Legal Services For The Elderly Poor

National Labor Relations Board - Board Decisions

May 26, 1978

236 N.L.R.B. 485 (N.L.R.B. 1978)

LEGAL SERVICES FOR THE ELDERLY POOR
Legal Services for the Elderly Poor and Jane GC. Ste-
vens, Petitioner, and Elizabeth Melendez, Peti-
tioner. Cases 2-RC-17727 and 2-RC-17728
May 26, 1978
DECISION AND DIRECTION OF ELECTIONS
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND MURPHY
Upon separate petitions duly filed under Section
9(c) of the National Labor Relations Act, as
amended, a consolidated hearing was held before
Hearing Officer Carole Sobin of the National Labor
Relations Board. Subsequently, pursuant to Section
102.67 of the National Labor Relations Board's
Rules and Regulations, Series 8, as amended, the Re-
gional Director for Region 2 transferred this pro-
ceeding to the Board for decision. Thereafter, the Pe-
titioners and both Intervenors, Legal Services Staff
Association (hereinafter referred to as LSSA) and
Community Action Legal Services (hereinafter re-
ferred to as CALS), filed briefs with the Board which
have been duly considered.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The parties have stipulated and we find that Le-
gal Services Staff Association is a labor organization
within the meaning of Section 2(5) of the Act.
2. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.'
3. The definition of "labor organization" in the
Act is broad enough to include an individual repre-
sentative. Accordingly, we find that the Petitioners
herein are labor organizations within the meaning of
the Act.2 See The Grand Union Companly, 123 NLRB
1665, 1666-67 (1959).
4. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
5. Each Petitioner in these consolidated cases
seeks to represent a unit of employees employed by
Wayne County Neighborhood Legal Serices. Inc., 229 NLRB 1023 (1977i.
2 The Petitioners' status was not disputed
Legal Services for the Elderly Poor (hereinafter re-
ferred to as LSEP). LSSA, an organization claiming
to represent employees of CALS, intervened in these
actions, asserting that elections in these cases are
barred by the contract existing between CALS and
LSSA and that the Board should grant comity to an
earlier election conducted by the Office of Collective
Bargaining of the City of New York (hereinafter re-
ferred to as OCB). CALS intervened in this action
asserting that the units sought are inappropriate as
the only appropriate units are CALS-wide units in-
cluding the employees of LSEP.'
LSEP was established in 1969 pursuant to a grant
from the Community Action Branch of the Office of
Economic Opportunity to the National Council of
Senior Citizens and 12 subgroups, including the Cen-
ter for Social Welfare Policy and Law. The Center
established LSEP to provide legal services for the
elderly poor in New York and throughout the coun-
try. The National Council of Senior Citizens subse-
quently ceased operations and the Center began to
receive funds directly from the legal services compo-
nent of the Office of Economic Opportunity. In 1971,
Jonathan A. Weiss, the program director of LSEP,
removed LSEP from the Center, and the Presbyte-
rian Senior Services (hereinafter PSS) became the
funding conduit for LSEP's grant.
In 1974. when the Legal Services Corporation was
established by Congress, the Green Amendment to
the enabling legislation threatened the existence of
"backup" centers such as LSEP. The regional office
of the Community Services Administration decided
to protect the existence of LSEP by switching its
funding conduit from PSS to CALS.
CALS is a nonprofit corporation which is funded
by the Legal Services Corporation. CALS' primary
function is to distribute Federal funds in order to
support various neighborhood legal services pro-
grams in the New York City area. CALS is composed
primarily of "delegate corporations," separately in-
corporated but reporting to a central CALS staff,
and an overall CALS board of directors. The author-
ity of CALS vis-a-vis its delegate corporations is set
forth in contracts between the delegates and CALS.
These contracts specify the operating characteristics
of the CALS' programs, the distribution of money,
and the responsibility of project directors.
In October 18, 1973, prior to LSEP's affiliation
with CALS, an election was conducted by the OCB
among all CALS' employees,4 in a combined unit of
professionals and nonprofessionals, at which time a
'Specifically. CALS argues that the only appropriate units would consist
of three separate groups of employees: professional, technical, and clerical
employees employed by its delegate or affiliated organizations.
In referring to "CALS' employees., we mean those employed by the
Con rin ued
236 NLRB No. 44
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of those employees chose to be represented
by LSSA. On October 29, 1973, a certification was
issued by OCB. Thereafter, the parties entered into a
stipulation which led to a September 9, 1974, modifi-
cation of the OCB certification. The certification, as
modified, listed as included in the unit the employees
of the seven then existing delegate corporations
which functioned under the CALS' umbrella at that
time. It did not include LSEP, since it affiliated later.
On March 18, 1975, CALS and LSSA entered into
a collective-bargaining agreement which was made
retroactive to October 1, 1974. The contract stated
that the unit covered therein was the certified unit. In
December 1976, when the agreement of March 18,
1975, expired, LSSA negotiated a new contract with
CALS still listing the certified unit as the contract
unit. This contract contained an agency shop provi-
sion. On February 18, 1977, the president of LSSA
wrote to the LSEP office, requesting that the attor-
neys of LSEP pay dues pursuant to the agency shop
provision of the newly negotiated contract. LSEP at-
torneys refused to pay any union assessment, con-
tending that LSEP employees were not covered by
the LSSA-CALS contract. LSSA responded by de-
manding that CALS terminate these attorneys for
their failure to comply with the agency shop provi-
sion.5
On July 28, 1977, Jane G. Stevens, an attorney in
the LSEP office, filed the petition in Case 2-RC-
17727, seeking a unit of all LSEP attorneys. On the
same day, Elizabeth Melendez, a secretary, filed the
petition in Case 2-RC-17728 seeking a unit of all
LSEP clerical employees. On July 29, 1977, the Re-
gional Director consolidated the two proceedings,
and ordered that a hearing be conducted to de-
termine the issues raised by the petitions.
Our initial consideration is directed to LSSA's con-
tention that the employees of LSEP accreted to the
already existing systemwide CALS bargaining unit
and that the petitions are barred by the existing
agreement between CALS and LSSA.
Employees that have been accreted to an existing
unit are not entitled to an opportunity to determine
whether they wish to be represented by the contrac-
tual bargaining representative. 6 However, in view of
the right guaranteed employees under Section 7 of
the Act, the doctrine of accretion has been narrowly
construed. Indeed, the Board has said, "We will not
. . .under the guise of accretion, compel a group of
employees, who may constitute a separate appropri-
delegate organizations of CALS who undisputedly are covered by the
LSSA-CAI.S contract.
No one was in fact terminated.
6 Melber Jewelri (Co., Inc., and I.D.S. Orchard Park, Inc., 180 NLRB 107.
109 ( 1969).
ate unit, to be included in an overall unit without
allowing those employees the opportunity of express-
ing their preference in a secret election or by some
other evidence that they wish to authorize the Union
to represent them." 7 Thus, the Board closely scruti-
nizes these types of cases to prevent the inclusion of
employees in an existing unit by way of accretion at
the expense of their right to choose their collective-
bargaining representative.
We find that the employees of LSEP are not an
accretion to the already existing bargaining unit of
CALS' employees by virtue of LSEP's affiliation with
CALS or by any other subsequent action. Certainly,
nothing in the bargaining history demonstrates that
there has been an accretion. Both the election and
initial certification concerning the CALS bargaining
unit occurred a year prior to the commencement of
LSEP's affiliation with CALS. Obviously, therefore,
LSEP's employees were not involved in the election
or included in that certification. Nor were they in-
cluded in the subsequent modification and amend-
ment of the certification, because that too occurred
prior to LSEP's affiliation with CALS. Although bar-
gaining for the initial agreement covering the certi-
fied unit took place subsequent to LSEP's affiliation
with CALS, there is nothing to indicate that any of
the parties treated the LSEP employees as part of the
unit during the bargaining which led to that agree-
ment.8 And in neither the initial nor the subsequent
agreement does the contract unit refer to the LSEP
employees. The contract refers only to the employees
of CALS' delegate corporations and the assistant
general counsel of CALS admitted that LSEP is not a
delegate corporation but is, instead, an affiliate of
CALS.
As to the matter of whether the contracts were ap-
plied to LSEP's employees, LSSA contends that all
the conditions of employment of those employees are
controlled by either LSSA's collective-bargaining
agreement with CALS or the CALS' personnel man-
ual. 9 We find no merit in this contention. According
to the testimony of its program director, Weiss, LSEP
retains complete autonomy over the terms and con-
ditions of employment of its employees including, in-
ter alia, hiring, firing, discipline, wages, and hours.
Furthermore, the record reveals substantial differ-
7
1d. at 110.
5 The director of LSEP did attend a number of CALS' executive council
meetings at which questions of collective bargaining and labor relations
were discussed during negotiations for the new CALS-LSSA contract. That
alone, however, is insufficient to warrant a finding that LSEP's employees
were treated as having been added to the bargaining unit.
9 CALS utilizes a personnel manual to establish uniform policy for the
employees of its delegate corporations. The terms and conditions of employ-
ment listed in this manual are uniform as to vacations, sick leave, and job
classifications. These working conditions. LSSA contends, reflect the
CALS LSSA contract.
486
LEGAL SERVICES FOR THE ELDERLY POOR
ences between conditions of employment applicable
to LSEP's employees and those applicable to CALS'
employees. Thus, the parties agree that the employ-
ees of LSEP are paid a higher salary than the em-
ployees of CALS and that all but three of the
former's employees are subject to a separate health
insurance agreements In addition, an unspecified
number of LSEP's employees are covered by a retire-
ment plan which predates LSEP's agreement with
CALS." Finally, there is no indication that LSEP fol-
lows other LSSA-CALS contract terms covering
such matters as holidays, sick leave, grievances, or
seniority.
Under these circumstances, we find that LSEP is
not obligated to, and in practice does not, apply, the
terms and conditions of employment specified in the
CALS-LSSA contract. Thus, whatever similarity
may exist between the hours, pay and other benefits
set forth in said agreement and those received by the
employees of LSEP appears to be attributable to
LSEP's attempt to maintain a salary and fringe bene-
fit scale for its employees comparable to that estab-
lished for other organizations funded through CALS.
LSSA does not point to anything else which would
warrant a finding that the LSEP employees have
been accreted to the CALS' certified unit. Therefore,
because the employees of LSEP have never been
treated as part of such bargaining unit, either during
bargaining or during the terms of the contracts, we
find that they have not been accreted to the existing
CALS bargaining unit and, thus, are not part of the
unit represented by LSSA.'2 Accordingly, the agree-
ment between LSSA and CALS does not bar an elec-
tion at LSEP.
Our next consideration is directed to whether the
LSEP employees can constitute separate appropriate
units for purposes of collective bargaining as con-
tended by Petitioners, or whether such employees
lack those identifying characteristics warranting sep-
arate representation." CALS contends that the units
petitioned for are inappropriate in light of the cen-
tralization of management, the geographic location
of the various legal services programs, and the simi-
larity in skills and functions of those who work with
,0 The remaining three are covered bh the CALS plan
t That some LSEP employees are cosered h) a separate retirement s/s-
tem is perhaps partially explained, gisen the nature of retirement plans b)
the fact that the) were under that plan at the time of the affiliation tHOH-
ever, there is no explanation, as to why they are not presently covered bh the
LSSA (CALS health insurance agreement
12 In ,iew of our determination that no accretion exists, we do} not reach
the question of whether we would grant comit' to the 1973 certlficatlon of
the CALS LSSA unit bh the OCB
13 LSEP employees are not the only employees iof a CALS affiliate C.ho
are not covered by the LSSA CALS contract. The employees of the Legal
Aid Society another separate affiliate agency In the (CALS system. are spe-
cificall, excluded from that contract.
those programs. CALS further argues that only insti-
tutionwide units including employees at all of the le-
gal services programs funded by CALS are appropri-
ate.
As noted previously. LSEP retains control over all
terms and conditions of employment applicable to its
employees. CALS' control is limited to the fiscal ad-
ministration of the funds LSEP receives from the Le-
gal Services Corporation. Although LSEP's attorneys
must be interviewed ("rostered") and approved by
CALS before CALS will approve funds for their hire,
LSEP is free to hire attorneys directly and avoid sub-
jecting them as applicants to the CALS screening
process by paying their salaries out of non-CALS
funds. Further, CALS has never discharged or disci-
plined an employee of LSEP. We thus reject CALS'
contention that it exercises centralized control over
the employment relationship of LSEP's employees.
We also find that separate units of LSEP's employ-
ees are not rendered inappropriate based on LSEP's
geographic proximity to other CALS-related organi-
zations or the alleged overlap in functions between
LSEP's and CALS' employees. The geographic factor
alone does not mandate a finding that the petitioned-
for units cannot constitute separate appropriate
units; and any overlap in function between the em-
ployees of LSEP and CALS' delegate organizations is
insignificant in extent and nature. Thus, LSEP spe-
cializes in "large impact" litigation and conducts
training sessions on a national basis. Approximately
35 to 50 percent of LSEP's litigation is conducted
outside the city of New York. LSEP's attorneys also
publish articles and make television and radio ap-
pearances in their efforts to provide information to
the public. LSEP also limits its operation to issues
involving the elderly. In contrast, the delegate orga-
nizations of CALS are engaged exclusively in giving
local neighborhood legal assistance to the poor at
large, albeit at times these organizations, on matters
affecting their elderly clients, seek advice from
LSEP. Consequently, we conclude that LSEP and its
employees operate and function in a different man-
ner than the delegate organizations of CALS.
We further find that the LSEP employees consti-
tute identifiable units which do not share a commu-
nity of interest with CALS' employees. Thus, many
of L.SEP's employees receive higher wages than those
of CALS and receive fringe benefits largely distinc-
tive from them. Further, although there is some con-
tact between employees of the CALS delegate orga-
nizations and LSEP's, there is no interchange of
employees between these different groups. Finally, as
discussed supra, there is no common history of bar-
gaining between the LSEP employees and the CALS
employees.
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, LSEP's employees constitute separate
identifiable groups with unique functions who work
under different working conditions than the employ-
ees employed by the delegate organizations of CALS
who are covered by the LSSA-CALS agreement. Ac-
cordingly, we find that the petitioned-for units of
LSEP employees, as described below, constitute ap-
propriate units for the purpose of collective bargain-
ing and we shall direct elections therein.' 4
On the basis of the foregoing, we find that the fol-
lowing employees of the Employer constitute units
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act: 15
14 LSSA has not indicated whether it wishes to be on the ballot in either
Case 2-RC-17727 or Case 2-RC 17728. However, in view of the fact that it
intervened and claimed to represent those employees, we have included it
on the ballot. If LSSA wishes, it may withdraw by notifying the Regional
Director for Region 2 within 10 days of this Decision of its desire to do so.
" There were four law students employed at LSEP at the time of hearing.
CALS, in its brief to the Board, contended that these law students should be
All full-time and permanent part-time clerical
employees, employed by Legal Services for the
Elderly Poor at New York, New York, excluding
temporary employees, professional employees,
law students, and supervisors as defined in the
Act.
All full-time and permanent part-time profes-
sional employees, employed by Legal Services
for the Elderly Poor at New York, New York,
excluding nonprofessional employees, law stu-
dents, temporary employees, and supervisors as
defined in the Act.
[Direction of Elections and Excelsior footnote omit-
ted from publication.]
included in a CALS-wide technical unit. Neither of the Petitioners seeks to
represent the law students. These law students do not meet the statutory
criteria for professional employees and do not possess a significant commu-
nity of interest with the clericals of LSEP. Based on the foregoing and the
fact that no party seeks to represent them in a separate unit, they are hereby
excluded from each unit.
488