Greyhound Taxi Co, Inc , Sacramento Taxi, Inc

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