City Transportation Co.

-814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Because of the Respondent's interference with and coercion of the voters in the election of March 18, 1960, thereby depriving voters of a free choice in the election, the election should be set aside. [Recommendations omitted from publication.] City Transportation Company and C. O. Whorton, C. B. Smith, H. C. Jordan, S. W. Slakey, E. C. Slakey, M. L. Wilson, and John T. Smith. Cases Nos. 16-CA-1385-1, 16-CA-1385-2, 16- CA-1385-3, 16-CA-1385-4, 16-CA-1385-5, 16-CA-1385-6, and 16-CA-1385-7. May 26, 1961 DECISION AND ORDER On January 11, 1961, Trial Examiner John H. Dorsey 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 take certain affirmative action, as set forth in the copy of the Inter- mediate 'Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report- and a supporting brief. 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , City Transporta- tion Company, Dallas, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discharging or otherwise penalizing or disciplining any of its employees because they have engaged in concerted activities for the purpose of securing a change in terms and conditions of employ- ment or for other mutual aid or protection. - (b) Keeping under surveillance the meeting place , meetings, and concerted activities of its employees engaged in for the purpose of collective bargaining or other mutual aid or protection. 131 NLRB No. 105. CITY TRANSPORTATION COMPANY 815 (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or- other mutual aid or protection, or to. refrain from any or all such; activities. 2. Take the following affirmative action which the Board finds will', effectuate the policies of the Act : (a) Offer C. O. Whorton, C. B. Smith, H. C. Jordan, S. W. Slakey,. E. C. Slakey, M. L. Wilson, and John T. Smith immediate and full reinstatement as taxicab drivers, without prejudice to their seniority- or other rights and privileges, and make each of them whole for any loss of earnings (including tips) each of them may have suffered by- reason of Respondent's unfair labor practices in the manner set forth in the section of the Intermediate Report entitled "The Remedy," and in accordance with the formula of Board policy set out in F. W. Woolworth Company, 90 NLRB 289. (b) Preserve and, upon request, make available to the Board or its, agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary for the determination of the amount of backpay due under the terms of this Order. - (c) Post at its Akard Street and Oak Cliff, Dallas, Texas, garages,_ copies of the notice attached hereto marked "Appendix." 1 Copies of the notice, to be furnished by the Regional Director for the Six- teenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately' upon receipt thereof, and be maintained by it for a period of 60 con- secutive days thereafter, in conspicuous places, including all places: where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or, covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in, writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. 1 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the- words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor - Relations Act, as amended, we hereby notify you that : 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise penalize or discipline any of our employees because they have engaged in concerted activi- ties for the purpose of securing a change in terms and conditions of employment or for other mutual aid or protection. WE WILL NOT keep under surveillance the meeting place, meet- ings, and concerted activities of our employees engaged in for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organiza- tion, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer C. 0. Whorton, C. B. Smith, H. C. Jordan, S. W. Slakey, E. C. Slakey, M. L. Wilson, and John T. Smith immediate and full reinstatement to their former position, as taxicab drivers, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay (including tips) each may have suffered by-reason of the discrimination against them. CITY TRANSPORTATION COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by each of the individuals named in the caption, each filed on June 27, 1960, against City Transportation Company, herein called Respondent, the General Counsel for the National Labor Relations Board consolidated the cases for hearing and issued complaint on August 9, 1960. The complaint alleges that each of the individuals named in the caption, herein collectively called dischargees, were discharged by Respondent in violation of Sec- tion 8(a) (1) and (3) of the National Labor Relations Act, as -amended, herein called the Act. Respondent filed an answer raising issue as to jurisdiction and denying the com- mission of unfair labor practices as alleged. Prior to hearing it filed with the Regional Director a plea to the jurisdiction which the Trial Examiner ruled on at the hearing. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Dallas, Texas, on September 20 and 21, 1960.1 General Counsel and Respondent were each represented by counsel. Each of the dischargees also entered an ap- pearance but took no part in the proceedings other than as witnesses. The parties were afforded full opportunity to be heard, to introduce relevant evidence, to pre- sent oral argument, and to file briefs. They waived oral argument. They filed briefs. 1 All dates herein are in the year 1960 unless otherwise indicated. CITY TRANSPORTATION COMPANY 817 Upon consideration of the entire record and the briefs of the parties, and upon observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is and has been, at all times material hereto, a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business at 610 S. Akard, in the city of Dallas, Texas, and is now and has been at all times herein mentioned continuously engaged at said place of business in the operation of a taxicab business. Respondent stipulated that its gross volume of business for 1959 was in excess of $2,500,000; it operates approximately 380 taxicabs and approximately 34 lim- ousines; in the preceding 12 months it purchased approximately 100 taxicabs, the approximate value of each being approximately $2,000; it purchased automobile parts, in the same period, in the amount of about $25,000; and it services the Dallas commercial airport and union railroad terminal. I find that Respondent is engaged in "commerce" within the meaning of Section 2(6) and (7) of the Act. Carolina Supplies and Cement Co., 122 NLRB 88; Jat Transportation Corp., et al., 128 NLRB 95. II. THE ISSUES The taxicab drivers of Respondent being dissatisfied with their compensation and required hours of work, circulated a petition, starting in April, to present to Respond- ent. The petition was signed by over 200 drivers. From May 1 through the early part of June the petition was presented to and discussed with officials of Respondent. Respondent refused to effectuate the changes sought by the drivers. The drivers then arranged a meeting for the evening of June 22. At the time of the meeting various of Respondent's supervisors were so located as to indicate surveillance. The issues pare: 1. Whether the employment of the dischargees was terminated by Respondent because of their having engaged in a concerted activity protected by Section 7 of the Act in violation of Section 8(a) (1) and (3) of the Act.2 2. Whether Respondent engaged in surveillance in violation of Section 8(a) (1) of the Act 3. Whether Respondent's "street supervisors" are supervisors within the meaning of Section 2(11) of the Act. III. THE UNFAIR LABOR PRACTICES A. The conceited activity and surveillance Respondent pays its regular drivers on a straight commission basis graduated on length of service and total fares. The regular workweek for the drivers is 12 hours- a day, 6 days a week. If a driver works less than a full week his commissions are reduced. by 10 percent. If a driver works 51 full weeks in a year he is given a 1-week vacation with pay. These are the working conditions with which the drivers were dissatisfied 3 About April 20, one of the drivers, C. 0. Whorton, prepared and circulated the following petition: We the Under Sign employed by the City Transportation Company. We ask said Company for a five day week-no compulsery six days. We agree to see that no unfairness come to any driver, and agree to do what is necessary to get this passed. About May 1, when Whorton reported to work there was a "hold" ticket for him which meant he was not to take out his taxicab until he got clearance. In this case he was to see Elmer Potts, Respondent's personnel manager. Potts asked Whorton, "What's all this about a petition I hear you're getting up. . . . I heard there was 'The Trial Examiner finds it unnecessary to decide whether Respondent's alleged con- duct was in violation of Section 8(a) (3) as well as Section 8(a) (1) The remedy to effectuate the policies of the Act would be identical in either case. Boyles Galvanizing Company of Colorado, 121 NLRB 1373 8 Respondent also employs part-time drivers who are compensated on a flat 35 percent of fares. 599198-62-vol. 131-53 11 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD something in there about the Union or the dispatchers." Upon Potts' request Whorton showed him the petition. Then in the succeeding period into the first part of June, the petition was presented to Respondent's president, L. C. Burch; general manager, Rubin Lebowitz; and treasurer and controller, Clarence W. Eltrich. Respondent said it could not comply because they had a shortage of drivers and the 5-day week would worsen that condition; and that Respondent was faced with poten- tial competition in that the Ace Cab Company had, in May, filed with the city of Dallas a petition for a franchise or permit to operate in the city. Obtaining no satisfaction from Respondent, the drivers decided to hold a meeting at the Travis Hotel at 7:30 p.m., June 22. Whorton was the prime mover. The word was passed among the drivers. On the day of the general meeting, that it was going to be held was generally known by Respondent's employees including supervisory personnel. On June 22, Respondent's street supervisor, Francis J. "Sarge" Walsh, on his day off, parked his car and remained in it in a position to watch both entrances to the hotel. He gave the incredible testimony that he just happened to go out for a ride and just happened to park in that location from 7 p.m. until after 7:30 p.m. Rubin Lebowitz, general manager; Ed Lusby, assistant shop foreman; and George Letendre, manager of Respondent's Oak Cliff division, were also about the hotel so they could observe what drivers attended the meeting 4 That the aforenamed supervisors were gathered in the vicinity by coincidence is incredible. From the foregoing, I find, that the drivers were engaged in a concerted activity protected by Section 7 of the Act; and Respondent engaged in surveillance in viola- tion of Section 8(a),(1) of the Act. B. The issue as to supervisors Respondent contends that its street supervisors and assistant shop foreman are not "supervisors" within the meaning of Section 2(11) of the Act. The evidence establishes that Ed Lusby, the assistant shop foreman, has direct supervision over the rack boys and the responsibility to direct them. Further, in the absence of the shop foreman he acts in that capacity. I find that Lusby is a "super- visor" within the meaning of Section 2(11) of the Act. The street supervisors, who are paid a monthly salary, inter alia, have control of the drivers when they are on the streets. They can direct them from location to location. They convey to the drivers directions and rules emanating from policy- making supervisors . They can direct a driver to take his cab into the terminal, which in effect is laying him off. They make reports to management concerning the conduct and activities of the drivers while they are on the streets. The manage- ment relies on these reports in discipling and discharging drivers. In making the reports the street supervisors exercise their independent judgment. I find that the street supervisors are "supervisors" within the meaning of Section 2(11) of the Act. C. The discharges To establish the perspective to analyze the discharges it must be borne in mind that Respondent's officers testified that it was always short of drivers (taxicabs had to stay on the lot unused); it was difficult to get qualified drivers; and there was a high percentage of turnover among the drivers. C. O. Whorton: He had worked as a driver off and on for a period of about 15 -years, during which period he had twice quit. His last employment to the date of his discharge covered approximately 8 months. He was the known leader in the concerted activity described supra. On June 20 when Whorton reported to work, about 6 a.m., there was a"hold" ticket which would not permit him to take his taxicab out until he saw Potts, per- sonnel manager. When Potts arrived he told Whorton, "I've got your check made out . we're going to have to let you go from the company." When Whorton asked the reason, the reply was "just unsatisfactory work." When Whorton pressed for a reason Potts said. "You took off an extra day you didn't have coming to you." It is unbelievable that this was the cause of the discharge for the following reasons: (a) Respondent failed to establish that it-was .its policy to discharge a driver for taking a day off; (b) Whorton was an experienced driver and Respondent admitted that it was short of drivers and had difficulty in getting them; and (c ) Whorton by taking the day off forfeited 10 percent of his commissions for the week to Respondent. 4 There is conflicting evidence as to whether President Burch was also there This need _not be resolved CITY TRANSPORTATION COMPANY 819 Respondent sought to defend by offering evidence of disciplinary action against Whorton many months previous . This was remote in point of time and impressed the Trial Examiner that Respondent was desperately trying to find justification for the discharge. I find that the reasons for the discharge advanced by Respondent are a pretext and that it discharged Whorton in violation of Section 8(a) (1) of the Act. Cf . Inter-City Advertising Company of Greensboro, N.C., Inc., 89 NLRB 1103 ; International Furniture Company, 98 NLRB 674 ; Wiese Plow Welding Co., Inc., 123 NLRB 616; and Allure Shoe Corporation, 123 NLRB 717. C. B. Smith: Smith worked as a driver for over 5 years and had received vaca- tions for 5 years, meaning he had worked in each of these years 51 weeks 12 hours a day, 6 days a week. He was used by Respondent to break in many student drivers. He signed the petition quoted supra. On June 24 when he reported for work he had a "hold" card to see Letendre, manager of Respondent's Oak Cliff division.5 Letendre told him he was fired "Because of your unsatisfactory work." When Smith asked for a reason Letendre referred to a report from a street supervisor that Smith had failed to open the door for a lady passenger and was not paying attention to his radio . At the time of this incident Smith had a student driver with him. The lady involved testified that she was in a hurry and did not remember whether she or Smith opened the door, but he was not discourteous and she had no complaint . I find that the report made by the street supervisor was not true, Respondent acted on it without permitting Smith to defend himself, and this report was used as a pretext. Further, I find that Smith was discharged in violation of Section 8 (a) (1) of the Act.6 H. C. Jordan : He was employed as a driver from September 15, 1955, signed the petition, and attended the meeting in the Travis Hotel . On June 21, he applied for and was granted sick leave for a week. On June 24, Jordan went to the Respondent 's office to get his check . When Potts, the personnel manager, handed him his check he said, "Jordan, we're going to have to cut you off from the Company." When Jordan asked why, Potts replied, "Your work is unsatisfactory." Jordan then went to the office of Eltrich , treasurer and con- troller, and asked for a reason for his discharge. Eltrich evaded giving an answer, saying, "I'll have to check into it." This ended Jordan's contact with Respondent. The Respondent's defense is that Jordan got in arguments with the dispatchers.? I find that Jordan was discharged in violation of Section 8(a)(1) of the Act. S. W. Slakey: He was employed as a part-time driver for about 4 years , signed the petition, and attended the meeting at the Travis Hotel. At 6 a.m, on June 24, he found a "hold" ticket on his taxicab requiring him to see Potts, the personnel manager. When Potts arrived he handed Jordan two checks for his commissions and discharged him saying he "just wasn't satisfactory." Re- spondent sought to defend by establishing that Slakey was not taking radio calls. I find that this defense has no merit. Further, I find that Slakey was discharged in violation of Section 8(a) (1) of the Act. E. C. Slakey: He was employed for 11 days from June 13 to 23. He attended the meeting at the Travis Hotel. Slakey worked on June 23 . When he returned to the garage he was told that Potts, personnel manager, wanted to see him in the office. It is uncontroverted that when Slakey reported to Potts the latter said , "Well, I've got the wrong man. . I just, through mistake, got you instead of your brother." Then Potts proceeded to pay him off. When he asked for a reason Potts said, "Your work is unsatisfactory." Respondent tried to establish at the hearing that Slakey was laid off because: (1) His trip sheets showed he made no dispatched calls; and (2) he did not know the city. The first will be discussed hereinafter . As to the second, Slakey had lived in Dallas for 44 years. I find that in its haste to discharge a group of drivers, employees of long stand- ing, it was done to instill fear of reprisal in its other employees . Respondent was hoisted by its own petard when it mistakenly fingered E. C. Slakey for discharge. Having gone out on a limb the Respondent thought it necessary to discharge him. The law is well established that such action violated the Act. I find that Respond- ent discharged E. C. Slakey in violation of Section 8(a) (1) of the Act. B Smith is a very outspoken individual . He testified , without contradiction , that he told the street supervisors "what we need around here is somebody with a good union, or something to stop this , cause we can 't afford to pay these fines and stuff." 6 See cases cited in the Whorton case, supra Theco apply to all the discharges 4 The relationship between dispatchers , the drivers making "water hauls" and "grocery calls," is discussed infra. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. L. Wilson: He was employed as a driver for about 10 or 11 years. He signed the petition and attended the meeting at the Travis Hotel. When Wilson reported for work on June 24, he had a "hold " ticket to see Letendre, manager of the Oak Cliff division. Letendre told him, "I'll have to let you go." When Wilson asked for a reason he was told, "Well, unsatisfactory work." Respondent's defense is that Wilson told a street supervisor that he did not want to take "grocery calls" and he would not take them . As shown hereinafter this defense is without merit. I find that Wilson was discharged in violation of Section 8(a)(1) of the Act. John T. Smith: He had been employed as a driver, off and on, for about 16 years; the last time for about 11/2 years as a part-time driver. He signed the petition and attended the meeting at the Travis Hotel. On June 24, when Smith reported for work, he had a "hold " ticket to see Potts, personnel manager. He was discharged. The reason : "Your service is unsatisfactory." The only defense advanced by Respondent was that Smith's percentage of dis- patched calls to pickup was unsatisfactory. This is discussed infra. I find .that Smith was discharged in violation of Section 8-(a) (1) of the Act. D. Respondent's general defense Throughout the record Respondent advanced the following as what might be termed a general defense: Dispatched calls versus pickups: A dispatched call is a radio communication to a driver to pick up a passenger at a designated place. A pickup is taking on a fare from a stand or while cruising . Respondent's contention is that the dischargees did not keep their radios on or call the dispatcher as to their whereabouts so they could take dispatched calls. Further, that there was bickering between the dispatchers and the drivers. As to the dischargees , Respondent introduced their trip sheets to show the per- centage of dispatched calls to total trips. These documents have no evidentiary value in that they do not show whether the driver radioed the dispatcher as to his location and availability or that he refused to make a dispatched call. Respondent did not prove that any of the dischargees refused to keep their radios on and made or failed or refused to make dispatched calls as directed. While Respondent admitted that a ticket was made out by the dispatcher for every call to every driver, it failed to produce such tickets-the best evidence-in support of its contention. As to Respondent's past practice as to discharging drivers for what it advanced as an unfavorable relationship between dispatched calls and pickups, discharges for horn blowing, and failing to open a door for a fare , the Trial Examiner directed that the parties review Respondent's records for the preceding 6 months and submit a stipulation to be incorporated in the record as Trial Examiner's Exhibit No. 1. The stipulation was submitted and is hereby made part of the record. This stipu- lation fails to establish any policy on the part of Respondent to discharge drivers for the reasons hereunder scrutiny. Another defense was bickering between dispatchers and the drivers. Rightly or wrongly, the drivers thought the dispatchers engaged in favoritism. This need not be resolved. The record makes it clear that such bickering was a daily and expected happening in Respondent's operations. Then there was the contention that some of the dischargees did not like or would not take "grocery calls" and resented being dispatched to a "water haul." A "grocery call" was a dispatch to pick up a fare or groceries or both at a grocery store. Often when the driver responded the fare was not there. Then,, according to Respondent's rules he had to radio the dispatcher and wait in his taxicab until a street supervisor arrived and verified that the fare could not be located. A "water haul" is a dispatcher call to a given location and upon arrival the driver finds no fare. It must be borne in mind that the taxicab drivers herein involved work on a straight commission . They are hustling to make a living. In certain situations the relationship betwen Respondent and a driver may create a conflict in interest. This Respondent must recognize since it alone established the conditions of employment. It would be unreal to conclude that drivers would not be disturbed by loss of earnings resulting from a "water haul" or waiting for a street supervisor because the fare cannot be located at a "grocery haul." That drivers will voice their displeasure in such situations is an expected normal reaction. Persuasive are the following facts: (a) Respondent had knowledge of the con- certed activities of the drivers; (b) Respondent could not hire enough drivers to man FETZER TELEVISION, INC. 821 its fleet of taxicabs ; (c) all but one of the dischargees were experienced drivers long employed by Respondent; (d) the timing of the discharges ; (e) the reason given for the discharges ; and (f ) the gossamer defense advanced by Respondent. Conclusion Upon the foregoing, I find that the employment by Respondent , of the dischargees was terminated; and Respondent engaged in surveillance in violation of Section 8(a)(1) as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent in violation of Section 8(a)(1) of the Act set forth in section III, above, occurring in connection with the operations of 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 Respondent engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inter alia, since a source of income for taxicab drivers is tips, I shall recommend that the dischargees be reinstated by Respondent and made whole for any loss of commissions or tips which they suffered as a result of their respective discharges, less any amount earned from other sources in the period from the date of discharge to reinstatement to their former jobs as taxicab drivers. Since Respondent admits that it is always short of drivers, no question is presented concerning displacement of drivers hired since the respective dates of the discharges. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce as defined in Section 2(6) and (7) of the Act. 2. The dischargees were discharged by Respondent, in violation of Section 8(a) (1) of the Act, for having engaged in concerted activities guaranteed as protected legal rights by Section 7 of theAct. 3. Respondent engaged in surveillance of its employees in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Fetzer Television, Inc. and National Association of Broadcast Employees and Technicians , AFL-CIO. Case No. 7-CA-2736. May 29, 1961 DECISION AND ORDER On February 23, 1961, Trial Examiner Owsley Vose issued his In- termediate 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 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this 131 NLRB No. 113.