LEEDOM et al., MEMBERS OF THE NATIONAL LABOR RELATIONS BOARD, v. KYNE.
No. 14.
Argued October 23, 1958.
Decided December 15, 1958.
Norton J. Come argued the cause for petitioners. With him on the brief were Solicitor General Rankin, Jerome D. Fenton, Thomas J. McDermott and Dominick Manoli.
Jonas Silver argued the cause for respondent, pro hac vice, by special leave of Court. With him on the brief was Bernard Dunau.
Briefs of amici curiae urging affirmance were filed by Milton F. Lunch for the National Society of Professional Engineers, and Gerard D. Reilly and Joseph C. Wells for the Engineers Joint Council.
Mr. Justice Whittaker
delivered the opinion of the Court.
Section 9 (b)(1) of the National Labor Relations Act, 49 Stat. 453, 61 Stat. 143, 29 U. S. C. §159 (b)(1), provides that, in determining the unit appropriate for collective bargaining purposes, “the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.” The Board, after refusing to take a vote among the professional employees to determine whether a majority of them would “vote for inclusion in such unit,” included both professional and nonprofessional employees in the bargaining unit that it found appropriate. The sole and narrow question presented is whether a Federal District Court has jurisdiction of an original suit to vacate that determination of the Board because made in excess of its powers.
The facts are undisputed. Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America, a voluntary unincorporated labor organization, hereafter called the Association, was created for the purpose of promoting the economic and professional status of the nonsupervisory professional employees of Westinghouse Electric Corporation at its plant in Cheektowaga, New York, through collective bargaining with their employer. In October 1955, the Association petitioned the National Labor Relations Board for certification as the exclusive collective bargaining agent of all nonsuper-visory professional employees, being then 233 in number, of the Westinghouse Company at its Cheektowaga plant, pursuant to the provisions of § 9 of the Act, 29 U. S. C. § 159. A hearing was held by the Board upon that petition. A competing labor organization was permitted by the Board to intervene. It asked the Board to expand the unit to include employees in five other categories who performed technical work and were thought by it to be “professional employees” within the meaning of § 2 (12) of the Act, 29 U. S. C. § 152 (12). The Board found that they were not professional employees within the meaning of the Act. However, it found that nine employees in three of those categories should nevertheless be included in the unit because they “share a close community of employment interests with [the professional employees, and their inclusion would not] destroy the predominantly professional character of such a unit.” The Board, after denying the Association’s request to take a vote among the professional employees to determine whether a majority of them favored “inclusion in such unit,” included the 233 professional employees and the nine nonprofessional employees in the unit and directed an election to determine whether they desired to be represented by the Association, by the other labor organization, or by neither. The Association moved the Board to stay the election and to amend its decision by excluding the nonprofessional employees from the unit. The Board denied that motion and went ahead with the election at which the Association received a majority of the valid votes cast and was thereafter certified by the Board as the collective bargaining agent for the unit.
Thereafter respondent, individually, and as president of the Association, brought this suit in the District Court against the members of the Board, alleging the foregoing facts and asserting that the Board had exceeded its statutory power in including the professional employees, without their consent, in a unit with nonprofessional employees in violation of § 9 (b)(1) which commands that the Board “shall not” do so, and praying, among other things, that the Board’s action be set aside. The defendants, members of the Board, moved to dismiss for want of jurisdiction and, in the alternative, for a summary judgment. The plaintiff also moved for summary judgment. The trial court found that the Board had disobeyed the express command of § 9 (b)(1) in including nonprofessional employees and professional employees in the same unit without the latter’s consent, and in doing so had acted in excess of its powers to the injury of the professional employees, and that the court had jurisdiction to grant the relief prayed. It accordingly denied the Board’s motion and granted the plaintiff’s motion and entered judgment setting aside the Board’s determination of the bargaining unit and also the election and the Board’s certification.
On the Board’s appeal it did not contest the trial court’s conclusion that the Board, in commingling professional with nonprofessional employees in the unit, had acted in excess of its powers and had thereby worked injury to the statutory rights of the professional employees. Instead, it contended only that the District Court lacked jurisdiction to entertain the suit. The Court of Appeals held that the District Court did have jurisdiction and affirmed its judgment. 101 App. D. C. 398, 249 F. 2d 490. Because of the importance of the question and the fact that it has been left open in our previous decisions, we granted certiorari, 355 U. S. 922.
Petitioners, members of the Board, concede here that the District Court had jurisdiction of the suit under § 24 (8) of the Judicial Code, 28 U. S. C. § 1337, unless the review provisions of the National Labor Relations Act destroyed it. In American Federation of Labor v. Labor Board, 308 U. S. 401, this Court held that a Board order in certification proceedings under § 9 is not “a final order” and therefore is not subject to judicial review except as it may be drawn in question by a petition for enforcement or review of an order, made under § 10 (c) of the Act, restraining an unfair labor practice. But the Court was at pains to point out in that case that “[t] he question [there presented was] distinct from . . . whether petitioners are precluded by the provisions of the Wagner Act from maintaining an independent suit in a district court to set aside the Board’s action because contrary to the statute . . . .” Id., at 404. The Board argued there, as it does here, that the provisions of the Act, particularly § 9 (d), have foreclosed review of its action by an original suit in a District Court. This Court said: “But that question is not presented for decision by the record before us. Its answer involves a determination whether the Wagner Act, in so far as it has given legally enforceable rights, has deprived the district courts of some portion of their original jurisdiction conferred by § 24 of the Judicial Code. 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. This question can be properly and adequately considered only when it is brought to us for review upon a suitable record.” Id., at 412. (Emphasis added.)
The record in this case squarely presents the question found not to have been presented by the record in American Federation of Labor v. Labor Board, supra. This case, in its posture before us, involves “unlawful action of the Board [which] has inflicted an injury on the [respondent].” Does the law, “apart from the review provisions of the . . . Act,” afford a remedy? We think the answer surely must be yes. 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. It says that, in determining the unit appropriate for the purposes of collective bargaining, “the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.” (Emphasis added.) Yet the Board included in the unit employees whom it found were not professional employees, after refusing to determine whether a majority of the professional employees would “vote for inclusion in such unit.” Plainly, this was an attempted exercise of power that had been specifically withheld. It deprived the professional employees of a “right” assured to them by Congress. Surely, in these circumstances, a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right so given.
In Texas & New Orleans R. Co. v. Railway Clerks, 281 U. S. 548, it was contended that, because no remedy had been expressly given for redress of the congressionally created right in suit, the Act conferred “merely an abstract right which was not intended to be enforced by legal proceedings.” Id., at 558. This Court rejected that contention. It said: “While an affirmative declaration of duty contained in a legislative enactment may be of imperfect obligation because not enforceable in terms, a definite statutory prohibition of conduct which would thwart the declared purpose of the legislation cannot be disregarded. ... If Congress intended that the prohibition, as thus construed, should be enforced, the courts would encounter no difficulty in fulfilling its purpose .... The definite prohibition which Congress inserted in the Act can not therefore be overridden in the view that Congress intended it to be ignored. As the prohibition was appropriate to the aim of Congress, and is capable of enforcement, the conclusion must be that enforcement was contemplated.” Id., at 568, 569. And compare Virginian R. Co. v. System Federation, 300 U. S. 515.
In Switchmen’s Union v. National Mediation Board, 320 U. S. 297, this Court held that the District Court did not have jurisdiction of an original suit to review an order of the National Mediation Board determining that all yardmen of the rail lines operated by the New York Central system constituted an appropriate bargaining unit, because the Railway Labor Board had acted within its delegated powers. But in the course of that opinion the Court announced principles that are controlling here. “If the absence of jurisdiction of the federal courts meant a sacrifice or obliteration of a right which Congress had created, the inference would be strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control. That was the purport of the decisions of this Court in Texas & New Orleans R. Co. v. Brotherhood of Clerks, 281 U. S. 548, and Virginian R. Co. v. System Federation, 300 U. S. 515. In those cases it was apparent that but for the general jurisdiction of the federal courts there would be no remedy to enforce the statutory commands which Congress had written into the Railway Labor Act. The result would have been that the Tight’ of collective bargaining was unsupported by any legal sanction. That would have robbed the Act of its vitality and thwarted its purpose.” Id., at 300.
Here, differently from the Switchmen’s case, “absence of jurisdiction of the federal courts” would mean “a sacrifice or obliteration of a right which Congress” has given professional employees, for there is no other means, within their control (American Federation of Labor v. Labor Board, supra), to protect and enforce that right. And “the inference [is] strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control.” 320 U. S., at 300. 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. Cf. Harmon v. Brucker, 355 U. S. 579; Stark v. Wickard, 321 U. S. 288; School of Magnetic Healing v. McAnnulty, 187 U. S. 94.
Where, as here, Congress has given a “right” to the professional employees it must be held that it intended that right to be enforced, and “the courts . . . encounter no difficulty in fulfilling its purpose.” Texas & New Orleans R. Co. v. Railway Clerks, supra, at 568.
The Court of Appeals was right in holding, in the circumstances of this case, that the District Court had jurisdiction of this suit, and its judgment is
Affirmed.
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