Petition — Physicians National House Staff Ass'n v. Murphy

Supreme Court brief1981

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. 80-9383 Bremer oe

IN THE

MICHAEL RODAK,JR., CERRK:

Supreme Court of the United Statea— —

October Term, 1980

No.

PHYSICIANS NATIONAL HOUSE STAFF ASSOCIATION, CEDARS-SINAI

HOUSE STAFF ASSOCIATION, UNIVERSITY OF CHICAGO HOSPITALS

AND CLINICS HOUSE STAFF ASSOCIATION, AND ST. CHRISTOPHER’S

HOSPITAL HOUSE STAFF ASSOCIATION,

Petitioners,

BETTY SOUTHARD MURPHY, HOWARD JENKINS, JR., JOHN A. PEN-

ELLO, PETER D. WALTHER, and JOHN H. FANNING, individually and

as Chairman and Members of and constituting the National Labor Relations

Board,

Respondents.

PETITION (WITH APPENDICES) FOR A WRIT OF

CERTIORARY TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Murray A. GORDON BERNARD KaTz

Gordon & Shechtman, P.C. Meranze, Katz, Spear & Wilderman

Attorneys for Petitioners Attorneys for Petitioner

666 Third Avenue St. Christopher's Hospital House

New York, New York 10017 Staff Association

(212) 661-7900 N.E. Cor. 15th & Locust Sts.

Sinaia i ep TET 19102

Asher, Greenfield, Goodstein <o89) RE GAI9

Pavalon and Setall, Ltd. Howarp Z. ROSEN

Attorneys for Petitioner Geffner & Satzman

University of Chicago Hospitals and Attorneys for Petitioner

Clinics Housestaff Association Cedars-Sinai House Staff Association

227 North LaSalle Street 3055 Wilshire Boulevard

Chicago, II]. 60601 Los Angeles, Cal. 90010

(312) 263-1500 (213) 487-1520

Parties in the Court of Appeals

The parties named in the caption

herein were the parties in the Court of

Appeals in the District of Columbia. The

Committee of Interns and Residents ("CIR")

. was a plaintiff-appellant in that appeal

but not a petitioner here.

Questions Presented

1. Whether determinations by the

National Labor Relations Board ("NLRB")

that medical interns, residents and

clinical fellows (collectively called

"house staff") at non-profit hospitals,

"although they possess certain employee

characteristics, are primarily students,"

not employees covered by the National

Labor Relations Act ("NLRA"), and that, as

a matter of pre-emptive national labor

policy, such house staff cannot be covered

by state or local labor relations legisla-

tion, are, as was held in the courts be-

low, subject to no judicial review?

2. Whether the described NLRB deter-

minations are isl anbnk wala the applic-

able provisions, history and purposes of

the NLRA?

3. Whether the described NLRB deter-

Minations violate the Tenth Amendment?

eH Sa

TABLE OF CONTENTS

Parties in the Court of AppealsS.....--- 1

Questions eater ey oS leeks ii

Opinions Below...-seeereeeersscrscecces 2

TUxiSdiction..ccccccccseccescereseeeses 2

Constitutional and Statutory

Provisions InvOlved..cccccsececevceeses

Statement of the CaS€....-eeeeeeeerceecs 3

1. Preliminary Statement......... 3

9. Mek Patt Coa sete ees eiees 9

Reasons for Granting the Writ........-- 34.

I. The Holding Below Forecloses

any Judicial Review of the

NLRB Determination and Is

Therefore in Conflict with

Decisions of this Court and

of Other Circuits..-..eeeseees 34

II. The NLRB Determinations Are

Unauthorized By and Contrary

to the NLRA, including Speci-

fic Mandatory and Proscrip-

tive Provisions of the NLRA,

and Violative of the Consti-

Seen. oe se anh os Chae ewe ee ee

1vV

SO Ne aN ls ae ea wk wwe 65

Appendix ee a ee ee he a ee are ee a te la

Constitutional and Statutory

Provisions Involved

PORE Ch chis sé eae bi Wid aedotssaccbesee Os

Opinion and Judgment of the

Court of Appeals for the District

of Columbia Circuit En Banc

PPGUMEAA DOL set be iec te desdpbedeccescacee $38

Original Opinion and Judgment

of the Court of Appeals for the

District of Columbia Circuit

MPONGEE OF dsc ON ca bebe sc teevccncccocesss O08

Order of the Court of Appeals

for the District of Columbia

Circuit Granting Petition for

Rehearing En Banc.

RRPORGR Ti sw ic cecaebocenavisaspeacccocese G68

Opinion and. Order of the

District Court for the District

of Columbia (Flannery, J.)

BONG Vis 6b cb evade becdececccccvecccrksla

Opinion and Mandate of the

Court of Appeals for the

Second Circuit

APPOMGLS VEE osc cccwecscccccccecvetcccsskh0a

Opinion and Order of the District

Court for the Southern District

of New York (Stewart, J.)

Appendix VIII Sie eo ee pawec cok lee

Decision and Order of the NLRB

in Cedars-Sinai Medical Center

Appendix IX .....cecacceccccccccccscs ee tsla

Decisions and Orders of the NLRB

in Kansas City General Hospital

Appendix X Se Mae Mets PG pare ene See Lh

Decisions and Orders of the NLRB

in St. Clare's Hospital and Health

' Center

Appendix XI ..seeceeceeceeceecsecees ss 324

Complaint and Exhibits 6 and 7

Appendix Py Sieceseceee ences stem

Answer

Appendix XIII Sa dg kies cc ova sos 6 oaewe

Supplemental Complaint

Appendix XIV Fe ee ages eccece cc SUES

Supplemental Answer

Appendix XV .-ceccceccccccecseccecece ss 408A

Defendants' Motion for

Dismissal or Summary Judgment

TABLE OF AUTHORITIES

Cases

Abbott Laboratories v. Gardner,

DET Uae APO MLUGCT ) ccssvcers

American Federation of Labor v.

NLRB, 308 U.S. 401 (1940)...

American Ship Building Co. v.

NLRB, 380 U.S. 300 D) eee

Barnes Hospital, 224 NLRB 552

Cs EG ots Sea

Beecher Ancillary Services, Inc.,

BED MRE 642 (1976) 2.20 c cece

Beth Israel Hospital v. NLRB, 437

U.S. 483 Peete 6s eeeee eeee

Bishop v. NLRB, 502 F.2d 1024

(5th Gat. ER ie it eeeeee

Boire v. Greyhound Corp., 376

ule 473 (1964 eeee*e#s2eee#ee#e%#e#ee##*#

Buffalo General Hospital, 224

NLRB 76 .

Cedars-Sinai Medical Center, 223

MGMM 4294 (1976) os ccc cccece

Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402

ee teces

Page

40-41, 42

41, 43

57-58, 61

36, 37, 39

47, 48, 49

13, 14, 16

17, 24, 25,

33, 34, 56,

41, 42

vii

TABLE OF AUTHORITIES

Page

Clark County Mental Health Center,

22 NLRB 780 RATT 640 wews os 13

Committee of Interns and Residents

Vv. SLRB, 88 Misc.2d as

N.Y¥.S.2d 509 (Sup. Ct. N.Y.

County 1976) ..ccccrccccccvse 24

Council 19, AFSCME v. NLRB, 296

F.Supp. 1100 (N.D. Ill.) 1968. 54

Cox v. McCulloch, 315 F.2d 48

6 of Cass BROS) esd cue 606% 53

Deaconess Hospital of Buffalo,

226 NLRB 1143 ei URS 13

Deering Milliken, Inc. v. John-

ston, 295 F.2d 956 (4th Cir.

SLY. 6 csc k chek ee hewass «ex 40, 52

Dunlop v. Bachowski, 421 U.S. 560

SOUS ORG sé cus bc aie owe a bakes 4l, 42

Farmer v. United Electrical Workers,

Iil0 F.Supp. 220 (D.D.C. 1953),

aff'd 211 7.24 36. (D.C. Cir.

[953), cert. den. 347 U.S.

OOS. (295.70. 00 6-044 ates eeetass OO

Florida Power & Light Co. v. IBEW

Local 641, 417 U.S. 790

eeeeeeeeeeneeeeneeenseeee 58

General Motors Corp., 133 NLRB

1003 PROD Gs ok bs ca wae ok 62

Hanna Mining Co. v. District 2,

Marine Engineers, 392 U.S.

9 Pirbksuk do owe tees 45

viii

TABLE OF AUTHORITIES

Hotel Employees Local No. 225 v.

Leedom, 147 F.Supp. 306 (D.

D.C. 1957), aff'd 249 F.2d

306 (D.C. Cir. 1957), rev'd

358 U.S. 99 (1958).......... 44, 45, 59

Kansas City General Hospital, 225

NLRB 110, 225 NLRB No. 14

CEE ENE GR SRE C2 ne a he 25

Kansas City General Hospital, 225

NLRB 108, 225 NLRB No. 14A

Cee boG 6S tte ba woe ke e*eee8es. 25, 26

Leedom v. Int'l Union of Mine,

Mill & Smelter Workers, 352

—

PP Be } aap |

Leedom v. Kyne, 358 U.S. 184

SITS P cccccenevevensccscscecse 6, 35, 4),

45-46, 47,

48, 49, 50,

52, 53, 54

Misericordia Hospital Medical

Center, 39 SLRB No. 32

eeeeoeeoeeeeeeeeeeeeeeee 24

Modern Plastics Corp. v. McCulloch,

400 F.2d 14 (6th Cir. 1968). 53

NLRB _v. American Nat'l Insur. Co.,

SO9. UsWs BES CANS wcccccsce SB

NLRB v. Atkins, 331 U.S. 398

CNEL Rie ieee 61

NLRB v. Baptist Hospital, Inc.,

SOs Gees 77S (het el cccececcse 36-37

TABLE OF AUTHORITIES

Page

NLRB v. Baylor University Medi-

cal Center, 439 U.S. 9

eeee*esees#seeneneeesestseneeeneeee? 37

NLRB v. Bell Aerospace Co., 416

U.S. 267 opal ie ae 59

NLRB v. Brown, 380 U.S. 278

(1 eeeeeeeneeeeneteeeneeneeeeee 58

NLRB v. Caravelle Wood Products,

Inc., 466 F.2d 675 (7th Cir.

LOVa) ove bess US ReS 46 he 602 © 59

NLRB v. Catholic Bishop of Chi-

cago, 440 U.S. 490 (1979)... 39, 65

NLRB v. Committee of Interns and

Residents, 426 F.Supp. 438

(S.D.N.Y. 1977), rev'd 566

F.2d 810 (2d Cir. 1977),

cert. den. 435 U.S. 904

FE FOS «claus s Uitte oh Sas 6 o bo ce 26, ai, 33,

54, 60

NLRB v. Drivers Local Union, 362

U.S. 274 Sea a ahe 6 oo 6 e 58

NLRB v. Hearst Publications, 322

U.S. lll an as 6 ob 60

NLRB v. IBEW, Local 388, 548 F.2d

704 (7th Cir. 1977), cert.

den. 434 U.S. 837 (1977).... 60

eee eeeeeeeeeoeeeseeee 58

NLRB v. Mercy Hospital Ass'n, 606

F.2d 22 (od ET 1979), cert.

Ir.

den. 100 S.Ct. 1665 (1980)... 39

NLRB v. Insurance Agents, 361 U.S.

TABLE OF AUTHORITIES

Page

NLRB v. St. Francis College, 562

Fete 200 (Se Cabs. SF ibccree 2E

NLRB v. Sexton, 203 F.2d 940 (6th

Cir. Ia BU Ei el a ed a 59

NLRB v. Yeshiva, 444 U.S. 672

PME oki Wi ls Gian be oes ena - ae

National League of Cities v. Usery,

S20 Ushs BOF CAP Pees vcscccn WA

Niagara University, 227 NLRB No.

33 | Tea hae a ee 16

Niagara University v. NLRB, 558 F.

2d lllé ( at Te Thkioecn Bee a8

Office Employees Int'l v. NLRB,

Ue 3 ahr gars owed 59

Overnite Transportation Co. v.

NLRB, 327 F.2d 36 (4th Cir.

I bain A a ate oh et ee 63

Physicians Nat'l House Staff Ass'n

v. Murphy, 443 F.Supp. 806

Vemees og) ) pe ee ne ee 2

Physicians Nat'l House Staff Ass'n

v. Murphy, 100 LRRM 3055 (D.

Gs Cir. Te deitewioke wes 2

Physicians Nat'l House Staff Ass'n

v. Murphy, 104 LRRM 2940 (D.

C. Car. Play atl gamle 2

Royal McBee Corp., 127 NLRB 896

1 A epee ERR SRE it oS 63

TABLE OF AUTHORITIES

Page

Rusk v. Cort, 369 U.S. 367 (1962). 41

St. Christopher's Hospital for

Children, 223 NLRB 166 (1976). 13

St. Clare's Hospital and Health .

Center, 223 NLRB 1002 (1976). 13

St. Clare's Hospital and Health

Center, 229 NLRB No. 158

(1977) cocccccccccccccccccs - 27, 28, DR,

31, 33

Samaritan Health Services, 238

NLRB No. 56 elo. | a 13

Surratt v. NLRB, 463 F.2d 378

(5th Cir. PRD coe te ahaa és a 53

e al 3 v. NLRB, 365

U.S. 667 3 8, RRS Py 58

j Olor Print-

ing, 444 F.2d 1064 (5th

Cir. BUSS Koes s beaeenecwtes 53

Terminal Freight Handling Co.

v. Solien, 444 F.2d 699

(8th Cir. 1971), cert. den.

065 U.8. O96 CERT Alcveccacs BS

raf ~e 233 2.28

819 (2d Cir. 1964), cert.

den. 380 U.S. 910 (1565)... 63

er, 410 F.

2d 1354 (sth Cir. 1969),

cert. den. 396 U.S. 962

[EOE soeccacveasscessaceoesn «$7

xii

: TABLE OF AUTHORITIES

University of Chicago Hospitals

and Clinics, 535 NLRB 1032

PU a eeeee#*es

UTD Corp., 165 NLRB 346 (1967)..

Wayne State University, 226 NLRB

BOS LAPVOS ccccescccecececce

Woddail v. Commissioner, 321 F.2d

FEE SECC DER e SPOS) ccccece

Statutes

28 U.S.C. §1254(1) .. cc ccccccces

28 U.S.C. §1331...... eecccccccece

BO DiS cCs BLSST cv wcvscccescesvces

NLRA §1, 29 U.S.C. §151.........

NLRA §2(2), 29 U.S.C. §152(2)...

NLRA §2(3), 29 U.S.C. §152(3)...

NLRA §2(11), 29 U.S.C. §152(11).

NLRA §2(12), 29 U.S.C. §152(12).

NLRA §2(12) (a), 29 U.S.C. §152

Ce GD Wis 64s bake ceete< cto.

NLRA §2(12) (b), 29 U.S.C. §152

(12) (DB) cc ccccccccsccvecccece

NLRA §8(d), 29 U.S.C. §158(d)...

13, 17

21, 22, 23

20, 23

xiii

TABLE OF AUTHORITIES

NLRA §8(g), 29 U.S.C. §158(g)... 11

NLRA §9(c), 29 U.S.C. §159(c)... 12

NLRA §9(d), 29 U.S.C. §159(d)... 35

NLRA §10, 29 Use... SLGCi. chee ees 35,

NLRA §10(e), 29 U.S.C. §160(e).. 35

NLRA §10(f), 29 U.S.C. §160(f).. 35,

NLRA §213, 29 U.S.C. §183....... 11

Pub... L. No. 93-360, 88 Stat. 395,

93d Cong., 2d Sess. (1974). ll,

Miscellaneous

AAMC-AMA, Program Cost Estimations

ina Teaching Hospa tae: A

Pilot Study, i) e*eee#*es. 14

51 AHA Journal: Hospitals 67

PA be 5 RE ee oe ee 31

206 AMA Journal 2110-11(1968)... 63

AMA Liaison Committee on Graduate

Medical Education, Directory

of Accredited Residencies

a Invheas 66s cows 7-8,

Berger, "Administrative Arbitrari-

ness: A Synthesis," 78 Yale L.

J. 965 Al) D7 esr ep oer 40

42, 43,

42, 52

20, 24,

36, 60,

14,

xiv

TABLE OF AUTHORITIES

Page

Comment, "Labor Problems of

Interns and Residents:

The Aftermath of Cedars-

Sinai," XI U. San Fran. L.

SM EC gs pee eee!

Fanning, "The Health Care Amend-

ments," NYU 29th Annual Con-

ference on Labor 201 (1976. 38, 39

H.R. Rep. No. 95-980, 95th Cong.,

Oe BORG. AASTS) ccccvisccocee “OO, 68

Institute of Medicine, Medicare-

Medicard Reimbursement

Policies, Social Security

Studies, Final Report (Mar.

HEW Contract #55A-

PRM Fees ccivaseccoescceoe Li

Jaffe, "The Right to Judicial Re-

view," 71 Harv. L. Rev. 401

See 6s Wa cee eo 65s ee eee Sae 40

Joint Commission for Accredita-

tion of Hospitals, Accredita-

tion Manual for Hospitals:

1970 Updated 1573 U973) —. 31

Maute, "Student-Workers or Work-

ing Students? A Fatal Ques-

tion for Collective Bar-

gaining of Hospital House

Statt,." 38 0. of Pitts. L.

Rev. 762 bh iy 5 Sey ee 60, 6l, 63

Note, 73 Harv. L. Rev. 84 (1959. 54

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

—~

PHYSICIANS NATIONAL HOUSE STAFt ASSOCIA-

TION, CEDARS-SINAI HOUSE STAFF ASSOCIA~

TION, UNIVERSITY OF CHICAGO HOSPITALS

AND CLINICS HOUSE STAFF ASSOCIATION, and

ST. CHRISTOPHER'S HOSPITAL HOUSE STAFF

ASSOCIATION,

Petitioners,

BETTY SOUTHARD MURPHY, HOWARD JENKINS, JR.,

JOHN A. PENELLO, PETER D. WALTHER, and

JOHN H. FANNING, individually and as

Chairman and Members of and constituting

the National Labor Relations Board,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners pray that a writ of

certiorari issue to review the final judg-

ment of the United States Court of Appeals

for the District of Columbia Circuit entered

herein on July 11, 1980.

Opinions Below

The opinion of the District Court is

reported at 443 F.Supp. 806 (D.D.C. 1979),

and is reproduced as Appendix ("App.") V,

infra. The original opinion of the Court

of Appeals is not officially reported, but

is reported at 100 LRRM 3055 (1979) and is

reproduced as App. III, infra. The opinion

of the Court of Appeals en banc after re-

hearing is not officially reported, but is

reported at 104 LRRM 2940 (1980) and is

reproduced as App. II, infra.

Jurisdiction

The Court of Appeals for the District

of Columbia Circuit entered judgment, af-

firming the order and judgment of the

United States District Court for the Dis-

trict of Columbia dismissing the complaint

and entering judgment in favor of the de-

fendants, on July 11, 1980. On September

30, 1980, the Chief Justice granted peti-

tioners' application for an extension of

time in which to file this petition for

certiorari in this Court to and including

December 8, 1980.

The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. §1254(1).

Constitutional and Statutory

Provisions Involved

See App. I, infra.

Statement of the Case

1. Preliminary Statement

This is an action brought on behalf of

the house staff at the private, non-profit

Cedars-Sinai Medical Center ("Cedars-

Sinai"), University of Chicago Hospital

and Clinics ("U/Chicago"), St. Christo-

pher's Hospital for Children ("St. Chri-

stopher's"), and St. Clare's Hospital and

Health Center ("St. Clare's") (collective-

ly referred to as "the hospitals"), by the

petitioners herein, unincorporated member-

ship house staff associations at the hos-

pitals and the Physicians National House

Staff Association ("PNHA"), a national or-

ganization of house staff with which the

aforesaid local house staff associations

are affiliated, against the respondents

herein, the members of the NLRB, arising

out of NLRB determinations dismissing the

petitioners of those local house staff

associations for certification as the col-

lective bargaining representative of their

respective house staffsunder the NLRA.

The NLRB ruling was that house staff are

not employees and therefore the petition-

ers not labor organizations within the

meaning of the NLRA.

The action was instituted in the Dis-

trict Court for the District of Columbia.

The complaint alleges that the NLRB deter-

minations are in conflict with the NLRA,

including specific NLRA mandates and pro-

hibitions, and with the Fifth and Tenth

Amendments. Declaratory and injunctive

relief was sought which would require the

»NLRB to process petitioners’ applications

for certification. App. XI, XIII. The

answer is essentially a general denial of

the claim that house staff are employees

under the NLRA and the defense that the

NLRB determinations were not final orders

subject to judicial review. App. XII, XIV.

Respondents moved for dismissal of the

complaint for lack of subject-matter jur-

isdiction or, in the alternative, for

summary judgment. App. XV. The motion

was not supported by any affidavit ad-

dressing the allegations in the complaint,

but relied upon the answer and the records

of the proceedings before the NLRB. Peti-

tioners cross-moved for summary judgment

in their favor.

The United States District Court for

the District of Columbia granted the mo-

tion of respondents, denied the motion

of petitioners, and dismissed the case for |

want of jurisdiction on the ground that

the NLRB determinations were not subject

to judicial review. App. V. The United

States Court of Appeals for the District

of Columbia originally reversed the Dis-

trict Court judgment and remanded for

further proceedings consistent with the

majority opinion of Chief Judge Wright,

joined in by District Court Judge Richey

and dissented from by Circuit Judge Robb,

that house staff coverage under the NLRA

was so clear that failure to provide such

coverage warranted District Court juris-

diction under Leedom v. Kyne, 358 U.S. 184

(1958). App. III. On motion of respond-

ents, the Court of Appeals ordered en banc

that the appeal be reheard en banc (App.

IV), and after re-argument affirmed the

District Court, with a majority opinion

by Judge Robb, over the dissent of Chief

Judge Wright joined by Circuit Judges Robin

son, Wald and Mikva (App. a tad

2. The Facts

House staff officers are college and

medical school graduates, licensed physi-

cians or otherwise legally authorized to

provide medical care at hospitals, who

provide such care to hospital patients as

part of an American Medical Association

("AMA") accredited hospital-based train-=

ing program in a medical specialty or sub-

specialty. See AMA Liaison Committee on

Graduate Medical Education, Directory of

1/Circuit Judge Leventhal participated in

the argument but died before the opinion

issued. Circuit Judge Edwards did not

participate in the argument or decision.

Accredited Residencies 1977-78 (1977)

("Residency Directory") at 333-40. The

satisfactory completion of such a training

program qualifies a house staff officer to

take an AMA specialty board examination

which, if passed, results in certification

in the speciality by that board. Id. at

367. Certification is not a legal prere-

quisite to the practice of a specialty.

The described training program consists of

patient care as well as academic activi-

ties. Id. at 333-38.

The complaint here alleges that:

"(i) All the house staff officers in-

volved render medical services to

patients at the Hospitals at which

they work and train, and those house

staff officers devote most of the time

expended by them at their respective

Hospitals to performing such services.

(ii) The services thus performed by

house staff officers are subject to

the direction and control of the

Hospitals at which those services are

performed.

(iii) The house staff officers involved

receive salaries and/or stipends, and

other forms of compensation and bene-

fits, from the Hospitals and related

institutions at which such services

are performed by house staff.

(iv) The Hospitals are compensated or

reimbursed for the services thus per-

formed by their house staff officers,

by or on behalf of the recipients of

those services....

29. The house staff officers at the

Hospitals are and at all material

times have been employees for all

relevant and material purposes, in-

cluding but not limited to federal

and state income taxation.

30. House staff officers at other in-

stitutions, engaged in work and train-

ing essentially like that of the house

staff at the Hospitals, have been uni-

formly determined to be employees for

all purposes, including but not limited

to federal and state taxation, state

and local voting residence, agency

law, workmen's compensation, federal

veterans reemployment rights, and

state and local labor relations 1§ is-

lation and regulation." (348-50) .27

Further, according to the complaint, the

2/Reference to pages in the attached ap-

pendices will be designated in parenthe-

ses.

PNHA and the local house staff associa-

tions have represented house staff in

matters of empl.yment, in some instances

pursuant to labor board certification and

since 1957, (327-34). These allegations

are not contradicted by any evidence sub-

mitted by respondents herein.

37Respondents entered only conclusory de-

nials as to the referenced portions of the

complaint (372-94), accepted "as true" for

purposes of respondents' motion "all of

the facts alleged in the plaintiffs' com-

plaint...which concern matters outside the

record of the Board's proceedings and de-

cisions upon which this lawsuit is based"

(413), and relied upon the latter only as

to denials of allegations pertaining to

those proceedings and decisions (414).

The transcripts of the NLRB proceedings

are filed with this Court in connection with

the instant petition and we believe that

it will not be seriously disputed that

they amply support the evidentiary matter,

as distinct from the legal conclusions, in

the complaint referenced in the text. The

nature of the work performed by house staff

as alleged in the complaint has been au-

thoritatively confirmed in a study of 1400

teaching hospitals in the United States by

a study, sponsored by the United States

Department of Health, Education and Wel fare

ontinue

Prior to 1974 the NLRA excluded employ

ees of charitable non-profit institutions

from its coverage. Effective August 25,

1974, that exclusion was dropped upon the

enactment of the NLRA Health Care Amend-

ments by Public Law 93-360, 88 Stat. 395,

93d Cong., 2d Sess. (1974) ("PL 93-360"), which

also added notice, mediation, and fact-

finding procedures in connection with dis-

putes and strikes in non-profit health

care institutions. NLRA §§8(d), 8(g), 213

29 U.S.C. §§158(d), 158(g), 183.

In 1974 and 1975 each of the peti-

tioners herein filed petitions for certi-

3/Cont"d. = pursuant to law, which found

at 84% of the time of a house staff

officer is devoted to patient care; 10%

to "learning', 3% to "research," and

approximately 60% in patient care and

teaching without direct supervision.

Institute of Medicine, Medicare-Medicaid

Reimbursement Policies, Final Report, ch.

4 ("Graduate Medical Education") (March

1976) at 12, Table 6.

fication pursuant to NLRA §9(c), 29 U.S.C.§

159(c). Objections were raised by the

hospitals, and NLRB Regional Office hear-

ings were held. After those hearings, and

before decision, all the cases were trans-

ferred to the NLRB for decision. All the

cases were thereafter scheduled by the

NLRB for oral argument before the NLRB on

September 8, 1975, and the PNHA permitted

to participate as amicus curiae, by reason

of the NLRB determination that those cases

presented issues of importance to the ad-

ministration of the NLRA in the health

care industry. (339-42).

On March 19, 1976, in the first NLRB

decision involving house staff, the NLRB

held (Member, now Chairman, Fanning dis-

senting) that although house staff "possess

certain employee characteristics, [they]

are primarily students," and "not 'em-

ployees' within the meaning of Section

2(3) of the Act," that their house staff

organization is therefore not a labor or-

ganization within the NLRA, and that the

petition must be dismissed. Cedars-Sinai

Medical Center, 223 NLRB 251 (1976) (App.

VIII) ("Cedars-Sinai"). The same conclu-

sion was reached by the NLRB in every sub-

sequent house staff ae Each of the

cases was decided by the NLRB (Member

Fanning dissenting) without discussion of

the house staff involved, but with the

4/7St. Christopher's Hospital for Children,

223 NLRB 1976); University of Chicago

Hospitals and Clinics, 223 NURB L032 (L546);

St. Clare's Hospital and Health Center, 223

NLRB 1002 (1976); Buffalo General Hospital,

224 NLRB 76 (1976); Kansas City General

Hospital, 225 NLRB 110 (1976) Kansas

Cit "); Wayne State University, 226 NLRB

L062 (1976); Barnes Hospital, 4 NLRB

552 (1976); Deaconess Hospital of Buffalo,

226 NLRB No. 164 (1976); see also Clark

County Mental Health Center, 225 NLRB 780

(1976). Member Truesdale joined Chairman

Fanning in dissenting from Cedars-Sinai

in Samaritan Health Services, 238 NLRB No.

56 n.16(1978).

conclusory finding only that the house

staff "are not unlike those" in Cedars-

Sinai. (343-45).

The NLRB majority in Cedars-Sinai first

reviewed the educational conponents of

house staff training programs (178-83),

then asserted that house staff are paid

"on a graduated basis," dependent upon

years in the program, without regard to

the hours or nature of services (184).

The majority noted that "housestaff also

received a variety of fringe benefits,

such as medical and dental care, an annual

vacation and paid holidays, uniforms, meals

5/Contrary to the indicated view of the

NLRB, specialty boards mandate increase

in responsibility in each ensuing year of

residency (Residency Directory at 338) as

salaries increase. See also American

Association of Medical Colleges ("AAMC") -

AMA, Program Cost Estimating in a Teach-

ing Hospital: A Pilot Study 86 (1569)

the value of their [house staff] serv-

ices increases steadily as the residency

progresses, and...in the advanced years

Continued

while on duty, and malpractice insurance,"

but added that house staff are not eligible

for the hospitals' retirement plan (ibid).

House staff tenure at Cedars-Sinai gene-

rally ends with the completion of the train-

ing program, (185-86).

From the foregoing factors, the majo-

rity concluded that house staff:

",...participate in these programs not

for the purpose of earning a living;

instead they are there to pursue the

graduate medical education that is a

requirement for the practice of medi-

cine....While the housestaff spends a

great percentage of their time in di-

rect patient care, this is simply the

means by which the learning process is

carried out. It is only through this

direct involvement with patients that

the graduate medical student is able

to acquire the necessary diagnotic

skills and experience to practice his

profession. ...Nor does it appear that

those applying for such programs

5/Ccont'd. - of their residencies the qua-

lity of their services reaches a very high

level").

6/Exclusion from a pension system has been

considered irrelevant to the issue of NLRA

covera Niagara University v. NLRB, 558

F.2d 1116, WP oa Cir 13 T~ i

attached any great significance to the

amount of the stipend." (186-86) .7/

The NLRB majority in Cedars-Sinai did

not cite any NLRB or court precedent, or

any legislative history, or any other

authority of any kind. Nor does the Cedars-

Sinai majority mention a national labor

policy or any other policy implicated by

its decision. Three members of the Cedars-

Sinai majority later acknowledged that

"[m]uch of the blame for this misunderstand-

ing [of the policy considerations underly-

ing Cedars-Sinai] can perhaps justifiably

be laid at our feet for we may not have

7/It has been held that factors other than

salary motivating career choices are not an

appropriate inquiry for the NLRB (Niagara

University v. NLRB, supra, 558 F.2d at 1120-

22; NLRB v. St. Francis College, 562 F.2d

246, 250-55 [3d Cir. 1977]), a conclusion

particularly warranted by the NLRB's ex-

perience with evaluating -the money needs

and interests of religious faculty which

resulted "at best [in] a morass with which

this Board has no special expertise to deal"

(Niagara University, 227 NLRB No. 33, n.6

[I¥7oJ).

been as precise as we might have been in

articulating our views." (263-64).

Respondents acknowledged that Cedars-

Sinai was "viewed by many as an aberration

in national labor policy..." (264). The

dissent of Member Fanning showed why. He

first observes:

"Section 2(3) of the Act states that

the term 'employee' is meant to ‘'in-

clude any employee...unless the Act

explicitly states otherwise,' and pro-

ceeds to explicitly state those ex-

cluded from the definition, e.g., agri-

cultural laborers, domestic servants,

et al. 'Students' are not among those

exclusions. Recognition of an under-

lying Federal policy which seeks to

draw a line between labor and manage-

ment has further led to the exclusion,

on such policy grounds, of the addi-

tional classes of ‘employees,' namely,

confidential and managerial employees.

That is all." (195).

He then pointed out house staff are within

the ordinary common law definition of

"employee" as one who performs service for

another for compensation (196-99), so that

hospitals are, for example, subject to

vicarious liability for the acts of their

house staff (198-99). The services per-

formed by housestaff for the foregoing pur-

poses are described as follows:

"The records before us demonstrate, for

example, that housestaff officers, with-

out immediate supervision of any kind,

continually deal in matters literally |

of the ultimate significance. That

they do is a function, no doubt, of

their hours. The housestaff work

round-the-clock, 7 days a week, 52 weeks

a year. No other physicians do. They

perform their services, on an individual

basis, for periods lasting, at times,

well over 100 hours a week, in shifts

that often exceed 50 consecutive hours.

They singly staff emergency rooms, fre-

quently at times when their supposed

'teachers' are not even in the facility.

That accounts for the record facts which

demonstrate that, without supervision,

a housestaff officer can be called upon,

to open the chest wall of a 3-year-old

child; hold the heart of a patient in

his hands; remove breast tissues, kid-

neys, veins; deliver babies, insert

tubes in the tracheae of newborns and

catheters into abdominal cavaties; ad-

minister closely controlled and po-

tentially lethal medications; and for

a host of similar procedures.

For those services and innumerable

others supervised by medical staff but

performed by housestaff, the hospital

charges fees in amounts which have

sparked national debate. In return

for those services, the hospital pays

that housestaff officer what my collea-

gues call a 'stipend." It exceeds, in

some cases of multiple residencies,

$20,000 a year. From that 'stipend,'

the hospital withholds Federal and

state taxes, contributes to social

security, and provides for health in-

surance. The hospital grants vacations

and sick leaves, laundry allowances,

etc. For the negligent performance of

those services the hospital can be sued.

For those services the housestaff re-

ceives...no degree, no grades, no ex-

aminations." (200-20) (emphasis in

original).

Authoritative AMA guidelines and instruc-

tions in contemplation of house staff status

as employees are cited. (203-06). And

with respect to the majority's reference to

greater interest of house staff in quality

of training as compared to rate of compen-

sation, the dissent observed:

"That is, hopefully, not a unique

approach in any field of endeavor,

particularly professional ones....

I fail to perceive how the fact that

an individual desirous of becoming

an orthopedic surgeon chooses a re-

sidency program based on its quality

and the opportunity for extensive

training bears relevance to the ques-

tion whether, having done so, he or

she is an ‘employee’ under the Act."

(206-08).

The dissent then turned to the appli-

cable statutory language and history. He

first dealt with NLRA §2(12), 29 U.S.C. §

152(12), which defines the term "professional

employee":

"Section 2(12) was, in part, designed

to cover housestaff specifically. In

the words of the House Conference Re-

port accompanying the Taft-Hartley

amendments to the Act, the section

was designed to embrace 'such persons

as legal, engineering, scientific and

medical personnel together with thier

junior professional assistants' and,

as the language of Section 2(12) (b)

so clearly states, included in the

definition of professional employee

are individuals who have completed

courses of specialized instruction

and are performing related work under

the supervision of Section 2(12) (a)

professionals. The definition fits,

recisely, housestaff officers."

(310-11) (emphasis in original).

Member Fanning then adverted to the legis-

lative history of PL 93-360:

"A large segment of the committee

hearings on the recent amendments

was devoted to the testimony, state-

ments, and accompanying documents of

representatives of the housestaff in

support of the amendments. For the

most part, the testimony concerned

itself with the contention advanced

by the Physicians National Housestaff

Association, amicus here, that house-

staff officers should be excluded

from the ambit of Section 2(11) of

the Act, which sets forth the defini-

tion of 'supervisor,' because house-

staff officers do not exercise super-

visory authority ‘in the interest of

the employer.' At no time during the

course of the hearings was even a men-

tion made that housestaff officers,

because 'students,' might not be en-

titled to coverage under the Act. In

point of fact,any reasonably diligent

reading of the legislative history

surrounding the amendments would make

it clear that coverage of housestaff,

in some context, was an assumption on

the part of Congress. That is evi-

dent when one considers the congre-

ssional [committees'] response to the

housestaff representatives' conten-

tion that amendment of Section 2(11)

was necessary:

"Various organizations representing

health care professionals have urged

an amendment to Section 2(11) of the

Act so as to exclude such pro-

fessionals from the definition of

"supervisor'. The Committee has

studied this definition with parti-

cular reference to health care pro-

fessionals, such as...interns, re-

Sident, fellows...and concludes that

that proposed amendment is unnecessary

because of existing Board decisions.

The Committee notes that the Board

has carefully avoided applying the

definition of a 'supervisor' to a

health care professional who gives

direction to other employees, which

direction is incidental to the pro-

fessional's treatment of patients

and thus is not the exercise of

Supervisory authority in the interest

of the employer.' (Emphasis supplied.)

Throughout the debates on the floors

of both Houses, again, no mention of

the ‘'student' status of housestaff

officers can be found. Senator

Cranston, co-sponsor and floor mana-

ger of the Senate bill, indicated, on

the other hand, that one of the con-

ditions the bill was designed to re-

dress was the 'notoriously underpaid...

average annual salary for all hos-

pital employees--including doctors....

According to [the] president of the

Physicians National Housestaff Associa-

tion, the average house staff officer--

intern, resident, or fellow--works

70 to 100 hours per week, and earns

about $10,000 per year. His hourly

wage, then ranges from $1.92 to $2.74.'

The majority's response to the above

legislative history bears repeating:

As we have found...that interns,

resident, and clinical fellows are

not employees...we find no merit in

Petitioner's contention that they

are employees based on Sec. 2(11)....

Obviously, no petitioner has contended

that it represents '‘employees' be-

cause it represents 'supervisors.'

And yet, that, apparently, is how my

colleagues dismiss the compelling

argument that, in treating the qes—

tion of amendment to Section '

Congress Clearly and explicitly re-

cognized housestaff as employees.

It is clear to me, as the language of

Section 2(12) states, the legislative

history of Section 2(12) states, the

committee Reports on the hospital

amendments state, and Senator Cranston

states in explanation to his collea-

gues, that housestaff officers are

covered by this Act." (212-16).

--.in considering how to minimize the

potential for disruption of medical

services inherent in an amendment

granting significant numbers of em-

ployees the right to strike, Congress,

realizing that recognitional strikes

do not cease because outlawed, con-

sidered it the wiser course to make

available the provisions of this

statute for the orderly resolution of

such recognitional struggles: 'The

Committee was also impressed with the

fact, emphasized by many witnesses,

that the exemption of nonprofit hos-

pitals from the Act had resulted in

numerous instances of recognition

strikes and picketing. Coverage

under the Act should completely elim-

inate the need for any such activity,

since the procedures of the Act will

be available to resolve organizational

and recognition disputes.'

And so there is a pathetic irony in

what my colleagues do today. The on-

set of organization of housestaff

officers is among us. Fewer cases

may come to this Agency, but as many

will come to the training hospitals.

The one group so singularly involved

in the congressional issues, both in

terms of its immediate relationship

with the delivery of medical services

and in terms of its recognitional

interests, is, today, by fiat, read

out of the Act." (217-19) (emphasis

in original).

Following Cedars-Sinai the CIR com-

menced proceedings first before the New

York State Labor Relations Board ("SLRB")”~

and then in the New York state courts to

reinstate the pre-PL 93-360 SLRB jurisdic-

tion over New York house staff (see infra

atr..30), in view of their exclusion from

NLRB jurisdiction under Cedars-Sinai. When

the New York State Supreme Court authorized

such SLRB jurisdiction, citing the NLRB de-

87See Misericordia Hospital Medical Center,

39 SLRB No. 32 (1976).

9/See Committee of Interns and Residents v.

SLRB, Be Misc.2d 502, 38s N.Y.S.2d 509 (Sup.

Ct. W.Y. County 1976).

10/

Cision in Kansas City I as grounds, the

NLRB on November 9, 1976, sua sponte, "re-

vised" its decision in Kansas City I in the

form of Kansas City General Hospital, 225

NLRB No. 14A (1976) (App. IX) ("Kansas City

11/

II"). This NLRB determination (Member

Fanning again dissenting) was expressly

directed at the state court decision, "dis-

avowed" the language in Kansas City I re-

lied upon by the state court, and declared

that Cedars-Sinai and the other NLRB house

staff decisions involved a matter of "na-

tional labor policy" (not further explained)

and were intended to preempt and oust all

state and local governments from jurisdic-

10/The NLRB there indicated an absence of

NLRA jurisdiction over the hospital as well

as over house staff.

11/Kansas City II involved none of the

parties concerned in the New York litiga-

tion, and the issue of preemption had not

been raised or argued in that case. (246-

47).

tion over voluntary hospital house staff

labor matters.

One week after Kansas City II, the

NLRB commenced a proceeding, in the United

States District Court for the Southern

District of New York, to enjoin the SLRB

and the CIR from proceeding with the im-

plementation of the original state court

ruling authorizing SLRB jurisdiction. The

NLRB claimed that the SLRB was ousted of

jurisdiction by reason of preemption. The

District Court rejected the NLRB preemption

claim, denied the NLRB motion for an in-

junction, and granted the CIR cross-motion

for summary waa

On May 27, 1977, following the deci-

sion of the District Court and shortly

IZ7NLRB v. Committee of Interns and Re-

sidents, 426 F.Supp. 436 (S.D.N.¥. 1977)

(App. VII).

after the filing of the NLRB appeal to the

Court of Appeals for the Second Circuit,

the NLRB rendered its decision in St. Clare's

Hospital and Health Center, 229 NLRB No.

158 (App. X) ("St. Clare's") denying a

motion for reconsideration pending and un-

decided since April 27, 1976. A national

labor policy concerning house staff labor

relations, not previously stated by the

NLRB or discernible to the District Court

in NLRB v. CIR (167-68), was now articu-

lated (260-85). Chairman Fanning dis-

sented. (286-308). Member Jenkins con-

curred only in the result, and stated that

it was otherwise "necessary that I dis-

associate myself from the majority view"

because he "disagree[d] wholly" with the

"seeming willingness [of the majority] to

regard any employees who also engage in

structured studies as per se being somehow

and in some respects disqualified from

union representation." (285-86). Former

Chairman and then Member Murphy stated

that she "is sympathetic to Member Jenkins'

concurrence," but, "under the circumstances

of this inca she joins the majority

herein." (309-10).

Thus constituted, the majority in

St. Clare's, after acknowledging "uncer-

tainty" and "misunderstanding" caused by

the NLRB as to "the precise effect of the

1973 health care amendments on the status

of house staff," undertakes "to clarify

Our view of the relevant legal princi-

ples." (261-63). According to the St.

Clare's, majority, "Cedars-Sinai is con-

sistent with, and reflective of, long-

13/Nothing further appears in St. Clare's

to explain or clarify the “circumstances”

thus referred to. The decision does not

discuss any facts or "circumstances" re-

lating directly to St. Clare's Hospital.

standing national labor policy as devel-

oped and articulated by this Board." (264).

In support of this proposition the major-

ity cites various categories of past NLRB

decisions (265-71), none of them applic-

able according to Chairman Fanning's dis-

sent (296-306) which he prefaces with the

observation that the NLRB "'policy' to

which the majority alludes does not, so

far as is relevant here, exist. That is

to say, there is not, nor has there ever

been, any ‘longstanding’ policy which

denies representation rights completely

to 'students' who are also ‘employees'

14/

within the meaning of" the NLRAY (295).

i14/Chairman Fanning was appointed to the

NLRB in 1957 (94 LRRM 321), and has the

longest tenure of any member of the NLRB.

Member Jenkins is the next senior member.

(320). Chairman Fanning noted that, with

Member Jenkins, he “cannot recall how this

particular policy about 'students' came

to be.” (Ibid.)}.

The St. Clare's majority added various

policy considerations to those it found re-

flected in prior NLRB cases. The mutual

interest of the student-teacher relation-

ship in education is said to be so at var-

iance with the conflicting interests in the

employer-employee relationship that inject-

ing collective bargaining into the former

"would, in our judgment, prove detrimental

to both labor and educational policies."

(271-73). Collective bargaining is con-

sidered by the majority to be "the very

antithesis of personal individualized edu-

cation." (273). According to the majority

Opinion, "the student-teacher relationship

is an inherently inequalitarian one" with

respect to which collective bargaining is

"an anathema." (274). “Academic freedom"

as to matters such as curriculum, examina-

tions, and advancement would become "bar-

gainable." (274-75). The "long hours"

24,

which, the majority acknowledges, house

staff officers "work notoriously" pursuant

to ‘educationally sound" reasons, "could

become bargainable." (276-76). And sub-

jective assessment of house staff perform-

ance, pursuant to which continuation in or

dismissal from a training program ( and

therefore career) is determined, "would be

tantamount to discharge and thus a manda-

tory subject of bargaining," subject ulti-

mately to arbitration which the St. Clare's

majority considers an inapprorpiate

15/

modality. (276-77).

1I5/By way of contrast, the Joint Commission

for Accreditation of Hospitals, Accredita-

tion Manual for Hospitals: 1970 Updated

[973 at 42-43 (1973), requires peer review

and ultimately review by a lay governing

body in the event of failure of a hospital

to appoint or reappoint a staff or attend-

ing physician to the medical staff. More

than 90% of reporting private non-profit

hospitals with collective bargaining con-

tracts covering professionals, provide for

arbitration of disciplinary matters. 5l

American Hospital Association ("AHA")

Journal: Hospitals 67, 71-73 (May 1, 1977.

Chairman Fanning responded toc all this

follows:

",.-housestaff, if indeed 'students,'

are unlike any others and...the hos-

pitals at which they work, if indeed

‘educational institutions,' are un-

like any others. The former proposi-

tion is self-evident, I submit. I am

not aware of any of the ‘students’ in

the cases to which my colleagues allude

having, but for one example, legal

authority to make incisions in other

human beings. The denomination of

the institutions involved as 'educa-

tional' is equally in appropriate.

All of the educational facilities

found in the cited cases, unlike all

of the hospitals found in the house-

staff cases, were incorporated under

applicable state education laws. Of

course, that they were merely reflects

that the State, as well as the legisla-

tive history of the amendments, which

at no point, as far as I can find,

referred to any 'educational' insti-

tutions being added to Board juris-

diction, discerned the obvious differ-

ences between universities and hos-

pitals." (291-92) (emphasis in ori-

ginal).

"In the final analysis, it is the

height of absurdity for Congress to

enlarge this Board's jurisdiction, to

encompass the vast bulk of health

care institutions in this country for

the avowed purpose of minimizing the

potential disruptions of health care

delivery posed by organizational

efforts of individuals not covered by

Federal regulation until the amend-

ments, and then, for this Board, upon

some notion that the decisional basis

for the question of coverage is found

in 'precedent' involving student jani-

tors, science graduate assistants,

and physics majors, to leave without

regulation those in the forefront of

organizing activity in the health “care

field, doctors. And, as Judge Stewart

indicated ‘in his opinion, the recent

strikes at various New York City hos-

pitals are the direct result of Cedars.

They were also completely incompatible

with the amendments and precisely the

threat sought to be cured." (306-07).

Following St. Clare's the Court of

Appeals for the Second Circuit reversed the

District Court in the proceeding brought

by the NLRB against the CIR (566 F.2d 810

[1977]) (App. VI), and certiorari was de-

nied (435 U.S. 904 [1978]). By that time

the instant action had already been in-

stituted. The Second Circuit held that

"it is clear that Congress intended to in-

clude housestaff within the coverage of"

PL 93-360 (131), that Congress had,in con-

junction with such coverage, pre-empted the

states (130-34), that the NLRB was there-

fore authorized to make a pre-emptive deter-

mination on the subject (131-32), and that

"{i]Jf the NLRB abused its discretion in

Cedars-Sinai, those proceedings [i.e., the

instant action] will correct the error"

(135). In the District of Columbia, how-

ever, as indicated, the District Court and,

ultimately, the Court of Appeals held that

they were without jurisdiction to review

or correct the NLRB determinations.

Reasons for Granting the Writ

THE HOLDING BELOW FORECLOSES ANY

JUDICIAL REVIEW OF THE NLRB DE-

TERMINATIONS AND IS THEREFORE IN

CONFLICT WITH DECISIONS OF THIS

COURT AND OF OTHER CIRCUITS.

The majority on re-hearing below con-

sidered that since the NLRB determinations

were made in the context of a representa-

tion, not an unfair labor practice ("ULP")

proceeding, and the NLRA contemplates Cir-

cuit Court judicial review, and there only

of final ULP orders of the NLRB (NLRA §§9[d],

10[e], [f], 29 U.S.C. §§159[d], 160[e], [f])

(hereinafter collectively referred to as

"§10"), ordinary District Court equity

jurisdiction under 28 U.S.C. §1331 and 1337

can be invoked only in the extraordinary

circumstances of Leedom v. Kyne, supra

("Kyne"), where the NLRB had violated an

express proscription or mandate of the

NLRA, and the action here fails because the

NLRA does not, in so many words, mandate

coverage of house staff. The majority

"agree" that in their analysis, the NLRB

determinations, as any other NLRB denial of

representation, "may evade all judicial re-

view" (20), even if the NLRB were to "de-

cide that workers such as plumbers or car-

penters are not ‘employees'" (22), or ren-

der "a series of arbitrary or irrational

decisions" (23), as well as here where those

determinations foreclose state and local,

not just national, labor relations law cov-

erage of house staff (22).

The original majority opinion and the

dissent on re-hearing below thoroughly ‘ex-

plicate the respects in which the majority's

views on re-hearing conflict with §16 hold-

ings and views of this Court (23-52, 54-76),

and we rely on, without repeating the sub-

stance of the opinions of Chief Judge

Wright. Our discussion is confined to

matters not there covered or emphasized.

(1)

This Court has recognized that cover-

age of health care facilities under the

NLRA by PL 93-360 was motivated by pro-

found concern for the safety and welfare of

patients placed at risk by the labor in-

stability presumably minimized by such

coverage. Beth Israel Hospital v. NLRB,

437 U.S. 483, 496-500, 505, 507-08, 509,

513-14 (1978) ("Beth Israel"); NLRB v.

Baptist Hospital, Inc., 442 U.S. 773, 783-

84, 789-90 (1979) ("Baptist Hospital").

That concern extended in the cases cited

to the careful drawing and judicial review

of NLRB rules to govern union solicitation

at hospitals lest such activity disturb

patient care. Beth Israel, supra; Baptist

Hospital, supra; see also NLRB v. Baylor

University Medical Center, 439 U.S. 9 (1978),

("Baylor"). In the described setting this

Court noted that NLRB rules are "judicially

reviewable for consistency with the Act"

(Beth Israel Hospital, supra, 437 U.S. at

501); "the courts have the duty to review

the Board's presumptions both ‘for con-

sistency with the Act, and for rationality'"

(Baptist Hospital, supra, 442 U.S. at

16/

787). Here, however, where we deal with

I6/See also, to the same effect, NLRB v.

Yeshiva, 444 U.S. 672, 691 (1980). Mr.

Justice Brennan has joined in the cited

formulation even where he has dissented

from its application in the hospital cases.

See Baptist Hospital, supra, 442 U.S. at

797; Baylor, supra, 439 U.S. at 12; see

also Nay. es iva, supra, 444 U.S. at

692-94,

house staff who provide essential medical

services to hospital patients which, if

interrupted, causes not merely disturbance

by union solicitation but threatens total -.

disruption of patient care, the courts be-

low have held that there is no judicial review to

determine consistency with the NLRA, or even

rationality, of NLRB rules which enunciate,

as a matter of "national labor policy," that

no house staff anywhere in the nation shall

have access to statutory mechanisms believed,

on the basis of past health care experience

(Fanning, "The Health Care Amendments,"

NYU 29th Annual Conference on Labor, 201,

203-05 [1976]), to maximize labor peace and

stability. It cannot be that anything in

the NLRB's experience in respect of its

jurisdiction over health care facilities

or related areas of NLRA coverage of pro-

fessionals assures that the NLRB is less

needful of judicial review there than

elsewhere. See Beth Israel, supra, 437

U.S. at 513 n.4 (Powell, J., concurring) ;

NLRB v. Mercy Hospital Ass'n, 606 F.2d 22,

25-28 (2d Cir. 1979), cert. den. 100 S.Ct.

1665 (1980); Fanning, op. cit. supra, at

210-18; see also NLRB v. Yeshiva, supra;

NLRB v. Catholic Bishop of Chicago, 440

U.S. 490 (1979).

The decisions below, granting insula-

tion of the NLRB determinations from the

accountability implicated by judicial re-

view, are, in any event, of vast importance.

The NLRB house staff decisions impact dir-

ectly, locally and nationally, on extra-

ordinarily sensitive, substantial and exter

sive interests. The decisions below accept

the doctrine that such administrative rul-

ings can be wholly immune from judicial re-

view or remediation. The District of

Columbia Circuit Court of Appeals considered

the issues weighty and difficult enough to

convene and decide them en banc, and was

so divided on the issues as to be able to

reach only a bare majority. We believe the

matter demonstrably of an order of magnitude

warranting this Court's review.

(2)

The complaint's jurisdictional bases

of 28 U.S.C. §§1331 and 1337 constitute the

historical grounds for equitable relief by

a District Court where a federal agency

acts arbitrarily or in excess of statutory

or constitutional goa The rule

established by this Court is that such

equity jurisdiction may be defeated only

where there is "clear and convincing evi-

dence" that the Congress intends to deny

judicial review. Abbott Laboratories v.

17/See Jafte, “The Right to Judicial Re-

view," 71 Harv.L.Rev. 401 (1958); Berger,

"Administrative Arbitrariness: A Synthe-

sis," 78 Yale L.J. 965, 966-67 (1969);

Deering Milliken, Inc. v. Johnston, 295

F.2d 856, 860-63 (4th Cir. 1961).

Gardner, 387 U.S. 136, 140, 141 (1967);

Rusk v. Cort, 369 U.S. 367, 379-80 (1962);

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 410 (29721) 7 Dunlop v. Backowski,

18/

421 U.S. 450, 567 (1975).

An NLRB order in a representation pro-

ceeding was never intended, as respondents

must show by "clear and convincing evidence,"

to be immunized from judicial review. When

an NLRB representation determination (such

as a unit determination or certification)

is ultimately incorporated in an ULP order,

the determination and the ULP order are re-

viewable as to arbitrariness, or abuse of

I8/In connection with judicial review of

an NLRB order in a representation pro-

ceeding, the Court noted that "members of

the Board, concede...that the District

Court had jurisdiction of the suit under...

§1337, unless the review provisions of the

National Labor Relations Act destroyed it."

Kyne, supra, 358 U.S. at 187; see also

American Federation of Labor v. NLRB,

308 U.S. 401, 404, 412 (1940).

discretion, or of statutory authority, by

the appropriate United States Court of Appeals.

No reason appears why §10 reviewability in

the foregoing circumstances should be grounds

for the ruling below that no judicial re-

view exists where, as here, the representa-

tion determination is final and never be-

comes the subject of an ULP order. Indeed,

by its terms §10(f) is not confined to

ULP orders, only to final orders.

This Court has held that the avail-

ability of statutory review in one aspect

of agency action, does not usually fore-

Close or limit statutory review in a diffe-

rent aspect of agency action. Abbott

Laboratories v. Gardner, supra, 387 U.S.

at 141; Dunlop v. Backowski, supra; Citi-

zens, etc., v. Volpe, supra. It is, there-

‘fore, here decisive that the legislative

history of §10 shows no purpose or intent

to deny judicial review of arbitrary or

unauthorized NLRB action (24-26), whether

that actionis by way of a representation

determination or an ULP order. At most,

§10 defers judicial review until unit and

certification matters are incorporated in

an ULP order so that unit determination and

certification may proceed without delay.

But when, as here, such delay is not at

risk, nothing in the origins of §10 suggests

that it authorizes the foreclosure of judi-

cial review sustained below. In no event

does §10 constitute the clear and unequi-

vocal evidence of a legislative purpose to

deny all judicial review which is required

by the decisions of this Court as a condi-

tion of such denial.

(3)

In American Federation of Labor v.

NLRB, 308 U.S. 401 (1940), the Court care-

fully confined its holding to the proposi-

tion that §10 would not :sustain review of

- =

an NLRB order of certification in the Court

of Appeals in the first instance, as dis-

tinct from review in the District Court

under §1337. Id. at 404-05, 412.

Hotel Employees Local No. 225 v. Lee-

dom, 147 F.Supp. 306 (D.D.C. 1957), aff'd

249 F.2d 506 (D.C. Cir. 1957), rev'd 358

U.S. 99 (1958), involved an NLRE order dis--

missing a hotel employees' union petition

for representation. Jurisdiction was de-

clined by the NLRB on the basis of a long-

standing NLRB policy not to exercise juris-

diction over the hotel industry. The

District Court held that equity jurisdic-

tion existed to determine whether the NLRB

action was arbitrary or unauthorized (147

F.Supp. at 307-08), but then concluded that

the action was not arbitrary (id. at 308-09).

The Circuit Court affirmed without opinion.

Judge Fahy dissented, noting particularly

the "[j]Jurisdiction in the District Court

to entertain the action." 249 F.2d at 508.

This Court reversed on the merits, thus

affirming jurisdiction, and later indicated

that Hotel Employees sustained equity re-

lief in the District Court absent §10 judi-

cial review. Hanna Mining Co. v. District

2, Marine Engineers, 382 U.S. 181, 190

(1965). None of the "extraordinary circum-

stances" required by the courts below here

19/

were present in Hotel Employees.

Kyne, decided in the same Term as

Hotel Employees, is not the talismanic for-

mula it is rendered by the courts below

here. As Kyne puts it:

"Does the law, ‘apart from the review

provisions of the...Act,' provide a

19/7In Leedom v. Int'l Union of Mine, Mill

& Smelter Workers, 352 U.S. 145 (1956), a

District Court injunction of an NLRB non-

compliance order was held authorized be-

cause that order was not compatible with

the NLRA, although no express statutory

mandate or prohibition was violated.

remedy? We think the answer surely

must be yes." (358 U.S. at 188).

This formulation is significant here since

it was made over a dissent which read the

NLRA to limit judicial review to §10 and

to leave non-ULP dispositions exclusively

to the NLRB mechanism. Id. at 197-201.

The center of Kyne is not whether some pre-

cise particular of the NLRA can be pointed

to, but the proposition that:

"This Court cannot lightly infer that

Congress does not intend judicial pro-

tection of rights it confers against

agency action taken in excess of dele-

gated powers." (Id. at 190).

Such language cannot immunize from judicial

review NLRB action so clearly violative of

the purpose, history, intent and policy of

the NLRA that the members of the NLRB have

not attempted in the courts below to defend

that action on the merits against such

charged violation

The Kyne limit on District Court juris-

diction is a function of how "strong and

clear" is the incompatibility between the

challenged NLRB action and the NLRA. (29).

Of course that incompatibility is "strong

and oe where a specific provision is

plainly violated. But comparable incom-

patibility exists where "gross transgression"

amounting to "clear error of law" can be

shown. (30). And here just such incom-

patibility is vigorously claimed and vir-

tually uncontested. Only distortion of

Kyne would deny reviewability in such cir-

cumstances.

Boire v. Greyhound Corp., 376 U.S.

473 (1964), was an employer challenge to

an NLRB unit determination brought on the

eve of an election. District Court juris-

diction was denied by the Court, which viewed

the "employer" status question raised as

"essentially a factual issue, unlike the

question in Kyne, which depended solely

upon construction of the statute." Id. at

481. The Court noted carefully that NLRB

unit determinations, such as that challenged

in Boire,

",..are normally reviewably only where

the dispute concerning the correctness

of the certification eventuates ina

finding by the Board that an unfair

labor practice has been committed, as

for example, where an employer refused

to bargain with a certified represen-

tative on the ground that the election

was held in an inappropriate bargain-

ing unit. In such a case, §9(d) of

the Act makes full provision for judi-

cial review of the underlying certi-

fication order..." (Id. at 477).

In the circumstances of Boire, judicial re-

view was not precluded or even limited, only

deferred. NLRB abuse of discretion, un-

authorized action, etc., could all be raised

by, and would be available to Greyhound in

Boire in review of the ULP order which

Greyhound could cause to be issued. In

Kyne, as here, review of such matters can

only occur by way of the NLRB denial of

representation, since, as the Court below

acknowledged (20 ), no ULP order can be

expected. Boire does not, therefore, over-

rule or limit Kyne where, as here, judicial

review of the NLRB denial of representation

order was authorized because timely and not

otherwise available.

(4)

Kyne dealt with the statutory right

of professionals not to be included in a

unit with non-professionals without the ap-

proval by vote of the opetesuionals. If

house staff are professional employees with-

in the meaning of NLRA §2(12) (b), they have

sustained the far greater loss of all right

to NLRA coverage, not just inclusion within

a unit together with non-professionals.

The mandate of §2(12) (b) involved is,

moreover, particular to professional em-

ployees. For while the general definitioral

section indicates that covered employees

"shall include any employee" (NLRA §2[2],

29 U.S.C. 152[2]), §2(12) (b) specifically

defines and covers professional employees

thereby mandating with particularity cover-

age of all those who come within that defi-

nition. Denial of coverage to those within

§2(12) (b) violates a statutory mandate no

less specific than that involved in Kyne.

The response of the court below to the

apparent applicability of §2(12)(b) is that

it is inapplicable to those who are not

first shown to be employees. (17). This re-

sponse is unconvincing for purposes of eva-

luating the effect of Kyne here. NLRA

%$2(12) (b) is separate from and not part of

§2(2), and thereby suggests more than just

an extension of the term "employee." By

describing the characteristics of a pro-

fessional employee, §2(12) (b) not only de-

fines who is a "professional," but also who

is an "employee." Although the NLRB deter-

minations are premised upon a perceived

dichotomy between student and employee for

NLRA purposes, §2(12) (b) tells us that one

who has completed medical school courses

(i.e., "courses of specialized intellectual

instruction and study" involving "knowledge

of an advanced type in a field of science...

customarily acquired by a prolonged course

of specialized intellectual instruction and

study in an institution of higher learning

or a hospital," NLRA §2[12][da]), and is a

physician-student in the sense of being a

specialist-trainee or apprentice supervised

by specialists in order to qualify as a

specialist (i.e., “is performing related

work under the supervision of a professional

person to qualify...to become a professional

employee"), comes within the scope of §2(12)

(b). The NLRA, therefore, mandates coverage

of professionals who are engaged as trainees—

the precise situation of house staff--and

the student or learning aspect of train-

ing is thereby explicitly rendered non-dis-

qualifying for purposes of coverage of pro-

fessionals, directly contrary to the NLRB

house staff determinations.

The impact of §2(12)(b) is decisive.

For that provision cannot be relegated to

the non-specific and therefore non-Kyne

category to which the courts below assigned

the general coverage provisions of §2(2).

If the NLRB house staff decisions violate

the purpose of Congress to cover such per-

sonnel within the NLRA, then by reason of

§2(12) (b) they violate the kind of specific

mandate which warrants full judicial re-

view and relief according to the most narrow

reading of Kyne.

(5S)

The Fourth, 20/ Fifth2]/ ana Bighth22/

20/Deering Milliken, Inc. v. Johnston, 295

F.2 cn Ciz. iF C.J. Haynsworth:

"If the §10(f) proceeding under the National

Labor Relations Act is inadequate to pro-

tect the plaintiff's right, however, the

district court had jurisdiction to enforce

the right" [id. at 864]).

rat fns. 21 & 22 next page.

i, teas

Circuit Court of Appeals have indicated

that District Court equity jurisdiction ob-

tains to review arbitrary or unauthorized

NLRB action short of an ULP order, as have

several earlier opinions of the District

23/

of Columbia Circuit Court of Appeals.

21/Surratt v. NLRB, 463 F.2d 378 (5th Cir.

1972) (NLRB failure to decertify pursuant

to NLRB "blocking charge rule," held, vio-

lation of NLRA and reviewable in District

Court); Templeton v. Dixie Color Printing,

444 F.2d 1064 th Cir. 1971) (NLRB failure

to decertify union no longer representing

majority, held, violation of NLRA and re-

viewable in District Court); see Bishop v.

NLRB, 502 F.2d 1024, 1031 (5th Cir. 1974).

ea Freight Handling Co. v. Solien,

4F., th Cir. 19/71), cert. den.

405 U.S. 996 (1972) (failure of NLRB to

petition for injunctive relief against

secondary boycott, held, reviewable by

District Court and violation of NLRA).

23/Farmer v. United Electrical Workers, 110

F.Supp. 220 (D.D.C. 1953), aff'd 211 F.2d

36 (D.C. Cir. 1953), cert. den. 347 U.S.

943 (1957); Kyne, supra, 249 F.2d 490, 492

(D.C. Cisse id ; Cox v. McCulloch, 315

F.2d 48, 50 (D.C. Cir. >

See also Modern Plastics Corp. v.

McCulloch, 400 F.2d 14, 16 (6th EP 1968)

(NLRB argued "that the Leedom v. Kyne pro-

cedure is available only to unions since an

Continued

And in the related NLRB v. CIR litigation,

it will be remembered, the Second Circuit

Court of Appeals, with full cognizance of

the circumstances which obtain here, ex-

pressly considered that there is present

jurisdiction in this action to determine

"the wisdom of the NLRB decision" so that

any abuse by the NLRB of its discretion

could be corrected here. (135). The deci-

sion below thus conflicts with applicable

decisions in other Circuits as. well as of

this Court.

23/7Cont'd. - employer can almost invariably

obtain review of the Board's action by re-

fusing to bargain with the certified repre-

sentative"); Council 19, AFSCME v. NLRB,

296 F.Supp. 1100 (N.D. Illi. 1 NLRB re-

fusal to exercise jurisdiction over non-

proprietary nursing homes, held, reviewable

and unlawful under NLRA); Note, 73 Harv.L.

Rev. 84, 220 (1959) ("the really significant

effect of...[Kyne] is that it provides the

losing union [after certification in a

representation proceeding] an effective

avenue of review").

-)- ae

THE NLRB DETERMINATIONS ARE UN-

AUTHORIZED BY AND CONTRARY TO

THE NLRA, INCLUDING SPECIFIC MAN-

DATORY AND PROSCRIPTIVE PROVI-

SIONS OF THE NLRA, AND VIOLATIVE

OF ‘HE CONSTITUTION.

Neither the decisions below nor re-

spondents undertake to demonstrate that the

NLRB determinations reflect any NLRA pro-

vision or purpese to exclude house staff

from NLRA coverage. The argument made is

that respondents have no such burden and

so that burden is never either assumed or

carried. Not only is this view contrary

to the teachings of this Court, particularly

in the NLRB's health care jurisdiction (see

supra 36-39), butyit fails also because of

the clear NLRA coverage of house staff and

the mandate of this Court that the NLRB

comply with and not exceed such a statutory

warrant. In the latter respect we shall

rely upon and not repeat the compelling

demonstration in the opinions of NLRB

Chairman Fanning and Chief Judge Wright,

and we discuss only such aspects of this

matter not there fully covered.

(1)

The NLRB determinations are not a func-

tion of the facts in any single house staff

case. All the pending original cases were

heard together and decided on a common

basis. (341-45). Cedars-Sinai discussed

conditions supposed by the NLRB to be

general to all house staff, as they are by

reason of the common standards and require-

ments imposed upon all house staff. See

Residency Directory, passim. And ultimately

the NLRB made clear that its house staff

decisions were functionsof a "national

labor policy" with which any house staff

coverage, national or local, would be in-

compatible. The determinations therefore

constitute a per se rule that house staff

are to be excluded from NLRA and other

like coverage.

Customary judicial deference to the

usual NLRB case-by-case fact-finding and

exercise of discretion is not due the

legislative function implicit in any sub-

stantive per se rule, particularly as to

‘NLRB jurisdiction and NLRA coverage.

United States v. Feaster, 410 F.2d 1354,

1362 n.8 (5th Cir. 1969), cert.den. 396

U.S. 962 (1969). This Court has frequently

held that such per se rules by the NLRB

are invalid unless consistent with NLRA

language, history or purpose. An NLRB rule

that a hiring hall clause in a union con-

tract was per se unlawful was stricken in

Teamsters Local 357 v. NLRB, 365 U.S. 667

(1961):

"Where, as here, Congress has aimed

its sanctions only at specific dis-

criminatory practices, the Board

cannot go farther and establish a

broader, more pervasive regulatory

scheme." (Id. at 676).

In American Ship Building Co. v. NLRB,380

U.S. 300 (1965), an NLRB per se order deal-

ing with "lock outs" was held unauthorized:

"(T]he Board construes its functions too

expansively when it claims general au-

thority to define national labor pol-

icy by balancing the competing inter-

ests of labor and management." (Id.

at 316).

In NLRB v. Insurance Agents, 361 U.S. 477

(1960), and NLRB per se determination con-

cerning harrassing union tactics during

contract negotiations was held invalid:

"Our labor policy...[does] not...

contain a charter for the National

Labor Relations Board to act at large

in equalizing disparities of bargain~

ing power between employer and union."

(Id. at 490) .24/

24/Similarly stricken have been non-NLRA

authorized NLRB per se determinations that

it is unlawful for an employer to bargain

for a contract management clause (NLRB v.

American Nat'l. Insur. Co., 343 U.S. 395

[1952}), or to lockout regular employees

and utilize temporary replacements during

a strike at another member of a multi-em-

ployer bargaining group (NLRB v. Brown,

380 U.S. 278 [1965]), or for a union to

picket peacefully to compel recognition

(NLRB v. Drivers Local Union, 362 U.S. 274

[1960]), or to discipline supervisors-mem-

bers for crossing a picket line and per-

forming rank-and-file struck work (Florida

Power & Light Co. v. IBEW Local 641, 417

U.S. 790 [1974]).

And particular to this litigation are those

holdings of the Court invalidating NLRB per

se determinations as to NLRA-covered forms

of employment, absent supporting NLRA langu-

age or purpose, both in cases where those

determinations found and where they excluded

.25/

from NLRA coverage. The NLRB determina-

tions also contravene decisions of other

26/

Circuits.

25/O0ffice Employees Int'l v. NLRB, 353 U.S.

313 (1957); Hotel Employees v. Leedom, 358

U.S. 99 (1958); NLRB v. Bell Aerospace Co.,

416 U.S. 267 (1974); cf. NLRB v. Yeshiva,

supra.

367 See, particularly, NLRB v. Caravelle

Wood Products, Inc., 466 F.2d 675 (7th Cir.

197°) (NLRB per se rule excluding from unit

relatives of substantial stockholders in

closed corporations as not employees within

NLRA, held, invalid extension of NLRA §2

[3]), and, to like effect, NLRB v. Sexton,

203 F.2d 940 (6th Cir. 1953).

(3)

The term "employee" within the NLRA "is

to be determined broadly." NLRB v. Hearst

Publications, 322 U.S. dll, 129 (1944),

Where, as here, "the Board is arguing for a

narrowing of recognized labor rights, it

has the burden of Showing that such narrow-

ing was the intent of Congress." NLRB y.

IBEW, Local 388, 548 F.24 704, 709 n.1l

(7th Cir. 1977), cert. den. 434 U.S. 837

(1977). Thus it is noteworthy that the

Second Circuit correctly saw it as "clear

that Congress intended to include house

Staff within the coverage" of PL 93-

360. (131) The same conclusion was

reached by the most scholarly review of the

ou/ ee also H.R.Rep. No. 95-980, 95th Cong.,

Sess., 1-8 (1978) ("1978 House Report") ;

Maute, "Student-Workers Or Working Stu-

dents? A Fatal Question for Collective

Bargaining of Hospital House Staff," 38

U. of Pitts. L.Rev. 762 (1977) ("Maute") ;

Comment, “Labor Problems of Interns and

Residents: The aftermath of Cedars-Sinai,"

XI U. San Fran. L. Rey. 6S4 (1977).

subject to date. Maute at 767-68.

The NLRA is intended to eliminate

"inequality of bargaining powers" (NLRA §l,

29 U.S.C. §151), "to redress the perceived

imbalance of economic power between labor

and management" (American Ship Building

Co. v. NLRB, supra, 380 U.S. at 304). The

NLRA must, therefore, apply where, without

collective bargaining, persons are subject

to the "unilateral determinations" of |

another as to "their wages, house, senior-

ity, tenure, and other conditions of work"

by reason of "inequality of bargaining power."

NLRB v. Atkins, 331 U.S. 398, 404 (1941).

By these criteria it is clear that

house staff officers need and are entitled

to the coverage of the NLRA. The NLRB has

said that house staff are subject to an

"inequalitarian" eabattcnabie. As a con-

dition for specialty board eligibility,

house staff must provide patient care

services at hospitals; supervisory person

nel at those hospitals direct and supervise

the interns and residents in providing such

services; the hospitals pay house staff a

fraction of the value of their services for

lorg, arduous hours of work; and the NLRB

says house staff have no right to negotiate

for a fair salary or working conditions.

Modern house staff thus bears an embarras-

ing resemblance to the old indentured ap-

prentice. NLRA coverage is particularly

appropriate here.

That house staff officers also receive

training, even education, by service--as do

all apprentices, particularly professionals

at the beginning of their careers--does not .

change their status as as oe, TG ia

not disputed that house staff are deemed to

be employees, not students, for purposes of

voting residence, workmen's compensation,

and veterans’ reemployment rights. (349, 391).

28/Beecher Ancillary Services, Inc., 225

NLRB 642 (1976); UTD Corp., 165 NLRB 346

(1967); General Motors Corp., 133 NLRB 1003

(continued)

The IRS has ruled that house staff officers

are employees, not students, earning taxable

income; these tax rulings were confirmed in

every case where patient care was involved.

(201,223-25). In one house staff tax case,

the 10th Circuit observed of the hospital-

house staff nexus: "It is difficult to

imagine a more perfect example of an em-

ployer-employee egiatinnasone Every

labor relations agency which has passed on

the employee status of public hospital

house staff, whether before or since Cedars-

Sinai, has held the house staff covered as

30/

employees.

28/Cont'd. - (1961); Royal McBee Corp., 127

NLRB 896 (1960). See also Overnite Trans-

portation Co. v. NLRB, 327 F.2d 36 (4th

Cir. 1963); United Aircraft Corp. v. NLRB,

333 F.2d 819 (2d Cir. 1964), cert.den. 380

U.S. 910 (1965). AMA publications have re-

ferred to house staff as apprentices. 206

AMA Journal 2110-11 (1968).

29/Woddail v. Commissioner, 321 F.2d 721,

724 (10th Cir. 1963).

30/See agency rulings in Massachusetts,

Nebraska, New York, Michigan and Pennsyl-

vania collected in 1978 House Report at

4n. 17; see also Maute at 773-74.

Reference to the NLRA, PL 93-360, and

labor relations agency and other cognate

rulings confirms that the NLRB determina-

tions stand virtually alone in their percep-

tion of the status of house staff. That

uniqueness is not just a function of error,

but manifest incompatibility with PL 93-360.

For Congress knew the prevalent perception

of house staff-employee status when enact-

ing PL 93-360. 1978 House Report at 2-4.

(4)

The NLRB determinations preempt and

oust every state and local government from

asserting jurisdiction over house staff so

as to create a no-man's land in that area.

It is not consistent with the 10th Amendment,

as applied in National League of Cities v.

Usery, 426 U.S. 833 (1976), for Congress to

withhold its hand from house staff labor

matters, including recognitional strikes

(see 1978 House Report at 7-8), and simul-

taneously preclude any state from dealing

with those vital matters (id. at 851).

Moreover, the implication of the 10th Amend-

ment here means that the NLRB determinations

must fail as not underpinned by the requisite

"clear expression of an affirmative intention

of Congress" to exclude house staff from NLRA

coverage. NLRB v. Catholic Bishop of

Chicago, supra, 440 U.S. at 504.

Conclusion

The petition for writ of certiorari

should be granted.

(

{MURRAY A. GORDON

Attorney for Petitioners

666 Third Avenue

New York, NY 10017

Tel. (212) 661-7900

Of Counsel:

Lester Asher

Bernard Katz

Howard Z. Rogen

APPENDIX I

Constitutional and Statutory

Provision Involved

y OR

Constitutional and Statutory Provisions

Involved.

Fifth Amendment to the United States

Constitution:

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or in-

dictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or

public danger; nor shall any person

be subject for the same offence to

be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due

process of law; nor shall private

property be taken for public use,

without just compensation.

Tenth Amendment to the United States

Constitution:

The powers not delegated to the

United States by the Constitution,

nor prohibited by it to the States,

are reserved to the States respec-

tively, or to the people.

NLRA §2, 29 U.S.C. §152:

"Sec. 2. When used in this Act -

x* eee te

(2) The term 'employer' includes

any person acting as an agent of an

employer, directly or indirectly,

but shall not include the United

States or any wholly owned Govern-

ment corporation, or any Federal

Reserve Bank, or any State or politi-

cal subdivision thereof, or any per-

son subject to the Railway Labor Act,

as amended from time to time, or any

labor organization (other than when

acting as an employer), or anyone

acting in the capacity of officer or

agent of such labor organization.

(3) The term ‘employee’ shall in-

clude any employee, and shall not be

limited to the employees of a parti-

cular employer, unless this subchap-

ter explicitly states otherwise, and

shall include any individual whose

work has ceased as a consequence of,

or in connection with, any current

labor dispute or because of any un-

fair labor practice, and who has not

obtained any other regular and sub-

stantially equivalent employment, but

shall not include any individual em-

ployed as an agricultural laborer, or

in the domestic service of any family

Or person at his home, or any indi-

vidual employed by his parent or

spouse, or any individual having the

status of an independent contractor,

or any individual employed as a su-

pervisor, or any individual employed

by an employer subject to the Railway

Labor Act, as amended from time to

time, or by any other person who is

not an employer as herein defined.

x* * ®* ®& ®

(5) The term ‘labor organization'

means any organization of any kind,

Or any agency or employee representa-

tion committee or plan, in which em-

ployees participate and which exists

for the purpose, in whole or in part,

of dealing with employers concerning

grievances, labor disputes, wages,

rates of pay, hours of employment, or

conditions of work.

oS £2:6°82 =v

(12) The term ‘professional employee'

means -

(a) any employee engaged in

work (i) predominantly intellectual

and varied in character as opposed

to routine mental, manual, mechanical,

or physical work; (ii) involving the

consistent exercise of discretion and

judgment in its performance; (iii) of

such character that the output pro-

duced or the result accomplished can-

not be standardized in relation to a

given period of time; (iv) requiring

knowledge of an advanced type in a

field of science or learning custom-

arily acquired by a prolonged course

of specialized intellectual instruc-

tion and study in an institution of

higher learning or a hospital, as

distinguished from a general academ-

ic education or from an apprentice-

ship or from training in the perform-

ance of routine mental, manual, or

physical processes; or

(b) any employee, who (i) has

completed the courses of specialized

intellectual instruction and study

described in clause (iv) of paragraph

(a), and (ii) is performing related

work under the supervision of a pro-

fessional person to qualify himself

to become a professional employee as

defined in paragraph (a)."

-4. NLRA §8, 29 U.S.C. §158:

"Sec. 8. (a) It shall be an unfair

labor practice for an employer -

oe & RD

(5) to refuse to bargain collectively

with the representative of his em-

ployees, subject to the provisions of

section 9(a)."

5. NLRA §9, 29 U.S.C.§159:

"Sec. 9. (a) Representatives desig-

nated or selected for the purposes of

collective bargaining by the majority

of the employees in a unit appropri-

ate for such purposes, shall be the

exclusive representatives of ail the

employees in such unit for the pur-

poses of collective bargaining in re-

spect to rates of pay, wages, hours

of employment, or other conditions of

employment...

(b) The Board shall decide

in each case whether in order to as-

sure to employees the fullest free-

dom in exercising the rights quaran-

teed by this Act, the unit appropri-

ate for the purposes of collective

bargaining shall be the employer

unit, craft unit, plant unit, or sub-

division thereof...

shall have been filed, in accordance

with such regulations as may be pre-

scribed by the Board -

(A) by an employee or

group of employees or any indi-

vidual or labor organization act

ing in their behalf alleging

that a substantial number of em-

ployees (i) wish to be repre-

sented for collective bargain-

ing and that their employer de-

clines to recognize their repre-

sentative as the representative

defined in section 9(a)...

the Board shall investigate such pe-

tition and if it has reasonable gause

to believe that a question of repre-

sentation affecting commerce exists

shall provide for an appropriate

hearing upon due notice. Such hear-

ing may be conducted by an officer

or employee of the regional office,

who shall not make any recommenda-

tions with respect thereto. If the

Board finds upon the record of such

hearing that such a question of re-

presentation exists, it shall direct

an election by secret ballot and

shall certify the results thereof.

(d) Whenever an order of

the Board made pursuant to section

160(c) of this title is based in

whole or in part upon facts certi-

fied following an investigation pur-

suant to subsection (c) of this sec-

tion and there is a petition for the

enforcement or review of such order,

such certification and the record of

such investigation shall be included

in the transcript of the entire re-

cord required to be filed under sub-

section (e) of (f) of section 160 of

this title, and thereupon the decree

of the court enforcing, modifying, or

setting aside in whole or in part the

order of the Board shall be made and

entered upon the pleadings, testimony,

and proceedings set forth in such

transcript."

NLRA §10, 29 U.S.C. §160:

"(f£) Any person aggrieved by a final

order of the Board granting or deny-

ing in whole or in part the relief

sought may obtain a review of such

order in any United States court of

appeals in the circuit wherein the

unfair labor practice in question was

alleged to have been engaged in or

wherein such person resides or trans-

acts business, or in the United States

Court of Appeals for the District of

Columbia, by filing in such a court a

written petition praying that the or-

der of the Board be modified or set

aside. A copy of such petition shall

be forth with transmitted by the clerk

of the court to the Board, and there-

upon the aggrieved party shall file

in the court the record in the pro-

ceeding, certified by the Board, as

provided in section 2112 of Title 28.

Upon the filing of such petition, the

court shall proceed in the same man-

ner as in the case of an application

by the Board under subsection (e) of

this section, and shall have the same

jurisdiction to grant to the Board

such temporary relief or restraining

order as it deems just and proper,

and in like manner to make and enter

a decree enforcing, modifying, and

enforcing as so modified, or setting

aside in whole or in part the order

of the Board; the findings of the

Board with respect to questions of

fact if supported by substantial

evidence on the record consideredas a

whole shall in like manner be con-

clusive."

APPENDIX II

Opinion and Judgment of the Court of

Appeals for the District of Columbia

Circuit En Banc

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1209

PHYSICIANS NATIONAL HousE STAFF ASSOCIATION, et al.,

APPELLANTS

JOHN H. FANNING, et al.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 77-358)

Argued en banc October 9, 1979

Decided July 11, 1980

Murray A. Gordon, 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

and Bernard Katz were on the brief for appellants.

Rills of costs must he filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of casts out of time.

Ruth E. Peters, Attorney, “National Labor Relations

Board, a member of the bar of the Supreme Court of

Massachusetts, pro hac vice by special leave of Court with

whom John S. Irving, General Counsel, Margery E.

Lieber, Deputy Assistant General Counsel, Robert E.

Allen, Acting Associate General Counsel and Elliott

Moore, Deputy Associate General Counsel, National Labor

Relations Board, were on the brief for appellees.

Carl W. Vogt was on the brief for amicus curiae,

Association of American Medical Colleges, et al. in sup-

port of petition for rehearing en bane.

George G. Gallantz was on the brief, for amicus curiae,

Greater New York Hospital Association, et al. in support

of petition for rehearing en banc. |

Also Carl Taylor and Aileen A. Armstrong, Attorneys,

National Labor Relations Board, entered appearances

for appellees.

Before WRIGHT, Chief Judge, and McGowan, TAMM,

LEVENTHAL,* ROBINSON, MACKINNON, Ross, WILKEY,

Wap, and Mixkva, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

Dissenting opinion filed by Chief Judge WRIGHT with

whom Circuit Judges ROBINSON, WALD and MIKVA join.

Ross, Circuit Judge: The appellants are the house

staff associations of four private, non-profit hospitais,

and a national house staff organization. House staffs

consist of physicians serving as interns, residents and

clinical fellows, and participating in hospital-based train-

ing programs in medical specialties or sub-specialities.

* Judge Leventhal participated in the argument in this case

but died before the opinion issued.

Circuit Judge Edwards did not participate in the argu-

ment or decision of the case.

10a

They render medical services to patients, subject to the

direction and control of the hospitals. They receive sal-

aries or stipends and other hospital compensation and

benefits, and are subject to statutes providing for work-

men’s compensation and unemployment benefits.

The 1974 amendments to the National Labor Relations

Act, Pub. L. No. 93-360, 88 Stat. 395, removed the exemp-

tion of private non-profit hospitals from the Act’s defini-

tion of “employer”. Thereafter at various times during

1974 and 1975 the appellants petitioned the National

Labor Relations Board for certification as collective bar-

gaining representatives of their members. They contended

that members of house staffs are “employees” under sec-

tion 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).

Section 2(3), 29 U.S.C. § 152(3) (1976) provides:

The term “employee” shall include any employee, and

shall not be limited to the employees of a particular em-

ployer, unless this subchapter explicitly states otherwise,

and shall include any individual whose work has ceased

as a consequence of, or in connection with, any current

labor dispute or because of any unfair labor practice, and

who has not obtained any other regular and substantially

equivalent employment, but shall not include any indi-

vidual employed as an agricultural laborer, or in the

domestic service of any family or person at his home, or

any individual employed by his parent or spouse, or any

individual having the status of an independent contractor,

or any individual employed as a supervisor, or any in-

dividual employed by an employer subject to the Railway

Labor Act, as amended from time to time, or by any

other person who is not an employer as herein defined.

2 Cedars-Sinai has been followed by the Board in a numbe;

of other decisions. St. Christopher’s Hospital for Children,

223 N.L.R.B. 166 (1976); St. Clare’s Hospital and Health

lla

Dissatisfied with the Board’s decision in their cases the

appellants filed suit in the District Court, seeking a dec-

laration that house staffs are employees within the mean-

ing of the Act and an order directing the Board to accept

jurisdiction over the petitions for certification. The Dis-

trict 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 re-

liance upon Leedom v. Kyne, 358 U.S. 184 (1958) re

versed 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

Center, 223 N.L.R.B. 1002 (1976) ; University of Chicago Hos-

pitals and Clinics, 223 N.L.R.B. 1032 (1976) ; Buffalo General

Hospital, 224 N.L.R.B. 76 (1976) ; Kansas City General Hos-

pital, 225 N.L.R.B. 108 (1976) ; Wayne State University, 226

N.L.R.B. 1062 (1976). The Court of Appeals for the Second

Circuit has upheld the Board’s position that these decisions

also preempt state labor relations boards from asserting jur-

isdiction over house staff. NLRB v. Committee of Interns and

Residents, 566 F.2d 810 (2d Cir. 1977), cert. denied, 435 U.S.

904 (1978). The preemption issue is however not before us;

and the Second Circuit court expressly recognized that the

issue presented to us in this case was not presented there. 566

F.2d at 816.

12a

to bargain with the union certified by the Board, ano

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 (1940) ;

Boire v. Greyhound Corp., 376 U.S. 473 (1964) ; see

Switchmen’s Union v. National Mediation Board, 320

U.S. 297 (1943). The record compiled in the representa-

tion 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 Su-

preme 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 an-

nounced in the Kyne case the District Court had juris-

diction over the appellants’ challenge to the Board’s order.

In Leedom v. Kyne the Board had included both pro-

fessional and non-professional employees in a unit which

it found to be appropriate for collective bargaining pur-

poses. Section 9(b) (1) of the National Labor Relation:

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 em-

ployees 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 nonprofessional employees. An election was

held and a union of which Kyne was president was certi-

fied 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

l3a

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. § 1887 (1976) 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 pro-

hibition in the Act.” 3858 U.S. at 188. 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;

“disobeyed the express command of §9(b) (1)... and

in doing so... acted in excess of its powers”, id. at 186-

87; “an attempted exercise of power that had been specifi-

cally withheld”, id. at 189; “agency action taken in ex-

cess of delegated powers”, id. at 190. The Court ex-

plicitly 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.” Jd. at 188.

Thus, in order to qualify for the Leedom v. Kyne excep-

tion a plaintiff must be able to identify a specific provi-

sion of the Act which, although it is “clear and manda-

tory”, id. at 188, 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 with-

out statutory authority.‘

*28 U.S.C. § 1887 (1976) :

The district court shall have original jurisdiction of

any civil action or proceeding arising under any Act of

Congress regulating commerce or protecting trade and

commerce against restraints and monopolies.

l4a

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 ac-

tion 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 proceed-

ing; 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., 181 U.S. App. D.C. 190, 191, 408 F.2d 916,

917 (1968), cert. denied, 898 U.S. 1016 (1969); Ma-

chinery Employees Local 714 v. Madden, 343 F.2d 497,

499 (7th Cir.), cert. denied, 8388 U.S. 822 (1965); Ci-

hacek v. NLRB, 464 F. Supp. 940, 944 (D. Neb. 1979) ;

Cir., Dec. 27, 1979), concurring opinion of Leventhal, J., at 8.

In both situations, the mere possibility that the decision

being reviewed is erroneous is not sufficient to support juris-

diction. The party seeking relief must show that the court or

agency which made the decision had no authority to do so

See, e.g., In re United States, 194 U.S. App. D.C. 314, 59

F.2d 283 (1979).

15a

WRIGHT, Chief Judge, with whom Circuit Judges RoB-

INSON, WALD, and Mikva join, dissenting: The National

Labor Relations Board (NLRB) denied appellants’ pe-

titions under the National Labor Relations Act (NLRA

or Act) for certification as bargaining representatives

for medical interns, residents, and fellows (“house

staff”’).! The Board ruled that since house staff are pri-

marily “students” rather than employees, they are not

covered by the Act. Appellants then petitioned the Dis-

trict Court to declare that their members fall within the

statutory definition of employees and to order the Board

to assume jurisdiction of their certification petitions.’

The District Court granted the NLRB’s motion to dis-

miss for lack of jurisdiction because the Act provides

for judicial review only of unfair labor practice (ULP)

1 See Cedars-Sinai Medical Center, 223 NLRB 251 (1976) ;

St. Christopher’s Hospital for Children, 223-NLRB 1032

(1976); University of Chicago Hospitals and Clinics, 223

NLRB 1002 (1976); Buffalo General Hospital, 224 NLRB 76

(1976) ; Kansas City General Hospital, 225 NLRB 108 (1976) ;

Wayne State University, 226 NLRB 1062 (1976). In 1976

about two-thirds of the nation’s 60,000 interns and residents

belonged to the Physicians National House Staff Association,

one of the appellants here. AMERICAN HOSPITAL ASSOCIATION,

TAFT-HARTLEY AMENDMENTS: IMPLICATIONS FOR THE HEALTH

CARE FIELD 55 (1976). The other appellants are house staff

associations from Cedars-Sinai Medical Center, University of

Chicago Hospitals and St. Christopher’s Hospital, and the

Committee of Interns and Residents.

2 The definition of employee under the Act is discussed in

Part II-A infra. The NLRB has successfully argued to the

Second Circuit that even though the Board will not regulate

house staff-hospital labor relations, the national labor policy

preempts any state jurisdiction over house staff. NLRB v.

Committee of Interns & Residents, 566 F.2d 810 (2d Cir.

1977), cert. denied, 485 U.S. 904 (1978). The court expressly

withheld judgment on the question before us today. Id. at

816. As a result, house staff do not currently enjoy any of the

rights or bear any of the obligations imposed by the NLRA.

l6a

orders, as distinguished from refusals to certify bar-

gaining representatives.* Citing Leedom v. Kyne, 358

U.S. 184 (1958), which identified a narrow exception

to what has functioned as a prohibition of judicial re-

view of non-ULP orders, appellants urge that Section

1337 of Title 28 confers jurisdiction over this action.‘

The court rejects appellants’ Kyne contention and affirms

the District Court. Because I think the Kyne exception

applies to this case, I would reverse and remand for

surther proceedings.

Restrictions on court review of NLRB rulings date

from enactment of the NLRA in 1935. The previous year

Congress had approved Public Resolution 44 to imple

ment the labor provisions of the National Industrial Re-

covery Act.5 Congress judged Public Resolution 44 a

failure, however, because it permitted judicial review of

bargaining representative certification and thereby put

off collective bargaining. One committee report com-

plained that under Public Resolution 44 “any attempt by

the Government to conduct an election of (bargaining]

representatives may be contested ab initio in the courts,

3 Physicians Nat'l House Staff Ass’n v. Murphy, 443 F.

Supp. 806 (D. D.C. 1978). Section 8 of the Act defines unfair

labor practices by both unions and employers. 29 U.S.C.

§ 158 (1976).

* 28 U.S.C. § 1837 (1976) :

The district courts shall have original jurisdiction of

any civil action or proceeding arising under any Act of

Congress regulating commerce or protecting trade and

commerce against restraints and monopolies.

*48 STAT. 1183. Public Resolution 44 established enforce-

ment machinery to administer §7(a) of the National Indus-

trial Recovery Act, 48 STAT. 195, 198, which required that

NIRA industrial codes guarantee workers “the right to

organize and bargain collectively through representatives of

their own choosing * * *.”

17a

although such election is in reality merely a preliminary

determination of fact.”* In response to this problem

the NLRA provided for court review of only unfair labor

practice orders.” The legislative history demonstrates a

clear intent to prevent appeals to the judiciary before

workers can elect bargaining representatives.* To achieve

“prompt initiation of the collective-bargaining process,”

Congress restricted “time-consuming” judicial review that

“might defeat the objectives of the national labor

policy.” * Despite attempts during consideration of the

Taft-Hartley Amendments of 1947 to expand recourse

to the courts, the legislation as passed did not disturb

this limitation.”

Consequently, the evrrent version of the NLRA still

aims to foreclose use of the courts to delay the advent

6S. Rep. No. 578, 74th Cong., lst Sess. 5 (1935). See H.R.

Rep. No. 1147, 74th Cong., 1st Sess. 6, 23 (1935) ; Comment,

50 Iowa L. REV. 931, 983-9384 (1965); Note, 8 Burr. L. REv.

372, 877 (1959).

7 Pub. L. No. 74-198, 49 STAT. 449, 455 (1935).

8 See American Federation of Labor v. NLRB, 308 U.S. 401,

411 (1940) (“The conclusion is unavoidable that Congress,

as the result of a deliberate choice of conflicting policies, has

excluded representation certifications of the Board from the

review by federal appellate courts authorized by the Wagner

Act except [following unfair labor practice orders].”); In-

land Empire Council v. Millis, 325 U.S. 697, 708 (1945);

Leedom v. Kyne, 358 U.S. 184, 191-194 (1958) (Brennan, J.,

dissenting).

° Leedom v. Kyne, supra note 8, 358 U.S. at 192-193 (Bren-

nan, J., dissenting).

1°The House of Representatives initially approved an ex-

pansion of District Court review of NLRB certifications. See

H.R. Rep. No. 245, 80th Cong., Ist Sess. 43, 59-60 (1947). The

Senate refused to agree to that change, and it was abandoned

in conference. H.R. Rep. No. 510, 80th Cong., Ist Sess. 56-57

(1947).

18a

of collective bargaining. Section 10(f) permits direct

review by the Courts of Appeals, but only after the

Board issues an unfair labor practice order."* And the

provision establishing the certification proceedings in-

volved in this suit similarly authorizes court appeal only

of an unfair labor practice order.”

In American Federation of Labor v. NLRB, 308 US.

401 (1940), the Supreme Court first suggested, though

it did not hold, that NLRB actions short of unfair labor

practice orders might nevertheless be contested in court.

In that case the Court declined to rule on the Board’s

claim that no judicial review whatever was available for

non-ULP orders. The issue, the Court said,

involves a determination whether the Wagner Act

[NLRA], in so far as it has given legally enforce-

able rights, has deprived the district courts of some

portion of their original jurisdiction conferred by

§ 24 of the Judicial Code [the predecessor to 28

U.S.C. § 1837]. It can be appropriately answered

only upon a showing in such a suit that unlawful

action of the Board has inflicted an injury on the

petitioners for which the law, apart from the review

provisions of the Wagner Act, affords a rem-

edy. * * #

8308 U.S. at 412. The Court applied this approach in

Inland Empire Council v. Millis, 325 U.S. 697 (1945).

After losing a representation election to another union,

the Inland Empire Council challenged the Board’s pre-

election procedures and protested the exclusion of certain

employees from voting. The Board rejected the complaint,

and the union sued in District Court. The Supreme Court

11 National Labor Relations Act § 10(f), 29 U.S.C. § 160(f)

(1976).

127d. §9(d), 29 U.S.C. §159(d) (1976). Thus the tradi-

tional method of obtaining judicial review of a certification

proceeding is through a subsequent ULP order.

19a

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 (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 “employ-

ees” eligible to participate in union certification elections.

We hold that appellants have not made that demonstra-

tion.

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 em-

ployee nor does any other section of the Act. Whether

a particular individual is an employee depends upon the

facts. The task of decision on the facts of each case is

assigned to the National Labor Relations Board and in

making that decision the Board exercises its informed

discretion. NLRB v. Hearst Publications, Inc., 322 U.S.

111 (1944); NURB v. E.C. Atkins & Co., 331 U.S. 398

(1947); Bayside Enterprises, Inc. v. NLRB, 429 U.S.

298 (1977). As the Supreme Court said in NLRB v.

Hearst Publications, Inc., supra at 180:

It is not necessary in this case to make a com-

pletely definitive limitation around the term “em-

ployee”. That task has been assigned primarily

to the agency created by Congress to administer the

Act. Determination of “where all the conditions of

the relation require protection” involves inquiries

for the Board charged with this duty. Everyday ex-

perience in the administration of the statute gives

it familiarity with the circumstances and back-

grounds of employment relationships in various in-

dustries, with the abilities and needs of the work-

5 See note 1 supra.

20a

ers for self-organization and collective action, and

with the adaptability of collective bargaining for

the peaceful settlement of their disputes with their

employers. The experience thus acquired must be

brought frequently to bear on the question who is

an employee under the Act. Resolving that question,

like determining whether unfair labor practices have

been committed, “belongs to the usual administra-

tive routine” of the Board. Gray v. Powell, 314 U.S.

402, 411.

[footnote omitted]

In this case the Board carefully analyzed the facts and

reached the conclusion that interns, residents, and clini-

cal fellows are primarily engaged in graduate educational

training and that their status is therefore that of stu-

dents rather than of employees; that the programs in

which they participate were “designed not for the purpose

of meeting the hospital’s staffing requirements, but rather

to allow the student to develop, in a hospital setting, the

clinical judgment and the proficiency in clinical skills

necessary to the practice of medicine in the area of his

choice.” Cedars-Sinai Medical Center, 223 N.L.R.B. 251,

253 (1976). In making this determination the Board

acted within its jurisdiction. Its conclusion could not be

reviewed by the District Court.

Appellants contend that because house staff are not

specifically excluded from the protections of the Act by

section 2(3), 29 U.S.C. § 152(38) (1976), the Board’s

finding that they “possess certain employee characteris-

tics”, 223 N.L.R.B. at 251, required the Board to classify

them as employees. This argument cannot stand in light

of NLRB v. Bell Aerospace Corp., 416 U.S. 267 (1974),

which held that managerial employees are not covered

by the Act although they are not specifically excluded

from the reach of section 2(3). This decision means that

for policy reasons persons who are literally “employees”

2la

may nonetheless be excluded from coverage under the

Act. See also Allied Chemical Workers v. Pittsburgh

Plate Glass Co., 404 U.S. 157, 168 (1971). It is difficult

to see, therefore, how section 2(3) can be read as a

mandate requiring the Board to consider all persons who

“possess certain employee characteristics” as employees

covered by the Act.

The Act’s definition of “professional employees” does

not help the appellants as they suggest. Section 2(12) of

the Act, 29 U.S.C. § 152(12) (1976) states:

The term “professional employee” means—

(a) any employee engaged in work... (iv) re-

quiring knowledge of an advanced type in a field

of science or learning customarily acquired by a

prolonged course of specialized intellectual instruc-

tion and study in an institution of higher learning

or a hospital . .. or

(b) any employee, who (i) has completed the courses

of specialized intellectual instruction and study de-

scribed in clause (iv) of paragraph (a), and (ii) is

performing related work under the supervision of a

professional person to qualify himself to become a

professional employee as defined in paragraph (a).

Because this definition is applicable to “any employee”,

it is not a command to the Board to regard anyone as

an employee. Rather, it classifies those persons who ae

already employees. House staff can not be “professional

employees” unless they are first found to be “employees”.

Appellants argue alternatively that the necessary spe-

cific mandate to the Board may be discerned in the legis-

lative history of the 1974 amendments. We disagree. A

careful examination of both the language and legislative

history of the amendments reveals that Congress was not

directing the Board to classify house staff as employees,

22a

The amendments included private non-profit hospitals

within the definition of “employer”, but they made no

attempt to define “employee” nor did they require any

change in the Board’s procedures for determining who

is an employee. The conclusion is inescapable that Con-

gress intended the Board to determine the employee

status of hospital workers in its usual manner—by

analyzing the facts of each case. This conclusion is sup-

ported by the discussion of the Act’s definition of “super-

visor’ in the reports of the congressional committees

which considered the legislation. Discussing the applica-

tion of that definition to health care professionals, both

committees said they expected the Board to evaluate the

facts of each case in its usual manner in deciding

whether particular employees were supervisors. See H.R.

REP. No. 93-1051 at 7 (1974); S. Rep. No. 93-766 at 6

(1974).

It is reasonable to conclude that committees which

expected the Board to follow its usual procedures in de-

termining whether employees are supervisors also ex-

pected the Board to follow its usual procedures in deter-

mining whether persons are employees. At the very least,

one would expect that if Congress were enacting a change

in the Board’s operations, the committees would have said

so. Yet nothing in the committee reports gives any indi-

cation that Congress was ordering a departure from the

usual procedure by directing the Board to find that house

staff are employees.‘

¢ The Committees’ discussion of the supervisor issue does

refer to “health care professionals such as registered nurses,

interns, residents, fellows and salaried physicians.” House

Report at 7; Senate Report at 6. This reference is similar to

the statements of senators discussed in the text. The discus-

sion may indicate a belief that the Board’s analysis of the

facts would lead ¢ to conclude that house staff are employees,

but it does not constitute a directive to the Board to arrive

at such a conclusion.

23a

Finally, appellants refer us to remarks by Senator

Cranston, one of the floor managers of the 1974 amend-

ments, who specifically referred to the problems of house

staff in urging that the bill be enacted. 120 Conc. REC.

12987 (1974). These remarks, as well as passing refer-

ences to house staff made by Senator Dominick, an op-

ponent of the measure (Jd. at 12971, 22580), indicate

at most that these senators believed that the Board’s

evaluation of the facts would lead it to the conclusion

that house staff are employees. They stop short of show-

ing, however, that these senators thought the bill required

that house staff be considered employees.

Given the absence of specific language mandating the

result sought by appellants, it would require far more

forceful indications in the legislative history to convince

us that Congress, by telling the Board that members of

a particular group must be treated as employees, man-

dated a significant change in Board procedures. In fact,

the strongest evidence of congressional intent available

to us supports the Board’s position in this case. After

we heard oral argument en banc, a bill designed to over-

rule the Board’s house staff decisions by explicitly in-

cluding house staff within th> definition of employees

(H.R. 2222) was defeated in the House of Representa-

tives.” Opponents of the bill stated their agreement with

the NLRB’s position that collective bargaining was in-

appropriate for house staff because their relationship with

their hospitals was primarily an educational one. H.R.

REP. No. 96-504 at 10-18 (1979) (minority views) ; 125

CONG. REC. (daily ed., Nov. 28, 1979) at H 11300 (Rep.

Erlenborn) ; Jd. at H 11302 (Rep. Erdahl) ; Jd. (Rep.

Derwinski) ; 7d. at H 11303 ( Rep. Goldwater). The de-

feat of this bill casts substantial doubt upon appellants’

* Similar bills were introduced in the 94th Congress (H.R.

15842) and the 95th Congress (H.R. 2222) but were never

brought to a vote.

24a

contention that Congress by the 1974 amendments in-

tended to direct the Board to regard house staff as em-

‘ployees.

Appellants emphasize that the Board’s decisions in the

house staff cases will never be subject to judicial review

if the District Court is affirmed. We agree that it may

be unlikely that the correctness of these decisions will be

tested in an unfair labor practice proceeding reviewable

in a court of appeals, but we think this is not a reason

to permit District Court review. Congress has considered

the likelihood that some Board decisions in representa-

tion proceedings may evade all judicial review. Never-

theless, it has rejected attempts to provide review in

such cases.

When it passed the Taft-Hartley Act, Congress con-

sidered an amendment which would have allowed im-

mediate review of Board certification decisions. This

proposal was included in the House version of the bill,

see H.R. Rep. No. 245, 80th Cong., 1st Sess. 43 (1947).

Among the arguments made in its favor was one quite

similar to the one made by appellants here. The absence

of immediate judicial review was described as “unfair

to... the union that loses, which has no appeal at all

no matter how wrong the certification may be [and to]

the employees, who also have no appeal.” Jd. The pro-

vision was eliminated in conference. See H.R. Conr. REP.

No. 510, 80th Cong., 1st Sess. 56-57 (1947). Senator

Taft explained this action by commenting that the pro-

posal “would permit dilatory tactics in representation

proceedings”. 93 CoNnG. REC. 6444 (1947). See also

Leedom v. Kyne, 358 U.S. at 184, 197 (1958) ( Brennan,

J. dissenting) ; Cf. Switchmen’s Union v. National Medi-

ation Board, 320 U.S. 297 (1948).

Thus, Congress was aware that Board decisions such

as the ones in this case might never be reviewed by a

court and that this might cause hardship to a union.

25a

Nevertheless, Congress has not provided for judicial re-

view. Appellants’ argument based on the unavailability

of review must therefore be rejected.

Courts have agreed that “it is not the unavailability

of a remedy which triggers the Kyne exception, but the

violation of a clear statutory demand.” Cihacek v.

NLRB, 464 F. Supp. 940, 944 (D. Neb. 1979). In Local

1545, United Bhd. of Carpenters v. Vincent, 286 F.2d

127, 182 (2d Cir. 1960), the court said Leedom v. Kyne

does not “recognize jurisdiction of the District Court to

enjoin representation orders whenever there is a color-

able allegation that the Board has misread the declared

will of Congress and the remedy afforded by §9(d) is

likely to prove inadequate.” And, in National Maritime

Union v. NLRB, 375 F. Supp. 421, 489 (E.D. Pa.), aff'd

without opinion, 506 F.2d 1052 (8d Cir. 1974), cert.

denied, 421 U.S. 963 (1975), the court concluded:

It may well be that the occasional injustice which

results from this statutory scheme is too high a

price to pay for expediting the vast majority of

representation elections. It may also be that the

Act should permit judicial review when unions are

not certified under § 9(c). But as Mr. Justice (later

Chief Justice) Stone concluded more than thirty

years ago, “these are arguments to be addressed

to Congress and not the courts.” (quoting AFL v.

NLRB, 308 U.S. 401, 411-12 (1940)).

The ‘legislative history and case law provide the an-

swer to appellants’ suggestions that affirmance of the

District Court will mean that without being subject to

judicial review the Board may decide that workers such

as plumbers or carpenters are not “employees”. It is

clear that the extent to which the Board’s decisions may

be reviewed by the federal courts is within the control

of Congress. That Congress has not expanded the scope

of judicial review of the Board’s certification decisions

26a

indicates that it is satisfied with the way the Board has

been functioning.* A series of arbitrary or irrational

decisions by the Board might prompt Congress to insist

upon a greater degree of judicial scrutiny. Unless Con-

gress does so, however, the district courts are powerless

to adjudicate the merits of certification decisions absent

a clear violation of the National Labor Relations Act by

the Board.

The 1974 amendments gave the Board jurisdiction over

private, non-profit hospitals. The National Labor Rela-

tions Act however does not expressly command the Board

to find that members of house staffs are employees. In

the exercise of its jurisdiction the Board has determined

that they are not employees. That decision is not review-

able in the District Court. The cause of action recognizeu

by Leedom v. Kyne “is not one to ‘review’ . . . a decision

of the Board made within its jurisdiction.” 358 U.S. at

188. The District Court correctly dismissed the complaint

for lack of jurisdiction.

The judgment of the District Court is

Affirmed.

® The recent defeat of H.R. 2222 indicates that Congress

is satisfied with the very decisions challenged by appellants in

this case.

27a

found that the losing union had failed to show that the

Board had “depart{ed] from statutory requirements- or

from those of due process of law,” id. at 700, so the

courts lacked jurisdiction of the claim.

The Supreme Court did not return to this issue until

Leedom v. Kyne, supra, in 1958.% In Kyne the Board

had certified as a bargaining unit a group of 233 pro-

fessional employees and nine nonprofessional workers at

‘xe Westinghouse Electric Plant in Cheektowaga, New

York. 358 U.S. at 185-186. The Board’s order was in

apparent violation of Section 9(b) (1) of the NLRA, 29

U.S.C. §159(b) (1) (1976), which commands that bar-

gaining units shall not include both professional and non-

professional employees without prior approval of the pro-

fessional workers. The Board did not deny its violation

of Section 9(b) (1), but argued simply that the District

Court lacked jurisdiction of the suit under the Act. The

Supreme Court, however, held that the Board’s action

could be challenged:

This suit is not one to “review,” in the sense of that

term as used in the Act, a decision of the Board

made within its jurisdiction. Rather it is one to

strike down an order of the Board made in excess

of its delegated powers and contrary to a specific

prohibition in the Act. Section 9(b)(1) is clear

and mandatory. * * * [The Board] deprived the

professional employees of a “right” assured to them

by Congress. Surely, in these circumstances, a Fed-

eral District Court has jurisdiction of an original

suit to prevent deprivation of a right so given.

358 U.S. at 188-189.

13 The Second Circuit recognized District Court jurisdiction

of constitutional challenges to non-ULP orders in 1949. Fay

v. Douds, 172 F.2d 720, 723 (2d Cir. 1949) ; see Fitzgerald v.

Douds, 167 F.2d 715 (2d Cir. 1948).

28a

The Kyne Court’s concentration on the “rights” of the

employees under the NLRA highlights the issues pre-

sented by the case before us. The Court pointed out that

if jurisdiction were lacking, there would be “ ‘a sacrifice

or obliteration of a right which Congress’ has given pro-

fessional employees, for there is no other means, within

their control * * *, to protect and enforce that right.”

Id. at 190, quoting Switchmen’s Union of North America

v. NMB, 820 U.S. 297, 300 (1943). The opinion con-

cluded, “This Court cannot lightly infer that Congress

does not intend judicial protection of rights it confers

against agency action taken in excess of delegated

powers.” 358 U.S. at 190.

The exception to nonreviewability of non-ULP orders

has been applied infrequently.* In 1963 the Supreme

Court found District Court jurisdiction in a case im-

plicating foreign affairs matters,’* but the Court did not

apply Kyne in its only other decision on this issue, Boire

v. Greyhound Corp., 376 U.S. 473 (1964). That decision

concerned the NLRB’s ruling that Greyhound was a

joint employer of maintenance crews that were directly

employed by another firm under contract to Greyhound.

Pointing to the “painstakingly delineated procedural

boundaries of Kyne,” the Botre Court held that Grey-

hound’s identity as a joint employer was “essentially a

factual issue, unlike the question in Kyne, which de-

pended solely upon construction of the statute.” Jd. at

481. Because “(t]he Kyne exception is a narrow one,”

the Court refused to extend it “to permit plenary district

14 See cases cited in note 17 infra.

16 McCulloch v. Sociedad Nacional, 372 U.S. 10, 17 (1963)

(“the presence of public questions particularly high in the

scale of our national interest because of their international

complexion is a uniquely compelling justification for prompt

judicial resolution of the controversy over the Board’s

power’).

29a

court review of Board orders in certification proceed-

ings whenever it can be said that an erroneous assess-

ment of the particular facts before the Board has led

it to a conclusion which does not comport with the law.”

Id.

This circuit, like the other lower courts, has been frugal

in recognizing the Kyne exception. We have ruled re-

peatedly that “the showing that the Board has violated

the Act * * * must be strong and clear” ** before the

equity powers of the District Courts may be invoked un-

der Section 1337.7 We have insisted that the alleged

statutory duty of the Board in such suits must be “clear

and mandatory,” since “[e]quitable relief is clearly

barred in the wide area of determinations which depend

on the Board’s expertise and discretion * * *.” **

16 McCulloch v. Libbey-Owens-Ford Glass Co., 403 F.2d 916,

917 (D.C. Cir. 1968), cert. denied, 393 U.S. 1016 (1969).

17 See Nat'l Ass’n of Women’s & Children’s Apparel Sales-

men v. NLRB, 465 F.2d 662 (D.C. Cir. 1972) ; Internat’l Brhd

of Teamsters v. Brhd of Railway, Airline & Steamship Clerks,

402 F.2d 196 (D.C. Cir.), cert. denied, 393 U.S. 848 (1968) ;

Lawrence Typographical Union v. McCulloch, 349 F.2d 704

(D.C. Cir. 1965): Local 130, IUERMW v. McCulloch, 345

F.2d 90 (D.C. Cir. 1965) ; Kingsport Press, Inc. v. McCulloch,

336 F.2d 753 (D.C. Cir.), cert. denied, 379 U.S. 931 (1964) ;

Milk & Ice Cream Drivers Union, Local 98 v. McCulloch, 306

F.2d 763 (D.C. Cir. 1962) ; Atlas Life Ins. Co. v. Leedom, 284

F.2d 281 (D.C. Cir. 1960); Leedom v. Internat’l Brhd of

Electrical Wkrs, 278 F.2d 237 (D.C. Cir. 1960); Internat’l

Ass’n of Tool Craftsmen v. Leedom, 276 F.2d 514 (D.C. Cir.),

cert. denied, 364 U.S. 815 (1960) ; Leedom v. Norwich, Conn.

Printing Specialties & Paper Products Union, Local 494,

275 F.2d 628 (D.C. Cir.), cert. denied, 362 U.S. 969 (1960) ;

Nat’l Biscuit Division v. Leedom, 265 F.2d 191 (D.C. Cir.),

cert. denied, 359 U.S. 1011 (1959).

18 Leedom v. Kyne, 249 F.2d 490, 491 (D.C. Cir.), aff'd,

858 U.S. 184 (1958).

30a

To preserve the Wagner Act’s judgment that judicial

review of non-ULP orders can obstruct collective bar-

gaining, the equitable purpose of the Kyne exception must

be balanced against the need to limit recourse to the

judiciary..* I agree with Professor Jaffe that the basis

for court “intervention” in such cases must be “the

type of gross transgression for which we invoke the

label ‘jurisdictional’ or ‘clear errors of law’ * * *.””

The factors relevant to this determination are (A)

wether the alleged error by the Board involved a ques-

tion of statutory interpretation or merely an issue of

fact; (B) whether the statutory provision is “clear and

mandatory” in creating rights for those subject to the

NLRA; (C) whether the party challenging the Board’s

action has a realistic hope of eventual court review fol-

lowing an unfair labor practice order; and (D) the po-

tential for thwarting the purposes of the NLRA which

would flow from finding jurisdiction in this case.”

19 Professor Cox concluded shortly after Kyne that the de-

cision “places all NLRB certifications in the category of

reviewable orders.” Cox, The Major Labor Decisions of the

Supreme Court October Term 1958, ABA Section of Labor

Relations Law, 1959 Proceedings, reprinted in W. GELLHORN

& C. BYSE, ADMINISTRATIVE LAW 441, 443 (4th ed. 1960). In

rejecting this view courts have focused on (1) the clarity of

the alleged violation of the statute, Internat’l Brhd of Team-

sters v. Brhd of Railway, Airline & Steamship Clerks, supra

note 17, 402 F.2d at 205; and (2) available avenues to chal-

lenge the Board decision, Cox v. McCulloch, 315 F.2d 48, 50

(D.C. Cir. 1963). See Note, supra note 6, 8 Burr. L. REv. at

383 (“inadequacy of review” plus “factor of illegality”).

20 [,, JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

348 (1965).

21 The jurisdictional inquiry involves some examination of

the merits of appellants’ argument. See Internat’l Brhd of

Teamsters v. Brhd of Railway, Airline & Steamship Clerks,

supra note 17, 402 F.2d at 199, 205. This is necessary if we

3la

If the District Court was correct that “[t]he question

of the status of house staff members as employees or as

students is primarily a factual and definitional deter-

mination of the type traditionally left to the discretion

of the Board,” ** I would agree with the majority that

there is no jurisdiction in the courts to hear this case.

Appellants insist, however, that the legislative histories

of the NLRA and the 1974 Health Care Amendments to

that statute ** affirmatively demonstrate a congressional

intent to cover house staff under the Act. To decide this

question it is necessary to examine the definition of

“employee” under the Act and the effect of the 1974

Amendments.**

are to preserve the policy of holding the courthouse door not

“wholly closed,” yet also not “widely ajar.” Local 130,

IUERMW v. McCulloch, supra note 17, 345 F.2d at 97.

22 Physicians Nat’l House Staff Ass’n v. Murphy, supra note

8, 443 F.Supp. at 810. There is no dispute here as to what

constitutes house staff. The only issue is whether they are

employees under the Act.

*3 Pub. L. No. 93-360, 88 STAT. 395 (1974).

*4 See Internat’l Brhd of Electrical Wkrs v. NLRB, 487

F.2d 1143, 1170-1171 (D.C. Cir. 1973) (en banc), aff’d sub

nom. Florida Power & Light Co. v. Internat’l Brhd of Elec-

trical Wkrs, Local 641, 417 U.S. 790 (1974):

In the final analysis, “administrative experience is of

weight in judicial review only to this point—it is a per-

suasive reason for deference to the [Board] in the exer-

cise of its discretionary powers under and within the law.

It cannot be invoked to support action outside of the law.

And what action is, and what is not, within the law must

be determined by the courts, when authorized to review,

no matter how much deference is due to the agency’s fact

finding. Surely an administrative agency is not a law

[Continued]

32a

Section 2(3) of the NLRA, 29 U.S.C. § 152(3) (1976),

provides: “The term ‘employee’ shall include any em-

ployee * * * unless this subchapter explicitly states other-

wise * * *.” The Supreme Court has held that “the

broad language of the Act’s definitions, which in terms

reject conventional limitations on such conceptions as

‘employee,’ * * * leaves no doubt that its applicability

is to be determined broadly * * *.”2 The breadth of the

definition has been retained through the express statu-

tory exclusion of only a few groups of workers—agri-

cultural workers, domestic laborers, family workers,

independent contractors, and Supervisory employees.”*

*4 [Continued]

Quoting SEC v. Chenery Corp., 382 U.S. 194, 215 (1947)

(Jackson, J., dissenting). See also SEC v. Sloan, 436 U.S.

103, 118 (1978):

“The construction put on a statute by the agency charged

with administering it is entitled to deference by the

courts ** *, * * * But the courts are the final authorities

on issues of statutory construction, FTC v. Colgate-

Palmolive Co., 380 U.S. 374, 385, and ‘are not obliged to

stand aside and rubber-stamp their affirmance of admin-

istrative decisions thav they deem inconsistent with a

statutory mandate or that frustrate the congressional

policy underlying a statute.’ NLRB v. Brown, 380 U.S.

278, 291." * * *

Quoting Volkswagenwerk v. FMC, 390 U.S. 261, 272 (1968).

25 NLRB v. Hearst Publications, Inc., 322 U.S. 111, 129

(1944) (footnote omitted).

6 Section 2(3), 29 U.S.C. § 152 (3) (1976), excludes

any individual employed as an agricultural laborer, or in

the domestic service of any family or person at his home,

or * * * employed by his parent or spouse, or * * * having

the status of an independent contractor, or * * * employed

as a supervisor, or * * * by an employer subject to the

Railway Labor Act * * *,

33a

Notably, house staff are not excluded from the Act in

terms.”” Quite the reverse is true.

The Taft-Hartley Amendments distinguished between

professional and nonprofessional employees for determi-

nation of appropriate bargaining units.** This distinction

applies only after the Board has determined that workers

fall within the definition of employee in Section 2(3).

Nevertheless, it is plain that the definition of professional

employee reflects the legislative understanding as tc

which workers fall within the broader definition of em-

ployee. See NLRB v. Bell Aerospace Co., 416 U.S. 267,

297-298 (1974) (White, J., dissenting). The relevant

passage provides:

(12) The term “professional employee” means—

(a) any employee engaged in work * * * (iv)

requiring knowledge of an advanced type in a field

of science or learning customarily acquired by a pro-

longed course of specialized intellectual instruction

and study in an institution of higher learning or a

hospital * * *; or

(b) any employee, who (i) has completed the

courses of specialized intellectual instruction and

study described in clause (iv) of paragraph (a),

and (ii) is performing related work under the su-

pervision of a professional person to qualify himself

to become a professional employee as defined in

paragraph (a).

29 U.S.C. § 152(12) (1976). The House Conference Re-

port on the Taft-Hartley Act described this definition as

27 Indeed, there was no exclusion for nonprofit hospitals

in the NLRA until 1947, see note 31 infra, so there is no

evidence in the Wagner Act of concern over the appropri-

ateness of public regulation of labor relations in hospitals.

282 NLRB, LEGISLATIVE HISTORY OF THE LABOR-MANAGE-

MENT RELATIONS ACT OF 1947 at 1663-1664 (1948) (herein-

after cited as LEGISLATIVE HISTORY).

34a

applying to “such persons as legal, engineering, scien-

tific and medical personnel together with their junior

professional assistants.”** As NLRB Member (now

Chairman) Fanning urged in dissent to one of the

Board’s house staff decisions, “[T]he definition fits, pre-

cisely, housestaff officers.’’ *°

In response to a spate of recognition strikes in the

hospital industry, Congress extended NLRB jurisdiction

to nonprofit health care facilities in the 1974 Health Care

..mendments.** The legislative history of these amend-

ments provides substantial support for the view that

Congress intended that house staff be covered by the

NLRA. In Senate hearings spokesmen for appellants,

while urging passage of the amendments, argued for a

new provision specifying that house staff are not “super-

visory employees” excluded from the coverage of the Act

under Section 2(11).2 The committee reports on the

legislation explain why that suggestion was not adopted:

Various organizations representing health care

professionals have urged [exclusion of] such pro-

fessionals from the definition of “supervisor”. The

Committee has studied this definition with particu-

lar reference to health care professionals, such as

2° H.R. Rep. No. 510, supra note 10, at 36 (emphasis added).

80 Cedars-Sinai Medical Center, supra note 1, 223 NLRB at

258 (Member Fanning, dissenting) (emphasis in origina)).

31S. Rep. No. 766, 93d Cong., 2d Sess. 3 (1974) ; H.R. Rep.

No. 1051, 98d Cong., 2d Sess. 4, 5 (1974). Under a provision

offered from the floor of the Senate the Taft-Hartley Amend-

ments had exempted nonprofit hospitals from the NLRA.

H.R. Rep. No. 510, supra note 10, at 31-82; 2 LEGISLATIVE

HISTORY, supra note 28, at 1662.

32 Coverage of Nonprofit Hospitals Under National Labor

Relations Act, 1973: Hearings Before the Subcommittee on

Labor of the Senate Committee on Labor and Public Welfare,

93d Cong., 1st Sess. 291-423 (Aug. 1, 1973).

35a

interns, residents, fellows, * * * and con-

cludes that the proposed amendment is unnecessary

* * *, The Committee notes that the Board has

carefully avoided applying the definition of “super-

visor” to a health care professional who gives di-

rection to other employees * * *, which direction is

incidental to the professional’s treatment of patients

and thus is not the exercise of supervisory authority

in the interest of the employer. '*!

a ae

The clear assumption underlying this discussion of the

Supervisory status of house staff is that they are other-

wise within the definition of employee in the Act. Had

Congress not considered them employees, their status as

supervisors could not have been at issue since the term

“supervisor” as used in the Act refers to a subcategory

of “employees.” ** This view is buttressed by comments

on the floor of the Senate. In introducing the legislation

Senator Cranston, co-manager of the bill, explained that

the amendments would grant collective bargaining rights

33S. Rep. No. 766, supra note 31, at 6; see H.R. Rep. No.

1051, supra note 31, at 7.

%4 Neither the majority nor the Board is able to offer any

explanation of how the committee reports could logically have

addressed the question whether house staff are supervisory

employees without assuming that they are employees under

the Act. Instead the majority suggests that insofar as the

committees expected the Board to follow its usual procedures

in deciding whether house staff are supervisors, it may be

assumed that the committees also expected the Board to follow

its usual procedure in deciding whether house staff are em-

ployees. It should be noted, however, that the Board itself

has not interpreted the committee statements about the super-

visory status of house staff in the manner that the majority

suggests. In its decision in Kansas City General Hospital,

supra note 1, 225 NLRB at 109, the Board stated that “Con-

gress, in passing the * * * amendments, * * * made a deter-

mination that [house staff] were not supervisors within the

meaning of the Act[.]”

36a

to “notoriously underpaid” hospital workers, including

“doctors.” ** He added:

According to [the] president of the Physicians Na-

tional Housestaff Association, the average house

staff officer—intern, resident, or fellow—works 70

to 100 hours per week, and earns about $10,000 per

year. His hourly wage, then, ranges from $1.92 to

$2.74, (36)

Senator Cranston would certainly not have cited interns

in this statement unless he understood them to be covered

by the legislation he was offering.

Even one of the opponents of the 1974 Health Care

Amendments, Senator Dominick, referred repeatedly to

the coverage of house staff under the bill, grouping house

staff together with other hospital employees.** When the

amendments came up for a final vote, he stated, “I know

that nurses, staff physicians, and others are in favor of

the -principle of collective bargaining,” ** and added:

I am sure as dedicated professional nurses, staff

physicians, and other hospital employees * * * would

never jeopardize their patients(’] well being [sic].

The balancing of these groups’ rights as employees

to form bargaining units with the public interest in

access to health care has given us some special fea-

tures in this bil] * * *. * * ® (39)

35120 ConG. REC. 12987 (1974). As graduates of medical

colleges and licensed physicians, house staff are, of course,

doctors.

36 Td,

37 For example, Senator Dominick noted assurances he had

received that if the nonprofit hospital exemption were re-

moved “house staff physicians * * * would never go on strike.”

Id. at 12971.

38 Jd. at 22580.

39 Td,

37a

In light of these congressional statements, I am com-

pelled to agree with the Second Circuit’s statement that

Congress “considered housestaffs within the scope of the

Health Care Amendments.” *° As employees under the

NLRA, house staff may not be deprived of rights “as-

sured to them by Congress.” -Leedom v. Kyne, supra, 358

U.S. at 189. I reach this conclusion not on the basis of

factual characteristics of the hospital industry or the work

performed by house staff, but on the terms of the statute

itself and its legislative history.*!

40 NLRB v. Committee of Interns & Residents, supra note

2, 566 F.2d at 815.

#1 My consideration of the legislative history on this ques-

tion is similar to the approach taken by both the majority and

the dissenters for the Supreme Court in NLRB v. Catholic

Bishop of Chicago, 440 U.S. 490 (1979). Chief Justice Bur-

ger’s opinion for the majority concluded after “close examina-

tion” of the legislative history of the NLRA that Congress

did not extend the protections of the Act to church-operated

schools, 440 U.S. at 504-507, while Justice Brennan in dissent

disputed the majority’s view of the jurisdiction conferred by

the statute. Because the Act does not use plain statutory

language extending the Board’s coverage to specific groups,

both the Burger and Brennan opinions resort to the legis-

lative history and refer to exactly the same legislative ma-

terials that I canvass today. Moreover, I believe that the

specific congressional statements on house staff—including

the statutory definition of professional employee, the accom-

panying committee explanation in 1947, and the committee

statement and floor statements in 1974—easily satisfy the

Chief Justice’s requirement of “a clear expression of affirma-

tive intention.” Catholic Bishop, supra, 440 U.S. at 504. In

contrast, the dissent in Catholic Bishop cites only one state-

ment by a prominent senator, id. at 515, and more general

statements as to the breadth of NLRB jurisdiction over non-

profit institutions, 7d. at 515 & n.7. I certainly do not dis-

parage the judgment of the four dissenting Justices that that

legislative history was sufficient to establish Board jurisdic-

tion over parochial school teachers, but I emphasize the

greater support for my conclusion in the instant case.

38a

Although I conclude that the Board misconstrued a pro-

vision of the NLRA, the Kyne exception requires viola-

tion of a “clear and mandatory” statutory requirement

creating rights under the Act.*? This criterion has not

been interpreted woodenly, however. The Act clearly di-

rects that employees receive the protections it provides.

In Miami Newspaper Printing Pressmen’s Union Local

46 v. McCulloch, 322 F.2d 998 (D.C. Cir. 1963), this

court held that the Kyne exception applies to positive

commands of the NLRA as well as to negative prohibi-

tions as in Kyne.** Miami Pressmen also found that the

statutory provision involved in that case, though “not

mandatory in all instances,” did impose a mandatory

duty “[o]n these facts.’’ *

My earlier discussion establishes the clarity of the

congressional intent on this matter.*® Satisfaction of the

' statutory definition involved here triggers specific Board

“2 See Internat’l Brhd of Teamsters v. Brhd of Railway, Air-

line & Steamship Clerks, supra note 17, 402 F.2d at 205 (“the

assertion of jurisdiction [is confined] to cases where the error

on the merits is as obvious on the face of the papers as the

violation of specific statuotry language”); Lawrence Typo-

graphical Union v. McCulloch, supra note 17, 349 F.2d at 706

_ n.8 (“A mere allegation in the complaint that the Board has

. violated the Act does not confer jurisdiction. The violation

must be proved.’’).

*8 Miami Newspaper Printing Pressmen’s Union Local 46

v. McCulloch, 322 F.2d 993, 997 (D.C. Cir. 1963). See Termi-

nal Freight Handling Co. v. Solien, 444 F.2d 699, 703 (5th

Cir. 1971), cert. denied, 405 U.S. 996 (1972) ; Nat‘l Maritime

Union of America v. NLRB, 375 F.Supp. 421, 429 (E.D. Pa.),

aff'd, 506 F.2d 1052 (3d Cir. 1974), cert. denied, 421 U.S. 963

(1975).

“* Miami Pressmen, supra note 43, 322 F.2d at 997, 998.

45 See Part II-A supra.

39a

action, after an appropriate petition for certification, to

hold representation elections as required by Section 9(c)

(1) of the Act, 29 U.S.C. § 159(c) (1) (1976).4¢ By de

nying that house staff are employees under the Act the

Board contravened the legislative direction that house

staff and hospitals have access to Board-administered col-

lective bargaining. Section 7 of the Act, 29 U.S.C. § 157

(1976) ,*” provides:

Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or

other mutual aid or protection * * *.

The “Findings and declaration of policy” in the NLRA

echo this guarantee of employee rights,** and both the

Board and the courts have the responsibility to enforce

these rights.** In its decisions excluding house staff from

** The provision states that if, upon petition by “an em-

ployee or group of employees,” the Board finds that “a ques-

tion of representation exists, it shall direct an election by

secret ballot and shall certify the results thereof.”

‘7 See also Central Hardware Co. v. NLRB, 407 U.S. 539,

542-544 (1972); NLRB v. Textile Wkrs Union of America,

Local 1029, 409 U.S. 213, 216 (1972).

#829 U.S.C. § 151 (1976) :

It is declared to be the policy of the United States to

eliminate the causes of certain substantial obstructions to

the free flow of commerce and to mitigate and eliminate

these obstructions when they have occurred by encourag-

ing the practice and procedure of collective bargaining

and by protecting the exercise by workers of full freedom

of association, self-organization, and designation of rep-

resentatives of their own choosing, for the purpose of

negotiating the terms and conditions of their employment

or other mutual aid or protection.

49 See Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345 (3d

Cir. 1969), cert. denied, 397 U.S. 985 (1970).

40a

its coverage the Board failed to satisfy this most funda-

mental mandate of the NLRA.

The only possible exception to the Board’s duty in this

case would be under Section 14(c) of the Act, which

permits the Board to decline jurisdiction over employers

having an insubstantial effect on commerce.” But the

1974 Health Care Amendments expressly extend NLRA

coverage to the nonprofit hospitals that employ house

staff, so no such issue is present in this case.

The majority does not really deny that under Section

2(3) house staff are employees covered by the Act. It

simply argues that because neither Section 2(3) nor the

legislative history of the Health Care Amendments spe-

cifically—in terms—says so, they are not entitled to the

Kyne protection afforded other employees and thus are

stripped of any protection under the Act.** In my view,

neither Section 2(3) nor the legislative history of the

Health Care Amendments supports any such bizarre

interpretation.

Certainly a finding by this court that the Board vio-

lated a specific statutory mandate in this case must ulti-

mately rest on a determination that house staff are em-

ployees within the meaning of the Act. But that deter-

mination need not be based on specific language in the

statute or in legislative history so stating. The reason

°° 29 U.S.C. § 164(c) (1) (1976):

The Board, in its discretion, may, by rule of decision

or by published rules * * *, decline to assert jurisdiction

over any labor dispute involving any class or category of

employers, where, in the opinion of the Board, the effect

of such labor dispute on commerce is not sufficiently sub-

stantial to warrant the exercise of its jurisdiction &

See Hotel Employees Local No. 255 v. Leedom, 358 U.S. 99

(1958) ; Office Employes Internat’l Union, Local No. 11 v.

NLRB, 353 U.S. 313 (1957).

*) See text and notes at notes 61, 64-67 infra,

4la

for examining the legislative histories of both the Taft-

Hartley Act and the Health Care Amendments is to de-

termine whether appellants are correct in claiming they

show that Congress intended house staff to be employees

under the Act. If they are right, and I believe I have

shown that they are, the Board may not ignore that

intent simply becauce it is not explicit in the statutory

language or its history. A statute can have only one

accepted interpretation—derived from its language or its

legislative history or both—and that interpretation is the

one the Congress intended at the time the legislation was

enacted.

Thus, in the particular circumstances of this case,

Section 2(3), read in the light of the legislative intent

to make house staff employees under the Act, provides

the requisite “clear statutory mandate” that brings this

ease ‘vithin the ambit of the Kyne doctrine.** That Con-

gress did not specifically direct the Board to find house

staff to be employees under the Act is not dispositive. In

this regard the Supreme Court’s decision in NLRB v.

Bell Aerospace Co., supra, a case on which the majority

relies, is instructive. The Court in that case addressed

the question whether the Board had correctly determined

that certain managerial employees were “employees” un-

der the Act. After carefully canvassing the legislative

history of the Taft-Hartley Amendments, the Court con-

cluded that Congress had intended that such employees

be excluded from coverage under the Act. 416 U.S. at

275, 283-284.5% The Court reached this conclusion even

52 It should be pointed out that the reason why the com-

mittee reports did not specifically direct the Board to find

house staff to be employees was that at no time during the

hearings and debates on the amendments was there any sug-

gestion that house staff might not be entitled to coverage

under the Act. See F.2d at (slip op. at 23-24) infra.

‘8 The Court also noted that prior decisions by the Board

and the Courts of Appeals all pointed to the conclusion that

managerial employees are not covered by the Act.

42a

though the statute does not specifically exclude mana-

gerial employees from its coverage, and despite the fact

that nothing in the legislative history specifically directed

the Board to exclude such employees. My examination of

the legislative history of the Health Care Amendments

to determine whether Congress understood house staff to

be employees directly parallels the Supreme Court’s ap-

proach in Bell Aerospace.™

The majority interprets Bell Aerospace as having held

that “for policy reasons persons who are literaliy ‘em-

ployees’ may nonetheless be excluded from coverage un-

der the Act.” Majority opinion, —— F.2d at (slip

opinion at 9-10). Presumably this “policy” decision is to

be made by the Board. But as I read Bell Aerospace the

Supreme Court’s decision that managerial employees are

not covered by the Act did not rest on “policy reasons.”

Rather, the decision was based on what the Court, after

a careful examination of the legislative history, deter-

mined the intent of Congress on this question to be. Thus,

to find support for its decision in this case in Bell Aero-

space, the majority must show that Congress intended to

exclude house staff from coverage under the Act.* This,

I submit, it has not done.

4 See also discussion of NLRB v. Catholic Bishop of Chicago

in note 41 supra.

55 The majority also cites Allied Chemical & Alkali Workers

Local No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971),

as standing for the proposition that “policy reasons” may

justify exclusion of persons who are “literally employees”

from the Act’s coverage. However, in that case the Supreme

Court simply held that retirees are not employees under the

Act, pointing out that “the legislative history of § 2(3)

itself indicates that the term ‘employee’ is not to be stretched

beyond its plain meaning embracing only those who work for

another for hire.” 404 U.S. at 166. Thus Allied Chemical

Workers cannot be reconciled with the majority’s suggestion

here that the Board may decide that persons who are literally

43a

The majority describes the recent failure of the House

of Representatives to adopt a bill that would have over-

ruled the Board’s house staff decisions by explicitly in-

cluding house staff within the statutory definition of em-

ployees as “the strongest evidence of congressional intent

available to us * * *.”** However, in assessing the rele-

vance of this development to the case at bar it should

be pointed out that the action of one house of Congress

cannot be a basis from which to draw inferences about

the intentions of the whole Congress. Moreover, insofar

a> the issue involved in this case is the congressional

intent expressed in the legislative history of the Health

Care Amendments, it must be remembered that our con-

cern is with the intent and views of the 93rd Congress—

the Congress that enacted these amendments.

The Supreme Court has consistently admonished

against reading the mindset of one Congress from the

actions of a subsequent Congress. In United States v.

United Mine Workers, 330 U.S. 258 ( 1947), the Court

rejected the notion that opinions expressed by legislators

many years after an Act was passed could be given any

real weight. “We fail to see how the remarks of these

Senators in 1943 can serve to change the legislative intent

of Congress expressed in 1932 * * *.” Jd. at 289. It is

well established that “ ‘the views of a subsequent Con-

gress form a hazardous basis for inferring the intent of

an earlier one.’ * * * [T]he abortive action of the sub-

sequent Congress ‘would not supplant the contemporan-

eous intent of the Congress which enacted the... Act.’”

Waterman S.S. Corp. v. United States, 381 U.S. 252,

“employees” are nevertheless not employees for purposes of

the Act, particularly in view of the Act’s rather explicit di-

rective that “[t]he term ‘employee’ shall include any employee

** * unless this subchapter explicitly states otherwise * * *.”

29 U.S.C. § 152(38) (1976) (emphasis added).

5¢ See majority op., —— F.2d at —_— (slip op at 12).

44a

269 (1965), quoting United States v. Price, 361 U.S. 304,

313 (1960), and Fogarty v. United States, 340 US. 8,

14 (1950). Most recently, the same stricture was laid

down by Chief Justice Burger, saying, “Legislative ob-

servations 10 years after passage of the Act are in no

sense part of the legislative history.” United Air Lines,

Ine. v. McMann, 434 U.S. 192, 200 n.7 (1977). See also

United States v. Philadelphia Nat'l Bank, 374 U.S. 321,

348-349 (1963); United States v. Wise, 370 U.S. 405,

411 (1962).

The pertinence of subsequent congressional action is

even further diminished when, as is the case here, the

“action” being cited is inaction. United States v. United

Mine Workers, supra. In United States v. Price, supra,

the taxpayer sought to have the Court reason from the

refusal of a congressional committee to take actio. re-

pudiating a judicial decision on which he relied. The

Court refused, declaring that “[{s]uch nonaction by Con-

gress affords the most dubious foundation for drawing

positive inferences.” 361 U.S. at 310-311. The majority

seems to be suggesting that the inaction of one house of

Congress is persuasive evidence of what a previous Con-

gress meant to do when it acted in its full constitutional

cycle. I am not persuaded.

It should also be noted that it is far from clear that

the failure of the House to adopt the bill must be con-

strued as an endorsement of the Board’s house staff de-

cisions. Although it is true, as the majority notes, that

some opponents of the bill stated their agreement with

the Board’s conclusion that house staff are not employees,

it is also quite possible that other votes against the bill

were based on different considerations. For example,

some of the negative votes may simply reflect a reluctance

on the part of some members of the House to abandon

57 Jd., —— F.2d at —— (slip op. at 12).

45a

the Act’s wise policy of requiring that “[t]he term ‘em-

ployee’ shall include any employee * * * unless this sub-

chapter explicitly states otherwise,” ** in favor of listing

all the groups of employees to be covered by the Act.

As previously noted, the majority’s rejection of ap-

pellants’ Kyne contention also rests on the fact that the

committee reports accompanying the Health Care Amend-

ments and the statements by Senators Cranston and

Dominick do not explicitly state that Congress was direct-

ing the Board to find house staff to be employees under

the Act. What the majority omits to mention, however,

is that at no time during Congress’ consideration of the

amendments was there any doubt that they applied to

house staff or that house staff were employees under the

Act. Both House and Senate committees held hearings

on the legislation. Not one of the witnesses—which in-

cluded representatives of the Department of “Labor and

the Association of American Medical Colleges, amicus

curiae in the instant case—who testified at these hear-

ings even suggested that house staff were not brought

under the coverage of the Act by the proposed amend-

ments because they are “primarily students” or for any

other reason. Quite the contrary, the assumption was

that the legislation would apply to house staff. Nor was

there any reference to any student status of house staff

during the floor debates on the amendments. Finally,

there can be no suggestion that the reason why this issue

was not raised was because the Congress and the parties

concerned with the legislation were unaware of it. State

labor relations boards in New York and Michigan had

squarely ruled that house staff were employees under

the labor relations acts of those states.*® And representa-

5829 U.S.C. § 152(3) (1976).

°° See Brooklyn Eye & Ear Hospital, 64 LRRM 1344 (1966)

(New York); Regents v. Michigan Employment Relations

Comm’n, 389 Mich. 96, 206 N.W.2d 218 (1973) (Michigan).

46a

tives of the house staff organizations who testified at the

hearings pointed out that house staff had been recognized

as employees and had been engaging in collective bar-

gaining under state law in New York and Minnesota.”

As previously noted, the only issue about the status of

house staff raised during the hearings concerned the at-

tempt by representatives of the house staff organizations

to persuade the committees to e

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