Bechtel, Inc.

BECHTEL, INCORPORATED 197 Bechtel, Incorporated and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local 959, State of Alaska, Petitioner. Case 19-RC-7630 June 25, 1976 DECISION ON REVIEW BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 6, 1975, the Regional Director for Region 19 issued a Decision, Direction of Election,' and Order 2 in the above-entitled proceeding in which he found that the Employer's quality control department employees employed on the Trans Alas- ka Pipeline are statutory employees and comprise a unit appropriate for collective bargaining. Accord- ingly, he directed an election among them. Thereaf- ter, in accordance with Section 102.67 of the Nation- al Labor Relations Act, as amended, the Employer filed a timely request for review of the Regional Director's decision on the ground, inter alia, that in failing to find that the quality control department employees are managerial employees who are ex- cluded from the coverage of the Act, he departed from officially reported Board precedent. By telegraphic order dated November 26, 1975, the Board granted the request for review. Thereafter, the Employer filed a brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding, including the Employer's brief on re- view, with respect to the issue under review and makes the following findings: The Employer, Bechtel, is employed by Alyeska Pipeline Company as an engineering, procurement, and management administrator for the construction of the Trans Alaska Pipeline. In order to achieve full compliance with environmental and technical stipu- lations and requirements imposed on the construc- tion of the pipeline, the Employer maintains a staff of quality control department employees who, for the most part, perform inspection functions along the i The Pipelmers Local Union No 798 and the International Union of Operating Engineers , Local 2, were permitted to intervene in this proceed- in¢ 2 The Regional Director also dismissed the petition in Case 19-RC-7672, which was consolidated with the instant case, finding that the Pipeliners requested unit, limited to those quality control department employees asso- ciated with pipelaying and welding, was inappropriate No request for re- view was filed with respect to this finding path of the pipeline construction.' Generally, the de- partment employees are responsible for the inspec- tion and monitoring of the pipeline construction as it is completed by the construction contractors, and for the maintaining of associated records. The depart- ment is comprised of approximately 185 inspectors, 13 record coordinators, and 13 material testers. All of these individuals report to five section QC supervi- sors,' each of whom is responsible for 150-225 mile sections of the pipeline. Also employed in the depart- ment are a welding qualifier and an NDE qualifier,' both of whom were stipulated to be supervisors. The record discloses that the inspectors are re- sponsible for inspecting the construction of the path- way and pipeline as various stages are completed by the construction contractors. These stages include the cleaning and grading of the land, the placement of the vertical support members, ditching, installa- tion of the pipeline, and cleanup and restoration. In- spectors perform their duties utilizing copies of the specifications for the construction work being done and check to insure that the contractors are perform- ing in accordance with those specifications. If the construction work being performed has been done in accordance with the specifications and stipulations thereto, it is approved by the inspector. If not, the inspector confers with the construction foreman in an effort to have the work corrected. If this is not successful, the inspector has the authority to halt construction until the specifications are met.' Inspec- tors also monitor the work of certain craft employees of the contractors and can request the removal of an employee or "pull" his qualification card, if neces- sary. The record does not disclose the frequency with which the latter action has occurred. Records coordinators in the quality control de- partment are responsible for insuring that the inspec- tors have the correct forms with them and for screen- 3 Permission to construct the Trans Alaska Pipeline was subject to an agreement and grant of right-of-way and certain stipulations appended thereto between the owners of the pipeline and the United States Govern- ment Sec 9 of the agreement provides that there shall be a comprehensive quality assurance program designed to assure full compliance with the envi- ronmental and technical stipulations and requirements The parties stipulated that the section QC supervisors are supervisors within the meaning of the Act 5 The welding qualifier administers tests to welders to determine whether they are qualified to work on the pipeline and also assists in the administer- ing of examinations to welding inspectors The NDE qualifier examines and certifies inspectors who perform nondestructive examinations, i e , examina- tions of radiographs taken by the employees of the construction contractors The NDE qualifier also monitors the NDE inspectors through spot checks along the pipeline path to insure that inspectors are properly reading and documenting the radiographs 6 The record discloses that when an inspector makes the decision to halt construction he fills out a stop work order, which must be signed by the section QC supervisor Inspectors also fill out work performance reports by which the Employer keeps track of whether or not construction errors are corrected In effect, the work performance report is a backup document for a stop work order 225 NLRB No. 19 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mg and processing the forms. Material testers gather the materials that must be tested, such as soils and concrete, and perform laboratory testing. They also "make up" the data for compliance with the engi- neering design. As indicated, inspectors comprise the largest group in the department. All of the quality control department employees are salaried and ap- proximately one-quarter of them are engineers. The Employer contends that the members of the quality control department are managerial and ex- cluded from the Act inasmuch as they are manage- ment representatives inspecting the immensely costly construction of the pipeline. It points particularly to the functions of the inspectors and their authority, on behalf of the Employer, to reject the work product of the contractors performing the construction and to halt the construction if necessary. It further asserts that the inspectors in accepting the pipeline construc- tion by their approval of the work are analogous to buyers who have authority to commit the credit of their employers and who are found to be managerial. Contrary to the Employer's contentions, we find that the quality control department employees, in- cluding the inspectors, are not managerial and are therefore covered by the Act. The Board defines managerial employees as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer, and those who have discretion in the performance of their jobs independent of their employer's established policy." I We do not view the functions of the quality control department employ- ees as falling within that definition. The record re- veals that the inspectors' decisions to accept or reject a contractor's work product are predicated upon written specifications. In essence, these specifications are preexisting standards which provide the sole ba- sis for comparing and ultimately judging the accepta- bility of the contractor's work. Thus, the judgments and decisions made by the inspectors appear to be primarily technical in nature and limited by preexist- ing established policy. Moreover, we note that the Employer has a degree of oversight over the inspectors' functions. As indi- cated, the record discloses that the duties of the NDE inspectors are monitored by the NDE qualifier who makes spot checks along the pipeline path. There is also some degree of participation by the section QC supervisors in the issuance of stop work orders. 7 See General Dynamics Corporation, Corvair Aerospace Division, San Die- go Operators, 213 NLRB 852 (1974), citing Palace Laundry Dry Cleaning Corporation, 75 NLRB 320 (1947), and Eastern Camera and Photo Corp, 140 NLRB 569 (1963) For current judicial approval of the definition see N L R B v Bell Aerospace Company, Division of Textron, Inc, 416 U S 267 (1974) In sum, we conclude that the quality control de- partment employees are not managerial employees since they lack a significant degree of discretion in the performance of their jobs independent of their Employer's established policy.8 The Employer further argues that unionization of the inspectors would create a conflict of interest be- tween the performance of their job responsibilities and their loyalty to the union. Specifically, the Em- ployer contends it will be denied the undivided loyal- ty of the inspectors if they are represented by the same union which represents the employees whose work they inspect. On this record, we find no merit in the Employer's contention. As discussed above, the inspectors' duties are com- prised essentially of comparing the work product of the construction contractors with predetermined specifications and stipulations. Further, the inspec- tors are subject to the supervision and oversight of the section supervisors to whom they report and the NDE qualifier who monitors the work of certain in- spectors. It would thus appear that the Employer has a substantial degree of control over the work perfor- mance of the inspectors, and we find no basis for presuming that representation of these employees, if they so choose, will result in an impairment of the performance of their duties. Moreover, should some question arise concerning the improper performance of an inspector, the Employer has the means to cor- rect the situation. Therefore, we do not find that rep- resentation of the quality control department em- ployees would create a conflict of interest in the circumstances herein. In view of the foregoing and the record as a whole, we find that the quality control department employ- ees are statutory employees entitled to the coverage of the Act, and we hereby affirm the Regional Director's decision. Accordingly, the case is hereby remanded to the Regional Director in order that he may conduct an election in the unit found appropriate by him, as de- scribed below, pursuant to his Decision and Direc- tion of Election, except that the eligibility payroll pe- riod therefore shall be that ending immediately before the date of this Decision on Review:9 All Quality Control Department employees of the Employer employed on the Trans Alaska Pipeline, excluding all other employees, confi- dential employees, managerial employees, guards and supervisors as defined in the Act. 8 Contrary to our dissenting colleague , we do not find that the inspectors' functions of accepting or rejecting a contractor's work which may result in the commitment of large sums of the owners ' funds make the inspectors managerial employees Excelsior footnote omitted from publication BECHTEL, INCORPORATED 199 CHAIRMAN MURPHY, dissenting: I cannot agree that the inspectors in the quality control department should be included in the unit. I would find that those inspectors are managerial per- sonnel and, therefore, are not employees within the meaning of the Act.10 The disputed inspectors exercise important inspec- tion and monitoring functions on behalf of their Em- ployer, Bechtel. Thus, if they accept completed work, the pipeline is finally buried. On the other hand, they have authority to halt work by a subcontractor which does not conform to specifications. Each thus has the power to make determinations affecting investments and expenditures valued in the millions of dollars. Contrary to my colleagues, the fact that their deter- mination is based on a comparison with specifica- tions does not detract from the nature or importance of their authority. For all operations of any engineer- ing project, from start to finish, are based on such specifications, without which even an operation of far lesser magnitude than the Alaska pipeline would be a shambles. The ability to comprehend the re- quirements and evaluate the performance is hardly comparable to a routine inspection function per- formed on projects made in the shop and subject to 10 N L R B v Bell Aerospace Company, Division of Textron, Inc, 416 U S 267 (1974) further inspection by the purchaser and correction or replacement if an error is discovered. Rather, as ar- gued by the Employer, these inspectors are the final eyes and ears of management. Bechtel is responsible for the engineering of, pro- curement for, and management of the entire con- struction project. Therefore, as representatives of Be- chtel with the authority to accept finally or to reject the performance of other firms, the inspectors' func- tion is the corollary of protecting the interests of their Employer and of the owners and is tantamount to committing unusually large sums of the owners' funds. They are thus, in essence, part of the Employer's and the owners' management group. There is no doubt, as the Employer points out, that these disputed inspectors exercise responsibilities far greater than do incumbents of positions which have been found to be managerial in other cases.'1 In light of the facts of this case, I can reach no other conclusion than that the quality control depart- ment inspectors are managerial and may not be in- cluded in this unit. I would so find. 11 E g, N L R B v North Arkansas Electric Cooperative, Inc, 446 F 2d 602 (C A 8, 1971), Astronautics Corporation of America, 210 NLRB 652 (1974), General Dynamics Corporation, Convair Aerospace Division, 213 NLRB 851 (1974), advance system project engineer and other categories with more than routine type authority at 859 , plant construction engineer A at 861