H. Rubinstein (email@example.com)
is Senior Counsel to the New York State United Teachers, affiliated with the
American Federation of Teachers, National Education Association AFL-CIO in
New York City, and is an Adjunct Professor of Law at St. John’s Law School
and New York Law School. He received his B.S. degree from Cornell University
School of Industrial and Labor Relations and his J.D. degree from Hofstra
University School of Law. The views expressed in this article are entirely
the author’s, and may not necessarily represent the views of any
organization with which he is affiliated.
This article appeared originally in
the January 2007 issue of the New York State Bar Association Journal.
Interest in the law governing attorney
labor unions (and, for that matter, interest in an article on the subject)
is usually the result of one of two factors. The first is that unhappy staff
attorneys may be thinking about organizing and bargaining collectively. The
other is that their superiors in the firm or office may be worrying that
they are planning to do just that, and are intent on preventing it. This
article outlines certain key issues that can arise where attorneys attempt
to organize a union.
Attorneys may be interested in joining a
labor union for the same reasons as other employees.
Through a collective voice, attorneys may be able to achieve “more,”
which has always been the goal of organized labor. They might obtain more
wages, more benefits and, perhaps most importantly, more job security.
Unionization may also bring order to a law firm by imposing certain
job-related standards, such as hours of work. Violations could be grieved
under the collective bargaining agreement, just as in any workplace where a
union and a collective bargaining agreement exist.
Although there is relatively little
precedent or history in the area of attorney unions, the federal National
Labor Relations Board (NLRB or “Board”) has asserted jurisdiction over
law firms since 1977,
provided a firm has $250,000 in gross revenue.
The general process of establishing a union would be the same as it is for
employees in other fields.
There are instances where such
unionization has occurred without contest.
Many reported cases involving law firms actually concern support staff,
although there are those that also involve attorneys.
What if there is a contest? As a general
proposition, attorneys enjoy the same legal rights as other employees in
deciding whether or not they want to be represented by a union.
The employer’s or law firm’s desires are irrelevant. However,
attorney-employers are likely to raise certain points in opposition to
attorney unionism. They may argue that staff attorneys are not eligible to
unionize because they are either confidential employees, or supervisors, or
managerial employees. They might also claim that attorneys should not
organize because the ethics of the legal profession will impede the
collective bargaining process. Each of these is discussed in turn.
Exclusion of “Confidential
Employees in law firms and private
corporations, including attorneys, must be treated like any other employees
covered under the National Labor Relations Act (NLRA or the “Act”).
Thus, the Board has rejected attempts by some law firms to exclude attorneys
and other law firm employees from the definition of employee because they
are “confidential employees.”
Like many terms in labor law, the term
“confidential employee” is a term of art. A confidential employee has
nothing to do with the confidential nature of attorney work. Rather,
confidential employees are those involved in internal confidential labor
relations matters with respect to their employer. The focus is on the
attorney’s employer – not his or her clients.
The general rationale for the exclusion
of confidential employees from the definition of “employees,” who may
join a union, is as follows: management should not be forced to negotiate
with a union which has among its members employees with access to advance
information on the company’s collective bargaining negotiating position,
grievances and other labor relations matters.
The U.S. Supreme Court addressed this exclusion, however, in NLRB v.
Hendricks County Rural Electric Corp.
Under Hendricks, an individual claimed to be exempt on this basis
must work directly for and in a confidential capacity to a person who
decides and effectuates labor relations policy. As the Board later
The Board’s long-established
test for determining whether an employee possesses confidential status is
whether that employee “assist[s] and act[s] in a confidential capacity
to persons who formulate, determine, and effectuate management policies in
the field of labor relations.” This is termed the “labor nexus” test
and its validity as an appropriate measure of confidential status was
endorsed by the Supreme Court in NLRB v. Hendricks County Rural
Electric Corp., 454
U.S. 170 (1981). Under this definition it is insufficient that an employee
may on occasion have access to certain labor related or personnel type
information. What is contemplated instead is that a confidential employee
is involved in a close working relationship with an individual who decides
and effectuates management labor policy and is entrusted with decisions
and information regarding this policy before it is made known to those
affected by it.
Consequently, access to confidential
business information does not transform someone into a confidential
employee, since the standard is limited to those who act and assist in a
confidential capacity to persons who exercise managerial authority in labor
More recently, the Board seemed to narrow confidential employees to those
who “work on labor relations issues on a regular basis.”
Most law firm associates or staff
attorneys will not be confidential employees. This is because they are not
involved in labor issues involving the management of the firm for which they
“Supervisors” as Exempt Category
Perhaps the most significant hurdle with
respect to attorney unionization concerns the fact that many attorneys
supervise secretaries and other support staff, or even junior associates,
and thus might be considered “supervisors,” which would prevent them
from becoming a member of a union. The term “supervisor” is also a term
of art in labor law, and is often litigated. There has not been much
litigation with respect to attorneys, but there have been developments in
the law that must be considered in evaluating their status.
The burden of establishing that an
individual is a supervisor is on the party attempting to exclude such person
from the protection of the Act, and that party is typically the employer.
However, not every “order giver” qualifies – a traffic director might
tell the president of the company where to park, but that does not make him
or her a supervisor.
Additionally, the NLRA does not require that every work location have a
v. Health Care & Retirement
the Supreme Court described the appropriate test for supervisory status:
[T]he statute requires the
resolution of three questions; and each must be answered in the
affirmative if an employee is to be deemed a supervisor. First, does the
employee have the authority to engage in 1 of the 12 listed activities?
Second, does the exercise of that authority require “the use of
independent judgment”? Third, does the employee hold the authority “in
the interest of the employer”?
Significantly, an employee need only
possess one indicia of supervisory authority to be a supervisor.
However, this must always involve the exercise of independent judgment.
The Board has found that the exercise of judgment beyond regular or
customary activities, which is not controlled by outside sources, is
In Providence Hospital,
the NLRB held that certain nurses were not supervisors, reasoning:
[W]hen a professional gives
directions to other employees, those directions do not make the
professional a supervisor merely because the professional used judgment in
deciding what instructions to give. For example, designing a patient
treatment plan may involve substantial professional judgment, but may
result in wholly routine direction to the staff that implements that plan.
In NLRB v. Kentucky River Community
however, the U.S. Supreme Court largely rejected this analysis. The Court
seemed to be concerned with the Board’s “categorical exclusion” of
professional judgment. The Court did recognize that some nominally
supervisory judgments may be performed without a sufficient degree of
judgment or discretion, and thus would not warrant a finding of supervisory
status. Unfortunately, the Court did not further explain what it meant by
this, other than to state that “the degree of judgment . . . may be
reduced below the statutory threshold by detailed orders and regulations
issued by the employer.”
In dicta, the Court also indicated that the Board can distinguish
between employees who “direct the manner of others’ performance of
discrete tasks from employees who direct other employees.”
However, the Board has not appeared to distinguish supervisory status in
this exact manner.
On September 29, 2006, the NLRB issued a
trio of decisions designed to clarify what is meant by the terms
“assign,” “responsibly to direct” and “independent judgment” as
those terms are used in the definition of a supervisor in § 2(11) of the
These decisions, which the NLRB itself described as “major,”
are particularly applicable to attorney unionization because it is likely
that an employer may claim that the attorneys assign or responsibly direct
the work of others with the requisite independent judgment.
Oakwood Healthcare, Inc.
is the most important of the trio because the other two decisions simply
apply the law established in Oakwood.
In Oakwood, the
NLRB, divided along party lines, held that fulltime regularly employed
were supervisors within the meaning of the Act. In so holding, the Board
described the word “assign” as follows:
The ordinary meaning of the term
“assign” is “to appoint to a post or duty” . . . we construe the
term “assign” to refer to the act of designating an employee to a
place (such as a location, department, or wing), appointing an employee to
a time (such as a shift or overtime period), or giving significant overall
duties, i.e., tasks, to an employee. That is, the place, time and work of
an employee are part of his/her terms and conditions of employment. In the
health care setting, the term “assign” encompasses the charge
nurses’ responsibility to assign nurses and aides to particular
patients. It follows that the decision or effective recommendation to
affect one of these – place, time, or overall tasks – can be a
The assignment of an employee to
a certain department (e.g., housewares) or to a certain shift (e.g.,
night) or to certain significant overall tasks (e.g., restocking shelves)
would generally qualify as “assign” within our construction. However,
choosing the order in which the employee will perform discrete tasks
within those assignments (e.g., restocking toasters before coffeemakers)
would not be indicative of exercising the authority to “assign.” . . .
In sum, to “assign” for purposes of Section 2(11) refers to the charge
nurse’s designation of significant overall duties to an employee, not to
the charge nurse’s ad hoc instruction that the employee perform a
However, with respect to the term
“responsible direction,” the Board held that term may encompass ad hoc
instructions even though such instructions would not constitute an
assignment. Interestingly, the majority defined “responsible direction”
by responding to the dissent’s claim that such responsible direction
should be limited to actions undertaken by department heads or higher level
“responsibility to direct” is not limited to department heads as the
dissent suggests. . . . If a person on the shop floor has “men under
him,” and if that person decides “what job shall be undertaken next or
who shall do it,” that person is a supervisor, provided that the
direction is both “responsible” and carried out with independent
judgement. * * * [F]or direction to be “responsible,” the person
directing and performing the oversight of the employee must be accountable
for the performance of the task by the other, such that some adverse
consequence may befall the one providing the oversight if the tasks
performed by the employees are not performed properly. . . . Thus, . . .
it must be shown that the employer delegated to the putative supervisor
the authority to take corrective action, if necessary. It also must be
shown that there is a prospect of adverse consequences for the putative
supervisor if he/she does not take these steps.
Oakwood also confirmed that every
one of the 12 listed functions contained in § 2(11) must be done with
independent judgment for an individual to be a supervisor, and defined
independent judgment as follows:
Independent judgement means
“not subject to control by others.” . . . Thus, as a starting point,
to exercise “independent judgement” an individual must at minimum act,
or effectively recommend action, free of the control of others and form an
opinion or evaluation by discerning and comparing data.
[W]e find that a judgement is
not independent if it is dictated or controlled by detailed instructions,
whether set forth in company policies or rules, the verbal instructions of
a higher authority, or in the provisions of a collective-bargaining
In Golden Crest Healthcare Center,
a second case from the trio, the Board noted that there is a distinction
between requesting certain action and having the authority to require
certain action to be taken, such as mandating that employees stay late. For
an individual to be a supervisor, he or she must have the authority to take
In Croft Metals, Inc.,
the third case in the trio, the Board noted that a lead person occasionally
switching tasks that need to be performed is not a supervisory
“assignment” because that is similar to ad hoc instructions involving a
These definitions present obvious
difficulties in attempting to organize attorneys. However, these issues are
not unique to attorneys. In their dissent in Oakwood,
the two Democratic Board members, Wilma B. Liebman and Dennis P.
Walsh, stated that they feared that most professionals may be swept up into
supervisory status under the majority’s definition, which would be
contrary to the intent of Congress which recognized that professionals are
employees under the Act.
In one of the first cases decided after
the trio, the Board held that staff nurses were not supervisors.
This was largely because the testimony lacked specificity and was
conclusionary. Although, § 2(11) only requires that a supervisor have the
authority to carry out supervisory duties, the evidence must establish that
the purported supervisor actually has such authority.
It is important to recognize that the law
in this area of labor law is still developing.
Therefore, it is necessary to also examine some cases that were decided
before the trio. In Hospital General Menonita v. NLRB,
for example, the First Circuit held that an RN’s assignment of tasks to
LPNs and to technicians was not statutory supervision. The RN’s role in
assigning tasks was regulated by management protocol and by the
physician’s orders, which negated the need for any meaningful supervision.
“This is precisely what the Supreme Court meant when, in Kentucky
River, it indicated that discretion ‘may be reduced below the
supervisory threshold by detailed orders and regulations.’”
Some authority to assign, discipline and
hire is not considered statutory supervision if, as indicated above, those
responsibilities are considered routine, and do not require the exercise of
In one case, one employee occasionally notified other employees that they
must fill in for someone who was out, and initialed time cards and time-off
requests in the supervisor’s absence. That employee was not considered a
supervisor. The employee did not actually verify attendance, and signed off
on time-off requests as a routine matter; further, although the employee
participated in interviews for new hires, he did not make any independent
hiring recommendation. Rather, he discussed with more senior management
whether they should recommend that the person be hired.
Similarly, in Armstrong Machine Co.,
the Board held that a job repair foreman was not a supervisor. This was
because he did not exercise independent judgment in assigning work or in
addressing customer inquiries;
merely giving some instructions or minor orders to other employees does not
confer supervisory status on the employee in question. Only individuals with
“genuine management prerogatives” are considered supervisors.
Accordingly, merely reporting an incident
is insufficient to establish that an employee effectively recommended
The Board has also held that “program managers” who did not have the
authority to suspend or discharge “resident advisors” – even though
they had the authority to issue general counseling and verbal warnings as
part of a progressive discipline system – were not supervisors. The Board
viewed the managers’ role as “reportorial” because written warnings
had to be approved by higher management, and none of the verbal warnings
introduced into evidence referenced a prior verbal warning. The Board
concluded that the employer did not meet its burden of establishing that
“actual consequences flow from the documented verbal warnings.”
As one can see, determining whether an
employee is a supervisor is often difficult and can be the product of
litigation. Undoubtedly, some attorneys are indeed supervisors; however, it
is equally likely that many attorneys are not. Any such determination with
respect to attorneys or other employees needs to be examined on a
case-by-case basis, in accord with the law discussed above.
The “Managerial Employees”
Some attorney-employers may seek to argue
that attorneys cannot unionize because they are “managerial employees.”
The NLRA itself is silent with respect to the issue. However, the
legislative history of the 1947 amendments to the NLRA indicates that
Congress intended to exclude them from the definition of “employee”
under the Act.
The managerial exclusion is the product of case law developed by the NLRB
and U.S. Supreme Court.
Managerial employees are defined as those
who “formulate and effectuate management policies by expressing and making
operative decisions of their employer.” The central inquiry made by the
NLRB and the courts is whether the employee “represents management
interests by taking or recommending discretionary actions that effectively
control or implement employer policy.”
The party seeking to exclude employees as managerial has the burden of
After the Supreme Court’s decision in Bell
the Board on remand held that the employees at issue (buyers)
were not managerial employees. The Board, noting that the employees did not
exercise sufficient discretion to be aligned with management, relied upon
the fact that the employer had “comprehensive manuals and instructions,”
which limited the buyers’ discretion. The Board also explained that
managerial status is not conferred on rank-and-file workers or upon
employees who make routine decisions. Rather, managerial employees are those
who hold executive-type positions.
To be aligned with management, the
employee’s duties must be “outside the scope of duties routinely
performed by a similarly situated professional.” As the D.C. Circuit
explained: “The Supreme Court has made it clear that employees whose
decision making is limited to the routine discharge of professional duties
in projects to which they are assigned are not managers under the Act.”
Occasional advice to management does
not transform someone into a managerial employee, particularly where he or
she is simply providing information, or advising management. The critical
question is whether the employee could take “discretionary action” and
whether his or her recommendations “control or implement” company
The managerial exclusion is obviously
similar to the supervisory exclusion. However, the managerial exclusion can
pertain to executives who may or may not have direct supervisory
Thus, even if an employee is not a supervisor, he or she may still not be a
simple employee under the Act, but rather a manager. However, as with the
other categories of excluded employees discussed above, the facts of each
case must be carefully examined.
Staff physicians and dentists, without
more, are generally not managerial employees.
The same should hold true with respect to staff attorneys. As most staff
attorneys and associates are not involved in the management of the law firm
or company that employs them, most will not be considered to be
Attorney Professional Responsibilities
Attempts to disqualify attorneys and
others from organizing a union based on a perceived violation of
professional conduct have generally been rejected.
The Board has repeatedly rejected
arguments that lawyers’ professional responsibilities prevent them from
organizing a union.
The fact that attorneys are officers of the court is not a sufficient basis
for denying them the protections and benefits of the NLRA.
In fact, the Board interpreted EC 5-13 as specifically recognizing that
attorneys have the right to join unions.
Attorney ethical requirements need to be
distinguished from union conflict of interests – which may occur with
respect to attorney as well as non-attorney bargaining unit members.
In general, a union may not represent employees if a conflict of
interest exists on the part of the union, such that good-faith negotiations
between the employer and the union could be jeopardized. The burden of proof
is on the party making this claim, and it is a very heavy burden. It must be
shown that representation would cause an “innate danger” that the union
would bargain on behalf of its own interests rather than for the employees
whom the union seeks to represent. Such extreme situations generally arise
only where the union actually owns or controls a business enterprise in the
same industry as the employer, in direct competition with the employer.
A “conflict of interest” on the part of union-side law firm attorneys
representing unions has been rejected
as a basis for halting attorney unionizing activity.
While there is surprisingly little NLRB
precedent with regard to attorneys, they are no different from other
employees in the area of unionizing activity. If the attorney works in an
employment-at-will state such as New York, which provides virtually no
protection to employees, unionization may be a viable option to consider.
The reasons why partners and other legal managers want to avoid a union are
ultimately no different from those found in other industries, and union
organizers should keep this in mind.
If there is interest, the NLRB
maintains an excellent Web site which attorneys, unfamiliar with traditional
labor law, can visit and use.
This Web site contains links to cases, a representation manual and copies of
the requisite forms. Perhaps, unionization is something that attorneys might
want to consider.
A lawyer should not maintain
membership in or be influenced by any organization of employees that
undertakes to prescribe, direct, or suggest when or how to fulfill his
or her professional obligations to a person or organization that employs
the lawyer. Although it is not necessarily improper for a lawyer
employed by a corporation or similar entity to be a member of an
organization of employees, the lawyer should be vigilant to safeguard
his or her fidelity as a lawyer to the employer, free from outside