Terminal System, Inc., Etc.

TERMINAL SYSTEM, INC., ETC. 979 lating machine operators in the department, who are admittedly in the unit. He also effectively recommends hiring and discharge. Accordingly, in agreement with the Employer, we find that he is a supervisor. Miller was hired by the Employer in this department as a tabulating machine operator, having had some prior experience in this work. After 4 months, he was transferred to his present job of programmer on the IBM 650, having received during his employment 2 weeks of IBM instruction on 650 programming. He programs into the computer payroll data, laboratory billing, and other data which formerly had to be manually computed on tabulating and other office machines. Since his work involves office machine work like that of tabulating operators in the unit who work alongside hint, we find, contrary to the contention of the Employer that he is not a technical employee. In view of the foregoing, and upon the entire record, we find that all the individuals in the departments designated in the petition are either supervisors or employees who are performing work within the scope of the existing unit and are, therefore, in that unit.' Accord- ingly, as the Employer seeks an election in an inappropriate unit consisting of only a segment of the employees in the existing unit, and the petition, therefore, apart from any other considerations, does not raise a question concerning representation within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, we shall dismiss the petition.5 [The Board dismissed the petition.] I We find no merit in the Employer's apparent contention that it can unilaterally re- move employees or jobs from a unit such as that involved herein merely by changing their department assignments and job titles. 5 Cf Continental Can Company, Inc , 127 NLRB 286. Terminal System, Inc., Bramble Cab Corporation, Clover Cab Corporation, Elder Cab Corporation, Fennel Cab Corporation, Fern Cab Corporation, Hawthorne Cab Corporation, Hazel Cab Corporation, Iris Cab Corporation, Maple Cab Corpora- tion, Meteor Cab Corporation , Shamrock Cab Corporation, Stock Cab Corporation, Wags Transportation System, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America , Taxi Driver's and Terminal Employees, Local Union 826, Petitioner . Case No. 2-RC-9990. June 0, 1960 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 Milton A. Shaham, hearing 127 NLRB No. 133. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the parties filed briefs and the Petitioner requested oral argument.' Upon the entire record in this case, the Board finds : 1. Terminal System, Inc., is engaged in the taxicab business in New York City, operating 300 cabs, which are owned by 13 other corpora- tions listed in the caption above. Terminal System, Inc., and the corporations which own the cabs constitute a single employer. The Employer operates the second largest taxicab fleet in New York City and is independent of all others. The Employer annually purchases taxicabs averaging in value $313,000, which are shipped directly to the Employer from outside the State of New York.2 Employer does an annual gross volume of business in excess of $500,000. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.' 2. At the hearing, the Employer moved to dismiss this proceeding upon the ground that the Petitioner is not a labor organization under the Act; and that, in any event, the Petitioner is disqualified from acting as a statutory labor organization, because it is governed under a trusteeship which is presumed to be invalid under Section 304(c) of Title III of the Labor-Management Reporting and Disclosure Act of 1959. Section 304(c) provides that, in proceedings brought in a Federal district court under Section 304, a trusteeship established by a labor organization in conformity with its constitution and bylaws ... shall be presumed valid for a period of eighteen months from the date of its establishment and shall not be subject to attack during such period except upon clear and convincing proof that the trustee- ship was not established or maintained in good faith for a purpose allowable under Section 302"; but, after the expiration of 18 months, such a trusteeship is presumed to be invalid. These contentions are without merit. The Board is not the proper forum in which parties may litigate issues arising under those sections of the Labor- Management Reporting and Disclosure Act upon which the Employer relies. The only relevant question raised here by the Employer is whether the Petitioner is a labor organization within the meaning of Section 2 (5) of the National Labor Relations Act. The Petitioner was created as a trusteed local in 1953 to organize New York City taxicab drivers, and has continued to operate as such for the past 61/2 years under the exclusive direction and control of its international union. 'As the record and the briefs of the parties adequately present the issues and the posi- tions of the parties, the Petitioner's request for oral argument is hereby denied 2 After the close of the hearing, the parties entered into a stipulation, dated March 17, 1960, with respect to commerce data set forth above We hereby make this stipulation a part of the record 7 Cab Services, Inc, d/b/a Red and White Airway Cab Company, 123 NLRB 83 TERMINAL SYSTEM, INC., ETC. 981 The Petitioner operates under the constitution of the international and its officers are appointed by the "International Trustee." The Petitioner maintains an office, has members, holds regular membership meetings, and handles grievances. Although it has no collective- bargaining agreement with any employer at the present time, it has demanded recognition from employers, and plans to seek such agree- ments. Nothing in the record shows that the internal affairs of the Petitioner affect its capacity to act as a bargaining representative. On the basis of the foregoing, we find that the Petitioner is a labor organization within the meaning of the Act.' The Employer's motion to dismiss on the ground mentioned above is hereby denied. We find that the labor organization involved claims to represent certain em- ployees of the Employer. 3., The Employer also moved to dismiss on the ground that the Petitioner's showing of interest was inadequate. Prior to the hearing in this proceeding, the Employer filed with the Board a motion to reverse the ruling of the Regional Director "... accepting as evidence of interest," certain authorization cards submitted by the Petitioner. On October 9, 1959, the Board denied this motion. The sufficiency of a Petitioner's showing of interest is an administrative matter not sub- ject to litigation. We are administratively satisfied that the Peti- tioner's showing of interest is adequate.' Consequently, the Employ- er's motion to dismiss for lack of an adequate showing of interest is hereby denied.6 We find that a question affecting commerce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner requests a unit of "all taxi drivers working regu- larly at least 3 days a week, excluding watchmen and guards, mechan- ics, all clerical and maintenance employees, all taxi drivers working less than 3 days a week and all supervisory personnel within the meaning of the Act." It contends that drivers working less than 3 days a week have insufficient interest in the conditions of employment in the taxicab industry to be included in the unit or to be eligible to vote for representatives. Otherwise in agreement as to the requested unit, the Employer contends that all regular part-time drivers should be included in the unit and be eligible to vote.' ' Salvino Giannasca, d/b/a Imperial Reed and Rattan Furniture Co., 117 NLRB 495; v. Cabot Carbon Company and Cabot Shops , Inc, 360 U S 203 NLRB s 0 D Jennings and Company, 68 NLRB 516, 518 0 The Employer further moved to dismiss the petition herein on the grounds that the Board exceeded its authority, deprived the Employer of due process of law, violated the Constitution of the United States, violated its own rules and regulations, violated the Administrative Procedure Act, and failed to apply its rules and regulations without dis- crimination or to apply them uniformly Insofar as this motion relates to showing of interest, it is disposed of above. If the motion relates to other matters it lacks specificity Consequently, we find no merit in the Employer 's motion and it is hereby denied. 7 The parties stipulated that casual employees and employees of individual cab owners shall be excluded from the unit Accordingly, we will exclude them from the unit. 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'The Employer operates 300 taxicabs in the city of New York and environs, 2 shifts a day, 7 days a week. It employed 978 drivers during November 1959. Of these drivers, 761 worked 5 or 6 days a week; 8 drivers worked 4 days a week; 23 drivers worked 3 days a week; 79 drivers worked 2 days a week; and 77 drivers worked 1 day a week. These drivers were classified by the Employer as full-time drivers (working in the same cab each day), "steady extras" (working full- time, but rotating to various cabs to relieve other drivers), and regu- lar part-time drivers (working 1 to 4 days a week). Most of the drivers working 1 or 2 days a week worked on Saturday or Sunday, or both. There are no casual drivers now employed. There is some irregularity in the attendance of drivers working 1 or 2 days a week; the comparative attendance of other drivers was not established. The Petitioner contends that public policy of the city of New York requires the exclusion of drivers working 1 or 2 days a week from the bargaining unit. The Administrative Code of the city of New York, chapter 18, section 436-2.0-21, provides, in substance, that the hack bureau of the city of New York may refuse renewal of a hack license if the applicant therefor derived the major part of his income from employment outside the taxicab industry during the previous year. The deputy police commissioner in charge of the license di- vision for the city of New York testified that, pursuant to this section ,of the Code, his department investigates a license application if the declared income therein is below $1,000 a year, but that "steady part- time" drivers are given license renewals even when they admittedly earn "much more outside" the taxi industry than is earned by driving a cab. He further testified that drivers who work 2 days a week for a single employer are considered by the hack bureau as "steady part- time drivers," and that, generally, no investigation is made of "steady part-time drivers" when they apply for renewal of their licenses. Ac- cording to a survey made by his department, there is a 2-percent shortage of drivers in the industry and some part-time drivers have been licensed for 20 and 25 years, working steadily for one employer. He further testified that, in his opinion, there is a need for drivers working 1 or 2 days a week in the New York City taxicab industry, because most full-time drivers prefer working 5 days a week during the weekdays, requiring a number of 1- and 2-day drivers on week- ends. According to the Petitioner's recording secretary, despite conferences with the hack bureau in which the Petitioner urged denial of licenses to 1- and 2-day-a-week drivers, the number of these drivers in the industry is about the same as in 1953, and the conferences have produced no difference in the number of these drivers. Thus, the rec- ord does not show that there is any clear policy of the city of New York against allowing drivers working only 1 or 2 days a week to TERMINAL SYSTEM, INC., ETC. 983 continue to work in the taxicab industry. These drivers are issued the same licenses by the hack bureau as are issued to all other drivers. Most drivers who work for the Employer 1 or 2 days a week have substantial job seniority. A tabulation of 55 drivers working for the Employer 2 days a week showed the following: 1 driver had over 20 years' seniority; 5 drivers had 15 to 20 years' seniority; 4 drivers had 10 to 15 years' seniority; 8 drivers had 5 to 10 years' seniority; 18 drivers had 1.to 5 years' seniority; 11 drivers had 6 months' to 1 year's seniority; and 8 drivers had less than 6 months' seniority. A tabula- tion of 48 drivers of the Employer working 1 day a week showed the following : 3 drivers had 15 to 20 years' seniority; 1 driver had 10 to 15 years' seniority; 9 drivers had 5 to 10 years' seniority; 27 drivers had 1 to 5 years' seniority ; 5 drivers had 6 months' to 1 year's sen- iority; and 3 drivers had less than 6 months' seniority. Commission, hours, and working conditions are similar for all driv- ers of the Employer. The uniform rate of commission is 44 percent of gross revenues shown on the meter; the procedure for remitting drivers' receipts to the Employer is the same for all drivers. Social security and withholding tax deductions are made on the same basis for all drivers of the Employer. There is no difference in shifts worked by drivers working 1 or 2 days a week and other drivers; supervision for all drivers is the same. The same dispatcher assigns all drivers to cabs; however, many of the full-time drivers drive the same cab each day without formal assignment. Equipment operated by all drivers is the same. The procedure for hiring drivers is the same; all drivers are hired by the garage manager or his assistant. The garage manager testified that all drivers received the same disciplining; however, this was disputed by the recording secretary of the Petitioner, shop steward at the Employer's garage, who testified that 1- and 2-day-a-week drivers are not disciplined for absenteeism and may work whenever they please. On cross-examination, the Employer's garage manager admitted that absenteeism on the part of drivers working 1 or 2 days a week runs between 20 and 45 percent. While the rate of absenteeism for other drivers is not clear, the garage manager testified that the rate is "related to" the rate for "lost shifts," or idle cabs, and that the latter rate was 3.25 percent of total cabs idle for reasons other than mechanical failure. However, absenteeism of full-time drivers is often remedied by the use of substitutes to operate the absentee's cab, in which case the cab is not recorded as a "lost shift," although the driver may be absent. While the rate of absenteeism of 1- or 2-day-a- week drivers may be high, this does not establish that they are there- fore not regular part-time employees. Inasmuch as these drivers are recorded by the Employer as absent, it seems clear that they are 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered to be regular employees who are expected to report for assigned duty. Most drivers are paid a vacation or Christmas bonus based on the, following scale: for 50 to 100 days a year worked, $10; 100 to 125 days a year worked, $15; 125 to 200 days a year worked, $20; over 200 days a year worked, 1/52 of the average earnings for the year. The scale of bonus payments is the same for all drivers. Another bonus is paid quarterly to drivers working 60 or more days per quarter year; they are paid 1 percent of gross revenues from bookings each quarter. This requirement excludes all drivers but those working 5 or more days a week, thus excluding drivers that work 3 or 4 days a week as well as 1- or 2-day-a-week drivers. Full-time drivers, working for the Employer 3 or more years, can benefit from a children's scholarship program; two scholarships a year are granted to children of such drivers. Drivers working 3 or 4 days a week are excluded from this benefit as well as drivers working 1 or 2 days a week. The same distinction is made in the assignment of cabs; only full-time drivers are assigned to the same cab each day. Group life insurance is maintained for some drivers by the Em- ployer on a noncontributory basis. Drivers working less than 12 days a month are not covered by this policy according to a requirement set by the insurance carrier. This is the only example of a benefit granted to drivers working 3 or more days a week, and withheld from drivers working 1 or 2 days a week. Thomas L. Hickey, international trustee of the Petitioner testified on January 9, 1957, in a representation proceeding of the Petitioner and the Employer herein before the New York State Labor Relations Board, that the Petitioner had up to that time failed to organize a substantial number of drivers who worked less than 3 days a week in the taxicab industry; that the Petitioner would like to get an election within a group which would give it a chance of winning the election, and that he considered drivers working less than 3 days a week "a threat" to the Petitioner because he expected them to vote against it; and that the Petitioner expected to cover all drivers, including those working less than 3 days a week, under a union contract. Nothing in the record shows that there has been any change in the policy of the Petitioner in this respect since Hickey gave such testimony. Thus, the unit requested by the Petitioner, insofar as it seeks to exclude drivers regularly working less than 3 days a week, appears to be based on the extent of its organization of the Employer's drivers, a factor which, under Section 9 (c) (5) of the Act, may not control in the determina- tion of the appropriate unit.' 9 Transcontinental Bus System, Inc., 119 NLRB 1840, 1844. TERMINAL SYSTEM, INC., ETC. 985 In its brief, the Petitioner stated "... that it is prepared to proceed to an election in the bargaining unit and according to the rule of eligibility found appropriate by the Board...." As all drivers working for the Employer have substantially the same terms of employment and working conditions, perform the same work, use similar equipment, drive in the same geographical area, work under the same superivsion, receive the same rate of commission as compensation for their services, and hold the same type of license from the city of New York, and are subject to the authority of its hack bureau, we shall include with the full-time drivers all the Employer's regular drivers working only 1 or 2 days a week in the unit as we deem them to be regular part-time drivers,9 and they shall therefore be eligible to vote in the election herein.10 Accordingly, we find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act : All taxicab drivers of the Employer, including all regular part-time drivers, but excluding casual drivers and employees of individual cab owner- drivers, watchmen, guards, mechanics, all clerical and maintenance employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER JENKINS dissenting : I disagree with my colleagues in severing for decisional purposes this case from the 70 other related cases heard in the Region. As I understand the situation, there are many facts common to all Em- ployers in all the cases. All are engaged in the operation of taxicabs in the city of New York. All operate under the supervision of the hack bureau of that city. All taxicab drivers are licensed by the bureau. Substantially all of the issues are the same in all cases. More- over, it is my opinion that elections conducted simultaneously at all taxicab companies would best serve the interest of a free choice of representatives and would be the most expeditious way for the Board to conduct the balloting at these elections. I note, too, that this would not necessarily entail any delay as the hearings in all the cases have been completed. In a situation such as this, I feel that the more 9 Decatur Transfer & Storage, Inc., 105 NLRB 633, 636-637 ; The McMahon Transporta- tion Company, 124 NLRB 1092, Brown Cigar Company, 124 NLRB 1435. The Employer suggests the following test for inclusion of drivers in the bargaining unit . "Drivers in the Company's employ less than six months prior to the election should be included if they worked at least three of the four weeks preceding the election unless absent for bona fide cause; drivers in the Company 's'employ six months or more prior to the election should be included in the unit if they worked in each of the six months preceding the election unless absent for bona fide cause." We do not adopt the Employer 's suggestion in view .of our policy to include all regular part-time employee's In, the bargaining unit. Food Fair Stores of Florida, Inc., 120 NLRB 1669, 1670-1671 ; Decatur Transfer & Storage, Inc., .supra - 10 Sears Roebuck & Company, 112 NLRB 559, 569, footnote 28 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective as well as the more efficient way is for the Board to consider the total picture, rather than piecemeal, and from a comprehensive analysis of all the facts and the issues, make the determinations required in these cases. Reynolds Metal Company and Local No. 18 International Brotherhood of Bookbinders, AFL-CIO, Petitioner. Case No. 14-RC-1546. June 3, 1960 ORDER DENYING MOTION Pursuant to a Board-conducted consent election, the Petitioner, herein called the Bookbinders, was certified in October 1951 for a unit of "all papercutters, diecutters and apprentices" of the Employer at its St. Louis, Missouri, plant, excluding all other employees. On December 21, 1959, the Bookbinders filed the instant motion for clarification of representation asserting that a certain classification of employees performing a new operation, as described below, should be found to be an accretion to the unit presently represented by it, and that its certification be amended accordingly. On February 1, 1960, the Intervenor, Aluminum Workers International Union, Local No. 160, herein called the Aluminum Workers, filed objections to the mo- tion, alleging that the employees in question are properly a part of the production unit which it represents, and that the granting of the motion would result in an infringement upon the recognized jurisdic- tion of the Aluminum Workers. On February 8, 1960, the Employer filed a response to the motion, taking no position with respect thereto, but requesting a settlement of the controversy by the Board. On February 17,1960, the Board remanded the case to the Regional Director, directing that a hearing be held on the issues raised by the Bookbinders' motion. The Employer, the Bookbinders, and the Alu- minum Workers appeared and participated at the hearing. The rulings of the hearing officer, made at the hearing, are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board' makes the following findings. In the spring of 1959, the Employer purchased a Climax Challenger Hole Driller and about 3 months later placed it in operation in the production process. The machine's function was to cut round holes in paper labels, the Employer's product, to be wrapped around bottles 'Pursuant to the provisions of Section 8(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Panning]. 127 NLRB No. 126.