Elec-Comm, Inc.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 705 (N.L.R.B. 1990)

ELEC-COMM, INC.
Elec-Comm , Inc. and International Brotherhood of
Electrical Workers, Local 1547. Case 19-RM-
1945
May 31, 1990
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held on September 25, 27, and 30, 1985, in the
above-captioned proceeding. On November 4,
1985, the Regional Director issued a Decision and
Direction of Election in which he concluded that
the Union claims to represent the employees of the
Petitioner-Employer, and that Petitioner-Employ-
er's employees constitute a separate appropriate
bargaining unit. Accordingly, he directed an elec-
tion in a unit of:
All employees employed by Elec-Comm, Inc.,
involved in the installation, repair, alteration
and maintenance of various electrical and com-
munications systems parts thereof, but exclud-
ing office clerical employees, guards and su-
pervisors, as defined in the Act.
Thereafter, in accordance with Section 102.67 of
the Board's Rules and Regulations, the Union filed
a timely request for review of the Regional Direc-
tor's decision. The Petitioner-Employer filed a
statement in opposition to the request for- review.
By Order dated July 2, 1987, the Board granted
review of the Regional Director's decision. The
Petitioner-Employer and the Union have each filed
briefs.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the entire record in
this case and makes the following findings.
Petitioner-Employer, Elea;--Comm, Inc., is an
Alaska corporation organized in 1985, engaged in
electrical and communications installation work.
Prior to its incorporation, the Petitioner-Employer
operated as a partnership and its owners, employ-
ees, facilities, and business were the same both
before and, after incorporation. William W. Rogers
and Hugh Z. Smith each own 50 percent of the
shares of Petitioner-Employer. Rogers and Smith
also own equally the outstanding shares of Rogers-
Smith Corporation, which was incorporated in
1983 and which performs electrical contracting
work. Rogers-Smith Corporation is a member of
the National Electrical Contractors Association
(NECA) and is signatory to the collective-bargain-
705
ing agreement between the Union and NECA. The
Union alleges, and Elec-Comm and Rogers-Smith
deny, that the corporations are a single employer
and/or are alter egos . Petitioner-Employer does ac-
knowledge that it was created for the purpose of
pursuing work for which Rogers-Smith , as a union
contractor , had not been competitive.
In June 1985, while Petitioner -Employer was
working at a subdivision near Palmer , Alaska, it
was picketed by the Union with signs that read
that Rogers-Smith/Elec-Comm were in breach of
the IBEW agreement and with "solidarity signs."
The picketing continued until the completion of
the subdivision work . On July 1, 1985 , the Union
filed a grievance against Rogers-Smith alleging a
violation of their agreement in that nonunion em-
ployees were used for the subdivision work. When
Rogers-Smith refused to participate in the griev-
ance on the ground that it had had no employees at
the subdivision, the Union filed a proceeding in the
Alaska Superior Court. This proceeding, which
was later removed to the Federal District Court by
Rogers-Smith, alleged that the Petitioner -Employer
and Rogers-Smith were a single employer and/or
alter egos and that Rogers-Smith had violated the
collective-bargaining agreement when nonunion
employees were used for the subdivision work.
This proceeding was pending at the time of the in-
stant hearing.
At the hearing, the Union argued' that Elec-
Comm and Rogers-Smith are alter egos and then
objected to the receipt of any evidence on that
issue, contending that "alter-ego" is an unfair labor
practice issue and should not be litigated in a repre-
sentation proceeding . The hearing officer overruled
the Union 's objections and received evidence from
the two companies about their relationship vel non
with each other. The Union offered no direct testi-
monial or documentary evidence on the alter ego
question.
In its request for review, the Union argues that
the petition should be dismissed or further process-
ing deferred pending resolution of the alter ego
question in the Federal District Court proceedings.
Alternatively, the Union argues that the matter
should be remanded to the Regional Director for a
further hearing- at which it will have an opportuni.
ty to present its evidence.,
We disagree with each of these contentions. It is
true that unfair labor practice issues as such are not
appropriate for resolution in a representation case.
But the mere fact that determining whether one
' We reject the Union's request that this matter be remanded for addi-
tWonal hearing The Union chose not to present evidence and has not es-
tablished any "extraordinary circumstances" for additional hearing. See
Sec. 102.65(e)(1) of the Board's Rules and Regulations
298 NLRB No. 95
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
entity is an alter ego of another usually arises in an
unfair labor practice context does not mean that we
are precluded from determining in this representa-
tion proceeding a representational issue : whether
the two entities here are sufficiently related to re-
quire extending the Rogers-Smith collective-bar-
gaining agreement to Elec-Comm and the conse-
quences of that for the election petition .2 In any
event, the Union could have raised its alter ego
contention through the filing of an unfair labor
practice charge but chose not to do so. Instead, it
chose to file a court proceeding. The Regional Di-
rector rejected the Union 's argument for dismissal
or deferral on the grounds that the issues presented
by the petition were representational and that the
Board does not defer representational decisions to
the courts or to private dispute mechanisms.3 Be-
cause, as we find, infra, the Union's picketing
raised a question concerning representation, the
Regional ' Director properly processed the instant
petition in the absence of an unfair labor practice
charge.
In ascertaining single employer or alter ego
status, the Board considers evidence of common
ownership , management , premises , equipment, cus-
tomers, and centralized control of labor relations
2 In the course of adjudicating various kinds of unfair labor practices,
the Board may have to determine whether, for example , a group of em-
ployees to whom a union or an employer seeks to extend a collective-
bargaining agreement constitute an accretion to the undisputedly covered
employee bargaining unit See , e g, King Radio Co, 257 NLRB 521
(1981), Hershey Foods Corp., 208 NLRB 452 (1974) The fact that an ac-
cretion issue may be adjudicated in unfair labor practice proceedings does
not mean, however , that such an issue cannot also be determined in rep-
resentation proceedings under the Board's 9 (c) authority See, e .g, Com-
pact Video Services, 284 NLRB 117 (1987), Marion Power Shovel Co, 230
NLRB 576 (1977) With respect to the question of unlawful motive that
might be raised in an alter ego case, we note that if the evidence estab-
lishes the kinds of separation between companies characteristic of genuine
double-breasting arrangements (e.g., separate supervision , separate em-
ployee complements , and the absence of evidence of work diversion),
then it is irrelevant whether the employer's motive was to create such a
double-breasted operation , i e, one entity that would be bound by the
union agreement and another that would perform work not covered by
the agreement . Compare Operating Engineers Local 627 v. NLRB, 595
F 2d 844 (D C Cir. 1979) (lawful double breasting) with Don Burgess
Construction Co., 227 NLRB 765 (1977), enfd. 596 F 2d 378 (9th Cir.),
cert denied 444 U S 940 ( 1979) (not lawful double breasting where evi-
dence of lack of separation in control of labor relations ) See also Carpen-
ters Local 1478 v Stevens, 743 F 2d 1271, 1276-1278 (9th Car 1984) (dis-
cussing cases).
3 See, a g ., NLRB v Paper Mfrs Co , 786 F 2d 163, 167 (3d Cir 1986),
Super Valu Stores, 283 NLRB 134, 135 ( 1987); Marion Power Shovel Co,
supra, 230 NLRB at 577-578 Further , the courts recognize that a Board
determination properly takes precedence over any arbitral determination
concerning such issues See, e .g, A Dariano & Sons v. Painters Council
33, 869 F 2d 514 (9th Cir 1989 ), and cases there cited (alter ego issue),
NLRB v Paper Mfrs Co., supra (accretion issue) See also Auto Workers
Local 1369 v Telex Computer Products, 816 F 2d 519, 526 fn 5 (10th Cir
1987) (agreeing that Board would not be bound by arbitrator 's ruling on
accretion)
and interrelation of operations .4 Although Rogers
and Smith jointly own both companies , each is sep-
arately managed and labor relations is separately
controlled . Rogers and Smith merely apprise each
other of the financial condition of their respective
companies and neither participates in hiring or
firing decisions of the other . Rogers-Smith hires ex-
clusively from a union hiring hall; Elec-Comm
hires employees from any available source. Elec-
Comm has a separate bank account, office , insur-
ance policy, and line of credit. Neither employer
lends the other money and neither posts construc-
tion bonds for the other . They bid on separate jobs,
perform different work , and do not share equip-
ment. Neither Rogers nor Smith elects or serves on
the board of directors for the other company. Al-
though three former employees of Rogers-Smith
work for the Petitioner -Employer, Elec-Comm,
this does not constitute substantial interchange. In
view of the above , the Regional Director found
and we agree that Elec-Comm and Rogers-Smith
are neither alter egos nor single employers.
It is not disputed that, as the Union contends, it
represents the employees of the Petitioner-Employ-
er and that its picketing of the Petitioner -Employ-
er's jobsite was at least, in part, in furtherance of
its representational aims. Thus, the Union picketed
a jobsite of Petitioner -Employer , identifying its
grievance as a failure of Rogers -Smith to apply the
contract to the Petitioner -Employer . We find such
conduct to be a claim for representation.5
Accordingly, as the parties have stipulated to the
unit, we direct the Regional Director to open and
count the impounded ballots and to issue a tally of
ballots.
ORDER
It is ordered that the above-entitled matter is re-
manded to the Regional Director for Region 19 for
further processing consistent herewith.
4 Radio Union Local 1264 P. Broadcast Service , 380 U S 255 (1965);
Fugazy Continental Corp., 265 NLRB 1301 ( 1982).
5 It is immaterial whether the picketing here seeks a 9(a) or an 8(f) re-
lationship We have held that it is not unlawful for a union to picket an
employer for recognition within the reasonable time limitations set forth
in Sec , 8(b)(7)(C) even when an object of the picketing is to obtain 8(f)
recognition Underlying the decision is the concept that recognitional
picketing for an 8(f) agreement is legally indistinguishable from picketing
for a 9(a) relationship We find it appropriate to apply that principle to
petitions filed pursuant to Sec 9(c)(1)(B) As it is well established that
recognitional picketing constitutes a present demand for recognition
under Sec 9(c)(1)(B ), we find that an RM petition may be filed here
Bergen Knitting Mills, 122 NLRB 801 , 802 (1958) In light of our finding,
we find it unnecessary to determine whether the filing of the grievance
and the lawsuit would , standing alone and in the circumstances here,
have amounted to a claim for representation giving rise to a question
concerning representation