UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD REGION 2

NEW YORK UNIVERSITY, Employer and MICHAEL MODICA, Petitioner and LOCAL 810, STEEL, METALS, ALLOYS AND HARDWARE FABRICATORS AND WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,' Intervenor Case No. 02-RD-104101

DECISION AND ORDER DISMISSING PETITION New York University ("the Employer") is a not-for-profit institution of higher learning in New York City. Since November 20, 1970, Local 810, Steel, Metals, Alloys, and Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters ("the Intervenor") has been the certified representative of a unit of maintenance employees at the Employer's main campus. On May 1, 2012, Foreperson Central Plant Maintenance Mechanic, Michael Modica ("the Petitioner") filed a petition seeking to decertify the Intervenor as the representative of certain classifications currently covered by the collective-bargaining agreement. Specifically, the Petitioner seeks a unit comprised of just the skilled employees who work in the central plant and the engineers who work in the "AC shop."2 By filing the instant petition, the Petitioner raises the issue of whether a slice of the historical unit are really "professionals" who were never afforded their right to vote on whether to be included in a mixed unit with nonprofessionals. Upon a petition duly filed under Section 9(c) of the Act, a hearing was held before a hearing officer of the National Labor Relations Board ("the Board"). Pursuant to Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the Regional Director, Region 2.

1 The name of the Intervenor has been corrected to reflect the correct name as stipulated during the hearing.
2

As discussed more fully below, the titles included in the petitioned-for unit do not conform to the classifications set forth in the CBA. In some respects, this variance is the gravamen of the petition.

During the hearing, on the record, the Employer objected to the proceeding on the basis that the Board does not have "a legally constituted quorum." This argument, presumably based on Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3629 (U.S. June 24, 2013) (No. 12-1281), is simply incorrect. It is not appropriate for the Board, or the Board's appointed agents, to suspend activities in response to a claim that Presidential appointments to the Board are not valid. On June 24, 2013, the Supreme Court granted the Board's petition for certiorari of Noel Canning. Furthermore, in Belgrove Post Acute Care Center, 359 NLRB No. 77, slip op. 1, n.1 (Mar. 13, 2013), the Board took note that in Noel Canning, the D.C. Circuit Court itself recognized that its conclusions concerning the Presidential appointments had been rejected by the other circuit courts to address the issues. Compare Noel Canning, 705 F.3d at 505, 509-10 with Evans v. Stephens, 387 F.3d 1220, 1226 (11th Cir. 2004) (en bane); United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962). Thus, in Belgrove, the Board concluded that because the "question [of the validity of the recess appointments] remains in litigation," until such time as it is ultimately resolved, "the Board is charged to fulfill its responsibilities under the Act."3 Belgrove, 359 NLRB No. 77, slip op. at 1, n.1. Upon the entire record in this proceeding, including the briefs filed by the parties after the closing of the record, I find that: 1. The Hearing Officer's rulings are free from prejudicial error and are hereby affirmed. 2. The parties stipulated, and I find, that the Employer is a not-for-profit corporation operating an institution of higher education, with its campus located in New York, New York. Annually, in the course and conduct of its operations, the Employer derives gross revenues in excess of $1 million and purchases and receives goods and supplies valued in excess of $50,000 at its New York facility, directly from suppliers located outside of the State of New York. Accordingly, I find that the Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. The parties stipulated and I find that the Intervenor is a labor organization within 3. the meaning of Section 2(5) of the Act.
The Third Circuit's decision in NLRB v. New Vista Nursing & Rehabilitation, F.3d , 2013 WL 2099742 (3d Cir. May 16, 2013) and the Fourth Circuit's decision in NLRB v. Enterprise Leasing Co. Southeast, LLC, F.3d , 2013 WL 3722388 (4th Cir. July 17, 2013), should not change this result. As noted above, there still remains a split in the circuits regarding the validity of intrasession recess appointments. 3

4. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Sections 2(6) and (7) of the Act. As stated above, the Petitioner seeks an election for some unit classifications because they are "professional" employees within the meaning of Section 2(12) of the Act, and are therefore entitled under Section 9(b)(1) to vote as to whether they desire to be included in, or severed from, the existing mixed professional/non-professional unit. The Petitioner argues that the engineering work in the central plant facility requires specific knowledge for the operation of sophisticated equipment. Similarly, the Petitioner contends that the work performed by the "academic refrigeration engineers" involves advanced technical competence in computer diagnostic control systems, which regulate exacting temperatures for the laboratories and IT centers on campus. Finally, the Petitioner argues that the classifications in the petitioned-for unit require licensure and/or certification to perform the work, as distinguished from the rest of the unit, which consists of various tradesmen and other unlicensed maintenance workers. To the contrary, the Intervenor claims that the petitioned-for unit is comprised of skilled maintenance employees whose work is predominantly manual, subject to widespread supervision, and standardized all of which negates a finding that they exercise discretion and judgment in their work. Further, the Intervenor notes that none of the employees in the proposed unit possess or are required to possess a college degree, professional degree or professional license. Finally, the Intervenor claims that the Employer has its own department of architects and mechanical contractors that plan, design and install the equipment used by the skilled maintenance employees, and that these engineers are the professional employees. In agreement with the Intervenor that the petitioned-for unit classifications are not "professionals" within the meaning of Section 2(12), the Employer further argues that the Petitioner has a heavy burden to prove that the historical unit is not the appropriate unit. Moreover, even if the petitioned-for unit classifications were found to be "professional," the Employer argues that the unit is not appropriate because it arbitrarily excludes some of the refrigeration engineers. Namely, the refrigeration engineers who work in the "A/C shop" are included in the petitioned-for unit, while the refrigeration engineers who work in the residence halls are not. The Employer contends that the purported distinction based on where the work is performed fractures the unit because the particular location does not change the nature of the work. Accordingly, the Employer notes that the petitioned-for unit is defective because it would have to include all refrigeration engineers. Because the Petitioner refused to proceed to an election in any other unit found appropriate, the Employer argues that the petition should be dismissed on this ground, irrespective of the professional status issue. I have considered the evidence and the arguments presented by the parties on this issue. As discussed below, I find that the Petitioner did not establish that the employees in the petitioned-for unit are professional employees, as defined in the Act. Because the
3

Petitioner has not requested to proceed to an election in an alternate unit, I am dismissing the petition. I. FACTS

A. Overview The Employer is a private University with a main campus off Washington Square in New York City. The most recent collective-bargaining agreement ("CBA") between the Employer and the Intervenor is effective by its terms from July 1, 2007, through June 30, 2013. The recognition clause in the CBA incorporates verbatim the stipulated unit contained in the certification of representative that issued in 1970. With the passage of time, it appears that the more accurate recitation of the classifications covered by the CBA is set forth in Article 5 Wages, which is: + + Central Plant Watch Engineers Foreperson Central Plant Maintenance Mechanics General Foreperson First Operators Central Plant Foreperson Refrigeration Engineers Foreperson Building Operators Refrigeration Engineers Heating Specialist Building Operators, Carpenters, Electricians, Painters, Plumbers, Steamfitters, Cement Masons Second Operators Central Plant Assistant Building Operators, Utility Mechanics, Maintenance Mechanics Helpers Sr. Communications Technician Communications Technician Cable Systems Coordinator Cable Technician

The current unit consists of about 191 employees. The instant petition concerns only the bulleted classifications; the starred classifications are not in dispute. The petitioned-for unit consists of about 41 employees who work in the central plant and the A/C shop. It includes many classifications that do not appear in the wage schedule, as set forth above, and are described by Petitioner as: o o o o o o Watch Engineers Foreperson Inside Maintenance Mechanic Foreperson Outside Maintenance Mechanic Inside Maintenance Mechanic Outside Maintenance Mechanic First Operators
4

o Second Operators o Academic Refrigeration Engineers All employees in the petitioned-for classifications work regular shifts of eight to eight and a half hours, and some of them are scheduled around the clock. Contractual wage rates for unit employees range from $861.32 to $1,662.29 weekly, and with the exception of the Second Operator position, most of the petitioned-for classifications are on the higher end of the scale. Overall, the employees in the petitioned-for unit maintain, monitor, and operate equipment that regulates temperature and generates electricity for buildings throughout the campus. For each reported maintenance problem, the client services department generates a work ticket, which managers can access for productivity measures and quality review. In addition to physically observing equipment, the petitioned-for unit employees rely on computer systems for display information about hundreds of different pieces of heating/cooling and electrical equipment. As an example, the building management system ("the BMS") monitors the four buildings that make up the "AC shop" and other critical buildings on campus, such as, the science labs and the IT centers. The BMS was designed by an outside contractor to trigger alarms so that managers and the petitionedfor unit employees are alerted that certain equipment may need to be serviced. Although the petitioned-for unit employees must understand the signals and operate the sophisticated BMS, they do not program the system. Further, the petitioned-for unit employees do not design or install the infrastructure (such as, the duct work or the compressors) that they maintain. B. The Central Plant The Employer's central plant, located on the main campus in the Weaver Building and Tish Hall, supplies high-voltage electricity and regulates the temperature in over forty buildings. It houses various electrical, heating and cooling machinery, such as, a steam turbine, high-temperature hot water generators, recovery boilers, a steam driven chiller, gas compressors, and air compressors. The central plant has the largest refrigeration equipment, with the next-largest in the AC shop, and still smaller units elsewhere on campus. Conditions in the central plant are dangerous because of the inherent sensitivities of high-pressure gas compressors and high-speed spinning equipment, which have the potential to explode. The central plant managers determine whether the equipment needs to be turned off or on. Three managers - Scott Lunderman, Ken Higgins, and Jim Merriue - oversee the central plant. They all have high-pressure steam licenses, and Merriue also holds a refrigeration license. Two foremen - John Mularczyk and Michael Modica report to the managers. Inside the central plant, four maintenance mechanics work with Foreman John Mularczyk; outside the plant, three maintenance mechanics work with Foreman Michael Modica. Unit employees operate the machinery with tools, such as, lifts, grinders, drills,
5

electric pallet jacks, man lifts, and rigging equipment. Because the plant is very hot and noisy, employees must wear hearing protection, safety glasses and hard hats. Periodically, the employees undergo safety training. 1. Watch Engineer Robert Vanmaanen testified about his work in the Employer's central plant since 1984. He began working for the Employer as a second operator in 1984, with no prior experience. In that position he assisted the engineer "on watch" who was running the plant and he learned how to work with the equipment on the job. He testified that he has had no advanced training or education his highest level of formal education is high school. For the last 20 years, Vanmaanen has worked as a watch engineer. In this position, he maintains the equipment that controls the high temperature hot water and chilled water running throughout the university. He also monitors the boiler pressure and the "chilled water differential pressure" to ensure that the water distribution system is operational. Finally, he oversees the generation of electricity and monitors any excess, which is "resold" to Con Edison. He records the status of the equipment, the maintenance work performed, and any changes that occurred during their shift in a log book. He sometimes performs physical maintenance work, such as, opening a valve, but more often, such work is done by the first operators. Otherwise, the same basic monitoring tasks are conducted around the clock, unless equipment goes down. In the event of a malfunction, the watch engineers usually shut down the equipment which is then repaired by other maintenance employees or outside vendors who have particularized training. Vanmaanen characterized his work as routine. Vanmaanen received on-the-job training. Due to equipment upgrades, he received training from various equipment vendors. Since about three years ago, as a result of the central plant's expansion, the watch engineers are required to hold a High Pressure Boiler Operating Engineer License. They are the only unit employees who hold this license. To be eligible to take the exam, applicants must meet one of a variety of background requirements, which include: 1. five years of recent employment in qualifying positions under the supervision of a licensed engineer, or 2. a degree in mechanical engineering, or 3. certification as an engineer in another specified jurisdiction in the U.S., or 4. five years of a specified type of work operating and maintaining a steam generating plant of a governmental building, or 5. completion of an approved apprenticeship training program of at least two years. Although the boiler license must be periodically renewed, no additional testing or education is required.

2. First and Second Operators The record includes little testimony about the operators. Two operators are assigned to work round-the-clock shifts in the central plant. According to Vanmaanen, the first operators also keep log books in which they note water usage, power output, and "makeup" usage, and they also record incidents, including whether any employees called out sick. The log books are kept in the central plant and reviewed by managers. According to the job description for "First Operator Operations and Maintenance,"4 this position reports to the watch engineer and splits responsibilities between monitoring and operating equipment in the central plant and maintenance work in both the central plant and other buildings. Vanmaanen described the second operator as an apprentice position that required a license because of the size of the chiller in the central plant. 3. Maintenance Mechanics The job description for "Maintenance Mechanic" summarizes the position as "[p]rimarily responsible for inspecting, maintaining, repairing, and operating all building systems." No licenses are listed as required for this position. For about the past two years, Petitioner Michael Modica has been foreman of the "outside plant" maintenance mechanics. Previously, Modica worked as foreman in the AC shop, and prior to that, he worked as a refrigeration engineer. As the foreman, Modica uses the BMS computer system to monitor the pressure level, temperature readings, and the condition of control valves of the steam generator. He checks whether "makeup pumps" are on and working in tandem, and whether they are going to switch automatically. On rare occasions, Modica's entire day is taken up with monitoring the system. Modica coordinates with outside contractors with respect to welding repairs, installation of new equipment and ensuring plant standards are observed with respect to construction projects. Modica testified that to be qualified for his position one must have a good understanding of how high temperature water is used for generating "secondary" hot water and generating high- and low-pressure steam off site, how chilled water is distributed in buildings and in heat exchanges, as well as, how the electrical "loop" moves electricity from the central plant to other buildings. Modica oversees a crew of four "outside plant" maintenance mechanics who maintain, upgrade, and correct problems with machines that distribute hot/chilled water and electricity from the central plant. His crew uses diagnostic equipment for
4

No job description for the title "second operator" is in evidence. 7

troubleshooting any malfunctions with high pressure boiler pumps. The crew also "deal with rolling out and rolling in" circuit breakers for the electrical system. Both the "outside plant" maintenance mechanics and the refrigeration engineers (described more fully below) work on air conditioning units, called "chillers." Chillers use refrigerant and condensed water to create chilled water. The chilled water is circulated through air handlers which are essentially fans that blow air over coils in order to cool the water. Refrigeration licenses are required for employees who operate chillers. Modica testified that his assignments and the assignments of his crew change daily, monthly, and yearly. He recalled a recent large, air conditioning project. His crew "drilled out, retapped & remounted" rusted and broken bolts and repaired copper tubing to seal off weak spots and prevent refrigerant and water from contaminating each other. Modica's crew worked off of a printout prepared by an "outside tech" which identified the weak spots in the tubes. The record demonstrates that the work appears to follow the protocol established for particular equipment. While some unit employees must understand how to read schematics and basic principles of math and physics in order to ensure that the equipment is functioning properly, or can be made to function properly, the petitioned-for unit employees are not involved in drawing or designing the plans for any of the equipment.
C. The A/C Shop

The AC Shop, also known as the "main building" or the "Silver Center" is located at 32 Washington Square, and spans eleven floors and two subbasements. It houses the second largest air conditioning system that provides cooling power to over eighty campus buildings. Three managers oversee the refrigeration engineers: Manager Mike KoshIcin, Assistant Manager Michael McHugh, and Field Supervisor Ted Lemanski. They have an office in the AC Shop and work day shift hours. They are in contact with staff during off hours, as needed.
1. Refrigeration Engineers

According to the job description, refrigeration engineers are "[p]rimarily responsible for hands-on maintenance of HVAC systems and related auxiliary equipment." As mentioned in the overview, the historical unit includes the foreperson refrigeration engineer and the refrigeration engineers. The record, however, further refines this classification into two groups: "academic refrigeration engineers" who work at the AC shop and various academic buildings, and "residential refrigeration engineers" who primarily work in the student dormitories.5 All refrigeration engineers - both "academic" (included in the petitioned-for unit) and "residential" (excluded from the petitioned-for unit) - must hold a Refrigerating System
5 Watch Engineer Vanmannen testified that, throughout his thirty year tenure, he had never heard of this distinction among refrigeration engineers.

Operating Engineer License. To be eligible to take the exam, applicants must meet one of a variety of background requirements, which include: 1. one year of practical experience working with refrigerating or air conditioning equipment containing specified amounts of refrigerant or compressors of specified horsepower, or 2. a current high pressure boiler operating engineer license, or Marine Engineer certificate or Professional Engineer's license issued by a state in the US, or 3. completion of a FDNY-accredited training program of at least 200 hours duration, including 25 hours of field or shop work. All refrigeration engineers also are required to have four other types of licenses which apparently take a day each to obtain three are issued by the fire department (fireguard, torch, air compressor) and one is a university EPA license. There are also certificates of fitness for various fire systems which are required for refrigeration engineers working in dormitories. The record is not clear as to whether these are required for refrigeration engineers working in non-dormitory areas. Academic Refrigeration Engineers Foreman Outside Maintenance Mechanic Michael Modica and Refrigeration Engineer Joseph Whitaker testified about the work performed by the academic engineers. As mentioned above, prior to his current position, Modica worked as a refrigeration engineer in the AC Shop and then as a foreman in the AC Shop. Whitaker has been a refrigeration engineer for fourteen years working mostly, but not exclusively, in academic buildings. Academic refrigeration engineers use a variety of tools, such as, grinders, drills, and torches for "braising and sweating," cutting, and minor welding. There are drill presses and "chop off wheels." Diagnostic equipment mostly consists of electronic meters and pressure gauges. These gauges measure high and low voltage, amperage, Ohms and resistance in coils and circuits. Academic refrigeration engineers also utilize computerized equipment for monitoring air handlers in buildings to see whether they are properly functioning. In many cases equipment can be turned off from the computerized system. They receive "very practical" training on how to work safely with AC shop equipment. Modica described training on "tag outs" which are methods for diagnosing problems on live equipment with "high-energy output" and for repairing this equipment. The training includes working with "steam on, humidification... secondary hot water off, primary high temp hot water," dealing with floods and possible electrocution, and working in dangerous conditions, such as, on a roof in high winds. Academic refrigeration engineers perform monitoring work which includes taking hourly readings of equipment status through the BMS (building management system) for buildings deemed critical. They also periodically walk through buildings to observe
9

operations first-hand. Modica testified that building "checks" of the central air handler involve checking discharge air temperatures, the condition of filters, the settings for outside dampers, and the condition of belts. Other building checks would simply consist of walking through a building to note the temperature and see whether a refrigeration unit was online or whether coils were leaking. Academic refrigeration engineers perform preventive maintenance tasks, which include putting grease in a bearing, "taking the head off a center back, punching the tubes," changing filters and belts, checking for leaks, and cleaning coils. The frequency of these tasks varies according to need. For instance, filters need to be changed more often if an area is receiving 100% outside air than an area where only a small percent of outside air is being exchanged. Finally, academic refrigeration engineers sometimes work on equipment in the dormitories, mostly when the "residential" refrigeration engineers have problems that they cannot correct without additional help. Modica suggested that the residential refrigeration engineers will leave work on difficult pieces of equipment to engineers working out of the AC shop. In that regard, so-called "academic" buildings contain administrative offices, classrooms, chemical and animal laboratories, auditoriums, movie theaters, gyms, cafeterias, IT storage areas, and medical laboratories housing MRIs and other equipment. The climate requirements for these buildings are different than those for dormitories. Laboratories require, "100% outside air" which needs to be treated to ensure it is the appropriate temperature for the equipment or animals in labs. Likewise, there is a particular temperature range required for safe housing of electronic gear in IT centers. Improper temperatures or humidity levels in these areas could destroy data for experiments, force the sacrificing of animals, and destroy expensive computer equipment.6 Modica testified that a manager instructed him to prioritize climate for "academic" facilities over "residential" ones, saying, "animals are first, computers are second, people are third." According to Modica, equipment in the dormitories is less complex equipment than in academic buildings, noting that some of the residential buildings use heating systems that are "closed" and "somewhat fail safe". However, the evidence also shows that dormitories where residential engineers work Weinstein, Goddard, and Palladium -- are not solely residences. Both Weinstein and Goddard house classrooms, as well as, primary storage rooms for IT equipment, including radio station IT storage space. The Palladium has a "huge" gym and an indoor swimming pool. The Palladium also has gas-fired boilers and a large gas booster that "boosts" the pressure of gas coming into the facility.

To ensure proper climate control, some academic buildings have diesel backup generators. Apparently dormitories do not have these generators. However, refrigeration engineers are only responsible for basic monitoring of the diesel generators and addressing the most "minor" problems with them, such as a key pad errors or a closed valves. More complex issues involving diesel generators require a call to, "someone higher up."
10

Residential Refrigeration Engineers For the past year, Residential Refrigeration Engineer Gary Somerville has worked in the Goddard and Weinstein dormitories. Somerville began working for the Employer in 1990 and has previously worked as a building operator at the Coles Sports Center and the law school. Somerville generally described his work as regular maintenance and operation of the chillers in the dorms. Although smaller than those in the central plant or the AC shop, the dorm chillers circulate cold air within and between buildings. In the case of at least one dorm, the chiller circulates cold air not just to dormitories, but also to some academic buildings. Residential refrigeration engineers in dorms take data readings from the chiller units every two hours and regularly from air handler units and record the readings on log sheets. Residential refrigeration engineers perform preventive maintenance, including quarterly inspection of air handlers, checking for cleanliness, changing filters and belts, greasing motors and pumps, checking dampers and coils, and making sure actuators are functioning. They inspect HVAC units, air handlers, pumps, system pumps, a steam generator which takes care of all the kitchen systems, and a domestic hot water system for the student rooms. They check exhaust fans, and cooling towers, and periodically inspect the elevator machine rooms. The engineers are expected to respond immediately to emergencies, but once they have stabilized the situation they have been instructed to call a facilities manager for further instruction. The manager decides how to address the situation beyond the immediate emergency response, including providing instruction to the engineer. Prioritization and scheduling of any work in dormitories that is not, "business as usual" is determined by facilities managers. Managers inform engineers if other personnel will be working in a part of a residence building so the engineers will know to properly prepare the area. Engineers submit orders for parts and tools to managers, who make the decision whether or not to order the requested items. Somerville testified that residential refrigeration engineers do not independently decide when to shut down chillers or other large equipment but rather do so only in response to managerial decisions or protocol. For instance, engineers follow recognized standards for shutting down equipment if there is "no load" or the outside air temperature reaches a certain level. Likewise, equipment may be powered down during "high-load" seasons when Con Edison needs to conserve power. Managers determine the parameters for running equipment and Engineers review the intended steps with managers. At other times, equipment is only turned off based on managerial decisions. Somerville recalled an instance in which an outside engineering firm performed a survey to determine what equipment was essential. In response, two of four elevators were shut down. Unlike academic refrigeration engineers, residential refrigeration engineers perform tasks that overlap with those of the building operators. Thus, residential

11

refrigeration engineers answer "house calls" during which they perform some electrical and plumbing work, maintain fire alarm systems, sprinlder systems, pressure tanks, domestic water tanks, stand pipe systems, and fire pumps. House calls could involve checking heat pumps and thermostats if a room is lacking heat, troubleshooting and replacing the thermostat as necessary. If a heating unit is not functioning the refrigeration engineer or a building operator will take it out and bring it to another location to work on it. They could replace and repair a burnt-out compressor or a coil on a reversing valve. House calls could also involve simple tasks like burnt-out light bulbs, broken switches, clogged toilets or broken windows the latter is considered an emergency safety issue to be handled by staff regardless of title. For more serious plumbing problems, the refrigeration engineer will put in a work request, which is then reviewed by a manager who will bring in a plumber if he deems it necessary. D. Training and Licensure None of the positions in the historical unit, including those claimed by the Petitioner to be "professional," require formal education beyond high school. None of the unit employees have college or professional degrees in any subject, nor are they required to subscribe to professional journals covering engineering or other trades. Unit employees are given equipment-specific ,t-raining which can run from a few hours to a few days. This training, which includes instruction on diagnosing issues, overriding operations, and troubleshooting, is provided by the vendor who performs the installation. Unit employees do not play any role in researching or selecting equipment for purchase or in designing any specifications. As mentioned above, some of the petitioned-for employees are required to hold certain licenses from New York City in order to operate the more complicated and potentially dangerous equipment in their purview. II. ANALYSIS Section 9(b)(1) of the Act provides that professional employees as defined in Section 2(12) of the Act may not be included in a bargaining unit with nonprofessionals unless they vote in favor of inclusion. Sonotone Corporation, 90 NLRB 1236 (1950). It is undisputed that the historically-recognized unit herein includes nonprofessional employees. It is likewise undisputed that the employees in the job classifications Petitioner has identified as professionals were never afforded the opportunity to vote on whether or not they wished to be included in a unit with nonprofessionals. As a general rule, the Board will not direct a decertification election in a unit which is not coextensive with an existing unit. See, Campbell Soup Co., 111 NLRB 234 (1955); Green-Wood Cemetery, 280 NLRB 1359 (1986). However, the Board has recognized an exception to this rule when the requested decertification involves a distinct group of professional employees who were never afforded the chance to vote in a Sonotone election. Utah Power & Light Co., 258 NLRB 1059 (1981). Thus, the question herein is whether the petitioned-for employees are professional employees as defined in the Act. Because I find they are not, I am dismissing the Petition. 12

A "profess'ional employee" is defined in Section 2(12) of the Act, as follows: (a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving 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 standardized 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 instruction and study described 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). Section 2(12) is meant to apply to small and narrow classes of employees. The Express-News Corp., 223 NLRB 627, 630 (1976). Accordingly, employees must satisfy each of the four requirements set forth in Section 2(12) before they qualify as professional employees within the definition. Greenhorne & O'Mara, Inc., supra; Arizona Public Service Co., 310 NLRB 477, 481 (1993). Although employee background is examined for the purpose of deciding whether the work of the group satisfies the "knowledge of an advanced type" requirement of Section 2(12)(a), it is the character of the work required rather than the individuals' qualifications that determine professional status. The Express News Corp., supra at 628; Western Electric Co., Inc., 126 NLRB 1346, 1348-1349 (1960). An employer's requirement that all of its employees in a classification have an advanced degree in the field to which the profession is devoted would be persuasive evidence that the employees are professionals, but such evidence is not necessarily conclusive. Professional employee status turns on the degree of judgment required of the employees in applying the knowledge acquired through a prolonged course of study in specialized schooling. Aeronca, Inc., 221 NLRB 326, 327 (1975). Further, while an employee's academic or other qualifications are relevant to this determination, the controlling factor is generally the nature of the work the employee performs. Ohio St. Legal Services Ass 'n, 239 NLRB 594 (1978). Expertise gained through limited, technical coursework does not rise to the level of advanced knowledge requiring a prolonged course of instruction at an institution of higher learning. Ohio St. Legal Services Ass 'n, at 595-96; Taft Broadcasting Co., 226 NLRB 540 (1976). Furthermore, a position that requires only a general college education is not professional. Express-News Corp., supra at 629-30 (1976). And even when a specialized job function is performed primarily by persons with advanced degrees in the field, if the work is routine, the job is not professional. A.A. Mathews Assocs., 200 NLRB 250, 251 (1981). Salary is not determinative of professional status. E. W. Scripps Co., 94 NLRB 227, 240 (1951). Further, in order to qualify as a professional, an employee must perform work of a 13

predominantly intellectual and varied character, involving the consistent exercise of discretion and judgment. The Act defines a professional employee in terms of the work performed rather than in terms of individual qualifications. The work must be of such a character that the output cannot be standardized in relation to a given period of time, and it must require 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. Avco Corp., 313 NLRB 1357 (1994). The Board held in Avco Corp, supra, that, although educational background does not control, the Board examines educational background for the purpose of deciding whether the work of the group satisfies the "knowledge of an advanced type" requirement. If a group of employees consists primarily of individuals with professional degrees, the Board may presume that the work requires "knowledge of an advanced type," even though there may be some individuals in the group who do not have a professional degree. Conversely, if few in the group possess the appropriate degree, it follows that the work does not require the use of advanced knowledge. I will apply these basic principles to determining the status of the disputed professional classifications. Based on the record evidence, I find that the employees in the petitioned-for unit are not "professional" employees within the meaning of Section 2(12) of the Act. The work performed by the petitioned-for unit does not require knowledge of an advanced type and the work is not performed with the requisite discretion and judgment to find that these employees should be entitled to vote in a separate unit. A. The petitioned-for employees do not perform work of a "predominantly intellectual and varied" character. The record evidence does not demonstrate that the petitioned-for employees herein engage in predominantly intellectual and varied work as opposed to routine mental, manual, mechanical, or physical work, as required by Section 2(12)(a)(i). The tasks described by the witnesses are almost all observational or physical in nature. They describe monitoring equipment and physical conditions and responding to complaints about physical conditions. Corrections to problems involve manually adjusting and cleaning machinery. While some of the work requires familiarity with highly specialized equipment in order to diagnose and correct problems with it, the process by which the diagnoses and repairs are done is largely routine. Petitioner argues that the dangers inherent in working in the Central Plant and the AC shop, the value of the property being protected by the employees' proper control of climate, and the sophisticated equipment utilized by employees supports the contention that their work is "intellectual and varied in character." To the contrary, employees are not deemed professionals by virtue of work in a dangerous environment or because they work with sophisticated equipment. In Arizona Public Service Company, 310 NLRB 477 (1993), the Board found that reactor operators at a nuclear generating station are not professionals. While clearly nuclear reactors hold the potential for grave danger, and while the employees at issue in Arizona Public Service Company monitored and manipulated, "complex control room devices," the Board nonetheless found that they were engaged in, "routine" work performed according to detailed written procedures. They thus determined that the work did not meet the standards of Section 2(12)(a)(i).
14

The Petitioner cites Standard Oil Company, 107 NLRB 1524 (1954) and Brady Aviation Corp., 104 NLRB 220 (1953) as analogous cases where the Board found employees to be professionals. However, both of those cases are distinguishable. In Standard Oil the inspection engineers found to be professionals did not merely inspect and test plant equipment but also prepared "detailed technical reports" on the results and, as needed, recommended replacement of defective equipment based on their findings. There is no evidence in the record herein that any petitioned-for classification engages in this sort of original intellectual work. Furthermore, while Petitioner characterizes the inspection engineers in Standard Oil as having, "high school diplomas and 5 years of engineering experience" in fact only 16 of the 80 inspection engineers lacked B.S. degrees and in the decade prior to the decision the employer had not hired anyone for the job who did not have a B.S. degree. The engineers in Brady Aviation likewise all had a "formal engineering education," worked in a separate area from other employees and had a different pay scale and benefits package. They were responsible for insuring safety and airworthiness of sophisticated equipment. Thus, their required skill level and responsibilities were clearly distinguishable from the employees herein. B. The petitioned-for employees do not perform work involving the consistent exercise of discretion and judgment. There is no record evidence that the work of employees in the petitioned-for unit involves the consistent exercise of discretion and judgment as required by Section 2(12)(a)(ii). Petitioner emphasizes the absence of frequent contact with supervisors in arguing that the employees exercise discretion and judgment by performing their tasks independently. However, the Act does not find professional status merely because an employee works alone, but only if the work being done is of a certain type. Thus, the solitude of a janitor who is not in contact with a supervisor while she mops floors does not qualify her as a professional employee under the Act. While the employees herein clearly make choices in performing their jobs, these choices do not require "professional" judgment as envisioned by this clause of Section 2(12). Additionally, at least some of the managers overseeing unit employees in the Employer's Central Plant do hold the same licenses required of unit employees. In Utah Power & Light, supra, the Board found described professional engineers as engaged in production of, "highly complex and technical projects" including designing electrical systems. They performed, "challenging intellectual work which requires advanced knowledge of engineering, and consistent use of informed discretion." [emphasis added.] Id. at 1060. In that case the engineers found to be professionals did not merely hold licenses which their supervisors may have lacked, but had, "greater experience in specialized areas." Id. at 160. It is clear that except in emergency situations, the most critical decisions involving the employer's equipment, including shutting down equipment, are made by supervisors rather than unit employees. See, Arizona Public Service Company, supra., at 482 (nuclear reactor operators found to not satisfy the requirements of Section 2(12)(a)(ii) where they inform supervisors about alarms and supervisors made final
15

decisions about actions to take in accord with detailed written procedures). As Petitioner notes, the Board has found that supervision per se does not disqualify an employee from being a professional. However, the Board made clear in Chrysler Corp.-Space Division, 154 NLRB 352 (1965), cited by Petitioner on this point, that the work performed by the employees found to be professionals was approved as a matter of course by the supervisors. Moreover, in Chrysler Corp. Space Division it was not the relative lack of close supervision of employees, but rather the nature of the work they performed preparation of manufacturing plans, determination of the sequence of manufacturing operations, etc. which demonstrated their need to apply professional judgment in their jobs and qualified them as professionals. Likewise, in Firestone Tire & Rubber Co., 181 NLRB 830 (1970), also cited by Petitioner as supporting this element of the professional status requirements, Junior Engineers found to be professionals were not merely inspecting tires and making sure problems were corrected, as described by Petitioner, but also assisted in writing specifications and passed on the viability of molds. All new Junior Engineers were required to have college degrees. The Junior Engineers were in training for higher-level positions and worked closely with their senior colleagues. The petitioning employees herein do not possess college degrees, are not on a promotional track, and are not involved in any creative intellectual work such as design or writing of specifications. C. The petitioned-for employees do not perform work of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time It is clear that the employees in the petitioned-for job classifications are performing standardized work on regular shifts and thus do not meet the requirements of Section 2(12)(a)(iii). While particular tasks of employees may vary day to day or hour to hour, they are all observational and physical tasks that have been and will be repeated many times monitoring computer screens, cleaning filters, checking air temperature in various locations, and the like. The "output produced" or "result accomplished" by these tasks is likewise standardized, as the employees work to maintain consistent and predetermined climate conditions and electrical supply for the Employer's various buildings. They maintain equipment to specifications determined by manufacturers. There is no evidence that any employees in the petitioned-for classifications ever work beyond their scheduled hours. Rather, employees leave notes for their counterparts on later shifts in log books so that the latter shift is aware of conditions observed earlier and tasks underway during one shift can be continued on another. See, i.e. Arizona Public Service Company, supra. (reactor operators who constantly log information regarding systems and equipment and follow detailed procedures set by their employer are performing, "standardized" work and are not professionals). By contrast, employees who are professionals under the Act perform work requiring unique knowledge or particularized involvement in a project that cannot be taken over by a coworker in the same job classification. See, i.e. Firestone Tire & Rubber Co., supra (employees with various engineering titles were found to be
16

professionals in part based on the requirement that they work until they finished solving any problems in their purview even when this caused them to have to work outside normal duty hours). The Petitioner cites Group Health Association, 317 NLRB 238 (1995), in support of its argument that the testing of equipment and conditions in buildings performed by employees herein cannot be standardized. The case is distinguishable. The Board, in Group Health, considered the work of HMO employees with Bachelor of Science degrees and professional accreditation who tested medical specimens in laboratories. In the unique circumstances in which medical technologists performed their tests, the Board found that variability of that testing rendered it not subject to standardization. The Board did not thereby decide that "testing" in any general understanding of the word is a function that cannot be standardized. Nothing in the job descriptions or testimony about testing performed by unit employees indicates that it is not standardized and performed in a similar manner by each unit employee with the appropriate training. D. The petitioned-for employees do not perform work 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. There is no evidence that any unit employee has any degree beyond a high school diploma, which is the highest educational requirement for any unit position. Beyond high school, their training has consisted of trade school (in some cases) and on-the-job equipment-specific instruction by vendors. While it is true that the Board has on occasion found employees with engineering titles to be professionals even where they lacked college-level classwork, such instances have been rare and seem limited to situations where the employees are working alongside and performing the same work as others who do have advanced degrees, and/or are performing original design or drafting work of the sort normally attributable to a professional. See, Robbins & Myers, 144 NLRB 295 (1063) (two of three design/project engineers lack college degrees but are found to be professionals based on their original design of motors, component parts, and special hoists and cranes to meet customer needs); Chrysler Corporation Space Division, Michoud Operations, 154 NLRB 352 (1965) (27 manufacturing engineers working on the "Saturn booster" for NASA were found to be professionals. Although 8 of the 27 had no post-high school classroom education, they had equivalent experience in the aircraft industry and performed predominantly intellectual work drafting manufacturing plans and designing tools.) While educational background is not controlling, it is relevant to the analysis of whether a type of work requires, "knowledge of an advanced type". As the Board explained in Avco Corp., supra, at /357: If a group of employees consists primarily of individuals with professional degrees, the Board may presume that the work requires 'knowledge of an advanced type'... Conversely, if few in the group possess the appropriate degree, it logically follows that the work does not require the use of advanced knowledge.

17

Thus, typically, engineers deemed to be professionals possess field-specific college or higher-level degrees and perform original intellectual work rather than manual labor. See, Loral Electronics Systems, 200 NLRB 1019 (1972) (engineers with professional degrees found to be professionals, those without, despite 10 years of electronics experience, were technical rather than professional employees; Board noted that an Associate Electrical Engineer was not a professional, but that if he earned an engineering degree he may be considered a professional if he otherwise satisfied the requirements of Section 2(12). Id. at fit 17). Although the Petitioner cites New York Water Service Corp., 100 NLRB 1246 (1952) as analogous, it is utterly distinguishable in that the civil engineer held to be a professional in that case had an engineering degree. Further, the civil engineer was responsible for designing water works and drawing construction plans for pumping stations and pipelines. Employees in the petitioned-for unit are not involved in any such design work. The employees found to be professionals in Union Electric Co. of Missouri, 83 NLRB 872 (1949), also cited by Petitioner, all had a college-level education. Other employees in that case, whose work involved equipment inspection and required knowledge of when repairs or new parts were needed, were found to be technical employees rather than professionals. The Petitioner cites Northwestern Bell Telephone Co., 79 NLRB 549 (1948) as another example of employees found to be professional despite a lack of formal education. However, in that case forty-nine percent of the plant engineers at issue had attended universities or colleges. They were responsible for, "designing and planning the extension, construction, and upkeep" of outside telephone plants. They engaged in, "independent study and research" into a wide variety of matters including population growth rates and industrial development in the area of the planned construction. They prepared, "detailed cost estimates" of their projects. No employee in the petitioned-for unit herein performs work of a similar nature to that of the plant engineers in Northwestern Bell. E. Even if the petitioned-for employees were professionals under the Act, the petitioned-for unit would be inappropriate as an arbitrary segment of a professional unit. As noted above, the Board, under Utah Power & Light, supra, will direct an election among professional employees separate from other unit employees in cases where the professional employees were not previously afforded their right to a Sonotone election. This constitutes an exception to the general rule that Board will not direct a decertification election in a unit which is not coextensive with an existing unit. Campbell Soup, supra. The exception does not, however, allow for arbitrary segmentation within a unit of professional employees. The Board has been clear, to the contrary, that it will not direct an election for a group of professionals that does not itself have a sufficiently distinct community of interest. General Electric Company, 1290 NLRB 199 (1958). Because there is insufficient evidence that the central plant employees and "academic" refrigeration engineers share a community of interest which is distinct from the "residential" refrigeration engineers, the petitioned-for unit is not appropriate for an 18

election. In Pratt & Whitney, 327 NLRB 1213 (1999), the Board considered a unit of "traditional engineering core" employees that had been deemed appropriate by a Regional Director. The Board found that the group constituted an arbitrary segment of professional engineering employees. Like the residential engineers herein, the excluded employees in Pratt & Whitney had the same licensing and certification requirements as included employees. The Board rejected the regional director's reasoning that the "core" engineers in Pratt & Whitney constituted a distinct group because they worked with special materials in the, "most challenging environments," while excluded employees in the same classification who worked in separate facilities with standard construction materials. Id., at 1216. See also, Permanente Medical Group, 187 NLRB 1033 (1971) (Board found that holding a petitioned-for Sonotone election among clinical lab technologists at 6 of 12 clinics would amount to arbitrarily segmenting an existing bargaining unit covering all facilities and instead ordered election in a group coextensive with the existing unit). Here, likewise the Petitioner is seeking to distinguish between two sets of employees with the same job classification whose job duties are essentially divided by the location of their work and the equipment differences at the different locations. There is no difference in licensing requirements among Refrigeration Engineers. Thus, even if the petitioned-for employees were found to be professionals, which finding is not supported by the record for reasons discussed herein, an election among them which excluded the "residential" Refrigeration engineers would be inappropriate. It would amount to an election in a segment of employees not coextensive with the existing unit which is contrary to Board precedent. Accordingly, based on this record, I can only conclude that the petitioned-for unit is not appropriate because the Petitioner failed to present evidence that the employees therein are professional employees under the Act. Even were these employees professionals, an election in the petitioned-for unit would be inappropriate as the record evidence does not clearly show a distinction between those included and those excluded who work in the same job classification. Given that the Petitioner has not advanced any alternate unit or advanced any alternate theory to support a decertification election, the petition is hereby dismissed.
RIGHT TO REQUEST REVIEW

Under the provisions of Section 102.67 of the Board's Rules and Regulations, a request for review of this Decision may be filed with the National Labor Relations Board, addressed to the Executive Secretary, 1099 14th Street N.W., Washington DC 20570. This request must be received by the Board in Washington by August 5, 2013. In the Regional Office's initial correspondence the parties were advised that the National Labor Relations Board has expanded the list of permissible documents that may be electronically filed with its offices. If a party wishes to file one of the documents which may not be filed electronically, please refer to the Attachment supplied with the Regional Office's initial correspondence for guidance in doing so. Guidance for E-filing can also be found on the National Labor Relations Board web site at www.nlrb.gov. On 19

the home page of the web site, select the E-Gov7 tab and click on E-Filing. Then select the NLRB office for which you wish to E-File your documents. Detailed E-filing instructions explaining how to file the documents electronically will be displayed. DATED at New York, New York this 22nd day of July 2013.

Karen P. Fernbach Regional Director National Labor Relations Board Region 2 26 Federal Plaza, Room 3614 New York, New York 07728

To file the request for review electronically, go to www.nlrb.gov and select the E-Gov tab. Then click on the E- Filing link on the menu. When the E-File page opens, go to the heading Board/Office of the Executive Secretary and click on the "File Documents" button under that heading. A page then appears describing the E-Filing terms. At the bottom of this page, check the box next to the statement indicating that the user has read and accepts the E-Filing terms and click the "Accept" button. Then complete the filing form with information such as the case name and number, attach the document containing the request for review, and click the "Submit Form" button. Guidance for E-filing is contained in the attachment supplied with the Regional Office's initial correspondence on this matter and is also located under "E-Gov" on the Board's web site, www.nlrb.gov.
7

20