dissenting.
The denial to the twelve secretarial employees of the very limited collective bargaining rights afforded by §§ 105.500 through 105.530, RSMo 1978, is contrary to the policy of the Missouri Constitution, Art. I, Sec. 29,1 and to the policy of the governing statute.
Collective bargaining rights for industrial employees in interstate commerce were established by the National Labor Relations Act, Pub.L. No. 74-198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151-169 (1982)). Employees of federal and state governmental agencies were excluded from the coverage of the federal statute, but our legislature accorded limited bargaining rights in Laws of 1965, p. 232, which is the predecessor of § 105.500. The rights are closely confined. Public employees may choose representatives who may “meet, confer and discuss ... proposals relative to salaries and other conditions of employment.” The results of the conference are reduced to writing and presented to the governing body, which has full authority to adopt, modify or reject the *902proposals. The bargaining agent has no other recourse. The right to strike is specifically excluded, § 105.530, and is inappropriate in the public sector.
As the principal opinion points out, the statute contains no express exclusion of “confidential” employees. The State Board of Mediation, following the lead of the National Labor Relations Board, has implied an exemption so that management’s bargainers may preserve confidences about labor contracts and collective bargaining negotiations. The exemption has previously been limited to employees whose supervisors are directly involved in collective bargaining, through the use of the “labor nexus” test borrowed from the National Labor Relations Board. Now the State Board of Mediation, out of the blue, announces a new test by excluding employees “if there exists a confidential relationship between the employee and managerial or supervisory employees.” This test would apparently operate to exclude almost all clerical and secretarial employees.
I agree that deference is due to the State Board of Mediation on the numerous judgment calls which must be made in determining the appropriateness of a bargaining unit and on the propriety of including particular employees. In so doing the Board acts to effectuate the policy announced by the Legislature. The Board, however, is not a policy-making agency and its present change of course flies in the face of the policies of the statute. It is reasonable to assume that the legislature intended public employees to have and enjoy the rather narrow rights it granted them and that exceptions should be implied sparingly. It is also reasonable to assume that the legislature has been satisfied with the labor nexus test, as applied over the years. The abrupt change of position by the state Board of Mediation is arbitrary and capricious.
No reason has been demonstrated to justify the changes. Many employees stand in a confidential relation to supervisors. This has not previously been considered justification for denying them all rights of organization and bargaining.2 The primary duty of all employees is to the employer.
I would remand the case to the Board with directions to proceed in accordance with the labor nexus test, rather than under its new policy. The exclusion of the secretaries assigned to the individual principals is wholly arbitrary and lacking in foundation. What the argument comes down to is that these secretaries have access to certain confidential files. This circumstance has not been considered significant, up to now. Even secretaries having access to confidential information must buy groceries and pay rent. This same problem has been analyzed by the Supreme Court of Pennsylvania, which concluded that principals’ secretaries need not be excluded from a bargaining unit as “confidential” employees. Pennsylvania Labor Relations Board v. Altoona Area School District, 480 Pa. 148, 389 A.2d 553 (1978). No harm to the employing district can be perceived if they are allowed to join a bargaining unit with their fellow employees. This is especially so when the bargaining agent has no real clout.
Because the initial decision should be made by the Board, I will not analyze the situation of the four employees in the central administrative office. Perhaps a good case can be made for excluding some of these secretaries from the bargaining unit under the labor nexus test. The recital in the principal opinion that “Wilma Long is responsible for processing monthly payments made by the district and also coordinates student attendance figures supplied to the administrative office by the individu*903al schools,” is particularly unpersuasive as to why she should be denied the services of a collective bargaining agent, if her fellow employees choose to have one.3 Cf. Pennsylvania Labor Relations Board v. Altoona Area School District, supra.
I would reverse the judgment and would remand the case to the State Board of Mediation for further proceedings consistent with the views here expressed.
. That employees shall have the right to organize and to bargain collectively through representatives of their own choosing. Art. I, Sec. 29, Mo. Const.
. See Westinghouse Electric Corp. v. NLRB, 398 F.2d 669 (6th Cir.1968)—secretary to supervisor who spent less than 10% of his time on labor relations, not excludable; Swift & Co., 119 NLRB 1556 (1958)—quality control; Automatic Electric Co., 78 NLRB 1057 (1948)—access to personnel files.
. The union is playing a game of Russian Roulette. The ballots of the excluded secretaries have been segregated and remain uncounted. If more ballots are admitted to the pool, the union’s 14-10 margin could conceivably be reversed.