Physicians Nat. House Staff Ass'n v. Fanning, 78-1209

Citation642 F.2d 492,206 U.S. App. D.C. 87
Decision Date23 February 1981
Docket NumberNo. 78-1209,78-1209
Parties104 L.R.R.M. (BNA) 2940, 57 A.L.R.Fed. 577, 206 U.S.App.D.C. 87, 89 Lab.Cas. P 12,117 PHYSICIANS NATIONAL HOUSE STAFF ASSOCIATION et al., Appellants, v. John H. FANNING et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Murray A. Gordon, New York City, a member of the bar of the Supreme Court of New York, pro hac vice by special leave of Court, with whom Abraham L. Zwerdling, Janet Kohn, Washington, D.C., and Bernard Katz, New York City, were on brief, for appellants.

Ruth E. Peters, Atty., N.L.R.B., Washington, D.C., a member of the bar of the Supreme Court of Massachusetts, pro hac vice by special leave of Court with whom John S. Irving, Gen. Counsel, Margery E. Lieber, Deputy Asst. Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on brief, for appellees.

Carl W. Vogt, Washington, D.C., was on the brief for amicus curiae, Ass'n of American Medical Colleges, et al., in support of petition for rehearing en banc.

George G. Gallantz, Washington, D.C., was on brief, for amicus curiae, Greater New York Hospital Ass'n., et al., in support of petition for rehearing en banc.

Carl Taylor and Aileen A. Armstrong, Attys., N.L.R.B., Washington, D.C., entered appearances for appellees.

Before WRIGHT, Chief Judge, and McGOWAN, TAMM, LEVENTHAL, * ROBINSON, MacKINNON, ROBB, WILKEY, WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

The appellants are the house staff associations of four private, non-profit hospitals, and a national house staff organization. House staffs consist of physicians serving as interns, residents and clinical fellows, and participating in hospital-based training programs in medical specialties or sub-specialties. They render medical services to patients, subject to the direction and control of the hospitals. They receive salaries or stipends and other hospital compensation and benefits, and are subject to statutes providing for workmen's compensation and unemployment benefits.

The 1974 amendments to the National Labor Relations Act, Pub. L. No. 93-360, 88 Stat. 395, removed the exemption of private non-profit hospitals from the Act's definition of "employer". Thereafter at various times during 1974 and 1975 the appellants petitioned the National Labor Relations Board for certification as collective bargaining representatives of their members. They contended that members of house staffs are "employees" under section 2(3) of the Act, 29 U.S.C. § 152(3). 1 The Board dismissed each petition, upon the ground that members of house staffs are "primarily students" and therefore not employees within the meaning of the Act. Cedars-Sinai Medical Center, 223 N.L.R.B. 251 (1976). 2 Dissatisfied with the Board's decision in their cases the appellants filed suit in the District Court, seeking a declaration that house staffs are employees within the meaning of the Act and an order directing the Board to accept jurisdiction over the petitions for certification. The District Court dismissed the action for lack of jurisdiction, holding that "Absent a plain violation of a mandatory provision of the National Labor Relations Act, this court may not strike down the Board's order denying plaintiffs the status of labor organization." Physicians National House Staff Ass'n v. Murphy, 443 F.Supp. 806, 811 (D.D.C.1978). On appeal, a panel of this court, in reliance upon Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) reversed the judgment of the District Court. Thereafter we granted rehearing en banc and vacated the panel's opinion. We now affirm the judgment of the District Court.

Board orders in representation proceedings have long been held to be unreviewable unless they become the subject of unfair labor practice orders under section 10 of the Act, 29 U.S.C. § 160 (1976). Thus, an employer who believes the Board has included in a bargaining unit persons who are not employees within the meaning of the Act must await the outcome of an election, refuse to bargain with the union certified by the Board, and defend against an unfair labor practice complaint by asserting that the Board erred in determining who the employees were. AFL v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940); Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); see Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). The record compiled in the representation proceedings is considered by the Court of Appeals when it reviews the unfair labor practice order. 29 U.S.C. § 159(d) (1976). In Leedom v. Kyne, however, the Supreme Court held that in the limited circumstances of that case a district court had jurisdiction over a suit to set aside a Board order in a representation proceeding. The question before us is whether under the rule announced in the Kyne case the District Court had jurisdiction over the appellants' challenge to the Board's order.

In Leedom v. Kyne the Board had included both professional and non-professional employees in a unit which it found to be appropriate for collective bargaining purposes. Section 9(b)(1) of the National Labor Relations Act, 29 U.S.C. § 159(b)(1) (1976), directs that "the Board shall not (1) decide that any unit is appropriate for such purposes 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." Notwithstanding this flat statutory prohibition the Board refused to take a vote among the professional employees to determine whether a majority of them would vote for inclusion in the unit with non-professional employees. An election was held and a union of which Kyne was president was certified by the Board as the collective bargaining agent for the unit. Thereafter Kyne sued in the District Court, alleging that the Board had exceeded its statutory power by including the professional employees without their consent in a unit with non-professional employees, in violation of the express command of section 9(b) (1). He prayed that the Board's action be set aside.

The Supreme Court held that in the circumstances, 28 U.S.C. § 1337 (1976) 3 gave the district court jurisdiction "to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act." 358 U.S. at 188, 79 S.Ct. at 184. By the language used to describe the Board's determination the Court carefully and clearly delineated the narrow scope of its holding: "made in excess of its powers", id. at 185, 79 S.Ct. at 182; "disobeyed the express command of § 9(b)(1) . . . and in doing so . . . acted in excess of its powers", id. at 186-87, 79 S.Ct. at 183; "an attempted exercise of power that had been specifically withheld", id. at 189, 79 S.Ct. at 184; "agency action taken in excess of delegated powers", id. at 190, 79 S.Ct. at 185. The Court explicitly stated that the suit was "not one to 'review', in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction." Id. at 188, 79 S.Ct. at 184. Thus in order to qualify for the Leedom v. Kyne exception a plaintiff must be able to identify a specific provision of the Act which, although it is "clear and mandatory", id. at 188, 79 S.Ct. at 183, has nevertheless been violated by the Board. That the Board may have made an error of fact or law is insufficient; the Board must have acted without statutory authority. 4

The federal courts have consistently recognized the limits imposed by the Kyne decision. For example, in Local 130, IUERMW v. McCulloch, 120 U.S.App.D.C. 196, 345 F.2d 90 (1965), this court held that

to say that there are possible infirmities in an action taken by the Board by reason of an erroneous or arbitrary exertion of its authority in respect of the facts before it is not to conclude that there is jurisdiction in the District Court to intervene by injunction. For such jurisdiction to exist, the Board must have stepped so plainly beyond the bounds of the Act, or acted so clearly in defiance of it, as to warrant the immediate intervention of an equity court even before the Board's own processes have run their course.

Id. at 201, 345 F.2d at 95.

Similarly, the Court of Appeals for the Seventh Circuit has recently held:

Jurisdiction is not present simply because the NLRB has made an error of law in a certification proceeding; jurisdiction is warranted only if the NLRB has violated a clear and specific statutory directive.

Chicago Truck Drivers v. NLRB, 599 F.2d 816, 819 (7th Cir. 1979). See also McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S.App.D.C. 190, 191, 403 F.2d 916, 917 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969); Machinery Employees Local 714 v. Madden, 343 F.2d 497, 499 (7th Cir.), cert. denied, 382 U.S. 822, 86 S.Ct. 53, 15 L.Ed.2d 69 (1965); Cihacek v. NLRB, 464 F.Supp. 940, 944 (D.Neb.1979); National Maritime Union v. NLRB, 375 F.Supp. 421, 434 (E.D.Pa.), aff'd without opinion, 506 F.2d 1052 (3d Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). These cases make it clear that appellants can succeed here only by demonstrating that the Board violated some specific command of the National Labor Relations Act which mandated a determination that house staff are "employees" eligible to participate in union certification elections. We hold that appellants have not made that demonstration.

The appellants attempt to find in section 2(3) of the Act, 29 U.S.C. § 152(3) (1976), 5 the clear statutory mandate required by Leedom v. Kyne. We think the attempt fails. That section does not define the term employee...

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