Greyhound Taxi Co, Inc , Sacramento Taxi, Inc

National Labor Relations Board - Board Decisions

Jan 12, 1989

292 N.L.R.B. 267 (N.L.R.B. 1989)

GREYHOUND TAXI CO 267
Greyhound Taxi Co, Inc, Mohinder Singh Rye and
Karter Rye, as Individuals , Sacramento Taxi,
Inc and Robert J Sans and Automotive Team-
sters, Chauffeurs and Miscellaneous Employees
Local 165 , International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America , AFL-CIO and Harold L Wake
field Cases 20-CA-10868, 20-CA-12909, 20-
CA-10892, and 20-CA-11154
January 12, 1989
THIRD SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On October 27, 1988, Administrative Law Judge
Gordon J Myatt issued the attached Ruling on
Motion and Third Supplemental Decision and
Order The Respondent filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Greyhound
Taxi Co, Inc and Sacramento Taxi, Inc, Sacra
mento, California, their officers, agents, successors,
and assigns, shall take the action set forth in the
Order
Jonathan J Seagle Esq for the General Counsel
Archie G Parker Esq (Parker Hume & Mager) of Sacra
mento California, for the Respondent
RULING ON MOTION AND THIRD
SUPPLEMENTAL DECISION AND ORDER
On October 7 1987, the Regional Director for Region
20 filed a motion for determination of personal liability
liability as successor and notice of hearing in the above
captioned matter On February 19, 1988, the Regional
Director issued an order severing and postponing hear
ing on those portions of the motion relating to the per
sonal liability of Mohlnder Singh Rye and Karter Rye, as
individuals thereby leaving for hearing and resolution
only the determination of the liability of Sacramento
Taxi, Inc (Sacramento) as successor to Respondent
Greyhound Taxi Co Inc (Greyhound) 1
' On November 2 1987 the Teamsters International Union was read
matted to the AFL-CIO Accordingly the caption has been amended to
reflect that change
A hearing was held in this matter on February 22,
1988 in Sacramento California At the hearing the par
ties entered into a stipulation of facts in lieu of any oral
testimony or documentary evidence (See G C Exh B )
Briefs have been submitted by the parties and have been
duly considered
On the entire record in this matter,2 I make the fol
lowing
Ruling on the Motion
The stipulated facts disclose that Sacramento was
formed shortly before January 30 1982 for the purpose
of acquiring the assets of Respondent Greyhound in Sac
ramento California Albert E Budmark president and
general manager of Sacramento, and his wife are the sole
shareholders of Sacramento Budmark had been em
ployed by Respondent Greyhound since 1973 as the dis
patcher with authority to hire drivers and to schedule
their work shifts He remained in this capacity until the
date of the sale of Greyhounds assets to Sacramento
The sale of Greyhound s assets to Sacramento was a
bona fide sale in all respects The basic purchase agree
ment was for the purchase of all assets with the Seller
retaining all liabilities The assets acquired by Sacramen
to consisted of all Greyhounds vehicles, the city and
county of Sacramento operating permits all equipment
and the supply of natural gas used as fuel for the vehi
Iles The transfer of ownership and possession from
Greyhound to Sacramento took place at 6 a in on Janu
ary 30, 1982
There was never a disruption of business during the
transfer Sacramento performed the same services in the
same manner as was performed by Greyhound The taxi
cabs operated from the same location which was leased
by Sacramento from the principal owners of Greyhound
The telephone number of Greyhound was retained by
Sacramento and the appearance of the taxicabs remained
unchanged Concurrent with the sale the corporate
name of Greyhound Taxi Co Inc was changed to Rye
Enterprises Inc to enable Sacramento to use Grey
hound Taxi as a fictitious business name and to obtain
full benefit of the telephone number and telephone direc
tory advertising under the Greyhound name
Prior to the effective date of the sale Greyhound had
approximately 40 employees who were bargaining unit
members of Service Employees International Union,
Local No 22 (Local 22) Shortly before the effective
date of the sale, Greyhound notified all the bargaining
unit members that they were being terminated by Grey
hound effective at the time of the sale Sacramento, in
turn, invited all bargaining unit employees to apply for
2 Among other things the record includes the following (1) the
Boards original Decision and Order (Cases 20-CA-10868 20-CA-10892
and 20-CA-11154) 234 NLRB 865 (1978 ) (2) the unpublished Order in
Case 20-CA-12909 (3) the Boards Supplemental Decision and Order
274 NLRB 459 (1985) (4) the judgment of the United States Court of
Appeals for the Ninth Circuit enforcing the Board s supplemental deci
sion in part and remanding in part (No 85-7295 entered May 5 1986)
(5) the Boards Second Supplemental Decision and Order 279 NLRB
1080 (1986) and (6) the judgment of the Ninth Circuit enforcing the
Board s Second Supplemental Decision and Order (No 86-7548 entered
April 17 1987)
292 NLRB No 36
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reemployment with it Budmark interviewed the bargain
ing unit employees who applied The stipulation states
there is no evidence that Sacramento refused to inter
view or refused to hire any of the applicants because of
their union affiliations or sympathies
On the first day of business on January 30, 1982 Sac
ramento had 38 bargaining unit classification employees
19 of whom had been employed in Greyhounds comple
merit of bargaining unit employees prior to the change in
ownership On February 8, 1982, Sacramento still had 38
bargaining unit classification employees and 19 of these
were former Greyhound employees At all relevant times
thereafter, the number of 19 former Greyhound bargain
ing unit classification employees remained constant while
Sacramento was gradually building up to a planned com
plement of 47 employees On subsequent dates in early
February 1982, Sacramento had the following number of
bargaining unit classification employees
Feb 9, 1982 39
Feb 10, 1982 39
Feb 11 1982 40
Feb 12, 1982 40
Sacramento reached its full complement of 47 bargaining
unit classification employees on March 26 1982
On February 8, 1982 Local 22 made a written demand
on Sacramento for recognition as the bargaining repre
sentative for the unit classification employees pursuant to
a collective bargaining agreement with Greyhound This
agreement was in existence at the time of the sale of
assets to Sacramento on January 30 Sacramento declined
recognition, in a written response, on February 12 Sac
ramento never recognized Local 22 or any other labor
organization, as the bargaining representative of any of
its employees There has never been any Board or court
decision holding Sacramento to be legally obligated to
recognize any labor organization as the collective bar
gaining representative for any of its employees
At the time of the sale on January 30 1982 Budmark
had general knowledge of the results of prior Board and
court proceedings and pending Board proceedings in
cases ansing out of the termination of former Greyhound
employees Robert J Sans and Harold L Wakefield (the
cases previously cited) Although Budmark was not
privy to the legal documents involved in those cases
Greyhounds president, Mohinder Rye, mentioned to
Budmark from time to time the status of those proceed
ings The stipulation specifically states that Budmark
knew on January 30 1982 that Greyhound had been
found to have committed unfair labor practices under the
National Labor Relations Act regarding the termination
of Sans and Wakefield Further that he was aware there
would be subsequent proceedings before the Board for
the purpose of determining the amount of backpay due
to these former employees The purchase documents
however, for the acquisition of the assets of Greyhound
by Sacramento are silent as to the Board proceedings in
volving Sans and Wakefield Nor do those documents
provide for the assumption by Sacramento of any exist
ing or contingent obligations of Greyhound
It is settled law that a successor employer who ac
quires the business of a predecessor with knowledge of
unfair labor practice charges against the predecessor
may be held responsible for remedying the predecessor s
violations of the Act including backpay liability Perma
Vinyl Corp 164 NLRB 968 (1967) enfd 398 F 2d 544
(5th Cir 1968), approved by the United States Supreme
Court in Pepsi Cola Bottling Co v NLRB 414 U S 168
(1973) Sacramento argues however, that it is not a suc
cessor within the meaning of the Perma Vinyl and Pepsi
Cola doctrines because the employees of Greyhound
whom it hired did not constitute a majority of its own
work force 3 Sacramento contends this is a crucial factor
that distinguishes this situation from the factual pattern in
the above cases and tips the balancing scale against im
position of liability on it as the nonoffending successor
This very same argument was presented to and rejected
by the Board in St Marys Foundry Co, 284 NLRB 221
(1987) There, the administrative law judge found the
successor hired a large number of the offending prede
cessor s employees On finding that the Perma Vinyl suc
cessor requirements were present, the Board stated
[a] finding that the old employees constitute a ma
jority in the purchasers work force is unnecessary
for the imposition of at least monetary remedies 4
Thus it is clear that this facet of Sacramento s opposition
to the General Counsels motion is without merit and
must be denied
Sacramento further contends that the imposition of It
ability on it for backpay is a denial of due process Ac
cording to Sacramento while it has had full opportunity
to present evidence and argument on the issue of wheth
er it is a successor within the Golden State Bottling doc
trine it has not been given an opportunity to present evi
dence on the backpay issues themselves I find no merit
to this contention The sole issue here is whether Sacra
mento is a successor employer that is liable to satisfy the
Board s court enforced backpay order It is not a matter
concerned with establishing the amount of the backpay
to be awarded to the discriminatees in the first instance
Here all the Perma Vinyl procedural requirements as
affirmed in Golden State Bottling have been fully satis
feed Sacramento was given adequate notice of this pro
ceeding and afforded full opportunity at the hearing to
present evidence on the question of whether it was a suc
cessor that was responsible for remedying Greyhound s
backpay liability resulting from the latter s unfair labor
practices It is well established that the Board has au
thority to conduct postdecisional inquiries relating to
issues of derivative liability such as that of successor em
ployers or individuals See NLRB v C C C Associates,
306 F 2d 534 (2d Cir 1962) See also Concrete Mfg Co
262 NLRB 727 (1982) Riley Aeronautics Corp 178
NLRB 495 (1969) Furthermore it is clear that Sacra
mento has a right to appeal to the Board and the courts
any order imposing liability on it as the successor em
3 As noted the stipulation shows that 40 percent of the bargaining unit
classifications were filled by former unit employees of Greyhound
4 St Marys Foundry Co supra at fn 4
GREYHOUND TAXI CO
ployer In these circumstances I find Sacramento s claim
of dental of due process to be without merit and it is
hereby denied
Finally although not abandoning an asserted defense
of laches and statute of limitations, Sacramento acknowl
edges that it is contrary to controlling Board law I
agree and find this asserted opposition to the General
Counsels motion is without merit Merrell M Williams
265 NLRB 506 (1982) Artcraft Upholstering Co, 228
NLRB 462 (1977)
CONCLUSIONS OF LAW
1 Sacramento Taxi Co, Inc purchased the assets of
Respondent Greyhound Taxi Co, Inc on January 30,
1982 with knowledge of the unfair labor practices com
mitted by Respondent Greyhound
2 Sacramento Taxi Co Inc is a successor to Re
spondent Greyhound Taxi Co Inc for purposes of rem
edying Respondent Greyhounds unfair labor practices
As such, Sacramento is jointly and severally liable with
Respondent Greyhound to make discriminatees Robert J
Sans and Harold L Wakefield whole under the terms of
the Board s Orders reported at 274 NLRB 459 (1985)
269
and 279 NLRB 1080 ( 1986), as enforced by the United
States Court of Appeals for the Ninth Circuit
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed5
ORDER
It is ordered that the General Counsels motion for de
termination of liability as successor be granted
IT IS FURTHER ORDERED that Respondent Sacramento
Taxi Co Inc shall be jointly and severally liable with
Respondent Greyhound Taxi Co, Inc to satisfy the
backpay liability of Greyhound to discriminatees Robert
J Sans and Harold L Wakefield as set forth in the
Boards Supplemental Decisions and Orders reported at
274 NLRB 459 (1985) and 279 NLRB 1080 (1986), as en
forced by the United States Court of Appeals for the
Ninth Circuit
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses