the powers necessary to decide- the units appropriate for collective bargaining, it is provided *298that the Board shall not hold any bargaining unit to be appropriate “if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.” It is apparent, it seems to me, that there are many professional employees who would qualify as managerial employees; yet the Act clearly treats them as employees for purposes of the Act and Congress assumed they would have full organizational and bargaining rights unless it was provided otherwise in accordance with congressional desires. Hence § 9 (b).

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

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

As I understand its decisions, the Board at no time prior to 1947 completely excluded the broad category of managerial, employees from the class of employees protected by the Act. The Court concedes that the Board’s cases during this period involved only the exclusion of managerial employees from bargaining units of rank-and-file workers. Some of the Board’s statements may have been ambiguous, but no Board case held or had occasion to hold that managerial employees as a group would riot be protected by the Act. As the Court acknowledges, the Board, in one decision excluding buyers and expediters from a unit of office and clerical employees, pointedly expressed the caveat that “[t]his is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act.” Dravo Corp., 54 N. L. R. B. 1174, 1177 (1944). In Hudson Motor Car Co., 55 N. L. R. B. 509, 512 (1944), where the Board excluded buyers from a bargaining unit of office and clerical employees, the reason given for the exclusion was “that their duties are closely allied to management, differing materially from those of the other clerical employees.” And in Vulcan Corp., 58 N. L. R. B. 733, 736 (1944), the Board excluded a buyer from a production and maintenance employees’ unit, not because a managerial employee could not be accorded bargaining rights, but “[b]ecause of the responsibility of his position and his peculiar relationship to management, and in view of the fact that his interests are apparently different from those of the production and maintenance employees.” This line of Board decisions addressed the question whether certain managerial employees had sufficient community of interest with rankr-arid-file employees to be included in the“same bargaining unit with them, and the Board was exercising its power to designate *300appropriate bargaining units under §9. It is clear that the Board at no time held managerial employees to be outside the scope of the Act during the period prior to the Taft-Hartley amendments.

The Board’s position with respect to supervisors, as a class, vacillated during this time, the Board first excluding supervisors from rank-and-file units but recognizing units confined to supervisory employees, then refusing to recognize any bargaining units of supervisors and finally returning to its earlier rule. But even when the Board determined for a short period that supervisors should not be permitted to organize either with other employees or in separate units, it never went as far as to hold supervisors not to be “employees” under the Act. This was the Court’s understanding of the Board’s position in Packard Co. v. NLRB, 330 U. S. 485, 492 n. 3 (1947), the very case which prompted the 80th Congress to go further than the Board had ever gone and exclude supervisors entirely from the- category of employees accorded bargaining rights under the Act.1 In Maryland, Drydock Co., 49 N. L. R. B. 733, 738, 740 (1943), the Board was “no longer convinced that, from the mere determina*301tion that a supervisor is an employee it follows that supervisors may constitute appropriate bargaining units” because “the benefits which supervisory employees might achieve through being certified as collective-bargaining units would be outweighed not only by the dangers inherent in the commingling of management and employee functions, but also in its possible restrictive effect upon the organizational freedom of rank and file employees.” Shortly thereafter, the Board, faced with a claim by the employer that foremen are not employees within the meaning of the Act, did not address this possible ground of decision but held instead that it was “not- persuaded that the factors militating against the establishment of units of supervisory employees, set forth in . . . the Maryland Drydock case, are obviated by the circumstance that the union seeking to represent such employees is an independent, unaffiliated union.” General Motors Corp., 51 N. L. R. B. 457, 460 (1943). Moreover, the Board held in Soss Mfg. Co., 56 N. L. R. B. 348 (1944), that while a bargaining unit of supervisory employees might not be appropriate, a supervisor, like other employees, was nonetheless protected- against an unfair labor practice: “We conclude that supervisors are .‘employees’ and that supervisory status does not by its’ own force remove an employee from the protection of Section 8 (1) and (3)” of the Act. Id., at 353. Ultimately, in the Packard cases, 61 N. L. R. B. 4, 64 N. L. R. B. 1212 (1945), the Board reverted to its earlier rule that bargaining units of supervisors were entitled to recognition under the Act as long as they included no ránk-and-file. members.

When Congress undertook to amend the Act following this Court’s decision in' Packard upholding the Board’s inclusion of supervisprs as employees under the Act, it was acting in .light of a renewed Board policy to *302permit supervisory employees to organize in separate units under the mantle of the Act’s protection, an' enduring Board policy not. to exclude supervisors from the statutory definition of employees, and a further policy which excluded managerial employees from rank-and-file units but had never denied them the right to establish separate bargaining units or placed them outside the Act’s definition of “employee.” The amendments adopted by Congress in 1947 in light of this pattern of Board practice clearly intended to do away with the Packard decision approving the Board’s authority to grant recognition to unions of supervisors. The House and the Senate both proposed to exclude supervisors from the individuals defined as employees for purposes of the Act.' The Senate definition of “supervisor” was limited to individuals with authority, in the employer’s interest, to take or recommend action involving the employment of other employees, if the exercise of such authority required the use of independent judgment, S. 1129 §2(11).. But the proposed House definition would also have identified as excluded “supervisors” (a) those who could determine or effectively recommend the wages to be paid other employees, (b) employees with responsibility in the area of labor relations, personnel, employment; police, or time-study matters, and (c) confidential employees, H. R. 3020 § 2 (12). Neither of these proposals sought to exclude in express terms the entire category of “managerial employees,” i. e., those who are in a position to formulate, determine, and effectuate management policies beyond the area of labor relations, whether by defining such persons as “supervisors” or by proposing a separate exclusion for “managerial employees.” Such a step could easily have been taken had Congress intended to exclude these individuals from the protection of the Act. But it was not, despite the fact that the Board had recently considered whether *303certain employees should be denied organizational rights, either because they were supervisory or, separately, because their job responsibilities involved the exercise of managerial discretion. See, e. g., Ford Motor Co., 66 N. L. R. B. 1317, 1322 (1946); Electric Controller & Mfg. Co., 69 N. L. R. B. 1242 (1946). One would expect that if Congress had intended to eliminate the Board’s authority to accord bargaining rights to managerial employees, as well as supervisors, it would have said so, particularly as Board practice had treated these two categories separately and differently.

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

“The conference agreement, in the definition of ‘supervisor,’ limits such term to those individuals ■treated as supervisors under the Senate amendment. In the'case of persons working'in labor relatiois, personnel and employment departments, it was not thought necessary to make specific provision, as vías done in the House bill, since the Board has treat 3d, and presumably will continue to treat, such persons as' outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential employees as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, -as did the House bill. jSince, however, time-study employees may qualify as professional personnel, *304the special provisions of the Senate- amendment . . . applicable with respect to professional employees will' cover many in this category; In the case .of guards, the conference agreement does not permit-the certification of a labor organization as the. bargaining representative-of guards if it admits to membership, of is affiliated with any organization that admits io membership, employees other than guards. The provision dealing with the certification of bargaining units for guards is dealt with in section 9 (b) of the conference agreement....” H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 35-36 (1947).

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

The House Managers’ statement accompanying the Conference Committee Report explains that the Act' was not amended expressly to exclude labor relations and confidential employees from coverage undef the Act, because it was already prevailing Board practice to exclude these employees. This was not an entirely accu*305rate representation of Board practice, which seemed to hold only that such employees fehould not be included in rank-and-file bargaining units, and not necessarily that they would have no protections under the Act, see, e. g., Murray Ohio Mfg. Co., 61 N. L. R. B. 47 (1945); Ford Motor Co., 66 N. L. R. B. 1317 (1946), but even accepting the House Managers’ statement as an authoritative direction that these workers were not to' be considered employees within the meaning of- § 2, it does not follow that other groups of employees, regarding whom no such explicit direction was set forth and whom the Board had not treated in such a manner, were also intended to be excluded. Such statement implied that certain groups of employees were to be excluded, but it also noted that some timestudy personnel could qualify as professional employees and could therefore organize in units .which a majority of them approved, and that guards were not wholly excluded from the Act, but were restricted to' units composed solely of other guards. §9(b), 29 U. S. C. §159(b). Given that Congress made specific provision for timestudy and plant protection employees, who were to be entitled to bargaining rights, and that it expressed a desire to exclude only labor relations and confidential employees whom it thought the Board had previously held outside the Act, there is no reason to suppose from the further congressional silence that special provisions, whether of inclusion or exclusion, were intended with respect to other categories of employees. If'’ it be argued that the absence of any express treatment of managerial employees by Congress was ■ somehow intended to codify prior Board practice, then the unavoidable fact is that Board decisions had not held that managerial employees were unprotected by the Act. They had only, been excluded from rank-and-file bargaining units. Moreover, there is no indication in the legislative history as to what *306Congress might have perceived the Board’s rule to be with respect to managerial employees as a class.2

Nor is the Court’s position much ádvanced by the few passing references in the House Report and in the floor debates, which the Court cites, ante, at 283, and nn. 12 and 13, for the assumption that “executives” would be excluded from the Act apart from whether they were confidential employees or not, and for the discussion of supervisors as representatives of management whom' the amendments sought to exclude. In none of the cited passages was the category ■ of “managerial employees,” as the Board had defined it, ever addressed, and the focus of these remarks is clearly directed at the exclusion of supervisors as defined in the proposed amendments. Perhaps it was clear to Congress that a confidential secretary’s superior would be excluded by the Act, but such an individual would either be a confidential employee himself, or a supervisor, or both. We are referred to *307nothing in the debates or other congressional materials where the category of managerial employees, as distinguished from the class of supervisory employees, a distinction the Board had previously drawn, is discussed.3

Finally, if we are to consider the 1947 amendments as intending to enact the views of the dissenting Justices in Packard, it should be noted that the dissent interpreted the National Labor Relations Act to “put in the employer category'all those who acted for management not only in formulating but also in executing its labor policies.” 330 U. S., at 496. (Emphasis supplied.) See also id., at 500. Limiting the exclusion of managerial employees to those who are charged with the formulation or implementation of labor relations policies, as the Board has now done in the case before us, is *308entirely consistent with this view and with the purposes of the Act. As thq Senate Report noted, its concern in changing the law with respect to supervisory employees, as construed by Packard, was that the balance of power in the collective-bargaining process had been upset by “the successful efforts of labor organizations to invoke the Wagner Act for covering supervisory personnel, traditionally regarded as part of management, into organizations composed of or subservient to the unions of the very men they were hired to supervise.” S. Rep. No. 105, 80th Cong., 1st Sess., 3 (1947). See also H. R. Rep. No. 245, 80th Cong., 1st Sess., 13 (1947); 93 Cong. Rec. 3553. Where an employee may be deemed managerial because of the nature of his duties apart from supervision of other employees, however, there is no reason to suppose that union affiliation, at least in separate units, would raise the same labor relations concern.

Following the Taft-Hartley amendments .in 1947, the Board continued to hold, as it had frequently held before, that buyers, and others with managerial interests, were to be excluded from bargaining units of other employees. Denver Dry Goods, 74 N. L. R. B. 1167 (1947); Palace Laundry Dry Cleaning, 75 N. L. R. B. 320 (1947); Denton’s, Inc., 83 N. L. R. B. 35, 37 (1949); Wise, Smith & Co., 83 N. L. R. B. 1019, 1021 n. 6 (1949); Westinghouse Electric Corp., 89 N. L. R. B. 8, 14 (1950). But in 1950, in American Locomotive Co., 92 N. L. R. B. 115, 117, the Board, in rejecting the inclusion of buyers in an office and clerical employees unit or their placement in a separate bargaining unit, said that “[a]s it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they are representatives of management, and -as such may not be accorded bargainipg rights under the Act.” Reliance for this *309statement was placed on the Wise, Smith cfc Co. case and Westinghouse Electric case which involved the appropriateness of placing the managerial employees in a particular bargaining unit. In Swift & Co., 115 N. L. R. B. 752 (1956), the Board held that á proposed unit of procurement drivers could not be accorded bargaining rights, even in a separate unit. There, the Board flatly asserted .that it was “the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management.” Id., at 753-754. The sole support for this statement, which the Board has now repudiated, was a reference to the statutory definitions of “employee” and “employer” and to the Conference Committee Report’s explanation of the term “supervisors,” as quoted above and reprinted in the Congressional Record.

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

Until the Board overruled Swift in North Arkansas Electric Cooperative, Inc., 185 N. L. R. B. 550 (1970), it had thus actually held only twice that managerial employees could not be. afforded protection under the Act, and its support for that conclusion was without any persuasive appeal. It is true, of course, that the Board had not held to the contrary either, and that *310various courts of appeals interpreted and deferred to the Board’s position as one of total exclusion of managerial employees from the scope of the Act, although in none of these cases was that conclusion necessary to the result reached. But the Board has now rejected this broad exclusion, and the question is whether the current view should be sustained. That the Board now refuses to follow its prior precedents is no reason to overturn it, for we have frequently sustained Board decisions over7 ruling its prior interpretations of the Act. E. g., Golden State Bottling Co. v. NLRB, 414 U. S. 168 (1973); Packard Co. v. NLRB, 330 U. S. 485 (1947). And the face of the Act and the events of 1947 demonstrate that the Board’s present decision is a permissible construction of the statute.

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

“Nor can we agree that the conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that '[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.’ Girouard v. *311United States, 328 U. S. 61, 69 (1946). Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be .taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to consider the decision.”

See also Commissioner v. Glenshaw Glass Co., 348 U. S. 426, 431 (1955). Similarly, from the congressional silence in 1959 concerning Swift’s exclusion of managerial employees from the protection of the Act, it should not be assumed that' Congress intended to approve of Swift and foreclose the possibility of the Board’s reconsidering Swift and overruling it on further and more examining reflection. NLRB v. Seven-Up Co., 344 U. S. 344, 350-352 (1953).

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

I respectfully dissent.