Legal Action of Wisconsin, Inc.

National Labor Relations Board - Board DecisionsMay 27, 1982

261 N.L.R.B. 1095 (N.L.R.B. 1982)

LEGAL ACTION OF WISCONSIN Legal Action of Wisconsin, Inc. and United Legal Workers, Petitioner. Case 30-RC-3911 May 27, 1982 DECISION ON REVIEW BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On June 19, 1981, the Regional Director for Region 30 issued a Decision and Direction of Elec- tion in the above-captioned proceeding in which he found appropriate an employerwide unit of attor- neys, paraprofessionals, and office clerical employ- ees at the Employer's six offices located in south- eastern Wisconsin,' rather than the requested single-location unit at the Employer's Dane County office in Madison, Wisconsin. He therefore directed an election in the broader unit, conditioned upon the Petitioner's submission of an adequate showing of interest therein. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the ground, inter alia, that in finding the requested unit inappro- priate the Regional Director departed from estab- lished Board precedent. By telegraphic order dated July 22, 1981, the National Labor Relations Board granted the Peti- tioner's request for review. Thereafter, both the Petitioner and the Employer filed briefs on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case with respect to the issues under review and makes the following findings: The Employer is a nonprofit Wisconsin corpora- tion engaged in providing free civil legal services to low-income persons through two offices located in Milwaukee and one each in Waukesha, Madison, Kenosha, and Janesville, Wisconsin. The Petitioner seeks to represent a unit of approximately 17 attor- neys, paraprofessionals, and office clericals at the Employer's Dane County office located in Madi- son. The Employer contends that, because it is ad- ministratively centralized and because the staff at- ' The Regional Director, however, excluded from the unit the para- professionals and clerical employees at the Employer's two Milwaukee offices as they have been represented since 1976 by District Council 48, American Federation of State, County and Municipal Employees, AFL- CIO, and are presently covered by a collective-bargaining agreement ef- fective March 31, 1980, until March 31, 1983. At the time AFSCME sought representation rights, the Employer's operation was known as Milwaukee Legal Services, Inc., and consisted of only two Milwaukee offices. Although AFSCME appeared at the hearing, it declined to inter- vene and took no position on the issues involved. 261 NLRB No. 157 torneys in the Dane County office interact with at- torneys from all other locations as part of a prior- ity committee system, only a programwide unit consisting of approximately 44 individuals at all 6 offices is appropriate. The Employer also contends that, if the Dane County office is an appropriate unit, the three attorneys assigned to that office but who work on statewide projects should not be in- cluded in the unit. Since 1977, the Employer has provided direct legal services in civil matters to low-income resi- dents in an 11-county area in southeastern Wiscon- sin. The Employer also operates two statewide programs-a migrant workers' project and a legis- lative and administrative reform project. The oper- ation is funded primarily by the Legal Services Corporation, a nonprofit corporation created by Congress in 1974, and is governed by a 40-member board of directors composed of attorneys, the Em- ployer's clients, and representatives of the low- income community. The board is responsible for overall management of the program and has ulti- mate authority, with some input from individual of- fices, over the basic field budget from which funds for each office are allocated, using a formula based on the number of poverty-level residents in the ge- ographic area served by the particular office. Funds for the statewide projects are separate and come directly from the Legal Services Corpora- tion. The board of directors has mandated that each local office must provide services in the areas of housing, welfare, and emergency family law, as well as in nine "priority" areas-consumer and util- ity, employment, family, juvenile, mental health, housing, welfare, migrant and immigration, and education and school-based on the needs of the area residents. A staff manual, which codifies the regulations and guidelines of the Legal Services Corporation, includes categories such as "Person- nel Practices" and "Attorney Performances" and is updated by the board twice a year for distribution to all employees. Overall responsibility for the Em- ployer's management functions and personnel ad- ministration, including hiring and firing, is vested in the Employer's executive director, who is direct- ly responsible to the board of directors and to the central administrative staff, the latter of which is located in the Milwaukee southside office. Each of the Employer's offices has a managing attorney and a support staff of attorneys, parale- gals, and clericals. Each office also has a program committee consisting of local attorneys, clients, and representatives of local groups which determines in which of the nine predetermined priority areas services will be provided. The Employer has also 1095 DECISIONS OF NATIONAL LABOR RELATIONS BOARD established five priority committees consisting of staff attorneys from various offices who review and make 'recommendations to the executive director with respect to priority area concerns, particularly group representation, test case litigation, etc. Each staff attorney must serve on at least one, but no more than two, of these committees. Priority com- mittees meet once a month or less; some commit- tees meet on a regular basis. Each priority commit- tee is coordinated by an attorney who has had sub- stantial experience in the particular priority area addressed by his/her committee. Coordinators are directly responsible to the executive director for priority committee work. They work directly with the managing attorney of the office where the committee member-staff attorney is assigned. Ini- tially the priority system was established to train new attorneys; but, now that the attorneys are es- sentially trained, less intensive contact is required. The coordinator for consumer and public utilities, who is located at the southside Milwaukee office, testified that his contacts with the Dane County office have been mostly by phone and that in the past year and a half he has supervised only one case out of the Dane County office. The managing attorney of the Dane County office evaluates employees, makes recommenda- tions to the executive director, resolves first-step grievances, and is the immediate supervisor of the employees located there. The Dane County pro- gram committee, in addition to determining in which priority areas the Dane County office shall provide services, meets regularly with the manag- ing attorney, has the authority to review the budget, and would consult with the executive di- rector were a new managing attorney to be hired. The program committee, in conjunction with the local staff, also handles the hiring of paralegals. The Dane County office is located 90 miles from the central office headquarters in Milwaukee and is approximately 40 miles from the nearest other office in Janesville, Wisconsin. According to the Employer's executive director, there have been no permanent or temporary transfers involving unit employees. However, the Dane County welfare and housing attorneys have, on occasion, worked with Milwaukee welfare and housing attorneys when the Dane County attorneys were more expe- rienced and could provide assistance. In addition, the Dane County paralegal who provides represen- tation in immigration cases has worked with the di- rector of the migrant workers' project, located in Milwaukee, as the director has special expertise in the area of immigration law. Based on the foregoing, the Regional Director found that, despite the fact that the Dane County office exhibits a good deal of local autonomy in its daily operations, the presumptive appropriateness of a single-location unit had been rebutted by virtue of the high degree of administrative central- ization of the Employer's operation and the unify- ing nature of the priority committee system. We disagree. Although the Employer's priority com- mittee system involves attorneys from all of the Employer's offices, it is loosely structured. There is little, if any, direct supervision between coordina- tor and staff attorney. Instead, coordinators work directly with the managing attorney, and staff at- torneys look to their managing attorney for super- vision. Therefore, based on the substantial geo- graphic distance between the six offices, the auton- omy in day-to-day matters exercised by the Dane County office, the absence of interchange or trans- fer of employees between offices, the minimal con- tact between Dane County employees and employ- ees of other offices, and the fact that the local pro- gram committee establishes priority work for the Dane County office, the presumptive appropriate- ness of the single-location unit has not been rebut- ted. Accordingly, we find that a unit limited to the petitioned-for employees constitutes an appropriate unit for collective-bargaining purposes.2 Having found that the Dane County office con- stitutes an appropriate unit, we now turn to the unit placement issue. There are three attorneys who work out of the Dane County office but, unlike other unit attorneys, are attached to the statewide programs operated by the Employer. The Petitioner contends that these attorneys ihare a sufficient community of interest with other Dane County office employees to warrant their inclusion in the unit. The Employer disagrees and would ex- clude these individuals. 3 Two attorneys are assigned to the legislativ: and administrative reform project (hereinafter LARP). They work out of the Dane County office because it is located in the state capital, Madison, where the state legislature sits. They share offices and staff with the other Dane County attorneys and ,ork with the managing attorney there with respect to procedural matters and administrative needs. Al- though the Employer's executive director tes:ified that these attorneys are directly responsible to her with regard to substantive matters, she further stated she could not recall the last time she had met with the LARP attorneys for the purpos;e of 2 See, generally, Legal Services for the Elderly Poor, 236 NLF B 485 (1978). Ohio State Legal Services Association, 239 NLRB 594 (1978) relied on by the Regional Director, is inapposite as the union there sought an employerwide unit. 3 Inasmuch as the Regional Director concluded that only an employer- wide unit was appropriate, he did not reach this issue. 1096 LEGAL ACTION OF WISCONSIN supervision. One LARP attorney stated that the ex- ecutive director had never met with him for super- vision purposes and that he confers with the other, more experienced LARP attorney on substantive questions. These attorneys have frequent contact with unit employees and perform regular office intake during vacations or other periods when the office is short-staffed. One of the LARP attorneys attends staff meetings on a regular basis and both are subject to the same terms and conditions of em- ployment as other unit attorneys. The third attorney is attached to the migrant workers project (hereinafter MWP) but works out of the Dane County office. Like the LARP attor- neys, she shares office space and staff with unit em- ployees. However, she is supervised by the MWP director, who is located at the Employer's head- quarters in Milwaukee, and speaks with him by phone on a average of two to three times per week. During the past year, she has visited the Mil- waukee office approximately 10 times. The Dane County managing attorney has, on occasion, re- viewed her drafts but makes no recommendations with respect to her employment. The MWP attor- ney testified that she discusses her cases with other attorneys in the Dane County office since many of their cases involve the same substantive areas. She also attends office staff meetings and is subject to the same terms and conditions of employment as other unit attorneys. Both the MWP director and the program attor- ney were assigned to the Milwaukee headquarters office when the program was first instituted by the Employer; however, since 1978, upon the request of a newly hired MWP attorney who, for personal reasons, preferred to work out of Madison, the MWP attorney position has been attached to the Dane County office. Although the current MWP attorney, who has been employed by the Employer for approximately I year, was given the choice of working in the Milwaukee headquarters or in the Dane County office, and chose-also for personal reasons-to work in the latter, the Employer's ex- ecutive director testified that there are practical reasons for placing the MWP attorney in the Dane County office. From 1978 until 1980, the MWP at- torney was supervised not only by the MWP direc- tor but also by the Employer's associate executive director, who was at that time located in the Dane County office and who supervised the other Dane County office attorneys as well. Based on the foregoing, particularly the fact that these attorneys have frequent and substantial con- tact with unit employees and are subject to the same terms and conditions of employment as other Dane County office attorneys; that the LARP at- torneys receive little, if any, direct supervision from the individual who is purportedly their super- visor; and that both the LARP attorneys and MWP attorneys receive some direction from the Dane County managing attorney, we find that the LARP and MWP attorneys share a sufficient com- munity of interest with unit attorneys to justify their inclusion in the unit found appropriate. We shall, therefore, include them in the Dane County unit. Accordingly, we find, contrary to the Regional Director, that the following employees constitute appropriate voting groups for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: Voting Group A: All regular full-time and regular part-time em- ployees including paraprofessionals and office clerical employees employed by the Employer at its Dane County office located in Madison, Wisconsin; excluding all managerial employ- ees, attorneys, guards and supervisors as de- fined in the Act. Voting Group B.' All regular full-time and regular part-time at- torneys employed by the Employer at its Dane County office located in Madison, Wisconsin; excluding office clerical and paraprofessional employees, all managerial employees, guards and supervisors as defined in the Act. We shall remand this case to the Regional Direc- tor for Region 30 for the purpose of conducting an election4 pursuant to his Decision and Direction of Election in the appropriate voting groups, as de- scribed above, except that the period fordetermin- ing eligibility shall be the payroll period ending im- mediately preceding the date of this Decision on Review. 5 * The Regional Director, for reasons not relevant to the instant pro- ceeding, chose not to conduct the election pending the Board's resolution of the issues raised by the Petitioner 5 In order to assure that all eligible voters may have the opportunity to he informed of the issues in the exercise of their statutory nght to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Un- derwear Inc., 156 NLRB 1236 (1966) N.VL.R.B. v. Wyman-Gordon Co.. 394 U.S 759 (1969). Accordingly, it is hereby directed that election eligi- bility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 30 within 7 days of the date of this Decision on Review. The Regional Di- rector shall make the list available to all parties to the election No exten- sion of time to file this list shall he granted by the Regional Director except in extraordinary circumstances Failure to comply with this re- quirement shall be grounds for setting aside the election whenever proper objections are filed 1097