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 Sept. 16, 1957.
Mr. Norton J. Come, Attorney, National Labor Relаtions Board, with whom Messrs. Stephen Leonard, Associate General Counsel, National Labor Rеlations Board, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Bоard, were on the brief, for appellants.
Mr. Jonas Silver, New York City, with whom Mr. Bernard Dunau, Washington, D.C., was on thе 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 Soсiety of Professional Engineers, as amicus curiae, urging affirmance.
Messrs. Gerard D. Reilly and Joseph C. Wells, Washington, D.C., filed a brief on behalf of Engineers, Joint Council, as amicus curiae, urging affirmance.
Before BAZELON, BASTIAN and BURGER, Circuit Judges.
BAZELON, Circuit Judge.
Aрpellee, President of the Westinghouse Engineers Association,1 brought this suit against appellant mеmbers of the National Labor Relations Board to set aside a certification under 9 of thе 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; аnd 9 others, admittedly non-professional, whom the Board included, over objection of the Engineеrs, Association, because they share a 'close community of employment interest' with the professionals and their inclusion would not 'destroy the predominantly professional charaсter' of the unit. The District Court, however, agreed with the Engineers' Association that inclusion of these nоn-professionals violated 9(b) which provides, in pertinent part, 'that the Board shall not (1) decidе that any unit is appropriate for (purposes of collective bargaining) if such unit includes bоth 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 аgainst 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 оnly in the courts of appeals and only when they have become the basis for a 'final ordеr' in an unfair labor practice proceeding under 10, 29 U.S.C.A. 160. It relies heavily on Switchmen's Union v. Nationаl Mediation Board, 1943,
'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 wаy of departure from statutory requirements or from those of due process.' Inland Empire District Cоuncil, etc. v. Millis, 1945,
This case, however, presents 'a different 'type of problem."2 Section 9(b)(1) expressly forbids inclusion of professionals and non-professionals in the same bargaining unit 'unless a majority of (the) professional employeеs vote for inclusion in such unit.' It is clear that this provision was intended to protect the professionals; that the professionals' right to this benefit does not depend on Board discretion or exрertise; and that denial of this right must be deemed to result in injury. Thus this case presents Board violation of a statutory requirement and resulting injury.
Whether, granting the availability of a 10 remedy, the injury flowing from the violation оf 9(b)(1) would support equitable relief need not be decided. Here review by way of 10 is too remоte and conjectural to be viewed as providing as adequate remedy. Farmers v. United Electrical, Radio & Machine Workers, 1953,
Affirmed.
Notes
The full name of this organization is Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America
Air Line Dispatchers Ass'n v. National Mediation Board, 1951,