Checker Cab Co.

CHECKER CAB COMPANY AND ITS MEMBERS 583 2. New York Mailers' Union No. 6, International Typographical Union, AFL-CIO, is not entitled by means proscribed by Section 8 (b) (4) (D) to force or require News Syndicate Co., Inc., to assign the operation of belt #2, during mail runs, to employees engaged as mailers who are currently represented by New York Mailers' Union No. 6, International Typographical Union, AFL-CIO. Newspaper and Mail Deliverers' Union of New York and Vicinity is not entitled, by means proscribed by Section 8 (b) (4) (D), to force or require News Syndicate Co., Inc., to assign the operation of belt #1, during mail runs, to employees engaged as deliverers who are currently represented by Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent. 3. Within 10 days of the date of this Decision and Determination of Dispute, Newspaper and Mail Deliverers' Union of New York and Vicinity, Independent, and New York Mailers' Union No. 6, Interna- tional Typographical Union, AFL-CIO, shall notify the Regional Director for the Second Region in writing, whether or not they will refrain from forcing or requiring News Syndicate Co., Inc., by means proscribed by Section 8(b) (4) (D), to assign the work in dispute in a manner inconsistent with the provisions of (1) above. Checker Cab Company and its Members and Local 10, Trans- portation Services and Allied Workers, Seafarers Interna- tional Union of North America, AFL-CIO, Petitioner. Case No. 7-RC-5346. March 18, 1963 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 Joseph Kulkis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. Checker Cab Company is a nonprofit membership corporation, whose members own and operate taxicabs in the city of Detroit. The principal corporate purposes of Checker, as stated in its charter, are to provide the city of Detroit with an efficient and systematic taxi- cab service, to enable its member taxicab owners to associate for mutual benefit, and to afford a means by which persons engaged in rendering cab service may improve operating procedures and practices and main- tain suitability of equipment. 1 The request for oral argument made by the 286 members of Checker is hereby denied, since the record, including the briefs , adequately sets forth the issues and the positions of he parties. 141 NLRB No. 64. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties stipulated at the hearing that during the calendar year of 1961 there were approximately 286 owner-operators of Checker cabs who were either senior or associate members of Checker,' and that in the course of operating approximately 900 cabs 3 owned by the members, the combined gross revenue received as fares for taxicab services approximated $7,000,000. Of this total, approximately $250,000 was received as fares from customers transported to and from passenger terminals engaged in interstate commerce. Individually, however, none of the owner-operators had a gross revenue of $500,000' Checker and its members contend that the petition herein should be dismissed inasmuch as each of the members in an individual employer, no one of which meets the Board's jurisdictional standards for the as- sertion of jurisdiction. They also contend that Checker is not an em- ployer of the Checker Cab drivers, and that no multiemployer associa- tion of Checker members exists. There has been no prior collective bargaining. To conduct its operations, Checker employs approximately 15 em- ployees, none of whom is sought to be represented herein, and finances its expenses through the collection of annual dues from each of its members, amounting to more than $377,000. Membership in Checker entitles an owner-operator of taxicabs to display prominently on his cabs a distinctive black and white checkerboard design and the words "Checker Cab." In addition, each taxicab owned and operated by a Checker member bears for purposes of record and instant identifica- tion a numerical designation assigned by Checker. The services ren- dered by Checker to its members include a radio dispatch system, the ordering in bulk of certain forms and pamphlets which its mem- bers distribute to all drivers, the necessary arrangements for advertis- ing on Checker cabs, and the bookkeeping in connection with Checker charge accounts. In the performance of these services, Checker issues checks under its name and maintains several bank accounts. A study of the record as it relates to the employment conditions of the employees sought to be represented herein reveals the following : All applicants for employment must first be screened by a Checker employee at Checker's central office. If the particular applicant is deemed satisfactory, he is then referred to one of the members who may be seeking additional drivers. It is clear that each of the members hires and discharges his own drivers, if any, bargains individually with his drivers regarding wages 2 An associate member is one who owns from one to three cabs ; a senior member is one who owns more than three cabs. 8 It appears that there are 40 locations in the city of Detroit out of which Checker cabs operate. A The Board applies the $500,000 standard to taxicab companies , which it considers for purposes of jurisdiction as retail enterprises Caroitina Supplies and Cement Co., 122 NLRB 88. CHECKER CAB COMPANY AND ITS MEMBERS 585 and hours of employment; has the exclusive right to direct his drivers where to operate; maintains his own payroll records; withholds social security and Federal tax payments from his drivers; purchases his own cabs and the insurance on these cabs; pays unemployment com- pensation insurance; carries workmen's compensation insurance for his drivers; and is alone responsible for the care and maintenance of his cabs. On the other hand, it is clear that Checker exercises substantial con- trol over each member's drivers in their day-to-day conduct. Upon commencing his employment, a new driver receives a copy of both the Checker Cab Driver's Manual and "Things You Should Know" (also bearing the name of Checker), which set out the rules and regulations for drivers and which have been drawn up and approved by a majority vote of the members. The former booklet prescribes the method of operating the cab generally and includes instructions as to personal cleanliness, driver courtesy to passengers, and how to cope with any unusual circumstances. The latter manual prescribes, inter alia, that uniform caps must be worn and that certain articles of clothing may not be worn; it prohibits smoking, fighting, drinking intoxicants, push- ing a car with a cab, and picking up another fare while there is a passenger in the cab; it states that the driver first up on stand must answer the callbox, and that a passing driver must stop and answer the telephone at all empty cabstands. In addition, drivers are required by the rules to have the cabs inspected every month, to check out with a supervisor (a Checker employee) before going beyond certain lim- its, to refrain from lounging in the rear of their cabs, and to lock their cabs whenever leaving them. In all, there are 39 rules which Checker issues for cab drivers to follow. Checker also maintains a board of review which is composed of certain senior members who have been elected by the membership. The board meets every week to consider complaints against drivers. The complaints may have been received from roadmen (starters employed by Checker), the police, other drivers, members, or the public. As stated above, the 286 members of Checker operate approximately 900 cabs in the city of Detroit, and each of these cabs is clearly dis- tinguished by a black and white checkerboard design and the words "Checker Cab." Thus, to the public at large, Checker appears, and it does in fact operate, as a single integrated enterprise, with its radio dispatching service, 40 call stations and other common services, and it is Checker, not any individual member, whom the public relies upon to meet its transportation needs. Particularly in view of the fact that some $7,000,000 was received as fares by Checker cabs in 1961, includ- ing about $250,000 received from customers transported to and from passenger terminals engaged in interstate commerce, the effect upon 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce of a work stoppage by Checker cab drivers would clearly be substantial. It is apparent from the evidence that in order to assure the continu- ance of a common public image and an effective operation as an inte- grated enterprise, the members of Checker have surrendered to Check- er a considerable measure of control over the employment conditions of the drivers employed by each member. As set forth previously, each prospective driver is first screened at the Checker office before being referred to a member for hire. In this manner, drivers who appear un- desirable for any reason are discouraged by Checker in their quest for employment. Those who are referred are given copies of the Checker Cab Driver's Manual and of "Things You Should Know," and are thus immediately apprised of Checker's rules and regulations govern- ing their conduct as Checker drivers. Also impressed upon them at the commencement of their employment is the fact that Checker road- men may report them for conduct violative of any of the multitude of rules they are expected to follow, and that a reported violation will cause them to be brought before the Checker board of review. Two drivers testified that they had in fact been disciplined by the board for violations. Although the president of Checker stated at the hearing that the board's function was merely to recommend discipline to the member who employed the driver, and that the member was free to reject the recommendations, we note that the bylaws of Checker pro- vide that Checker's board of directors may expel any member from the organization for cause. Since it is obviously beneficial to each member that all drivers be required to adhere to the jointly agreed-upon rules, we strongly doubt that any member would disregard the recommenda- tions made by the board of review with respect to his drivers. It is thus quite apparent that the members of Checker recognize both the need for, and the benefit from, uniformity of control which Checker alone can exercise over all the drivers, and that the members accordingly share control of their drivers with Checker. Thus we in turn are merely recognizing the pattern established by the parties, without in any way changing the manner in which they have sub- divided such control as between the individual cab owner and Checker.' Under all the circumstances, and particularly in view of the facts that the operation of Checker cabs is represented to the public as one integrated enterprise and that Checker is authorized by its members s Our dissenting colleagues concede that Checker is an "association of independent owner-operators for their mutual advantage." The dissent, however, concludes that the mutuality of their interest does not extend to labor relations . In view of the extensive evidence set forth above as to the nature and degree of control exercised by Checker over the employees of its members, we are satisfied that mutuality does exist in this area suffi- cient for our finding that Checker and its members are engaged in a joint venture. Con- trary to the dissent, our decision does not purport to establish a "multiemployer bargain- ing association ." Having elected to subject their employees to regulation on a joint basis, the employers within Checker must likewise accept the statutory right of their employees to join together tfor the purposes of collective bargaining. CHECKER CAB COMPANY AND ITS MEMBERS 587 to exercise a substantial degree of control over the drivers of each of its members for this purpose, we find Checker and each of its members to be joint employers in a common enterprise-the operation of Checker cabs-and therefore deem it appropriate to combine the gross revenues of all members for jurisdictional purposes.' As these total revenues exceed the retail standard of $500,000 and as legal jurisdic- tion is present, we find that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Sections 9(c) (1) and2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of all full-time and regular part-time drivers of Checker cabs, including lease drivers, but exclud- ing senior and associate members, office clerical employees, casual drivers, roadmen, garage employees, and all supervisors as defined in the Act. Intervenor 7 agrees with the unit as defined. Checker and its members contend that separate units of each mem- bers employee drivers are appropriate. However, as we have stated above, Checker and its members seek to establish and preserve the public image and the operating reality and benefit of a single inte- grated enterprise. Pursuant thereto, all the drivers have similar working conditions and mutual employment interests. In addition, no union seeks to represent the drivers on any other basis. In view of the above, and in view of our finding of a joint employer rela- tionship between Checker and each of its members in one common enterprise under the aegis of Checker, we find a unit of all employees driving Checker cabs to be appropriate. Checker and its members also contend that the lease drivers are independent contractors and should be excluded. In determining whether lease drivers are employees or independent contractors, the Board applies the "right of control" test .8 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; but where control is reserved only as to the final result, the relationship is that of an independent contractor. The facts herein show that the lease drivers are required to abide by the same Checker rules and regulations as the employee drivers. Moreover, they sign one of the three Checker form leases, depending 8 Frostco Super Save Stores, Inc., 138 NLRB 125 ; United Stores of America, 138 NLRB 383; Spartan Department Stores, 140 NLRB 608. T Taxi Cab Drivers, Maintenance and Garage Helpers Union Local 902, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind, intervened on the basis of a showing of interest. 8 Albert Lea Cooperative Creamery Association , 119 NLRB 817. ,588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the nature of the shift to be worked. Although each lease provides, inter alia, that it is not to be construed as creating the relationship of employer and employee and that the lessee is at all times free from the control or direction of the lessor, it appears that the signing of such leases was merely a formality. Thus, two lease drivers testified at the hearing that they had signed a number of leases at the same time, that they were not informed of such provisions, and that the leases had been folded over in such a way that they were able to see nothing more than the signature lines for the lessor and lessee. The leases are for a month, terminable immediately by the lessor for cause. One member, who was also the president of Checker, testified that he does not pay social security or withholding tax on behalf of his lease drivers, and that his lease drivers may buy gas wherever they please. He also testified that they are not bound by the Checker rules and regulations, and that they are not subject to the board of review. On the other hand, one lease driver testified that the member for 'whom he drove told him to buy his gas at the Navin Field Garage 9 or he would not be able to drive, and that he was bound by the same rules as he had been when employed as an employee driver. Another lease driver testified that he had been called before the board of review for fighting and had been suspended by the board of review. In addition, it is clear from the record that roadmen, who report driver violations, make no distinction between lease drivers and employee drivers. From all the above, we find that Checker and its members jointly control the manner and means by which the lease drivers operate their cabs. Accordingly, we further find that the lease drivers are em- ployees, and we shall include them in the unit. The parties disagree as to which drivers should be included as regular part-time employees and which should be excluded as casuals. However, the parties did agree, in the various formulas they advanced in an attempt to define regular part-time employees for the purposes of this case, that the determination should be based on the regularity of the drivers' work record in the period immediately preceding the direction of election. The respective proposed formulas are as follows : Petitioner-Those drivers who worked a minimum of one regular shift on 14 separate days in each of the 3 months prior to the di- rection of election. Intervenor-Those drivers who worked three regular shifts per week in any 20 weeks of a 30-week period prior to the direction of election. Q The Navin Field Garage is run by Checker through a wholly-owned subsidiary corpo- ration An advantage of purchasing gasoline there comes in the form of a cash rebate to the members when so directed by the officers of the garage. CHECKER CAB COMPANY AND ITS MEMBERS 589 Employers-Those drivers who worked at least one regular shift for 1 day or more per week during any 10 weeks out of the 21-week period immediately preceding the direction of election. It appears from the record, and the parties do not dispute, that the part-time drivers 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 supervision, and hold the same type of license as full-time drivers. In making determinations as to whether employees are part-time or casual workers, the Board has included part-time cab drivers who regularly worked 1 or 2 days each week,10 beer delivery men who worked at least 8 hours per week,1' mechanics and a radio technician who regularly worked on Saturdays,12 and the laundry personnel who worked several hours per day or a certain day or days each week 13 In the present case, we note from the record that in the first 21 weeks of 1962, a total of 7,654 employees drove Checker cabs, and that a sub- sstantial number of these individuals had an obviously irregular work record in that period. Assuming that the statistics presented to us in this regard are fairly representative, we find, after due consideration of all the pertinent facts herein, that those employees who have worked at least 2 days per week in 8 of the last 10 full weeks preceding the date of the direction of election set out below are regular part-time em- ployees, and we shall include them in the unit. Our dissenting colleagues maintain that if a joint-employer relation- ship exists at all, it can only be between Checker and each of its mem- bers separately. But even granting that the department store cases upon which we rely and which they distinguish, go no further, the factual differences in operating methods of the integrated taxicab business here under consideration in our view justify our further find- ing that each of these owners and Checker are joint employees in a common enterprise. The employees of each owner are doing the identi- cal driving work done by the employees of the others. They are all working under those common employment conditions and regula- tions, administered by Checker, which we have outlined above. Each of the cab owners thus, by his participation in Checker, does in fact have some measure of control over the employment conditions of the other owners' drivers. We therefore find, contrary to our colleagues, that the relationship which the owners have established (a) with Checker, (b) through Checker with each other, and (c) with the drivers, warrant our conclusions that we should asesrt jurisdiction 10Jat Transportation Corp., at al., 128 NLRB 780. u Chester County Beer Distributors Association , 133 NLRB 771. "S. G. Tilden, Incorporated, 129 NLRB 1096; Booth Broadcasting Company, 134 NLRB 817. '* Laundry Owners Association of Greater Cincinnati, 123 NLRB 543. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein and that the unit determination we make is appropriate for the employment conditions the parties have established. Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. All full-time and regular part-time drivers, including lease drivers, of Checker cabs owned by persons, partnerships, corporations, and associations who are members (senior, associate, or otherwise) of Checker Cab Company,14 Detroit, Michigan, but excluding office cleri- cal employees, member-drivers, casual drivers, roadmen, garage em- ployees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS RODGERS and LEEDOM, dissenting : We would dismiss this petition because, in our opinion, the record supports neither the assertion of jurisdiction nor the appropriateness of the unit sought. On the issue of jurisdiction, it is clear that none of the individual owner-operators has a gross revenue of $500,000; hence, under es- tablished Board standards the petition must be dismissed, unless there is warrant for considering in combination the revenues of the individ- ual owner-operators. The Board has in the past done so when there exists such common ownership and control, including control of labor relations, that separate entities may be considered as a single employer for purposes of the Act.'-' The Board has also considered in com- bination the business of separate entities when the record discloses the existence of an established or agreed-upon multiemployer unit.18- It is patent that this record does not support the assertion of juris- diction on either of these grounds and our colleagues do not purport so to find.'' Yet our colleagues, in their determination to assert, have taken a hard case and made bad law. Checker and each of its members 14 At the hearing, Petitioner amended Appendix A attached to its amended petition, which contained the names of Checker's members , by removing therefrom the employers numerically designated as number 23, Robert Waite ; number 62, Joe Arnold ; number 70, Gordon R. Wilson ; number 86, E. It. Larges ; number 107, Thomas Marr ; and number 136, Max Schneider. is For example, Bell Bakeries of St. Petersburg, of Ward Baking Company, et at., 133 NLRB 1344. 1e For example, Atlas Shower Door Co , Distribudor Inc. d/b/a Basco-Sacramento, et at, 131 NLRB 96. 17 The record shows that the Petitioner urged upon the Board that the members of Checker constituted a single employer , based on the normal factors involved in such a finding, that is, common ownership and control , interlocking officers, directors , and stock- holders, centralized control of labor relations , integrated operations, and similar employee working conditions. Such factors are almost completely lacking in this case , and we see no basis in the record warranting our colleagues' statement that there is "extensive evi- dence" to support their position. Also, since there has been no history of multiemployer bargaining in the unit requested , and since the members clearly oppose such bargaining now, there is no basis for combining revenues for jurisdictional purposes either because of an existing or an agreed -upon multiemployer unit. CHECKER CAB COMPANY AND ITS MEMBERS 591 are found to be joint employers of the employees of such member, even though there is lacking any real employment relationship between Checker and such member's employees. By this hypothesis, there would appear to be as many joint-employer relationships as there are members of Checker. The assertion of jurisdiction would then depend on a combination of the commerce facts of an individual member and of Checker. However, no one member and Checker together meet the Board's jurisdictional standards. Here, again, the membership in Checker serves our colleagues' purpose. The fact of such membership is made the basis for a finding that all the members are in relation to one another "joint employers in a common enterprise." This legal coinage of our colleagues cannot, however, hide the fact that there is no sound basis whatever for finding that each member is an employer of the employees of every other member. Thus, by a form of legal hop- scotch, the individual members who, in combination, are neither a single employer, joint employers, nor a group organized into an estab- lished multiemployer unit, find themselves subject to the Board's jurisdiction on a theory which has no basis in fact or law. The vice of all this is further demonstrated by the fact that the ma- jority uses the very same approach in finding a unit of all employees driving Checker cabs to be appropriate. Thus, in disregard of long- standing precedent which precludes the establishment of a multiem- ployer unit in the absence of a multiemployer bargaining history, or agreement as to the appropriateness of such a unit,18 our colleagues have forced the members of Checker into exactly what they have chosen to avoid, that is, a multiemployer bargaining association. In sum, we reject this unwarranted use of the Checker Cab associa- tion as an amalgam for joining these independent owner-operators into a pseudo-integrated relationship for purposes of asserting jurisdiction and for unit purposes. This association is no more than an association of independent owner-operators for their mutual advantage; it is not an association for dealing with labor relations. We choose to re- spect the substance and intent of this mutual arrangement, and we would do so by dismissing the petition. 18 Since we did not participate in Frostco Super Save Stores, Inc, 138 NLRB 125, United Stores of America, 138 NLRB 383, or Spartan Department Stores, 140 NLRB 608, we do not regard those cases, which depart from precedent , as binding on us. It is note- worthy, however, that these department store cases relied upon by the majority in making the joint-employer findings are all clearly distinguishable. Thus, under the provisions of the lease or license agreements between the store owners and the concessionaires, the store owners retained the right to negotiate jointly with the concessionaire in any matters concerning labor relations. The concessionaires in those cases , unlike the members of Checker herein, were willing at the outset to bind themselves by contract to a joint- employer relationship. Furthermore, since the store owner satisfied the Board's jurisdic- tional standards in each case, the Board never considered combining the revenues of the concessionaires to create jurisdiction which did not otherwise exist.