Wayne County Neighborhood Legal Services

National Labor Relations Board - Board Decisions

May 27, 1977

229 N.L.R.B. 1023 (N.L.R.B. 1977)

WAYNE CO. NEIGHBORHOOD LEGAL SERVICES
Wayne County Neighborhood Legal Services, Inc. and
Organized Workers of Legal Services, Petitioner.
Case 7-RC-13559
May 27, 1977
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Chester H.
Byerly, Jr. Subsequently, pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations, as amended, the Regional Director for
Region 7 transferred this case to the Board for
decision. Thereafter, only the Petitioner filed a brief.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a nonprofit Michigan corpo-
ration providing legal services to indigent clients in
Wayne County, Michigan. It is funded by the Legal
Services Corporation, a nonprofit District of Colum-
bia corporation which disburses congressionally
appropriated funds to local organizations (recipients)
offering legal assistance to the indigent. The Legal
Services Corporation was established by an Act of
Congress (Legal Services Corporation Act)' which
provides that (a) the corporation is not an agency,
department, or instrumentality of the Federal Gov-
ernment; and (b) its officers and employees are not
employees of the Federal Government.2
Legal Services Corporation's recipient programs
must comply with certain restrictions contained in
the Legal Services Corporation Act3 and regulations
issued by the Legal Services Corporation. 4 Other-
wise, the recipients have wide latitude in organizing
and conducting their operations. Recipients must
submit a yearly budget for review and approval by
the regional and national offices of the Corporation.
With regard to daily operations and office proce-
dures, including labor relations, however, recipients
are autonomous. Specifically, recipients determine
such matters as overtime, vacation, sick leave,
timesheets, insurance benefits, work hours, hiring of
' 42 U.S.C. §2996, et seq. (1976).
2 Ibid. at §2996d(e)(1).
:' For example. recipients may not accept criminal, school desegregation,
or Selective Service cases. 42 U.S.C. 12996f(bX I), (7), and (9). Recipient
corporations and their employees are prohibited from engaging in, or
encouraging others to engage in, boycotts or public demonstrations while
carrying out legal assistance under the Act. 42 U.S.C. §2996e(bX5)(A).
For example, purchase of extraordinary supplies or materials in excess
of $500 must receive regional office approval: recipients must obtain
regional oflfice approval in order to pay a salary in excess of $20,000 per
year.
229 NLRB No. 171
staff (including attorneys), and starting salaries.
These administrative functions are restricted only to
the extent that they must comply with standard
business practices. The Employer's director, James
Jackson, testified that the Employer's office manual,
which establishes working conditions, benefits, and
office policies and procedures, was prepared by the
local administrator and was approved by the Em-
ployer's board of directors. During Jackson's tenure
as director, changes in the manual have not been
submitted to the regional or national offices for
approval, but have, instead, been reviewed and
approved by the Employer's board of directors.
Jackson further testified that "[t]he thrust of all of
the regulations and indeed my understanding of the
basic philosophy of the members of the National
Board is that we are a law firm and should conduct
ourselves as such." The record as a whole supports
such an understanding. Employer's attorneys are
responsible for pursuing clients' legal interests with
the same discretion and professional judgment as
their colleagues in private practice. The only appar-
ent differences between the Employer and a private
law firm are that all attorneys receive an annual
salary as opposed to sharing in the firms' profits,5
and the Employer, rather than being paid for services
rendered, is annually funded independently of the
clients represented.
Thus, the Employer exercises nearly exclusive
control over the labor relations and terms and
conditions of employment of its employees.6 There-
fore, based on the foregoing and on the record as a
whole, we find that the Employer's operations are
analogous to a private law firm. Thus, in view of the
relatively insignificant difference between the Em-
ployer and a private firm, we shall treat the
Employer as a law firm. Accordingly, for the reasons
set forth in our recent decision in Foley, Hoag and
Eliot,7 we find that the Employer's operations have a
substantial impact on interstate commerce and we
shall assert jurisdiction if our monetary jurisdictional
standards are satisfied.
During the fiscal year 1975-76, the Employer
received $1,300,000 from the Legal Services Corpora-
tion. During this period, the Employer purchased
approximately $4,500 in law books from Texas. In
addition, between September 1, 1975, and March 31,
We note that this difference in the means of pay is not unlike payment
of associates and other nonpartners in a law firm.
' The few limitations on the Employer's control of labor concerns have
been indicated supra and include the need for regional and national
approval to pay annual salaries in excess of $20,000 and the necessity of
complying with standard business procedures.
7 229 NLRB 456 (1977). Members Murphy and Walther agree and so
find inasmuch as these attorneys have not been shown to engage in the
practice of labor law or otherwise to participate in the formulation and
effectuation of labor relations policies of their clients, and it is assumed from
the nature of the Employer's operation that they do not do so
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1976, the Employer purchased goods and services in
excess of $52,000 from such national concerns as
I.B.M., Xerox, A.B. Dick, Beecher Peck & Lewis,
Burroughs Corporation, and Macauley. Thus, since
the Employer's operations would clearly satisfy
whatever jurisdictional standards we might subse-
quently adopt as appropriate for law firms, we find
that it would effectuate the policies of the Act to
assert jurisdiction herein.
2. The Organized Workers of Legal Services
(OWLS) was formed on February 3, 1976, for the
purpose of bargaining collectively with regard to
wages, hours, and terms and conditions of employ-
ment affecting employees of the Wayne County
Legal Services Corporation. As such, we find that the
Organized Workers of Legal Services is a labor
organization within the meaning of Section 2(5) of
the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(l) and Section
2(6) and (7) of the Act.
4. The Petitioner seeks to represent employees in
the following unit:
All staff attorneys, including Attorney I's; exclud-
ing supervisory attorneys, paralegals, secretaries,
law students, and investigators.
The Employer stipulated that, with the exception of
the Attorney I classification, the petitioned-for unit is
appropriate in the event that the Board asserts
jurisdiction in this case. The Employer would
exclude the Attorney I classification as lacking a
community of interest with unit members.
The record establishes that employees in the
Attorney I classification are recent law school
graduates who have not yet been admitted to the bar.
They are required to pass the bar examination and
are terminated if they fail to do so on their second
attempt. Like Employer's other employees, Attorney
I's serve an initial 3-month probationary period
during which their performance, attendance, and
ability to work with the other members of the staff
are evaluated. Further, as with Employer's other
legal employees, the Attorney I's tenure with the
Employer is based upon satisfactory job perform-
ance.
8 In Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049 (1971), the
Board did not consider the license status of architectural employees relevant
in determining their unit placement. Instead, the Board, focusing on the
identical nature of the work performed and the identical benefits received,
found that both the licensed and nonlicensed architects (regardless of their
status as associates of the firm) were appropriately included in the same
unit,
Under the Michigan General Court Rules, Attor-
ney I's are permitted to represent indigent clients in
all courts except the appellate court. In the absence
of a requirement in a specific court or by a particular
judge, a licensed attorney is not required to be
present when an Attorney I appears in court. While
pleadings must be signed by a licensed attorney,
Attorney I's prepare these legal documents in the
course of their work. In addition, Attorney I's may
consult with and advise indigent clients without the
presence of a licensed attorney. Employees in this
classification are hired to, and in fact do, perform the
same work as licensed attorneys, viz, interview and
counsel clients, negotiate on their behalf, represent
them in court, prepare pleadings, and perform legal
research. Furthermore, the record shows that full-
time Attorney I's have the same work hours, receive
the same insurance benefits, holidays and sick days,
and work in close proximity with and in the same
offices as the Employer's other legal employees.
While Executive Director Jackson testified that
Attorney I's receive greater supervision, he indicated
that this resulted from their lesser experience rather
than because of the nature of the duties performed or
because they have not yet been admitted to the bar.
On the basis of the foregoing, we find that the
Attorney l's share a close and substantial community
of interest with the other attorneys included within
the unit. In view of their almost identical job
responsibilities and terms and conditions of employ-
ment, we find that the absence of admission to the
bar does not sufficiently distinguish the interests of
Attorney I's to require their exclusion from the unit.8
Accordingly, we find that the employees in the
Attorney I classification are appropriately included
within the unit.
Based on the foregoing, we find that the following
employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(c) of the Act:
All staff attorneys, including Attorney I's; exclud-
ing supervisory attorneys, paralegals, secretaries,
law students, and investigators.
[Direction of Election and Excelsior footnote
omitted from publication.]
Likewise, in Fisher-Friedman Associates, 192 NLRB 925 (1971), and
Herzka d Knowles. 192 NLRB 923 (1971), the Board included all
architectural employees in a professional unit regardless of their license
status on the basis that they were all engaged in the performance of the same
architectural work.
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