Dahl Fish Co.

National Labor Relations Board - Board Decisions

May 23, 1986

279 N.L.R.B. 1084 (N.L.R.B. 1986)

1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dahl Fish Company and Sea-Pac , Inc. and Dahl
Fish Company and United Food and Commer-
cial Workers Union Local 44, Chartered by
United Food and Commercial Workers Interna-
tional Union, AFL-CIO. Cases 19-CA-14460
and 19-CA-15336
23 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 30 December 1983 Administrative Law
Judge Joan Weeder issued the attached decision.'
The Respondents filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed responsive briefs. Subsequently, on 30
September 1985, the judge issued the attached sup-
plemental decision. The Respondents filed excep-
tions and a supporting brief, and the General Coun-
sel and the Charging Party filed responsive briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Orders.
I By order dated 6 April 1983, the complaints in these cases were con-
solidated for hearing In her decision , the judge recommended the com-
plaint in Case 19-CA-15336 be severed and stayed pending resolution by
the state courts of Respondent Sea-Pac's lawsuit against the Union With
the issuance of the supplemental decision in Case 19-CA-15336, we have
consolidated the cases for the purposes of this decision
2 The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
3 We agree with the judge 's conclusion that the parties had not
reached impasse when Respondent Dahl Fish unilaterally reduced bene-
fits and implemented its "last offer " In doing so , however, we rely on
her finding that the Respondent unlawfully refused to provide certain in-
formation to the Union and on the fact that the putative impasse was pre-
ceded by the unremedied unlawful layoffs and transfer of work We find
it unnecessary to reach the judge's finding that the parties had not ex-
hausted the prospect of reaching an agreement In addition , we find it
unecessary to rely on the judge 's discussion of Bob's Big Boy Restaurants,
264 NLRB 1369 (1982 ), in sec III,F,2(d) of her decision
In agreeing with the judge that the Respondent violated the Act, we
do not rely on her interpretation of the Supreme Court's opinion in First
National Corp Y NLRB, 452 U S 666 (1981) Nor do we rely on her dis-
cussion of Boeing Co, 230 NLRB 696 (1977), enf denied 581 F 2d 793
(9th Cir 1980), University of Chicago, 210 NLRB 190 ( 1974), enf denied
514 F 2d 942 (7th Cir 1975), or Los Angeles Marine Hardware Co, 235
NLRB 720 (1978), as these Board cases have been overruled , in whole or
in relevant part, by the Board's decision in Milwaukee Spring Division, 268
NLRB 601 (1984) (Milwaukee Spring II) Rather, in finding a violation of
Sec 8(a)(5), we rely on the analytical framework set forth in Otis Eleva-
tor Co, 269 NLRB 891 (1984) Thus, in light of the judge's single em-
ployer finding , the Respondent 's actions , i e, the layoff of Dahl's union
employees and the transfer of unit work to Sea-Pac's nonunion employ-
ORDER
The National Labor Relations Board adopts the
recommended Orders of the administrative law
judge and orders that the Respondents, Dahl Fish
Company and Sea-Pac, Inc., Bellingham , Washing-
ton, their officers, agents , successors, and assigns,
shall take the action set forth in the Orders.
ees, amounted to a transfer of work from one group of the Respondent'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 , direction , or nature of
the business and was a mandatory subject of bargaining Accordingly, the
Respondent 's unilateral implementation of that decision constituted a vio-
lation of Sec 8(a)(5)
Member Babson finds that , under any of the views expressed in Otis
Elevator Co, supra , the Respondent's conduct violated Sec 8(a)(5) of the
Act
Additionally , in finding a violation of Sec 8 (a)(3), we agree with the
judge's analysis except that , as noted above, we do not rely on the
judge's discussion of Los Angeles Marine Hardware Co, supra
Member Dennis agrees that Respondent Dahl Fish 's decision to lay off
its employees and transfer their work to Respondent Sea-Pac's nonunion
facility is a mandatory subject of bargaining In so finding, Member
Dennis relies on the analytical approach set forth in her concurrence in
Otis Elevator Co, supra Additionally , in her view , it is unnecessary to
reach the question whether the layoffs and work transfer violated Sec
8(a)(3), as well as Sec 8(a)(5), because the finding of an 8(a)(3) violation
would not affect the remedy
Catherine M Roth and Gail Streicker, Esqs., for the Gen-
eral Counsel
William G. Jeffery, Esq. (Dies, Morrison, Rinker, Stanislaw
& Ashbaugh), of Seattle , Washington , for the Respond-
ent
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge This case
was tried in Bellingham , Washington, on April 19, 20,
21, and 22 and July 6 and 7, 1983. The charge and first
amended charge in Case 19-CA-14460 were filed respec-
tively on April 1 and September 2, 1982, by United Food
and Commercial Workers Union Local 44, Chartered by
United Food and Commercial Workers International
Union, AFL-CIO (the Union). A complaint and amend-
ed complaint were issued May 28 and November 3, 1982,
against Dahl Fish Company (Dahl, Respondent, or the
Company). The amended complaint asserts that the
Company violated Section 8(a)(1) and (3) of the National
Labor Relations Act by: laying off or terminating unit
employees; replacing those employees with nonunion
employees; transferring work from Dahl's union facility
to nonunion facilities ; and, Section 8(a)(5) and (1) and
Section 8(d) of the Act (Act) by failing to continue the
current collective-bargaining agreement in full force and
effect, implementing its last offer without impasse and
failing to provide to the Union relevant information In
Case 19-CA-15336, the Union filed a charge on January
17, 1983, which was the basis for the issuance of a com-
plaint and notice of hearing dated April 6, 1983, alleging
that Dahl Fish Company and Sea-Pac, Inc. (Respondent
or Sea-Pac) constitute a single integrated business enter-
279 NLRB No. 150
DAHL FISH CO 1085
prise and a single employer within the meaning of the
Act and also asserts that Respondent Dahl and Respond-
ent Sea-Pac initiated and prosecuted a state court lawsuit
against the Union in violation of Section 8(a)(1) of the
Act. By order dated April 6, 1983, the two cases were
consolidated for hearing Respondent, in its replies to
these complaints, denies violating any sections of the
Act.
excess of $50,000 directly to points outside the State of
Washington. The complaint alleges and I find that Sea-
Pac and Dahl engage in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(3) and
(1) of the Act by laying employees off on December 18,
1981, after they refused to agree to a midterm contract
modification; whether Respondent replaced unit employ-
ees with nonunit employees about January 19, 1982;
whether Respondent transferred unit work to nonunion
facilities.
2. Whether Respondent violated Section 8(a)(1) and
(5) of the Act: by unilaterally reducing benefits about
January 1, 1982, during the term of the collective-bar-
gaining agreement ; by unilaterally reducing benefits after
the April 1, 1982 expiration date of the collective-bar-
gaining agreement in the absence of an impasse ; by uni-
laterally implementing offers about August 1, 1982, at
the time that there was no impasse in negotiations; and
by refusing to provide relevant information.
3. Whether Respondent violated Section 8(a)(1) of the
Act by interrogating employees regarding their union
sympathies; whether the filing of a civil lawsuit was with
the intent of retaliating against the employees for the ex-
ercise of rights protected by Section 7 of the Act; and,
whether Dahl and Sea-Pac are a single integrated busi-
ness enterprise and single employer within the meaning
of the Act.
4. The remedies to be imposed in the event the above-
asserted violations are found.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were timely filed
on behalf of the parties
On the entire record i of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent Dahl Fish Company, a Washington corpo-
ration with an office and place of business in Bellingham,
Washington, is engaged in the business of processing fish.
Respondent Sea-Pac, Inc., a Washington corporation
with an office and place of business in Bellingham,
Washington, is engaged in the business of processing fish.
During the past 12 months, in the course and conduct of
business operations, Dahl admits, and the record demon-
strates, that Dahl and Sea-Pac sold and shipped from the
Bellingham facility and other facilities products values in
' The unopposed motion by the General Counsel to correct the tran-
script is meritorious and is granted
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Dahl began operations in the 1930s and was incorpo-
rated in 1959. Dahl's principal and sole place of business
is at 601 W. Chestnut, Bellingham , Washington. At times
this facility is referred to in the transcript and briefs as
the Main plant. Sea-Pac, Inc. is a separate corporation.
Sea-Pac employees are not represented by a union. The
Union has been unsuccessful in organizing Sea-Pac. Sea-
Pac has two processing plants, one in Blaine , Washing-
ton, and the other in Bellingham , which is sometimes re-
ferred to as the Squalicum Fill plant. The corporate
records and all the bookkeeping material for Sea-Pac and
Dahl are maintained at 601 W Chestnut.
Kjell Dahl (K. Dahl) is the president and sole share-
holder of various companies including Dahl, Sea-Pac,
Blaine Protein, Anderson Seafoods, R.M Sloan, and
B.P.I International. K. Dahl is assisted by Sunny
Decker, who has been the office manager of both Dahl
and Sea-Pac for many years and has been secre-
tary/treasurer for both corporations for more than 12
years. The record is unclear about the exact dates
Decker served as office manager and secretary/treasurer
for both corporations. (See Tr. 69, 710.) She held these
positions at all times pertinent.
The Dahl Fish Company, as of December 1981, was
managed by Otto Rosenhall. Sea-Pac Squalicum Fill was
managed by Alec Buchan who is K. Dahl's stepson, and
Sea-Pac Blaine was managed by Frank Gicont. These
managers have authority to conduct the day-to-day oper-
ations of their respective plants. Sea-Pac and Dahl have
separate bank accounts, books, phones, and advertising.
However, there are cross-references. For example, in the
phone book there are cross-references between Sea-Pac
and Dahl, and the signs at the Main plant and Squalicum
Fill list both Sea-Pac and Dahl. (Tr. 544-547 and G.C.
Exhs. 39-42.)
K. Dahl testified that he is responsible for the Compa-
ny's negotiations with the Union, whereby wage rates
and other terms and conditions are set for Dahl employ-
ees. He is also responsible for setting the policy under
which Sea-Pac employees are paid and receive other
benefits. Dahl and the Union have a longstanding bar-
gaining history. The last collective-bargaining agreement
was effective for the period April 1, 1979, to April 1,
1982 The Union represents the following unit.
All employees in production, wholesale, retail, can-
ning , packaging, freezing, salting, curing, or any
other form of handling fresh or frozen fish or sea-
food, and truckdriver production employees em-
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed by Dahl Fish Company at 601 W. Chestnut
in Bellingham, Washington, but excluding supervi-
sors and guards as defined in the Act.
There is no issue raised questioning the appropriateness
of the unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. There is a
question of the scope of the unit's work, which is dis-
cussed later in this decision.
B. Corporate Structure: Relationships Between Sea-
Pac and Dahl
The General Counsel contends that Dahl and Sea-Pac
are "a single integrated business enterprise." At trial, the
General Counsel indicated that she would proceed on
the theory that Dahl and Sea-Pac are single integrated
enterprises and alter egos. As betokened in the pleadings,
the terms "single employer" and "alter ego" are often
confusing, and not used with great clarity or precision.
Respondent also addressed the issue as involving alter
ego status. This confusion in terms does not preclude
consideration of the allegation on the merits. See Food &
Commercial Workers Local 576 (R & F Grocers), 267
NLRB 891 (1983).
The Board noted the conjunction of alter ego and dis-
guised continuance in Hendricks-Miller Typographic Co.,
240 NLRB 1082, 1083 fn. 4 (1979):
The concept of "successorship" as considered by
the United States Supreme Court in N. L. R. B. v.
Burns International Security Services, Inc., et al., 406
U.S. 272 (1972), and its progeny, contemplates the
substitution of one employer for another, where the
predecessor employer either terminates his existence
or otherwise ceases to have any relationship to the
ongoing operations of the successor employer. Once
it has been found that this "break" between prede-
cessor and successor has occurred, the Board and
courts then look to other factors to see how wide
or narrow this disjunction is, and thus determine to
what extent the obligations of the predecessor de-
volve upon its successor. We have stated in Miami
Industrial Trucks, Inc. and Bobcat of Dayton, Inc.,
221 NLRB 1223, 1224 (1975), that the keystone in
determining successorship is whether there is a sub-
stantial continuity of the employing industry . . .
the Board looks to several factors [in this regard]
. . . these factors include whether there is a sub-
stantial continuity in operations, location, work
force, working conditions, supervision, machinery,
equipment, methods of production, product, and
services. Citing Georgetown Stainless Mfg. Corp., 198
NLRB 234 (1972). Having examined these factors,
the Board then decides whether or not the break
between the predecessor and the successor entities
can be bridged.
In this case, Dahl did not "either terminate its exist-
ence or otherwise cease to have any relationship to the
ongoing operations of the successor employer." Thus, in
this case a true alter ego relationship does not exist. It is
the application of these criteria that distinguish the con-
cept of alter ego from that of single employer, else why
are there the two concepts However, if the test of alter
ego status is found so flexible as not to bar application in
this case in which there was no termination of existence
or cessation in relation to the ongoing operation of the
successor employer, the Respondents would be alter
egos, as discussed below. Compare NLRB v. Campbell-
Harris Electric, 719 F.2d 292 (8th Cir 1983). See also
NLRB v. A. Bryant, Inc., 711 F.2d 543 (3d Cir. 1983)
Because this proceeding does not have a "disguised
continuance," it is found that the criteria for single em-
ployer are the most applicable. That these terms may
have been confused in their various usages during the
proceeding does not preclude consideration on the merits
for the matter has been fully and fairly tried. There is no
basis for finding prejudice. The complaint in Case 19-
CA-15336 was issued well before the commencement of
hearing and alleged that Sea-Pac and Dahl were a single
integrated business enterprise. The phrase "alter ego"
was not used. The parties have had ample opportunity to
prepare and present the evidence and there was no cur-
tailing of evidence based on a finding that either alter
ego or single employer was the applicable theory, and
thus no evidence was barred under either theory or con-
cept. Also, the potential applicability of these concepts is
inherent in matters alleged in the complaint in 19-CA-
14460. For example, Respondent's plant closure defense
requires resolution of the "single integrated enterprise"
questions. Los Angeles Marine Hardware Co., 235 NLRB
720 (1978). There is a plethora of evidence applicable to
both concepts. Accordingly, no prejudice has been
found. The evidence will be discussed separately regard-
ing each concept, alter ego and single employer See
Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st
Cir. 1981); NLRB v. Operating Engineers Local 925, 460
F.2d 589 (5th Cir. 1972); NLRB v. Duncan Foundry &
Machine Works, 435 F.2d 612 (7th Cir. 1970); NLRB v.
Atlas Linen & Industrial Supply, 322 F.2d 216 (6th Cir.
1963), cert. denied 376 U.S. 951 (1964); and NLRB v.
Complas Industries, 714 F.2d 279 (7th Cir. 1983).
Four criteria have been used to determine whether
separate entities constitute a single employer: interrela-
tion of operations, common management, centralized
control of labor relations, and common ownership. Radio
Union Television Broadcast Technicians Local 1264 v.
Broadcast Service, 380 U.S. 255, 256 (1965) (per curiam);
see also NLRB v. Browning-Ferris Industries, 691 F.2d
1117, 1121-1122 fn. 1 (3d Cir. 1982); Sakrete of Northern
California v. NLRB, supra, 332 F.2d at 905 fn.4 (9th Cir.
1964), cert. denied 379 U S 961 (1965); Parklane Hosiery
Co., 203 NLRB 597, 612 (1973); Arundel Corp., 252
NLRB 397, 399 (1980); Air-lac Industries, 259 NLRB
336 (1981). The Board finds no one factor controlling,2
although it has stressed the first three factors, particular-
ly centralized control of labor relations, for they show
"operational integration," Id.; see also NLRB v. Jordan
Bus Co., 380 F.2d 219, 222 (10th Cir. 1967); Parklane Ho-
siery Co., supra at 612. Ultimately, single-employer status
depends on all the circumstances of the case and is char-
2 Arundel Corp, supra, and Air-Vac Industries, supra
DAHL FISH CO. 1087
acterized by absence of an "arms length relationship
found among unintegrated companies ." Operating Engi-
neers Local 627 v. NLRB, 518 F.2d 1040, 1045-1046
(D.C. Cir. 1975), affd. on this issue per curiam sub nom.
South Prairie Construction Co. v. Operating Engineers
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). The evidence will be
analyzed within the context of the single-employer tests.
Respondent claims that Dahl and Sea -Pac are separate
operating companies , not single integrated entities. In
support of this position , Respondent argues Dahl is
solely a processor of bottom fish; Sea-Pac Squalicum Fill
primarily processes salmon and dogfish , and Sea-Pac
Blaine fillets bottom fish and shakes crab . It is uncontro-
verted that on those occasions Dahl had an overflow of
bottom fish, the excess was sent to Sea-Pac Blaine for
processing. There was no clear showing how the costs of
the transportation , purchase , unloading , reloading, or
other handling charges for these interchanges were treat-
ed in the respective companies ' accounts . Respondent
had a formula , but it was not shown to have been ap-
plied in the situations involving sending Dahl's overflow
to Sea-Pac Blaine. Also, according to K. Dahl, there
have been some interchanges of facilities and employees
between Sea-Pac and Dahl. K. Dahl stated that it was
his practice to put employees "where they were
needed ." (Tr 570.) This admitted interchange of employ-
ees and facilities belies independent , not integrated, oper-
ations.
Respondent also argues that each plant manager is to-
tally in charge of their respective operations , independ-
ently having authority to hire, fire, promote, resolve
grievances , and make appropriate salary adjustments. K.
Dahl admitted that he assigned all employees as he felt
they were needed; he set overall labor and operating
policies for all Sea-Pac employees ; he negotiated all col-
lective-bargaining agreements on behalf of Dahl, as well
as setting Dahl's overall operating policies , clearly indi-
cating that he retained collective managerial authority
over all employees who were immediately supervised by
the individual Dahl and Sea-Pac plant managers. 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 at 907, even if
common management was found to obtain only at the
top level, it does not "preclude application of the single
employer concept."
The Companies shared facilities. It is uncontested that
the skinning and knife -sharpening machines, which had
been housed at 601 W. Chestnut, the Dahl facility, were
transferred to a Sea-Pac plant without any evidence that
such a shift of housing was pursuant to written agree-
ment evincing financial or other accountability for such
changes of situs . During salmon season , Dahl employees
processed salmon at the Dahl facility when there was an
overflow from the Sea-Pac Squalicum Fill plant. They
occasionally cut dogfish, apparently also for Sea-Pac.
It is undisputed that the administrative employees, in-
cluding the employees who kept the books and per-
formed other administrative functions on behalf of Dahl
and Sea-Pac, were housed at 601 W. Chestnut. The facil-
ity at 601 W. Chestnut had a sign indicating that it was
the locus for the offices of both Dahl and Sea-Pac. The
Squalicum Fill plant had a sign on it that indicated that it
housed both Dahl and Sea-Pac . There was no written
agreement evincing this joint housing of administrative
functions was handled on the basis of an arms -length
dealing. There is no clear showing how these administra-
tive employees were paid, how their pay was computed,
whether there was any relationship to the amount they
were paid to the task performed for a particular compa-
ny or time spent for a particular company. The record
fails to show an allocation of overhead expenses or the
basis of such allocation for these administrative functions.
Thus , it cannot be found that they were administered in
accord with usually accepted business practices that
would be indicative of arms-length dealing.
K. Dahl is the sole shareholder and chief operating of-
ficer of both Sea-Pac and Dahl. Decker was the office
manager and secretary/treasurer of both Companies. The
bookkeeper kept the books for both companies. There
was no showing that Sea -Pac catered to a different
group of supplier and/or customers from Dahl. To the
contrary , there is a clear showing that supplies , such as
fish purchases, were distributed to both Sea-Pac and
Dahl for processing without strict adherence to the name
of the purchaser . For example , as noted elsewhere, when
Dahl had too much bottom fish to process, the overage
was sent to Sea-Pac Blaine . Also, Dahl had not pur-
chased any fish since the commencement of 1982 even
though it admittedly resumed operations around the first
of August 1982. Interchange of raw material , personnel,
and facilities were not all accomplished with strict arms-
length chargebacks ; only some fish processing was
shown to be treated on the same basis as some unaffili-
ated customers were charged for fish processing. As
noted above , the administrative personnel and common
use of facilities by the Sea-Pac and Dahl employees was
not shown to be dealt with at arms length or on a basis
comparable to the treatment accorded nonaffiliated com-
panies. It is therefore found that Dahl and Sea-Pac are a
single employer. J. M. Tanaka Construction, 249 NLRB
238 (1980).
As noted above , Dahl and Sea -Pac also meet the test
for alter ego status, which is whether the Companies
have substantial identity of corporate ownership, man-
agement , business purpose , operating equipment , custom-
ers, and supervision , which sets labor and operating poli-
cies for both companies . Crawford Door Sales Co., 226
NLRB 1144 (1976). K. Dahl has owned both companies
for many years and has admitted commonly managed
them. Compare NLRB v. Campbell-Harris Electric, 719
F.2d 292 (8th Cir 1983). See also NLRB v. Al Bryant,
Inc., 711 F 2d 543 (3d Cir. 1983). The office work for
Dahl and Sea -Pac is performed by the same employees.
The books are kept by the same person and both compa-
nies have the same office manager and secretary/-
treasurer. The Companies both process fish and there
was no showing of a difference in customers, even
though only Respondents know their customers. The
companies shared facilities such as main offices and
freezing facilities . The knife-sharpening and skinning ma-
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chines, which were initially located at Dahl, were relo-
cated to Sea-Pac during the time the unit members were
placed "on call." The lower level managers had individ-
ual areas of responsibility, but this does not require a dif-
ferent finding, else it would be concluded that both Sea-
Pac facilities were separate entities, for the only differ-
ence between their operations and Dahl's regarding
overall managerial responsibility, according to the evi-
dence of record, was the identification of the plant man-
agers and the operating differences occasioned by the
Dahl plant being subject to a collective-bargaining agree-
ment Also, the existence of common management only
at the top level does not preclude a finding of common
management . Sakrete of Northern California v. NLRB,
332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961
(1965). Dahl admittedly retained the ultimate authority
to set labor and other operating policies for both corpo-
rate entities.
Although the Union agreed to the commingling of op-
erations, a different finding is not required. The union
contract specifically provided for the application of a 10-
cent wage increment over scale when Dahl employees
were assigned to work at Sea-Pac plants. Such a provi-
sion in the collective-bargaining agreement indicates the
correctness of Dahl's statements that such interchange of
employees and facilities were made on an as-needed-basis
and not infrequently. The inclusion of this provision in
the contract is the antithesis of a waiver.
The conclusion that there is a single employer does
not require a finding that there is only one unit. In es-
sence, this appears to have been a double-breasted oper-
ation . See Malcom Boring Co., 259 NLRB 597 (1981).
Unlike cases in which the Board is asked to determine
the appropriateness of a unit, this case involves the appli-
cation of the Board's policy to accept the voluntary
agreement of the parties. A-1 Fire Protection, 250 NLRB
217, 220 (1980). Thus, it is necessary to examine the
scope of the agreed-upon unit to determine if the con-
tract reflects the intent of the parties. This examination is
in section C,2,a below. There is no question that the
agreement was voluntary.
C Placing the Employees "On Call" on December 12,
1981
1. Events leading up to the placing of employees
"On Call"
It is undisputed that Dahl was not in a strong econom-
ic position. The Union, in recognition of Dahl's financial
stringencies, agreed to defer two wage increases in April
and October 1981. It is also undisputed that on Decem-
ber 4, 1981, Dahl, through Decker, asked Finn, the presi-
dent of the Union, to allow the unit members to process
dogfish at a much lower rate than provided for in the
collective-bargaining agreement. It was explained that
the request was based on the Company's determination
that it was unprofitable to process dogfish at the contrac-
tual wage rate. Decker told the Union that it could not
make a satisfactory profit processing dogfish at the cur-
rent union wage scale. There was no claim by the Com-
pany of inability to pay. The Company wanted the rates
lowered to $6 an hour for the butchering of the dogfish
and $5 an hour for all other employees. According to the
uncontroverted evidence of employees, butchering
would have paid $9 93 per hour under the contract, and
some of the other employees, such as Charlene Marshall,
a packer, and Gary Albans, a floorman, earned $8 58 and
$8.89 per hour, respectively.
During the conversation, Finn explained to Decker
that under the union constitution the proposal to lower
wages had to be voted on by the unit members. Decker
said she needed a decision quickly because she had to let
the fishing boat know whether to deliver the fish to the
dock by the plant. Finn told Decker that it would be dif-
ficult to get a favorable decision quickly and if speed of
decision was demanded, he could not assure a favorable
employee response. Finn asked Decker to put the request
in writing, which she did. Soon after receiving the writ-
ten request, Finn informed union stewards Moena and
Marshall of the proposal and supplied them with copies
of the letter. One copy was posted on a bulletin board at
the plant. Finn arranged for a meeting of the employees
to conduct the requisite vote, and called Decker to
inform her that it was scheduled for the following day,
Monday, December 8, 1980, during the employees' lunch
hour.
During the meeting , it was occasionally necessary to
get information from management, and Rosenhall was
asked to attend at those times to provide such informa-
tion. Rosenhall consulted with K. Dahl and it is undis-
puted that he informed the employees that it cost twice
as much to process dogfish at Dahl as it did at Sea-Pac
due to the higher wages of the Dahl employees, even
though the Dahl empoyees' production was higher. A
vote was taken and the Company's proposal was over-
whelmingly rejected. Rosenhall heard some unidentified
employees comment during the meeting, "No way" and
"I'd rather draw my unemployment." He reported these
comments to K. Dahl.
About a week after the December 8, 1981 meeting, K
Dahl asked Finn for a written response. Finn told K.
Dahl that part of the problem was in asking the employ-
ees for a quick decision and stated he would be available
to discuss the request further.
According to Rosenhall's uncontroverted testimony, a
few days after the meeting he commented to Moena that
"I understand that the employees would rather draw
their unemployment than cut dogfish." Moena answered,
"Yes, in fact I was one of them." Respondent asserts that
Moena was acting as a union steward and representative
at the time. Thus, it argues that the union and unit mem-
bers refused to process dogfish. This claim is found to be
without ment. It is not disputed that the proposal for
cutting dogfish propounded by Respondent initially was
on a voluntary basis. In fact, K. Dahl admitted that the
cutting of dogfish was to be voluntary and that he never
intended it to be otherwise. Also, the record is devoid of
any indication that Moena's response to Rosenhall's in-
quiry was during and in the course of his activities as
steward, or that he could make such binding representa-
tions on behalf of the union or unit members. Rosenhall's
testimony clearly demonstrates that Moena was merely
responding to his inquiry and conveying his own views.
DAHL FISH CO
There is no showing that the comment was made within
the scope of Moena's apparent authority. There is no
showing of what the scope of Moena's authority was, as
understood by Respondent, nor was there any indication
of a subsequent ratification of this view by the Union.
There was no refusal by any employee to process dog-
fish at the contract rate. The employees comments and
votes were solely in conjunction with the proposed low-
ering of their wage rates. See Williams Sheet Metal Co.,
201 NLRB 1050 (1973). Thus, it is concluded that Re-
spondent's claim that Moena's replies to Rosenhall's
questions were relied on as a refusal to process dogfish at
any wage rate is without merit.
2. Action of December 18
On December 18, Dahl placed all its employees,
except the truckdnver, "on call." "On call" is used in the
record interchangeably with the term "lay off " The
placing of the employees on call differed this time from
previous similar occasions for, on December 18, the em-
ployees were asked to turn in the keys Dahl had issued
them . They had never previously been requested to turn
in their keys, indicating that prior placements on call
were in contemplation of quick return to work. K. Dahl
stated that he placed the employees on call to permit
them to draw unemployment benefits and that Dahl
went out of business on December 18, 1981. Some of the
unit members were offered reinstatement in July 1982
and began work for Dahl in late summer and fall 1982
This reinstatement dispels any visions of "going out of
business."
According to K Dahl, there was no bottom fish to
process and Respondent claims that the unit work of
Dahl employees was the processing of bottom fish. Be-
cause the employees refused to cut dogfish at the re-
duced rate, he decided to close the plant. K. Dahl admit-
ted that fish continued to be processed at the facility but
asserts that such processing was not bargaining unit
work. (Tr. 46.) These assertions raise two issues: first,
whether processing fish other than bottom fish is bar-
gaining unit work; second, the motive for placing all the
unit members, save the truckdrivers, on call
a. Is processing seafood other than bottom fish unit
work?
Respondent contends that the unit was engaged in the
processing of bottom fish which, in the genre of the
trade, excludes dogfish and salmon. The Dahl employees
did comprise the premier fillet line of both Dahl and
Sea-Pac In raising the issue concerning the scope of the
unit 's work, there has been no question raised about the
appropriateness of the unit or the appropriateness of pre-
suming continuing majority status of the Union during
and subsequent to the expiration of the collective-bar-
gaining agreement
The contract defined the unit as follows
ARTICLE I-RECOGNITION AND BARGAIN-
ING UNIT
101 The Employer recognizes Local Union No.
247 as the sole and exclusive bargaining agent for
1089
all employees in production, wholesale, retail, can-
ning , packaging, freezing , salting , curing or any
other form of handling fresh or frozen fish, or sea-
food, and truckdriver production employees, but to
exclude one foreman in each department, with a
maximum limit of three foremen in the plant who
do physical work.
The bargaining history does not indicate that Dahl and
the Union discussed the specific species of fish to be
processed by the bargaining unit prior to entry into the
agreement. It is clear that the description does encom-
pass canning, which is one method of processing salmon.
There is no showing that bottom fish were ever canned.
Salmon is butchered, not filleted, indicating that the unit
description included some butchering of fish as opposed
to filleting. The failure to specify filleting in the unit de-
scription is further indication that the processing of sea-
food other than bottom fish was contemplated by the
parties. The record clearly indicates, and K. Dahl
admits, that periodically Dahl employees were assigned
to assist Sea-Pac employees in processing seafood other
than bottom fish.
The record also supports the finding that the unit has
processed dogfish. There is disagreement on how fre-
quently dogfish was processed by Dahl. Respondent as-
serts that Dahl employees processed dogfish only as a
trial run to ascertain costs on two occasions between
1979 and December 8, 1981. The test indicated that it
was not profitable to have them engage in such an en-
deavor at their current wage rates. Several employees,
on the other hand, contend that they processed dogfish
regularly during the same 3-year period.
b Analysis and conclusions
It is not alleged , nor does the record show, that the
unit , as presently constituted, contravenes the provisions
or purposes of the Act or well-settled Board policies. See
Otis Hospital, 219 NLRB 164 (1975) See also NLRB v.
Chemetron Corp., 699 F.2d 148 (3d Cir. 1983). There has
been no request for unit clarification and it is undisputed
that the Employer has voluntarily recognized the Union
and agreed to the designation of the unit represented by
the Union contained in the collective-bargaining agree-
ment . That description, quoted above, includes all em-
ployees in production; it does not limit or otherwise
narrow the types of production activities the unit mem-
bers are to perform The Board has held that the lan-
guage in the recognition clause of a collective-bargaining
agreement can be construed as a work jurisdiction
clause, requiring that such work be performed by bar-
gaining unit employees and, therefore, that an employer
acts in derogation of its bargaining obligation under Sec-
tion 8(d) violating Section 8(5) by unilaterally transfer-
ring such workout of the bargaining unit during the term
of the contract. See, e .g., Boeing Co, 230 NLRB 696
(1977), enf. denied 581 F.2d 793 (9th Cir. 1980); Universi-
ty of Chicago, 210 NLRB 190 (1974), enf. denied 514
F.2d 942 (7th Cir. 1975).
Respondent argues that the wage scale appended to
the contract only mentions filletmen, thus indicating that
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contract does not contemplate processing dogfish.
Classic Truck Rental Corp., 251 NLRB 443, 445-446
(1980), provides as follows:
Thus, only if classifications of employees appear in
the wage scale section of the agreement with specif-
ic wages assigned to such classifications would
those classifications be included in the unit repre-
sented. If, on the other hand, certain classifications
of employees happened to be mentioned in the pre-
amble, and employees in said classifications are, in
fact, employed by the employer-party to the con-
tract, but said employees are not assigned a wage
scale these employees are not in the unit, are not
represented by the Union, and the Union claims no
jurisdiction over them.
The collective-bargaining agreement does not merely
mention classifications in the preamble; it also describes
the unit's work and provides an increment to wages for
work performed at the Sea-Pac plants. However , assum-
ing Respondent 's argument is correct, the contract has
appended to it the following wage classifications: appren-
tice floorman, dockman, cleanup man , swampers, un-
loaders, truckdrivers, filletmen, packagers and packers.
Respondent argues that the filletmen classification does
not include the butchering of dogfish and, by inference,
salmon . Thus, Dahl did not agree to assign such work to
its employees or recognize such as unit work subject to
representation by the Union See University of Chicago v.
NLRB, supra, and Boeing Co. v. NLRB, supra. Respond-
ent also argues that the only records that the Company
has of the processing of dogfish substantiates its claim
that it was done only during the testing period to deter-
mine costs. This cost data indicates that only 1 percent
of the unit's work in 1981 involved the processing of
dogfish. According to Respondent's cost accountant,
William Sinnett, these records were maintained during
the regular course of business and based on personal ob-
servations made to determine current costs. Sinnett is
Dahl's and Sea-Pac's cost accountant. All the purchases
and sales of dogfish were attributed to the accounts of
Sea-Pac, substantiating the above finding that fish pur-
chases do not betoken which company processed the
product. The record is clear that the preponderance of
the processing of dogfish and salmon was done by Sea-
Pac.
This testimony, however, is not dispositive of the
issue . Sinnett admitted that the records he kept for Dahl
of the processing of dogfish were based on personal ob-
servation and his job duties did take him out of the plant.
Respondent, through Decker, admitted that records were
not kept of the types of seafood processed at the differ-
ent plants. Sinnett and other company representatives
also admitted Dahl employees processed fish at Sea-Pac
when needed, and K. Dahl testified there were inter-
changes of facilities and employees between Sea-Pac and
Dahl based on where he determined they were needed.
(Tr. 570) Thus, it is entirely possible that the unit mem-
bers' testimony that they processed dogfish regularly, not
necessarily for the account of Dahl, is correct and not
contradictory to Respondent's testimony. Also, salmon
was admittedly processed by the unit employees over the
years and salmon was butchered. Thus, butchering has
historically been performed as unit work. It is further
found that even if the employees' testimony was found to
be contradictory, it is more credible based on mutual
corroboration, demeanor, the nature of the work which
is extremely difficult and unforgettable, the position of
many of the employee witnesses as current employees,
and consistency with established, admitted operating
practices.
That the dogfish sales and purchases were attributed
to Sea-Pac does not eliminate the possibility that Dahl
employees did process dogfish. Most of the salmon was
processed for the account of Sea-Pac, according to the
record evidence, yet there is no claim that the processing
of salmon was not bargaining unit work. Also, Dahl op-
erated for several months during 1982, yet the State's
records show no purchases of fish by the Company; all
the fish was purchased by Sea-Pac.
Assuming arguendo that the filleters' work did not in-
clude the butchering of dogfish or salmon, despite Re-
spondent's admissions regarding salmon , there is no
showing that the work of the other unit members was
similarly excluded, such as truckdrivers, floormen, or
packers. K. Dahl and other representatives of Dahl ad-
mitted that boats containing all relevant species of fish
were unloaded at their facility and trucked to other loca-
tions at times ; fish processed at other locations were
trucked to Dahl for packing and shipping by unit mem-
bers. There was no showing that all the transportation
was performed by the Dahl truckdriver It is also clear,
as Dahl admitted, that while its employees were on call,
Sea-Pac and other employees were performing these
functions at the Dahl facility, including packing and
cleanup. There is no basis to find that these activities
were not unit work Thus, even if the butchering were
not found to be unit work, contrary to the recognition
clause and established practice, it is hereby found that
these activities of loading, unloading , transporting, clean-
ing up, and packing fish and other seafood were unit
work which was transferred to nonunit plants and/or
nonunit employees.
In conclusion, it is found that the work transferred to
other plants and/or employees, including the work of the
filleters, was unit work. Cojoined with the credited em-
ployee testimony are such indicia as the admission by
Dahl that its employees were paid pursuant to the wage
scale section of the agreement when they did process
dogfish and salmon . In fact, it was Respondent 's under-
standing of the applicability of this wage scale that led to
its request for modification of the terms of the agree-
ment When the request was made, Respondent did not
assert that the unit's work did not include the processing
of dogfish or that such activity should not be paid ac-
cording to the applicable contractual wage scale. Re-
spondent, by its own actions, indicated that it knew the
agreement included butchering of both dogfish and
salmon El Centro Mental Health Center, 266 NLRB 1
(1983); Classic Truck Rental Corp, 251 NLRB 443, supra.
In addition, the collective-bargaining agreement con-
tains a recognition clause granting jurisdiction over all
DAHL FISH CO
seafood products; it has been established that the history
and practice of Dahl Fish Company is to have employ-
ees work on a variety of seafood products. If Respond-
ent believed it was necessary to establish a new job clas-
sification to implement the proposal to process dogfish,
the agreement has a "new methods" clause to implement
what might have been believed to be a new job classifi-
cation.
The new methods clause is article 18 of the agreement
and provides as follows:
Sixty days prior to the introduction of any new
method of operation into the bargaining unit that
requires the establishment of a new job classification
or department, the employer shall notify the Union
of any such new methods, including a description of
work being performed, and a proposed wage rate
for such work. Any question as to the adequacy of
the wage rate proposed shall be presented by the
Union within ten days following the employer's
notice to the notice of the Unions and shall be sub-
ject to negotiation, and if not agreed on, shall be
subject to the grievance prodecure of the agree-
ment. If, through the grievance procedure, it is de-
termined that the wage rate should be adjusted,
such adjustment shall be retroactive to the date that
such new method was put into effect
The failure to invoke this clause further demonstrates
that Respondent understood the processing of dogfish
and salmon was unit work.
It is also noted that Finn's offer after the vote to reject
the Company's proposal to continue pursuing the matter,
recognizing that the situation necessitated giving the em-
ployees more time to acquiesce to the wage reduction, is
uncontroverted and indicates a mutual understanding
that processing dogfish was unit work. This union posi-
tion also shows a willingness to pursue the request for
economic relief As will be seen below, the Union's posi-
tion was reiterated during negotiations for a new collec-
tive-bargaining agreement. Inasmuch as unit members are
found to have processed a variety of fish historically,
whether dogfish should be covered under the new con-
tract is a matter for negotiation between Respondent and
the Union.
Because the language in the recognition clause of the
collective-bargaining agreement can be construed as a
work jurisdiction clause, it requires that such work be
performed by bargaining unit employees. An employer
who ignores this clause acts in derogation of its bargain-
ing obligation under Section 8(d) thus violates Section
8(a)(5) by unilaterally transferring such work out of the
bargaining unit during the term of the contract. See, e.g.,
Boeing Co., supra; University of Chicago, supra
Although historically Dahl had interchanged employ-
ees and work between Sea-Pac and Dahl, the Dahl em-
ployees' positions were protected by seniority provisions
of the collective-bargaining agreement which require
that work in the plant must be called based on seniority.
(Sec. 3.03.) Sec 3 04 of the agreement provides:
When calling in an employee in any department,
they shall be called on a seniority basis provided the
1091
employee has the ability to perform the work or
can learn the available job in a reasonable period of
time. When work is available in departments other
than the one the employee holds seniority in, such
extra work will be offered on a seniority basis This
extra work transfer is for fill-in work only and does
not apply if a permanent vacancy occurs If a va-
cancy occurs, employees will be given a transfer as
set forth in Paragraph 3.04 below
Section 3.07 of the agreement provides.
There shall be no new help hired which would in-
crease the size of the seniority list crew while em-
ployees maintaining seniority are receiving less than
38 hours per week. Temporary fill-in employees
may be hired on a daily basis to replace absent reg-
ular employees. The application of the 38-hour rule
shall apply to the departmental seniority lists. Em-
ployees with seniority in other departments shall be
given the first opportunity for extra work.
As noted above, the acquiescence to such interchanges
of employees does not constitute a waiver by the Union
of its claim to retain unit work for unit employees. In
recognition of the operating exigencies of Respondents'
plants, it permitted interchange only when its members'
seniority was protected. After Dec °mber 18, 1981, Dahl
did not follow these requirements i assigning employees
work at the main plant. The barg wing history of this
unit clearly indicates that the pro 2ssing of seafood as
needed by Dahl would be perform d by the bargaining
unit. The record fails to establish its inappropriateness or
require its alteration.
D. Did the Placing of All Dahl Employees "On Call"
Violate the Act?
It is undisputed that on December 18 Dahl placed all
unit members except the truckdriver on call. The parties
differ in their claims concerning the basis for this action
as well as the nature of the action. Respondent asserts
that the closure was solely motivated by economic con-
siderations devoid of any proscribed motive. The Gener-
al Counsel asserts that the action was a result of the
Union's rejection of the wage reduction proposal pro-
pounded by Dahl, a proscribed motive, and, that after
placing all the employees on call, Respondent continued
to process fish and seafood at the Dahl plant or diverted
the work of the unit to Sea-Pac plants in violation of
Section 8(a)(3) and (1) of the Act. The General Counsel
did not cite any cases in support of its position. It is un-
controverted that the employees' action in voting on and
rejecting the Employer's midcontract wage proposal
during an employee meeting is protected concerted ac-
tivity.
Respondent avers that even if its actions were based
on a proscribed motive, they were permissible, citing
Textile Workers v. Darlington Mfg. Co., 380 U.S. 263
(1965). The Darlington decision is found inapplicable in
this case. As held in NLRB v. Ft. Vancouver Plywood Co.,
604 F.2d 596 (9th Cir. 1979), cert. denied 445 U.S. 915
(1980):
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Darlington the Supreme Court held it is not a
statutory violation for an employer to fire all its em-
ployees and close down its business even though its
motive may be to thwart unionization.
It is clear that the Supreme Court meant its excep-
tion in Darlington to apply only to the complete liq-
uidation of a business.2 See Great Chinese American
Sewing Co. v. NLRB, 578 F.2d 251 (9th Cir. 1978).
Antiunion firings that fall short of terminating busi-
ness operations completely, such as the discharges
here, violate section 8(a)(3). See Textile Workers
Union v. Darlington Mfg. Co., 380 U.S at 274-75.
2 "We hold here only that when an employer closes his entire
business , even if the liquidation is motivated by vindictiveness
toward the union , such action is not an unfair labor practice " Tex-
tile Workers Union Y Darlington Manufacturing Co, 380 U S 363,
373-74, 85 S Ct 994, 1001, 13 L Ed 2d, 827 (1965) [Footnote
omitted ]
See also National Family Opinion, 246 NLRB 521 (1979).
There is no assertion here, and the record is devoid of
any evidence, that Respondent effected a partial closing
for the purpose of chilling unionism at any of the other
plants K. Dahl owns or controls as sole shareholder. The
entire business was not liquidated on December 18, 1981;
Dahl continued to operate, using nonunit employees, and
rehired the unit members beginning in August 1982.
Therefore, there is no contention of a violation and no
violation can be found under the plant closing criteria of
Darlington, supra. Rather this, in essence, is a case of a
runaway shop where the employer altered or discontin-
ued a portion of its business operation and removed it
elsewhere in order to avoid obligations imposed on it by
the collective-bargaining agreement and the Act, in vio-
lation of Section 8(a)(3) and (1) of the Act. NLRB v.
Brown-Dunkin Co., 287 F.2d 17 (10th Cir. 1961); NLRB
v. E. C Brown Co., 184 F.2d 829 (2d Cir. 1950); Garwin
Corp., 153 NLRB 664 (1965).
Respondent claims that, in Weather Tamer, Inc., 253
NLRB 293 (1980), the Board applied the analysis in
Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), which
was approved by the Supreme Court in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). The
Court's decision in Transportation Management Corp.,
held that the Wright Line, decision, supra:
.. . determined that the General Counsel carried
the burden of persuading the Board that an antiun-
ion animus contributed to the employer's decision
to discharge an employee, a burden that does not
shift, but that the employer, even if it failed to meet
or neutralize the General Counsel's showing, could
avoid the finding that it violated the statute by dem-
onstrating by a preponderance of the evidence that
the worker would have been fired even if he had
not been involved with the union.
Thus, Respondent argues that because its actions were
economically motivated, it should be found that the
workers would have been placed on call even absent
union considerations.
The initial question , therefore , is did Dahl place the
employees on call for a proscribed reason and, if so,
would Dahl have taken such action even if the employ-
ees had not been involved with the Union and/or had
not voted to reject the request for a lower wage scale to
process dogfish . Respondent claims that K. Dahl would
have taken the same action despite the vote because of
the economic exigencies resultant from that vote. In de-
termining motive , the Board, in the absence of the rare
employer admission , may draw inferences and rely on
circumstantial , as well as direct evidence Universal
Camera Corp. Y. NLRB, 340 U.S. 474, 488 (1951).
It is concluded that Dahl placed its employees on call
for a proscribed reason : retaliation for their rejecting the
proposal to process dogfish at a wage rate substantially
lower than that required by the collective -bargaining
agreement . This finding is based on several factors, in-
cluding the timing of the decision to place the employees
on call shortly after the employees refused to take the
wage reduction . NLRB v. Eagle Material Handling, 558
F.2d 160 , 170 (3d Cir 1977). Although Respondents
assert that the employees refused to process dogfish, as
found above , the allegation is without merit . There has
been no charge filed that there was a partial strike by the
employees . There is no showing that there was any re-
fusal to process dogfish at the wage rate set forth in the
collective-bargaining agreement. The facts indicate that
the employees refused to process dogfish at the lower
rate only; they did not abjure the processing of dogfish
at the contract rate . For example , after the vote , it is un-
refuted that Finn told K. Dahl that he should give the
employees more time to consider the wage reduction
proposal and expressed his willingness to discuss the
matter at the Employer 's convenience . This offer indi-
cates that none of the employees refused to cut dogfish
under any circumstances . To the contrary , the unit's rep-
resentative offered assistance in obtaining a lower wage
rate. It is also uncontroverted that both Finn and Moena
told Respondent's representatives that they did not like
processing dogfish but did not refuse the task; they only
refused the proposed lower wage rate.
At the time the lower wage rate was proposed by
Dahl, there was no mention that the future operation of
the plant hung in the balance or that Dahl was even con-
sidering closing or greatly reducing the employee com-
plement if the employees did not accept the reduced
rate . There was also no indication to the Union or the
employees that acceptance of the wage proposal was
necessary to ensure continued operations . There was no
bargaining over the decision or impact and implementa-
tion of the action to place the employees on call. Dahl
was admittedly hurt by the employees' decision , accusing
employees of turning their backs on him , turning him out
in the cold . (Tr. 552 .) K. Dahl also stated , "I wasn't mad
at the people , I was hurt . They could draw their unem-
ployment." (Tr. 591 .) That the chief operating officer
and sole shareholder of Dahl had his feelings "hurt" by
the employees ' action , stated that they could take unem-
ployment based on that action , cojoined with the admit-
DAHL FISH CO 1093
ted failure to indicate the potential ramifications of re-
jecting the proposal despite the continuing union interest
in assisting the Company in achieving a lower wage rate,
are all indicia of proscribed motive Inherent in the wage
proposal is the assumption that employee acceptance
would result in employment which included the process-
ing of dogfish at the lower wage rate. Rejection of this
proposal is therefore inferentially the cause of the deci-
sion to place employees on call.
Further, because Respondents Dahl and Sea-Pac deny
that they are a single employer, their operations follow-
ing the decision to place all Dahl employees on call is
another indication of improper motive. As noted above,
some work was performed at the Dahl plant during the
time that the employees were still on call, which has
been found to be unit work. Respondents Dahl and Sea-
Pac admittedly did not keep records of who worked at
Dahl during this period of time. Some of the Sea-Pac
employees' timecards indicated that they had worked at
the Dahl facility and processed or worked with bottom
fish in addition to performing Sea-Pac Squalicum Fill's
work of processing dogfish. The parties stipulated that
timecards from Squalicum Fill show some Sea-Pac em-
ployees worked on bottom fish and worked at 601 W.
Chestnut on occasions starting the week ending February
20, 1982 (Tr. 692-698), until the week ending July 10,
1982 It was further stipulated that black cod was proc-
essed at Squalicum Fill in addition to other fish and that
bottom fish were processed during the week of May 5,
1982. Additionally, Respondent Exhibit 27 indicated that
from January 1, 1982, through the first week of May
1982 there were periods when as many as 10 to 12 em-
ployees worked at the Dahl plant, and that during most
of the time there were a couple of Sea-Pac employees
working at the main plant . This stipulated finding was
supported by the credited testimony of several current
and former Dahl employees who noted that when they
stopped by the plant for various purposes while on call,
they observed nonunit members working there or saw
evidence that processing of dogfish had recently oc-
curred there.
A review of the timecards indicates that the employees
who did work at the Dahl facility between December
18, 1981, and August 1982 were paid $4 to $6 an hour, a
wage rate substantially below the wages paid Dahl em-
ployees under the contract. The collective-bargaining
agreement in effect until April 1, 1982 , had a union-secu-
rity clause which required individuals working for Dahl
for 30 days to join the Union, as noted above. Because
Sea-Pac employees occasionally went to the main plant
to pick up ice and make deliveries does not explain the
references on the timecards to bottom fish or the number
of hours they spent working at the main plant The long-
standing practice of employee interchange has not been
shown to constitute a waiver by the Union of the securi-
ty clause or any other contractual provision or obliga-
tion . There was no showing that Sea-Pac employees reg-
ularly processed fish at 601 W. Chestnut, except when
necessary to supplement the work of the Dahl employ-
ees. These supplementations were due to excess work
There was never an allegation or any showing that Sea-
Pac employees worked at 601 W Chestnut in lieu of
Dahl employees prior to December 18, 1981.
Also, the evidence reasonably supports the inference
that some of the processing done at Dahl prior to De-
cember 18, 1981, was shifted to Sea-Pac facilities. For
example, General Counsel Exhibit 13, a computer print-
out produced from the records maintained by the State
of Washington, Department of Fisheries, shows pur-
chases of fish and other seafood by Dahl and Sea-Pac.
The State did not receive any records of purchases or
sales for Dahl after December 1981. This absence of sta-
tistics does not reflect the fact that Dahl admittedly op-
erated in August to November 1982 and requires as the
only logical explanation that fish purchased by Sea-Pac
in 1982 were in fact processed in part by Dahl.
The General Counsel extrapolated the following statis-
tics from General Counsel Exhibit 13• for 1981, Dahl
purchased a total of 6,856,138 pounds of seafood at Bel-
lingham and Blaine ; for the same year , Sea-Pac pur-
chased at the same ports a total of 1,211,438 pounds of
seafood; for 1982, Sea-Pac purchased at those same ports
6,289,918 pounds of seafood, much more than the pre-
ceding year , and almost as much as Dahl purchased in
1981 As the evidence fails to demonstrate which compa-
ny processed the fish that were purchased, these figures
support the reasonable inference that the greatly in-
creased volume of fish purchases by Sea-Pac, cojoined
with the admission that work was done at the main
plant , requires the conclusion that some of the work
done by unit members prior to December 18, 1981, was
diverted to Sea-Pac facilities and/or employees after unit
members were placed on call.
This conclusion is supported not only by the volume
of fish purchased by Sea-Pac during 1982 but by the no-
tations on the timecards of the Squalicum Fill employees
during this time that they worked on bottom fish and
they had been assigned to work periodically at 601 W.
Chestnut . Also, Dahl employees saw evidence that non-
unit members were working at 601 W. Chestnut. Al-
though Respondents argue that the amount of bottom
fish processed during 1982 is not substantial- 1,138,000
pounds compared to 696 ,000 pounds in 1982 for Sea-
Pac-the evidence indicates that unit work had been di-
verted to Sea-Pac in substantial measure.
Further evidence of the diversion is the fact that K.
Dahl testified that Dahl employees were his "premier"
and best crew, they were the employees he historically
tried to keep working , regardless of business conditions,
because they were so good , and during slow times he re-
tained the Dahl crews. (Tr 646.) Dahl's testimony was
not limited to species of seafood being processed. Thus,
the diminution in the amount of bottom fish processed in
1982 does not explain the placement of Dahl employees
on call while retaining Sea-Pac employees. The only rea-
sonable explanation is their refusal to accept the lower
wage rate to process dogfish . That Blaine occasionally
processed bottom fish and received the overflow that the
Dahl employees could not have processed, does not ac-
count for the alteration in operation by retaining Blaine
employees rather than Dahl employees to perform this
task and having Sea-Pac Squalicum Fill employees, a
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group which Respondent admits traditionally did not
process bottom fish, work on bottom fish during the time
the Dahl employees were on call. Consideration of all
the evidence requires the conclusion that but for the unit
members' rejection of the proposed reduction in their
wage rate to process dogfish, they would not have been
placed on call. It is thus found that the General Counsel
has made a prima facie showing of unlawful motive. See
M & G Convoy, Inc., 260 NLRB 1052, 1057 (1982), citing
Central Power & Light Co., 239 NLRB 456 (1978); Boro
Burglar Alarm Co., 234 NLRB 389 (1978); Tri-Mainte-
nance & Contractors, 235 NLRB 895 (1978); Pittsburgh
Press Co., 234 NLRB 408 (1978); Newark Morning Ledger
Co., 232 NLRB 581 (1977); and J. S. Alberici Construction
Co., 231 NLRB 1038 (1977). K. Dahl's statement that
historically he preferably retained unit employees during
slack periods is to be credited for, as the Board stated in
Chef Nathan Sez Eat Here, 181 NLRB 159 (1970):
If we were to engage in . speculation [concern-
ing other possible reasons] we would leave the door
open for an employer to tell an employee . . . that
he was discharged for protected activities, with the
effect that would have on other employees, and
then to later defend on the ground that actually the
employee was discharged for some other legitimate
reason . We are unwilling to do so.
Respondent argues that the economic straits of Dahl
would have resulted in the same action even if there
were unlawful motives present. Such economic bases as
the reason for the action, as noted above, were never ex-
plicated prior to the employee vote nor were such rea-
sons given prior to December 18, 1981. The evidence is
clear that there had been a diminution in the amount of
bottom fish processed by Dahl, dropping from 7.8 mil-
lion pounds in 1974 to 5.8 million pounds in 1981. It is
also undisputed that such diminution was attributable, in
large measure , to changes in the operating practices of
the fishermen. These changes are due to such factors as
the increased cost of fuel, making it much more expen-
sive to unload fish at Bellingham and Blaine , Washing-
ton, and the changed practice of the larger oceangoing
fishing vessels of offloading their catches at sea at proc-
essing ships . Respondent also noted that hourly wages
and benefits for Dahl employees as of October 6, 1981,
were $13.24 per hour and on August 20, 1982, after re-
hiring some unit members, the average hourly cost for
those employees was $8 08. Sea-Pac's average hourly
wages and benefits on October 9, 1982 after Dahl ceased
operation in October 1982, was $6.76.
Dale Henley, the regular CPA for Sea-Pac and Dahl
since 1972 or 1973, noted that Dahl had been experienc-
ing an operating loss since 1979, partly attributable to
labor costs and high interest rates. The operating state-
ments Henley prepared were presented for Dahl only;
similar statements were not presented for Sea-Pac. Thus,
the comparative impact of wages and benefits upon the
respective operations cannot be assessed. The nature of
the borrowing at high interest rates was also not ad-
duced Because Sea-Pac used Dahl's facilities, for which
they were charged, and certain of the operations were
commingled, there is no predicate to determine whether
some of the unsecured debt or all of it is attributable to
Sea-Pac or to changes in Sea-Pac's operations Thus, it is
difficult to conclude that the contractual wage scale was
the straw which tipped the employer's scale in its deci-
sion to put the employees on call rather than K. Dahl's
"hurt" reaction to their vote
It is uncontroverted that Respondent placed all Dahl's
employees on call after they voted to reject the proposal
to modify the collective-bargaining agreement midterm.
Assuming that Respondent had informed the Union and
the unit members of the potential ramifications of a nega-
tive decision and, absent any issues regarding a midterm
modification of the contract, Respondent's action of re-
acting to labor costs significantly higher than its com-
petitors' costs and its continued operations at a loss
might have been lawful. McLoughlin Mfg. Corp., 164
NLRB 140, 141 (1967), enfd. as modified 463 F.2d 907
(D.C. Cir. 1972).
Although Respondent did notify the Union of its finan-
cial dilemma, and the Union did agree to defer two cost-
of-living increases, Dahl did not ascertain if its financial
dilemma could be resolved through the bargaining proc-
ess prior to deciding to put the employees on call. In
fact, as noted above, the Unions, through Finn, suggest-
ed strategy to K. Dahl and Decker that may have suc-
ceeded in gaining the sought after wage reduction and,
after the Union voted to reject, again counseled strategy
to achieve the wage reduction and offered its continued
assistance. These factors, as well as those discussed
above, suggest that the causal nexus for Dahl's action
was the vote and not, per se, economic straits.
Assuming, arguendo, that the high labor cost resultant
from the agreement with the Union was the sole source
of Dahl's economic straits and the sole basis for its deci-
sion to place all its employees on call, and further assum-
ing that Respondent had satisfied its bargaining obliga-
tion owed the Union prior to and concerning the deci-
sion to relocate some of the work through the device of
using Sea-Pat's facilities and/or Sea-Pac employees, and
the resultant impact upon the Union and the unit mem-
bers, Respondent would still be in violation of the Act
for it was bound to a collective-bargaining agreement
which did not expire until April 1, 1982. The decision to
put unit members on call was made during the term of
the collective-bargaining agreement As noted in Los An-
geles Marine Hardware Co., 235 NLRB 720, 735 (1978),
affd. 602 F 2d 1302 (9th Cit. 1979):
Under Section 8(d) of the Act, no party to a col-
lective-bargaining agreement can be compelled to
discuss or agree to a midterm modification of a col-
lective-bargaining agreement, and, accordingly, a
proposed modification can be implemented only if
the other party's consent is first obtained. Nassau
County Health Facilities Association Inc., et al., 227
NLRB 1680, 1683 (1977), and cases cited therein.
The fact that the parties have bargained to impasse
regarding the matter does not serve to change this
result. The Boeing Company, 230 NLRB 696, 700
(1977), and cases cited therein This mandate is not
excused either by subjective good faith or by the
DAHL FISH CO 1095
economic necessity of maintaining viability of an
employer's operation and preserving the jobs of the
employees in the bargaining unit. "Nowhere in the
statutory terms is any authority granted to us to
excuse the commission of the proscribed action be-
cause of a showing either that such action was com-
pelled by economic need or that it may have served
what may appear to us to be a desirable economic
objective." Oak Cliff-Golman Baking Company, [207
NLRB 1063, 1064 (1973), affd. 505 F.2d 1302 (C.A.
5, 1974)]; Rego Park Nursing Home, 230 NLRB 725,
727 (1977). Consequently, notwithstanding the per-
suasiveness and validity of an employer's economic
straits, an employer is not free, without union con-
sent , to make midterm modifications in wage rates
(Oak Cliff-Colman Baking, supra; Rego Park Nursing
Home, supra), nor to remove work from the bar-
gaining unit (The Boeing Company, supra), nor to re-
place all unit employees. AAA Electric, Inc. and
Simms Electric Co., 190 NLRB 247, 251 (1971) en-
forcement denied 472 F.2d 444 (C A. 6, 1973). [To
permit relocation alone to abrogate the requirement
of consent] would mean that employers would be
permitted to achieve by indirection that which the
above-listed employers were denied the opportunity
to achieve by direct means under Section 8(d) of
the Act.
In this proceeding there was not even a permanent plant
closing during the time under consideration; rather, there
was a relocation of Sea-Pac employees and/or relocation
of unit work. None of the Dahl employees were given
an opportunity to seek reemployment at Sea-Pac or any
other affiliated company until Dahl sent the employees a
letter in July 1982 indicating that Dahl Fish Co, Inc.
would commence operations on Monday, July 26, 1982.3
This letter clearly demonstrated Dahl did not liquidate
its business. Work was offered to Dahl employees on the
basis of what the Company described as its "last offer."
In sum , Respondents did not neutralize or meet the
General Counsel's showing, and the facts in this case re-
quire a finding that Dahl's employees were placed on
call, based on its effort to escape, during the term of the
contract, the wage scale imposed by the collective-bar-
gaining agreement in violation of Section 8(a)(3) and (1)
of the Act. Helrose Bindery, Inc., 204 NLRB 499, 504
(1973); Rushton & Mercier Woodworking Co., 203 NLRB
123, 124 (1973), cert. denied 419 U.S. 996 (1974).
As Administrative Law Judge Pannier noted in his de-
cision in Los Angeles Marine Hardware Co., supra at 736:
Respondent . . had entered into this agreement
voluntarily, and as the United States Court of Ap-
peals for the Eighth Circuit observed in N.L.R.B. v.
Nash-Finch Co., 211 F.2d 622, 626 (1954):
The following language from Printing & Co. v.
Sampson, L.R. 19 Eq. 462, 465, has several times
been approved by the Supreme Court of the United
States:
. . if there is one thing which more than another
public policy requires it is that men of full age and
competent understanding shall have the utmost lib-
erty of contracting, and that their contracts, when
entered into freely and voluntarily, shall be held
sacred, and shall be enforced by courts of justice."
See Baltimore & Ohio S. W.R. Co. v. Voigt, 176 U.S.
498, 20 S.Ct. 385, 387, 44 L.Ed. 560; Twin City Pipe
Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51
S.Ct. 476, 75 L Ed. 1112 4
Consequently, the employees placed on call under the
circumstances of this case are discriminatees entitled to
the relief as set forth in the remedy section of this deci-
sion
E. Violation of Section 8(a)(5) and (1) of the Act and
Discontinuance of the Collective-Bargaining
Agreement in Full Force and Effect
The Companies' actions were also unilateral modifica-
tions of the contract in violation of Section 8(a)(5) and
(1) of the Act. There is no allegation that the manage-
ment rights clause in the collective -bargaining agreement
reserved unto Dahl the right to take any or all its busi-
ness and temporarily relocate it , as was the case in
Echlin , Inc., Case 7-CA-21616, JD-87-83 May 1983, de-
cided by Administrative Law Judge William A. Ger-
shuny.
Unlike the case of First National Maintenance Corp. v.
NLRB, 452 U.S. 666 ( 1981), this was not an employer
decision to terminate contracts with customers and,
hence , as found by the Court , there was a per se viola-
tion of Section 8(a)(5) in that the employer failed or re-
fused to bargain over the effects of the decision to termi-
nate the contract . Also, unlike First National Mainte-
nance, we did not have a determination by the Employer
to close part of its business . In essence, the decision was
merely to transfer part of its business to locations in
close proximity and to operate with nonunion personnel
at the same location . In First National Maintenance, the
Court propounded the following balancing test, id. at
678, 679:
The concept of mandatory bargaining is premised
on the belief that collective discussions backed by
the parties ' economic weapons will result in deci-
sions that are better for both management and labor
and for society as a whole . . . . This will be true,
however, only if the subject proposed for discussion
is amenable to resolution through the bargaining
process . Management must be free from the con-
straints of the bargaining process to the extent es-
sential for the running of a profitable business. . .
[I]n view of an employer's need for unencumbered
decisionmaking , bargaining over management deci-
sions that have a substantial impact on the contin-
It is unnecessary to discuss the decisional criteria the Board used in
Milwaukee Spring Division, 265 NLRB 206 (1982), because in the instant
case the Employer did not engage in bargaining nor did it offer to engage
S There is no allegation that this offer did not constitute a valid offer in further effects bargaining about the decision to place the employees on
of reinstatement call, and it did not close down its operation at 601 W Chestnut
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ued availability of employment should be required
only if the benefit, for labor-management relations
in the collective-bargaining process outweighs the
burden placed on the conduct of the business [Cita-
tions omitted ]
The facts of this case are more closely akin to those
considered by the Supreme Court in Fibreboard Paper
Products Corp. v. NLRB, 379 U.S 203 (1964) As in Fi-
breboard, ibid, we have a unilateral change in operations
which had a significant impact on the bargaining unit
with the change being the removal from the bargaining
unit of its work to another business solely owned and op-
erated by K Dahl, Sea-Pac, Inc, without first bargain-
ing with the Union about the impact and effects of that
decision. As noted above, there was no attempt to ascer-
tain whether the bargaining process would have resulted
in Dahl obtaining the sought relief The contract was to
expire about 4 months after the unilateral decision to
close the plant, and bargaining about new terms and con-
ditions of employment could have commenced in De-
cember. Furthermore, the Fibreboard decision, ibid., held
that such a decision by a company to subcontract consti-
tutes a mandatory subject for bargaining even in the ab-
sence of antiunion motivation. As in the Fibreboard case,
the Company's basic operation has not been shown to
have been altered as a result of its decision to have the
Sea-Pac employees at both the Dahl and Sea-Pac plants
do the work of the bargaining unit , nor was it shown
that a capital investment was required In fact, the Fibre-
board decision seems to have great pertinence in this pro-
ceeding since there is a replacement of the bargaining
unit employees, not with those of an independent con-
tractor doing the same work, but with employees of an
affiliated company doing the same work under similar
conditions of employment with the exception of wages
and other pecuniary benefits. In essence, what K Dahl
did was to take an established past practice of shifting
work from one entity to another when conditions caused
so much work a particular entity was unable to process
the loads and, based on economic and other motives,
substantially varied this practice by terminating all work
for one unit and giving that work to the other related en-
tity's employees. This decision operated to the great det-
riment of the employees in the unionized unit without af-
fording the Union an opportunity to bargain about this
change.
The First National Maintenance Corp. case, supra, also
found that the absence of significant investment or with-
drawal of capital was not crucial when the employer's
decision to halt the work represented a major change in
the employer's operation. Id. at 673. In this case, it is
found that the major changes in the Employer's oper-
ations were the placing on call of all Dahl employees,
the transfer of work to Sea-Pac employees, and at times
Sea-Pac employees were assigned to work at the Dahl
facility These work assignments are found to be not
mere pickup and deliveries of ice or fish to the freezer,
but substantial work assignments because of the number
of individuals assigned and the duration of these assign-
ments as betokened by the notations on the Squalicum
Fill employees' timecards, as discussed above These
major changes in the Employer's operation do not
appear to be of the genre contemplated in First National
Maintenance , which referred to a revision of the entire
company's operations which were not susceptible to bar-
gaining , unlike this case in which the only apparent
change is that most of the work formerly performed by
the unit was performed by Sea-Pac employees. Thus, I
find the situation in this proceeding to be more akin to
that in Fibreboard rather than First National Maintenance,
supra
Under these circumstances, it cannot be found that
First National Maintenance, ibid., is applicable. If First
National Maintenance was found to be applicable, the
balancing test contained therein requires a finding that
Section 8(d) would obligate Dahl to bargain over its de-
cision. The factors requiring this conclusion are that the
decision had a substantial impact on the continued avail-
ability of employment for all unit members, and this det-
riment is outweighed by the benefit of collective bargain-
ing during the term of a contract when the business was
not closed, employment was available, and the only
question was the wage rate to be paid these employees.
This finding is substantiated by Dahl's offer of reemploy-
ment on July 15 to the employees placed on call at sub-
stantially lower wage rates. To permit the unilateral
transfer of work to avoid contract rates during the term
of the contract would abrogate the efficacy of the collec-
tive-bargaining process and would appear to outweigh
the burden placed on the conduct of the business in these
circumstances. Also, First National Maintenance would
require under these circumstances that the Employer
bargain over its decision to place all employees on call,
even if it was held that the sole basis for this decision
was economically motivated.
Inasmuch as it was found that the decision to place the
employees on call was not a partial closure, under the
terms of First National Maintenance, the decision to place
the employees on call is still subject to mandatory bar-
gaining and any unilateral changes in wages and working
conditions are violative of Section 8(a)(5) and (1) of the
Act. All the employees who worked at the Dahl facility
between December 18, 1981, and April 1, 1982, the date
the contract expired, were not hired pursuant to the
agreement's seniority clause or union-security clause
These employees were not paid the contract rate and
other benefits, such as pension and health care programs.
These unilateral changes are violative of Section 8(a)(5)
and (1) of the Act.
F Did Respondent Engage in Bad faith Bargaining;
Was There an Impasse That Would Permit
Respondent to Unilaterally Implement Its Last Offer;
Did Respondent Refuse to Provide Relevant Material
as Reasonably Necessary Information to the Union?
Dahl bargained with the Union from March to Sep-
tember 10 , 1982, with the primary, if not sole, area of
contention being wages . Bargaining , it is noted, is an-
other indicia supporting the finding that Respondent did
not permanently close Dahl. After several of these bar-
gaining sessions , Dahl sent the unit members letters offer-
ing them employment on terms and conditions reflective
DAHL FISH CO 1097
of its last offer. This failure to continue in effect the
terms and conditions of the collective-bargaining agree-
ment, which expired on April 1, 1982, without the con-
sent of the Union, is alleged to be an unlawful unilateral
change Respondents assert that the implementation oc-
curred after the parties reached impasse. The General
Counsel counters that Respondent's bad-faith bargaining
precludes impasse It is also alleged that Respondent,
since March 4, 1982, failed and refused to provide the
Union with information necessary and relevant to its per-
formance as collective-bargaining representative This
failure is also alleged to be bad-faith bargaining and pre-
clusive of impasse.
1 Bargaining sessions
The parties agree the collective-bargaining agreement
expired April 1, 1982, and was properly opened for ne-
gotiations. There was a series of six negotiating sessions
occurring on February 26, March 4, March 31, April 8,
April 15, and September 10, 1982
a. February 26 meeting
The Company presented its proposal for the first time
to the Union's negotiating committee at this meeting.
The proposal did not contain a wage offer. Some of the
modifications or changes to the agreement contained in
the Employer's proposal included alterations in the bar-
gaining unit language to permit as many supervisors as
Dahl wished to do bargaining unit work compared to the
prior limit of two supervisors permitted to do bargaining
unit work, to eliminate union dues-checkoff provisions;
alter the seniority language in a manner which the Union
felt would destroy the meaning of the seniority clause;
eliminate the justification for discharge provision; alter
the requirements for eligibility for holiday and vacation
pay in such a manner that the Union felt it would make
it difficult for the unit members to qualify, eliminate the
health care programs; modify other privileges such as
the method of granting rest periods, whether rest periods
shall be considered on company time or Employer's
time, delete the retirement program, the grievance proce-
dure would be deleted but there would be a no-strike
clause, and the management rights clause would be
modified. K Dahl described the proposal as taking prac-
tically "everything out of it [the agreement] except the
word, union " (Tr 597, see also Tr. 653.) It was Dahl's
position that if they took everything out of the contract
except the word "union," the Union would be "a lot
more realistic about their finances, as far as wages went,
that these [proposed changes] were no problem, they
could be reinstated without problem." (Tr. 598.) Compa-
ny finances were discussed. However, there is no asser-
tion that the Union was informed at this meeting that the
primary consideration was the economic proposals that
were forthcoming and that if there was an agreement on
wages, "we can work [the other matters] out " (Tr. 609.)
Because the Union did not have an opportunity to
study the proposal prior to the commencement of the
bargaining session, they requested an opportunity to
review the material and to respond to the proposals. At
that time, Union Representative Finn indicated that the
Union wanted a resolution of the situation for the people
who had been laid off since December 18 Finn had vis-
ited the plant between December 18, 1981, and February
26, 1982, once, and observed four or five individuals
whom he did not recognize as unit members working at
the Dahl facility.
Finn then handed the Employer a letter dated Febru-
ary 26, 1982, which stated that subsequent to the layoff
of bargaining unit members the Union became aware of
events occurring at the Dahl plant, making it necessary
to request the following information to permit intelligent
representation of the bargaining unit members and to de-
termine if the Company violated the current agreement
or the law. The letter requested
1. The dates on which any work falling under the
work jurisdiction outlined in Article 1 of our labor
agreement was performed in your plant at 601 W.
Chestnut in Bellingham since December 17, 1981.
2. The names, addresses and phone numbers of
any persons who performed any bargaining unit
work in your plant since December 17, 1981.
3. The number of hours worked by day by each
employee since December 17, 1981
4. The hourly rate paid to each individual.
5. A description of the work assigned to and per-
formed by each employee by day since December
17, 1981.
6. A response from your company outlining the
reasons why employees who do not hold seniority
rights under the terms of our agreement were of-
fered employment or bargaining unit work while
employees with seniority were denied the opportu-
nity for employment.
This is a notice of a grievance under Article 3, Se-
niority; Paragraph 8 07, Discrimination for Union
Activity, and Paragraph 16.04, Employer Lockout.
We request the above information to verify there
has been a violation of the agreement and to have
the information necessary to intelligently proceed in
seeking a remedy in this matter If the facts indicate
there has been a violation of the agreement, we of
course will be requesting employees with seniority
be made whole for all losses suffered as a result of
your actions
For ease of presentation, the other material relevant to
the request for information will be discussed at this junc-
ture On March 4, 1982, counsel for Respondent in-
formed Lester Peck of the International Union that the
Company was of the view that the employees of Dahl
Fish Company processed only bottom fish and, due to
the depressed state of the fishing industry, proposed that
the Local consider modifying the collective-bargaining
agreement so that the Dahl employees could process
dogfish. The Company took the position that dogfish had
never been part of the bargaining unit 's work and when
the Local declined to include such work, the processing
of dogfish was performed by employees of Sea-Pac
Dahl asserts it processed no bottom fish since December
18, 1981, "with the limited exception of some work done
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by two persons on a single day for approximately an
hour and one-half each, and some minor work performed
by foremen. Of course, the truckdriver represented by
Local 44 is still employed." See General Counsel's Ex-
hibit 9. This response was reduced to writing in a letter
Respondent Counsel Jeffery sent to Finn. The requested
information was not provided. As an aside, this assertion
is indicative that Dahl did process seafood during the
period its employees were placed on call.
It is noted that K. Dahl testified, contrary to Jeffery's
representation, that the first dogfish were processed on
April 22 after the expiration of the contract by Sea-Pac
employees. (Tr. 595.) Jeffery's admission against interest,
the timing of the letter, the fact that the letter has an ad-
mission which substantiates Finn's observation, as well as
the testimony of several current and former employees of
Dahl, lead me to credit the representations in the letter
and to question the credibility of K. Dahl. In fact, Dahl
contradicted his own testimony when he stated that
during the March 31 negotiating session when Finn again
repeated the request for information, K. Dahl replied
that he notified the Union verbally at this meeting that
no one was working at 601 W. Chestnut who had any-
thing to do with the bargaining unit or with the Union,
the people working at that facility were processing dog-
fish and salmon "and whatever was needed in the plant "
(Tr. 608-609.) The request for information was a matter
that was discussed at all negotiating sessions.
On March 19, 1982, Finn wrote Jeffery a letter disput-
ing their reading of the collective-bargaining agreement,
asserting that their jurisdiction extends beyond the proc-
essing of bottom fish, as the history and practice of Dahl
Fish Company demonstrates The letter noted:
If the company believed a new job classification
was necessary, management had the right under the
current labor agreement to implement a new job
classification under the provisions of "NEW
METHODS" clause of the current labor agreement
The company did not propose any change under
the "NEW METHODS" clause of the labor agree-
ment.
The letter also noted that the Jeffery letter referred to
a statement made by a union steward that the "filleters
did not wish to cut dogfish," and stated that the Compa-
ny has been advised before that stewards are not the offi-
cial spokespersons for the Union. Full disclosure of the
requested information was again sought to permit proper
representation of the members.
This request was reiterated in several further commu-
nications , including a letter dated January 25, 1983,
which also asks for additional information The addition-
al information requested in the January 25, 1983 letter is
beyond the scope of the complaint. There was no
amendment to the complaint. Thus, the letter will just be
considered insofar as it repeats the initial request for in-
formation; the Union's assertion that the collective-bar-
gaining agreement , although expiring April 1, 1982, still
remained in full force and effect; and the claim that
under that agreement the bargaining unit definition per-
mits the members to work on all seafood products.
On March 3, 1983, Jeffery replied to Finn This reply
provided some of the new material sought, not here
under consideration, as well as providing the dates of
hire, job title, and rate of pay for employees hired by
Dahl as of August 5 to August 30, 1982. A total of 15
individuals were hired: one foreman at a rate of pay of
$5.50 per hour, nine Packers with a rate of pay of $5 50
per hour; and four filleters at a rate of pay of $6.85 an
hour. There was also a foreman hired at the rate of pay
of $6.85 an hour. Again contrary to Jeffery's letter, K
Dahl testified that all his companies have the policy of
not disclosing salaries without "proper documentation."
When asked if that meant without the employees' knowl-
edge, he was not sure because it was a policy instituted
by his father It was this policy that Respondents gave as
a basis for their refusal to provide the information even
though information that did not fall afoul of this compa-
ny policy was also not provided. (See Tr. 593 )
On March 31, 1983, Jeffery replied to Finn 's letter, in-
dicating that he understood the Company provided him
with the information originally requested including the
names, addresses, telephone numbers , dates of hire, and
other information regarding the current employees, the
hours they worked since April 1, 1982, and their rate or
rates of pay and job classifications during those months.
There was no showing on the record that much of the
information had in fact been disclosed and given to the
Union regarding events occurring between December 17,
1981, and August 5, 1982. Jeffery concluded that inas-
much as the trial in this proceeding had been set to com-
mence April 19, 1983, their efforts to prepare for the
proceeding and to review the documents necessary for
such preparation required the deferral of compliance
with any additional requests for information until the res-
olution of this proceeding. This admission and the record
evidence require the finding that all the requested infor-
mation had not been provided as of April 19, 1983.
b. Bargaining session of March 4
The parties generally agree on what occurred during
this bargaining session . The Union's request for informa-
tion was discussed Dahl stated that "there were no per-
sons working in that plant at 601 W. Chestnut that had
anything to do with the bargaining unit or with the
Union, nothing whatsoever, I told them they did dogfish,
and they did salmon, whichever was needed in the
plant." (Tr. 608.) Additionally, there was mention of two
supervisors processing bottom fish for approximately I-
1/2 hours
The Company still did not make any economic pro-
posals. The Company's economic proposals were con-
tained in a letter dated March 9 The issue whether unit
work encompassed the processing of dogfish and salmon
was also discussed. Finn inquired if dogfish was not con-
sidered bargaining unit work, why the Company made
the proposal it did in December 1981 and also asserted
that dogfish had traditionally been worked on by bar-
gaining unit employees over a substantial period of time.
In addition , there was an attempt to get clarification of
the Company's February 28 proposals. The Company
amended its position to allow employees to file griev-
DAHL FISH CO 1099
ances but still refused to agree to an arbitration proce-
dure , insisting that K Dahl would make all the decisions
on grievances . Dahl still insisted on a no-strike /no-lock-
out clause . Respondent still wanted the elimination of 2-
1/2 holidays , to restructure the vacation system to 1700
hours worked rather than 1300 hours , substantially de-
crease vacation leave, eliminate pension programs,
reduce health and welfare payments from $123 to $50
contributions , and almost totally eliminate seniority The
Employer could select for layoff anyone he wanted to
regardless of seniority because such seniority would be
based on continuous employment for 6 months which,
based on the historical operation of the plant , would be
impossible to achieve The Company also sought an un-
limited right to use bargaining unit personnel at any time
without regard to their status as full -time or part-time
employees or seniority . There was no discussion about
the species of fish to be processed at Dahl during this
meeting
Although no wage proposals had been made , Dahl and
his representatives discussed financial aspects of the op-
eration , as well as the economics of the fishing industry
in general . The Company was asked if it was claiming
inability to pay . It stated , "No " At the end of the meet-
ing, Dahl said there would either be a large number of
changes or the plant would be closed . (See the uncontro-
verted testimony of Lester Peck Tr 205.)
The Company 's March 9, 1982 letter reasserts that
Dahl Fish Company only processed bottom fish at the
main plant , contrary to Dahl 's testimony that salmon
processing was transferred to the Dahl plant "as
needed "; and that dogfish had been processed at that
plant , albeit pursuant to a claimed test . In another letter
to Finn dated March 9 , 1982, Jeffery proposed a wage
scale which would pay apprentices, floormen , dockmen,
cleanup men , and swampers $5.50 an hour ; unloaders,
$5.50 per hour ; truckdrivers, $6.85 per hour; journeymen
filletmen , $6 per hour; premium filletmen , $6 per hour,
master filletmen , $6.85 per hour , and packagers and
packers, $5.50 per hour
c Bargaining session of March 31
During this session , the parties again discussed the
need of Respondent to receive economic relief. The
Company proposed an alternative grievance procedure,
which , as the third step , made the president of Dahl the
ultimate arbiter of the grievance The testimony about
when the Union made a wage proposal is confusing It
was either at this meeting or the next that the Union
gave the Company its wage proposal . This fact is not
outcome determinative . The Union's wage proposal in-
cluded a wage scale for the processing of dogfish. The
Union 's proposal also contained a note that no employees
would be required to "cut" dogfish . The employees
would have the individual option to process dogfish The
Company took the position that no unit work was being
performed at the main plant . They were processing dog-
fish , which was an activity the unit members refused to
engage in . Finn informed the Company that they did not
refuse to cut dogfish , that they only refused to process
dogfish at the rate proposed by the Company on Decem-
ber 4 , 1981. The Union again asked for the information
requested in the February 26 letter.
Also during this meeting, there was a discussion in
which the term "impasse" arose According to K. Dahl,
Peck said , "We are getting nowhere. We reached an im-
passe and I think we better call in a mediator ." Finn ad-
mitted that there was a discussion between Dahl and
Peck over the work " impasse ." Peck claimed that he
stated it was evident the parties could not make any fur-
ther progress and needed the assistance of a Federal me-
diator, offering to notify the Federal mediator . Jeffery
agreed to the proposal Peck did admit that the subject
of an impasse arose The testimony of Bud Moena ap-
pears the most credible recitation of the discussion, based
on the clarity of his recollection , position as an employee
of Dahl, inherent probabilities , and demeanor . According
to Moena , Peck made the statement that the parties ap-
peared to be getting nowhere with the negotiations and
that they would need the assistance of a mediator. Jeff-
ery inquired if Peck meant that the parties were at an im-
passe. Peck said yes, hesitated a minute , and then said,
"Well, no, not at an impasse I mean that we cannot
made [sic] any further progress at this time without a
mediator "
Also during this meeting, the letter the Company sent
the Union asserting that Moena refused to cut dogfish
was discussed . Both Feenstra and Moena said no one re-
fused to cut dogfish , they refused to do it for $6 an hour.
This explanation , plus the finding above that Moena was
never shown to have had authority or even apparent au-
thority to represent the Union precludes the finding that
Moena 's statement constituted waiver by the Union of
the right to represent the unit members regarding the
processing of dogfish The Union clearly explained to
the Company that their understanding of Moena 's state-
ment was incorrect. There was no acquiescence to the
Company 's actions or claims. There was no express
waiver by the Union . The discussions during bargaining
clearly show no "conscious" yielding of the Union's po-
sition . Bunker Hill Co ., 208 NLRB 27 (1973 ), modified
210 NLRB 343 (1974 ); Proctor Mfg. Corp ., 131 NLRB
1166 (1966); and Clifton Precision Products , 156 NLRB
555 (1966). The Company never clearly claimed to the
Union during bargaining , according to the testimony of
record , that Moena would represent the unit and have
authority or apparent authority to bind the Union in his
representation even if the Company's version of his state-
ment was credited . Accordingly , it is concluded that the
Union , through Moena , did not waive its right to bargain
over the processing of dogfish as unit work or the re-
moval of the processing of dogfish from the unit. As
seen in the Union 's wage proposal, they definitely de-
sired to negotiate wages for the processing of dogfish
and also suggested for negotiation the granting of an
option to individual employees to avoid work they con-
sidered undesirable . This proposal was not construed by
Respondent as a refusal by all unit members to process
dogfish . See Electri-Flex Co. v. NLRB, 228 NLRB 847
(1977), enfd. as modified 570 F . 2d 1327 (7th Cir. 1978),
cert . denied 439 U.S. 911 (1978); Metromedia , Inc. v.
NLRB, 586 F . 2d 1182 (8th Cir 1978), enfg in relevant
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part 232 NLRB 486 (1977), Clarkwood Corp., 233 NLRB
1172 (1977). Under the circumstances of this case, it
cannot be found that the Union, through action or inac-
tion, waived any of its rights to hold the Employer to
the agreement or relieved the Company from its duty to
bargain . United States Lingerie Corp., 170 NLRB 750
(1968); NLRB v. Spunn-Jee Corp., 385 F 2d 379 (2d Cir.
1967); decision on remand 171 NLRB 557 (1968); Mont-
gomery Ward Co., 137 NLRB 418 (1962).
The traditional test of waiver, as described in Beacon
Piece Dyeing & Finishing Co., 121 NLRB 953, 956-957
(1958);5 and Press Co., 121 NLRB 976, 977-978 (1958),6
have not been met and there is no basis for otherwise
finding substantiation for the claimed waiver.
d. Bargaining session of April 8
In addition to the negotiating committees, a Federal
mediator was also present at this meeting. The union
wage proposal was discussed, as noted above, either at
this session or the preceding one. K. Dahl admitted that
the Union's wage proposals contained substantial reduc-
tions "but it meant nothing . ..." He did not explain this
comment. (Tr. 615.) K. Dahl also believes that at the
meeting the Company agreed to reinstate the union-secu-
rity provisions of the prior contracts, having already
"given back" union recognition and many other points in
pnor meetings.
The Union had not received the information requested
in February and therefore asserted it was not prepared to
fully respond to the Company's demands for decreased
wages because it was awaiting an opportunity to review
that information. The Union responded to several prior
proposals by the Company with a written memorandum
containing certain suggestions modifying the Company's
original proposal. The Union also made some conces-
sions regarding recognition of the bargaining unit; the
number of supervisors permitted to perform bargaining
unit work; liberalization of the hours of work; receipt of
premium pay for overtime; and a "tightening up" of the
qualifications to collect holiday pay. Thus, it is clear
from the uncontroverted testimony of the parties that
concessons were made by both the Union and the Com-
pany at the April 8 bargaining session.
° Beacon Piece holds
[A]lthough the Board has held repeatedly that statutory rights
may be "waived" by collective bargaining , it has also said that such
a waiver "will not readily be inferred" and there must be "a clear
and unmistakable showing" that the waiver occurred The primary
issue in this case , therefore , is whether the Union "clearly and un-
mistakably" waived or "bargained away" its statutory rights to bar-
gaining on an increased workload and a general wage increase there-
for
6 In Press Co, the Board stated
It is well-established Board precedent that , although a subject has
been discussed in precontract negotiations and has not been specifi-
cally covered in the resulting contract, the employer violates Section
8(a)(5) of the Act if during the contract term he refuses to bargain,
or takes unilateral action with respect to the particular subject,
unless it can be said from an evaluation of the prior negotiations that
the matter was "fully discussed" or "consciously explored " and the
union "consciously yielded" or clearly and unmistakably waived its
interest in the matter
e. Bargaining session of April 15
The mediator also attended the April 15 meeting. Ac-
cording to Dahl's uncontroverted admission , the Compa-
ny made more concessions . He could not remember the
exact nature of such concessions , but they made some on
wages. The Union 's wage proposal was discussed. The
Union still had not received the requested information
and thus felt unprepared to address the economic pro-
posals of the Company . The mediator concluded the
meeting by observing that there did not appear to be any
more movement , or that they would get resolution of the
problems that day , and recessed the meeting subject to
call.
f. Bargaining session of September 10
The next bargaining session was not called until Sep-
tember 10. This meeting occurred after the Employer
had sent out its letter offering all employees who were
members of the unit an opportunity to be rehired. The
letter of record, dated July 15, 1982, and addressed to
Finn , stated the belief that it was possible to operate at a
profit if the Company implemented its "last offer" and
indicated it would do so by commencing operations at 8
a.m., Monday, July 26. The wage rates implemented are
as follows: for apprentices, floormen, dockworkers,
cleanup men, swampers, $5.50 per hour; unloaders, $5.50
per hour; truckdrivers, $6.85 per hour; filleters, journey-
men, and premium , $6 per hour; master filleters, $6.85
per hour; and packaging , packers, $5.50 per hour.
The mediator was present during this meeting, which
was the last negotiating session of record The Federal
mediator opened the session by saying that the parties
had been in a "deadlock" since April and the meeting
was called to see if the deadlock could be resolved. No
one objected to the deadlock characterization. Finn indi-
cated that he understood the Company needed wage
concessions and suggested the best way to proceed was
to discuss the old contract from the beginning.
Finn started the session by reviewing what had tran-
spired over the last few months and tried to impress the
Company with the fact that the Union wanted a peacea-
ble settlement. He also stated that he knew certain unit
employees had been recalled at a wage rate lower than
that stated in the last contract; Finn indicated the Union
was going to seek that employees be made whole for the
difference between the contract rate and the amount the
Company was paying . Finn acknowledged that emotions
had run high and that there were threats to picket Dahl's
house and his various businesses Dahl had recently
moved into a new house, which was the subject of a
newspaper article appearing locally that seemed to have
raised passions . Finn also informed the Company that al-
though unit employees had wanted to picket various
Dahl enterprises, as well as his house, the Union had
been responsible for not permitting such activity. The
Company responded that most of the proposals the
Union found objectionable would "go away" if econom-
ic relief was granted. The Federal mediator at that point
requested the Union outline a proposal coming as close
as possible to the proposal proffered by the Company.
The Union prepared and presented its proposal. The
DAHL FISH CO 1101
question of whether the Union had always agreed to
process dogfish and whether it was bargaining unit work
was discussed, without agreement.
When the Union presented its wage proposal, K. Dahl
became upset, tore the existing contract in half, and
walked out Based on the credited testimony of Moena,
K. Dahl indicated that he was going to instruct his attor-
ney to file a lawsuit against the Union for harassment.
The meeting was adjourned subject to call if either party
determined they could make further concessions. It was
apparent that the principal stumbling block to resolving
differences was the economic issue . The Company had
not provided the Union with the information requested
in February at this juncture.
2. Discussion
It is undisputed that the Company implemented its last
wage offer and that wages and other benefits are manda-
tory subject of bargaining. Respondent argues that it
acted properly because there was an impasse and eco-
nomic need.
In general, an employer violates Section 8(a)(5) and (1)
of the Act if it unilaterally changes a term or condition
of employment which is a mandatory subject of bargain-
ing under Section 8(d) of the Act during the course of a
bargaining relationship. NLRB v. Katz., 369 U.S. 736, 743
(1962). It was undisputed that the parties were bargain-
ing over wages and other terms and conditions of em-
ployment. The bargaining obligation survives the expira-
tion of the agreement. See Stone Boatyard, 264 NLRB
981 (1982), which holds:
[Upon contract expiration, an employer must con-
tinue to apply the contract terms which govern the
employer/union relationship] unless the employer
gives timely notice of its intention to modify a con-
dition of employment and the union fails to timely
request bargaining.
Citing Bay Area Sealers, 251 NLRB 89, 90 (1980). There
is no claim that bargaining was not requested. As noted
above, the parties were bargaining about wages and
other benefits.
The Court, in NLRB v. Katz, 269 U.S. supra, 748, rec-
ognized that there "might be circumstances which the
Board could or should accept as excusing or justifying
unilateral action." Thus, Respondent's claims of justifica-
tion due to impasse and economic considerations warrant
consideration.
a. Impasse
Impasse has traditionally been an exception to the rule
against unilateral changes in conditions of employment.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967):
An employer violates his duty to bargain if, when
negotiations are sought or are in progress , he unilat-
erally institutes changes in existing terms and condi-
tions of employment. On the other hand , after bar-
gaining to an impasse, that is , after good -faith nego-
tiations have exhausted the prospects of concluding
an agreement , an employer does not violate the Act
by making unilateral changes that are reasonably
comprehended within his pre-impasse proposals
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is a disagreement, the contemporaneous
understanding of the parties as to the state of the
negotiations are all relevant factors to be considered
in deciding whether an impasse in bargaining exist-
ed.
Thus, the initial consideration is whether the parties
have exhausted the prospect of concluding an agreement.
Ibid. Inasmuch as there were concessions at all negotiat-
ing sessions, including another wage proposal, which
was considered the key issue by both the Union and the
Company of September 10, 1983, after the unilateral
change, the factual situation does not support a finding
that the five meetings prior to the unilateral action and
before the claimed impasse resulted in a closure of all
avenues to an agreement or to a complete deadlock with
no prospect of reaching agreement. Sioux Falls Stock
Yards Co, 208 NLRB 64 (1974) The making of conces-
sions during the five bargaining sessions before the uni-
lateral change and the proposal by the Union of a wage
concession at the sixth meeting of September 10 demon-
strate that continued face to face meetings had the poten-
tial of being fruitful
Assuming, however, that the deadlock comment of the
mediator at the September 10 meeting was correct and
accurately reflected the circumstances, the assumed im-
passe was fatally tainted by the failure of Dahl to engage
in good-faith bargaining. Dahl wrongfully refused to fur-
nish the Union with the information requested on Febru-
ary 28. For an impasse to act as an exception to the rule
against unilateral changes in terms and conditions of em-
ployment, the impasse must be resultant from good-faith
bargaining and not from an unlawful refusal to bargain.
NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). See
also National Fresh Fruit v. NLRB, 565 F.2d 1331 (5th
Cir. 1978).
b. Discussion of Respondent's alleged failure to provide
information
Most of the information requested by the Union on
February 28, 1982, was not supplied. Much of this infor-
mation was provided as responses to subpoenas by the
General Counsel or the testimony of various witnesses
during this trial. The Company takes the position that it
had no obligation to provide the information because no
bargaining unit work , as Respondents define it , was per-
formed at Dahl after December 18, 1981, as the Union
was informed during the course of negotiations and by
letter dated March 9, 1982. The information, according
to Respondent, related solely to Sea-Pac employees who
worked at the main plant, a practice the Union accepted
for years. Thus, it is argued that the information "is not
ordinarily pertinent to [the Union's] performance as a
bargaining representative" and the Union has the burden
of demonstrating the relevance of this information.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Citing San Diego Newspaper Guild Local 95 v. NLRB, 548
F.2d 863, 867-868 (9th Cir. 1977). Respondent also
argues that because the information is needed to process
a grievance does not automatically oblige the employer
to supply the information in the manner requested
Citing Detroit Edison Co. v. NLRB, 440 U.S. 301, 314
(1979). Relying on the Detroit Edison Co. v. NLRB deci-
sion, ibid., Respondent also claims that the salary infor-
mation sought was privileged. The General Counsel
cited no authority for its assertion that Respondent failed
to provide relevant information. In fact, the General
Counsel, in its brief, admitted very little, if any, authority
was cited for its various allegations.
Two cases which set forth the precedent that the duty
to bargain in good faith imposed upon an employer
under Section 8(a)(5) of the Act includes the duty to dis-
close information to the employees ' bargaining represent-
ative which is relevant to that representative's collective-
bargaining obligations are: NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967); and NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956), see also Detroit Edison Co. v. NLRB,
supra.
The initial question for determination thus is whether
the material sought in the February 28, 1982 letter is rel-
evant to the legitimate collective -bargaining need of the
Union. United Aircraft Corp. v. NLRB, 434 F.2d 1198,
1204-1205 (2d Cir 1970), cert. denied 401 U.S. 993
(1971) The Union has the obligation of demonstrating
the relevance of information sought about nonunit em-
ployees. NLRB v. Goodyear Aerospace Corp., 388 F.2d
673 (6th Cir. 1968) This is a broad burden not applied
with great stringency. NLRB v. Rockwell-Standard Corp.,
410 F.2d 953 (6th Cir. 1969); ITT Corp. v. NLRB, 382
F.2d 366 (3d Cir. 1967); Gulf States Asphalt Co., 178
NLRB 405 (1969). The standard used to test relevance is
akin to that adopted in matters regarding discovery.
Amphlett Printing Co., 237 NLRB 955 (1978); Temple-
Eastex, Inc, 228 NLRB 203 (1977), enf. denied 579 F 2d
933 (5th Cir. 1978); NLRB v. Acme Industrial Co., supra.
"Potential relevance is sufficient." Henry F. Budde Publi-
cations, 242 NLRB 243, 245 (1979) "Under the Federal
Rules of Civil Procedure governing discovery, 'relevan-
cy is synonymous with germane,' and a party must dis-
close information if it has any bearing on the subject
matter of the case." Detroit Newspaper & Printing &
Graphic Communications Union Local 13 v. NLRB, 598
F.2d 267 (D.C. Cir. 1979). Accord: NLRB v. Acme In-
dustrial Co, supra.
Respondent 's suggestion that all the information
sought by the Union dealt with Sea-Pac employees was
not relevant, is found to be without merit. The Union
sought information dealing solely with matters "falling
under the work jurisdiction outlined in Article I of our
labor agreement " See General Counsel's Exhibit 8. The
information was sought for the purpose of processing a
grievance as well as for policing the contract with the
potential of garnering enough information to ascertain if
a charge should be filed with the National Labor Rela-
tions Board. As found in Henry F. Budde Publications,
supra, even if such information requested is held to relate
to nonunit employees , it is not a defense to the failure to
provide information if that information is relevant and
necessary to the processing of an outstanding grievance
and the policing of the contract. The letter clearly stated
that it was a grievance and related to contract enforce-
ment.
It is concluded that in this case the Union has demon-
strated "the probability that the desired information [is]
relevant, and that it [will] be of use to the union in carry-
ing out its statutory duties and responsibilities." NLRB v.
Rockwell-Standard Co, 410 F.2d 953, 957 (6th Cir. 1969),
quoting from NLRB v. Acme Industrial Co., supra, 385
U.S at 437. See also Brown Newspaper Publishing Co.,
238 NLRB 1334, 1337 (1978). A broad disclosure rule is
crucial to full development of the role of collective bar-
gaining under the Act, "for [u]nless each side has access
to information enabling it to discuss intelligently and deal
meaningfully with bargainable issues, effective negotia-
tion cannot occur." Detroit Newspaper Printing & Graphic
Communications Union Local 13 Y. NLRB 598 F.2d at
271 supra. Accord: San Diego Newspaper Guild Local 95
v. NLRB, 548 F.2d at 866-867, supra. Respondents' claim
that no unit work is involved does not abrogate their ob-
ligations to disclose relevant information. To find other-
wise would permit an employer to unilaterally frustrate a
union's attempt to police the contract or knowledgeably
process a grievance by its own contract interpretation.
As the court stated in San Diego Newspaper Guild Local
95 v. NLRB, 548 F.2d at 868-869 supra:
When [a] union asks for information which is not
presumptively relevant, the showing by the union
must be more than a mere concoction of some gen-
eral theory which explains how the information
would be useful to the union. . . . To hold other-
wise would be to give the union unlimited access to
any and all data which the employer has. Converse-
ly, however , to require an initial, burdensome show-
ing by the union before it can gain access to infor-
mation which is necessary for it . . . defeats the
very purpose of the "literal discovery standard" of
relevance which is to be used . Balancing these two
conflicting propositions, the solution is to require
some initial, but not overwhelming, demonstration by
the union . . . [Emphasis added ]
The information was sought during bargaining where
operations were ostensibly terminated, yet it appeared
that the work of the laid-off bargaining unit members
was being performed by other persons during the term of
the contract. This interest is one which "vitally affects"
the unit employees. Chemical Workers Local 1 v. Pitts-
burgh Glass, 404 U.S. 157, 178-179 (1971). Clearly this
was an erosion of the bargaining unit in which none of
the unit members, with the exception of the truckdriver,
was still working and yet, as found elsewhere, unit work
was being performed at Respondents The activities did
affect the unit members' hours, wages, job security, and
working conditions for unit members were not receiving
wages and were not working at the time unit work was
being performed The issue of whether unit work was
being performed while the unit members were on call
clearly establishes an issue concerning wages, job compe-
tition , and other matters that create a legitimate union in-
DAHL FISH CO. 1103
terest . See American Federation of Musicians v. Joseph
Carroll, 391 U.S . 99, 106 ( 1968). See generally Leland
Stanford Junior Univ ., 262 NLRB 136 (1982)
That the letter constituted a grievance further adds to
the relevance of the requested material for the contract
by its terms covers the processing of all seafood , and Re-
spondent could not unilaterally abrogate the efficacy of
the contract by deeming certain work to be that of non-
unit employees of a company found herein to be a single
employer . Even if such a finding were not made, the
Union is entitled to information necessary to evaluate the
merits of the Company 's claim in pursuance of its griev-
ance . This case is analogous to that noted in Henry F.
Budde Publications , 242 NLRB supra at 246 , quoting
Safeway Stores , Case 23-CA-6451:
[A] Union may properly seek information concern-
ing such excluded categories as supervisors if it is
shown to be necessary to determine whether certain
individuals belong in the unit and have not been im-
properly designated and excluded as supervisors.
Here , we have a claim by an employer that certain em-
ployees are properly excluded from the unit . Similar to
the Safeway Stores case holding , the Union is entitled to
the information necessary to evaluate the merits of the
Employer 's claim of exclusion to pursue its grievance
and to police the contract since the scope of the contract
itself was placed in issue by Respondent claiming that in-
dividuals were not performing unit work.
As noted above , the Company also asserts that even if
the requested information were found to be relevant, it is
confidential and privileged against disclosure . In its argu-
ment , Respondent only raised the issue of privilege re-
garding the salary information . Even assuming such in-
formation were privileged , the Union was clearly enti-
tled, as found above , to the other information sought and
Respondent 's refusal to provide the other information
clearly violated Section 8 (a)(5) and (1) of the Act.
The claimed privilege is also found to be a nonmeritor-
ious defense in this case . The basis for this finding in-
cludes the fact that the salary information is only one
item of information sought by the Union , yet all the in-
formation was not provided . There was no reason given
for the failure to provide such information as the names
and addressed of persons performing bargaining unit
work as defined in the contract or provide any descrip-
tion of the work assigned to and performed by each em-
ployee. Furthermore , the Company provided the sought
salary information as part of its affirmative defense of
economic justification for certain actions as well as vol-
untarily in response to subpoenas served by the General
Counsel without a similar claim or privilege. 5
The Company's bare claim of privilege was not shown
to have legitimacy and substantiality as demonstrated by
the willingness of the Company to voluntarily provide
such information at trial or in response to subpoenas. It is
concluded that Respondent has failed to substantiate its
claim of privilege. See Minnesota Mining & Mfg . Co., 261
NLRB 27 (1982). Compare Detroit Edison Co . v. NLRB,
supra , in which the balancing test would require more
than the bare claim of privilege in light of Respondent's
failure to provide any of the other relevant information,
when Respondent voluntarily provided that information
when it served its interest in presenting an affirmative
defense and when it made no attempt to provide some of
the information subject to the claim of privilege or to
devise a method of presenting the information when it
could protect the claimed privilege . For example, there
was no attempt to provide an average wage for all em-
ployees or employees performing certain work such as
floormen . All the surrounding circumstances of this case
attack the validity of the claimed privilege . Borden
Chemical Co ., 261 NLRB 64 (1982). See also Colgate-Pal-
molive Co., 261 NLRB 90 (1982). Thus , Respondent
should be ordered to supply the Union with the request-
ed information to the extent it has not already been sup-
plied . That some of the information was eventually pro-
vided in January 1983 and at trial does not exculpate Re-
spondent for the delay of many months in providing in-
formation after the request . "Such a delay is unreason-
able and in itself conduct violative of Section 8(a)(5) of
the Act ." K & K Transportation Corp., 254 NLRB 722,
736 (1981).
c. Other alleged failures to bargain in good faith
The General Counsel also alleges that Respondent en-
gaged in other types of bad -faith bargaining . These alle-
gations were raised regarding the claim of impasse and
were not raised in the complaint. Accordingly , these al-
legations will be considered only in connection with the
validity of the claim of impasse and not as additional vio-
lations of Section 8(a)(5) of the Act.
The finding that Respondent failed to provide informa-
tion in violation of Section 8(a)(5) and ( 1) of the Act,
and thus engaged in activity which frustated bargaining,
precluding the finding of an impasse , makes it unneces-
sary to consider Respondent 's initial contract offer,
which was characterized as eliminating all benefits
"except the word 'union,"' as behavior that also bespoke
failure to bargain in good faith . However, in an abun-
dance of caution , this allegation will be addressed.
The General Counsel asserts that K. Dahl 's statement,
"I think we practically took everything out of it [con-
tract] except the word , union" (Tr. 598), cojoined with
its refusal to make any meaningful motion on its entire
package including the "drastic wage cuts," bespeaks a
pattern of bad-faith bargaining. Citing K & K Transporta-
tion Corp., supra, 736, which states:
[T]he nature of an employer 's proposals are material
factors in determining the employer 's motivation.
Thus, an intransigent position as to proposals which
are predictably unacceptable to the Union may indi-
cate a predetermination not to reach agreement but
rather produce a stalemate in order to frustrate bar-
gaining and undermine the statutory representative.
6 That the information has been provided voluntarily obviates the need
to consider the imposition of appropriate safeguards to protect the
claimed privileged information
The Company's proposals were not so "harsh , vindic-
tive , or otherwise unreasonable " that they warrant a pre-
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumption that they were proffered in bad faith. Chevron
Chemical Co., 261 NLRB 44, 46 (1982)
As found above , during bargaining and throughout the
period of negotiation, which was composed of only five
bargaining sessions, Dahl did agree to the reinsertion into
the contract of many of the provisions initially deleted
and clearly indicated to the Union 's bargaining commit-
tee that , with the exception of wages and certain other
economic issues, all the other matters were not really in
dispute . The circumstances surrounding the bargaining
do not bespeak other than traditional hard bargaining en-
gaged in by both parties. See Chevron Chemical Co., ibid.
The Company never refused to meet at reasonable
times , or with reasonable frequency , to discuss a propos-
al. There was no showing that any issue was not dis-
cussed or that the principal issues were not discussed at
length. That the Company indicated unless its economic
proposal was accepted , all the terms and conditions of
the preceding contract were unacceptable , was a posture
not maintained to produce a stalemate for the Company
made concessions without agreement on wages. The
record does not support a finding that the conduct of the
Employer, by starting from such a position, clearly
showed an intent not to enter into a contract of any
nature. NLRB v. United Clay Mines Corp., 219 F.2d 120,
125 (6th Cir. 1955); and Pease Co. v. NLRB, 666 F.2d
1044, 1049 (6th Cir. 1981). Admittedly, the Company's
position does present a close question , but upon consider-
ation of all the factors , including the concessions made
by the Company and its indication that the economic
issues were the primary keys to ultimate agreement, it is
found that the Company desired "to reach ultimate
agreement and enter into a collective -bargaining con-
tract." NLRB v. Insurance Agents, 361 U.S. 477, 485
(1960). As negotiations progressed, it appeared that on
balance the Company had made additional concessions
resulting in a package that was in fact more favorable
than the previous proposal. See Reliable Tool Co., 268
NLRB 101 (1983). The General Counsel has failed to
show, by substantial evidence, factors sufficient to war-
rant a finding that the original offer was proffered
and/or maintained in bad faith.
If Dahl had bargained to impasse on its package with-
out making the aforementioned concessions , then the
facts would support a finding that its proposal was de-
signed to frustrate bargaining and that it thus bargained
in bad faith . Having found no impasse , this exception to
the bar against implementation of unilateral changes is
found to not obtain in this proceeding. Thus, consider-
ation will be given to Respondent's assertion that eco-
nomic exigencies required its actions.
d. Economic defenses to unilateral change allegation
The evidence suggests some economic relief was war-
ranted to ensure the continued prosperity of the Compa-
ny. It is undisputed that there was no assertion that the
Company was claiming an inability to pay the wages
agreed on in the collective-bargaining contract due to
expire April 1, 1982. Thus, the issue for consideration is
whether the changed circumstances in the fishing indus-
try were of such a nature , absent impasse or impecunios-
ity, the Employer was warranted in unilaterally changing
terms and conditions of employment Dahl's disavowal
of inability to pay takes this case out of the class of pro-
ceedings that consider employer actions predicated on
bankruptcy or similar unusual circumstances. As the
Board stated in Bob's Big Boy Family Restaurants, 264
NLRB 1369 (1982):
As noted above, Respondent's primary concerns in
deciding to subcontract were escalating costs and
portion control. As the Court noted in Fibreboard,
[citation omitted], production cost matters, which
by their very nature include wages, fringe benefits,
and other employment costs, over which the union
can exercise substantial control, are "particularly
suitable for resolution within the collective bargain-
ing framework, and industrial experience demon-
strates that collective negotiation has been highly
successful in achieving peaceful accommodation of
the collective interest."
Fibreboard Corp. v. NLRB, 379 U.S 203 at 213-214
(1964). See also First National Corp v. NLRB, 452 U.S.
666 (1981), which discusses plant closure, as mentioned
elsewhere herein , a situation which does not obtain in
this case. First National, does make a distinction between
issues "particularly suitable for resolution within the col-
lective-bargaining framework," Fibreboard, supra at 379
U.S. 213-214, and items not suitable for resolution
through the collective-bargaining process for such
changes represent "a significant change in operations,"
First National, 452 U.S. supra at 688, or is a decision
lying at the very core of entrepreneurial control. General
Motors Corp., 191 NLRB 951, 952 (1951). The issue of
wages, as noted above, is found to be that which is par-
ticularly susceptible to resolution under collective bar-
gaining under the facts and circumstances presented
herein and changed economic circumstances do not obvi-
ate the nature of the obligation in this case. To find oth-
erwise would let a turn in economic circumstances
permit an employer to either transfer work to another
unit due to a desire to avoid contract wage rates or uni-
laterally implement such wage rates completely obviat-
ing the efficacy of collective bargaining
Unlike some of the cases cited herein involving
changed operations, there is no strong management-
rights clause contained in the operative collective-bar-
gaining agreement to arguably permit such action. Inas-
much as it has been found that the Union and Respond-
ent did not reach a bargaining impasse, that economic
circumstances did not abrogate the bargaining obligation,
and the Union did not waive its right to bargain about
the changes which were implemented, Respondent's im-
plementation of its last offer in July 1982 was violative of
its duty to bargain See Stone Boat Yard, supra. This uni-
lateral implementation of the last offer without impasse
or other exception to the rule against such action is an
independent violation of Section 8(a)(5) and (1) of the
Act. Sioux Falls Stock Yard Co, 208 NLRB 64 (1974)
G. The Alleged Interrogation by Rosenhall
Respondent Dahl, by admitted Supervisor Otto Rosen-
hall, called a meeting of all Dahl employees shortly after
DAHL FISH CO
the September 10 negotiating session According to Ro-
senhall, the meeting was prompted by the comment
made by Finn at the negotiating session that the Union
was going to seek back wages for the employees in the
amount of the difference between the contract rate and
the rate unilaterally implemented by Dahl. All witnesses
agreed that Rosenhall addressed the meeting of approxi-
mately 20 to 30 employees, inquiring if those emloyees
acceded to come back to work for Dahl at the lower
noncontract wage rate. Three employee witnesses, Char-
lene Marshall, Gary Wayne Albans, and Carol Rogers,
stated that Rosenhall also pointed to each employee and
asked them individually if the Union would support
them; all replied no, stating they were fearful they would
lose their jobs if they answered otherwise. They also tes-
tified Rosenhall said Dahl was no longer a union plant
According to Albans, Rosenhall said that Dahl was
going to institute a suit against the Union . Rosenhall
denied all statements other than asking employees if they
agreed to work at the lower wage rate. The employees'
testimony is credited based on their status as current em-
ployees, their candor, inherent probabilities, corrobora-
tion , clarity of recall, and demeanor Also, all the unit
employees received Dahl's July letter stating that em-
ployment, if accepted, would be at a lower rate. Rosen-
hall did not explain his mannerism of pointing at each in-
dividual. This need for reestablishing that employment
would be at a lower wage rate and the lack of rationale
for this behavior, other than coercive impact, require a
finding that the employees' testimony is credible.
Based on the credited testimony,.the question is there-
fore whether Rosenhall's pointing to each employee and
inquiring if the Union represented them is violative of
Section 8(a)(1) of the Act. The General Counsel asserts
such an inquiry is violative of the Act but cites no au-
thonty in support of its position "The test of interfer-
ence with the right of self-organization is not whether an
attempt at coercion has succeeded or failed, but whether
the employer engaged in conduct which reasonably
tends to interfere with, restrain, or coerce employees in
the free exercise of their Section 7 rights." NLRB Y.
Berger Transfer & Storage Co., 678 F.2d 679, 689 (7th Cir.
1982) Accord. Jay's Foods, Inc. Y. NLRB, 573 F.2d 438,
444 (7th Cir 1978), cert. denied 439 U S 859 (1978). The
questioning to be violative must have a reasonable tend-
ency to coerce an employee. "It must be viewed and in-
terpreted as the employee must have understood the
questioning and its ramifications." NLRB Y. Gogin Truck-
ing, 575 F.2d 596, 600 (7th Cir. 1978), quoting Hughes &
Hatcher, Inc. v. NLRB, 393 F.2d 557, 563 (6th Cir. 1968).
Also the remarks must be considered under the totality
of the circumstances to evaluate their meaning for the
workers. NLRB v. Kaiser Agricultural Chemicals, 473
F 2d 374, 381 (5th Cir. 1973). Accord. NLRB v. Laredo
Coca-Cola Bottling Co., 613 F.2d at 1342 (5th Cir 1980)
Generally, five factors have been utilized in analyzing
the totality of the circumstances to determine if question-
ing was coercive These factors include: (1) the back-
ground of the employer-employee union relations ; (2) the
nature of the information sought; (3) the questioner's
identity; (4) the place and method of interrogation; and
1105
(5) the truthfulness of the reply. NLRB v. Rich's Precision
Foundry, 667 F.2d 613, 624 (7th Cit 1981).
The application of these criteria requires a finding that
the questioning was indeed coercive. The Employer had
recently reopened its plant, the meeting was held shortly
after a union meeting where the Union president indicat-
ed that he was going to seek backpay remedies for the
employees working at a wage lower than the collective-
bargaining agreement required, the nature of the infor-
mation sought was the employees' attitude toward the
Union; and the plant manager was the individual seeking
such information at a meeting that was called pursuant to
K. Dahl's instructions and where attendance was manda-
tory. All the witnesses who were interrogated individual-
ly at this group meeting stated they did not reply truth-
fully to the question. All five factors are present. It is
concluded that Dahl engaged in coercive interrogation in
violation of Section 8(a)(1) of the Act. See NLRB v.
Canco, Inc., 340 F.2d 803, 804 (5th Cir. 1965), cert.
denied 382 U.S. 926 (1965)
H. Did Respondents Violate Section 8(a)(1) of the Act
by Filing a Civil Lawsuit Against the Union?
On November 29, 1983, Respondents filed a motion to
reopen the transcript and take judicial notice of a state
court order in the matter of Sea-Pac, Inc. v. Local 44 et
al., King County Case No. 82-2-16114-4. The King
County Court denied the Union's Motion for Summary
Judgment and dismissal for lack of cause of action, indi-
cating an initial determination by that court that there
may be a genuine issue of material fact raised in that pro-
ceeding. After considering argument on the matter, judi-
cial notice is taken of this order. Nyari Odette, Inc., 229
NLRB 137 (1977) Although this order is not dispositive
of the issue, it indicates a preliminary finding of potential
merit to Respondent's claims. The Supreme Court, in Bill
Johnson's Restaurants v. NLRB, 461 U S 731, 746 (1983),
holds that if a state plaintiff is able to present the Board
with evidence that shows his lawsuit raises genuine issues
of material fact, the Board should proceed no further
with the unfair labor practice proceedings but should
stay those proceedings until the state court suit has been
concluded. The state court's order precludes a decision
that the matter brought before it is baseless and was
raised with an intent to retaliate against an employee or
the Union for the exercise of rights protected by Section
7 of the Act. Until the state court suit has been conclud-
ed, no such finding can be made. That the state court
order was rendered without prejudice does not alter this
finding. If the state court alters its view in a subsequent
order, then such action will be considered There is no
basis to delay the remainder of the proceeding. Accord-
ingly, it is determined that the complaint in Case 19-
CA-15336, insofar as it relates to the state court suit,
shall be severed from this proceeding and stayed until
the state court has resolved the matter pending before it
in King County Case 82-2-16114-4. To facilitate reach-
ing a decision in the event plaintiffs do not prevail in
King County Case 82-2-16114-4, the record will be re-
tained.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
On the basis of the foregoing findings of fact and the
entire record, I make the following
CONCLUSIONS OF LAW
1. Respondents Dahl Fish Company and Sea-Pac, Inc.
constitute a single integrated business enterprise and are
a single employer within the meaning of the Act at all
times material herein. They are employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. United Food and Commercial Workers Union Local
44, Chartered by United Food and Commercial Workers
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent Dahl Fish
Company at its Bellingham, Washington facility engaged
in production, wholesale, retail, canning, packaging,
freezing, salting, curing, or any other form of handling
fresh or frozen fish or seafood, and truckdriver produc-
tion employees, but excluding guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material, United Food and Commercial
Workers Union Local 44 has been the exclusive collec-
tive-bargaining representative of all employees employed
in the unit found appropriate in paragraph 3 above for
the purpose of collective bargaining within the meaning
of Section 9(a) of the Act
5. Respondent, by laying off employees on December
18, 1981, because they refused to accept the proposed
midterm contract modification; reducing hourly wages
for the processing of dogfish; replacing these employees
with nonunion employees; and/or transferring this unit
work to nonunion facilities of Sea-Pac, violated Section
8(a)(1) and (3) of the Act.
6. Sea-Pac, Inc. and Dahl Fish Company are a single
integrated business enterprise and a single employer.
7. Unilaterally reducing benefits, both before and after
the expiration of the collective-bargaining agreement, in
the absence of impasse, is a violation of Section 8(a)(l)
and (5) of the Act.
8. Unilaterally implementing its "last and final offer"
about August 1, 1982, when there was no impasse in the
negotiations is a violation of Section 8(a)(5) and (1) of
the Act.
9. Refusing to provide relevant information as request-
ed by the Union is a violation of Section 8(a)(5) and (1)
of the Act
10. Interrogating employees about their union affili-
ation and sympathies is a violation of Section 8(a)(1) of
the Act
11. A unit appropriate for collective bargaining is all
employees engaged in production, wholesale, retail, can-
ning, packaging, freezing, salting, curing, or any other
form of handling fresh or frozen fish or seafood, and
truckdriver production employees, but excluding super-
visors and guards as defined in the Act.
12. The portion of the consolidated complaint issued in
Case 19-CA-15336 alleging Respondents violated Sec-
tion 8(a)(1) of the Act by initiating and prosecuting a
lawsuit against the Union in the Superior Court of the
State of Washington for King County in retaliation for
the Union's filing an amended charge, which resulted in
an amended complaint issuing in Case 19-CA-14460,
shall be severed from this proceeding and stayed until
resolution of the state action in the matter of Sea-Pac,
Inc. v. Local 44, King County Case 82-2-16814-4.
THE REMEDY
Having found that Dahl Fish Company and Sea-Pac,
Inc. engaged in certain unfair labor practices, I recom-
mend 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 ex-
isting before the placing of all the unit employees on call
in the above -described bargaining unit in Bellingham,
Washington, and to make those employees whole for any
losses of wages and other benefits which would have ac-
crued to them under those terms of employment, with
interest to be paid on amounts owing and to be comput-
ed 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 opportuni-
ty 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 Respondent offer these em-
ployees 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 deter-
mined 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 recommend-
ed6
ORDER
The Respondents, Sea-Pac, Inc. and Dahl Fish Com-
pany, Bellingham, Washington, their officers, agents, suc-
cessors, and assigns, shall
If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
DAHL FISH CO. 1107
1. Cease and desist from
(a) Laying off employees because they refused mid-
term contract modifications and replacing those employ-
ees with nonunion employees and/or transferring unit
work to nonunion facilities.
(b) Unilaterally reducing benefits, refusing to provide
the Union with relevant and necessary information or
otherwise bargaining in bad faith with the Union, such as
unilaterally implementing offers in the absence of im-
passe and unilaterally implementing midterm contract
modifications.
(c) Interrogating its employees regarding their union
affiliation or sympathies in a manner which interferes
with the rights guaranteed them in Section 7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer immediate and full reinstatement to the em-
ployees who were placed on call on December 18, 1981,
to their former jobs or, if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges, and for all em-
ployees, including those recalled, make them whole for
any loss of pay suffered by reason of Respondent's ac-
tions in the manner set forth in the remedy section of
this decision.
(b) Remove from its records and files any warning no-
tices, suspensions, or other notations dealing with the ter-
minations, layoffs, forced leaves of absence, and/or other
discriminatory actions against employees found herein.
Respondent shall write a letter to each affected employ-
ee informing him or her that it has complied with this
provision.
(c) On the request of the United Food and Commer-
cial Workers Union Local 44, chartered by United Food
and Commercial Workers International Union, AFL-
CIO, rescind the unilaterally implemented proposals.
(d) To bargain in good faith with the United Food and
Commercial Workers Union Local 44, as the exclusive
representative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
and, if an agreement is reached, embody such under-
standing in a signed agreement and provide, on request,
all the information requested in the Union's February 26,
1982 letter not already furnished.
(e) The portion of the consolidated complaint issued in
Case 19-CA-15336 alleging Respondents violated Sec-
tion 8(a)(1) of the Act by initiating and prosecuting a
lawsuit against the Union in the Superior Court of the
State of Washington for King County in retaliation for
the Union's filing an amended charge which resulted in
an amended complaint issuing in Case 19-CA-14460 be
severed from this proceeding and stayed until resolution
of the State action in the matter of Sea-Pac, Inc. v. Local
44, et a!., Case 82-2-16814-4.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Post at its Bellingham, Washington place of busi-
ness copies of the attached notice marked "Appendix."7
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT decide, without the consent of the
Union which represents all our fish company employees
employed in the 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 to exclude one foreman in
each department, with a maximum limit of three foreman
in the plant to do physical work; to transfer any of our
processing operations from the 601 W. Chestnut Street,
Bellingham, Washington facility to Sea-Pac's facilities or
use Sea-Pac or other nonunit employees to perform bar-
gaining unit work, because the bargaining unit represent-
ative and the bargaining unit refused to agree to a mid-
term contract modification which would substantially
lower the hourly wage rate paid for a particular process-
ing procedure.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT terminate, lay off, or otherwise dis-
criminate against unit employees as a consequence of
that decision
WE WILL NOT coercively interrogate our employees
by asking them if the Union represents them, or in any
other manner interfere with the rights guaranteed them
by Section 7 of the National Labor Relations Act.
WE WILL NOT implement changes in the contract
during the efficacy of the collective- bargaining agree-
ment or after the collective-bargaining agreement has ex-
pired, absent an impasse , by changing established terms
and conditions of employment, including wage rates and
certain health and welfare benefits and many other items
in the contract.
WE WILL NOT refuse to bargain collectively with
United Food and Commercial Workers Union, Local 44,
chartered by United Food and Commercial Workers
International Union, AFL-CIO by refusing to furnish
relevant requested information upon request.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL bargain collectively with the Union with re-
spect to the decision to transfer certain processing oper-
ations, such as the processing of dogfish and salmon, to
Sea-Pac, Inc. facilities or Sea-Pac, Inc employees or
other nonunit employees because of comparative labor
costs and because the Union and its employees refused to
agree to a midterm contract modification, as required by
the National Labor Relations Act.
WE WILL restore at Dahl Fish Company in Belling-
ham, Washington, any work previously performed at
that facility by unit employees represented by the Union,
which has been transferred pursuant to the above-men-
tioned unlawful decision.
WE WILL bargain, on request, with the aforementioned
Union as the exclusive representative of our employees
in the appropriate unit concerning wages, hours, vaca-
tion , and health and welfare benefits, and other terms
and conditions of employment and, if an understanding is
reached, embody it in a signed document. The appropri-
ate unit is:
All employees engaged 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 excluding supervisors and guards as defined in
the Act.
WE WILL offer reinstatement with backpay and inter-
est to all employees who were laid off on December 18,
1981.
WE WILL, on request, furnish the Union with all the
records requested by it from February 1982 to date re-
garding the work transferred to Sea-Pac facilities or Sea-
Pac employees or other nonunit employees.
WE WILL make whole our employees in the above-de-
scribed unit by paying all contributions 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 em-
ployees who contributed themselves to the maintenance
of health and welfare coverage and vacation benefits
after we unlawfully ceased contributing.
WE WILL notify, in writing, all persons employed in
the bargaining unit up to December 18, 1980, of their en-
titlement to damages for loss of wages and other benefits
WE WILL bargain collectively with the Union with re-
spect to wages, benefits, and other terms and conditions
of employment on the Union's request.
WE WILL rescind, on the Union's request, any unilater-
ally implemented wages, benefits, or other terms and
conditions of employment.
WE WILL remove from our records and files any
warning notices, suspensions, or other notations dealing
with the discriminatory actions against the employees
named above.
DAHL FISH COMPANY
SUPPLEMENTAL DECISION
JOAN WIEDER , Administrative Law Judge. On 30 De-
cember 1983 I issued a Decision in this case' finding that
the Supreme Court decision in Bill Johnson's Restaurants
v. NLRB, 461 U.S. 731 (1983), required the severing,
staying , and retaining of a portion of the complaint in
Case 19-CA-15336. That portion alleged that Respond-
ents Dahl Fish Company and Sea-Pac, Inc. violated Sec-
tion 8(a)(1) of the Act when, through an agent , they ini-
tiated and prosecuted a lawsuit against the Union in the
Superior Court in the State of Washington for King
County in retaliation for the Union's filing of an amend-
ed charge and its role in causing an amended complaint
to issue in Case 19-CA-14460. The state lawsuit was
pending at the time that the decision to sever, stay, and
retain was issued . The 19 December 1983 decision also
found that Sea-Pac, Inc. and Dahl Fish Co. were a single
employer or alter egos.2
On 9 May 1985 the Supreme Court of the State of
Washington granted the Union's Motion for Summary
Judgment and dismissed Respondent's claim . The Gener-
al Counsel filed a motion to reinstate the severed portion
of Case 19-CA-15336. An Order to Show Cause why
the record should not be considered closed by receipt of
the Supreme Court of the State of Washington's decision
was issued on 4 June 1985
Preliminary Matters
In response to the Order to Show Cause, Respondent
filed a motion for reconsideration3 arguing that because
' JD-(SF)-276-83
2 It was noted that the terms "single employer" and "alter ego" are
not used with great clarity or precision causing confusion regarding the
nomenclature of status
3 On 12 August 1985 the Board denied Respondent 's motion for special
permission to appeal the Order to Show Cause
DAHL FISH CO 1109
the above-referenced administrative law judge's decision
had been transferred to the Board for consideration of
their exceptions; the severed and retained issue as to the
retaliatory nature of the State court suit is currently
before the Board . Citing Hotel & Restaurant Employees
Local 2 v. NLRB, 735 F.2d 1152 (9th Cir. 1984). This
case does not support Respondent's contention that only
the Board has jurisdiction over the issue of the retaliato-
ry nature of the state court suit. The cited case holds
that the Board has jurisdiction after the administrative
law judge issued a decision on the matter In this in-
stance, the issue was not decided by the judge. Respond-
ent's petition for reconsideration is more in the nature of
an interim appeal from a judge's ruling. Respondent does
not question the right of a judge to. sever a portion of a
complaint for disposition in the manner provided by the
Supreme Court in the Bill Johnson decision, as follows
(461 U.S. at 745-746): "Hence, we conclude that if a
state plaintiff is able to present the Board with evidence
that shows his lawsuit raises genuine issues of material
fact, the Board should proceed no further with the §
8(a)(l)-§ 8(a)(4) unfair labor practice proceedings but
should stay those proceedings until the state-court suit
has been concluded." Cf. 5 U.S.C. Section 557(b)(c) of
the Board's Rules and Regulations, Section 102.45, and
Quaker Tool & Die, 169 NLRB 1148 (1968); NLRB Y.
Hotel & Restaurant Employees Local 681, 301 F.2d 149
(9th Cir. 1962)
Respondent further argues that the single employer-
alter ego issue is presently before the Board; which is
fundamental to resolution of the severed and retained
portion of the complaint and therefore should be deter-
mined by the Board The Company fails to specifically
explain why a judge's decision on the issue of whether
the state court suit was filed for retaliatory purpose
should be waived. The issue of whether the state's court
suit was instituted for retaliatory reason requires resolu-
tion of credibility issues and no good cause has been
shown for dispensing with an administrative law judge's
decision. I find that Respondent has failed to show there
is a need to dispense with my decision in this case Ac-
cordingly, Respondent's petition for reconsideration of
the Order to Show Cause is denied.
Respondent's Request to Admit Further Evidence
The Order to Show Cause afforded the parties an op-
portunity to demonstrate why the record should not be
considered closed by receipt of the decision of the Su-
preme Court of the State of Washington. Respondent re-
quested that the record be reopened to receive state
court documents and pleadings by the parties filed in the
state court proceeding .4 It argued that these pleadings
"are relevant to the purpose, intent, and legal validity of
Sea-Pac, Inc.'s claim in the State court proceeding." Re-
spondent further requests that "administrative notice" be
taken of these documents.
The Charging Party and the General Counsel object
to the admission of the additional material , arguing that
the opinion of the Washington Supreme Court provides
an adequate basis to decide the issues in this case. Alter-
natively, the Union seeds admission into the record of an
order and other materials5 in the event that Respondent's
request is granted The General Counsel argues that Re-
spondent's request should be denied because the docu-
ments are irrelevant.
The sought additions to the record break down into
two categories; pleadings and court rulings. I find that
the pleadings should not be admitted. Respondent has
failed to show with requisite specificity that the prof-
fered pleadings would assist in reaching a determination
on the issues. It also failed to indicate which portion of
these pleadings, if any, were relied on by the Washington
State Supreme Court in reaching its decision It has not
established that the proffered pleadings contain facts
which are not subject to reasonable dispute or could
readily be verified by resort to sources of unquestioned
accuracy. NLRB v. Big Bear Supermarkets No. 3, 640
F.2d 924 (9th Cir. 1980). Alco Venetian Blind Co., 253
NLRB 1216 fn. 2 (1981). Respondent failed to show that
the proffered pleadings are susceptible to notice under
Section 201 of the Federal Rules of Evidence or other-
wise.6 For example, it did not claim the material con-
tained newly discovered evidence or that it would be
useful as an admission . The proffered pleadings go to the
heart of the dispute and I must resolve the issues based
on proof not arguments contained in selected pleadings
filed in another proceeding.
Accordingly, Respondent's request for admission of
certain pleadings filed in the state court action will be
denied. I find that the trial court's second order denying
the Union's Motion for Summary Judgment; the court
commissioner's ruling granting direct discretionary
review filed 20 August 1984; the court commissioner's
ruling deferring decision of its motion for discretionary
review filed 15 March 1984; and, the decision of the Su-
preme Court of the State of Washington are appropriate
to be judicially noticed, and will be considered herein.
St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169
(10th Cir. 1979).
-Background
The Union initially filed a charge on 1 April 1982;
and, based thereon, a complaint was issued 20 May set-
ting a hearing date of 8 September 1982. There was no
request for a postponement.
The Union received a letter from K. Dahl, the presi-
dent and sole shareholder of various companies including
These documents include
I Plaintiffs first amended complaint for damages
2 The trial court's second order denying Defendent 's summary
judgment motion
3 The court commissioner 's ruling granting discretionary review
4 The brief filed by Sea-Pac, Inc with the Washington State Su-
preme Court
5 The Union seeks to admit
I Court commissioner 's ruling deferring decision of motion for
discretionary review, filed 15 March 1984
2 Brief of appellants , filed 22 October 1984
3 Reply brief of appellants , filed 23 January 1985
6 Zell Y Jocoby Bender, Inc, 542 F 2d 34 (7th Cir 1976)
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dahl and Sea-Pac, dated 15 July 1982. In the letter Dahl
recalled employees at wage rates lower than specified in
the collective-bargaining agreement. On 9 August Finn
wrote the Board and forwarded this letter. Finn's letter
informed the Board that Dahl Fish Company asserted
that an impasse be reached in their negotiations, which
was their justification for rehiring some unit employees
at reduced wage rates. Finn also stated that he believed
Dahl transferred some of the units' work to the Sea-Pac
plants. The Board failed to reply to Finn's letter.
On 30 August 1982 the parties attended a settlement
conference to determine if they could resolve their dif-
ferences prior to the commencement of the hearing. Im-
mediately before the settlement conference began, Finn
raised the matters mentioned in his 9 August letter. The
Region's representative advised Finn that matters raised
in his letter were not addressed in the complaint and he
would have to file an amended charge if they were to be
litigated. Finn then decided to file an amended charge to
assure that the Charging Party was afforded an opportu-
nity to litigate these matters. Upon receipt of this amend-
ed charge on 2 September 1982, the Region, the same
day, rescheduled the hearing from 8 September 1982 to
18 January 1983
On 16 November 1982 Sea-Pac filed a suit against the
Union. Its complaint, as amended, sought $250,000 dam-
ages for intentional interference with business relation-
ships; arguing that the Union and Finn deliberately de-
layed filing the amended charge knowingly and inten-
tionally to cause postponement of the hearing at the last
moment to disrupt the operation of the business. On 19
March 1984 Sea-Pac filed an amended complaint alleging
abuse of process by the Union. The Union moved for
summary judgment and dismissal of both causes of the
action. The Superior Court for King County denied the
motion. On appeal, the Supreme Court of the State of
Washington reversed the Superior Court and granted
summary judgment.
In its decision, the Supreme Court for the State of
Washington noted: "The motion must be denied unless it
appears beyond doubt that [plaintiff Sea-Pac] can prove
no set of facts, consistent with the complaint, which
would entitle the plaintiff to relief. [Citations omitted.]"
The Court found that Sea-Pac's harm was caused by the
Board's action of originally scheduling the hearing for 8
September, not the postponement.
Analysis and Conclusions
In Bill Johnson's Restaurants, supra, the Supreme Court
considered whether an employer violated Section 8(a)(4)
and (1) of the Act by filing a state court action against
the discharged employee and other picketers based on a
claim they engaged in mass picketing, harassment of cus-
tomers, and libeled the employer in retaliation for the
filing of an unfair labor practice charge. The Supreme
Court remanded the matter.
Respondent argues that in the Bill Johnson decision the
Court established a test that requires a finding that the
litigation was baseless before it can be determined to be
in violation of the Act. This argument is found to be
without merit in the instant proceeding. The Bill Johnson
decision initially addresses the issue of when the first
amendment right to petition for redress through the
filing of a lawsuit may be enjoined. The test in those cir-
cumstances is where the suit was "a mere sham filed for
harassment purposes." Id. 461 U.S. 731. The Court fur-
ther found "baseless litigation is not immunized by the
first amendment right to petition." This test was applied
by the Court to limit the Board's authority prior to the
issuance of a state court judgment, holding (461 U.S. at
746-747):
Just as the Board must refrain from deciding genu-
inely disputed material factual issues with respect to
a state suit, it likewise must not deprive a litigant of
his right to have genuine state-law legal questions
decided by the state judiciary. While the Board
need not stay its hand if the plaintiffs position is
plainly foreclosed as a matter of law or as otherwise
frivolous, the Board should allow such issues to be
decided by the state tribunals if there is any realistic
chance that the plaintiffs legal theory might be
adopted.
In instances where the Board must allow the law-
suit to proceed, if the employer's case in the state
court ultimately proves meritorious, and he has
judgment against the employees the employer
should also prevail before the Board, for the filing
of a meritorious lawsuit, even for a retaliatory
motive, is not an unfair labor practice. If the State
court renders judgment against the employer how-
ever, or the suit is withdrawn or is otherwise shown
to be without merit, the employer has had its day in
court, the interest of the State in providing a forum
for its citizens has been vindicated, and the Board
may then proceed to adjudicate the unfair labor
practice allegation. If the employer's suit is proved
without merit, the Board would be warranted in
considering that finding when it determines if the
suit was filed in retaliation for the exercise of the
employees' § 7 rights. 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.
A threshold issue is whether a state court suit filed
against the Union is protected by Section 8(a)(1) of the
Act.7 To resolve this issue, I must determine whether
the filing of the lawsuit against the Union and its agent is
restraint or coercion of employees in the exercise of
rights guaranteed by the Act. The protections of the Act
have been extended to labor organizations who file
unfair labor practice charges. West Point Pepperell, 200
NLRB 1031, 1039-1040 (1972). As the General Counsel
persuasively argues , restraining employees from exercis-
ing their right of access to the Board and its processes
can form the basis for finding an independent violation of
Section 8(a)(1) of the Act. Citing American International
Aluminum Corp., 149 NLRB 1205, 1210 (1964); Electro-
motive Mfg. Co., 158 NLRB 534 (1960). The test, as the
Both Respondent and the Union raise the issue of whether an 8(c)(4)
violation occurred The complaint does not make this allegation , accord-
ingly, it will not be considered
DAHL FISH CO.
General Counsel notes, is whether the conduct has a rea-
sonable tendency to restrain or coerce employees in their
resort to the Board . Citing Keystone Pretzel Bakery, 242
NLRB 492 (1979 ); Aero-Motive Mfg. Co., 195 NLRB 790
(1972). I find this argument is'further supported by the
following ruling in Roofers Local 66 (Sierra Employer's),
267 NLRB 601, 602 fn . 10 (1983 ): ". . . there was a clear
and direct relationship between the union action and the
foreseeable consequences of that action-the restraint or
coercion of employee rights ." Citing Service Employees
Local 680 (Leland Stanford Junior University), 232 NLRB
236 (1977).
The Union in this case was negotiating a new collec-
tive -bargaining agreement and policing the existing
agreement as the employees ' representative . In pursuance
of these representational duties, it filed unfair labor prac-
tice charges; there is a nexus between the Union 's action
and the protection of employees ' rights. Service Employ-
ees, supra . If I held that the Union and its agents were
not protected by the Act, it would abrogate the advan-
tages of concerted activity the Act was designed to pro-
tect by imposing on the employees the burden of filing
charges to gain such protection. The employees would
then be subjected to the dangers of lawsuits with their
attendant costs, which could convince them to forgo
their Section 7 rights to file charges . Thus, I find that the
Union is protected by Section 8(a)(1) in these circum-
stances To hold otherwise would destroy the equilibri-
um the Act was designed to establish , and would divest
the employees of the advantages gained by their decision
to organize and to be represented by the single voice of
the Union.
The next issue is whether the state court 's suit was
meritorious The State Supreme Court concluded that
Respondent 's lawsuit did not "[raise] genuine issues of
material fact . . .." The Washington court further held
that their state law did not permit the Company to ad-
vance its position to trial. The Company was foreclosed
as a matter of law for "there is no sufficiently close,
actual causal connection between the Union's filing of
the amended charge and Sea-Pac 's alleged loss . . Al-
though causation usually is an issue for the jury . . .
[t]here is no sufficiently close , actual , causal connection
between the Union 's filing of the amended charge in Sea-
Pac's alleged loss ." Where inferences from facts are
remote or unreasonable , as here , factual causation is not
established as a matter of law Memorandum opinion
supra at 6 , 103 Wn . 2d at 805 , 699 P 2d at 220.
Even if the Supreme Court 's decision in Bill Johnson's
Restaurant , supra , required an independent analysis by
the Board of the merits of the state lawsuit, I would con-
clude that the state court lawsuit was not meritorious.8
Respondent admitted that the pricing duties for Sea-Pac,
Inc. could have been accomplished the week of 9 Sep-
tember It failed to show which exigencies , if any, re-
quired Dahl to make his trip to Europe at that time. He
had planned to be in the Bellingham , Washington area
the week of the hearing. Respondent claims that it was
a In this regard Respondent notes at 10, fn 3, of its brief submitted in
this supplemental proceeding that "it is the State court, not the NLRB,
that must decide disputed issues of fact as well as legal issues "
his absence during that week that caused the injury. I
conclude the evidence does not support a finding that
there was any willful intent on the part of the Union to
delay the filing of the amended charge as a plan to injure
Respondent . The reasons given by the State Supreme
Court of Washington in support of its decision are highly
persuasive and support a finding of lack of merit . For ex-
ample , the Court determined that Dahl could not show
an actual causal connection between the Union 's filing of
the amended charge and its asserted loss. The Court
noted that if Dahl was unable to anticipate a change in
the salmon market prior to his departing for Europe, it
wondered how any union official could have been suffi-
ciently prescient to predict a change in the market. Also,
as found above , the Union did not know of Dahl 's deci-
sion to offer his former employees reemployment at a
wage rate lower than that required by the collective-bar-
gaining agreement until mid -July and shortly thereafter
forwarded the information to the National Labor Rela-
tions Board . The Union 's actions do not demonstrate any
deliberate plan of delay.
As the Supreme Court in the State of Washington con-
cluded , the inferences that Dahl seeks to have drawn
from the facts are so remote and unreasonable as to fail
to establish factual causation as a matter of law . It also
found , assuming, arguendo , that the hearing proceeded
on 8 September as scheduled and Dahl did not leave for
Europe ; the claim that any alleged loss could have been
prevented was purely speculative . Respondent did not
place into evidence any factors which would warrant a
finding that its State court suit had greater merit than
found by the Supreme Court of the State of Washing-
ton.9
The remaining question is whether the lawsuit was im-
properly motivated I find that the lawsuit was instituted
in retaliation for the Union having filed charges with the
Board . This finding is based on the credited testimony of
Finn , that at the close of the 10 September 1982 negotiat-
ing session Dahl "threatened a lawsuit against the Union,
and said that he was going to instruct his attorney to file
a lawsuit against the Union for the harassments that he
had been subjected to throughout those negotiations." 10
Bud Moena , an employee and member of the Union's ne-
gotiating committee , also recalled Dahl saying that law-
suits work both ways and anyone can file a lawsuit. This
witness' testimony is credited based primarily on de-
meanor . He attempted to fairly present the facts in a
direct manner and exhibited an interest in being helpful.
There were no conflicts in his testimony. Dahl admitted
he was very upset during that meeting because some
Respondent argues in its brief that it is not an employer as required
under Sec 8(a)(1) of the Act taking issue with my finding that Sea-Pac
and Dahl Fish Company are a single integrated business Respondent's
argument is currently before the Board and need not be addressed at this
juncture However, assuming , arguendo , that they are not alter egos or a
single employer, it is found that Sea-Pac is Dahl 's agent in filing the state
suit and is accountable for this action
10 Tr 161-162 Finn was found to be a credible witness based pnnci-
pally on demeanor He also exhibited an intent to be candid and forth-
right Inherent probability also supports this finding for the statement was
made only 8 days after the amended charge was filed and the lawsuit was
filed in November shortly after the Region issued the amended com-
plaint
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union members and former employees took action
against Dahl's residence . The Union admittedly attempt-
ed to dissuade its members from taking those actions and
tried to prevent any similar activities in the future. In
this milieu , I find it is highly probable that Dahl made
the threat to institute a lawsuit . Moena 's testimony was
not directly contradicted by Jan Morris, an employee of
Respondent 's counsel who had attended the negotiating
session to take notes . Morns did not recall the statement
being made but did not deny that it was made . Respond-
ent did not establish that Jan Morris attended the meet-
ing at all times ; where the participants were seated;
Dahl's tone of voice, or other factors that would convert
her lack of recall into a persuasive argument that such a
statement was not made . Dahl's denial is not credited
based on demeanor. Also, Dahl at times tried to tailor his
testimony to fit a litigation theory; did not directly re-
spond to some questions ; and gave a clear impression of
evasion and lack of candor. At other times his testimony
was disturbingly vague for an individual of this witness'
position and experience. In addition to these statements
as testified to by Finn and Moena , the state lawsuit on its
face indicates that it was initiated in response to the
Union filing an amended charge and thus was retaliatory.
I therefore find that the state action was baseless and
bought for retaliatory purposes in violation of Section
8(a)(1) of the Act,
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth above, occur-
ring in connection with the operations of Sea-Pac and
Dahl, have a close, intimate , and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1 Respondents Dahl Fish Company and Sea- Pac, Inc.
constitute a single integrated business enterprise and are
a single employer within the meaning of the Act at all
times material herein
2. United Food and Commercial Workers Union Local
44, Chartered by United Food and Commercial Workers
International Union, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By filing an unmeritorious and retributive state law-
suit for damages in the Superior Court of the State of
Washington in and for King County, Respondent has
violated Section 8(a)(1) of the Act.
4 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) 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 affirmative 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 the
Union in the position it would have been absent this
unfair labor practice , Respondents Sea-Pac , Inc. and
Dahl Fish Company shall be ordered to make the Union
whole for all legal expenses incurred in the defense of
that lawsuit . Bill Johnson 's Restaurant , supra.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed 11
ORDER
The Respondents, Sea-Pac, Inc., and Dahl Fish Com-
pany, Bellingham , Washington , their officers, agents, suc-
cessors , and assigns, shall
1. Cease and desist from
(a) Prosecuting complaints for damages which arose
from the Union's filing of unfair labor practice charges
with the National Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Reimburse the Union, United Food and Commer-
cial Workers Union Local 44, its officers, agents, and
representatives for all legal expenses incurred in the de-
fense of its State court action in Sea-Pac, Inc. v. United
Food and Commercial Workers Local Union 44, 103
Wn.2d 800, 699 P.2d 217 (1985).
(b) Post at its Bellingham, Washington place of busi-
ness copies of the attached notice marked "Appendix." 12
Copies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
11 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
DAHL FISH CO 1113
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT prosecute a complaint for damages and
other redress in Sea -Pac, Inc., v. United Food and Com-
mercial Workers Local Union 44, 103 Wn.2d 800, 699
P 2d 217 ( 1985), which rose out of the United Food and
Commercial Workers Local Union 44 filing an amended
unfair labor practice charge with the National Labor Re-
lations Board.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reimburse United Food and Commercial
Workers Local Union 44 for all legal expenses incurred
in the defense of the above-styled complaint in which we
sought to recover damages and other redress in the
above-captioned State court proceeding
DAHL FISH COMPANY
SEA-PAC, INC.