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

National Labor Relations Board - Board Decisions

Aug 10, 1990

299 N.L.R.B. 413 (N.L.R.B. 1990)

DAHL FISH CO 413
Dahl Fish Company; Sea-Pac, Inc.; Blaine Protein,
Inc.; B.P.I. International Sales, Inc.; and Kjell
Dahl and United Food and Commercial Work-
ers Union Local 44, Chartered by United Food
and Commercial Workers International Union,
AFL-CIO. Cases 19-CA-14460 and 19-CA-
15336
August 10, 1990
SUPPLEMENTAL DECISION AND
ORDER
CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 7, 1989, Administrative Law
Judge Clifford H Anderson issued the attached
supplemental decision 1 Thereafter, Respondents
Blame Protein, Inc, Blame Protein International,
Inc, and Kjell Dahl filed exceptions and a support-
ing bnef 2 The General Counsel filed exceptions
and a memorandum partly in support of the judge's
decision and partly in support of the exceptions
The Charging Party filed exceptions, a supporting
brief, and an answenng brief Respondents Dahl
Fish Company and Sea-Pac, Inc filed an answering
bnef
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings, and conclusions and to adopt the recom-
mended Order 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents Dahl Fish
Company, Sea-Pac, Inc , Blame Protein, Inc ,
B P I International Sales, Inc, Bellmgham, Wash-
ington, their officers, agents, successors, and as-
signs, and Kjell Dahl, an Individual, shall take the
action set forth in the Order
The Board's original Decision and Order is reported at 279 NLRB
1084 (1986)
2 Respondents Blame Protein, Inc , Blame Protein International, Inc,
and Kjell Dahl also filed a reply brief to the General Counsel's memoran-
dum supporting the judge's decision Pursuant to Sec 102 46(g) of the
Board's Rules and Regulations, we have rejected this reply brief
'The General Counsel and the Charging Party Union have excepted
to the judge's failure to award Interest, computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173 (1987), on the Board's
original Order requiring the Respondents to reimburse the Union for liti-
gation expense incurred in defending against an unlawful retaliatory state
court lawsuit In this case, however, the General Counsel and the Charg-
ing Party have first raised the Issue of Interest at the compliance stage of
proceedings, after the Board's ongmal Order has been enforced by the
United States Court of Appeals for the D C Circuit In the absence of a
timely request, we will not now modify the Order to Include interest
Catherine M Roth, Esq , for the General Counsel
Franklin L Dennis and William T Greeenheck, Esqs
(Williams, Kastner & Gibbs), of Seattle, Washington,
for Dahl Fish Company and Sea-Pac, Inc
David C Stewart, Esq (0/es, Morrison & Rinker), of Seat-
tle, Washington, for Blame Protein, Inc , B P I Inter-
national Sales, Inc , and Kjell Dahl
James H Webster and Lynn D Weir, Esqs (Webster,
Mrak & Blumberg), of Seattle, Washington, for the
Charging Party
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLIFFORD H ANDERSON, Administrative Law Judge
On May 23, 1986, in a Decision and Order reported at
279 NLRB 1084 (1986), the Board affirmed the Decem-
ber 30, 1983 decision and September 30, 1985 supplemen-
tal decision of Administrative Law Judge Joan Wieder
and adopted her recommended Orders On March 31,
1987, the United States Court of Appeals for the District
of Columbia entered a judgment enforcing in full the
Board's Order
Judge Wieder's December 30, 1983 decision, as adopt-
ed by the Board and court, stated, inter alma, at 279
NLRB 1106-1107
THE REMEDY
Having found that Dahl Fish Company and Sea-
Pac, Inc engaged in certain unfair labor practices, I
recommend that they be ordered to cease and desist
therefrom, and that certain affirmative action be
taken to effectuate the policies of the Act It is also
recommended that Dahl Fish Company and Sea-
Pac, Inc be ordered to reinstate on request by
United Food and Commercial Workers Union
Local 44, or the individual employees herein found
to be discnmmatees, the terms of employment exist-
ing before the placing of all the unit employees on
call in the above-described bargaining unit in Bel-
lingham, Washington, and to make those employees
whole for any loss of wages and other benefits
which would have accrued to them under those
terms of employment, with interest to be paid on
amounts owing and to be computed in the manner
prescribed in F W Woolworth Go, 90 NLRB 289
(1950), and Florida Steel Corp, 231 NLRB 651
(1977), plus interest as set forth in Isis Plumbing Co,
138 NLRB 716 (1962)
ORDER
The Respondents, Sea-Pac, Inc, and Dahl Fish
Company, Bellingham, Washington, their officers,
agents, successors, and assigns shall
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer immediate and full reinstatement to the
employees who were placed on call on December
299 NLRB No 57
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18, 1981, to their former jobs or, if such jobs no
longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority or other rights and
privileges, and for all employees, including those re-
called, make them whole for any loss of pay suf-
fered by reason of Respondents' actions in the
manner set forth in the remedy section of this deci-
sion
Judge Wieder's September 30, 1985 Supplemental De-
cision in Case 19-15336, as adopted by the Board and
court, stated, inter aim, at 279 NLRB 1112
The Respondents, Sea-Pac, Inc , and Dahl Fish
Company, Bellingham, Washington, their officers,
agents, successors and assigns, shall
2 Take the following affirmative action designed
to effectuate the policies of the Act
(a) Reimburse the Union, United Food and Com-
mercial Workers Union Local 44, its officers,
agents, and representatives for all legal expenses in-
curred in the defense of its State court action in
Sea-Pac, Inc v United Food and Commercial Work-
ers Local Union 44, 103 Wn 2d 800, 699 P 2d 217
(1985)
Following the court's Order a dispute arose concerning
the amounts due under the order and the identity of the
parties liable for those amounts Accordingly, the Re-
gional Director for Region 19 of the National Labor Re-
lations Board on October 18, 1988, issued a backpay
specification and notice of hearing 1 I heard the matter
in trial in Bellingham, Washington, on April 25 and May
2, 3, and 4, 1989 Thereafter, all parties submitted post-
hearing bnefs
Findings and Conclusions
Based on the record as a whole, including my observa-
tion of the witnesses and their demeanor, as well as the
excellent postheanng briefs of the parties, I make the fol-
lowing findings and conclusions
I STATEMENT OF THE ISSUES
As a result of the commendable efforts of counsel,
what was a potentially long and complex litigation was
greatly simplified Thus, there is no dispute concerning
the arithmetic calculations of the backpay specification
or the amounts which would be due and owing once the
issues of the breadth of the order and the parties subject
to it are determined The case resolved itself into a con-
sideration of four separate issues
A What Parties are Liable Under the Order
The General Counsel has alleged and the Charging
Party agrees that three additional respondents are liable
' The backpay specification, as amended, by its terms includes only the
period ending December 31, 1988 Subsequent liability and obligations
were explicitly excluded by the General Counsel from the litigation with
the reservation that disputes concerning those matters could be the sub-
ject of separate backpay pleadings and proceedings
for the amounts due under the backpay specification
Blame Protein, Inc , B P I International Sales, Inc , both
corporations, and Kjell Dahl, an individual (Additional
Respondents) Additional Respondents contested these
allegations denying any liability whatsoever under the
backpay specification
Substantial evidence was adduced regarding the rela-
tionship between and among Respondents during rele-
vant periods with an emphasis on financial transactions
and accounting This issue turns both on evaluation of
differing characterizations of the interrelations of Re-
spondents and on the legal standards for extending liabil-
ity under the order to additional entities and individuals
not named in the original proceedings
B What Employees are Covered by the Make-Whole
Provisions of the Order
The General Counsel has pled and argued with the
concurrence of the Charging Party that the make-whole
order in the judge's decision in Case 19-CA-14460 in-
cludes two classes of employees first, the employees of
Dahl Fish who should have done the work wrongfully
transferred and, second, the employees of Sea-Pac, Inc
who did the work at issue but who received less than
union contract wages and benefits
Dahl Fish Company and Sea-Pac, Inc (Original Re-
spondents and with the Additional Respondents, collec-
tively, as Respondents), with the concurrence of Addi-
tional Respondents, concede the correctness of the
amended backpay specification as to the Dahl Fish em-
ployees found by the Board to have been wrongfully
denied the work Respondents strongly deny that the
judge's Orders extend any relief to the Sea-Pac employ-
ees who did the work in question at less than the Dahl
Fish contract rate
Respondents concede that, were the Sea-Pac employ-
ees covered by the order, the backpay specification's cal-
culations as to those employees would be correct The
arithmetic aspects of the backpay specifications are
therefore not in issue Rather, Respondents' argument is
that the backpay specification is not supported by the un-
derlying order and therefore must be dismissed as to the
Sea-Pac employees The parties, in effect, based their ar-
guments solely on the wording of the underlying Deci-
sion and Order and the guiding law on the question
C What Litigation Expenses are Covered by the
Order in Case 19-CA-15336
The Charging Party argues that the reimbursement
order respecting the Charging Party's legal expenses in-
curred in defense of the state court action, quoted supra,
also includes the Charging Party's expenses in litigating
the Issues raised by the state court lawsuit before the
Board in Case 19-CA-14460 The General Counsel and
Respondents argue the Board's remedy did not include
such additional relief
The parties stipulated to both the litigation costs re-
coverable under the narrower reading of the order and
the additional costs incurred by the Charging Party
which would be recoverable should the Charging Party's
argument in this regard prevail This issue therefore does
DAHL FISH CO 415
not involve any dispute concerning the determination of
legal expenses incurred under either view of the order
but rather turns on an analysis of the underlying Order
and applicable law to determine which costs are recover-
able under it
D Does the Order in Case 19-CA-15336
Include Interest
The General Counsel argues and the Charging Party
agrees that the sum due the Charging Party under the
make-whole provisions of the litigation cost reimburse-
ment order in Case 19-CA-15336 include interest Re-
spondents assert that the Judge's order does not include
interest on litigation expenses and therefore interest may
not properly be awarded This issue turns on an analysis
of the underlying Supplemental Decision and Order and
the decisional law respecting the awarding of interest in
litigation reimbursement cases
II ADDITIONAL RESPONDENTS' LIABILITY
A The History and Background of the Parties2
Bellmgham and Blame, Washington, are nearby coastal
communities close to the Canadian border Kiell Dahl
and his family have been engaged in various aspects of
the commercial fishing industry in the area since the
1930s At all relevant times Dahl s was the president,
chief executive officer, member of the board of directors,
and sole shareholder of the corporations at issue herein
as well as other companies during the period including
Anderson Sea Foods and R M Sloan See Judge
Wieder's decision for greater detail
Sea-Pac, Inc was incorporated under the laws of the
State of Washington in 1947 and has been engaged in
processing of fish including salmon At all relevant times
the corporation has maintained its good ,standmg under
state law During relevant times Sea-Pac, Inc leased
space and equipment from first Dahl Fish Company and
later Blame Protein, Inc On November 7, 1988, Sea-Pac
filed a Chapter 11 bankruptcy petition in the U S Bank-
ruptcy Court of the Western District of Washington 4
Dahl Fish Company was incorporated under the laws
of the State of Washington in 1959 and has been engaged
in processing of fish including bottom fish At all rele-
vant times the corporation has maintained its good stand-
ing under state law On November 7, 1988, Dahl Fish
Company filed a Chapter 11 bankruptcy petition in the
U S Bankruptcy Court of the Western District of Wash-
ington 5
Blame Protein, Inc was incorporated under the laws
of the State of Washington in May 1973 and has been en-
gaged in the production and sale of fish fertilizer and
poultry feed produced from fish byproducts It com-
menced its operations with the purchase of Dahl Fish
2 The following is based on the undisputed testimony at the hearing,
the findings of Judge Wieder in her decision and the corporate records
introduced at the hearing
3 Deteriorating health forced Dahl to cease active participation and
management of his business ventures in September 1988
4 In re Sea-Pac Inc. Case 88-08335
5 In re Dahl Fish Co, Case 88-08334
Company's (Blame Protein, Inc 's Minutes of its First
Meeting of Directors and Incorporators)
equipment, machinery, supplies, parts and in-
ventory of product, together with all other personal
property, used in connection with its rendering
plant operation in Blame, Washington, including
leasehold improvements and leases and the transfer
of water and air pollution permits
The purchase included the issuance of an interest bearing
note to Dahl Fish Company and assumption of all Dahl
Fish Company's liabilities in connection with the lease
and use permit At all relevant times Blame Protein, Inc
has maintained its good standing under state law
Blame Protein International Sales, Inc (BPIS and with
Blame Protein, Inc , collectively, as Corporate Addition-
al Respondents and collectively with Blame Protein, Inc
and Original Respondents as Corporate Respondents, and
with all other Respondents, collectively, as Respondents)
was incorporated under the laws of the State of Wash-
mgton in July 1973 for the purpose of engaging in export
sales of fish and fish byproducts The corporation has at
all times been wholly owned by Blame Protein, In and
exclusively marketed the fish byproducts of Original Re-
spondents In September 1973 BPIS filed with the United
States Internal Revenue Service an irrevocable election
to be treated as a domestic international sales corporation
(DISC) under Section 992 of the Internal Revenue Code
BPIS has at all relevant times maintained its good stand-
ing under state law
B The Relationship Between Respondents
The Corporate Respondents have at all times main-
tained their registered addresses and business offices in
common facilities in the Dahl Fish Company plant on
West Chestnut in Bellingham At that location payroll,
accounting, and administration have at all times been un-
dertaken on behalf of all Respondents by employees of
Original Respondents 6 Respondents' books of account
were reviewed for the relevant period by the General
Counsel's expert witness who testified at some length re-
garding them Uncontradicted testimony indicated that
an acceptable system of books of account was maintained
by Corporate Respondents and, at least generally, entries
were made in a regular fashion with no evidence of sub-
terfuge or fraud in the maintenance of accounts
Despite the separateness of books and records, howev-
er, it was clear that Corporate Respondents engaged in,
if accurately monitored and recorded, extensive and on-
going transfers of funds, credits, debits, and other trans-
actions including joint loans or loans with joint and sev-
eral liability for payment on behalf of all Respondents
Costs of matenals acquired or service obtained by on
entity for the benefit of one or more additional entities
were not always alocated to the other Respondents' ac-
6 Apparently throughout the relevant period, Kiel Dahl did not use a
separate checking account for his personal financial affairs Rather Re-
spondents paid his bills and, in some cases, the personal bills of family
members crediting and debiting various accounts set up to track his per-
sonal balances and transactions
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
counts All Respondents maintained bank accounts in a
single bank and telephonic fund transfers were frequently
made between and among the various corporate and per-
sonal accounts as financial exigencies required In some
cases one Respondent would or assume the obligation of
another Respondents were jointly and severally liable
for the loans made by the bank and for a significant loan
by the Small Business Administration Interest on inter-
Corporate Respondent balances was not calculated or
paid before 1983 and not consistently paid thereafter
Subsequently advances were made to Kjell Dahl by
other Respondents without interest being assessed Con-
versely, Dahl did not receive interest at those times
when he enjoyed favorable balances with other Respond-
ents
Certain significant financial transactions were litigated
The first involved real estate referred to as the Sandy
Point house In 1986 Kjell Dahl sold the property to
Dahl Fish Company for approximately $180,000—the
amount owed by Dahl to the other Respondents on loans
for building the home One year later Dahl Fish Compa-
ny sold the property to a third party for some $70,000
less—a loss not fairly anticipated based on Bellingham
area property values A property owned by Blame Pro-
tein was sold in 1982 to a third party The payment of
the third party for the downpayment and later payments
on the purchase money were not credited to Kjell Dahl's
accounts until just before the property was repossessed
in 1986
In September 1986, Dahl fish Company sold equip-
ment to Blame ,Protein for approximately $296,000, the
price being equal to and paid by means of Blame Protec-
tion's assumption of Dahl Fish's debts to BPIS and by
cancellation of Dahl Fish Company's debts to Blame
Protein Thereafter, Sea-Pac, Inc, which had been
paying rent heretofore to Dahl Fish Company, paid an
increased rent to Blame Protein, Inc
A number of motor vehicles were maintained on the
books of Corporate Respondents which were used by
various members of the Dahl family Maintenance of
records which would allow use of these vehicles to be
claimed as business deductions did not occur and no allo-
cation or declaration of benefit to the benefiting individ-
uals was made Members of the Dahl family were paid
salaries or wages for regular employment at times when,
for at least one individual, the record suggests sporadic
or at best irregular attendance at Respondents' worksites
There was unchallenged testimony that employees of
Corporate Respondents over the years tended to Dahl or
his family members' residences and automobiles under-
taking various maintenance, repair, and remodeling tasks
while on Original Respondents' payroll—all without
proper or consistent charging to Dahl's accounts
C Position of the Parties
The General Counsel and the Charging Party argue
that the Corporate Respondents constitute a single em-
ployer under Board doctrine Thus, in their view, Blame
Protein and BPIS are jointly and severally liable for the
obligations of Original Respondents under the Order
quoted supra and the backpay specification Further, the
General Counsel and the Charging Party urge that the
corporate veil limiting liability to the Corporate Re-
spondents should be pierced and Kjell Dahl also be held
jointly and severally liable for the obligations under the
Order and the backpay specification Additional Re-
spondent's deny any liability accrues to any of them
under the backpay specifications and further deny that
they are properly subject to the backpay specification be-
cause of the pending bankruptcy litigation involving
Original Respondents and because Additional Respond-
ents were not part of the original proceedings herein
The arguments and theories litigated deserve separate
treatment
D Threshold Arguments Concerning Additional
Respondents
1 The consequences of not including Additional
Respondents in the original proceeding
In Additional Respondents' answer the following af-
firmative defenses were pleaded
3 Additional respondents affirmatively allege
that being named additional respondents at this
stage violates their constitutional rights to due proc-
ess of law
4 Additional respondents affirmatively allege
that the previous Board and Court Orders bar liti-
gation against additional respondents under the doc-
trine of res judicata
5 Additional respondents affirmatively allege te
Board waived its right to sue the additional re-
spondents when it failed to name them as parties in
the original unfair labor practices proceedmg
6 Additional respondents affirmatively allege the
Board is estopped from naming additional respond-
ents as additional parties at this time
7 Additional respondents affirmatively alleged
that any claim against additional respondents is
barred by the Statute of Limitations or latches as
untimely
Additional Respondents' arguments here are not per-
suasive As the General Counsel notes on brief, Board
decisional law, with court approval, permits litigation of
joint and several liability or previous unnamed parties in
supplementary proceedings F di F Construction Co, 262
NLRB 735 (1982), Southern Envelope Co, 246 NLRB 423
(1979), Coast Delivery Service, 198 NLRB 1026 (1972),
Riley Aeronautics Corp, 178 NLRB 495 (1969), NLRB v
C C C Associates, 306 F 2d 534 (2d Cir 1962) Accord-
ingly, Additional Respondents' noted affirmative de-
fenses are without merit
2 The contention the Board lacks jurisdiction to
assess liability
In Additional Respondents' answer the following af-
firmative defense was pleaded
8 Additional respondents affirmatively allege
that determinations of "alter ego" for purposes of
asserting "denvative liability" and/or similar con-
cepts are properly the subject of the U S Bankrupt-
DAHL FISH CO 417
cy Court, rather than the NLRB Accordingly, the
Board has no jurisdiction to assess liability against
additional respondents
Additional Respondents argue on brief that the Gener-
al Counsel is "challenging] the fairness of the consider-
ation received by Dahl Fish Company and Sea-Pac, Inc
in transactions involving Additional Respondents" Be-
cause Original Respondents are in bankruptcy proceed-
ings, argue Additional Respondents, such contentions
should be made in the bankruptcy proceedings where the
rights of all creditors of Original Respondents including
the Board could be adjudicated
Additional Respondents advance only a single case,
NLRB v Martin Arsham Sewing Go, 882 F 2d, 216 (6th
Cir 1989), corrected May 3, 1989, denying enf 287
NLRB 923 (1987) That case, however, involved a Board
determination that an individual was liable for the obliga-
tions of a bankrupt corporation only to the extent of cer-
tain corporate property retained by him The Board did
not hold the individual was an alter ego of or single em-
ployer with the bankrupt nor had the General Counsel
sought to make him jointly and severally liable for the
backpay obligations of the bankrupt corporation beyond
the value of the assets transferred
In the instant case the General Counsel is advancing
the transactions noted as evidence of single employer
and/or alter ego status and in support of piercing the
corporate veil theory, any one of which, if successful,
imposes general joint and several liability rather than the
limited asset value specific liability of Arsham See also
the additional discussion of the limited liability theory
and the Arsham case, infra, at section II,F,3 of this deci-
sion Accordingly, I find Additional Respondents' cited
case distinguishable Given the absence of other author-
ity, the fact that Additional Respondents are not in bank-
ruptcy and the cases cited above concerning the proprie-
ty of litigating the status of Additional Respondents in
the compliance stage of proceedings, I shall reject Addi-
tional Respondents' affirmative defense
E The Liability of Blame Protein, Inc and BPIS
The General Counsel and the Charging Party argue
that Blame Protein, Inc and BP/S should be regarded as
a "single employer" with Original Respondents Such an
argument and analysis was undertaken by Judge Wieder
respecting Dahl Fish Company and Sea-Pac, Inc in her
original decision The parties are well familiar with the
necessary analysis
The Board with court approval has long held that sep-
arate business entities may be treated as a "single em-
ployer" with joint and several liability for unfair labor
practices in certain circumstances In Radio Union Local
1264 v Broadcast Service, 380 U S 255, 256 (1965) (per
cunam) the Supreme Court noted the four controlling
cntena as (1) interrelation of operations, (2) common
management, (3) centralized control of labor relations
and (4) common ownership No one factor is controlling
nor need all factors be present to establish a single em-
ployer relationship Burgess Construction, 227 NLRB 765
(1977), enfd 596 F 2d 378 (9th Cir 1979), cert denied
444 U S 940 (1979) As Judge Wieder stated in her deci-
sion at 279 NLRB 1086-1087
Ultimately, single-employer status depends on all
the circumstances of the case and is characterized
by absence of an "arms length relationship found
among umntegrated companies" Operating Engi-
neers Local 627 v NLRB, 518 F 2d 1040, 1045-1046
(D C Or 1975), affd on this issue per cunam sub
nom South Prairie Construction Co v Operating En-
gineers Local 627, 425 U S 800 (1976), see NLRB v
Don Burgess Construction Corp, 596 F 2d 378, 384
(9th Cir 1979), cert denied 444 U S 940 (1979)
Given the guiding law the General Counsel argues on
brief
Kjell Dahl is the sole stockholder of all the cor-
porations involved herein and, significantly, he has
totally controlled the labor policies and other oper-
ational aspects of such companies Further, all
bookkeeping functions including payroll were per-
formed by employees of Dahl Fish or Sea-Pac The
financial interrelation of the companies has been
fully detailed supra, including description of corpo-
rate debt and expense payments among all corpora-
tions, the regular transfer of funds among accounts
at Northwest Commercial Bank, the use of a "con-
trol" account, the so-called sale of Dahl Fish assets
to Blame Protein, and the highly questionable pay-
ment of rent to Blame Protein Given such an amal-
gam of cumulative concrete factors, the instant
record unmistakably reflects that a full and com-
plete interrelation of operations existed between all
involved entities
The Charging Party notes on brief
The fundamental inquiry is whether there exists
overall control of critical matters at the policy
level Emsing's Supermarket, Inc , 284 NLRB No 41
(1987) 131 LRRM 2296 (7th Cir April 17,
1989) Finally, where the evidence relating to
common control of labor relations, common man-
agement and common ownership is overwhelming,
even if the interrelation of operations be deemed
minimal, a finding of single employer is warranted
Judge Wieder's decision applies a "single employer"
analysis to Original Respondents That lengthy discus-
sion, adopted by the Board and approved by the court,
will not be repeated here To the extent the facts con-
cerning Blame Protein, Inc and PBIS are the same,
Judge Wieder's analysis applies here Thus, ownership of
each corporation resided in Kjell Dahl The record is un-
contradicted that Dahl as owner, president, chief execu-
tive officer, and corporate director was active on behalf
of each of his corporations, setting policy and retaining
collective managerial authority As Judge Wieder's anal-
ysis at 279 NLRB 1087 notes, such authority indicates ul-
timate and effective control over all employees even if
they were supervised by others Judge Wieder concluded
at 279 NLRB 1087
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is thus found that there was a concomitance of
control over labor policy Also, as the court found
in Sakrete of Northern California v NLRB, 332 F 2d
[907 (9th Cir 1964), cert denied 379 U S 961
(1965)] at 907, even if common management was
found to obtain only at the top level, it does not
"preclude application of the single employer con-
cept"
Interrelation of operations among the four corpora-
tions was not in factual dispute Judge Wieder's analysis
discusses the relationship between Original Respondents
The basic commercial purposes of Corporate Respond-
ents may be simply stated Original Respondents obtain
and process whole fish into commercial fish and fish
waste and parts Blame Protein, Inc processes the fish
waste and parts into fish fertilizer and poultry feed BPIS
is a DISC corporation created for the exclusive sale of
these products Additional Respondents utilize the prod-
ucts of Ongmal Respondents and Original Respondents
utilize the services of Additional Respondents Corporate
Respondents may be seen as a vertical integration of
processes within the commercial fishing industry
Additional Respondents evolved from Original Re-
spondents Blame Protein was originally, quoting the
corporate minutes, a "spin-off" of Dahl Fish Company's
rendering plant PBIS was simply a wholly owned sub-
sidiary of Blame Protein, Inc created a few months after
Blame Protein, Inc as a DISC corporation eligible for
desirable tax treatment under the tax code and, by neces-
sity of the code, irrevocably dedicated to international
sales
Respondents also were closely related as Original Re-
spondents experienced business difficulties When Dahl
Fish Company sold the bulk of its operating equipment,
it was to Blame Protein, Inc The transaction was con-
cluded without the exchange of funds Rather, it was ac-
complished by the forgiveness by Blame Protein of debt
owed it by Dahl Fish and the assumption by Blame Pro-
tein of debt owed by Dahl Fish to BPIS A consequence
of the transaction was that Sea-Pac, which had previous-
ly paid rent to Dahl Fish Company, now paid rent, at a
newly set higher rate, to Blame Protein 7
It is clear that Blame Protein, Inc truckdnvers regu-
larly visited Dahl Fish Company's facility to pick up
products and simultaneously replenished their fuel tanks
Uncontradicted testimony indicated that no accounting
was made of such fuel provisions Further, Corporate
Additional Respondents benefited from the centralized
management and accounting performed by Original Re-
spondents' employees but were not charged for the serv-
ices Finally, Additional Respondents were fully in-
volved in the common transfers, exchanges, and other
transactions detailed supra which initially took place
without provision of interest and involved frequent and
somewhat convoluted transactions
Given all the above, I have no difficulty in finding
that the four Corporate Respondents constitute a single
7 The Board has recently reiterated that 'closing" transactions are rele-
vant to single employer determinations Emsmg's Supermarket, 284
NLRB 302 (1987), enfd 872 F 2d 1279 (7th Or 1989)
employer within the meaning of the cases cited, supra
Counsel for Additional Respondents notes that the vari-
ous transactions focused on by the General Counsel were
recorded in books of account and therefore no impropri-
ety occurred In Emsmg's Supermarket, supra, the Board
reversed an administrative law judge who found a trans-
action to be arm's length "because it was duly recorded
on the books of each corporation" 284 NLRB at 303
The Board also noted at 303 "The judge's narrow reli-
ance on the fact that the transfers of equipment and in-
ventory were 'duly recorded on the books' is misplaced
Form does not prevail over substance" Looking to the
"substance" of the various acts of Respondents, it is clear
that Corporate Respondents were operated by Kjell
Dahl in a manner revealing not only a
financial interdependency , but also a propensity
on the part of [the owners] to operate the [separate
entities] in such a manner that the exigencies of one
would be met by the other This method of operat-
ing shows less than an "arm's length relationship"
[284 NLRB 302, 303]
Given all the above, and on the basis of the record as
a whole, I find the General Counsel has established the
presence of all four factors set forth in the cases cited
supra and has thus met her burden of showing that Cor-
porate Respondents share sufficient identity to constitute
a single employer Entities found to be single employers
are jointly and severally liable for obligations under
Board orders Accordingly, I shall hold Blame Protein,
Inc and BPIS jointly and severally liable for the obliga-
tions of Original Respondents under the Order and the
backpay specification
F The Personal Liability of Kjell Dahl
The liability of Dahl for the obligations of Original
Respondents may be considered under three theories
argued by the parties They are discussed separately
below
1 The Riley Aeronautics Corp theory of liability
In Riley Aeronautics Corp, 178 NLRB 495, 501 (1969),
Administrative Law Judge Samuel Singer, with Board
approval, set forth a guiding summary of Board law re-
garding when the Board will pierce the corporate veil
"[E]asily the most distinctive attribute of the corpo-
ration is its existence in the eye of the law as a legal
entity and artificial personality distinct and separate
from the stockholders and officers who compose
it" Wormser, Disregard of the Corporate Fiction and
Allied Corporation Problems, (Baker, Voorhis and
Company, 1927), p 11 "The insulation of a stock-
holder from the debts and obligations of his corpo-
ration is the norm, not the exception" NLRB v
Deena Artware, Inc , 361 U S 398, 402-403 everthe-
less the corporate veil will be pierced whenever it is
employed to perpetrate fraud, evade existing obliga-
tions, or circumvent a statute Isaac Schieber, et a!,
individually, and Allen Hat Co, 26 NLRB 937, 964
[(1940)], enfd 116 F 2d [281] (C A 8 [1940]) [foot-
DAHL FISH CO 419
note omitted] Thus, in the field of labor relations,
the courts and Board have looked beyond organiza-
tional form where an individual or corporate em-
ployer was no more than an alter ego or a "dis-
guised continuance of the old employer" (Southport
Petroleum v NLRB, 315 U S 100, 106), or was in
active concert or participation in a scheme or plan
of evasion (NLRB v Hopwood Retinning Go, 104
F 2d 302, 304 (C A 2)), or siphoning off assets for
the purpose of rendering insolvent and frustrating a
monetary obligation such as backpay (NLRB v
Deena Artware, Inc , supra, 361 U S 398), or so inte-
grated or intermingled his assets and affairs that "no
distinct corporate lines are maintained" (Id at 403)
See also Chef Nathan Sez Eat Here, 201 NLRB 343
(1973) The Board noted in Las Villas Produce, 279
NLRB 883 (1986),
[T]he appropriate test for alter ego status is the
same whether the alter ego issue arises in the origi-
nal unfair labor practice proceeding or in subse-
quent backpay proceedings
The General Counsel and the Charging Party argue
that Dahl did not observe the necessary separateness be-
tween himself and his family and the Corporate Re-
spondents nor did he maintain the corporations in proper
form Respecting the latter argument the General Coun-
sel notes the irregular pattern of corporate meetings as
reflected in the corporate minutes introduced into evi-
dence, the absence of corporate financial records for sub-
stantial periods and the lack of arm's-length transactions
between and among the corporations and Dahl and his
family as described in part above
The General Counsel notes that Corporate Respond-
ents, primarily Original Respondents, advanced money to
Dahl free of interest and paid various country club, auto-
motive, and marine expenses for Dahl family members
without evidence of a business purpose or accounting
Further, notes the General Counsel, Corporate Respond-
ents, again primarily Original Respondents, provided per-
sonnel and perhaps materials to maintain, repair, or re-
model homes and automobiles of the Dahl family, pro-
vided regular paid employment for a family member
who apparently was otherwise occupied and did not reg-
ularly visit the facilities and supplied automobiles for
Dahl family members The General Counsel emphasizes
that Dahl drew a substantial income from Original Re-
spondents dunng the times when they were experiencing
the financial crisis which has led to their filing for bank-
ruptcy and that Dahl continued to borrow substantial
sums from Respondents for personal reasons during these
difficult financial times for Original Respondents
Finally, the General Counsel and the Charging Party
argue that the pattern of transactions discussed supra be-
tween and among the corporations and Dahl in conjunc-
tion with the other irregularities noted above indicates
that Dahl commmgled his and the corporations' assets in
such a manner that it was not possible to determine with
confidence the proper placement or tracking of finances
Thus, the General Counsel notes that Original Respond-
ents' books of record were used to make transactions in-
volvmg the Dahl family difficult to trace, for example
the deposit of corporate accounts receivable directly to
Aagot Dahl's account and the routing of Dahl's personal
expenses through Corporate Respondents' books Thus,
the General Counsel argues that it was undisputed that
Dahl in essence maintained no independent means of
paying his personal expenses in relevant periods, yet the
corporate books do not show that food expenses were
either incurred or paid Since such expenses were surely
incurred and were not paid by Dahl other than through
the corporations, who paid them if not Corporate Re-
spondents? And, if they were so paid, where in the cor-
porate books are such purchases hidden and what else
might also be hidden there?
Counsel for Additional Respondents emphasizes that
Corporate Respondents are corporations in good stand-
ing in the State of Washington They have separate
books and records in which have been recorded all the
transactions between and among Respondents Counsel
for Additional Respondents challenges the General
Counsel's "commingling" assertions arguing that where
transactions are properly recorded and assets and obliga-
tions are properly traceable within a financial accounting
system, such as used by Respondents herein, no loss of
separate identity of assets and obligations occurs and
therefore no commingling in the technical sense of the
word takes place Further, Additional Respondents'
counsel notes that, to the extent that Dahl benefited from
interest free loans or other transactions with Onginal Re-
spondents, the payment of the obligations of Corporate
Respondents by Dahl resulted in a net transfer of funds
to Corporate Respondents and therefore Dahl received
no net benefit under any interpretation of the transac-
tions attacked by the General Counsel
2 The General Counsel's Ogle Protection Service,
theory of liability
The General Counsel argues on brief at 27-28
The Board has also felt justified in ignoring the cor-
porate form in another line of cases flowing from
Ogle Protection Service, 149 NLRB 545, 546 fn 1
(1964), enfd in pertinent part, 375 F 2d 497 (6th
Cir 1967) The Board in that line of cases has
reached "through" the corporate structure and as-
sessed liability against individuals who
(1) owned all the stock of the corporation,
(2) personally controlled the corporation,
(3) personally guaranteed company indebtedness,
(4) personally funded the business,
(5) controlled the daily affairs of the business in-
cluding labor Relations,
(7) solicited and procured business for the compa-
ny, and
(8) personally decided to end the company's ex-
istence
Although not all the above factors are present in
each of the following cases, at least three factors
are present in each one See Ski Craft Sales Corp,
237 NLRB 122 (1978), Carpet City Mechanical Go,
Inc , 244 NLRB 1031 (1979), Campo Slacks, Inc ,
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
266 NLRB 492 (1983), Stafford's Restaurant, Inc ,
271 NLRB 734 (1984), Workroom for Designers, Inc ,
274 NLRB 840 No 83 (March 31, 1987), Edwin R
O'Neill, 288 NLRB No 147 (May 31, 1988)
Both the General Counsel and the Charging Party sug-
gest that this latter theory of personal accountability is
supported by Washington State law Thus, each cites the
case of Grayson v Nordic Constr Co, 92 Wn 2d 548, 599
P 2d 1271 (1979), in which the Washington State Su-
preme Court stated at 554 "If a corporate officer partici-
pates in wrongful conduct or with knowledge approves
of the conduct, then the officer, as well as the corpora-
tion is liable for the penalties" See also Culinary Workers
v Gateway Cafe, 91 Wn 2d 353, 588 P 2d 1334 (1979) and
Ralph Williams' North West Chrysler Plymouth, 87 Wn 2d
298, 553 P 2d 423 (1976)
Counsel for Additional Respondents argues that the
leading Board cases concerning piercing the corporate
veil, Chef Nathan Sez Eat Here, 201 NLRB 343 (1973),
Contra Packing Co, 268 NLRB 193 (1983), and Riley
Aeronautics Corp, 178 NLRB 495 (1969), each involved
owners and active managers who controlled their corpo-
rations and who participated in unfair labor practices yet
no personal liability was found
3 The F & W Oldsmobile, theory of liability
Individuals who receive corporate assets, even before
the issuance of the original Board Order in a case, may
be liable for the obligations of the corporate respondent
to the extent of the distributions received F & W Olds-
mobile, 272 NLRB 1150 (1984), and Concrete Mfg Co,
262 NLRB 727 (1982) (distnbution after Board Order)
Additional Respondents argue, however, that such a
theory is inappropriate here where the Original Respond-
ents are in bankruptcy citing NLRB v Martin Arsham
Sewing Co, 882 F 2d 216 (6th Cir 1989), corrected May
3, 1989), denying enf 287 NLRB 923 (1987)
4 Analysis and conclusions
Having considered the arguments of the parties, the
governing cases and the record as a whole, I conclude
that Kjell Dahl should be held jointly and severally
liable for the obligations of Original Respondents under
the Board and court's Order for the following reasons
a The F & W Oldsmobile theory is not ripe
for decision
Regarding the limited liability theory under F & W
Oldsmobile, supra, the critical fact is that the General
Counsel did not advance this theory of liability either at
the hearing or on brief or in the backpay specification
Therefore, I do not find it at issue As counsel for Addi-
tional Respondents has pointed out, the Original Re-
spondents are in bankruptcy and the Bankruptcy Court
may be used for the litigation of issues regarding improp-
er distribution of a bankrupt's assets The United States
Court of Appeals decision in Martin Arsham, as well as
the Board decisions leading up to that case, make it clear
the question of whether the Board's compliance stage is
a proper forum for such litigation turns on the specific
circumstances of each case The application of the doc-
trines reflected in the series of Arsham cases and the
other court and Board decisions is not always a simple
task In the instant case the General Counsel is not ad-
vancing such a claim Accordingly, I do not consider the
matter ripe for resolution If such issues arise later, a dif-
ferent proceeding will resolve the conflict Given all the
above, I do not find that Kjell Dahl has limited liability
for Original Respondents' obligations under the doctrines
set forth in F & W Oldsmobile
b The Ogle Protection Service theory will be
considered as part of the Riley Aeronautics analysts
In agreement with Additional Respondents, I do not
find the General Counsel's Ogle Protection Service, supra,
theory of liability for corporate officers to apply inde-
pendent of the doctrines of Riley Aeronautics, supra
Thus in Contra Packing Co, supra, the Board in discuss-
ing the teachings of Chef Nathan Sez Eat Here, supra,
and Riley Aeronautics, supra, held that ownership, con-
trol and participation in or approval of unfair labor prac-
tices, standing alone, without evidence that the individ-
ual was the disguised continuance of the corporation,
that the individual dissipated the assets of the corpora-
tion, that the individual intermingled personal and corpo-
rate affairs or that the individual attempted to evade the
backpay liability, is not enough to create personal liabil-
ity for the corporation's obligations
A close reading of the cases cited by the General
Counsel in support of her argument under Ogle Protection
Services, see quoted portion of brief, supra, reveals that
with few exceptions each case involved a finding of an
alter ego or single employer relationship between the
corporations and the individual(s) held liable Indeed in
Stafford's Restaurant, 271 NLRB 734 fn 1 (1984), the
Board panel majority noted that the individual's liability
in that case "flows from" the alter ego finding The Gen-
eral Counsel's cited case, Workroom for Designers, 274
NLRB 840 (1985), may be the exception that proves the
rule In Workroom for Designers the Board found that the
corporate form was maintained but on the "unique facts
of this case," i e conduct continuing after an injunction
under Section 10(j) of the Act had issued and where the
individual at the trial announced a plan to prevent any
backpay being paid, the Board found that naming the in-
dividual as a respondent liable under the Order would ef-
fectuate the purposes and policies of the Act It must be
conceded that the General Counsel's cited case, Ski Craft
Sales Corp, 237 NLRB 122 (1978) is not so easily distin-
guished I am not persuaded, however, that a separate
and independent theory of liability of individuals for cor-
porate obligations is established by such a case however
Although I have rejected the argument that Kjell
Dahl may be held liable for the obligations of Original
Respondents simply by virtue of his exclusive ownership
of Original Respondents, his substantial day-to-day con-
trol over them, his participation in the unfair labor prac-
tices and his responsibility for the decisions to conclude
the business operations of Original Respondents, I do not
find these facts irrelevant to the propriety of piercing the
DAHL FISH CO 421
corporate veil generally and have considered them, infra,
in evaluating Dahl's liability under Riley Aeronautics
c Kjell Dahl's liability under Riley Aeronautics Corp
As in the real world generally, there is much in the
record of the affairs of Respondents which is neither cer-
tain nor precise Additional Respondents and the General
Counsel each seek to charactenze as purely one way or
another what was often a muddled or intermediate state
of affairs Additional Respondents emphasize that corpo-
rate records were properly maintained by each entity
The General Counsel notes the large gaps in corporate
minutes of meetings in the submitted records and notes
that for years at a time some of Corporate Respondents
did not keep financial records
So, too, the arguments concerning comminglmg of
assets and transactions involve different characterizations
of essentially undisputed transactions There is no dispute
that with regularity moneys were transferred to and
from Respondents, joint obligations were incurred and
paid off by various entities and transfers of credits and
debits between and among Respondents were made Ad-
ditional Respondents argue that where proper records
tracking such transactions exist, commingling or inter-
mingling of assets may not be said to occur The General
Counsel disputes this claim The General Counsel notes
further however, as described supra, that Respondents'
bookkeeping system was also manipulated in an irregular
manner so that it was in fact difficult to insure that all
the various credits and debits involving Mr Dahl's per-
sonal finances were in fact separately tracked and moni-
tored within Corporate Respondents' books of record—
especially since some are either missing or were never
kept
There is no dispute that corporate funds were expend-
ed for corporate employees who worked on the Dahl
family residences and automobiles without proper ac-
counting or even recordation as such It is also undis-
puted that club memberships, automotive expenses, and
the provision of corporate automobiles and perhaps boats
were provided to Dahl and his family without either ac-
counting or justification as a business expense At least
with respect to Dahl's stepson, there was evidence that a
family member received regular wages over the years for
times when he was only sporadically present at the plant
and when he was also employed as a full-time student
Additional Respondents argue on brief that there is no
evidence that this working relationship was "unreason-
able" To the contrary, I find the General Counsel raised
sufficient questions concerning the stepson's actual ef-
forts on behalf of Respondents that it was incumbent on
Respondents to adduce affirmative evidence that in fact
the wages were paid for work actually performed Re-
spondents having failed to meet their burden of going
forward on this aspect of the case, I find that substantial
wages were paid to at least one Dahl family member for
work not in fact performed
The corporate minutes note that Original Respondents
suffered ongoing and substantial losses commencing at
least in the year 1979 and continuing through the unfair
labor practices and thereafter Ultimately, the Original
Respondents filed for bankruptcy Yet, during the years
of substantial losses Dahl received an annual salary of
$100,000 and drew regular and substantial advances for
his personal affairs including the building of a new home
Although the corporate minutes of December 12, 1979,
provide such advances should bear an interest rate of 8
percent per annum, interest was not in fact paid by Dahl
at relevant times
The above-noted conduct of Respondents as well as
the entire record in this proceeding which includes the
decision and supplemental decision of Judge Wieder
makes it clear that Additional Respondents' attempts to
charactenze the relationship between Dahl and Corpo-
rate Respondents as separate, independent, and arm's
length must fail The corporations were not operated in a
purely separate way, records were irregularly kept; and
transactions were not handled in a fashion preserving the
arm's-length relationship Nor were the corporations
managed in such a way as to make it likely that they
could remain solvent and meet their monetary obliga-
tions Certain benefits to the Dahl family, such as the
supplying of personnel to repair and maintain homes and
automobiles, the provision of club memberships, automo-
biles and, for at least one individual, a regular substantial
and unearned wage were accomplished off the books—
that is in a manner not discoverable by examination of
the records or without specific accounting as a benefit to
the family members in question or to Dahl Finally, over
the relevant period, the salary allotted Dahl remained
substantial and without diminution despite regular and
substantial corporate losses and despite the not wildly
unreasonable expectation that the obligations resulting
from the unfair labor practices committed in 1982 and
litigated in 1983 and thereafter would ultimately have to
be paid
I find based on the above that Dahl had at relevant
times integrated and intermingled his assets and affairs
with Original Respondents to such a degree that the dis-
tinction in law between the corporations and Kjell Dahl,
an individual, should be disregarded I further find that
the total of Dahl's salary, unpaid interest, and other ben-
efits provided by Original Respondents to Dahl and his
family members was of such an amount under the condi-
tions of corporate losses prevailing at relevant times that
the assets of Original Respondents were unreasonably re-
duced with a foreseeable consequence of rendering
Original Respondents insolvent and frustrating a mone-
tary obligation such as backpay under the instant back-
pay specification
In Air Vac Industries, 282 NLRB 703 (1987), the Board
approved the decision of Judge Raymond Green who
held that under Riley Aeronautics Corp, supra, individ-
uals who were provided with club memberships, automo-
biles for personal use, sizeable cash disbursements, and
who "utilized their various corporations as a private
bank, feeling free to commingle their own personal assets
and liabilities along with corporate assets and debts" (282
NLRB 711) should be held jointly and severally liable
for the obligations arising under the supplemental deci-
sion
The Air Vac Industries case involved stronger facts and
a more overreaching individual The Issue as to Dahl is
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not so easily decided. Dahl and Corporate Respondents
have had a long history in the Washington State com-
mercial fishing industry. The record concerning Re-
spondents under Dahl's control is not one of rape and
pillage. Nor is it, however, one of conscientious mainte-
nance of separation between corporations and Dahl or
between the corporate finances and the finances of Dahl
and his family. On balance, using the analysis set forth in
Riley Aeronautics, supra, including the factors discussed
above under the General Counsel's Ogle Protection Serv-
ice, supra, theory, .and noting that piercing the corporate
veil is not to be undertaken lightly, I find the instant case
goes beyond the norm wherein individuals are not held
liable for corporate obligations. The instant case merits
this exceptional treatment because of the accumulation of
factors noted above by which Kjell Dahl and his agents
diminished and finally destroyed the separation of Origi-
nal Respondents from the Dahl family's private finances
and affairs. Given this finding I shall hold Kjell Dahl
jointly and severally liable for the obligations of Original
Respondents found herein.
III. THE ORDERS' APPLICATION TO SEA-PAC
EMPLOYEES
A. The Board's Decision and Order
Judge Wieder's decision found that the Charging Party
represented the employees of Dahl Fish Company in the
following appropriate unit:
All employees employed by Respondent Dahl Fish
Company at its Bellingham, Washington facility en-
gaged in production, wholesale, retail, canning,
packaging, freezing, salting, curing, or any other
form of handling fresh or frozen fish or seafood,
and truckdriver production employees, but exclud-
ing guards and supervisors as defined in the Act.
Grossly simplifying the complex set of circumstances
set forth in the judge's decisions, the Original Respond-
ents transferred work done by Dahl Fish Company unit
employees under union contract terms and conditions of
employment to employees of Sea-Pac, Inc. under non-
union terms and conditions of employment with a result-
ing loss of work and layoff of Dahl Fish Company unit
employees. This conduct was found .by the judge, the
Board, and the court to violate Section 8(a)(1), (3), and
(5) of the Act.
The Board adopted the judge's Orders without modifi-
cation. In affirming the judge's conclusions, the Board
noted at 279 NLRB 1084 fn. 3:
Thus, in light of the judge's single employer find-
ing, the Respondent's actions, i.e., the layoff of
Dahl's union employees and the transfer of unit
work to Sea-Pac's nonunion employees, amounted
to a transfer of work from one group of the Re-
spondent's employees to. another. Inasmuch as the
Respondent has proffered no reason for its layoff
and transfer other than labor costs, the decision
clearly did not amount to a change in the scope, di-
rection or nature of the business and was a manda-
tory subject of bargaining. Accordingly, the Re-
spondent's unilateral implementation of that decision
constituted a violation of Sec. 8(a)(5).
Although she specifically found the Original Respond-
ents to be a single employer, Judge Wieder did not find
that the Sea-Pac employees who did the transferred
work were part of the Dahl Fish Company bargaining
unit represented by the Charging Party. She noted at 279
NLRB 1088: "The conclusion that there is a single em-
ployer does not require a finding that there is only one
unit." 8 Rather, Judge Wieder found that the Dahl Fish
unit has coexisted with the Sea-Pac employees for some
time and that the Charging Party was aware of these cir-
cumstances at relevant times. Further, it does not appear
that the General Counsel or any other party sought a
unit finding other than the one made by the Judge and
adopted by the Board.
The Judge's decision contained the following language
in its remedy and order sections and notice language at
pp. 1106-1108:
THE REMEDY
Having found that Dahl Fish Company and Sea-
Pac, Inc. engaged in certain unfair labor practices, I
recommend that they be ordered to cease and desist
therefrom, and that certain affirmative action be
taken to effectuate the policies of the Act. It is also
recommended that Dahl Fish Company and Sea-
Pac, Inc. be ordered to reinstate on request by
United Food and Commercial Workers' Union
Local 44, or the individual employees herein found
to be discriminatees, the terms of employment exist-
ing before the placing of all the unit employees on
call in the above described bargaining unit in Bel-
lingham, Washington, and to make those employees
whole for any losses of wages and other benefits
which would have accrued to them under those
terms of employment, with interest to be paid on
amounts owing and to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950); and Florida Steel Corp., 231 NLRB 651
(1977); plus interest as set forth in Isis Plumbing Co.,
138 NLRB 716 (1962).
As for those employees who did not get an op-
portunity to indicate a desire to be rehired or may
have been deterred from doing so by Respondent's
illegal conduct, it will be recommended that Re-
spondent offer these employees immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
• and privileges. Because the record does not identify
those employees, this matter is to be determined at
the compliance stage of this proceeding.
On these findings of fact and conclusions of law,
and on the entire record I issue the following rec-
ommended: [footnote omitted]
8 Judge Wieder, at her Conclusions of Law 3, specifically limited her
.unit inclusion to Dahl Fish Company employees. The ambiguous dupli-
cate unit finding at Conclusion of Law 11 is inconsistent with the remain-
der of the decision and is apparently inadvertent.
DAHL FISH CO

423
4rt.‘
ORDER
The Respondents, Sea-Pac, Inc and Dahl Fish
Company, Bellingham, Washington, their officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Laying off employees because they refused
midterm contract modifications and replacing those
employees with nonunion employees and/or trans-
ferring unit work to nonunion facilities
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer immediate and full reinstatement to the
employees who were placed on call on December
18, 1981, to their former jobs or, if such jobs no
longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority or other rights and
privileges, and for all employees, including those re-
called, make them whole for any loss of pay suf-
fered by reason of Respondent's actions in the
manner set forth in the remedy section of this deci-
sion
The Judge's notice to employees ordered posted by
Dahl Fish Company as part of the remedy states, in part
WE WILL NOT decide, without the consent of the
Union which represents all our fish company em-
ployees to transfer any of our processing oper-
ations from our Bellingham, Washington facility to
Sea-Pac's facilities or use Sea-Pac or other nonunit
employees [emphasis added] to perform barganung
unit work
WE WILL bargain collectively with the Union
with respect to the decision to transfer certain proc-
essing operations, such as the processing of dogfish
and salmon, to Sea-Pac, Inc facilities or Sea-Pac,
Inc employees or other nonunit employees [Em-
phasis added]
WE WILL offer reinstatement with backpay and
interest to all employees who were laid off on De-
cember 18, 1981
WE WILL make whole our employees in the above-
described unit [emphasis added] by paying all contri-
butions as required in the collective-bargaining
agreement that expired April 1, 1982, to the extent
such contributions have not been made or that the
employees have not otherwise been made whole for
expenses or vacation or other credits and continue
to make such payments until we negotiate in good
faith with the Union to a new agreement or to an
impasse We shall include reimbursements for any
employees who contributed themselves to the main-
tenance of health and welfare coverage and vaca-
tion benefits after we unlawfully ceased contribut-
ing
B The Positions and Arguments of the Parties
The Dahl Fish Company employees who lost work
and therefore. wages and benefits are clearly included in
the make-whole Order Indeed, all parties not only stipu-
late to their inclusion, they also accept the General
Counsel's amended backpay specification figures with re-
spect to them The Sea-Pac employees who did the work
wrongfully taken from the Dahl Fish Company employ-
ees are the subject of the dispute concerning the reach of
the employee make-whole Order In one sense the Sea-
Pac employees received work which they were not enti-
tled to and therefore were benefited rather than harmed
by the unfair labor practices found in the original deci-
sion in Case 19-CA-14460 Were the Sea-Pac employees
doing this work compensated at the union contract rate,
as the Dahl Fish Company employees would have been
had they done the work, superior wages and benefits
would have been received In this sense the Sea-Pac em-
ployees received less and were harmed Were the make-
whole Order, quoted supra, applied to the Sea-Pac em-
ployees as the General Counsel contends, the contract
wages and benefits, as liquidated in the General Coun-
sel's calculations which were stipulated by the parties to
be correct, would be due them
The General Counsel with the agreement of the
Charging Party contends that the language of the Deci-
sion and Order in Case 19-CA-14460 includes the Sea-
Pac employees (referred to at the trial as the "claim-
ants") expressly by its terms Further, the General Coun-
sel and the Charging Party argue such a remedy is a tra-
ditional one for the violation found Original Respond-
ents with the agreement of the Additional Respondents
argue directly to the contrary first, that the order may
not be fairly read as including the claimants and, second,
that the Board's substantive law expressly denies recov-
ery to employees in similar circumstances
The General Counsel notes that the judge specifically
found that employees doing the work in question after
December 18, 1981, 1 e, Sea-Pac employees, were not
paid contract wages and benefits in violation of Section
8(a)(1) and (5) of the Act The General Counsel further
notes that the Order at paragraph 2(a), quoted in full
supra, specifically addresses itself to "all employees" in
directing a make-whole Order Original Respondents'
argue that the General Counsel's position that paragraph
2(a) of the Order includes employees other than those
Dahl Fish employees denied work "totally misconstrues
paragraph 2 a, the purpose of which is the ordering of
full reinstatement and backpay to the discrmunatees,
namely, `employees who were placed on call on Decem-
.ber 18, 1981 " In support of their argument Original Re-
spondents note that, the first paragraph of the remedy
section of the decision states that Respondents are direct-
ed to reinstate the laid-off employees and make only
"those" employees whole for their losses
Counsel for the General Counsel argues on brief that
the remedy she advances with respect to the Sea-Pac
employees is a "common remedy" in Board cases involv-
ing violations of Section 8(a)(3) and Section 8(b)(2) of
the Act and is also used in 8(a)(5) cases She notes such a
remedy was directed m Unbelievable Fashions, 286
NLRB No 78 (Oct 26, 1987) (not reported in Bound
volume)
Original Respondents, in a scholarly analysis of the
case law, point out that recent Board decisions involving
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
remedies for work transfers turn on the question of the
breadth of the bargaining unit Thus, argues Original Re-
spondents, where the employees who lost the work and
the employees who did the work improperly transferred
are found to be in the same bargaining unit, the contract
covering the employees who lost the work is applied to
all employees including the employees who did the
work Thus, in such a case the General Counsel's pro-
posed remedy might be appropriate Only in such specif-
ic circumstances argues Original Respondents are the
employees who fortuitously were assigned the work at
issue made whole citing, Burgess Construction, 596 F 2d
378 (9th Cir 1978), enfg 227 NLRB 765 (1977) Where,
however, the two groups of employees are not in the
same unit, Original Respondents argue, the Board's
make-whole remedy is limited to the employees who lost
work citing A-1 Fire Protection, 273 NLRB 964 (1984),
enfd sub nom Road Sprinkler Fitters Local 669 v NLRB,
789 F 2d 9 (D C Cir 1986)
C Analysis and Conclusions
I have considered the able arguments of counsel as
well as the case law and the language of the decision and
order itself in reaching my decision in this aspect of the
case The language of the Order insofar as it obtains here
is not free of at least arguable ambiguity To the extent
ambiguity exists in the meaning of the Order the remain-
der of the Decision and Order is relevant and useful to
resolve such ambiguity Similarly examination of the
decisional law respecting remedies is of value in assisting
in interpretation of the Order Thus the cases are to be
considered only for the light they may shed on the
meaning of the instant Order rather than for any hold-
ings on what a remedy in this type of case should have
been It must be emphasized that the goal in the compli-
ance stage of an unfair labor practice proceeding is not
to determine what the remedy should have been or
should now be directed in the case Rather the goal in
the compliance stage is to apply what has already been
decided, a process narrowly limited to determining what
the ordered relief in the original Decision and Order
means and how it may be implemented Administrative
law judges are strictly limited in compliance cases, unless
specifically noted by the terms of the original order, to
such a limited role A necessary consequence of this limit
is that only the Board or higher authority may change
the terms of the Order Accordingly, should any party
wish a different remedy irrespective of however com-
manding the case law and the equities, that remedy must
be sought from the Board and/or higher reviewing au-
thority and not from an administrative law judge in a
compliance action
Respecting the case law on remedy cited by the par-
ties, I am persuaded by the citation and argument of the
Original Respondents that recent Board cases make it
clear a single, overall collective-bargaining unit must be
found before a make-whole remedy is directed to em-
ployees who were the beneficiaries of illegally trans-
ferred union contract work The General Counsel's cited
case is distinguishable because on the facts of the cited
case work was not transferred between two groups of
employees Since it is clear that Judge Wieder's decision
did not make a unit finding which included the Sea-Pac
employees, under Board law the appropriate remedy in
this case would not include the additional relief for Sea-
Pac employees suggested by the General Counsel and
the Charging Party
Turning to the Board's Decision and Order itself, I
have considered the arguments of the parties on the
proper interpretation and construction to be put on the
language of the Order as well as the language of the De-
cision and Order itself I conclude the order was not in-
tended to and does not include the Sea-Pac employees in
its compass Thus, I find only the Dahl Fish Company
employees, about whom there is no dispute, are covered
by the order and the Sea-Pac, Inc employees or claim-
ants are not covered I find that the Decision and Order
taken as a whole make it clear that Judge Wieder intend-
ed to give relief only to unit employees and that Sea-
Pac, Inc employees were not in that unit This is per-
haps best illustrated by the underlined language of the
notice quoted above which makes it clear that (1) only
Dahl Fish employees are in the represented unit and (2)
only "employees in the above described unit" will be
made whole In agreement with Original Respondents, I
do not accept the construction advanced by the General
Counsel that the language of the Order unambiguously
includes other than unit employees in its scope Having
reached this conclusion, I shall limit my directed relief to
the backpay specification sums agreed on between the
parties only as to the Dahl Fish employees also known
as the "discnmmatees" and shall dismiss the backpay
specification as to the Sea-Pac employees also known as
"claimants
IV THE APPLICABILITY OF THE LITIGATION
REIMBURSEMENT ORDER
A The Judge's Supplemental Decision and Order
Judge Wieder's September 30, 1985 supplemental deci-
sion in Case 19-CA-15336 was adopted by the Board
and court without modification In it Judge Wieder
stated as follows at 279 NLRB 1112
CONCLUSIONS OF LAW
3 By filing an unmeritorious and retributive state
lawsuit for damages in the Superior Court of the
State of Washington in and for King County, Re-
spondent has violated Section 8(a)(1) of the Act
THE REMEDY
Having found that Respondents Sea-Pac, Inc and
Dahl Fish Company have engaged in an unfair
labor practice within the meaning of Section 8(a)(1)
of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain af-
firmative action necessary to effectuate the policies
of the Act
Respondents shall be ordered to cease from these
unfair labor practices In addition, in order to place
DAHL FISH CO 425
the Union in the position it would have been absent
this unfair labor practice, Respondent Sea- Pac, Inc
and Respondent Dahl Fish Company shall be or-
dered to make the Union whole for all legal ex-
penses incurred in the defense of that lawsuit Bill
Johnson's Restaurant v NLRB, [461] U S 731
(1983)
On these findings of fact and conclusions of law
and on the entire record, I issue the following rec-
ommended [footnote omitted]
ORDER
The Respondents, Sea-Pac, Inc and Dahl Fish
Company, Bellingham, Washington, their officers,
agents, successors, and assigns, shall
2 Take the following affirmative action designed
to effectuate the policies of the Act
(a) Reimburse the Union for all legal ex-
penses incurred in the defense of its State court
action in Sea-Pac, Inc i) United Food and Commer-
cial Workers Local Union 44, 103 Wn 2d 800, 699
P 2d 217 (1985)
B Positions and Argument of the Parties
The Charging Party argued at the hearing and on brief
that it was entitled under the Order to reimbursement of
the legal expenses it incurred in connection with the liti-
gation of Case 19-CA-14460 which it contends were
necessary for its defense of the state court action The
Charging Party asserts it is not seeking to modify or
broaden the outstanding Order Rather, it contends the
order is "sufficiently broad to permit reimbursement to
the Union of its legal fees in the underlying unfair labor
practice proceeding in Case 19-CA-14460"
The Charging Party notes that the state court action
brought against it alleged that the Charging Party's
amendment to its charge in Case 19-CA-14460 "tortious-
ly interfered with the employer's business expectations"
On brief the Charging Party noted at page 7
One of the defenses asserted by the Union to the
state action was its First Amendment privilege to
file the amended charge in Case 19-CA-14460 To
prevail on that defense, the Union was required to
refute the employer's claim that the charge was un-
meritorious See Bill Johnson's Restaurants v NLRB,
461 U S 731 (1983) It thus became prudent for the
Union to intervene and participate in the unfair
labor practice proceeding in Case 19-CA-14460 in
support of its amended charge
The Charging Party notes that it is not seeking reim-
bursement for its legal expenses in connection with Case
19-CA-15336 and that the amount of expenses incurred,
independent of issues of liability, was stipulated by the
parties
The General Counsel and Respondents opposed the
contentions of the Charging Party The General Counsel
simply supports the expense amounts alleged in the back-
pay specification and admitted by Respondents which
are for the expenses narrowly incurred in the state court
action itself Original Respondents opposed the Charging
Party's position on brief arguing the order binds all par-
ties, is specific in its terms and does not include reim-
bursement for expenses incurred in collateral litigation
Finally, Original Respondents challenge the contention
of the Charging Party that its effort in Case 19-CA-
14460 were necessitated by the state court action assert-
ing that the Charging Party's statutory responsibility to
its membership and the employees it represents required
it to take the action it did 9
C Analysis and Conclusions
While the Charging Party eschews the suggestion it is
seeking to expand the Order's scope herein, it offers no
citation of authority that a litigation reimbursement
remedy may be expanded in the fashion advanced or that
such a remedy has been explicitly directed in other cases
The Order involved herein, quoted in full supra, is spe-
cific and limited Had Judge Wieder, the Board or the
court an intention to include the costs incurred in the
litigation of Case 19-CA-14460 in the reimbursement
order, it would have been simple to have done so Had
any party sought such a remedy in the unfair labor prac-
tice portion of these proceedings, the record would
surely reflect that fact Rather, it would seem, the
Charging Party is trying for the first time in the compli-
ance stage of the proceedings to expand a conventional
reimbursement order in an unprecedented way
An administrative law judge is circumscribed in ex-
panding, narrowing, or otherwise modifying Board law
during the unfair labor practice stage of litigation In
compliance proceedings, the judge is even more strictly
charged with interpreting only the terms of the Order
This would seem particularly true where the Order has
been enforced by a United States circuit court of Ap-
peals Questions of what should have been or could have
been ordered to remedy the violations found must defer
to the smgle task of applying what has been ordered in
the underlying proceeding Because this is so, I need not
evaluate the arguments made by the Charging Party re-
specting the "prudence" of its participation in Case 19-
CA-14460 given the state lawsuit filed against it How-
ever necessary that participation was and however ap-
propriate the remedy the Charging Party now seeks
would have been, a fair reading of the Order does not
allow reimburement of costs incurred in other than the
state court action This being so I shall not award addi-
tional expenses If the Charging Party desires a broaden-
ing of the Order to encompass the additional relief
sought, the Board, not its administrative law judge,
should be consulted
9 Respondent also challenged the Charging Party's standing to contest
the terms of the backpay specification The Charging Party's cited case,
Pipeline Local 38, 268 NLRB 167, 175 fn 19 (1983), enfd as modified 748
F 2d 1001 (5th Cif 1984), cert denied 470 U S 1085 (1985), is persuasive
to the contrary The Charging Party's argument is properly before me
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
V THE QUESTION OF INTEREST UNDER THE
REIMBURSEMENT ORDER
A The Order and the Positron of the Parties
As quoted supra, the Order in Case 19-CA-15336 di-
rected reimbursement of legal expenses incurred by the
Charging Party in the state court suit Interest on the liti-
gation expenses was neither provided nor discussed in
any portion of Judge Wieder's decisions or thereafter by
the Board or court The Order provides interest and case
authority for the provision of interest to employees as
part of the make-whole language addressed to employ-
ees It is silent regarding the payment of interest on the
Charging Party's legal expenses
The Charging Party seeks interest on awarded legal
expenses The Charging Party's argument may be sum-
marized thusly Board decisional law allows for interest
on backpay and other monetary remedies The reim-
bursement of legal expenses is such an "other monetary
remedy" Board cases, including Florida Steel Corp, 231
NLRB 651 (1977), and Isis Plumbing Co, 138 NLRB 716
(1962), note that provision of Interest produces a "more
equitable result" and encourages "more prompt compli-
ance with Board Orders without placing a significant ad-
ditional burden on the wrongdoer," 231 NLRB 651 The
Board remains concerned with selection of a just interest
rate New Horizons for the Retarded, 283 NLRB 1173
(1987)
The Charging Party argues further that, while the in-
stant order does not direct interest, the remedy section
notes
In addition, in order to place the Union in the posi-
tion it would have been absent this unfair labor prac-
tice [emphasis added], Respondent Sea-Pac, Inc and
Dahl Fish Company shall be ordered to make the
Union whole for all legal expenses incurred in the
defenses of that lawsuit Bill Johnson's Restaurants
[v NLRB, 461 U S 731 (1983)]
The substantial passage of time since the expenses in-
volved here were incurred makes any relief without in-
terest essentially illusory Inclusion of interest simply
harmonizes with Board policy in other areas and brings a
necessary consistency to the enforcement of the Act
The General Counsel limits her discussion of the issue
on brief to the following at fn 4 at page 3
Counsel for the General Counsel does assert that in-
terest is owed on the award of attorney fees Inter-
est is the standard remedy provided by the Board
and no circumstance exists which should preclude
the award of interest on the attorney fee award
Original Respondents oppose the inclusion of interest on
the award applying the same argument and analysis ad-
vanced in opposition to the Charging Party's request for
recovery of legal expenses incurred in the litigation of
Case 19-CA-14460 as described supra
B Analysis and Conclusions
The unfair labor practice committed by an employer
who files a state suit lacking a reasonable basis was dis-
cussed by the Supreme Court in Bill Johnson's Restau-
rants v NLRB, 461 US 731 (1983) The Court held that
the final determination of such an unfair labor practices
allegation must await the results of the state adjudication
Concerning the issue of remedy, the Court noted at 461
U S 748
If a violation is found, the Board may order the
employer to reimburse the employees whom he had
wrongfully sued for their attorney's fees and other
expenses It may also order any other proper relief
that would effectuate the policies of the Act 29
U S C Sec 160(c) [footnotes omitted]
The Court's holding, because of its requirement
that the unfair labor practice case must await the
outcome of the state court proceeding, inevitably
makes cases of this type some of the oldest the
Board processes This is so because the time neces-
sary to conclude the state action is added to the
normal processing time for cases before the Board
No other category of cases must suffer such addi-
tional structural delays 10 The remedy in these
cases therefore must take into account the unusual
and substantial delay between the incurring of legal
expenses and the actual payment of any reimburse-
ment remedy The Court's holding, quoted supra,
further provides that attorney's fees and other ex-
penses may be reimbursed and that other proper
relief may be directed Such language in light of the
special circumstances of these cases would seem to
particularly call for an interest remedy
The parties simply omitted to discuss the case law on
the awarding of interest beyond the General Counsel's
laconic footnote quoted supra The Board has directed
litigation cost reimbursement in three types of cases
where employers sue unions or employees," where
10 Consider the instant case The lawsuit was filed in 1982 and the final
determination in state court occurred in 1985 The judge's decision in
Case 19-CA-I4460 Issued in 1983, her supplemental decision which
awaited the result in the state court action in Case 19-CA-15336 Issued in
1985 The Board's decision Issued in 1986 and the Court's order Issued in
1987 It may be fairly expected that any exceptions to the Instant decision
will carry the final resolution of these matters at least well Into 1990 and,
if the courts are Involved, possibly beyond
Given the Interest rates applicable in Board cases in the years involved
here, and even assuming the Charging Party receives reimbursement as of
the date this supplemental decision Issues, the sum due the Charging
Party would be substantially more than doubled if interest were included
Additional delay further reduces the final effective recovery Put another
way, if Interest is not Included, the ultimate award will be substantially
less than half of what would have been awarded had Interest been includ-
ed It is beyond controversy to state that reimbursement of costs so long
before Incurred without interest is reimbursement of but a fraction of the
costs in real dollars Incurred by the Charging Party Put another way,
payment of a debt Incurred in 1982 dollars by an identical number of
1989 or later dollars, is not full recompense in the real world
" See, e g, Bill Johnson's Restaurants, 290 NLRB 29 (1988), Phoenix
Newspapers, 294 NLRB 47 (1989), American Pacific Concrete Pipe, 292
NLRB 1261 (1989), J W Rhodes Department Stores, 267 NLRB 381
(1983), United Credit Bureau of America, 242 NLRB 921 (1979)
DAHL FISH CO 427
unions sue members" and where a defense to a Board
unfair labor practice is deemed frivolous 15 Only a single
Board decision has explicitly awarded interest on litiga-
tion costs, Inland Boatmen's Union (Dillingham Tug), 276
NLRB 1261 (1985), which coincidentally issued on Sep-
tember 30, 1985, the date of Judge Wieder's Order di-
recting litigation cost reimbursement In Dillingham Tug,
the judge without discussion or citation of authority
awarded interest and the Board, also without discussion
or citation, adopted the judge's remedy even including
the interest provision in new notice language crafted by
the Board No case has specifically denied an interest
rate request Thus, the Board has apparently never dis-
cussed the issue
The arguments of the Charging Party and the policy
considerations arising out of the unique need to hold
cases alleging a "Bill Johnson's Restaurants" violation
until the conclusion of state court litigation convinces me
there is a special need to provide interest in such cases I
find no authority however for the proposition that such
provision may be made in the compliance stage of the
proceedings where the controlling Decision and Order
does not so provide As noted supra, the compliance
stage is for the application of existing language not for
the crafting of remedial provisions however needed to
reach a just result Accordingly, albeit with some reluc-
tance, I decline to award interest on the costs incurred
by the Charging Party in the state court litigation I so
find without reaching the question of the desirability of
such a remedy and hold that the narrow fact that interest
is not explicitly provided in the Decision and Order for
reimbursement costs is controlling of the result here
The Board has modified its formulas for calculation of
compliance remedies even after the enforcement of the
original case by the United States Court of Appeals and
the issuance of a supplemental decision by an administra-
tive law judge, see, e g, Ogle Protection Service, 183
NLRB 682 (1970) (modifying backpay formula) The
Board may wish to specifically consider the question of
interest on reimbursement remedies given the arguments
of the parties It is, however, from the Board that such
relief should be sought
VI SUMMARY
A Disputed Aspects of the Backpay Specification
I have found that Additional Corporate Respondents
and Original Respondents are a single employer under
Board standards and therefore jointly and severally liable
under the backpay specification I have also found that
Kiel Dahl, an individual, is jointly and severally liable
for the obligations of Original Respondents under the
backpay specification Thus, I have found that Addition-
al Respondents, and each of them, are liable for the
moneys due under the portions of the backpay specifics-
" See, e g, Laborers Northern California Council (Baker Ca), 275
NLRB 278 (1985), Commercial Workers Local 1439 (Allied Employers),
275 NLRB 995 (1985), Machinists District 94 (McDonnell Douglas), 283
NLRB 881 (1987)
13 See, e g, Wellman Industries, 248 NLRB 325 (1980), Epe Inc , 273
NLRB 1375 (1985), Springfield Transit Management, 281 NLRB 916
(1986)
non found meritorious herein Accordingly, I shall rec-
ommend that Additional Respondents be held jointly and
severally liable along with Original Respondents for the
amounts due under the portions of the backpay specifica-
tion found meritorious
I have found that Judge Wieder's make-whole Order
applies only to Dahl Fish Company employees or discn-
mmatees and does not apply to Sea-Pac employees or
claimants I shall therefore dismiss all portions of the
backpay specification seeking either direct payments to
the claimants or contractually based payments to trusts
based on the claimants' work hours
I have found that the legal expenses reimbursement
provisions of the Order in Case 19-CA-15336 did not in-
clude expenses incurred other than in the state lawsuit
itself I shall therefore decline to include in the relief di-
rected here any reimbursement of the Charging Party's
legal expenses incurred in the litigation of the onginal
Board Case 19-CA-14460 I have also found that the
Order does not include or support provision of interest
on the reimbursed legal expenses I shall therefore dis-
miss the General Counsel's request for such relief 14
B Undisputed Aspects
Respondents orally entered into various stipulations of
fact in effect amending their answers to the backpay
specification to admit certain allegations Thus, Respond-
ents admit all the allegations of the backpay specification
as amended orally at the hearing concerning the net
backpay and other payments due the discnmmatees and
admit the sum alleged as the legal expenses of the Charg-
ing Party incurred in the state court lawsuit Based on
the pleadings, including the oral amendments to both the
answers and the backpay specification made at the hear-
ing, and in agreement with the parties, I sustain all ad-
mitted elements of the backpay specification
C Specification of Sums Owing Under the Backpay
Specification
1 Specification in Case 19-CA-14460
Having determined that Respondents are liable for the
sums alleged in the amended backpay specification and
admitted in Respondents' amended answers concerning
the 34 employees of Dahl Fish Company referred to
during the proceedings as discrimmatees, I shall adopt
that portion of the specification in its entirety in my rec-
ommended supplemental Order 15 The following table
summarizes those specifications without notation of the
dates of earnings by quarter which are set forth in the
amended backpay specification and are necessary for cal-
culation of interest as required by the Order
The backpay specification made no specific request for such relief
but the General Counsel and the Charging Party both at the hearing and
on bnef, as quoted supra, made it clear such relief was requested
i6 light of the agreement of the parties respecting the calculations of
the General Counsel as described herein, should an inconsistency or
other error appear in the table, the calculations regarding the discrinuna-
tees set forth in the final amended appendices to the backpay specifica-
tion shall control over the enumerations continued here which are calcu-
lated from the admitted backpay specification paragraphs and appendix
entries
Employee
316 4"
Wages, Holidays, and Health and WelfareVacation
516 6
Pension Line Totals
1
Line
2
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
Adams, Carl
Albans, Gary
Atwood, Robert
Bmgelli, Neva
Brethauer, Linda
Casebeer, Henry
Feenstra, Tom
Francisco, Dal
Gerner, Ken
Houser, James
Kearney, Jean
Keife, Michael
Klein, John
Knutsen, Lynn
Markee, Verlon
Marshall, Charlene
McIntyre, Jim
Miller, Kyoko
Moena, Bud
Morvee, William
Pengo, William
Perry, Marilyn
Rife, Donald
Rogers, Carol
Rogers, Joseph
Sand, Earl
Seaman, Don
Sooter, Robert
Soter, Jim
Sotinous, Demetnous
Steffens, Mike
Switzer, Harold
Thorp, Debra
Wentz, Kirt
Total Column 3
Total Column 4
Total Column 5
Total Column 6
$5,847
9,373
5,356
8,813
8,718
6,022
38,938
49,520
17,846
33,401
50,541
13,446
60,507
37,455
61,562
47,863
11,750
51,666
22,438
13,258
20,257
26,344
33,692
4,562
20,790
67,310
44,342
20,962
36,046
33,905
50,642
61,976
23,009
25,633
$1,023,790
._/
$3,455
1,604
1,357
2,221
2,345
1,234
9,749
9,996
10,489
5,306
10,409
9,625
8,268
10,366
10,489
10,366
6,046
10,242
9,749
1,851
7,821
5,923
9,749
1,974
3,455
10,489
7,404
9,872
10,366
9,379
9,748
10,489
6,787
9,996
$248,619
$1,355
730
394
1,017
1,172
508
6,358
7,327
7,387
2,063
6,286
4,001
3,095
7,217
8,515
7,723
2,268
6,657
5,018
705
3,349
3,827
5,260
713
2,329
8,474
5,065
4,432
6,140
5,165
4,129
7,585
3,688
5,181
$145,133
$10,657
11,707
7,107
12,051
12,235
7,764
55,045
66,843
35,722
40,770
67,236
27,072
71,870
55,038
80,566
65,952
20,064
68,565
37,205
15,814
31,427
36,094
48,701
7,249
26,574
86,273
56,811
35,266
52,552
48,449
64,519
80,050
33,484
40,810
$1,417,542
2 Specification in Case 19-CA-15336
Having determined Respondents are liable for the sum
alleged in the amended backpay specification and admit-
ted in Respondents' amended answers as due the Charg-
ing Party under the Order in Case 19-CA-15336, I shall
direct Respondents to pay the Charging Party $53,865 41
without interest
1 ° Column 3 entries for the discnminatees listed in Imes 1 through 34
of the table were calculated by adding the stipulated amounts for wages,
holidays, and vacation for the years 1982-1987 set forth in backpay speci-
fication appendices A-1 through A-34 to the same stipulated entries for
1988 from appendices D-1 through D-34
17 Column 4 entnes were calculated by adding the stipulated 1982-
1987 entnes in appendices A-I through 34 for health and welfare pay-
ments to the stipulated entries for 1988 health and welfare payments in
Appendices D-1 through D-34
78 Column 5 entries were calculated by taking the 1982-1987 revised
pension entnes-which had been reduced 5 percent from earlier entries
pursuant to the stipulation of the parties-Appendix E-1 and adding the
stipulated 1988 entries from appendices D-I through D-34
On the basis of the foregoing, and pursuant to Section
10(c) of the Act, it is recommended that the Board issue
the followmg i 9
ORDER2°
It is ordered that Respondents Dahl Fish Company,
Sea-Pac, Inc , Blame Protein, Inc , Blame Protein Inter-
national Sales, Inc and Kjell Dahl, an individual, jointly
and severally, their successors and assigns, shall forth-
with pay the following individuals and entities the
amounts listed and, where indicated, pay interest on the
sums due calculated in the manner and in the amount set
forth in the original Order here utilizing the quarterly
19 All motions inconsistent with this recommended Order not other-
wise ruled on at the hearing or herein are denied
20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
DAHL FISH CO 429
calculations set forth in the amended backpay specifica-
tion and its appendices
1 The 34 individuals listed as discnmmatees in the
amended backpay specification and listed in the table,
supra, shall receive the sum of $1,023,790 allocated as in-
dicated in the table at column 3 plus interest to be com-
puted as set forth in the original Order here, less tax
withholding required by state and Federal law
2 United Food and Commercial Workers Union Local
44, chartered by United Food and Commercial Workers
International Union, AFL-CIO Said entity shall receive
forthwith the sum of $53,865 41 without interest
3 Washington Meat Industry Pension Trust shall re-
ceive the sum of $145,133 plus interest as set forth in the
ongmal Order here These sums shall be identified as
back pension contributions due under the collective-bar-
gaining agreement for the discnminatees set forth m the
amended backpay specification and also listed in the
table at column 5
4 The Health and Welfare Contractual Trust existing
under the agreement dated July 10, 1977, between Allied
Employer, Inc and Amalgamated Meat Cutters and
Butcher Workmen of North Amenca, AFL-CIO, Local
Unions Nos 81, 151, 186, 247, 529, 553, 554, and 652 or
their successors or assigns shall receive the sum of
$248,619 plus interest as set forth in the ongmal Order
here These sums shall be identified as the back health
and welfare contnbutions plus Interest for the discnmma-
tees set forth in the amended backpay specification and
also listed m the table at column 4
IT IS FURTHER ORDERED that the following portions of
the backpay specification shall be dismissed
1 The portion of the backpay specification alleging
sums due the employees of Sea-Pac referred to as claim-
ants at the trial and in the backpay specification, includ-
ing all portions which utilize claimant hours to support
payments to contractual funds or trusts
2 The portion of the backpay specification seeking in-
terest on the amount paid to the Charging Party in reim-
bursement for legal expenses in the state court litigation
IT IS FURTHER ORDERED that the Charging Party's
motion that its expenditures in litigation of Case 19-CA-
14460 be compensated under the litigation compensation
order shall be denied