Starrett Brothers & Eken, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1948

77 N.L.R.B. 275 (N.L.R.B. 1948)

In the Matter of STARRETT BROTHERS & EDEN, INCORPORATED, EM-
PLOYER and ARCHITECTURAL & ENGINEERING GUILD-LOCAL 66, IN-
TERNATIONAL FEDERATION OF TECHNICAL ENGINEERS, ARCHITECTS
& DRAFTSMEN'S UNION, AFL, PETITIONER
Case No. O-RC-93.Decided April 202, 1948
Fidlitz, French, Fink and Markle, by Mr. J. G. Fink, of New York
City, for the Employer
Mr. J. Lawrence Raimist, of New York City, for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on February 5, 1948, before George Turitz, hearing officer.
The hearing officer's rulings made at the hearing are free from prejudi-
cial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Starrett Brothers & Eken, Incorporated,2 a New York corporation,
is engaged in the construction of residential and commercial build-
ings. At the time of the hearing, the Employer had under construc-
tion projects known as Stuyvesant Town, Riverton, the Daily News
Garage, and Pe er Cooper Village. We are here concerned only with
the Peter Cooper Village project. The cost of materials being used
on the Peter Cooper Village project by the Employer and its sub-
contractors exceeds $20,000,000 in value, of which from 25 to 35
percent represents shipments from points outside the State of New
York. Since 1922, the Employer has built projects in eight or nine
'Pursuant b the provisions of Section 3 (b) of the Act, the Board has delegated its
powers In caai,ection with this case to a three -man panel consisting of Board Members
Houston, Muriiuck, and Gray.
7 The name of the Employer appears as amended at the hearing.
77 N. L. R. B., No. 37.
275
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States and in Havana , Cuba. The most recent construction work
engaged in by the Employer outside the State of New York, was in
California in 1944. The Employer stands ready to contract for build-
ing operations to be performed in any part of the United States.
The Employer neither admitted nor denied the Board's jurisdiction.
However, it stated that "we feel that a work stoppage on this job
would or would tend to obstruct the flow of commerce." On all of
the facts, we find, in agreement with the Employer, that the stoppage
of its operations by threatened industrial strife would result in sub-
stantial interruption to, and interference with, the free flow of com-
merce. And we find further that the Employer's operations affect
commerce within the meaning of the National Labor Relations Act.8
IT. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Em-
ployer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit comprising all technical engineering
employees and inspectors employed on the Peter Cooper Village proj-
ect, including chiefs of party, instrument men, front chainmen, rear
chairmen, computers, engineering division estimators, project man-
ager's division estimators, the draftsman, miscellaneous iron in-
spectors, the chief pile inspector, tile inspectors, plaster inspectors,
inspectors of final finish, the mechanical engineer, and assistant me-
chanical engineer, but excluding clerical employees, teamsters, build-
ing trades craftsmen and laborers, employees of subcontractors, and
supervisors. Although the Employer does not object to the requested
unit, it apparently wishes the Board to pass upon the appropriateness
of the unit as well as the correctness of the Petitioner's contention
that none of the employees involved is a professional employee within,
the meaning of the amended Act.
3N L R B v Austin Co, 165 F. ( 2d) 592 (C. C A 7).
STARRETT BROTHERS & EKEN, INCORPORATED 277
Scope of the unit
Each of the Employer's building projects is operated as a separate
unit with no interchange of employees, equipment, or materials. The
Peter Cooper Village project is under the direction of a superinten-
dent who has under him a supervisory staff of chief engineers, as-
sistant superintendents, and a project manager. The work is set
up administratively in divisions, i. e., the engineering division, the
construction division, the mechanical engineer's group, the project
manager's division, and the treasurer's division. The employees in
the requested unit are found in all of these divisions with the exception
of the treasurer's division. The engineering division consists of the
members of a surveying party, i. e., chiefs of party, instrument man,
front chainman, and rear chainman, as well as computers, estimators,
the draftsman, miscellaneous iron inspectors, and the chief pile in-
spector; the construction division comprises the building trades crafts
and laborers, foremen, tile inspectors, plaster inspectors, and in-
spectors of final finish; the mechanical engineer's group embraces
the mechanical engineer and his assistant; the project manager's di-
vision includes estimators, claims collectors, and clerical employees;
and the treasurer's division embraces accountants and office clericals.
With respect to the bargaining history affecting these operations,
the record discloses that the building trades personnel employed on
the Employer's projects, including Peter Cooper Village, are generally
represented for the purposes of collective bargaining by the various
craft unions affiliated with the Building Trades Council of New York
City. These same crafts are signatories to the industry-wide col-
lective bargaining contract applicable in the area. The Petitioner,
also a member of the Building Trades Council of New York City is,
however, not a party to the industry-wide agreement. As of the
(late of the hearing, the Petitioner's bargaining relationships have
been conducted separately in New York City. The Petitioner cur-
rently holds two collective bargaining contracts covering technical
engineering personnel employed in the metropolitan area, one of which
is coextensive with the requested unit in that it also embraces in-
spectors. The record also shows that elsewhere the parent or affiliated
locals of the Petitioner represent units of technical engineers and
inspectors.4 In some localities these agreements and arrangements are
with employer trade associations, while in others the collective bar-
gaining relationship is with individual employers for all or some of
4 The record shows further that the Petitioner represents - inspectors as well as technical
englneeis in 75 percent of the cases in which it has obtained collective bargaining contracts
or arrangements where the Petitioner does not represent inspectors , the latter are
unorganized , represented by the building craft unions , or employed by architects
788S86-49-vol 77-19
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their projects. In the period 1942 to 1943, a sister local of the Peti-
tioner represented technical engineering personnel employed on the
Employer's projects in the Alexandria, Virginia, area. Accordingly,
under all the circumstances, and in the absence of a collective bar-
gaining history on a more comprehensive basis as to the employees
involved herein, we find that those of the requested employees who
have similarity of interests, functions and identity, may function
together for collective bargaining purposes.'
Comaposition of the unit
As already noted, the requested unit is one of technical engineering
employees and inspectors. The Petitioner asserts that they are all
non-professional. The Employer leaves the matter to the Board."
We shall therefore consider each category to determine its professional
or non-professional status as well as its identity of interest and
function with the other categories involved.
Chief of party, instrument man, front chainman, rear clzaimnan:
The chief of party directs the work of the surveying party under the
supervision of the chief engineer in charge of the engineering division.
With the aid of the architect's plans and the computer's field sheets
showing the proposed locations and elevations of buildings, utilities,
playgrounds, curbs, and paths, the chief of party establishes grade
marks for the use of the mechanical trade. He takes settlement eleva-
tions of buildings and, where required, makes surveying computations
involving the use of high school algebra and trigonometry; the chief
of party also keeps the records of field work. He has no supervisory
powers within the meaning of the amended Act.
The instrument man operates the transit and level under the direc-
tion of the chief of party. These instruments enable him to establish
the lines and elevations which are fixed by driving stakes into the
ground. Occasionally, he assists the chief of party in taking notes
and making computations.
The front chairman assists in the work of the surveying party by
making-linear measurements with a surveyor's tape, rule, or level rod,
thereby giving the instrument man sighting points.
The rear chainman assists the front chairman in making linear
measurements and in using the level rod. He also drives the stakes into
the ground for use by the instrument man and front chainman.
The record shows that the accuracy of the measurements of a survey-
ing party depends, to a very large extent, upon the cooperation of the
6 Cf Hale Brothers Stores , Inc, 62 N L R B 367.
G The Employer is apparently concerned about the impact of Section 9 ( b) (1) upon the
requested unit.
STARRETT BROTHERS & EKEN, INCORPORATED 279
remembers of the party as a working unit. The record further shows
that an instrument man may take the place of a chief of party in the
latter's absence, and that chainmen usually progress to the job of in-
strument men. None of the members of the surveying party is re-
quired to possess a professional degree. Authority to hire and dis-
charge members of a surveying party rests with the chief engineer.
Under all these circumstances, we find that all members of a surveying
party perform technical work, predominantly routine and non-profes-
sional in character,' that they have similar and closely related skills
and collective bargaining interests, and that they may function.
together for collective bargaining purposes.
Computer, estimator, draftsman. The computer works under the
supervision of the chief engineer in charge of the engineering divi-
sion. He uses high school algebra and trigonometry in calculating
the angles and distances from co-ordinates shown on the architect's
drawings. He also prepares field or working plans for the surveying
party, and computes the quantity of excavations.
The estimator in the engineering division checks and computes the
quantity of materials installed such as puling, lath and plaster, tile,
and wood flooring. He also computes the elevations of tops of driven
piles. The estimator in the project manager's division estimates the
quantity of materials to be installed and the work to be done. The
record indicates that estimators employed in the engineering division
are interchangeable with estimators employed in the project man-
ager's division.
The draftsman's duties do not appear in the record. We note,
however, that the Dictionary of Occupational Titles published by
the United States Department of Labor defines the duties of the posi-
tion of "draftsman, construction," as follows: "Performs the duties
of draftsman, but specializes in drawing plans in the field of construc-
tion work, making accurate blueprint drawings to scale from design
drawings, verbal instructions, sketches, or field notes." 8
In common with members of a surveying party, the computer, esti-
mator, and draftsman are compensated on a weekly basis, and receive
the same sick leave and severance pay benefits. None of these em-
ployees is required to have an engineering degree or equivalent educa-
tion; their work is essentially routine and non-professional in nature.
In view of these circumstances, we are of the opinion that the com-
puter, estimator, and draftsman possess sufficient interests as tech-
nicians in common with the members of the surveying party, as to
warrant including all of them in the same bargaining unit. Accord-
' Cf. Matter of Jersey Publishing Company, 76 N. L R B 467.
8 U. S. Department of Labor, Dictionary of Occupational Titles, 1939 , pp 290-291.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, we shall include the computer, estimators, and draftsman in
the unit hereinafter found appropriate.
Inspectors: The Petitioner urges that inspectors in the engineering
and construction divisions be included in the unit because, as already
found, most of the Petitioner's collective bargaining contracts through-
out the country embrace these employees. The Petitioner also main-
tains that where, as here, the building craft unions do not seek to
represent such inspectors, it customarily includes them within the
unit of technical employees. The Employer does not object to the
inclusion of inspectors but takes no position as to their professional
status.
The miscellaneous iron inspector, employed in the engineering di-
vision, inspects the installation of iron work, and checks the quantity
of work for payment to the subcontractors,
The chief pile inspector, employed in the engineering division, in-
spects the installation of foundations and steel reinforcing. He checks
the alignment and plumbness of piles, and records the blows of the
hammer to assure a 20-ton capacity pile. Although termed chief pile
inspector, he has no subordinate employees.
The tile, plaster, and final finish inspectors, employed in the con-
struction division, check installations and record the quality and
quantity of materials used. The Employer has no policy with regard
to the recruitment of inspectors. Some are former building trades
craftsmen ; others have been transferred from the technical engineering
staff. Unlike the building trades craftsmen, inspectors are compen-
sated on a weekly basis, and receive sick leave and severance pay bene-
fits in the same manner as the technical engineering personnel. None
of the inspectors directs subordinates or possesses the authority to hire
and discharge. No professional trailing is required of inspectors. In
addition, the Petitioner admits inspectors to membership. Under all
these circumstances and on the entire record in the case, we are of the
opinion that the duties and interests of the inspectors are closely allied
with those of the technical employees. Accordingly, we shall include
the inspectors in the unit.'
Mechanical engineers: The Petitioner seeks the inclusion of the
mechanical engineer and assistant mechanical engineer on the ground
that their duties are inspectorial and routine in character. The Em-
ployer does not object to the inclusion of the mechanical and assistant
mechanical engineer but takes no position with regard to their pro-
fessional status.
Working under the technical supervision of the chief mechanical en-
gineer but administratively responsible to the superintendent, the
a-e Matter o} Ciaaton Mark & Company , 76 N. L . R. B 230
STARRETT BROTHERS & EKEN, INCORPORATED 281
mechanical engineer and his only subordinate, the assistant mechanical
engineer, inspect the installation of all the mechanical work such
as the sanitary sewers, storm sewers, water supply, gas and electricity io
They also compute and record all pipe covering and keep records of the
progress of the mechanical trades. With the aid of original or critical
data supplied by the architect and engineers, the mechanical engineer
coordinates the work of mechanical installation. These duties involve
the performance of more or less repetitive tasks with the exercise of a
limited amount of judgment. A professional engineering degree is
not required of the mechanical engineer or his assistant, although the
fact that the present employees possess such degrees was of material
aid in securing employment. Indeed, the chief engineer who out "ranks
the chief mechanical engineer as well as the mechanical engineer, is not
required to hold an engineering degree or to have had equivalent edu-
cation. The record shows also that the mechanical engineer may also
be described as an inspector of mechanical installations.
We are of the opinion that the work of the mechanical engineer
and his assistant is primarily that of an inspector rather than a pro-
fessional engineer. Accordingly, we shall include the mechanical
engineer and the assistant mechanical engineer in the bargaining unit.
We find that all technical engineering employees and inspectors
engaged on the Employer's Peter Cooper Village project in New York
City, including chiefs of party, instrument men, front chainmen, rear
chainmen, computers, engineering division estimators, project man-
ager's division estimators, the draftsman, miscellaneous iron inspec-
tors, the chief pile inspector, tile inspectors, plaster inspectors, in-
spectors of final finish, the mechanical engineer, and assistant me-
chanical engineer, but excluding office clerical employees, teamsters,
building trades craftsmen and laborers, watchmen, employees of sub-
contractors, and supervisors, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Starrett Brothers & Eken,
Incorporated, New York City, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision
of the Regional Director for. the Second Region, and subject to Sec-
10 Although the mechanical engineer may make recommendations with regard to the
hire and discharge of the assistant mechanical engineer , such recommendations are subject
to the independent investigation and concurrence of the superintendent.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions 203.61 and 203.62, of National Labor Relations Board Rules and
Regulations-Series 5, among the employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether or not they desire to be represented by
Architectural & Engineering Guild-Local 66, International Federa-
tion of Technical Engineers, Architects & Draftsmen's Union, AFL,
for the purposes of collective bargaining.
MEMBER GRAY took no part in the consideration of the above Deci-
sion and Direction of Election.