Skidmore, Owings & Merrill

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 920 (N.L.R.B. 1971)

920 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
Skidmore, Owings & Merrill and Organization of
Architectural, Employees and the Western Council
of Engineers,' Joint Petitioners . Case 20-RC-
9826
August 23, 1971
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer John C.
Montoya. Pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, and by direction of the Regional
Director for Region 20, this proceeding was trans-
ferred to the Board for decision. Thereafter the
Employer `and the Petitioners filed briefs in support
of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations, Board has delegated its
powers in connection with this case to--'a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this, proceeding, the
Board finds:
1. The Petitioners seek to represent certain
employees of the Employer, a partnership which
basically, provides architectural and engineering
services. The parties have stipulated ;that the San
Francisco office of the firm annually for the last 4
years has received fees in excess of $1 million for
work performed by it,, that it' has received fees in
excess of $1 million from clients outside the State of
California, that it has received fees in excess, of $1
million from clients inside the State of California
which themselves are engaged in interstate com-
merce; and that it purchased goods and supplies
valued, in excess of $50,000 from outside the State of
California. The parties 'also stipulated that the
Employer is engaged in commerce, subject to the
Employer's reservation that the Board, as of the time
of the hearing, had not exercised its discretion to
assert jurisdiction over architectural firms. Since
then, the Board has asserted such jurisdiction.
Wurster, Bernardi & Emmons, Inc., 192 NLRB No.
121.
We find that the Employer is engaged in commerce
or in an industry affecting commerce within the
meaning of the Acts and that, it will effectuate the
purposes of - the Act to assert jurisdiction in this
proceeding. 11
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Petitioners seek'an election in a unit of all
professional architectural and engineering employees
located at the San Francisco facilities of the
Employer, ' excluding , all other employees, office
clerical employees, guards and supervisors as defined
in the Act. The parties have' stipulated that the
general and associate partners in the, firm should be
excluded from the unit. The parties also agreed on
the exclusion - of various named individuals as
supervisors and on the exclusion of shop drawing
clerks, the specifications typist, and junior interior
designer Michnay, as nonprofessionals engaged in
clerical work.,
The firm is' a partnership providing architectural
design and engineering services, including planning,
landscape architecture, interior design, and graphics,
pri marily for educational and commercial buildings
involving i average construction costs of from $3
million to $20 million. There are 21, general partners
located in five permanent offices. across the country.
Only the San Francisco office, where theri are five
general partners and six associate partners, is
.involved in this proceeding. One partner from each
city is on the firm's executive., committee; however,
there, is no overall supervision or interchange of work
responsibility or of employees on a permanent basis
and, apparently, as a practical matter each, office
operates as a separate entity.
The parties, in the main, agree on the composition
of the unit but differ on the inclusion of-,certain
specific categories and individuals. The Employer
would include, but the Petitioners would exclude as
lacking a sufficient , community, of interest, all
participating associates whether supervisors or not;
there are 26 engineers and architects in this category,
of I whom 8 were stipulated to ' be supervisors.
Generally, a participating associate is a senior and
more experienced employee, but the work of partici-
pating associates is the same as that of other
employees in the same job classification, and the
status does not in itself confer any supervisory
authority. The main distinction between participa-
ting associates and other employees lies in the
compensation and benefits received. A participating
associate receives an annual salary plus a bonus
3 The names of the Employer and the Petitioners appear as amended.
192 NLRB No. 125
SKIDMORE, OWINGS & MERRILL
derived from the profits of the entire firm in an
amount determined by the general partners based on
the associate's value to the firm . Other employees
receive an hourly , wage plus a bonus based on their
wages and number of years with the firm , which is
charged as -an expense to the San Francisco office.
Additionally, participating associates receive 3-week
vacations , while the vacations of other employees are
determined by their length of service with the firm,
and participating associates have their ALI.A. dues
paid by the firm in distinction to other employees.
Their -working conditions generally are the same as
those of other - employees , and their holidays, and
health and life insurance - benefits are the same. On
the basis -of the foregoing, we conclude that partici-
pating associates possess a sufficient community of
interest to be included in the unit. -
A partner is in charge of each project , assisted by
an architect in the project manager classification who
is responsible -, for the day-to-day management.
Project _managers, come into frequent contact with
clients and for this reason have, with two exceptions,
private offices where they may confer , with clients. A
job captain becomes involved in a project after the
basic design has been prepared and is responsible for
the architectural - working drawings and for coordi-
nating engineering drawings . Neither project manag-
ers nor job captains, as such , have authority to hire,
€ire,"`discipline , orI grant benefits to any lemployee,
nor do they effectively recommend sueh action.
While they may influence the assignments of
overtime, `they do not have final authority in this
area . Both-have some discretion in assigning work
and are professionally responsible -for the quality of
work performed on a, project to which they are
assigned ." The Employer would include them in the
unit and the Petitioners would exclude them,
apparently on the ground that they are supervisors.
We conclude ` that ^ neither project ' managers nor job
captains are supervisors within the meaning of the
Act, -but merely provide professional direction and
coordination. , for other professional employees and
shalt -nclude* them ,in the unit. -
The- interior design and graphics department has
approximately -12 ' employees and is responsible for
the interior design of a• building including the
location of walls, offices , and furniture, and for the
choice of materials and furniture . Employees in this
department also design paving patterns, street
furnishings, all exterior architectural features exclud-
ing landscaping, lettering for signs , and prepare
brochures for clients . The Employer would include
them in the unit and the Petitioners would exclude
them . With the exception of one employee who is a
licensed architect, all have fine arts degrees. Their
work is varied and intellectual and requires the
921
consistent application of discretion. The head of the
department testified that only a ' small number of
schools offer a degree in interior design, that -in her
opinion interior designers lacked - a sense of profes-
sional identity , that there is no State which licenses
interior designers as such and that anyone who
wished to do so may describe himself as, an interior
designer. Although it is readily apparent -that the
employees in, the department perform intellectual
and varied work , involving the exercise of discretion
or judgment, it is equally clear that it does, not
involve knowledge "customarily acquired by a
prolonged course of specialized intellectual instruc-
tion and study in an institution of higher learning
as distinguished from a general academic
education . . ." as stated in Section 2(12) of -the-Act,
and is more of an art -than a profession. The question
is a close one; however;- we conclude that the
Employer's employees in the interior - design and
graphics department are not engaged in work which,
qualifies them as professional employees within the
meaning of the Act and shall exclude"them -from the
unit. '
Neither the Employer nor the Petitioners `would
exclude students as such but would include them or
exclude them depending upon the nature of their
work. The parties agree that students classified as
junior architectural draftsmen are professionals and
should be included in the unit ; at the , time of-- the
hearing there was one employee in-this classification.
Additionally , there were three students classified as
such . The record establishes that the latter perform
only routine drafting which does not require the
consistent exercise of discretion and we shall exclude
them. -
The firm employs two structural draftsmen whom
the Employer would -include in the unit and whom
the Petitioners would exclude, since in the -Petition-
ers' view they are not engineers but draftsmen: (The
professional status of employees, with one exception
discussed below, classified as draftsmen in -other
departments has not been questioned .) There is no
indication in; the record that they are performing
work' under the direction of, a professional and have
the potential of becoming professionals themselves;
neither, however, is there any evidence that they are
not. The head of their department testified that there'
was only one civil engineer in the department, and
the Employer's brief includes them in an appendix
devoted to employees whom it considers to be
professionals although lacking degrees and licenses.
The situation is confused, however, by the fact that
an exhibit received into evidence indicates they do in
fact possess degrees, though not indicating the field,
and the fact that the appendix to the Employer's
brief asserts they they possess degrees in civil
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engineering without -indicating any source in the
record for, this assertion. The record indicates that
they perform structural drafting involving the exer-
cise; of some discretion and independent judgment,
but in the main their duties appear to be routine. In
view of the possibility that the head of the depart-
ment, in stating that there was only one civil engineer
in the . department, might have meant that only one
individual was working as a civil engineer, and the
absence of testimony on whether or not their duties
are performed under the direction of a professional
in order to prepare them for the assumption of
professional responsibilities, we conclude that the
evidence is insufficient to establish their status and
shall, permit -them to vote subject to challenge.
The, status of;one mechanical draftsman, Doescher,
is raised by the Petitioners who would exclude her
from,the unit; the Employer. would include her. The
record indicates that she does not have a degree but
has had some courses in architectural drafting. The
head of the mechanical department testified that
work was -primarily drafting and involved very little
exercise of professional judgment and discretion. We
shall exclude her from the unit.
The Petitioners contend that one field representa-
tive, Korner, should be excluded from the unit as a
supervisor, asserting that he is responsible for the
work of another field representative. Field represent-
atives are the Employer's jobsite representatives in
charge of, ,construction; they interpret the intent of
the drawings and -specifications and approve the
quality of the work performed. Korner is presently in
charge of a project in Buffalo where he works with
another field . representative who assists him and
reports to him. He does not have authority to hire or
fire , or to effectively recommend such action, and he
has not, apparently, been asked to judge the quality
of the work of the other field representative at the
jobsite.' We find that Korner, is not a supervisor and
shall include him in the unit.
The Petitioners would also exclude one computer
2 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 list .of voters and ;that
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N.LLB. 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
department employee, Calder, on the ground that she
is not, a, professional; the Employer contends that she
is a professional and would include her. She. develops
instructions, for use of computer ^ programs that can
be understood by architectural employees, so that an
architectural employee who is .not familiar with
computer operations can use the computer effective-
ly. Additionally, she may-, be presented a, specific
problem and asked to solve the problem with the
computer. The job requires a knowledge of architec-
tural terminology, requirements, and method -of
operation and is not one that could be performed by
a computer programmer as such. Calder has no
formal architectural, background, but has a degree in
French- and has attended several schools conducted
by computer firms to train individuals in the use- of
their systems, and apparently - has ' also received
training from persons brought in for that purpose.
The head of the computer department testified; in
effect, that an individuals" with the proper intellectual
capacity` and the willingness to spend a year learning
the problems` and operations of - an architectural
practice, who `had the innate ability to recognize the
capabilities and limitations of a computer andeould
deal'with people intense situation, think clearly and
rationally, and come up with positive solutions, could
perform the job. We conclude that Calder is not a
professional employee as defined,in the Act and shall,
exclude her from the unit.
We find that the following employees of the
Employer have a sufficient community of interest to
constitute a unit appropriate for 'the, purposes of
collective bargaining with the , meaning of Section
9(b) of the Act:
All professional architectural and engineering
employees at , the Employer's San, Francisco
facilities, excluding all, other employees, office,
clerical employees,, guards - and supervisors as
defined in the Act.
[Direction of Election2 -omitted from, publication.]
by the Employer with the Regional Director for Region 20 withiu '7 days of
the date of this Decision and Direction'of Election : The Regional Director
shall make , the list available to all parties to the -election . Noextension 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.