GOLDEN STATE BOTTLING COMPANY v. NLRB

Citation467 F.2d 164
Decision Date21 August 1972
Docket Number71-1324.,No. 71-1290,71-1290
PartiesGOLDEN STATE BOTTLING COMPANY, Inc., formerly d/b/a Pepsi-Cola Bottling Company of Sacramento, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. ALL AMERICAN BEVERAGES, INC., d/b/a Pepsi-Cola Bottling Company of Sacramento, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Morton B. Jackson, (argued), H. Walter Croskey, of Jackson, Goodstein, Kumler, Copes, Croskey & Smith, Los Angeles, Cal., Archie G. Parker, (argued), of Rowland, Clowdus & Parker, Sacramento, Cal., for petitioners.

William Du Ross, III, Atty., (argued), Roy O. Hoffman, Director, NLRB, Region 20, San Francisco, Cal., Peter G. Nash, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Janet Skaare Morris, Attys., NLRB, Washington, D.C., for respondent.

Before CHAMBERS, BROWNING and KILKENNY, Circuit Judges.

PER CURIAM:

Golden State owned and operated the Pepsi-Cola Bottling Company of Sacramento. In 1964 the Board found that in the preceding year Golden State had violated sections 8(a)(3) and (1) of the Act by discriminatorily discharging one of its employees, Kenneth L. Baker, a driver-salesman. The Board ordered Golden State to offer Baker reinstatement and make him whole for any loss of earnings from the date of discharge to the date of reinstatement. We upheld the Board's order. NLRB v. Golden State Bottling Co., 353 F.2d 667 (9th Cir. 1965). In 1968, with the controversy not yet resolved by compliance with the order, Golden State sold Pepsi-Cola Bottling to All American. In 1969 the Board issued a supplemental order imposing liability upon both Golden State and All American for back pay found to be due Baker for periods before and after the 1968 sale. Both companies challenge the order; the Board seeks enforcement.

1. All American argues that it is not liable for back pay accruing before or after the acquisition. We disagree. Pepsi of Sacramento was a self-contained, going operation. No change was made in either managerial or supervisory personnel as a result of the sale. All but two or three of the approximately 50 employees of Pepsi were retained under All American's ownership. All of the 12 distributors who handled the products under contract continued with All American. The product remained the same, the customers remained the same, and there was no cessation or change in the method of operation of the plant. The chief executive of the Pepsi operation, Eugene B. Schilling, held the same post before and after the sale. This and other evidence offered substantial support for the Board's finding that All American purchased Pepsi with knowledge of the unfair labor practice litigation. On this record it was proper for the Board to hold All American responsible for remedying violations of the Act committed by its predecessor. United Automobile, Aerospace, & Agricultural Implement Workers of America, U.A. W. v. NLRB, 442 F.2d 1180, 1183 (9th Cir. 1971); Perma Vinyl Corp., 164 NLRB 968 (1967), enforced sub nom. United States Pipe & Foundry v. NLRB, 398 F.2d 544 (5th Cir. 1968). See generally, Du Ross, Protecting Employee Remedial Rights under the Perma Vinyl Doctrine, 39 Geo.Wash.L.Rev. 1063 (1971).

2. We do not consider whether the Board properly held Golden State liable for post-acquisition lost wages. Golden State agreed to indemnify All American for any liability imposed upon All American for back pay, and we have upheld the Board's imposition of such liability upon All American for the post-acquisition period. Accordingly, Golden State concedes that it is liable for such wages by virtue of its agreement, whether or not it would also be liable absent that agreement.

3. Pepsi converted most of its driver positions to distributorships in October 1964. Petitioners argue that this change ended their liability to Baker because distributors are "independent contractors" excluded from the coverage of the Act by 29 U.S.C. § 152(3). However, it is undisputed that when Baker was discriminatorily discharged he was an ordinary employee. The Act's remedies are not thwarted by the fact that an employee who is within the Act's protections when the discrimination occurs would...

To continue reading

Request your trial
6 cases
  • Golden State Bottling Company, Inc v. National Labor Relations Board 8212 702
    • United States
    • United States Supreme Court
    • 5 Diciembre 1973
    ...... Decided Dec. 5, 1973. .           Syllabus .           Petitioner All American Beverages, Inc. (All American), purchased the soft drink bottling and distribution business of petitioner Golden State Bottling Co. (Golden State) after the National Labor Relations Board (NLRB) had ordered Golden State, 'its officers, agents, successors, and assigns' to reinstate with backpay a driver-salesman whose discharge by Golden State was found to have been an unfair labor practice. In a subsequent back-pay specification proceeding to which both firms were parties, upon finding ......
  • Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO v. N.L.R.B.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 4 Enero 1977
    ...The reasoning in Bell Aircraft was approved, in a somewhat different context, by the Ninth Circuit in Golden State Bottling Co. v. NLRB, 467 F.2d 164, 166 (9th Cir. 1972): 15 The Act's remedies are not thwarted by the fact that an employee who is within the Act's protections when the discri......
  • N.L.R.B. v. Fabsteel Co. of Louisiana
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 10 Enero 1979
    ...and Order is reported at 220 N.L.R.B. No. 47 (1975).5 Mosher Steel Company, 220 N.L.R.B. No. 47 (1975).6 Golden State Bottling Co. v. NLRB, 467 F.2d 164 (9th Cir. 1972).7 The Court of Appeals stated that "(t)he first question we must face is whether Howard Johnson is a successor employer," ......
  • Town of Burlington v. Labor Relations Com'n
    • United States
    • Appeals Court of Massachusetts
    • 1 Marzo 1984
    ...similar language. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 188, 94 S.Ct. 414, 427, 38 L.Ed.2d 388 (1973), quoting from 467 F.2d 164, 166 (9th Cir.1972). See also Oil, Chemical & Atomic Workers Intl. Union v. NLRB, 547 F.2d 575, 589 (D.C.Cir.1977); contrast NLRB v. Ford Motor Co., 68......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT