Dean Witter & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1974

215 N.L.R.B. 4 (N.L.R.B. 1974)

4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dean Witter & Company, Inc. and Office & Profes-
sional Employees International Union, Local 153,
AFL-CIO, Petitioner . Case 2-RC-16509
November 21, 1974
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Robert Reisinger of
the National Labor Relations Board. Following the
close of the hearing the Regional Director for Region
2 transferred the case to the Board for decision.
Thereafter, the Employer filed a brief.
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 reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.'
Upon the entire record in this proceeding, the Board
finds:
1. The Employer is a Delaware corporation engaged
in the sale of securities throughout the United States.
During the past year the Employer sold securities the
value of which exceeded $500,000 and during the same
period the Employer purchased securities, the value of
which exceeded $50,000, from directly outside the
State of New York. We find that the Employer is en-
gaged in commerce within the meaning of the Act and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Em-
ployer within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
4. The appropriate unit:
The Union's petition seeks an election among the
Employer's office and clerical employees working at 2
Broadway, New York, New York. At the hearing the
Union amended its petition to add office and clerical
employees working at 42 Broadway, 14 Wall Street,
120 Wall Street,' the New York Stock Exchange, and
the American Stock Exchange, New York, New York.
In the alternative, the Union stated that to its amended
petition it would also add office and clerical employees
working at 211 East 43rd Street, 1251 Avenue of the
Americas, and 660 Madison Avenue, all in New York
City, and Garden City, New York, and Paramus, New
Jersey. The Employer contends that the Union's alter-
native unit is an appropriate unit and that an equally
appropriate unit would include, in addition to the
Union's alternative unit, office and clerical employees
working at Elmira, New York; Boston, Massachusetts;
Columbus, Ohio; and Greenwich, Connecticut.
Scope of the Unit
For administrative purposes, the Employer is di-
vided into three operational divisions, each of which is
responsible to a national headquarters for operations
located at 2 Broadway in New York City. Also at 2
Broadway are 40 "national operations" departments
which provide national support functions for the Em-
ployer's sales offices throughout the United States.
Other "national operations" departments, which are
located at 14 Wall Street and 42 Broadway, also pro-
vide national support functions. Robert Flanagan, ex-
ecutive vice president, is in charge of all "national oper-
ations" departments.
Additional operational departments, known as
"transaction services" departments, provide national
support functions for the Employer's sales offices.
These departments, including the commodities depart-
ment at 2 Broadway and 10 other departments at 14
Wall Street, are ultimately supervised by Robert
Swinarton , vice chairman of the Employer's board of
directors.
Other operational departments, which relate to mat-
ters such as accounting systems, internal audit, and
money management, are located at 2 Broadway and 42
Broadway. These departments, which provide national
support services for the Employer's sales offices, are
under the ultimate supervision of company officials in
San Francisco, the Employer's corporate headquarters.
National support functions are also performed by
wire and order service employees located at the New
York Stock Exchange and the American Stock Ex-
change. These employees are supervised by personnel
located at 2 Broadway. National support functions are
also performed by electronic data processing employees
located at 211 East 43rd Street. These employees, who
perform work which is comparable to the work per-
formed by other electronic data processing personnel
1 We find it unnecessary to consider whether the Hearing Officer erred
in granting the Petitioner's motion to strike all testimony concerning the job
classifications of programmers and traders since, as noted hereinafter, we
find that such employees should vote subject to challenge We further find
it unnecessary to consider whether the Hearing Officer erred by allowing
the Petitioner to withdraw its stipulation as to the ultimate conclusion that
stock loan representatives should be included within the bargaining unit
sought since testimony in the record, as discussed infra, supports the inclu-
sion of such employees without reliance upon the parties' stipulation
2 As of June 1, 1974, all personnel employed at 120 Wall Street were
moved to 2 Broadway
215 NLRB No. 3
DEAN WITTER & COMPANY, INC. 5
who are located at 2 Broadway, are under the overall
supervision of personnel located at 14 Wall Street.
Personnel matters for all of the foregoing employees
are handled by employees located at 2 Broadway. In
addition, the personnel department handles personnel
matters for employees in the Employer's eastern
branch sales offices. The headquarters for the Em-
ployer's eastern sales region, located at 14 Wall Street,
is supervised by Richard Hayes, senior vice president.
For sales purposes, the Employer is divided into 10
regions, each of which contains branch offices at vari-
ous locations. The Employer 's eastern branch, with its
headquarters at 14 Wall Street, consists of sales offices
at 660 Madison Avenue and 1251 Avenue of the
Americas in New York City; Garden City, New York;
Paramus , New Jersey; Elmira, New York; Boston,
Massachusetts; Columbus, Ohio; and Greenwich, Con-
necticut.
In its brief to the Board, the Employer recognizes
that the employees who provide national operations
support services are functionally integrated and opera-
tionally interdependent in a way which creates close
daily working contact and a substantial community of
interest among such employees. Also, the Employer
recognizes that common supervision is present for em-
ployees who work at various operations locations, that
many operations employees perform their work at
more than one operations location, and that both per-
manent and temporary interchange of personnel occurs
among operations locations. The Employer further
recognizes that its operations employees have the same
conditions of employment. In light of these factors and
in view of the fact that we find an appropriate multilo-
cation unit may consist of an administrative grouping,
such as offices within a cohesive geographic area which
provide national support operations functions for an
employer, we conclude that the unit sought by the
Petitioner herein in its amended petition, with the addi-
tion of the 211 East 43rd Street location, is an appropri-
ate unit.3
stockroom clerks, telephone operators, and EAM-10
clerks. Because the record supports the inclusions
agreed upon by the parties we accept their stipulation
as to employees who work in the foregoing job classifi-
cations at the locations which we have found to consti-
tute an appropriate unit.
The parties further agreed as to the supervisory
status of various employees. Based upon such stipula-
tion and upon the record evidence in the case at bar, we
further find: (1) that the following employees are non-
supervisors who should be included within the appro-
priate office and clerical unit at the locations heretofore
set forth: Sofia Andriano, James Barkett , Jack Calder-
one, Martin Caliendo, Anthony Giannoto, George
May, and John Rodriguez; and (2) that the following
employees are supervisors within the meaning of Sec-
tion 2(11) of the Act who should be excluded from the
said unit: Al Aicheele, Glen Belisle, Thomas Bell, Rob-
ert Burnett, William Boon, Harold Chaize, Robert
Chonko, William Choy, Patrick Ciampi, Tom Davis,
Al Decapua, Al Dimino, Eugene Donnelly, Michael
Eng, David George, Ronald Garavuso, Louis Haynes,
Frank Hennger, Al Karsten, Oscar Kouhi, Andrew
McDuff, Albert Minerio, Joseph Popolo, Ralph Rome,
Joseph Sino, Louis Torrella, and William Troy.
The parties disagree as to the unit placement of the
following classifications of employees, all of which the
Employer contends are office and clerical employees
who should be included in the unit and which the
Petitioner contends are technical, professional, or
managerial employees or otherwise lack a community
of interest with unit employees so as to be properly
excluded from the unit: municipal bond liaison re-
presentatives , internal auditors , manual systems plan-
ners, communications specialists , stock loan represen-
tatives, sales trainees , sales assistants , programmers,
junior programmers, system test coordinators, schedul-
ers, traders, assistant traders, writer analysts, staff writ-
ers, research analysts, statisticians, and Librarians.
Unit Placement
Although the parties did not reach agreement as to
the unit placement of all office and clerical unit em-
ployees, they did agree that all employees with the
following job classifications should be included in the
unit: payroll clerks, microfilm technicians, print shop
employees, console operators, keypunch operators,
3 Although the unit we find appropriate differs with respect to one loca-
tion from that sought by the Petitioner, we shall not dismiss the petition
inasmuch as the Petitioner has not specifically disclaimed interest in such
unit and the Petitioner has an adequate showing of interest in the larger unit.
If the Petitioner does not desire to participate in an election in the unit found
appropriate herein, we shall permit it to withdraw its petition without preju-
dice upon written notice to the Regional Director within 10 days from the
date of this Decision.
Municipal Bond Liaison Representatives
The Employer's two municipal bond liaison re-
presentatives obtain information and statistics regard-
ing matters such as price, interest rate, and availability
of municipal bonds from available market sources and
relay their findings to branch office personnel.
However, the municipal bond liaison representatives
neither have nor exercise any discretion concerning the
purchase or sale of municipal bonds. There is no educa-
tional or training requirement for municipal bond liai-
son representatives and employees who perform this
work have transferred from other job classifications
which are included in the unit. Municipal bond liaison
representatives are supervised by an individual who
1
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also supervises unit office and clerical employees in the
Employer's municipal bond department and have the
same working conditions as other unit employees. In
addition, employees in this disputed classification have
extensive daily contact with unit personnel. In light of
these facts we find that the Employer's two municipal
bond liaison representatives share a community of in-
terest with unit employees sufficient to support their
inclusion in the unit.
Internal Auditors
The Employer's two internal auditors audit the Em-
ployer's various departments to assure compliance with
rules and regulations of the Employer and regulatory
bodies. In making assigned audits they use a precise
check list and have no discretion to either rectify a
discrepancy, reprimand any employees involved in a
discrepancy, or change any procedure in a department.
No academic degree is required for their position and
neither internal auditor is a certified public accountant.
In performing their work they have extensive working
contact with unit employees, they are subject to the
same working conditions as unit employees, and they
receive comparable earnings . In view of these facts, we
find that the Employer's internal auditors share a com-
munity of interest with employees sufficient to support
their inclusion in the unit.
Manual Systems Planners
The Employer's six manual systems planners pre-
pare analyses of the workflow of office and clerical
operations upon the request of a particular department.
They have no authority to effectively recommend
changes in management or operational policy. In per-
forming their work, the manual systems planners have
extensive working contact with office and clerical em-
ployees with whom they share the same working condi-
tions. Based on these factors we find that the manual
systems planners share a community of interest with
unit employees sufficient to support their inclusion in
the unit.
Communications Specialists
The Employer's two communications specialists,
upon request, prepare internal work orders for the in
stallation of telephone equipment and order such
equipment. They perform no evaluation of the type of
equipment required, nor do they have the authority to
order such equipment without management approval.
The position does not require any specific degree, train-
ing, or education. Their working contact with unit em-
ployees is extensive; their salary range is comparable to
that of unit employees; and their working conditions
are the same. In light of these factors we find that the
communications specialists share a community of in-
terest with unit employees sufficient to support their
inclusion in the unit.
Stock Loan Representatives
The Employer's one stock loan representative loans
and borrows securities to and from other brokers in the
business pursuant to management instruction. He has
no discretion or authority as to which securities to lend
or to borrow nor as to what price to pay for securities
which he borrows from other brokerage houses. In
performing his work he has extensive working contact
with unit employees with whom he shares the same
working conditions. Although the Petitioner withdrew
its stipulation as to the inclusion of the stock loan
representative in the unit, we find that the foregoing
facts, without the necessity for reliance upon the par-
ties' stipulation, evidence a community of interest be-
tween the stock loan representative and unit employees
which is sufficient to support his inclusion in the unit.
Sales Trainees and Sales Assistants
The record herein indicates that sales trainees are
employees who are in training to become registered
representatives and that sales assistants serve as secre-
taries to the registered representatives. As heretofore
noted, we have excluded from the appropriate unit
herein office and clerical employees who work in the
Employer's branch offices in its eastern division. Since
the record in the case at bar reveals that sales trainees
and sales assistants primarily perform their work at
such branch office locations and that such work is
related to sales rather than to operations, we therefore
exclude such personnel from the unit which we herein
find appropriate.
Programmers, Junior Programmers, System Test
Coordinators, and Schedulers
The Employer employs electronic data processing
personnel including 12 programmers, 4 junior pro-
grammers, 2 system test coordinators, and 3 schedul-
ers. The record herein reveals that the programmers
design and write accounting or clerical operations com-
puter programs which comply with industry and office
rules and regulations. Junior programmers, in training
for the position of programmer, learn computer lan-
guages, learn to operate electronic data processing
equipment, and learn to program segments of systems
on which programmers are working. Systems test coor-
dinators interpret computer programs to personnel in
the Employer's various departments, identify problems
in the actual operation of the programs, and bring such
DEAN WITTER & COMPANY, INC.
problems to the attention of the programmers so that
necessary corrections can be made. Schedulers code
various securities of clients for identification by an elec-
tronic data processing system which analyzes clients'
portfolios. At the aforementioned hearing the Hearing
Officer granted the Petitioner's motion to strike all
testimony concerning programmers. We find it un-
necessary to pass upon the propriety of such ruling
because, in our opinion, enough doubt exists as to the
job function of programmers that such employees
should vote subject to challenge. Because of the
similarity of the programmers' job functions to the job
functions of junior programmers, system test coordina-
tors, and schedulers, we likewise find that these em-
ployees should also vote subject to challenge.
Traders and Assistant Traders
The Employer employs 30 traders and 3 assistant
traders. The record herein reveals that the traders con-
tact other brokerage firms to execute an order for
securities at a specified market price. They also place
and execute orders for securities which are not listed on
any of the national exchanges and in which the Em-
ployer is making a market, thereby financially commit-
ting the Employer. The assistant traders learn trading
procedures from the traders and assist traders in minis-
terial tasks. At the aforementioned hearing the Hearing
Officer granted the Petitioner's motion to strike all
testimony concerning traders. We find it unnecessary
to pass upon the propriety of such ruling because, in
our opinion, enough doubt exists as to the job functions
of traders that such employees should vote subject to
challenge. Because of the similarity of the assistant
traders' job functions to the job functions of traders, we
likewise find that the assistant traders should also vote
subject to challenge.
Writer Analysts, Staff Writers, Research Analysts,
Statisticians , and Librarians
The Employer employs four writer analysts, four
staff writers, four research analysts, three statisticians,
and five librarians in its research department. The
writer analysts analyze securities portfolios of clients of
account executives and determine whether such securi-
ties meet the clients' stated financial objectives. Using
a recommended list of securities prepared by the Em-
ployer's research analysts, the writer analysts recom-
mend alternative stocks which would meet the clients'
objectives. The staff writers proofread and edit research
reports which are prepared by research analysts for
7
utilization by account executives and their clients. The
research assistants gather and verify corporate and in-
stitutional statistics and other data for projects and
reports of the research analysts. The statisticians gather
and compile statistical financial data and make compu-
tations to derive comparative rates, percentages, and
other figures for the Employer's research and corporate
finance departments. The librarians maintain and cata-
log economic and corpoi ate data for use by the research
department. In view of the job functions of the forego-
ing five categories of employees who perform tasks
related to research, we conclude that they are neither
office nor clerical employees and that they lack a suffi-
cient community of interest with such employees to
include them in the unit herein found appropriate. Ac-
cordingly, we shall exclude them.
On the basis of the foregoing, the parties' stipula-
tions, and the entire record herein, we find that the
following employees of the Employer constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All office and clerical employees4 employed by
the Employer at its locations at 2 Broadway, 42
Broadway, 14 Wall Street, 120 Wall Street, 211
East 43rd Street, the New York Stock Exchange,
and the American Stock Exchange, New York,
New York, but excluding guards, confidential em-
ployees, salesmen, technical employees, profes-
sional employees, managerial employees, and
supervisors,' as defined by the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
As heretofore noted, the parties stipulated that the following employees
shall be included in the unit: payroll clerks, microfilm technicians, print shop
employees, console operators, keypunch operators, stockroom clerks, tele-
phone operators, and EAM-l0 clerks. We also have found that municipal
bond liaison representatives, internal auditors, manual systems planners,
communications specialists, and stock loan representatives should be in-
cluded in the unit . In addition, we have found that sales trainees, sales
assistants , writer analysts, staff writers, research analysts, statisticians, and
librarians should be excluded from the unit. Furthermore, we have found
that programmers , junior programmers, system test coordinators, schedul-
ers, traders , and assistant traders should be allowed to vote subject to chal-
lenge.
5 As heretofore noted, the parties stipulated that the following employees
are supervisors within the meaning of the Act: Al Aicheele, Glen Belisle,
Thomas Bell, Robert Burnett, William Boon, Harold Chaize, Robert
Chonko, William Choy, Patrick Ciampi, Tom Davis, Al Decapua, Al
Dimino, Eugene Donnelly, Michael Eng, David George. Ronald Garavuso,
Louis Haynes, Frank Hennger, Al Karsten, Oscar Kouhi, Andrew McDuff,
Albert Minerio, Joseph Popolo, Ralph Rome, Joseph Sino, Louis Torrella,
and William Troy. The parties further stipulated that the following em-
ployees are nonsupervisory personnel: Sofia Andriano, James Barkett, Jack
Calderone, Martin Caliendo, Anthony Giannoto, George May, and John
Rodriguez.