Diamond Cab

ASSN. OF INDEPENDENT TAXICAB OPERATORS 859 Association of Independent Taxicab Opera- tors, Inc., T/A Diamond Cab , and its Mem- bers, Employer and Taxicab Drivers & Garage Employees, Local Union 426, affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Petitioner. Case 5-RC-5638. May 22,1967 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before August A. Denhard, Jr., Hearing Officer. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed on behalf of the Petitioner, the Employer-Association, and individually on behalf of certain Employer- Association members. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. Association of Independent Taxicab Operators, Inc., T/A Diamond Cab,' is a nonprofit membership corporation whose members2 own and operate taxicabs in Baltimore, Maryland. Its corporate purpose is to provide Baltimore with efficient and systematic taxicab service and, more directly, to provide its members with facilities, such as a radio dispatch system, which are required by law and impractical for individual members to provide. Diamond is comprised of about 114 members who own about 354 cabs, which in normal operation require between 700 and 800 drivers. While counsel for Diamond specifically contended that the named Employer is not an employer for the purposes of this proceeding or for any other purposes, and reserved as to admitting any joint activities engaged in by the Association and its members, the parties nevertheless stipulated that the named Employer, during the past 12 months, received revenues in excess of $500,000 from furnishing taxicab service in the Baltimore metropolitan area and that, during the same period, it purchased such items as gasoline and motor vehicles valued in excess of $50,000 either directly or indirectly from sources outside the State of Maryland.3 Diamond contends that the petition should be dismissed because the Association neither owns taxicabs nor employs drivers, is not a joint employer with any other entity or with its members, and its members are not joint employers with one another. None of the members considered individually would satisfy the Board's jurisdictional standards. As noted above, Diamond is comprised of approximately 114 members who own about 354 cabs. Eighty to eighty-five members own only one cab, about half driving their own cab and about half hiring others to drive. At the other end of the spectrum, about 13 members, who are called fleet owners, own between 5 and 30 cabs, each and between them own more than half of the cabs of the entire Association. The Association prohibits any member from owning more than 30 cabs. The Association employs a number of individuals, including a personnel manager and safety director, to perform various functions and services. All are paid by the Association which derives its income from a differential added to the cost of gasoline purchased by the Association for ' resale to its members.4 Membership in the Association entitles members to paint their cabs with a distinctive and noticeable color scheme and diamond shaped design, the words "Diamond Cab," and the telephone number of the Association.5 Each cab also carries a number which is apparently assigned by the Public Service Commission of Maryland (hereinafter PSC), and which is maintained in the Association records. The Association provides a number of services for its members. These include a radio dispatch system, a tire shop, a meter repair shop, a cab wash rack, a paint shop, gas pumps, manifests, lease agreements and stationery, parking facilities for cabs not in use, record keeping, issuance of checks to members and drivers weekly,6 handling charge accounts such as hospitals, advertising (in yellow pages, newspapers, on cabs themselves, and in the form of calendars), and a safety class. The Association also provides representation before the PSC regarding rate ,increases, pays part of workmen's compensation, and provides and pays for group life insurance for members and drivers. Liability insurance premiums are paid to the carrier by the Association, and then collected from the members, apparently as a convenience to the carrier, but the coverage was ' Hereinafter referred to as Diamond or the Association 2 Diamond together with its members is the Employer hereu, ' The applicable jurisdictional standard is the $500,000 retail standard Checker Cab Company and its Members, 141 NLRB 583, affd 367 F 2d 692 (C A 6) 4 Advertising carried on the cabs is entirely administered by the Association and is mandatory on all drivers and members The proceeds from such advertising are earmarked specifically to an Association-conducted safety program, the financing of which appears to be entirely separate from that of the Association generally ' Members may also paint their own names and telephone numbers on their cabs 8 These checks are drawn on moneys turned into the Association by the drivers at the end of each shift 164 NLRB No. 110 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiated by a committee on behalf of all participating owner-members. While the voluminous record contains extensive contradictory evidence as to the degree of utilization of the above-mentioned services of members, and particularly by fleet members, the fact remains that the services are provided, are available to members generally, and are to some extent utilized universally. There is much evidence as to the role played by the Association in the hiring, discharging, and disciplining of drivers. Thus, the Petitioner stresses that which shows that applicants for jobs as drivers are often obtained through Association newspaper advertisements; all applicants are processed and screened by the Association and fill out an Association application form and a PSC application form, fingerprinted, given an eye test, and photographed, and, if accepted, given a payroll identification number. The Employer, on the other hand, contends that the newspaper want-ad is run for the convenience of the small members; that applicants are immediately referred to a member for interviewing; that the member either hires or rejects the applicant; that, if hired, the applicant is then fingerprinted and otherwise processed by the Association, and if rejected, the applicant is then sent to another member; that the Association employment procedures constitute a mere clearing house for processing driver applicants, which is, in any event, not utilized by the fleet members; and that the Association neither hires nor discharges drivers nor has any authority concerning the employer-employee relationship between the members and the drivers. Further, the Employer contends, contrary to the Petitioner's position, that the safety director has no authority to reject, discharge, or discipline drivers. It is uncontroverted, however, that the Association advertises for drivers for general use and that, at some stage during their hiring ritual, all applicants are photographed, fingerprinted, assigned a payroll number, and obliged to fill out an Association application, all at the Association's behest. It is further uncontroverted that all the drivers operate cabs distinctively and clearly marked to be Diamond Cabs, and that they begin their shift by picking up their manifests at Association headquarters and finish work by depositing those manifests at the same location. The Employer argues that the degree of Association control is insufficient to warrant a finding of a joint-employer relationship because, unlike Checker,7 the Association issues no manual or book of instructions to new drivers, employs no roadmen to check on their performance, and operates no board of review to administer discipline. However, the Petitioner points out that Diamond distributes a PSC booklet to all new drivers spelling out their legal duties and obligations, and it administers a safety class. The PSC booklet appears to serve the purpose of rules published by the Association itself, even dealing with attire to be worn. Moreover, not all members maintain their own payroll records, and as already indicated, liability insurance is administered by the Association, life insurance is paid by the Association, and workmen's compensation is paid, at least in part, by the Association, none of which factors was present in Checker. As noted above, each of the approximately 354 cabs owned by Diamond's members bears the distinctive color scheme and the diamond shaped design of the Association and the words "Diamond Cab." Thus, to the public at large, Diamond appears to operate as a single-integrated enterprise, and it is Diamond, and not any individual member, upon whom the public relies to meet its transportation needs. In fact, Diamond operates as a single- integrated operation, offering a radio dispatch service and the various other services we have already mentioned. Considering the volume of business and the number of cabs involved, the effect upon commerce of a work stoppage by Diamond Cab drivers would be substantial. It is apparent from all the foregoing that, in order to satisfy the public demand for adequate cab service and to assure the continuance of a common public image, Diamond's members have yielded a substantial degree of control over the working conditions of their drivers to the Association and that the members accordingly share control over their drivers with the Association. Under all the circumstances and consistent with the pattern of operations established by the parties themselves, we find that the Association and its members are joint employers in a common enterprise, and, further, that it is therefore appropriate to combine the gross revenues of all members for jurisdictional purposes.8 As these total revenues exceed the retail standard of $500,000, and as legal jurisdiction is present, we conclude that it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of all full- time and regular part-time taxicab drivers of the Employer excluding garagemen, mechanics, dispatchers, office clerical employees, guards, and supervisors as defined in the Act. The Employer is opposed to an associationwide unit. In any event, it contends that garagemen and mechanics should be included in any bargaining unit. The sole dispute as to cab drivers concerns lease drivers, whom the Petitioner would include and the Employer exclude. 7 Checker Cab Company, supra 8 Checker Cab Company, supra ASSN. OF INDEPENDENT TAXICAB OPERATORS 861 As our findings above indicate , drivers of Diamond cabs have mutual employment interests. They work under a pattern of operations which gives the appearance of a single -integrated enterprise and Petitioner seeks to represent them in a unit which is consonant with this manner of operations ; no union seeks to represent the drivers on any other basis. Under all the circumstances , including our finding of a joint-employer relationship herein , we find a unit of all employees driving Diamond cabs to be appropriate. The lease drivers: Approximately half of the cabs operated by Diamond members are operated under a lease method . Lease drivers execute a daily lease agreement which may be canceled by either party at the end of any shift and for any reason . The lease driver pays a prearranged rental for the use of the cab for a shift, and also deposits a $25 cash bond. All lease drivers procure a manifest from Association headquarters at the beginning of each shift and return it at the end of the shift , must purchase their gasoline from the Association , and carry advertising on their cabs which are identified as "Diamond Cabs." Like other drivers they are subject to the regulations set forth in the PSC manual and are subject to the radio dispatch system . So far as the record shows, cabs are garaged at Association headquarters or at facilities provided by members; and all complaints , traffic violations , or accidents are reported to the employing member or the Association. While lease drivers do not have social security or other items withheld from their pay, they are covered by the same life and liability insurance coverage that other drivers enjoy. The Board has frequently held that, in determining the status of persons alleged to be independent contractors , the Act requires application 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 lease 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, and even in combination they are not enough to override the more substantial showing in this case 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.9 Service employees : Petitioner would exclude, and Employer would include, garage employees and maintenance men who in essence comprise the service employees employed by the various members.1° These employees work on a regular hourly basis, under supervision , are hourly paid or salaried , and have little or no contact with the public. The drivers , on the other hand , work shifts of up to 12 hours, are removed from supervision, are paid on a commission or lease basis or a combination of both, and are in constant contact with the public. Moreover, the drivers contact those employees of the Association only at the beginning and end of each shift , and may or may not contact the service employees of the various members at all during any given shift. Further , the drivers , who use different skills from the service employees , are also covered by different insurance programs . Clearly, the service employees work under different conditions of employment , are paid by a different method than the drivers, enjoy different fringe benefits , have little contact with the drivers , and employ different skills. We find that a unit limited to the taxicab drivers, as sought herein , is appropriate. Accordingly , we find on the basis of the entire record that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time taxicab drivers of the Employer," excluding garagemen , mechanics , dispatchers, office clerical employees , guards, and supervisors as defined in the Act. [Text of Direction of Election12 omitted from publication.] " Veterans Cab Co of Memphis, Inc, 159 NLRB 251, Southern Cab Corporation , Yellow Cab of Memphis Division, 159 NLRB 248 10 Petitioner would also exclude the employees of the Association itself, who appear to include those who man the tire shop, paint shop , gasoline pumps, and the dispatchers. The Employer agreed to the exclusion of the office clericals employed by the Association , but took no position with regard to the other Association employees We find that these employees have diverse interests from the drivers , and we shall exclude them from the unit " The parties stipulated that eligible to vote as drivers would be all regular drivers , owner-drivers who employ no other drivers, and regular part-time drivers who have worked at least 2 days per week in 4 of the 6 full weeks immediately preceding the date of the direction of the election or have worked at least 1 day per week in 13 of the 16 full weeks preceding the date of the direction of the election 't 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 5 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