Stroock & Stroock & Lavan

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