Boston Cab Co., Inc.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston Cab Company, Inc. & McCann's Taxi, Inc. and Back Bay Drivers' Association (Boston Cab Orga- nizing Committee). Case 1-CA-9397 DECISION STATEMENT OF THE CASE July 26, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 12, 1974, Administrative Law Judge Her- bert Silberman issued the attached Decision in this proceeding. Thereafter, the Charging Party filed ex- ceptions and a supporting brief, and the Respondent filed an answering 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 it author- ity in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. i The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA 3, 1951). We have carefully examined the record and find no basis for reversing his findings 2 We find, in agreement with the Administrative Law Judge, that there is insufficient evidence, either direct or circumstantial, to support a finding that the Respondent was motivated to discharge James Barrett because of his union activism . However, we do not adopt so much of the Administrative Law Judge's language which seems to suggest that proof of a "predisposition to discriminate," admittedly absent here, is the exclusive manner of proving discriminatory motivation We agree with the Administrative Law Judge's finding that, standing alone, dispatcher George Pilla's conversation with employee Aster W Olsen pertaining to the September 18, 1973, union meeting did not constitute un- lawful interrogation in violation of Sec. 8(a)(1) Unlike the Administrative Law Judge, however, we need not and do not deem it necessary to rely on N.L.R.B v. Dorn's Transportation Company, Inc, 405 F.2d 706, 714 (C A 2, 1969), and National Can Corporation v. N L R B, 374 F 2d 796, 806 (C.A. 7, 1967) HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed by Back Bay Taxi Drivers' Association (Boston Cab Organizing Committee), herein called the Union, on October 25, 1973, a complaint was issued on December 21, 1973, alleging that Boston Cab Company, Inc. and McCann Taxi, Inc., herein called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the complaint, as amended at the hearing, alleges that the Respondent unlawfully discharged its employee, James R. Barrett, on October 18, 1973, be- cause he joined or assisted the Union and, by reason of such unlawful discrimination and other conduct set forth in the complaint, Respondent also has interfered with, restrained, and coerced employees in the a ,ercise of the rights guaran- teed in Section 7 of the Act. Respondent's answer to the complaint denied that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Boston, Massachusetts, on February 11, 12, 13, and 14, 1973. The parties were given leave to file briefs with the Administrative Law Judge and briefs have been received from General Counsel and Respondent.' Upon the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The Company, a Massachusetts corporation, maintains its principal place of business in Boston, Massachusetts, from which facility it is engaged in furnishing transporta- tion services by taxicabs. The Company's annual revenues exceed $500,000 and its annual purchases of goods and materials, directly or indirectly, from points outside the Commonwealth of Massachusetts exceed $50,000. Respon- dent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Back Bay Taxi Drivers' Association (Boston Cab Orga- nizing Committee) is a labor organization within the mean- ing of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES In February 1973 the Union began a drive to organize the Company's drivers. Ultimately, a representation petition was filed with the Board on November 13 pursuant to which an election was conducted on December 20, 1973, which the ' No objection having been filed to General Counsel's motion, dated March 13, 1974, to correct the transcript of proceedings, the motion is hereby granted 212 NLRB No. 92 BOSTON CAB CO., INC. 561 Union lost. About March 1973 James R. Barrett began to assist the Union in its campaign and thereafter became the most active union supporter among the Company's employ- ees. Barrett was discharged on October 18, 1973. The princi- pal issue is whether the Company, which opposed the organization of its employees and was aware that Barrett was active in the Union's campaign, discharged Barrett for such reason or, as Respondent contends, for cause unrelat- ed to his union sympathies and activities. The Company operates approximately 120 taxicabs and uses two shifts of drivers. Because of a large turnover of employees, which is an industry characteristic, during the calendar year 1973 the Company employed between 1,100 and 1,300 drivers. The principals of the Company are Beryl Barenholtz, his brother Leslie Barenholtz, and the latter's son Daryl Barenholtz. Also conceded by Respondent to be supervisors and agents are Melvin Sher, general manager, and George Pilla, taxi dispatcher. There is an issue as to whether Norman Pinto, who works during the late evening and early morning hours, is a supervisor and agent. The Union began its effort to organize the Company's drivers in February 1973, The then president of the Union,' Ronald Stoia, was in charge of the campaign and initially was assisted by two company employees. On March 1973 Barrett offered his support to the campaign and became the most active of the Company's employees in promoting the Union. Barrett attended his first union meeting in March which was held at the home of John Merriam. Thereafter, between May and October 17 six union meetings were held at Barrett's home each of which was attended by from four to nine employees. Prior to his discharge, Barrett successful- ly solicited union authorization cards from about 60 compa- ny drivers and,` beginning in late August, Barrett wore a union button at work. In addition to the foregoing, Barrett with the assistance of Union President Stoia wrote cam- paign leaflets and on at least four occasions between May and October, including September 11 and 19, distributed them at the Company's premises.2 No other company em- ployee passed out leaflets at the Company's premises? In March 1973 the Company learned of the Union's orga- nizational drive and in early September 1973 the Company received a letter from the Union which listed six individuals, including Barrett, as constituting the in-plant organizing committee of the Union. Barrett's participation in the distri- bution of union leaflets at the Company's premises came to the attention of management. More particularly, on the morning of September 19, as Barrett was distributing union leaflets in front of the Company's garage, Beryl Barenholtz approached him and waving a finger at him said, "You bastards are never going to win." Although this remark reflects the Company's opposition to the organization of its employees, contrary to General Counsel, I find that the statement does not constitute a violation of Section 8(a)(1) of the Act. Barrett testified that in late August or early September 1973 dispatcher George Pilla assigned to him his "steady cab." Barrett protested that he could not drive the vehicle 2 Barrett testified that he also distributed leaflets at taxistands 3 After Barrett was discharged other company employees distributed union leaflets at the premises of the Company any longer because "it was too bad." According to Barrett, Pilla said, "Barrett, you're the biggest troublemaker we've got here." Pilla then told Barrett that Barrett would have to wait because there were no other cabs available for assign- ment 4 This testimony does not establish that Barrett was treated differently than other taxicab drivers. The remark to Barrett that he was a "troublemaker," in the context of the Company's knowledge of Barrett's union activities, was a reference to such activities. However, without more, it does not constitute a violation of Section 8(a)(1) of the Act, par- ticularly as Barrett testified that the Company did not try to hinder his union activities. According to Barrett, the Company did not interfere with his distribution of union leaflets, did not forbid or discourage him from wearing a union button while driving a taxicab for the Company, and did not try to prevent him from soliciting authorization cards. Evidence of a single instance of interrogation was ad- duced at the hearing. Aster W. Olson, a long-term employee of the Company, testified that the day after a union meeting which was held in September 1973 dispatcher George Pilla remarked to him, "You were at the Union meeting last night." Olson responded in the affirmative. Standing alone this evidence does not spell out a violation of the Act. Inter- rogation of an employee by a supervisor is not unlawful unless the questioning is itself threatening or unless "the circumstances of interrogation would induce fear of repri- sal"among employees.' Contrary to General Counsel, I find no violation of the Act has been proved by the alleged interrogation of Aster W. Olson. A. Discharge of James R. Barrett Barrett began his employment with the Company as a taxicab driver in June or July 1972 and was discharged by General Manager Melvin Sher on October 18, 1973. Sher testified that he discharged Barrett because Sher had re- ceived a forceful complaint from Virginia Josephs , a case- work coordinator for the Crittenton Hastings House, which in 1973 was the Company's third largest account.6 The Crit- tenton Hastings House is a philanthropic institution which assists unwed mothers. The institution has been a charge account customer of the Company for more than 6-1/2 years and has a direct telephone line to the Company so that quick transportation can be provided in situations where a young lady is in labor or in other emergencies. Virginia Josephs testified that in January 1973 the institution began a new program to expand its services into the ghetto area of Boston. At that time she explained to Sher that the ghetto youngsters were distrustful and wary of the program and 4 Barrett further testified, "I asked him about getting a new cab, since they were getting new cabs at the time, and he said there just wasn't any way. He just said, `No."' The evidence in the case does not establish, nor does the complaint allege, that the Company discriminated against Barrett in regard to the assignment of new or better taxicabs 5 N L KB v. Dorn's Transportation Company, Inc, 405F.2d 706, 714 (C.A 2, 1969) Accord' National Can Corporation v N L R B, 374 F.2d 796, 806 (C.A 7, 1967). 6 The Company has approximately 15 accounts where it maintains direct telephone line connections. In 1973 the most active account furnished the Company in excess of $47,000 in revenue, the next largest account furnished more than $19,000, and the Crittenton Hastings House furnished in excess of $16,500. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she sought to impress upon Sher the importance of provid- ing courteous drivers whose services would help to support the program. On October 18, 1973, she complained to Sher about the manner a driver had carried a 15-year-old preg- nant youngster and the latter's mother from their home to the Crittenton Hastings House and told him, "I am awfully concerned, because these are people who, with one family feeling this way, we could really do ourselves in, in terms of the day program." In response' to questions of General Counsel she explained that she had not magnified the im- portance of her complaint because the program is brand new, the institution is trying to get it off the ground, and "little incidents like this might very well be blown up." Melvin Sher testified that about 1 p.m. on October 18 he received a telephone call from Virginia Josephs who was enraged. She informed him that cab 254 had carried an unwed 15-year-old girl in her seventh month of pregnancy and the girl's mother from their home to the Crittenton Hastings House. The vehicle had been driven along the Jamaicaway7 at extremely high speeds. The driver had weaved in and out of lanes which jostled the passengers and caused them to be thrown about inside the cab so that the mother had to hold on to her pregnant daughter. Also, before the trip was over the driver had tailgated another vehicle for 2 miles. Mrs. Josephs complained that the inci- dent "was just unbelievable." Mrs. Josephs also stated that this was the first time the girl had come to the office, it was extremely important to project a good image and the whole program was in jeopardy. According to Sher,"Mrs. Josephs demanded that I take some sort of action."iAlthough Sher did not then know who was the driver of the cab he testified that he told Mrs. Josephs that he would fire the driver.' Sher testified that as he was talking with Mrs. Josephs he decided to discharge the driver and instructed the Company's radio dispatcher to call the driver. A short while later Barrett reported to him. Sher ascertained from Barrett that he had transported the passengers who had initiated the says she was driving in front of you and you were tailgating her and there are three witnesses to prove that you were driving recklessly and "we just can't tolerate this kind of driving here anymore."10 Barrett remonstrated, "I've been here over a year and a half and you haven't had one com- plaint against me. It seems kind of odd that you want to fire me for one complaint.... Doesn't my good record mean anything?" Sher replied, "I don't know anything about it. I don't want to discuss it any further. Go see your lawyer." Barrett also testified that in the same conversation Sher mentioned that Crittenton Hastings House was a large ac- count. Sher's version of his conversation with Barrett is not in any important way substantively different from Barrett's. According to Sher, in his conversation with Barrett, he ac- cused Barrett of driving recklessly, he informed Barrett that he had received a call which described the trip as unbelieva- ble and said, "We're not 'carrying freight; we're carrying human beings. How can you possibly drive a vehicle like this, at that speed, and have a complaint like this?" Sher also testified that Barrett denied that he drove with excessive speed or recklessly. Sher, nevertheless, discharged Barrett. About 2:15 p.m. that afternoon Sher telephoned Virginia Josephs and informed her that he had discharged the driver about whom she had complained. Mrs. Josephs testified that the mother and daughter were with her when she re- ceived the telephone call from Sher and they were gratified that something had been done. In that conversation Sher asked Mrs. Josephs to send him a writing for the Company's file describing the incident and also made an appointment to see her the next day. The following day Sher visited Mrs, Josephs at her place of business and apologized for what had happened the previous day. As requested by, Sher, Mrs. Josephs sent, the Company a letter dated October 19,,1973, with respect to the described incident, which is quoted as follows: complaint voiced by Mrs. Josephs. According to Barrett, Dear Mr. Shur [sic]: Sher, speaking in a large voice, said that "they just called and the women were literally shaking from the terrible ride that you gave them." Sher also said there is a woman who 7 Although the Jamaicaway is a well-travelled road, according to Sher, it "is a paved cow path, twisting and turning." 8 Mrs. Josephs testified that she did not ask the Company to take any action against the dnver However, she testified that she had registered her complaint so that the Company would investigate the incident and do what- ever it thought was appropriate In general, Mrs Josephs' testimony corrobo- rates Sher's testimony. Virginia Josephs testified that on the afternoon in question when the pregnant girl and her mother arrived "they were agitated, upset, enraged, frightened." After she heard what had happened she tele- phoned Sher and complained about the incident. The mother and daughter were sitting with her while she was speaking with Sher . Mrs. Josephs told Sher that she was very much concerned about her clients' complaint She informed Sher that the driver was reckless , almost had an accident with another vehi- cle, and that the two women were extremely upset and agitated According to Mrs. Josephs, Sher promised to attend to the matter and that he would speak with her later. Also, Carol Goodenough, another caseworker for the Crittenton Hastings House, testified that it was her automobile that cab 254 had been tailgating and that when she arrived at the House she observed that the two women who had been in the taxicab were "visibly shaken." 9 Contrary to Sher, Mrs. Josephs testified that in her first conversation with Sher on October 18 the latter did not inform her that he was going to fire the driver. However, Mrs. Josephs testified that when Sher called back about an hour later he told her that the driver was fired I am writing to you on your request as a follow-up to our telephone conversation of Oct, 18, 1973, and your visit to this agency on the following day. On Thursday, Oct. 18 this agency ordered a Boston cab for a Mrs. Kilson and her daughter Dalia Nash of 733 Morton Street in Mattapan, to bring them to Critten- ton Hastings House for an initial intake interview with me. Dalia is seven months pregnant, unmarried and 15 years old. She was visiting us in order to make applica- tion for participation in our Day Program, a recently developed project at this agency whose purpose is to reach out to the often-neglected (by other social service agencies) population of inner-city pregnant teens. This project, of which I am coordinator and senior case- worker, depends on the use of your cabs in order to bring these young girls into our agency from the ghetto areas of Boston on a day-to-day basis, as opposed to a residential program, which in former years has been 10 Upon being asked specifically whether Sher used the words, "your kind," Barrett testified that Sher said, "We can't tolerate your kind of driving around here. We don't want your kind around here anymore." BOSTON CAB CO., INC. 563 Crittenton's primary service. As you can appreciate, we must constantly attempt to provide a welcoming and warmly accepting environ- ment-as well as services such as continuing educa- tion, prenatal care, counseling and recreation-for these youngsters. Many of them have never been out- side of their home communities, and most of them have never applied for services to a traditionally white, mid- dle-class agency in a white, middle-class community such as Brighton. They are initially distrustful, wary, and not quite ready to believe that we are sincere in our wish to serve them-with no strings attached. It is for these reasons that the initial intake visit to our agency is so vitally important in terms of setting a tone and atmosphere of warmth and trust. When Mrs. Kilson and Dalia arrived at our agency for this interview, the mother's first comment to me as I went to greet her at our front door was "If this program includes my seven month pregnant daughter travelling back and forth with a cab driver such as the one that just brought as in, you can forget the whole thing." She went on to tell me that this driver had been travelling the whole length of the Jamaica Way at an excessive rate of speed, came close to smashing into another driver (who, I later discovered was another agency worker, by the name of Carol Goodenough, who also corroborated this story), who he subsequently was tail- gating as both cars approached our driveway. Mr. Kil- son told me that she had had to literally hold onto her daughter at several points during the ride, in order to prevent her from flying forward into the front of the vehicle. She was particularly appalled by the fact that at no point during the ride did the driver apologize for his outlandish driving. Both Dalia and her mother ar- rived at our front door shaking with rage and terror. I .must include in this letter my observation that this incident is unusual in our many years of dealing with your company. Our experience for the most part has been that your drivers are generally courteous, cautious and especially devoted to helping the girls on our Day Program to get into Crittenton each day. We have had numerous drivers tell us that they have actually knocked on the, doors of girls who do not come out at the usual pick-up time to encourage them to come to the house that day. This kind of personal reaching out has proven especially effective in getting some of our girls to get themselves mobilized in the morning. I hope that this letter provides sufficient information for your records. Thank you for your prompt and cooperative handling of this matter. General Counsel contends that the discharge of James Barrett because of a single customer complaint "was sum- mary, abrupt, without warning and was unprecedented. The assigned reason was merely pretextual designed to rid the Employer of the leading employee Union leader." In at least one respect Barrett's discharge was contrary to company practice. According to Sher, the Company' s normal proce- dure, after receiving an oral complaint about one of its drivers, is to request the complainant to submit the com- plaint in writing and disciplinary action is deferred until a written complaint is received . The object is to separate crank calls or other unreliable or unsubstantiative charges from valid coplaints . Sher testified that after a written com- plaint about a driver is received the Company does not always discharge or otherwise discipline the driver . The pol- icy is to speak to the driver, weigh the gravity of the com- plaint, and then decide whether to discipline the driver taking into consideration ameliorating factors such as the length of service of the driver. Sher also testified that it previously never had happened that after a driver was dis- charged the complainant was requested to furnish the com- plaint in writing as was done in the case of Barrett. However, Sher explained that "I've never had a complaint like this before, of this magnitude." Sher testified that Barrett was an average driver of aver- age productivity. He had received no prior complaint about Barrett. However, during the approximately 15 months that Barrett worked for the Company Barrett was involved in three automobile accidents while driving company vehicles, which occurred on September 19 and November 9, 1972, and June 19, 1973. With respect to the last accident , Barrett testified that Beryl Barenholtz spoke to him about the mat- ter, accused him of driving the taxicab too fast , and said he was going to give some thought to whether Barrett could continue working for the Company. However, nothing fur- ther was said to Barrett about the subject and Barrett con- tinued working for the Company. Considerable evidence was adduced regarding the termi- nations of other drivers. The circumstances of the various cases differ. In general, they tend to support the Company's thesis that drivers who pass red traffic signals , who drive excessively fast, or who otherwise handle their vehicles reck- lessly are vulnerable to discharge. The Company exercises its disciplinary powers arbitrarily subject only to self-im- posed constraints and there is no evidence of any estab- lished practice of giving disciplinary warnings or conducting comprehensive investigations of complaints against drivers. Whenever, as in this case, an individual who is known by his employer to be a leader in a moon campaign is peremp- torily discharged there is generated a suspicion that the action was taken to impede the progress of the employees' organizational efforts or to punish the individual whom the Company may deem responsible therefor . However, union activities do not insulate an employee from normal plant discipline. Section 8(a)(3) leaves "unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership . . . . Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise." American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311 (1965). Thus, it has been observed that "an employer's gen- eral hostility to unions, without more, does not supply an unlawful motive as to a specific discharge .."" To prove that " Fort Smith Broadcasting Company v. N.L.R.B, 341 F 2d 874, 878 (C.A. 8, 1965) 564 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD Respondent discriminatorily discharged Barrett, General Counsel must establish by direct or circumstantial evidence that the Company because of hostility towards the organiza- tion of its employees or for other reasons was predisposed to discriminate against union supporters and knew, which it did in this case, that Barrett was engaged in such activities. Only after proof of such discriminatory purpose has been offered does Respondent's asserted reason for discharging Barrett weigh upon the balance that points to whether the evidence as a whole preponderates on the side of legality or illegality. In this case there is no evidence of union animus which would support a finding of discriminatory motiva- tion 12 Furthermore, Respondent's asserted reason for dis- charging Barrett is not implausible. Although Barrett had been employed by the Company for a year and a half before his discharge and had a satisfactory record, in a business where employee turnover is high, Sher's peremptory deci- sion to discharge Barrett on the basis of a single complaint is not unbelievable when consideration is given to the vehe- mence of the complaint and that it originated from a profes- sional institution and good customer of the Company. I find that General Counsel has not proved that Barrett was dis- charged because of his union activities or for other unlawful reason. 13 B. Additional Issues The complaint alleges that Norman Pinto threatened an employee that the Company would engage in reprisals against its employees if the Union's organizational effort should be successful. Respondent contends that Pinto dur- ing the times material was not a supervisor or agent and therefore it bears no responsibility for any remarks or con- duct on the part of Pinto. Pinto works during the late evening and early morning hours. Normally no company official is then on the prem- ises. Apart from drivers who come and go, during those hours there are on the premises, in addition to Pinto, a mechanic and a radio dispatcher. According to Sher, Pinto is a "garage man" and operates out of the dispatcher's office on the lower level of the Company's garage. Sher further testified that Pinto has no authority to hire or to discharge any employee nor does he have any authority to make rec- ommendations in these respects, he has no authority to recommend any employee for a wage increase, he has no authority to grant time off to any employee, and he has no authority or power to affect the tenure of employment of any employee in any way. Also, according to Sher, Pinto has no authority whatsoever over any employee. Further, Pinto does not enjoy various benefits which the Company pro- vides for its supervisory personnel, which include health insurance, life insurance, and the privilege of obtaining gas- oline from the Company for their personal vehicles and 12 See Shelby Liquors and Athens Distributing Company, a Division of Shelby Liquors, 208 NLRB 859 (1974), Continental Can Company, Inc, 148 NLRB 640, 641 (1964) 13 In his brief General Counsel presents an elaborately constructed argu- ment in support of his position However , the argument . although well writ- ten, depends upon more inferences being made than the evidence will Justify insurance provided by the Company for their personal vehi- cles. Pinto's duties, as described by Sher, involve parking cabs in the Company's garage, checking the oil levels in vehicles, pumping gasoline, giving out waybills and eading meters. The last two items require explanation. efore a driver may take a taxicab from the Company's g, rage he is required to have a waybill. During the day the waybills are distributed by the dispatcher and, during the hours when the regular dispatcher, George Pilla, is not on duty Pinto gives out the waybills. As described by Sher this is a minis- terial function. The Company maintains a board which lists the taxicabs and alongside each taxicab number are the names of the drivers to whom the cab is assigned. It is Pinto's function merely to deliver the waybills to the as- signed drivers. If during the night a driver returns because his cab is defective and if the mechanic on duty ascertains that the vehicle cannot be repaired quickly the mechanic will advise Pinto to assign another taxicab to the driver. Pinto then will give the driver an available cab so that the driver will be able to complete his shift.14 Pinto also reads the meters of cabs that are returned while he is on duty. This is a step which is required to be taken before the driver deposits his receipts. General Counsel's principal witness in support of his con- tention that Pinto is a supervisor was Gordon E. Furbush. From April 1973 until he was discharged in October of the same year, Furbush was employed by the Company as the radio taxi dispatcher at night. He worked generally the same hours as Pinto but his office was located elsewhere in the Company's premises. Furbush testified that Pinto's duties involved the following- giving out cabs to drivers, handling lost and found articles, and acting as a relay for personal calls to drivers. According to Furbush, Pinto was always in the office downstairs to cover the telephone. Also, when cabdrivers returned at night Pinto received their waybills, read the figures off the meters, and gave them a bag in which to deposit their receipts. Furbush testified, "I never knew [Pinto] parking any cars or checking any oil or anything like this." According to Furbush's further testimony, Pinto was a salaried employee, and if Pinto did not give a cab to a dnver during the night there was no one else present to whom the driver could appeal. In refusing a cab to a driver, according to Furbush, Pinto never explained his reasons, "He'd just say, 'We don't have enough,' or `We don't have this,' or `I can't give it to you. It's too late.' Or something like that." Finally, Furbush testified that drivers report to Pinto if they will be absent from a scheduled night shift, and 14 General Counsel's witness Gordon E Furbush generally corroborated Sher's testimony regarding Pinto's function in reassigning taxicabs to drivers who had breakdowns during the night According to Furbush, when the mechanic was unable to fix a disabled vehicle the mechanic would say, "'Go downstairs and tell Norman [Pinto] that the cab is inoperable for the eve- ning' And I'd go down and tell him And if he had something available he'd give it to me If all the cabs were out on road, he had no choice of giving me another cab and he'd say, 'Wait until somebody comes in' But usually he'll say, 'Why don't you just forget about it and go home and try again tomorrow?' " The testimony of Stephen James Crabtree is not inconsis- tent Crabtree testified that approximately 14 months ago he had the unfortu- nate experience of having two vehicle breakdowns in the same evening After the second breakdown when he went to the garage for a third cab Pinto suggested that he should go home However, Crabtree remonstrated that the breakdowns were not his fault and "was able to convince [Pinto] that [he] should be allowed to take another cab out of the garage" BOSTON CAB CO., INC. 565 when he (Furbush) was working at night if he had any question he would ask Pinto for advice because Pinto had been working for the Company longer than he and there was no one else to answer the question. Contrary to General Counsel, I find that such authority as Pinto exercises is of a routine nature not requiring inde- pendent judgment and that General Counsel has failed to prove that Pinto is a supervisor within the meaning of Sec- tion 2(11) of the Act. As there is no other basis in the record for finding that Pinto was an agent of the Respondent I shall dismiss the allegation of the complaint relating to him.15 Following the close of the hearing General Counsel moved to amend paragraph 7 of the complaint "to add the name of Jack Barenholtz and his position as management official." Respondent'does not oppose the motion but con- tends that Jack Barenholtz, during the times material to this case, was not a management official and was not an agent of the Respondent or a supervisor of the Company within the meaning of Section 2(11) of the Act. General Counsel's motion is granted. At the hearing the parties stipulated that Jack Barenholtz, who is 70 years old, is the father of Beryl and Leslie Barenholtz and the grandfather of Daryl Baren- holtz. Jack Barenholtz formerly owned McCann Taxi Com- pany, which is the predecessor of the Company that bought Boston Cab Company. Jack Barenholtz has been retired for the past 2 or 3 years. He holds no office with the Company, no ownership interest in the Company, and no debt interest in the Company. He is a widower and spends time in a small office where he plays cards with friends and where at other times he chats with drivers. The only significant evidence involving Jack Barenholtz arises from the testimony of Jo- seph W. Davis. According to Davis, in October 1973 when 15 Contrary to General Counsel, the evidence does not establish that "the Employer had held out Pinto in a position of apparent authority" so that responsibility for Pinto's alleged coercive statement should be attributed to the Company. he reported to work the dispatcher, George Pilla, informed him that Jack Barenholtz wished to speak to him. Jack Barenholtz came down and told Davis that two nights earli- er Davis had been observed driving too fast in downtown Boston and someone from the Hackney Bureau had called about the matter. Barenholtz also said that he personally had observed Davis driving too fast. Barenholtz spoke to Davis for about 20 minutes as to why Davis should not drive fast and why it was dangerous to drive fast. No discipline was imposed upon Davis as a result of this incident. I find, in agreement with Respondent, that Jack Baren- holtz during the times material herein, was not a supervisor or agent of the Company. However, I have given consider- ation to Davis' testimony. If Jack Barenholtz was aware of a complaint received from the Hackney Bureau it is likely, and I infer, that the report had been received by an active management official. Upon the basis of the above findings of fact, and the entire record in the case, I make the following: CONCLUSION OF LAW Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERI6 The complaint is dismissed in its entirety. 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all.objectiions thereto shall be deemed waived for all purposes.