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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 917

## Text

. 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,

V.

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

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

>

54

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

If

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

56

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

57

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

58

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]).

59
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).

60
(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).

61

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

7%

62

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)

63
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.

64

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).

65

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

Ba

Ba

la

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,

2a

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-

3a

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)."

4a

-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...

(c) (1) Whenever a petition
shall have been filed, in accordance
with such regulations as may be pre-
scribed by the Board -

(A) by an employee or

5a

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

6a

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

7a

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

8a
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

V.

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.

9

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.

I

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).

rs

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.

F%

7

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.

II

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
unto itself © ° 5” 95 *

[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 exclude house staff from
the statutory definition of “supervisors.” Not surpris-
ingly, this was the only issue that was explicitly ad-
dressed in the committee reports. Given the complete
absence of any controversy concerning the employee status
of house staff, it is understandable that the legislative
history does not contain an explicit directive to the Board
to find them to be such. Surely, given this background,
Congress did not expect too much in assuming that the
Board, which is supposed to carry out its intentions,
would not act in clear disregard of its views with re-
spect to house staff as employees.

That the Board’s house staff decisions are directly con-
trary to Congress’ intentions is also made clear when
the interpretation of congressional intent the Board would
have us accept is examined. Before the Health Care
Amendments were adopted in 1974, house staff had been
engaging in collective bargaining pursuant to state law
in a number of states. In two states that allowed collec-
tive bargaining in private hospitals—New York and Min-
nesota—they had been engaging in collective bargaining
for some 20 years.** Legislation enacted by Congress at
the urging of the house staff organizations, and for the
purpose of extending the procedures of the Act to col-

6 See Coverage of Nonprofit Hospitals Under National
Labor Relations Act, 1 973, supra note 32, at 294.

*! See H.R. Rep. No. 1051, supra note 31, at 15 (Additional
Views of Representatives Quie, Steiger, Eshleman, and Erlen-
born).

47a

lective bargaining in nonprofit hospitals, has now been
interpreted by the Board not only to deny house staff
the right to engage in collective bargaining pursuant to
federal law, but also to deny them even those rights they
had previously enjoyed under state law.® This notwith-
Standing the fact that appellants sought and received,
as the Board itself has acknowledged,™ assurances from
Congress that house staff would not be deprived of their
right to collective bargaining by a Board finding that
house staff are supervisory employees. The intent the
Board would have us attribute to Congress is patently
unreasonable. To permit the Board to alter Congress’
intent under the guise of making “factual” determina-
tions is even less acceptable.

The full extent to which the majority’s decision departs
from the teaching of Leedom v. Kyne is revealed by its
willingness to concede that under its view of the Kyne
doctrine courts are powerless to prevent the Board from
making completely arbitrary decisions about who is an
employee under the Act. Presumably the Board is now
free to decide that construction workers, plumbers, or
carpenters, although they “possess certain employee char-
acteristics,” * are “primarily” artisans and therefore are
not employees within the meaning of the Act.” I cannot

82 Since the. Board has successfully argued to the Second
Circuit that national labor policy preempts any state jurisdic-
tion over house staff, see NLRB v. Committee of Interns &
Residents, supra note 2, its decision that house staff are not
employees within the meaning of the Act means that they may
not engage in collective bargaining under either state or
federal law.

63 See note 34 supra.
* Majority op., F.2d at (slip op. at 14-15).

85 Cedars-Sinai Medical Center, supra note 1, 223 NLRB at
251.

*° Presumably this decision would be based on “policy
reasons.”

a
agree that the Board saa tees the guise of making
factual determinations, ignore congressional intent and
completely rewrite the statute Congress enacted to “pro-
tect ‘laborers’ and ‘workers’ whose rights to organize and
bargain collectively had not been recognized by indus-
try” ™ by deciding that these workers are not employees
under the Act. It is as if the majority has forgotten
the Supreme Court’s admonition in Leedom v. Kyne that
courts “cannot lightly infer that Congress does not in-
tend judicial protection of rights it confers against agency
action taken in excess of delegated powers.” 358 U.S.
at 190."
C

As discussed earlier, Congress limited judicial review
to unfair labor practice orders under Section 10(f) in
order to prevent dilatory tactics that would delay collec-
tive bargaining.” Courts have frequently rejected pre-
election Kyne suits because the plaintiff would eventually
have the opportunity to force the adverse party to seek
a ULP order from the Board, at which time the merits
of the case could be argued.” This approach derives from

°™ NLRB v. Bell Aerospace Co., 416 U.S. 267, 279 (1974).

** It is worth stressing that District Court jurisdiction over
the Board decision in this case will not lead to the problem of
allowing dilatory tactics in representation proceedings that
Congress was concerned about when it rejected the suggestion
that all Board certification decisions be subject to jucicial
review. See text at notes 5-11 and note 10 supra. Since the
Board has refused to certify appellants, no issue of delaying
certification proceedings arises. Nor should there be concern
that this case will create a precedent for District Court juris-
diction in other situations in which there may be an oppor-
tunity for delay. This latter possibility provides an adequate
basis for denying District Court jurisdiction in such cases.

See Part I supra.

70 See, e.g., Smith Steel Workers v. A. O. Smith Corp., 420
F.2d 1, 6 (7th Cir. 1969) ; McCulloch v. Libbey-Owens-Ford

49a
language in AKyne pointing out that for the professional
employees in that suit “there is no other means, within
their control,” to protect their rights.”

In Boire v. Greyhound Corp., supra, for example, the
Supreme Court stressed that because Board orders in
certification proceedings are not really “final orders,”
they should not be challenged in court. Litigation follow-
ing a ULP order, the Court said, can fully explore the
validity of the “underlying certification order.” 376 U.S.
at 476-477. Greyhound, which denied that it was a joint
employer of maintenance crews, could have instigated a
ULP order by refusing to bargain with the certified rep-
resentatives of the workers. Then the bus line, as the
Supreme Court stated, could have disputed its classifica-
tion as a joint employer while contesting the ULP order.
Thus the availability of eventual recourse to judicial re-
view is an important consideration for a court asked to
exercise its equitable powers under the Kyne exception.

Glass Co., supra note 16; Lawrence Typographical Union v.
McCulloch, swpra note 17, 349 F.2d at 708 (Bazelon, J., con-
curring).

71 Leedom v. Kyne, supra note 8, 358 U.S. at 190. Some
have claimed that the Kyne plaintiffs could have instigated a
ULP order by refusing to bargain on behalf of the nonprofes-
sional employees in the bargaining unit. See Bullard Co. v.
NLRB, 253 F.Supp. 391, 395 (D. D.C. 1966) ; Note, Supreme
Court, 1958 Term, 73 Harv. L. REV. 126, 219 (1959). This
court’s opinion in Kyzre convincingly disputes that “remote
and conjectural” contention:

Nor is it likely that [the union’s] refusal to bargain for
the nine non-professionals would induce the employer to
seek review since he would then be free to deal with all
employees individually. Nor could we expect such refusal
to induce any of the nine non-professionals to seek re-
view. They are hardly likely to insist upon placing their
fate in the hands of a reluctant bargaining representative.

Leedom v. Kyne, supra note 18, 249 F.2d at 492.

50a

But house staff, like the workers in Kyne and unlike
the employer in Boire, have no feasible recourse other
than this suit. Any attempt to provoke an unfair labor
practice order through recognitional picketing would leave
the:a vulnerable to damage suits by hospitals.”? By its
action the Board has simply excluded these employees
fror1 all Board process, from all NLRA rights. These
employees have nowhere to turn but to the federal courts.
As a result, I believe that the refusal to certify chal-
Jenged in this suit should be viewed as a final order sub-
ject to challenge in the courts.

D

Finally, it is necessary to consider the relationship be-
tween the purposes of the NLRA and the exercise of
District Court jurisdiction requested by appellants. As
my discussion thus far suggests, I believe that, in view
of the nature of the Board’s error in statutory interpre-
taticn, court review is fully consistent with the national
labor policy.

In a case interpreting the definition of employee un-
der the Wagner Act the Supreme Court stated that

the avowed and interrelated purposes of the [NLRA]
are to encourage collective bargaining and to rem-
edy the individual worker’s inequality of bargain-
ing power by “protecting the exercise . . . of fuil
freedom of association, self-organization, and desig-
nation of representatives of their own choosing

a. 2 €@ * @& # (73)

Public regulation of labor relations is designed to ensure
orderly presentation of worker grievances and demands,
and to reduce the strife involved in reconciling workers’

**29 U.S.C. $187 (1976).

"> NLRB v. Hearst Publications, Inc., supra note 25, 322
U.S. at 126.

5la

interests with those of management.** These purposes
also motivated the 1974 Health Care Amendments, which
were aimed at preventing disruptions in patient care due
to “recognition strikes and picketing.” Since I have
concluded that the Board misconstrued the legislative di-
rection that house staff be viewed as employees within
the Act, exercise of District Court jurisdiction over this
case can only support the goals of the national labor
policy. Certification of appellants would largely elimi-
nate recognition strikes and could lead to orderly collec-
tive bargaining—the “pervasive focus” of the NLRA.”
Finally, there can be no claim that certification of ap-
pellants will delay collective bargaining under the Act,
since house staff are currently excluded from statutory
coverage.

My conclusion is fortified by a comparison between
the situation of house staff here and the circumstances
of the Kyne plaintiffs. Both groups suffered, through
Board error, a loss of rights provided by the NLRA.
But in Kyne the professional employees still enjoyed the

74 See National Labor Relations Act §1, 29 U.S.C. $151
(1976).

73 See sources cited in note 31 supra. There were house staff
strikes in New York City and Los Angeles in 1975. AMERICAN
HOSPITAL ASSOCIATION, supra note 1, at 22-23. Government
statistics show that in private hospitals generally well over
half of the man-days lost due to strikes between 1965 and
1971 were the result of recognition strikes. Coverage of Non-
profit Hospitals Under National Labor Relations Act, 1973,
supra note 32, at 246-252 (tables from U.S. Bureau of Labor
Statistics).

76 Internat’l Brhd of Electrical Wkrs v. NLRB, supra note
24, 487 F.2d at 1170. Appellants also contend that the Board’s
rulings have unconstitutionally deprived them of due process
and violated the Tenth Amendment. In view of my conclu-
sion on the statutory issue, I do not reach those claims.

52a
benefits of self-organization and collective bargaining.”

In contrast, house staff currently have no access to the
protections of the NLRA or the machinery of the Board
for resolving labor disputes. There can be no serious
doubt as to court jurisdiction in such circumstances.

My conclusion does not disturb the Board’s discretion
in those broad areas in which it may be validly exercised.
I simply find that the legislative intent to extend the
benefits of the NLRA to house staff may not be contra-
voned by administrative fiat. I have taken pains to em-
phasize that I leave the Kyne exception as I found it:
in a narrowly defined set of circumstances, certification
decisions of the Board that violate clear and mandatory
congressional instructions and that are effectively final
orders not otherwise reviewable are subject to review
in the District Courts under Section 1337 of Title 28.

Consequently, I would reverse the judgment of the Dis-
trict Court and remand this case for further proceedings.

I respectfully dissent.

T Indeed, it may be argued that the Kyne plaintiffs suffered
little injury from the Board’s action. The requirement that
_ professional employees approve their inclusion in a bargain-
ing unit with nonprofessional workers was designed to prevent
' situations where a small minority of professional workers
would have their interests ignored by bargaining units domi-
nated by other employees. S. Rep. No. 105 (pt. I), 80th Cong.,
Ist Sess. 11 (1947) ; H.R. Rep. No. 510, supra note 10, at 36.
But the professionals in Kyne made up more than 95% of the
bargaining unit, so the evil feared by Congress was at most a
remote possibility.

APPENDIX III

Original Opinion and Judgment of
the Court of Appeals for the
District of Columbia Circuit

53a
Notice: This opinion is subject to formal revision before publication
in the Fedcrai 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 e¢ al., APPELLANTS

Vv.

BETTY SOUTHARD MURPHY et al.

Appeal from the United States District Court
for the District of Columbia

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

Argued January 24, 1979
Decided April 2, 1979

- Murray A. Gordon, of the bar of the Supreme Court
of the United States, pro hac vice, by special leave of
court, with whom Abraham L. Zwerdling and Bernard
Katz were on the brief, for appellants.

Ruth Peters, Attorney, National Labor Relations Board,
of the bar of the Supreme Judicial Court of Massachu-

~~ °

Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.

54a

setts, pro hac vice, by special leave of court, with whom
John S. Irving, General Counsel, Carl L. Taylor, Associate
General Counsel, Elliott Moore, Deputy Associate General
Counsel, Ailecn A. Armstrong, Assistant General Counsel,
and Margery LE’. Lieber, Attorney, National Labor Rela-
tions Board, were on the brief, for appellees.

Before WRIGHT, Chief Judge, RosbB, Circuit Judge, and
RICHEY,* District Judge.

Opinion for the court filed by Chief Judge Wricurt.
Dissenting opinion filed by Circuit Judge Ross.

WRIGHT, Chief Judge: The National Labor Relations
Board (NLRB) denied appellants’ petitions under the
National Labor Relations Act (NLRA or Act) for certifi-
cation as bargaining representatives for medical interns,
residents, and fellows (“house staff’’).' The Board ruled
that since house staff are primarily “students” rather
than employees, they are not covered by the Act. Appel-
lants then petitioned the District Court to declare that
their members fall within the statutory definition of em-

* Of the United States District Court for the District of Co-
lumbia, sitting by designation pursuant to 28 U.S.C. § 292(a)
(1976).

* See Cedars-Sinai Medica! Center, 223 NLRB 251 (1976);
St. Christopher’s Hospital for Children, 223 NLRB 10382
(1976); University of Chicago Hospitals and Clinics, 223
NLI-B 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 HEALTIL
CARE FIELD 55 (1976). The other appellants are house staff
associations from Cedars-Sinai Medical Cénter, University of
Chicago Hospitals and St. Christopher’s Hospital, and the
Committee of Interns and Residents.

55a
ployees and to order the Board to assume jurisdiction of
their certification petitions.? The District Court granted
the NLRB’s motion to dismiss for lack of jurisdiction
because the Act provides for judicial review only of unfair
labor practice (ULP) orders, as distinguished from re-
fusals to certify bargaining representatives. Citing Lee-
dom v. Kyne, 358 U.S. 184 (1958), which identified a.
narrow exception to what has functioned as a prohibition
of judicial review of non-ULP orders, appellants urge
that Section 1337 of Title 28 confers jurisdiction over this
action.* Because we think the Kyne exception applies to
this case, we reverse and remand for further proceedings.

I

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

* The definition of employee under the Act is discussed in
text at pp. 11-17 infra. The NLRB has successfully argued
to the Second Circuit that even though the Board will not reg-
ulate 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, 435 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.

* 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. § 1337 (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.

56a

Recovery Act.* 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,
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 «
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

548 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 or-
ganize and bargain collectively through representatives of
their own choosing * * *.”

*S. Rep. No. 573, 74th Cong., Ist Sess. 5 (1935). See H.R.
Rep. No. 1147, 74th Cong., Ist Sess. 6, 23 (1935) ; Comment,
50 Iowa L. REV. 931, 933-934 (1965); Note, 8 Burr. L. REv.
372, 377 (1959).

’ Pub. L. No. 74-198, 49 Stat. 449, 455 (1935).

* See American Fed'n 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].”); Inland Empire
Council v. Millis, 325 U.S. 697, 708 (1945); Leedom v. Kyne,
358 U.S. 184, 191-194 (1958) (Brennan, J., dissenting).

* Lecdom v. Kyne, supra note 8, 358 U.S. at 192-193 (Bren-
nan, J., dissenting). a

57a
Taft-Hartley Amendments of 1947 to expand recourse to
the courts, the legislation as passed did not disturb this
limitation."*

Consequently, the current version of the NLRA still
aims to foreclose use of the courts to delay the advent 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 estab-
lishing the certification proceedings involved in this suit
similarly authorizes court appeal only of an unfair labor
practice order,*

In American Fed’n of Labor v. NLRB," the Supreme
Court first suggested, though it did not hold, that NLRB
actions short of unfair labor practice orders might never-
theless be contested in court. In that case the Court de-
clined to rule on the Board’s claim that no judicial re-
view 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

The House of Representatives initially approved an ex-
pansion of District Court review of NLRB certifications. See
H.R. Rep. No. 245, 80th Cong., 1st 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).

* National Labor Relations Act § 10(f), 29 U.S.C. § 160(f)
(1976).

"*Id. §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.

* 308 U.S. 401 (1940).

58a

U.S.C. § 1337]. 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 remedy.

* #14)

The Court applied this approach in Inland Empire Coun-
cul v. Millis.’ After losing a representation election to
another union, the Inland Empire Council challenged the
Loard’s pre-election procedures and protested the ex-
clusion of certain employees from voting. The Board re-
jected the complaint, and the union sued in District
Court. The Supreme Court 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,” ** 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 the Westinghouse Electric Plant in Cheektowaga, New
York." The Board’s order was in apparent violation of
Section 9(b) (1) of the NLRA,” which commands that
bargaining units shall not include both professional and
nonprofessional employees without prior approval of the

“Id. at 412.
* 325 U.S. 697 (1945).
* Td. at 700.

** 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).

** 358 U.S. at 185-186. -- ¢
* 29 U.S.C. § 159(b) (1) (1976).

59a
professional workers. The Board did not deny its viola-

tion of Section 9(b) (1), but argued simply that the Dis-
trict 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
Federal District Court has jurisdiction of an origi-
nal suit to prevent deprivation of a right so given.'*!

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.” *
The opinion concluded, “This Court cannot lightly infer
that Congress does not intend judicial protection of rights
it confers against agency action taken in excess of dele-
gated powers.” 7

The exception to nonreviewability of non-ULP orders
has been applied infrequently.** In 1963 the Supreme

20 358 U.S. at 188-189.

Id. at 190, quoting Switchmen’s Union of North America
v. NMB, 320 U.S. 297, 300 (1943).

* 5.

= See cases cited in note 29 infra.

-

JAMES F.
DAVEY, Clerk

Defendants.

ee ees es es we we

MEMORANDUM

This matter comes before the court
on defendants' motion to dismiss or in

the alternative for summary judgment, and

on plaintiffs' cross-motion for summary
judgment. The facts in this case are not
in dispute. In 1974, Congress passed the
Health Care Amendments, 88 Stat. 395
(July 26, 1974), to the National Labor
Relations Act, 29 U.S.C. §§ 151, et seq.,
which extended the jurisdiction of the

National Labor Relations Board (herein-

after N.L.R.B.) to inoiede employers who
are non-profit health care institutions.
29 U.S.C. §152(2) (Supp. IV 1974). Plain-
tiffs are unincorporated associations
whose memberships are composed of medical
interns, residents, and clinical fellows
(collectively referred to as house staff)
at various non-profit health care in-
stitutions. Prior to the enactment of the
1974 amendments, house staff associations
in several states had been certified by
state labor boards to engage in collective
bargaining. After Congress passed these
amendments, plaintiffs petitioned the
N.L.R.B. to orderthe holding of elections
to certify the house staff associations

as the sole bargaining agents of the house
staff members. In its first decision on

this matter, Cedars-Sinai Medical Center,

233 N.L.R.B. 251 (1976), the Board con-

88a
cluded that although house staff members

possessed "certain employee character-
istics," they were “primarily engaged in
graduate training" and "their status is
therefore that of students rather than of
employees" within the definition of em-
ployee provided in 29 U.S.C. § 162(3).
Since a valid labor organization as de-
fined by 29 U.S.C. § 152(5) must consist
of employees, the Board decided that the
house staff associated was not eligible
for union certification. The Board
issued a series of similar decisions re-
garding the applications of other house

staff associations. University of

Chicago, 223 N.L.R.B. 1032 (1976); St.

Clare's Hospital, 223 N.L.R.B. 1002

(1976); St. Christopher's Hospital, 223

N.L.R.B. 166 (1976).

After releasing these decisions, the

re |
Board, upon a petition to rehear, issued a

revised opinion in Kansas City General

Hospital, 225 N.L.R.B. No. 14A (November

8, 1976). In this revised opinion, the
Board indicated that its intention in the
series of prior decisions on the issue of
representational status for house staff
associations was to preempt this area from
state regulation. In other words, the
Board indicated that, in exercising its

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0928%3A1. Public record. Not legal advice.