Jat Transportation Corp. Et Al.

780 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD In view of the foregoing, we find that all production and mainte- nance employees at the Employer's Los Angeles, California, plant, including shipping and receiving employees, the floorgirls, the head cutter, and the head shipping clerk, but excluding office employees, salesmen, professional. employees, guards, the floorman and floorlady, ,and other supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER BEAN took no part in the consideration of the above De- cision and Direction of Election. Jat Transportation Corp. et al. and International Brotherhood of Teamsters, Chauffeurs; Warehousemen, and Helpers, Taxi Drivers and Terminal Employees, Local Union 826,1 Petitioner. Cases Nos. 2-RC-9948-50, 2-RC-9953-57, 2-RC-9960, 2-RC- 9964-66, 2-RC-9968-77, 2-RC-9979-89, 2-RC-9991-93, 2-RC- 9995-98, 2-RC-10000-03, 2-RC-10005, 2-RC-10007-08, 2-RC- 10013, 2-RC-10015-19, 2-RC=10021-25, 2-RC-10027-28, and 2-RC-10290. August 23, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Milton A. Shaham, hearing officer.2 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. In this proceed- ing, 71 petitions were initially consolidated for hearing; of these, 9 petitions were withdrawn by the Petitioner and 1 case was severed from the consolidated proceeding.$ Thereafter, hearings were com- pleted in the remaining 61 cases, the parties filed briefs there, and requested oral argument .4 1 The Petitioner's name appears as amended at the hearing. 2 On the basis of contractual interest , the following labor organizations were allowed to intervene : New Yorker Taxi Workers Association in New Yorker Fleet Inc., et al., Case No. 2-RC-9970 ; 3999 Taxi Cab Drivers Association in Jackson Maintenance Corp., et al., Case No. 2-RC-9977 ; and Metropolitan Taxi Workers Union in 57th Street Management Corp., et al., Case No . 2-RC-10290. .8 The Employers filed interlocutory motions for leave to appeal from the hearing officer's denial of their motions to sever each of the cases. The motions for leave to appeal were denied by the Board in its order of March 8, 1960, without prejudice to renewal at a later time. These motions were renewed at the close of the hearing thereafter. As all the cases remaining in this proceeding have common issues, the Employers ' motions for severance are hereby denied. 4 As the record and the briefs of the parties adequately present the issues and the positions of the parties , the requests for oral argument are hereby denied. 128 NLRB No. 95. JAT TRANSPORTATION CORP. ET AL. 781 Upon the entire record in this case, the Board finds : 1. All the Employers in this proceeding are engaged in the taxicab business in New York City, operating from 30 to 500 taxicabs each. The Employers, named herein at Appendix A, are operating cor- porations for approximately 2,000 other corporations and individuals that own taxicabs. Except as to the Employer in Vernon Operating Co., Inc., et al., Case No. 2-RC-9991, the parties stipulated that each of the Employers named herein, together with the corporations and individuals that own taxicabs operated by each Employer, respec- tively, constitute a single employer within the meaning of the Act. Vernon Operating Co., Inc.,' is owned and operated by a number of corporations that own taxicabs. Vernon acts as purchasing agent in buying cabs for these corporations; however, each corporation signs its own sales contract after the purchase is arranged. Dispatchers are hired by Vernon and they dispatch all taxicabs on its behalf for the various owner corporations. All cabdrivers are hired and dis- charged by the dispatchers, and Vernon has a single labor relations policy. A pool of casual drivers is maintained by Vernon and such drivers are interchanged as needed between the taxicab owners. Me- chanics, washers, and office help for the garage are employed by Vernon. Receipts are collected by it daily and allocated to the owners. All gasoline, oil, and grease are purchased and tires are rented by Vernon for the corporations owning cabs. All Government forms are completed by Vernon, and social security and withholding tax contributions are made by it. Vernon prepares W-2 income tax forms on behalf of all the owner corporations, and it is named as the em- ployer in individual driver income tax returns. We find that each of the Employers herein named, together with the corporations and individuals that own the taxicabs operated by each Employer, re- spectively, each constitute a single employer within the meaning of the Act.' Each Employer operates independently of all others. With the exception of four Employers, hereinafter identified, during 1959, each Employer purchased gasoline, which originated outside the State of New York, in amounts ranging from $12,000 to $275,000. The other four Employers purchased supplies and materials, originating outside the State of New York, as follows : Gaar Service Corp. (Case No. 2-RC-10019) purchased, during 1959, gasoline, oil, and tires S Hereinafter referred to as Vernon. 6 The Employers moved to dismiss certain taxicab owners from the case on the ground that they did not receive adequate notice of hearing . During the hearing, on or about December 17 and 18, 1959, notices of hearing were served by mail on certain corpora- tions and individuals that own taxicabs operated by certain operating Employers herein. The notices called for appearance at the hearing on December 18, 1959. No operating Employer, as distinguished from a taxicab owner, was thereby added to the proceeding. All operating Employers herein were parties to the proceeding from the outset There is no contention that they did not receive adequate notice of hearing. Under the cir- cumstances , we deny the motion to dismiss. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valued at $18,728; in 1958, National Transportation Co., Inc. (Case No. 2-RC-9986), received shipments of taxicabs valued in excess of $500,000, and it has on order, for shipment in 1960, taxicabs valued in excess of $500,000; in 1959, Yankee Service Corp. (Case No. 2-RC- 10021) and 57th Street Management Corp. (Case No. 2-RC-10290) received shipments of taxicabs valued at $250,000 and $500,000, respectively. The Employers moved to dismiss the proceeding upon the ground that their operations do not affect commerce within the meaning of the Act. We find no merit in the Employers' contention that their operations do not affect commerce within the meaning of the Act because all supplies and materials purchased by them are bought from local dealers and such supplies and materials come to rest within the State of New York before being transported to each Employer.' We find that all Employers are engaged in commerce within the meaning of the Act as each has a substantial inflow of supplies and materials originating from sources outside the State of New York where they are engaged in business.' Accordingly, the Employers' motions to dismiss for lack of jurisdiction are hereby denied. In view of the foregoing and as each Employer does annual gross volume of business in excess of $500,000, we find that it will effectuate the policies of the Act to assert jurisdiction herein' 2. The Employers contend that the Petitioner is not a "labor organi- zation" within the meaning of the Act because it is governed by 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. For the reasons stated in Terminal System, Inc., et al., 127 NLRB 979, we reject this contention. The Employers assert that the trusteeship under which the Pe- titioner is operated was not created pursuant to any authority set forth in the constitution and bylaws of its International union, as required by Section 302 of Title III of the Labor-Management .Re- porting and Disclosure Act of 1959, and that the Petitioner has never had an election of officers as required by Section 401(b) of Title IV of that Act and hence the Petitioner is not a valid labor organization. We reject these contentions as Section 603 (b) of that Act in effect pro- vides that the provisions of the Act relied upon shall not be controlling in determining whether the Petitioner is a qualified labor organization for the purposes of this proceeding. For the reasons indicated in Terminal System, Inc., supra, we find that the Petitioner is a labor 'Pioneer Holding Company d/b/a Blue and White Cab Co., 126 NLRB 956; Cab Services, Inc. d/b/a Red and White Airway Cab Company, 123 NLRB 83; Howell Chevrolet Company v. N.L.R.B., 346 U.S. 482. 8 Id. Pioneer Holding Company d/b/a Blue and White Cab Co., supra; Cab Services Inc. d/b/a Red and White Airway Cab Company, supra. JAT TRANSPORTATION CORP. ET AL. 783 organization within the meaning of Section 2(5) of the National Labor Relations Act, as amended. We find that the labor organizations involved claim to represent certain employees of the Employer. 3. The Employers moved to dismiss the petitions herein on the grounds that the Petitioner's original showing of interest is inade- quate, and that Petitioner has made no adequate showing of interest to support the addition of certain taxicab owners during the course of this proceeding. The motion to dismiss on the first ground is here- by denied for the reasons stated in Terminal System, Inc., supra. As to the second ground for the motions to dismiss, it appears that the addition of taxicab owners did not increase the number of employees involved herein. As we have found that the Petitioner made an ade- quate showing of interest as to the employees involved herein, the Employers' motions to dismiss on the second ground is also hereby denied.10 In 57th Street Management Corp., et al., Case No. 2-RC-10290, the Employer contends that its collective-bargaining agreement with Metropolitan Taxi Workers Union, an intervenor herein, constitutes a bar to an election in that case. The agreement in question is effective from February 1, 1958, until January 31, 1960, and is automatically renewable for 2-year periods unless notice is given by either party. The parties agreed to extend the terms of their agreement, "pending the termination of this proceeding." The petition in this case was filed on October 1, 1959, 126 days prior to the original expiration date of the agreement. As the petition was filed more than 60 days but not over 150 days prior to the terminal date of the contract, the petition is timely filed, and consequently the agreement is not a bar to an election in this case." In New Yorker Fleet, Inc., et al., Case No. 2-RC-9970, the Em- ployer contends that its collective-bargaining agreement with New Yorker Taxi Workers Association, an intervenor herein, is a bar to an election in that case. The term of that agreement runs from Febru- ary 1, 1959, through January 31, 1961. It covers commissions, work- ing conditions, and fringe benefits of all taxicab drivers of the Employer. We find that this agreement is a bar to a representation election in New Yorker Fleet, Inc., supra, and the petition in that proceeding shall be dismissed. "At the close of the hearing, the Employers renewed motions to dismiss the petitions herein on the grounds that the Board (1) exceeded its authority , (2) deprived the Employers of due process of law, ( 3) violated the Constitution of the United States, (4) violated its own rules and regulations , ( 5) violated the Administrative Procedure Act, and ( 6) failed to apply its rules and regulations without discrimination 'or to apply said rules and regulations uniformly. Insofar as these motions relate to showing of interest, they are disposed of above . If the motions relate to other matters they lack specificity. Consequently, we find no merit in these motions and they are hereby denied. " Deluxe Metal Furniture Company, 121 NLRB 995, 1000. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Except as to the employees of New Yorker Fleet, Inc., we find that questions affecting commerce exist concerning the representation of certain employees of the Employers herein within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner requests units of "all taxi drivers working regu- larly at least three days a week, excluding watchmen and guards, mechanics, all clerical and maintenance employees, all taxi drivers working less than three days a week and all supervisory personnel within the meaning of Act." It contends that drivers working less than 3 days a week have an insufficient interest in the conditions of employment in the taxicab industry either to be included in the bar- gaining unit or to be eligible to vote for representatives. Otherwise, in agreement as to the requested units, the Employers contend that all regular part-time drivers should be included in the units and be eligible to vote.12 The Employer herein 13 operates from 30 to 500 taxicabs in the city of New York and environs, 2 shifts a day, 7 days a week. They em- ploy from 73 to 1,191 drivers working 5 or 6 days a week, and from 17 to 308 drivers working 1 through 4 days a week. These drivers are generally classified by the Employers as full-time drivers (working 12 The parties stipulated that casual employees and employees of individual cab owner- drivers shall be excluded from the unit . Accordingly, we will exclude them from the unit. 1s As the Petitioner waived further cross-examination and agreed to accept as true written statements of the Employers as to the nature of their taxicab operations, the hearing officer, during the course of the hearing , directed the Employers, over their objections , to submit such written statements in lieu of oral testimony . Contending that such procedure violated their rights under Section 7(c) of the Administrative Procedure Act and Section 102 66 of the Board's Rules and Regulations, Series 8, the Employers request that the case be remanded to permit them to present oral testimony as to the nature of their operations . We find no merit in these contentions. The adjudication requirements of the Administrative Procedure Act have no application to proceedings for certification of employee representatives . As the Petitioner waived its right to cross-examination and agreed to accept as true written statements of the Employers as to the nature of their operations , the Employers were not prejudiced by the requirement that they submit the evidence in question in writing. Accordingly, we deny the Employer's request that the case be remanded for the taking of oral testimony in this regard. On January 6, 1960, as Indicated above, the hearing officer directed all Employers to submit the aforesaid written evidence of operations . On January 18, 1960, the hearing officer directed that such written evidence be submitted within 6 weeks . On March 3, 1960, this deadline was extended until the close of the hearing, which occurred on April 12, 1960. At the close of the hearing, written evidence of operations had been sub- mitted for 16 of the Employers . The Employers objected to this procedure on the ground that the deadlines set afforded insufficient time for compilation and presentation of the written evidence As the Employers were given adequate opportunity to submit the aforesaid evidence, we find no merit in these objections . In view of our decision herein, which accords with the contentions of the Employers as to inclusion of regular part-time drivers , the Employers who did not submit written evidence as to the nature of their operations were, in any event, not prejudiced by the aforesaid limitations upon them with respect to the introduction of evidence. As the Petitioner did not establish that operations of other Employers in this proceeding differed in any respect from those of the 16 Employers who submitted evi- dence of their operations according to the aforesaid procedure , we make our findings as to the operations of all Employers in this proceeding upon the evidence submitted by the aforesaid 16 Employers. JAT TRANSPORTATION CORP. ET AL. 785 in the same cab each day), "steady extra" drivers (working full-time, but rotating to various cabs to relieve other drivers), and regular part-time drivers (working 1 through 4 days a week). At most of the Employers' garages, drivers working only 1 or 2 days a week work on Saturday or Sunday, or both. All Employers, except one, do not employ casual drivers. Most drivers who work for the Employers herein from 1 through 4 days a week have substantial length of service with a single Employer. A tabulation of such length of service of drivers working 1 through 4 days a week, for those Employers who submitted evidence regarding their operations,14 shows the following : 8 drivers had over 20 years' service; 15 drivers had 15 to 20 years' service; 56 drivers had 10 to 15 years' service; 92 drivers had 5 to 10 years' service; 447 drivers had 1 to 5 years' service; 183 drivers had 6 months to 1 year of service; and 172 drivers had less than 6 months' service. In addition to the above, 39 drivers, working 1 through 4 days a week, had service up to 1 year but the exact period was not given, and 67 additional drivers had service of undetermined length in excess of 1 year. Most of the drivers whose length of service is tabulated above worked 1 or 2 days a week, rather than 3 or 4 days a week, with the following 2 excep tions: of 308 part-time drivers (those working 1 through 4 days a week) at National Transportation Co., Inc. (Case No. 2-RC-9986), 129 drivers worked 1 or 2 days a week; and, of 118 part-time drivers at 57th Street Management Corp. (Case No. 2-RC-10290), 52 drivers worked 1 or 2 days a week. All drivers are paid 44 percent of gross revenues shown on the meter, except that two Employers pay 45 percent. Drivers working 1 or 2 days a week are paid the same commission rates as all other drivers; social security and withholding tax deductions are made on the same basis for all drivers. There are no differences in shifts or in hours worked between 1- and 2-day drivers, on the one hand, and other drivers. Supervision of drivers is the same regardless of number of days worked. Equipment operated is the same for all drivers. All drivers are hired by the same method and no Employer, except Vernon Operating Co., Inc. (Case No. 2-RC-9991), hires casual drivers. Most Employers pay a vacation or Christmas bonus to drivers work- ing in a range from 200 to 250 days a year. This precludes payment of such bonuses to drivers working 3 days a week as well as to those working only 1 or 2 days a week. Some Employers pay such benefits only to those drivers working 5 days a week. Another type of bonus is generally paid on a quarterly basis to drivers working 60 to 65 days per quarter year on the basis of 1 or 2 percent of gross revenues from 14 See footnote 13, supra. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bookings. This work requirement excludes all drivers except those working 5 or more days a week. Group life insurance coverage is generally provided by the Em- ployers for drivers working 5 days a week or more, thereby excluding drivers working 3 or 4 days a week as well as those working 1 or 2 days a week. The Petitioner contends that public policy of the city of New York requires the exclusion from the bargaining unit of drivers working only 1 or 2 days a week. For the reasons given in Terminal System, inc., supra, we reject this contention. Also, for the reasons set forth in Terminal System, Inc., supra, 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 Employers' drivers, a factor which, under Section 9 (c) (5) of the Act, may not control in the determination of the appropriate unit." 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 full-time and part-time drivers working for each of the Employers have substantially the same terms of employment and working conditions, perform the same type of work, use similar equip- ment, drive in the same geographical area, work under the same super- vision, receive the same rate of commission as compensation for their services, hold the same type of license from the city of New York, and are all subject to the authority of its hack bureau,18 we shall include in the units with the full-time drivers all the Employers' regular drivers working only 1 or 2 days a week, as well as those working 3 or 4 days a week, as we deem them to be regular part-time drivers,17 and they shall therefore be eligible to vote in the election herein.18 Accordingly, we find that the following employees of each of the Employers con- stitute units appropriate for the purpose of collective bargaining within the meaning of the Act : 15 Transcontinental Bus System , Inc., 119 NLRB 1840, 1844. 16 See Terminal System, Inc ., supra. 17 Decatur Transfer & Storage, Inc., 105 NLRB 633 , 636-637; The McMahon Trans- portation Company, 124 NLRB 1092 ; Brown Cigar Company , 124 NLRB 1435. The Employers in their brief suggest the following test for inclusion of drivers in the bar- gaining unit : " . . drivers who work at least one day a week for three weeks in the four week period preceding the election should be included in the bargaining unit. These may be drivers who worked a lesser number of days during this period who have demonstrated by past regularity that they have an interest in the determination of representation. Any driver who has worked at least one day in each of 14 weeks of the six-month period preceding the election , should qualify." We do not perceive any basis for departing from our policy of including all regular part-time employees in the bargaining unit Food Fair Stores of Florida, Inc, 120 NLRB 1669 , 1670-1671 ; necatur Transfer & Storage, Inc, supra " Sears Roebuck & Company, 112 NLRB 559, 569, footnote 28. JAT TRANSPORTATION CORP. ET AL. 787 All taxicab drivers, 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. [The Board dismissed the petition in Case No. 2-RC-9970.] [Text of Direction of Elections omitted from publication.] MEMBERS BEAN and JENKINS took no part in the consideration of the above Decision, Order, and Direction of Elections. APPENDIX A Case NO. Jat Transportation Corp. et al. ---------------------- 2-RC-9948 Real Cab Corp. et al. Central Maintenance Corp. et al. .-------------------- 2-RC-9949 Bonded Cab Corp. et al. Little Cab Corp. & Checker Garage Service Corp. et al. - 2-RC-9950 George's Taxi Service & Cadet Maintenance Co., Inc. et al. ------------------------------------------- 2-RC-9953 Dee Bee Garage Corp. et al. ------------------------- 2-RC-9954 Kroy Service, Inc. et al. --------------------------- 2-RC-9955 Clinton Taxi Corp. et al. -------------------------- 2-RC-9956 Londal Operating Corp. et al. ---------------------- 2-RC-9957 S.J.Z. Cab Corp. et al. ----------------------------- 2-RC-9960 Main Operating Corp. et al. ------------------------ 2-RC-9964 New Taxi Dispatch Corp. et al. ---------------------- 2-RC-9965 Ann Operating Corp. et al. ------------------------- 2-RC-9966 M & S Maintenance Corp. et al. ---------------------- 2-RC-9968 Rio Cab Corp. et al. ------------------------------- 2-RC-9969 New Yorker Fleet, Inc. et al. ----------------------- 2-RC-9970 Regis Maintenance Corp. et al. ---------------------- 2-RC-9971 Mardon Operating Corp. et al. --------------------- 2-RC-9972 Continental Cab Corp. et al. ------------------------ 2-RC-9973 Cab Transportation Corp. et al. -------------------- 2-RC-9974 Jofan Maintenance Corp. et al. -------------------- 2-RC-9975 Cab Management Corp. et al. ---------------------- 2-RC-9976 Jackson Maintenance Corp. et al. -------------------- 2-RC-9977 Level Maintenance Corp. et al. --------------------- 2-RC-9979 Chase Maintenance Corporation, et al. ---------------- 2-RC-9980 Columbia Operating Co., Inc. et al. ---------------- 2-RC-9981 Ramp Maintenance Corp. and Key Maintenance Corp. et al. ------------------------------------------- 2-RC-9982 A.A.R. Operating Co., Inc. et al. ------------------- 2-RC-9983 Marby Operating Corp. et al. ----------------------- 2-RC-9984 Metro System Corp. et al. -------------------------- 2-RC-9985 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case No National Transportation Co., Inc. ------------------ 2-RC-9986 Progress Service Corporation, et al. ---------------- 2-RC-9987 Super Operating Corp. et al. ---------------------- 2-RC-9988 Tedmar Service Co., Inc. et al. _______________________ 2-RC-9989 Vernon Operating Co., Inc. et al. ------------------- 2-RC-9991 Andrea Service Corp. et al. ----------------------- 2-RC-9992 Willow Maintenance Corp. et al. _____________________ 2-RC-9993 Celbert Garage Corp. et al. __________________________ 2-RC-9995 Butler Maintenance Corp. et al. -------------------- 2-RC-9996 Dynamic Operating Corp. et al. -------------------- 2-RC-9997 55th Street Taxi Garage, Inc. et al. __________________ 2-RC-9998 Eden Maintenance Corp. et al. ---------------------- 2-RC-10000 Forest Maintenance Corp. et al. ______________________ 2-RC-10001 FEM Corp. et al. --------------------------------- 2-RC-10002 Trans Maintenance, Inc. et al. ---------------------- 2-RC-10003 LEN Service Corp. et al. --------------------------- 2-RC-10005 Transportation Maintenance, Inc. et al. -------------- 2-RC-10007 Haso Maintenance Corp. et al. ---------------------- 2-RC-10008 Cab Operating Co., Inc. et al. _______________________ 2-RC-10013 Phoenix Taxi Corp. et al. -------------------------- 2-RC-10015 Cornell Maintenance Corp. et al. -------------------- 2-RC-10016 Frenat Service Corp. et al. ------------------------- 2-RC-10017 C & J Garage Corp. et al. ___________________________ 2-RC-10018 Gaar Service Corp. et al. ____________________________ 2-RC-10019 Yankee Service Corp. et al. _________________________ 2-RC-10021 Yale Service Corp. et al. ____________________________ 2-RC-10022 River Service Corp. et al. Finmore Cab Corp. et al. 2-RC-10023 Tyrone Service Co., Inc. et al. EN Operating Corp. et al. -------------------------- 2-RC-10024 Helen Maintenance Corp. et al. --------------------- 2-RC-10025 Bebe Operating Corp. et al. ------------------------ 2-RC-10027 Jayson Operating Corp. et al. _______________________ 2-RC-10028 57th Street Management Corp. et al. _________________ 2-RC-10029 Hotpoint Division, General Electric Company and Peter J. Kornewich. Case No. 13-CA-3251. August 24,1960 DECISION AND ORDER On April 11, 1960, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and 128 NLRB No 96.