Mound City Yellow Cab Co.

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD donees to believe that it was given to influence their vote, is conduct which interferes with employee free choice and is a ground for setting aside the election. We believe that the gifts made by the Employer herein constituted such conduct and are therefore a basis for setting aside the election. Accordingly, we shall direct the Regional Director to open and count the ballots of Truelove, Lee, Aven, Miller, and Walsh, and to prepare a revised tally of ballots. In the event that the results according to the revised tally indicate that a majority has not voted for the Petitioner, we shall direct the Regional Director to set aside the election and to hold a new election. [The Board directed that the Regional Director for the Twenty- sixth Region shall, within 10 days from the date of this Supplemental Decision and Direction, open and count the ballots of John E. True- love, Earnest Lee, Jr., John R. Aven, Willie B. Miller, and Henry R. Walsh, and serve upon the parties a revised tally of ballots, including therein the count of said challenged ballots and issue a certification to the Petitioner if it receives a majority of the votes cast.] [The Board further directed that, if the Petitioner has not received a majority of the votes cast, the Regional Director shall set aside the election and conduct a second election among the employees in the unit found appropriate, as early as possible, but not later than 30 days from the date on which the election was set aside.] Mound City Yellow Cab Company and Taxicab Drivers Inde- pendent Union of Greater St. Louis, Petitioner . Case No. 14-RC-3908. July 28, 1961 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Thomas W. Seeler, 'hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are affirmed. Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Members Leedom, Fanning, and Brown]. Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act.' 1 The Employer and Petitioner admit the Board's jurisdiction However, Local Union No 405, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called Local 405, declined to concede jurisdiction As the record shows that the Employer annually does a gross volume of business in excess of $500,000, and makes purchases indirectly from out of State in excess of $50,000 132 NLRB No. 36. I MOUND CITY YELLOW CAB COMPANY 485 2. At the hearing, Local 405 was.allowed to intervene on the basis of a contract interest. Both the Employer and Local 405 refused to admit that Petitioner is a labor organization. In turn, the Petitioner refused to stipulate that Local 405 is also a labor organization. The record shows that both Petitioner and Local 405 admit employees to membership and exist for the purpose of dealing with employers con- cerning wages, hours, and conditions of employment, and each is there- fore a labor organization as defined in the Act .2 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning, of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all the Employer's taxicab drivers located in St. Louis, Missouri. The Employer con- tends that the drivers are independent contractors and not employees within the meaning of the Act. The Employer is engaged in the taxi business in St. Louis, Missouri, under the name of Yellow Cab. It owns 40 cabs which it rents to 135 driver-renters; it has contracts with 90 driver-owners of Yellow Cabs. All cabs whether owned or rented are operated under the Em- ployer's franchise, are painted a distinctive color, and carry the name "Yellow Cab." The driver-owners own their cabs and pay the Em- ployer a fee for liability insurance, radio equipment, dispatching service, and use of the Employer's franchise. Driver-renters pay a daily fee for the same services. All drivers are furnished a copy of an "Operational Manual for Drivers" with which they must become familiar. The manual prescribes that uniform caps must be worn, requires that drivers must report for duty 10 minutes in advance of starting time, prescribes the method of operating the taxicab, and various other rules. The manual prohibits smoking, drinking intoxi- cants, and placing bets. In addition to the foregoing, the Employer prescribes the rates to be charged passengers, requires that, except in emergencies, gasoline be purchased from it; requires that when a taxi- cab answers a radio dispatch call it accept the job assignment, re- quires that drivers work no more than a 12-hour shift, and at least 2 Sundays per month. The Employer prescribes that no cab may be taken more than 25 miles from the city of St. Louis, maintains inspec- tors to enforce safety rules and to inspect cabs for cleanliness, and sells advertising which must be carried on all cabs whether or not they are privately owned. It may discipline either driver-owners or driver- renters for violations of these rules. However, it does not make social security or income tax deductions. annually, we find that it is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction herein. Carolina Supplies and Cement Co., 122 NLRB 88, footnote 5 'Sabine Towing Company, Inc, 126 NLRB 61. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has frequently held that in determining the status of persons alleged to be independent contractors, the Act requires the application of th,; "right of control" test.' Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished the rela- tionship is one of employment, and where control is reserved only as to the result sought the relationship is that of independent contractor. On the basis of the entire record it is clear that both the driver-owners and driver-renters do not possess the independence of action as to the manner and means of accomplishing their work which is an essential characteristic of an independent contractor. Accordingly, we find the driver-owners and driver-renters are employees within the meaning of Section 2(3) of the Act,4 and we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers of taxicabs at the Employer's St. Louis, Missouri, place of business, excluding all other employees, office clerical employees, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 3 Albert Lea Cooperative Creamery Association, 119 NLRB 817, and cases cited in footnote 18. 4 See, Albert Lea Cooperative Creamery Association, supra; Nu -Car Carriers, Inc, 88 NLRB 75. Brown and Root, Inc., Wunderlich Contracting Company, Peter Kiewit Sons Company, Winston Bros. Company, David G. Gordon, Condon-Cunningham Co., Morrison-Knudson Com- pany, Inc., J. C. Maguire & Company, and Chas. H. Tompkins Co., doing business as joint venturers under the names of Ozark Dam Constructors and Flippin Materials Co. and Fort Smith, Little Rock & Springfield Joint Council , A.F.L. Case No. 26-CA-111.1 July 31, 1961 SUPPLEMENTAL DECISION AND ORDER On June 27, 1952, the Board issued a Decision and Order in the above-entitled case, finding that Respondents had discriminated against certain named employees in violation of Section 8 (a) (1) and (3) of the Act? Thereafter, the Board's Order was enforced-in part by the United States Court of Appeals for the Eighth Circuit, and a decree was entered on September 18, 1953, against Respondents doing business as joint venturers under the name of Ozark Dam Con- 'Formerly Case No 32-CA-111. 2 99 NLRB 1031 . On August 15, 1952, the Board issued an Order Correcting Decision and Order, hereinafter attached as Appendix A. 132 NLRB No. 38.