Electrical Workers Ibew Local 3 (Telecom Plus)

ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) 235 Local 3, International Brotherhood of Electrical Workers, AFL-CIO and Telecom Plus of New York City, Inc. Case 29-CP-516 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 29 April 1986 Administrative Law Judge Steven Davis issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the Charging Party, Telecom Plus of New York City, filed an answering brief to the Respond- ent's exceptions and cross-exceptions and a sup- porting brief. The Respondent then filed an answer to the cross-exceptions, the Charging Party filed a motion to strike paragraph IV of the Respondent's answer to the Charging Party's cross-exceptions, and the Respondent filed a response to the Charg- ing Party's motion. 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 as modified and to adopt the recom- mended Order.' The judge found, and we agree, that the Re- spondent violated Section 8(b)(7)(A) and (C) of the Act by picketing the Charging Party's 151 East 25th Street, Manhattan location from 13 December 1984 to 25 June 1985 with the object of forcing or requiring the Charging Party to recognize and bar- gain with the Respondent as the collective-bargain- ing representative of the Charging Party's installer and service employees. We also agree with the judge, for the reasons set forth below, that the Charging Party is not an alter ego of, or single em- ployer with, the other Telecom companies. The pertinent facts, insofar as they relate to the alter ego (or single employer) issue, are as follows. Telecom Equipment Corp. (Telecom) provided telecommunication services to commercial business- es in the New York metropolitan area. Following two reorganizations, Telecom became a holding company known as Telecom Plus International (TPI) and established Telecom Plus of Downstate, New York (Downstate), as its operating company. Triboro Telephone Planning and Interconnect, Inc. (Triboro) was an independent public company per- forming similar services. Its employees were repre- ' We deny the Charging Party's request for a broad cease-and-desist order We also deny the Charging Party's motion to strike par IV of the Respondent's answer to the Charging Party's cross-exceptions sented by Local 1109, Communication Workers of America, AFL-CIO. On 29 July 1983 TPI pur- chased 81 percent of Triboro's stock. Triboro con- tinued to function as it had before the purchase of this stock until December 1983 when it became a holding company. The Charging Party was then created as Triboro's operating company. Mean- while, before the sale of Triboro stock, Triboro en- tered into a new contract with Local 1109 that ran from July 1983 to July 1986. On its formation, the Charging Party hired the former Triboro's employ- ees, assumed the Local 1109 contract covering those employees, and took over the performance of Triboro's installation, service, and maintenance contracts. On 23 June 1983 Downstate's employees, repre- sented by the Respondent, commenced a strike and picketed at Downstate's Long Island City facility. Downstate ceased operations 20 November 1984. Immediately thereafter, the Charging Party hired 40 former employees of Downstate and began serv- icing Downstate's customers. The Respondent then extended the picketing to the Charging Party's Manhattan location. The judge found that neither Triboro nor the Charging Party was a disguised continuance of Downstate because both were in existence and servicing their own customers long before Down- state ceased operations.2 The judge also found that the companies maintained separate operations, fa- cilities, employees, supervision, equipment, and control of labor relations, and that their only common factor was ownership, which is insuffi- cient by itself to create an alter ego or single-em- ployer relationship. The Respondent has excepted to these findings, contending that the Charging Party and Downstate operated as one entity pri- marily before Downstate ceased operations. For the reasons set forth below, we find no merit in these exceptions. The Board will find alter ego status when two employers have "substantially identical" ownership, management, business purpose, nature of oper- ations, equipment, customers, and supervision. The Board also considers "whether the purpose behind the creation of the alleged alter ego was legitimate or whether, instead, its purpose was to evade re- sponsibilities under the Act."3 Indeed, in many On 25 October 1983 the Respondent filed a charge in Case 29-CA- 10825 alleging that Tnboro and Downstate are alter egos The Regional Director for Region 29 dismissed this charge on 2 December 1983 The General Counsel affirmed the dismissal on 31 January 1984 3 Advance Electric, 268 NLRB 1001 (1984), quoting Fugazy Continental Corp, 265 NLRB 1301 (1982), enfd. 725 F 2d 1416 (D C Cir 1984). 286 NLRB No. 20 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cases when an alter ego relationship is found, the alter ego is a newly created nonunion company.4 In the instant case, it is undisputed that Triboro's employees were unionized and that it was not cre- ated by TPI. Rather, Triboro was a preexisting business providing telecommunication services before TPI purchased 81 percent of its stock. Fur- ther, after its purchase and until December 1983, Triboro continued to exist and operate as a sepa- rate entity, as it had done before the sale of its stock. Thus, we find that TPI could not have "cre- ated" Triboro to evade TPI's or Downstate's re- sponsibilities under the Act. That finding, however, only begins the inquiry. The key question is wheth- er, subsequent to the purchase of Triboro, the Charging Party was established as a disguised con- tinuance for Downstate. To begin with, there is no evidence that TPI was actively looking to purchase a company that performed services similar to those of Downstate. To the contrary, the record estab- lishes that before 29 July 1983 Triboro's former president, Chuck Ergenzenger, had sought to sell Triboro. The record also shows that the Charging Party operated as a separate and distinct business for the period before Downstate ceased operations. In this regard, the two companies maintained sepa- rate facilities, Downstate in Long Island City and the Charging Party in Manhattan, and each had its own employees, equipment, supervisors, and cus- tomers. During that period of coexistence, there was no employee interchange and no evidence of central control of labor relations. Although Down- state and the Charging Party were engaged in the installation and maintenance of telecommunication services, the Charging Party was also engaged in the sale and installation of new telecommunication systems, which portion of its operations Downstate had ceased providing in October 1983.5 These fac- tors establishing the separate existence and oper- ation of the Charging Party and Downstate far out- weigh the factor of common ownership of the two companies,6 and the fact that Gerald Walsh was president of Downstate before he left that company in October 1983 and became president of Triboro, and later, in December 1983, the Charging Party.7 4 See Continental Radiator Corp, 283 NLRB 234 (1987); Samuel Kosoff & Sons, 269 NLRB 424 (1984) 5 See Mine Workers District 23 (Kentucky Lake Dock), 271 NLRB 461 fn 1 (1984). 6 Eagle Express Co, 273 NLRB 501 (1984), Chippewa Motor Freight, 261 NLRB 455 (1982) As the Board has noted, common ownership is a feature of any conglomerate organization and is not determinative where common control is not shown. Western Union Corp, 224 NLRB 274 (1976), enfd. United Telegraph Workers v NLRB, 571 F 2d 665 (D C Cir 1978), cert denied 439 U S 827 (1978) 7 Thus, as found by the judge, Walsh was not in position to control the labor relations of two companies at the same time Finally, there is no evidence that Downstate ceased operations for other than lawful reasons. Thus, the subsequent transfer of employees and customers between Downstate and the Charging Party was lawful.8 Accordingly, we conclude, in agreement with the judge, that the Respondent has failed to establish by a preponderance of the evi- dence that the Board's alter ego criteria have been met.9 Accordingly, we adopt the judge's recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Order. 8 On 31 December 1984 the Respondent filed a charge in Case 29-CA- 11605 alleging that Downstate had violated Sec 8 (a)(1), (3), and (5) of the Act by terminating its operations and transferring employees to the Charging Party The Regional Director dismissed this charge on 25 June 1985 The General Counsel affirmed the dismissal on 19 August 1985 9 The Respondent argued at the hearing and in its exceptions that Downstate and the Charging Party operated as single employers. The Board considers four factors in determining whether two businesses are sufficiently integrated to be treated as one ( 1) centralized control of labor relations, (2) interrelation of operations , (3) common management; and (4) common ownership Continental Radiator Corp, supra, 283 NLRB 234, fn 4, Western Union Corp, supra, 224 NLRB at 276 As pre- viously stated, the record shows no centralized control of labor relations or interrelation of operations and common ownership is not determinative where common control is not demonstrated Similarly, we do not find Walsh's status as former president of both companies sufficient to convey single-employer status Accordingly, we find no merit in this argument Beatrice Kornbluh, Esq., for the General Counsel. Norman Rothfeld, Esq., of New York, New York, for the Respondent. Robert Lewis & Donna Tsamis, Esqs. (Jackson Lewis, Schnitzler & Krupman, Esqs.), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to a charge filed 12 December 1984 by Telecom Plus of New York City, Inc. (the Charging Party), a complaint was issued by Region 29 of the National Labor Relations Board on 5 July 1985 against Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Re- spondent). The complaint alleges that Respondent picket- ed the Charging Party's Manhattan location (a) with an object being to force and require the Charging Party to recognize and bargain with Respondent as the collective- bargaining representative of the installer and service em- ployees of the Charging Party, and a further object being to force and require the installer and service em- ployees of the Charging Party to accept and select Re- spondent as their collective-bargaining representative ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) 237 when it was not, and is not now, currently certified as the representative of the installer and service employees, and when the Charging Party has lawfully recognized Communications Workers of America as the representa- tive of the installer and service employees of the Charg- ing Party for collective-bargaining purposes, and a ques- tion concerning the representation of such employees under Section 9(c) of the Act could not appropriately be raised at the time of such conduct; and (b) without a valid petition under Section 9(c) of the Act, involving the installer and service employees of the Charging Party having been filed within a reasonable period of time from the commencement of such picketing, in viola- tion of Section 8(b)(7)(A) and (C) and Section 2(6) and (7) of the Act. Respondent's answer denied the material allegations of the complaint and asserted certain affirmative defenses. The hearing was held before me on 28 and 29 October and 19 November 1985 in Brooklyn, New York. On the entire record," and after due consideration of the briefs filed by all parties I make the following FINDINGS OF FACT 1. JURISDICTION The Charging Party, a New York corporation, formed on 28 October 1983, having its principal office and place of business at 151 East 25th Street, New York City, and another place of business at 48-40 34th Street, Long Island City, Queens, New York, is engaged in the busi- ness of selling, installing, and servicing commercial tele- phone equipment. Between July 1984 and July 1985, the Charging Party purchased and received, at its New York facilities, telecommunications equipment and related products averaging $800,000 per month, directly from points outside the State of New York. I accordingly find and conclude that the Charging Party is and has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also find that Respondent and the Communication Workers of America are and have been labor organiza- tions within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Corporate Structure This case presents a somewhat complex web of com- panies. A description of the various entities is therefore necessary. The evidence, which consists of documentary and tes- timonial facts, combined with the Board' s findings in prior cases, 2 is as follows: For several years prior to July 1982, Telecom Equip- ment Corp. was engaged in the installation and service of commercial telephone systems in the New York metro- politan area. Telecom Equipment Corp. also operated several subsidiaries. The company operated from its ' Errors in the transcript have been noted and corrected. ' Electrical Workers IBEW Local 3 (Telecom Plus), 271 NLRB 739 (1984), Electrical Workers IBEW Local 3 (Telecom Equipment), 269 NLRB 124 (1984), 266 NLRB 714 (1983) Long Island City, New York facility and employed tech- nicians, expediters , and warehousemen who were repre- sented by Respondent. In July 1982, Telecom Equipment Corp. underwent a reorganization in which it became a holding company and established Telecom Equipment Corp. of New York, Inc., a wholly owned subsidiary. It took over from Tele- com Equipment Corp. the business of selling, installing, and servicing telephone systems in the New York City area. In October or November 1982, a reorganization of the entire Telecom organization took place due to the rapid growth of the company. Name changes occurred at that time in which each subsidiary became a "Telecom Plus." This was done so that Telecom and its subsidiaries would be more easily identifiable. The following name changes were made: (a) The parent or holding company, Telecom Equip- ment Corp., became Telecom Plus International, Inc. (b) Telecom Equipment Corp. of New York, Inc., became Telecom Plus of Downstate, New York (Down- state) and its operations and employees were transfered to Downstate. On 23 June 1983, following the expiration of the con- tract between Downstate and Local 3, the employees of Downstate, represented by Local 3, went on strike and began picketing Downstate's office at 48-40 34th Street, Long Island City, New York. On 20 November 1984, Downstate ceased doing busi- ness. Triboro Telephone Planning and Interconnect, Inc., (Triboro) a public corporation, having an office at 151 E. 25th Street, New York City, was engaged in the sale, in- stallation, service, and maintenance of telephone systems to commercial enterprises in the New York metropolitan area. It employed technicians, apprentices, warehouse- men, and drivers who were represented by Local 1109, Communications Workers of America. Triboro and Local 1109 had contracts since 6 December 1982. Prior to July 1983, Triboro's president sought to sell the company, and Local 1109, learning this, requested and entered into mid-contract negotiations that resulted in a new contract, to run from July 1983 to July 1986. On 29 July 1983, Telecom Plus International, Inc. pur- chased about 81 percent of Triboro's stock. Thereafter, Triboro continued to honor its collective -bargaining agreement with Local 1109. In December 1983, Local 1109 was told that Triboro's name was being changed to Triboro Communications, Inc. At that time, Triboro Communications, Inc. became a holding company and the Charging Party, newly formed, became its operating company. The Charging Party then began to perform the sale, installation, service, and maintenance contracts previous- ly performed by Triboro. Accordingly, the employees represented by Local 1109 who were employed by Tri- boro became employed by the Charging Party, and the Charging Party assumed the Local 1109 contract cover- ing those employees. As set forth above, on 20 November 1984 Downstate ceased doing business. That day, Downstate's president 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told its assembled employees that they were discharged and that it was closing. Immediately thereafter, Gerald Walsh, the Charging Party's president, told the workers that he was offering all of them employment with the Charging Party in order to maintain its business. 3 On the same day, Walsh sent a letter to Downstate's customers, informing them that the Charging Party has "assumed the service of your telephone system" and .,now employs those former .. . Downstate's employees who have serviced and know you . . . and your compa- ny's needs . . . ." Daniel Farrell, one such employee, worked for Down- state in the moves and changes department and was dis- patched from the Long Island City office. On 21 No- vember 1984 he became employed by the Charging Party. The former Downstate workers lost the seniority, vacation, and sick days that they had accumulated while at Downstate, and were moved to the 151 E. 25th Street location where they did the same work although under a new supervisor. At the time of the hearing, Farrell was a dues paying member of Local 1109, covered by that Union's contract with the Charging Party, and worked out of the Long Island City office.4 B. Events Supporting a Finding of a Violation of the Act 2. IBEW action against CWA On 1 March 1984, the International Brotherhood of Electrical Workers filed a charge with the president of the AFL-CIO that alleged that the Communications Workers of America violated article XX, sections 2 and 3 of the AFL-CIO constitution by performing the work of IBEW members at Telecom Plus, Long Island City, New York. The cited sections are part of a "no-raiding" provision that essentially provides that (a) "no affiliate shall orga- nize or attempt to represent employees as to whom an established collective bargaining relationship exists with any other affiliate" and (b) "no affiliate shall . . . seek to obtain work for its members as to which an established work relationship exists with any other affiliate." A hearing on the charge was held in June 1984. At the hearing, the IBEW argued that (a) all companies owned by Telecom Plus International should be considered as one entity for the purpose of determining who should represent the employees and (b) CWA members were performing work that should be done by the IBEW. In addition, in its brief in the article XX proceeding, the IBEW argued that, in the absence of a strike, "Triboro's operations would have become part of Telecom . . . and CWA's unit at Triboro would have been an accretion to the IBEW unit." 1. The picketing On 13 December 1984, Respondent began picketing the Charging Party at its 151 East 25th Street, Manhat- tan location with signs that stated: Telecom Plus STRIKE Electrical Workers Union No. 3 Affiliated with IBEW, AFL-CIO The picketing at that location ended on 25 June 1985. Respondent's business representative, John Crowley, testified that he believed that the work formerly per- formed by technicians employed by Downstate who were represented by Respondent at the Long Island City location was transferred to 151 E. 25th Street and was being done there. He accordingly assigned pickets to "expand" the picket line from the Long Island City loca- tion to the 151 E. 25th Street site. He further stated that the picketing had as it sole purpose to induce the Em- ployer to stop doing "struck work." He conceded not telling the Charging Party what the purpose of the pick- eting was. He added that he issued no order that the picket sign language be changed and, if he did give any direction, it was that "Telecom Plus Downstate" be placed on the picket sign. I About 40 employees accepted his offer and were placed on the Charging Party's payroll, effective the next day. Thereafter, the Charging Party employed 100 to 110 technicians in addition to the 40 former Downstate workers 4 The move to the Long Island City location was made in May or June 1985 3. Membership meeting minutes The minutes of a regular membership meeting of Re- spondent held on 12 April 1984 stated that Thomas Van Arsdale, its business manager, spoke of the Tel-corn Company who during the life of the Contract, opened up other companies and closed down their Union place of Business in New Jersey after purchasing a non-Union Company. We are presently on strike against Tel-Corn so that we may have the right to represent the working people employed by companies purchased by the principal employer. We are striking for the right of protec- tion for future Expansion of the Employer. He ex- plained that we are on strike since June 23, 1983. He noted that some C.W.A. people working for Triboro Communications, recently purchased by the Tel-Com Company are working in our area and we have filed papers with the AFL-CIO indicating that they are violating the no-raiding clause. 4. The 20 December meeting Downstate ceased operating on 20 November 1984 and offered to bargain with Respondent concerning the ef- fects of the shutdown. The parties and their counsel met on 10 December, at which time Respondent's attorney demanded and received the names and addresses of the Downstate strike replacements. On 13 December, Respondent began picketing the Charging Party. Also on that date John Crowley, Re- spondent's business representative, sent a letter to the strike replacements advising them of a meeting set for 20 December. The meeting was attended by Crowley, Re- ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) 239 spondent's attorney, and several of Charging Party's em- ployees who were formerly employed by Downstate. Respondent told the employees that they were represent- ed by it while at Downstate and that the company might owe them certain money and benefits. Respondent also told them that "Local 3 wanted to represent us again in Telecom," which could be accomplished by a deauthor- ization of Local 1109, or by "voting out" the CWA 3 months prior to the contract's expiration, "'and get Local 3 back in."5 At the meeting, Respondent asked for a copy of the Local 1109 contract and also asked for the phone num- bers of the attendees. Former Downstate strike replacement Daniel Farrell, who became employed by the Charging Party on 21 No- vember 1984, testified that after the 20 December meet- ing, Respondent's representatives did not ask him or any of his coworkers to join that Union; and, he never saw any pickets approach any employees of the Charging Party at the 151 East 25th Street location. C. Positions of the Parties The complaint alleges that Respondent violated Sec- tion 8(b)(7)(A) and (C) of the Act by picketing the Charging Party's location at 151 East 25th Street, New York City, with an object of forcing the Charging Party to recognize and bargain with Respondent as the collec- tive-bargaining representative of the installer and service employees of the Charging Party, and a further object being to force and require the installer and service em- ployees of the Charging Party to accept and select Re- spondent as their collective-bargaining representative. The complaint alleges that the picketing was unlawful because at the time that it took place (a) Respondent was not certified as the representative of the employees and (b) the Charging Party has lawfully recognized Commu- nications Workers of America as the representative of the installer and service employees of the Charging Party for collective-bargaining purposes, and a question concerning representation of such employees under Sec- tion 9(c) of the Act could not appropriately be raised and (c) the picketing continued without a valid petition under Section 9(c) of the Act, involving the installer and service employees of the Charging Party, having been filed within a reasonable period of time from the com- mencement of such picketing. The main issue is whether the picketing had a recogni- tional or organizational objective. The General Counsel and the Charging Party assert that a violation of the Act has been established because the picketing had such an objective. They argue that an unlawful objective may be found in the (a) litigation of the article XX no-raid matter, (b) comments of Respond- ent's business manager at the April 1984 membership meeting, and (c) statements made at the December 1984 meeting to former Downstate employees who were then employed by the Charging Party. Respondent denies that the picketing had a recogni- tional or organizational objective. It argues that the sole 5 Respondent asked the employees when the Local 1109 contract ex- pired purpose of the picketing was to "exert pressure" on the Charging Party to cease performing the struck work that employees represented by it at Downstate had performed prior to its closing on 20 November 1984. It asserts that the Charging Party is an alter ego or ally of other Tele- com companies. In suppport of its position, Respondent points to the alleged interrelation between certain Telecom entities, exemplified by the movement of official Gerald Walsh. In March 1973, Walsh became employed by Telecom Equipment Corp. In June 1982, he was vice president of operations for that Company. In July 1982, when Tele- com Equipment Corp. became a holding company, he became president of its operating company, Telecom Equipment Corp. of New York, Inc. and he negotiated and signed a collective-bargaining agreement with Re- spondent for certain employees employed by that compa- ny. In about November 1982, with the reorganization of the companies, Walsh became president of Downstate, which had formerly been Telecom Equipment Corp. of New York, Inc. Walsh became president of Triboro in October 1983, and remained in that position until March 1985. He also served as president of the Charging Party from its forma- tion in December 1983 until March 1985. In March 1985, Walsh left the Telecom organization. III. ANALYSIS AND DISCUSSION A. The Objective of the Picketing Section 8(b)(7) applies even if there are legitimate pur- poses for the picketing. It is sufficient to find a violation if one of the union's objects is recognitional or organiza- tional. Electrical Workers IBEW Local 265 (RP&M Elec- tric), 236 NLRB 1333, 1335 (1978). Whether a union pickets for recognition or organization is a question of fact to be determined by its overall conduct. Teamsters Local 5 (Barber Bros. Contracting), 171 NLRB 30 (1968). I believe that the evidence is clear that the picketing, which admittedly took place from 13 December 1984 to 25 June 1985 at the 151 East 25th Street, Manhattan lo- cation of the Charging Party, was conducted for a re- cognitional or organizational purpose. The article XX no-raid proceeding brought by the IBEW, apparently at the request of Respondent, sought to establish that Respondent was entitled to the work done by Local 1109 at the Charging Party based on its view that (a) all companies owned by Telecom Plus International should be considered as one entity for de- termining who should represent the workers and (b) in the absence of a strike, Triboro's operations would have become part of Telecom, and CWA's unit at Triboro would have been an accretion to the IBEW unit. Al- though the article XX proceeding was brought in March 1984, over 9 months before Respondent began picketing the Charging Party, picketing of Downstate had been ongoing for 9 months before the institution of the matter, and a final determination of the no-raid issue had not yet been made at the time that picketing of the Charging Party commenced. Thus, Respondent's overall purpose 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in picketing became obvious: it clearly sought to claim the work done by the Charging Party and its position was admitted-that all companies owned by Telecom Plus International should be considered as one operation. Although the article XX proceeding was commenced in March 1984, Telecom Plus International purchased a majority of Triboro's stock before that time, in July 1983, and the Charging Party began performing Tri- boro's work in December 1983 all before the article XX action was begun. Thus, Respondent's purpose was clear-to represent the employees employed at any Tele- com operation. In April 1984, about 1-1/2 months after the institution of the article XX proceeding, Respondent's business manager Van Arsdale repeated his reason for striking at Downstate-"so that we may have the right to represent the working people employed by companies purchased by the principal employer. We are striking for the right of protection for future expansion of the employer." Again, this explains the motivation behind the later pick- eting at the Charging Party. 6 The December 1984 meeting with the former Down- state employees who were then working for the Charg- ing Party also clearly shows Respondent's unlawful ob- jective in picketing. The picketing began on the same day that Respondent sent letters to the employees advis- ing them of the meeting. At the meeting they were told that Respondent wanted to represent them at the Charg- ing Party, which could be accomplished by a deauthor- ization of Local 1109 to "get Local 3 back in." I accordingly find and conclude that Respondent's picketing of the Charging Party from 13 December 1984 to 25 June 1985 at its 151 East 25th Street Manhattan lo- cation was for a recognitional or organizational purpose. B. The Alleged Violation of Section 8(b)(7)(A) The evidence is clear that (a) Respondent was not cur- rently certified as the representative of the Charging Party's employees, and (b) the Charging Party has law- fully recognized Local 1109 and a question concerning representation may not appropriately be raised under Section 9(c) of the Act. Thus, Triboro had a collective-bargaining agreement with Local 1109 that ran from July 1983 to July 1986. In July 1983, Telecom Plus International purchased a ma- jority of Triboro's stock and, in December, Triboro became a holding company and the Charging Party, newly formed, became its operating company, employed the employees formerly working for Triboro, and as- sumed the collective-bargaining contract between Tri- boro and Local 1109. Thus, the Charging Party lawfully recognized Local 1109. Inasmuch as the contract's expiration date is 27 July 1986, no petition could have appropriately been filed during the period that the picketing took place. I accordingly find that the picketing violated Section 8(b)(7)(A) of the Act.7 C. The Alleged Violation of Section 8(b)(7)(C) The Board has held that in order to find a violation of Section 8(b)(7)(C), it must be found that a union (a) picketed an employer (b) with a recognitional or organizational objective (c) where it has not been currently certified as the collective-bargaining rep- resentative of that employer's employees and (d) where the picketing continues without a representa- tion petition being filed with the Board within a reasonable period of time not to exceed 30 days from the onset of the picketing. Hotel & Restaurant Employees Local 274 (Warwick Caterers), 269 NLRB 482 (1984). As set forth above, I have found that Respondent, not having been certified as the representative of the Charg- ing Party's employees, picketed the Company with a re- cognitional or organizational objective. I also find that the picketing continued for more than 30 days without a petition being filed.8 I accordingly find that Respondent's picketing of the 151 East 25th Street Manhattan location of the Charging Party from 13 December 1984 to 25 June 1985 violated Section 8(b)(7)(C) of the Act. Mine Workers District 23 (Kentucky Lake Dock), 271 NLRB 461 (1984). D. Respondent's Defenses 1. Struck work and ally doctrine Respondent argues that the sole purpose of the picket- ing was to induce the Charging Party to cease perform- ing the struck work performed by employees represented by Local 3, and, as testified by Union Agent Crowley, it "expanded" its picket line from the Long Island City lo- cation of Downstate to the Charging Party's Manhattan location. Significantly, the picket signs, which would show that Respondent's picketing was directed at Downstate, named only "Telecom Plus." Respondent's struck work theory refers to the fact that Downstate's employees went on strike in June 1983 fol- lowing the expiration of the contract between Downstate and Respondent. Strike replacements were hired, and Downstate ceased doing business in November 1984. The Downstate employees then working were immediately hired by the Charging Party. Forty Downstate employ- ees were thus hired. Immediately prior to their hire, the ' In view of this finding, I deem it unnecessary to decide on the Charging Party's motion to strike certain parts of Respondent's answer in which Respondent denied knowledge of the contract between the Charg- ing Party and Local 1109, CWA 8 The complaint alleged that "Respondent engaged in the picketing de- scribed above paragraph 9 without a valid petition . having been filed within the reasonable time from the commencement of such picketing " 8 I reject Respondent's argument that this statement is irrelevant be- Respondent's answer "denied the allegation that the picketing had an cause it was communicated only to electricians and not employees of the object described in paragraph 9 " Accordingly, Respondent did not deny Charging Party The importance of the statements are that they illustrate that the picketing had taken place without a valid petition being filed the reason behind the later picketing at the Charging Party. within a reasonable period of time ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) 241 Charging Party employed 100 to 110 of its own techni- cians. On Downstate's cessation of operations the Charg- ing Party began servicing Downstate's customers. It is this work that Respondent claims is "struck work" and, it claims, the picketing was intended to induce the Charging Party to cease performing such work. The Board has held that an otherwise neutral employ- er may lose the protection of the secondary boycott pro- vision of the Act if such employer becomes "allied" with the primary employer in such a manner that he ceases to be a "neutral" entitled to protection of the Act. Under the "ally doctrine" an employer may lose his neutral status if he performs "struck work" for the primary em- ployer, that is, work that he would not have performed "but for" the strike at the primary employer's facility, Teamsters Local 959 (Odom Corp.), 266 NLRB 834 (1983). Of course these doctrines have been applied only to secondary boycott situations in which a union defends its picketing of a neutral employer on the ground that the neutral is an ally of the primary, and is performing struck work, and thereby could be picketed. These prin- ciples are inapplicable, and the defenses are unavailable in the 8(b)(7) situation here, where the main issue is whether the picketing had a recognitional or organiza- tional object. Even assuming Respondent could assert and prove an ally, struck work defense, it would not re- lieve it of responsibility if its picketing were found to have an unlawful objective under Section 8(b)(7). The evidence establishes that the Charging Party began performing the work formerly done by Downstate only after Downstate lawfully fired its employees and closed its operations.9 It cannot therefore be found that the Charging Party acted in aid of Downstate as an ally or performed struck work. 2. Alter ego and single employer The Respondent argues that the Charging Party is an alter ego of or a single employer with other Telecom en- tities. The Board has observed in an 8(b)(7) case that "the in- dicia for finding a single employer are much the same as that on which (a determination is based) regarding alter ego status. Mine Workers Local 1329 (Alpine Construc- tion), 276 NLRB 415 (1985): common management and ownership; common business purpose; nature of oper- ation and supervision; common premises and equipment; common customers; nature and extent of the negotiations and formalities surrounding the transaction. Other indicia for alter ego status include a determination of whether the new company is the "disguised continuance" of the old one." (Kentucky Lake Dock Co., supra at fn. 1.) Based on the evidence I cannot find that the Charging Party is the alter ego of or a single employer with other Telecom entities. It is clear that neither Triboro nor the Charging Party are disguised continuances of Downstate. Both were in existence and servicing their own customers long before Downstate ceased operating. In fact, the Charging Party had 100 to 110 technicians of its own employed just prior to its assuming Downstate's service work. Supervision at Downstate and at the Charging Party were not the same. Employee Farrell had a different su- pervisor at the Charging Party than he did when he was employed by Downstate. Although it is true that Gerald Walsh was president of Downstate, and the Charging Party, his presidency of those companies were at different times. Thus, he was president of Downstate from about November 1982 to October 1983, when he apparently ceased holding that office or having any connection with that company. In October 1983, he became president of Triboro, and later, in December 1983, he also assumed the presidency of the Charging Party on its formation. He thus could not and did not control the labor relations of the Charging Party when he was associated with Downstate, and he likewise could not and did not control the labor relations of Downstate when he was with the Charging Party. Walsh reported to Thomas Burger, the president of Telecom Plus International during 1982 and 1983, when he was president of Downstate. In contrast, he reported to David Montanaro, a vice president of Tel Plus Com- munications, during at least part of 1984 and all 1985 when he was president of Triboro and the Charging Party. It thus does not appear that there was common man- agement, supervision, or central control of labor relations between Downstate and the Charging Party. Downstate and the Charging Party are autonomous operations, having separate facilities' ° and conducting separate operations with separate staffs of technicians. There is no evidence of interchange of employees or equipment between the two companies. Moreover, it does not appear that the Charging Party performed any work that Downstate had done while Downstate was op- erating. Nor is there any evidence that Downstate per- formed work of the Charging Party. Regarding common ownership, Tel Plus Communica- tions owns Triboro, a public corporation. The Charging Party is a subsidiary of Triboro. Tel Plus Communica- tions is comprised of most of the subsidiaries, except Downstate. Although Telecom Plus International, Inc. is the parent company of all the organizations, this common ownership cannot serve to make the Charging Party an alter ego of or single employer with the other Telecom entities. CONCLUSIONS OF LAW 1. Telecom Plus of New York City, Inc. is and at all times material has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 3, International Brotherhood of Electrical Workers, AFL-CIO, and Local 1109, Communications 9 The Regional Director, affirmed by the General Counsel, refused to issue a complaint based on the termination of Downstate 's operations, dis- charge of the strikers, and transfer of work to the Charging Party 10 Downstate was located in Long Island City The Charging Party was located in Manhattan 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Workers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing at the 151 East 25th Street, Manhattan location of Telecom Plus of New York City, Inc. from 13 December 1984 to 25 June 1985, with an object of forcing or requiring Telecom Plus of New York City, Inc. to recognize and bargain with Respondent as the collective-bargaining representative of the installer and service employees of Telecom Plus of New York City, Inc., and a further object thereof being to force and re- quire the installer and service employees of Telecom Plus of New York City, Inc. to accept and select Re- spondent as their collective-bargaining representative when, at times it engaged in such picketing it was not, and is not now, currently certified as the representative of the employees described above, and when Telecom Plus of New York City, Inc., has, in accordance with the Act, lawfully recognized Communications Workers of America as the representative of the installer and service employees of it for collective-bargaining purposes, and a question concerning the representation of such employ- ees under Section 9(c) of the Act could not appropriately be raised at the time of such conduct, and without a valid petition under Section 9(c) of the Act, involving the installer and service employees of Telecom Plus of New York City, Inc., having been filed within a reasona- ble period of time from the commencement of such pick- eting, Respondent violated Section 8(b)(7)(A) and (C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 8(b)(7)(A) and (C) and Section 2(6) and (7) of the Act. REMEDY The General Counsel and the Charging Party have re- quested that a broad cease-and-desist order be issued. The Board has held that a "broad remedial order is ap- propriate whenever a proclivity to violate the Act is es- tablished, either by the facts within a particular case, or by prior Board decisions against the respondent at bar based upon similar unlawful conduct in the past." San Francisco Culinary Workers (Associated Union Street Res- taurants), 202 NLRB 726 (1973). Respondent has been found by the Board to have vio- lated Section 8(b)(7) in the following cases: Electrical Workers IBEW Local 3 (Hunts Point), 271 NLRB 1580 (1984); Electrical Workers IBEW Local 3 (Walter Sign), 260 NLRB 1332 (1982); Electrical Workers IBEW Local 3 (Gessin), 224 NLRB 1484 (1976); Electrical Workers IBEW Local 3 (Darby Electric), 153 NLRB 717 (1965); Electrical Workers IBEW Local 3 (Jack Picoult), 137 NLRB 1401 (1962). I believe therefore that a broad cease-and-desist order is warranted. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" i i 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 ORDER The Respondent, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Picketing, causing to be picketed, or threatening to picket Telecom Plus of New York City, Inc., or any other employer, where an object thereof is forcing or re- quiring Telecom Plus of New York City, Inc., or such other employer to recognize or bargain with Respondent as the collective-bargaining representative of its employ- ees or for the purpose of forcing or requiring employees of Telecom Plus of New York City, Inc., or such other employer to accept or select Respondent as their collec- tive-bargaining representative, when Telecom Plus of New York City, Inc., or such other employer has lawful- ly recognized Local 1109, CWA, or any other labor or- ganization other than Respondent and a question con- cerning representation of the employees may not appro- priately be raised under Section 9(c) of the Act. (b) Picketing or causing to be picketed or threatening to picket Telecom Plus of New York City, Inc., or any other employer where an object thereof is forcing or re- quiring Telecom Plus of New York City, Inc., or any other employer to recognize or bargain with Respondent as the collective-bargaining representative of its employ- ees, or forcing or requiring employees of Telecom Plus of New York City, Inc., or such other employer to accept or select Respondent as their collective-bargain- ing representative at a time when Respondent is not cer- tified as such representative and where such picketing has been conducted without a petition under Section 9(c) of the Act having been filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 12 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive 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. (b) Sign and mail sufficient copies of the notice to the Regional Director for Region 29 for forwarding to Tele- com Plus of New York City, Inc., for posting by Tele- com Plus of New York City, Inc., if it is willing, in places where notices to employees are customarily posted. Board and all objections to them shall be deemed waived for all pur- poses 12 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 " ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) 243 (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. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket, cause to be picketed, or threaten to picket Telecom Plus of New York City, Inc., or any other employer, if an object is to force or require Tele- com Plus of New York City, Inc., or such other employ- er, to recognize or bargain with us as the collective-bar- gaining representative of its employees or for the pur- pose of forcing or requiring employees of Telecom Plus of New York City, Inc., or such other employer, to accept or select us as their collective-bargaining repre- sentative, when Telecom Plus of New York City, Inc., or such other employer has lawfully recognized Local 1109, CWA, or any other labor organization other than us and a question concerning representation of the em- ployees may not appropriately be raised under Section 9(c) of the Act. WE WILL NOT picket, cause to be picketed, or threaten to picket Telecom Plus of New York City, Inc., or any other employer, if an object thereof is to force or require Telecom Plus of New York City, Inc., or any other em- ployer, to recognize or bargain with us as the collective- bargaining representative of its employees, or forcing or requiring employees of Telecom Plus of New York City, Inc., or such other, employer to accept or select us as their collective-bargaining representative, at a time when we are not certified as such representative and when such picketing has been conducted without a petition under Section 9(c) of the Act being filed within a reason- able period of time not to exceed 30 days from the com- mencement of such picketing. LOCAL 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO