Stroock & Stroock & Lavan

National Labor Relations Board - Board Decisions

Nov 21, 1980

253 N.L.R.B. 447 (N.L.R.B. 1980)

STROOCK & STROOCK & LAVAN
Stroock & Stroock & Lavan, and District 65, Inter-
national Union of Automobile, Aerospace &
Farm Implement Workers,' Petitioner. Case 2-
RC-18503
November 21, 1980
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS JENKINS, PEN I 0, AND
TRUISID)AI.E
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officers David A.
Kapelman, Mary W. Taylor, and Richard A. Ross.
Subsequently, pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, the Regional Director for Region 2
transferred this proceeding to the Board for deci-
sion. Thereafter, the Petitioner and Employer filed
briefs with the Board which have been duly con-
sidered. 2
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 Officers'
rulings made at the hearing and finds that they are
free from prejudicial error. 3 They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Employer is a law firm with offices at 61
Broadway and 277 Park Avenue, New York, New
York, as well as in other cities, engaged in the gen-
eral practice of law. The law firm employs ap-
proximately 101 attorneys, 23 paralegals, and 126
clerical and support staff. The record evidences
that Stroock & Stroock was to merge, effective
January 1, 1980, with Krause, Hirsch & Gross, lo-
cated at 41 East 42d Street, whose law practice is
substantially similar to Stroock & Stroock's general
commercial practice. Krause's personnel consists of
approximately 15 attorneys, 2 paralegals, and 31
clerical and support staff.
i The name of the Petitioner appears as amended at the hearing
2 The Employer requested oral argument This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
3 At the hearing the Employer moved for a reexamination of the Peti-
tioner's showing of interest on the grounds that authorization cards
signed prior to August 21. 1979, when District 65 affiliated with the
UAW. were invalid as an indication of the subscribers' desires to be rep
resented by the Petitioner. The motion, referred to the Regional D)irec-
lor, was properly denied Gneral Dvnumici Corporarion. (onvair Aero-
.space Division. San Diego Operations. 213 NLRIH 51 (1974)
253 NLRB No. 52
The Petitioner seeks to represent the Employer's
clerical and support staff at 61 Broadway and 277
Park Avenue.
In Kleinberg, Kaplan, Wolff Cohen & Burrows,
P.C, 253 NLRB No. 54 (1980), issued this day, we
reaffirmed our decision in Foley, Hoag & Eliot, 229
NLRB 456 (1977), to assert jurisdiction over law
firms generally. The parties have stipulated, and
we find, that the Employer has gross annual rev-
enues in excess of $250,000, and annually purchases
goods valued in excess of $50,000 from firms locat-
ed outside the State of New York. Accordingly,
we find that the Employer is engaged in commerce
within the meaning of the Act, and that it will ef-
fectuate the purposes of the Act to assert jurisdic-
tion herein.4
2. The parties have stipulated, and we find, that
District 65, International Union of Automobile,
Aerospace & Farm Implement Workers, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The labor organization involved claims to rep-
resent certain employees of the Employer.5
4. A question affecting commerce exists concern-
ing the representation of employees of the Employ-
er within the meaning of Sections 9(c)(1) and 2(6)
and (7) of the Act.
5. The Employer argues that, because of its al-
legedly active involvement in labor matters, repre-
sentation of its employees by the Petitioner would
inevitably lead to damaging leaks of client confi-
dences, and that, in any event, because of the
nature of its practice, all of its clerical and support
staff are confidential employees.
We have today, in Kleinberg, Kaplan, supra, dis-
cussed our reasons for continuing to define confi-
dential employees as those who "assist and act in a
confidential capacity to persons who formulate, de-
termine, and effectuate management policies in the
field of labor relations," The B. F. Goodrich Compa-
ny, 115 NLRB 722, 724 (1956), "for their own em-
ployer, not some other employer." Dun & Brad-
street, 240 NLRB 162 (1979). We are not persuaded
that the circumstances warrant distinguishing the
instant Employer from Kleinberg, Kaplan.
4 The Employer contends that its practice in labor relations, as well as
in corporate and commercial fields which allegedly address labor consid-
erations. qualifies it for special exemption under blebv. Hoag & Eliot, 229
NlRB 456, 457, fn. 12 (1977\ We do not believe that the Employer has
met its burden to justify departure from the general principle that law
firms' employees will not be treated differently from other groups of em-
ployees Further. we find that evidence of corporate and commercial
practice is irrelevant to establish a basis fr Ireating a particular law firm
differently from law firms generally
An additional argument asserted by the Employer is that this Peti-
tioner is unsuited to represent these employees because of its affiliation
with an International union of general jurisdiction. As in Kleinberg.
Kaplan. upra. we find that the evidence does not warrant depriving these
employee, of their right to choose this Petitioner a their representative
447
I)ECISIONS OF NA I()NAL L.AB()R RELATIONS BOAkI)
6. In addition, the Employer contends that the
unit sought is inappropriate, arguing that it should
include the clerical and support staff at 41 East 42d
Street, paralegals at 61 Broadway and 41 East 42d
Street, and executive committee secretaries.
The parties stipulated that the appropriate unit
included the 61 Broadway and 277 Park Avenue
offices. In addition, it was stipulated that, with the
exception of the librarian at 41 East 42d Street, the
various categories of employees at the 42d Street
operation perform the same functions as their coun-
terparts at the Employer's other locations. The Pe-
titioner, however, would not stipulate that the em-
ployees at Krause's offices at 41 East 42d Street
should be included in the unit.
We note, in addition to the stipulation regarding
similar functions, that the merger was to be effect-
ed by physically moving the Krause employees
into the 61 Broadway location, and that these em-
ployees would be incorporated into the Stroock &
Stroock personnel structure and receive the bene-
fits enjoyed by the other clerical and support staff.
Consequently, we find that the Krause employees,
who were to be absorbed into the 61 Broadway
operations, share a community of interest with the
clerical and support staff at the 61 Broadway and
277 Park Avenue offices, and therefore include
them in the unit found appropriate.6
The Employer also urges that paralegals be in-
cluded because their functions are primarily cleri-
cal and routine, and their hours and benefits are the
same as the clerical and support staff. The Petition-
er opposes the inclusion of paralegals, asserting
that they are technical employees and that, in any
event, they do not share a community of interest
with the clerical and support staff.
The record does reveal that the paralegals and
the clerical and support staff do share common
working hours and fringe benefits, and that, to
some extent, they have similar duties (e.g., dupli-
cating, filing, and proofreading of documents).
However, the record further shows that the parale-
gals' duties also require analytic skills, such as di-
gesting transcripts and organizing documents in
preparation for litigation. The supervisory structure
for the clerical and support staff, for which Direc-
tor of Administration Samberg is responsible, dif-
fers from that of paralegals, who are supervised by
department. Paralegals have secretaries and evalu-
I We also include Krause's librarian in the unit. We note that, ill addi-
tion to shelving boxxks, as do the librarians at 61 Broadway, he will re-
ceive the identical benefits that the clerical and support staff, including
librarians, enjo) In fact, the Petitioner's refusal to stipulate that the
duties of the librarian at 41 East 42d Street were the same as the librar-
ians at 61 roadway was premised on the possibility that the duties of the
latter were more sophisticated Therefore, because we include the lihrar-
ians at 61 Broadway in the unit, see fn 8, infra, we shall also include the
Krause librarian
ate them. Although the record discloses that cleri-
cals have become paralegals, this happens infre-
quently. and there is no evidence of daily inter-
change between clericals and paralegals. The Em-
ployer bills clients for the time of paralegals in the
same manner it bills for attorneys' time. Finally,
the Employer's recruiting solicitations, as well as
the paralegals themselves, treat the position as
preparation for law school. We conclude that the
facts of this case illustrate that these paralegals pos-
sess a sufficiently distinct community of interest
from that of the clerical and support staff so as not
to compel their inclusion in the petitioned-for
unit. 7
Finally, the Employer argues that secretaries to
the firm's executive committee are not confidential
employees and should be included in the unit. The
Petitioner counters that the Employer must have
some confidential employees, that the executive
committee members must formulate the firm's labor
policies, that the record is barren as to the duties of
the individuals who are committee secretaries, and
that therefore these employees should be voted
under challenge.
The record is unclear that the executive commit-
tee actually formulates, determines, and effectuates
labor policies. However, the record does definitive-
ly establish that when the executive committee
does consider labor policies or decisions of the
firm, no clerical employees are present and no min-
utes are recorded. Thus, it is apparent that the ex-
ecutive committee secretaries do not assist or act in
a confidential capacity to the executive committee
members and therefore cannot be confidential em-
ployees as that term is defined in The B. F. Good-
rich Company, 115 NLRB 722 (1956). We shall in-
clude executive committee secretaries in the unit
found appropriate."
Accordingly, we find that the following employ-
ees constitute an appropriate unit for the purpose
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:9
' Although not determinative, a petitioner's desires as tii the unit is
always a relevant cnsideration Marks Oxrygen Comnpany of .llbuma, 147
NlRB 228, 230 (1964) We note that in Ohio Staiu Legal Service. 239
NLR 594 (1978), and :eighborhood Legal Servicev, In.. 236 Nl RB 1269
( 197) relihcd in by the Employer. none of the parties urged the exclu-
sion of parlegals fronm the petititioned-for unit.
t "he Petitioner also asserts that the record is insufficieni to determine
the unit placement of two librarians at the Employer's 61 Broadway of-
ficcs W'e do not agree he two librarians share the same working hours
and enjoy the same benefits with the clerical and support staff, and per-
form clerical functions similar to those performed by other support staff
employees There is no evidence which would justifN treating either cm-
ployce as a professional We shall include the two librarians in question in
the unit found appropriate
'l he status of the following employees cannot be resolved on he
record now before us: William Arroyo (the assistant mailroom supervi-
Continued
44X
STROO()CK & STROOCK & LAVAN
All full-time and regular part-time office em-
ployees including secretaries, executive com-
mittee secretaries, bookkeeping employees.
word processing employees, duplicating room
employees, file room employees, mail room
employees, court messengers, time records em-
ployees, switchboard operators, receptionists,
librarians, and docket clerks employed at the
Employer's 61 Broadway and 277 Park
%or) and Linda Cart righl (the sislstant uperx oor of the unord priocess
ing department), alleged supervisors. and the employee in the position of
recruiting officer. Therefore. we will allow these employees to vote
under challenge
Avenue offices, and at 41 East 42nd Street,
who were to be moved to 61 Broadway, New
York, New York, but excluding professionals,
paralegals, supervisors, managerial employees,
confidential employees, and guards excluded
by the Act.
[Direction of Election' ° and Excelsior footnote
omitted from publication.]
"' As the unit found appropriate hereti is larger than that requeted.
the Petitioner is accorded a period o(f 10 days in which to suhmit the req-
uisite shosing of interest to sutipport all election herein In the event the
Pelitloner does not sish to proceed nith an election herein. it may v ith-
draw its petition %without prejudice hb notice to the Regillial Directlor
within 7 days from the date of his Decision
449