Bank of America

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bank of America, National Trust and Savings Association' and Local 17-L Lithographers and Photoengravers International Union, Petitioner. Case 20-RC-8087 February 3, 1969 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Earl D. Brand. Following the hearing, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. Thereafter, briefs were filed by the Employer and the Petitioner, which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds no prejudicial error. The rulings are hereby affirmed. Upon the entire record in the case, the Board finds: 1. 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. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The evidence herein indicates that the Employer is one of the largest privately-owned banks in the world, that it operates through approximately 944 branch banks in the State of California, and also through branches in various foreign countries which are not under consideration here. The Employer employs approximately 32,000 employees and 6,000 officers throughout the State of California to operate its business, and has a detailed administrative structure, which includes a statewide Centralized Services Administration, divided into northern and southern divisions at San Francisco and Los Angeles respectively. The Petitioner seeks a unit of all lithographic and related production employees in the Design and Format Control and Reproduction Department of the northern division of the Purchasing Supplies and Services Division of the Centralized Services The Employer's name appears as amended at the hearing. Administration of the Employer, a unit consisting of approximately 20 employees. In opposition, the Employer contends that the employees petitioned for belong to a larger group of office clerical employees, and that the Board should find an Employerwide unit appropriate, consisting of approximately 32,000 office clerical employees throughout the State of California. Alternatively, the Employer contends that the minimal appropriate unit consists of all office clerical employees employed in its building at One South Van Ness Street, San Francisco, Calif., which basically includes the northern division of its Centralized Services Administration and other related units dependent on the data processing functions of Centralized Services, consisting of approximately 2,000 employees. There is no history of bargaining for any of the Employer's employees. The Employer argues that its contention that a bankwide unit is appropriate is supported by the following factors: (1) the size and importance of the Bank services to the community and the disastrous effect that labor disputes would have upon the community; (2) extensive regulation of the Bank by public bodies evidencing its public service nature; (3) the high degree of functional integration; and (4) the centralization of authority and uniformity of benefits and working conditions. As evidence of its importance, the Employer points out that it has 7,000,000 depositors, cashes between 350 and 360 thousand checks daily, accepts approximately 400,000 deposits daily, and has daily money market operations which total 1.25 billion dollars. The Bank provides 86 different services to its customers, including housing loans, which number more than 2,000 per month, and auto and truck financing, which number thousands per day. The Bank argues that if it were not able to perform these services, the impact would be drastic, particularly among the 19 million citizens of California, and that the Bank would be peculiarly vulnerable fo work stoppages. Examples of the businesses which would be affected were cited, such as agricultural producers; small business men, who depend on the bank for working capital; municipalities; and businesses for whom the Bank provides accounting and bookkeeping services, including payroll services. Finally, the Bank argues that nothing could be more persuasive than to imagine seven million depositors unable to draw upon their funds. The second factor cited by the Employer to support its bankwide unit contention, was the extensive regulation of the bank by the government, through the following agencies: Comptroller of the Currency, Federal Reserve Board, National Bank Examiners, Federal Reserve Bank, and Federal Deposit Insurance Corporation. Among other things, these agencies set the rate of interest payable, set limits on the total volume of real estate loans which can be made and rules for the type and amount of security required thereon, establish legal reserve requirements, require that the Bank be 174 NLRB No. 51 BANK OF AMERICA insured, require that employees be bonded, and require various reports to be made. All of this, the Employer argues, shows that the Bank's activities are strongly affected with the public interest. For legal authority to support this unit contention, the Employer argues that the banking industry is analogous to the public utility industry. The Employer argues that the underlying premise for the Board decisions in the public utility cases is that fragmentation into many bargaining units would be disastrous in such basic service industries. It is the Employer's opinion that "T sere are very few utilities or other enterprises which are so essential as the Bank to so many people in the community at large." We `disagree with the Employer's contention that the appropriate collective bargaining unit for the banking industry should be the bankwide unit. The Employer's argument in support of this contention, that the banking industry is affected with the public interest in the same manner as the public utilities industry, is not persuasive. In the first place, there is an essential difference between the banking industry and the public utility industry, in that a public utility, unlike a bank, has a virtual monopoly in a given geographic area. Moreover, even in the public utility industry, although an overall unit might be appropriate, it is not the only appropriate unit and does not preclude a finding that a unit which is lesser in scope might also be appropriate for the purposes of collective bargaining, where traditional criteria to support such a unit are present. The Employer also contends that the minimum-sized appropriate unit is all the office clerical employees working at the Employer's Van Ness Avenue building in San Francisco. Such a unit would basically include all the employees working in the northern division of the Centralized Services Administration, with the addition of certain departments which are dependent upon the data processing functions of the Centralized Services Administration, a unit of approximately 2,000 employees. It is the Employer's opinion that this unit is appropriate because of the community of interests and nature of contacts among the employees, together with the operational centralization and functional integration of the Centrallized Services, as well as the entire Bank. Centralized Services provides services and supplies and supporting operations to branches, headquarters, and administration. Its main function is to provide accounting, bookkeeping, and other record processing services to the Bank, through the use of its data processing facilities. In charge of the statewide operations is a Vice President, Mr. Gienapp. Under him is Mr. Swenson, Vice President for the northern division, who in turn has numerous persons reporting to him including Mr. Barber, Assistant Cashier in charge of the Design and Formal and Reproduction department, the unit which is petitioned for herein. 299 The departments included in the Centralized Services Administration are: Data Processing, Mechanical, Telephone, Central Account Analysis, Cash Vault, Central Office, Telegraph, Real Estate Tax, Addressograph, Purchasing, Central Check Control, Design and Format Control and Reproduction, Stationery & Supplies, Vault Protective Equipment, Furniture Maintenance, and Record Storage Center. In addition to these departments, the other departments in the Van Ness Building, which the Employer would include in its minimum unit, are: Stock Transfer, Business Service Center, Systems and Equipment Research, Accounting, Standard Practice Manual, Audit and Inspection, Loss Investigation, Real Estate Loan Service Center, Program Standards and Control, Management Sciences, Premises, Payroll, and the BankAmericard Center, which is scheduled to move into the building when certain other sections, not mentioned above, move out. The Employer contends that the employees employed in these sections, including the employees petitioned for herein, constitute a minimum sized appropriate unit of office clerical employees, arguing that this group has identical working conditions and benefits, and constant contact with each other. The Petitioner seeks a unit of employees in the Employer's Design and Format Control and Reproduction Department.2 This department is headed by an Assistant Cashier, Mr. Barber. Under him is a Forms Control Officer, Mr. Fleming, and a Consultant in Graphic Arts, Mr. Snell, both of whom the record reveals to be officers of the Bank. In addition to these, there is an Operations Assistant, Jose Roybal, in the Reproduction section, and an Assistant to the Head, Rose Meillon, in the Design and Format section. The other employees in the Design and Format section are classified as: Utility (1), Specification writer (1), Requisition processor (1), Forms Control Officer's assistant (1), and Forms designer (3). The other employees in the Reproduction section are classified as: Reproduction machine operator-A (6), Reproduction machine operator-B (3), Platemaker (1), Utility operator (1), and Binde'ryman (1). The Design and Format Control section writes specifications for every item that is purchased by the Bank, and assists other departments of the Bank in preparing items to be printed. Any printing work which is required by any department of the Bank is supposed to come through this section, at which point the Consultant in graphic arts, Mr. Snell, makes the determination whether an item is to be printed by the Bank, or whether it is to be done outside the Bank. In either case-this section prepares a finished copy of the item to be reproduced. This work would include the designing of forms used by the various departments of the Bank, as well as it appears from the record that this is one department, although the sections are at times referred to separately 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assisting other departments in designing charts, graphs, training manuals, etc. The equipment used in the designing includes a waxer, a headliner, a light table, and a number of varitypers. The Reproduction section does short run reproductions, circulars, and confidential material, using either a xerox copier or a multilith machine. To do this work the Employer has a self-service room, which contains three xerox copiers for use by employees from other departments to make up to five copies. If more than five copies are needed, a reproduction section employee working in the self-service room does the work on a multilith machine in that room. The Employer has a similar room, containing a xerox copier and a multilith machine, located at the Employer's Headquarters building, where two reproduction section employees work. When more than 50 copies of an item are needed, the work is done in the reproduction room. This room contains Ozalid and Bruning platemakers, xerox and photo direct cameras, a number of multilith machines, a seldom used multigraph machine, a paper cutter, and collators. The multilith machines in use, which operate on an offset principle, are of the type found both in business offices and printing shops. However, the reproduction section is the only section of the Bank using such machines. The plates used in this process are either paper or metal, and are prepared by the employees in the reproduction section. All of the employer's multilith machines are single color presses, although multicolor work is done, by running the material through the press more than once. In such cases, a separate plate is made for each color used. The Employer has no apprentice or formal training program to qualify an individual for multilith machine operation, and new employees are required to have no special training, experience, or qualifications. However, the Employer has two classes of operators, "A" and "B." The record reveals that a B-operator is someone who is starting out and an A-operator is one who has been there and is fairly competent. To progress from B-operator to A-operator could take from 6 months to 6 years, and one employee, considered as good by the Employer, was expected to progress to A-operator in about 2 years. Witnesses for the Employer testified that the operation of these machines required little or no skill, that few, if any, adjustments were necessary when running the machine, and that the work produced was "quick and dirty" work of low quality. However, the testimony of the employees shows that, in fact, some skill is necessary, especially when doing multicolor work; that adjustments are made by the operators because of temperature and humidity changes, differences in paper and plate thickness, and the use of different inks, and that the Employer continually stresses that the work must be of high quality, especially where the work is destined for public usage. In its brief, the Employer cites the decision of the Board in General Motors Corporation, GM Photographic Engineering Center, 143 NLRB 647, in support of its contention that the unit petitioned for herein is inappropriate. We find that case factually distinguishable from the case herein.' In that case, the employees petitioned for included only part of the employees working in a multilith and mimeograph department, which itself was only one of four departments in the Photographic Engineering Center engaged in reproduction activities. Only other staffs and divisions of GM used the items reproduced, whereas the items reproduced by the Bank are regularly used by the public. Further, unlike the GM case, the reproduction section is the only section of the Bank where multilith machines are found, and a certain amount of skill is required of the Bank's reproduction employees to operate these machines to produce the type of quality work which the Bank requires. In addition to the skills required of the bank's employees in the actual printing, employees in the Reproduction section are also skilled in platemaking, both by means of copy camera to make film negatives," from which the plate is then made, and also by means of xerox and bruning platemaking equipment. Finally, although the Bank has no apprenticeship or formal training program, it appears that an informal training period does exist, from the fact that a good employee does not progress to the position of multilith operator for a period of 2 years. The existence of such an informal training period denotes the requirement of considerable skill to perform the work required. Accordingly, we find that the employees petitioned for herein constitute a lithographic process unit," similar to other units of the same type which we have found appropriate in the past. We therefore find that these employees constitute an appropriate unit separate from the other employees whom the Employer contends should be considered as the minimum sized appropriate unit. There remains for consideration certain inclusions and exclusions. The Petitioner would exclude the head of the department, Mr. Barber, the Forms Control Officer, Mr. Fleming, the Consultant in Graphic Arts, Mr. Snell, and the Operations Assistant, Mr. Roybal, as supervisory or managerial employees. The record reveals that Mr. Barber, Mr. Fleming, and Mr. Snell, are all officers of the Bank, and as such have a designated general authority to bind the Bank by their signature, whereas the signing authority of designated nonofficer employees is limited. Mr. Barber is the overall supervisor for the 'We also find Young & Selden Co., Division of Diebold, Inc, 147 NLRB 67, cited by the Employer, distinguishable , since the work being done here, by the employees of the Bank, is substantially different from the work done by the employees in that case "See, e.g., The Standard Printing Co, Inc, 80 NLRB 338 BANK OF AMERICA Design and Format Control and Reproduction Department, and exercises the usual indicia of supervisory authority, including the assigning of work, the disciplining of employees, and the recommending of promotions. As to Mr. Fleming and Mr. Snell, the record shows that their potential salary is approximately 50 percent greater than the potential of the highest paid unit employee; and that they are both in the same general job classification, making, their immediate supervisor the same as Mr. Barber's. Mr. Barber will be excluded from the unit found appropriate herein as a supervisor, and Messrs. Fleming and Snell as managerial employees. The parties stipulated that Mr. Roybal is a supervisor, and although the record indicates that he does not have the power to hire and fire employees, it does show that he possesses other indicia of supervisory authority. We will therefore accept the stipulation of the parties, and exclude the Operations Assistant, Mr. Roybal, from the unit. The Petitioner contends that the Assistant to the Head, Rose Meillon, is not a supervisor, and should be included in the unit. The record shows that she oversees the other forms designers to some extent, but that she does not possess the authority to hire or fire, and that if she has a problem, she discusses it with either Mr. Snell or Mr. Barber, who then take action. Since we are unable to determine from the record whether this employee in fact exercises supervisory authority, we will allow her to vote subject to challenge. The Petitioner also contends that the two employees who work in the service room at the Employer's Headquarters building should be included in the unit. The record shows that these employees operate the same type of equipment as the employees in the reproduction section, and that the work which they do in the Headquarter's building is rotated among the employees in the reproduction section. We will therefore include them in the unit. 'An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director 301 Finally, the Petitioner would exclude as office clericals the employees in the following classifications: utility, specification writer, 'requisition processor, and forms control officer's assistant. Although these employees are listed in an Employer's exhibit as being a part of the Design and Format Control Staff, the Employer did not list the employees in these classifications in another exhibit, which lists the names of the individuals in Design and Format Control and Reproduction, nor were these classifications submitted with a group of job descriptions for the employees in the Design and Format Control and Reproduction Department. Since it appears from the record that they are not engaged in any phase of the lithographic process, but are in fact engaged in clerical work such' as billing, writing specifications to be used in purchasing, and in assisting the Consultant in Graphic Arts and the Forms Control Officer, we will exclude them from the unit. On the basis of the foregoing, we find that the following employees constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees employed in the Design and Format Control and Reproduction Department of the Employer at its Centralized Services Administration Building, San Francisco, California, including employees from this department who work at the Employer's Headquarters building; but excluding utility employees, specification writers, requisition processors, the forms control officer's assistant, the operations assistant, and all office clerical employees, professional employees, managerial employees, guards, and supervisors as defined in the Act, and all other employees. [Direction of Elections omitted from publication.] for Region 20 within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc, 156 NLRB 1236.