Greenhorne & O'Mara, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 514 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
Greenhorne & O’Mara, Inc. and United Archaeologi-
cal Field Technicians, International Union of
Operating Engineering, Local 141, AFL–CIO,
CLC, Petitioner. Case 6–RC–11314
August 27, 1998
DECISION ON REVIEW AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
On August 16, 1996, the Regional Director for Region
6 issued a Decision and Order in the above-entitled pro-
ceeding, in which the Petitioner seeks to represent an
employer-wide unit of all archaeological technicians1
employed by the Employer in its Cultural Resources Di-
vision at any project or jobsite within the United States
or any territory of the United States. The Regional Di-
rector concluded that the petitioned-for unit is not an
appropriate unit because there is insufficient evidence to
establish that there is a “key” or core group of employees
employed by the Employer on a recurring, employer-
wide basis.2 Accordingly, the Regional Director dis-
missed the petition.
Thereafter, in accord with Section 102.67 of the
Board’s Rules and Regulations, the Petitioner filed a
timely request for review of the Regional Director’s de-
cision, maintaining that the Regional Director erred in
dismissing the petition. The Employer filed an opposi-
tion. By order dated February 27, 1997, the Board
granted the Petitioner’s request for review. The Board’s
Order invited the parties to address whether the Regional
Director erred in requiring that the evidence establish
that there is a group of “key” or “core” employees who
are employed on a recurring, employer-wide basis, as
well as the potential application and effect of the pre-
sumptive appropriateness of an employer-wide unit.3
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully reviewed the entire record, including
the parties’ briefs on review, the Board concludes, con-
trary to the Regional Director, that the petitioned-for unit
is appropriate for collective bargaining. The Board also
concludes that the Employer failed to establish that the
crew chiefs are statutory supervisors, or that the peti-
tioned-for unit impermissibly combines professional and
nonprofessional employees.

1 Including field technicians, lab technicians, field lab technicians,
and crew chiefs.
2 The Regional Director, therefore, found it unnecessary to deter-
mine the alleged supervisory and/or professional status of the Em-
ployer’s crew chiefs and field technicians.
3 On April 1, 1997, the Board denied the Employer’s Motion for
Clarification of the Board’s Order of February 27, 1997. In so doing,
the Board noted that a petitioned-for employer-wide unit, being one of
the units listed in Sec. 9(b) of the Act as appropriate for bargaining, is
presumptively appropriate.
I. FACTS
The Employer, an environmental consulting company
with its headquarters and permanent laboratory located in
Greenbelt, Maryland,4 performs studies for private and
public sector clients in three primary areas–land devel-
opment, transportation engineering and planning, and
environmental services. While the Company gives ad-
vice and counsel to developers and other entities in the
building industry, it performs no actual construction
work.
The Employer’s cultural resources division has per-
formed work in 15 to 20 states, as well as in Puerto Rico.
During the year preceding the hearing, the division
worked on approximately 20 projects, including several
for the Federal government5 and a few for small develop-
ers in Virginia and Maryland. These projects lasted any-
where from 2 to 5 days to 5 weeks. An average of three
to seven field technicians and one to two crew chiefs
were employed on each project.
In general, the work of the cultural resources division
is to ensure that its clients are in compliance with the
National Historic Preservation Act and the National En-
vironmental Policy Act, as well as statutes administered
by various state regulatory agencies. Under these stat-
utes, before land may be developed, studies must be con-
ducted to evaluate whether there are any cultural re-
sources on the property, including archaeological and
historic structures. The petitioned-for employees review
records, perform reconnaissance to determine whether
potential sites of interest exist, evaluate any cultural re-
sources that are located on the property, determine the
potential for eligibility in the national registry of historic
places, and, if necessary, work to ensure that there is no
adverse impact resulting from the development of the
property.
The manager of the cultural resources division reports
to the vice president of the Employer’s environmental
services division. The principal investigator assigned to
each project and the director of the Greenbelt laboratory
report to the cultural resources manager. The principal
investigators (who work mainly in the Greenbelt office)
manage personnel logistics, handle budgetary issues, act
as the primary contact with the client and state regulatory
agencies regarding archaeological issues, and supervise
all levels of their respective projects.

4 The Employer also maintains offices in various states along the
eastern seaboard and in Colorado.
5 E.g., such projects included work at both National and Dulles air-
ports in the Washington, D. C. area, at Fort Campbell, Tennessee, and
the Blue Grass Army Depot, Kentucky, and at the Coast Guard Acad-
emy in Connecticut.
326 NLRB No. 57
GREENHORNE & O’MARA, INC. 5155
1
5
Each project also is assigned a field director, who di-
rectly oversees a field crew composed of crew chiefs and
field technicians. Two to four field technicians generally
report to each crew chief, although the number of field
technicians and crew chiefs varies depending on the size
and complexity of the project.
The field technicians perform archaeological field ex-
cavation tasks (e.g., digging, sifting, identifying, marking
and bagging artifacts) at the project site(s), as well as
report-writing tasks. Laboratory technicians at Greenbelt
wash, number and catalog artifacts which are received
from all field projects, and enter data into a computer,
while field lab technicians perform essentially the same
duties on artifacts collected at a specific project.
Duties of the crew chiefs vary, depending upon the
phase of the investigation. Thus, they perform field ex-
cavation duties as well as laboratory work; conduct his-
torical research, artifact identification and analysis; re-
view forms completed by the field technicians; help in
the development of a field survey approach; give direc-
tion to the field technicians; and assist the field director
or project manager in writing the project report.
At the time of the hearing, the cultural resources divi-
sion had two active projects—both being performed for
the Pennsylvania Department of Transportation. The
first, a uniquely large and lengthy project, consisted of
several sites in and around Myersdale, Pennsylvania, as
well as an onsite field lab. The second, a more typical
project both in size and length, was located in Bucks
County, Pennsylvania. Richard Tinsman, the Em-
ployer’s manager of cultural resources, testified that the
Myersdale project, which had been ongoing since 1994,
was scheduled to be completed on July 31, 1996, and that
there was one remaining week’s work to be done on the
3-week project in Bucks County, as well as additional lab
work to be performed in Greenbelt which was expected
to take approximately 2 months. Also, the Employer had
an “indefinite quantity contract” with the United States
Coast Guard in Norfolk, Virginia, which extended until
spring 1997; however, as of the date of the hearing, the
only work the Employer had performed on that contract
was done by its environmental studies employees work-
ing in Greenbelt.
At the time of the hearing, there were 53 employees in
the petitioned-for unit: 30 field technicians, 8 crew
chiefs, and 2 field lab technicians at Myersdale (down
from in excess of 100 technicians employed during the
course of the first 2 years of that project); 4 field techni-
cians at the Bucks County project; and 6 lab technicians
and 3 crew chiefs in the Greenbelt laboratory.
The record shows that, prior to selecting employees for
any particular field job, the Employer’s field directors
review all resumes on file in Greenbelt and prioritize
applicants based upon their prior work for the Employer,
with respect to the requirements of the specific project.
There is no evidence that the Employer uses any geo-
graphical considerations when filling positions. Em-
ployees usually are given an estimate of the duration of
the particular project when they are hired, and it is the
Employer’s general practice to lay off all field employees
when a project is completed. Crew chiefs are retained
for an unspecified period of time beyond the project’s
termination date in order to complete the necessary re-
ports and analyses of project findings before they, too,
are laid off. The Employer classifies its field employees
as “temporary” and they are told that there is no expecta-
tion of being recalled when they are laid off. When their
work on a particular project has been completed, they are
classified as “terminated,” and their personnel files are
placed in an inactive file drawer. Although employees
do not accrue seniority, the Employer maintains a “pool”
of approximately 40 to 50 candidates for future field
technician positions, including employees who have been
laid off from previous projects. Employees in the
Greenbelt lab, however, apparently are permanently em-
ployed.
I. UNIT SCOPE
The Regional Director rejected the Employer’s conten-
tion that the petition should be dismissed because the
Employer’s project in Myersdale would be completed
shortly after the close of the hearing and because it
would have no other ongoing projects. However, the
Regional Director dismissed the petition, finding that the
record evidence is insufficient to demonstrate whether
the Employer has a nucleus or core group of employees
who are employed on a recurring, employer-wide basis.
We find that the Regional Director erred in dismissing
the petition. As an initial matter, we agree with the Re-
gional Director that the fact that the Myersdale project
was scheduled to be completed shortly after the hearing
or that the Employer would soon have no other ongoing
projects does not warrant dismissal of the petition. As
the Regional Director noted, the Employer’s operations
are analogous to those of the construction industry and
other industries where work is obtained by a competitive
bidding process, and employees work at multiple sites
and are hired on a project-to-project basis. The Em-
ployer historically has had regular projects, although of
limited duration. Further, the Employer maintains the
continuous operation of its Greenbelt laboratory and has
not indicated that it intends to terminate the lab techs
who are employed there. Thus, in view of the Em-
ployer’s substantial prior work, continuous operation of
the Greenbelt lab, and continuing bidding on additional
jobs, the fact that the majority of the employees in the
petitioned-for unit may not have commitments for work
at any given time does not establish that they will not
secure work in the future or that former employees do
not have a reasonable expectation of future employment.
See, e.g., Fish Plant Services, 311 NLRB 1294, 1297

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
(1993). In addition, there is no evidence that the Em- ployer has experienced a long period of lack of work
which would support a prediction that it would not obtain
future work.6
We disagree, however, with the Regional Director’s
finding that “since employees are hired on a project-to-
project basis, there must be sufficient evidence to estab-
lish that there exists a group of ‘key’ employees who are
available and hired on such a recurring, employer-wide
basis.” Fish Plant Services, 311 NLRB at 1295. Rather,
the existence of a core group constitutes but one factor in
deciding if the petitioned-for unit is appropriate and is
not controlling.
Here, the Petitioner seeks to represent all archaeologi-
cal technicians employed by the Employer throughout its
entire operations. The Employer contends that the unit
must be limited to a single site. As the Petitioner seeks
to represent a unit of employees on an employer-wide
basis, we find that it is a unit which is, under well-
established Board principles, presumptively appropriate
under the Act. Western Electric Co., 98 NLRB 1018
(1952). See also Section 9(b) of the Act;7 Montgomery
County Opportunity Board, Inc., 249 NLRB 880, 881
(1980); Jackson’s Liquors, 208 NLRB 807, 808 (1974);
Livingstone College, 290 NLRB 304 (1988).
It is, therefore, the Employer’s burden to establish that
the petitioned-for employerwide unit is inappropriate.
However, the record evidence in the instant case is insuf-
ficient to rebut the presumptive appropriateness of the
petitioned-for unit. As the Regional Director found, the
majority of the petitioned-for employees are subject to
the same wage rates, fringe benefits, work rules, and
policies and procedures, all of which their immediate
supervisors (i.e., the principal investigators) have no au-
thority to change.8 There is no separate bargaining his-
tory for any of these employees. Also, although each
jobsite is a separate project, there is no evidence that
skills, duties, or working conditions of employees vary
from project to project, with the exception of the fact that
the crew chiefs regularly work an extra 5 to 10 hours
more per week to complete administrative paperwork.

6 We disagree with the Employer’s contention the majority of the pe-
titioned-for employees must be excluded as “temporaries.” The fact
that many of the employees are hired solely for the duration of a par-
ticular project does not warrant their exclusion as “temporaries,” as the
Employer is engaged in operations where unusual employment patterns
exist, and where employees are hired/laid off intermittently and may
not work for extended, uninterrupted periods of time. See, e.g., Ameri-
can Zoetrope Productions, 207 NLRB 621, 623 (1973) (entertainment);
Hondo Drilling Co., 164 NLRB 416 (1967), enfd. 428 F.2d 943 (5th
Cir. 1970) (oil drilling), Seaboard Terminal Co., 109 NLRB 1095
(1954) (longshore work). We note that the Board has developed elec-
tion rules and procedures to accommodate short-term and sporadic
employment patterns. See Steiny & Co., 308 NLRB 1323, 1325 (1992).
7 Sec. 9(b) provides, inter alia, that: “The Board shall decide in each
case whether . . . the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or subdivi-
sion thereof.”
8 While the record does not contain specific wage information, the
RD did find that the crew chiefs are paid approximately 20 percent
higher wages than the technicians.
Further, although the record does not establish that
there is a core group of archaeological technicians em-
ployed on an employer-wide basis, it shows that the Em-
ployer has employed such technicians on projects other
than the one for which they originally were hired, and
has rehired employees who worked on previous pro-
jects.9 For example, two employees working at Myers-
dale at the time of the hearing had previously worked for
the Employer on other projects, and approximately 40
percent of the field technicians who worked on the Army
Corps of Engineers’ project in Tennessee previously
worked on the Myersdale project and requested work in
Tennessee and Kentucky when bad weather interrupted
the Myersdale project in late 1995. Tinsman testified
that occasionally there is interchange between the lab
employees in Greenbelt and field technicians. While
seniority does not accrue, it is apparent that previous
experience with the Employer is considered favorably
when there is a new project to staff, and the Employer
maintains a “pool” of approximately 40 to 50 candidates,
including employees who have been laid off from previ-
ous projects, for reference in filling future jobs. The
Employer does not claim it uses any geographical con-
siderations in hiring.
Thus, it is clear that the Employer has centralized con-
trol over the terms and conditions of all of its employees,
and that the Employer looks to a “pool” of employees,
including those laid off from previous projects, in filling
its positions. Further, contrary to the Employer, the re-
cord as whole demonstrates that there is a community of
interest shared by the crew chiefs and the field and lab
technicians who perform similar jobs, under similar
working conditions for similar wages and benefits, to
justify an all-inclusive unit. Accordingly, we find the
petitioned-for unit appropriate, and find that the Em-
ployer has failed to sustain its burden of establishing that
the employer-wide unit is inappropriate.

9 P. Exh. 1, the Employee Information form, asks whether the em-
ployee is a “G&O rehire,” and makes clear to employees that “the
Employer may find it necessary for them to perform in job assignments
(and at other locations) other than the one for which they have been
hired.”

GREENHORN & O’MARA, INC. 517
II. UNIT PLACEMENT ISSUES
The Employer contends that its crew chiefs must be
excluded from any unit found appropriate because they
are statutory supervisors. The record shows that the crew
chiefs have been promoted from field technician posi-
tions. In addition, the record shows that the laboratory
crew chiefs also are more senior employees who “do
more independent kind of processing and data collection
and identification.” The crew chiefs do not have the au-
thority to hire, transfer, suspend, lay off, recall, promote,
or discharge the technicians. The Employer alleges,
however, that its crew chiefs possess supervisory author-
ity on the basis that they assign and direct the work of the
technicians, and have the authority to adjust employee
grievances and to recommend discipline.
Contrary to the Employer’s contentions, we find that
the crew chiefs’ limited role in assignment and direction
of the field or lab technicians does not require the exer-
cise of independent judgment, and, therefore, does not
constitute statutory authority. Thus, the field crew chiefs
“pair up” the field technicians, assign the routine tasks of
digging or screening, and make certain that the techni-
cians are digging in the right place, to the right depth,
etc. Similarly, the lab crew chiefs’ assignment of routine
tasks such as washing and data entry, or switching as-
signments if a technician complains that he is tired of
doing one job, does not require the exercise of independ-
ent judgment. See, e.g., Sears, Roebuck & Co., 292
NLRB 753, 754–755 (1989); Illinois Veterans Home at
Anna L.P., 323 NLRB 890 (1997).
The Employer also has failed to demonstrate that the
crew chiefs’ role in discipline or in resolving employee
grievances meets the requirements of Section 2(11) of
the Act. There is no evidence to indicate that the crew
chiefs do any more than resolve minor disputes or com-
plaints between employees, or that they perform any role
in any formal grievance procedure. Further, Tinsman
stated that no crew chief has ever recommended discipli-
nary action, and that all disciplinary decisions are made
by the Human Resources Department at the Greenbelt
headquarters. Id.
Accordingly, we find that the Employer has failed to
demonstrate affirmatively that the crew chiefs exercise
any 2(11) statutory indicia of supervisory status. See,
e.g., Bennett Industries, 313 NLRB 491 (1994).
Finally, the Employer contends that the crew chiefs
and field technicians are professional employees and
therefore may not be included in a bargaining unit with
non-professionals unless they expressly choose to be
included. See Sonotone Corp., 90 NLRB 1236 (1950).
However, employees must satisfy each of the four re-
quirements set forth in Section 2(12)10 before they qual-
ify as professional employees within this definition. See
Arizona Public Service Co., 310 NLRB 477, 482 (1993).
The record in this case fails to support the Employer’s
contention in at least two respects. Thus, the Employer
has not demonstrated that the work engaged in by the
petitioned-for employees—digging, screening, and cata-
loging artifacts for the principal investigator—is pre-
dominantly intellectual and varied intellectually, rather
than routine mental, manual, and physical work. The
Employer also has failed to establish that these positions
require knowledge of an advanced type acquired by a
prolonged course of specialized intellectual instruction
and study. While the job descriptions for these classifi-
cations list as “minimum qualifications” a degree in an-
thropology or archeology or field school in archeology,
Tinsman testified that some technicians have college
degrees (in a variety of disciplines) and some do not. He
further testified that even someone with a “dance degree”
conceivably could be hired as a field or lab technician,
depending on the “competitiveness” of their application.
Thus, while an unknown number of the technicians or
crew chiefs may have an appropriate advanced degree, it
does not necessarily follow that the education character-
istics of their work require the utilization of such ad-
vanced knowledge. See Express-News Corp., 223 NLRB
627, 629 (1976). We conclude, therefore, that the peti-
tioned-for employees are not professional employees.

10 Sec. 2(12) of the Act defines a “professional employee” as: one
who engages in work that is (i) predominantly intellectual and varied in
character as opposed to routine mental, manual, mechanical, or physical
work; (ii) involves the consistent exercise of discretion and judgment;
(iii) of such character that the result accomplished cannot be standard-
ized in relation to a 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 any employee, who (i) has com-
pleted the courses of specialized intellectual instruction and study de-
scribed in clause (iv) of paragraph (a) and (ii) is performing related
work under the supervision of a professional person to qualify himself
to become a professional employee as defined in paragraph (a).
ORDER
The petition is reinstated, and the case is remanded to
the Regional Director for further appropriate action in-
cluding the determination of the eligibility formula to be
used and the direction of an election.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518

MEMBER HURTGEN, dissenting in part.
I agree with my colleagues that the absence of a core
group of employees, as defined by the Regional Director,
is not itself a sufficient basis for dismissal of the petition.
I also agree that the case must be remanded for a “deter-
mination of the eligibility formula to be used.” How-
ever, I would not, at this point, instruct the Regional Di-
rector to direct an election. The precise eligibility for-
mula to be used is presently uncertain, and it may turn
out that a given formula results in few or no eligible em-
ployees. In addition, the Regional Director made no de-
termination concerning the supervisory status of crew
chiefs. Unlike my colleagues, I would not usurp the Re-
gional Director’s initial responsibility to make that De-
termination.