Legal Services For The Elderly Poor

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- 71d. 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