Hickey Cab Co.

In the Matter of Louis Dix, AN INDIVIDUAL DOING BUSINESS AS HICKEY CAB COMPANY, EMPLOYER and JAY WESLEY CROL SE, PETITIONER and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- IIOUSEDMEN AND HELPERS OF AMERICA, LOCAL 145, A. F. of L., UNION Case No. 2-RD-85.-Decided January 30, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Jack Davis, hearing officer. 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 A'ct, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The Employer is engaged in the taxicab transportation business at Bridgeport, Connecticut, where, under an exclusive franchise from the New York, New Haven and Hartford Railroad, it conducts all its operations from the latter's terminal station. It operates 12 taxicabs that cost approximately $21,000. They were purchased about 5 months before the hearing on special order from a Chrysler corporation dis- tributor located within the State, but were manufactured outside the State. The Employer usually trades in its taxis after they have been used for a period of about 1 year, or have traveled 50,000 miles, and purchases new vehicles. The Employer annually purchases from the local branch of the Firestone Tire & Rubber Company about $4,000 worth of tires that are manufactured outside the State. Each month it purchases from the Bridgeport branch of the Socony Vacuum Oil Company of California from $700 to $800 worth of gasoline and oil ' At the hearing, the Union moved to dismiss the petition on the grounds that (a) the Employer is not engaged in, and its operations do not affect , commerce within the meaning of the Act; and (b) a contract executed by the Employer and the Union is a bar to this proceeding. The hearing officer referred this motion to the Board. For the reasons stated hereinafter, the motion is denied. 88 NLRB No. 84. 327 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that originates outside the State. During the 9-month period from January 1 to September 30, 1949, the Employer's income from its operations amounted to $67,000. During this period, about 72 percent of all the trips made by the Employer's taxicabs were to, or from, the railroad terminal. During the same period its, taxis made 27 trips to points outside the State.. The Employer anticipated that its income during 1949 would be about $100,000, of which amount approximately $2,700 would represent income received from out-of-State trips. Contrary to the Union's contention, we find that the Employer is, engaged in, or its operations affect, commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case.2 2. The Petitioner, an employee of the Employer, asserts that the Union is no longer the representative of the Employer's employees. designated in the petition. The Union, a labor organization affiliated with the American Feder- ation of Labor, is currently recognized by the Employer as the exclu- sive bargaining representative of the employees designated in the. petition. 3. The Union contends that a contract covering the employees in- volved herein, executed by the Employer and the Union, is a bar to this proceeding. The contract, executed on November 8, 1947, together with a wage supplement entered into on November 18, 1948, was to continue in effect until November 8, 1949, and provided for automatic annual renewals thereafter, in the absence of 30 days' written notice by either party of intention to terminate the agreement. Neither the Employer nor the Union served such notice upon the other. The petition in this case was filed on October 12, 1949. As the contract had already been automatically renewed for an additional yearly term,' the petition would ordinarily be deemed untimely, were it not for certain unlawful union-security provisions contained therein. 3 See Bussard :Taxi and Bus Service, 81 NLRB 1181 ; and cases cited therein . See, also, Taxicabs of Cincinnati, Inc., 82 NLRB 664; Yellow Cab Company, 88 NLRB 282. But cf. Frank McCann Corporation, 87 NLRB 1057, where the Board (Chairman Herzog and Member Reynolds dissenting ) declined to assert jurisdiction over an operator of a private livery service which was not, as is the Employer in the present case, engaged under an exclusive franchise in hauling passengers and baggage to and from the terminal of an interstate railroad. 3 The Petitioner contends that the contract was not automatically renewed on October 8, 1949, as the petition had been signed 2 or 3 days before October 11, 1949, the date it was mailed to the Board's Regional Office. We find no merit in this contention. The record discloses that neither the Employer nor the Union received any notice of the Petitioner's claim that a question of representation had arisen, before October 14, 1949, the day the petition was filed. In these circumstances, the date of the docketing of the petition is controlling in determining whether the petition is barred by renewal of the contract. See Pointer-Willamette Co., 64 NLRB 469. HICKEY CAB COMPANY 329 The contract provides in pertinent part as follows : Article One (a) The Employer will employ, in the classes of work covered by this agreement, members in good standing of the Union. (b) The Employer agrees to contact the Union when a vacancy occurs in the classes of work covered by this agreement so as to give first consideration to Union members in good standing. If the Union is unable to furnish one of its members satisfactory to the Employer within forty-eight (48) hours, the Employer shall be permitted to hire other help. The Employer agrees that such new help, not a member of the Union, shall apply for member- ship in the Union within ten (10 ) days of the date of hiring. The Union agrees to withhold acceptance of such application for thirty ( 30) days, prior to the expiration of which time the Union will be advised as to whether or not employment of the new em- ployees will be continued . If employment is not to be continued, the employee will be dismissed within the above-named period. If, for any reason, the Union will not accept the employee 's appli- cation for membership , the Union will so advise the Employer in due course after receipt of the- application. Article Twenty-one If any provision of this agreement is in violation of any Fed- eral or Connecticut State Law, such provision shall be inoperative to the extent only that such provision may be at variance therewith. The preferential hiring clause of Article One exceeds the limited form of union-security agreement permitted, tinder certain conditions, by Section 8 (a) (3) of the Act, and is thus illegal without regard to whether or not its execution was authorized by an election conducted under Section 9 (e).4 We have held in other cases, involving sever- ability clauses similar to that contained in Article Twenty-one, that the reasonable construction to be given such a clause is that the union- security provisions remains effective unless and until the proper tri- bunal determines that it is invalid.' The very existence in the contract of the union-security provision therefore acts as a restraint upon employees desiring to refrain from union activities within the meaning ' Continental Bus System, Inc., 84 NLRB 670, and cases cited therein ; American Export Lines, Inc., 81 NLRB 1370. 5 Hazel-Atlas Glass Company, et al., 85 NLRB 1305; Evans Milling Company, 85 NLRB 391 ; Unique Art Manufacturing Company, 83 NLRB 1250. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 7 of the Act.6 Accordingly, we find that the contract is not a bar to a current determination of representatives.' We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All taxicab drivers employed by the Employer at Bridgeport, Con- necticut, excluding all other employees and supervisors as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 ofd\Tational Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including employees who did not work during said payroll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented for purposes of collective bar- gaining, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 145, A. F. of L. U C. Roger & Son s Hinge Manufacturing Company, 80 NLRB 163. 1 See cases cited in footnote 5, supra.