Taxi Transit Co.

TAXI TRANSIT COMPANY 45 ROSE ACKERMAN, FRANK ACKERMAN, CHARLOTTE ACKERMAN, MORRIS ACKERMAN, IRVING ROSENBLATr, JACK ROSENBLATT, MICHAEL ROSEN- BLATT, AND ABRAHAM ROSENBLATT, CO-PARTNERS DOING BUSINESS As TAXI TRANSIT COMPANY and IRVING KRAVITZ. Case No. $-CA- 965. January 7,1953 Decision and Order On May 20, 1952, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case. The Board recently reconsidered its jurisdictional policy with respect to taxicab companies in Cambridge Taxi Company,2 and there held that: * * * it will not effectuate the policies of the Act to assert jurisdiction over taxicab companies, except in those instances where both of the following factors are present: (1) The em- ployer is either the sole taxicab company operating in the area served by its cabs, which service instrumentalities of commerce, or is the holder of a contract, license or franchise from some instrumentality of commerce, granting to the employer the privi- lege or right to serve, either exclusively or concurrently with others, a depot or terminal of such instrumentality; and (2) the employer derives a substantial portion of its total revenue directly from carrying passengers to and from terminals or depots of these instrumentalities of commerce. Because the operation of the Respondents' taxicab company fails to satisfy the standards set forth above, the Board will not assert juris- diction herein. We shall therefore dismiss the complaint. Order IT Is HEREBY ORDERED that the complaint issued herein against the Respondents, Rose Ackerman, Frank Ackerman, Charlotte Ackerman, n Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Styles, and Peterson]. i 1Q1 NLRB 1328. 102 NLRB No. 5. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morris Ackerman, Irving Rosenblatt, Jack Rosenblatt, Michael Rosen- blatt, and Abraham Rosenblatt, co-partners doing business as Taxi Transit Company, be, and it hereby is, dismissed. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed on October 7, 1949, by Irving Kravitz, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued his complaint dated June 13, 1951, against Rose Acker- man, Frank Ackerman, Charlotte Ackerman, Morris Ackerman, Irving Rosenblatt, Jack Rosenblatt, Michael Rosenblatt, and Abraham Rosenblatt, co-partners doing business as Taxi Transit Company, herein called the Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3), and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge and its amendments, and the notice of hearing, were duly served upon the parties. With respect to unfair labor practices, the complaint alleged in substance that the Respondent had discriminated against Irving Kravitz, Isador Raskin, Ben Mallach, Irving Schorr, and Max Zuckerman by refusing to reinstate them be- ginning April 8, 1949, because of their activities on behalf of the Taxi Workers Organizing Committee, Local 35, United Construction Workers, affiliated with the United Mine Workers of America, herein called the Union, and engaged in certain independent acts of interference , restraint, and coercion beginning on or about April 7, 1949. Pursuant to notice a hearing was held on November 19, and on various days thereafter through December 5, 1951, at New York City, before the undersigned, the Trial Examiner designated by the Chief Trial Examiner. The parties were represented by counsel. ]Pull opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues, was afforded the parties. At the opening of the hearing, the Respondent moved under the proviso to Section 10 (b) of the Act to dismiss the charge as it relates to Raskin, Mallach, Schorr, and Zuckerman. As noted above, the original charge was filed by Irving Kravitz on Friday, October 7, 1949. In this charge Kravitz asserted discrimina- tion against him only beginning April 8, 1949. Thereafter, on January 23, 1950, Kravitz filed an amended charge adding allegation of discrimination also be- ginning April 8, 1949, against Raskin, Mallach, Schorr, and Zuckerman, the subjects of the motion to dismiss. The Respondent stated that it was not ad- dressing its motion to Kravitz. As to the others, it pointed out that the allega- tions relating to them were made for the first time on January 23, 1950, in the amended charge, more than 6 months after the event of the alleged discrimina- tion on April 8, 1949, and urged that the amended charge introduced new matter and should therefore be governed by the proviso to Section 10 (b) in the same manner as an original charge. The Respondent contended also that Kravitz was not the agent or the representative of the persons named in the amended charge and that as he did not have any authority, his act in filing the amendment had no legal effect. The motion to dismiss was denied.' In considering the evi- dence adduced, however, matters arising prior to April 7, 1949, will be treated only as they may shed light upon what occurred thereafter. I See Southern Furniture Manufacturing Co. v. N . L. R. B., 194 F. 2d 59 ( C. A. 5) ; Cathey Lumber Co., 86 NLRB 15.7; and Stokely Foods, Inc. v N. L. R. B., 193 F. 2d 736 (C. A. 5). TAXI TRANSIT COMPANY 47 Although afforded an opportunity , the parties failed to argue orally upon the record, to file briefs and/or proposed findings and conclusions . At the close of the hearing, decision was reserved on a motion by the Respondent to dismiss the complaint for insufficiency of proof. That motion is now disposed of in ac- cordance with the findings of fact and conclusions of law made below. Upon the entire record in the case and from his observation of the witnesses the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a partnership doing business as Taxi Transit Company, maintains its principal office and place of business in New York City where it is engaged in the operation of a fleet of taxicabs . In 1949, the Respondent operated 86 taxicabs and employed about 250 persons. In 1951 the Respondent operated 100 taxicabs. During the 12-month period ending November 30, 1950, the Re- spondent purchased in New York City DeSoto taxicabs at a cost of about $178,500; and during the 10-month period ending September 30, 1951, it pur- chased DeSoto taxicabs at a cost of about $65,000. These purchases were all made from the James F. Waters organization, exclusive dealers of the DeSoto taxicab. The chassis and motors of the taxicabs are purchased from the DeSoto division of the Chrysler Corporation at Detroit , Michigan, and are fabricated into a taxicab by Waters in the immediate vicinity . The estimated life of a taxicab in New York City is about 2 years. The value of the Respondent's annual consumption of gasoline, which gasoline originates from the City Service Company, is valued in excess of $100,000 and its annual consumption of oil and grease is valued in excess of $4,000. The Respondent rents tires from the General Tire Company at an annual cost of around $12,000. The Respondent purchases parts and supplies at an annual rate of about $25 ,000, more than 90 percent of which is manufactured outside the State of New York . Insurance in excess of minimum local requirements at the rate of $17 .50 a month for each taxicab is placed with insurance carriers located outside the State of New York. The Respondent's annual revenue from the transportation of passengers is in excess of $1,000,000. More than 6 percent of Respondent's revenue was derived from the transportation of passengers to and from New York terminals of in- terstate railroads, bus lines, ferries, air lines, steamship lines, and other com- mon carriers engaged in the transportation of passengers between such terminals located within the State of New York and States of the United States other than the State of New York and foreign countries. It is found that the Respondent engaged in commerce within the meaning of the Act.' II. THE ORGANIZATION INVOLVED Taxi Workers Organizing Committee, Local 35, United Construction Workers, affiliated with the United Mine Workers of America, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES In the past years there have been several attempts at organizing the drivers in the taxicab industry in New York City and establishing collective bargaining with the fleet owners. The request for bargaining which is connected with this proceeding was made sometime before March 19, 1949, when the Respondent refused to bargain unless and until the Union was certified. The Respondent did not specify whether it was insisting upon a certification by this Board or 3 Skyview Transportation Company, 92 NLRB 1664. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the New York State Labor Relations Board, herein referred to as the State Board. No solution was found to the dispute and the Union called a city-wide strike beginning April 1. The usual organizational drive was had preceding the strike. The strike was unsuccessful and after about a week of picketing the drivers were back at work . The question that arises here is whether the Respondent refused employment to five of its steady drivers, Irving Kravitz, Isador Raskin, Ben Ballach, Irving Schorr, and Max Zuckerman beginning April 8, because of their membership in the Union, participation in the organiza- tional drive and/or strike activity , as alleged by the General Counsel and denied by the Respondent. The Respondent's position is that it did not discharge or refuse employment to any of these drivers at the close of the strike , that other steady drivers did not return immediately after the strike (some for more than a month) and that they were thereafter given taxicabs, that it had no objection to the men here involved and had been willing to take them back like the other strikers within a period of about 2 weeks or until about April 22. The Respondent's general manager, Samuel T. Goodman, testified at the hearing that the five drivers involved were not discharged , that the jobs had been open for these men and that it was "only a question of coming back and starting to work." At no time, however, did the Respondent notify the men that their jobs were open. Within a few days after the close of the strike each of these five drivers filed charges with the State Board alleging a discriminatory discharge. By letters dated April 12 and 13 the State Board informed the Respondent that these five drivers' were alleging that they had been discriminatorily discharged and that a conference was scheduled for April 19 to discuss the matter. The Respondent thereafter merely turned over these letters to its attorney . By letter addressed to the Respondent 's attorney this conference was thereafter resched- uled to April 26. Goodman testified in the instant hearing that notification of the men that employment was available would have probably solved the problem and explained, "not having enough experience with Labor Board matters, the chances are if I knew it was going to waste time , as it has been doing, ... I probably would have contacted them and told them to go ahead." ` The General Counsel's position is that the five employees involved were dis- criminatorily denied employment after the strike. An examination of certain events during the strike must first be made. Al- though the degree of their activity varied , each of the five men involved was a member of the Union. The strike at the Respondent's garage was conducted under the leadership of Zuckerman,' who acted as day-shift picket captain, and Kravitz, who acted as night-shift picket captain . Both men were on the Union's steering committee at the Respondent 's garage. In conducting the strike Zuck- erman had the aid of day-shift drivers Mallach and Schorr who acted as as- sistant picket captains ; Kravitz had the aid of night-shift driver Raskin. In addition to picketing themselves , the picket captains or their assistants stood at or near the garage holding a pad they had with them of the picket duty performed or to be performed by the other drivers. The Respondent denies knowledge of union activities on the part of any of the individuals involved. 'These letters named two additional men, one of whom worked for the Respondent next after the strike on April 10 and the other on April 21. + The Respondent , prior to Goodman 's management and while organized as another legal entity but essentially as the same employing enterprise , and on a subsequent occasion while organized in its present form , was a respondent in proceedings involving discrimina- tory discharges. See Taxi Transit Corp . et al., 8 N. Y. S. L. R. B. 136, and Frank Ackerman at al., 9 N. Y. S. L. R. B. 189. 6 Zuckerman died sometime prior to the hearing. TAXI TRANSIT COMPANY 49 Mallach and Kravitz each testified to incidents during the course of the strike and preceding April 7, 1949, when, while they were picketing, Goodman in sub- stance stated to each that he would spend $50 ,000 to blacklist him from the industry. Schorr gave testimony of an incident, also preceding April 7, in- volving Goodman in which Goodman directed essentially the same statement to him and Zuckerman while they were picketing together. Raskin testified that on April 7 while he was picketing Goodman addressed the same remark to him. Goodman denied making any of these statements.' Turning next to events immediately after the strike, the General Counsel's witnesses testified, contrary to the Respondent's version that it did not discharge or refuse to employ any of the striking drivers after the strike, that they applied for and were refused employment. During the evening of April 7, when the strike was disintegrating, Zuckerman announced to a group of the strikers that they should appear at the garage the next day ready for work. The garage had been picketed during the strike beginning in the morning of April 1 and it does not appear that there was any further picketing beginning in the morning of April 8 and thereafter. Although the strike was not officially called off until the afternoon of April 8, on the morning shift of that day about 70 percent of the Respondent's fleet operated as against about 15 percent the night before, April 7, and as compared with the day of April 6 when only a few of the taxicabs operated. On the night shift of April 8 the entire fleet was again in operation. Circumstances surrounding specific efforts of the five drivers here involved to obtain employment will now be considered. Dealing first with the day-shift drivers, Zuckerman, Schorr, and Mallach-according to Schorr, on the morning of April 8, when he arrived at the garage at his usual hour for reporting for work at about 7:30, he saw Zuckerman and then appeared at the dispatch window and was informed by the day dispatcher, Charles Levens, that there was no taxicab for him. Schorr then left the dispatch window and reappeared with Zuckerman. Levens informed them both that there were no cars for them when Frank Ackerman, one of the partners in the enterprise, appeared and told them that they were discharged and that they should leave the premises. They left the premises and returned that afternoon and inquired of Irving Sultan, night dispatcher,? whether they could get their jobs back and Sultan replied in the negative. According to Schorr's further testimony he applied for work the next morning, April 9, and on several days thereafter to no avail. Frank Ackerman's testimony was that he did not think that he was present at the garage on April 8, and that if he had been there on that day, the earliest he could have arrived, in accordance with his practice of long standing, would not be before 11 in the morning. Levens testified that neither Zuckerman nor Schorr appeared on the morning of April 8 , and that he did not then see Frank Ackerman . Although Sultan testified that he was not instructed not to employ any of the drivers employed prior to the strike, Sultan was not questioned concerning Schorr's testimony that Sultan told him and Zuckerman, on the afternoon of April 8, that they could not have their jobs. The Respondent's contention is that Schorr and Zuckerman never intended to return to work, that they did intend to seek and engage in a business venture 6 The undersigned finds it unnecessary to pass upon the Respondent's responsibility, if any, for the conduct of Jack Ackerman in the presence of Goodman at the Respondent's garage during the course of the strike and preceding April 7. Jack Ackerman is the son of one and a nephew of another of the Respondent partners and is himself a partner in and general manager of another taxicab operation , Key Taxi , located in the same general area , in which his father and uncle are also partners. T The dispatchers have authority to hire and discharge and are supervisors within the meaning of the Act. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their own , while they received unemployment compensation , and that by reason of their experience with labor problems and claims for back pay they were seeking an award for back pay as well. In support of the Respondent's theory that Schorr and Zuckerman were about to engage in an enterprise of their own , Levens testified to a conversation with Zuckerman on April 4 in the presence of Schorr when , like he had on many prior occasions , Zuckerman indicated a desire to "get off the hack," and stated that he and Schorr were interested in engaging in a taxi business in New Jersey. Levens testified further that 2 days later, on April 6, Zuckerman reported also in the presence of Schorr that the "deal " was "in the bag," and that they would not need a job any longer. Levens thereupon invited them to return to work for the Respondent if the need should arise. According to the General Counsel's witnesses, Schorr and Zuckerman picketed the garage on April 6 later in the day after Levens placed the conversation with them. As already noted, testimony was adduced that Zuckerman was a par- ticipant in the strike of the night of April 7 , when he advised the drivers to return to work. The General Counsel 's witnesses also testified that early during that day , April 7, Schorr was a participant in a demonstration at city hall and that Zuckerman, who was also present, was then on a committee to see the mayor of the City of New York in an unsuccessful endeavor to resolve the labor dispute. Schorr testified that Zuckerman , like many drivers, had expressed a desire "to get off the hack" from time to time and denied being present at such conversations as were described by Levens . Shortly after the strike ended Zuckerman and Schorr did make specific inquiries about business ventures in the taxicab industry. Schorr did file for and receive unemployment compensation. It does not appear that the Respondent, although notified of this and the claims by other men, informed the unemployment compensation people that Schorr or any of the other drivers had voluntarily quit. Mallach, the last day-shift driver involved , gave essentially this version of what occurred as relates to him. He appeared at the dispatch booth at about 7 or 8 o'clock in the morning of April 8, while Levens and Frank Ackerman were present. Mallach asked for his car and Frank Ackerman told him that he was discharged and directed him to leave the garage . Mallach applied for work at the Respondent's garage for several days thereafter but he was unsuccessful. On April 13 , when Mallach was waiting for his refund check ( an excess having in accordance with the Respondent's practice been deducted in advance from his gross receipts for such matters as social-security tax and hospitalization insurance ), Goodman directed him to wait outside the premises until the check was prepared. When Mallach appeared at the garage during the afternoon of April 16 to obtain some personal things he had left in his taxicab before the strike, Goodman told him that if he wanted to picket the garage he would have to have a picket sign and that if Mallach molested any of Goodman 's drivers Goodman would call the police and have Mallach removed from the premises. Levens testified that he did not see Mallach after the strike and that he did not see Frank Ackerman at that time. Frank Ackerman 's testimony, already given and relevant here, is to the effect that he was not present at that time. Goodman testified that he never told any of the men to get out of the garage but Goodman was not questioned concerning the remainder of Mallach 's testimony. The remaining two drivers involved , Kravitz and Raskin , were regular night- shift men. Kravitz' version is that on Friday , April 8, he appeared for work at the dispatch window at his usual time between 4: 15 and 4 : 30 p. m. and Sultan TAXI TRANSIT COMPANY 51 Informed him that he had no car. Goodman thereupon appeared and asked Kravitz what he wanted and Kravitz replied that he wanted his taxicab. Goodman inquired of Sultan whether he had a car for Kravitz and Sultan re- sponded that he did not have a car for him. Kravitz returned to the garage the next day, April 9, at about the same time and received the same response from Sultan. Kravitz, who lived about a block from the garage, testified further that he returned to the garage thereafter for a period of about 3 months on his usual days of work. Sometime during the course of these appearances at the garage, Sultan informed Kravitz that he was not going to work there anymore and Kravitz explained that some of the other drivers who had not been employed immediately after the strike had been taken back and he thought that he might be taken back also. On another occasion, Goodman directed him to leave the garage premises. The Respondent's version as to what occurred on April 8, according to Sultan, is that Kravitz appeared at the dispatch booth and asked for his car about 4: 45 p. in. after Sultan had, in accordance with the Respondent's deadline for assigning and dispatching its cabs, made the assignments at the usual hour, between 4:30 and 4:40p. m. Sultan informed Kravitz that he was late, that his taxicab was out, and that he had held another car for him, but assigned it thereafter to another man. Sultan testified further that Kravitz walked away and returned with Goodman and that Goodman asked if there was a car for Kravitz. Sultan thereupon explained that he did not then have a car for Kravitz and suggested that Kravitz return the next day and that Kravitz thereupon de- clared that he had already filed for unemployment compensation and he could receive more money that way. Sultan testified further that Kravitz thereupon left the garage, and that he did not see Kravitz thereafter. Goodman testified that he saw Kravitz during dispatch time around 4: 45 p. in. when Kravitz asked him for a car and he and Kravitz went to see Sultan. He asked Sultan if there was a car available for Kravitz stating that Kravitz was a steady driver and was supposed to have a car, and that Sultan replied that all the cars had already either been dispatched or assigned. Goodman testified further that he did not recall seeing Kravitz thereafter and specifically denied ordering him to leave the garage premises. According to Kravitz, he filed an unemployment insurance claim on Monday, April 11, the same day he filed a charge with the State Board alleging a dis- criminatory discharge, and received unemployment compensation for the usual 6-month period while he obtained certain incidental employment such as helping at a tavern. Part of this employment was on Sundays as a taxi driver on the night shift at which he had worked for the past 22 years (except for some few instances when he had been assigned a taxicab on a 24-hour basis ), he having declined day-shift employment to which he was referred by the unemployment compensation people. Kravitz testified further that he had never in his life before drawn unemployment compensation. In addition to the testimony set forth above, certain of the Respondent's records are pertinent to a consideration of the issues. The Respondent's daily operating records beginning Friday, March 25, night shift, and ending Saturday, April 9, 1949, day shift, are in evidence. These records show, among other things, a designation of each of the 86 taxicabs, the identity of the driver dispatched with a particular cab, the time of dispatch and the time of return for each taxicab, and its driver for each shift. These are the only records of this type in evidence. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's records show that when Kravitz spoke to Sultan during the afternoon of April 8, Kravitz' regular cab had already been assigned earlier and it was not reported back into the garage until about midnight that night. This cab was not, however, dispatched on the regular day shift of April 8, but was dispatched for the first time by Sultan at about 11 o'clock that morning. The records show also that Sultan in selecting Kravitz' cab from among 23 cabs in the garage at that time which had not been assigned on the regular day shift, assigned it to the first extra driver who appeared that morning and that it was the second car which Sultan dispatched that day as part of his duty. As has been noted, according to Sultan, Kravitz appeared at about 4: 45 p. m. after he had assigned or dispatched the cab he had held for Kravitz in accord- ance with the dispatch and assignment deadline practice referred to above, which Sultan testified he pursued that day in making assignments and dispatching between 4:30 and 4:40 p. m. It is difficult to determine what the Respondent's practice was as to the deadline for assigning and dispatching on the night shift. According to Sultan, the day-shift drivers generally returned to the garage between 3: 30 p. m. and 5 p. in. and at 4: 30 p. m. he makes assignments of the cabs not then dispatched first to the regular drivers after calling their names to determine their presence, and then to the extra drivers in the order in which they had applied that night. Under this practice, Sultan explained, the extra drivers are not kept at the garage beyond about 4: 40 p. in. but are dismissed from the garage then. Sultan explained further that even if the regular driver were to appear after the assignment to the extra driver is made, but before his car actually returns to the garage or is actually dispatched, he would not then transfer the car to the regular driver. Exceptions to this pro- cedure are made, however, when a regular driver telephoned the office in advance explaining that he would be late and also when it was known from prior experi- ence that the regular man usually comes in late and that he is reliable. The time limit beyond which a cab would not be held even under these circumstances Sultan explained is 5 p. in. Goodman described the deadline as 5 p. m. and that under exceptional circumstances cars are kept for the regular driver until then. Goodman explained further that the Respondent has tried as much as possible to keep this deadline of 5 p. in. so that the men would not be coming in at 6:15 p. m. or later. The Respondent explained that under this system of dismissing the unassigned extras from the garage beginning about 4: 40 p. in., it seldom, if ever, occurred that a regular man who came within one of the excep- tions would disappoint the Respondent and cause a car to remain in the garage for the night and result in a loss of revenue. Comparing the Respondent's testimony with its records, the Respondent's experience for the week preceding the strike, according to its records, was that there were 174 instances of steady men and 70 instances of extra men who were dispatched after 4: 40 p. in. Of these there were 92 instances of steady men and 36 instances of extra men who were dispatched after 5 p. in. These records show, in addition, that during the same period that there were 15 instances of extra drivers dispatched after 4: 40 p. in. when the cabs were present in the garage before 4: 30 p. in., and that in more than half of these instances the extras were dispatched after 5 p. in. The Respondent suggests that the explanation for the time lapse between the return and the dispatch of a cab is that the cabs are frequently in the mechanics shop for repairs. Sultan testified that it was customary for minor repairs and adjustments to be made between the end of the day shift and the beginning of the night shift and that about 20 cars go into the shop each night TAXI TRANSIT COMPANY 53 for minor work. Sultan admitted that he had no recollection as to which particular cars went into the shop on certain occasions, that he could not determine this information by examining the daily operating records, but that based upon his experience he concluded that certain of the cars were probably in the shop on certain occasions and that this was his "surmise." It should be noted too, that unless the day man reported difficulties with his cab when he returned to the garage the Respondent or the night man would not have any way of knowing what adjustments or repairs were needed until after the night man was dispatched and actually tried to use the cab. Sultan also testified that when Kravitz appeared at 4: 45 p. in. there were cars in the garage which, in accordance with the usual deadline practice he had described and which he testified was used on April 8, had already been assigned but which were not yet dispatched when he informed Kravitz there was no car for him. Sultan also testified that on April 8, when full operations were first resumed on the night shift (only about 70 percent of the fleet having been dispatched on the day shift) he did not know which of the drivers were going to come in and that all he was interested in at that time was getting the fleet out. Sultan testified further that on April 8, his particular reason for getting the entire fleet out was to show his employer that he was able to accom- plish this and also not to keep the cars in the garage and permit the loss of revenue. It appears also that on April 8, Sultan departed from custom and did not necessarily dispatch cabs with their regular drivers. According to Sultan's testimony and the Respondent's records, as will be discussed in connec- tion with the Raskin case, a taxicab can and often is dispatched within a minute after it is checked in. The Respondent's records show that there were 12 instances of steady men dispatched after 4: 40 p. in. on April 8. At least 2 of these instances are of cars present in the garage at 4: 45 p. in., the time Sultan placed his conversation with Kravitz, which had been in the garage before 4: 30 p. in. (one cab had been in the garage an hour before and the other a few minutes before 4: 30 p. m.) and which were dispatched after the conversation to the steady drivers who regularly drove those very cars. The records also disclose certain information as to dispatches on April 8 after 4: 45 of extra drivers as distinguished from steady drivers. At the time Sultan placed the incident with Kravitz there were 3 cabs in the garage which were thereafter dispatched to extra drivers. One of these cars was reported in at 4: 37 p. in. and not dispatched until shortly after 5 p. in., another of these cars was reported in shortly before 4 p. in. and not dispatched until 4:45 p. in., and the other car had not been dispatched at all during the day shift and for the first time was dispatched at 4: 51 p. in. The remaining night-shift driver, Raskin, testified that on April 8, he arrived at the garage about 4 p. in. and reported to Sultan and that Sultan referred him to Goodman. Upon Raskin's inquiry as to his status, Goodman stated that he was discharged. Raskin testified that on the next day, April 9, he appeared at the garage at about the same time in another unsuccessful attempt to get a taxicab. According to Sultan, on April 8, Raskin, whose usual time for arrival had been between 4: 30 and 4: 45, arrived at the garage about 3: 30 p. in. and asked for his car. Sultan informed Raskin that his car had not come in yet and asked him to wait. Raskin's car returned to the garage around 5 p. in. Sultan paged him over the public address system, and getting no response after a few moments dispatched the car with another driver. The next day, April 9, Raskin again arrived at about 3: 30 p. in. and Sultan asked him what had occurred the day before, but Raskin gave no reply. Upon Sultan's inquiry Raskin stated that he wanted to work. Sultan again asked him to wait for his car to return. When the 250983-vol. 102-53-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD car arrived at the garage at about 5 p. m. Sultan paged Raskin . There was no response and Sultan dispatched the car with another man. Goodman denied the conversation attributed to him by Raskin. The Respondent's records show that on April 8 Raskin's car was checked in at 4: 36 p. m. and dispatched at 4: 37 p. m. During the week preceding the strike, which is the extent to which the records are available, there was an average time lapse period of about 25 minutes between the time that Raskin's cab was checked in and the time that he was dispatched , and in each of these instances Raskin was dispatched after 4 : 50 p. m. As has already been noted in the discussion of the Kravitz case, there were time lapses on April 8 of some degree in the dispatch of both steady and extra men. The Respondent's records show that on the night shift of April 8, there were 24 instances of a time lapse period of 2 minutes or more and that the average time lapse period for each of these 24 instances was 28 minutes . As also noted in the Kravitz case discussion , Sultan testified that on April 8 he did not know which of the drivers were going to come in that after- noon and he was particularly anxious to get the cabs on the street to demonstrate his ability to his employer and to end the loss of revenue. When, according to Sultan, Raskin appeared at the garage at about 3: 30 p. m. the Respondent's rec- ords show that there were 7 cabs in the garage at that time. One of these cabs was ultimately dispatched to an extra driver at 4: 51 p. m. Sultan did not then dispatch one of the cabs with Raskin , but, according to Sultan he asked Raskin to wait for his regular cab. There are also 7 instances of regular men who like Raskin appeared at the garage before their usual reporting time but who were dispatched with cabs other than those which they usually operated and which cabs were usually assigned to other regular drivers. The records show further that there were 7 extra drivers who were dispatched between 3: 30 p. m., when Sultan testified Raskin appeared, and 4: 36 p. m., when the Respondent's records show the return of Raskin's cab. There are some general matters to be considered . The Respondent contends that the employees involved, from information received, from advice of union members, or from their own experience , formed an intention to file charges before the State Board and thus provide themselves with the means whereby they were free to pursue their own practices with respect to new businesses , unemployment insurance, and other matters, and yet be paid on a claim of having been discrim- inatorily discharged. The Respondent in support of this contention relies in part upon a handbill bearing the Union' s name which was distributed at the Respondent's garage during the course of the instant hearing and stated that drivers in the industry had received substantial cash settlements and reinstate- ment as a result of unfair labor practice charges filed and that it would be difficult to say what the result would have been but for the support of the Union. The Respondent also relies upon testimony by some of the men that before, during, and after the strike they had conversations with officials of the Union. As an additional factor which it urges may be operative here the Respondent points to an alleged industry-accepted fact that taxicab drivers in New York City normally display a lack of interest in employment around the month of April when the race tracks are open and when the ball games start. In an attempt to depreciate the testimony concerning applications by the drivers, the Respondent argues that with the knowledge , experience, and advice these men had, they engaged in such conduct to create a prima facie inference that they tried to get back to work. Aside from the time of the distribution of the particular handbill relied upon by the Respondent and the lack of evidence as to whether the conversations with union officials include the type advice alleged , under the theory urged by the TAXI TRANSIT COMPANY 55 Respondent these men would have had to be in an economic position to meet their obligations to themselves and/or others without their usual and immediate earn- ings while waiting determination of the charges filed and to stand the risk of an unsuccessful outcome of the charges. Each of the drivers involved was a regular man and the 4 who testified had been employees of the Respondent for periods varying from 6 to 10 years, and there was no showing that they had been absent from their employment in about April in the past.' As to 2 of the drivers, under the Respondent's version of the events, all the Respondent had to do was to offer them employment to test the genuiness of their applications. As individuals, the 4 men who testified did not give the impression of persons who would engage in the connivance contended by the Respondent. On the other hand, also worthy of apprisal as to inherent probability is the Respondent's conduct regarding its failure to inform the men that their jobs were open. As already noted, the Respondent was notified by letters of April 12 and 13 that the men were claiming an illegal discharge. Although the Respondent says that it had no objection to the men and would have been willing to take them back, it did nothing toward offering them employment and merely turned the matter over to its attorney thereby exposing itself to the risk of back-pay claims. The undersigned was more favorably impressed with Raskin, Kravitz, Mallach, and Schorr as witnesses than with Goodman, Sultan, Levens, and Frank Ackerman. Under these circumstances it is found that the events occurred substantially as related by Raskin, Kravitz, Mallach, and Schorr and that on April 7, 1949, Goodman threatened to blacklist Raskin in violation of Section 8 (a) (1) of the Act, and that the Respondent in carrying out its threatened blacklisting failed and refused on April 8, 1949, to assign cabs to, thereby discriminating against Isador Raskin, Irving Kravitz, Ben Mallach, Irving Schorr, and Max Zuckerman in violation of Section 8 (a) (3) and 8 (a) (1) of the Act as alleged.9 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices with- in the meaning of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 8 It would appear that under the 4: 30 p. m . deadline system under which unassigned extra drivers leave the garage at 4: 40 p. m. which the Respondent describes , and from the fact that during the week preceding the strike Raskin was dispatched at 4: 52 p. m. on one day, at 5: 49 p. in, on another day, and shortly after 5 p. m. on the remaining days, that the Respondent was of the opinion that Raskin was a reliable man. 9 The undersigned has not found it necessary in determining the issues here presented to rely upon prior decisions of the State Board cited in footnote 4, notice of which was taken during the course of the hearing on the motion of the General Counsel to show the background of the Respondents labor relations history . See, Reed d Prance Manufacturing Company, 96 NLRB 850. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - It has been found that beginning April 8, 1949, the Respondent discriminated against Isador Raskin, Irving Kravitz, Ben Mallach, Irving Schorr, and Max Zuckerman. It will therefore be recommended that the Respondent be ordered to offer Raskin, Kravitz, Mallach, and Schorr, each immediate and full rein- statement to his former or substantially equivalent position,30 without prej- udice to his seniority or other rights and privileges and to make him whole for any loss of pay suffered by him as a result of the discrimination, by payment to him a sum of money equal to the amount he would have earned, including tips, from April 8, 1949, the date of discrimination to the date of the offer of rein- statement less his net earnings" to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. In view of Zuckerman's decease, it is recommended that the Respondent be ordered to make whole Zuckerman's estate for any loss of earnings, including tips, suffered by him as a result of the discrimination. In this instance, the loss of earnings shall be computed from April 8, 1949, the date of the discrimination, to the date of Zuckerman's decease less his net earnings to be determined upon a quarterly basis in a manner described in the preceding paragraph. Since Zuckerman's employment ceased because of the Respondent's unfair labor prac- tices, he remained an employee within the meaning of the Act until his death, and as such was entitled to any and all bonuses, emoluments, insurance cover- age, and other benefits and perquisites accorded by the Respondent to its em- ployees, and which he would have enjoyed but for his discharge. It shall there- fore be further recommended that the Respondent be ordered, in the manner described in the next preceding paragraph, to make whole Zuckerman's per- sonal representatives and any other person or persons who, if Zuckerman had not been discriminated against, in the amount they would have been entitled upon his decease to such bonuses, emoluments, and insurance or other death benefits, for any deprivation or loss in respect to such benefits as they may have suffered by reason of the discrimination against him.12 It will also be recom- mended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amounts due. The Respondent's infractions of Section 8 (a) (1) and 8 (a) (3) of the Act, herein found, disclose a fixed purpose to defeat self-organization and its objec- tives. Because of the Respondent's unlawful conduct and its underlying pur- poses, the undersigned is persuaded that the unfair practices found are related to the other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the course of Re- spondent's conduct in the past. The preventative purposes of the Act will be thwarted, unless the remedial order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to pre- vent a recurrence of unfair labor practices, and thus to effectuate the policies of the Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed by Sec- tion 7 of the Act. Upon the basis of the foregoing facts and upon the entire record in the case, the undersigned makes the following : 10 The Chase National Bank of the City of New York, 65 NLRB 827. °S Crossett Lumber Company , 8 NLRB 440 ; Republic Steel Corporation V. N. L. R. B., 311 U. S. 7 Sa Revlon Products Corporation, 48 NLRB 1202, enfd. N. L. R. B. v. Revlon Products Corporation, 144 F 2d 88 (C A. 2). See Social Security Board v. Nierotko, 327 U S. 358 TAXI TRANSIT COMPANY 57 CONCLUSIONS OF LAW 1. Taxi Workers Organizing Committee, Local 35, United Construction Work- ers, affiliated with the United Mine Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating with regard to the hire and tenure of employment of Isador Raskin, Irving Kravitz, Ben Mallach, Irving Schorr, and Max Zuckerman beginning April 8, 1949, thereby discouraging membership in the above-named labor organization, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By threatening blacklisting on April 7, 1949, and engaging in discrimina- tion and thus interfering with, restraining, and coercing its employees in exer- cising the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to The Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in any labor organization of our em- ployees by discharging or refusing to reinstate any of our employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten our employees with blacklisting because of their self- organizational activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid, or to refrain from any or all such activities. WE WILL offer Isador Raskin, Ben Mallach, Irving Kravitz, and Irving Schorr immediate and full reinstatement to their former or similar positions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay suffered as a result of discrimination against him. WE WILL make whole the estate of Max Zuckerman and any other person or persons, as their interest may appear for any loss of pay and insurance benefits suffered as a result of our discrimination against Zuckerman. All employees are free to join, form, or assist any labor organization, and to engage in any self-organization or other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from such activities except to the extent that such right is affected by the agreement made in conformity with Section 8 (a) (3) of the Act. TAXI TRANSIT COMPANY, Employer. By -------------------------------------------- Dated -------------------- ( Representative ) (Title) 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. AMERICAN & EFIRD MILLS, INC. and INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL, PETITIONER. Case No. 9-RC-1696. Janu- ary 7,1953 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election'- issued by the Board on September 24, 1952, an election by secret ballot was con- ducted on October 14,1952, under the direction and supervision of the Regional Director for the Ninth Region. Upon completion of the election, the parties were furnished with a tally of ballots, showing that there were approximately 165 eligible voters, that 148 cast valid ballots, of which 79 were for the Petitioner and 69 were against the Petitioner. There were 47 challenged ballots, a number sufficient to affect the results of the election. Thereafter, the Regional Director investigated the issues raised by the challenges. On November 20, 1952, he issued a report on challenged ballots and on November 25, 1952, a supplement to report on challenged ballots 2 He recommended that the challenge to the ballot of James F. Black be sustained, that the challenge to the ballot of Lillian Overstreet be overruled, and that a hearing be ordered to resolve certain issues of fact for the determination of the remaining 45 challenges. No exceptions were filed to the Regional Director's report. On December 5, 19529 the Petitioner moved the Board for permission to amend its position on challenged ballots. For the purpose of this proceeding and in order to dispense with a hearing, the Petitioner withdrew its challenges to 9 of the challenged ballots and agreed that the 36 challenges made by the Employer should be sustained .3 By reason of the agreement of the parties concerning these ballots,' we sustain the 36 challenges entered by the Employer, and we shall x Not reported in printed volumes of Board decisions. 2 The supplement to report on challenged ballots amended the report on challenged ballots to correct an error in the conclusions and recommendations. 3In its motion the Petitioner requested immediate certification, contending that these 9 ballots are not sufficient in number to affect the result of the election in which the Petitioner has already received a majority of 10 votes. In view of our decision that an additional challenge must be overruled, a total of 10 ballots will be opened and counted. Because these 10 ballots are sufficient in number to affect the result of the election, we deny the Petitioner's request for immediate certification. 4 The Regional Director recommended no specific disposition of these challenged ballots, recommending instead that a hearing be ordered to secure evidence upon which to decide certain issues of fact. 102 NLRB No. 15.