Dean Witter & Co., Inc.

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.