Southern Cab Corp.

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be permitted in this shop. In consequence Joseph conferred with his brother John Usis early on the afternoon of August 27 and told him the account had been lost. When he returned to his place of business later in the day, Usis discharged Composto. The Respondent has received no work from that customer since that day. McAndrews, the former cameraman since turned teacher, was called the next day to redo the blueprint correctly. On this record I cannot find that the General Counsel has successfully satisfied the burden of proof, resting upon him, to establish convincingly that the quality of Composto's work, and the simultaneous decline in the gross margin of profits reflected monthly in the Company's books, was not the reason for his discharge. Considering the evidence in its entirety I find that the General Counsel has not proved a prima facie case in support of the complaint allegation that Joseph Com- posto was discharged because of his, or the union activities of others. I shall accordingly recommend dismissal of the complaint. RECOMMENDED ORDER It is hereby ordered that the complaint be dismissed in its entirety. Southern Cab Corporation, Yellow Cab of Memphis Division and General Drivers, Salesmen and Warehousemen's Local No. 984, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen & Helpers of America, Petitioner.' Case - 26-RC-2588. 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 24, 1966. The Hearing Offi- cer'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.' 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 70 taxicabs. It contends that the Board should not assert jurisdiction herein on the ground that the drivers sought by the Petitioner are independent contractors, and that the Employer's operations do not meet the Board's jurisdictional standards. We find, however, for the reasons set forth below, that the drivers are employees and not independent contractors. Moreover, the record establishes that the Employer's gross revenue, including amounts received for taxicab rentals and ' The names of the parties appear as amended at the hearing. '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. 23. SOUTHERN CAB CORPORATION 249 amounts retained by the drivers, is in excess of $500,000, the Board's standard for asserting jurisdiction over retail enterprises. The record further shows that the Employer had indirect inflow of goods and supplies valued in excess of $50,000 during the preceding 12-month period. 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 juris- diction 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 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 drivers who oper- ate-taxicabs owned by the Employer. The Employer contends that the drivers are independent contractors who lease their taxicabs from the Employer. The record shows that the Employer owns more than 70 taxicabs. Prior to 1963, the drivers were members of a union which was a party to a collective-bargaining agreement with the Employer. Thereafter, the Employer entered into lease agreements with the individual drivers which provided that the drivers were to operate as independ- ent contractors. These lease agreements are subject to unilateral termination for any reason, and require drivers to post $100 bonds with the Employer for "nonperformance, negligence or otherwise"; to purchase all fuel from the Employer and remit 10 cents each rental period for oil checks; to notify the Employer when required to go beyond a 20-mile city radius; and to inspect the vehicles daily, and notify the Employer in writing of any defects. The Employer agreed to maintain and repair the vehicles. It stores the taxicabs on its premises, and controls the advertising which appears on them. While drivers are free to solicit their own passen- gers, the Employer operates a central dispatching office and taxicab stands throughout the city. In addition, the Employer enters into contracts with customers to provide taxicab service. The drivers are required to check in with the Employer at certain times depending on the length of their shifts. At the end of the shift, the drivers pay the rent, based on time plus miles driven out- side the city limits, and out of the proceeds pay their own social security and other taxes. While some drivers testified that they use the taxicabs for personal business, the Employer's vice president and general manager testified that this would not be permitted even if the driver paid the meter rate. When a driver is involved in an acci- 8 Jat Transportation Corp, 128 NLRB 780 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent, he is required to call the Employer, who investigates it. The Employer also frequently posts notices on such matters as instructing drivers as to the preparation of trip tickets and acceptance of per- sonal checks, notifying drivers of complaints by customers, and tell- ing drivers they "must get the job done properly and promptly" and that customers must be given the best of service. 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 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 con- tractor. We are aware that the evidence discloses some factors which may tend to point toward an independent, contractor status, but none of ;these factors Malone determinative ,4 and even in combination they are not enough;to override the more substantial facts in•this case sup- porting our finding that the degree of control exercised by the Employer is such as to establish that the drivers are. employees ,within the meaning of the,Act.5, Accordingly, as no questions have been raised as to the appropriate- ness .of the -composition of the unit requested by the Petitioner, we find, on the basis of the record, that a unit of the following employees is appropriate for the, purposes of, collective bargainingo 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, watchil en,"guards, and. supervisors' as defined ,in' the Act.(, . . ` .. - ' - * 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 (Miller Road Dairy, 135_ NLRB 217, 220) ; that the drivers 'are free to solicit'their own passengers in addition to complying with the Employer's dis- patch orders ; and that the Employer does not give the drivers written driving instructions. 5Blue . Cab Company, and Village Cab Company, 156 NLRB 489; Mound City Yellow Cab Company, 132' NLRB 484.' See also Veterans Cab Co. of Memphis Inc., 159 NLRB 251, issued on the same day as the instant case e See Cab Operating Corp., at al., 153 NLRB 878. The Petitioner, contrary to the Employer, would exclude Kitts, a dispatcher who also -drives a cab part-time. However, as- the record does not clearly establish 'the amount of time Kitts spends as a driver, nor whether he exercises any supervisory functions, we shall permit him to vote subject to challenge. - VETERANS CAB CO. OF MEMPHIS, INC. 251 [Text of Direction of Election omitted from publication.] 7 7 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-587. 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.' 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 one hundred taxicabs; it contends that its operation is local in nature, that 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 1 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.