A. A. Mathews Associates

National Labor Relations Board - Board Decisions

Nov 13, 1972

200 N.L.R.B. 250 (N.L.R.B. 1972)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. A. Mathews Associates and Local 77, Internation-
al Union of Operating Engineers , AFL-CIO,
Petitioner. Case 5-RC-8050
November 13, 1972
DECISION ON REVIEW
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On May 31, 1972, the Acting Regional Director for
Region 5 issued a Decision and Direction of Election
in the above-entitled proceeding in which he directed
elections in two voting groups. One voting group
consisted of inspectors and inspector-trainees; the
other professional employees, including engineer-
inspectors whom he found to be professionals, and
Engineers Joe Antonelli, Jon Blanck, and Arthur
Simpson whom all parties agree are professionals. He
also found Engineer-Inspectors Doyle Jones and Jon
Whyte to be supervisors and, accordingly, excluded
them from the voting group. Thereafter, in accord-
ance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer and the Petitioner filed
timely requests for review. The Employer contends
that there was error in finding Jones and Whyte to be
supervisors. The Petitioner contends that there was
error in finding the engineer-inspectors to be profes-
sionals and that Engineers Antonelli, Blanck, and
Simpson should be excluded from the unit.
On June 28, 1972, the National Labor Relations
Board, by telegraphic order, granted both requests
for review and stayed the election pending decision
on review. Thereafter, the Petitioner filed a memo-
randum on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings of fact:
The Employer provides engineering inspection
services in Washington, D.C., on two construction
sites known as the Rock Creek tunnel and Dupont
Circle station projects which are being constructed
for the Washington Metropolitan Area Transit
Authority.' The Employer's overall operation is
directed by Area Manager L. B. True who maintains
an office at 1346 Connecticut Avenue in Washing-
ton, P.C. Also located at that office are two of the
engineers whose unit placement is disputed, and an
office'] clerical employee. The third engineer whose
unit placement is disputed, Blanck, spends a substan-
tial portion of his time in the field. The Employer's
resident engineers, F. A. Huntington and C. H.
Arnold, directly supervise the Employer's inspection
work at the Rock Creek tunnel and the Dupont
Circle station jobsites, respectively.2 There are five
engineer-inspectors (including alleged supervisor
Whyte), four inspectors, and one inspector-trainee
employed on the Rock Creek tunnel job. At the
Dupont Circle station job, two engineer-inspectors
(including alleged supervisor Jones) and one inspec-
tor are employed. The Petitioner seeks, in effect, to
represent a single unit of all engineer-inspectors,
inspectors, and inspector-trainees, excluding, inter
alios, professional employees.
With respect to the professional status of the
engineer-inspectors, the record shows those employ-
ees hired for inspection work who hold engineering
degrees are so classified, whereas those who lack
degrees are classified as inspectors or inspector-
trainees depending on their level of experience.
Regardless of classification, the principal function of
all employees engaged in inspection work is to
confirm that the construction being performed by the
Authority's contractors is in accordance with the
contract plans and specifications.
In addition to their inspection duties, the engineer-
inspectors are occasionally assigned other work such
as making engineering calculations in connection
with contract modifications which the Employer
recommends to the Authority, as well as other
functions which make use of their educational
background. Furthermore, there is testimony that the
engineer-inspectors are capable of exercising more
discretion than the employees who do not have
formal engineering education. For these reasons, the
Employer seeks to maintain a mixed complement of
engineers and nonengineers engaged in inspection
work.
However, Area Manager True testified that only a
small portion of the engineer-inspectors' time is spent
performing assignments other than inspection work.
With regard to the following engineer-inspectors,
True gave more specific testimony as follows: John
Amelunxen spent approximately 95 percent of his
time in the past year engaged in inspection work and
his remaining time was spent doing contract modifi-
cation work; Karl Franz, whose educational back-
ground is in geological engineering, spends 85 to 90
percent of his time engaged in inspection work while
the remaining time is usually spent preparing
geological reports for the Employer; Benjamin
Anderson spends approximately 55 percent of his
time engaged in inspection work and in the other 45
i Hereinafter called the Authority be excluded as supervisors and that the office clerical employee should be
2 The parties are in agreement that True, Huntington, and Arnold should excluded
200 NLRB No. 40
A. A. MATHEWS ASSOCIATES
percent of his time, he performs such work as making
engineering calculations with respect to quantities
and modifications, checking shop drawings, and
performing other engineering functions. There is no
specific testimony with respect to the amount of time
the Employer's other engineer-inspectors spend in
performing duties other than inspection work.
Furthermore, True testified that some of the engi-
neering calculations performed by its engineer-in-
spectors could be performed by an experienced
inspector and that although the Employer's pay rates
are based on the nature of the work performed by its
employees engaged in inspection work, some of the
inspectors earn more than some of its engineer-
inspectors.
Under Section 2(12) of the Act, it is the work
performed and the "consistent exercise of discretion
and judgment in its performance," rather than the
employee's qualifications, which is controlling in
determining whether an individual is a professional
employee.3 Applying that test to the record herein,
we conclude, contrary to the Acting Regional
Director, that the engineer-inspectors are not profes-
sional employees within the meaning of the Act. As
detailed above, the major portion of the engineer-
inspectors' work involves inspection of construction
work similar to that performed by admittedly
nonprofessional employees herein. Moreover, such
inspection work is similar to that of others whom the
Board has found not to be professional employees .4
Even assuming the other duties assigned the engi-
neer-inspectors involve the exercise of discretion and
judgment predominantly intellectual in character, the
record before us does not warrant finding that these
employees consistently exercise such discretion and
judgment as required by Section 2(12).5 Accordingly,
as these employees have a close community of
interest with other employees engaged in inspection
work, we shall include them together in the same
unit.
The Petitioner, contrary to the Employer, seeks to
exclude Jones and Whyte as supervisors. Jones is
assigned to the Rock Creek tunnel job and Whyte
4 Wurrster, Bernardi & Emmons, Inc, 192 NLRB No. 121, Hertzka &
Knowles, 192 NLRB No. 126; Starrett Brothers & Eken, Incorporated 77
NLRB 275, 280, 281
5 Although our finding herein results principally from evidence showing
that the engineer-inspectors spend such a small portion of their time
performing duties that could require the exercise of professional judgment,
we have considered the evidence that Engineer -Inspector Anderson spends
45 percent of his time performing duties other than inspection Although the
percentage of time spent by Anderson on nonuispection work is higher than
that of the other engineer-inspectors , it is clear that be spends more than a
majority of his time on inspection work. With regard to his other duties,
251
works at the Dupont Circle station job. Both are
classified as engineer-inspectors and spend most of
their time engaged in inspection duties. In addition
to their regular duties, they are also assigned to assist
the resident engineer in charge of their respective
jobs. In this latter regard, their primary function is to
schedule work for others engaged in inspection,
including the assignment of work and the scheduling
of breaks, but we are unable to determine whether
this work is other than routine in nature. There is
testimony that they also have authority to send
employees home for flagrant violations of the
Employer's rules-such as reporting to work intoxi-
cated-and to recommend suspension of employees
for less serious violations; but the evidence does not
disclose that this authority has ever been exercised or
whether their recommendations are effective. Fur-
thermore, we note that in addition to the resident
engineer, an acknowledged supervisor, there are only
two other employees assigned to the Dupont Circle
station job where Jones is employed. In our opinion
the record is inconclusive as to the supervisory status
of Jones and Whyte, and we shall, therefore, permit
them to vote subject to challenge.
The Petitioner and the Employer agree that the
Employer's other engineers , Antonelli, Blanck, and
Simpson, are professional employees. Since the
Petitioner does not seek to represent these employees
and, as the unit is otherwise appropriate, we shall
exclude them .6
Based on the foregoing, we find the following
employees of the Employer constitute a unit appro-
priate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All engineer-inspectors, inspectors and inspector-
trainees employed on the Employer's Rock Creek
tunnel and Dupont Circle station jobs in Wash-
ington, D.C. but excluding office clerical employ-
ees, professional employees, guards and supervi-
sors as defined in the Act.
Accordingly, the case is remanded to the Regional
Director for the purpose of conducting an election
some appear to require judgment that may be professional in character but
the record does not show whether all his other duties detailed above require
like judgment or how his time is divided among these other duties . Under all
the circumstances, we find that the record fails to establish that Anderson is
a professional employee and that he has a close community of interest with
the other engmeer-inspectors.
6 Although there is some record evidence that Simpson's duties are
primarily administrative rather than professional , we would exclude him in
any event as his interests ansing from his separate location , functions, and
working conditions are sufficiently distinct from those of the employees
included in the unit.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to his Decision and Direction of Election,
as modified herein, except that the payroll period for
7 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a hst of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236; N.LR.B v. Wyman-Gordon Co, 394 U.S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
determining eligibility shall be that immediately
preceding the date of issuance.7
by the Employer with the Regional Director for Region 5 within 7 days of
the date of this Decision on Review . The Regional Director shall make the
list available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed.