The Austin Co.

National Labor Relations Board - Board Decisions

May 25, 1948

77 N.L.R.B. 938 (N.L.R.B. 1948)

In the Matter of THE AUSTIN COMPANY,' EMPLOYER and SEATTLE
PROFESSIONAL ENGINEERING EMPLOYEES ASSOCIATION, PETITIONER
Case No. 19-R,0104.-Decided May 2. , 1948
Messrs. J. Paul Coie and R. I. Woglum, both of Seattle, Wash., for
the Employer.
Houghton, Cluck, Coughlin and Henry, by Mr. Jack R. Cluck, for
the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Seattle,
Washington, on July 24,1947, before Daniel R. Dimick, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-man
panel consistint of the undersigned Board Members.*
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Austin Company, an Ohio corporation, is engaged in the busi-
ness of designing and constructing office and industrial buildings and
structures throughout the United States, Canada, and" other countries.
This proceeding is concerned solely with the Employer's district office
in Seattle, Washington. In 1946, the Seattle office rendered $1,000,000
worth of engineering and construction services, of which 20 percent
involved projects outside the State of Washington. In the same year,
purchases of materials and services for use in connection with projects
within the Seattle district approximated $2,000,000, of which a "sig-
nificant" amount came from without the State.
'Houston, Murdock , and Gray.
' The name of the Employer appears as amended at the hearing.
77 N. L. R. B., No. 148.
938
THE AUSTIN COMPANY 939
The Employer admits that it is engaged in operations that affect
interstate commerce within the meaning of the National Labor Rela-
tions Act. Nevertheless, the Employer contends that the Board should
as a matter of policy refuse to assert jurisdiction in this proceeding
on the ground that its business is part of the building and construc-
tion industry. However, we find it unnecessary in this case to pass
upon the question of policy raised by the Employer's contention for we
do not consider the Employer's business such as constitutes an integral
part of the building and construction industry.2 Moreover, we have
previously assumed jurisdiction over the Employer in a complaint
proceeding involving its Chicago, Illinois, district office.'
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.4
H. THE ORGANIZATION INVOLVED
The Petitioner is an unaffiliated labor organization claiming to rep-
resent employees of the Employer.
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 exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of the professional engineering employees
in the Employer's Seattle, Washington, district office, including esti-
mators, but excluding supervisors.5 The Employer does not dispute
the appropriateness of this unit except to contend (1) that the esti-
mators are not professional employees and therefore should not be
included and (2) that certain other individuals whom the Petitioner
would include are supervisors and should be excluded.
2 Cf Matter of De Leuw, Lather & Company, 72 N. L. R. B. 191; Matter of Foster D.
Snell, Inc, 69 N. L. R. B 764.
8 Matter o f The Austin Company, 70 N. L. R B 851, enforced 165 F. ( 2d) 592 (C C. A. 7).
' The Employer 's motion to dismiss on jurisdictional grounds is hereby denied.
5 The Petitioner defines its proposed unit as follows : "Professional engineering em-
ployees , namely employees who possess an intimate knowledge of mathematics and physical
sciences gained by scientific or technological education, training or experience and who
apply this knowledge in the planning , design or utilization of forces and materials for use
in structures , machines and products, performing services in which the exercise of indi-
vidual judgment is primary factor."
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The professional status of the estimators G
The Estimating Department at the Seattle district office consists of
five estimators, of whom two have, been designated by the Employer
as Assistant District Estimators to direct the work of the department.
The estimators' functions may be described as follows : When a sales-
man initially brings in a "job," a brief estimate is prepared on the
basis of a rough sketch showing the size of the structure and what is
desired in it. With this brief estimate as a selling point, the sales-
man consummates the sale, whereupon the "job" is resubmitted and a
further break-down of the estimate is prepared from later, more com-
plete drawings. Thus, two functions are ascribed to the estimates, i. e.,
to secure the contract, and to perform the contract. An official of the
Employer defined estimating as a "science of knowing plans, taking
off quantities, including units, and thereby arriving at prices." In,
essence it appears that the estimators ascertain the amount of various
materials required for construction, from a sketch or blueprint, and
compute costs thereon.
The testimony established that although it is not necessary for
the Employer's estimators to be graduate engineers, such qualifi-.ation
is helpful and desirable. It was revealed, however, that substantially
all of these estimators have engineering degrees. The record further
indicates that estimators must possess a high degree of intellectual
ability and a substantial background of training, education, and ex-
perience. Furthermore, in the performance of their duties they are
required to exercise considerable judgment and discretion. There is
also evidence that in practice estimators frequently receive requests
for their services in the form of incomplete preliminary drawings and
it is incumbent upon them to add to these drawings important parts
of the plant or structure in order to arrive at a fair estimate. In addi-
tion, there is substantial evidence of interchange of employees between
Section 2 (12) of the Taft-Hartley Act reads as follows :
The term professional employee means :-
(a) any employee engaged in work ( 1) predominantly intellectual and varied in char-
acter as opposed to routine mental, manual , mechanical , or physical work ; ( ii) in-
volving the consistent exercise of discretion and judgment in its performance ; ( iii) of
such a character that the output produced or the result accomplished cannot be stand-
ardized in relation to a given period of time; (iv) requiring knowledge of an advanced
type in a field of science or learning customarily acquired by a prolonged course of
specialized intellectual instruction and study in an institution of higher learning or a
hospital, as distinguished from a general academic education or from an apprenticeship .
or from training in the performance of routine mental, manual , or physical processes ;
or
(b) any employee, who (i) has completed the courses of specialized intellectual instruc-
tion and study described in clause (iv) of paragraph ( a), and ( ii) is performing re-
lated work under the supervision of a professional person to qualify himself to become
a professional employee as defined in paragraph (a).
THE AUSTIN COMPANY 941
the Estimating and the Engineering Departments and of close coordi-
nation in the operations of these departments.
The Employer contends that the Petitioner's constitution, which de-
fines qualified professional engineers, precludes the admission into that
union of the estimators in question and that, therefore, the Petitioner
may not be certified to represent these employees. However, apart
from the question of the accurateness of this contention, the record
shows that the estimators are in fact members of the Petitioner.
In view of the foregoing and the entire record of the case, we are
of the opinion that the Employer's estimators are professional em-
ployees within the meaning of Section 2 (12) of the Act, as amended.7
We shall therefore include them in the appropriate unit.
2. The alleged supervisors
The Seattle district office, under the top supervision of a District
Manager and a District Auditor, employs a total of 55 employees. The
office is organizationally divided by the Employer into an Engineering
Department, employing approximately 38 employees, an Estimating
Department employing 5 employees, and various administrative de-
partments not concerned herein, employing 10 employees. The En-
gineering Department, under the supervision of a District Engineer
and an Assistant District Engineer, is further broken down into 4
separate subdepartments, i. e., Mechanical, Electrical, Architectural,
and Structural.
The parties are in dispute as to the status of four employees, namely,
the Mechanical Assistant, the Electrical Assistant,' who head their
respective subdepartments, and two Assistant District Estimators,
who presently head the Estimating Department. The Petitioner seeks
their inclusion in the unit, while the Employer contends that they are
supervisors and should be excluded.
The record shows that substantially the same responsibilities attach
to each of these disputed classifications.9 The Mechanical Assistant
7 We are aware that this finding may appear to be at variance with specific rulings of the
Wage Hour Administrator with respect to the professional status of this employee classifica-
tion Although Sec 2 (12) of the National Labor Relations Act, as amended, contains
substantially the same definition of "professional employee " as does Sec . 541 3 of the Wage
Hour Administrator 's regulations which sets forth detailed exemption standards for the
purpose of the Fair Labor Standards Act, 52 Stat. 1060, the necessary distinction in the
policies and purposes of the respective statutes , as well as in the factual situations present
in particular cases, impel us to conclude that such rulings of the Administrator cannot be
considered controlling in this case.
8 Sometimes referred to in the record as the Chief Mechanical Engineer and the Chief
Electrical Engineer , although it was testified that these titles were never formally an-
nounced at the office or used among the employees
B The same consideration would apply to the Architectural and Structural Assistants,
which positions were vacant at the time of the hearing
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directs the work of four employees ; the Electrical Assistant directs
three employees; and the two Assistant District Estimators direct
the other three employees in the Estimating Department, at least for
the present, while the position of District Estimator, normally the
sole head of the department, is not filled. All of these individuals
perform substantially the same work as the employees under their
direction, as well as assign and review the work of the latter. Fre-
quently, the Assistants are called out of the city to work on certain
projects. On these occasions the employees under them function with-
out their assistance or guidance. There is a 20- to 25-cent average
difference in hourly pay between the alleged supervisors and the
employees whose work they direct.
The District Auditor and the District Engineer testified that the
individuals in dispute have authority to make recommendations con-
cerning the employment status of their subordinates. The District
Auditor, however, could not recall any occasion in which such au-
thority was exercised and the District Engineer could cite only two
instances over a period of several years in which such recommenda-
tions were made, one involving a hiring and the other a discharge;
and as to these recommendations, it does not appear that they were
given effect without independent consideration.10 In another instance
revealed in the record, lay-offs were effected in the Engineering De-
partment by the District Engineer without consulting the subdepart-
ment Assistants as to the selection of engineers for this purpose.
Moreover, according to further testimony of the District Auditor
and the District Engineer, recommendations with respect to dismis-
sal or other discipline may come from anyone familiar with
the facts, and similarly, advice would be sought from such a
person, whether or not he happened to be the head of a department
or subdepartment; such a person, the District Auditor testified,
"would make a pretty effective recommendation on discipline." In
addition, the testimony shows that the alleged supervisors are looked
upon by their subordinates merely as leaders such as are typical in
the engineering profession."
10 (a) As to the hiring , the record shows that the District Engineer had spoken to a
certain applicant initially , but did not have any job for him at the time Six weeks later
the applicant returned The District Engineer testified, viz, "I had been impressed with his
ability and [ the Mechanical Assistant ] thought very well of him . I told [the Mechanical
Assistant ] that [the applicant ] was outside , it being my yob to inteivieio all prospective
employees and [the Mechanical Assistant ] said , ` I want that man,' so I said, `Let's have
another little talk with him, and we will take him on if you say okay' and we did"
(Emphasis supplied ) ( b) As to the discharge, the District Engineer testified that the
Electrical Assistant had made a recommendation to him that a certain man be let out
and "after a general consideration, he was let out ." ( Italics supplied )
11 A structural designer employed by the Employer for 7 years , who work closely with
the subdepartment Assistants , testified that " they do a lot of work . . . themselves, as
well as lead a squad that is working under them ." An architectural draftsman of long
THE AUSTIN COMPANY 943
It appears that while these disputed individuals may assign and
guide the work of certain of their professional colleagues, their an-
thority to recommend action affecting the employment status of the
latter, when rarely exercised, is subject to independent investigation.
Furthermore, in view of the apparently high proportion of supervisors
over employees in the appropriate unit,12 we believe that, under the
circumstances of this case, the alleged supervisors are no. more than,
group leaders.13
Although the record indicates that it is a function of the subde-
partment Assistants and the Assistant District Estimators in question
to direct with some degree of responsibility the employees in their
respective sections, we are not convinced, on the basis of all the evi-
dence, that they have the required authority "responsibly to direct"
within the meaning of Section 2 (11) of the Act, as amended. Ac-
cordingly, we find that they are not supervisors within the meaning of
the Act and shall include them in the appropriate unit.14
We find that all professional engineering employees 15 at the Seattle,
Washington, district office of the Employer, including estimators, the
Mechanical Assistant, the Electrical Assistant, and the Assistant
District Estimators, but excluding all employees in the Purchasing,
Sales, Accounting, and Construction Departments, the District Man-
ager, the District Auditor, the District Engineer, the Assistant District
Engineer, the engineering clerk,16 and all supervisors, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing 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 The Austin Company, Seattle,
employment with the Employer corroborated this testimony and added that this type of
leading or diiecting is common in the profession in larger offices and typical in an
organization engaged in designing and building.
12 In this entire organization of 55 individuals , including 10 administrative employees not
involved herein , according to the Employei ' s contentions a gioup of 3 or 4 engineers, for
example, would have over them 5 supervisors , i. e., the District Manager, the District
Auditor, the District Engineer, the Assistant District Engineer, and the Mechanical or
Electrical Assistant , each of whom, the evidence shows, participates to some eytent directly
In the supervision of the work performed by the engineers
13 See Matter of Cole Instrument Company, 75 N L R B. 348, Matter of Trumbull
Asphalt Company of Delaware, 73 N L. R . B. 581 , Matter of Federal Shipbuilding and
Drydock Company, 55 N L R B. 1438.
14 On the facts in this case, including the fact that the disputed employees lay out the
work for their subordinates on those occasions when they are out of the city, Member
Gray would exclude these individuals from the unit as supervisors.
i5 The Petitioner ' s requested unit description , noted above, which purports to define
"professional engineering employees" is rejected Section 2 ( 12) of the Act specifies a
definition of "professional employee" which is necessarily implied in every applicable unit
finding of the Board.
10 By stipulation of the parties.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington, 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 Nineteenth Region, and subject to Sections 203.61 and 203.62, of
National Labor Relations Board Rules and Regulations-Series 5,
among the employees in the unit found appropriate 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 rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented by Seattle Professional Engineer-
ing Employees Association for the purposes of collective bargaining.