Boyd S. Leedom v. Kyne

• Decision Date: 16 September 1957
• Docket Number: No. 13701.,13701.
• Citation: 249 F.2d 490
• Parties: Boyd S. LEEDOM et al., individually and as Chairman and Members of and Constituting the National Labor Relations Board, Appellants,v.William KYNE, individually and as President of Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America, a voluntary unincorporated Labor Organization, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

249 F.2d 490

Boyd S. LEEDOM et al., individually and as Chairman and Members of and Constituting the National Labor Relations Board, Appellants, v.William KYNE, individually and as President of Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America, a voluntary unincorporated Labor Organization, Appellee.

No. 13701.

United States Court of Appeals District of Columbia Circuit.

Argued June 13, 1957.

Decided September 16, 1957.

Mr. Norton J. Come, Attorney, National Labor Relations Board, with whom Messrs. Stephen Leonard, Associate General Counsel, National Labor Relations Board, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for appellants.

Mr. Jonas Silver, New York City, with whom Mr. Bernard Dunau, Washington, D. C., was on the brief, for appellee. Mr. Samuel H. Jaffee, Washington, D. C., also entered an appearance for appellee.

Mr. Milton F. Lunch, Washington, D. C., filed a brief on behalf of National Society of Professional Engineers, as amicus curiæ, urging affirmance.

Messrs. Gerard D. Reilly and Joseph C. Wells, Washington, D. C., filed a brief on behalf of Engineers Joint Council, as amicus curiæ, urging affirmance.

Before BAZELON, BASTIAN and BURGER, Circuit Judges.

BAZELON, Circuit Judge.

Appellee, President of the Westinghouse Engineers Association, ¹ brought this suit against appellant members of the National Labor Relations Board to set aside a certification under § 9 of the National Labor Relations Act, 29 U.S. C.A. § 159. The unit certified consisted of 233 admittedly professional employees, within the meaning of § 2(12) of the Act, 29 U.S.C.A. § 152(12), whom the Engineers Association had sought to represent; and 9 others, admittedly non-professional, whom the Board included, over objection of the Engineers Association, because they share a "close community of employment interest" with the professionals and their inclusion would not "destroy the predominantly professional character" of the unit. The District Court, however, agreed with the Engineers Association that inclusion of these non-professionals violated § 9(b) which provides, in pertinent part, "that the Board shall not (1) decide that any unit is appropriate for [purposes of collective bargaining] 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." Accordingly, on cross motions, the court granted summary judgment in favor of appellee and against appellants.

On this appeal, as in the court below, the Board takes the familiar position that, under § 9(d), its determinations in representation proceedings are reviewable only in the courts of appeals and only when they have become the basis for a "final order" in an unfair labor practice proceeding under § 10, 29 U.S.C.A. § 160. It relies heavily on Switchmen's Union v. National Mediation Board, 1943, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61.

"Before we can decide whether these proceedings are reviewable in an original equity suit in the District Court, there must be a showing `of unlawful action by the Board and resulting injury * * * by way of departure from statutory requirements or from those of due process.' Inland Empire District Council, etc. v. Millis, 1945, 325 U.S. 697, 700, 65 S.Ct. 1316, 1318, 89 L.Ed. 1877." DePratter v. Farmer, 1956, 98 U.S.App. D.C. 74, 76, 232 F.2d 74, 76. Equitable relief is clearly barred in the wide area of determinations which depend on the Board's expertise and discretion; as for example, in Switchmen's Union, that railroad yardmen should be included in a unit with certain other smaller groups of railroad employees, or, in DePratter, that full time production employees should be included in a unit with...