Supreme, Victory and Deluxe Cab Companies

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her 6 and 13, 1965, alleged assistance to and interference in the formation of the shop committee, as violative of Section 8(a)(2), no such allegation appears in the complaint. General Counsel cites the S.N.C. case, supra, and Northwest Engineering Com- pany, 148 NLRB 1136, in support of his contention that Respondent's conduct constituted interference, restraint, and coercion. I find these cases inapposite.16 I find the statement complained of did not contain a misrepresentation of fact, threat, or promise of benefit, but was a statement of opinion, and as such, was protected by the provisions of Section 8(c) of the Act. Accordingly, I will recom- mend dismissal of the allegations of paragraph 5(d) of the complaint. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local 565, Sheet Metal Workers International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recom- mend the complaint be dismissed in its entirety. "In S.N C. the Board found Respondent urged the formation of a shop committee, as an alternative to a union, and other conduct, to constitute violations of Section 8 (a) (2) and (1) of the Act. In Northwest Engineering the Board found respondent had meetings with an ad hoc, self-appointed Insurance committee, resulting in a new insurance program The violation of Section 8(a) (1) was based on a withholding of announcement of the new plan for over a month, until a time when it would have the greatest impact on the election The Board also found Respondent selected ad hoc groups of employee representalnes to treat with alleged grievances, resulting in changed working conditions, as part of a unified plan of granting or holding out the promise of benefits, in order to influence the emploNces in the exercise of their rights guaranteed in Section 7 of the Act Supreme, Victory and Deluxe Cab Companies and Local 5, Trans- portation Services and Allied Workers of Seafarers Interna- tional Union, AFL-CIO affiliated with Seafarers International Union of North America, Atlantic Gulf, Lakes and Inland Waters District, AFL-CIO, Petitioner . Case 14-RC-51309. July 11, 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 Harold D. Kessler. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Petitioner filed a brief. 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 Jenkins and Zagoria]. 160 NLRB No. 12. SUPREME, VICTORY AND DELUXE CAB COMPANIES 141 Upon the entire record in this case the Board finds : 1. Supreme, Victory and Deluxe Cab Companies, hereinafter some- times referred to as the Companies, are separate corporations which are engaged in the taxicab business in St. Louis, Missouri. All three corporations have the same corporate officers and owners and their five supervisors hold this position with all three companies. During the period from-1960 to 1965 the drivers of-all three companies were represented in a single unit for the purposes of collective bargaining by Local 688, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.' The parties stipulated, based on this past bargaining history and the operations of all three companies, that they were a combined business entity insofar as col- lective bargaining is concerned. In view of all the foregoing we find .that the- Companies are a, single employer within the meaning of Section .2(2) of -the Act.2 - ,The Companies contend that the .petition, which seeks-an election in a unit of taxicab drivers, should be dismissed' for. the reason that -no employment relationship exists between them, and the drivers. The Companies assert that, as they do not own any taxicabs, they are rather a service, organization' which assists those who own or operate taxicabs. The Companies further contend that in any - event their only income is from franchise fees, which. are paid by the cab owners, and from the sale of gasoline to taxicab drivers, and that the total of these dollar figures is insufficient to satisfy the Board's jurisdic- tional standard. applicable to .taxicab' companies.' We reject these contentions. The combined fleet of all the Companies consists of 98 taxicabs. It is true, as the Companies contend, that 'no . taxi is owned by them. The taxis, -instead, are privately owned by single cab. owners who -drive their own- cabs,, multiple cab 'owners who, drive one of their own cabs, and multiple cab owners who do not' drive any cab. All owners pay to the Companies a monthly fee which covers the cost of liability insurance, dispatching service,, and use of the franchise. Cabs not driven by an owner are driven,by rent-drivers who pay the owner a daily rental fee which includes the same services which are- covered by the owner's- fee to the -Companies. - The Companies determine' who may be a cab owner regardless of ,whether he. be .a driver or nondriver. • Thus, each- prospective owner must be approved, by, one of the.Companies before he can buy a cab 1 Although served with a copy of the notice of hearing Iii the present case , Local 6188 did not intervene or enter an appearance. 2 Local 28, International Stereotypers' and Electrotypers' Union o f North America, AFL- CIO (Capital Electrotype Company, Inc.), 137 NLRB 1467, 1470; Gibbs - Oil Company, 120 NLRB 1783. 3 Carolina Supplies and Cement Co., 122 NLRB 88, 89 , footnote 5. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be used under its franchise, and no cab or its space with one of the Companies can be sold unless that Company first approves the pur- chaser and the sale. All taxis operated under franchise with the Companies must be painted a distinctive color with the name Supreme, Victory or Deluxe lettered on it. The Companies require that these taxicabs be equipped with two-way radios, and the Com- panies' dispatchers direct the drivers by means of this radio system. The Companies also control the hiring and discharge of the rent- drivers. Thus, regardless of whether an owner has found a driver for his cab or whether the Companies have found a driver for him, no driver may be hired until he has been cleared by a supervisor of the Companies. The clearance procedure consists of checking to insure that each driver applicant has a proper license, does not have a serious criminal record, and knows the Companies' rules. After the driver is taken on, only the Companies may discharge him. In the past the Companies have discharged drivers for the unauthorized posting of a notice on a bulletin board used by one of the Companies or for being in an accident. Although an owner could refuse further use of his taxicab to a driver who has damaged it, the owner could not discharge that driver or deny him use of any other taxicab operated by the Companies. The Companies' rules apply to all the drivers, and the Companies may discipline a driver for violation of them. These rules are detailed and cover all basic phases of the daily operating procedure. They deal with neatness, taking of orders, drinking on the job, and the duties of a taxicab driver. Also, drivers must wear a certain type of hat while they are working. They must report in to the office every day or call in to advise that their cab is out of service. To be permitted to drive on any given day, each driver must sign a work- sheet and obtain a work permit, signed by one of the Companies' supervisors, which is good for that day only. All drivers are obliged to purchase the gasoline they use in operating their taxis from one of the Companies (Supreme). If a driver is involved in an accident, he must report it promptly to the Companies. Thereafter, a super- visor will come to the scene of the accident and handle any problems which develop. Other rules of the Companies prohibit working for longer than 14 hours per day and picking up passengers outside of city limits. Periodically, all drivers will be called away from their driving duties to attend a drivers' meeting 4 at which the Companies' rules will be reviewed by a supervisor.' A The radio dispatching system does not operate while these meetings are in progress. 5 Occasionally , when the weather is bad, the Companies will likewise order all taxicabs off the streets. SUPREME, VICTORY AND DELUXE CAB COMPANIES 143 A copy of the former agreement between the Companies and Local 688, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, the term of which ran from 1960 to 1965, was placed in evidence at the hearings This agree- ment covered such matters as recognition, union security, a grievance procedure, bonds for nonowner drivers, franchise fees, and the Com- panies' rules.' Included within the unit description of employees who were represented under this contract were those who owned, leased, rented, or borrowed equipment which they personally drove in the performance of their duties. In view of all the foregoing, including the bargaining history, we reject the Companies' contention that they are merely an organization which services the owners and drivers of taxicabs. It is manifest, rather, that the Companies are themselves engaged in the business of operating these taxicabs s and that the drivers operate them on the Companies' behalf.9 There remains only the question of whether an employment relationship exists between the Companies and the drivers or whether the drivers are independent contractors of the Companies. In determining whether an employment relationship exists in these circumstances, the Act requires the application of the "right of con- trol" test.10 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, when control is reserved only as to the result sought, the relationship is not one of employment and the individual performing the services is an independent contractor. In the present case, it is clear from the same evidence, previously recited, that the Companies, in addition to operating a taxicab business, also control the manner and means whereby the taxicabs are to be driven. We further find, therefore, that the relationship which exists between 9 The agreement was signed by a representative for each of the Companies and by repre- sentatives of Local 688 . The cab owners were not parties to the agreement. 'The copy of the rules attached to this agreement covered the location of fare zones and fare rates in addition to some of the other rules previously discussed herein. 8 The entrepreneurial interest of the owners is limited almost entirely to their owner- ship of the taxis and the rents they collect. G Further support for this conclusion lies in the fact that the Companies provide the work permit to every driver on each day that he drives This work permit system is a responsibility, undertaken pursuant to a city ordinance ( city of St. Louis, Missouri. ordi- nance 51131 ), a copy of which was put into the record This ordinance prescribes that such permits be issued by the "holder of a certificate of convenience and' necessity for the operation of taxicabs and service cars." (Emphasis supplied ] Since it is the Com- panies, and not the owners , which issue the permits here, it is apparent that the Companies have the certificate to "operate " the cabs and not the owners. , '° Albert Lea Cooperative Creamery -Association, 119 NLRB 817 , 822; Deaton Truck Lines, Inc., 143 NLRB 1372, 1377. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Companies and the rent-drivers and driver-owners is one of employment." Accordingly, consideration of the gross receipts of all drivers is appropriate in determining whether the Companies' volume of business satisfies our jurisdictional standard.12 As noted previously, the discretionary Board standard applicable to the taxicab business is the same as the retail standard set forth in Carolina Supplies and Cement Co., supra. Satisfaction of this stand- ard requires a showing that: (a) an employer has an annual gross volume of business of at least $500,000 and (b) the Board has statu- tory jurisdiction. There is no issue as to statutory jurisdiction, for it was stipulated at the hearing that, during the year 1965, the Com- panies, in the name of the Supreme Company, purchased $75,330 worth of gasoline from Roco Petroleum Company, and that the latter Company receives gasoline from across State lines which is mingled with the gasoline sold to Supreme. However, as to satisfaction of the Board's standard, there is a question whether the evidence presented at the hearing is sufficient to support a finding that the gross annual volume of all the Companies' drivers exceeds $500,000. We conclude that it is. The Companies stated they have no records of their drivers' earn- ings. Therefore, some 164 subpenas were issued by the Regional Office for those drivers to appear at the hearing.13 Only 96 individ- uals appeared to testify, however, and the majority of them likewise claimed to have no records of their earnings. Some stated that they could only estimate their driving time and receipts. Others declined even to offer an estimate. For those who gave estimates, approxima- tions of their driving time ranged from less than a day per week to 6 or 7 days a week. Their estimates of regular daily gross earnings ranged from amounts which would have been less than daily expend- itures to amounts of $20 or $25 a day. As to the 67 or 70 drivers who did not appear to testify, Petitioner concedes in its brief that full enforcement of the subpenas would "do little to further clarify" testimony already received. In these circum- stances, we see no useful purpose to be served by directing the Region to seek enforcement of these subpenas at this time, but will, instead, decide this case on the existing record. Taking this record as it stands, we reject the testimony of those wit- nesses who averred that they consistently lost money or made only a u Mound City Yellow Cab Company, 132 NLRB 484, 486 ; Deaton Truck Lines, Inc., supra. 13 Checker Cab Company and its Members, 141 NLRB 583 , 584, 587. 13 Sixteen additional subpenas were issued, but these were duplicates. SUPREME, VICTORY AND DELUXE CAB COMPANIES 145 couple of dollars per day over expenses. We find it incredible 14 that these individuals could or would continue for long periods in an employment-taxi driving-which is only a source-of consistent losses or earnings too small to enable survival. An examination of the remaining testimony, with projections based thereon, indicates that the total receipts of all full-time and part-time drivers 15 does in fact exceed $500,000 per year. The Companies' taxicabs operate 7 days per week on two shifts. And it was stipulated at the hearing that 115 to 135 drivers work each day. Some 48 drivers testified that they • work full-time which would normally be from 5 to 7 days per week, or an average of 6 days. The credible testimony in respect to their.earnings was that they normally gross about $22 'to $23 16 per day- and that their annual gross incomes ranged from $5,000, to- , per year.17 Taking an average then of $5,500, the gross, combined receipts of these -full-time drivers would total $264,000 annually. Assuming that all the full-time drivers testified at the hearing,13 this would mean that a minimum of 67 part-time drivers also work each day out of the estimated daily complement of 115-135. A rea-. sonable sampling of the creditable testimony. of the part-time drivers indicates that they take in some $13 per day.19 Multiplying this figure by, 6 days per week and 52 weeks per year,20 the total combined gross receipts of the part-time, drivers may be estimated as not less than $271,752. c 11 See Best Art Products, Inc., 111 NLRB 181, 82; Associated Food Distributors, Inc, 109 NLRB 574, 575; William L. Davis d/b/a V & D Machine Embroidery Co., 107 NLRP. 1567, 1569, footnote 4. The following are examples of testimony which we deem incredible : Witness Hutchinson, who stated that he drove a taxi all year during 1965 , asserted that he drives a 12-hour shift for 5 days a week and , although he has no other income, he stands losses on "many days or most days" of a dollar or. two ; driver Clark testified that while he drives 8 to 10 hours per day and has no other employment, lie has never earned enough to cover his rental fee and gasoline expense ; and driver Morris , who stated that he drove 11 hours per day, 7 days per week and has no other source of income, testified that he loses $100 per month in his work. 15 Sometimes referred to in the record respectively as "all day" and "half day" drivers. 1e Inasmuch as an all day rental fee is $10 and gasoline purchases range from $3 to $4 each day, this would afford net earnings of from $8 to $10 per day for the all day rent- driver. 17 The annual figure would allow for time off due to sickness , vacations , and time lost when the driver' s regular taxicab was under repair and another was not available for rental 16 Exact figures on the breakdown of the driver complement into full -time and part-time drivers were not presented. is For the part-time rental drivers these receipts would be required to cover a $6 per day rental fee and, we estimate, gasoline purchases of from $2 to $3 each day . The net earn- ings would then be about $4 to $5 per day z° All 52 weeks of the year are considered here in view of the stipulation that there are at least 115 drivers working on any given day 257-551-67-vol 160-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Adding the receipts of the full-time and the part-time drivers together the overall total is at least $535,752 per year, or substantially more than the required $500,000. The soundness of the foregoing projection and computation is fur- ther supported by an examination of these figures presented at the hearing respecting the costs of operating the 98 taxicabs. Thus, a franchise fee of $110 per month is paid by the owners to the Com- panies to cover each taxicab ($129,360 annually). Drivers also pur- chased petroleum products from the Companies, in the name of Supreme, which amounted to $92,708. The total of these two cost figures amounted to over $222,000 last year. Subtraction of the latter figure from the estimated gross, supra, would leave a net figure of $313,752, or about $3,200 for each taxicab. Out of this $3,200 figure the owners necessarily must obtain sufficient money to cover the cost of depreciation,21 repairs, new tires, and batteries. And out of this same figure at least 48 full-time drivers and some 67 part-time drivers must derive earnings for their work. However, we need not, and we do not, rest our assertion of jurisdic- tion herein solely on the basis of the foregoing computations. For the Board has held that where statutory jurisdiction exists it will assert jurisdiction in any case in which an employer has refused, upon rea- sonable request by Board agents, to provide the Board or its agents with information relevant to the Board's jurisdictional standard.22 Here the Companies have not refused to give information in the sense that they have declined to produce that which they are capable of producing. Nevertheless the net effect of the absence of records and failure to respond to subpenas outlined above upon the ability of the Board to discharge its statutory functions, is little different from that which would exist if there were here a refusal of the type involved in the Tropicana case. In such circumstances and for the reasons relied on in Tropicana, we conclude that it will effectuate the policies of the Act to assert jurisdiction whereas here legal jurisdic- tion is established and the Companies are unable to furnish proba- tive information from which it can be determined whether the Employer's operations do or do not meet the Board's discretionary jurisdictional standards. In view of all the foregoing, we shall assert jurisdiction herein.23 2. The labor organization involved herein claims to represent cer- tain employees of the Companies. 2i One owner testified that the purchase price of a new taxicab was $2,250. 22 Tropicana Products, Inc., 122 NLRB 121, 123 23 Carolina Supplies and Cement Co., 122 NLRB 88 ; Southern Cab Corporation, Yellow Cab of Memphis Division, 159 NLRB 248, Veterans Cab Co. of Memphis Inc, 159 NLRB 251 ; Tropicana Products, Inc , supra. SUPREME, VICTORY AND DELUXE CAB COMPANIES 147 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Companies within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. Petitioner seeks to represent the rent-drivers and driver-owners of all three Companies in a single unit. The Companies took the posi- tion, previously considered and rejected in this Decision, that no such unit could be appropriate, because neither the rent-drivers nor the driver-owners are its employees. In the event the Board decided to direct an election, however, both parties agreed to exclude from the unit gas station attendants and dispatchers, who are represented by other labor organizations, and certain other individuals who, it was stipulated, are supervisors within the meaning of the Act.24 Although an employment relationship exists between the Com- panies and the driver-owners and rent-drivers, it does not appear that all of the driver-owners are "employees," within the meaning of the Act. Thus, the record indicates that each driver-owner, who owns more than one taxicab, has the power substantially to effect the hiring and assignment of drivers for the taxis which he owns in addition to the one which he drives himself. As noted previously, each multiple-owner-driver may select a rent-driver for his extra taxis and the driver selected will normally be hired by the Companies subject only to their check of his driver's license, criminal record, and knowl- edge of the Companies' rules. Each multiple-owner-driver may also re- fuse to accept the further services of a rent-driver who has damaged ene of the taxis owned by the multiple-owner-driver. We find, accord- ingly, that the multiple owner-drivers are supervisors within the meaning of the Act and we exclude them.25 In view of the foregoing and in the light of the bargaining history we find that the following employees of the Companies constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 26 All single taxicab owner- drivers and rent-drivers who drive under the franchises of Supreme, Victory and Deluxe Cab Companies at these Companies' St. Louis, Missouri, place of business, excluding the gas station attendants, dis- patchers, guards, the multiple-owner-drivers, and all other super- visors as defined in the Act. [Text of Direction of Election omitted from pub] ication.] 27 2+ Louis Gibson, Clarence Miller, Sam Guccione, Eugene Edwards, and Julius McNeil 2u Dcaton Truck Lines, Inc, supra, 1378 2a Mound City Yellow Cab Company, supra, 486 27 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 14 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 ob- jections are filed Excelsior Underwear Inc., 156 NLRB 1236