Red and White Airway Cab Co.

RED AND WHITE AIRWAY CAB COMPANY 83 Cab Services, Inc., d/b/a Red and White Airway Cab Company 1 and Chauffeurs and Associated Workers Union, Petitioner. Case No. 18-RC-3779. March 9, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Clarence A. Meter,. 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 Act, the Board. has delegated its powers in connection with this case to a three member panel [Members Rodgers, Bean, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in the taxicab business in Minne- apolis, Minnesota, operating about 48 cabs, 38 of which are owned by the individual owner-drivers who are the shareholders in Cab Services, Inc. ; the remaining cabs are owned by the corporation itself or by the Red and White Airway Taxicab Association. The Employer's annual gross volume of business is in excess of $700,000. The gas and oil used in the Employer's operations, to the value of $60,000 per year, is purchased from sources which obtain it from outside Minnesota. The Intervenor contends that the Board should not assert jurisdiction here, because the contract between the Intervenor and the Employer, which the former urges as a bar, was entered into on the assumption that the rules of interpretation of the Minnesota Department of Labor would be applicable. In view of the Board's decision to apply its revised jurisdictional standards to all pending cases,2 and as the Employer's volume of business exceeds the $500,000 minimum prescribed for retail enter- prises, including taxicab companies, we find that it will effectuate the policies of the Act to assert jurisdiction herein.3 2. The labor organizations involved claim to represent certain employees of the Employer.4 3. The Intervenor contends that a current contract between it and the Employer is a bar to this petition. The contract, effective from February 15, 1958, to February 15, 1960, is a supplement to an existing "master agreement" between the parties. The Petitioner ' Cab Services, Inc., is a Minnesota corporation, all of whose shareholders are cab owners who are also associated together in an unincorporated group known as Red and White Airway Taxicab Association. All parties agree that the operations of the corpora- tion ` and the association are closely integrated, and that they constitute a single Employer. 2 Siemens Mailing Service, 122 NLRB 81. S Carolina Supplies and Cement Co., 122 NLRB 88, footnote 5. d Minneapolis Taxicab Drivers , Livery Chauffeurs, Ambulance Drivers and Helpers. Union, Local 958, I.B.T.C.W. & H. of A., referred to herein as the Intervenor , was per- mitted to intervene on the basis of its contractual relationship with the Employer. 123 NLRB No. 19. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asserts that the contract is not a bar because the master agreement contains an invalid union-security clause. The provision in question is contained in section I, paragraph A, of the master agreement, and reads as follows : A. The Union shall be the sole representative of all employees covered by this agreement in collective bargaining with the Em- ployer. There shall be no discrimination against any employee because of Union affiliation. The Employer agrees that after a Forty (40) day qualifying period, all new employees shall become members of the Union. In the event that the Union notifies the Employer that any of the drivers are not members in good stand- ing with the Union, it shall be the duty of the Employer to discharge any such driver. The contract fails to grant the requisite 30-day grace period dur- ing which nonmember incumbent employees need not join the Inter- venor. It thereby fails to conform to Section 8(a) (3) of the Act, and may not, therefore, serve as a bar to this petition.° We do not, in these circumstances, pass on other grounds urged by the Petitioner for finding the contract not a bar. 4. The parties agree that all taxicab drivers, servicemen, dis- patchers, and order takers employed by the Company constitute an appropriate unit. The Petitioner and Intervenor would also include, while the Employer would exclude, the owner-drivers. Red and White Airway Taxicab Association is an organization comprised of 31 taxicab drivers, each of whom owns at least 1 cab. The Association itself owns eight cabs. Each member of the Asso- ciation owns a share of stock in Cab Services, Inc., a corporation which owns a building and land on which are located a gasoline station, quarters for drivers, business offices, and a dispatching room. Cab Services provides its shareholders with bookkeeping, dispatching and managerial services, legal counsel, representation in labor matters, and facilities for purchasing oil and gasoline. Cab Services also owns two cabs. It employs regular, extra, and part-time, or extra-extra, drivers for those shifts when the owner- drivers are not driving, and for all shifts on the cabs owned by itself. and the Association. Owners may work longer shifts than other drivers and are not required to work as regularly. They drive only their own cabs. Extra and part-time drivers may be assigned by the Employer to drive any . cab available on their shift. The owners keep the receipts earned from their driving, and share the receipts of other drivers of their cabs on a predetermined basis. The owners pay a fixed weekly amount for the general serv- ices rendered by Cab Services. The letter withholds from the 5 Keystone Coat, Apron & Towel Sn[pply Company, 121 NLRB 880. RED AND WHITE AIRWAY CAB COMPANY 85 receipts due them any amounts necessary to pay social security and income taxes and workmen's compensation and prepares their tax returns on an individual owner basis. Although the owners have been members of the Intervenor, they have not been included in the coverage of the contract between the Intervenor and the Employer. At yearly shareholder meetings, a board of directors is selected from among the owner-drivers to direct the corporation's affairs and supervise the paid manager who conducts the Employer's rou- tine business. The manager is usually an owner-driver but one who does no driving while serving in that capacity. The manager hires, fires, and disciplines all drivers other than the owners. The latters' breaches of discipline are referred to the board for decision. Only the shareholders may force an owner to leave the association. The shareholders also reserve to themselves the right to decide disputes between the manager and the board of directors. Although stock ownership does not alone preclude the inclusion of employee stockholders in a collective-bargaining unit with other employees 6 the Board has excluded them when their stockholding interest gives them an effective voice in the formulation and deter- mination of corporate policy.7 In the instant case, the owner-drivers are the sole members and stockholders of the Employer, and have an effective voice in determining policy through their selection of the directors who are, themselves, required to be owner-drivers. The stockholders also receive preferential treatment because of their status as owner-drivers, in selection of shifts, and through their freedom from the manager's exercise of disciplinary action against the other drivers. This divergence of proprietary and bargaining interest between stockholders and other drivers requires that the former be excluded from a bargaining unit of employees. Under these circumstances, we shall exclude the owner-drivers from the unit hereinafter found appropriate. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act : All taxicab drivers, cab servicemen, dispatchers, and order takers of the Employer at its Minneapolis, Minnesota, establishment, in- cluding extra-extra drivers, but excluding owner-drivers, office clerical employees, managerial employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 9 Everett Plywood & Door Corporation, 105 NLRB 17. 7 Brookings Plywood Corporation, 98 NLRB 794, 798; of. Coastal Plywood & Timber Company, 102 NLRB 300.