Navigator Communications Systems

National Labor Relations Board - Board Decisions

Aug 22, 2000

331 N.L.R.B. 1056 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
Navigator Communications Systems, LLC and Avia-
tor Voice/Data, LLC and KM Communications,
LLC and International Brotherhood of Electri-
cal Workers, AFL–CIO. Cases 34–CA–8215 and
34–CA–8328
August 22, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On November 17, 1999, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondents filed exceptions and supporting briefs.1 The
General Counsel and the Charging Party each filed an an-
swering brief. The Respondents filed reply briefs.
The National Labor Relations Board has delegated 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,2 and conclusions and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondents, Navigator Communications Systems,
LLC, Aviator Voice/Data, LLC, and KM Communications,
LLC, Stamford, Connecticut, their officers, agents, succes-
sors, and assigns, shall jointly and severally take the action
set forth in the Order.

Darryl Hale, Esq., for the General Counsel.
Raymond G. McGuire, Esq. and Lyle S. Zuckerman, Esq., for
Respondents Navigator and KM.
David M. Fish, Esq., for Respondent Aviator.
Martin J. Crane, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on July 20 and August
12–13, 1999. The Union, International Brotherhood of Electri-
cal Workers, AFL–CIO filed the initial charge in Case 34–CA–
8215 on January 30, 1998. This charge was subsequently
amended on February 13, 1998, May 22, 1998, and September 2,
1998. The Union filed the initial charge in Case 34–CA–8328 on
April 15, 1998, and amended it on October 15, 1998. Based on
these charges, as amended, the consolidated complaint issued on
October 19, 1998, alleging that Navigator Communications Sys-
tems, LLC (Navigator), Aviator Voice/Data, LLC (Aviator), and
KM Communications, LLC (KM), the Respondents, as a single
employer, violated Section 8(a)(1) and (5) and Section 8(d) of the
Act. The complaint allegations relate to Respondent Navigator’s
cessation of operations and layoff of employees represented by the
Union on August 15, 1997.1 Each of the Respondents filed an
answer to the complaint denying that they were a single-integrated
business enterprise and a single employer within the meaning of
the Act and denying the commission of any unfair labor practices.

1 We deny the Charging Party’s motion to strike exceptions, the
General Counsel’s motion to strike exceptions, and the General Coun-
sel’s two motions to strike belated exceptions. We grant the Respon-
dents’ cross-motions to file exceptions. We find that the delay in the
filing of certain exceptions was excusable. We further find that, al-
though the Respondents’ initial briefs did not specifically include sepa-
rate exceptions, the answering briefs filed by the General Counsel and
the Charging Party demonstrated that they were fully apprised of the
issues raised and therefore were not prejudiced by the technical failure.
Magic Chef, Inc., 181 NLRB 1136 fn. 1 (1970); Brazos Electric Power
Cooperative, Inc., 241 NLRB 1016 fn. 1 (1979).
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, the Charging Party, Respondents Navigator
and KM,3 and Respondent Aviator, I make the following
FINDINGS OF FACT
I. JURISDICTION
Each of the Respondents is a limited liability corporation or-
ganized under the laws of the State of Connecticut. At all relevant
times, Respondent Navigator had its principal office at 470 West
Avenue, Stamford, Connecticut, where it was engaged in the
business of selling, installing, and servicing PBX telephone sys-
tems to customers in the hotel industry. Respondent Aviator, also
with offices at 470 West Avenue in Stamford, Connecticut, was
engaged in the business of selling, installing, and servicing tele-
phone systems to commercial customers outside the hotel indus-
try. Respondent KM, located at One Dock Street in Stamford,
1 All dates hereinafter are in 1997 unless otherwise indicated.
2 Prior to resting his case on August 12, 1999, the General Counsel
sought to call Thomas Kelly Jr., one of the managing members of Re-
spondents Navigator and KM, as a witness. Kelly was not present in the
hearing room at the time and had not been present throughout the hearing.
The General Counsel’s subpoena ad testificandum, requiring Kelly’s
appearance at the hearing, had been sent by certified mail and overnight
delivery on August 10, 1999. At the time the General Counsel called
Kelly to the stand, there was no proof that he had yet been served. On
inquiry by counsel for Respondents Navigator and KM, it was learned
that Kelly was not even in the State of Connecticut when the General
Counsel served the subpoena and called him to the stand. I denied the
General Counsel’s request to adjourn the proceedings until Kelly, or some
other representative of Respondent KM who had not yet been subpoe-
naed, could be produced to testify as a witness for the General Counsel.
The hearing had already been adjourned for 3 weeks to permit the Gen-
eral Counsel to review subpoenaed documents. I determined that any
further delay could have been avoided by the General Counsel having
served a subpoena upon Kelly in sufficient time to ensure his attendance
when the hearing resumed. By order dated September 14, 1999, the Board
denied the General Counsel’s request for special permission to appeal my
ruling.
3 The General Counsel moved to strike two exhibits attached to the
brief filed by Respondents Navigator and KM and any references to those
exhibits in the brief. The attached documents were not newly discovered
nor unavailable at the time of the hearing. The Respondent has advanced
no reason for allowing the posthearing receipt of these unauthenticated
documents. Accordingly, I shall grant the General Counsel’s motion to
strike and will disregard exhibits A and B and any references thereto
contained in the Respondent’s brief. See Southern Florida Hotel & Motel
Assn., 245 NLRB 561 fn. 6 (1979).
331 NLRB No. 142
NAVIGATOR COMMUNICATIONS SYSTEMS 1057
Connecticut, was engaged in the business of providing shared
telephone service, including local and long distance, and internet
service, to tenants of office buildings in the vicinity of Stamford,
Connecticut. There is no dispute that each of the Respondents
annually derived gross revenues in excess of $100,000 in the con-
duct of their business and annually purchased and received at their
respective Stamford, Connecticut facilities, goods valued in excess
of $50,000 directly from points outside the State of Connecticut.
The individual Respondents have admitted, by their respective
answers which were amended at the hearing, that each is an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and I so find. The Respondents have further
admitted and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The record establishes, and it is essentially undisputed, that Re-
spondent Navigator recognized the Union on January 23, 1996, as
the exclusive collective-bargaining representative of a unit of its
technicians engaged in the installation and service of telecommu-
nications systems within the geographic United States. Robert
Howard, the president of Respondent Navigator, signed an agree-
ment that date adopting, with some modifications, a collective-
bargaining agreement in effect between the Union and another
employer, Mitel Telecommunications Systems, Inc. (Mitel).4 The
collective-bargaining agreement, as modified by the January 1996
agreement, was to be effective through October 30, 1997.5
Pursuant to section 7 of the collective-bargaining agreement, an
employee who was laid off after October 7, 1996, would receive a
gratuity payment equal to 100 percent of his vacation entitlement.
In addition, section 12.A of the agreement provided that employ-
ees who were terminated for any reason would receive payment
for any unused vacation time which had accrued in the preceding
vacation year (defined by the contract as January 1 through De-
cember 31). Unit employees were also entitled, under section 10
of the contract, to reimbursement for all reasonable living ex-
penses incurred as a result of work assignments away from the
employee’s base of operations. Section 26 of the collective-
bargaining agreement also required Respondent Navigator to
provide unit employees with group life insurance, temporary dis-
ability insurance, and comprehensive medical insurance. In the
January 1996 recognition agreement, Respondent Navigator
agreed to provide a qualified 401(k) savings and retirement plan
for unit employees and to “make matching contributions equal to
50 percent of the employee contributions of the first 6 percent of
base pay (up to a maximum of $3000) contributed through salary
deferral.”
It is undisputed that Respondent Navigator ceased operations
and laid off all its unit employees on August 15. Employees were
informed that day, by a letter which was signed by Joseph F.

4 Respondent Navigator had purchased a part of Mitel’s business and
had hired the employees working in that part of the business.
5 The Charging Party argued at the hearing that the agreement auto-
matically renewed for another year because of Respondent Navigator’s
alleged failure to notify the Union of its intention to terminate the agree-
ment within the time specified in the agreement. I find it unnecessary to
resolve this issue. There is no dispute that the agreement was in effect at
the time of the alleged unfair labor practices. The General Counsel spe-
cifically disavowed any claim that any of the other entities had continued
the business of Respondent Navigator or that any employees who would
be covered by the agreement were still employed after October 30, 1997.
Grosso, that Respondent Navigator was closing down because it
had exhausted its cash and credit and was functionally bankrupt.
Respondent Navigator admitted, in its answer, that it did not pro-
vide the Union with advance notice of this action. James Brimer,
the Union’s International representative responsible for servicing
the unit, testified that he learned of the shutdown from unit em-
ployees late that Friday afternoon. Brimer was unable to reach any
representative of the Company until the middle of the following
week. He spoke to Grosso at that time, who confirmed that Re-
spondent Navigator was bankrupt and out of business. When
Brimer asked about the employees’ 401(k) and other benefits,
Grosso said he would look into it. Brimer asked for some official
notice regarding the shutdown. Brimer testified that, after Labor
Day,6 he received an undated letter, signed by Grosso on Naviga-
tor letterhead, officially notifying him of the cessation of business
and stating Respondent Navigator’s intention not to renegotiate
the collective-bargaining agreement.
By letter dated September 5, the Union filed a grievance on be-
half of all unit employees, demanding payment of all moneys due
the employees under the terms of the collective-bargaining agree-
ment.7 The Union requested, in the same letter signed by Interna-
tional President J. J. Barry, that Respondent Navigator provide the
Union with a list of all unit employees and the amounts due each
for accrued vacation, layoff gratuity, 401(k) matching funds, and
reimbursable incurred travel expenses. Brimer testified that the
Union has never received this information. Brimer testified fur-
ther, based on conversations with unit employees, that Respondent
Navigator has not paid employees their accrued benefits, nor re-
imbursed all travel expenses incurred prior to the cessation of
business.
On February 13, 1998, the Union sent a letter to Respondent
Navigator requesting detailed information regarding the relation-
ship between Navigator and Aviator. Brimer testified that this
request was made after he became aware, through conversations
with technicians formerly employed by Respondent Navigator,
that Aviator might be working on Navigator contracts. According
to Brimer, he was unaware of Aviator’s existence before Respon-
dent Navigator ceased operations. Respondent Navigator never
responded to this letter. However, Grosso responded, by letter
dated February 24, 1998, on Aviator letterhead. In this letter,
Grosso stated that, since he no longer had a consulting relationship
with Navigator, he had no obligation to respond to the Union’s
inquiries directed to Navigator. Grosso went on to respond in part
to the Union’s inquiry in his capacity as a managing member of
Respondent Aviator. In the letter, he denied that he was an em-
ployee of Navigator, characterizing his relationship as that of a
consultant, and denied any equity or other financial interest in
Navigator. After describing the formation of Aviator and its busi-
ness, he denied that Aviator had any relationships with any former
customers of Navigator and denied employing any employees
previously employed by Navigator. According to Grosso’s letter,
the only relationship between Navigator and Aviator “is that we
have offices in the same building where Navigator had its offices.”
Grosso ended his letter by inviting the Union to provide any spe-
cific information it had upon which it based its belief that Naviga-
tor and Aviator were related enterprises. Although Grosso asserted
in his letter that his relationship as a consultant to Navigator ended
when Navigator went out of business, he signed letters from
Navigator to the Connecticut State Department of Labor, dated
6 The 1997 calendar reveals that Labor Day was September 1.
7 There were approximately 41 employees in the unit at the time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
October 27 and January 6, 1998, in response to a wage claim filed
by one of the laid off employees of Respondent Navigator.
The above facts regarding the alleged unfair labor practices are
largely undisputed. The primary issue in this case is whether Re-
spondents Aviator and/or KM may be held liable for any unfair
labor practices committed by Respondent Navigator.8 The General
Counsel and the Charging Party seek to impose liability on Re-
spondents Aviator and KM solely on a single-employer theory,
disavowing any claim that they are alter egos of Respondent
Navigator. The Respondents deny that the three entities were
sufficiently integrated to meet the Board’s test for single-employer
status. In determining whether two nominally separate employing
entities constitute a single employer, the Board looks to four fac-
tors, i.e., common ownership, common management, interrelation
of operations, and centralized control of labor relations. No single
factor is controlling and not all need be present. Rather, single-
employer status depends on all the circumstances and is character-
ized by the absence of the arm’s-length relationship found be-
tween unintegrated entities. Radio Technicians Local 1264 v.
Broadcast Service of Mobile, 380 U.S. 255, 256 (1965); Dow
Chemical Co., 326 NLRB 288 (1998), and cases cited therein. See
also Denart Coal Co., 315 NLRB 850, 851 (1994); and Hydroli-
nes, Inc., 305 NLRB 416, 417 (1991). The burden is on the Gen-
eral Counsel to prove that the three entities here are a single em-
ployer. Masland Industries, 311 NLRB 184, 186 (1993).
Respondent KM was organized in 1993 with Tom Kelly and
William Merritt as the principal equity owners and sole managing
members.9 Each also contributed $20,000 in capital. Partnership
tax returns in evidence show that the Company started in business
on April 15, 1994. According to a letter submitted to the Board’s
regional office by its counsel, its business purpose was to “provide
telephone services in buildings controlled by a partnership which
included Messrs. Kelly and Merritt.”10 KM’s principal office was
located in one of these buildings, One Dock Street in Stamford,
Connecticut. KM does not have any employees. The individuals
who perform billing, customer service, filing, and other functions
for KM are employed by Integrated Communication Services
(ICS), which shares offices with KM. Victoria Ruther, one of
these employees, testified at the hearing that she was hired by
Kelly.11
On April 10, 1995, Kelly and Merritt, as managing members,
filed Articles of Organization with the Connecticut Secretary of
State creating Respondent Navigator. The principal office address
was “c/o Integrated Communication Systems, One Dock Street,
Stamford, Connecticut” and Merritt, at the same address, was
designated the statutory agent for service of process. The stated
purpose of the business was “to provide communication services
including designing, installing, and operating telephone data
switching equipment and to engage in any other lawful act or

8 It appears that Respondent Navigator is essentially defunct and with-
out assets to satisfy any remedial order that might issue in this case.
9 The “Restated Operating Agreement of KM Communications Ser-
vices, LLC,” effective January 1, 1997, shows that Kelly and Merritt each
owned a 42.5-percent share of the business and that Respondent Aviator
owned a 10-percent share. The remaining 5 percent was held by Joseph
Britell. Neither Respondent Aviator nor Britell were capital contributors
nor managing members of the company.
10 The Board has held that such written statements of position, when
not disavowed prior to the hearing, are admissible as admissions of a
party as to material facts. Masillon Community Hospital, 282 NLRB 675
fn. 5 (1987). Accord: Hogan Masonry, 314 NLRB 332, 333 fn. 1 (1994).
11 ICS is not a party to these proceedings.
activity for which limited liability companies are permitted” by
statute. Respondent Navigator’s operating agreement was signed
by Meritt, Kelly, and Robert J. Howard as members on July 21,
1995. At the time the Company was formed, each owned a one-
third share and all three were identified as the managing members.
Each contributed $1000 in capital. In addition to the members’
shares, Respondent Navigator issued convertible debentures
which could be converted to voting shares in the Company. Kelly,
Merritt, and Howard held a significant amount of these deben-
tures. Tax returns filed by Respondent Navigator for calendar
years 1995 through 1997 show that the percentage of ownership
of the principals fluctuated, perhaps due to conversion of the de-
bentures into membership shares in the Company. By the end of
1997, Howard and Merritt each held only a 5-percent share with
Kelly holding the remaining 90 percent. The principal office iden-
tified in the operating agreement was 2 Stamford Landing, Stam-
ford, Connecticut, another building owned by Merritt and Kelly.
Respondent Navigator’s first tax return indicates that the Com-
pany started in business on June 1, 1995.
Respondent Navigator’s counsel, in its position letter, stated
that Navigator was formed by Howard to acquire the hotel tele-
phone installation and service business of Mitel with Kelly as a
significant investor in the acquisition and Meritt a smaller inves-
tor. This is consistent with other evidence in the record. Stephen
Futrell, who was hired by Howard on August 1, 1995, to be Re-
spondent Navigator’s director of engineering, testified that he was
told by Howard that Respondent Navigator had acquired part of
Mitel’s business and that Kelly put the financing together. Brimer,
the Union’s representative who conducted the negotiations leading
to the January 1996 recognition agreement, testified that Respon-
dent Navigator’s counsel told him during the negotiations that
Kelly was Respondent Navigator’s principal. The record also
contains a handwritten undated letter from Merritt to Joe Leder-
has, who was identified as a human resources consultant, which
sets forth the details of the acquisition and Merritt’s plans regard-
ing the hiring of employees and their benefits. In this letter, Mer-
ritt stated his intention “to have benefits close to what the employ-
ees had before with an emphasis on 401(k) profit sharing.” He
further states that Rob Howard will be the president. At the end of
the letter, Merritt states that he was “trying to get Mitel to do pay-
roll and keep the employees on their benefit plans until we can get
established.” As noted above, Respondent Navigator voluntarily
recognized the Union as bargaining representative of the techni-
cians it hired to perform the work acquired from Mitel. The Janu-
ary 1996 recognition agreement signed by Respondent Navigator
and the Union provides for the establishment of a 401(k) plan.
Respondent KM was also involved in the formation of Respon-
dent Aviator. As admitted in the Respondent’s position letter:

KM became dissatisfied with its existing telephone mainte-
nance vendors, and in late 1994 or early 1995 approached the
Barrett Brothers to set up a telephone service company that
would provide maintenance and services to KM, among oth-
ers. In January 1996, the Barretts, together with Joseph
Grosso, agreed to organize their own company, provided
they received a minimum guarantee of KM’s business for at
least a year. As a result, KM guaranteed $200,000 in reve-
nues to Aviator, of which $100,000 was in the form of pay-
ments for maintenance services provided to KM, and the
second $100,000 was in the form of reimbursement to Avia-
tor for personal services rendered by Aviator personnel to
Navigator.

NAVIGATOR COMMUNICATIONS SYSTEMS 1059
The organizational documents of Respondent Aviator in evi-
dence reveal that it was organized on January 15, 1996, with its
principal office at 2 Stamford Landing in Stamford, Connecticut,
the same as that specified in Respondent Navigator’s operating
agreement. Brothers Dennis and James Barrett and Grosso each
held a 26.66-percent share of the Company, with the remaining 20
percent held by Respondent KM. Grosso and the Barretts were
designated as Respondent Aviator’s managing members. Merritt
signed the initial operating agreement as KM’s managing member
and was designated Respondent Aviator’s statutory agent for ser-
vice in the articles of organization filed with the Secretary of
State. Respondent Aviator’s tax returns indicate that it started in
business on February 5, 1996.
KM’s revenue guarantee to Aviator is embodied in a written
letter dated February 19, 1996. The letter, which is signed by
Kelly and Merritt, confirms the “agreement concerning the ser-
vices . . . Aviator will provide . . . Navigator and the KM Group of
tenants sharing and reselling (KM Communications Services,
LLC, KM Dock Street Communications Services, LLC, KMF
Communications Services, LLC, and Integrated Communications
Systems Corp) (KM Group), companies which are controlled by
us.” Under the agreement, Respondent Aviator would provide the
consulting services of Grosso for 1 year, with an option for a sec-
ond year, at the rate of $150,000. In addition, Respondent Naviga-
tor guaranteed consulting work totaling $100,000 in fees for 1
year at the rate of $800/day for Dennis Barrett and $400/day for
other Aviator employees. The agreement provided further that
Respondent Navigator would designate Aviator its prime subcon-
tractor for installation and service in metropolitan New York and
southern Connecticut, “provided Aviator’s rates are competitive
with the prevailing subcontract rates in the area.” The agreement
required the KM Group to designate Aviator to manage and per-
form its operations functions, including installation and mainte-
nance, for a year with a guaranteed payment of $100,000 for these
services. In consideration for these guarantees, Respondent KM
acquired its 20-percent membership interest in Aviator and Re-
spondent Aviator was given a 10-percent membership interest in
Respondent KM and KM Dock Street Communications Services,
LLC. Barrett signed the acceptance of agreement as managing
member of Respondent Aviator and Merritt signed on behalf of
Navigator and each of the members of the KM Group ratifying the
agreement. Howard, the president of Navigator, did not sign the
letter of agreement.
This agreement was implemented in early 1996 when Respon-
dent Navigator’s president, Howard, informed its employees, by
telephone conference, that Grosso and Dennis Barrett were joining
the Company to help out. Later, Howard told Futrell that Grosso
was in charge and that all decisions had to go through Grosso.
Union Representative Brimer testified that, in early 1996, when he
called Howard regarding a termination grievance for an employee
of Respondent Navigator, Howard directed Brimer to call Grosso.
When Brimer called Grosso, Grosso identified himself as Re-
spondent Navigator’s vice president of corporate operations. Ac-
cording to Brimer, Grosso did not identify himself as a consultant.
Brimer proceeded to discuss the grievance with Grosso, eventu-
ally coming to an agreement to resolve the grievance. Grosso
signed the May 9, 1996 letter memorializing the agreement as
Respondent Navigator’s vice president of corporate operations
and administration.
Grosso admitted that he was Respondent Navigator’s vice
president of administration and operations from February 1996
until the Company ceased operations on August 15 and that Den-
nis Barrett, one of his partners in Respondent Aviator, served as
Respondent Navigator’s director of field operations during the
same period. Grosso testified that Kelly asked him and Barrett to
work for Respondent Navigator. According to Grosso, Howard
remained the president of Respondent Navigator and was in
charge of sales after Grosso and Barrett came aboard. Grosso
admitted that Dennis Barrett supervised Respondent Navigator’s
field technicians represented by the Union.
Respondent Navigator had its principal office in Mt. Laurel,
New Jersey, in 1996 when Grosso and Barrett assumed their re-
spective positions with Respondent Navigator. Respondent Avia-
tor was located in Connecticut at the time. There is no dispute that,
in early 1997, Respondent Navigator moved its offices to 470
West Avenue in Stamford, Connecticut, the same building where
Respondent Aviator had its offices at the time.12 Futrell testified
that Howard told him that Kelly directed that the offices be moved
to Connecticut.
Futrell, who was Respondent Navigator’s director of engineer-
ing, testified that Respondent Navigator customarily installed
telephone systems in hotels using Hitachi equipment until early
1997. At that time, while Futrell was in the midst of designing a
system for a potential customer, a hotel chain called Extended
Stay America, he was told by Howard that Kelly wanted Respon-
dent Navigator to consider using equipment manufactured by a
company called Nitsuko because it would be less costly. Kelly
then called Futrell and told him to go to the Stamford, Connecticut
offices of Nitsuko, another manufacturer of telephone switching
equipment to check it out. In fact, Kelly accompanied Futrell to
Nitsuko’s office. Futrell then re-designed the bid for the Extended
Stay America contract utilizing Nitsuko equipment. After Re-
spondent Navigator won the contract from Extended Stay Amer-
ica, Futrell was told by Grosso to recalculate the job cost with
Respondent Aviator doing the assembly and programming of the
Nitsuko equipment at a cost to Respondent Navigator of $3500
per hotel. Futrell testified that, in his opinion, this figure was in-
flated. There is no dispute that James Barrett, one of the partners
in Respondent Aviator, built and programmed the Nitsuko
switches at the 470 West Avenue facility and provided direction to
unit technicians in the field as to their installation. According to
Futrell, Barrett worked on the Nitsuko equipment in Respondent
Navigator’s warehouse space and employees of Respondent
Navigator packed and shipped the equipment to the sites where
they were to be installed.
Futrell generally performed his work for Respondent Navigator
from his home in Atlanta. In March, Howard asked him to go to
Respondent Navigator’s Stamford office to assume the technical
support duties of a discharged employee, Rusty McComb, until a
replacement could be found. McComb had been the immediate
supervisor of the unit employees. Futrell worked in the Stamford
office for about 2 weeks in the beginning of March before return-
ing to Atlanta. He resigned his employment with Respondent
Navigator shortly thereafter and was hired by a competitor.13
Futrell testified that, soon after his arrival in Stamford, he had a
conversation with Grosso over drinks at a hotel. He and Grosso

12 The record does not disclose when Respondents Navigator and
Aviator changed their principal office addresses from 2 Stamford Land-
ing.
13 Futrell admitted that he was sued by Respondent Navigator within a
few months of starting employment with his new company. He denied
that he stole any of the Respondent’s customers, although he acknowl-
edged that some former customers of Respondent Navigator became
customers of his new employer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
discussed Futrell’s duties in Stamford and what was expected
from him. During this conversation, Futrell asked Grosso what his
job was. Grosso told Futrell that he was at Respondent Navigator
to get back as much of Tom Kelly’s investment as he could.
Grosso did not contradict this testimony.
During his 2 weeks in Stamford, Futrell was able to observe the
operations of Navigator and, to some extent, Aviator. According
to Futrell, Navigator’s office was on the second floor and Avia-
tor’s office was on the first floor in the warehouse space. The
offices and warehouse space were served by the same phone sys-
tem. He observed that there was no distinction in the warehouse
between Navigator and Aviator parts and equipment, but con-
ceded that he did not know which Company owned the material
stored in the warehouse. As noted above, he did observe James
Barrett working on the Nitsuko equipment for the Extended Stay
America contract in the warehouse space, with Navigator employ-
ees doing the packing and shipping. All office machines, includ-
ing copiers, fax machines, and computers, were located in the
second floor offices of Navigator. Futrell testified that the only
clerical employees in the building were employees of Navigator.
Futrell also testified that a vehicle leased by Respondent Naviga-
tor, which Futrell had been told by Howard would be his vehicle
while he worked in Stamford, was being used by James Barrett.
Respondent Navigator rented another vehicle for Futrell to use
instead.
There is no dispute that Respondent Aviator did not sell, install,
or service hotel telephone systems. Other than the work it did
building and programming Nitsuko switches for Respondent
Navigator, Respondent Aviator’s main business appears to have
been performing telephone service and maintenance work for
Respondent KM. Futrell testified that the Barrett’s did this work,
in addition to the work they did for Respondent Navigator. There
is no evidence that any of Respondent Navigator’s unit employees
did the service and maintenance work of Respondent Aviator.
Grosso testified that Aviator received work orders via the fax
machine next to his desk from KM or one of its tenants. Grosso
claimed, incredibly, that he did not know who owned this fax
machine. Grosso and his partners would decide which of them did
the work depending on what needed to be done. Aviator had no
employees other than the three principals. On some of the work
orders in evidence, the technician identified as doing the work is,
“Navigator, Dennis.” There is no dispute that Dennis Barrett was
never on Respondent Navigator’s payroll. On other service orders,
the technician is identified as “Aviator, Jim.” Respondent Aviator
billed Respondent KM for the work it did by invoice. The invoices
in evidence are stamped “paid.” Grosso testified that he prepared
all the invoices himself.
There is no dispute that Respondent Navigator was a customer
of Respondent KM for telephone service. Telephone calling cards
used by the Barretts and Grosso were billed to Respondent Navi-
gator. Monthly telephone bills in evidence show that KM billed
Respondent Navigator for telephone service in the same manner it
billed its other tenants/customers. Bills for the month of January
and February 1997 are addressed to Dennis Barrett. Those begin-
ning in March have a different account number and phone number
and are billed to Grosso at Respondent Navigator. These bills do
not show that Respondent Navigator made any payments. Instead,
Respondent KM credited Respondent Navigator’s account from
time to time for errors and other adjustments. By August 15, Re-
spondent Navigator owed Respondent KM almost $46,000. An
undated letter to Merritt at Respondent KM, on Navigator letter-
head, signed by Grosso, refers to a July 16 letter from Meritt re-
garding “termination of our account.” Grosso informs Merritt in
this letter that Respondent Navigator is experiencing a cash flow
problem. He asks Merritt to consider a barter arrangement under
which Respondent Navigator would ship to Respondent KM a
brand new, unopened Nitsuko telephone system it possessed,
valued in excess of $10,000, in return for a credit to Respondent
Navigator’s account. Merritt accepted this offer on behalf of Re-
spondent KM. The phone bill for the month ending August 15,
also shows a credit of more than $16,000 “against Nav. Inv.
#B110497, 110493, 109712.” Grosso testified that he stopped
paying the phone bill for Respondent Navigator when there was
no money left in the Company. According to Grosso, he also
stopped paying himself and the Barretts in June or July.
None of the Respondents called any witnesses to explain or
contradict the evidence offered by the General Counsel. Counsel
for Respondents Navigator and KM put two documents in evi-
dence. The first is an “Audit Trail” of all transactions of Respon-
dent KM. No witness was called to explain the accounting entries
on the document which appears to be a record of various transac-
tions, including some between Respondent KM and the other
Respondents. The second document is a sample of a telephone bill
for another of Respondent KM’s customers and is identical in
form to bills received by Respondent Navigator. Although Re-
spondent had the opportunity to question Grosso after he was
called as a witness by the General Counsel, Respondent did not
inquire as to the circumstances surrounding the decision to go out
of business. Grosso did not contradict Futrell’s testimony regard-
ing the conversation they had over drinks. As noted above, Grosso
corroborated the other evidence in the record showing the in-
volvement of Respondent KM in the creation of Respondent
Aviator, the hiring of him and Dennis Barrett as consultants to
Respondent Navigator, and his responsibilities and authority as an
agent of Respondent Navigator.
B. Analysis
1. The unfair labor practices
It is undisputed that Respondent Navigator ceased operations
and laid off all the unit employees on August 15 without any ad-
vance notice to the Union. In fact, the Union only received “no-
tice” after Brimer was finally able to reach Grosso, almost a week
later, and asked for notification in writing. Respondent Navigator
argues that no violation should be found here because it ceased
business under “emergent circumstances.” The problem with this
argument is that there is no evidence in the record before me of
any of the circumstances surrounding the decision to close. The
record contains no evidence showing when the decision was
made, who made the decision, or the reason for it. Grosso’s refer-
ence in his August 15 letter to the employees that Respondent
Navigator had “exhausted its cash and credit” and was “function-
ally bankrupt” is not proof of same. The Board has historically
held that an employer must notify the union representing its em-
ployees of a decision to close in advance in order to afford the
union a meaningful opportunity to bargain. Penntech Papers, Inc.
v. NLRB, 706 F.2d 18, 26 (1st Cir. 1983); Los Angeles Soap Co.,
300 NLRB 289 fn. 1 (1990); and Metropolitan Teletronics, 279
NLRB 957, 959 (1986), enfd. 819 F.2d 1130 (2d Cir. 1987). An
employer can escape this requirement only by demonstrating that
emergency circumstances justify late or no notice. Raskin Packing
Co., 246 NLRB 78 (1979). Respondent did not meet its burden
here. Accordingly, I find that Respondent Navigator violated Sec-
tion 8(a)(1) and (5) of the Act by failing to notify the Union in
NAVIGATOR COMMUNICATIONS SYSTEMS 1061
advance of its decision to close, thereby denying the Union an
opportunity to bargain regarding the effects of the closing.14
The only evidence in the record to show that Respondent Navi-
gator failed to abide by the terms of the collective-bargaining
agreement when it ceased operations and laid off the unit employ-
ees, is the hearsay testimony of Brimer of reports he received from
the employees. None of the Respondents objected to this testi-
mony. In fact, much of it was elicited by questions from counsel
for Respondents Navigator and KM. The Board has held that
hearsay, if unobjected to, is evidence which may be relied upon in
making findings of fact. Plumbers Local 589 (L & S Plumbing),
294 NLRB 616, 618 fn. 5 (1989), citing NLRB v. Operating Engi-
neers Local 12, 413 F.2d 705, 707 (9th Cir. 1969). See also Iron
Workers Local 46, 320 NLRB 982 fn. 1 (1996). The Respondents
did not dispute this testimony by showing that Respondent Navi-
gator in fact paid the employees the accrued benefits and other
money they were entitled to at the closing. Accordingly, I find that
Respondent Navigator failed to abide by the terms of the collec-
tive-bargaining agreement by failing to pay employees who were
terminated as a result of its closing their accrued vacation benefits,
layoff gratuity, 401(k) contributions, insurance benefits, and unre-
imbursed employee travel expenses.
Respondent Navigator argues that this allegation amounts to
nothing more than a claim of breach of contract which is outside
the Board’s jurisdiction. I disagree. The Board has long held that
an employer’s failure to abide by the financial terms of its collec-
tive-bargaining agreement without the Union’s consent commits
an unfair labor practice. Oak Cliff-Golman Baking Co., 207
NLRB 1063 (1973). See also Papercraft Corp., 212 NLRB 240,
241 fn. 3 (1974). When considered in the context of Respondent
Navigator’s failure to notify the Union of its decision to close in
advance, the subsequent failure to pay accrued benefits under the
collective-bargaining agreement amounts to a wholesale repudia-
tion of the collective-bargaining relationship. Had the Union not
learned of the closing from the employees, it is doubtful that any
notice would have been given nor any attempt made to provide the
contractual benefits to the employees. Finally, the fact that Re-
spondent Navigator was experiencing financial problems and
might not have been able to afford to pay the employees is not a
defense to an unfair labor practice under Section 8(a)(5) and (d) of
the Act. Trojan Mining & Processing, 309 NLRB 770, 771
(1992); and Zimmerman Painting & Decorating, 302 NLRB 856,
857 (1991). Accordingly, I find that Respondent Navigator vio-
lated Section 8(a)(1), (5), and (d) of the Act by failing to abide by
the terms of the collective-bargaining agreement.
There is no dispute that the Union requested information from
Respondent Navigator on September 5 when it filed its grievance
over the cessation of operations. Specifically, the Union asked for
a list of all unit employees and the amounts they were owed under
the contract at the time of termination. Such information is pre-
sumptively relevant. Ohio Power Co., 216 NLRB 987 (1975). It is
undisputed that Respondent Navigator did not respond to this
request, at least through the date of issuance of the complaint.

14 Respondent Navigator has attempted to show that it did offer the
Union an opportunity to bargain over the effects of the closing. There is
no dispute that no offer was made until after the complaint issued in this
case, more than a year after Respondent Navigator laid off all unit em-
ployees. Such an offer to bargain, even if made, would not be a defense to
the unfair labor practice found here. See Thompson Transport Co., 184
NLRB 38 (1970).
Respondent Navigator thus violated Section 8(a)(1) and (5) of the
Act.15
There is no dispute that the Union requested detailed informa-
tion regarding the relationship between Respondents Navigator
and Aviator in February 1998 and that, other than Grosso’s letter
on behalf of Respondent Aviator, none of this information has
been provided. Because the information requested did not concern
the terms and conditions of unit employees, it is not presumptively
relevant. Relevance of the requested information to the Union’s
performance of its functions as statutory collective-bargaining
agent must be demonstrated. Id. at 991. Where a union seeks in-
formation to establish an alter ego or single-employer relationship,
the General Counsel must establish that the union had an objective
factual basis for believing that one entity is the alter ego or single
employer of another. Maben Energy Corp., 295 NLRB 149
(1989). In the instant case, the only basis offered by the General
Counsel for the Union’s request is Brimer’s testimony that he
received reports from employees that Aviator was working on
Navigator contracts after Navigator ceased operations. Brimer
admitted that he had no evidence that this in fact had occurred.
Moreover, the General Counsel also offered no evidence to show
that Aviator was carrying out Navigator contracts after August 15.
I find that these unsubstantiated rumors from employees were
insufficient to establish a reasonably objective basis for the Un-
ion’s February 13, 1998 request for information.
The Charging Party in its brief argues that an affidavit obtained
by the Union’s counsel from Futrell provided the objective basis
for this request. That affidavit is not in evidence and Brimer did
not mention it in explaining his reasons for sending the February
13, 1998 request. Moreover, it is clear that Futrell’s affidavit was
obtained in support of the unfair labor practice charge the Union
filed in Case 34–CA–8215, which was amended the same date the
letter was sent to Respondent Navigator to allege that Navigator
and Aviator were a “single employer and/or alter egos.” Although
the Union had filed a class grievance under the collective-
bargaining agreement over Respondent Navigator’s failure to
abide by the agreement, there is no evidence that the Union was
pursuing the grievance at the time it made the request for this
information. It appears that the Union had elected to pursue a
remedy through the Board’s processes. Under these circum-
stances, I agree with counsel for Respondents Navigator and KM
that the Union’s February 1998 information request “was akin to a
discovery device pertinent to its pursuit of the unfair labor practice
charge rather than to its duties as collective-bargaining representa-
tive.” WXON-TV, 289 NLRB 615, 617–618 (1988). Accord:
Pepsi-Cola Bottling Co., 315 NLRB 882 (1994). Accordingly, I
shall recommend dismissal of this allegation of the complaint.
2. Single employer
Having found that Respondent Navigator violated the Act in
several respects, it becomes necessary to determine whether Re-
spondents Aviator and KM should be held liable for Respondent
Navigator’s conduct on a single-employer theory. As set forth
above, the test for determining the existence of a single-employer
relationship turns on four factors, i.e., common ownership, com-
mon management, interrelation of operations, and centralized
control of labor relations. Radio Technicians Local 1264 v.
Broadcast Service of Mobile, supra. No one factor is controlling
15 The issue whether the Respondent subsequently furnished the re-
quested information, raised by the improper attachment to the brief filed
by Respondents Navigator and KM, can be resolved at the compliance
stage of these proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1062
and all need not be present. “Single-employer status ultimately
depends on ‘all the circumstances of the case’ and is marked by
the absence of an ‘arm’s length relationship found among uninte-
grated companies.’ Stated otherwise, the fundamental inquiry is
whether there exists overall control of critical matters at the policy
level.” Penntech Papers, 706 F.2d at 25 (citations omitted). All of
the Respondent’s argue that the General Counsel has not met his
burden in this case. In their view of the evidence, the General
Counsel has proved the existence of only one factor, common
ownership. The Respondents view the evidence in the record as
establishing that all transactions among the three nominally sepa-
rate entities were “arm’s length transactions.” For the reasons set
forth below, I disagree with the Respondent’s interpretation of the
evidence.
As the Respondents seem to concede, there is proof of common
ownership. Kelly and Merritt were at all times the principal own-
ers and managing members of Respondents KM and Navigator.
Respondent KM held a 20-percent share of Respondent Aviator
and Respondent Aviator held a 10-percent share in Respondent
KM. More important than the percentage of ownership is the de-
gree of financial control exercised by Kelly and Merritt over the
three companies. They were instrumental in the creation of each
of the Companies. Although they reserved only a minority interest
in Aviator, they solicited Grosso and the Barretts to go into busi-
ness in this form and financed the business through the lucrative
revenue guarantees made at a time when Aviator barely existed.
The absence of common ownership as between Navigator and
Aviator is not fatal where the same individuals exercised financial
control over all three Companies. Hydrolines, Inc., 305 NLRB,
supra at 419.
The Respondents are correct that common ownership alone is
generally not enough to establish a single-employer relationship.
Dow Chemical Co., supra at 288. As the Board said in Dow
Chemical, “Common ownership by itself indicates only potential
control over the subsidiary by the parent entity; a single-employer
relationship will be found only if one of the companies exercises
actual or active control over the day-to day operations or labor
relations of the other.” The undisputed evidence in the record here
is sufficient to show that Kelly and Merritt exercised actual and
active control of all three Companies. In addition to their role in
the formation and financing of all three Companies, described
above, the record shows that Merritt determined the initial labor
relations policies of Respondent Navigator; that Kelly and Merritt,
as managing members of KM and Navigator, determined that
Grosso and Dennis Barrett should be hired as a consultant to run
the day-to-day operations of Navigator and that Aviator would be
the prime subcontractor of Navigator in the metropolitan New
York and southern Connecticut area; and that Kelly orchestrated
the move of Navigator’s offices to the same building where Avia-
tor had its offices. Moreover, it was Respondent KM that deter-
mined that Respondent Aviator would go into business to satisfy
its needs for a contractor to perform maintenance and service
work on the telephone systems it sold.
The evidence regarding the control exercised at the policy level
by Kelly and Merritt, directly and through KM, satisfies the sec-
ond criteria, common management. In addition, the record is re-
plete with evidence that Grosso essentially ran Navigator and
Aviator concurrently from the same office. Although there is not
much evidence regarding the day-to-day operations of Aviator, the
evidence there points to Grosso as the responsible management
official of that Company. He acknowledged that, whereas the
Barretts contributed their technical expertise to Aviator’s business,
he brought his financial and accounting expertise to the business.
He admitted preparing all the invoices for Respondent Aviator and
reluctantly conceded that he was involved in determining which of
the three partners performed work orders received by Aviator.
Because the Barretts performed all of Aviator’s technical work,
including work at customers’ locations, Grosso is the partner most
likely to be available in the office when an order came in or deci-
sions had to be made. In any event, the Respondents offered no
evidence to show that the Barretts actually managed any aspect of
Respondent Aviator’s business.
I credit Futrell’s testimony regarding the interrelation of opera-
tions between Navigator and Aviator. Despite any incentive he
might have had to testify against his former employer which had
sued him, he impressed me as a more believable witness than
Grosso, who was argumentative and evasive in his answers. His
reluctance to answer questions directly left the impression he was
attempting to conceal damaging information. In light of this reluc-
tance, the admissions that the General Counsel and the Charging
Party were able to extract from him were all the more convincing.
Moreover, much of Futrell’s testimony was corroborated by other
evidence in the record, including admissions by the Respondents.
The record thus establishes that, after January 1997, the two Com-
panies shared common facilities in Stamford. Although they had
ostensibly separate offices, the two Companies worked inter-
changeably in this space. Both companies used the same phone
lines, office equipment, computer system, and warehouse. James
Barrett, a partner of Aviator, worked side by side with Navigator’s
warehouse employees. He drove a vehicle leased by Navigator
even though there is no evidence that he was hired as a “consult-
ant” by Navigator. The three Aviator partners had telephone call-
ing cards paid for by Navigator and there is no evidence that they
were limited in using them on Navigator’s business.
The Respondents argue that the apparent interrelation of opera-
tions does not satisfy the single-employer test because they were
all arm’s-length transactions, citing in particular the February
1996 agreement guaranteeing Aviator’s first year’s revenue. There
is no evidence in the record to show how the amounts agreed to
were arrived at by the parties to the agreement. It is not clear from
the record whether the amounts represent fair market value for the
services being performed. The record also does not disclose to
what extent payments were actually made between the companies
as reimbursement for services performed by the others. The most
telling evidence establishing the absence of a typical arm’s-length
relationship is Grosso’s direction to Futrell to specify in the Ex-
tended Stay America job cost summary that Aviator would do the
assembly and programming of the Nitsuko switches at a cost to
Navigator of $3500 per hotel. It is impossible to determine which
hat Grosso was wearing in making such a lucrative deal for Avia-
tor. Was he acting in his role as a consultant to Navigator or as a
significant shareholder in Aviator? This blurring of the lines of
distinction between nominally separate companies suggest that the
companies function like divisions of a single-integrated company
rather than as truly independent entities.
The Board has on occasion described the last factor, centralized
control of labor relations, as the most critical. Dow Chemical Co.,
supra; and Alabama Metal Products, Inc. 280 NLRB 1090, fn. 1
(1986). However, this factor becomes less important where some
of the companies have no employees. Three Sisters Sportswear
Co., 312 NLRB 853, 863 (1993); IMCO/International Measure-
ment Co., 304 NLRB 738, 740 (1991). See also Denart Coal Co.,
315 NLRB, at 853 fn. 13. Here it is undisputed that Respondents
Aviator and KM had no employees at the time of the alleged un-
NAVIGATOR COMMUNICATIONS SYSTEMS 1063
fair labor practices. Respondent KM utilized employees of other
businesses within the KM group to perform work for it and util-
ized Respondent Aviator as a “subcontractor” to satisfy its main-
tenance and service needs. The three individual partners in Re-
spondent Aviator performed all of the work themselves.16 It is
undisputed that Grosso and Barrett, in their role as “consultants”
to Navigator, exercised supervisory authority over Navigator’s
unit employees. In addition, Merritt’s determination of the initial
labor relations policies of Respondent Navigator and he and
Kelly’s decision to hire Grosso and Barrett to run Navigator dem-
onstrate that Respondent Navigator did not have independent
control of its labor relations policies.
Based on the above, and the totality of evidence, I find that the
General Counsel has met his burden of establishing that Respon-
dents Navigator, Aviator, and KM functioned as a single-
integrated enterprise and a single employer within the meaning of
the Act. In light of the controlling role played by Kelly and Merritt
in all three entities, it is appropriate that joint and several liability
be imposed on the Respondents to remedy the unfair labor prac-
tices found herein. Proctor Express, Inc., 322 NLRB 281 (1996).
CONCLUSIONS OF LAW
1. The Respondent, a single employer within the meaning of
the Act, failed to bargain collectively with the Union, in violation
of Section 8(a)(1) and (5) of the Act, by ceasing operations and
laying off all its unit employees on August 15, 1997, without af-
fording the Union advance notice and an opportunity to bargain
regarding the effects of the cessation of business; and by failing
and refusing to furnish the Union information it requested on Sep-
tember 5, 1997, regarding the terms and conditions of employ-
ment of unit employees.
2. The Respondent failed to bargain collectively with the Union
in violation of Section 8(a)(1), (5), and (d) of the Act by failing to
abide by the terms of the collective-bargaining agreement in effect
at the time it ceased operations without the Union’s consent to its
midterm modification of the agreement.
3. The Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not violate Section 8(a)(1) and (5) of the
Act by failing and refusing to furnish the Union the information it
requested by letter dated February 13, 1998.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
I shall recommend that the Respondent make whole its unit
employees who were laid off on August 15, 1997, for all benefits
they were owed under the collective-bargaining agreement in
effect at the time, including accrued vacation benefits, the layoff
gratuity, any unreimbursed employee expenses, accrued 401(k)
contributions, and insurance benefits.
I shall also recommend that the Respondent furnish the Union,
to the extent it has not already done so, with a list of unit employ-
ees and the amounts each was owed under the collective-
bargaining agreement, as requested in the Union’s letter dated
September 5, 1997.

16 There is some evidence in the record that Aviator utilized Naviga-
tor’s clerical employees to perform office functions.
Because the Respondent failed to afford the Union an opportu-
nity to bargain regarding the effects of its closing, I shall recom-
mend the traditional remedy for such violations, as established in
Transmarine Navigation Corp., 170 NLRB 389 (1968). See also
Melody Toyota, 325 NLRB 846 (1998). Specifically, the Respon-
dent shall pay its terminated employees backpay at the rate of their
normal wages when last in the Respondent’s employ from 5 days
after the date of the Board’s Decision and Order until occurrence
of the earliest of the following conditions: (1) the date the Re-
spondent bargains to agreement with the Union on those subjects
pertaining to the effects of its cessation of operations on its em-
ployees; (2) a bona fide impasse in bargaining; (3) the Union’s
failure to request bargaining within 5 business days after receipt of
the Board’s Decision and Order, or to commence negotiations
within 5 business days after receipt of the Respondent’s notice of
its desire to bargain with the Union; and (4) the Union’s subse-
quent failure to bargain in good faith, but in no event shall the sum
paid to these employees exceed the amount they would have
earned as wages from the date on which the Respondent Naviga-
tor ceased operations, to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respondent shall
have offered to bargain in good faith, whichever occurs sooner;
provided, however, that in no event shall this sum be less than the
employees would have earned for a 2-week period at the rate of
their normal wages when last in the Respondent’s employ. Back-
pay shall be based on earnings which the terminated employees
would normally have received during the applicable period, less
any net interim earnings, and shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).17
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended18
ORDER
The Respondents, Navigator Communications Systems, LLC
Aviator Voice/Data, LLC and KM Communications, LLC, Stam-
ford, Connecticut, their officers, agents, successors, and assigns,
shall jointly and severally
1. Cease and desist from
(a) Failing and refusing to bargain with International Brother-
hood of Electrical Workers, AFL–CIO (the Union) regarding the
effects of their decision to cease Respondent Navigator’s opera-
tions on represented employees in the following unit:

All technicians employed by Respondent Navigator who are
engaged in the installation and service of telecommunica-
tions systems within the geographic United States; excluding
employees covered by another collective-bargaining agree-
ment, all clerical employees, professional employees, mar-
keting representatives, all other employees, guards and su-
pervisors as defined in the Act.

(b) Failing and refusing to abide by the terms of the collective-
bargaining agreement with the Union without the Union’s consent
17 Interest shall be computed in the same manner for any accrued bene-
fits employees are due under the collective-bargaining agreement.
18
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
Board and all objections to them shall be deemed waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1064
(c) Failing and refusing to furnish the Union, on request, with
information regarding employees in the unit.
(d) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Pay to the unit employees who were terminated as a result
of Respondent Navigator’s cessation of operations limited back-
pay in the manner set forth in this decision.
(b) On request, bargain collectively with the Union with respect
to the effects on the unit employees of their decision to cease Re-
spondent Navigator’s operations, and reduce to writing any agree-
ment reached as a result of the bargaining.
(c) Make the unit employees whole for benefits they were due
under the collective-bargaining agreement at the time of Respon-
dent Navigator’s cessation of operations.
(d) Furnish the Union with a list of unit employees and the
amounts due them in accrued vacation, layoff gratuity, 401(k)
matching funds and incurred employee expenses.
(e) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and coping, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, mail, at their
own expense, an exact copy of the attached notice marked “Ap-
pendix”19 to the Union and to all employees in the unit who were
employed by the Respondent Navigator on the date it ceased op-
erations. The notice shall be mailed to the last known address of
each of the employees after being signed by the Respondents’
authorized representative.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official on
a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
19 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 National
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.”
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT fail and refuse to bargain with International
Brotherhood of Electrical Workers, AFL–CIO regarding the ef-
fects of our decision to cease Respondent Navigator’s operations
on represented employees in the following unit:

All technicians employed by Respondent Navigator who are
engaged in the installation and service of telecommunica-
tions systems within the geographic United States; excluding
employees covered by another collective-bargaining agree-
ment, all clerical employees, professional employees, mar-
keting representatives, all other employees, guards, and su-
pervisors as defined in the Act.

WE WILL NOT fail and refuse to abide by the terms of the collec-
tive-bargaining agreement with the Union without the Union’s
consent
WE WILL NOT fail and refuse to furnish the Union, on request,
with information regarding employees in the unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL pay to the unit employees described above limited
backpay in the manner set forth in the Board’s decision.
WE WILL, on request, bargain collectively with the Union with
respect to the effects on unit employees of our decision to cease
Respondent Navigator’s operations, and reduce to writing any
agreement reached as a result of the bargaining.
WE WILL make unit employees whole for benefits they were
due under the collective-bargaining agreement at the time of the
Respondent Navigator’s cessation of operations.
WE WILL furnish the Union with a list of unit employees and the
amounts due them in accrued vacation, layoff gratuity, 401(k)
matching funds, and incurred employee expenses.
NAVIGATOR COMMUNICATIONS SYSTEMS, LLC AND AVIATOR
VOICE/DATA, LLC AND KM COMMUNICATIONS, LLC