Associated Diamond Cabs, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1981

254 N.L.R.B. 1052 (N.L.R.B. 1981)

kpsc~iated
12-
1
1
Upon 1980,' by
Local
Un~on,
Lalmr
spc'ndent
unjair
8(a)(5)
2(6)
am1
juc.ge pro-
ceding.
With
co~nplaint
Union collec-
appropriate;2
co.mmencing
Ur~ion
anrwer
On
Bc~ard
the Judg-
mont
Cross-
afier
c21use.
-
'
' Oflicial
12-RC-5829, Secs.
an< 102.69(g) 8.
S a Electmrysem Inc., 166 (1967). F.2d
(4tl1 Bewmge Co., (1967),
F.2d intertype Penello. F.Supp.
(D C.Va. Follett Corp., 164 (1967). F.2d
(7111 1968): Sec. 9(d)
8(a)(5)
'
Ca N.LR.B.. 162
Secs. 102.67(0 102.69(c).
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond Cabs, Inc. and Local #1, The
Brotherhood of Taxi Drivers Union. Case
CA-933
March 4, 198
DECISION AND ORDER
a charge filed on September 4,
#1, The Brotherhood of Taxi Drivers
herein called the Union, and duly served on
Associated Diamond Cabs, Inc., herein called Re-
spondent, the General Counsel of the National
Relations Board, by the Acting Regional Di-
rector for Region 12, issued a complaint on Sep-
tember 24, against Respondent, alleging that Re-
had engaged in and was engaging in
labor practices affecting commerce within
the meaning of Section and (1) and Section
and (7) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
notice of hearing before an administrative law
were duly served on the parties to this
respect to the unfair labor practices, the
alleges in substance that on May 30, fol-
lowing a Board election in Case 12-RC-5829, the
was duly certified as the exclusive
tive-bargaining representative of Respondent's em-
ployees in the unit found and that,
on or about June 18, and at all times
thereafter, Respondent has refused, and continues
to date to refuse, to bargain collectively with the
as the exclusive bargaining representative,
although the Union has requested and is requesting
it to do so. On October 3, Respondent filed its
to the complaint admitting in part, and den-
ying in part, the allegations in the complaint.
November 18, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mitry Judgment. Subsequently, on December. 1, the
issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
General Counsel's Motion for Summary
should not be granted. Respondent, on De-
cember 1, filed directly with the Board a
Motion for Summary Judgment. Respondent there-
filed a response to the Notice To Show
All dates hereinafter are 1980.
notice is taken of the record in the representation proceed-
ing. Case as the term "record" is defined in 102.68
of the Board's Rules and Regulations. Series as amended.
LTV NLRB 938 enfd. 388 683
Cir. 1968): Golden Age 167 NLRB 151 enfd. 415
(5th Cir. 1969); Co. v. 269 573
1967): NLRB 378 enfd. 397 91
Cir. of the NLRA. as amended.
254 NLRB No. 134
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
On March 27 the Acting Regional Director for
Region 12 issued a Decision and Direction of Elec-
tion. Thereafter, Respondent filed a request for
review, contending that the employees found to
constitute an appropriate unit were not employees
within the meaning of the Act but were indepen-
dent contractors. On April 23 the Board issued an
order denying Respondent's request for review. An
election was conducted on April 23. The tally
showed 32 votes for and 10 against the Union, with
26 challenged ballots, a determinative number. Fol-
lowing an investigation, the Acting Regional Di-
rector on May 30 issued a Supplemental Decision
on Challenged Ballots and Certification of Repre-
sentative certifying the Union as the exclusive rep-
resentative of all of Respondent's employees in the
appropriate unit.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
General Counsel's Motion for Summary Judgment.
We also deny Respondent's Cross-Motion for Sum-
mary Judgment which is based on the same argu-
ments that were decided by the Acting Regional
Director and upon which we denied Respondent's
request for review.
On the basis of the entire record, the Board
makes the following:
I. THE BUSINESS OF RESPONDENT
Respondent is a nonprofit corporation with an
office and place of business located in Miami, Flor-
ida, where it is engaged in the business of taxicab
See Pittsburgh Plate Glass v. 313 U . S . 146, (1941);
Rules and Regulations of the Board, and
26
operatio.ns,
,pods,
purchase
Iqorida.
2(6)
will
jursdiction
11.
2(5)
I: UNFAIR
A. Proceeding
1.
foliowing
within 9@)
. e w e s
Erlployer ex-
cludinhr shareholder/owner-drivers,
~nechanics,
rinder
Director
their
Unicln
;md
repr,%ntative
9(a)
A
collec-
has
8(a)(5)
111,
8(a)(5) (1)
b
of,all
Znc.,
(1962),
F.2d 1964),
Burnett
(1964), F.2d
ASSOCIATED DIAMOND CABS. INC. 1053
service. In the course and conduct of its business
Respondent and its members annually
receive revenues in excess of $500,000 from the
furnishing of taxicab services and annually pur-
chase and receive at Respondent's Miami, Florida,
facility supplies, and materials valued in
excess of $50,000 directly from suppliers who in
turn and receive such goods, supplies, and
materials directly from points located outside the
State of
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section and (7) of the Act, and
that it effectuate the policies of the Act to
assert herein.
THE LABOR ORGANIZATION INVOLVED
Local #1, The Brotherhood of Taxi Drivers
Union, is a labor organization within the meaning
of Sectior of the Act.
I. THE LABOR PRACTICES
The Representation
The unit
The employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes the meaning of Section of the
Act:
All full-time and regular part-time taxi drivers,
including steady daily lessees, extra-board
daily and annual lessees employed by
the at its Miami, Florida facility;
all garage
men, dispatchers, office clericals,
guards and supervisors as defined in the Act.
2. The certification
On April 23, a majority of the employees of Re-
spondent in said unit, in a secret-ballot election
conducted the supervision of the Acting Re-
gional for Region 12, designated the
Union as representative for the purpose of
collective bargaining with Respondent.
The was certified as the collective-bar-
gaining representative of the employees in said unit
on May 30 the Union continues to be such ex-
clusive within the meaning of Sec-
tion of the Act.
B. The equest To Bargain and Respondent's
Refusal
Commencing on or about June 6, and at all times
thereafter, the Union has requested Respondent to
bargain collectively with it as the exclusive
tive-bargaining representative of all the employees
in the above-described unit. Commencing on or
about June 18, and continuing at all times there-
after to date, Respondent refused, and contin-
ues 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
June I8 and at all times thereafter, refused to bar-
gain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR

PRACTICES UPON COMMERCE

The activities of Respondent, set forth in section
above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 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 employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the a p
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company,
136 NLRB 785 (1962); Commerce Company d /b /a
Lamar Hotel, 140 NLRB 226, 229 enfd. 328
600 (5th Cir. cert. denied 379 U.S. 817;
Construction Company, 149 NLRB 1419,
1421 enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
employ-
2(6)
01' 2(5)
driven,
Florida, share-
hclder/owner-drivers,
okce
tht:
mc:aning 9(b)
4.
exclu-
sivl:
9(a)
AcI:.
times
bar1:aining
Resl~ndent
prac-
tim.. 8(a)(5)
en-
gaga1
8(a)(l)
'I'he
mean:!ng 2(6)
1qc)
lations,
Assoc,
IXefusing
c~f
daily -lessees,
shareholder/owner-drivers,
dispatchers,
supervison
@) Florida,
"Appendi~."~
Appeals.
read Punu-
Coun an
Relationa Board."
NOTICE TO EMPLOYEES
Driven
1054 DECISIONS OF NATIONAL LABOR RELATIONS
CONCLUSIONS OF LAW
1. Associated Diamond Cabs, Inc., is an
e:r engaged in commerce within the meaning of
Section and (7) of the Act.
2. Local #1, The Brotherhood of Taxi Drivers
Union, is a labor organization within the meaning
Section of the Act.
3. All full-time and regular part-time taxi
including steady daily lessees, extra-board daily les-
sees and annual lessees employed by the Employer
at its Miami, facility; excluding all
garage men, mechanics, dis-
patchers, clericals, guards and supervisors as
defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the
of Section of the Act.
Since May 30, the above-named labor organi-
zation has been and now is the certified and
representative of all employees in the aforesaid
appropriate unit for the purpose of collective bar-
gaining within the meaning of Section of the
5. By refusing on or about June 18, and at all
thereafter, to bargain collectively with the
above-named labor organization as the exclusive
representative of all the employees of
in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor
within the meaning of Section of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has
in and is engaging in unfair labor practices
within the meaning of Section of the Act.
7. aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
of Section and (7) of the Act.
ORDER

Pursuant to Section
of the National Labor
Relations Act, as amended, the National Labor Re-
Board hereby orders that the Respondent,
ated Diamond Cabs, Inc., Miami, Florida, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) to bargain collectively concerning
rates pay, wages, hours, and other terms and
conditions of employment with Local #1, The
Brotherhood of Taxi Drivers Union, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part-time taxi drivers,
including steady extra-board
daily lessees and annual lessees employed by
the Employer at its Miami, Florida facility; ex-
cluding all
men, mechanic
guards and
s,
as
garage
office clericals,
defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
Post at its Miami, facility copies of
the attached notice marked 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 Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, 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 here-
with.
In the event that this Order is enforced by a Judgment of a United
States Court of the words in the notice reading "Posted by
Order of the National Labor Relations Board shall "Posted
ant to a Judgment of the United States of Appeals Enforcing
Order of the National Labor
APPENDIX
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 Local #1, The Brotherhood of Taxi
Union, as the exclusive representative
1055
de-
sciibed
\Ve
described
;ems condiGo&
t:mployment,
shareholder/owner-drivers,
ofice
ASSOCIATED DIAMOND CABS, INC.
of the employees in the bargaining unit
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
will, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit
below, with respect to rates of pay,
wages, hours, and other and
of and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time taxi drivers,
including steady daily lessees, extra-board
daily lessees and annual lessees employed by
the Employer at its Miami, Florida facility; ex-
cluding all garage
men, mechanics, dispatchers, clericals,
guards and supervisors as defined in the Act.