Dahl Fish Co.; Sea-Pac, Inc.; Blaine Protein, Inc.; B.P.I. International Sales, Inc.

DAHL FISH CO 413 Dahl Fish Company; Sea-Pac, Inc.; Blaine Protein, Inc.; B.P.I. International Sales, Inc.; and Kjell Dahl and United Food and Commercial Work- ers Union Local 44, Chartered by United Food and Commercial Workers International Union, AFL-CIO. Cases 19-CA-14460 and 19-CA- 15336 August 10, 1990 SUPPLEMENTAL DECISION AND ORDER CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 7, 1989, Administrative Law Judge Clifford H Anderson issued the attached supplemental decision 1 Thereafter, Respondents Blame Protein, Inc, Blame Protein International, Inc, and Kjell Dahl filed exceptions and a support- ing bnef 2 The General Counsel filed exceptions and a memorandum partly in support of the judge's decision and partly in support of the exceptions The Charging Party filed exceptions, a supporting brief, and an answenng brief Respondents Dahl Fish Company and Sea-Pac, Inc filed an answering bnef The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recom- mended Order 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents Dahl Fish Company, Sea-Pac, Inc , Blame Protein, Inc , B P I International Sales, Inc, Bellmgham, Wash- ington, their officers, agents, successors, and as- signs, and Kjell Dahl, an Individual, shall take the action set forth in the Order The Board's original Decision and Order is reported at 279 NLRB 1084 (1986) 2 Respondents Blame Protein, Inc , Blame Protein International, Inc, and Kjell Dahl also filed a reply brief to the General Counsel's memoran- dum supporting the judge's decision Pursuant to Sec 102 46(g) of the Board's Rules and Regulations, we have rejected this reply brief 'The General Counsel and the Charging Party Union have excepted to the judge's failure to award Interest, computed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987), on the Board's original Order requiring the Respondents to reimburse the Union for liti- gation expense incurred in defending against an unlawful retaliatory state court lawsuit In this case, however, the General Counsel and the Charg- ing Party have first raised the Issue of Interest at the compliance stage of proceedings, after the Board's ongmal Order has been enforced by the United States Court of Appeals for the D C Circuit In the absence of a timely request, we will not now modify the Order to Include interest Catherine M Roth, Esq , for the General Counsel Franklin L Dennis and William T Greeenheck, Esqs (Williams, Kastner & Gibbs), of Seattle, Washington, for Dahl Fish Company and Sea-Pac, Inc David C Stewart, Esq (0/es, Morrison & Rinker), of Seat- tle, Washington, for Blame Protein, Inc , B P I Inter- national Sales, Inc , and Kjell Dahl James H Webster and Lynn D Weir, Esqs (Webster, Mrak & Blumberg), of Seattle, Washington, for the Charging Party SUPPLEMENTAL DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge On May 23, 1986, in a Decision and Order reported at 279 NLRB 1084 (1986), the Board affirmed the Decem- ber 30, 1983 decision and September 30, 1985 supplemen- tal decision of Administrative Law Judge Joan Wieder and adopted her recommended Orders On March 31, 1987, the United States Court of Appeals for the District of Columbia entered a judgment enforcing in full the Board's Order Judge Wieder's December 30, 1983 decision, as adopt- ed by the Board and court, stated, inter alma, at 279 NLRB 1106-1107 THE REMEDY Having found that Dahl Fish Company and Sea- Pac, Inc engaged in certain unfair labor practices, I recommend that they be ordered to cease and desist therefrom, and that certain affirmative action be taken to effectuate the policies of the Act It is also recommended that Dahl Fish Company and Sea- Pac, Inc be ordered to reinstate on request by United Food and Commercial Workers Union Local 44, or the individual employees herein found to be discnmmatees, the terms of employment exist- ing before the placing of all the unit employees on call in the above-described bargaining unit in Bel- lingham, Washington, and to make those employees whole for any loss of wages and other benefits which would have accrued to them under those terms of employment, with interest to be paid on amounts owing and to be computed in the manner prescribed in F W Woolworth Go, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977), plus interest as set forth in Isis Plumbing Co, 138 NLRB 716 (1962) ORDER The Respondents, Sea-Pac, Inc, and Dahl Fish Company, Bellingham, Washington, their officers, agents, successors, and assigns shall 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to the employees who were placed on call on December 299 NLRB No 57 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18, 1981, to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, with- out prejudice to their seniority or other rights and privileges, and for all employees, including those re- called, make them whole for any loss of pay suf- fered by reason of Respondents' actions in the manner set forth in the remedy section of this deci- sion Judge Wieder's September 30, 1985 Supplemental De- cision in Case 19-15336, as adopted by the Board and court, stated, inter aim, at 279 NLRB 1112 The Respondents, Sea-Pac, Inc , and Dahl Fish Company, Bellingham, Washington, their officers, agents, successors and assigns, shall 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Reimburse the Union, United Food and Com- mercial Workers Union Local 44, its officers, agents, and representatives for all legal expenses in- curred in the defense of its State court action in Sea-Pac, Inc v United Food and Commercial Work- ers Local Union 44, 103 Wn 2d 800, 699 P 2d 217 (1985) Following the court's Order a dispute arose concerning the amounts due under the order and the identity of the parties liable for those amounts Accordingly, the Re- gional Director for Region 19 of the National Labor Re- lations Board on October 18, 1988, issued a backpay specification and notice of hearing 1 I heard the matter in trial in Bellingham, Washington, on April 25 and May 2, 3, and 4, 1989 Thereafter, all parties submitted post- hearing bnefs Findings and Conclusions Based on the record as a whole, including my observa- tion of the witnesses and their demeanor, as well as the excellent postheanng briefs of the parties, I make the fol- lowing findings and conclusions I STATEMENT OF THE ISSUES As a result of the commendable efforts of counsel, what was a potentially long and complex litigation was greatly simplified Thus, there is no dispute concerning the arithmetic calculations of the backpay specification or the amounts which would be due and owing once the issues of the breadth of the order and the parties subject to it are determined The case resolved itself into a con- sideration of four separate issues A What Parties are Liable Under the Order The General Counsel has alleged and the Charging Party agrees that three additional respondents are liable ' The backpay specification, as amended, by its terms includes only the period ending December 31, 1988 Subsequent liability and obligations were explicitly excluded by the General Counsel from the litigation with the reservation that disputes concerning those matters could be the sub- ject of separate backpay pleadings and proceedings for the amounts due under the backpay specification Blame Protein, Inc , B P I International Sales, Inc , both corporations, and Kjell Dahl, an individual (Additional Respondents) Additional Respondents contested these allegations denying any liability whatsoever under the backpay specification Substantial evidence was adduced regarding the rela- tionship between and among Respondents during rele- vant periods with an emphasis on financial transactions and accounting This issue turns both on evaluation of differing characterizations of the interrelations of Re- spondents and on the legal standards for extending liabil- ity under the order to additional entities and individuals not named in the original proceedings B What Employees are Covered by the Make-Whole Provisions of the Order The General Counsel has pled and argued with the concurrence of the Charging Party that the make-whole order in the judge's decision in Case 19-CA-14460 in- cludes two classes of employees first, the employees of Dahl Fish who should have done the work wrongfully transferred and, second, the employees of Sea-Pac, Inc who did the work at issue but who received less than union contract wages and benefits Dahl Fish Company and Sea-Pac, Inc (Original Re- spondents and with the Additional Respondents, collec- tively, as Respondents), with the concurrence of Addi- tional Respondents, concede the correctness of the amended backpay specification as to the Dahl Fish em- ployees found by the Board to have been wrongfully denied the work Respondents strongly deny that the judge's Orders extend any relief to the Sea-Pac employ- ees who did the work in question at less than the Dahl Fish contract rate Respondents concede that, were the Sea-Pac employ- ees covered by the order, the backpay specification's cal- culations as to those employees would be correct The arithmetic aspects of the backpay specifications are therefore not in issue Rather, Respondents' argument is that the backpay specification is not supported by the un- derlying order and therefore must be dismissed as to the Sea-Pac employees The parties, in effect, based their ar- guments solely on the wording of the underlying Deci- sion and Order and the guiding law on the question C What Litigation Expenses are Covered by the Order in Case 19-CA-15336 The Charging Party argues that the reimbursement order respecting the Charging Party's legal expenses in- curred in defense of the state court action, quoted supra, also includes the Charging Party's expenses in litigating the Issues raised by the state court lawsuit before the Board in Case 19-CA-14460 The General Counsel and Respondents argue the Board's remedy did not include such additional relief The parties stipulated to both the litigation costs re- coverable under the narrower reading of the order and the additional costs incurred by the Charging Party which would be recoverable should the Charging Party's argument in this regard prevail This issue therefore does DAHL FISH CO 415 not involve any dispute concerning the determination of legal expenses incurred under either view of the order but rather turns on an analysis of the underlying Order and applicable law to determine which costs are recover- able under it D Does the Order in Case 19-CA-15336 Include Interest The General Counsel argues and the Charging Party agrees that the sum due the Charging Party under the make-whole provisions of the litigation cost reimburse- ment order in Case 19-CA-15336 include interest Re- spondents assert that the Judge's order does not include interest on litigation expenses and therefore interest may not properly be awarded This issue turns on an analysis of the underlying Supplemental Decision and Order and the decisional law respecting the awarding of interest in litigation reimbursement cases II ADDITIONAL RESPONDENTS' LIABILITY A The History and Background of the Parties2 Bellmgham and Blame, Washington, are nearby coastal communities close to the Canadian border Kiell Dahl and his family have been engaged in various aspects of the commercial fishing industry in the area since the 1930s At all relevant times Dahl s was the president, chief executive officer, member of the board of directors, and sole shareholder of the corporations at issue herein as well as other companies during the period including Anderson Sea Foods and R M Sloan See Judge Wieder's decision for greater detail Sea-Pac, Inc was incorporated under the laws of the State of Washington in 1947 and has been engaged in processing of fish including salmon At all relevant times the corporation has maintained its good ,standmg under state law During relevant times Sea-Pac, Inc leased space and equipment from first Dahl Fish Company and later Blame Protein, Inc On November 7, 1988, Sea-Pac filed a Chapter 11 bankruptcy petition in the U S Bank- ruptcy Court of the Western District of Washington 4 Dahl Fish Company was incorporated under the laws of the State of Washington in 1959 and has been engaged in processing of fish including bottom fish At all rele- vant times the corporation has maintained its good stand- ing under state law On November 7, 1988, Dahl Fish Company filed a Chapter 11 bankruptcy petition in the U S Bankruptcy Court of the Western District of Wash- ington 5 Blame Protein, Inc was incorporated under the laws of the State of Washington in May 1973 and has been en- gaged in the production and sale of fish fertilizer and poultry feed produced from fish byproducts It com- menced its operations with the purchase of Dahl Fish 2 The following is based on the undisputed testimony at the hearing, the findings of Judge Wieder in her decision and the corporate records introduced at the hearing 3 Deteriorating health forced Dahl to cease active participation and management of his business ventures in September 1988 4 In re Sea-Pac Inc. Case 88-08335 5 In re Dahl Fish Co, Case 88-08334 Company's (Blame Protein, Inc 's Minutes of its First Meeting of Directors and Incorporators) equipment, machinery, supplies, parts and in- ventory of product, together with all other personal property, used in connection with its rendering plant operation in Blame, Washington, including leasehold improvements and leases and the transfer of water and air pollution permits The purchase included the issuance of an interest bearing note to Dahl Fish Company and assumption of all Dahl Fish Company's liabilities in connection with the lease and use permit At all relevant times Blame Protein, Inc has maintained its good standing under state law Blame Protein International Sales, Inc (BPIS and with Blame Protein, Inc , collectively, as Corporate Addition- al Respondents and collectively with Blame Protein, Inc and Original Respondents as Corporate Respondents, and with all other Respondents, collectively, as Respondents) was incorporated under the laws of the State of Wash- mgton in July 1973 for the purpose of engaging in export sales of fish and fish byproducts The corporation has at all times been wholly owned by Blame Protein, In and exclusively marketed the fish byproducts of Original Re- spondents In September 1973 BPIS filed with the United States Internal Revenue Service an irrevocable election to be treated as a domestic international sales corporation (DISC) under Section 992 of the Internal Revenue Code BPIS has at all relevant times maintained its good stand- ing under state law B The Relationship Between Respondents The Corporate Respondents have at all times main- tained their registered addresses and business offices in common facilities in the Dahl Fish Company plant on West Chestnut in Bellingham At that location payroll, accounting, and administration have at all times been un- dertaken on behalf of all Respondents by employees of Original Respondents 6 Respondents' books of account were reviewed for the relevant period by the General Counsel's expert witness who testified at some length re- garding them Uncontradicted testimony indicated that an acceptable system of books of account was maintained by Corporate Respondents and, at least generally, entries were made in a regular fashion with no evidence of sub- terfuge or fraud in the maintenance of accounts Despite the separateness of books and records, howev- er, it was clear that Corporate Respondents engaged in, if accurately monitored and recorded, extensive and on- going transfers of funds, credits, debits, and other trans- actions including joint loans or loans with joint and sev- eral liability for payment on behalf of all Respondents Costs of matenals acquired or service obtained by on entity for the benefit of one or more additional entities were not always alocated to the other Respondents' ac- 6 Apparently throughout the relevant period, Kiel Dahl did not use a separate checking account for his personal financial affairs Rather Re- spondents paid his bills and, in some cases, the personal bills of family members crediting and debiting various accounts set up to track his per- sonal balances and transactions 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD counts All Respondents maintained bank accounts in a single bank and telephonic fund transfers were frequently made between and among the various corporate and per- sonal accounts as financial exigencies required In some cases one Respondent would or assume the obligation of another Respondents were jointly and severally liable for the loans made by the bank and for a significant loan by the Small Business Administration Interest on inter- Corporate Respondent balances was not calculated or paid before 1983 and not consistently paid thereafter Subsequently advances were made to Kjell Dahl by other Respondents without interest being assessed Con- versely, Dahl did not receive interest at those times when he enjoyed favorable balances with other Respond- ents Certain significant financial transactions were litigated The first involved real estate referred to as the Sandy Point house In 1986 Kjell Dahl sold the property to Dahl Fish Company for approximately $180,000—the amount owed by Dahl to the other Respondents on loans for building the home One year later Dahl Fish Compa- ny sold the property to a third party for some $70,000 less—a loss not fairly anticipated based on Bellingham area property values A property owned by Blame Pro- tein was sold in 1982 to a third party The payment of the third party for the downpayment and later payments on the purchase money were not credited to Kjell Dahl's accounts until just before the property was repossessed in 1986 In September 1986, Dahl fish Company sold equip- ment to Blame ,Protein for approximately $296,000, the price being equal to and paid by means of Blame Protec- tion's assumption of Dahl Fish's debts to BPIS and by cancellation of Dahl Fish Company's debts to Blame Protein Thereafter, Sea-Pac, Inc, which had been paying rent heretofore to Dahl Fish Company, paid an increased rent to Blame Protein, Inc A number of motor vehicles were maintained on the books of Corporate Respondents which were used by various members of the Dahl family Maintenance of records which would allow use of these vehicles to be claimed as business deductions did not occur and no allo- cation or declaration of benefit to the benefiting individ- uals was made Members of the Dahl family were paid salaries or wages for regular employment at times when, for at least one individual, the record suggests sporadic or at best irregular attendance at Respondents' worksites There was unchallenged testimony that employees of Corporate Respondents over the years tended to Dahl or his family members' residences and automobiles under- taking various maintenance, repair, and remodeling tasks while on Original Respondents' payroll—all without proper or consistent charging to Dahl's accounts C Position of the Parties The General Counsel and the Charging Party argue that the Corporate Respondents constitute a single em- ployer under Board doctrine Thus, in their view, Blame Protein and BPIS are jointly and severally liable for the obligations of Original Respondents under the Order quoted supra and the backpay specification Further, the General Counsel and the Charging Party urge that the corporate veil limiting liability to the Corporate Re- spondents should be pierced and Kjell Dahl also be held jointly and severally liable for the obligations under the Order and the backpay specification Additional Re- spondent's deny any liability accrues to any of them under the backpay specifications and further deny that they are properly subject to the backpay specification be- cause of the pending bankruptcy litigation involving Original Respondents and because Additional Respond- ents were not part of the original proceedings herein The arguments and theories litigated deserve separate treatment D Threshold Arguments Concerning Additional Respondents 1 The consequences of not including Additional Respondents in the original proceeding In Additional Respondents' answer the following af- firmative defenses were pleaded 3 Additional respondents affirmatively allege that being named additional respondents at this stage violates their constitutional rights to due proc- ess of law 4 Additional respondents affirmatively allege that the previous Board and Court Orders bar liti- gation against additional respondents under the doc- trine of res judicata 5 Additional respondents affirmatively allege te Board waived its right to sue the additional re- spondents when it failed to name them as parties in the original unfair labor practices proceedmg 6 Additional respondents affirmatively allege the Board is estopped from naming additional respond- ents as additional parties at this time 7 Additional respondents affirmatively alleged that any claim against additional respondents is barred by the Statute of Limitations or latches as untimely Additional Respondents' arguments here are not per- suasive As the General Counsel notes on brief, Board decisional law, with court approval, permits litigation of joint and several liability or previous unnamed parties in supplementary proceedings F di F Construction Co, 262 NLRB 735 (1982), Southern Envelope Co, 246 NLRB 423 (1979), Coast Delivery Service, 198 NLRB 1026 (1972), Riley Aeronautics Corp, 178 NLRB 495 (1969), NLRB v C C C Associates, 306 F 2d 534 (2d Cir 1962) Accord- ingly, Additional Respondents' noted affirmative de- fenses are without merit 2 The contention the Board lacks jurisdiction to assess liability In Additional Respondents' answer the following af- firmative defense was pleaded 8 Additional respondents affirmatively allege that determinations of "alter ego" for purposes of asserting "denvative liability" and/or similar con- cepts are properly the subject of the U S Bankrupt- DAHL FISH CO 417 cy Court, rather than the NLRB Accordingly, the Board has no jurisdiction to assess liability against additional respondents Additional Respondents argue on brief that the Gener- al Counsel is "challenging] the fairness of the consider- ation received by Dahl Fish Company and Sea-Pac, Inc in transactions involving Additional Respondents" Be- cause Original Respondents are in bankruptcy proceed- ings, argue Additional Respondents, such contentions should be made in the bankruptcy proceedings where the rights of all creditors of Original Respondents including the Board could be adjudicated Additional Respondents advance only a single case, NLRB v Martin Arsham Sewing Go, 882 F 2d, 216 (6th Cir 1989), corrected May 3, 1989, denying enf 287 NLRB 923 (1987) That case, however, involved a Board determination that an individual was liable for the obliga- tions of a bankrupt corporation only to the extent of cer- tain corporate property retained by him The Board did not hold the individual was an alter ego of or single em- ployer with the bankrupt nor had the General Counsel sought to make him jointly and severally liable for the backpay obligations of the bankrupt corporation beyond the value of the assets transferred In the instant case the General Counsel is advancing the transactions noted as evidence of single employer and/or alter ego status and in support of piercing the corporate veil theory, any one of which, if successful, imposes general joint and several liability rather than the limited asset value specific liability of Arsham See also the additional discussion of the limited liability theory and the Arsham case, infra, at section II,F,3 of this deci- sion Accordingly, I find Additional Respondents' cited case distinguishable Given the absence of other author- ity, the fact that Additional Respondents are not in bank- ruptcy and the cases cited above concerning the proprie- ty of litigating the status of Additional Respondents in the compliance stage of proceedings, I shall reject Addi- tional Respondents' affirmative defense E The Liability of Blame Protein, Inc and BPIS The General Counsel and the Charging Party argue that Blame Protein, Inc and BP/S should be regarded as a "single employer" with Original Respondents Such an argument and analysis was undertaken by Judge Wieder respecting Dahl Fish Company and Sea-Pac, Inc in her original decision The parties are well familiar with the necessary analysis The Board with court approval has long held that sep- arate business entities may be treated as a "single em- ployer" with joint and several liability for unfair labor practices in certain circumstances In Radio Union Local 1264 v Broadcast Service, 380 U S 255, 256 (1965) (per cunam) the Supreme Court noted the four controlling cntena as (1) interrelation of operations, (2) common management, (3) centralized control of labor relations and (4) common ownership No one factor is controlling nor need all factors be present to establish a single em- ployer relationship Burgess Construction, 227 NLRB 765 (1977), enfd 596 F 2d 378 (9th Cir 1979), cert denied 444 U S 940 (1979) As Judge Wieder stated in her deci- sion at 279 NLRB 1086-1087 Ultimately, single-employer status depends on all the circumstances of the case and is characterized by absence of an "arms length relationship found among umntegrated companies" Operating Engi- neers Local 627 v NLRB, 518 F 2d 1040, 1045-1046 (D C Or 1975), affd on this issue per cunam sub nom South Prairie Construction Co v Operating En- gineers Local 627, 425 U S 800 (1976), see NLRB v Don Burgess Construction Corp, 596 F 2d 378, 384 (9th Cir 1979), cert denied 444 U S 940 (1979) Given the guiding law the General Counsel argues on brief Kjell Dahl is the sole stockholder of all the cor- porations involved herein and, significantly, he has totally controlled the labor policies and other oper- ational aspects of such companies Further, all bookkeeping functions including payroll were per- formed by employees of Dahl Fish or Sea-Pac The financial interrelation of the companies has been fully detailed supra, including description of corpo- rate debt and expense payments among all corpora- tions, the regular transfer of funds among accounts at Northwest Commercial Bank, the use of a "con- trol" account, the so-called sale of Dahl Fish assets to Blame Protein, and the highly questionable pay- ment of rent to Blame Protein Given such an amal- gam of cumulative concrete factors, the instant record unmistakably reflects that a full and com- plete interrelation of operations existed between all involved entities The Charging Party notes on brief The fundamental inquiry is whether there exists overall control of critical matters at the policy level Emsing's Supermarket, Inc , 284 NLRB No 41 (1987) 131 LRRM 2296 (7th Cir April 17, 1989) Finally, where the evidence relating to common control of labor relations, common man- agement and common ownership is overwhelming, even if the interrelation of operations be deemed minimal, a finding of single employer is warranted Judge Wieder's decision applies a "single employer" analysis to Original Respondents That lengthy discus- sion, adopted by the Board and approved by the court, will not be repeated here To the extent the facts con- cerning Blame Protein, Inc and PBIS are the same, Judge Wieder's analysis applies here Thus, ownership of each corporation resided in Kjell Dahl The record is un- contradicted that Dahl as owner, president, chief execu- tive officer, and corporate director was active on behalf of each of his corporations, setting policy and retaining collective managerial authority As Judge Wieder's anal- ysis at 279 NLRB 1087 notes, such authority indicates ul- timate and effective control over all employees even if they were supervised by others Judge Wieder concluded at 279 NLRB 1087 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is thus found that there was a concomitance of control over labor policy Also, as the court found in Sakrete of Northern California v NLRB, 332 F 2d [907 (9th Cir 1964), cert denied 379 U S 961 (1965)] at 907, even if common management was found to obtain only at the top level, it does not "preclude application of the single employer con- cept" Interrelation of operations among the four corpora- tions was not in factual dispute Judge Wieder's analysis discusses the relationship between Original Respondents The basic commercial purposes of Corporate Respond- ents may be simply stated Original Respondents obtain and process whole fish into commercial fish and fish waste and parts Blame Protein, Inc processes the fish waste and parts into fish fertilizer and poultry feed BPIS is a DISC corporation created for the exclusive sale of these products Additional Respondents utilize the prod- ucts of Ongmal Respondents and Original Respondents utilize the services of Additional Respondents Corporate Respondents may be seen as a vertical integration of processes within the commercial fishing industry Additional Respondents evolved from Original Re- spondents Blame Protein was originally, quoting the corporate minutes, a "spin-off" of Dahl Fish Company's rendering plant PBIS was simply a wholly owned sub- sidiary of Blame Protein, Inc created a few months after Blame Protein, Inc as a DISC corporation eligible for desirable tax treatment under the tax code and, by neces- sity of the code, irrevocably dedicated to international sales Respondents also were closely related as Original Re- spondents experienced business difficulties When Dahl Fish Company sold the bulk of its operating equipment, it was to Blame Protein, Inc The transaction was con- cluded without the exchange of funds Rather, it was ac- complished by the forgiveness by Blame Protein of debt owed it by Dahl Fish and the assumption by Blame Pro- tein of debt owed by Dahl Fish to BPIS A consequence of the transaction was that Sea-Pac, which had previous- ly paid rent to Dahl Fish Company, now paid rent, at a newly set higher rate, to Blame Protein 7 It is clear that Blame Protein, Inc truckdnvers regu- larly visited Dahl Fish Company's facility to pick up products and simultaneously replenished their fuel tanks Uncontradicted testimony indicated that no accounting was made of such fuel provisions Further, Corporate Additional Respondents benefited from the centralized management and accounting performed by Original Re- spondents' employees but were not charged for the serv- ices Finally, Additional Respondents were fully in- volved in the common transfers, exchanges, and other transactions detailed supra which initially took place without provision of interest and involved frequent and somewhat convoluted transactions Given all the above, I have no difficulty in finding that the four Corporate Respondents constitute a single 7 The Board has recently reiterated that 'closing" transactions are rele- vant to single employer determinations Emsmg's Supermarket, 284 NLRB 302 (1987), enfd 872 F 2d 1279 (7th Or 1989) employer within the meaning of the cases cited, supra Counsel for Additional Respondents notes that the vari- ous transactions focused on by the General Counsel were recorded in books of account and therefore no impropri- ety occurred In Emsmg's Supermarket, supra, the Board reversed an administrative law judge who found a trans- action to be arm's length "because it was duly recorded on the books of each corporation" 284 NLRB at 303 The Board also noted at 303 "The judge's narrow reli- ance on the fact that the transfers of equipment and in- ventory were 'duly recorded on the books' is misplaced Form does not prevail over substance" Looking to the "substance" of the various acts of Respondents, it is clear that Corporate Respondents were operated by Kjell Dahl in a manner revealing not only a financial interdependency , but also a propensity on the part of [the owners] to operate the [separate entities] in such a manner that the exigencies of one would be met by the other This method of operat- ing shows less than an "arm's length relationship" [284 NLRB 302, 303] Given all the above, and on the basis of the record as a whole, I find the General Counsel has established the presence of all four factors set forth in the cases cited supra and has thus met her burden of showing that Cor- porate Respondents share sufficient identity to constitute a single employer Entities found to be single employers are jointly and severally liable for obligations under Board orders Accordingly, I shall hold Blame Protein, Inc and BPIS jointly and severally liable for the obliga- tions of Original Respondents under the Order and the backpay specification F The Personal Liability of Kjell Dahl The liability of Dahl for the obligations of Original Respondents may be considered under three theories argued by the parties They are discussed separately below 1 The Riley Aeronautics Corp theory of liability In Riley Aeronautics Corp, 178 NLRB 495, 501 (1969), Administrative Law Judge Samuel Singer, with Board approval, set forth a guiding summary of Board law re- garding when the Board will pierce the corporate veil "[E]asily the most distinctive attribute of the corpo- ration is its existence in the eye of the law as a legal entity and artificial personality distinct and separate from the stockholders and officers who compose it" Wormser, Disregard of the Corporate Fiction and Allied Corporation Problems, (Baker, Voorhis and Company, 1927), p 11 "The insulation of a stock- holder from the debts and obligations of his corpo- ration is the norm, not the exception" NLRB v Deena Artware, Inc , 361 U S 398, 402-403 everthe- less the corporate veil will be pierced whenever it is employed to perpetrate fraud, evade existing obliga- tions, or circumvent a statute Isaac Schieber, et a!, individually, and Allen Hat Co, 26 NLRB 937, 964 [(1940)], enfd 116 F 2d [281] (C A 8 [1940]) [foot- DAHL FISH CO 419 note omitted] Thus, in the field of labor relations, the courts and Board have looked beyond organiza- tional form where an individual or corporate em- ployer was no more than an alter ego or a "dis- guised continuance of the old employer" (Southport Petroleum v NLRB, 315 U S 100, 106), or was in active concert or participation in a scheme or plan of evasion (NLRB v Hopwood Retinning Go, 104 F 2d 302, 304 (C A 2)), or siphoning off assets for the purpose of rendering insolvent and frustrating a monetary obligation such as backpay (NLRB v Deena Artware, Inc , supra, 361 U S 398), or so inte- grated or intermingled his assets and affairs that "no distinct corporate lines are maintained" (Id at 403) See also Chef Nathan Sez Eat Here, 201 NLRB 343 (1973) The Board noted in Las Villas Produce, 279 NLRB 883 (1986), [T]he appropriate test for alter ego status is the same whether the alter ego issue arises in the origi- nal unfair labor practice proceeding or in subse- quent backpay proceedings The General Counsel and the Charging Party argue that Dahl did not observe the necessary separateness be- tween himself and his family and the Corporate Re- spondents nor did he maintain the corporations in proper form Respecting the latter argument the General Coun- sel notes the irregular pattern of corporate meetings as reflected in the corporate minutes introduced into evi- dence, the absence of corporate financial records for sub- stantial periods and the lack of arm's-length transactions between and among the corporations and Dahl and his family as described in part above The General Counsel notes that Corporate Respond- ents, primarily Original Respondents, advanced money to Dahl free of interest and paid various country club, auto- motive, and marine expenses for Dahl family members without evidence of a business purpose or accounting Further, notes the General Counsel, Corporate Respond- ents, again primarily Original Respondents, provided per- sonnel and perhaps materials to maintain, repair, or re- model homes and automobiles of the Dahl family, pro- vided regular paid employment for a family member who apparently was otherwise occupied and did not reg- ularly visit the facilities and supplied automobiles for Dahl family members The General Counsel emphasizes that Dahl drew a substantial income from Original Re- spondents dunng the times when they were experiencing the financial crisis which has led to their filing for bank- ruptcy and that Dahl continued to borrow substantial sums from Respondents for personal reasons during these difficult financial times for Original Respondents Finally, the General Counsel and the Charging Party argue that the pattern of transactions discussed supra be- tween and among the corporations and Dahl in conjunc- tion with the other irregularities noted above indicates that Dahl commmgled his and the corporations' assets in such a manner that it was not possible to determine with confidence the proper placement or tracking of finances Thus, the General Counsel notes that Original Respond- ents' books of record were used to make transactions in- volvmg the Dahl family difficult to trace, for example the deposit of corporate accounts receivable directly to Aagot Dahl's account and the routing of Dahl's personal expenses through Corporate Respondents' books Thus, the General Counsel argues that it was undisputed that Dahl in essence maintained no independent means of paying his personal expenses in relevant periods, yet the corporate books do not show that food expenses were either incurred or paid Since such expenses were surely incurred and were not paid by Dahl other than through the corporations, who paid them if not Corporate Re- spondents? And, if they were so paid, where in the cor- porate books are such purchases hidden and what else might also be hidden there? Counsel for Additional Respondents emphasizes that Corporate Respondents are corporations in good stand- ing in the State of Washington They have separate books and records in which have been recorded all the transactions between and among Respondents Counsel for Additional Respondents challenges the General Counsel's "commingling" assertions arguing that where transactions are properly recorded and assets and obliga- tions are properly traceable within a financial accounting system, such as used by Respondents herein, no loss of separate identity of assets and obligations occurs and therefore no commingling in the technical sense of the word takes place Further, Additional Respondents' counsel notes that, to the extent that Dahl benefited from interest free loans or other transactions with Onginal Re- spondents, the payment of the obligations of Corporate Respondents by Dahl resulted in a net transfer of funds to Corporate Respondents and therefore Dahl received no net benefit under any interpretation of the transac- tions attacked by the General Counsel 2 The General Counsel's Ogle Protection Service, theory of liability The General Counsel argues on brief at 27-28 The Board has also felt justified in ignoring the cor- porate form in another line of cases flowing from Ogle Protection Service, 149 NLRB 545, 546 fn 1 (1964), enfd in pertinent part, 375 F 2d 497 (6th Cir 1967) The Board in that line of cases has reached "through" the corporate structure and as- sessed liability against individuals who (1) owned all the stock of the corporation, (2) personally controlled the corporation, (3) personally guaranteed company indebtedness, (4) personally funded the business, (5) controlled the daily affairs of the business in- cluding labor Relations, (7) solicited and procured business for the compa- ny, and (8) personally decided to end the company's ex- istence Although not all the above factors are present in each of the following cases, at least three factors are present in each one See Ski Craft Sales Corp, 237 NLRB 122 (1978), Carpet City Mechanical Go, Inc , 244 NLRB 1031 (1979), Campo Slacks, Inc , 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266 NLRB 492 (1983), Stafford's Restaurant, Inc , 271 NLRB 734 (1984), Workroom for Designers, Inc , 274 NLRB 840 No 83 (March 31, 1987), Edwin R O'Neill, 288 NLRB No 147 (May 31, 1988) Both the General Counsel and the Charging Party sug- gest that this latter theory of personal accountability is supported by Washington State law Thus, each cites the case of Grayson v Nordic Constr Co, 92 Wn 2d 548, 599 P 2d 1271 (1979), in which the Washington State Su- preme Court stated at 554 "If a corporate officer partici- pates in wrongful conduct or with knowledge approves of the conduct, then the officer, as well as the corpora- tion is liable for the penalties" See also Culinary Workers v Gateway Cafe, 91 Wn 2d 353, 588 P 2d 1334 (1979) and Ralph Williams' North West Chrysler Plymouth, 87 Wn 2d 298, 553 P 2d 423 (1976) Counsel for Additional Respondents argues that the leading Board cases concerning piercing the corporate veil, Chef Nathan Sez Eat Here, 201 NLRB 343 (1973), Contra Packing Co, 268 NLRB 193 (1983), and Riley Aeronautics Corp, 178 NLRB 495 (1969), each involved owners and active managers who controlled their corpo- rations and who participated in unfair labor practices yet no personal liability was found 3 The F & W Oldsmobile, theory of liability Individuals who receive corporate assets, even before the issuance of the original Board Order in a case, may be liable for the obligations of the corporate respondent to the extent of the distributions received F & W Olds- mobile, 272 NLRB 1150 (1984), and Concrete Mfg Co, 262 NLRB 727 (1982) (distnbution after Board Order) Additional Respondents argue, however, that such a theory is inappropriate here where the Original Respond- ents are in bankruptcy citing NLRB v Martin Arsham Sewing Co, 882 F 2d 216 (6th Cir 1989), corrected May 3, 1989), denying enf 287 NLRB 923 (1987) 4 Analysis and conclusions Having considered the arguments of the parties, the governing cases and the record as a whole, I conclude that Kjell Dahl should be held jointly and severally liable for the obligations of Original Respondents under the Board and court's Order for the following reasons a The F & W Oldsmobile theory is not ripe for decision Regarding the limited liability theory under F & W Oldsmobile, supra, the critical fact is that the General Counsel did not advance this theory of liability either at the hearing or on brief or in the backpay specification Therefore, I do not find it at issue As counsel for Addi- tional Respondents has pointed out, the Original Re- spondents are in bankruptcy and the Bankruptcy Court may be used for the litigation of issues regarding improp- er distribution of a bankrupt's assets The United States Court of Appeals decision in Martin Arsham, as well as the Board decisions leading up to that case, make it clear the question of whether the Board's compliance stage is a proper forum for such litigation turns on the specific circumstances of each case The application of the doc- trines reflected in the series of Arsham cases and the other court and Board decisions is not always a simple task In the instant case the General Counsel is not ad- vancing such a claim Accordingly, I do not consider the matter ripe for resolution If such issues arise later, a dif- ferent proceeding will resolve the conflict Given all the above, I do not find that Kjell Dahl has limited liability for Original Respondents' obligations under the doctrines set forth in F & W Oldsmobile b The Ogle Protection Service theory will be considered as part of the Riley Aeronautics analysts In agreement with Additional Respondents, I do not find the General Counsel's Ogle Protection Service, supra, theory of liability for corporate officers to apply inde- pendent of the doctrines of Riley Aeronautics, supra Thus in Contra Packing Co, supra, the Board in discuss- ing the teachings of Chef Nathan Sez Eat Here, supra, and Riley Aeronautics, supra, held that ownership, con- trol and participation in or approval of unfair labor prac- tices, standing alone, without evidence that the individ- ual was the disguised continuance of the corporation, that the individual dissipated the assets of the corpora- tion, that the individual intermingled personal and corpo- rate affairs or that the individual attempted to evade the backpay liability, is not enough to create personal liabil- ity for the corporation's obligations A close reading of the cases cited by the General Counsel in support of her argument under Ogle Protection Services, see quoted portion of brief, supra, reveals that with few exceptions each case involved a finding of an alter ego or single employer relationship between the corporations and the individual(s) held liable Indeed in Stafford's Restaurant, 271 NLRB 734 fn 1 (1984), the Board panel majority noted that the individual's liability in that case "flows from" the alter ego finding The Gen- eral Counsel's cited case, Workroom for Designers, 274 NLRB 840 (1985), may be the exception that proves the rule In Workroom for Designers the Board found that the corporate form was maintained but on the "unique facts of this case," i e conduct continuing after an injunction under Section 10(j) of the Act had issued and where the individual at the trial announced a plan to prevent any backpay being paid, the Board found that naming the in- dividual as a respondent liable under the Order would ef- fectuate the purposes and policies of the Act It must be conceded that the General Counsel's cited case, Ski Craft Sales Corp, 237 NLRB 122 (1978) is not so easily distin- guished I am not persuaded, however, that a separate and independent theory of liability of individuals for cor- porate obligations is established by such a case however Although I have rejected the argument that Kjell Dahl may be held liable for the obligations of Original Respondents simply by virtue of his exclusive ownership of Original Respondents, his substantial day-to-day con- trol over them, his participation in the unfair labor prac- tices and his responsibility for the decisions to conclude the business operations of Original Respondents, I do not find these facts irrelevant to the propriety of piercing the DAHL FISH CO 421 corporate veil generally and have considered them, infra, in evaluating Dahl's liability under Riley Aeronautics c Kjell Dahl's liability under Riley Aeronautics Corp As in the real world generally, there is much in the record of the affairs of Respondents which is neither cer- tain nor precise Additional Respondents and the General Counsel each seek to charactenze as purely one way or another what was often a muddled or intermediate state of affairs Additional Respondents emphasize that corpo- rate records were properly maintained by each entity The General Counsel notes the large gaps in corporate minutes of meetings in the submitted records and notes that for years at a time some of Corporate Respondents did not keep financial records So, too, the arguments concerning comminglmg of assets and transactions involve different characterizations of essentially undisputed transactions There is no dispute that with regularity moneys were transferred to and from Respondents, joint obligations were incurred and paid off by various entities and transfers of credits and debits between and among Respondents were made Ad- ditional Respondents argue that where proper records tracking such transactions exist, commingling or inter- mingling of assets may not be said to occur The General Counsel disputes this claim The General Counsel notes further however, as described supra, that Respondents' bookkeeping system was also manipulated in an irregular manner so that it was in fact difficult to insure that all the various credits and debits involving Mr Dahl's per- sonal finances were in fact separately tracked and moni- tored within Corporate Respondents' books of record— especially since some are either missing or were never kept There is no dispute that corporate funds were expend- ed for corporate employees who worked on the Dahl family residences and automobiles without proper ac- counting or even recordation as such It is also undis- puted that club memberships, automotive expenses, and the provision of corporate automobiles and perhaps boats were provided to Dahl and his family without either ac- counting or justification as a business expense At least with respect to Dahl's stepson, there was evidence that a family member received regular wages over the years for times when he was only sporadically present at the plant and when he was also employed as a full-time student Additional Respondents argue on brief that there is no evidence that this working relationship was "unreason- able" To the contrary, I find the General Counsel raised sufficient questions concerning the stepson's actual ef- forts on behalf of Respondents that it was incumbent on Respondents to adduce affirmative evidence that in fact the wages were paid for work actually performed Re- spondents having failed to meet their burden of going forward on this aspect of the case, I find that substantial wages were paid to at least one Dahl family member for work not in fact performed The corporate minutes note that Original Respondents suffered ongoing and substantial losses commencing at least in the year 1979 and continuing through the unfair labor practices and thereafter Ultimately, the Original Respondents filed for bankruptcy Yet, during the years of substantial losses Dahl received an annual salary of $100,000 and drew regular and substantial advances for his personal affairs including the building of a new home Although the corporate minutes of December 12, 1979, provide such advances should bear an interest rate of 8 percent per annum, interest was not in fact paid by Dahl at relevant times The above-noted conduct of Respondents as well as the entire record in this proceeding which includes the decision and supplemental decision of Judge Wieder makes it clear that Additional Respondents' attempts to charactenze the relationship between Dahl and Corpo- rate Respondents as separate, independent, and arm's length must fail The corporations were not operated in a purely separate way, records were irregularly kept; and transactions were not handled in a fashion preserving the arm's-length relationship Nor were the corporations managed in such a way as to make it likely that they could remain solvent and meet their monetary obliga- tions Certain benefits to the Dahl family, such as the supplying of personnel to repair and maintain homes and automobiles, the provision of club memberships, automo- biles and, for at least one individual, a regular substantial and unearned wage were accomplished off the books— that is in a manner not discoverable by examination of the records or without specific accounting as a benefit to the family members in question or to Dahl Finally, over the relevant period, the salary allotted Dahl remained substantial and without diminution despite regular and substantial corporate losses and despite the not wildly unreasonable expectation that the obligations resulting from the unfair labor practices committed in 1982 and litigated in 1983 and thereafter would ultimately have to be paid I find based on the above that Dahl had at relevant times integrated and intermingled his assets and affairs with Original Respondents to such a degree that the dis- tinction in law between the corporations and Kjell Dahl, an individual, should be disregarded I further find that the total of Dahl's salary, unpaid interest, and other ben- efits provided by Original Respondents to Dahl and his family members was of such an amount under the condi- tions of corporate losses prevailing at relevant times that the assets of Original Respondents were unreasonably re- duced with a foreseeable consequence of rendering Original Respondents insolvent and frustrating a mone- tary obligation such as backpay under the instant back- pay specification In Air Vac Industries, 282 NLRB 703 (1987), the Board approved the decision of Judge Raymond Green who held that under Riley Aeronautics Corp, supra, individ- uals who were provided with club memberships, automo- biles for personal use, sizeable cash disbursements, and who "utilized their various corporations as a private bank, feeling free to commingle their own personal assets and liabilities along with corporate assets and debts" (282 NLRB 711) should be held jointly and severally liable for the obligations arising under the supplemental deci- sion The Air Vac Industries case involved stronger facts and a more overreaching individual The Issue as to Dahl is 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not so easily decided. Dahl and Corporate Respondents have had a long history in the Washington State com- mercial fishing industry. The record concerning Re- spondents under Dahl's control is not one of rape and pillage. Nor is it, however, one of conscientious mainte- nance of separation between corporations and Dahl or between the corporate finances and the finances of Dahl and his family. On balance, using the analysis set forth in Riley Aeronautics, supra, including the factors discussed above under the General Counsel's Ogle Protection Serv- ice, supra, theory, .and noting that piercing the corporate veil is not to be undertaken lightly, I find the instant case goes beyond the norm wherein individuals are not held liable for corporate obligations. The instant case merits this exceptional treatment because of the accumulation of factors noted above by which Kjell Dahl and his agents diminished and finally destroyed the separation of Origi- nal Respondents from the Dahl family's private finances and affairs. Given this finding I shall hold Kjell Dahl jointly and severally liable for the obligations of Original Respondents found herein. III. THE ORDERS' APPLICATION TO SEA-PAC EMPLOYEES A. The Board's Decision and Order Judge Wieder's decision found that the Charging Party represented the employees of Dahl Fish Company in the following appropriate unit: All employees employed by Respondent Dahl Fish Company at its Bellingham, Washington facility en- gaged in production, wholesale, retail, canning, packaging, freezing, salting, curing, or any other form of handling fresh or frozen fish or seafood, and truckdriver production employees, but exclud- ing guards and supervisors as defined in the Act. Grossly simplifying the complex set of circumstances set forth in the judge's decisions, the Original Respond- ents transferred work done by Dahl Fish Company unit employees under union contract terms and conditions of employment to employees of Sea-Pac, Inc. under non- union terms and conditions of employment with a result- ing loss of work and layoff of Dahl Fish Company unit employees. This conduct was found .by the judge, the Board, and the court to violate Section 8(a)(1), (3), and (5) of the Act. The Board adopted the judge's Orders without modifi- cation. In affirming the judge's conclusions, the Board noted at 279 NLRB 1084 fn. 3: Thus, in light of the judge's single employer find- ing, the Respondent's actions, i.e., the layoff of Dahl's union employees and the transfer of unit work to Sea-Pac's nonunion employees, amounted to a transfer of work from one group of the Re- spondent's employees to. another. Inasmuch as the Respondent has proffered no reason for its layoff and transfer other than labor costs, the decision clearly did not amount to a change in the scope, di- rection or nature of the business and was a manda- tory subject of bargaining. Accordingly, the Re- spondent's unilateral implementation of that decision constituted a violation of Sec. 8(a)(5). Although she specifically found the Original Respond- ents to be a single employer, Judge Wieder did not find that the Sea-Pac employees who did the transferred work were part of the Dahl Fish Company bargaining unit represented by the Charging Party. She noted at 279 NLRB 1088: "The conclusion that there is a single em- ployer does not require a finding that there is only one unit."8 Rather, Judge Wieder found that the Dahl Fish unit has coexisted with the Sea-Pac employees for some time and that the Charging Party was aware of these cir- cumstances at relevant times. Further, it does not appear that the General Counsel or any other party sought a unit finding other than the one made by the Judge and adopted by the Board. The Judge's decision contained the following language in its remedy and order sections and notice language at pp. 1106-1108: THE REMEDY Having found that Dahl Fish Company and Sea- Pac, Inc. engaged in certain unfair labor practices, I recommend that they be ordered to cease and desist therefrom, and that certain affirmative action be taken to effectuate the policies of the Act. It is also recommended that Dahl Fish Company and Sea- Pac, Inc. be ordered to reinstate on request by United Food and Commercial Workers' Union Local 44, or the individual employees herein found to be discriminatees, the terms of employment exist- ing before the placing of all the unit employees on call in the above described bargaining unit in Bel- lingham, Washington, and to make those employees whole for any losses of wages and other benefits which would have accrued to them under those terms of employment, with interest to be paid on amounts owing and to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); and Florida Steel Corp., 231 NLRB 651 (1977); plus interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962). As for those employees who did not get an op- portunity to indicate a desire to be rehired or may have been deterred from doing so by Respondent's illegal conduct, it will be recommended that Re- spondent offer these employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights •and privileges. Because the record does not identify those employees, this matter is to be determined at the compliance stage of this proceeding. On these findings of fact and conclusions of law, and on the entire record I issue the following rec- ommended: [footnote omitted] 8 Judge Wieder, at her Conclusions of Law 3, specifically limited her .unit inclusion to Dahl Fish Company employees. The ambiguous dupli- cate unit finding at Conclusion of Law 11 is inconsistent with the remain- der of the decision and is apparently inadvertent. DAHL FISH CO 423 4rt.‘ ORDER The Respondents, Sea-Pac, Inc and Dahl Fish Company, Bellingham, Washington, their officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Laying off employees because they refused midterm contract modifications and replacing those employees with nonunion employees and/or trans- ferring unit work to nonunion facilities 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to the employees who were placed on call on December 18, 1981, to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, with- out prejudice to their seniority or other rights and privileges, and for all employees, including those re- called, make them whole for any loss of pay suf- fered by reason of Respondent's actions in the manner set forth in the remedy section of this deci- sion The Judge's notice to employees ordered posted by Dahl Fish Company as part of the remedy states, in part WE WILL NOT decide, without the consent of the Union which represents all our fish company em- ployees to transfer any of our processing oper- ations from our Bellingham, Washington facility to Sea-Pac's facilities or use Sea-Pac or other nonunit employees [emphasis added] to perform barganung unit work WE WILL bargain collectively with the Union with respect to the decision to transfer certain proc- essing operations, such as the processing of dogfish and salmon, to Sea-Pac, Inc facilities or Sea-Pac, Inc employees or other nonunit employees [Em- phasis added] WE WILL offer reinstatement with backpay and interest to all employees who were laid off on De- cember 18, 1981 WE WILL make whole our employees in the above- described unit [emphasis added] by paying all contri- butions as required in the collective-bargaining agreement that expired April 1, 1982, to the extent such contributions have not been made or that the employees have not otherwise been made whole for expenses or vacation or other credits and continue to make such payments until we negotiate in good faith with the Union to a new agreement or to an impasse We shall include reimbursements for any employees who contributed themselves to the main- tenance of health and welfare coverage and vaca- tion benefits after we unlawfully ceased contribut- ing B The Positions and Arguments of the Parties The Dahl Fish Company employees who lost work and therefore. wages and benefits are clearly included in the make-whole Order Indeed, all parties not only stipu- late to their inclusion, they also accept the General Counsel's amended backpay specification figures with re- spect to them The Sea-Pac employees who did the work wrongfully taken from the Dahl Fish Company employ- ees are the subject of the dispute concerning the reach of the employee make-whole Order In one sense the Sea- Pac employees received work which they were not enti- tled to and therefore were benefited rather than harmed by the unfair labor practices found in the original deci- sion in Case 19-CA-14460 Were the Sea-Pac employees doing this work compensated at the union contract rate, as the Dahl Fish Company employees would have been had they done the work, superior wages and benefits would have been received In this sense the Sea-Pac em- ployees received less and were harmed Were the make- whole Order, quoted supra, applied to the Sea-Pac em- ployees as the General Counsel contends, the contract wages and benefits, as liquidated in the General Coun- sel's calculations which were stipulated by the parties to be correct, would be due them The General Counsel with the agreement of the Charging Party contends that the language of the Deci- sion and Order in Case 19-CA-14460 includes the Sea- Pac employees (referred to at the trial as the "claim- ants") expressly by its terms Further, the General Coun- sel and the Charging Party argue such a remedy is a tra- ditional one for the violation found Original Respond- ents with the agreement of the Additional Respondents argue directly to the contrary first, that the order may not be fairly read as including the claimants and, second, that the Board's substantive law expressly denies recov- ery to employees in similar circumstances The General Counsel notes that the judge specifically found that employees doing the work in question after December 18, 1981, 1 e, Sea-Pac employees, were not paid contract wages and benefits in violation of Section 8(a)(1) and (5) of the Act The General Counsel further notes that the Order at paragraph 2(a), quoted in full supra, specifically addresses itself to "all employees" in directing a make-whole Order Original Respondents' argue that the General Counsel's position that paragraph 2(a) of the Order includes employees other than those Dahl Fish employees denied work "totally misconstrues paragraph 2 a, the purpose of which is the ordering of full reinstatement and backpay to the discrmunatees, namely, `employees who were placed on call on Decem- .ber 18, 1981 " In support of their argument Original Re- spondents note that, the first paragraph of the remedy section of the decision states that Respondents are direct- ed to reinstate the laid-off employees and make only "those" employees whole for their losses Counsel for the General Counsel argues on brief that the remedy she advances with respect to the Sea-Pac employees is a "common remedy" in Board cases involv- ing violations of Section 8(a)(3) and Section 8(b)(2) of the Act and is also used in 8(a)(5) cases She notes such a remedy was directed m Unbelievable Fashions, 286 NLRB No 78 (Oct 26, 1987) (not reported in Bound volume) Original Respondents, in a scholarly analysis of the case law, point out that recent Board decisions involving 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD remedies for work transfers turn on the question of the breadth of the bargaining unit Thus, argues Original Re- spondents, where the employees who lost the work and the employees who did the work improperly transferred are found to be in the same bargaining unit, the contract covering the employees who lost the work is applied to all employees including the employees who did the work Thus, in such a case the General Counsel's pro- posed remedy might be appropriate Only in such specif- ic circumstances argues Original Respondents are the employees who fortuitously were assigned the work at issue made whole citing, Burgess Construction, 596 F 2d 378 (9th Cir 1978), enfg 227 NLRB 765 (1977) Where, however, the two groups of employees are not in the same unit, Original Respondents argue, the Board's make-whole remedy is limited to the employees who lost work citing A-1 Fire Protection, 273 NLRB 964 (1984), enfd sub nom Road Sprinkler Fitters Local 669 v NLRB, 789 F 2d 9 (D C Cir 1986) C Analysis and Conclusions I have considered the able arguments of counsel as well as the case law and the language of the decision and order itself in reaching my decision in this aspect of the case The language of the Order insofar as it obtains here is not free of at least arguable ambiguity To the extent ambiguity exists in the meaning of the Order the remain- der of the Decision and Order is relevant and useful to resolve such ambiguity Similarly examination of the decisional law respecting remedies is of value in assisting in interpretation of the Order Thus the cases are to be considered only for the light they may shed on the meaning of the instant Order rather than for any hold- ings on what a remedy in this type of case should have been It must be emphasized that the goal in the compli- ance stage of an unfair labor practice proceeding is not to determine what the remedy should have been or should now be directed in the case Rather the goal in the compliance stage is to apply what has already been decided, a process narrowly limited to determining what the ordered relief in the original Decision and Order means and how it may be implemented Administrative law judges are strictly limited in compliance cases, unless specifically noted by the terms of the original order, to such a limited role A necessary consequence of this limit is that only the Board or higher authority may change the terms of the Order Accordingly, should any party wish a different remedy irrespective of however com- manding the case law and the equities, that remedy must be sought from the Board and/or higher reviewing au- thority and not from an administrative law judge in a compliance action Respecting the case law on remedy cited by the par- ties, I am persuaded by the citation and argument of the Original Respondents that recent Board cases make it clear a single, overall collective-bargaining unit must be found before a make-whole remedy is directed to em- ployees who were the beneficiaries of illegally trans- ferred union contract work The General Counsel's cited case is distinguishable because on the facts of the cited case work was not transferred between two groups of employees Since it is clear that Judge Wieder's decision did not make a unit finding which included the Sea-Pac employees, under Board law the appropriate remedy in this case would not include the additional relief for Sea- Pac employees suggested by the General Counsel and the Charging Party Turning to the Board's Decision and Order itself, I have considered the arguments of the parties on the proper interpretation and construction to be put on the language of the Order as well as the language of the De- cision and Order itself I conclude the order was not in- tended to and does not include the Sea-Pac employees in its compass Thus, I find only the Dahl Fish Company employees, about whom there is no dispute, are covered by the order and the Sea-Pac, Inc employees or claim- ants are not covered I find that the Decision and Order taken as a whole make it clear that Judge Wieder intend- ed to give relief only to unit employees and that Sea- Pac, Inc employees were not in that unit This is per- haps best illustrated by the underlined language of the notice quoted above which makes it clear that (1) only Dahl Fish employees are in the represented unit and (2) only "employees in the above described unit" will be made whole In agreement with Original Respondents, I do not accept the construction advanced by the General Counsel that the language of the Order unambiguously includes other than unit employees in its scope Having reached this conclusion, I shall limit my directed relief to the backpay specification sums agreed on between the parties only as to the Dahl Fish employees also known as the "discnmmatees" and shall dismiss the backpay specification as to the Sea-Pac employees also known as "claimants IV THE APPLICABILITY OF THE LITIGATION REIMBURSEMENT ORDER A The Judge's Supplemental Decision and Order Judge Wieder's September 30, 1985 supplemental deci- sion in Case 19-CA-15336 was adopted by the Board and court without modification In it Judge Wieder stated as follows at 279 NLRB 1112 CONCLUSIONS OF LAW 3 By filing an unmeritorious and retributive state lawsuit for damages in the Superior Court of the State of Washington in and for King County, Re- spondent has violated Section 8(a)(1) of the Act THE REMEDY Having found that Respondents Sea-Pac, Inc and Dahl Fish Company have engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain af- firmative action necessary to effectuate the policies of the Act Respondents shall be ordered to cease from these unfair labor practices In addition, in order to place DAHL FISH CO 425 the Union in the position it would have been absent this unfair labor practice, Respondent Sea- Pac, Inc and Respondent Dahl Fish Company shall be or- dered to make the Union whole for all legal ex- penses incurred in the defense of that lawsuit Bill Johnson's Restaurant v NLRB, [461] U S 731 (1983) On these findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended [footnote omitted] ORDER The Respondents, Sea-Pac, Inc and Dahl Fish Company, Bellingham, Washington, their officers, agents, successors, and assigns, shall 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Reimburse the Union for all legal ex- penses incurred in the defense of its State court action in Sea-Pac, Inc i) United Food and Commer- cial Workers Local Union 44, 103 Wn 2d 800, 699 P 2d 217 (1985) B Positions and Argument of the Parties The Charging Party argued at the hearing and on brief that it was entitled under the Order to reimbursement of the legal expenses it incurred in connection with the liti- gation of Case 19-CA-14460 which it contends were necessary for its defense of the state court action The Charging Party asserts it is not seeking to modify or broaden the outstanding Order Rather, it contends the order is "sufficiently broad to permit reimbursement to the Union of its legal fees in the underlying unfair labor practice proceeding in Case 19-CA-14460" The Charging Party notes that the state court action brought against it alleged that the Charging Party's amendment to its charge in Case 19-CA-14460 "tortious- ly interfered with the employer's business expectations" On brief the Charging Party noted at page 7 One of the defenses asserted by the Union to the state action was its First Amendment privilege to file the amended charge in Case 19-CA-14460 To prevail on that defense, the Union was required to refute the employer's claim that the charge was un- meritorious See Bill Johnson's Restaurants v NLRB, 461 U S 731 (1983) It thus became prudent for the Union to intervene and participate in the unfair labor practice proceeding in Case 19-CA-14460 in support of its amended charge The Charging Party notes that it is not seeking reim- bursement for its legal expenses in connection with Case 19-CA-15336 and that the amount of expenses incurred, independent of issues of liability, was stipulated by the parties The General Counsel and Respondents opposed the contentions of the Charging Party The General Counsel simply supports the expense amounts alleged in the back- pay specification and admitted by Respondents which are for the expenses narrowly incurred in the state court action itself Original Respondents opposed the Charging Party's position on brief arguing the order binds all par- ties, is specific in its terms and does not include reim- bursement for expenses incurred in collateral litigation Finally, Original Respondents challenge the contention of the Charging Party that its effort in Case 19-CA- 14460 were necessitated by the state court action assert- ing that the Charging Party's statutory responsibility to its membership and the employees it represents required it to take the action it did 9 C Analysis and Conclusions While the Charging Party eschews the suggestion it is seeking to expand the Order's scope herein, it offers no citation of authority that a litigation reimbursement remedy may be expanded in the fashion advanced or that such a remedy has been explicitly directed in other cases The Order involved herein, quoted in full supra, is spe- cific and limited Had Judge Wieder, the Board or the court an intention to include the costs incurred in the litigation of Case 19-CA-14460 in the reimbursement order, it would have been simple to have done so Had any party sought such a remedy in the unfair labor prac- tice portion of these proceedings, the record would surely reflect that fact Rather, it would seem, the Charging Party is trying for the first time in the compli- ance stage of the proceedings to expand a conventional reimbursement order in an unprecedented way An administrative law judge is circumscribed in ex- panding, narrowing, or otherwise modifying Board law during the unfair labor practice stage of litigation In compliance proceedings, the judge is even more strictly charged with interpreting only the terms of the Order This would seem particularly true where the Order has been enforced by a United States circuit court of Ap- peals Questions of what should have been or could have been ordered to remedy the violations found must defer to the smgle task of applying what has been ordered in the underlying proceeding Because this is so, I need not evaluate the arguments made by the Charging Party re- specting the "prudence" of its participation in Case 19- CA-14460 given the state lawsuit filed against it How- ever necessary that participation was and however ap- propriate the remedy the Charging Party now seeks would have been, a fair reading of the Order does not allow reimburement of costs incurred in other than the state court action This being so I shall not award addi- tional expenses If the Charging Party desires a broaden- ing of the Order to encompass the additional relief sought, the Board, not its administrative law judge, should be consulted 9 Respondent also challenged the Charging Party's standing to contest the terms of the backpay specification The Charging Party's cited case, Pipeline Local 38, 268 NLRB 167, 175 fn 19 (1983), enfd as modified 748 F 2d 1001 (5th Cif 1984), cert denied 470 U S 1085 (1985), is persuasive to the contrary The Charging Party's argument is properly before me 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD V THE QUESTION OF INTEREST UNDER THE REIMBURSEMENT ORDER A The Order and the Positron of the Parties As quoted supra, the Order in Case 19-CA-15336 di- rected reimbursement of legal expenses incurred by the Charging Party in the state court suit Interest on the liti- gation expenses was neither provided nor discussed in any portion of Judge Wieder's decisions or thereafter by the Board or court The Order provides interest and case authority for the provision of interest to employees as part of the make-whole language addressed to employ- ees It is silent regarding the payment of interest on the Charging Party's legal expenses The Charging Party seeks interest on awarded legal expenses The Charging Party's argument may be sum- marized thusly Board decisional law allows for interest on backpay and other monetary remedies The reim- bursement of legal expenses is such an "other monetary remedy" Board cases, including Florida Steel Corp, 231 NLRB 651 (1977), and Isis Plumbing Co, 138 NLRB 716 (1962), note that provision of Interest produces a "more equitable result" and encourages "more prompt compli- ance with Board Orders without placing a significant ad- ditional burden on the wrongdoer," 231 NLRB 651 The Board remains concerned with selection of a just interest rate New Horizons for the Retarded, 283 NLRB 1173 (1987) The Charging Party argues further that, while the in- stant order does not direct interest, the remedy section notes In addition, in order to place the Union in the posi- tion it would have been absent this unfair labor prac- tice [emphasis added], Respondent Sea-Pac, Inc and Dahl Fish Company shall be ordered to make the Union whole for all legal expenses incurred in the defenses of that lawsuit Bill Johnson's Restaurants [v NLRB, 461 U S 731 (1983)] The substantial passage of time since the expenses in- volved here were incurred makes any relief without in- terest essentially illusory Inclusion of interest simply harmonizes with Board policy in other areas and brings a necessary consistency to the enforcement of the Act The General Counsel limits her discussion of the issue on brief to the following at fn 4 at page 3 Counsel for the General Counsel does assert that in- terest is owed on the award of attorney fees Inter- est is the standard remedy provided by the Board and no circumstance exists which should preclude the award of interest on the attorney fee award Original Respondents oppose the inclusion of interest on the award applying the same argument and analysis ad- vanced in opposition to the Charging Party's request for recovery of legal expenses incurred in the litigation of Case 19-CA-14460 as described supra B Analysis and Conclusions The unfair labor practice committed by an employer who files a state suit lacking a reasonable basis was dis- cussed by the Supreme Court in Bill Johnson's Restau- rants v NLRB, 461 US 731 (1983) The Court held that the final determination of such an unfair labor practices allegation must await the results of the state adjudication Concerning the issue of remedy, the Court noted at 461 U S 748 If a violation is found, the Board may order the employer to reimburse the employees whom he had wrongfully sued for their attorney's fees and other expenses It may also order any other proper relief that would effectuate the policies of the Act 29 U S C Sec 160(c) [footnotes omitted] The Court's holding, because of its requirement that the unfair labor practice case must await the outcome of the state court proceeding, inevitably makes cases of this type some of the oldest the Board processes This is so because the time neces- sary to conclude the state action is added to the normal processing time for cases before the Board No other category of cases must suffer such addi- tional structural delays 10 The remedy in these cases therefore must take into account the unusual and substantial delay between the incurring of legal expenses and the actual payment of any reimburse- ment remedy The Court's holding, quoted supra, further provides that attorney's fees and other ex- penses may be reimbursed and that other proper relief may be directed Such language in light of the special circumstances of these cases would seem to particularly call for an interest remedy The parties simply omitted to discuss the case law on the awarding of interest beyond the General Counsel's laconic footnote quoted supra The Board has directed litigation cost reimbursement in three types of cases where employers sue unions or employees," where 10 Consider the instant case The lawsuit was filed in 1982 and the final determination in state court occurred in 1985 The judge's decision in Case 19-CA-I4460 Issued in 1983, her supplemental decision which awaited the result in the state court action in Case 19-CA-15336 Issued in 1985 The Board's decision Issued in 1986 and the Court's order Issued in 1987 It may be fairly expected that any exceptions to the Instant decision will carry the final resolution of these matters at least well Into 1990 and, if the courts are Involved, possibly beyond Given the Interest rates applicable in Board cases in the years involved here, and even assuming the Charging Party receives reimbursement as of the date this supplemental decision Issues, the sum due the Charging Party would be substantially more than doubled if interest were included Additional delay further reduces the final effective recovery Put another way, if Interest is not Included, the ultimate award will be substantially less than half of what would have been awarded had Interest been includ- ed It is beyond controversy to state that reimbursement of costs so long before Incurred without interest is reimbursement of but a fraction of the costs in real dollars Incurred by the Charging Party Put another way, payment of a debt Incurred in 1982 dollars by an identical number of 1989 or later dollars, is not full recompense in the real world " See, e g, Bill Johnson's Restaurants, 290 NLRB 29 (1988), Phoenix Newspapers, 294 NLRB 47 (1989), American Pacific Concrete Pipe, 292 NLRB 1261 (1989), J W Rhodes Department Stores, 267 NLRB 381 (1983), United Credit Bureau of America, 242 NLRB 921 (1979) DAHL FISH CO 427 unions sue members" and where a defense to a Board unfair labor practice is deemed frivolous 15 Only a single Board decision has explicitly awarded interest on litiga- tion costs, Inland Boatmen's Union (Dillingham Tug), 276 NLRB 1261 (1985), which coincidentally issued on Sep- tember 30, 1985, the date of Judge Wieder's Order di- recting litigation cost reimbursement In Dillingham Tug, the judge without discussion or citation of authority awarded interest and the Board, also without discussion or citation, adopted the judge's remedy even including the interest provision in new notice language crafted by the Board No case has specifically denied an interest rate request Thus, the Board has apparently never dis- cussed the issue The arguments of the Charging Party and the policy considerations arising out of the unique need to hold cases alleging a "Bill Johnson's Restaurants" violation until the conclusion of state court litigation convinces me there is a special need to provide interest in such cases I find no authority however for the proposition that such provision may be made in the compliance stage of the proceedings where the controlling Decision and Order does not so provide As noted supra, the compliance stage is for the application of existing language not for the crafting of remedial provisions however needed to reach a just result Accordingly, albeit with some reluc- tance, I decline to award interest on the costs incurred by the Charging Party in the state court litigation I so find without reaching the question of the desirability of such a remedy and hold that the narrow fact that interest is not explicitly provided in the Decision and Order for reimbursement costs is controlling of the result here The Board has modified its formulas for calculation of compliance remedies even after the enforcement of the original case by the United States Court of Appeals and the issuance of a supplemental decision by an administra- tive law judge, see, e g, Ogle Protection Service, 183 NLRB 682 (1970) (modifying backpay formula) The Board may wish to specifically consider the question of interest on reimbursement remedies given the arguments of the parties It is, however, from the Board that such relief should be sought VI SUMMARY A Disputed Aspects of the Backpay Specification I have found that Additional Corporate Respondents and Original Respondents are a single employer under Board standards and therefore jointly and severally liable under the backpay specification I have also found that Kiel Dahl, an individual, is jointly and severally liable for the obligations of Original Respondents under the backpay specification Thus, I have found that Addition- al Respondents, and each of them, are liable for the moneys due under the portions of the backpay specifics- " See, e g, Laborers Northern California Council (Baker Ca), 275 NLRB 278 (1985), Commercial Workers Local 1439 (Allied Employers), 275 NLRB 995 (1985), Machinists District 94 (McDonnell Douglas), 283 NLRB 881 (1987) 13 See, e g, Wellman Industries, 248 NLRB 325 (1980), Epe Inc , 273 NLRB 1375 (1985), Springfield Transit Management, 281 NLRB 916 (1986) non found meritorious herein Accordingly, I shall rec- ommend that Additional Respondents be held jointly and severally liable along with Original Respondents for the amounts due under the portions of the backpay specifica- tion found meritorious I have found that Judge Wieder's make-whole Order applies only to Dahl Fish Company employees or discn- mmatees and does not apply to Sea-Pac employees or claimants I shall therefore dismiss all portions of the backpay specification seeking either direct payments to the claimants or contractually based payments to trusts based on the claimants' work hours I have found that the legal expenses reimbursement provisions of the Order in Case 19-CA-15336 did not in- clude expenses incurred other than in the state lawsuit itself I shall therefore decline to include in the relief di- rected here any reimbursement of the Charging Party's legal expenses incurred in the litigation of the onginal Board Case 19-CA-14460 I have also found that the Order does not include or support provision of interest on the reimbursed legal expenses I shall therefore dis- miss the General Counsel's request for such relief 14 B Undisputed Aspects Respondents orally entered into various stipulations of fact in effect amending their answers to the backpay specification to admit certain allegations Thus, Respond- ents admit all the allegations of the backpay specification as amended orally at the hearing concerning the net backpay and other payments due the discnmmatees and admit the sum alleged as the legal expenses of the Charg- ing Party incurred in the state court lawsuit Based on the pleadings, including the oral amendments to both the answers and the backpay specification made at the hear- ing, and in agreement with the parties, I sustain all ad- mitted elements of the backpay specification C Specification of Sums Owing Under the Backpay Specification 1 Specification in Case 19-CA-14460 Having determined that Respondents are liable for the sums alleged in the amended backpay specification and admitted in Respondents' amended answers concerning the 34 employees of Dahl Fish Company referred to during the proceedings as discrimmatees, I shall adopt that portion of the specification in its entirety in my rec- ommended supplemental Order 15 The following table summarizes those specifications without notation of the dates of earnings by quarter which are set forth in the amended backpay specification and are necessary for cal- culation of interest as required by the Order The backpay specification made no specific request for such relief but the General Counsel and the Charging Party both at the hearing and on bnef, as quoted supra, made it clear such relief was requested i6 light of the agreement of the parties respecting the calculations of the General Counsel as described herein, should an inconsistency or other error appear in the table, the calculations regarding the discrinuna- tees set forth in the final amended appendices to the backpay specifica- tion shall control over the enumerations continued here which are calcu- lated from the admitted backpay specification paragraphs and appendix entries Employee 316 4" Wages, Holidays, and Health and Welfare Vacation 516 6 Pension Line Totals 1 Line 2 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Adams, Carl Albans, Gary Atwood, Robert Bmgelli, Neva Brethauer, Linda Casebeer, Henry Feenstra, Tom Francisco, Dal Gerner, Ken Houser, James Kearney, Jean Keife, Michael Klein, John Knutsen, Lynn Markee, Verlon Marshall, Charlene McIntyre, Jim Miller, Kyoko Moena, Bud Morvee, William Pengo, William Perry, Marilyn Rife, Donald Rogers, Carol Rogers, Joseph Sand, Earl Seaman, Don Sooter, Robert Soter, Jim Sotinous, Demetnous Steffens, Mike Switzer, Harold Thorp, Debra Wentz, Kirt Total Column 3 Total Column 4 Total Column 5 Total Column 6 $5,847 9,373 5,356 8,813 8,718 6,022 38,938 49,520 17,846 33,401 50,541 13,446 60,507 37,455 61,562 47,863 11,750 51,666 22,438 13,258 20,257 26,344 33,692 4,562 20,790 67,310 44,342 20,962 36,046 33,905 50,642 61,976 23,009 25,633 $1,023,790 ._/ $3,455 1,604 1,357 2,221 2,345 1,234 9,749 9,996 10,489 5,306 10,409 9,625 8,268 10,366 10,489 10,366 6,046 10,242 9,749 1,851 7,821 5,923 9,749 1,974 3,455 10,489 7,404 9,872 10,366 9,379 9,748 10,489 6,787 9,996 $248,619 $1,355 730 394 1,017 1,172 508 6,358 7,327 7,387 2,063 6,286 4,001 3,095 7,217 8,515 7,723 2,268 6,657 5,018 705 3,349 3,827 5,260 713 2,329 8,474 5,065 4,432 6,140 5,165 4,129 7,585 3,688 5,181 $145,133 $10,657 11,707 7,107 12,051 12,235 7,764 55,045 66,843 35,722 40,770 67,236 27,072 71,870 55,038 80,566 65,952 20,064 68,565 37,205 15,814 31,427 36,094 48,701 7,249 26,574 86,273 56,811 35,266 52,552 48,449 64,519 80,050 33,484 40,810 $1,417,542 2 Specification in Case 19-CA-15336 Having determined Respondents are liable for the sum alleged in the amended backpay specification and admit- ted in Respondents' amended answers as due the Charg- ing Party under the Order in Case 19-CA-15336, I shall direct Respondents to pay the Charging Party $53,865 41 without interest 1 ° Column 3 entries for the discnminatees listed in Imes 1 through 34 of the table were calculated by adding the stipulated amounts for wages, holidays, and vacation for the years 1982-1987 set forth in backpay speci- fication appendices A-1 through A-34 to the same stipulated entries for 1988 from appendices D-1 through D-34 17 Column 4 entnes were calculated by adding the stipulated 1982- 1987 entnes in appendices A-I through 34 for health and welfare pay- ments to the stipulated entries for 1988 health and welfare payments in Appendices D-1 through D-34 78 Column 5 entries were calculated by taking the 1982-1987 revised pension entnes-which had been reduced 5 percent from earlier entries pursuant to the stipulation of the parties-Appendix E-1 and adding the stipulated 1988 entries from appendices D-I through D-34 On the basis of the foregoing, and pursuant to Section 10(c) of the Act, it is recommended that the Board issue the followmg i 9 ORDER2° It is ordered that Respondents Dahl Fish Company, Sea-Pac, Inc , Blame Protein, Inc , Blame Protein Inter- national Sales, Inc and Kjell Dahl, an individual, jointly and severally, their successors and assigns, shall forth- with pay the following individuals and entities the amounts listed and, where indicated, pay interest on the sums due calculated in the manner and in the amount set forth in the original Order here utilizing the quarterly 19 All motions inconsistent with this recommended Order not other- wise ruled on at the hearing or herein are denied 20 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" DAHL FISH CO 429 calculations set forth in the amended backpay specifica- tion and its appendices 1 The 34 individuals listed as discnmmatees in the amended backpay specification and listed in the table, supra, shall receive the sum of $1,023,790 allocated as in- dicated in the table at column 3 plus interest to be com- puted as set forth in the original Order here, less tax withholding required by state and Federal law 2 United Food and Commercial Workers Union Local 44, chartered by United Food and Commercial Workers International Union, AFL-CIO Said entity shall receive forthwith the sum of $53,865 41 without interest 3 Washington Meat Industry Pension Trust shall re- ceive the sum of $145,133 plus interest as set forth in the ongmal Order here These sums shall be identified as back pension contributions due under the collective-bar- gaining agreement for the discnminatees set forth m the amended backpay specification and also listed in the table at column 5 4 The Health and Welfare Contractual Trust existing under the agreement dated July 10, 1977, between Allied Employer, Inc and Amalgamated Meat Cutters and Butcher Workmen of North Amenca, AFL-CIO, Local Unions Nos 81, 151, 186, 247, 529, 553, 554, and 652 or their successors or assigns shall receive the sum of $248,619 plus interest as set forth in the ongmal Order here These sums shall be identified as the back health and welfare contnbutions plus Interest for the discnmma- tees set forth in the amended backpay specification and also listed m the table at column 4 IT IS FURTHER ORDERED that the following portions of the backpay specification shall be dismissed 1 The portion of the backpay specification alleging sums due the employees of Sea-Pac referred to as claim- ants at the trial and in the backpay specification, includ- ing all portions which utilize claimant hours to support payments to contractual funds or trusts 2 The portion of the backpay specification seeking in- terest on the amount paid to the Charging Party in reim- bursement for legal expenses in the state court litigation IT IS FURTHER ORDERED that the Charging Party's motion that its expenditures in litigation of Case 19-CA- 14460 be compensated under the litigation compensation order shall be denied