Barwood, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1974

209 N.L.R.B. 19 (N.L.R.B. 1974)

BARWOOD, INC.
Barwood, Inc. and Automotive , Petroleum, Cylinder
and Bottled Gas, Chemical Drivers, Helpers and
Allied Workers, Local Union No . 922, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 5-CA-5948
February 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MLMBERS
FANNING AND KENNEDY
On June 21, 1973, Administrative Law Judge
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm, with the exception
noted in footnote 1 below, the rulings, findings, and
conclusions i 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be dismissed in its
entirety.
MEMBER FANNING, dissenting:
I cannot agree with my colleagues to dismiss this
alleged refusal to bargain with a certified representa-
tive for the reasons they give. The circumstances are
unusual and, in my view, the record in the underlying
representation proceeding should be reopened before
dismissal is considered.
The Union was certified in September 1971 after
i While adopting the Administrative Law Judge 's conclusion , we do not
adopt his finding of a violation of Sec 8 (a)(5) We agree with the
Administrative Law Judge that, where a respondent is charged with refusal
to bargain with a union certified after a stipulated election, the complaint
proceeding is sufficiently related to the representation proceeding to
preclude relitigation of the scope of the appropriate unit and employees
therein However, in the present case, Respondent was permitted by the
Administrative Law Judge, without objection from the General Counsel, to
introduce evidence which clearly establishes that the cab drivers, who
constitute a majority of the persons included in the unit, are in fact
independent contractors inasmuch as the General Counsel has not
excepted to the admission of such evidence. we are presently constrained to
consider it in reaching our decision In these circumstances , we can only
19
the parties stipulated to a consent election in a unit
of all garage employees and all cabdrivers driving
vehicles rented on a daily basis from the Employer,
here the Respondent. The parties apparently were
satisfied with the conduct of the election and
bargaining ensued. Bargaining later came to a halt
over cab rentals and a charge was filed by the Union
in August 1972. The next month a settlement
agreement was reached which extended the certifica-
tion year for 5 months. Bargaining began again.
Later Respondent employed a new attorney. Bar-
gaining broke down. As the Administrative Law
Judge found, the Respondent has at all times failed
to bargain about cab rental rates.
In the course of the present 8(a)(5) proceeding
Respondent has taken the position that it will not
bargain about cab rental rates because the drivers are
independent contractors. Although the Union filed
the charge, it did not appear at the hearing, held in
May 1973. Its president testified for the General
Counsel concerning the certification and the bargain-
ing thereafter, thus developing the refusal-to-bargain
aspect of the case. Respondent's sole witness was its
general manager who testified concerning the duties
of drivers, thus attacking the unit on which certifica-
tion was based. The General Counsel did not object
to the introduction of such testimony though it had
the effect of relitigating a matter disposed of some 16
months earlier in the related representation proceed-
ing. Based on this testimony the Administrative Law
Judge found the unit drivers to be independent
contractors, seeing no alternative to such a ruling in
view of the thrust of the evidence before him.
It appears that the Charging Party may have failed
to participate in the hearing in view of the Board's
well-known rule against relitigating at the complaint
stage issues passed upon at the representation stage.
Accordingly, I would give it an opportunity to
adduce testimony concerning the independent con-
tractor contentions. To this end I would issue an
order to show cause in the representation proceeding
why the outstanding certification should not be
revoked inasmuch as the unit now appears to include
a majority of persons not defined as employees in the
Act.
To conclude on this record that the drivers are not
conclude that the cab drivers are not employees within the meaning of Sec
2(3) of the Act, that therefore a refusal to negotiate concerning cab rental
rates was not a violation of Sec 8(a)(5). and that, for this reason , we adopt
his conclusion that the complaint herein should be dismissed Pittsburgh
Plate Glass Companp, Chemical Division. 404 U S 157 (1971)
Our dissenting colleague would give the Charging Party an opportunity
to present further evidence on the independent contractor issue , holding, in
effect, the Charging Party not bound by the General Counsel 's failure either
to object or except to the admission of evidence on this issue Whatever
force Member Fanning's argument might otherwise have had seems to us
destroyed by the fact the Charging Party has not seen fit to file exceptions
to the Administrative Law Judge's dismissal of the complaint in its entirety
209 NLRB No. 8
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and thus dismiss the 8(a)(5) allegation
seems not only unfair to unit employees as a whole,
but premature. The decision to do so should not
hinge on the General Counsel's failure to object to
the introduction of the evidence during the hearing
followed by exceptions ignoring that facet of the
problem.2
In the circumstances I would give all parties the
opportunity to defend-or attack-the certification
in the proper proceeding by reopening the represent-
ation case record.
2 It appears that my colleagues-simply because the Union now may
have lost interest in representing the drivers - -would leave the garage
employees who make up the balance of the unit in representational limbo
Were the Board , on its own motion, to issue a motion to show cause why its
outstanding certification should not be revoked , this would be an orderly
way of resolving the unit issue that should not have arisen in this complaint
case. That approach would reflect a proper concern for the rights of
employees who through Board processes , elected a union to represent them
If the Union does not participate , the certification will be revoked , leaving
at least the garage employees unquestionably free to seek a new bargaining
representative if they so desire.
DECISION
STATEMENT OF TILE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon a
charge filed on January 30, 1973, by Automotive, Petrole-
um, Cylinder and Bottled Gas, Chemical Drivers, Helpers
And Allied Workers, Local Union No. 922, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, against Barwood, Inc., Respondent herein, the
Regional Director for Region 5 of the National Labor
Relations Board, herein called the Board, issued a
complaint on behalf of the General Counsel of the Board
on March 20, 1973, against the Respondent, alleging
violations of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended (29 U.S.C., § 151, et seq ),
herein called the Act. In its duly filed answer the
Respondent, while admitting certain allegations of the
complaint, denied that it was an employer within the
meaning of the Act or that it had committed any unfair
labor practice.
Pursuant to notice a trial was held before me in
Washington, D.C., on May 14, 1973, whereat all parties
were present, represented and provided full opportunity to
call and to cross-examine witnesses , and to file briefs
Briefs were filed with me by both the General Counsel and
Respondent on June 1, 1973.
Upon consideration of the entire record and including
the briefs filed with me, and upon my observation of the
witnesses appearing before me, all of whom I credit, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF THE RESPONDENT'S BUSINESS
Barwood Inc.. Respondent herein, by its own admission,
is a Maryland corporation with its principal office and
place of business in Bethesda, Maryland, where it is
engaged in the operation of taxicab services. In the course
and conduct of its business it admits to receiving annual
gross revenues in excess of $500,000 and annually
purchasing from points outside the State of Maryland
goods and materials valued in excess of $25,000. Respon-
dent denies, however, that it is an employer engaged in
commerce within the meaning of the Act.
In support of its contention that it is not an employer
Respondent sets forth in detail, upon the credible testimo-
ny of its general manager, Charles Steets, the duties and
responsibilities of its cabdrivers and their organizational
relationship to Respondent. Upon this it has been
established to my satisfaction that these individuals are, in
fact, independent contractors, as will be explicated in
detail hereafter. But it is to be noted, however, that in a
previous matter involving the same Respondent (Case
5-RC-7762) the Regional Director, on behalf of the Board,
has already found on the basis of a consent stipulation
agreement between the Respondent and the Union that it
is an employer within the meaning of Section 2(6) of the
Act.
Quite apart from this official determination of Respon-
dent's employer status the unit certified as appropriate for
the purposes of collective bargaining was stated to be:
All garage employees and all cab drivers of the
Employer at its Bethesda, Md. location who drive
vehicles on a daily rental basis but excluding owner-
drivers, office clerical employees, dispatchers, guards
and supervisors as defined in the Act.
Thus, in addition to the disputed category of "cab driver"
which forms the issue in this proceeding (infra ) there are
also "garage employees." As to these Respondent raises no
issue, its attorney stating at the trial, "We are not
challenging the mechanics who are included. We are only
challenging the drivers who lease cabs on the basis that
they are not employees and therefore were erroneously
included in the unit which they never should have been."
Thus, Respondent's argument with respect to drivers to the
contrary notwithstanding, it clearly admits that it is an
employer of the mechanics. Upon the Regional Director's
finding and Respondent's own admission, therefore, I
conclude and find that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
In the pleadings, throughout the trial, and in its brief
Respondent misconceives the term "jurisdiction" by
equating it with the Board's function of interpreting the
BARWOOD. INC.
Act in the determination of a unit of employees appropri-
ate for collective bargaining.
The term "jurisdiction," as traditionally understood by
the Board and the courts ' refers to the power vested in the
Board by the Congress to determine labor relations matters
affecting interstate commerce . I reject as unsupported any
suggestion that it likewise refers to the Board's function in
interpreting, as it will here, specific provisions of the
statute.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted and I accordingly conclude and find that
Automotive, Petroleum, Cylinder and Bottled Gas, Chemi-
cal Drivers, Helpers and Allied Workers, Local Union No.
922, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
111. TILE UNFAIR LABOR PRACTICES
A. Procedural Background
On August 6, 1971 the Union filed with the Regional
Director its petition for an election in support of its claim
to represent a majority of Respondent's employees2 in a
bargaining unit of drivers and mechanics and excluding
dispatchers, office clerical and professional employees, and
supervisors. Thereafter on August 31, 1971, following
consultation between the parties, a Stipulation For
Certification Upon Consent Election was executed by
them and approved by the Regional Director. The
following was agreed upon as the appropriate bargaining
unit:
All garage employees and all cab drivers of the
Employer at its Bethesda. Md. location who drive
vehicles on a daily rental basis but excluding owner-
drivers, office clerical employees, dispatchers, guards
and supervisors as defined in the Act.
On September 16, 1973, an election was held in which 56 of
Respondent's 110 employees voted. The Union was
selected by a vote 38 to 17. Thereafter, on September 24,
1971, the Regional Director, on behalf of the Board.
certified the Union as the exclusive bargaining representa-
tive of the employees in the bargaining unit set forth above.
After some bargaining between the parties negotiations
broke down over cab rentals, the Respondent insisting that
it could not afford the rental rates being proposed by the
Union. A charge was filed on August 24, 1972. in Case
5-CA-5754. Thereafter on September 29 the Respondent
and the Union, with the Regional Director's approval,
executed a settlement agreement , the Respondent agreeing
to bargain with the Union upon request, and to post an
appropriate notice. The agreement by its terms extended
the certification year for an additional 5 months.
After some bargaining in September and October 1972
Respondent retained new counsel who immediately noti-
' See Guss v Utah Labor Retauon, Board. 353 U S. 1.
I Case 5-RC 7762
21
fied the Union of his appointment and suggested an early
meeting. Thereafter, not having heard from the Union, he
sent them a "suggested contract ." Bargaining ensued
during the month of January 1973. General matters were
discussed at the early meetings and it was not until the
January 25, 1973, meeting that the subject of cab rentals
came up for discussion with Attorney Lambeth present
and representing Respondent . Respondent expressed a
willingness to bargain about hourly rated employees,
presumably the mechanics , but took the position that the
daily cab rental rate was a nonnegotiable item and outside
the area of bargaining . Accordingly it has at all times
refused to bargain concerning rental rates.
In the pleadings and in its brief, as well as throughout the
trial , Respondent has taken the position that cabdrivers are
independent contractors and not employees and that
accordingly the Board has no "jurisdiction" in the matter.
In justification of the long delay in raising this legal issue
the Respondent's counsel cites the apparent naivete of
Respondent's previously retained counsel in matters
relating to labor relations law and the procedures followed
before the Board in the matters relating to the certification
of employee representatives.
B. The Respondent 's Defense
it is Respondent's contention that it was not obligated to
bargain with the Union for the reason that the Board had
no authority to assume jurisdiction over the cabdnvers,3
for the reason that they are not employees but independent
contractors . In support of this contention Respondent
adduced unrefuted testimony, which I credited, which
demonstrates the following : The cabs driven by the drivers
(other than the owner-drivers) are the property of Respon-
dent, insured by it, and rented to the individual drier on a
daily rental basis, identical in procedure to the usual hiring
of rental cars. Included in the daily cost of the vehicle to
the driver is the rental fee itself , plus $2 . 50 liability
insurance fee on Respondent 's vehicle , and a $3 "lot fee"
which goes to defray radio dispatch services provided by
an independent organization, and a State sales tax.
Respondent itself defrays the cost of its maintenance of
rental vehicles. The only qualifications required of a driver
is that he possess a valid Maryland operator's license and a
current public vehicle license issued by Montgomery
County upon application filed with it by the individual
driver. The Respondent is required by the county to keep a
supply of applications on hand as a convenience to
perspective applicants.
The driver purchases his own gasoline from whatever
source and of whatever brand he chooses. Gasoline is not
dispensed by Respondent. It does not withhold any monies
for social security , federal, State or county income tax, or
any other purpose , and it files no reports whatever to any
agency concerning the earnings of the individual driver. In
fact , it keeps no record of the individual earnings of the
drivers.
Drivers are not required to post bond nor to maintain
any type of record either for tax or social security purposes
{ At no time had Respondent contested the employee status of the
garage employees
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor for Respondent's own operations. Accordingly Res-
pondent provides no accounting or bookkeeping service
for the drivers. Drivers set their own time and select their
own areas of operation and, in their own discretion, use the
cab stands established and maintained by the county for
the use of all cabdrivers. No cabstands are provided by
Respondent. There are instances , however, where cabdriv-
ers using the contracted radio dispatched system misre-
present their location as being nearer to the dispatched
address than they actually are (called "stretching a
fender"). In such cases the dispatcher, an employee of an
independent company whose services are engaged by
Respondent, will take the dnver "off the air," for 24 hours.
He will do this however, only on the word of two or more
complaining drivers, but never at the request of the
Respondent alone.
Upon consideration of all of the foregoing characteristics
of the cab rental system operated by the Respondent it is
obvious that it has no more control over the renter of a cab
than a commercial car rental agency has over a casual
renter of a passenger car .4
The quantum of control required by the Board to
establish the employee status of taxicab drivers in rental
situations is fully explicated in Central Taxi Service, 173
NLRB 826, and Transporation Promotions, Inc., 173 NLRB
828, where, in each case, there are elements of central
control and discipline not evident here. Furthermore,
General Counsel misreads Local 24, Teamsters v. Oliver,
358 U.S. 283, cited to me in his brief, in support of the
proposition that the rental fee is a mandatory subject of
bargaining. In that case , contrary to the instant one, it was
the employer who paid the rental fee for the services of the
individual driver and the use of his own property. Here the
individual driver has been found to have rented the
property from the alleged employer. Given this complete
lack of control by Respondent over the driver or over the
cab which he hires I have no alternative but to conclude
that he is an independent contractor and not an employer
as defined in the Act .5
C. Analysis and Conclusions
"Where a company is charged with refusal to bargain
with a union certified after election, the proceeding is
sufficiently `related' to the representation proceeding to
preclude relitigation of such common issues as the scope of
the appropriate unit and employees therein."6 Thus the
United States circuit court of appeals gives substance to
Section 102.67(f) of the Board's Rules and Regulations
relating to a Regional Director's determination of a
representation proceeding which provides, as follows:
The parties may, at any time, waive their right to
request review. Failure to request review shall preclude
such parties from relitigating, in any related subsequent
unfair labor practice proceeding, any issue which was.
' As an element of disuplme indicative of control General Counsel cites
the penalty for micreprecentation of cab location, 24 hours "off the air." and
also a $1 penalty for late payment of the daily rental charge As to the
former I have already found this to be a matter between drivers and the
dispatching Company A, to the latter I see no more discipline or control in
the late penalty than there would be in any other late or overdue charge at
such establishments as a public library or local department store.
or could have been, raised in the representation
proceeding. Denial of a request for review shall
constitute an affirmance of the Regional Director's
action which shall also preclude relitigating any such
issues in any related subsequent unfair labor practice
proceedings.
Because the Regional Director's determination in Case
5-RC-7762 relates directly to the substance of the unfair
labor practice set forth in the complaint in this case the
conclusion is obvious. I am precluded from further
litigation of the issues involved.
It might, of course , be argued that the question of
relitigation of an issue is not before me, the issue never
having been raised to this point . Thus, it could be
suggested, that the failure to litigate the matter of the
drivers' employee status in the representation case consti-
tutes implicit permission for me to litigate them for the first
time here . As I conceive of my function in the administra-
tive scheme , however , I find no authority vested in me to
overrule action taken by the Board , or by the Regional
Director in its behalf . Indeed, to conclude otherwise would
serve only to provide a convenient vehicle for continuing
procedural delay and confusion.
Apart from the legal aspects of relitigation concerned
above it is of no consequence that the subject matter
sought to be raised here was not, in fact , raised previously.
Actually, it could have been raised then and it was not.
Respondent did not offer at the hearing any newly
discovered or previously unavailable evidence. Neither has
it shown to my satisfaction the existence of special
circumstances . And these are the only exceptions which
would require the Board to reexamine the decision made in
the representation proceedings.7
Respondent, of course, alleges that special circumstances
do exist which require that I depart from the Board 's well-
established policy by reconsidering the presence in the
bargaining unit of those individuals whom I have deter-
mined to be nonemployees . A determination, I might add,
which could have been made in the representation case had
the issue been raised there . Thus Respondent urges that the
ineptness of the previously retained counsel prevented the
full exploration of all the issues in the case and directly
resulted in the anomalous inclusion of the cabdrivers in the
unit.
I have been referred to no precedent suggesting that the
representation by inept counsel constitutes such a "special
circumstance," and I know of none . On the contrary,
reason suggests that such a situation should not merit
special consideration . For, if it is to be permitted a
respondent to indulge himself in the do-it-yourself ap-
proach to labor relations or that it be excused for any
ineptness of legal counsel whom he retains the net result
would be interminable delay, necessary relitigation of
issues, and, for the employees involved, an interval of
5 N I R B v United Insurance Co, 390 U.S 254 (1968), N L R B V
Steinberg, 182 F 2d 854 (C.A. 5).
6 N L R B v Sagamore Shirt Company . d/b/a Spruce Pine Manufacturing
Co, 365 F.2d 898, 904 (C A D.C, 1966) See also Pittsburg Plate Glass
Company v NLRB , 313 U S. 146, 158.
7 Farah Manufacturing Compam •, Inc. 203 NLRB No. 78
BARWOOD, INC.
isolation from the protections of the Act. I accordingly
reject any suggestion that any inadequacies of Respon-
dent's initial legal counsel which may appear in the
handling of Case 5-RC-7762 constitutes a special circum-
stance that wouldjustify the relitigation of that representa-
tion case by me.
Nor am I persuaded that the composition of the
bargaining unit is such as to justify a dismissal of the
complaint by me. It is Respondent's position that because
the cabdrivers in the unit are in fact independent
contractors the Board had no "jurisdiction"; i.e., that
Respondent is not an employer. Quite apart from my
previous holding in which I find the Board's jurisdiction to
be based upon more basic grounds, Respondent loses sight
of the fact that the bargaining unit is composed, at least in
part, of admitted employees-the mechanics.
The problem reduces itself, then, to my willingness to
adjudge this case in the light of what appears to be actual
fact, and in so doing overrule what has already been done
in the name of the Board. As previously noted, administra-
tive regularity and common sense dictates that this I
cannot do. If there is repair work to be done in this
proceeding it should not be of my doing. Indeed, the
Board's Rules and Regulations and orderly procedure have
always been available to Respondent, even now by its
astute counsel, to correct what appears to have been an
inadequate presentation of evidence in its behalf. For
myself I am presented an admitted refusal to bargain with
a certified representative of Respondent's employees.
Technical though this refusal is, nonetheless it is a violation
of Section 8(a)(5) of the Act.
IV. THE REMEDY
I have concluded and found that Respondent has
unlawfully refused to bargain with the certified representa-
tive of its employees. Normally I would recommend to the
Board that an order issue requiring Respondent to cease
8 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
23
and desist in its refusal, to bargain upon request, and to
post appropriate notices of compliance. Here, however, the
matter has been complicated by the inclusion in the
certified bargaining unit of a substantial group of individu-
als whom I find to be independent contractors, and not
employees as defined in Section 2(3) of the Act.
Finding as I have that these individuals are not
employees I certainly cannot now recommend to the Board
that it contravene the Act by nonetheless ordering
Respondent to bargain in their behalf.
In American Federation of Musicians, Local 76, AFL-CI-
O, 202 NLRB 620, the Board took occasion to discuss in
detail what effect the processing cases of trivial or moot
consequence had upon the enforcement of the Act. I
respectfully suggest that the subject matter here presents an
analogous situation. For if it is a strain upon the Board's
limited resources to prosecute matters which have little or
no meaning in effectuating the policies of the Act, as the
Board has found, a fortiori would appear to be an even
great travesty for me to recommend a remedy that would
be, on the facts before me, in contravention of the Act. I
therefore recommend that no order be issued herein, and I
respectfully suggest to the Board that it reconsider the unit
determination made in its behalf. Because, therefore, it is
the sum and substance of my recommendation that
however technical the violation of the Act may be here an
appropriate remedy is not feasible in the present state of
this proceeding. I shall recommend that the complaint be
dismissed in its entirety.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER8
The complaint shall be dismissed in its entirety.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes