New York Stock Exchange

National Labor Relations Board - Board Decisions

Aug 28, 1942

43 N.L.R.B. 766 (N.L.R.B. 1942)

In the Matter of NEW YORK STOCK EXCHANGE and NEW YORK STOCK
EXCHANGE INDEPENDENT EMPLOYEES ASSOCIATION
Case No. R-4076-Decided August 28, 1940
Jurisdiction : stock exchange industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until certified by the Board ; election
necessary.
Unit Appropriate for Collective Bargaining : all employees in the floor depart-
ment of the Exchange ; office-department employees excluded in view of the
fact' that they could constitute a separate appropriate unit and union had
not organized them.
Milbank, Tweed d Hope, of New York City, by Mr. John A. Kelly,
for the Exchange. -
Delson, Levin & Gordon, of New York City, by Mr. I. Cyrus
Gordon, for the Union. '
Mr. William R. Lake, of New York City, for the Office Employees.
Mr. H. G. Moorhead, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION,
STATEMENT OF THE CA SE
Upon petition duly filed by New York Stock Exchange Independent
Employees Association,, herein called the Union; alleging that a ques-
tion affecting commerce had arised concerning the representation of
employees of New York Stock Exchange, New York City, herein called
the Exchange, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Martin I.- Rose, Trial
Examiner. Said hearing was held at New York City on July 23 and
24, 1942. The Exchange, the Union, and W. R. Lake, an employee
authorized to represent certain unorganized office employees of the
Exchange in this proceeding,2 appeared, participated, and were af-
I The Union was organized and filed its amended petition in this proceeding on May 11,
1942, under the name New York Stock Exchange Independent Floor Employees' Association,
but at the healing its president testified,that the members in the Union had on May 24,
1942; changed its name to.that,appearingcabove TheUmon moved that the records of the
proceeding be amended to state its name in conformity with the change, and the motion was
granted without objection -
2.k petition signed by 121 of the Exchange's office employees, requesting representation
in this proceeding, was filed with the Regional Director for the Second Region.
43 N. L. R B., No. 122.
766
NEW YORK STOCK EXCHANGE 767
forded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
- I. THE BUSINESS OF THE EXCHANGE
New York Stock Exchange is an unincorporated association engaged
in the business of operating in New York City a place of business and
facilities for the purchase and 'sale of certain designated securities
called listed securities.3 The Exchange consists of approximately
1,350 members. On January 1, 1942, members of the Exchange main-
tained 868 branch offices: 170'in 31 cities in the State of New York;
and 698 in 43 States of the United States other than the State of New
York, in 2 territories of the United States, and in 5, foreign,countries.
On the same date,, the Exchange maintained in New York City rooms
and facilities for the purchase and sale of approximately 2,400 issues
of listed securities having a total market value in excess of 90 billion
dollars; 1,232 issues of such listed securities are stocks of 863 different
corporations, and have a total market value in excess of 35 billion
dollars. A substantial percentage of such listed,stock issues is com-
posed of the issues of railroads engaged in the business of transport-
ing freight and passengers between the several States of the United
States ; corporations engaged in communicating intelligence between
the several States, of the United States by means of telephone, tele-
graph, and other means of communication ; and industrial'or manufac-
turing corporations which in the course of their business receive sub-
stantial quantities of raw materials from points in foreign countries
or in States of the United States other than the State in which they
are located, 'or corporations which ship substantial quantities of fin-
ished and semi-finished products to points in foreign countries or in
States of the United States other than the State in which they are
located. Approximately 1,173 issues of such listed securities are
bonds having a total market value in excess of 55 billion dollars; a
substantial percentage of such listed bonds are issued by corporations
engaged in interstate commerce. The Exchange is the sole owner of
the stock of Stock Clearing Corporation 4
Tlie'facts herein 'found with respect to.therbusiness of the Exchange are stipulated by
the Exchange for therpurposes of this proceeding.,
* The Boaid has found that Stock Clearing Corporation is engaged in interstate com-
nierce within the meaning of the Act. See Matter of Stock Clearing Corpoi ation and Ameri-
can Federation of Office Employees , A F of L, 41 N L R B. 108.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
New York Stock Exchange Independent Employees Association is
an unaffiliated labor organization, admitting to membership employees-
of the Exchange.
III. THE QUESTION CONCERNING REPRESENTATION
On or about April 7 and 17, 1942, the Exchange refused -to recog-
nize the Union as the bargaining agent of its employees until such time
as the Union might be certified by the Board.
A statement of the Regional Director for the -Second Region was
introduced in evidence at the hearing; the statement indicates that the
Union represents a substantial number of those employees of the Ex-
change w-ho' are employed in the floor. department, but tha.,t it does not
represent a substantial number of employees in the office department.'
We find that a question affecting cbinmerce has arisen-concerning
representation of employees of the Exchange, within the meaning of
Section 9 (c) alid Section-2 (6) and (7), of the National Labor Rela-
tions Act.
IV. TIIE APPROPRIATE UNIT
The Union contends that the appropriate unit consists of all'em-
,,ployees, both male and female, employed by the New York Stock
Exchange, excluding all executive and supervisory employees. W. R.
Lake, on behalf of the office employees, contends that the appropriate
unit should exclude all persons employed in the office department of
the Exchange. The Exchange has taken no position with respect to
the, appropriate unit. The parties stipulated that "all floor operations
department employees, including employees in the divisions called,
bond, coat room, delivery, floor operations-office, floor reserve, members
switchboard, quotation 15th floor, quotation' floor, reporters, telephone
operators, tube, and page, but excluding supervisors division," and,all
executives and supervisors, shall be included mail appropriate unit."
The Regional Director examined a pay loll of the Exchange, dated May 20, 1942, and
roported that the names of 649 employees in the alleged appropriate unit, including both
floor and office employees, appeared thereon , that 467 apparently genuine original signatures
of the different employees whose names appeared on the pay roll also appealed severally upon
authorization, or application-authorization cards designating the Union as the bargaining
agent of the signer ; that the pay roll contained the navies of 145 employees in the office
employees division, and that the names of only 3 employees in this division appeared on
cards designating the Union The Regional Director also reported that the pay roll contains
the names of 128 persons in the departments alleged to be office departments and that
(including employees absent on that pay roll) these is a total of 145 employees in the office
employees division The names of 121 employees appealing on the pay loll as office em-
ployees also appeared by purportedly authentic signature upon a petition which, with refer-
ence to this proceeding , made the following statement '( inter alai) :
we are advised that we may possibly be included in the "appropriate unit" as ultimately
delineated by the National Labor Relations Board Inasmuch as such a determination
would be contrary to our washes, we petition you for the privilege of being heard on this
and any related issue.
It appears that in the floor department there is a supervisors division , but that all of
the supervisory employees of the Exchange are not included therein.
NEW YORK STOCK EXCHANGE 769
The record indicates that the floor employees and the office. em-
ployees 'could be grouped together in a single appropriate unit, or
could constitute two separate units. The Exchange hires employees
in both departments through a single personnel office. Employees of
both departments are eligible to participate in the Exchange's pen-'
sion plan, loan fund, and group insurance, and are eligible to mem-
bership in clubs which the Exchange maintains.7 On the other hand,
the working hours of office employees differ from those of floor em-
ployees, and office employees in normal times have more liberal vaca-
tion privileges. During the usual course of the Exchange's business
there are only a few transfers from one department to the other, and
most of such transfers are permanent." While the work of certain
floor-department employees is similar to that of certain office em-
ployees, in general the office employees perform desk work in an office
whereas floor-department employees move about and are not confined
to desk work. In the office department, stenographic and clerical
employees are interspersed through a number of scattered offices, to-
gether with administrative, professional, and semi-professional
employees .9
The constitution and bylaws of the Union 10 and the petition origi-
iially filed in this proceeding,h1 indicate that the Union was originally
organized and at first proceeded herein with the objective of repre-
senting only the floor employees of the Exchange. The president of
the Union testified at the hearing that on May 24, 1942', the members
of the Union voted to amend the name of the Union as indicated
above by striking the word "Floor" from' its name and by amending
the membership provision of its constitution and bylaws to extend
eligibility for membership to all employees of the Exchange (except
those identified with the management, or those in executive, admin-
,.'mong such clubs are the Quarter Century. Camera, Stamp, Army and Navy, and Bridge
clubs
S During the period when 'the Exchange was collecting data requested by Securities and
Exchange Commission, a number of floor-department employees were transferred for regular
work in the economist's office, which is in the office department.
° The offices are located on different floors of four adjacent buildings. The nature of the
administrative organization of the office department is indicated by the names of its
divisions and subdivisions: treasury, executive, member firms (conduct and finance, mem-
ber officers and personnel, complaint, central records), operations (personnel, investiga-
tions, mailing, supply), stock list, public 'relations, secretary's office (ofce of the Secre-
tary, office of committee stenographers, and court reporters), floor procedure, economists.
10 Prior to May 24, 1942, the membership provision of the constitution and by-laws,of
the Union read as follows
Each'male employee of New York Stock Exchange who is employed in the department of
floor operations, except those identified with the management, or those in executive,
administrative, or supervisory positions, shall be eligible for membership' in this Associa-
t.on (Emphasis supplied ) ,
11 The original petition, filed by the Union on April 9, 1942, stated that the appropriate
unit consisted of "all male employees engaged on the floor of the New York Ex-
change . . " (Emphasis supplied) It alleged that theie were approximately 430
employees in the unit and that the Union represented 419 of such employees.
481039-42-vol. 43-49
770 DECISIONS OF NATIONAL I^ABO'R RELATIONS BOARD ,
istrative, or supervisory positions). Within a few weeks of this date,
the Union made an attempt to organize the office employees and held
a mass meeting for the purpose; but the president of the Union testi-
fied that he talked to various office employees and received "the gen-
eral impression " that they entertained doubts with respect to the
control of the organization and that "they desired that we give them
time to consult amongst themselves as to the reaction which they
would give us later, whether they wanted to come in or not." As
stated above, 121 of the approximately 125 office employees signed the
petition indicating their opposition to the Union , and it appears that
only 3 office - employees have indicated their desire to be represented
by the Union.
In view of the fact that office-department employees could consti-
tute a, separate appropriate unit, the fact that the Union has as yet
not organized. them, and since virtually all these employees have
indicated, their desire not to be represented by the Union, we shall
exclude office -department employees from the unit. Our finding in
this respect, however, is not to be construed' as precluding a later
redetermination of the unit to include such employees upon a proper
showing, by the Union that it has extended its organization to include
them.
We find that all employees employed in the floor department of
the Exchange , including the employees of the bond , coat room, deliv-
ery, floor operations-office, floor reserve , members switchboard, quo-
tation 15th floor, quotation floor, reporters , telephone operators, tube,
and page divisions , but excluding all the employees in the supervisors
division , and all executive, supervisory, and office -department em-
ployees , constitute a unit appropriate for collective bargaining within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the 'appropriate unit who were employed during the
pay-roll period immediately preceding the date of this Direction of
Election , subject to the limitations 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-
tions Act , and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
NEW YORK STOCK EXCHANGE 771
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with New York Stock
Exchange, 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, Section 9, of the said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were, employed by the Exchange during the pay-roll period immedi-
ately preceding the date of this Direction, including any such em-
ployees who did, not work during said pay-roll period because they
were ill or on vacation or in the active military service or training
of the United States, or temporarily laid off, but excluding any
employees who have since quit or been discharged for cause, to deter-
mine whether or not they desire to be represented by New York Stock
Exchange Independent Employees Association for the purposes of
collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.
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