Taxi-Drivers Union

TAXI-DRIVERS UNION Taxi-Drivers Union, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO and Morse Taxi and Baggage Transfer, Inc. Case 12-CB-998 January 8, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 16, 1968, Trial Examiner Henry L. Jalette issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practice alleged in the complaint and recommending that `the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board had delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at -the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendation of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. We do not adopt the Trial Examiner's characterization of Robert Reynolds as "inquisitive and ubiquitous" merely because he was the only employee-witness to testify conceimng alleged threats and because on two occasions questions raised by him provoked the alleged threats. TRIAL EXAMINER'S DECISION Labor Relations Act, as amended, by threats of bodily injury directed to an employee and to a supervisor of the Employer. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED The complaint alleges, and Respondent denies, that Morse Taxi and Baggage Transfer, Inc., and Red Top Sedan Service, Inc., are employers (i.e. a single employer) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Morse Taxi and Baggage Transfer, Inc., is a Florida corporation engaged in providing taxicab service in and about Miami Beach with facilities at 18030 Collins Avenue, Miami Beach. Red Top Sedan Service is a Florida corporation engaged in providing airport limousine service from and to the Miami, Florida, airport. Both companies are wholly owned subsidiaries of the Greyhound Corporation, have common officers and directors, share the facilities at Collins Avenue, and use a common checking account. Elliott Hecker is both a supervisor of Morse and assistant manager of Red Top. On the basis of the foregoing, I find that Morse Taxi and Red Top constitute a single employer for jurisdictional purposes. Blue Cab Company, Inc., 156 NLRB 489; City Yellow Cab Company, 144 NLRB 994. Hecker testified that the combined annual gross income of Morse Taxi and Red Top exceeds $500,000, and that they annually purchase goods valued in excess of $50,000 from outside the State of Florida. However, Respondent contends Hecker's testimony is insufficient to support a finding that the Board's standard for assertion of jurisdiction over cab companies has been met, because Hecker did not know the gross income of Morse Taxi or the gross income of Red Top, but only, the combined income. Hecker's knowledge of the commerce data was certainly imperfect, a factor which goes to his credibility and the weight to be given to his testimony. But Respondent offered no evidence that Hecker's testimony was not accurate, nor did it request the production of the books and records of the companies I credit Hecker and conclude that his testimony is sufficient to support a finding that the combined operations of Morse Taxi and Red Top meet the Board's standard for the assertion of jurisdiction over cab companies and that they constitute an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. STATEMENT OF THE CASE HENRY L. JALErrE, Trial Examiner: This case was tried in Miami, Florida, on August 26, 1968' pursuant to a charge filed on June 10, by Morse Taxi and Baggage Transfer, Inc., herein called Morse Taxi or the Employer, and pursuant to a complaint issued on July 25, and amended on August 9. The issue presented is whether Taxi Drivers Union, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, hereinafter referred to as Respondent, violated Section 8(b)(1)(A) of the National II. THE ALLEGED UNFAIR LABOR PRACTICES On March 20, the International of Respondent was certified as the representative of all taxi drivers and mechanics of Morse Taxi. Thereafter, the parties engaged in approximately ten bargaining sessions, but as of the date of the trial no agreement on a contract had been reached. It is undisputed that on June 4, at about 11 p.m., Union Representative and Agent Thomas Fitzgibbon 'Unless otherwise indicated all dates refer to the year 1968 174 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accompanied by another individual , drove into a municipal parking lot in Miami Beach, and accosted the Employer' s supervisor, Elliott Hecker. According to Hecker, Fitzgibbon began a conversation with the statement "I understand you are threatening cabdrivers." Hecker denied the accusation and Fitzgibbon then allegedly "leaned" on him and said he was going to beat him up now. Hecker replied that he did not believe Fitzgibbon wanted to do that and Fitzgibbon allegedly repeated the statement and Hecker repeated himself. Fitzgibbon then got into the car , only to be followed by Hecker who then stated that nobody was going to beat him up. Fitzgibbon then allegedly got out of the car and said he would do it right now, `leaning against Hecker again . Hecker said nothing and Fitzgibbon got into the car, again. Hecker again went to the car, repeated his earlier statement and the charade was reenacted for the third time, after which Fitzgibbon left. Martin Fein , a limousine driver employed by Red Top, was present with Hecker at the time of the foregoing incident and overheard the remarks of Fitzgibbon to Hecker. His testimony was substantially the same as Hecker's. According to Robert Reynolds, a cabdriver of the Employer, while at a cabstand with some other drivers on May 29, Union Representative Fitzgibbon approached and a discussion ensued in which Fitzgibbon announced there would be a union meeting at 2:30 that afternoon. Fitzgibbon asked Reynolds if he was going to be there and Reynolds indicated that he might not attend because there would be no cabs available if all drivers went . Fitzgibbon then allegedly stated "that's the general idea." Reynolds did not attend the meeting . The next day while at the same stand and sitting in the cab with the window closed and the air conditioning on, Reynolds was approached by Fitzgibbon . When Fitzgibbon reached the cab, Reynolds opened the window and Fitzgibbon said , "you scabbed didn't you." The following conversation then took place. "Well, I don't believe I scabbed because - Were we on strike?" He says, "Well, you scabbed." I says, "Well, how could I scab if I wasn 't on strike?" and he said, "Well, you didn't come to the meeting," and I says, "No," and he says, "You were supposed to come to the meeting." I says - he says - I think he said, I'm not sure whether he said, "You said you would," or not, but anyway I says, "Well, I stayed out and covered because there was no cabs." He says, "But you were supposed to come to the meeting," and I says, "Well, Mr. Fitzgibbon, don't tell me what I have got to do or what I am going to do or what I have got to do." I says, "I will do whatever I think is best," and he said then that "You will do what we tell you to do and you will do it when we tell you to," and I said, "No, I don't believe I will." I says, "I would like to have you go away and just leave me alone." I said , "Just leave me alone, I don't want any part of it." He said , "Well, you are going to have part of it," and then he opened the door to the cab and he said , "Come on, come on out and fight," and grabbed a hold of my arm and I partly got out of the cab, but I closed the door again . So when I closed it again he says, "Come on, come on out," and he opened the door again . He said that he would - he said, `Come out and fight.' He says, `come out and fight.' I don't know whether he said , `If you believe in these things, come out and fight for them.' Just `come out and fight anyway.'." According to Reynolds, he was surprised at Fitzgibbon's behavior and he told Fitzgibbon that he had always looked upon him as a pretty decent sort of a guy, and he asked him how come he was using force. Fitzgibbon replied that it was because Reynolds had made an obscene remark. According to Reynolds, Fitzgibbon opened the door three times and on one of the occasions he flipped the hair piece which Reynolds wears and asked "how do you hold that thing on." Reynolds testified that he told Fitzgibbon that he was going to call the police and that he called the company dispatcher. However, after he had called, he observed an unidentified man walking towards the cab from shrubbery nearby. Fitzgibbon asked the man whether or not he, had heard Reynolds make the obscene remark and the man said he had. Reynolds then concluded things did not look good and he wanted no part of this, so he called the company dispatcher and told him to cancel the police ,call. About a week or so later (the complaint alleges on or about June 6) a group of drivers were standing at a cabstand at the Bal Harbour Shops in a general discussion and Fitzgibbon was present. According to Reynolds, he brought up the subject about a strike and -asked what would happen if a majority of the drivers went on strike, but one or two or three continued to work. Some one, who was not identified, said " - either he said or one of the boys said - I am not going to pin Mr. Fitzgibbon down or any boy down, but the conversation went that they would be taken care of, they would be taken care of. In other words, if they went out, they wouldn't work long. According to Reynolds, the statement was made that the cabs would be put out of commission. According to Reynolds, on August 1 at the same location, he and two or three other drivers were in a conversation with Murray Cohen, who is alleged by General Counsel to have been vice president of Respondent and an agent within the meaning of Section 2(13) of the Act. Reynolds testified that he again brought up the subject about what would happen if the employees went out on strike and some employees continued to work. He testified that Cohen stated there was no need to worry, not to underestimate Fitzgibbon, that he knew how to take care of things, and that he had taken care of things in Chicago. Cohen is alleged to have said that in Chicago, Fitzgibbon had busted a couple of heads. III. ANALYSIS AND CONCLUSIONS The foregoing describes substantially as presented by General Counsel's witnesses all of the conduct of Respondent alleged to have violated Section 8(b)(1)(A) of the Act. It consists -of four incidents, one of which involved a supervisor and the other three involving one and the same employee. I conclude that the evidence is insufficient to warrant a finding that Respondent violated Section 8(b)(1)(A) of the Act. The August 1 incident involving Murray Cohen depends on a finding that Cohen, was an agent of Respondent on that date. Cohen, a cabdriver employed by Morse Taxi, had been appointed temporary -vice president of Respondent in early May. However, Robert Paclat, president of Respondent, testified that at a meeting on July 25, the members were advised that Cohen had resigned as vice president and the members thereupon voted to replace him with Ed Wasco, a driver of another cab company. I credit this testimony and find that Cohen was not an agent of Respondent on August 1.2 I found 21n view of this fmdm ,__I make no finding about the statements TAXI-DRIVERS UNION Paclat to be forthright and candid in .his testimony and I was favorably impressed by his demeanor . Moreover, there was no evidence to contradict his testimony. The testimony of driver Reynolds that he heard Cohen state to another driver on August 8 that he was vice president of Respondent, even if credited , is insufficient to support a finding that Cohen was an agent of Respondent at the time in question . It is a well established principle of law that you cannot prove that an individual is an agent by declarations that the individual said so to other persons. Such statements are_ hearsay and inadmissible . Schauffler v. Highway Truck Drivers, 230 F.2d 7 (C.A. 3). Although Reynolds' testimony was received without objection, I do not believe that -it is entitled to any probate,e weight. The June 6 incident depends for its proof on the testimony of driver Reynolds only . Reynolds initially described the coercive conduct which was to be directed against non-striking drivers in the event of a strike as ".. they would be taken__care of they would be taken care of. In other words, if they went out they woufidn t orte long." (Reynolds didn't indicate whose were those "other words." ) After being led by General Counsel to the subject of the cabs themselves , rather than the drivers, Reynolds stated they "... according to the conversation there, would be put of commission ." Later, General Counsel led Reynolds by asking him whether or not Fitzgibbon said the cabs would be wrecked . Reynolds' answer was, "That was the reference that was given...." These excerpts from Reynolds' testimony point out the ambiguous nature of the proof offered to substantiate the allegation of restraint and coercion . I do not consider Reynolds' testimony about what was said sufficiently clear to support a finding of a violation of the Act . Moreover, if that were not reason enough to dismiss this allegation, dismissal would be warranted for failure of proof that Fitzgibbon uttered any coercive statements. Throughout his testimony on direct , as well as on cross-examination , Reynolds expressed uncertainty about the identity of the individual who made the alleged coercive statements . Upon examination by me, he stated very clearly that he could not say that Fitzgibbon made a statement about wrecking cabs. As a matter of fact, I was unable to find out, and the record does not indicate, who made the remarks which form the basis of the allegation of restraint and coercion of employees . Although Reynolds testified that Fitzgibbon did not disavow the coercive statement, the only testimony he could give whether or not Fitzgibbon heard it was that he thought Fitzgibbon would have to hear it and that he believed Fitzgibbon heard it. A finding of an unfair labor practice must be predicated on more than coercive statements attributed to an unidentified individual and the failure of Respondent's agent to disavow statements he is not shown to have heard. The Hecker-Fitzgibbon' s incident presents different considerations. Fitzgibbon admitted accosting Hecker, but denied that he "leaned" against him. Additionally, he testified that he told Hecker he would beat him up if he continued to threaten employees in the future . According to Fitzgibbon, after he got back into the car, Hecker approached the car, put his finger through the open window and shouted to Fitzgibbon not to tell him that he was going to beat him up because he would take him on. attributed to Cohen. I note, however, that Reynolds testified that driver Charles White was present when Cohen allegedly made the statements in question. Although called as a witness by General Counsel, White was not examined on this point. 3 Fitzgibbon then got out of the car and invited Hecker to take his best hold and "make his shot." Hecker allegedly turned around and walked away and Fitzgibbon returned to the car and left. Since Fitzgibbon admitted that he threatened to beat up Hecker, whether or not he leaned against him appears to be of little moment. The threat is of moment, and any statements circumscribing it in any manner. According to Fitzgibbon, the threat was not a present threat to do harm, but a threat to do harm in the future.if Hecker threatened employees because they supported Respondent. Although I found Fitzgibbon to be an arrogant witness whose answers were frequently not responsive, I credit his testimony that his threat was hedged by an if. Neither Hecker nor Fein was prepared to contradict Fitzgibbon on that point, and if Fitzgibbon had intended to batter Hecker on this occasion no reason appears why he did not. The most significant fact of this confrontation, however, is that it is undisputed that the threat was not -directed against the exercise by employees of their Section 7 rights. "Thus,-Hecker _own testimony indicates that the threat was related to alleged threats by Hecker against employees. _ The rationale of the cases holding that threats against supervisors constitute restraint and coercion of employees is that employees may reasonably regard such threats as a reliable indication of what would befall them if they refrain from supporting the Union, as is their right under Section 7. But Fitzgibbon's conduct posed no threat to those rights; rather, it purported on its face to be in aid of other Section 7 rights, namely the right to support the Union. Nor is it sufficient that Fitzgibbon may thereby have acquired a reputation for violence. He could have acquired such a reputation by threatening to beat up Hecker over a political argument without violating the Act. Viewed in this light, Fitzgibbon's conduct cannot be held to have related to the exercise of Section 7 rights.3 International Ladies' Garment Workers Union, AFL-CIO, 130 NLRB 614; District 65, Retial, Wholesale & Department Store Union, 133 NLRB 1555, 1557; cf. McGraw-Edison Company, 172 NLRB No. 178. All that remains is the "toupee incident" of May 30, involving the inquisitive and ubiquitous driver Reynolds. I use those adjectives because of all the Morse drivers only Reynolds came forward ' to testify about conversations where threats were allegedly uttered, and on two occasions he had initiated the topic of conversation which provoked the threat. These prefatory observations reflect my serious distrust of Reynolds' testimony. Nevertheless, Fitzgibbon's testimony with regard to this incident was so vague, and he was so evasive, that I must discredit him and credit Reynolds. This does not greatly simplify the case, because I am not certain what act or statement of Fitzgibbon's is alleged to constitute the restraint and coercion. Certainly not the scab remark. The flipping of the toupee, by itself, would not appear to be coercive, although it might have 'In view of this finding, it is unnecessary to decide what appears to me to be rather fine points of law ansing from the peculiar facts of this case. For example, would Fitzgibbon's conduct be coercive within the rationale of Local 140, United Furniture Workers of America (Brooklyn Spring Corp.), 113 NLRB 815, where the only employee to witness the conduct was an employee of another company, albeit a single employer for jurisdictional purposes, but in a separate unit for purposes of collective bargaining? Does the Board include among the circumstances which will insure that employees hear of the coercive conduct the circumstance that the publication to employees will be made by the supervisor'? Does it make any difference that employee Fein appeared to me to have been capable of picking up both Fitzgibbon and Hecker by the scruff of the neck? 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acquired such a coloration in combination with Fitzgibbon's conduct in grabbing Reynolds by the arm and inviting him to come out and fight. But even this aspect of the incident is clouded by Reynolds' testimony at one point that Fitzgibbon's invitation was, "If you believe in these things, come out and fight for them." Again, as in the Hecker incident, there is no indication of what deterred Fitzgibbon from actually assaulting Reynolds. If Reynolds was in such great fear, his cancellation of the call to the dispatcher is illogical. Considered as a whole, I do not find Reynolds' testimony sufficient to warrant a finding of restraint and coercion. Finally, whatever findings of a violation that might be eked out from any of the foregoing, I do not believe that they are such as to justify the issuance of a, remedial order. International Ladies' Garment Workers Union, AFL-CIO, supra. The General Counsel's argument that it would ill behoove the Board to wait until blood is flowing in the streets and the ambulances are clanging before protecting employees can only be viewed as hyperbole when related to the facts of this case. In the final analysis, no blows were struck, and the Hecker-Fitzgibbon incident brought to mind not the specter of blood flowing, but rather the behavior of little boys who exchange dares in the schoolyard under the watchful eye- of the monitor assured thereby that there will be no acceptance. The Board should not act the part of the monitor. _ I shall in accordance with the findings and conclusions above recommend that the complaint, as amended, be dismissed in its entirety. CONCLUSIONS OF LAW 1. Morse Taxi and Baggage Transfer, Inc., and Red Top Sedan Service, Inc., constitute an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. . 3. General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(b)(1)(A) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint, as amended, be dismissed in its entiretyd -