Wurster, Bernardi & Emmons, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1971

192 N.L.R.B. 1049 (N.L.R.B. 1971)

WURSTER, BERNARDI & EMMONS , INC 1049
Wurster, Bernardi & Emmons, Inc.' and Organization
of Architectural Employees, Petitioner. Case
20-RC-9756
August 26, 1971
DECISION AND DIRECTION OF
ELECTION
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 Joseph R.
Wirts. After the hearing and 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 transferred to the, Board for decision.
Thereafter, the- employer and the Petitioner 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
ruling made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this. proceeding,2 the
Board finds:
1. The Petitioner seeks to represent certain
architectural employees of the Employer, a Califor-
nia corporation which provides architectural services
to corporations and individuals. The parties have
stipulated that during the preceding calendar, or
fiscal year the Employer's sales and services exceed-
ed $500,000 and that it provided services valued in
excess of $50,000 to customers located outside the
State of California and services valued in excess of
$50,000 to firms which in turn made sales of $50,000
or more to customers outside the State of California.
The Employer in effect concedes that legal jurisdic-
tion is present. It argues, however, that the Board
should exercise its discretion to decline jurisdiction.
To this end, the Employer asserts that the practice of
architecture is essentially local in character, citing
the close state regulation of the profession, the local
nature , of the Employer's practice as illustrated by
the fact that 95 percent of its work is located in the
San Francisco Bay area, and a purported confiden-
tialarchitect-client. relationship. With, respect to this
latter point, the Employer fails to explain what
adverse impact the assumption of Board jurisdiction
would have on this confidential relationship; we
perceive none.
The Employer contends that, because of state
licensing requirements and other factors , there is
little job mobility among architects . That may be
correct. However, we are not concerned here with
commerce in architects but rather with the effect
labor disputes involving architects may have upon
interstate commerce. Similarly, the Employer's
equating of its business with the horseracing indus-
try, said to effect more elements of interstate
commerce, and the activities of real estate brokers,
where the Board has declined to exercise its
jurisdiction,3 is incorrect. Our concern is not with the
number of elements of interstate commerce involved
but with their impact on interstate commerce as a
whole and the probability, of labor disputes signifi-
cantly affecting such commerce.
The record shows that while the Employer works
principally in California it is nonetheless engaged in
projects as far away as Massachusetts. Further, the
Employer performs work for corporations engaged in
interstate commerce on projects which'in themselves
significantly affect interstate commerce; including
the design and construction administration of a 52-
story office building in San Francisco for the Bank of
America. Architecture plays an irreplaceable role in
the 'construction industry, a major factor in interstate
commerce, and it is apparent that disputes involving
architects could have serious and far-reaching effects
upon that industry.
In view of the foregoing, and since the Employer
meets the standards for- a nonretail business ,,we find
that it is an employer engaged in commerce` or an
industry affecting commerce within the- meaning of
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction in this proceeding.
2. The labor organization involved claims 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 Petitioner seeks an -election in a profes-
sional unit of architectural employees, excluding
associates, principals, model makers, inspectors,
office boys, librarians, bookkeepers, controllers,
secretaries and other office clerical personnel,
guards, and supervisors as defined in the Act. The
parties have agieed that the principals; the chief
architect; Mrs. Verburgt, an administrative assistant;
the controller; the switchboard operator; the secre
t The name of the Employer appears as amended at the hearing, of the parties.
2 The Employer's request for oral argument is denied, since, in our 3 Walter A. Kelley, 139 NLRB 744; Seattle Real Estate Baar4 130 NLRB
opinion, the transcript, exhibits, and briefs adequately present the ppsitions 608.
192 NLRB No. 121
1050 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
taries; and the office boys' who are{not architectural
students should be excluded from , the unit.
As noted -above, the Employer is ^ a California
corporation engaged. in providing architectural serv-
ices to both corporate and°-individual clients. There
are five principals who own shares in the firm and
serve " on its, board of 'directors. A principal is in
charge of every project.. The firm employs a chief.
architect:who is head of -the production division and,
runs the drafting room, schedules production, and
hires:and fires employees. The parties have stipulated
that he is a supervisor, within the meaning of the Act,
and should, along with the principals, be excluded
from the unit.,In addition toothe.principals and',the
chief, architect,- the firm employs approximately 24%
other architects, who may-be, divided into two
groups , associates . and ,nonassociates. On, specific,,
projects, depending upon .,their size, a project
architect, a project designer,-,and a job captain, are
designated , to _work"with and under ' one of the
principals, in=addition to the draftsmen and designers:
who-may be, working. on the project., The firm also '
employs _a model3naker a job inspector,- an interior
designer, and ; a.., ,fifth-year ,.,,architectural student
currently, working in the architectural specification
library whose, status is in dispute, in addition to
various clerical .and administrative employees, whom
neither of the parties ' would .include in the unit.
Virtually, all of , the employees whom either ,the_',
Employer or the Petitioner would include in the unit
are graduates of recognized schools of _architecture,
Not all, however,,,have yet become licensed archi-
tects, a process, which in California entails passing an
examination that requires approximately 3 years of
work rexperience' to complete successfully. The
average architect in- California does not become
licensed (or re'gistered) until' he has been out of
school for 5' or 6 years; frequently a considerably
longer ` period`_ `o f " time may elapse: ^'A graduate
architect may; not hold'himself' out as an architect
until= the examination-has been successfully corriplet-
ed, but mayy work' for` a ,find in any capacity he is
capable of andmm̀ay on liis own (in California) design'
houses and certain other buildings so long as 'the
client' understands' 'that he" f is , not a registered
architect. The, Employer, apparently, does not
distinguish between ` licensed ' and, unlicensed
"architects" (we" use' the term broadly, ' although
recognizing that an'unlicensed architectural graduate'
may not technically be an architect) in work
assignments ' and' neither' the Employer nor the
Petitioner considers ' this distinction relevant in
determining 'the ='status `of' a"rchitectural employees- as
professionals within the meaning of the Act., We
agree ,- and. shall draw no further distinctions between
these groups for the purposes of this Decision, noting
only that our conclusion is, of course,,,limited to. the
context of,the Act.
The parties agree that graduates of "schools of
architecture performing architectural work for the
Employer are professionals within the meaning of the
Act. We so find. The record amply demonstrates that
the work of employees in this, category is intellectual
and varied, involving discretion and judgment, is not
susceptible to, standardization of output over, a given
period of time, and requires advanced knowledge
acquired by 'a prolonged course of specialized
intellectual instruction, at an institution of higher
learning. Thus the average - architectural, graduate
working for the -Employer has-completed a course of
specialized instruction requiring 5 years to, complete
and, inter alia, may-be involved- in consultations with
clients,, preparation of preliminary designs--relating
the basic type, size, functional, needs, appearance,
and, budgetary limitations=and construction,docu-
ments upon which construction bids will be based,
selection of a site;-selection of contractors; inspection
of the project, and certification, of progress pay-
ments:-,
In addition 'to the` architectural graduates,: the
Employer also employs a graduate interior designer.,
The Employer urges that he be included -in 'any
professional unit. The Petitioner,'although'not"taking
a specific position in,'this instance; arguestifor,the
inclusion of 'any architectural employee whether or
not an architectural graduate. The record, establishes'
that the interior designer, frequently 'performs the
duties` of° a project architect, designs the exteriors as
well- as "the. 'interiors of buildings, and-"is currently
taking an' 'examination for an architect's" license
which he 'has 'qualified for on the basis of work
experience: -We `find " that he is a professional
employee within'the-meaning'of the Act and should
be included, in'the unit. - ' - =
Asi noted' above," the architectural employees are
divided'- into two ' main - groups, " Associates and-,
nonasssociates. The Employer -would include, the
associates,''and the Petitioner would exclude them on
the ground that they lack a sufficient community ,of
interest. Both work in' the same room and'perform
basically' the 'same functions.' About'one' third of the''
architectural ' employees ' are associates. The' main -
distinctions' between ' the two groups are, that the
lowest 'paid' associate receives approximately 30-
percent more pay than 'the highest paid nonissociate,
associates "are listed in the firm's brochure; receive an
annual "salary as'opposed to an hourly wage,'share in
a special and set aside mom-the profits; and are
privileged to, attend quarterly ' meetings = 'with - the
principals to discuss the general, tatus of the firm;
but associates, as , such, do not "participate in
corporate decisionmakirig: 'Both associates and non
WURSTER, BERNARDI & EMMONS, INC. 1051
associates perform the functions of project archi-
tect, job captain,, etc., and an associate may work
under direction of a nonassociate on a particular
project. -Benefits under, the Employer's medical and
dental programs are identical, both participate in the
same profit-sharing.plan ,and are equally eligible for
merit bonuses, receive Christmas bonuses on the
same basis, receive: the same paid holidays, and have
the same vacation benefits. We conclude that- they
share a sufficient community - of interest to be
included in the same unit.
Work on a project is organized on a team basis
with one of the principals being personally responsi-
ble for each project. Each project also has a project
architect who represents the firm with the client and
has overall administrative responsibility. Depending
upon the size of the project there may also be a
project designer and job captain working under the
direction of the project architect, as well as other
architectural employees. On a small project all of
these functions may be performed by the same
person . The project designer is responsible for all
design aspects of the project and may have one or
more designers working under his direction; selection
as a project designer is based mainly on design
ability. The job captain directs the drafting of
working drawings and the position requires work
experience as opposed to sheer architectural talent.
The designation of a project architect, project
designer, or job captain is for the purposes of that
project and is not a general classification as such.
Thus it is possible for an architect to perform all of
these functions, including routine drafting, either
serially or simultaneously on different projects and
the rate of pay remains constant regardless of the
function being performed. Apparently less than a
quarter of the Employer's architectural graduates
have not performed duties as project architect, job
captain, or designer at some time. The Employer
suggests, without asserting, that these employees may
be supervisors but urges that they be treated
consistently without including some and excluding
others; the Petitioner would include them in the unit.
The record indicates that these employees have no
authority to hire or fire and their recommendations
receive the same attention as those from other
employees. Although they responsibly direct other
employees, it is in a professional sense and related
only to a particular project. We conclude that they
are not supervisors within the meaning of the Act
and shall include them in the unit.
The'Employer currently has a job inspector on its
payroll in connection with construction work on a
large office building. Usually a job inspector is
retained by the client for a particular project,
frequently on the recommendation of the architect;
whether he is retained by the client or the firm, the
inspector's salary is normally paid by the client. No
particular education is required to qualify as a job
inspector and a job inspecor is normally - hired on the
basis of his construction experience . His duties are
performed at the jobsite aid he has little contact with
the, firm's other , employes. We conclude that he is
not a professional empl yee l ' and -,that , he lacks; a
sufficient community of interest to be included in the
unit.
The Employer has a m +Qdelmaker who constructs
architectural-study model$ of cardboard, clay, or
styrofoam to assist in study of the design. He
performs some drafting in connection with model-
making and has also performed cabinet work for the
Employer's office . He is located on a separate floor.
Although the current modelmaker has a degree in
business administration and has taken some architec-
tural courses , they are apparently unrelated to his
work and there is no educational requirement for the
position . We find that he is not a professional
employee and that he lacks a sufficient community
of interest to be included in the unit.
From time to time the Employer enters into joint
ventures with other architectural firms , and employ-
ees from both firms may work together in a separate
office or in the office of one of the employers in the
joint venture. At the present time, the Employer has
one employee of another employer working in its
office on a joint venture . Since this employee is not
an employee of the Employer here, he is excluded
from the unit . The Employer currently has no
employees of its own working elsewhere in a joint
venture and therefore the issue of the unit placement
of such employees is not before us.
The record indicates that the Employer at times
may hire architectural students as office boys who, in
addition to their other duties, may do drafting of the
same level of difficulty as recent graduates. At the
present time the Employer has no one in this
category . It does, however, have a fifth-year architec-
tural student working on a regular part-time basis
cataloging its architectural specifications library and
performing certain unrelated services for one of the
principals of the firm . The record indicates that
before working in the library he spent approximately
50 percent of his time drafting and that he would be
returning to that work within about a month of the
hearing. The Employer would include him in the unit
and the Petitioner would exclude him. We shall
permit him to vote subject to challenge.
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 within the meaning of Section
9(b) of the Act:
1052 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
All professional architectural employees of the
Employer, excluding principals, the chief archi-
tect, the model maker, administrative assistants,
the controller, switchboard operators, secretaries,
4 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 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
office clerical employees, office boys who are not
architectural students, guards and supervisors as
defined in the Act.
[Direction of Election4 omitted - from publication.]
by the Employer with the Regional Director for Region,20 within 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. 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
Tiled. -