LABOR UNION LAWYERS: PROFESSIONAL SERVICES OF LAWYERS TO ORGANIZED LABOR ROBERT

yearstherehas thepasttwenty developed in the American legal professiona small group of lawyerswho are primarilyspecialistsin one field of DURING

This article is an abridgmentof a report prepared for the Survey of the Legal Profession which is being conducted under the auspices of the American Bar Association.The report is one in a series on "ProfessionalServicesby Lawyers." It is released here in preliminaryform so that members of the bar and the public may have early access to the informationand also offer criticisms, corrections, and suggestions. Upon completion of the Survey,a final comprehensive report will be issued, containing the findings, conclusions,and recommendationsof the Council of the Survey. The original copy of this report is on file in the Harvard Law School Library; a duplicate copy is on file in the Library of the New York State School of Industrial and Labor Relations, Cornell University. This report was prepared by the Survey's Committee on Lawyers and Organized Labor, composed of Robert M. Segal, chairman, counsel for the Massachusetts Federation of Labor; J. Albert Woll, general counsel of the American Federation of Labor; and Arthur J. Goldberg, general counsel of the Congress of Industrial Organizations. The committeewas assisted by a Board of Experts,which included Herbert Thatcher, associate general counsel of the AFL; Isadore Katz, general counsel of the Textile Workers Union of America, CIO; JeromeY. Sturm, general counsel of the International Association of Machinists,AFL; Matthew 0. Tobringer, counsel for the Teamsters, Chauffeurs,Warehousemen, and Helpers of America,AFL; G. L. Patterson, general counsel of the United Rubber, Cork,

M. SEGAL

law and are closely identifiedwith a particularclass of litigants.' Commonly called "labor lawyers,"theydo the legal work forlabor unions, which are voluntaryunincorporatedassociationsmade up of workingpeople. In part,labor lawyers have appeared as a resultof the growth of labor organizations in membership and strength,and the corollaryincrease in collectivebargainingcontracts,grievances, arbitrationcases, and legal problems; in part, also, their appearance is the resultof the developmentsince 1932 of a body of labor relations legislation which has created manifold legal problemsforlabor unions and theirmembers. TRADE UNION GROWTH Trade union membership has increased in the last two decades from Linoleum, and Plastic Workers Union, CIO; Thomas E. Harris, associate general counsel of the CIO; and Frank J. Gillespie, counsel for the Midwestern Conference of Teamsters, AFL. Statisticalassistancewas furnishedby Ernest Leff of the Harvard Law School. - EDITOR 'In the field of labor relations law, it is well known that attorneystend to become identified with a particularclientele more readilyand more lastinglythan perhaps in any other area of practice. See American Bar Association, Proceedings of Section of Labor Relations Law, (1950), pp. 37-38.

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about threemillionsin 1932 to approximatelysixteenmillions in 1951 - organized in 70,000 local unions, 209 international unions, 91 state federations,and 1,150 city labor councils.2This growth in thenumberof unions and union members not only has produced an increase in the numberof labor lawyers,but also has changed the characterof theirwork. Modern internationalunions are large enterpriseswith an increasingneed for legal counsel in the various aspects of theirfar-flung activities.Legal problems have increased relative to the internal affairsof unions, bargaining relations with employers,and statutesand regulations affectinglabor relations and employmentconditions.

junctivepowersof federalcourtsin labor disputes.Twenty-fourstatessubsequently followed the lead of the federalgovernmentand also passed anti-injunction statutes.5The rightof workersto organrestraint,or coerize freeof interference, cion by employersbecame the foundation of federalpolicy in Section 7(a) of the National RecoveryAct of 1933, and thenwas incorporatedinto the National Labor Relations Act in 1935.6 Several statesfollowedtheexample of thefederal governmentand passed "baby" Wagner Acts.7 Along with the Wagner Act, Congress enacted the Social SecurityAct of 1935 and the Fair Labor Standards Act of 1938. Other federal legislation in the labor field included the Byrnes AntiEVOLUTION OF LABOR LAW Strikebreaker Law of 1936, the Railroad Acts of 1935 and 1937, the Retirement The development in numbers and Public Contracts Act of Walsh-Healey statusof labor unions and labor lawyers Prevailing Wage Davis-Bacon 1936, the has resulted,in considerableextent,from Rights the Unemployment Law of 1931, the evolution of labor legislation since G. I. Bill of Rights and the Act of 1940, 1932. In many respects,until the 1930's of 1944.8 the attitude of the judiciary was the With thepassageof thislegislation,the dominantforcein shaping the historyof need for labor lawyersincreased.Labor labor-managementrelations as well as no law longer constitutedan insignifthe fateof organizedlabor. The attitude of the law of tortsbut beoffshoot icant of the courtstowardlabor organizations and importantlegal a recognized came generallyhad been hostile; injunctions, In became almost fact, lawyers specialty. based on the common-lawtheories of conspiracyand restraintof trade, had 5Millis and Montgomery, Organized Labor been used for more than fiftyyears to pp. 647-651. deterunion organizationsLabor legisla- (1945), 629 U.S.C.A., Si15i. In the railroad field, the tion has replaced the judiciary as the government had previously enacted legislation dominant influence in labor relations dealing with labor relations.Prior to the Railway Labor Act of 1926, the federal governmenthad duringthe past twentyyears. passed the ArbitrationAct of 1888, the Erdman In 1932, Congressenacted the Norris- Act of 1898, the Newlands Act of 1913,the AdamLaGuardia Act,4 which curbed the in- son Act of 1916, and the Transportation Act of 2Wolman, Ebb and Flow in Trade Unionism (1936), p. 16; U.S. Bureau of Labor Statistics, Bulletin No. 980, Directory of Labor Unions in the United States (1950), pp. 1-2. 2Gregory,Labor and the Law (1949); Landis, Cases on Labor Law (1934), pp. 1-32. 4129 U.S.C.A., S.101.

1920. 7For example, see Utah, Chap. 55, Laws 1937; Wisc. Chap. 51, Laws 1937; Mass. Chap. 436, Acts, 1937; N.Y. Chap. 443, Laws 1937; and Penn. Act. 294, Laws 1937. 8See U.S. Department of Labor, Federal Labor Laws and Agencies, Bulletin No. 123 (August 1950); Millis and Montgomery,op. cit., pp. 11, 232-242.

LABOR UNION LAWYERS as indispensable as organizers to the buildingof new unions. In 1947, Congressenacted the LaborManagementRelations Act,9which may representan abandonmentof the policy of affirmative encouragementto labor unions.10This statute followed or was accompanied by new state labor laws dealing with the closed shop, checkoffof dues, work permits, strikes,picketing, boycotts,regulationof internalaffairsof unions, and public utilitydisputes.1" These federaland state laws have not only increased the number and importance of labor union attorneysbut have also affected their practice. Whereas formerlythe labor union lawyer was primarily concerned with injunctions, antitrustlaws, criminal cases, and suits againstunions,his new primaryinterests include collectivebargaining,interpretations of the new federaland state laws, public relations, the internal affairsof labor unions,appearancesbeforeadministrative boards, the interpretationof court cases and laws regulatinglabor's conduct, arbitration cases, and advice to labor unions relative to their new rights,duties,and obligations.Formerly, unions conductedtheirown everydayaffairs, but today lawyers have become necessarynot only formomentousissues but also for the daily problems of the union.12 The fieldof "labor law," with which the labor attorneyis concerned,includes not onlyall thefederaland statestatutory `29 U.S.C.A., SS 141-167- (Supp. 1949). "0Cox, "Some Aspects of the Labor-Management Relations Act, 1947," 61 Harvard Law Review 1; See also Teller, "Governmentby Injunction," 35 Virginia Law Review 50, 58; U.S. Departmentof Labor, Monthly Labor Review (July 1950), p. 57. "nCohen, State Labor Legislation, 1937-1947 (1948); see Millis and Brown, From the Wagner Act to Taft-Hartley(1950). '2Hardman and Neufeld, The House of Labor (1951), pp. 396-400.

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and administrativecontrols in the employer-employee relationshipbut also the 100,000 private collective bargaining agreements forming the "law of the plant," and a body of privateenforceable secondarylaw fornearly16 millionworkers. It is a highlypersonalizedfield,reflectinghighlycompetitiveinterests;it is dynamic and fluid, closely tied to the social sciences and unlike the "social statics"to whichJusticeHolmes objected in Lochner v. New York, 198 U.S. 45 (1905). It involvesnot only the laws, the regulations and interpretationsby the governmentagenciesand the courts,but also grievances and arbitrationsunder the labor agreements covering wages, hours, job security,workingconditions, and the employmentrelationship.13 Unlike otherfieldsof law, labor relationsinvolves a continuing relationshipwhere the parties must live togetherafter the battleor law suit. LABOR LAWYERS -THE

SAMPLE

A labor union lawyer,forthe purpose of this report,is any lawyerwho spends approximately25 percentor more of his time in work for labor organizations. This definitionexcludes a small body of lawyerswho on occasion are called upon to give legal advice to a labor union. It also omitsworkmen'scompensationspecialists, who do considerable work for membersof the union but do not performany labor relationsservicesfor the union. This report does not deal with lawyers representingcompanies or the governmentin labor matters,although they are sometimescalled "labor attorneys." Included in this survey,however, are sixteen house counsel who devote nearlyall theirtimeto the legal affairsof 13See Cohen, "Review of Cases and Materials on Labor by Handler and Hays," Journal of Legal Education (Summer 1951), p. 622, and views of labor law casebooks cited in the article.

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the one labor organization they represent.14 Although the labor law specialtyhas become increasingly important since 1932,therehas neverbeforebeen anycompilation of the names of labor lawyers in the United States. In fact,one of the involvedin preparing greatestdifficulties the presentreport was the lack of any comprehensivelist of labor lawyers.15 141tcan be argued that only those lawyerswho spend more than 50 percent of their time in labor law workshould be classifiedas labor union attorneys.It is estimated that there are approximately 200 lawyersof this group in the country, and 141 answered the questionnaire. To verify many of the conclusions in the report, the statisticson these 141 lawyerswho spend more than 50 percent of their time in labor work are also given. House counsel included in this report are only those attorneys who work almost exclusively for one union; this excludes the general counsels of the AFL and CIO, who also represent various international unions. 15To compile the present list, several methods were used. The complete list of all lawyerswho are members of the Labor Law Section of the American Bar Association was checked by the Board of Experts for labor union attorneys.The labor lawyers on the roster of The National Lawyers Guild were listed. The national counsel of the AFL and CIO canvassed international unions and state federationsassociated with their respective organizations. The lawyers listed in the International Labor Directory (1950) were added to the list. An article, "Labor Lawyers," relative to the Survey, in the November 1950 issue of the CCH Labor Law Journal produced some names of labor lawyers. The membership list of the Industrial Relations Research Association was also checked. Additional names were obtained fromvarious meetingsof lawyers;from the Board of Experts,who come fromvarious sections of the country;and frompublished reports of NLRB and arbitration cases in the various law services. As a result of this compilation, 900 questionnaires were sent out to lawyers throughout the United States. In addition, 435 post cards were sent out to lawyers who did not answer the questionnaire,resultingin a request for 44 additional questionnaires. Duplicate questionnaires were also sent out. In total, 1,059 questionnaires were sent out, and 213 completed and usable questionnaires were returned by the deadline. Approximately25 completed questionnaireswere filed too late to be used but they were checked and merely verified the results of this report.

Of the 200,000 lawyersin the United States,only a comparativelysmall number are labor union attorneys.It is estimated that thereare only 500 labor lawyers;of thisnumber,approximatelyfifty are house counsel for a labor organization.16It is interestingto note that the geographical distributionof labor lawyersis similar to the geographicaldistribution of all lawyers throughout the country. Of the estimated500 labor lawyersin the country,213 completed the survey's questionnaire on labor lawyers.17The respondentsincluded 16 house counsel, 40 attorneysforstate bodies of the AFL or CIO, 58 lawyersrepresentingcityfederationsor citycouncils,48 generalcounsels for international unions, and 172 lawyers representinglocal unions. Of course,some of these categoriesoverlap; forexample, a counsel for a cityfederationundoubtedlywill also representlocal unions,manyof whichbelong to the city federation. Of the 213 labor union attorneyswho answered the questionnaire, 141 or 66 percentof the total devote 50 percentor more of their time to labor law work, while the remaining 34 percent spend approximately25 percent of their time in labor law work. Approximately600 questionnaireswere never returned, while 142 were returned marked "not labor lawyer." Although the total sample (213) is a large and representativeone, the regional statisticsand percentagesare open to some question due to the small number of labor lawyersin each region, for the omission or addition of one or two labor lawyersin each region may greatly overemphasize the percentagesin the region. 18Contrastthis number with the 3,367 attorneys employed in 1,301 industrial corporations; see Maddock, "Services in Business for Salary: General Counsel," for Survey of the Legal Profession(April 26, 1951), pp. 5-7. '7The detailed questionnaire consistedof seven pages, containingmore than sixtyquestions, and dealt with the workof the labor lawyer,his practice, background, the services he rendered, finances, and other related topics.

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CLIENTS OF LABOR LAWYERS

AFL lawyersreportedthattheyrepresent both sides in labor relations,while only Table I gives a breakdown of labor 12 percentof the CIO lawyersand 8 perlawyers according to their clients. It cent of the independentunion attorneys showsthat44 percentof thelawyerswork representboth groups. Lawyers in the primarily(more than 50 percentof their Mideasternarea, the metropolitanEasttime in labor) for the AFL, 25 percent ern centers,and the Far West find that primarilyfor the CIO, 10 percent prithey do represent both groups much marilyforindependentunions; 8 percent more often than labor lawyers in the divide their time equally between AFL Central or in the Southwestregions.18 and CIO unions,while 13 percentdivide The line in labor relations is drawn theirtime among AFL and CIO and ineven finerthanbetweenmanagementand dependentunions. Of lawyerswho spend labor unions, forin some areas a rivalry more than 50 percent of their time in between the AFL and CIO preventsa labor work, the distributionis not very labor lawyer from representingboth fromthat among all labor lawdifferent groups. One third of the labor lawyers yers. report that they cannot representboth Because labor relations is so highly AFL and CIO unions, while approxiemotional and personalized, it has bemately two thirdsof the labor lawyers, come almostimpossibleto representboth includingall theindependents,statethat employersand labor unions in labor law theydo representboth groups. In part, problems. Three quarters of all labor this may come fromthe emotional,perlawyersreportthat theydo not represent sonalized fieldin which the labor lawyer both sides (labor and management) of practices.In part,it may resultfrombethe fence in labor relations.Surprising, ing labelled eitheras an "AFL" or "CIO however,is the fact that approximately lawyer."In someareas,thereis an intense one quarter of all labor attorneysdo rivalrybetweenAFL or CIO unions over claim that theyrepresentboth management and labor. Of the lawyers who :8Althoughthereis an increasingtrend toward spend more than 50 percentof theirtime specialization in the law, this phenomenon seems to be more sharply marked in the labor area in labor relations,16 percentstated that than in any other branch of law. See Katz, they represent both management and "Union Lawyers," Virginia Law Weekly Dicta, labor. Approximatelyone quarterof the Vol. 3, No. 6 (1950). Table I. Labor Lawyers and Their Clients Total Labor Lawyers

AFL ............................. CIO ............................. Independent ....................... AFL and CIO ..................... AFL, CIO, and Ind ................

Number 93 53 22 17 28 213

Labor Lawyers Spending More than 50 Percent of theirTime in Labor Work

Percent 44 25 10 8 13

Number 62 41 13 10 15

Percent 44 29 9 7 11

100

141

100

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jurisdictionand members.In some instances,the CIO unions secededfromthe AFL union, and the rivalry has remained high since that date and is carried over to the labor union attorneys. GEOGRAPHIC DISTRIBUTION Labor attorneysare geographicallydistributed throughoutthe United States along the same percentagelines as all lawyersin the country,with two notable Table II gives a breakdown differences. by regionsof labor lawyersas compared withall lawyers.The table showsthatthe Far West area accounted for 17 percent of all the labor lawyersin the country, while only 10 percentof all the lawyers are foundin thisarea; it also showsthat, in the rural Southeasternregion,the 10 percentfigureforlabor lawyersis below the national percentageof 14 percentfor thesame region.

A COMPOSITE

PICTURE

Based on the informationreceived from the questionnaires,the following composite picture of a labor lawyer emerges: yearsold, in (1) He is about forty-three a partnership,and has been practicing law about seventeenand a half yearsbut has onlybeen in thelabor law fieldabout thirteenyears. (2) He has probably had government training,althoughnot necessarilyin the labor field. (3) He has a collegedegreewitha major in thesocial sciencesand a law school degree but no course in labor law. (4) Althoughhe belongsto thelocal and and state bar associations,he probably does not belong to the American Bar Association. (5) As forhis income,he is probablyon a retainerand nets about $12,500,which is higherthan the averageincome forall lawyers in the United States. His top range is limited,but his lowest range is

ofLawyers. Table II. Distribution Labor Lawyers

Region*

N. E ..................... .... Mideast.............. S. E ..................... S. W ..................... Central................... N. W ..................... ................ Far West. No Information

Total ..................

All Lawyers

Number Percent Number Percent 6 7 15 12,300 30 29 58,000 62 14 27,600 10 21 7 11 5 14,200 27 51,500 24 51 5 5 10 9,700 10 17 18,500 37

............

213

3

6

100

191,800

100

Labor LawyersSpending More than 50 Percent Time in Labor

Number 12 49 9 4 36 4 24 3

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*Report of Martindale-Hubbell, Inc. to the Special Committeeon Lawyer Census and to the Survey of the Legal Profession(1951). The regionsare brokendown as follows: (1) New England-Maine, Vermont, New Hampshire, Massachusetts, Connecticut, and Rhode Island; (2) Middle East-District of Columbia, Maryland, New Jersey,New York, Pennsylvania,Delaware, and West Virginia; (3) Southeast-Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, North Carolina, Tennessee, Virginia, Mississippi,and South Carolina; (4) Southwest-Oklahoma, Texas, Arizona, and New Mexico; (5) Central-Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin; (6) Northwest-Colorado, Kansas, Nebraska, Idaho, Montana, North Dakota, South Dakota, Utah, and Wyoming; (7) Far West-California, Oregon, Washington,and Nevada.

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found decreasing opportunitiesin the shrinkinglaw marketof theperiod.With the split of the CIO from the AFL in 1936, some of the youngerlawyerswent over with the CIO, and more of the youngergraduateswere able to findopportunitieswith the new and growing CIO locals in the field. The labor union attorney'spractice differsconsiderably from the average lawyer's office organization. Approximately 40 percent of labor lawyersare partnersor membersof a law firm,while only 25 percent of all lawyers in the countryare engagedin a firmor partnership law practice.20While 66 percentof all lawyersare engagedin a solo practice, only 40 percent of the labor lawyers practice alone. Furthermore,labor lawyersprefer"associations"; about 10 percent of the labor lawyersare in an "association" formof practice,while only 5 percentof all lawyersare engaged in a law association form of practice. Only about 5 percentof all labor lawyersare salaried lawyersemployedby other lawyersor by thelegal departmentof a labor organization. AGE AND PRACTICE Most large corporationshave legal deLabor union lawyersare youngerthan partments,with lawyers engaged on a mostlawyers,forthemedian age of labor full-timebasis, but few (approximately lawyersis forty-three years as compared thirty)of the two hundredlarge internawith a median of forty-seven tionalunionshave house counselwho deforall lawyersin thecountry.191t is not strangethat vote practicallyall theirtimeto thelabor the median age of labor union attorneys union's legal affairs.Of the total five is below themedian forall lawyers.With hundred labor union attorneysin the the rise of labor legislation and labor country,approximatelyfiftylawyers(or unions since 1933,more lawyersentered 10 percent)are house counsel.21On the the labor field.This was especiallytrue of the youngerlawyersand recent law 20Blaustein,op. cit., Table III shows that 66.2 graduates in the thirtieswho cast their percent of all lawyersare engaged in solo practice; 25.6 percent in firms; 4.7 percent in an lot with labor unions or who may have

above the lowestrange of all lawyers'incomes. (6) He probablyfeelsthatthestigmaattachedto being a labor union attorneyis decreasingbut has not disappeared completely.Although he is accepted by the unions, which resent lawyersgenerally, he findsthat unions still considerlabor lawyersas "necessaryevils" foremergencies only.In addition,he has lost general practicebecause he is a "labor lawyer." He findsthat generallyhe can represent both AFL and CIO unions but cannot representemployersas well as unions in labor matters. (7) Though some public officials in rural communitieshave an unfavorableattitudetowardhim, the labor lawyerfeels that the courtstoday treathim fairly. (8) His workconsistsof: (a) regularappearancesbeforeadministrative agencies; (b) court litigations; (c) approval and negotiation of collective bargaining agreements; (d) arbitration work; (e) draftinglegislationand speechesand (f) public relationswork forthe union. For theconsiderablefreeor extraworkwhich he is called upon to do, the labor lawyer is compensatedby the satisfactionhe derivesfromworkwhich usually is in sympathywithhis ideals.

'9Surveyof the Legal Profession, (Special Abridged Edition), "Statistical Report on the Lawyers in the United States," prepared from data in Martindale-Hubbell Law Directory(1949); see also Blaustein, "The 1949 Lawyer Count," American Bar Association Journal (May 1950).

associate type of practice; while only 3.5 percent are employed by a lay concern, such as a corporation, bank, insurance company, railroad, labor union, charity,or social agency. See also Surveyof the Legal Profession,op. cit. 21These include lawyers working in union legal departments.

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national scene, only about 3 percent of all lawyersin the countryare employed exclusivelyby a corporationor otherlay concern. Labor lawyershave not been practicing law verylong. Seventeenand a half years is the median numberof yearsforlabor lawyers.Of theseventeenand a halfyears the labor lawyershave been practicing law, about thirteenhave been devotedto labor law. From these figures,it can be concluded that the labor lawyer spent approximatelyfour to fiveyearsin general, governmental,or some other field of law beforehe entered the labor law specialtyfield.Only fourteenof the labor lawyershave spentmorethan thirtyyears as a labor lawyer,while more than twice that number have spent less than five yearsin the labor law field. The labor law specialtyhas a heavy concentrationof lawyerswho have recently entered the field. This can be explained in part by the increasingnumber of new lawyers enteringthe labor relationsfield.In part, it also represents a trendby returningveteranswho have gone into labor law practice since their discharge from the armed forces. Of course,the comparativelyrecentdevelopmentof the labor law specialty,with the growth of labor legislation and labor unions, accountsfor the recentinfluxof lawyersin this field.In addition, young lawyers with political ambitions have been attracted to labor union work. Then, too, small expanding locals themselves have sought out young lawyers who growwith the union. EXPERIENCE

AND TRAINING

Labor lawyershave had varied backgroundsand training.Slightlymore than one half have had governmentexperience, while approximatelyone quarter have had labor experiencewith government agencies, primarily with federal

bodies. These reprelabor administrative senthighpercentageswhen one considers that only 12 percent of all lawyers in 1949wereworkingforthefederalor state government.22

With the median age of labor lawyers below the age of all lawyersin the country,it is not surprisingto findthatnearly everylabor lawyerhas attended college and receiveda college degree.Nationally, approximately80 percentof all lawyers have attended college, and only 45 percent receivedcollege degrees.Practically everylabor lawyerhas a degree froma law school, whereas approximately75 percentof all lawyersin the countryattendedlaw school.23 Approximatelyone half of all labor lawyersmajored in the social scienceand business fields in college. Of the labor lawyerswho spend more than 50 percent of theirtimein labor work,includingthe AFL and CIO attorneys,60 percent majoredin thesocial scienceand business fieldsin college. The humanitiesranked next to the social sciences as a college major for labor lawyers. Of the house counsel,all attendedcollege and law school. Twelve majored in the social sciences, three did graduate work in economics and statistics,while two did graduate work in political science.

Slightlymore than one quarter of all labor lawyershad a labor law course in law school. Approximatelythe same percentage (30 percent) of AFL and CIO lawyershave had a course in labor law at the law school, while only 8 percent of the independent union lawyersand 20 percentof the house counsel did so. This lack of trainingin the labor law 22Blaustein,op. cit., p. 324; see also, Surveyof the Legal Profession,op. cit. Lawyers in government service in 1949 totalled 21,273, of whom 7,130 were judges. 23Blaustein,op. cit.; Survey of the Legal Profession,op. cit.

LABOR UNION LAWYERS specialty can be explained by several factors.First of all, labor law as a specialty is a recent development. Secondly, law schools have only recently departed from the classical training with few specialties in the curriculum. The changing nature and importance of labor law as a specialty has now been recognized by the leading law schools. Although twenty years ago few law schools had a course in labor law, practically every law school in the country offerssuch a course today. Furthermore, many of the present courses in labor law not only cover the labor laws but also the negotiation and administration of collective bargaining agreements, arbitration cases, and grievance problems under the labor contract. This newer approach differs from the orthodox law school course involving appellate court decision or administrative agency decision and comes closer to giving the lawyer the practical side of collective bargaining.24 In fact, many labor institutes and economic courses give the same practical approach as in law schools. Even more correlation should be worked out between law schools and other institutions in this field. PROFESSIONAL

ASSOCIATIONS

The professional groups to which labor lawyers belong are varied. Whereas nearly every labor attorney is a member of the local bar association and slightly over 70 percent of the labor lawyers be'At Harvard, for instance, in 1935 labor law was a half-coursetaken by about 30 students in their third year, while in 1951 the curriculum included four labor law courses. Three quarters of the class of 1951 took a course in labor law at the law school. Cox, "The Labor Law Courses," 2 Harvard Law School Bulletin (1951), p. 6; see also Wirtz, "On Teaching Labor Law," 42 Illinois Law Review (1947), pp. 1-28; and Sherman, "The Law Student and Collective Bargaining," 3 Journal of Legal Education (Spring 1951), pp. 445-448.

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long to a state bar association, only 39 percent of the labor lawyers reporting belong to the American Bar Association. Approximately 20 percent of the labor lawyers were members of the National Lawyers Guild in 1950. Approximately 16 percent of the labor lawyers are members of the American Arbitration Association, while nearly 15 percent belong to other miscellaneous bar groups (N.A.C.C.A., etc.). Of the 167 lawyers listed in the directory of the Industrial Relations Research Association, only seven (or 4 percent) are labor union attorneys. AFL lawyers show a greater preference than CIO attorneysfor the American Bar Association, for 44 percent of the former are members of the ABA as contrasted with 27 percent of the CIO attorneys. On the other hand, nearly three out of every ten CIO lawyers belonged to the National Lawyers Guild in 1950, while only 8 percent of the AFL lawyers were memnbers of the N.L.G. Surprisingly, the independent union lawyers preferred the National Lawyers Guild, 55 percent holding membership in the N.L.G. as contrasted with only 15 percent in the American Bar Association.25 Of the sixteen house counsel, all belong to local bar associations and eleven hold membership in a state bar association. Only a small percentage reported that they belong to either the American Bar Association (25 percent) or the National Lawyers Guild (19 percent). The data on membership in associations of labor lawyers are striking when compared with the national picture for all lawyers. Whereas approximately 21 percent of all lawyers in the country be251t is probable that the large percentage of lawyersfor independent unions belonging to the National Lawyers Guild is attributable,in large part, to attorneysforunions expelled by the CIO for communism.

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long to the AmericanBar Association,26 a larger percentage(39 percent) of the labor lawyersbelong to theABA. On the otherhand, althoughfourthousandlawyers,or 2 percentof all the lawyersin the country,belonged to the National LawyersGuild in 1950,27 21 percent of the labor lawyersbelonged to the National Lawyers Guild, comprisingover 1 percentof thetotalmembershipof theGuild in that year. This heavy concentration may be due to a dissatisfactionin the past with the conservativeattitude in general, and towardslabor relations in particular,of the AmericanBar Association, which only created a Labor Relations Section fiveyears ago. It may also reflecta dissatisfactionwith the Labor Relations Sectionof theABA, whichhad been predominantlystaffedby company attorneys,and the lack of attentionto labor law by theABA Journal;or it may be due to the greater and more sympathetic attention paid to labor problems by the National LawyersGuild and its publication. Labor union lawyersalso report another form of membership.About one half of the labor attorneyshave been or are membersof a labor organization.28 In some instances, these are honorary memberships;but in most cases they representfullunion membership.Half of thehouse counselreportedthattheyhave 16See Porter, "Membership in American Bar Association,"Massachusetts Law Quarterly (May 1951), p. 45. 4The 4,000 figure for the National Lawyers Guild in 1950 is based on data prepared by the Survey of the Legal Profession.This figuremay be too high, for the N.L.G. carried nondues paying memberswho had not formallyresigned. `8See Robert McCracken, "Report on Observance by the Bar of Stated Professional Standards," 37 Virginia Law Review (1951), pp. 399, 422. The report recommends that a canon be adopted opposing the joining of labor unions by lawyers, but its reasoning (p. 422) is open to serious question.

been or are membersof a labor organization.

In a few isolated instances,labor lawin the past. yershave been labor officials In one case, the labor lawyerwas formerand president ly a businessrepresentative of the state federationof labor before studying and practicing law. On the otherhand, in one case, the counsel for theinternationalunion became thepresident of the union. In a fewcases,lawyers have become full-timeexecutive secretariesfora labor union. SOURCES OF INCOME The economics of a labor lawyer's practice ties him closely to his clients. The labor attorneyis confined to the union side of labor relations work, for generallyunions will not retain lawyers who representemployers;furthermore, unions are suspiciousof lawyers.The reluctanceof unions to intrusttheiraffairs to outsiders tends to concentratetheir legal business in the hands of a comparativelysmall numberof practitioners. In addition, there is little turnoverfor the lawyers.If he loses a union client, the labor lawyeris not likelyto findanother,forthereare fewerpossible union clientsthan employerclients.This is due to the factthatwhen a singlelabor local has dealings with a number of employers,it has one lawyer;the employersmay divide theirlegal businessamong several At the same time,manylawattorneys.29 yersrepresentinglabor organizationsdo thelegal workofunion memberson cases involvingworkmen'scompensation,wage and hourviolations,and occasionallytort and propertymatters. Of the total 213 lawyers reporting, or 12 percent,spend all their twenty-six, time and derive all their income from "OKovner,"The Labor Lawyer" in Hardman and Neufeld, The House of Labor (1951), pp. 398-399.

LABOR UNION LAWYERS

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average labor lawyer's total income is higher than income for lawyersin general in the United States. Although the median income for all lawyers in the ization. United Statesin 1948 was $6,336,30labor as a resultof specializaApproximatelytwo thirdsof all labor union attorneys, union attorneysare on retainersfroma tion and allied work,faredbetter,with a labor organization.Of the 141 labor law- median income of $12,500 in 1950.31At yerswho devotemore than 50 percentof the same time, 10 percent of all labor their time to labor law, 74 percent are lawyers earned more than $20,000 per on retainersfrom labor unions. More year,whereasthepercentageofall lawyers than 75 percentof the AFL lawyersare in the countrywho exceeded $20,000was on retainers,while approximately70 per- approximately5 percent.32At the other cent of the CIO attorneysare on retain- extreme,the percentageof labor union ers, as well as 85 percent of the inde- attorneys who earnedless than$5,000per pendentunion counselors. yearwas only4 percent,while 42 percent The amount of time spent by labor of all United States lawyersearned less lawyersin labor workis disproportionate than $5,000per year.33These figuressugto theirincome return.First of all, two gest that the labor union attorneystarts out of everythree labor lawyersreport at a higherlevel and does betteron the thatlabor unions expect themto do con- average.Althoughno data are available siderableextra or "free"work,especially on other legal specialties,it can be conin telephone and personal advice and cluded that labor attorneysdo not have public appearances. Although fifty-eight the same extremeupper limitsfound in labor lawyersspend 75 percentof their other specialized law fields such as tax time in the labor field,only thirty-four or administrative law. of these,or slightlymore than half, reThe AFL lawyerfaresbetterthan the ceive 75 percent of their income from CIO or independent union lawyer in labor work. These lawyers,of necessity, financialreturns.The median income of must do outside legal work; and except theAFL lawyeris approximately$13,000 forthe sixteenhouse counsel,mostof the labor lawyers have a general practice, 80Weinfeld,"Income of Lawyers, 1929-48," rangingfromcriminalworkto real-estate Survey of Current Business (August 1949), p. 1. No data are available on median net incomes of transactions. all lawyersin 1950, but, based on the materials Many labor lawyers complain about in the article in the Survey of CurrentBusiness, it can be estimated that the median rose from thelow feespaid bylabor unionsforlegal in 1948 to no more than $7,500. services.In part, this is due to the gen- $6,336 "'This median of $12,500 may be on the high eral attitude of unions toward lawyers side for all labor lawyers due to several factors. First of all, income data submitted were in and, partly,because unionshave not been groups; the median was arrived at by using the to of educated the value fully legal ser- midpoint of each group (i.e., a lawyer checking vices. In some cases, it is due to the inthe $5,000 to $10,000 group was assumed to be abilityof a small local union to pay for at $7,500). Secondly, it may be presumed that most of the labor lawyers who did not answer legal services. the questionnaire are in a lower income classilabor work. This includes the sixteen house counsel, who work for a labor union in the same way as a corporate lawyer within the corporation'sorgan-

AMOUNT

OF INCOME

In spite of such complaints and the "extra" work done by labor lawyers,the

fication than the 213 who did answer. These factors may have weighted the median on the high side. 82SeeTable 5 in Weinfeld, loc. cit., p. 3. 13Ibid.

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INDUSTRIAL AND LABOR RELATIONS REVIEW

while the CIO attorneyhas a median income of $10,000 and the independent union lawyer$12,000.Sixteen percentof the AFL lawyersearned $20,000or more per year,but only 10 percentof the CIO lawyerswerein thiscategory.Thirtypercent of the independent union lawyers earned $20,000or more per year.34 The median net incomeof $12,000per year for the sixteenlabor house counsel contrastssharplywiththe$33,500median for the head of corporate legal departments.35The $13,600 average income of the union house counsel (with a range from$5,000 to $40,000 per year) is considerablybelow the $34,728 average income paid to fortylegal department heads whoseincomerangedfrom$14,796 to $60,000 a year.36Less than one third of the labor house counsel receivedmore than $15,000 per year; approximately95 percent of corporate legal department heads had salaries of more than $15,000 per year. Even the compensationof lawyers in corporate legal departments (otherthanthedepartmenthead) is higher than the labor house counsel's salary, for 40 percentof the corporatelawyers receive about $15,000 per year, with a range from$2,220 to $40,000 per year.37 In addition to these salaries, the corporate lawyer(withwhom the labor lawyer often deals in negotiations and labor problems)receivesthe benefitsof corporate programsproviding for group life insurance,groupaccidentand sicknessin3&Ananalysis of the reports seems to indicate that lawyersfor independent unions do more of the lucrative personal nonlabor work for the individual members of the union than AFL or

CIO lawyers.

85National Industrial Conference Board, Corporate Legal Departments (1950), pp. 11-12. 6Maddock, "Services in Business for Salary: General Counsel," for Surveyof Legal Profession (April 26, 1951), pp. 26, 30-31; see also N.I.C.B., op. cit. a National Industrial Conference Board, op. cit., pp. 11-12.

surance,and similarbenefits- including bonuses. In many companies the cost of these added benefitswill run from10 to 20 percentof the regular compensation. In manycases,the corporatecounsel also becomesan officer of thecorporation;but the labor counsel rarely becomes an of the labor organization. officer Income of labor lawyers varies by regions.The median net income for all labor lawyersis $12,500. New England has a low median of $7,500, while the Mideast has the widest range of income but shows the highestmedian ($13,000). The Far West,on theotherhand, has the greatestpercentageof labor lawyerswith net incomesover $20,000. Five out of everysix labor lawyersreport thattheyhave lost generallaw business because of their relationshipwith labor unions.They reportthatbusinesses shy clear of thembecause of theirwork for unions or because of their label as "labor union attorneys."In addition,because they are regarded as labor union specialists,these attorneysoften do not receivegenerallegal workfrommembers of the bar, fromthe general public, or even from the individual union members. Most labor lawyersclaim that litigation work for labor organizationsis the most lucrativephase of their labor law practice. Workmen's compensation,administrativeboard work,and arbitration cases are also profitablefieldsof labor practice. On the otherhand, consultativework forlabor organizationsis the least lucrative phase. This typeof work consistsof of advice to the labor union, the officers the union, and sometimesto the individual membersof the organization.Unemployment compensation cases are also consideredunprofitable.A large number of labor union attorneysalso reportthat contractnegotiationsare not veryprofit-

LABOR UNION LAWYERS able, forthe unions are not prepared to pay the attorneyfor the long hours and time spent in negotiatingcollectivebargaining agreements.This seems to be in directcontrastto the situationof the employer's lawyers,who are usually well compensated for collective bargaining negotiations. Table III gives a breakdownof labor lawyersby income and years of practice in the labor field.38The table showsthat slightlymore than one quarterof the 202 lawyersreportinghave been practicing labor law fromeleven to fifteenyears.In thisgroup,nearly50 percentare earning over $10,000 per year; no labor lawyer in this group is under $5,000 per year; while elevenlawyers,or nearly20 percent of the total,are earningmore than $20,000 per year. The next largestgroup in thetable are thoselawyerswho have been practicinglabor law less than fiveyears. More than half of thisgroup are earning between $6,000 and $10,000 per year, while only 14 percentof the total group are earningless than $5,000per year- as compared with the 10 percentwho earn more than$15,000per year.In thegroup -8See word of caution on the sample, footnote 15.

355

which have been practicing labor law fromsix to ten years,approximatelyone half are earning over $10,000 per year; whereas only 2 percent earn less than $5,000,nearly 10 percentearn over $20,000 per year. Of the lawyerswho have been in the labor fieldsixteento twenty years,approximatelyfiveout of ten earn morethan$15,000per year.These figures would indicate a positivecorrelationbetweenyearsof practiceas a labor lawyer and income received. It is also interesting to note thatof the fourlabor lawyers who report incomes over $30,000, two have been practicinglabor law from11 to 15 years,while two have been practicing from16 to 20 years. ATTITUDES

TOWARD LABOR LAWYERS

In the field of labor relations, there have been indications of dissatisfaction with the labor lawyer and his services. Employees and even some employers have expressedstrongdoubt about the lawyer'svalue in thisfield.Not onlyhave therebeen demands that lawyersbe excluded fromthe negotiations,but some agreementseven contain provisionsthat "no legal adviser of either party is to

Table III. Relationship between Years of Practice as a Labor Lawyer and Income. INCOME Years a Labor Lawyer

Under $5,000

$6-10,000

$11-15,000 $16-20,000 $20-30,000

Over $30,000

Num- Per- Num- Per- Num- Per- Num- Per- Num- Per- Num- Perber cent ber cent ber cent ber cent ber cent ber cent

Under5 years.......

7

14

26

54

10

21

5

10

11-15years......... 16-20 years......... 21-25years......... 26-30years......... 31-35years......... 36-40years.........

1

0 0 1 0 0 1

2

22

49

12

27

6

13

6-10 years .........

0 0 9 0 0 33

15 25 9 33 3 27 2 22 0 0 2 67

21 36 5 19 3 27 2 22 1 100 0 0

12 20 8 30 3 27 3 33 0 0 0 0

0 4

9 3 1 2 0 0

0

0

0

9

0

0

15 11 9 22 0 0

2 2 0 0 0 0

3 22 0 0 0 0

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INDUSTRIAL AND LABOR RELATIONS REVIEW

serve on any grievance committee" or "both parties furtheragree not to employ attorneys-at-law to representthem during the course of future negotiations."39 Labor lawyersalso reportthata stigma against them exists in the minds of the public, the employers,the conservative press,and even amongconservativemembersof the bar. More than 40 percentof all the labor lawyers reporting feel that there is a stigmaattached to being a labor lawyer. Fewer AFL lawyersthan CIO attorneys feel any stigmain the practiceof law on theside of labor unions.Slightlyless than 30 percentof theAFL lawyersreportany stigma,but nearly40 percentof the CIO attorneysand the same percentageof independent union counsel allege that thereis a stigmaattachedto being a labor union attorney.Interestingly enough,80 percentof the lawyerswho divide their timeequally betweenthe two large labor organizationsreporta stigma.Of the sixteenhouse counsel,six feelthatthereis a stigmaattachedto being a labor attorney. Several claim that they are considered "radicals" because they representlabor unions; othersreportloss of business. There is a regional differencein attitude towards labor lawyers.Almost all the labor union lawyers in the Southeast and Southwestreporta stigma,while in New England and theFar West onlya small numberof labor lawyersfeel it. In the centralpart of the country,the sentiment as to the existenceof a stigma is divided evenly. This stigma results from the associaUnauthorized 39AmericanBar Association, Practice News, (May 1950), pp. 9-10; Segal, "Labor Lawyers,"CCH Labor Law Journal (Nov. 1950), p. 1105; Cole in Vol. 10, Harvard Law School Record (April 12, 1950), p. 1; Hauck, "Labor Disputes: An Analytical Approach," 37 American Bar Association Journal (Feb. 1951), p. 115.

tion of labor's cause or strike,which the labor union attorneyis defending,with the lawyerhimself.It also resultsfrom the long-existingprejudices against unionism, the public's reactions to many labor unions and strikes,and theunfavorable press which some unions have received. Most labor lawyers report that the stigmais graduallydisappearing.In fact, with the increasingimportanceof labor unions in politics, some labor lawyers are findingthatthesuccessfullabor movementcan offersubstantialsupportto individual political ambitions; many congressmen,senators,and governorswere at one timecounselsto unions,and many influentiallawyerswill take an occasional case for a union because of politics. In addition, one out of every four labor lawyersreportsthat some honors have been bestowedupon him as a result of his labor union work; these honors include honorarymembershipin labor organizations,electionto law schoolalumni and bar association councils, appointments to civic, social, and professional groups and committees,labor-managementboards,and some political appointments. In contrastto corporatepractice,labor lawyersrarelybecome executivesor officials of the group. Although Morris Hillquit, a labor lawyerof Socialist beliefs,was the rival of Sampel Gompers in intellectualand moral influenceupon the labor movementin the early 1900's, Hillquit never became a top officialof the AmericanFederation of Labor.40In 1946, however, the CIO Packinghouse WorkersUnion elected its chief counsel as its president,and the Amalgamated Meat Cuttersand ButcherWorkmenof N.A. (AFL) has a lawyeras its secretarytreasurer.Some unions, like the Amer40Hardmanand Neufeld, op. cit., p. 396.

LABOR UNION LAWYERS ican Federationof Radio Artists,have a lawyeras theirfull-timenational execuas well as lawyerson a parttivesecretary, time basis as field executives. On the otherhand, an increasingnumberof union businessagentshave had legal training. Approximately60 percentof all labor attorneysreport that the attitude of public officialsis fair and favorable,8 percentthat the attitudeis unfavorable, while 20 percentstatethat theyreceivea mixed reaction. The labor union attorneysare critical of the local police and magistratesin the rural areas. At thehighercourtlevel, the lawyersreporta morefavorableattitude; thisis in markedcontrastwiththehostile prior to 1933. attitudesof public officials Although two thirdsof the AFL lawyersstate that the attitudeof public officials is favorable,only 40 percentof the CIO lawyersagree with this conclusion. Nearly twice as many CIO lawyers as AFL attorneysstate that the attitudeof public officialsis unfavorable. There are also regional variations.In New England, the attitudeof the police and court officialsis reportedas mostly favorable,while the union lawyersclaim thattheattitudein theSoutheast,Middle East, and Far West is biased against labor.

357

hand, practicallyall labor attorneysreport thattheunions trustthempersonally.

More thanone halfof all labor lawyers state that unions considerlabor lawyers as necessary"evils," to be used in emergenciesonly.42Approximately50 percent of theAFL lawyersand 60 percentof the CIO and of the independentunion lawyers make a similar report. However, trustedthough resented,only a few of the house counsel reportthat the unions they represent consider labor lawyers necessary"evils" foremergenciesonly. Althoughresentmenttowardthe labor lawyeris prevalentthroughoutthe country,it is mostintensein the rural Southeast and Southwest,less frequentin the centralsection of the United States (reportedby threeout of fivelawyers),New England and the Mideast (reportedby half of the lawyers),and is noticed by only one out of threelawyersin the Far West. "Necessaryevil" is the statusgiven the labor lawyerby approximatelyhalf of the labor unions, although those in New England and theSoutheastare more emphaticin theiropinion. These attitudesare theresultofseveral factors.First of all, labor unions have a historical resentment against lawyers, based on theinjunctionsin labor disputes whichwereobtainedby companylawyers and grantedby judges. Secondly,unions UNION ATTITUDES ON LAWYERS have had some bitter experienceswith Labor unions, too, share in the dislike employers'lawyersin collectivebargainfor the labor lawyer.4' Approximately ing and carry over their feeling to all one half of all the labor lawyers,includ- lawyers.In addition, lawyersare prone ing more than half of the house counsel, to be technical and legalisticin a field report that there is resentmentagainst where basic human relationshipsare the dominantfeature.In a fewinstances,the themin the unions theyrepresent.This union has had theunpleasantexperience opinion is held by approximately50 perof labor of AFL 60 with cent the lawyersof being overcharged, lawyers, percent and 70 percentof the in- in the union's opinion. There is also the CIO attorneys, dependentunion attorneys.On the other 4"See Cole in Harvard Law School Record (April 12, 1951), p. 1.

42See Asher, "The Lawyer in the Field of Labor," CCH Labor Law Journal (Jan. 1950), p. 802.

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INDUSTRIAL AND LABOR RELATIONS REVIEW

amongsome labor unions old resentment againstthe "outsider,"the "intellectual," the "white-collar"worker,and the "theorist."43The antipathytowardslabor attorneysstems from yet another source. Some of the old-line labor leaders not only resentthe professionalbut also are very jealous of their own power and prestige. Furthermore,the legal probraised by the labor lems and restrictions attorneymay be contraryto the policy resultingin desiredby the union officers, a reaction against the attorneyrather than the law. To union officialsand even to members, lawyersare best described in the following critical words of Professor Harold Laski in his book on The American Democracy (1948): Lawyers have been the guardians of immensevested interests.They have orweapons emganized the major offensive ployed in the fightagainst any group, whethera trade union or the League of Women Voters,whichsoughtto promote any kind of social legislation.They have, indeed, built a partnership between themselvesand big business which has often seemed a barrier to all social change.They are rarelyinterestedin the law, and still more rarelyin its relation to justice.Their businessis to protectbig business against the trade unionist, the the semiorganizedfarmersand reformer, even the general public. ProfessorLaski's descriptionof lawyers aptly describes the unions' opinion of lawyers as a group, especially the employer'slawyer.Some of this feelingstill is carried over even to the labor union lawyer,whoseservicesare requiredby the complicatedand changinglabor laws of our day. This historicalhostilityto labor lawyersas well as the carry-overfromemployerlawyersis graduallydisappearing. The growthof federal and state labor 43Hardmanand Neufeld, op. cit., pp. 485-526.

laws which affectcollective bargaining and the internalaffairsof the union has increased the importance and scope of the labor attorneyforthe union and has almost made him a necessity.To cope with the lawyersbroughtin by the employersin collective bargaining,in law cases, in arbitrationcases, and in contractinterpretations, the unions are relying more and more on the servicesof a labor lawyer.Then, too, the old-line labor union leader is giving way to the new labor leader with a greaterbreadth of perception and appreciation for the servicesperformedby a labor lawyer.44 The antipathytowardsthe labor lawyer partlyexplains why labor unions in manycases consulta labor attorneyafter theyhave become involved in legal difficultiesratherthan before.The lawyers reportan evendivisionofconsultationby unions before and after taking action, with no discerniblepatterns.Local unions withsmall treasuriesare morelikely to take action and consulta lawyerafter theyare involvedin legal problemsthan thelargerunions,whichare beginningto relymore on legal advice prior to action. SERVICES TO UNIONS A breakdownof the workof the labor lawyerrevealssome interestingdata. Appearances before administrativelabor agenciesoccupymorelabor lawyersmore regularlythan any other formof legal work.Court litigationforlabor unions is also a regularpart of the practiceof approximatelyone half of the labor lawyers.Anotherimportantservicegenerally performedby most labor lawyers is approval of collectivebargaining agreements,although one out of everysix labor lawyers rarely ever performsthis type of service. One out of every five &&SeeAllen, Our Sovereign States (1949), pp. 51-52; see also Hardman and Neufeld, op. cit., pp. 396-401 and 491.

LABOR UNION LAWYERS labor lawyersregularlynegotiatescollective bargaining agreements,while the same numberrarelyever engage in this phase of labor work. Grievance work prior to arbitrationis seldom done by about half of the labor lawyers,though normallyperformedby one out of every fivelabor lawyers.There is an increasing amount of arbitrationwork,for 30 percent of the lawyersregularlydo arbitrationworkwhile another43 percentdo it occasionally.The revisionor interpretation of union constitutionsand bylaws and other internalaffairsof the unions is also gaining importance,being regularlyperformedby 15 percentofthelabor union lawyersand occasionallyby about half. Three out of everyfour labor lawyers eitherregularlyor occasionallyassist in negotiatingcollective bargaining agreements,which is one of the most important phases of labor law work. Drafting labor legislationoccasionallyis the function of 60 percentof the lawyers,while another 17 percentperformthis service frequently; these lawyers are mostly counsels for state labor bodies. While more than half the labor lawyersappear fromtime to timebeforestateor federal legislativebodies for unions theyrepresent, only 13 percent regularlyappear beforethe legislativebodies. Strikestrategy, legislativematters,and contract negotiations are the policies which require the continual guidance of the labor lawyer,for25 percentregularly advise on strikestrategy,and 35 percent on legislativeand contractnegotiations. Approximately20 percent of the labor lawyers regularly advise on the problemsunder the union's constitution and on internalaffairsof the union. In mattersof discipline,four out of ten labor lawyersrarelyif ever advise on the internalaffairsof the union. That one thirdof the labor lawyersseldom advise

359

on problemsarisingundertheunion constitutionis surprisingto note. Approximatelyfour out of ten of the unions regularly follow the advice of theirlabor lawyerson settlementof contracts,legislative matters,and strategy. In mattersof discipline,however,unions make their own decisions,regularlyfollowinglegal advice only29 percentof the time and ignoring such advice in one thirdof the cases. COLLECTIVE BARGAINING AND RELATED FIELDS The mostimportantinstitutionin the labor lawyers'field,collectivebargaining, is the "preventivephase" of labor law designedto stabilize the employmentrelationship without resort to economic force.It involvesthe relationsof groups of people, both of the group and outsidersand of the group and the individual membersof which it is composed. Unlike the problemsinvolved in aggregations of property,these problems require a different approach. Althoughthe labor lawyerand the union must know the federal and state laws relative to strikersand picketing, as well as the rightsand dutiesof thepartiesunder the labor relationslaws, ordinarylegal sanctions are oftenunavailable, for the conflictsof interestsbetweenemployersand employees and between groups of employeesare scarcelyamenable to the ordinaryprocessesof adjudication.The labor lawyer must understand the practical problemsrelative to seniority,pensions, discharges, wage structuresand piece rates, management prerogatives, job security,workingconditions,insurance, grievancesand similarclauses,forvoluntary adjustments and negotiations are more important than litigation in the fieldof labor relations.It is in this field with its 100,000 collective bargaining agreementssettingthe "law of theplant"

360

INDUSTRIAL AND LABOR RELATIONS REVIEW

that the labor lawyer is becoming increasinglyimportantto labor organizations.45 Labor lawyers, along with managementlawyers,feelthatthereis an importantserviceto be renderedby lawyersat the initial stage of advice, as to contract termsand application, and at the final stageof arbitration.Both sides also agree that the lawyer must understand the interplayof forces that comprise labor relations,and that he must realize that his client's position is ordinarily best servedby the maintenanceof a working relationshipin the spirit of mutual cooperation.They also agree that a lawyer who thinksin termsof abstractions,of legal rights and duties, and who conducts himselfas if he were representing a litigantin an adversaryproceedingbeforea court,is littlefittedforthe responsibilitiesin the field.46Even at arbitration hearings,labor and managementattorneysseem to agree that a rigid insistenceupon proceduraltechniquesand rules of evidence can do little but disserviceto a client. In courtlitigation,which occupies approximatelyhalf of the labor lawyers regularlyand the otherhalf occasionally, thenatureof the courtcases has changed over the years.Damage suits,injunction suits, and criminal cases once were the principal sources of labor court work, but more recentlylabor litigation has changed to suits over internal affairsof 45See Shaw, "Labor Law for the Average Lawyer's Practice," CCH Labor Law Journal (Nov. 1949), p. 132; see also Wirtz, "Lawyers in Industrial Relations," Fortune Magazine (April 1949), p. 153. For an excellent descriptionof the work of a union house counsel, see Kennedy, "The Law Department of the Brotherhood of Railroad Trainmen" in Hardman and Neufeld, op. cit., pp. 394-396. "Collective Bargaining: Lawyer's Role 46Wirtz, in Negotiations and Arbitrations,"34 American Bar Association (July 1948), pp. 547-552; see also American Bar Association,Procedure of Section of Labor Relations Law (1950), pp. 56-59.

labor unions,enforcementof arbitration awards and contractclauses, and problems relativeto administrativeagencies. In spite of the servicesperformedby labor lawyers,unions do a considerable amount of theirown work. Three quartersof the labor lawyersreportthat unions which they representhandle their own negotiationand grievanceproblems. In arbitration,social security,and unemploymentcompensationcases, unions conduct their own affairs,according to nearly 60 percent of the labor lawyers. Approximately50 percent stated that unionsdo mostof theirown NLRB cases, 40 percentansweredthat unions present their own arbitrationcases, while one quarter reported that unions handle theirown industrialaccidentcases. In all these cases, the union relies on the governmentagency,or even the arbitrator, to obtain all the facts and to see that justice is done, even when the union presentsa poorlyprepared case. There are some differencesin the servicesrenderedbyAFL lawyersas compared with CIO attorneys.More than half the AFL lawyers,as comparedwith one thirdof the CIO attorneys, regularly do litigationwork. Nearly all the AFL attorneysreported that they assist in negotiations,but only three quartersof the CIO lawyers performthis service. Legislativedraftingoccupies the time of seven out of ten AFL lawyersand one out of two CIO attorneys.In addition, the AFL not only requests advice from its lawyers (85 percent of them) more frequentlythan theCIO (43 percent)but also moreoftenheeds it. PUBLIC RELATIONS Public relationsis anotherfacetof the labor lawyers'duties. Four out of every ten labor lawyersreportedthat theydo public relationsworkforthe unions they represent. Part of this work includes

LABOR UNION LAWYERS draftingspeeches for the officialsof the unions, for 40 percent of all the union reportedthattheyperformthis attorneys type of service.Eight out of ten labor lawyersmake speechesbeforetheirclient labor groups or before outside groups on labor topics. Approximately40 percent of the labor lawyershave written articlesor books in the labor field,and the same numberwritelabor articlesfor thejournals or papers of thelabor organizations.Nearly 70 percentof the house counsel write articles for the union's paper, and nearlyall house counsel have writtenoutside articlesor books in the labor field.These public relations services have been increasingas unions have come to recognize the importance of good public relations. To the general public, the labor lawyer is often the of theunion, forhe public representative appears at lectures,debates,forums,and combeforelegislativeand administrative mittees.

361

sonal and telephoneadvice or even written opinions. The work for the individual union membercovers a wide varietyof fields. Legal problems relative to wills and estates are most prevalent, closely followed by real estate and tort cases. Industrial accident and unemployment compensation cases, which are closely allied to labor work,come next and occupy more than half the labor lawyers. Tax work and social securityproblems are handled by slightlyless than half of the labor lawyers. The factthat a labor union has an attorneywho does someworkforindividual membersis no guaranteethat the union membershave adequate individual legal services.In fact,many labor lawyersreport thatbecause of theirlabor specialty and label as a "labor lawyer," the individual union members often do not turn to them for individual legal problems. includingprobate,tort,real estate, criminal,and otherlegal work. In addiSERVICES TO INDIVIDUALS tion, because of the pitfallsof internal union politics involvingofficials, the unMost labor lawyersreportthattheyare called upon and expectedto do consider- ion attorneysin manycases do littlelegal able free work. This includes not only workforindividualunion members.The public appearances at meetings,confer- limitationsof the Code of Legal Ethics47 ences,and legislativebodies but also per- also prevent many labor lawyers from activelysoliciting the legal business of sonal legal work for the officersof the the individual membersof the labor orunion, personal advice to some of the members,and work for small affiliated ganization.There seems to be a definite need foreducationof theunion members local unions. of More than threequarters of the law- as well as a possible reinterpretation the Code of Legal Ethics in this fieldto yers report that they do personal legal make available to the individual union while seven out work forunion officials, membersmore adequate legal services. of eight labor lawyersstate that theydo general legal work for individual memIMPROVEMENTS IN LABOR bers of the union. Approximatelyone LAW PRACTICE quarter of theselawyersreportthat they Labor lawyers offer several specific are paid forthisworkby theunion,while for the various groups insuggestions theremainderare paid directlyby the in47Canon that the professionalservices states 35 dividual membersof the union. Generof a lawyershould not be controlledor exploited ally,the lawyersreport,thistypeof work by a lay agency, personal or corporate, which is nonlucrativewhen it consistsof per- intervenesbetween client and lawyer.

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INDUSTRIAL AND LABOR RELATIONS REVIEW

volved forthe improvementof labor law practice.First,for the labor unions, the labor lawyers suggest that the unions should be more educated to the services available to themfromlabor lawyers.In particular,theyfeel that unions do not sufficiently take advantageof the services oflawyersin thepreparationof contracts, negotiations,and arbitrations,and in securingadvice relativeto internalaffairs and "preventivelaw," ratherthanrelying on lawyers as necessary "evils" for emergenciesonly. In addition, many labor lawyers suggest that the unions should be educated about the monetary value of legal services;theyfeel that the unions are not preparedto pay adequate fees for labor law work. They also suggest that unions should provide for a closerrelationshipbetweengeneralcounsels forinternationalunions and thefield attorneys.In addition, many labor attorneyscomplain that labor clientstend to give themeithera distortedor incomplete pictureof the factsin a given case. Labor lawyersalso criticizethemselves. First,theycensuresome of theirbrethern for overcharging labor organizations. Secondly,theyalso state that some labor lawyersshould be better trained in labor law and in thehistoryand philosophy of the labor movement. Finally, they recommendthatsomelabor lawyersshow more independence in advising their clients; the lawyersalso should obtain a complete picture of the case as well as briefingbefore the hearhave sufficient ing. Labor lawyersoffersome suggestions relative to lawyers on the employer's side. First of all, they claim that many lawyersoftenare too legalisticand technical in labor relations; they also state that some employers'attorneysfoment trouble and prolong disputes to obtain largerfees. They suggestthat collective bargainingcan be improvedby more at-

tentionto carefuldraftingand the avoidance of concealed reservationsby company lawyers. Closer cooperation and discussions among labor lawyersas well as among all lawyersengagedin labor relationsare also recommended by labor attorneys. Some bar associations,according to the labor lawyers,have failed to perform theirfunctionsby neglectinglabor relations work. Many labor attorneysfeel that a separate bar associationfor labor lawyersshould be established. Labor lawyersalso suggestthat there be a public relations campaign to educate the public about the servicesof the labor lawyer.Too oftenthe generalpublic, on thebasis of "guilt throughassociation," criticizesthe labor lawyerfor the cause he is defending. Although the stigmain being a "labor lawyer"is gradually disappearing,some elementsof resentmentand stigmastill exist. Labor lawyersmake severalsuggestions for studentsdesiringto practice in the labor field. Practical experience in the factory, membershipin labor unions,and attendance at meetings and grievance and arbitration hearings are listed as primary requisites. In addition, labor lawyerssuggeststudyin economics,statistics,political science,labor union historyand theory,and public speakingin college; and labor, administrative,and constitutionallaw coursesin law schools. Specialized courses in grievanceprocedure and arbitration are also recommended. Training in the government field,especiallyin labor relations,or an apprenticeshipin a good law firmspecializingin workforlabor unions is also helpful.Furthermore,labor lawyersrecommendthatthelawyerkeep his practice generaland diffuseso thatno one union dominates,thusaiding thelawyerto keep his independence and avoid problems with changingpolitical and internalad-

LABOR UNION LAWYERS ministrations.48 Most labor lawyersalso statethatthereare growingopportunities for a young practitionerin moderatesized communities,where the unions generally do not have established arrangementsforlegal services. STATUS OF LABOR LAWYERS Labor lawyerslike their work. They are partisansof the underdog. Bargaining on the behalf of workingpeople appeals to them.They take pride in helping to better the economic and social statusof workingpeople. The labor lawyerhas been called "the most intimate member of the union household" of all the professionalsserving labor organizations.49 Not only was the lawyer the firstprofessionalto be regularlyemployedby labor unions,but his influenceand workhave recentlybeen increasingwiththerapid developmentof labor organizationsand labor laws. For thelabor organization,he performs many valuable and varied services:(1) he interpretsthe various laws forthe unions; (2) in manyinstances,he mayput the union on a more equal footingwith the company in collectivebargaining;(3) in arbitration,he maybe in a betterpositionto present the case for the union and to cope with the company's attorney;(4) he advises the union relative to policy, strategy,rights,duties, and obligations which may be overlookedby the union officials; (5) he can adviserelativeto "due process"and the legal problemsinvolved 48Althoughno data are available on changes in lawyerswith changes in union administration (as in the United Auto Workerswith the victory of the Reuther forces),there are signs that local unions in particular change lawyerswith changes in administration,which occur more frequently than at the national level. As one author says, "Personal connections,personal beliefs, political ambitions,and professionalcompetence have determinedthe choice of lawyers." (Hardman and Neufeld, op. cit., p. 400); see also Katz, op. cit. 49Hardmanand Neufeld, op. cit., pp. 396-400.

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in the internal affairsof the union; (6) he does considerable"nonlegal" workin the economic,statistical,and public relations fields for the union; and (7) he helps interpretthe union to the public and to give societya betterunderstanding of the aims, ideals, and operations of labor organizations. Althoughunions have been criticalof lawyersand judges,unions should also be gratefulfortheworkof labor and liberal lawyers who have rendered important legal servicesto the labor movementor aided in its development.Unions owe much to their labor lawyers,who have defended the rightsof the labor movement and who have won importantvictories for labor organizations.In addition, they are indebted to the liberal lawyersand law professorswho worked with them,especially in draftinglabor legislation,when they could not afford to pay the customaryfeesforgood legal talent.Furthermore, the workof some of the fivehundred governmentlawyersin administeringthe federallaws protective of labor's rightshas also been an important formof legal contributionto the labor movement,fornot onlydid theywin judicial approval of the new regulations and laws, but they are daily enforcing legal rightsfor the laboring man. The labor lawyerhas an increasingly importantrole, for he exercisesa growing influenceon the actions and policies of a powerfulforcein our economy.His place in the dynamiclabor movementis securelyfixedby theexpandingfunctions he performsand by the way theyare performed.50His legal training can help 50Contrastthis with the difficulty unions had as late as 1937 in securing legal services.In that year, the United Shoe WorkersUnion strikersat Lewiston and Auburn, Maine, could not obtain local counsel, while the Steel WorkersOrganizing Committee had to pay premium prices for lawyers to defend its members against criminal charges in Pennsylvania and Ohio towns. (See Hardman and Neufeld, op. cit., p. 400.)

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to make collectivebargaininga moresuccessfulmeans of settlinglabor problems than resortto economic force.Since the nature of unions has molded a usually relationnarrow,intimateattorney-client ship, the labor lawyeris in a position to make valuable contributionsto the field of industrialrelationsand labor law, to "due process" in internal union problems,and to the welfareof the union, its members,and the community,and to help dispel some of the antagonismof labor against lawyersand the legal profession.

Indeed, the labor lawyer,just like the corporatelawyer,"invariablyadvises his clientupon not only what is permissible but also what is desirable. And it is in thepublic interestthatthelawyershould regard himselfas more than predictor of legal consequences.His dutyto society as well as to his clientinvolvesmanyrelevant social, political, and philosophical considerations."51 1Judge Wyzanskiin U.S. v. United Shoe Mach. Corp., 89 Fed. Supp. 357, 359.