Taxicabs of Cincinnati, Inc.

In the Matter of TAXICABS OF CINCINNATI, INC. (FERGUSON DIVISION), EMPLOYER and LOCAL 647, INTERNATIONAL UNION, UNITED AUTO- MOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER In the Matter of TAXICABS OF CINCINNATI, INC. (YELLOW AND FERGU- SON DIVISIONS), EMPLOYER and BROTHERHOOD OF TAXICAB DRIVERS OF AMERICA, PETITIONER Cases Nos. 9-RC-322 and 9-RC-355, respectively. Decided April 17 1949 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed, a consolidated hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel.* Upon the entire record in the case, the National Labor Relations Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Employer is an Ohio corporation engaged in the transportation of passengers in taxicabs in and around the city of Cincinnati, Ohio. Three divisions make up the consolidated Employer, namely : Yellow, *Houston , Reynolds , and Murdock. 82 N. L. R. B., No. 72. 664 TAXICABS OF CINCINNATI, INC. 665 Ferguson, and Parkway. The Parkway Division is geographically separated from the other two divisions and is under separate super- vision. Its employees, who are currently represented by the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, are not involved in this proceeding. Local 647, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, hereinafter called the UAW, contends that the taxicab drivers of the Ferguson Division constitute an appropriate unit. Brotherhood of Taxicab Drivers of America, hereinafter called the Brotherhood, and the Employer claim that the drivers of both the Ferguson and the Yellow Cab Divisions constitute a single appropriate unit. The Ferguson Division, composed of 40 drivers who operate 20 cabs, and the Yellow Division, made up of 350 drivers who operate 180 cabs, are each housed in the same garage at 431 West Fifth Street, but have offices located on separate floors. Each division has a separate telephone system, and the drivers of each section use separate locker rooms. Each group of drivers is also separately supervised and there is no interchange of personnel between the two. The accounting for both branches, however, is done in one office. The money collected by each division is turned over to one individual. Furthermore, the cabs of both groups are serviced and repaired at the same garage. All Ferguson employees are Negroes, who, as a matter of practice, confine their operations almost exclusively to the colored area of the city, although their area of operation is restricted by the Employer only insofar as they are not permitted within the municipal railway terminal." The drivers of both divisions have been subject to the same over-all labor policy. The same minimum wage guarantee and rate of com- mission are accorded to the drivers of the two branches. They work the same hours and are governed by the same Employer rules with respect to the operation of cabs. Seniority, however, is division-wide. The vacation pay allowance for the Ferguson group is slightly higher than that for the Yellow Division drivers. The bargaining history shows that the Brotherhood has represented the Yellow drivers since 1938. In 1941, the Ferguson Division moved into the building at 431 West Fifth Street, which already housed the Yellow drivers, and was consolidated along with the Parkway Division into the present Employer unit. Both the Employer and the Brother- hood contend that the language of the most recent contract and of former contracts has included the Ferguson drivers in addition to the Yellow drivers. The UAW claims that the contract was never in- i By virtue of an agreement between the Employer and the terminal. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tended to cover the Ferguson drivers and that the latter were never actually represented by the Brotherhood. The most recent contract 2 appears by its terms to have covered the drivers of both divisions as its recognition clause provided as follows: The Company recognizes the Union as the exclusive bargaining agent for the drivers of the taxicabs of the Company operating out of its principal garage at 431 West Fifth Street, or to where- ever said garage may be moved, said drivers being hereinafter referred to as "Employees." [Emphasis supplied.] That contract also included a union security clause which provided that all new employees who were non-members of the Brotherhood should apply for membership at the end of a 30-day probational period. The record reveals, however, that in actual practice under the contract, all the Yellow drivers who have passed the probational period are members of the Brotherhood, whereas no Ferguson employ- ees, although they work subject to the wage and hour, and operating regulations as provided for in the contract, have ever been admitted to membership in, or paid dues to, the Brotherhood. No Ferguson driver ever attended a Brotherhood meeting. In fact one Ferguson driver testified that he applied for membership in the Brotherhood about 2 years ago and was told by its representative that the Brother- hood did not admit the Ferguson drivers to membership. Further, such testimony reflects that other Ferguson drivers refrained from applying for membership since they did not believe themselves eligible therefor. A representative of the Brotherhood testified that the latter never denied membership to the Ferguson drivers, but did not actually solicit membership until about 4 months ago. He stated that the Fer- guson drivers were requested to appear at a union meeting, but failed to attend. The Employer's president testified that within the past 2 years, the Brotherhood had represented individual Ferguson drivers in the presentation of grievances. He could recall two specific instances, and stated that the aggrieved Ferguson driver was present at each grievance meeting. Several Ferguson drivers, on the other hand, testified that they knew of no such instances and that they did not con- sider the Brotherhood as their bargaining agent. The record further reveals that a copy of the contract between the Brotherhood and the Employer together with the by-laws of the Union was furnished to 2 The most recent contract between the Employer and the Brotherhood of Taxicab Drivers of America was executed on January 20, 1947, to continue through January 19, 1948, and thereafter for 1-year periods unless ninety (90) days' written notice was given by either party prior to the expiration of any 1-year period . The parties concede that the agreement did not renew itself January 20, 1949, in view of a proper notice to terminate being sent to the Employer by the Brotherhood Neither of the contracting parties main- tains that this contract is a bar to the petition filed by the UAW. TAXICABS OF CINCINNATI, INC. 667 each Yellow driver, but copies were never given to the Ferguson drivers. The Ferguson drivers testified that they were never advised that the contract applied to them. These circumstances do not, in our opinion, conclusively establish that bargaining has been conducted on the basis of a single-two-di- vision unit under the contracts between the Employer and the Brother- hood. Therefore, as the Yellow and Ferguson Divisions function as separated operational units; have separate immediate supervision, separate physical facilities, and serve different parts of the city; and in view of the fact that the Ferguson drivers have never been admitted to active membership in the Brotherhood in spite of a union security provision in the most recent contract requiring application for mem- bership at the end of a 30-day probational period, we are of the opinion that a separate unit composed of only the Ferguson Division drivers may be appropriate. On the other hand, we believe, in view of the facts that all employees of both the Yellow and Ferguson Divisions are per- forming the same type of work; are located in the same building; have the same employment conditions of hours and wages, and work- ing regulations; and are subject to the same over-all labor policy, that the two divisions may appropriately be combined*to form a single bargaining unit .3 However, we shall make no final unit determination at this time, but shall be guided in part by the desires of these employees as ex- pressed in the elections hereinafter directed. We shall direct that separate elections by secret ballot be held among the employees at the Employer's 431 West Fifth Street, Cincinnati, Ohio, garage within the following voting groups, excluding all super- visors as defined by the Act as amended : (1) All taxicab drivers of the Ferguson Division. (2) All taxicab drivers of the Yellow Cab Division. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, separate elec- tions by secret ballot shall be conducted as early as possible, but not later than 60 days from the date of this Direction, under the di- rection and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the voting groups described in paragraph numbered 4, above, who were employed during the pay-roll 8 Matter of Scanlon-Morris Division of the Ohio Chemical & Mfg. Co., 71 N. L. R. B. 903. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period immediately preceding the date of this Direction of Elections, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but ex- cluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not en- titled to reinstatement, to determine : (1) Whether the employees in voting group (1) desire to be rep- resented, for the purposes of collective bargaining, by Local 647, In- ternational Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, or by Brotherhood of Taxicab Drivers of America, or by neither; (2) Whether or not the employees in voting group (2) desire to be represented, for the purposes of collective bargaining, by Brother- hood of Taxicab Drivers of America.