Carlisle & Jacquelin

National Labor Relations Board - Board Decisions

Nov 25, 1943

53 N.L.R.B. 902 (N.L.R.B. 1943)

In the Matter of EDWARD C. FIEDLER, CHARLES F. SAMSON, ROGER D.
MELLICK, J. WRIGHT BROWN, KENNETH BOARDMAN, HAROLD W. CAR-
HART, C. MAURY JONES, CLARKSON RUNYON, JR., ARCHIE M. REID,
Louis LEE STANTON, ROBERT A. HAUGHEY, VAN R. HALSEY, WALTER I.
CLAYTON, DEWEES W. DILWORTH, F. K. M. HUNTER, STUART SCOTT,
JR., ALBERT FRANCKE, DAVID A. LOWRY, WALTER B. LEVERING, ED-
WARD J. STRAY, JOHN B. MAHER AND JOSEPH J. O'BRIEN, GENERAL
PARTNERS, AND JOHN T. WINKHAUS, LIMITED PARTNER, DOING BUSI-
NESS AS CARLISLE & JACQUELIN, A PARTNERSHIP and NEW YORK STOCK
EXCHANGE & FINANCIAL EMPLOYEES INDEPENDENT ASSOCIATION
Case No. 2-R-41.53.-Decided November 05, 1943
.Dorsey, Adams c€ Walker, by Mr. William J. Walker, of New York
City, for the Company.
Delson, Levin & Gordon, by Messrs. S. Harry Eilenberg and I. Cyrus
Gordon, of New York City, for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by New York Stock Exchange & Financial
Employees Independent Association, herein called ,the Union, alleg-
ing that a question affecting commerce had arisen concerning the rep-
resentation of employees of Edward C. Fiedler, Charles F. Samson,
Roger D. Mellick, J. Wright Brown, Kenneth Boardman, Harold W.
Carhart, C. Maury Jones, Clarkson Runyon, Jr., Archie M. Reid,
Louis Lee Stanton, Robert A. Haughey, Van R. Halsey, Walter I.
Clayton, Dewees W. Dilworth, F. K. M. Hunter, Stuart Scott, Jr.,
Albert Francke, David A. Lowry, Walter B. Levering, Edward J.
Stray, John B. Maher, Joseph J. O'Brien, and John T. Winkhaus,
partners doing business under the name of Carlisle & Jacquelin, New
York City, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
John J. Cuneo, Trial Examiner. Said hearing was held at New York
53 N. L. R. B., No. 169.
902
CARLISLE & JACQUELIN 903
City on October 4, 5, 8, and 11, 1943. The Company and the Union
appeared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. During the course of the hearing, the Company
moved to dismiss this proceeding on the ground that the unit proposed
by the Union was inappropriate for bargaining. For reasons which
appear in Section IV, below, the motion is denied. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed." All parties were afforded opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Edward C. Fiedler, Charles F. Samson, Roger D. Mellick, J. Wright
Brown, Kenneth Boardman, Harold W. Carhart, C. Maury Jones,
Clarkson Runyon, Jr., Archie M. Reid, Louis Lee Stanton, Robert A.
Haughey, Van R. Halsey, Walter I. Clayton, Dewees W. Dilworth,
F. K. M. Hunter, Stuart Scott, Jr., Albert Francke, David A. Lowry,
Walter B. Levering, Edward J. Stray, John B. Maher, Joseph J.
O'Brien, and John T. Winkhaus are partners doing business under the
name of Carlisle & Jacquelin. The Company is an odd lot dealer in
listed securities traded on the floor of the New York Stock Exchange,
herein called the Exchange. The Company has no branch offices and
no telephone or telegraph wires of any kind outside New York City.
The Company receives orders for execution on the floor of the Exchange
from other New York City stock brokerage houses. These orders
come from all sections of the United States and approximately 60
percent of them originate outside the State of New York. Such orders
are transmitted by telephone, telegraph, cable, wireless, and mail to
representatives on the floor of the Exchange, who refer them to the
Company for execution.
During 1942 the Company traded in more than 16,000,000 shares of
stock, involving more than 700 issues of listed securities traded on the
Exchange, the total value of which exceeded $30,000,000. A substantial
percentage of such listed stocks were issued by railroads engaged in the
business of transporting freight and passengers among the several
States, by corporations engaged in communicating intelligence among
the several States, and by corporations engaged in manufacturing or
other industries which, in the course and conduct of their business,
3 On November 10, 1943, the parties entered into a stipulation for the correction of the
transcript of the record made at the hearing In accordance with their stipulation, the
record is hereby deemed , and is, corrected , and the stipulation is hereby made, and is, part
of the official, record in this proceeding
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received quantities of raw materials from States other than the one in
which they were located, and shipped from the State of their location
substantial quantities of products to foreign nations or other States
of the United States.
In the course of its business, the Company maintains and uses 400
direct telephone wires to the New York City offices of stock exchange
firms and to the floor of the Exchange. The Company receives in its
office the ticker communication service of New York Quotation Com-
pany, which operates and supplies this ticker service to Western Union
Telegraph Company, which in turn transmits its reports throughout the
United States. Information furnished by New York Quotation Com-
pany through its ticker service originates in the trading room of the
Exchange.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
New York Stock Exchange & Financial Employees Independent
Association is an unaffiliated labor organization, admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 14, 1943, the Union advised the Company that the Union
claimed to represent a majority of the Company's telephone clerks 2
and requested a bargaining conference. On July 16, 1943, the Com-
pany notified the Union that the Company would not recognize the
Union as the sole bargaining representative of these employees unless
the Union were certified by the Board. On July 28, 1943, the Union
filed the original, and on September 22, 1943, the amended, petition in
this proceeding.
A statement prepared by the Regional Director and introduced into
evidence at the hearing indicates that the Union represents a substan-
tial number of employees in the unit herein found appropriate .3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning'
of Section 9 (c) and Section 2 (6) and (7) of the Act.
% Telephone clerks are , in the record , sometimes called telephone booth clerks.
The Union submitted 23 authorization cards, 2 of which were dated August 12, 1943,
and the remaining undated, all of which appear to bear genuine original signatures of em-
ployees on the Company 's pay roll of August 17, 1943. An affidavit filed by the secretary
of the Union states that the Union began its organizational activities among the Com-
pany 's employees on April 21 , 1943, and that the undated cards were signed between April
21, 1943, and August 13, 1943.
There are approximately 31 employees in the appropriate unit.
CARLISLE & JACQUELIN
IV. THE APPROPRIATE UNIT
905
The Union contends that telephone clerks employed by the Company
who work at booths on the floor in the trading room of the Exchange,
excluding supervisory employees, constitute an appropriate bargain-
ing unit. The Company contends that the restricted unit proposed by
the Union is inappropriate for bargaining and that all its employees,
excluding supervisory and confidential employees, constitute a single
appropriate bargaining unit. -
The Company is an odd lot dealer in listed securities traded upon the
floor of the Exchange. It maintains its office at 120 Broadway, New
York City. The majority of the Company's employees are office cleri-
cal employees whose work is performed on the Company's premises in
the 12 or 14 separate office clerical departments, among which the Com-
pany divides its work. Certain departments and the employees work-
ing in them are characterized in the record as "back office" departments
and employees, respectively. Back office employees do the work of
checking, tallying, and recording the purchases and sale orders re-
ceived by the Company and the subsequent execution of these orders
in the purchase and sales of stocks effected by brokers acting for the
Company on the trading floor of the Exchange. They also handle
all communications with, the Company's customers with respect to their
orders and accounts. They are in charge of the Company's permanent
records. Each of these back office departments is housed in a separate
room or division of the Company's office space. There are transfers
of employees among the several departments of the Company's opera-
tions. These are of permanent, rather than of temporary, nature.
The telephone department is one of the Company's clerical depart-
ments. It is distinguished from the back office departments, however,
in that it is confined to telephone clerks and bag boys who spend by
far the greater part of their working hours on the floor of the Ex-
change rather than on the premises of their employer. Telephone
clerks serve as clerical aids, or "bookkeepers," to brokers who buy and
sell for the Company on the floor of the Exchange. They keep track
of the accumulation of "limited" orders for purchase and sale during
the day and the Company's position with respect to stocks while stocks
are being traded on the floor. In performing this service, telephone
clerks keep what is called a "bible," in which they arrange the buy and
sell orders on which fixed prices are set. Brokers usually keep in
their own possession orders "at the market" in what are known as
brokers' handbooks. They also keep track of all pending orders. The
bibles and handbooks are the special care of telephone clerks. They
contain confidential material and no other employees of the Company
have access to them.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Telephone clerks report to the Company's office at 9 o'clock, as do
other employees of the Company. In a room set aside for the tele-
phone department, they arrange their bibles and check the material
in the bibles with the brokers' handbooks. At 9:25 they leave the Com-
pany's' office and proceed to the floor of the Exchange. The market
opens at 9: 30. Telephone clerks work standing at trading posts about
the Exchange floor from 9: 30 until after the close of the market, or
about 3 : 20 p. m. They are in constant touch and communication with
the brokers who are trading for the Company on the Exchange` floor
and with clerks in the Company's private office. Private telephone
wires afford opportunity for ready communication with the Com-
pany's private office and calls are constantly made by or to the tele-
phone clerks during the day. At 30-minute intervals messengers or
bag boys carry executed order slips for the purchase and sale of stocks
directly from the telephone clerks to the tally department on the Com-
pany's premises. When the market closes at 3 p. m., or shortly there-
after, the telephone clerks leave the Exchange, 'return to the Com-
pany's office, and place their bibles and the brokers' handbooks in the
Company's safe. This completes their normal working day .4
Each day after the close of the market, there are 2 to 3 hours' work
regularly assigned to be performed by the telephone clerks. To per-
form this work they are divided into "cut-out" crews, on which they
serve in rotation. A cut-out crew consists of four to six telephone
clerks. Clerks on the cut-out crew strip the bibles of unexecuted or
dead orders and write up and sort new orders that have come in after
the close of the market day. 'These clerks also make certain spot checks
from time to time as an additional correction upon their work.-9
Telephone clerks and bag boys are subject to the rules, require-
ments, and restrictions imposed by the Exchange upon employees of
members operating on the Exchange floor. Their work on the floor
brings them into daily direct contact with employees of the Exchange
and with telephone clerks and bag boys of other financial houses deal-
ing through the Exchange. They are required to undergo yearly
medical examinations not required generally of the Comppany's em-
ployees. They wear special identification buttons and carry admis-
sion'cards which admit them to the floor of the Exchange. Bag boys
and telephone clerks are'the only employees of the Company who are
subject to these conditions.
The Company contends that employees in the telephone department
do not constitute a separate appropriate bargaining unit because the
4 At the-end of each month all telephone clerks perform some duties after the close of
the market connected with cleaning out their bibles.
5 To supplement their wages, telephone clerks volunteer to work before and after regular
office hours for additional money During this time they do routine clerical work on the
Company's premises . This work lies outside their regular duties as telephone clerks.
CARLISLE & JACQUELIN 907
work which they perform constitutes only one link in the chain of
operations necessary for the execution of its financial business.
Whether the telephone clerks could carry out the Company's financial
operations without the recording, checking, and other services sup-
plied by the back office employees is not conclusive in determining the
appropriateness of a bargaining unit limited to telephone clerks. In
setting up a departmental unit, we do not require that employees with-
in the department complete a separate finished segment of their em-
ployer's business, independent of the assistance of other departments.
Employees in the telephone department clearly form a homogeneous
and identifiable group among the Company's employees. They are
directly subject to the direction of departmental supervisors. Their
working conditions are clearly different from the Company's regular
office employees who perform their work seated at desks or tables on
the Company's premises.- For these reasons, and on the basis of the
entire record herein, we find that a unit limited to employees in the
Company's telephone department who perform their services for the
Company largely on the floor of the Exchange, constitutes an, appro-
priate bargaining unit apart from other employees of the Company.°
The Union would limit the bargaining unit to telephone clerks in
the telephone department and would exclude bag boys from the bar-
gaining unit. The Company normally requires the services of one
bag boy. At the time of the hearing the Company employed two
bag boys, one of whom was employed for training and replacement
because of the frequent turn-over among employees in this category
and the great desirability of having a trained boy available for
immediate service. Bag boys spend at least one-half of their working
time on the floor of the Exchange. Like telephone clerks, they'come
into daily contact with floor employees of members of the Exchange.
9 On August 28, 1942 , the Board found that employees of the Exchange who work on the
floor of the Exchange constituted an appropriate bargaining unit and on September 30, 1942,
certified the Union as their sole bargaining representative Matter of New York Stock
Exchange, 43 N L . R B 766; 44 N L R B 714 At the time of this decision the Union
was known as New York Stock Exchange Independent Employees Association and limited
its membership to floor employees of the Exchange The Union subsequently extended its
membership to include generally all employees of members of the Exchange and ac-
cordingly changed its name as appears in the instant proceeding . The Union is now
engaged in organizing employees of financial concerns which operate in the wall Street
area in New York City . It is limiting its present organizational drive to telephone clerks
of employer members of the Exchange . The Union has not yet actively sought to organize
the back office employees of the Company , although it invited them to a general mass
meeting and contemplates their organization in the future . Our finding herein that a unit
limited to employees in the Company 's telephone department constitutes an appropriate
bargaining unit is predicated upon the present state of organization among the Company's
employees and such finding will not preclude a further investigation into the matter of the
appropriate unit or units for employees of the Company , and possible revision of the unit
found appropriate herein , upon the subsequent filing of a later petition for certification of
representatives involving these employees Matter of Minneapglss -Honeywell Regulator
Company, 51 N L. R. B. $90
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall include bag boys with telephone clerks in the departmental
unit.
The Company and the Union agree, and we find, that the co-heads of
the telephone department should be excluded from the bargaining
unit. The Company employs three persons, generally, called super--
visors, who, prior to January 1943, were regularly assigned to sections
on the flood of the Exchange for the purposes of supervising, relieving,
and advising telephone clerks in the performance of their work. All
their time was spent in a supervisory capacity. Beginning in or about
January 1943, due to the manpower shortage, these three supervisors
were required to perform the regular duties of telephone clerks. So
far as the record discloses, however, there has been no significant
change in the relative status of these supervisors. They have assumed
the regular duties of telephone clerks without being relieved of their
former duties as supervisors. They are intermediary between the
co-heads of the department and the regular telephone clerks. They are
still considered supervisors by other telephone clerks. They are paid
substantially more wages than other clerks in the department. Since
it appears that supervisors have not been divested entirely of their
supervisory capacity, although they operate bibles and perform the
regular duties of telephone clerks, we shall exclude them from the
bargaining unit. We shall also exclude from the bargaining unit all
other employees of the Company within our definition of supervisory
employees.
We find that all telephone clerks and bag boys employed by the
Company who work on the floor of the New York Stock Exchange,
excluding co-heads and supervisors of the telephone department and
all other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such-action, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRE8ENTATEVXS
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
of the Company in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of the Direction of Election herein, subject to the limita-
tions and additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
CARLISLE & JACQUELIN 909
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRFarEO that, as part of the investigation to ascertain representa-
tives for the purpose of collective bargaining with Edward C. Fiedler,
Charles F. Samson, Roger D. Mellick, J. Wright Brown, Kenneth
Boardman, Harold W. Carhart, C. Maury Jones, Clarkson Runyon,
Jr., Archie M. Reid, Louis Lee Stanton, Robert A. Haughey, Van R.
Halsey, Walter I. Clayton, Dewees W. Dilworth, F. K. M. Hunter,
Stuart Scott, Jr., Albert Francke, David A. Lowry, Walter B. Lever-
ing, Edward J. Stray, John B. Maher, Joseph J. O'Brien, and John T.
Winkhaus, partners doing business under the name of Carlisle &
Jacquelin, New York City, an election by secret ballot shall be con-
ducted as early as possible but not later than thirty (30) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the em-
ployees of the Company in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during said pay-roll period because they were ill or on
vacation or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election, to determine whether or not they desire to be represented
by New York Stock Exchange & Financial Employees Independent
Association, for the purposes of collective bargaining.
559015-44-vol. 58-59