Phil Wall & Sons Distributing

PHIL WALL & SONS DISTRIBUTING 1161 Phillip Wall & Sons, Inc. d/b/a Phil Wall & Sons Distributing and Teamsters, Chauffeurs, Ware- housemen and Helpers Union , Local 378, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 19-CA- 18848 29 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 1 September 1987 Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions as i We note certain factual errors made by the judge The judge found that the Respondent established lower levels of pay than those set forth in the 1985-1988 Wall contract Williams, APP's president, testified with- out contradiction, however, that the contractual rate of pay was lower than that instituted by the Respondent on I November 1986 and that the Respondent's basic pension, health, and welfare package was "more ex- pensive than the Union's" In addition, the judge found that the Wall Corporation owned the buildings and other fixtures located on the prop- erty where the corporation was located whereas, in fact, Phil and Margo Wall themselves owned the buildings and fixtures The judge also found that the Respondent had an option to buy the premises where the Wall Corporation conducted its business but did not make it sufficiently clear that, in fact, the Respondent had an option to buy property owned by Phil and Margo Wall at a site different from the main corporate premises We find that these errors do not affect the judge's conclusions that the Respondent was a continuing legal entity after the stock transfer and sale and, therefore, had a duty to recognize the Union and to adhere to the terms of the contract previously agreed on by the Union and the Re- spondent We find it unnecessary to rely on the judge's finding that it was not clear whether employee Willett favored union representation particularly inasmuch as there is sufficient independent evidence that a majority of unit employees, i e , Arnold and Christenson, supported the Union when the contract, effective 1 November 1985 through 1 November 1988, was signed Since we agree with the judge that Phillip Wall & Sons, Inc con- tinued as the same legal entity after the stock sale and had a duty to abide by the terms and conditions of the collective-bargaining agreement, we find it unnecessary to rely on the judge's statement that the Union's filing of charges constituted a demand for continued recognition and con- tract observance Cf East Texas Steel Castings Co, 191 NLRB 113, 114 (1971) (in which parties had agreed to contract terms, the union's filing of charges and the issuing of a complaint alleging respondent's violation of Sec 8(a)(5) of the Act by its refusal to sign the agreement were suffi- cient to constitute a request to sign) In its brief in support of exceptions, the Respondent urges us to adopt the analysis and conclusions of Joe Costa Trucking Co, 238 NLRB 1516 (1979), enfd sub nom NLRB v Edlo, Inc, 631 F 2d 604 (9th Cir 1980) The issue presented in Joe Costa Trucking, however, was framed and liti- gated in terms of whether or not the new company was a successor or sham alter ego to the former company, rather than in terms of the issue raised here modified, to modify his remedy,2 and to adopt the recommended Order as modified.3 We agree with the judge that the Respondent violated Section 8(a)(5) and (1) by terminating unit employee Christenson in disregard of his seniority status under the bargaining agreement effective 1 November 1985 through 1 November 1988. We do not agree with the judge, however, that the record establishes that employee Lowell (Bud) Arnold was similarly discharged in disregard of the agree- ment. In this regard, according to his own testimo- ny, a few days prior to the sale of the Wall Com- pany's corporate stock to Associated Petroleum Products (APP) Arnold told Chris Eakin, Wall's new manager, that he "was going to call it quits." In addition, Arnold testified at the hearing that he "could have stayed on" and that when Eakin asked him shortly after the sale whether he had resigned voluntarily, he replied, "[W]ell, I chose. I said that I just as soon get said [sic] off" Under these cir- cumstances, we cannot find that Arnold was dis- charged in violation of Section 8(a)(5) and (1). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Phillip Wall & Sons, Inc. d/b/a Phil Wall & Sons Distributing, Olympia, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 2(c) and (d). "(c) Reinstate Stanley Christenson to his former position and restore to him all the rights, benefits, and privileges he was and is entitled to under the 1985-1988 Wall Corporation-Local 378 agreement and practices. "(d) Make Christenson and all other employees who performed and/or are performing work within the aforesaid classification whole for any losses suf- 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 In his recommended remedy, the judge provided that "the balance of the [Respondent's] employees within the unit" were to be made whole "for any losses in wages, benefits they have suffered by virtue of the [Respondent's] failure to respect and observe the terms of the unexpired agreement between the [Respondent] and the Union," such amounts to be computed in the manner set out in F W Woolworth Co, 90 NLRB 289 (1950) Since "the balance of the" employees affected by the Respond- ent's failure to abide by the terms of the collective-bargaining agreement were not terminated from the Respondent's employ, backpay for them should be calculated pursuant to Ogle Protection Service, 183 NLRB 682, 683 (1970), rather than F W Woolworth, supra The judge's remedy is modified accordingly 287 NLRB No. 116 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fered by virtue of the failure and/or refusal of the Wall Corporation to honor and apply to them the terms of the aforesaid agreement, in the manner set out in the remedy section of the judge's decision and the Board 's Decision and Order. 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT continue our failure or refusal to recognize Teamsters, Chauffeurs, Warehousemen, Local 378, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive collective-bargaining representative of our employ- ees performing work within the job classifications of oil and solid fuel drivers, semi and truck and trailer drivers, loaders and oil heater men, yardmen and helpers, excluding office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT continue our failure or refusal to honor and apply the terms and conditions of our current agreement with Local 378. WE WILL NOT terminate and replace our em- ployees performing work within the classifications set out above without regard to their seniority standing under the terms of that agreement and/or on the basis of their membership in and support of Local 378. WE WILL NOT institute rates of pay, wages, hours, or working conditions for our employees performing work within the classifications set out above which differ from the rates of pay, wages, hours, and working conditions and practices speci- fied in and prevailing under our current agreement with Local 378 and practice thereunder unless we first have notified Local 378 what new or changed rates of pay, wages, hours, and working conditions we desire and Local 378 has agreed thereto or, after the 1 November 1988 expiration of our cur- rent agreement, we have given such notice and Local 378 either has agreed thereto or we have reached an impasse in collective bargaining over our proposals. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL resume recognizing Local 378 as the exclusive collective-bargaining representative of our employees performing work in the job classifi- cations set out above. WE WILL resume honoring and applying all the terms and conditions of our current agreement with Local 378 and practice thereunder. WE WILL reinstate Stanley Christenson to his former position and restore to him all the rights, privileges, and benefits he was and is entitled to under the terms of the 1985-1988 agreement be- tween us and Local 378 and practice thereunder. WE WILL make Christenson and all other em- ployees who performed and/or are performing work within the job classifications set out above whole for any losses they suffered because of our failure or refusal to honor and apply the terms of our 1985-1988 agreement and practice thereunder, with interest on the sums due. PHILLIP WALL & SONS, INC. D/B/A PHIL WALL & SONS DISTRIBUTING Patrick F Dunham, Esq., for the General Counsel. Jerome F McCarthy, Esq. (Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim), of Tacoma, Washington, for Wall. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On 9 April 1987 I conducted a hearing at Olympia, Washington, to try issues raised by a complaint issued on 24 February 1987 based on charges filed by Teamsters Local 348 (the Union) on 8 January and 17 and 20 Feb- ruary 1987: The complaint alleged Phillip Wall & Sons, Inc. d/b/a Phil Wall & Sons Distributing (Wall) violated Section 8(a)(1) and (5) and Section 8(d) of the National Labor Relations Act (the Act) by discontinuing recognition of the Union as the exclusive collective-bargaining repre- sentative of a unit of its employees and compliance with the terms of a current agreement between Wall and the Union covering the rates of pay, wages, hours, and working conditions of certain of its employees following a sale and transfer of all of Wall's corporate stock. PHIL WALL & SONS DISTRIBUTING 1163 In its answer to the complaint , Wall admitted (1) the filing and its receipt of copies of the charges , (2) at perti- nent times it was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of the Act, (3) on 7 July 19861 Wall and the Union executed a contract covering the rates of pay, wages, hours, and working conditions of a unit of Wall's employees retroactive to 1 November 1985 and expiring 1 November 1988, (4) on 1 November, the four owners of all of Wall's stock sold and trans- ferred their stock, and (5) following the stock sale and transfer, Wall ceased recognizing the Union as the exclu- sive collective-bargaining representative of any of its em- ployees, ceased complying with the terms of the 1985- 1988 Wall-Union contract, terminated the two senior em- ployees within the contract unit,2 and established new or changed rates of pay, wages , hours, and working condi- tions for employees within the unit covered by the 1985- 1988 Wall-Union contract differing substantially from those set out in the contract , without prior notice to, bar- gaining with, or agreement by the Union. Wall denied : (1) the unit specified in the complaint was or is appropriate for collective -bargaining purposes, (2) Wall recognized the Union as the exclusive collec- tive-bargaining representative of its employees within that unit, (3) on 7 July, the Union represented a majority of its employees either within that unit or the unit speci- fied in the 1985-1988 Wall-Union `contract, and (4) Wall was obligated to recognize the Union as the exclusive collective-bargaining representative of its employees within the unit covered by the 1985-1988 Wall-Union contract or comply with the terms of that contract fol- lowing the 1 November stock sale and transfer. In its answer Wall further alleged: ( 1) a unit limited to Wall's employees is inappropriate for collective -bargain- ing purposes, (2) changes effected by the purchaser of Wall's stock relieved Wall of any obligation to recognize the Union or comply with the 1985-1988 Wall-Union contract on and after 1 November, and (3) the Union failed to demand recognition and bargaining on the 1 November change in corporate ownership , and therefore Wall did not violate the Act by failing to recognize or bargain with it The issues created by the foregoing are whether: (1) at times pertinent the Union represented a majority of Wall's employees within a unit appropriate for collec- tive-bargaining purposes , (2) Wall recognized the Union as such representative, (3) Wall was obligated to contin- ue recognizing the Union as the exclusive collective-bar- gaining representative of its employees within that unit and to continue to apply the terms of the 1985-1988 con- tract to those employees following the 1 November stock sale and transfer, and (4) Wall violated the Act by: (a) ceasing to recognize the Union as the exclusive col- lective-bargaining representative of a unit of its employ- ees, (b) ceasing to comply with the terms of the 1985- 1988 Wall-Union contract following the 1 November stock sale and transfer, (c) terminating Arnold and Chris- tenson, and (d) establishing new or changed rates of pay, ' Read 1986 after further date references omitting the year 2 Drivers Lowell Arnold and Stanley Christenson wages, hours, and working conditions for employees within the unit covered by the 1985-1988 Wall-Union contract differing substantially from those set out in the contract, without prior notice to , bargaining with, or agreement by the Union The General Counsel and Wall appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Both counsels filed briefs. Based on my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following - FINDINGS OF FACT3 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted , and I find at all pertinent times, Wall was an employer engaged in commerce , in a business affecting commerce, and the Union was a labor organization within the meaning of Section 2 of the Act Il. THE ALLEGED UNFAIR LABOR PRACTICES A Facts Between 1972 and 1986, Wall was a family-owned and operated corporation,4 selling and delivering petroleum, heating oil, and related products in and about Olympia, Washington The corporation occupied facilities within the citys where it owned and utilized buildings, tanks, pumps, distribution facilities , offices, office equipment (including telephonic , computer, and reproducing ma- chinery and equipment), storage facilities , etc., for use in conducting its business. During the 1972-1986 period, Arnold and Christenson were members of and represented by the Union and cov- ered by a continuous succession of contracts between Wall and the Union specifying their rates of pay, wages, hours, and working conditions , the latest a contract exe- cuted 7 July , for a term extending from 1 November 19856 through 1 November 1988. Section 1 of that con- tract stated , "The Employer agrees to continue to recog- nize the Union as the sole collective bargaining agent for all employees performing work within the jurisdiction of this Agreement" and section 4 provided the contract covered employees classified as Oil & Solid Fuel Driv- ers, Loaders & Oil Heater Men, Yardmen & Helpers, and Semi & Truck & Trailer Drivers. The wage rates for those classifications, effective each anniversary date, req- 3 While every apparent or nonapparent conflict in the evidence has not been specifically resolved below, since my findings are based on my ex- amination of the entire record, my observation of the witnesses' demean- or while testifying, and my evaluation of their testimony, any testimony in the record that is inconsistent with my findings is discredited 4 The president and general manager was Phil Wall, his wife, Margo, was office manager, his son Larry and daughter Kathy performed office/clerical duties, with the former also performing other tasks, includ- ing occasional driving, and his son Ron performed a variety of tasks (office/clerical, loading, yardwork, and driving) Phil, Margo, Larry, and Ron Wall owned all the issued Wall stock 5 On property separately owned by Phil and Margo Wall as individ- uals s The expiration date of the previous Wall-Union contract 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD uisite payments for health coverage under Washington Teamsters Welfare Plan JC28, prescription drug cover- age under prescription drug fund, and retirement cover- age under Western Conference of Teamsters Pension Trust were set forth, as well as provisions covering se- niority' and pay for call-in, overtime, holiday, vacation, sick leave, etc. Although Larry Wall spent a nominal portion of his workdays performing work within the job classifications enumerated above and Ron Wall spent a substantial por- tion of his workdays performing such work, by virtue of their ownership and family status, neither the Wall cor- poration nor the Union treated them as covered by the contract or their rates of pay, wages, hours, and working conditions governed by its terms. Thus prior to February 1986, only Arnold and Chris- tenson were treated, by virtue of their work-driving Wall trucks, full time-as covered by the 1985-1988 Wall-Union contract and compensated accordingly In February 1986, the corporation purchased the busi- ness of a small competitor (Sound Petroleum) operated by two retired union members, Herb Schram and Les Willett 8 Prior to the purchase, Schram managed and op- erated the Sound Petroleum office and Willett drove its delivery truck. Wall did not make any changes in the fa- cilities or operations of Sound Petroleum , employing Schram and Willett in the same functions they performed prior to the purchase. Between February and 1 November, Phil Wall, Union Business Representative Leo Sweeney , and Willett dis- cussed Willett's coverage under the 1985-1988 Wall- Union contract (with Willett opposing coverage on the ground Wall's payment of the requisite contract premi- ums on his behalf to the Western Conference of Team- sters Pension Trust would cut off his continued receipt of pension benefits under the Trust's rules) but by 1 No- vember had not resolved the question In August Phil Wall and the president (Richard Wil- liams) of Associated Petroleum Products, Inc. (APP) commenced negotiations over the possible sale of all the Wall corporate stock to the latter corporation. Those ne- gotiations culminated in the execution of a 12 September contract between the four owners of the Wall corpora- tion stock (Phil, Margo, Larry, and Ron Wall) and APP, wherein the four agreed to sell their stock, resign their corporate offices, cease any managerial or operational role, and relinquish control, use, and ownership of the corporation, including its assets, facilities, customer lists, name, etc, on 1 November. It was further agreed Phil and Margo Wall as individuals would lease the premises at which the corporation conducted its business to the corporation at an agreed -on monthly rent and give it an option to buy the premises In the course of the negotiations , Phil Wall advised Williams that Wall currently recognized the Union as the ° The seniority provision stated length of service would govern layoffs and rehiring and apply in any reduction , restoration, or shifting of work forces 8 Prior to retirement , Schram and Willett worked for employers in the business of selling and distributing petroleum products , were covered by Teamster contracts, and both were receiving pension payments from the Western Conference of Teamsters Pension Trust exclusive collective-bargaining representative of drivers Arnold and Christenson and was party to a 1985-1988 contract with the Union that included provisions cover- ing their rates of pay, required contributions on their behalf to the Teamsters funds, etc., and provided Wil- liams with a copy of the 1985-1988 Wall-Union contract. Declarations of such recognition and contract obligations were also contained in the 12 September stock sale con- tract executed by Phil Wall, his wife, his two sons, and APP. As agreed, on 1 November the Wall family relin- quished control of the corporation and it continued in business as it had before-delivering the same products to the same customers utilizing the same facilities, name, stationery, telephone numbers, etc., with the following internal changes- (1) Phil Wall was replaced by Chris Eakin, (2) Margo Wall, Kathy Ayers, and Schram were replaced by Colleen Wareing; (3) Arnold and Christen- son were replaced by Ron Wall and Richard Games;9 and the following external changes: (1) the South Port facilities were closed and all business was conducted at and from the single, original Wall facility , and (2) a few customers formerly serviced by APP were added. The services of Larry Wall and Willett were continued, un- changed. From and after 1 November Wall established rates of pay, wages, hours, and working conditions of the three drivers remaining in its employ-Games, Ron Wall, and Willett-at substantially different (lower) levels than those set forth in the 1985-1988 Wall-Union contract. B. Analysis and Conclusions 1. Unit and representative status The complaint alleged a unit consisting of "all employ- ees employed by the Respondent, excluding guards and supervisors as defined in the Act" at all times has been appropriate for collective -bargaining purposes within the meaning of the Act and since at least 7 July (the date Wall and the Union signed their latest 3-year contract, retroactive to 1 November 1985), the Union has been, and has been recognized by Wall as the exclusive collec- tive-bargaining representative of Wall's employees within that unit Wall correctly denied those allegations, for the unit the Union has represented over the 14-plus years prior to Wall family's 12 September sale of their corporate stock in the Wall corporation, and the unit in which Wall rec- ognized the Union as the duly designated majority repre- sentative, has been a unit consisting of Wall employees performing work in job classifications titled Oil & Solid Fuel Drivers, Semi & Truck & Trailer Drivers, Loaders & Oil Heater Men, Yardmen & Helpers, excluding office clerical employees, guards, and supervisors as defined in the Act. During the proceeding the parties treated the unit just described as appropriate for collective-bargaining pur- 9 Eakin , Wareing, and Games were previously employed by APP PHIL WALL & SONS DISTRIBUTING 1165 poses10 but introduced evidence bearing on the question of whether the Union represented a majority of Wall's employees within that unit on 7 July, when Wall execut- ed the agreement recognizing the Union as the exclusive collective-bargaining representative of its employees through 1 November 1988. It is undisputed Arnold, Christenson, and Willett were full-time drivers on 7 July, that Arnold and Christenson were union supporters at that time and that while Willett wanted to avoid contract coverage and consequent loss of his pension payments, it is not clear whether he fa- vored union representation. i i The evidence also estab- lishes Ron Wall spent a majority of his worktime driving Wall vehicles and, as he put it, prior to the sale of his stock, never gave union representation or any desire therefor any thought. With respect to Larry Wall and Schram, what little evidence was offered 12 established their duties were primarily office clerical, only occasion- ally requiring driving Wall vehicles, and there was no evidence concerning their union sentiments on 7 July. On 7 July both Ron and Larry Wall (as well as their sister, Kathy Ayers) were children of the principal owners of the Wall corporation, Phil and Margo Wall; in addition, Ron and Larry Wall were part-owners of the Wall corporation Owners are "employers," not employ- ees, 13 and the children of the principal owners of a closely held family corporation, such as the Wall corpo- ration, are not considered "employees" within the mean- ing of the Act, without regard to their job duties.14 It further appears the duties of Larry Wall and Schram were office clerical. On the basis of the foregoing, I find and conclude on 7 July a unit consisting of employees of the Wall corpora- tion classified as Oil & Solid Fuel Drivers, Semi & Truck & Trailer Drivers, Loaders & Oil Heater Men, Yardmen & Helpers, excluding office clerical employees, guards, and supervisors as defined in the Act, was appropriate for collective-bargaining purposes within the meaning of the Act, on 7 July the Union represented a majority of the employees of the Wall corporation within that unit, since 7 July the Union has been the designated exclusive collective-bargaining representative of the Wall employ- ees within that unit, and on 7 July Wall properly recog- 10 Correctly, because the Board considers a unit established over many years by mutual agreement between an employer and a union represent- ing its employees as appropriate Cauthorne Trucking, 256 NLRB 721 (1981), Indianapolis Mack Sales, 272 NLRB 690 (1984), Matlack, inc, 278 NLRB 246 (1986) 11 In view of his longstanding union membership and acceptance of the benefits derived therefrom 12 Neither Larry Wall nor Schram testified and what esidence was de- veloped suppports the finding, that I now make, that Schram continued to iun the South Port office after Wall purchased the South Port business and facilities (in February) through and until l November , when the South Port facilities were abandoned and Schram 's employment was ter- minated, and that Larry Wall worked in Wall's main office and only oc- casionally drove a Wall vehicle " Sec 2(2), National Labor Relations Act 14 Sec 2(3), National Labor Relations Act, Marion Center Supply, 277 NLRB 262 (1985), Campbell-Harris Electric, 263 NLRB 1143 (1982), Cerro Motor Sales, 201 NLRB 918 (1973), Scandia, 167 NLRB 623 (1967) Also see NLRB v Action Automotive, 469 U S 490 (1985) nized the Union as the designated majority representative of its employees within that unit '5 2. Wall's obligations following the change in corporate control and alleged violation Following the Wall family's sale of their corporate stock and the assumption of corporate control by APP's designees, despite their knowledge the Union was the ex- clusive representative of a unit of the corpoi ation's em- ployees and the rates of pay, wages, hours, and working conditions of the unit employees were governed by an unexpired contract between the corporation and the Union, without prior notice to or bargaining with the Union, those designees terminated the two unit employ- ees who were union supporters and the senior employees within the unit (Arnold and Christenson) while continu- ing in the employ of the corporation the two unit em- ployees whose union support either was undetermined or neutral and who were junior unit employees (Willett and Ron Wall), 16 hired a replacement driver (Games) and in- stituted rates of pay, wages, hours, and working condi- tions substantially lower than those set out in the unex- pired contract. Wall contends it was under no duty to recognize or bargain with the Union and comply with the terms of the unexpired contract following the change in corporate control and operations and therefore was lawfully enti- tled to unilaterally institute the personnel and wage changes it effected on 1 November. The Board, however, stated it "has consistently held that mere change of stock ownership does not absolve a continuing corporation of responsibility under the Act" 17 and the District of Columbia Circuit pointed out in a recent case, "The essential inquiry is whether operations, as they impinge on union members, remain essentially the same after the transfer of ownership "18 In this case there was no hiatus in operations at the time the stock sale changed operational control of the corporation, the corporation continued in the same busi- ness in the same area delivering the same products to the same customers (with a few additions to the customer list), using the same equipment and facilities (except for the concentration of the facilities at the Wall property and abandonment of the South Port facility), and em- ploying workers within the unit utilizing the same skills. Thus the operations of the Wall corporation, as they im- pinged on unit employees, remained essentially the same after the change in corporate stock ownership and con- trol as they were before the change. In a similar case (though involving a contract enforce- ment action rather than an unfair labor practice litiga- tion), the Third Circuit held- 15 A status that is presumed to continue for the term of a contract con- taining a recognition clause 16 Following his and his parents' sale of their stock in the corporation, Ron Wall, as a driver, became properly includable within the unit 17 Miller Trucking Service, 176 NLRB 556, 556 (1969), affil in relevant part 445 F 2d 927 (10th Cir 1971) Also see Gateway Service Co, 209 NLRB 1166, 1167 (1974) 11 Food & Commercial Workers Local 152 (Spencer Foods) v NLRB, 768 F 2d 1463, 1467 (1985) 1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Where . . there is a simple purchase of stock, fol- lowed only by . some minor changes in business operations, the policies of our national labor law weigh heavily in favor of a doctrine that preserves intact the employees' bargained-for rights and duties. 19 I therefore find and conclude the Wall corporation was under a continuing duty to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees following the 25 Septem- ber stock sale and 1 November transfer of corporate con- trol and to notify and bargain with the Union before ef- fecting changes in the employment, rates of pay, hours, or working conditions of its union-represented employ- ees, including changes in the rates of pay, wages, hours, and working conditions set out in the unexpired contract between Wall and the Union. I therefore further find Wall violated Sections 8(a)(1) and (5) and 8(d) of the Act by ceasing after 1 November to recognize the Union as the exclusive collective-bar- gaining representative of its employees within the unit covered by the 1985-1988 contract between Wall and the Union, ceasing after 1 November to comply with the terms of that contract, and after 1 November, without prior notice to or bargaining with the Union, terminating and replacing union supporters Arnold and Christenson in disregard of their seniority status under that contract and in disregard of that contract instituting new and changed rates of pay, hours, and working conditions of its unit employees .20 The fact the Wall corporation became a wholly owned subsidiary corporation of another corporation conducting similar operations in other areas (APP) is not controlling when, as here, the corporate structure and operations continued unchanged, particularly with respect to the unit employees at and immediately following the change in the Wall corporation stock ownership and control.21 The same reasoning applies to APP's alleged future plans for the Wall corporation following the change in stock ownership and control. With respect to Wall's argument concerning the Union's failure to demand continued recognition and contract observance following the 1 November change in control of the Wall corporation, the Union's filing of the charges that led to this proceeding constituted the Union's assertion of continued exclusive representative status and demand for continued recognition and con- tract observance. In any event, an effective union waiver of its recognition and other contract rights (which is what in effect Wall is asserting) must be unequivocal and clearly expressed, neither of which is true here 19 Teamsters Local 249 v Bills' Trucking, 493 F 2d 956, 964 (1974) 20 See the cases cited heretofore in this section, EPE, Inc, 284 NLRB 191 (1987), Topinka's Country House, 235 NLRB 72 (1978), enfd 624 F 2d 770 (6th Cir 1980), and Western Boot & Shoe, 205 NLRB 999 (1973) Also see Miami Foundry Corp., 252 NLRB 2 (1980), enfd 682 F 2d 587 (6th Cir 1982) 21 Food & Commercial Workers Local 152 v NLRB, supra, NLRB v Miami Foundry Corp, and EPE. Inc, ibid CONCLUSIONS OF LAW 1. At all pertinent times the Wall corporation was an employer engaged in commerce in a business affecting commerce, and the Union was a labor organization within the meaning of the Act 2 At all pertinent times all employees of the Wall cor- poration classified as Oil & Solid Fuel Drivers, Semi & Truck & Trailer Drivers, Loaders & Oil Heater Men, Yardmen & Helpers, excluding office clerical employees, guards, and supervisors as defined in the Act, constituted an appropriate unit for collective-bargaining purposes within the meaning of the Act. 3. On 7 July the Union represented a majority of the Wall corporation employees within the aforesaid unit. 4 Since 7 July the Union has been, and has been rec- ognized by the Wall corporation as, the exclusive collec- tive-bargaining representative of the Wall corporation's employees within the aforesaid unit. 5. The Wall corporation violated Section 8(a)(1) and (5) and Section 8(d) of the Act on and after 1 November by ceasing to recognize and bargain with the Union as the exclusive representative of its employees within the aforesaid unit, by ceasing after 1 November to comply with the terms of the collective-bargaining agreement ex- ecuted by the Wall corporation and the Union on 7 July for a period extending from 1 November 1985 through I November 1988 by, without prior notice to or bargaining with the Union, terminating and replacing union support- ers Arnold and Christenson in disregard of their seniority status under that agreement, and by instituting new and changed rates of pay, wages, hours, and working condi- tions of employees within the aforesaid unit differing from those specified in the agreement. 6. The unfair labor practices just specified affected and affect interstate commerce as defined in the Act THE REMEDY In the course of the proceeding, it was established since the filing of the charges in this case by the Union, the Wall corporation has offered, and Arnold and Chris- tenson have accepted, reinstatement to their former posi- tions. The record does not reflect whether, since their reinstatement, Arnold and Christenson have been com- pensated in accordance with the provisions of the unex- pired agreement between the Wall corporation and the Union and whether their seniority and other rights and privileges under the unexpired Wall-Union agreement have also been restored and respected. I therefore rec- ommend the issuance of the standard remedy, i.e., that the Wall corporation be directed to offer Arnold and Christenson reinstatement to their former positions, with seniority and all other rights, benefits, and privileges and practices under the unexpired agreement restored, and made whole for any wage or benefit losses they may have suffered due to their unlawful terminations, calcu- lated in the manner set forth in F W. Woolworth Co., 90 NLRB 289 (1950), with interest on the sum or sums due computed in accordance with the formula set out in New Horizons for the Retarded, 283 NLRB 1173 (1987), and Isis Plumbing Co., 138 NLRB 716 (1962). Because deter- mination of the amounts due to the funds under the PHIL WALL & SONS DISTRIBUTING 1167 terms of the unexpired agreement on behalf of Arnold and Christensen, including penalties and interest on the sums due are more difficult, I recommend the amounts and interest due the funds be calculated at the compli- ance stage of this proceeding (see Merryweather Optical Co, 240 NLRB 1213 (1979)) With respect to the balance of the Wall corporation employees within the unit, I recommend the Wall corpo- ration be directed to also make them whole for any losses in wages, benefits, rights, and privileges they have suffered by virtue of the Wall corporation's failure to re- spect and observe the terms of the unexpired agreement between the Wall corporation and the Union, with the amounts due the employees and the funds determined in accordance with the methods and formulae just set forth. I also recommend the Wall corporation be directed to resume recognizing the Union as the exclusive collective- bargaining representative of its employees within the unit, to compensate its employees in accordance with the terms and conditions established under the unexpired agreement, and to observe and respect the terms and practices established under that agreement for the bal- ance of its term. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondent, Phillip Wall & Sons, Inc d/b/a Phil Wall & Sons Distributing, Olympia, Washington, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to recognize Teamsters Local 378 as the exclusive collective-bargaining representative of its employees performing work of its job classifica- tions titled Oil & Solid Fuel Drivers, Semi & Truck & Trailer Drivers, Loaders & Oil Heater Men, Yardmen & Helpers, excluding office clerical employees, guards, and supervisors as defined in the Act (b) Failing or refusing to honor and apply the terms and conditions of its current agreement with Local 378 (c) Terminating and replacing employees performing work within the aforesaid classifications without regard to their seniority standing under the terms of its agree- ment with Local 378 and/or on the basis of their mem- bership in and support of Local 378. (d) Instituting rates of pay, wages, hours, and condi- tions for employees performing work within the afore- said classifications differing from the rates of pay, wages, hours, working conditions, and practices specified in and prevailing under its current agreement with Local 378, failing prior notice to and agreement by Local 378 or, after the 1 November 1988 expiration of its current agreement with Local 378, either Local 378 agreement or impasse. (e) In any like or related manner interfering with, re- straining, 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) Resume recognizing Local 378 as the exclusive col- lective-bargaining representative of its employees per- forming work within its job classifications titled Oil & Solid Fuel Drivers, Semi & Truck & Trailer Drivers, Loaders & Oil Heater Men, Yardmen & Helpers, exclud- ing office clerical employees, guards, and supervisors as defined in the Act (b) Honor and apply all the terms and conditions of its current agreement with Local 378. (c) Reinstate Lowell Arnold and Stanley Christenson to their former positions and restore to them all the rights, benefits, and privileges they were and are entitled to under the 1985-1988 Wall corporation-Local 378 agreement and practices (d) Make Arnold, Christenson, and all other employees who performed and/or are performing work within the aforesaid classifications whole for any losses they suf- fered by virtue of the failure and/or refusal of the Wall corporation to honor and apply to them the terms of the aforesaid agreement, in the manner set out in the remedy section of this decision (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (f) Post at its facilities at Olympia, Washington, copies of the attached notice marked "Appendix."23 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 22 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 pur- poses 22 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 "