Western Association of Engineers, Architects and Surveyors

National Labor Relations Board - Board Decisions

Oct 22, 1952

101 N.L.R.B. 64 (N.L.R.B. 1952)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WESTERN ASSOCIATION OF ENGINEERS, ARCHITECTS AND SURVEYORS and
SAN FRANCISCO AREA GROUP OF PROFESSIONAL E1ILPLOYEEs, PETI-
TIONER . Case No. ,9O-RC-1751. October 22, 1952
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before M. C. Dempster, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer Association, formed on August 29, 1951, and in-
corporated on March 25, 1952, is composed of 17 Employers engaged
in surveying, engineering, materials testing, and aerial mapmaking.
Organized with the primary purpose of representing its member em-
ployers in labor relations matters, the Association is authorized to
sign collective bargaining agreements for its members . The Inter-
venor, Operating Engineers Union, Local No. 3, AFL, contends that
the Association is not an "employer" within the statutory definition.
Although membership in the Association can be withdrawn at any
time upon payment of accrued dues and charges, the Association is an
agent of the member employers within the meaning of Section 2 (2) of
the Act while such membership subsists. We therefore find that the
Association is an employer and, further, that it is engaged in commerce
within the meaning of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.2
3. The Intervenor moved that the petition be dismissed on the
ground that an association-wide unit is inappropriate in the absence of
a history of collective bargaining on a multiemployer basis. As the
Employer Association and the Petitioner seek multiemployer bar-
gaining, and as no party is seeking single employer units, collective
bargaining history is not a prerequisite to finding the multiemployer
unit appropriate. Consequently, a question affecting commerce exists
' Norman B. Bailey, B. T. Berndtson, Drury Butler . California Engineering & Surveying
Service, Norman G. Glover, George E Goodall , Charles 0. Greenwood , Walter B Grimes,
Clair A Hill, E A. Johnson & Associates , Inc., Kenneth C Laugenour , Polk & Batham,
0 J. Porter & Company, Harold S. Prescott, Frank H Reynolds, Joseph E. Spank, and
Yolo Engineers and Surveyors , some of which are herein referred to by surnames only:
e g, 11111 or Porter.
, The Intervenor moved to dismiss the petition herein on the ground that the Petitioner
Is got a "labor organization" within the meaning of the Act, In light of the provision In
the Petitioner 's constitution that it shall not "restrain any member from negotiating
directly with his employer for the betterment of his general welfare." We deem this pro-
tection of Individual bargaining to he eolely a matter of Intraunion policy, which does not
disqualify the Petitioner as a collective bargaining agent. Furthermore , the Board has
certified the Petitioner as the collective bargaining agent of other employees . Pacific Gas
and Electric Company, 98 NLRB No. 130.
101 NLRB No. 19.
WESTERN ASSOCIATION OF ENGINEERS, ETC. 65
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.
4. The Petitioner contended, and the Employer agreed, that the
appropriate unit includes professional and both field and office tech-
nical employees working for employer members of the Association 3
The Intervenor seeks to represent a unit limited to the field technical
employees , excluding the office technical and professional employees.
There are 39 office technical and professional employees, and 78 em-
ployees in the field survey crews. Depending somewhat on the size
of the employer firms and the qualifications of the employees involved,
many of the field and office technical employees work interchangeably
on the field surveys and in the office. The leaders of the field crews,
called chiefs of party, ordinarily spend from one-half to 1 hour in the
mornings and evenings in the office getting instructions and turning in
data , and there is a substantial amount of contact between the members
of the field crews and the computers and draftsmen in the office, who
discuss the sufficiency of the field data obtained. In addition, all the
field employees are customarily given jobs in the office during adverse
winter weather, such jobs ranging from computing, drafting, and map-
making to repairing equipment.
Many of the field crew employees who are engaged in surveying
work and, on construction jobs, in assisting, coordinating, and inspect-
ing the work of the construction crafts, work primarily away from the
office. However, there is a close community of interest between the
office and the field technical workers, resulting from their functionally
associated work and their frequent contact. We accordingly find a
unit of both office and field technical workers, together with the pro-
fessional employees if they vote for inclusion, appropriate for collec-
tive bargaining.4
Issues were raised at the hearing as to the professional status or
unit placement of the following categories:
Civil engineers : The parties stipulated that the civil engineers
employed by Goodall, Hill, and Spink are professional employees,
but that the civil engineer employed by Porter should be excluded as a
supervisor, and we so find. There was some dispute, however, about
the status of civil engineers O'Gara, Develey, and Chamberlain, em-
ployed by Johnson. The parties agreed that engineer O'Gara is a pro-
fessional employee, but the Intervenor contended that he is also a
supervisor. There are, however, four associates in Johnson's firm, not
listed as employees, who are licensed engineers, and who supervise and
responsibly direct both professional and technical employees. We
8
The Petitioner seeks two separate units if the professional employees vote for separate
representation.
k George A. Fuller Company, 78 NLRB 207; San Antonio Machine d Supply Company,
85 NLRB 143.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore agree with the Employer and the Petitioner that engineer
O'Gara, like Johnson's other professional engineers, is not a super-
visor. As to civil engineer Develey, who was recently graduated
from engineering school and is gaining experience under the direction
of an experienced civil engineer, we agree with the Intervenor that he
is not a technical employee, as contended by the Employer and the
Petitioner, but a professional employee within the meaning of Section
2 (12) (b) of the Act. The other civil engineer in question, Chamber-
lain, who the Employer and the Petitioner asserted is not a profes-
sional engineer, contrary to the Intervenor, has had 14 years of experi-
ence and 2 or 3 years of college. Although his duties of coordinating
the office work on engineering projects require a general knowledge of
engineering in its various phases, we find that his work is substantially
routine in nature, involving limited exercise of discretion and judg-
ment. We shall therefore include him in the technical unit.
Assistant engineers: Only Goodall employs persons in this classi-
fication. The parties agreed that they are nonsupervisory profes-
sional employees, and we so find.
Structural, electrical, mechanical, and sanitary engineers: The
parties agreed that these are professional employees; with the ex-
ception of mechanical engineer La Salle, employed by Johnson. Like
civil engineer Develey, he is a recent engineering graduate, working
to gain experience in his engineering field. We find him also to be a
professional employee.
Office engineers: The parties agreed that these employees are tech-
nical, not professional, employees, and we so find.
Electrical draftsman: Johnson employs one person in this category.
Like civil engineer Develey and mechanical engineer La Salle, he is a
recent engineering graduate "on his way up" to becoming a fully
qualified engineer. He works under the supervision of two electrical
engineers. As contended by the Intervenor, but opposed by the Em-
ployer and the Petitioner, we find him to be a professional employee.
Cartographer-photogramanetrist: The parties agreed that the one
employee in this classification is either a professional or semiprofes-
sional employee. The making of surveys and maps from aerial photo-
graphs requires a high degree of skill in the use of very precise and
complex instruments, and some knowledge of higher mathematics.
There is testimony, however, that though the work is highly special-
ized and is not supervised, it becomes somewhat routine in nature. As
the standard for professional employees is high, and as this employee
is not an engineering graduate, we find that he is not a professional
employee within the meaning of the Act.
P As in the case of civil engineer O'Gara , we find that the electrical , mechanical, and
sanitary engineers employed by Johnson are not supervisors. The parties stipulated that
the structural engineers are nonsupervisory.
WESTERN ASSOCIATION OF ENGINEERS, ETC. 67
Field-survey crews: The parties agreed, and we find, that the chiefs
of party,s inspectors, instrumehtmen, chainmen, rodmen, and field
assistants 7 are nonsupervisory technicians who should be included in
the technical unit. The Intervenor contended, however, that the land
surveyors, who are either licensed surveyors or particularly skilled
chiefs of party, are supervisory professional employees. As their
duties are the same as those of other chiefs of party, and as they do not
possess the statutory indicia of supervisors," we overrule the Inter-
venor's contention and shall include them also in the technical unit.
Office technical workers: The parties agreed, and we find, that the
draftsmen, computers, mappers, and laboratory technicians are non-
supervisory technical employees.' We also find that the field geologist,
so-called, who obtains soil samples for testing, and makes preliminary
classifications of the soil, is a nonsupervisory technical employee.
The bookkeepers, secretaries, and janitors are stipulated to be
nontechnical employees, and we agree.
As the parties recognize, Section 9 (b) (1) of the Act requires that
the professional employees' desire with respect to their inclusion in a
unit with nonprofessional employees must first be ascertained. Ac-
cordingly, we shall direct separate elections in the following voting
groups: 10
(a) All professional employees of the Employer in northern Cali-
fornia, excluding all other employees and supervisors as defined in
the Act.
(b) All technical employees of the Employer in northern California,
excluding professional employees, bookkeepers, secretaries, janitors,
and supervisors as defined in the Act.
The employees in the professional voting group (a) will be asked
two questions on their ballots: (1) Do you desire to be included in a
'As chief of party Briley is the son of Reynolds ' general manager , we exclude Briley
from the bargaining unit.
7 This classification includes chainmen or rodmen when performing the duties of stake
carriers , brush men , and axe men Temporary , casual laborers who sometimes work with
these crews are not to be included in the unit.
8 One of the land surveyors , Lonnberg , employed by Hill, has been given authority to
settle disputes in Hill's absence . The Intervenor contends that he is therefore a part-time
supervisor . As he has no other supervisory authority , and has had no occasion to exercise
this authority, we find that he is not a supervisor within the meaning of the Act.
9 The Intervenor contended that draftsman Brownell , employed by Butler , is a profes-
sional employee because he works as a designing engineer . Brownell has had 2 years at
college, has taken a correspondence course in engineering , and has had 5 years of ex-
perience . His duties include designing pipelines for water , sewage, and drainage , but are
of a routine nature, under the supervision and direction of Butler . Only 4 to 6 weeks are
required to train a person in this work . Brownell is paid at the rate of $2 an hour. We
find that he is not a professional employee.
io The Intervenor did not indicate whether or not it wishes to be on the ballot for the
larger unit found appropriate . As the Intervenor has made a substantial showing of
interest in this unit, we shall direct that its name be placed on the ballot . However, the
Regional Director is authorized to permit the withdrawal of its name upon the timely
request of the Intervenor.
242305-53--6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit with the nonprofessional employees? (2) Do you desire to be
represented for the purposes of collective bargaining by the Peti-
tioner or by the Intervenor? If a majority of the professional
employees vote "Yes" to the first question, indicating their wish to
be included in a unit with the nonprofessional employees, they will
be included in such unit, which, in that event, we find to be appro-
priate. Their votes on the second question will then be counted to-
gether with the votes of the nonprofessional employees to decide
whether the Petitioner or the Intervenor has been selected to represent
the combined bargaining unit. If, on the other hand, a majority of
the professional employees vote against inclusion, we find separate
units of professional and technical employees to be appropriate. The
votes of each voting group will then be counted separately to decide
whether or not that group desires to be represented by the Petitioner
or by the Intervenor.
[Text of Direction of Elections omitted from publication in this
volume.]
NEHI BOTTLING CO., INC. and INDEPENDENT BEVERAGE WORKERS
UNION, PETITIONER. Case No. 3-RC-1'02'0. October 22,1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John Weld and Leon-
ard Leventhal, hearing officers." The hearing officers' rulings made
at the hearing are free from prejudicial 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-member
panel [Members Houston, Styles, and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.2
2. The labor organizations involved claim to represent certain
employees of the Employer .3
i The hearing on June 16, 1952, was held before John Weld ; the hearing on June 20 was
conducted before Leonard Leventhal.
2 The Employer produces and distributes nonalcoholic beverages in the Buffalo, New
York , area, under exclusive franchises granted by Neill Corporation, the principal offices
of which are in Columbus , Georgia. Although in form the franchises were issued to the
three officers and stockholders of the Employer , Nehi Corporation has dealt with the
Employer with knowledge of the corporate use of the franchise since about 1938. We
find that the Employer ' s operations form an integral part of a multistate enterprise and
we shall, therefore , exercise jurisdiction . American Factors Co., 98 NLRB 447.
3 At the hearing, Intervenor (International Union of Brewery, Flour, Cereal, Soft Drink
and Distillery Workers, CIO ) refused to stipulate that Petitioner is a labor organization.
101 NLRB No. 16.