Local 2208, International Brotherhood Of Electrical Workers, Afl-Cio (Simplex Wire And Cable Co.)

834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 2208, International Brotherhood of Electrical Workers, AFL-CIO (Simplex Wire and Cable Company) and Tyco Laboratories, Inc. Case 1- CC-2135 16 September 1987 DECISION,AND ORDER By MEMBERS BABSON, STEPHENS, AND CRACRAFT On 27 March 1987 Administrative Law Judge Benjamin Schlesinger issued the attached decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed an answering brief, and the General Counsel filed limited exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the , administrative law judge and orders that the Respondent, Local 2208, International Brotherhood of Electrical Workers, AFL-CIO, York Beach, Maine, its officers, agents, and representatives , shall take the action set forth in the Order. 1 In agreeing with the judge that Tyco and Simplex are not so inte- grated as to transform Tyco from a neutral employer into a primary em- ployer, we emphasize that Tyco does not control the day-to-day labor relations of Simplex. Gerald Wolper, Esq., for the General Counsel. Nathan S. Paven, Esq. (Nathan S. Paven & Associates), of Quincy, Massachusetts, for the Respondent. Charles Kelso, Esq., and David Kresser, Esq. (Fisher & Phillips), ,of Atlanta, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE FINDINGS OF FACT BENJAMIN SCHLESINGER, Administrative Law Judge. On 21 August 1986,1 about 35 members of Respondent Local 2208, International Brotherhood of Electrical Workers, demonstrated at 12 noon for an hour on both sides of the driveway leading to the offices of Tyco Lab- oratories, Inc. (Tyco). About six persons carried picket signs, one of which stated: "Tyco Unfair to Labor." The 1 All dates refer to 1986, unless otherwise stated. 285 NLRB No. 111 complaint alleges that the demonstration was a second- ary boycott within the meaning of Section 8(b)(4)(i) and (ii) (B) of the National Labor Relations Act. 2 Respond- ent denied that it violated the Act in any manner. It ad- mitted, however, and I conclude that Respondent is a labor organization within the meaning of Section 2(5) of the Act. For about 20 years, Respondent has represented two units of employees, of Simplex Wire and Cable Co., (Sim- plex), a Massachusetts corporation with its office and place of business in Newington, New Hampshire, where it manufactures, sells, and distributes underwater tele- phone signal and power cables.3 One unit consists of Simplex's approximately 300 production and maintenance employees; the other, approximately 50 quality control employees. The last collective-bargaining agreements for each unit, 3-year agreements, expired by their terms on 31 July. The day before, while the parties were negotiating the terms and provisions of a new agreement to become ef- fective 1 August, Simplex canceled the work on all shifts commencing 12:01 a.m., 31 July. Employees who report- ed to work found two cars blocking Simplex's entrance.4 The date, 1 August, was set aside for Respondent's mem- bership to vote on the ratification of a contract contain- ing Simplex's last offer. The employees rejected it, but Respondent offered that its members would continue to work while negotiations continued. Simplex rejected that proposal, continued to block access to its facility, locked the entrance to the plant, and that weekend placed an advertisement in the local newspaper for permanent re- placements. As a result, the Union called a strike, com- mencing at 12:01 a.m., on 5 August, and picketing then commenced at the front entrance to Simplex's plant. The strike and picketing were still continuing as of the dates of the hearing. The legality of the 21 August picketing" depends en- tirely on whether Tyco is a "neutral" employer en- meshed in a labor dispute not its own. If it is a neutral, then the picketing had a secondary object of coercing Tyco to pressure Simplex to resolve its labor dispute, to which Tyco was not a party.6 On the other hand, if 2 The relevant docket entries are as follows: Tyco filed its unfair labor practice charge on 25 August; the complaint issued on 24 September; and the hearing was held in Boston, Massachusetts, on 14-15 January 1987. 2 There is no question that Simplex is subject to the Board's ,jurisdic- tion. Respondent admitted, and I find, that during the calendar year ending 31 December 1985, Simplex shipped products valued in excess $50,000 from its Newington facility directly to points outside New Hampshire and received materials valued in excess $50,000 at its Newing- ton facility directly from points located outside New Hampshire. Simplex has annual sales of $50-$60 million; I conclude that Simplex is an em- ployer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. 4 By agreement between Simplex and Respondent, employees who re- ported to work and were prevented from working were paid for their shift, provided that they signed a register maintained in the guardhouse. s Lest this proceeding, involving only 1 hour of picketing, be consid- ered de minimis, the Union has stated that it would consider the resump- tion of its picketing B The Union's picketing would be an activity that is "tactically calcu- lated to satisfy union objectives elsewhere " National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 644 (1967). ELECTRICAL WORKERS IBEW LOCAL 2208, (SIMPLEX WIRE) 835 Tyco and Simplex constitute a single-integrated employ- er, the Union's picketing would be against the primary employer in an attempt to force it to make further move- ment at the bargaining table, and the complaint would have no substance.? Tyco, a publicly held Massachusetts corporation whose stock is traded on the New York Stock Ex- change, has its principal office and place of business in Exeter, New Hampshire, where it is engaged as a hold- ing company, wholly owning Simplex and four other corporations: Grinnel Corporation, whose headquarters are in Exeter, New Hampshire, and that is the largest manufacturer and installer of fire protection systems in the United States and the largest manufacturer and dis- tributor of products that control the flow of water; Ludlow Corporation, whose headquarters are also in Exeter and manufactures fabric for lawn furniture and packaging products, principally laminations for various types of paper, foils, and plastics; Tyco Printed Circuit Group, headquartered in Stafford Springs, Connecticut, a manufacturer of printed circuit boards for use in comput- ers and telecommunications; and Armand Corporation, a manufacturer of , polyethylene film in Jersey City, New Jersey. The manufacturing plants of these entities are lo- cated throughout the United States: Grinnel, in North Carolina, Texas, and Pennsylvania, among others with distribution outlets and other offices in 75 other loca- tions; Ludlow, in Massachusetts, Mississippi, Louisiana, and Ohio; Tyco Printed, in Connecticut, North Carolina in Florida; and Armand, in New Jersey, North and South Carolina, Oklahoma, and California. In all, the subsidiaries, with total sales of $ 1.2 billion, employ 10,500-11,000 employees.8 Simplex's sales comprise less than 5 percent of the total sales of Tyco's subsidiaries. Tyco does not manufacture anything and employs only 35 employees, who are not represented by any labor organization . Tyco has a financial department that handles its financial affairs and employs controllers, bookkeepers, and accountants; a tax department that han- dles Tyco's' tax affairs; a legal department that handles Tyco's legal affairs and provides some assistance to some of the subsidiaries when they have no available counsel to represent them in certain areas; a public communica- tions department that handles relations with Wall Street; a mergers and acquisitions department; and an insurance department that assists in the placing of insurance and the handling of insurance claims, including worker's compensation. Its principal officers are John Fort, presi- dent, chairman of the board of directors, and chief exec- utive officer; Irving Guten, vice president and general counsel; Richard Power, vice president and chief finan- cial officer; Curtis, vice president of corporate develop- ment; and Hartley, vice president and tax counsel. Tyco serves two principal functions for its subsidiaries. First, it acts as a "banker." It maintains "lock box" or central accounts at various banks where each subsidiary 7 National Woodwork at 645. 8 In the year preceding the hearing in this proceeding , Tyco purchased and received its annual report, valued in excess of $50 ,000, directly from points located outside New Hampshire I conclude that Tyco is an em- ployer engaged in commerce within the meaning of Sec 2 (2), (6), and (7) of the Act and a person within the meaning of Sec. 8(b)(4) has its own accounts.9 Deposits to and withdrawals from the subsidiary's accounts are made solely by the subsidi- ary, but, through control by the bank, each subsidiary's account finishes the day with a zero balance. That results from the transfer of the subsidiary's credit balance to Tyco's account, resulting in a loan from the subsidiary to Tyco, for which Tyco pays interest to its subsidiary; or, in the alternative, in the case of the subsidiary's debit bal- ance, a transfer of money from Tyco to the subsidiary the amount to bring the account back to zero resulting in a loan from Tyco the subsidiary, for which the subsidi- ary pays interest to Tyco.10 This arrangement normally results in Tyco's obtaining cash , with which it repays its own loans, resulting in a yearly savings of millions of dollars in interest. Tyco accounts monthly to Simplex re- garding the amount Simplex or Tyco owes as interest."' Second, because of the combined size of all of its sub- sidiaries, Tyco is able to negotiate certain benefit pack- ages that it then makes available to its subsidiaries. Fed- eral Express provides a discounted rate; some subsidiaries use it, others do not. Tyco has a car rental arrangement with National Car Rental, that subsidiaries may use. Tyco has a short- and long-term disability program. Tyco has also established a plan whereby employees of its sub- sidiaries may, through payroll deductions, purchase Tyco's stock. Tyco pays its stockbroker for the stock and charges back the expense to its subsidiaries. Tyco has negotiated with a life insurance company for a rate per thousand dollars of benefits that is available to the subsidiaries to provide coverage for their employees.12 Tyco sponsored a medical insurance plan that it nego- tiated with Northwestern Life, but Simplex elected' not to join that plan, opting for its own insurance with Blue Cross-Blue Shield. Tyco also provides, and requires its subsidiaries to utilize, a workmen's compensation policy, the premium for which is based on the payrolls of each subsidiary and adjusted on the basis of each subsidiary's experience. When a refund is granted based on the sub- sidiary's favorable experience, the refund is credited to that subsidiary. Tyco also requires its subsidiaries to be covered under its fire insurance and extended coverage policy, charging its subsidiaries according to their valu- ations of the amounts of coverage they choose. With certain exceptions, there is no similiarity between the officers of Tyco and Simplex, each of which has their own officers. Jim Gard, Tyco's former vice presi- dent of operations, is Simplex's employer-designated 9 Simplex has four bank accounts : petty cash, payroll, Government re- ceipts, and commercial. Simplex does not consult with Tyco regarding how much it may bill to customers, nor does it require Tyco's permission to pay any amounts, with certain exceptions 10 Of course, if a subsidiary owed money to Tyco, and the subsidiary had a credit balance on a particular day, that money would be applied to reduce, the subsidiary's debt to Tyco Tyco sets the interest rate, and the rate of interest that it or its subsidiary pays is the same. 11 To the extent that these findings conflict with the testimony of John McIntyre, Simplex's president, I find McIntyre's testimony incorrect and have credited the testimony of Neil Garvey, Simplex's vice president and controller, and Guten, who were indefinitely more familiar with the Sim- plex-Tyco lock box account 12 Tyco pays the premium based on its subsidiaries' reports of how much insurance they had in effect and then charges its subsidiaries for their proportionate premiums 836 DECISIONS OF,THE NATIONAL LABOR RELATIONS BOARD trustee for, Simplex's hourly employees' pension plan, an employer-administered plan with employee nonvoting participation. 13 In addition, Simplex's board of directors is controlled by three of Tyco's officers; it consists of McIntyre, Fort, Guten, and Power. With one major exception, Tyco is not involved in the selection of any of its subsidiaries' employees, the excep- tion being the president of each subsidiary, who is select- ed by Tyco and serves at Tyco's pleasure, and whose salary and bonus, if any, is established by Tyco's board of directors. But all expenses of the subsidiary, including the president's salary and bonus, are paid by the subsidi- ary, each of which maintains its own profit -and-loss statements. McIntyre sets the policy and makes the deci- sions for Simplex, often in consultation with other Sim- plex officers, but without any involvement of Tyco, for the purchase of materials, the establishment of prices, the products to be manufactured, the development of prod- uct lines, the process of manufacturing, the billing and sales procedures, the employees' wages, fringe benefits, and working conditions, the number of employees to be hired and their jobs and classifications, and the hiring, firing, and disciplining of employees. Tyco audits Simplex's books and records periodically. Tyco also provides certain guidelines to Simplex: Sim- plex may expend on its own only up to $25,000 for cap- ital expenditures; above that, it must obtain Tyco's ap- proval. ' Simplex is limited to $20,000 in its purchase of each company automobile.14 Simplex has its own personnel department, 15 maintains its own bookkeeping department and its own daily ledg- ers, pays its own payroll and bills, maintains its own bank 'accounts and writes its own checks, 16 has its own sales staff, manufactures and sells its own (and no one else's) products, and administers its own labor agree- ments-all without Tyco's participation. It does not sell its products to Tyco or any of Tyco's other subsidiaries, nor do the other subsidiaries work on products manufac- tured by Simplex. Out of $30 million in yearly purchases, it does not purchase anything from Tyco's other subsidi- aries, except that it buys annually $100,000-200,000 of jute from Ludlow, for which Simplex pays Ludlow. There have been no transfers of Simplex's bargaining unit employees to Tyco or any of its other subsidiaries. Simplex submits in advance to Tyco for its approval of preliminary and final budgets, which include labor costs for succeeding years. Discussions have been held be- 13 Gard was, prior to his employment with Tyco, Simplex's vice presi- dent and controller He created the plan and served on it from its incep- tion He was removed as a trustee in late December At the time of the hearing, Gard had left Tyco's employ 14 There are also some Tyco guidelines about who is entitled to drive a company automobile. is The personnel department keeps records for Simplex's hourly and other employees and administers its fringe benefits programs is Sometimes, however, a payee requires immediate payment of its bill, not subject to the several days' delay inherent in a payment by check Tyco has facilities for a wire transfer of funds, and Simplex has utilized these, for example, for payment of its- Blue Cross-Blue Shield premiums. In Tyco's monthly accounting to Simplex, Tyco charges Simplex for amounts paid by Tyco on Simplex's account In addition, certain other charges, such as audit expenses by an outside accountant and corporate income taxes on Tyco's consolidated return, are paid by Tyco and appor- tioned and charged to Tyco's subsidiaries tween McIntyre and Gard and, on occasion, Fort, re- garding sales,and profitability and, for 1986, the upcom- ing negotiations in general terms; that is what were the national, regional, and local labor trends and the Union's expected demands. The budget is merely a working doc- ument, subject to revision from month to month; and Simplex retains the right to exceed the amounts in the budget, so there is no limit to the amount of wages and other employee expenses that Simplex might negotiate - with the Union. 17 The General Counsel's witnesses uniformly testified that no one from Tyco participates in labor negotiations between its subsidiaries and the labor organizations rep- resenting the subsidiaries are not required to obtain, nor do they obtain, Tyco's approval on matters negotiated with the labor organizations. 18 Tyco does not require the presidents of its subsidiaries to prepare in advance a policy regarding the labor decisions that they are -going to make in negotiating new collective-bargaining agree- ments, but Tyco is advised about contract 'expiration dates, new contracts to be negotiated, and the status of negotiations. There is continuing communication about proposals submitted by the parties who are negotiating, and Fort conceded that, on occasion; he would give advice. As Gutman testified: "We don't live in a vacuum. We obviously are interested and want to, know what's happening and subsidiary presidents will tell, us what's happening. They advise us of what's going on but we do not tell them what to do." In the most recent negotiations, Simplex's proposal were prepared by officers and representatives of Sim- plex, in consultation with Simplex's attorney, who was hired by McIntyre. They were approved by McIntyre and were not required to be approved by anyone from Tyco. McIntyre admitted, , however, that Gard was present at one or two meetings when Simplex's officers discussed the upcoming negotiations and that McIntyre may have sought advice from Tyco regarding health and welfare benefits and proposals. Only, Simplex's officers and representatives participated in the negotiations, and matters agreed to had to be approved by McIntyre alone, not anyone associated with Tyco, which was not involve. McIntyre testified that in the 1980 and 1983 ne- gotiations, no one from Tyco was involved;19 the only persons responsible for setting wage rates for Simplex's employees were McIntyre and Simplex's personnel direc- tor and controller, and the only persons responsible for determining fringe benefits and working conditions for employees were McIntyre and Simplex's personnel direc- tor. Respondent cites two incidents to demonstrate, Tyco's participation in Simplex's labor policies. Near the end of 17 Indeed, it might be considered an advantage for Simplex to negoti- ate a higher wage and benefit package because over 90 percent of its con- tracts are "cost-plus" contracts If Simplex increased its base expenses, its profits would increase. 18 In addition to Simplex, others of Tyco's subsidiaries have 45-50 labor agreements with unions who represent the employees of these re- spective subsidiaries. 19 Fort was Simplex's president from 1970-1979, He, too, testified that he alone approved the final agreement, and he was not required to obtain, and did not seek, Tyco's approval. ELECTRICAL WORKERS IBEW LOCAL 2208 (SIMPLEX WIRE) negotiations in 1977 for a new agreement, Gard, Sim- plex's principal negotiator, announced that Simplex's rep- resentatives had to leave to consult with Joe Graziano, then Tyco's president. When they returned 3 hours later, they reached an agreement . In 1980, Gard, who was then a member of Simplex's negotiating team, but not the principal spokesman, stated that the parties had reached a tentative agreement but "he had to clear it by Tyco." He left, returned 2 hours later , and signed the agree- ments.20 During the 1986 negotiations, no Simplex repre- sentative stated that Tyco had to approve an agreement, and no approval was sought. During the strike, some of Tyco's officers visited Sim- plex. On 6 August, Fort visited the plant ("He was .. . very interested in the machinery," McIntyre testified) and Gard visited on 7 August. John Armacost, president of Ludlow, also visited on 7 August, as did Stephen Foss, a director Tyco, to offer encouragement. Guten and Power also visited, at McIntyre's invitation, a moti- vational visit, he testified, to keep everybody happy. The relevant portions of Section 8(b)(4)(B) of the Act provide as follows: (b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting com- merce to engage in, a strike or refusal in the course of his employment" to use, manufacture, process transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services ; or (ii) to threaten, coerce, or restrain any person engaged in com- merce or in an industry affecting commerce, where in either case an object thereof is- (B) forcing or requiring any person to cease using, selling, handling, transporting, or other- wise dealing in products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or re- quiring any other employer to recognize or bar- gain with a labor organization as the representa- tive of his employees unless such labor organiza- tion has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where 20 There was also testimony that Simplex's chief negotiator in 1983 had to consult with "someone" before finalizing the labor agreement, but that person, a representative of Simplex or Tyco or ,"someone" else, was not identified; and I find the testimony not probative and meaningless Fort's testimony raises serious questions about the accuracy of Respond- ent's testimony Since Gard reported to Fort in 1977, Fort then being Simplex's president, it would have been a breach of the corporate chain of command for Gard to consult directly with Graziano, thus bypassing Fort, In 1980, Gard would have bypassed both McIntyre, then Simpex's president, and Fort, then Tyco's vice president of operations Gard was not called as a witness, but the record shows that he was no longer an employee of Simplex or Tyco That, of course, does of prove that he was unavailable to testify Graziano was deceased. 837 not otherwise unlawful , any primary strike or pri- mary picketing; . . . Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purposes of truthfully advising the public, including con- sumers and members of a labor organization, that a product or products are produced by an em- ployer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to per- form any services, at the establishment of the em- ployer engaged in such distribution. Respondent's answer admits that, in furtherance of its dispute with Simplex, it established a picket line at Tyco's , premises about 21 August and that at no time had Respondent had any dispute with Tyco. Respondent's brief, however, questions these admissions, placing "pick- eting" in quotes and arguing that Tyco so controlled Simplex that Respondent's, dispute was not only with Simplex but also with Tyco. Respondent's admission that it engaged in picketing is binding on it. Its admission removed as an issue at trial the fact that it picketed, and Respondent may not now argue that it did not, because counsel for the General Counsel was put on notice that the issue was conceded and, therefore, may not have adduced at the hearing all the evidence he had as to the nature of Respondent's ac- tivities. In any event, I am persuaded that there is suffi- cient evidence in this record that picketing occurred. Guten identified six signs being carried and he recalled the precise wording of one of them. Although Guten's testimony was contradicted by Respondent , to the extent that its president, Norman Duplessie, stated that the demonstration was by two groups on either side of the driveway and that the picketers talked with no one other than Gard. Guten testified that the demonstrators crossed over the driveway and talked with the people as they entered and exited Tyco's premises. Guten's testi- mony, that as vehicles passed by and through Tyco's main entrance, the picketers moved their signs up and down to display the sign's contents, was not denied. In any event, I believe Guten because his testimony was given forthrightly and with precision. To the contrary, I find it improbable that groups of Respondent's demon- strators established themselves on both sides of the en- tranceway, never crossed over, and never talked with anyone but Gard. That no vehicle was actually prevented from entering Tyco's premises or that no vehicle turned away from the premises makes no difference . The legality of the picket- ing is determined not by its effect, although that may be persuasive for determining the legality of peacefully handbilling under the second proviso to Section 8(b)(4) 838 DECISIONS OF ,THE NATIONAL LABOR RELATIONS BOARD quoted above, but by its object. Plumbers Local 398 (Robbins Plumbing), 261 NLRB 482, 485 (1982). If an object of the picketing is to threaten or coerce a neutral employer within the meaning of Section 8(b)(4), then the activity is secondary and unlawful. Ibid. I conclude that that was the object of Respondent's picketing, which, al- though publicizing its dispute with Tyco that it was "unfair to labor," also sought to persuade persons not to cross the picket line to travel onto Tyco' s premises. In this sense, Respondent sought to induce individuals to re- fusing to perform services for Tyco, in violation of Sec- tion 8(b)(4)(i) and to restrain any person, in violation of Section 8(b)(4)(ii), where Respondent's object was to force or require any person to cease doing business with Tyco. The ultimate goal was to disrupt Tyco's operation and to coerce it to pressure Simplex to conform its nego- tiating posture to the bargaining goals of Respondent. Printing Pressmens Local 46 (Knight Newspapers), 138 NLRB 1346 (1962), enfd. 322 F.2d 405 (D.C. Cir. 1963); Teamsters Local 391 (Vulcan Materials), 208 NLRB 540 (1974), enfd. 543 F.2d 1373 (D.C. Cir. 1976), cert. denied 430 U.S. 967 (1977). In Food & Commercial -Workers Local P-9 (Hormel & Co.), 281 NLRB 986 (1986), the union picketed banks, neutral employers with which Hormel, whom the Union had a primary dispute with, had financial dealings. The picket signs characterized the banks as corporate allies of Hormel and claimed that they were "unfair to labor," the language that appears on Respondent's sign. The Board found a violation of Sec- tion 8(b)(4)(ii)(B). Because I have found, as admitted by Respondent in its answer and based on the record, that Respondent en- gaged in picketing, Respondent's argument that its signs merely reflected publicity for the purpose of truthfully - advising the public, subject to the second proviso to Sec- tion 8(b)(4), has no weight. That proviso specifically per- mits only "publicity, other than picketing." Boxhorn's Big Muskego Gun Club v. Electrical Workers, 798 F.2d 1016, 1019 (7th Cir. 1986); Typographical Union Local 37 (Hawaii Press), 167 NLRB 1030, 1031 (1967), enfd. 401, F.2d 952 (D.C. Cir. 1968).21 Accordingly, Respondent's reliance on leafleting and consumer boycott case in which the alleged offending union did not picket are ut- terly inapposite. Particularly inapposite is Respondent's emphasis on the issue of whether "a product or products are produced by an employer with whom the labor orga- - nization has a primary dispute and are distributed by an- other empoyer," an issue that is relevant solely to hand billing and like publicity, permitted by the proviso, from which picketing is expressly excluded. Thus, Respond- ent's reliance on Steelworkers (Pet), 244 NLRB 96 (1979), revd. and remanded 641 F.2d 545 (8th Cir. 1981), and Edward J. DeBartolo Corp. v. NLRB, 463 U.S. 147 (1983), is singularly unhelpful. Rather, of sole significance is whether Respondent's picketing of Tyco was justified because, although Tyco is a corporation separate from Simplex, Tyco is nonethe- less so integrated or allied with Simplex that Respond- ent's picketing was against the primary employer, and not a secondary, neutral employer. There is little support for Respondent's position. It is true that Tyco, wholly,, owns Simplex, that Tyco names Simplex's four-person board of, directors, the fourth person being Simplex's president, and, that three Tyco officers are members of Simplex's president, who Tyco has selected. However, comon ownership and potential control of the day-to-day activities of corporate divisions are not to be accorded weight. Teamsters Local 749 (Transport), 218 NLRB 1330 (1975), -enfd. 543 F.2d 417 (D.C. Cir. 1976); Vulcan Mate- rials, 208 NLRB at 541; Newspapers Guild Local 69 (Hearst Corp.), 185 NLRB 303 (1970), enfd. 443 F.2d 1173 (9th Cir. 1971). Tyco makes certain insurance and benefits programs available to Simplex; but the same was true in Hearst Corp. and Vulcan Materials, and the Board' did not consider it a factor to be accorded significant weight. That Tyco pays for certain of these benefits and then charges Simplex for the expenses is not determina- tive; in Teamsters Local 560 (Curtin Matheson Scientific), 248 NLRB 1212 (1980), the Board held that the fact that all invoices and payroll checks issued at corporate head- quarters was not significant. Accord: Food & Commercial Workers Local 1059 (Days Inn), 268 NLRB 595 (1984). That Tyco acts as Simplex's banker is unimportant; the banks in Hormel, above, were considered neutrals. That Simplex's president was hired by Tyco is also of no sig- nificance; the president of the division in Vulcan Materi- als was also named by the parent corporation's board of directors, and this was not found important. That a number of Tyco's officers and directors and an officer of another subsidiary of Tyco visited the Simplex plant during the strike does not support Respondent's conten- tion that-Tyco controlled Simplex's labor relations. In Vulcan Materials, the parent corporation maintained an industrial relations staff which, on request of a divi- sion president, would participate in the division's collec- tive-bargaining negotiations and, in fact, did so. The Board still refused to hold that the parent was not a neu- tral; finding that the division president maintained final authority to make agreements. Accord: Food & Commer- cial Workers Local 1439 (Price Enterprises), 271 NLRB 754 (1984). For this reason, even if I were to credit the testimony regarding Simplex's checking with Tyco re- garding final approval, I find that that was only for the purpose of advice and was not required by Fort or McIntyre. Gard's participation in the pension plan also has little significance. Although he is a trustee, 22 the sole function of the trustees is to, invest and manage the money in the trust, and that has been delegated to the Union Mutual Insurance Company since at least 1981. Other than the fact that Gard is a named, trustee, the record does not show what he did, if anything, as trust- ee. The day-to-day administration of the plan is conduct- ed by the pension board, composed equally of represent- atives of Respondent and Simplex, which has appointed only Simplex's officers and representatives. The board 22 The plan provides for not more than four voting employer-designat- 21 There is no contention by Respondent that its picketing was lawful ed trustees and one nonvoting Respondent-appointed trustee The record consumer picketing under NLRB v Fruit & Vegetable Packers Local 760, is not clear how many of the other employer-designated positions were 377 US 58 (1964). filled, there appears to be at least one other trustee ELECTRICAL WORKERS IBEW LOCAL 2208 (SIMPLEX WIRE) 839 makes all decisions concerning participants' rights to benefits. On one occasion, the counsel to the plan wrote to Tyco's vice president setting forth the plan's interpre- tation of the eligibility of employees who return to work from voluntary absences of more than 6 months. No showing was made that the letter represented anything more than a reply to an inquiry, that the letter was an- swered, that Tyco gave advice, and that, most impor- tantly, there was any requirement that the advice of Tyco be followed. In these circumstances, I cannot find that Tyco dictated the day-to-day administration of Sim- plex's pension plan. Except as indicated above, Simplex is administered on a day-to-day basis by its officers. Respondent argues that under Massachusetts law, G.L. c.156B, sec. 47, "the busi- ness of every corporation shall be managed by a board of directors." However, this record shows that McIntyre made all the final decisions,23 and no minutes of Sim- plex's board of directors were introduced to prove the contrary. In addition, McIntyre, Fort, Guten, and Power, Simplex's directors, testified. Only McIntyre stated that he operated Simplex; the others either denied that they made day-to-day decisions or were not asked. Curtin Matheson Scientific, heavily relied on by Re- spondent, is not helpful to its defense. There, common ownership, the offer of common companywide insur- ance, pension, and salary continuation programs, and the issuance of all invoices and payroll checks at corporate headquarters were not considered overly significant by the Board. Rather, its emphasis was on a finding that the parent was a national warehousing business operating through local warehousing branches, and the business of the branches was as much the parent's business as it was the branch's. That was illustrated by the Board's finding that over 50 percent of the dollar amount of merchandise shipped by one branch was ordered by and shipped to customers of other branches, which then received credit for the profit made. It was this pattern of cross shipping which, the Board found, represented management policy at the corporate level, because any branch could suffer an interruption of its warehousing operation, such as a strike, without an immediate effect on its business. The branch would continue to seek and take orders as usual. Price Enterprises, above, 271 NLRB at 755-756. Here, to the contrary, Simplex manufactures its own product, and Tyco has nothing to do with that product. If the Union's strike against Simplex--had been fully successful, there is nothing that Tyco could have done to avoid the inter- ruption of Simplex's operation. One of Respondent's many other contentions is that employees of Simplex are stockholders of Tyco and, as such, "have an interest in appealing to the officers of, Tyco. Although there is evidence of a stock purchase plan, there is no evidence that any of the picketers owned Tyco's stock. In any event, the picketing was not the act of stockholders but was sponsored by Respond- ent. Respondent also contends that a labor organization may picket at the home of the primary employer's sole 33 Respondent seemingly so concedes stating at p 7 of its brief, that "the control of Simplex's affairs .. may be left to the discretion of Mr. McIntyre on a day-to-day basis " stockholder. Assuming that that principle is valid, the picketing must in any event be limited to the dispute with the primary employer. Here, Respondent's sign complained not that Simplex was unfair to labor, but ex- panded he dispute to Tyco, with which Respondent had no labor dispute, and alleged that Tyco was unfair, to labor. Finally, Respondent contends that its picketing falls within the free speech protection of the first amend- ment to the United States Constitution. Whatever the merits of its contention may be,24 the Act prohibits its picketing; and the Board had traditionally presumed the constitutionality of the Act it administers. Florida Build- ing Trades Council (DeBartolo Corp.), 273 NLRB 1431, 1432 (1985). I conclude that Simplex is an independent entity wholly in charge of its own destiny, including its labor relations, without meaningful interference by Tyco, and that Tyco is not integrated with Simplex so as to trans- form Tyco from a neutral to a primary employer. Ac- cordingly, I conclude that Respondent has violated Sec- tion 8(b)(4)(i) and (ii)(B) of the Act and that its activities, occurring in connection with Tyco's operations, have a close and intimate relationship to trade, traffic, and com- mence among the several States and tend to lead to labor disputes burdening and obstructing the free flow of com- merce. THE REMEDY Having found that Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act, I shall order Respondent to cease and desist therefrom and order it to post an ap- propriate notice and to supply Tyco with copies of the notice, if it chooses to do so. Counsel for the General counsel has, as is customary for about a year, requested that I also include in the relief a visitatorial clause, and will permit the Board to obtain discovery concerning any compliance matter. Although I specifically requested counsel to include in his brief argument concerning why it is necessary in a secondary boycott case to obtain dis- covery, he failed to do so. I can think of no reason why such additional relief is warranted, as apparently counsel could not, and I will not grant the relief. On these findings of fact and conclusions of law and on the entire record,25 I issue the following recommend- ed26 24 For authority contrary to Respondent's contention, see Electrical Workers IBEW Local 1501 v NLRB, 341 U S 694, 705 (1951); NLRB v Retail Store Employees, 447 U.S. 607, 616 (1980) 35 The transcript of the 15 January 1987 hearing is about the worst I have had the displeasure to read. Those who participated in the hearing probably are aware of what words were spoken and hopefully, on review, the meaning of the transcript will be decipherable One important amendment must be made, the correctness of which is apparent from the question that follows The transcript at 237 L. 12 is corrected to insert the word "not" between "did" and "need." Some of the witnesses could not recall with complete assurance the state in which Tyco was incorpo- rated Respondent attached to its brief certifications of the secretary of State of Massachusetts showing that both Tyco and Simplex were incor- porated in Massachusetts I will order those certifications made part of the record, ALJ Exhs 1 and 2, respectively 36 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Continued 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Local 2208, International Brother- hood of Electrical Workers; AFL-CIO, Newington, New Hampshire, its officers, agents, and representatives, shall 1. Cease and desist from (a) Inducing or encouraging any individual employed by Tyco Laboratories or any other person engaged in commerce or in industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commod- ities, or to perform any services where an object thereof is to force or require Tyco Laboratories, to cease doing business with persons engaged in commerce or in an in- dustry affecting commerce, or to force require persons engaged in commerce or in an industry affecting to cease doing business with Tyco Laboratories. (b) Threatening, coercing, or restraining Tyco Labora- tories, or any other person engaged in commerce or in an industry affecting commerce, where an object is to force or require Tyco Laboratories to cease doing busi- ness with persons engaged in commerce or in an industry affecting commerce, or to force or require persons en- gaged in commerce or in an%industry affecting commerce to cease doing business with Tyco Laboratories. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its offices and meetings halls copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted, Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.27 (b) Sign and return to the Regional Director for Region I sufficient copies of the notice for the posting by Tyco Laboratories, if willing, at all places where it customarily posts notices to its employees'. Such copies shall be furnished to Respondent by the Regional Direc- tor. Board and all objections to; them shall be deemed waived for all pur- poses. 27 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director in writing within 20 days, from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that , pending final disposition of this proceeding, Respondent's Rejected Exhibits 8 and 9 shall continue to remain sealed exhibits and shall not be disclosed to any person other than the Board and its agents and representatives. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individual em- ployed by Tyco Laboratories, or any other person en- gaged in commerce or in an industry affecting com- merce, to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, ma- terials, or commodities, or to perform any services where an object thereof is to force or require Tyco Laborato- ries, to cease doing business with persons engaged in commerce or in an industry affecting commerce, or to force or requires persons engaged in commerce or in in- dustry affecting commerce to cease doing business with Tyco Laboratories, Inc. WE WILL NOT threaten, coerce, or restrain Tyco Lab- oratories, or any other person engaged in commerce or in an industry affecting commerce, where an object thereof is to force or require Tyco Laboratories, to cease doing business with persons engaged in commerce or in an industry affecting commerce, or to force or require persons engaged in commerce or in an industry affecting commerce to cease doing business with Tyco Laborato- ries. LOCAL 2208, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL- CIO