Kaplan, Sicking, Hessen, etc.

National Labor Relations Board - Board Decisions

Jul 9, 1980

250 N.L.R.B. 483 (N.L.R.B. 1980)

KAPLAN. SICKING. HESSEN, ETC
Kaplan, Sicking, Hessen, Sugarman, Rosenthal &
Zientz and Sharon Dranow, and Office and
Professional Employees International Union,
Local Union No. 128, Party in Interest. Case
12-CA-8245
July 9, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On February 7, 1980, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Kaplan, Sicking, Hessen, Sugarman, Rosenthal &
Zientz, Miami, Florida, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Recognizing Office and Professional Em-
ployees International Union, Local Union No. 128,
as the exclusive representative of any of its em-
ployees for the purposes of collective bargaining,
unless and until said labor organization has been
duly certified by the National Labor Relations
Board as the exclusive representative of such em-
ployees."
2. Substitute the following for paragraph 2(a):
"(a) Withdraw and withhold all recognition from
Office and Professional Employees International
Union, Local Union No. 128, as the exclusive rep-
resentative of its employees for the purposes of col-
lective bargaining unless and until the said labor
organization has been duly certified by the Nation-
al Labor Relations Board as the exclusive repre-
sentative of such employees."
3. Substitute the attached notice for that of the
Administrative Law Judge.
250 NLRB No. 65
APPENDIX
NOTICE To EMPI OYEES
POSTED BY ORDER OF THE
NATIONAl LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides were permitted
to submit evidence, the National Labor Relations
Board has ordered us to post this notice:
WE WILL NOT recognize Office and Profes-
sional Employees International Union, Local
Union No. 128, as the exclusive representative
of any of our employees, unless and until it has
been duly certified by the National Labor Re-
lations Board as the exclusive representative of
our employees.
WE WILL NOT apply to any of our employ-
ees any agreement, oral or written, with that
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights set forth in Section
7 of the National Labor Relations Act.
WE WILL withdraw and withhold recogni-
tion from Office and Professional Employees
International Union, Local Union No. 128,
unless and until it has been duly certified by
the National Labor Relations Board as the ex-
clusive representative of our employees.
KAPLAN, SICKING, HESSEN, SUGAR-
MAN, ROSENTHAL & ZIENTZ
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNAsI, Administrative Law Judge:
This case was heard in Coral Gables, Florida, on May 17
and 18 and June 19, 1979. The complaint, which issued
on January 29, 1979, alleges that Respondent violated
Section 8(a)(2) and (1) of the National Labor Relations
Act, as amended, by "providing legal advice and repre-
sentation in labor relations matters" to Office and Profes-
sional Employees International Union, Local Union No.
128 (hereafter the Union), which admittedly represents
its clerical employees, and by recognizing, bargaining,
and entering into and enforcing a contract with a union
which is "not legally competent to represent its employ-
ees because [it] has retained the Respondent as its legal
counsel." Respondent denies the essential allegations in
the complaint and also denies that the Board has jurisdic-
tion over its operations.'
I The origin of this dispute was a charge filed by Sharon DranoA, a
secretary in Respondent's law firm, on June 19, 1978, alleging that Re-
spondent had violaled Sec 8(a)2) and (I) of the Act by dominating the
Union, interfering with its operations, and contributing financial and
Continued
483
DECISIONS OF NATIONAL LABOR RELATIONS HOARD
The parties submitted proposed findings and conclu-
sions and supporting memoranda.
Based on the entire record in this case, including the
testimony of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE LABOR OGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE BUSINESS OF THE EMPLOYER
Respondent is a Florida professional service corpora-
tion with an office and principal place of business located
in Miami, Florida, where it is engaged in the practice of
labor law, primarily representing unions. Respondent
also has an office in West Palm Beach, Florida. In the
course and conduct of its operations during a representa-
tive l-year period, Respondent has had gross revenues in
excess of $250,000 and has purchased goods and services
in excess of $50,000 from national firms. Accordingly, I
find that Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
Respondent argues that the Board should not take ju-
risdiction over its operations because it is a law firm en-
gaged in the practice of labor law representing unions
and because all of its employees are confidential employ-
ees and thus not employees within the meaning of the
Act. I reject Respondent's contentions.
A. The Facts
The great majority of Respondent's practice involves
labor law which includes legal representation extended
to: (a) unions, in every aspect of their relationships with
employers, with each other, with governmental agencies,
and with their members; (b) jointly administered trust
funds such as health and welfare funds, pension funds,
and apprenticeship and training funds; (c) employees, in
workmen's compensation claims, social security claims,
or other types of employment-related proceedings; and
(d) union members, in the processing of their individual
problems.
In addition, Respondent represents individuals who are
not affiliated with unions, serving as counsel in personal
injury actions or employment-related cases (e.g., work-
men's compensation, social security, or other types of re-
other support to it On July 31, 1978, the charge was amended to add the
allegation that Respondent had violated Sec. 8(a)(4) of the Act by dis-
criminating against Dranow because she had filed the earlier charge. Ap-
parently. another charge (Case 12-CA-8372) was filed with respect to
Dranow's subsequent discharge by Respondent in September 1978.
Much of the pending matter was disposed of before the instant com-
plaint issued by an out-of-Board settlement which resulted in the with-
drawal of all pending charges by Dranow. The withdrawal request was
dated October 20. 1978 A "rider" to the withdrawal request stated that
the pending charges (Cases 12-CA-8245 and 12-CA-8372) were with-
drawn, except insofar as they alleged that Respondent violated the Act
by performing legal services for and representing the Union. The Region-
al Director approved the withdrawal request, but stated that "[t]he
8(a)(2) and (1) portion remains pending for further processing" The lan-
guage of the complaint, which issued on January 29. 1979, makes It clear
that the Regional Director limited his allegations to the issue specified in
the rider to the withdrawal
tirement or disability claims). Respondent also serves as
counsel in family law matters (e.g., probate questions, di-
vorce actions, etc.) and in criminal law proceedings, but
these matters are generated primarily by union clients or
their members and comprise only a small percentage of
its income.
Respondent has been in existence as a professional as-
sociation since 1969. At all times since such date, Joseph
H. Kaplan has occupied the positions of president and
managing officer and has served as Respondent's regis-
tered agent. Richard A. Sicking has been, at all times
material herein, secretary-treasurer of the professional as-
sociation, while the office of vice president was held by
Thomas J. Dorsey prior to October 1, 1978, and by
Arnold D. Hessen at all times since October 1, 1978.
Respondent employs a total of 12 attorneys-2 in its
West Palm Beach office and 10 in its Miami office; one
other attorney is designated "of counsel" to the firm. Re-
spondent also employs a total of 14 secretaries of differ-
ing skills, responsibilities, and seniority, 2 of whom are
assigned to the West Palm Beach office where they are
under the direct supervision of that office's manager, At-
torney Gerald Rosenthal. Other individuals employed by
the professional association in its Miami office include
one bookkeeper-office manager, one law clerk, four para-
legals, one paralegal/investigator, one receptionist, one
general employee (maintenance man/messenger), one
part-time cleanup person, and one part-time general
office employee.
B. Discussion and Analysis
It is well settled that Congress, in passing the Labor
Act, intended to, and did, vest in the Board the fullest
jurisdictional breadth constitutionally permissible under
the commerce clause. N.L.R.B. v. Reliance Fuel Oil Cor-
poration, 371 U.S. 224, 226 (1963). In exercising its dis-
cretionary jurisdiction, the Board initially declined to
take jurisdiction over law firms. 2 However, after an in-
tervening Supreme Court decision, the Board reconsid-
ered the matter and decided, in Foley, Hoag & Eliot, 229
NLRB 456 (1977), to assert jurisdiction over law firms as
a class. As indicated above, Respondent's gross revenue
figures come within the Board's expressed discretionary
jurisdictional standards for law firms. See Camden Re-
gional Legal Services, Inc., 231 NLRB 224 (1977).
Respondent does not contest the Board's assertion of
jurisdiction over law firms as a general matter, but only
insofar as the Foley case applies to the assertion of juris-
diction over labor law firms. In this connection, Re-
spondent asserts that its employees are all confidential
employees and thus outside the scope of the Act. Re-
spondent cites cases holding that confidential employees
are not employees within the meaning of Section 2(3) of
the Act.3 It also points out that a minority of the Board
in Foley noted that the employees of labor law firms
might have significant and unique confidential relation-
Bodle. Fogel. Julber, Reinhardt d Rothchild, 206 NLRB 512 (1973)
: See The B. F Goodrich Co., 115 NLRB 722, 724 (1956); NL.R.B v
Bell Aeropauce Co., 416 U.S 267, 283 (1974): Westinghoust Electric Corpo-
ration v N.L.R.B., 398 F.2d 669, 670 (6th Cir 1968); N.L R B. v Wheel-
ing Electric Corporation, 444 F.2d 783 (4th Cir. 1971).
484
KAPL.AN, SICKING(i, HESSEN, EFC
ships with their employer or with the law firm's clients.
(229 NLRB at 457, fn. 12). These considerations do not.
in my view, require the Board to withhold its jurisdic-
tion in this case.
First of all, some of the unit employees-albeit a small
number-are clearly not confidential employees. Re-
spondent employs at least two maintenance people.
There is no discernible confidential relationship in the
employment of these employees. Respondent apparently
argues that these employees are confidential employees
based upon Kaplan's testimony that the maintenance man
was responsible for filing, among other duties, and there-
fore had access to Respondent's file containing the col-
lective-bargaining agreement.
This argument is without merit. The Board held in
Ford Motor Company, 66 NLRB 1317 (1946), and B. F.
Goodrich, supra, that, for an employee to be considered
confidential for purposes of the Act, he must "assist and
act in a confidential capacity to persons who formulate,
determine, and effectuate management policies in the
field of labor relations." Respondent has offered no evi-
dence that the maintenance employees have such a rela-
tionship to any of the attorneys who speak for Respond-
ent in labor relations. Indeed, the testimony shows that
they do primarily maintenance-type work, including
caring for the lawn and parking lot, cleaning the prem-
ises, making deliveries, and filing. These activities can
hardly be considered as assisting and acting in a confi-
dential capacity to the Employer in connection with
labor relations. Even assuming that these maintenance
people had some access to Respondent's labor relations
file as Kaplan testified, "mere access to confidential ma-
terial, albeit confidential labor relations material, is not
sufficient to confer confidential status." Los Angeles New
Hospital, 244 NLRB No. 157 (1979). Accordingly, the
Board at least has the authority to regulate the employ-
ment relationship of the two maintenance employees and
its jurisdiction over Respondent is fully warranted on
these facts alone.
Respondent also alleges that the remaining unit em-
ployees are confidential employees not because of their
relationship vis-a-vis the labor relations of their own em-
ployer, but because of their relationship vis-a-vis the labor
relations of Respondent's clients-clearly third parties.
Respondent argues that its secretaries and other office
employees have free access to information provided by
clients who are involved in labor relations and points out
that if these employees were directly employed by house
counsel rather than independent lawyers their confiden-
tial employee status would clearly be recognized. Thus,
Respondent does not quarrel with the Board's definition
of confidential employees, which is limited to those em-
ployees who "assist and act in a confidential capacity to
persons who formulate, determine, and effectuate man-
agement policies in the field of labor relations." B. F.
Goodrich and Ford Motor Company, supra. It simply seeks
to bring its employees under the umbrella of its clients'
labor relations activities rather than its own. It is clear,
however, that the Board's definition of confidential em-
ployees does not apply where the employer seeks the ex-
clusion of his employees on the basis of confidential rela-
fionships with third parties. Thus, as the Board has stated
in Dun & Bradstreet, Inc., 240 NLRB 162 (1979):4'
[IJt is implicit in the rationale for finding a confi-
dential status that such persons work in a confiden-
tial capacity with someone who formulates, deter-
mines, and effectuates labor relations policies for
their own employer, not some other employer.
Nor is there any reason to distinguish between the
confidential relationships of employees of a labor law
firm and those of a nonlabor law firm. Respondent
argues that a breach of confidentiality among its employ-
ees would be more harmful than among those of a nonla-
bor law firm because an employee might utilize confiden-
tial information, acquired in the course of his employ-
ment, concerning the labor relations of a client and di-
vulge it to his union which, if it were affiliated with the
union representing the client's employees, could put the
information to some objectionable use. Simply to recite
the hypothetical reveals the remote and speculative
nature of the potential for a breach of confidentiality
which would arguably be different in kind from that
which would exist in any other law firm. Thus, the risk
that labor law firm employees would be more prone to
breach confidentialities detrimental to clients does not
justify a broadly ranged declination of jurisdiction or an
exception carved out of the Foley Decision solely with
respect to labor law firms. It is far more sensible to
await, on an ad hoc basis, specific collisions of employee
rights and alleged breaches of confidentiality. Specific al-
legations concerning the confidential employee status of
particular employees may be dealt with as they arise. As
the General Counsel points out, an employer-particular-
ly this Employer-is able to cope with and remedy
breaches of confidentiality with the imposition of disci-
pline without conflicting with the requirements of the
Act. For example, Respondent has issued written instruc-
tions to its employees with respect to the need to main-
tain confidentiality and Respondent is, of course, free to
discharge or discipline employees who breach such con-
fidentialities. Indeed, this prerogative was expressly re-
served in the collective-bargaining agreement of the par-
ties. Nothing in the Act or in its application precludes an
employer's nondiscriminatory and legitimate attempts to
preserve confidential relationships.
In these circumstances, I find that all of Respondent's
employees are not confidential employees. Two are not
confidential employees under any possible definition
Even if Respondent had asserted that the secretaries should be
deemed confidential because of their polsition with regard to Respond-
ent's own labor relations, the evidence presented at the hearing would
still not sustain a finding of confidentiality Respondent has shown only
that the secretaries have access to the files containing Ihe collecitse-bar-
gaining agreement and perhaps other labor relations materials As stated
above, however, mere access to confidential information is not enough
There must he an actual showing that the employee assisted and "acted
ilt a confidential capacity" % ith respect to "perr,ons aho formulate, deter-
mine, and effectuate managemient policsel In the field of labor relation, "
No such evidence has been presented and Respondent has thus failed to
carry its burden of proof on this point On the contrary. Kaplan testified
that he encouraged his secretaries to join the Union, thus suggesting a
lack of concern on his part that the secretaries might obtain confidential
information about Respondent's o(ln lahbor relatlins
485
I)t:CISI()NS OF NATIONAL I.ABO()R REI .AlIONS B()ARD)
since they are basically maintenance employees. The re-
mainder of the employees are not confidential employees
simply because they may have access to confidential in-
formation relating to the labor relations of a third party
who is not their employer. Thus. Respondent does
employ people who are statutory employees. Nor is
there any sufficient policy reason for the Board to treat
labor law firms differently from other law firms in this
respect. Accordingly, Respondent is subject to the juris-
diction of the Board.
Respondent also suggests that determination of the
substantive issues presented, i.e., the 8(a)(2) allegations in
the complaint, is beyond the power delegated to the
Board by Congress because it implies regulation of the
legal profession, which is exclusively within the jurisdic-
tion of the States, and that the Board's exercise of juris-
diction would subject labor attorneys to conflicting
standards of conduct and limit the selection of clients.
Respondent's argument in this respect is without merit.
Respondent does not argue against jurisdiction over
unfair labor practice allegations, for example, discrimina-
tory discharge matters, which have nothing to do with
the selection of clients. The gravamen of the unfair labor
practice is that the Respondent violated the Act by rec-
ognizing and bargaining with its client, and the Board
has exclusive jurisdiction, under Section 10(a) of the Act,
to adjudicate and remedy unfair labor practices of this
type. See National Licorice Company v. N.L.R.B., 309
U.S. 350, 365 (1940). The Board's authority in this re-
spect is paramount. Cf. Bethlehem Steel Company v. New
York State Labor Relations Board, 330 U.S. 767 (1947);
Joseph Garnet. et al.. t/a Central Storage and Transfer
Company v. Teamsters, Local Union 776 (A.F.L.). 346
U.S. 485 (1953); N.L.R.B. v. Nash-Finch Company, 404
U.S. 138 (1971).
Respondent further suggests that, in enacting the stat-
ute, Congress failed to "specifically" consider the inclu-
sion of labor law firms within the scope of the Board's
jurisdiction. Respondent's argument-which again distin-
guishes between nonlabor law firms and labor law
firms-is faulty. The cases it cites demonstrate that the
Supreme Court has looked to the legislative history to
discern a specific intent to cover a particular industry or
class where inclusion of that group would present serious
constitutional issues. For example, in N.L.R.B. v. The
Catholic Bishop of Chicago, 440 U.S. 490 1979, the Court,
by a bare majority, pointed to first amendment problems
with respect to the assertion of jurisdiction over church-
operated schools, even though private schools generally
are subject to the Board's jurisdiction. The Court viewed
the constitutional problems so grave that it found signifi-
cant Congress' failure to specifically include church-op-
erated schools within the coverage of the Act. No simi-
lar underlying constitutional issues becloud assertion of
jurisdiction over labor law firms. Nor are labor law firms
any different from nonlabor law firms in their regulation
by the States.5
' It is well settled that the Board may assert jurisdictiln over classes of
employers, even where they are locally regulated, so long as such asser-
lion of jurisdiction does not result in unjust discrimination. See N L.R .H
v. larrah's Club. 362 F.2d 425. 427 (9th Cir 1966), cert denied 386 U.S.
The remainder of Respondent's argument is in effect
an argument against the assertion of jurisdiction over law
firms and lawyers as such. All questions on this matter
have been answered and laid to rest by the Board's Deci-
sion inl h.iley, and I am bound to follow that Decision.' ;
111. I'III Al I l (l) UNIAIR I ABOR P'RAC I'ICFI
A. The Faictr.
Respondent's nonprofessional employees are represent-
ed by the Union and have been for about 10 years. The
most recent collective-bargaining agreement between the
parties was entered into on August 31, 1978, and is auto-
matically renewable unless prior written notice is given
to terminate and renegotiate the agreement. The recogni-
tion clause in the agreement provides that the Union is
the sole bargaining agent for "those regular employees
performing work for the employer other than work as an
attorney, a paralegal, a law clerk, an investigator and su-
pervisors as defined in the National L.abor Relations Act,
as amended."
The Union has approximately 120 members. The larg-
est employers under contract with the Union are Florida
Administrators, Inc. of Florida, and Florida Administra-
tors, Inc. of Georgia, both of which are private sector
employers which are in the business of administering
trust funds and various other pension funds in Florida,
Georgia, and other locations. Almost 42 percent (50) of
the Union's members are employed by Florida Adminis-
trators which is not represented by Respondent. Another
17 percent (about 20) are employees of Respondent. The
balance of the membership is comprised of individuals
employed by various south Florida labor organizations
and labor committees.
Approximately half of the employers with whom the
Union has contracts are represented in legal matters by
Respondent, the other half by other labor law firms. All
are unions or union-related entities.
Sometime in the 19 60's, the Union organized Respond-
ent's employees and Respondent encouraged this effort.
As indicated above, Respondent has had several collec-
tive-bargaining agreements with the Union. For some
time and more particularly during the term of the 1977-
78 agreement, the President of the Union was Donald
Lavecchia, an employee of Respondent. Lavecchia is a
paralegal investigator for Respondent. Since the effective
date of the 1977-78 contract, Lavecchia's job classifica-
tion has not been included in the contractual unit and he
himself is not covered by the contract.
During this period, another employee of Respondent,
Sharon Dranow, a secretary, was active in union matters
915; S.L.R.BR. r Inglewodt PurA Cemncery A4sociution, 155 F2d 448, 450-
451 o9th Cir 1966). cert. denied 384 U.S. 951
0 A final argument by Respondent is that the Board lacks the prower toi
grant the remedy sought. That argument is sprcalalive and unpersuasive
is a jurisdictlional argument fior it assumes that ;, particular finding will he
made and a particular remedy ordered. Moreover, insofar as it suggests
that Ihe Hoard's order will "prevent the Respondent from servring as
legal counsel to the Union." Responldenl is in error il fact, the toard's
order in this casw will be carefully tailored Ilo remedy the viltlaliolI found
and will simply present Respondent from recognizilmg and hargaining
with the Union which has heen fiund toi he incompetent to represrent its
Vmployees.
486
KAPI AN, SICKING, HEISSEN, LETC
as a shop steward, an executive hoard member, and a
trustee of the Union. In May 1978, Dranow was nomi-
nated to run against Lavecchia for union president.
Dranow challenged Lavecchia's eligibility on the ground
that he was not in the contractual unit and was a super-
visor. Lavecchia denied he was ineligible and secured a
letter from Kaplan clarifying his employment status. On
May 3, 1978, Respondent wrote a letter to Lavecchia
stating that Lavecchia was employed in a professional
role with the law firm but was not a supervisor. Lavec-
chia used the letter in his campaign to meet Dranow's
challenge.
Shortly before the election, Dranow approached
Kaplan and mentioned that she did not think that Lavec-
chia was qualified or eligible to be union president. She
also asked Kaplan to have Lavecchia withdraw his can-
didacy. Kaplan refused.7
Lavecchia won the election which was held on June 6,
1978.
On June 19, 1978, Dranow filed a charge alleging that
Respondent dominated the Union, interfered with it, and
contributed financial and other support to it in violation
of Section 8(a)(2) of the Act. On July 3, 1978, an amend-
ed charge was filed adding that Respondent discriminat-
ed against Dranow for filing the original charge on June
19.
In the course of the Board investigation of Dranow's
charges, President Donald Lavecchia responded to the
inquiry of a Board investigator as follows in a letter
dated July 12, 1978:
This will acknowledge receipt of your letter
dated June 30th, 1978 and received by the under-
signed on July 8th, 1978. 1 held off responding to
the letter due to the fact that Local 128 had its reg-
ular monthly meeting last night and I wished to
hear from the membership in regard to the matter
as indicated in your letter.
Let me first point out to you that the firm of
Kaplan, Dorsey, Sicking & Hessen has represented
Local 128 for the past 10 years or so, especially in
the area of grievances filed by the Local.
As for your questions, Kaplan, Dorsey, Sicking &
Hessen DO in fact represent Local 128 and its mem-
bership! At last nights meeting, the membership
present overwhelmingly reaffirmed, by motion and
formal vote, to continue to have K.D.S. & H. repre-
sent us, especially in regard to the charges recently
filed by Sister Sharon Dranow.
Mr. Dorsey is not the Local's attorney in the cur-
rent problem and it is my understanding that Mr.
Joseph Kaplan is representing the members and the
Local.
Lavecchia also told the Board investigator that the only
way he would answer questions would be if they were
submitted in writing and submitted in advance. Lavec-
chia said he was taking this position on the advice of his
I t credit Kaplan'% acounil of this c, on'creriation and I reject Dranovwu;
testimony oin ihi, anld all other pointi, here her leslimony conflicts with
that of other witnesse,. Her iestinliony as infected with per,,orial hias.
exaggeration, and confusion
attorney and indeed one of Respondent's attorneys ad-
vised Lavecchia to take this approach.
It is also undisputed that Lavecchia and Kaplan spoke
about the charges filed against Respondent insofar as
they might have touched the Union. In this respect
Kaplan testified as follows:
When the charge was filed by Sharon against the
firm, it was-I evaluated the charge as an attempt
on the part of Sharon to have the election set aside,
the election that Don had won in the local union. It
appeared to me that that-that Sharon's act in filing
the charge would, therefore, have been antagonistic
to the position of the union, which was our client.
Kaplan also testified:
But because I had, in my mind, assumed the posi-
tion, for many years, being the union's attorney,
when this subject came up, I freely discussed it with
Donald, partly as a friend, partly as his employer,
partly as the object of a charge partly as an attor-
ney. It was difficult to separate. I couldn't distin-
guish, in my own mind, exactly what role I was
playing, but I didn't feel as though I was formally
giving any legal advice. There wasn't any needed
because the charge was against us, in my opinion,
the only thing that involved him was his continuing
presidency of the union, and I told him I didn't
think he had anything to fear because we didn't do
anything wrong.
Kaplan further testified that he made no appearance on
behalf of the Union, but that:
I did take the position we represented the union
during these charges. I took that position, but it was
like saying that you have a title and a position with-
out ever doing anything about it. It was my position
that we had a right to represent the union. I can see
on reflection now that we should not have, but I
think that is just a matter of choice--i don't think
that was a violation of the law. But we didn't do
anything about it. We just, you know, took the po-
sition we are the union's lawyer.
On or about September 24, 1978, Sharon Dranow was
discharged by Respondent. She filed an additional charge
with the Board alleging her discharge was unlawful and
also filed a grievance with Respondent under the appli-
cable collective-bargaining agreement. Dranow prepared
a grievance and submitted it through the Union. At this
point, Kaplan began sensing that there might be some
problems in continuing to represent the Union. On Sep-
tember 29, 1978, he sent Lavecchia a letter. The letter
stated, in part, as follows:
As you know from our prior discussions, we have
taken the position that it is legal and ethical for us
to represent your Union in all matters except those
directly involving either our firm or our other
Union clients. For an example, we withdres from
representing your Union when you had a grievance
against one of our clients and we have recently
4X7
4t'DECISIONS ()F NATIO()NAL L.AlOR RELATIONS B()ARKD
withdrawn in the grievance this employee of ours
filed against us on account of her recent discharge.
But, we have not withdrawn our general represen-
tation of your Union nor have we withdrawn while
this employee's charges are pending since the Union
did not support the employee's contentions of inter-
ference in the election nor did it support her con-
tention that it is a per se violation of the law for us
to represent the Union.
However, Kaplan suggested that "we secure the advice
of your International's attorney" to resolve what Kaplan
believed might present "an appearance of impropriety."
Thereafter, Respondent withdrew as the Union's counsel
with respect to both the grievance and the Board pro-
ceeding. After a meeting of the Union's executive board
on October 2, 1978, the Union hired William T. Coleman
as its counsel in these matters.
On October 18, 1978, the parties reached agreement on
a settlement of the Dranow grievance which also includ-
ed a provision that she withdraw her charges filed with
the Board with the exception of the charge that alleged
that Respondent "cannot represent" the "in Union labor
relation[s] matters." On October 20, 1978, Dranow,
through the Union's counsel, Coleman, withdrew her
charges in a withdrawal request addressed to the Region-
al Director. The withdrawal request included a "rider"
which stated that the pending charges were withdrawn
except insofar as they alleged Respondent violated the
Act by performing legal services for and representing
the Union. The Regional Director approved the with-
drawal except for the 8(a)(2) and (I) portion of the
charge. The complaint, which subsequently issued on
January 29, 1979, was limited to the narrow issue of
whether Respondent's recognition of the Union, which it
also represented as a client, violated the Act.
It is conceded that Respondent represents the Union in
all of its legal matters except those touching bargaining
unit employees such as the presentation of grievances or
negotiations. There is no retainer agreement between Re-
spondent and the Union and Respondent bills the Union
on an ad hoc basis for legal services. Respondent also
represents the Union's health and welfare fund in some
matters.
Specific evidence concerning the bargaining relation-
ship between Respondent and the Union was sketchy.
Apparently, outside of the Dranow charges and dis-
charge which spawned not only these proceedings, but
also a grievance under the labor contract, the Union's
role was limited to negotiating the parties' collective-bar-
gaining agreement. Lavecchia was the chief union nego-
tiator but he had help from Dranow and a committee of
employees. Kaplan was the primary spokesman for Re-
spondent in negotiations and other labor relations mat-
ters. Kaplan testified that very few grievances had been
filed and that Lavecchia handled these grievances or any
questions of contract interpretation. Sometimes the em-
ployees would take grievances to the attorneys for
whom they worked and resolved them informally. The
Union was not regularly represented by independent
counsel in its negotiations or its other encounters with
Respondent. Both Kaplan and Lavecchia testified in a
conclusionary fashion that Respondent never gave legal
advice to the Union-except in the most limited sense,
after the charges were filed in this case, by telling La-
vecchia that the 1978 election was valid-in matters in-
volving bargaining unit employees. Lavecchia also testi-
fied that, in the past, he used independent counsel in
"conflict-of-interest situations," but such situations were
not specified or described in any meaningful detail. La-
vecchia did testify that he received labor relations
advice-gratis-from friends in the labor field.
B. Discussion and .4nalysis
I. The alleged broad theory of violation which is
not contained in the complaint
The General Counsel's brief alleges that Respondent
violated Section 8(a)(2) and (1) of the Act by its partisan
support of the incumbent union president in the intraun-
ion election. This allegation was not part of the com-
plaint in this case. The complaint was carefully drawn to
narrowly encompass only one issue (although stated in
two separate fashions in the complaint): Whether Re-
spondent violated the Act by recognizing as bargaining
representative of its employees a union which it also
served as legal counsel. The operative paragraph of the
complaint reads as follows:
Since on or about December 20, 1977, and con-
tinuing to date, Respondent has rendered, and is
rendering. unlawful aid, assistance, and support to
the Union by:
(a) Providing legal advice and representation in
labor relations matters to the Union.
(b) Recognizing and bargaining with the Union
and entering into and enforcing a contract with the
Union, which Union is not legally competent to
represent its employees because the Union has re-
tained the Respondent as its legal counsel.
Certain evidence concerning the alleged participation of
Respondent in the intraunion election was offered into
evidence. Respondent consistently objected to evidence
suggesting a broader violation on the ground that it was
beyond the complaint allegation. The evidence was re-
ceived, over objection, as background in order to shed
light on the relationship between the Union and Re-
spondent in connection with specific allegations in the
complaint. The evidence was not taken to show a sepa-
rate violation and the General Counsel never sought to
amend the complaint to allege a separate violation.
Indeed, recognizing the limited use of the evidence per-
mitted by my evidentiary rulings, counsel for the Gener-
al Counsel indicated on several occasions that she would
attempt to amend the complaint to "bring back in these
things that were previously withdrawn." But the General
Counsel did not do so. The General Counsel's attempt to
resuscitate, in brief, what is the broader issue of tradi-
tional 8(a)(2) interference or domination is improper.
That issue was the subject of the original Dranow
charge which was withdrawn. Although the Regional
Director's acceptance of the withdrawal preserved the
utilization of the broader 8(a)(2) theory, the final issu-
4X8
KAPLAN, SICKINGi HESSEN, ETC
ance of the complaint herein clearly abandoned the
broader theory.
Nor was the matter fully litigated, as the General
Counsel suggests, simply because Respondent sought to
rebut any inferences of impropriety suggested by the
General Counsel's evidence. In recognition of my ruling
that the General Counsel's evidence was relevant to the
specific complaint allegations and not to some broader
issue of interference or domination, Respondent quite
properly sought to refute any inference of illegality
which such evidence might suggest. However, it never
abandoned its position that the evidence could not be uti-
lized to support a broad theory of violation. In short, the
General Counsel seeks to transform a respondent's effort
to rebut certain background evidence as it might reflect
on the issues specifically raised in a complaint into a con-
tention that the matter was "fully litigated" so as to
permit an unfair labor practice finding on that evidence.
I reject the General Counsel's argument. To accept the
argument would sanction a most serious violation of due
process. I therefore will not permit the General Counsel
to alter the complaint in the manner suggested. 8
2. The theory alleged in the complaint
The Board has held, in a variety of situations, that an
employer violates Section 8(a)(2) and (1) of the Act by
recognizing and bargaining with a union which, by
virtue of an inherent conflict of interest, is not legally
competent to represent the employees it purports to rep-
resent. See St. Louis Labor Health Institute, 230 NLRB
180 (1977), and cases there cited; and Centerville Clinics,
Incorporated, 181 NLRB 135 (1970).
In Bausch & Lomb Optical Company, 108 NLRB 1555
(1954), the Board held that an employer did not violate
the Act by refusing to bargain with a union which was
engaged in a business which competed with that of the
employer. The Board stated that such a union was not a
*"proper" representative of the employees within the
meaning of the Act and set forth the view that the union
must approach the bargaining table "with the single-
minded purpose of protecting and advancing the interests
of the employees who have selected it as their bargaining
agent, and there must be no ulterior purpose." Id. at
1559, 1562.
In Oregon Teamsters' Security Plan Office, etc., 119
NLRB 207 (1957), the Board, in reliance upon Bausch &
Lomb, supra, provided, as a remedy for various viola-
tions of the Act, that certain employers affiliated with or
connected with the Teamsters could not recognize and
bargain with one of the respondent unions. The Board
stated that where "a union has allegiances which conflict
with [the basic purpose of protecting and advancing the
interests of employees it represents, such a union cannot]
be a proper representative of employees." 119 NLRB at
211-212. The Board found that the union was "not com-
petent to bargain with itself concerning the terms of em-
ployment of its own employees." Nor could there be any
effective collective bargaining by that union for the em-
" I have. of course, considered the evidence concerning Respondent's
alleged participation in the union election as it has some relevance to Ihe
conflici-of-interesl problems inherent in Respondent's reioguiliion of its
client as the representatile of its employees
ployees of other respondents "in view of the common
bond" the union and the other respondents had with "the
Teamsters organization." Ibid.
In Centerville Clinics. Inc., 181 NLRB at 140, the
Board held that an employer which recognizes and bar-
gains with an organization not legally competent to rep-
resent its employees violates Section 8(a)(2) and (1) of
the Act, citing an earlier case, Seafarers' International
Union of North America, 138 NLRB 1142 (1962). As in
the situation of an employer who recognizes and bar-
gains with a minority union, the act of recognition of a
union incompetent to represent the employees because of
a conflict of interest, in and of itself, provides such a
union an intolerable aura of legitimacy under Section
8(a)(2) of the Act. Cf. International Ladies' Garment
Workers' Union v. IV.L.R.B., 366 U.S. 731, 738 (1961).
In Centerville, the Board found the union to be dis-
qualified because of the conflict of interest presented by
the fact that the employer's board of directors was com-
posed of representatives from unions which bargained
for a trust fund that provided revenues for the employ-
er's clinic. Thus, as the Board found, high-ranking offi-
cials of the unions "sat on opposite sides of the bargain-
ing table." Id. at 140. The Board in Centerville also relied
on N.L.R.B. v. David Buttrick Company, 361 F.2d 300,
309 (Ist Cir. 1966), a case in which the First Circuit
stated that, where there is the potential, the "tempta-
tion," to abuse the trust between the union and its mem-
bers, the danger of a conflict of interest exists and proof
of actual abuse of this trust is not required.
Finally, in St. Louis Labor Health Institute, 230 NLRB
180, the Board found a violation of Section 8(a)(2) and
(1) of the Act where an employer signed a collective-
bargaining agreement with a union "not qualified" to act
as bargaining representative because the president of the
union was the chief negotiator for the employer. The
evidence showed that the employer administered the
medical and hospital plans provided to members of the
union under its bargaining agreements. 9 The Board's
remedy in St. Louis Labor Health Institute was an order
that the employer withdraw and withhold recognition
from the union. Id. at 180, 183.
In accordance with the above authorities, I find herein
that, so long as the Union retains, as its counsel and
agent, an employer whose employees it represents in col-
lective bargaining, it is incapable of approaching "the
bargaining table with the single-minded purpose of pro-
tecting and advancing the interests of the employees who
have selected it as their bargaining agent." Bausch &
Lomb Optical Co., supra at 1559. Thus, the Union may
not, with this encumbrance, represent its agent's employ-
ees. The employer-agent, in this case Respondent, was
under a duty, when confronted with a situation where it
was called upon to recognize or bargain with a union
which was in effect, its principal, to cease bargaining and
U The Board cited with approval Nassau & Suffoik Contractors .4ssoc-
anion, lc. , 118 NL.RB 174. 187 (1'57). a case which involved supervisory
participation on the union side of the bargaining table In .Vassau, the
Board found that. where an employer dealt with a union negotiating
committee which included its own agents and thus acquiesced in such an
arrangement. the employer "interfered with the administration of the
Lnion" in siolation or Sec 8(a)(2) and I ) of the Acl
48X9
DECISIONS OF NATIONALI LABOR RELATIONS BOARD
withdraw recognition. Respondent's failure to do so re-
sulted in a violation of Section 8(a)(2) and (I) of the Act.
The Union herein is represented in labor and other
legal matters by Respondent. In these matters Respond-
ent is its agent. Both the Union and Respondent regard
Respondent as the Union's lawyer. Respondent's contin-
ued representation of the Union in labor matters and
other areas of law gives Respondent the authority, as
agent for the Union, to influence the Union in a broad
range of matters, including the makeup of the Union's of-
ficers, its financial dealings, and the legality of its charter
and bylaws. Such representation and influence necessar-
ily infringes on the Union's capacity to treat Respondent
as an adversary in advancing the interests of the employ-
ees it represents.
Respondent's representation of the Union as described
above presents an inherent conflict of interest. The
Union sits across the bargaining table from its agent and
Respondent sits across from its principal. The tendency
of each to compromise its position based on the view
that their agency or business relationship is more impor-
tant than their separate interests is too great a risk to
sanction when applying the Act to their relationship.
Such a compromise would sacrifice the interests of the
employees either because the Union might succumb to
the wishes or needs of its agent, the Employer, rather
than the employees it represents, or because the Employ-
er, the Union's law firm and agent, has such a control or
influence over the Union's affairs, in terms of the legal
advice it might give or refrain from giving, that the lat-
ter's freedom to fully press for benefits and concessions
from the Employer would be inhibited. As in the con-
flict-of-interest cases discussed above, the Employer
herein is so closely connected to the Union seeking to
represent its employees that the Union cannot approach
the bargaining table "with the single-minded purpose of
protecting and advancing the interests of the employees
who have selected it as their bargaining agent." Bausch
& Lomb, supra. Surely a union which retains the employ-
er as its lawyer in labor matters is as infected with the
same or greater conflicts of interest as the union which
controls the board of directors of an employer with
whom it bargains or which bargains through a supervisor
of the employer. Thus, the act of recognition and bar-
gaining with such an encumbered union is violative of
Section 8(a)(2) and (1) of the Act.
Respondent asserts that it did not represent the Union
in bargaining unit matters because such representation
would have involved a clear conflict of interest under
the Canons of Ethics. Although there is no evidence that
Respondent filed an appearance on the Union's behalf or
prepared memoranda or otherwise billed the Union for
its time or advice on bargaining unit matters, this does
not diminish the conflict of interest presented by Re-
spondent's continued role, specifically acknowledged by
Kaplan and Lavecchia, as the Union's counsel as a gen-
eral matter. It would be naive to believe that Respond-
ent's role as the Union's counsel has no influence upon
the parties' dealings with each other in bargaining unit
matters simply because no court appearances or billable
counseling is provided in bargaining unit matters. Such a
clear distinction in the role of Respondent as the Union's
counsel is neither realistic nor established in this record.
There is no evidence, for example, that the Union con-
sulted independent counsel during collective-bargaining
negotiations or other encounters with Respondent as em-
ployer before an actual case or grievance arose. The
record is silent on the issue of who drafted the collec-
tive-bargaining agreement, but it is likely that one of Re-
spondent's lawyers-who was also the Union's lawyer-
did so. And there was no evidence of a specific restraint
or disclaimer in the parties' attorney-client relationship
concerning representation of the Union in bargaining
unit matters. In these circumstances, it would be natural
for the Union to regard Respondent as its law firm in
bargaining unit matters, as in all labor matters, notwith-
standing that no specific case or dispute arose in which
Respondent would be called upon to act as counsel. '0
In short, both the bargaining relationship and the at-
torney-client relationship exists side by side at all times.
The losers are apt to be the employees who are repre-
sented by the client-union.
Concrete examples of the conflict-of-interest problems
inherent in the relationship of the Union and Respondent
are presented on this record. When the Dranow dispute
first surfaced, the Union made no immediate effort to
obtain independent counsel. It clearly considered Re-
spondent as its counsel, as Lavecchia bluntly stated to
the Board agent investigating the Dranow charges. The
union membership actually voted to retain Respondent as
its counsel. After the initial charge, subsequent allega-
tions were made concerning Respondent's discrimination
against Dranow. At this point Respondent's interests
were incompatible with those of its client, the Union.
After her discharge, the Union had a duty to represent
Dranow in her dispute with Respondent. Lavecchia con-
sulted with Kaplan and apparently another lawyer with
Respondent. They suggested that his election victory
over Dranow was valid and that he should answer ques-
tions from the Board agent only in written form and in
advance. Attorney Kaplan's letter to the Union, as well
as his frank testimony indicating a discomfort in serving
the Union as counsel as the Dranow case developed, re-
veals the dilemma posed when a law firm's role as an
employer clashes with its role as counsel to its own em-
ployees' union. Although Respondent did eventually
withdraw as the Union's counsel, the question of wheth-
er and when the law firm employer was to remove itself
from such a conflict remained in the hands of the law
firm, here, Respondent. Employees are not likely to
obtain the benefits of an uninhibited bargaining repre-
sentative when it passively acquiesces in the determina-
tion of the employer-its lawyer and agent-as to
whether and when a conflict of interest arises. As aptly
pointed out in the General Counsel's brief, it is not often
clear when a possible conflict of interest arises and the
union, as client, is often unable, because of a natural reli-
ance on its counsel, to determine the existence or the
extent of a conflict of interest. Another example in this
" I regard implausible and unpersuasive the suggestion in Lavecchia's
testimliny that his reliance on friends in the labor field for advice on
labor relations maltters provided a sufficienl barrier against the potential
for compronising employee inleresis
490
KAPLAN, SICKING, HESSEN, ETC.
record of conflict-of-interest problems is presented by
Respondent's role in resolving the status of the leading
Union spokesperson, President Lavecchia. When his eli-
gibility for union president was challenged by Dranow,
Respondent gave an opinion-in letter form-that La-
vecchia was not a supervisor and therefore eligible to
run for office. There is a real question whether Respond-
ent was acting as an employer or the Union's counsel in
giving what was obviously a legal opinion. I '
The tendency of such conflicts and ambiguities to
impact upon the relationship between a bargaining repre-
sentative and an employer necessarily diminishes the
focus and attention the former gives to the employees it
is charged with representing. Accordingly, I find that
the Union is not qualified to represent Respondent's em-
ployees. By recognizing and bargaining and entering into
and enforcing a contract with the Union, Respondent
violated Section 8(a)(2) and (I) of the Act.' 2
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and the Board may properly
assert jurisdiction over Respondent.
2. The Union is not competent or qualified to act as
collective-bargaining representative of Respondent's em-
ployees.
3. By recognizing, bargaining with, and entering into
and enforcing a collective-bargaining agreement with the
Union, which is not legally competent to represent its
employees, Respondent has violated Section 8(a)(2) and
(I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend a cease-and-
desist order and affirmative remedies consistent with St.
Louis Labor Health Institute, supra. 13
" No contention was made by the General Counsel that Lavecchia
was a supervisor and the issue was not litigated
12 In view of my disposition of the case, I do not specifically pass on
the General Counsel's complaint allegation that Respondent has violated
the Act by serving as legal counsel to the Union. I do not view this alle-
gation as being separate and distinct from the allegation that Respondent
recognized and bargained with an incompetent union which was also part
of the complaint and which I have found was sustained I do note, how-
ever, that, in support of its "legal counsel" theory, the General Counsel
relies oil a number of cases-some involving interference, some domina-
tion-which hold that depending on all the circumstances, an employer's
advice to a labor organization concerning an attorney or other matters
may constitute evidence of unlawful assistance. Those cases are distin-
guishable because this case was not heard on a broad interference or
domination theory. It is well settled that an employer who deals at arm's
length with a lawfully established bargaining representative may provside
some kinds of assistance simply as a result of "friendly cooperation grow-
ing out of an amicable labor-management relationship." Dequesne Univer-
irty of the Holy Ghosi, 198 NLRB 891 (1972)
i:' Once the encumbrance of being represented by an unqualified union
is removed, the employees may operate from a clean slate They may
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER' 4
The Respondent, Kaplan, Sicking, Hessen, Sugarman,
Rosenthal & Zientz, Miami, Florida, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing or bargaining with the Union as the
exclusive collective-bargaining agent of any of its em-
ployees so long as it represents the Union as a client.
(b) Maintaining or giving any force or effect to any
collective-bargaining agreement, oral or written, with the
Union, provided that nothing in this Order shall require
Respondent to rescind, vary, or abandon any wages,
hours, seniority, or other substantive feature of its rela-
tions with its employees established pursuant to any con-
tract, agreement, or understanding, or to prejudice the
assertion by the employees of any rights acquired by
them thereunder.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essarily to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the
Union as the exclusive collective-bargaining representa-
tive of its employees.
(b) Post at its premises in Miami and West Palm
Beach, Florida, copies of the attached notice marked
"Appendix." 's Copies of said notice, on forms provided
by the Regional Director for Region 12, after being duly
signed by its authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
choose or reject a bargaining representative which is not intimately in-
volved with the Employer
i4 In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
'' In the esent that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant To A Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "131l(c Notify the Regional
Director for Region 12, in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply herew ith
491