Trade Wind Taxi

TRADE WIND TAXI Trade Wind Transportation Company Ltd. and Trade Wind Services d/b/a Trade Wind Taxi' and Hawaii Teamsters and Allied Workers , Local 996, Petitioner . Case 37-RC-1498 August 27, 1970 DECISION AND DIRECTION OF ELI Upon a petition duly filed under 9(c) of the National Labor Relations Act, as amended, a hearing was held before Bernard T. Hopkins, Hearing Officer of the National Labor Relations Board. After the closing of the hearing, the Acting Regional Director, in conformity with National Labor Relations Board Rules and Regulations transferred the case to the Board for decision. The Petitioner and Employer filed briefs. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds:' 1. In our previous decision involving the same parties and the same issues we found that the Employ- er was engaged in interstate commerce and subject to the Board's jurisdiction. It has been so stipulated by the parties herein. Accordingly, we so find. 2. The labor organization involved' claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Employ- er within the meaning of Section 9(c)(1) and Section 2(6) of the Act. 4. The Petitioner seeks a unit composed of owner- operators and lease drivers who operate from stands that are controlled by the Employer at several hotels.4 The Employer contends that the drivers are independ- ent contractors. As amended at the hearing The Board on December 12, 1967, issued its decision in Trade Wind Transportation Company Ltd, 168 NLRB No 114, which involved the same parties and the same issues (except that the roles of the Petitioner and Intervenor were reversed) The parties stipulated that the record in that case be made a part of the record in this case except for the matters actually litigated in the instant hearing In accordance with the stipulation, the record in the previous case is hereby made a part of the record herein ' Drivers, Helpers, Warehousemen and Construction Division Local, 1, (Independent) hereinafter called the Intervenor, was permitted to intervene at the hearing on the basis of a contractual interest as to the employees involved At the hearing the Intervenor made a request to appear on the ballot if an election is directed ' The Employer's operations are fully described in our previous decision, 168 NLRB No 114 373 In our previous decision we found that the owner- operators and lease drivers were not independent contractors. The Employer in the instant proceeding claims that, since our previous decision in which we found that the drivers are independent contractors, it has effected a basic change in its methods of operation affecting the relationship between itself and the drivers. In our previous decision we found that, while there existed some indicia that owner-operators and lease drivers were independent contractors, such indicia were outweighed by others which amply demonstrate the effective control the Employer maintains over the operations of both the owner-operators and lease drivers, and which, on balance, are sufficient to sup- port a finding that they are employees both in law and as a "matter of economic reality." We relied principally on the following: (1) all drivers are inter- viewed and their police records are checked before they are given stalls by the Employer; (2) uniforms are required for all drivers; (3) the Employer enforces certain rules concerning gambling, appearance of cabs, and the general conduct 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 into the Employer's service station for periodic mainte- nance or lose their cars; (6) the Employer advertises the taxi service in the yellow pages for the benefit of all drivers; (7) complaints are investigated by the Employer and, in overcharge situations, the Employer makes refunds to the customer and warns the driver; and (8) owner-operators and lease drivers are super- vised to the same extent and by the same individuals. Testimony by the Employer's witnesses at the hear- ing shows that factors (1) and (2) and factors (4) through (6), outlined above, remain unchanged. As to factor No. 7 the Employer now refers complaints to the Honolulu Police Department. In regard to factor No. 8 the Employer through its witnesses con- tended that there is no supervision on the Employer's part of the drivers. The record discloses that one Ivan Rains, an owner-driver, has displaced the previ- ous head drivers pursuant to an agreement executed by Jay Eubanks, Employer's operation manager. This latter agreement sets forth Rains' duties, which require that he be familiar with the terms of the contract between the Employer and Hilton Hawaiian Village and that he report infractions of the hotel's rules to the Employer, except in emergency situations when he may report to the Hotel's security personnel. Fur- ther testimony discloses that Rains inspects the vehi- cles, orders a driver to have his car washed, directs a driver to wear his required uniform, and reports violations or infractions of the rules by drivers to the Employer's operations manager or assistant opera- 185 NLRB No. 75 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions manager of the Employer. The agreement sets forth that Rains' compensation is $120 per month. This in effect means he pays no rent for his stall. Finally, as to factor No. 3, the Employer contends it has not itself promulgated any rules and regulations, but that the only rules and regulations applicable to the owner-operators and lease drivers are those of the hotels it services under existing concessionaire agreements; Therefore it argues it has no rules or regulations of its own applicable to drivers. This appears to be a fact without substance. The rules of the hotels are part and parcel of the Employer's concession agreement and must be adhered to by the Employer or it faces possible loss of its concessions. The drivers have no contractual relationship with the hotels, and, when such rules and regulations are made, as they are, a part of their employment requirements by the Employer, such rules and regula- tions in their impact on employees become the Employer's own. On the basis of the record we find that there has been no substantial change in the effective control the Employer maintains over the operations of both the owner-operators and lease drivers since our find- ings in our previous decision. Accordingly, we find, on the basis of the entire record, that the drivers in question are employees of the Employer. We further find that the following unit, as stipulated by the parties, is appropriate for the purposes of collective bargaining and within the meaning of Section 9(b) of the Act: All drivers of taxi cabs at the Employer's place of business at Hono- lulu, Hawaii, excluding all other employees, Sunset Taxi employees, office clerical employees, guards, watchmen, and supervisors' as defined in the Act. [Direction of Election' omitted from publication.] ' The record evidence is insufficient for us to determine the status of Ivan Rains We shall therefore permit him to vote subject to challenge ' in order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear, Inc, 156 NLRB 1236, NLRB v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that 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 of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the elections 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