The opinion of the court was delivered by: MATTHEWS
This cause came on to be heard on October 24, 1956, on defendants' motion to dismiss the complaint or, in the alternative, for summary judgment in their favor, and on plaintiff's cross-motion for summary judgment in his favor. The Court, having heard argument, considered the memoranda submitted by the parties and amici,
and being fully advised in the premises, makes the following findings of fact and conclusions of law:
The pleadings and exhibits annexed thereto show, and the parties agree, that no genuine issue as to any material fact exists. Based thereon, the Court finds as follows:
1. Buffalo Section, Westinghouse Engineers Association, Engineers and Scientists of America, herein called the Union, is a voluntary unincorporated labor organization, maintaining its principal office for the transaction of its regular business at P.O. Box. No. 2528, Cheektowaga, New York. Plaintiff, William Kyne, is its president.
2. Membership in the Union is open to all non-supervisory professional engineers and scientists employed at the Cheektowaga, New York, plant of Westinghouse Electric Corporation. The Union exists for the purpose of enhancing the economic and professional status of engineers and scientists who are professional employees as defined in Section 2(12) of the Labor Management Relations Act, 1947 (herein called the Act), through collective bargaining with Westinghouse Electric Corporation. Section 2(12) of the Act provides that:
(12) The term 'professional employees' 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 a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance 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 professional person to qualify himself to become a professional employee as defined in paragraph (a).'
3. Westinghouse Electric Corporation is engaged in an industry or activity affecting commerce within the meaning of Sections 2(6) and 2(7) of the Act.
4. On or about October 14, 1955, plaintiff filed a petition for certification of representatives with the Regional Director of the National Labor Relations Board for the Third Region, alleging that a substantial number of employees, occupying the job descriptions of Engineer Assistant, Engineer Associate, Engineer, Engineer Senior, and Engineer Fellow, at the Cheektowaga, New York, plant of Westinghouse Electric Corporation, wish to be represented for purposes of collective bargaining by the Union, and the Union desires to be certified as the representative of these employees pursuant to Sections 9(a) and (c) of the Act. The petition was given Case No. 3-RC-1634 by the Regional Director of the National Labor Relations Board for the Third Region.
5. Upon the petition filed by plaintiff, a hearing was conducted on March 7 and 8, 1956, in Buffalo, New York, by an officer duly designated by the Regional Director, pursuant to Section 9(c) of the Act. At the hearing, by amendment to the petition, the Union sought to represent all professional employees within the meaning of Section 2(12) of the Act at the Cheektowaga, New York, plant of the Westinghouse Electric Corporation. These included, in addition to the five categories originally named in the petition (listed in paragraph 4 above), the further five categories of Manufacturing Engineer, Manufacturing Engineer Senior, Plant Layout Engineer, Methods Engineer, and Purchasing Engineer.
6. At the hearing, Buffalo Salaried Employees Association, Incorporated, a labor organization, was permitted to intervene in the proceedings. The Intervenor alleged that, in addition to the ten categories sought by plaintiff in the amended petition (listed in paragraphs 4 and 5 above), the further categories of Engineer Order Service, Engineer Test Record, Engineer Contact, Order Correspondent Master, and Safety Inspector were also comprised of professional employees within the meaning of Section 2(12) of the Act and should be included within the bargaining unit together with all the professional employees covered by the amended petition.
7. On May 28, 1956, the National Labor Relations Board, whose Chairman and Members comprise the defendants herein, issued its Decision and Direction of Election in the representation proceeding, reported at 115 NLRB No. 228. The Board found that the ten categories sought to be included in the bargaining unit by plaintiff comprise professional employees within the meaning of Section 2(12) of the Act. It further found that the additional categories sought by the Intervenor -- Engineer Order Service, Engineer Test Record, Engineer Contact, Order Correspondent Master, and Safety Inspector -- do not comprise professional employees within the meaning of Section 2(12) of the Act. The Board further concluded that the non-professional employees occupying the 3 job classifications of Engineer Order Service, Engineer Test Record, and Engineer Contact, shared a 'close community of employment interests' with the professional engineers, in that these employees 'have had considerable education and experience in the engineering field, are occasionally transferred to the professional engineering categories, work in the same general area and under common supervision with the admittedly professional engineering employees, spend much of their time collaborating and consulting with these professional employees,' and were 'included with the admittedly professional engineers in the voting group in the 1946 election' conducted by the Board. Under these circumstances, and, as 'the addition of the 9 employees in these categories to the unit of 233 employees stipulated to be professional would (not) destroy the predominantly professional character' of the unit proposed for the professional employees, the Board included the 3 non-professional job classifications in the professional unit. Accordingly, the Board determined the appropriate unit to be, as follows:
All professional employees, including the categories of engineer assistant, engineer associate, engineer, engineer senior, engineer fellow, manufacturing engineer, manufacturing engineer senior, plant layout engineer, methods engineer (formerly time and motion analyst), purchasing engineer, engineer order service, engineer test record, and engineer contact, but excluding the categories of machine designer, order ...