Veterans Cab Co. of Memphis, Inc.

VETERANS CAB CO. OF MEMPHIS, INC. [Text of Direction of Election omitted from publication.] T 251 '' An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 26 within 7 days -after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236. Veterans Cab Co. of Memphis, Inc. and General Drivers, Salesmen and Warehousemen's Local No. 984, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner.' Case 26-RC-2587. June 13, 1966 ' DECISION AND DIRECTION' OF ELECTION Upon, a petition duly' filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer -James, D. Walpole, on ' February. 23, 1966. The Hearing Officer's rulings made at the -hearing are free from prejudicial error and are hereby,, affirmed. Briefs; -have been filed by the Employer and- the Petitioner.2 Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board- has delegated its powers in connection 'with this -case to a three-member panel [Chairman McCulloch and Mem- bers Brown and Zagoria]. - - Upon: the entire record, in this case; :including, the briefs filed by the parties, the Board finds:,"' 1. The Employer is engaged in the business of furnishing taxicab service,, in. Memphis, Tennessee, and owns more than ones. hundred taxicabs; it contends that its operation is local in nature,.ithat.,the drivers sought by the Petitioner are independent contractors, that none of the drivers satisfy the Board's jurisdictional standards, and, therefore, that the Board lacks, jurisdiction herein. We find, how- ever, for the reasons set forth below, that the drivers are employees and not independent contractors. - At the hearing, the Employer took the position that, it was the, duty of the Petitioner to establish that the Employer was engaged in commerce, and did not submit any evidence relative to the juris- diction issue., The Petitioner elicited testimony from employee wit- nesses which establishes that the Employer's gross revenue is in excess of $500,000, the Board's standard for asserting jurisdiction I The names of the parties appear as amended at the hearing. 2 The Employer's request for oral argument is hereby denied because the record, in- cluding the briefs, adequately presents the issues and the positions of the parties 159 NLRB No. 22. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over retail enterprises, and, further, that about one-third of the Employer's revenue is derived from pickups or deliveries at airports, bus stations, and railroad stations. Accordingly, we find, upon the entire record, that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein.3 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all the drivers who operate taxicabs owned by the Employer. The Employer, although presenting no witnesses at the hearing, contends that the drivers are independent contractors who lease their taxicabs from the Employer. The record shows that the Employer owns more than one hundred taxicabs, and enters into lease agreements with the individual drivers which provide that the drivers are to operate as independent con- tractors, These lease agreements, however, require the drivers to deposit a $100 performance bond with .the Employer; to work 6 days a week or pay the Employer a daily guaranty; to purchase gasoline from the Employer; and to notify the Employer when required to go beyond a 30-mile radius of the city. The lease agreements also provide that the Employer will provide the insurance, maintenance, and upkeep for the taxicabs, and that taxicab assignment shall be the Employer's prerogative. The Employer stores the taxicabs on its premises, and controls the advertising which appears on them. The drivers, who are not per- mitted to drive for another company, are assigned to one of two shifts, and are not permitted to change without the Employer's approval. Drivers begin their shift by signing a sign-out sheet. While they are free to solicit fares on their own, the Employer oper- ates a central dispatching office and taxicab stands throughout the city. When a driver discharges a fare, he is required to proceed to the nearest taxicab stand. If he refuses an order, he is subject to reprimand. Drivers are called in by the Employer when complaints are lodged against them by customers; and, when a driver is involved in an accident, he is required to call the Employer, who investigates it. Upon completing their shifts, drivers pay the rent on the basis of time plus miles driven outside the city limits. The drivers pay their own social security and other taxes. The Board has frequently held that, in determining the status of persons alleged to be independent contractors, the Act requires appli- cation of the "right of control" test. Where the person for whom 8 Union Taxi Corporation, 130 NLRB 814; Tropicana Products, Inc., 122 NLRB 121 VETERANS CAB CO. OF MEMPHIS, INC. 253 the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. We find upon the entire record that the drivers 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. We are aware that the evidence discloses some factors which may tend to point toward an independent contractor status, but none of these factors is alone determinative ,4 and even in com- bination they are not enough to override the more substantial facts in this case supporting our finding that the degree of control exer- cised by the Employer is such as to establish that the drivers are employees within the meaning of the Act.5 At the hearing, the Employer agreed that, if the drivers were found to be employees, the unit as petitioned for was appropriate. Accordingly, we find that a unit of the following employees is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All taxicab drivers at the Employer's Memphis, Tennessee, opera- tion, excluding all clerical employees, technical employees, mechanics, professional employees, watchmen, guards, and supervisors as defined in the Act.6 [Text of Direction of Election omitted from publication.] 7 * Thus , we do not regard as determinative the fact that the written agreement defines the relationship as one of "independent contractor " ( National Freight, Inc, 153 NLRB 1536) ; that the Employer does not make payroll deductions and the drivers pay their own social security and other taxes (Frederick 0. Glass d/ b/a Miller Road Dairy, 135 NLRB 217, 220 ) , that the drivers are free to solicit their own passengers In addition to com- plying with the Employer 's dispatch orders ; and that the Employer does not give the drivers written driving instructions. 5 Blue Cab Company and Village Cab Company, 156 NLRB .489 ; Mound City Yellow Cab Company, 132 NLRB 484 . See also Southern Cab Corporation, 159 NLRB 248 , issued on the same day as the instant case. 6 The Petitioner would exclude Sullivan , Lawson, and Scroggins on the basis that they are supervisors within the meaning of the Act, whereas the Employer asserted that It would Include them as employees in the event that the Board directs an election. The record indicates that these Individuals drive taxicabs about 95 percent of the time and, during approximately 5 percent of their time, Investigate accidents for the additional compensation involved . In addition , Sullivan takes over for the night manager on Sun- day nights , but there is no indication in the record that be exercises any managerial authority . Accordingly , as these Individuals spend practically all their ' time as drivers and do not regularly exercise any statutory supervisory authority , we shall include them in the unit '+ An election eligibility list, containing the names and addresses of 'all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear, Inc, 156 NLRB 1236.