National Labor Relations Board v. Town & Country Electric, Inc.

PETITIONER: National Labor Relations Board
RESPONDENT: Town & Country Electric, Inc., et al.
LOCATION: 10th Judicial Circuit Court - Jefferson

DOCKET NO.: 94-947
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 516 US 85 (1995)
ARGUED: Oct 10, 1995
DECIDED: Nov 28, 1995

James K. Pease, Jr. - on behalf of the Respondent
Lawrence G. Wallace - on behalf of the Petitioner

Facts of the case

Town & County Electric, Inc., a non-union company, sought to fill several positions for a construction job in Minnesota. Town & Country received applications from union staff, but refused to interview any of the applicants except one, who was eventually hired and fired soon thereafter. These individuals applied with the intention to organize Town & Country and were to remain on Union payroll during their time of employment. The union, the International Brotherhood of Electrical Workers, filed a complaint with the National Labor Relations Board claiming that Town & Country had refused to interview and retain the workers because of their union affiliation, a violation of the National Labor Relations Act. The Board held that the 11 individuals met the definition of employees under the Act and rejected Town & Country's claims that the individuals had been refused for other reasons.

The U.S. Court of Appeals for the Eighth Circuit reversed on the ground that the term "employee" does not include those individuals who remain on Union payroll during their time of employment with another company.


Does a worker qualify as an "employee" under the National Labor Relations Act if, while he is working, he is simultaneously paid by a union to help the union organize a company?

Media for National Labor Relations Board v. Town & Country Electric, Inc.

Audio Transcription for Oral Argument - October 10, 1995 in National Labor Relations Board v. Town & Country Electric, Inc.

William H. Rehnquist:

We'll hear argument next in Number 94-947, National Labor Relations Board v. Town & Country Electric.

Mr. Wallace, you may proceed.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court:

For almost 30 years, the National Labor Relations Board consistently and repeatedly has held that a person who applies for or holds a job with an employer that he intends to try to organize, and who will be compensated by a union for his organizational activity, is an employee within the meaning of section 2(3) of the National Labor Relations Act.

That section is set forth on page 2 of our brief, and was last interpreted and applied by this Court in its 1984 decision in Sure-Tan Incorporated against the NLRB, and we are content to use the words of this Court in Sure-Tan in describing this provision, and I'm quoting now from page 891 of Volume 467 U.S., the breadth of section 2(3)'s definition is striking.

the act squarely implies to "any employee".

The only limitations are specific exemptions for agricultural laborers, domestic workers, individuals employed by their spouses or parents, individuals employed as independent contractors or supervisors, and individuals employed by a person who is not an employer under the National Labor Relations Act.

The Court then concluded that undocumented aliens are not among the few groups of workers expressly exempted by Congress, and they therefore plainly come within the broad statutory definition.

William H. Rehnquist:

Is it your position, Mr. Wallace, that if a person does not come within any of those exemptions and is "hired" he is therefore an employee?

Lawrence G. Wallace:

Well, that is the conclusion that the Court reached, and it is our--

William H. Rehnquist:

I asked what your position--

Lawrence G. Wallace:

--Our position is that he is therefore an employee unless there are reasons, in interpreting the National Labor Relations Act, why an implied exemption should be found, a question for the board to address initially, and the only example in which this Court found an implied exemption was the case of NLRB v. Bell Aerospace which involved managerial employees, and the Court in reliance upon the legislative history of the Taft-Hartley Act and its overruling of this Court's decision in the Packard case by adding to this list of exemptions supervisors has... that Congress had relied on the notion that managerial employees would be excluded sort of a fortiori from supervisors, and that the board had always, while not holding them not to be employees, had always placed them in separate bargaining units from other employees.

William H. Rehnquist:

--What about an employee who fills out a job application, is hired, and yet his only purpose is to get into the plant so that he can blow it up?

He's a terrorist.

Is that person an employee for purposes of the National Labor Relations Act?

Lawrence G. Wallace:

If he applied for a job that he was seeking where he would be working for wages under the supervision of the employers--

William H. Rehnquist:


Lawrence G. Wallace:

--he would be within the statutory definition of employee.

What the board has--

William H. Rehnquist:

So he... that person is an employee.

Lawrence G. Wallace:

--That doesn't mean that he has to be hired.

William H. Rehnquist:

Well, suppose he... the company, not knowing this, goes ahead and hires him.

Lawrence G. Wallace:

Then he's subject to all of the company's work rules and duties of loyalty.

Of course if the company hires him, he's even more so an employee.

The Court resolved in the 1941 decision in Phelps Dodge that applicants are within the statutory coverage because section 8(a)(3)--

William H. Rehnquist:

But isn't that a--

Lawrence G. Wallace:

--protects applicants from discrimination in hiring.

William H. Rehnquist:

--Isn't that Exhibit A, what I'm talking about, of inconsistent loyalties?

I mean, the person is simply going on the payroll in order to get into the factory.

He'll perform the work for a day, but then he intends to blow the place up that night.