City Cab Co. of Orlando, Inc.

I)t('ISIONS OF NA'IONAI. ILABOR REL.AIIONS BOARI) City Cab Company of Orlando, Inc.; Yellow Cab Company of Orlando, Inc. d/b/a Yellow Cab Com- pany and Dixie Cab Company and Yellow, City, Dixie Independent Cab Drivers Association. Case 12 C'A8436 May 9. 1979 I)t('ISION AND ORDER BY CHAIRMAN FANNING ANI) MI MBERS JENKINS ANI) MURPH'Y Upon a charge filed on December I 1, 1978, by Yel- low. City, Dixie Independent Cab Drivers Associ- ation, herein called the Union, and duly served on City Cab Company of Orlando, Inc.; Yellow Cab Company of Orlando, Inc. d/b/a Yellow Cab Com- pany and Dixie Cab Company, herein collectively called Respondent. the General Counsel of the Na- tional Labor Relations Board, by the Regional [)irec- tor for Region 12, issued a complaint on December 28, 1978, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on October 26, 1977. following a Board election in Case 12 RC 5243, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate:' and that, commencing on or about November 30, 1978, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 9, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 2, 1979, counsel for the General Counsel filed directly with the Board a Motion fo)r Summary Judgment. Subsequently, on February 9, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary I Official notice is taken of the record in the representation proceeding. Case 12 RC 5243. as the term "record" is defined in Secs 10268 and 102.69(g) of the Board's Rules and Regulations, Series 8. as amended See LTV Eletrostnr'Lr . In., 166 NIRB 938 (1967), enf'd 388 F.2d 683 (4th ('r. 1968); Gden 4ge Beverage (, 167 NI.RB 151 1967), entd. 415 2d 26 (5th ('ir. 1969); Interr pe Col ( v. Penell, 269 F Supp 573 (I)('Va. 1967): Foilerr Corp, 164 NlRB 378 (1967). enid. 397 F 2d 91 (7th ('r 1968): Sec. 9(d) of the NRA, s amended. Judgment should not be granted. Respondent there- after filed a response to the Notice To Show Cause.2 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 au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent admits its refusal to bargain but attacks the Union's certification on the basis that a unit including contract drivers is inappro- priate. In his Motion 'or Summary Judgment, counsel fior the General Counsel alleges that Respondent seeks to relitigate issues previously considered in the underlying representation case and that there are no factual issues warranting a hearing. Our review of the record herein, including the rec- ord in Case 12 RC-5243. discloses that on January 10, 1977, the Union filed a petition in which it sought to represent certain of Respondent's employees. Sub- sequent to a hearing, the proceeding was transferred to the Board. On September 19, 1977, the Board is- sued its Decision and Direction of Election,' directing that an election be held in the fiollowing appropriate unit: All regular and part-time taxi drivers at the West Gore Street, Orlando. Florida, facility, including contract drivers and Winter Park drivers, exclud- ing all other employees, dispatchers, starters, of- fice clerical employees, guards and supervisors as defined in the Act. Thereafter, an election was held on October 14, 1977. The tally ot ballots showed 91 votes cast for the Union and 37 against. There were eight challenged ballots, an insufficient number to affect the results. No objections were filed. The Regional Director is- sued a certification of representative on October 26, 1977, certifying the Union as the exclusive collective- bargaining representative in the appropriate unit. In response to the Notice To Show Cause, Respon- (dent argues that the Board erroneously found certain taxicab drivers to be employees, citing Sealflrers. Lo- cal 777v. N.L.R.B.. 603 F.2d 862 (1978). In Seafrirers, the United States Court of Appeals or the District of Columbia Circuit reversed the Board's finding in Yel- low ('ah ('Comparnv. 229 NLRB 1329 (1977), that cer- tain taxicab drivers were employees and specifically found that they were independent contractors. Re- 2 Respondent's request for oral argument is hereby denied as the pleadings and hriefs a.dequatel set fiirth the issues and positions of the parties '232 NI.RB 11)5 (1977) 242 NLRB No. 16 94 CITY CAB COMPANY OF ORLANDO. INC. ET Al.. spondent, noting that the Board relied on Yellow Cah Company, supra, in the underlying representation pro- ceeding, argues that the court's decision warrants a finding here that certain taxicab drivers are indepen- dent contractors and not employees. Yellow Cab Company, however, was cited in the Board Decision in Case 12-RC 5243 solely for the established propo- sition that a determination of whether an employer- employee relationship exists requires an analysis and balancing of the facts in each case; in any event, that case is factually distinguishable from the instant one. Moreover, we have again reviewed the facts concern- ing the cab drivers in dispute and reaffirm our earlier finding that they are employees. 4 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.5 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We theretfore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice ploceeding. Accordingly we grant the Motion for Summary Judgment. 6 We find that an analssis and a balancing of the facts here clearl manl- test an emploser-employee relationship The Emploser publishes rules to which it requires all cab drivers to adhere. These rules govern the operation of all cabs at the airport and are published to meet the obligation of a concession agreement between the Employer and the Orlando airport. The cabs dnven by contract dnrivers are wholly owned by the Employer with income realihzed from advertisements on the trunks of the cabs accruing sole- ly to the Employer. Both contract and commission drivers must report to the Employer's facility to get a cab as no specific cabs are assigned to contract drivers. The Employer maintains a dress code and requires all drivers to adhere to it. If a contract driver fails to meet the dress code standards, he is not allowed to drive a cab. After receiving a cab. the contract driver is provided with a trip record sheet which he is required to keep The contract driver may use the Employer's dispatcher to receive customer calls, al- though. at least theoretically, he is not bound to the dispatch ssten. How- ever, contract drivers have received oral reprimands from a dispatcher when they have refused requests to pick up rides. Finally, through its abilit to make unilateral changes in the contract and the rates at any time, the Em- plhsyer effectively controls working conditions and the amount of mones drivers can earn. ISee Piltrhurgh Plate (;Glass C(o . , L R.R. 313 US 146. 162 1941); Rules and Regulations of the Board. Secs 102.67(f) and 102.691c). ' In its answer to the complaint, Respondent. in addition to denying the commission of any unfair labor practices. denies that the appropriate unit includes contract drivers. Inasmuch as the issue of what constitutes an ap- propriate unit was disposed of b the Board in its previously referred to Decision and Direction of Election, n litigable issue is raised by Respon- dent's denial Respondent also denies that a niajority ot the alid ballots were cast for the Union in the October 14, 1977, election, and that the Union is now and has been at all tines since October 26. 1977 the representiatie of FINDIN(iS ()F FA(I I. THE BUSINESS O() RFSPONDI I City Cab Company of Orlando. Inc.. and Yellow Cab Company of Orlando. Inc.. d/b/a Yellow Cab Company and Dixie Cab Company, are Florida cor- porations engaged in the operation of taxicab service in and around the city of Orlando. Florida. Respon- dent corporations are, and at all times material herein have been, affiliated businesses with common officers, ownership, directors, and operations and constitute a single integrated business enterprise. The said direc- tors and operators formulate and administer a com- mon labor policy for the aftorenamed companies. af- fecting the employees of said companies. During the past 12 months Respondent, in the course and con- duct of its business operations. had a gross volume of business exceeding $500,000 and during the same pe- riod, did receive parts and supplies valued in excess of $10,000 at its Orlando. Florida, facility, which were shipped directly to it from points located outside the State of Florida. We find, on the basis of the foregoing. that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. IHE Ai3OR )R(iANIlZAIlI()N IN\OI.\'I) Yellow, Cit!. Dixie Independent Cab Drivers As- sociation is a labor organization within the meaning of Section 2(5) of the Act. the emplosees n the stipulated appropriate unit Itoever the Certificatiin of Representative issued hb the Regional Director on October 26. 1977. cer- tifying the nion as the exclusise bargaining representatise. disposed of these issues and they therefore cannot be relitigated herein. Respondent also denies that on or about March 16. 1978. Respondent and the Union entered into an nterim collective-bargaining agreement. flovever. a cp of this interim agreement signed b Paul S. Mears. admitted bh Respondent to be its president. and Duane A. Johnson, president of the nilon, is attached to the General (Counsel's Motion for Sumnmar) Judgment and Respondent has submitted nothing to controvert this document or ts contents Respondent denies additionally that on or about Nosember 15, 1978. the L nion requested Respondent to bargain oer the terms of a new collectise- bargaining agreement and that it refused and continlues to refuse to bargain with the Union Iwever. Respondent admits sending letter d.ated Noem- ber 30. 1978, n which it advised that it a: responding o the I iuon's letter of iovenmber I 5 and that Respondent would n longer sccgn.le the Union or cntinue to meet and bargain with it on behalf ol the contract drisers Having admitted to sending said letter in response to the Union's request tfr bargaining, Respondent's denials in these regards are without ans substance and raise no htIg:able issues Respondent neither admits nor denies in ts ansv.r hat i is .In emplo ser engaged in commerce within the meaning of Sec 216) and (7) f the Act. but demands pro tof thereof Inasmuch as Respondent has admitted the taclual allegations on which the conclusionaro allegation oft'lrisdiction is based. we find that assertion nf jurisdiction is warranted 95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All regular and part-time taxi drivers at the West Gore Street, Orlando, Florida facility, including contract drivers and Winter Park drivers; ex- cluding all other employees, dispatchers, starters, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On October 14, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 12, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on October 26, 1977, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 15, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about November 30, 1978, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since November 30, 1978, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and () of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. City Cab Company of Orlando, Inc., and Yel- low Cab Company Orlando, Inc. d/b/a Yellow Cab Company and Dixie Cab Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Yellow, City, Dixie Independent Cab Drivers Association is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All regular and part-time taxi drivers at the West Gore Street, Orlando, Florida facility, including contract drivers and Winter Park drivers, but exclud- ing all other employees, dispatchers, starters, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 26, 1977, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 96 CITY CAB COMPANY OF ORLANDO, INC., ET AL. 5. By refusing on or about November 30, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent hs engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent. City Cab Company of Orlando, Inc., Yellow Cab Com- pany of Orlando, Inc., d/b/a Yellow Cab Company and Dixie Cab Company, Orlando, Florida, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Yellow, City, Dixie In- dependent Cab Drivers Association as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All regular and part-time taxi drivers at the West Gore Street, Orlando, Florida facility, including contract drivers and Winter Park drivers, but ex- cluding all other employees, dispatchers, starters, office clerical employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its West Gore Street, Orlando, Florida facility copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 In the event that this Order is enforced b a Judgment ofa United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Yel- low, City, Dixie Independent Cab Drivers Asso- ciation as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All regular and part-time taxi drivers at the West Gore Street, Orlando, Florida facility, including contract drivers and Winter Park drivers, excluding all other employees, dis- patchers, starters, office clerical employees, guards and supervisors as defined in the Act. CITY CAB COMPANY OF ORLANDO(), INC.; YELLOW CAB COMPANY OF ORLANDO, INC. D/B/A YELLOW CAB COMPANY AND DIXIE CAB COMPANY 97