Bodle, Fogel, Julber, Reinhardt & Rothschild

National Labor Relations Board - Board Decisions

Oct 23, 1973

206 N.L.R.B. 512 (N.L.R.B. 1973)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bodle, Fogel, Julber, Reinhardt & Rothschild and
Teamsters Automotive Workers Local 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Petitioner. Case
31-RC-2180
October 23, 1973
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Max Steinfeld. Fol-
lowing the hearing and pursuant to Section 102.67 of
the National Labor Relations Board Rules and Regu-
lations and Statements of Procedure, Series 8, as
amended, this case was transferred to the Board for
decision. Thereafter, briefs were filed by the Employ-
er and the Petitioner.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing' and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
The Petitioner seeks to represent certain employees
of the Employer. The Employer contends that its op-
erations are essentially local in nature and that any
impact its operations might have on interstate com-
merce is remote and therefore insufficient to warrant
the assertion of the Board's jurisdiction. We agree
with the Employer's contention.'
The evidence, consisting largely of stipulations and
unchallenged -testimony, reveals the following: The
Employer is a partnership law firm composed of five
attorney partners and seven attorney associates en-
gaged in the practice of law within the State of Cali-
fornia. With its principal office in Los Angeles,
California, and a small subsidiary office in Wilming-
ton, California, the Employer is engaged primarily in
the practice of labor law representing, among its
clients, various AFL-CIO affiliated local and Inter-
national unions.
The facts as to the volume of the Employer's busi-
ness are limited to a stipulation that it annually re-
ceives gross revenues in excess of $500,000 of which
more than $50,000 is for legal services furnished to
various clients each of whom would meet the Board's
jurisdictional standards, and that it represents a de-
' Office and Professional Employees International Union, Local 30, AFL-
CIO, was permitted to intervene on the basis of its showing of interest.
2 In view of this conclusion , we need not consider the Employer 's alterna-
tive grounds for dismissing the petition , namely, that the Petitioner has a
direct conflict of interest with the Employer's AFL-CIO affiliated clients,
and that the employees sought by the petition are confidential employees
because they are privy to the Employer's privileged attorney-client communi-
cations.
fense contractor doing business in Vietnam from
which the Employer admittedly receives in excess of
$50,000 annually. The work for this client, however,
appears to represent only an insignificant portion of
the Employer's total law practice which, for the most
part, is carried on in the State of California.
We are here urged to assert jurisdiction over the law
firm which is the Employer in this case. It has been
stipulated that the gross income of this firm is in ex-
cess of $500,000 and that it receives fees from out of
State annually in excess of $50,000. It is also apparent
that the firm's clients include a numer of business
entities which are engaged in interstate commerce.
During the over three and one-half decades of this
Board's existence we have never seen fit to exercise
jurisdiction over law firms. There can be little ques-
tion that we have the legal authority so to do where,
as here, the commerce data would clearly,be enough
to satisfy the customarily liberally construed "affect-
ing commerce" test. However, as the Supreme Court
said in N.L.R.B. v. Denver Building & Construction
Trades Council [Gould & Preisner]. 341 U.S. 675, 684
(1951):
Even when the effect of activities on interstate
commerce is sufficient to enable the Board to
take jurisdiction of a complaint, the Board some-
times properly declines to do so, stating that the
policies of the Act would not be effectuated by
its assertion of jurisdiction in that case.
In the most recent decision of this Board dealing
with the possible exercise of our jurisdiction over law
firms, Evans & Kunz, Ltd., 194 NLRB 1216, we decline
to exercise jurisdiction over a relatively small law firm
whose practice was confined largely to the practice of
law totally within the State of Arizona. We said in that
case, however: "Our decision herein is limited solely
to the facts of the instant case and not to law firms as
a class."
In the instant case we have a somewhat larger law
firm with a stipulation indicating that the firm here
has a larger volume of law business than did the Evans
& Kunz firm. It is also possible that had we had a full
hearing rather than a stipulation, in this case, we
might have found that both the total income of the
firm and the amount of fees received from interstate
concerns might be substantially in excess of the mini-
mum figures agreed upon in the stipulation. We deem
it appropriate, therefore, at this time to consider
whether we ought to decline jurisdiction over law
firms generally or whether we ought to attempt to
establish jurisdictional standards and to assert juris-
diction over at least certain classes of law firms.
In exercising our discretion as to whether or not we
ought to assert jurisdiction over any given class of
employers, both we and the courts have said that we
206 NLRB No. 60
BODLE , FOGEL, ET AL.
are not to ,look simply at the magnitude of the busi-
ness nor its comparative amount of interstate sales but
to "whether the stoppage of business by reason of
labor strife would tend, substantially to affect com-
merce," Service Stores Corporation, 62 NLRB 1161,
1162, 1163; J. L. Brandeis & Sons v. N. L. R. B., 142
F.2d 977 (C.A. 8), enfg. 53 NLRB 352, cert. denied
323 U.S. 751. In considering such potential effects on
commerce, we must, of course, be concerned not only
with the particular situation immediately before us,
but instead must bear in mind that such situation is
representative of many others throughout the coun-
try, and thus consider the total potential for disrup-
tion of the flow of commerce with respect to the class
of which the immediate employer is representative.
Polish Alliance v. N.L.R.B., 322 U.S. 643, 648.
The probability that a stoppage of business result-
ing from labor strife in this or any other law firm
would substantially affect commerce is not, we have
concluded, sufficiently great to warrant our asserting
jurisdiction over law firms. It is our further view that
there are substantial countervailing practical consid-
erations which also contribute to our decision that the
policies of the Act would not best be effectuated by
asserting jurisdiction over law firms.
We are aware that the operations of a modern day
law firm encompass the rendering of many services
well beyond the traditional functions of trying cases
and the preparation of cases for trial. Such trial activi-
ty is, of course, so essentially local in character as to
have but minimal effects upon commerce. Today's
law firms, however, frequently assist large corporate
entities, labor unions, and other institutional entities
in their interstate commerce activity. Thus the guiding
hand of the lawyer can, and in many instances does,
assist in' the negotiation and ultimate formulation of
complex interstate agreements relating to trade and
business.
On the other hand, however, even in this role the
practicing lawyer serves as the adviser, counselor, and
draftsman of documents and is cast not in the role of
principal, but as helper to the party-his client-who
is the moving force in commerce.
Such assistance by lawyers who, by long training
and experience, may have great expertise in the myri-
ad laws and regulations with which their clients today
must cope, has, however, but little direct or immediate
impact on the commerce in which his clients are en-
gaged. Thus a midwestern manufacturer who wishes
to sell his goods on the east or west coast may well
consult his lawyers as to the most suitable legal form
in which to cast his distribution and sales agreements,
but it is the client, not the lawyer, who is engaged in
the making of the articles of commerce, as well as the
administration of the distribution and sale of the
513
goods in commerce.
And a huge conglomerate, actively pursuing a na-
tionwide program of acquisition of business entities
and facilities, doubtless consults its lawyers to be as
sure as possible that, by its action, it will not run afoul
of legal action by governmental and/or private inter-
ests. Yet here too it is the business concern, not the
lawyer, which takes and implements the decisions to
buy and operate the facilities and enter into the trans-
actions which have an impact upon commerce.
A law firm, in short, is not itself engaged in the
production, distribution, or sale of goods in com-
merce. It renders advice and services directly related
to the law rather than to commerce, and is thus distin-
guishable from entities such as engineering firms, ar-
chitectural firms, or advertising firms, whose services
relate directly to commerce-i. e. manufacturing,
construction, and sales activity. Thus, the law firms's
connection with the flow of commerce is incidental,
and its primary services relate- to law, not commerce
or commercial activity.
It therefore seems to us improbable that the actions
of business organizations, labor organizations, and
other entities which are involved in commerce would
be in any substantial degree impeded or interrupted
by reason of potential labor disputes between their
lawyers and the lawyers' employees. The commercial
clients of the firm presently before us or of any other
would not, we think, stop or even markedly decrease
their interstate activity-manufacturing, distribution,
or sales-merely because they might temporarily ex-
perience an interruption in the normal legal service
rendered to them, no matter in how high esteem that
legal assistance might be held.
Whether due to these or other factors, we further
note that we are aware of no history of labor disputes
of law firms which are even alleged to have had any
such impact on business in this nation. Nor have we
had called to our attention any changes in the tradi-
tional legal functions performed by lawyers or any
changes in the socioeconomic area which are likely to
produce any such interruptions in commerce. This
fact, plus the low probability, as we view it, of such
disputes having, in any event, a significant impact
upon the flow of commerce, suggests to us that there
is little reason for us to reach out to assert jurisdiction
over this class which has thusfar been regarded as not
falling within our jurisdiction and which few have
ever urged be brought within it.
On the other side of the ledger are, as we mentioned
earlier, some substantial practical considerations
which we do not believe we can appropriately ignore.
The lawyer-client relationship is a peculiarly delicate
and confidential one, and employees of lawyers must
of necessity come into possession of knowledge and
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information of a peculiarly confidential nature. We
are given pause by the arguments advanced to us in
this case-which arguments are not new to us-that
potential conflicts of interest are likely to develop if
employees of law firms are to be represented by, and
owe a substantial loyalty to, an organization which
may well have interests conflicting with those of
clients whom the lawyers represent. In the instant
situation, for example, the law firm in question repre-
sents certain labor organizations which compete with
and engage in rival or even adverse activity vis-a-vis
the labor organization which now seeks to represent
this law firm's employees. It is, in fact, asserted by the
Employer that there are some such active contests,
legal and otherwise, now in progress. For reasons par-
alleling those which have led us to exclude confiden-
tial employees from bargaining units generally, we
would hesitate to certify that a unit of law firm em-
ployees is appropriate for collective bargaining when
such unit must of necessity include employees with
access to information coming within the peculiarly
confidential relationship between lawyer and client.
We note further that even if we were to conclude,
contrary to our decision herein, that the rendering of
purely legal services with respect to interstate business
dealings is sufficient justification for asserting juris-
diction over some law firms, the problems involved in
attempting to establish any reasonable jurisdictional
yardsticks of general application would be extraordi-
narily difficult both to devise and to administer. Any
gross volume figure, for example, such as we have
utilized in the retail field would be wholly inappropri-
ate as to this potential class of employers. A law firm
representing wholly local interests, but which had a
very large income arising out of its successful trial of,
for example, wholly local personal injury cases, would
presumably be argued to have virtually no impact on
interstate commerce, whereas it might also be argued
that we ought to assert jurisdiction over a firm with
a much lower total income, all of which arose out of
the performance of patent and trademark services for
wholly interstate businesses. Even using as a measure
the amount of income a law firm might receive from
interstate businesses would be highly questionable,
since any impact on commerce alleged to result from
a law firm's activity would presumably arise out of the
nature of the law firm's activity rather than the
amount of its income therefrom. Thus, for example,
a law firm in a given city might receive a substantial
retainer from an interstate company for the sole pur-
pose of securing purely local representation with re-
spect to purely local trials, the outcome of which
would doubtless be asserted to have no impact what-
ever upon the flow of interstate commerce.
Because, therefore, the professionally legal nature
of the work of the profession makes minimal the de-
gree of impact on interstate commerce of potential
labor disputes between law firms and their employees,
and because there are serious policy and administra-
tive problems suggesting the undesirability and un-
feasibility of any attempt on our part to assert
jurisdiction over lawyers and law firms, it is our pres-
ent determination that the policies of the Act would
not be effectuated by our assertion of jurisdiction over
law firms.
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
MEMBERS FANNING and PENELLO , dissenting:
We cannot agree with our colleagues that it is ap-
propriate to refuse to assert jurisdiction over all law
firms as a class. Every reason given by them for that
conclusion has been rejected previously in analogous
situations and in some cases, on facts which seem
more persuasive than those presently before the
Board. Not only is their statement of reasons unper-
suasive, but objective analysis and consideration of
the principles customarily applied in deciding these
questions lead to the conclusion that the only logical
and statutorily acceptable result is to assert jurisdic-
tion over law firms as a class and to establish an
appropriate standard. For, contrary to our colleagues,
it is not true that there is an insubstantial impact on
commerce of the operations of this and all other law
firms or that the so-called "substantial countervailing
practical considerations" are, in fact, incompatible
with the Board's exercise of its statutory authority.
The Board's statutory jurisdiction is not disputed.
The impact of the Employer's operations on interstate
commerce is in question. While the majority opinion
sets forth some of the stipulated facts, including the
Employer's gross annual revenues of over $500,000,
direct and indirect outflow of "more than $50,000,"
and receipt of over $50,000 for legal services to a
defense contractor doing business in Vietnam, it fails
to mention others which are relevant. Thus, the prin-
cipal opinion states that there is a small subsidiary
office in Wilmington, California, but it fails to note
that the purpose is to accommodate the firm's mari-
time clients, an industry which is undisputably "in
commerce." In addition, the Employer's principal
field of practice is said to be labor law and the repre-
sentation of labor unions, but it may be noted that its
clients include numerous local, national, and Interna-
tional labor unions in the transportation, aerospace,
maritime, commercial, and industrial fields, includ-
ing, inter alia, the AFL-CIO Building Trades Council,
Sailors' Union of the Pacific, Seafarers' International
BODLE, FOGEL, ET AL. 515
Union, International Printing Pressmen, The News-
paper Guild, and Airline Pilots Association. In con-
nection with its representation of unions and union
members, the Employer engages in proceedings under
the Jones Act, the Federal Employers Liability Act,
the National Labor Relations Act, the Landrum-Grif-
fin Act, the Equal Employment Opportunity Act of
1972, the equal employment titles of the Civil Rights
Act of 1964, and the Railway Labor Act, and, in
addition to State and Federal courts, has appeared
before such regulatory agencies as the National Labor
Relations Board, Department of Labor, Equal Em-
ployment Opportunities Commission, United States
Coast Guard, Federal Aviation Agency, and System
Boards of Adjustment. Finally, each of the 12 attor-
neys makes an average of three to five business trips
each year to places outside the State of California, one
of them has made several trips to Vietnam, and one
of the partners testified that he had been going to Las
Vegas approximately once a month to meet with a
client "in the past few months."
The mere recital of these facts, including the nature
of the clients served,, the industries involved, and the
amount of travel outside the State of ...alifornia, im-
mediately casts doubt on the conclusion there is only
a minimal impact on commerce. Furthermore, a real-
istic assessment of the -effect on commerce 3 of the
operations of law firms in general 4 compels the con-
clusion that the speculations and conjectures of the
majority opinion herein are invalid and unwarranted.
Without the services of the legal profession, American
business as we know it today could not function. The
legal profession plays a vital role at all stages from the
act of incorporation through the obtaining of licenses
or certificates which might be needed, governmental
approval of rates and/or routes, the issuance and sale
3 Contrary to the assertion of the majority that neither "the magnitude of
the business nor its comparative amount of interstate sales" is compelling,
it is precisely this factor that is the basis of the Board 's discretionary stan-
dards used to determine whether a sufficient impact on commerce has been
shown to warrant the exercise of jurisdiction. See the discussion in Siemons
Mailing Service, 122 NLRB 81, 82-85 Both cases cited in the principal
opinion for this proposition are inapposite , for while they use the language
quoted by the majority, in each of those decisions the Board's assertion of
jurisdiction was held warranted notwithstanding the fact that the retail sales
were primarily local in character . No case has been cited , and we are aware
of none, where the contrary situation, existed but jurisdiction was rejected,
i.e., where there were extensive dealings across state lines and/or with firms
who themselves meet the Board 's discretionary standards, but it was conclud-
ed that there was insufficient impact on interstate commerce.
4 U.S. Census Bureau publications disclose that there were over 324,000
lawyers in the United States in 1967 and that the almost 70,000 law firms with
payrolls employed over 200,000 employees Statistical Abstract of the United
States (1971) Table No. 249 and 250, p. 154. According to United States
Department of Commerce News, USCOMM-DC-10617, law firms reported
receipts in excess of $6.4 billion in 1967. Martindale-Hubbell's listings of
lawyers reflect that a vast number of practicing lawyers have grouped them-
selves into law firms, many of tremendous size. Martindale-Hubbell's listing
of representative clients for large and small firms contitutes a "Who's Who"
of American business.
of stocks and bonds, the negotiations and preparation
of legal contracts necessary for the holding of proper-
ty, and the purchase and sale of materials and prod-
ucts, to name but a few aspects, and all these have
their impact on how, where, and when a business may
operate. To brush all this aside with the observation
that a law firm renders services related to law rather
than to commerce and that such assistance "has, how-
ever, but little direct or immediate impact on the com-
merce in which their clients are engaged" is
unrealistic, indeed. It is more realistic to say that with-
out such services their clients would be unable to
engage in such commerce and that there is a very
direct and very immediate impact which must be rec-
ognized.'
In assessing an employer's operations the Board
looks to relevant principles long embodied in its juris-
dictional standards, including the accepted factors
that the sale of personal services as well as commodi-
ties is within the category of trade 6 and that Congress
in the NLRA intended to deal comprehensively with
labor disputes affecting commerce and exercised all
the power it possessed.? In furtherance of this latter
principle, our standards have always covered enter-
prises furnishing services (as well as those furnishing
goods) to other enterprises engaged directly in inter-
state commerce 8 without regard to whether the goods
furnished were directly incorporated in the product
sold in interstate commerce I or whether the employer
furnishes intangible services to the enterprises en-
gaged in interstate commerce.1° All of these standards
5 See Fortune Magazine , April 1973, "The `Legal Explosion ' has Left Busi-
ness Shell-Shocked "
6 United States v. National Association of Real Estate Boards, 339 U.S. 485,
490 (involving the Clayton Act); Lewis H Goldfarb, et al. v. Virginia State
Bar Association, et al., Civil Action No 75-72-A, U.S. District Court for the
Eastern District of Virginia , Alexandria Division (January 5, 1973), finding
that the fixing of a minimum fee schedule by a local bar association was an
illegal restraint of trade under the Sherman Anti-Trust Act where the State
Bar Association regarded the fixed minimum fee schedule as a violation of
the lawyers' code of ethics.
7 N L R.B. v. Reliance Fuel Oil Corporation , 371 U.S. 224 , 226 (1963);
N.L.R.B. v Gonzalez Padin Company, 161 F.2d 353, 355 (C.A. 1, 1947).
8 Hollow Tree Lumber Company, 91 NLRB 635, Jonesboro Grain Drying
Cooperative, 110 NLRB 481; Whippany Motor Co, Inc., 115 NLRB 52; Stem-
ons Mailing Service, 122 NLRB 81.
9 Jonesboro Grain Drying Cooperative, supra (mdirect outflow standard). At
one time the Board attempted to distinguish between goods furnished and
incorporated in the product sold in interstate commerce and those not physi-
cally incorporated, requiring a greater volume of the latter than of the former
before the Board would assert jurisdiction (Jonesboro at 485). This distinction
proved unworkable , and the Board eliminated it in Whippany Motor Co.,
supra.
1D U.S. Testing Co, Inc , 5 NLRB 696 (chemical and physical analysis of
industrial commodities), Cochrane, 44 NLRB 617 (assaying and analyzing
lead and zinc ores), Salmon if Cowin, Inc, 57 NLRB 845 (appraisal of mining
property); Foster D. Snell, supra (scientific and technical advisory services);
Electrical Testing Laboratories, Inc, 65 NLRB 1239 (testing of electrical
products), Franque A . Dickins, Engineers, 64 NLRB 797 (engineering serv-
ices), The Austin Company, 70 NLRB 851 (branch engineering office making
layouts, blueprints, specifications); De Leuw, Cather & Company, 72 NLRB
191 (appraisal , investigation , and surveys of property); Gray, Rogers, Graham
Continued
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and others, including the Board's $500,000 annual
gross revenue standard for retail enterprises, have
been ratified by Congress in the provisions of Section
14(c)" of the Act, under which the Board may decline
to assert jurisdiction over an entire industry only if it
finds that the industry itself involves operations which
do not exert a substantial impact on commerce." Fur-
ther, in appraising whether an industry has an impact
on commerce, the Board must consider the impact on
commerce of the totality of operations of all employ-
ers (large or small) in the class ." This the majority
fails to do.
A consideration of these principles as applied to the
facts before us leads only to a finding that the asser-
& Osborne, 129 NLRB 450 (architecture, engineering, and surveying); Hazel-
ton Laboratories, Inc., 136 NLRB 1609 (research and development services);
Browne & Buford, Engineers & Surveyors, 145 NLRB 765 (surveying, design,
and inspection services); Truman Schlup, Consulting Engineer, 145 NLRB 768
(enfineering and surveying services).
Sec. 14(c) states:
(1) The Board, in its discretion , may, by rule of decision or by pub-
lished rules adopted pursuant to the Administrative Procedure Act,
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 substantial to
warrant the exercise of its jurisdiction : Provided That the Board shall
not decline to assert junsidiction over any labor dispute over which it
would assert junsdiction under the standards prevailing upon August 1,
1959.
(2) Nothing in this Act shall be deemed to prevent or bar any agency
or the courts of any State or Territory (including the Commonwealth of
Puerto Rico, Guam, and the Virgin Islands)i from assuming and assert-
ing jurisdiction over labor disputes over which the Board declines, pur-
suant to paragraph (1) of this subsection , to assert jurisdiction.
This language was adopted to eliminate the "no-man 's land" created by the
decision of the Supreme Court in Guss v. Utah State Labor Relations Board
353 U.S. 1 (1957) and Amalgamated Meatcutters v. Fairlawn Meats, Inc, 353
U.S. 20 (1957), as is shown by the legislative history. S. Rep. No. 187 on S.
155, 86th Cong. 1st Sess. 25-27 (1959); H. Rep. No. 741 on H.R. 9342, 86th
Cong. 1st Sess. 97-98 (1959).
12 E.g., Office Employees Intl Union v. N.L.R.B, 353 U.S. 313, 318 (1957),
re labor unions as employers ; Hotel Employees Local No. 255, Hotel Restart-
rant Employees, etc v. Boyd Leedom [Miami Beach Hotel Association], 358
U.S. 99 (1958), re the hotel industry. That Congress was familiar with these
decisions as well as with the Guss decision when it enacted Sec. 14(c) as made
clear by the unsuccessful efforts of Senator Holland to induce Congress to
overturn the Hotel Employees decision . 86 Cong. Rec. 5633-34 (Apr. 20,
1959). Cf. Walter A. Kelley, 139 NLRB 744 (decliningjurisdiction over own-
ers and trainers of thoroughbred race horses); Seattle Real Estate Board 130
NLRB 608 (real estate brokers).
13 N.L.R.B. v. Fainblatt 306 U.S. 601, 607-608 (1939):
There are not a few industries in the United States which , though
conducted by relatively small units , contribute in the aggregate a vast
volume of interstate commerce.... It is not to be supposed that Con-
gress, in its attempted nationwide regulation of interstate commerce
through the removal of the causes of industrial strife affecting it, intend-
ed to exclude such industries from the sweep of the Act. In this, as in
every other case, the test of the Board's jurisdiction is not the volume
of the interstate commerce which may be affected, but the existence of
a relationship of the employer and-his employees to the commerce such
that, to paraphrase § 10(a) in the light of constitutional limitations,
unfair labor practices have led or tended "to lead to a labor dispute
burdening or obstructing commerce."
N.L.R.B. v. Reliance Fuel Oil Corp, 371 U.S. 224, 226-227:
Through the [NLRAI, ". . . Congress has explicitly regulated not
merely transactions or goods in interstate commerce but activities which
in isolation might be deemed to be merely local but in the interlacuigs
of business across state lines adversely affect such commerce " Polish
Alliance v. N.LR.B., 322 U.S. at 648.
tion of jurisdiction is required. Manifestly, the Con-
gressional policy is not furthered by the declaration of
an administrative exemption for an entire class of
employers based on the examination of the operations
of only one member of that class, particularly where
the facts show that this is a medium size firm whose
services are primarily to clients who are themselves
within the Board's jurisdictional standards. It flies in
the face of all logic to reach any conclusion other than
that this Employer's operations exert a substantial
impact on commerce 14 when judged by any or all of
the Congressionally approved jurisdictional stan-
dards. This includes the national defense standard
under which the Board asserts jurisdiction "over all
enterprises, as to which the Board has statutory juris-
diction, whose operations exert a substantial impact
on the national defense, irrespective of whether the
enterprise's operations satisfy any of the Board's
other jurisdictional standards."15 For here the Em-
ployer furnished more than $50,000 worth of services
to a national defense contractor, and services fur-
nished to a national defense contractor rather than
directly to the defense department have been regard-
ed as exerting a substantial impact on the national
defense.16 Accordingly, under Section 14(c), the
Board cannot decline to assert jurisdiction over the
Employer in the instant case.-
Nor are we persuaded that there are any practical
considerations that require the rejection of jurisdic-
tion over this industry. The lawyer-client relationship,
although a confidential one, is no more confidential
than the doctor-patient relationship. 17 Futhermore,
the Board has already found that notwithstanding
such confidential relationship lawyers working for an
insurance company are employees within the mean-
ing of the Act and may constitute a separate appropri-
ate unit ;'8 in doing so the Board rejected arguments
similar to those relied on by my colleagues in this case.
And, in recently finding appropriate a separate unit of
law school professors our colleagues specifically rest-
ed their decision on the law school faculty's "para-
14In this connection we are constrained to note that the assertion of
jurisdiction over this , class does not require us "to reach out" very far, that
it is of no import whether there have previously been few or many requests
that we do so, and that we have found no statement or holding affirmatively
indicating that this class has ever been regarded as not falling within our
jurisdiction . On the contrary, the legislative history indicates that Congress
intended that "lawyers" be within the Board's jurisdiction. See fn . 20, infra.
is Ready Mixed Concrete & Materials, Inc., 122 NLRB 318.
16 See Colonial Catering Company, 137 NLRB 1607.
17 There is also a confidential relationship between adoctor and his patient
not unlike the lawyer-chent relationship, yet that has not kept the Board from
exercising jurisdiction over medical clinics, dentists , hospitals, and the like.
Quain and Ramstad Clinic, 173 NLRB 1185. Dr. J. C. Campbell and Dr.
Walter Boucher, 157 NLRB 1004. In fact the private practice of medicine not
only involves a privileged relationship of doctor and patient, usually without
the need for the doctor to travel across state lines, but also ordinarily involves-
advice given to individuals who have no relationship whatsoever with com-
merce of any sort.
is Lumberman 's Mutual Casualty Co. of Chicago, 75 NLRB`- 11'32.
BODLE, FOGEL, ET AL. 517
mount allegiance and dedication" to their profession-
al discipline and conclude that "it is apparent that
their special interests may suffer if not recognized."19
Obviously, if the special allegiance of lawyers to their
professional discipline can be accommodated and
protected when the Board makes determinations re-
specting the rights to organize lawyers employed by
other industries (such as insurance firms and universi-
tites), there can be no difficulty in accommodating
such interests with respect to delineating the bargain-
ing rights of lawyers on the payroll of a law firm or,
even more easily, of clerical employees of such a firm.
Secondly, the majority indicates that they "are giv-
en pause" by arguments of potential conflicts of inter-
est and then states that, for reasons paralleling those
which led to the exclusion of confidential employees,
they hesitate to certify a unit of law firm employees
when unit employees may have access to information
within the confidential lawyer-client relationship.
Aside from the fact that our colleagues seem to be
deciding the very issue they state (in their fn. 2) that
they would not consider, we are hard pressed to un-
derstand why clerical employees working for lawyers
have a more confidential status than lawyers them-
selves; if lawyers directly subject to "the peculiarly
confidential relationship between lawyer and client"
may themselves organize under the protection of the
Act,20 it cannot seriously be maintained that their cler-
ical employees cannot appropriately exercise the same
rights because of their relationship to the lawyers they
serve.
Finally, there is clearly no merit in our colleagues'
position that "it would be extraordinarily difficult
both to devise and administer a reasonable jurisdic-
tional standard covering this industry."21 The indirect
19 Syracuse University, 204 NLRB No. 85
20 The majority herein not only ignores , but attempts to reverse , a legisla-
tive judgment that lawyers are covered by the Act:
When Congress passed the National Labor Relations Act, it recognized
that community of interests among members of a skilled craft might be
quite different from those of unskilled employees in mass-production
industry. Although there has been a trend in recent years for manufac-
turing corporations to employ many professional persons, including
architects, engineers, scientists, lawyers, and nurses, no corresponding
recognition was given by Congress to their special problems Neverthe-
less such employees have a great community of interest in maintaining
certain professional standards . . . Under the committee bill, the Board
is required to afford such groups an opportunity to vote in a separate unit
to ascertain whether or not they wish to have a bargaining unit of their
own. [S. Rep. No. 105, 80th Cong, lit Sess 11 (1947) (emphasis sup=
plied).]
This definition [of professional employees] in general covers such per-
sons as legal, engineering, scientific and medical personnel together with
their junior professional assistants, [H R Conf . Rep No 510, 80th
Cong ., 1st Sess. 36 (1947) (emphasis supplied).]
21 Even were ' the task as difficult as our' colleagues profess , that is no
justification for their refusal to undertake the task However difficult the
drawing of lines more nice than obvious ; the statute compels the task. Local
761, International Union of Electrical, Radio & Machine Workers, AFL-CIO
[Genetal Electric Co.j v. N.L R B, 366 U.S 667, 674.
outflow standard for nonretail enterprises is designed
to carry out the Congressional intention that the Act
cover operations "affecting commerce" and does so
by bringing within the Board's jurisdiction those en-
terprises which furnish goods or services to enterprises
that are engaged in interstate commerce. There is no
reason in logic or experience why such a standard
cannot reasonably separate those law firms which
render such services from those which do not. If this
standard is reasonably applied, for example, to a firm
which washes the windows of a manufacturing
plant,22 it can as reasonably be applied to a law firm
which renders legal services to the end that manufac-
turing operations can go forward in compliance with
the myriad laws and regulations affecting such opera-
tions. Alternatively, some different dollar amount
could be applied to law firms whose operations are
within the Act's coverage to separate those operations
which substantially affect commerce from those
which do not 23
One cannot read the majority opinion in this case
without receiving the impression that the real basis for
that decision is the judgment of our colleagues that it
is somehow inappropriate to subject the labor rela-
tions of law firms and their employees to the mediato-
ry influences of provisions of the Act, because in some
fashion or other the regulation of their labor relations
will hamper the practice of law. Such considerations
have not precluded application of-the antitrust laws to
abolish minimum fixed fee schedules of bar associa-
tions, even where the failure to observe the fee sched-
ule was deemed to be a violation of the canon of ethics
of the state bar association 24 Nor have such consider-
ations operated to preclude the application of other
labor laws to law firms as an industry25 Since the
Board has already held, in furtherance of the Con-
gressional policy, that attorneys employed by indus-
tries other than law firms are employees within the
meaning of the National Labor Relations Act and are
entitled to the rights guaranteed by this Act, we do
monumental injustice to attorneys and to clerical em-
ployees employed by law firms to deny them the same
rights solely because they work for such firms. We
would assert jurisdiction herein.
22 Louis Goren and Helen Goren, co-partners d/b/a City Window Cleaning
Company, 114 NLRB 906
23 Carolina Supplies and Cement Co, 122 NLRB 88 (retail ehterpris-
es-$500,000), Floridan Hotel of Tampa, Inc, 124 NLRB 261 (hotels and
motels-$500,000); Parkview Gardens, 166 NLRB 647 (apartment hous-
es-$500,000)5 Butte Medical Properties d/b/a Medical Center Hospital, 168
NLRB 266 (hospitals-$250,000), University Nursing Home, Inc, 168 NLRB
263 (nursing homes-$ 100,000), Cornell University, 183 NLRB 329^ (nonpro-
fit universities and colleges-$1 million), 38 FR 7289 (symphony orches-
tras-$9 million).
24 Goldfarb v. Virginia State Bar Association, In 6, supra
25 Secretarial and clerical employees of lase firms are entitled to coverage
under the Fair Labor Standards Act of 1438 Wage and-Hour Opinion Letter
No 49 (November 2, 1961). That act has a more limited grant of jurisdic-
tional authority than does the NLRA'.