Opinion
The definition of "employer" in the Labor Relations Act as meaning "any person acting directly or indirectly in the interest of an employer in relation to an employee" shows a legislative intent to exclude such a person from the class of "employees." The dispatchers of the G Taxi Co. assigned the drivers to their tasks and directed the company's entire operations for 90 percent of the time during which the company was open for business, thus acting "directly or indirectly in the interest of" the company "in relation to" other employees. Consequently, the dispatchers could not be considered "employees" within the meaning of the act. Held that the company did not violate the act by refusing to bargain with the union representative of employees concerning them.
Argued April 8, 1964
Decided May 5, 1964
Petition for the enforcement of an order of the plaintiff requiring the defendant to desist from unfair labor practices and to bargain collectively with a certain union, brought to a judge of the Superior Court and by him certified to the Superior Court in Fairfield County at Stamford, where the issues were tried to the court, Comley, J.; judgment for the defendant and appeal by the plaintiff. No error.
Appeal from an order of the defendant requiring the plaintiff to desist from unfair labor practices and to bargain collectively with a certain union, brought to the Superior Court in Fairfield County at Stamford and tried to the court, Comley, J.; judgment sustaining the appeal, from which the defendant appealed to this court. No error.
Alphonse C. Jachimczyk, assistant attorney general, with whom, on the brief, was Harold M. Mulvey, attorney general, for the appellant (plaintiff in the first case and defendant in the second).
Robert C. Bell, Jr., for the appellee (defendant in the first case and plaintiff in the second).
These two cases, which arise under the Connecticut Labor Relations Act (General Statutes, c. 561, 31-101 — 31-111), were tried together and argued together on appeal. In one, the state board of labor relations, which we shall call the board, petitioned the Superior Court to enforce an order of the board directing the Greenwich Taxi Company, Inc., which we shall call the company, to cease and desist from an unfair labor practice and to take certain affirmative steps in connection with that order. General Statutes 31-109. In the other case, the company petitioned the Superior Court, under the same section of the act, to modify or set aside the order. The single issue in the two cases is whether the board correctly concluded that three dispatchers were employees of the company within the meaning of General Statutes 31-101 (6) and (7) so that the company was obliged to bargain with the union bargaining representative of the company's employees concerning wages, hours, and terms or conditions of employment of the dispatchers. General Statutes 31-105 (6) The court found against the board in each case, and the board has appealed.
"Sec. 31-101. DEFINITIONS. When used in this chapter, . . . (6) `employee' includes, but shall not be restricted to, any individual employed by a labor organization, any individual whose employment has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, and shall not be limited to the employees of a particular employer; but shall not include any individual employed by his parent or spouse or in the domestic service of any person in his home, any individual employed only for the duration of a labor dispute or any individual employed as an agricultural worker; (7) `employer' means any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ."
"Sec. 31-105. UNFAIR LABOR PRACTICES. It shall be an unfair labor practice for an employer: . . . (6) to refuse to bargain collectively with the representatives of employees . . . ."
The evidence before the board may be briefly summarized. The company employs three dispatchers and about thirty-five drivers. Its office is at the Greenwich railroad station. The only officer of the company who exercises any direction over the operation, of the business is its president. He spends an hour or an hour and a half a day at the office, or about 10 percent of the 126 hours a week during which the office is open. For the rest of the time the business is operated by the dispatchers. The dispatchers communicate with the drivers by means of two-way radios. The dispatchers do not drive taxis. In general, the dispatchers' duties are to receive and record telephone calls for taxi service, dispatch drivers, assign particular drivers to serve the requirements of customers, receive and record the daily cash receipts collected by the drivers preparatory to deposit by the company president, institute disciplinary action when necessary against drivers and release surplus drivers or call in extra drivers as the volume of business requires. They do not have the absolute authority to hire or discharge drivers, but their recommendations in this respect are considered and acted on by the company. The dispatchers are paid an hourly wage, and the drivers receive a minimum of sixty cents an hour plus a percentage of their gross receipts and their tips.
The union, which is the bargaining representative of the company's drivers, filed with the board a charge that the company had refused to bargain concerning the wages, hours, and terms and conditions of employment of the dispatchers, pursuant to General Statutes 31-105 (6). Following a hearing, the board decided that the dispatchers were employees for whom the union was entitled to bargain. Contrary to our suggestion in Bisogno v. Connecticut State Board of Labor Relations, 149 Conn. 4, 8, 174 A.2d 797, the board has refrained from making a finding of subordinate facts. Its only factual findings are the conclusions that the company is a Connecticut corporation with a principal place of business at the railroad station in Greenwich, that the union is a labor organization existing and constituted for the purpose, in whole or in part, of collective bargaining with employers and that the company failed and refused to engage in collective bargaining with respect to the dispatchers. While the board is not required to make a finding of subordinate facts; L. Suzio Construction Co. v. Connecticut State Board of Labor Relations, 148 Conn. 135, 138, 168 A.2d 553; Imperial Laundry, Inc. v. State Board of Labor Relations, 142 Conn. 457, 461, 115 A.2d 439; it is preferable that it do so in order that the evidence which it credits may clearly appear. The language used in this case makes it obvious that the controlling consideration motivating the board's decision was the fact that the dispatchers did not have the unrestricted authority to hire and dismiss employees.
The correctness of the board's decision turns on the meaning of employee under the language of our act. The definition of "employee" found in 31-101 (6) is of no assistance on the issue here, serving, as it does, only to include or exclude described groups in or from the generic term "employee," which, in common parlance, is defined as "one employed by another . . . [usually] in a position below the executive level and . . . [usually] for wages." Webster, Third New International Dictionary. The definition of "employer" as found in 31-101 (7) is more helpful, since it is stated to mean "any person acting directly or indirectly in the interest of an employer in relation to an employee." 31-101 (7). When the two subsections are read together, it becomes clear that the General Assembly intended to differentiate between employees, as that term is commonly used, and employees in a narrower meaning which excludes those persons whose duties involve acting directly or indirectly in the interest of their employer in relation to another employee.
The application of the distinction thus made must necessarily depend on the facts of each case. In making the distinction, however, it is apparent that the test must be whether, on the particular facts involved, the person or persons concerned are acting directly or indirectly in the interest of the employer in dealing with another employee. Quite obviously, the authority to hire or dismiss employees, standing alone, is an insufficient and inadequate test. The record before the board demonstrates that the dispatchers directed the company's entire operations for 90 percent of the time during which the company was open for business. We hold that, under chapter 561 of the General Statutes and the facts of this case, these dispatchers are not employees within the meaning of 31-101 (6), and consequently the company did not violate 31-105 (6) in refusing to bargain with the union representative of employees concerning them.