(concurring in the result only):
I concur in the result. I also agree with the final conclusion that the respondent on the facts of this case had a duty to bargain with the union and to consult with it before unilaterally changing the terms and conditions of employment.
However, I am of the opinion that the duty to bargain about a change in the terms and conditions of the employment was in no way conditioned on the employer’s good faith doubt about whether the affected employees were represented by the union. Consequently, whether the Board properly applied a presumption that a certain proportion of “new hires” would favor the union is irrelevant. An explanation of my view requires only a brief explication of the facts. When, as set forth in the majority opinion, “in 1977 Costa retired and sold the company to Edjo,” that was accomplished by a sale of all of the shares of stock in Costa owned by Mr. Costa and his wife. Furthermore, not only were all of Costa Trucking’s 21 drivers retained on Costa’s payroll after that sale, the drivers continued to do the same work as before out of the same location. There were no changed conditions at all created by the shift of stock. The only change is that the legend “Subsidiary of Edjo” was added under “Costa Trucking” on the building where the business is conducted and on the Costa trucks. The record is replete with other facts consistent with the legal reality. Cos-ta Trucking was not dissolved, nor was it merged into Edjo—its trucking operations continued in the same corporate entity and in the same way as before under the same PUC certificate. Edjo became the parent of Costa Trucking, not its successor.
In General Teamsters, Chauffeurs and Helpers, Local Union No. 249 v. Bill’s Trucking, Inc., 493 F.2d 956 (3d Cir. 1974), the court faced a set of facts nearly identical to those of the instant case. There it was alleged that the sole stockholder in a trucking corporation known as ETI sold all of ETI’s issued and outstanding stock to one William Fiore, who in turn transferred the stock to a corporation of which he was sole stockholder. ETI had entered into a collective bargaining agreement with the Teamsters that was in effect at the time of the sale. Within 30 days the name of the corporation was changed from ETI to Bill’s Trucking, Inc. (BTI). When BTI discharged nine truck drivers who had been employed by ETI, the union brought a breach of contract action against BTI under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The district court, treating a motion to dismiss as a motion for summary judgment, dismissed the complaint on the ground that the labor agreement was terminated by the sale of stock and change of name.
The Third Circuit reversed after concluding that material issues of fact remained in dispute and could not be resolved on summary judgment. In trying to guide the district court’s handling of the case on remand, Judge Adams wrote:
“The Union’s pleadings and affidavits indicate that BTI, far from being a distinct corporate entity, was the ‘same corporation’ as ETI. Were the district court to find, after considering the evidence, that such absolute identity of business enterprise existed, both our national labor *609law and general corporation law—and perhaps plain common sense—would require the enforcement against BTI of the Union-ETI contract....
“... [W]here, as here alleged, there is a simple purchase of stock, followed only by a change in corporate name and some minor changes in business operations, the policies of our national labor law weigh heavily in favor of a doctrine that preserves intact the employees’ bargained-for rights and duties, or at least a portion of them.”
Id. at 961-63 (footnotes omitted).
This court, in Bartenders and Culinary Workers Union, Local 340 v. Howard Johnson Co., 535 F.2d 1160 (9th Cir. 1976), explicitly approved in dicta the portion of Bill’s Trucking quoted above. Id. at 1163 n. 4.
Although this is not an action for breach of contract with a labor union brought under section 301, Edjo, which is managing all of the affairs of Costa was in privity with it insofar as relations with the employees of the union are concerned. The collective bargaining agreement between Costa Trucking and the union was still in effect at the time of the sale. Consequently, as a matter of labor law, even had Edjo immediately requested the union to bargain over changes in terms or conditions of employment, the union could have refused without being chargeable with an unfair labor practice. 29 U.S.C. § 158(d).1 By unilaterally modifying the terms and conditions of employment, the employer had committed an unfair labor practice in violation of section 8(a)(5). See N. L. R. B. v. Katz, 369 U.S. 736, 745, 82 S.Ct. 1107, 1112, 8 L.Ed.2d 230 (1962).
Furthermore, even if Edjo is to be regarded as Costa Trucking’s successor, the same result would be reached without resorting to any presumption about the new hires to challenge the employees’ allegation of a “good faith doubt.” N. L. R. B. v. Burns teaches, 406 U.S. 294-95, 92 S.Ct. at 1585-1586;
“Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate' to have him initially consult with the employees’ bargaining representative before he fixes terms.” (Emphasis added.)
The majority opinion confirms the view that this is just such a case as the Supreme Court had in mind. There was no need for the Board to consider a presumption about “new hires” even if it did consider this as a “suecessorship” case.
. 29 U.S.C. § 158(d) reads, in pertinent part:
“Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification—....”
The “unless” conditions (1) and (2) in subsection (d) provide that the party desiring the change shall give 60 days’ written notice of the proposed modification or termination, and offers to meet and negotiate with the other party with respect to these.