Trade Wind Transportation Co., Ltd.

860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trade Wind Transportation Company Ltd., and Trade Wind Services, Ltd., d/b/a Trade Wind Taxi' and Drivers, Helpers, Warehousemen & Construction Div. Local, 1 (Independent),' Peti- tioner. Case 37-RC-1364 December 12,1967 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Bernard T. Hopkins of the National Labor Relations Board. After the closing of the hearing, the Acting Re- gional Director, in conformity with National Labor Relations Board Rules and Regulations, Series 8, as amended, transferred the case to the Board for deci- sion. The Petitioner filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. Trade Wind Transportation Company, and Trade Wind Services, Ltd., d/b/a Trade Wind Taxi, are Hawaiian corporations that have the same stockholders and corporate management, and together do an annual gross business in excess of $1 million. TWT is engaged in public utility service, certificated as a common carrier in the tour and transfer business on the island of Oahu. TWS is en- gaged in the rental car business, production of en- tertainment, and rental of taxis and taxi stalls at the Reef Hotel, Hilton Hawaiian Village, and various other locations in Honolulu. The parties stipulated that TWT and TWS are engaged in interstate com- merce and subject to the Board's jurisdiction, and we so find. 2. The labor organizations2 involved claim to represent certain employees of the Employer. 3. The Employer and the Intervenor both con- Herein referred to respectively as TWT, TWS, and TW Taxi Hawaii Teamsters & Allied Workers, Local 996, hereinafter called the Intervenor, was permitted to intervene at the heanng on the basis of a contractual interest in the employees involved. At the hearing, Intervenor made a request to appear on the ballot if an election is directed. 3 There was also introduced at the hearing a copy of a 1963 agreement between Intervenor and TWT. That agreement was the subject of an un- fair labor practice charge alleging a violation of Section 8(e). A settlement tend that the collective-bargaining agreement in ef- fect between TWT and Intervenor constitutes a bar to this proceeding if the owner-operators and lease drivers working for TWS are found to be em- ployees. The existing contract has an effective date of March 1, 1965, and expires February 29, 1968.3 At the time the contract was executed, TWT had neither taxi drivers nor taxi cabs. TWS has never had an agreement with the Intervenor, and the ex- isting agreement pertains only to TWT. Although the Intervenor has had contractual relationships with TWT and with its predecessor, Allen Tours, since 1956, TWT has not had taxicabs operated by its own employees since 1956. The Board has consistently held that "to serve as a bar, a contract must clearly by its terms encom- pass the employees sought."4 We see no reason for departure from this policy in this case, where TWT had no taxi drivers at the time the contract was ex- ecuted, and there has been no agreement with TWS. Although TWS was in operation at the time of the execution of the 1965 contract, there is no evidence in the record that the parties intended to include the owner-operators and lease drivers in question, who work for TWS. Section 17 of the existing agreement refers to an attached wage schedule. That schedule does not mention taxi drivers. The history of bar- gaining shows that the owner-operators and lease drivers working for TWS were not covered under the contract between TWT and Intervenor. Thus, the terms of the contract, the past bargaining histo- ry, nor TWT's present bargaining relationship with the Intervenor evidences an intent by the parties to include taxi drivers working for TWS. We therefore find that the contract between TWT and the Inter- venor is not a bar to the election. Accordingly, we find that a question affecting commerce exists con- cerning the representation of the employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks a unit composed of owner-operators and lease drivers who operate from stands that are controlled by TWS at several hotels. The Employer contends that the drivers are independent contractors. As noted above, TWT is a certified public utility carrier, while TWS is in the entertainment and rental car business. The double corporate entity here is a result of TWT placing its rental car and en- tertainment business under TWS, subsequent to the enactment of the Public Utilities Commission Law, so that, for accounting purposes, only TWT would agreement was approved by the Regional Director and the case was closed by compliance. Following the heanng herein, the parties entered into a stipulation for the receipt in evidence of the settlement agreement In view of the full record developed herein, we reject the Employer's con- tention that the references to independent contractors that appear in the settlement agreement constitute a determination that the drivers are inde- pendentcbntractors 4 RCA Conirnunicatlons,lnc , 15T N LRB 34, 37. 168 NLRB No. 114 TRADE WIND TRANSPORTATION COMPANY LTD. be involved with the Public Utilities Commission. TWT has entered into concession agreements with several hotels under which it agrees to pay a sum of money each month for the right to run the taxi concessions. A written agreement exists only with the Hilton Hawaiian Village. The agreement provides, in substance, that the Employer shall pro- vide high quality service to customers of the hotel and shall see that the operators shall maintain cer- tain standards of decorum and appearance. Although the agreement with the Hilton is in the name of TWT, the president of TWT, who also serves as secretary to TWS, testified that the opera- tion is a TW Taxi operation and should have been signed in the name of TWS. There are approximate- ly 69 stalls. About 49 of these stalls are occupied by operators who own their vehicles, while 20 stalls are operated by lease drivers who lease cars from TWS. In addition, there are approximately 12 drivers who work on a commission basis for Imperi- al Tour & Taxi, a company which has a sublease agreement with TWS to operate stalls at the Hilton. Petitioner does not seek to include Imperial drivers within its proposed unit. Owner-operators rent their stalls by the month at the rate of $110 or $120, depending upon the size of their cab; they have no written agreement with TWS; they register their own cabs; and they pay their own operating expenses , maintenance, and in- surance coverage. Approximately one-third of the owner-operators have public utility certificates which qualify them to conduct tours. There is no evidence that any owner-operator owns more than one cab. Lease drivers have an oral agreement with TWS under which they agree to pay $11 per day rental. Although these drivers pay for their own gasoline and oil, TWS owns, registers, maintains, and in- sures the cabs. Lease drivers may garage their cabs at their own homes, but TWS requires them to bring in their cabs for periodic maintenance. TWS posts notices at hotels setting forth the drivers' names and their cab numbers, and the dates they are due for periodic maintenance. One such list, which was posted at the Hilton HAWAIIAN Village, con- tained a warning that: "THIS MUST BE DONE IMMEDIATELY, OR YOUR CAR WILL BE TAKEN AWAY FROM YOU." Common to both owner-operators and lease drivers is the fact that TWS provides no workmen's compensation or in- surance for the drivers. The operators in question are interviewed by TWS, and it checks their police records and licens- es. In addition, TWS advertises TW Taxi in the Yellow Pages on behalf of all the drivers. All tax- icabs operated by the drivers in question have the same "Trade Wind Taxi" markings and phone number on the dome light of the cabs. 861 Pursuant to the concession agreement with the Hilton, TWS requires all drivers to wear a uniform consisting of a white shirt with a TW Taxi designa- tion, dark trousers , and black shoes. The daily operations of TWS are directed by an assistant operations manager who collects rents from the drivers, and is concerned with the overall per- formance of the concession . The individual respon- sible for daily checks on the drivers and their cabs at the Hilton is one Huihui , who is classified as a head driver. He has the authority to report drivers who fail to meet certain requirements . As compen- sation for his role as head driver, Huihui pays a lower stall rent to TWS. Although all drivers are free to take calls from other hotels or places, most outside calls are for owner-operators who have public utility certificates and are qualified to accept tours which are referred by TWT or by several other agencies or hotels. The record indicates that drivers may refuse less desirable fares in order to accept more lucrative fares. However, drivers who refuse less desirable fares too often may face replacement by other te- nants. TWS reassigns a driver if a hotel objects to his presence. The Board has frequently held that, in determin- ing the status of persons alleged to be independent contractors , the Act requires application of the "right to control" test. Where the person for whom the services are performed retains the right to con- trol the manner and means by which the result is to be accomplished, the relationship is one of employ- ment; while, on the other hand, where control is reserved only as to the result sought, the relation- ship is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. On the basis of the foregoing , and the entire record , we are satisfied that owner-operators and lease drivers are not independent contractors. We are aware that the evidence discloses several fac- tors usually considered to indicate an independent contractor status, but the presence of these factors does not alone establish such status. Thus, we do not regard as controlling that the Employer does not make the usual payroll deductions for the owner- operators or lease drivers; that the owner-operators pay their own insurance and maintenance costs; that all drivers are free to take calls from other hotels or places; that the drivers have some discre- tion as to the hours they will work and the trips they will accept ; or that TWS is not concerned with the fares received or records kept by the drivers. We find, rather, that these factors are outweighed by others which amply demonstrate the effective con- trol the Employer maintains over the operations of both the owner-operators and lease drivers, and which , on balance, are sufficient to support a find- ing that they are employees both in law and as a 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "matter of economic reality. We rely particularly on the following: (1) All drivers are interviewed, and their police records checked before they are given a stall by TWS. (2) Uniforms are required for all drivers. (3) TWS enforces certain rules concerning gambling, appearance of cabs , and the general con- duct of its drivers. (4) Drivers may lose their stalls if they fail to conform to the general rules. (5) Lease drivers must bring their cars in to TWS for periodic maintenance or lose their cars. (6) TWS advertises TW Taxi in the Yellow Pages for the benefit of all drivers. (7) Complaints against drivers are in- vestigated by TWS and, in overcharge situations, it refunds the customer and warns the driver. (8) Owner-operators and lease drivers are supervised to the same extent and by the same individuals. As the record shows, Imperial Tour & Taxi was not joined in the proceeding as ajoint-employer and it did not appear at the hearing. The Petitioner does not seek to represent the Imperial drivers. Imperial operates 12 stalls at the Hilton pursuant to a sublease agreement with TWS. It is independently owned and managed, and it pays for all of its stalls with one check. All complaints which are made to TWS concerning Imperial drivers are referred to its manager, one Kim, for satisfaction. Imperial drivers operate on a commission basis and they have no contractual arrangement with TWS. We find that Imperial drivers have insufficient community of in- terest with TWS drivers to be included in the same unit since they are paid on a commission basis, they have no agreement with TWS, they work for a separate employer, and are under separate supervi- sion. Accordingly, we find, on the basis of the entire record, that the following unit is appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act: All drivers of tax- icabs at the Employer's place of business at Honolulu, Hawaii, excluding all other employees, Imperial Tour & Taxi employees, office clerical employees, guards, watchmen, and supervisors', as defined in the Act. [Direction of Election7 omitted from publication.] s Deaton Truck Lines, Inc, 143 NLRB 1372, enfd 337 F 2d 697 (C A 5), and National Freight, Inc , 153 NLRB 1536 6 The head driver at the Hilton , Huihui, has the authority to inspect both drivers and cabs on a daily basis However , the record evidence is in- sufficient for us to determine his status We shall therefore permit him to vote subject to challenge ' 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 20 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