Blue Cab Co.

National Labor Relations Board - Board Decisions

Dec 30, 1965

156 N.L.R.B. 489 (N.L.R.B. 1965)

BLUE CAB COMPANY, ETC. 489
ents, general foremen, foremen, other supervisors within the
meaning of Section 2(11) of the Act, and all other employees.
TRAILMOBILE DIVISION, PULLMAN INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort
Worth, Texas, Telephone No. Edison 5-4211, if they have any ques-
tions concerning this notice or compliance with its provisions.
Blue Cab Company and Village Cab Company and General Team-
sters, Chauffeurs , and Helpers Local 782. Case No. 13-CA-
5736. December 30, 1965
DECISION AND ORDER
On February 25, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth' in the attached Trial Exam-
iner's Decision. The Respondent thereupon filed exceptions to the
Trial Examiner's Decision, as amended.' The Charging Party and
the General Counsel submitted briefs in support of the Trial Exam-
iner's Decision and briefs in answer to the Respondents' exceptions.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed? The Board has considered the Trial
1 Respondents ' motion to amend their answers to the complaint as amended at the
hearing is granted, and such amended answers are made part of the record of this case.
2 Respondents excepted to the admission into evidence , over their objections , of certain
depositions of John and Charles Ugaste taken in an action between the Union and Re-
spondent Blue Cab in the United States District Court for the Northern District of
Illinois. The depositions were admissible in part as admissions against interest and for
impeachment purposes , and their use has been so restricted in our consideration of them.
We find it unnecessary to pass upon Respondents ' contention that the depositions were
erroneously received as evidence in chief on the issue of commerce , as we find that,
regardless of the depositions , the General Counsel has established by other evidence that
Respondents are engaged in commerce within the meaning of the Act. Accordingly, we
do not find the Trial Examiner 's reliance on the depositions to be prejudicial error under
Rule 61 of the Federal Rules of Civil Procedure IHofmaw v. Palmer, 129 F. 2d 978
(C.A. 2), affil. 3118 U.S. 109; Crown Corrugated Container Inc., 123 NLRB 318.
156 NLRB No. 67.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings,3 conclusions,4 and recom-
mendations of the Trial Examiner, as modified herein.
We agree with the Trial Examiner that Respondents also violated
Section 8(a) (5) and (1) of the Act by unilaterally changing their
method of operation from the use of commission drivers to the use
of leasing agreements after refusing to discuss the proposed change
in operations with the Union.5
The Trial Examiner found that Respondents violated Section 8 (a)
(3) of the Act when, "on July 1, 1963, the Respondents terminated
their driver employees and locked them out," by converting from a
commission driver operation to a lease operation. Although we agree
with the Trial Examiner that such action violated Section 8 (a) (3),
we do not rely upon the cases cited by the Trial Examiner nor upon the
principle declared by those cases." Rather, we rest our 8(a) (3) hold-
ing upon the record evidence clearly demonstrating that Respondents'
action had as its specific intent that permanent severance of the
employment relationship with the elimination of the Union as the bar-
gaining representative and the discouragement of union membership.
'The Trial Examiner was in error when he stated that none of Respondents' witnesses
had stated, on cross-examination, that they had refused calls from cab dispatchers
Witnesses Steward and Rogers did so testity. We do not, however, regard the Trial
Examiner's misstatement as material.
4 In view of the Trial Examiner's finding, with which we agree, that Respondents' con-
duct, in toto, was violative of Section 8(a) (5), we find it unnecessary to decide whether
the Respondents unlawfully refused to bargain with respect to severance pay and with
respect to its demand for a driver's damage bond We also agree that where employees'
pay is tied directly to meter iates as it was here, the employer is under an obligation
to make no unilateral changes in such terms and condition of employment; but in view
of our conclusion that Respondents' overall conduct violated Section 8(a) (5) of the
Act, we find it unnecessary to pass upon Respondents' contention that the change in meter
rates was economically justified in the present circumstances We agree with the Trial
Examiner, however, that the Respondents' reduction of the meter rate, which affected
the earnings of the drivers, the drivers having remained employees of Respondents even
after July 1, was unilateral and in violation of Section 8(a) (5) N.L R.B. V. Benno Katz,
etc, d/b/a Williamsburg Steel Products Co., 369 U.S 736, 747.
Unlike the Trial Examiner, we do not find that the Respondents refused to bargain by
refusing to permit an inspection of their financial records by the Union. The record
fails to demonstrate that the Respondents had pleaded "inability to pay" or that the
Union had otherwise established a right to such inspection See N.L R B v Truitt Mfg.
Co , 351 U S 149.
We find no merit in the Respondents' contention that the Trial Examiner's credibility
findings should be rejected, as we conclude that there is no clear preponderance of all
the relevant evidence that the credibility findings are erroneous Standard Drywall Prod-
ucts , Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
B The Trial Examiner found, and we agree, that the commission drivers did not become
independent contractors and did not lose their status as employees under the Act by
virtue of the Respondents' change to a lease operation on July 1. However, even if the
status of the drivers is viewed as having been converted to independent contractors sub-
sequent to that date, this would neither affect the 8(a) (3) and (5) violations found
herein nor the remedy of reinstatement with backpay which we have provided to cure
those violations Town & Country Manufacturing Company, Inc., et al., 136 NLRB 1022,
enfd 316 F 2d 846 (C.A. 5) ; Shamrock Dairy, Inc., et al, 124 NLRB 494, enfd 280 F
2d 665 (C.A.D.C).
6 Quaker State Oil Refining Corporation, 121 NLRB 334, 337-338, enfd 270 F 2d 40
(C A. 3), cert. denied 361 U S 917; American Brake Shoe Company, Ramapo Ajax Di-
vision, 116 NLRB 820, enfd 244 F 2d 489 (C A 7).
BLUE CAB COMPANY, ETC. 491.
Thus, the record shows that Respondents notified the Union of
their intent to terminate their collective-bargaining agreement with-
the Union on January 21, 1963. Subsequently, Respondents' officer,.
Charles Ugastej announced that Respondents intended to eliminate
the use of commission drivers in favor of a leasing operation. Ugaste-
admitted that Respondents' purpose in changing from commission.
drivers to a lease operation was to dispose of the Union, declaring,
"that after July 1 there would be no union employees ...." When
the Union offered to negotiate with respect to a contract covering:
driver-lessees, Ugaste flatly refused to discuss the matter. On.
June 25, Ugaste reiterated his determination to dispose of the Union,.
stating, "I don't want the union or any part of it and I would never'
sign a contract with the union." On June 28, at a meeting with the
drivers, Ugaste said, "As of midnight Sunday no more cab company.
You fellows are no more union. I'm not having any more union
contract. You are no more employees as of Sunday midnight. If you
want to work come to me working on a leasing basis, 50/50, that's it."'
On July 1, some of the terminated drivers commenced work under'
lease agreements with Respondents. Others, however, began picket-
ing. The evidence on the record estblishes that the picketing employ-
ees were not strikers but had been discharged by Respondents on
July 1. As set forth above, Respondents' motive for terminating the
commission drivers was to oust the Union as the employees' bargain-
ing representative. Consistent with this purpose, Ugaste made it
clear that the Union would not represent the employees under the
proposed leasing arrangement. On June 28 Ugaste explicitly told the
commission drivers that they could continue to work for Respondents
under lease agreements, but under such arrangement, "You fellows
are no more union." Thus, the commission drivers were forced to
make an election between on the one hand working under the dis-
criminatorily inaugurated lease arrangement and on the other exer-
cising their right to representation by the statutory bargaining rep-
resentative. Plainly, "a choice of this character may not validy be
imposed upon employees and is in contravention of the Act., ,8 We
find, therefore, that on July 1, 1963, Respondents in violation of
Section 8(a) (3) and (1) of the Act, actually discharged those com-
mission drivers who refused to accede to Respondents' demand that
they forgo their right to representation by the Union as a condition
to being accepted as drivers under a lease agreement. Ra-Rich Hanu-
facturing Corporation, supra.
Ugaste is president of Village Cab and secretary-treasurer of Blue Cab.
8Ra-Rich Manufacturing Corporation, 120 NLRB 503, 500, enfd. 276 P. 2d 451 (C.A. 2).
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
In addition to the remedy recommended by the Trial Examiner, we
shall require Respondents, in resuming their taxicab operations as
provided for in paragraph 2(a) of the Order, to cancel all lease
arrangements with drivers and to give effect to the contract which
Respondents sought to terminate until such time as said contract may
lawfully be terminated by either party pursuant to the provisions of
Section 8 (d) of the Act.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraph 1(c) and renumber 1(d) and 1(e) as 1(c)
and 1(d) , respectively.
[2. Substitute the following for paragraph 1(e) :
[" (e) Threatening employees with discharge or other reprisals
because of their union activities; promising employees benefits in order
to induce them to discontinue their adherence to the Union; threaten-
ing to close the business rather than sign a contract with the Union;
or in any other manner interfering with, restraining, or coercing
employees in the exercise of their rights to self-organization, to form
labor organizations, to join or assist the above-named Union, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any and all such activities, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959."
[3. Add the following as paragraph 2 (c) and renumber paragraphs
2(c), 2(d) and 2(e) as paragraphs 2(d), 2(e) and 2(f), respectifully:
1"(c) Cancel any lease arrangements they may have with drivers;
and reinstate, and continue to operate under, the contract in effect on
June 30, 1963, until such time as that contract may lawfully be termi-
nated by either party pursuant to the provisions of Section 8(d) of
the Act."
[4. Delete third indented paragraph in the notice and insert a new
sixth indented paragraph as follows :
[WE WILL cancel any lease arrangements we may have with
drivers and reinstate, and continue to operate under, the contract
BLUE CAB COMPANY, ETC. 493
in effect on June 30, 1963, until such time as that contract may
lawfully be terminated pursuant to the provisions of Section 8(d)
of the Act.
[5. Substitute the following for the last indented paragraph in the
notice :
[WE WILL NOT threaten employees with discharge or other
reprisals because of their union activities; nor will we offer em-
ployees benefits in order to induce them to discontinue their
adherence to the Union, nor will we threaten to close the business
rather than sign a contract with the Union, and WE WILL NOT in
any other manner interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organization, to form
labor organizations, to join or assist the above-named Union, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any and all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.]
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges and amended charges filed on July 12 and 15 and September 20,
1963, by General Teamsters, Chauffeurs, and Helpers Local 782, herein called Local
782 or the Union, the General Counsel of the National Labor Relations Board,
by the Regional Director for Region 13 (Chicago, Illinois), issued a complaint,
dated August 13, 1963, against Blue Cab Company and Village Cab Company,
herein called Blue and Village, respectively. On motion of the General Counsel,
the complaint was amended at the outset of the hearing. The complaint, as amended,
sets forth the specific respects in which it is alleged that the Respondents violated
Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended,
herein called the Act. The Respondents filed an answer to the original complaint,
but not to the allegations in the amendments to that complaint. In their answer the
Employers deny all alleged unfair labor practices with which they are charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin
at Chicago, Illinois, on September 30 and October 1 and 2, 1963. All parties
appeared at the hearing and were given full opportunity to examine and cross-
examine witnesses, to introduce relevant evidence, to argue orally after presenting
their evidence, and to file briefs. The parties waived oral argument. Subsequent to
the hearing, the General Counsel, the Employers, and the Union filed able and
comprehensive briefs which have been fully considered.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The Respondents are Illinois corporations with their office and principal place of
business located in Oak Park, Illinois. They concede that prior to June 30, 1963,
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both Blue and Village were engaged in operating a fleet of taxicabs under franchises
from the village of Oak Park, Illinois. The General Counsel and the Charging
Party contend that both of the corporate Respondents are still operating the same
business , whereas the Respondents aver that since July 1, 1963, they have been
engaged solely in the business of leasing taxicabs to independent contractor opera-
tors. The issue so raised is resolved later in this Decision.
The General Counsel alleges that Blue and Village constitute a single integrated
business enterprise . This is denied by the Respondent Companies.
The two corporations have common officers and shareholders. Charles Ugaste is
the president of Village and secretary-treasurer of Blue. John Ugaste, his brother,
is president of Blue and secretary of Village. Charles Ugaste testified that he and
his brother own two-thirds of the stock in Blue. In its answer , Respondent Village
conceded that Charles Ugaste owns all the stock in that corporation.l Charles and
John Ugaste are engaged in the active day-to-day management of both companies.
Charles Ugaste testified that he is primarily responsible for most of the decisions,
including those involving labor relations for Blue and Village. Prior to June 30,
1963, when these two corporations had collective-bargaining contracts with Local
782 over a period of approximately 11 years, Charles Ugaste customarily conducted
negotiations on behalf of Blue and Village at the same time. Both companies have
their offices , garage, and all facilities at the same address and in the same building.
One bookkeeper keeps the records for the two corporations. Although each has its
own force of dispatchers, it is clear that the dispatchers and all other members of the
supervisory staff perform work for both Blue and Village. Charles Ugaste testified
to this effect and when asked to identify further the supervisors in each concern he
made the revealing declaration "You're breaking them down into Companies, and I
don't know which was which, which is who for what Company."
On the facts set out above, it is clear, and I find, that under the Act here involved
Blue and Village constitute a single employer. N.L R B. v. Stowe Spinning Com-
pany, et al., 336 U.S. 226, 227 ("Interlocking directorates and family ties make the
four [respondent mills] equal one for our purposes ."). Southport Petroleum Com-
pany v. N.L.R.B., 315 U.S. 100, 106; Regal Knitwear Company v. N.L.R.B., 324 U.S.
9, 14-16; N.L.R.B. v. Concrete Haulers, Inc., and Wanix, Inc., 212 F. 2d 477, 479
(C.A. 5) ("The interpendence and integrated nature of the operations of the Respond-
ents, the common ownership of stock, and the fact that the same officer administers
a common labor policy, clearly indicate that there is only one employer for the pur-
poses of this Act.").
The Respondents assert that they are purely local concerns and that they are not
engaged in commerce within the meaning of the Act. At the hearing they declined
to stipulate as to any facts with respect to their business volume. They also refused
to comply with subpoena duces tecum which the General Counsel served upon their
officers on the ground that the Respondents themselves should not have to supply
information which would establish the jurisdiction of the Board over their opera-
tions.2 When faced with the outright refusal of the Employers to furnish any data
on their business the General Counsel endeavored to secure this information, in
part, through cross-examination of Charles and John Ugaste. Charles Ugaste testi-
fied that Blue did an annual business of over $100,000, but claimed to have no more
specific knowledge than that. That the active general manager and head of a busi-
ness should have no accurate knowledge of its gross income was, of course, totally
incredible to me. John Ugaste, on the other hand, conceded that the annual vol-
i At the hearing, Charles Ugaste testified that he could not answer as to the precise
amount of his stock interest in Village since that was the subject matter of litigation still
pending in the State courts of Illinois . However , Respondent Village thereafter made no
effort to withdraw the concession on stock ownership which appears in its answer.
2 The Respondents ' refusal to supply any data on their business operations and their
attitude toward the Board's subpena process make relevant the following statement by
the Court of Appeals for the Sixth Circuit in NLRB v. C E. Strickland and Bally
Sturdivant, 321 F 2d 811, 813 : ". . . we must keep in mind the admonition of the
Supreme Court that `persons summoned as witnesses by competent authority have cer-
tain minimum duties and obligations which are necessary concessions to the public
interest in the orderly operation of legislative and judicial machinery. A subpoena has
never been treated as an invitation to a game of hare and hounds , in which the witness
must testify only if cornered at the end of the chase. If that were the case, then, indeed,
the great power of testimonial compulsion , so necessary to the effective functioning of
courts and legislatures , would be a nullity We have often iterated the importance of
this public duty , which every person within the jurisdiction of the Government is bound
to perform when properly summoned .' United States V. Bryan, 339 U S 323, 331 "
BLUE CAB COMPANY, ETC. 495
ume of business for Blue was between $800,000 and $900,000, and that Village did
approximately half that much.3 The annual gross volume of business for the
Respondent Companies was, therefore, substantially in excess of $1 million and I
so find .4
The General Counsel also established that in 1962, Blue purchased from two sup-
pliers, Factory Motor Parts, Inc., and Westmont, Inc., supplies and automotive parts
which cost $13,844.12. This data was secured from Leonard De Michele, president
of Factory and secretary-treasurer of Westmont, whom the General Counsel called
as a witness. De Michele further testified that approximately 85 percent of this
total consisted of automotive parts manufactured by the Chrysler Corporation at its
plant in Center Line, Michigan, and shipped directly to Factory and Westmont.
According to this same witness, Factory Motor Parts itself has an annual volume
of business of approximately $2 million, most of which comes from the sale of
Chrysler automotive parts received from the aforesaid factory in Michigan. From
the foregoing it can be seen, and I find, that during 1962 Blue and Village pur-
chased over $11,750 in automotive supplies which originated in Michigan and that
these purchases were made from two firms, Factory and Westmont, which were
themselves engaged in commerce within the meaning of the Act.
Charles Ugaste conceded that Blue and Village cabs deliver passengers to O'Hare
International Airport and pick them up if called. He also testified that these cabs
likewise deliver customers to the rail terminals in Chicago. The General Counsel
further proved that the International Business Machine Corporation, hereinafter
called IBM, is a substantial customer of Blue Cab and that IBM uses the services of
the latter in making shipments from its office in downtown Chicago to O'Hare Inter-
national Airport, as well as to rail and bus terminals in that city. Dennis A. Rose,
an administrative supervisor of IBM, responsible for the shipment of supplies and
the receipt of parts, identified the billings which were received from Blue Cab for
trips performed during an 18-month period from December 1961 to May 1963. In
their brief the Respondents have analyzed these invoices and after deducting pay-
ments received from IBM for deliveries within the State of Illinois, as well as a flat
15 percent charged to IBM as tips to the drivers, the Respondents concede that this
customer, during the period in question, paid a total of $1,989.82 for such services.
3 Prior to the instant hearing, Local 782 had initiated suit against the Respondents in
the United States District Court for the Northern District of Illinois, on a claim for
health and welfare fund payments allegedly owing. To support its contention that the
Federal courts had jurisdiction in that case the Charging Party had taken depositions
from the Ugastes, among others. At the unfair labor practice hearing John Ugaste was
asked if, in his deposition, he had said that the annual volume of business for Blue
approximated $800,000 or $900,000. He answered, "It could be." The General Coun-
sel then asked him the following questions and John Ugaste gave the answers which
appear below:
Q. Where did you get those figures from?
A. From operations of years.
Q. Is that your average business in the Blue Cab?
A. Roughly that operation . . . .
Q. How much business or how much more is Blue Cab in the volume of business
than Village . . . ?
A. Got about twice as many cabs.
Q. . . . So the business would be approximately twice as much as Village?
A. Approximately.
Q. Can you give us an approximation of the amount of business you do in Village
Cab in a year?
A. About half of what the other one does.
Q. Between 400 and 450,000 a year?
A. It could be possible.
Q. How do you base that possibility? On figures that you have looked at?
A. Well, in the course of the years we have operated, yes.
4In view of the Respondents' adamant refusal, with no justifiable cause, to comply
with the valid subpena duces tecum served on them, the concessions made by John and
Charles Ugaste in their cross-examination constitute competent evidence on which to
base a finding as to the jurisdiction of the Board. Tropicana Products, Inc., 122 NLRB
121, 123-124: N.L.R.B. v. International Union of Operating Engineers, Local 12 (Crook
Co. & Shepherd lIachinery Co.), 243 F. 2d 134, 135 (C.A. 9).
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has held that it will assert jurisdiction over a taxicab company that
has a gross volume of business in excess of $500,000 and purchases more than
$12,000 worth of products which originated outside of the State. Jat Transporta-
tion Corp., et al., 128 NLRB 780, 781-782. It also has held that it has jurisdiction
over a taxicab company that met the $500,000 standard and which picked up and
delivered passengers at rail and bus terminals. Union Taxi Corporation, 130 NLRB
814, 815. In support of their contention that the Board lacks jurisdiction in this
case, the Respondents in their brief assert that the extent of their purchases from
Factory Motor Parts and Westmont and the approximately $2,000 received from
IBM are proof of their local character and call for the application of the doctrine of
de minimus non curat lex. In N.L.R.B. v. Aurora City Lines, Inc., 299 F. 2d 229
(C.A. 7), the court of appeals found that the purchase of $2,000 worth of materials
originating outside the State of Illinois warranted the Board's assertion of jurisdiction
over a local transit system. In rejecting the employer's argument that the amount
involved was de minimus, the court stated that this doctrine applied only when
trifles were involved and concluded with the statement, "The time has not yet arrived
when $2,000 is but a trifle." Ibid. at 231.
In view of the foregoing and as the Respondents' annual gross volume of business
exceeds $500,000, it is my finding and conclusion that the Respondents are engaged
in commerce within the meaning of the Act. Carolina Supplies and Cement Co.,
122 NLRB 88, 89-90; City Transportation Company, 131 NLRB 814, 817, enfd.
303 F. 2d 299 (C.A. 5), cert. denied 371 U.S. 920; Jot Transportation Corp., et al.,
supra; Union Taxi Corporation, supra; N.L.R.B. v. Reliance Fuel Oil Corporation,
371 U.S. 224, 225-227; and Superior Court v. Yellow Cab Service, 361 U.S. 373.5
H. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Chauffeurs, and Helpers Local 782, an affiliate of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
Prior to July 1, 1963, the Respondents and Local 782 had collective-bargaining
relations for many years. On January 21, 1963, the Respondents' notified the Union
that they wanted to terminate their contracts effective June 30, 1963. Shortly before
the latter date, representatives of the parties participated in a few brief meetings. On
July 1, 1963, Blue and Village put into effect a policy whereby thereafter all their
cabs were leased to the drivers. All drivers on their payrolls at that time were given
an opportunity to sign leases for their cabs. Those who did not were offered no
further employment. On that day the Union established a picket line at the Employ-
ers' premises.
5 During the course of the hearing, the General Counsel offered in evidence copies of
several depositions which had been taken by counsel for the Charging Party in the Fed-
eral district court litigation alluded to earlier herein. These Included the depositions
of John and Charles Ugaste, Dennis Ross, Leonard De Michele, and several others. In
fact, however, John and Charles Ugaste were the only witnesses whose attendance and
concomitant production of documents the General Counsel was unable to secure by subpena.
Although all of the depositions offered by the General Counsel were received in evidence,
upon further consideration, it is my conclusion that this was error and that all of the
aforesaid depositions except those of Charles and John Ugaste should have been rejected.
Accordingly, General Counsel's Exhibits Nos. 7C (Slettland), 7D (Tygart), 7E (Ross),
7G (Spatter), 711 (Lagergren), and 7J (De Michele), are hereby placed in the rejected
exhibit file. It should be noted further that no findings of fact that have been set out
above have been based In any way upon these last mentioned rejected exhibits.
In their brief, the Respondents contend that In some way a protective order issued by
the United States District Court for the Northern District of Illinois In the case of Local
782 v. Blue Cab Company, Civil Action No. 63-C-470, was violated by Counsel for the
Charging Party In connection with the use of these depositions. In this same brief the
Respondents refer to certain information which was purportedly secured by Counsel for
the Respondents subsequent to the hearing. Suffice to say at this point that all matters
of this character are relevant only in the case now In progress before the United States
district court rather than in the instant matter.
BLUE CAB COMPANY, ETC. 497
B. The evidence
1. The appropriate unit
The General Counsel alleged that all taxicab drivers, dispatchers, and garage and
maintenance employees employed by the Respondents at their Oak Park facilities,
excluding all supervisors as defined in the Act, constitute a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of the Act. The Respondents
do not contest the appropriateness of such a unit among their employees during the
period prior to July 1, 1963. In fact, the foregoing unit is the same as that provided
in their contracts with Local 782. The Respondents do deny, however, that any such
unit is presently appropriate. This position is based on the contention that since
July 1, 1963, they have had no driver employees. At the outset, therefore, it is
necessary to determine whether after July 1, the drivers became independent con-
tractors or remained employees.
The testimony with respect to the bargaining conferences between the Respondents
and Local 782 will be discussed later. At this point it is relevant to note only that late
in June 1963, Charles Ugaste announced that if the Union did not accept his proposal
for a new contract which provided a substantially reduced rate for the drivers after
July 1, the drivers would have to work under a lease arrangement and there would
be no union. Both during this period and earlier Charles Ugaste refused to discuss
with the union representatives the provisions of such leases. On July 1, the incumbent
drivers had to accept the terms of the lease agreement drafted by the Respondents or
be out of a job.
Since July 1, 1963, both Blue and Village have used lease agreements identical in
their terms. Pursuant to the provisions of such contracts each company leases cabs
to its drivers for 24-hour periods. During the term of its use the driver agrees to
purchase all the necessary gasoline and pay as a rental for the cab 50 percent of his
gross fares. The lease requires that the lessee post a $100 cash bond to protect the
company against loss or damage, but the company provides such insurance as is
required by the village of Oak Park. The lease specifically provides that nothing con-
tained therein shall be construed to create the relationship of principal and agent or
of employer and employee. The cabs bear the name and insignia of the company.
Crucial to the issue as to whether the drivers now have an independent contractor
status is the element of control. As is the case with many large cab organizations,
both Blue and Village have a radio dispatch system. Prior to July 1, 1963, the drivers
maintained constant contact with the dispatcher's office and were required to accept
any assignment given by the dispatcher. The Respondents contend that under the
new system the drivers are completely free of such control. Thus, the lease provides
that during the 24-hour period for which a cab is leased, the driver is under no duty to
report the whereabouts of his vehicle and is free from control or direction by the
lessor. Notwithstanding this purported freedom, however, the testimony of the
present lessees establishes that the drivers maintain very close contact with the dis-
patcher's office for information on where to pick up customers. Merl Steward, one
of the lessee-drivers, testified that he called the dispatcher approximately 100 times a
day. Ronald Rogers, another lessee-driver, estimated that he called the dispatcher's
office from 75 to 100 times a day and that dispatcher, in turn, called him about 35
times a day. Although on direct examination, these driver-lessees testified that they
were free to decline an assignment from the dispatcher, on cross-examination it
developed that, in fact, they never had. Thus, Rogers conceded that he had never told
the dispatcher that he would not take a fare and William Wagner testified to the same
effect. Even more significantly, Louis Kane, one of the chief dispatchers both before
and after July 1, 1963, testified that although he handles hundreds of orders every
day, since the latter date he could recall only two instances in which a driver refused
to take a pickup.
Although a driver is purportedly free to exercise complete dominion over the leased
vehicle while it is in his possession, those drivers who were asked as to whether they
carried any advertising in their cabs answered in the negative and one of them, Wil-
liam Wagner, testified that he did not believe that he was free to do so even if he
desired. This same driver, as did others, testified that he never kept the cab out over-
night and, further, that he did not believe that he would be permitted to do otherwise.
New lessees who start driving a Blue or Village cab under the lease agreement are
given an information booklet which lists the cab stands in the city, the rules of cour-
tesy for drivers, and the radio code that is used. Ronald Rogers testified that shortly
after July 1, 1963, when he started as a lessee-driver, he received such a booklet from
John Ugaste, Jr., and was told at the time "to try to follow the rules of courtesy
at all times so as not to jeopardize the reputation of the Blue Cab Company which
would be of advantage to myself as well as the Company." William Wagner, a lessee-
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driver who had driven a cab for Village prior to July 1, 1963, testified that the booklet
in question was the same as that which all employee-drivers were issued in the period
prior to that date.
Whereas by its terms the lease agreement is for a 24-hour period, the driver-lessees
testified that they had signed only one copy of the lease and that was the one which
they had executed on the first day they reported under the new arrangement. Other
provisions of the lease agreement have, in practice, been ignored. Thus, paragraph 4
of the lease requires that the lessee must post a $100 cash bond to indemnify the com-
pany against loss or damage to the cab, insurance premiums, unpaid claims, unpaid
rentals, and other charges. However, the driver-lessees who appeared as witnesses
uniformly testified that they had never posted any such bond. This testimony was
undenied. Another term of the agreement provides that the company reserves the
right to fix and collect a minimum rental fee from each lessee for his use of the cab.
The driver-lessees who testified stated that they had never been told the amount of
this minimum. In his testimony Charles Ugaste endeavored to establish that the
Respondents were powerless to take any action in the event a driver did not return
his cab or damaged a vehicle. According to Ugaste, "there wouldn't be too much I
could do." He did concede that if a driver was drunk or insolent that individual
would not get another cab. Notwithstanding Ugaste's feigned helplessness to disci-
pline a driver for careless use of a vehicle, the plain terms of the lease agreement
reserve to the Respondents the freedom to terminate the contract with any driver at
the end of any 24 hours and for any reason.
The driver-lessees have no control over the amount they can charge. The cabs
have meters and the rate is fixed by the Respondents. Effective on July 1, 1963, the
Respondents reduced the rate per mile from 40 to 30 cents.6 Since the amount which
the driver received is based on a percentage of his daily collections, the authority of
the Respondents to raise or lower the meter rates can very directly control the amount
of his income.? In addition to the control over a driver's income which the Respond-
ents have retained through their use of meters and their power to raise or lower the
rate to be charged per mile, some of the drivers are assigned contract work wherein
the Respondents and the customer have agreed upon a flat rate for certain routine
jobs. This is the situation with respect to the transportation of handicapped school
children which the Respondents have contracted with the local school board to
accomplish. Ronald Rogers, one of the driver-lessees who testified that he carried
these children regularly, stated that he had no control over the rate charged because
that was fixed by the contract between the Respondents and the school board.
The Respondents stress the fact that no deductions from the income of the driver-
lessees are made for social security, withholding taxes, or any of the other items nor-
mally associated with an employer-employee relationship. This is relevant, but not
determinative. Frederick O. Glass, et al. d/b/a Miller Road Dairy, 135 NLRB 217,
220; American Broadcasting Company, et al., 117 NLRB 13, 18. The Board has
stated that an employer-employee relationship exists "where the person for whom the
services are performed reserves the right to control not only the end to be achieved
but also the means to be used in reaching such end." Deaton Truck Lines, Inc., 143
NLRB 1372; Albert Lea Cooperative Creamery Association, 119 NLRB 817, 821-
822. With this test in mind the relationship of the Respondents to the driver-lessees
must be examined. From a review of the findings set out above it is apparent that the
driver-lessees have little, if any, control over "the end to be achieved" or "the means
to be used in reaching such end." Initially, it is significant that the terms of the lease
agreement were not arrived at through any negotiations with the driver-employees
but instead were unilaterally established by the Respondents. Mohican Trucking
Company, 131 NLRB 1174, 1176. Of equal importance is the fact that the rate tc
be charged by the cabdriver is fixed by the Respondents and rigidly enforced by
company-supervised meters in every vehicle. Although the driver-lessees are allegedly
free to accept or reject pickups that are offered by the dispatcher, no witness testi-
fied that he had ever done so. Dispatcher Kane, who had obviously made thousands
of calls to the driver-lessees between July 1, 1963, to the date of the hearing, could
only recall two instances when a driver had declined to accept a pickup. This is
hardly surprising in view of the fact that the driver-lessees are operating vehicles
6 Charles Ugaste testified that although a cab company had to secure municipal ap-
proval before raising its rates, cabfares could be lowered without having secured any such
permission in advance. According to Ugaste, this fact enabled the Respondents to effect
an immediate cut in their rates on July 1, 1963.
7 Although at the hearing the Respondents contend that lowering the cabfare per mile
would increase the demand for cabs and generate more business for the drivers, no
statistics were offered to substantiate the application of this theory to the case at hand.
BLUE CAB COMPANY, ETC. 499
distinctively painted and marked with the Respondents ' names and insignia and that
their primary source of income producing business depends on their maintaining close
radio contact with the dispatcher 's office. In the light of this evidence , any alleged
privilege of the driver-lessee to refuse to answer the dispatcher or to refuse an assign-
ment is clearly self-defeating . Significant also is the fact that the new driver -lessees
are issued manuals designed to guide them in the performance of their duties which
are identical with those which the Respondents issued to their driver -employees prior
to July 1, 1963 . Finally, it is manifest that the Respondents have a very substantial
degree of control over the lessees by virtue of their power to terminate at the end of
any day the 24-hour lease agreement of a driver.8
The facts with respect to the issue of control over the driver -lessees in the present
case are very similar to those in Mound City Yellow Cab Company, 132 NLRB 484,
485-486, where the Board found that the driver -renters there involved were employees
rather than independent contractors . In the light of the foregoing findings, it is my
conclusion that subsequent to July 1, 1963, the Respondents retained such control
over their driver-lessees that the relationship was that of employer-employee , within
the meaning of the Act. N.L.R.B. v. Nu-Car Carriers, Inc., 189 F. 2d 756,757 (C.A.
3), cert. denied 342 U.S. 919; Local No. 24, International Brotherhood of Teamsters,
etc. (A.C.E. Transportation) v. N.L.R.B., 266 F. 2d 675, 678-680 (C.A.D.C.). See
also N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 130-131; Bowman Trans-
portation , Inc., 142 NLRB 1093. Accordingly , it is my further conclusion that at all
times material both before and after July 1, 1963 , all taxicab drivers, dispatchers, and
garage and maintenance employees employed by the Respondents at their Oak Park
facilities , excluding all supervisors as defined in the Act , have constituted a unit appro-
priate for collective bargaining within the meaning of Section 9 (b) of the Act.
2. The facts as to the alleged refusal to bargain
As found earlier herein, the Respondents have had a succession of collective-
bargaining contracts with Local 782 over a period of approximately 11 years. During
the period in question the union contracts with Blue and Village were to remain in
effect through June 30, 1963, and from year-to-year thereafter unless at least 60 days
prior to the aforesaid date, either party served written notice of a desire to amend,
modify, or terminate the agreement. Both contracts provided for a union shop and
for the checkoff of dues. Charles Ugaste testified that in connection with the enforce-
ment and supervision of the latter provision one of the union business agents visited
the Respondents' offices almost every Friday to review the records of the new employ-
ees and to assure that they were enrolled promptly in Local 782. Charles Ugaste
conceded that as a result of this practice he was satisfied that, prior to June 30, 1963,
a majority of the cabdrivers were members of the Union. In the light of this conces-
sion and the finding , set out earlier , that the driver - lessees, after July 1, 1963, remained
employees of the Respondents , it is my conclusion that at all times material herein
the Union has been the majority representative of all the employees in the appropriate
unit found above.
On January 21, 1963, the Respondents sent letters to the Union notifying it of their
desire to terminate the collective-bargaining agreements on June 30, 1963. Charles
Ugaste testified that he took this action because he had concluded that the companies
could not survive under the existing contracts with Local 782. At the time the letters
were sent, the Respondents were not engaged in negotiations with the Union, nor had
they made any request upon Local 782 that it bargain for a new contract. After
receipt of the foregoing correspondence the Union took no action until April 23, at
which time it sent identical letters to Blue and Village notifying the Respondents of
its desire to open the wage agreement of the current contracts and requesting negotia-
tions toward that end. On April 29, counsel for the Respondents replied with a letter
8 In King v. Southwestern Greyhound Lines, 169 F. 2d 497 (C.A. 10), the plaintiff
lessee had a contract with the defendants whereby he was to operate and manage their
bus station and was to be compensated on a commission basis. The contract was on a
monthly basis and could be terminated upon the giving of 10 days' notice . In a suit for
reemployment under the Selective Service Act , the companies ' defense was that King was
not an employee but an independent contractor . The court of appeals held to the con-
trary and in so doing stated that the defendants ' control "was made well -nigh absolute
by the power to terminate the contract within 10 days for any reason or at any time for
failure to comply with the terms of the contract . . . . We think that when , as here,
one undertakes by contract to control every detail of a business he should not be heard to
say that those who perform the details are not his servants." (Ibid. at 499-500.)
217-919-66-vol. 15 6-3 3
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which restated the Companies' determination to end the contracts. About the middle
of May, John Baggot, business agent for Local 782, contacted Charles Ugaste and
asked for a meeting at which they could discuss the contracts that were expiring on
June 30. According to Baggot, Ugaste told him that he was not bargaining, that he
was going out of the cab business, and that after June 30 he would have no employees.
Baggot testified that he then asked if Ugaste would discuss some matters pertinent to
the current contract and the latter agreed, but only after reiterating that he would
not discuss the terms of a new agreement. Later that day Baggot met Ugaste in the
Respondents' office. There, according to the union representative, Ugaste stated that
he was not going to discuss a contract because the current agreement was expiring,
that he would not negotiate a new contract, and that he was going into the leasing
business. Baggot testified that he countered this last declaration with the statement
that he had copies of collective-bargaining agreements which the Teamsters had with
other cab companies that operated with driver-lessees and that he would like to discuss
their terms with Ugaste. According to Baggot, however, the latter refused to do so
and closed their discussion with the statement that he was not going to negotiate a
contract with the Union, that after July 1 there would be no union employees in his
company, and that the Union had caused him to lose thousands of dollars. Charles
Ugaste conceded that he had had a meeting with Baggot at the time and place in ques-
tion but he denied telling the union agent that the companies would have no employees
after June 30, or that the Respondents would not negotiate a new contract. Earlier
in this Decision references has been made to Charles Ugaste's reluctance, while on
the stand, to answer questions on cross-examination either fully or frankly. His
refusal to make a complete disclosure was manifest throughout his appearance as a
witness. For this reason it is impossible for the trier of the facts to accord any weight
to the categorical denials which he made as to some of the testimony which was dam-
aging to the Respondents' case. As a result it is my conclusion that, as between Baggot
and Ugaste, the testimony of the former must be accepted and credited over that of
the latter.
On May 27, the Union notified, in writing, the Federal Mediation and Concilia-
tion Service that it had an unresolved contract dispute with Blue and Village. As a
result of this notice, Commissioner Bowen of the FMCS asked that the parties meet
with him on June 24 at the regional offices of that agency in Chicago. The Respond-
ents were represented by Charles Ugaste and Edward Stackler, the latter an attorney
for the Respondents. Baggot and an associate business agent, Pat Landi, appeared
for the Union along with I. Harvey Levinson, attorney for Local 782. At the outset
of the meeting the Respondents refused to participate in any discussions on the
ground that to do so would be a concession that Blue and Village were engaged in
interstate commerce. When the Respondents declined to proceed with the conference
on this basis, Levinson proposed that the meeting be recessed to a more neutral
territory. Thereupon a meeting room was secured at the Conrad Hilton Hotel and
the parties, without the presence of Commissioner Bowen, reconvened their con-
ference at that location. Levinson testified that during the course of this meeting
Charles Ugaste stated that there was no reason for the parties to be present because
on the following Monday (July 1) the companies would have no employees and
there would then be nothing to discuss. According to Levinson, Stackler also stated
that since the employers would be out of business in another week there was nothing
to talk about. Levinson testified that the union representatives then asked if their
auditor could examine the companies' books and Stackler agreed that this would be
permitted if the union auditor came at a time that was convenient for the Respond-
ents' accountant. According to Levinson, the meeting was terminated after the
company representatives stated that there was no need for any further meetings
because they were going out of business and would shortly have no employees.
Levinson's testimony was corroborated by Baggot. It was neither contradicted nor
denied by either Ugaste or counsel for the Respondents.
During the same week that the above conference was held, the Union called a
meeting of the drivers in the Respondents' employ for the purpose of deciding on
a course of action in their negotiations with the companies. At the conclusion of
their discussion the members voted to go on strike if a new contract was not secured
from the Respondents by June 30.
Baggot testified that on June 25 he reported to the city officials of Oak Park that
the drivers were about to be locked out by the companies and that there would be a
work stoppage in the community very shortly. According to Baggot, Oak Park
Chief of Police Nester thereupon volunteered to call the parties together for a meet-
ing with a view to avoiding the dispute. Baggot agreed that he would attend such
a meeting. Shortly thereafter Nester arranged a conference between Charles Ugaste
and Baggot. According to the latter, at this time Ugaste proposed that in any new
BLUE CAB COMPANY, ETC. 501
contract the commission of the drivers be reduced from the 471/2 percent they were
then getting, to 421/2 percent, and that each driver be required to post a $100 bond
to cover accidents. At the same time Ugaste also announced the companies planned
to reduce the cab rates from 40 to 30 cents per mile. Baggot testified that he
immediately pointed out to Ugaste that the proposed 5-percent reduction in the
drivers' commissions coupled with a 10-cent decrease in the milage rate would amount
to a cut in the drivers' earnings of almost 30 percent. According to Baggot, he there-
upon stated, "Mr. Ugaste, you are not bargaining in good faith" and the latter then
replied, "I don't know why I made this offer. I don't want the union or any part
of it and I would never sign a contract with the union." Charles Ugaste testified
about this meeting and stated that he demanded that a $100 bond be posted by each
of the drivers to stem a rising accident rate. He did not deny or contradict any of
Baggot's testimony as to the events which took place at this conference. For that
reason, the testimony of the union representative is credited as an accurate account
of what transpired on that occasion.
On June 28, Chief of Police Nester called some of the drivers to a meeting at the
city hall and the following day he had the same drivers meet again, only this time
with Charles Ugaste, Baggot, and Landi in attendance. According to Joseph Felicetti,
one of the drivers present, after some discussion between them and Ugaste as to the
prospects of raising his offer from 421/2 percent to a higher figure, the Respondents'
official refused and then stated, "My offer is 421/2 percent, the hundred dollar bond,
take it or leave it, I'm through talking." Felicetti testified that the drivers thereupon
asked for a few minutes to discuss the matter among themselves and then returned
to ask Ugaste if he would drop his demand for a $100 bond and allow them to keep
their other benefits if they reduced their commission to 431/2 percent. According to
Felicetti, Ugaste flatly refused their proposal and then terminated the meeting with
the statement, "No, it's 421/2 percent, that's it, take or leave it. As of midnight
Sunday no more cab company. You fellows are no more union. I'm not having any
more union contract. You are no more employees as of Sunday midnight. If you
want to work come to me working on a leasing basis, 50/50, that's it." Felicetti's
testimony was credible and it was neither denied nor contradicted by any other
witness.
On July 1, Charles Ugaste made a written offer to Baggot in which the Respondents
proposed that the drivers get a commission of 431/2 percent but which still required
that each one post a $100 cash bond. Baggot took this proposal back to the union
members in the Respondents' employ but in a vote on the offer they rejected it
overwhelmingly. Baggot testified that the Union requested an extension of their
current contract for from 15 to 30 days to enable the parties to engage in further
bargaining but that this was refused on the ground that after July 1 the companies
would no longer have any employees. On that date the companies began operation
under the driver-lease agreements which have been described earlier. On that same
day the Union began picketing the Respondents' premises. At the time of the hearing
the picketing was still in progress.
On July 17 and 19, the Union sent telegrams to the Respondents requesting a
meeting for further negotiations. In their reply to these requests the Respondents
proposed a conference on July 24. On this latter date the parties met again at the
Hilton Hotel. The Union was represented by Levinson, Baggot, and two other
officials. Three attorneys, Edward K. Stackler, Paul Levenfeld, and Ronald Stackler,
appeared with John Ugaste for the companies.
The testimony of Attorney Levinson as to the conduct of this meeting was credible,
uncontradicted, and undenied. According to Levinson: At the outset of the meeting
he told the company representatives that he and the three others present for the Union
were authorized and prepared to negotiate a contract. Ronald Stackler thereupon
stated that the company representatives were not there to negotiate a contract because
none of them had the requisite authority, that instead they were present for the pur-
pose of negotiating the Respondents going out of business which had become an
accomplished fact since July 1 when they began the leasing of cabs. Levinson then
displayed a recent edition of the Chicago Tribune in which the companies had adver-
tised for drivers and asked if that was the basis on which they were doing business.
Ronald Stackler replied that it was. Levinson then asked whether the companies
would negotiate severance pay for the drivers who were on the payroll on
June 30, 1963, and Ronald Stacker rejected this proposal on the ground that the
contract had no provision for severance pay, and that with the termination of the
agreement on June 30 all of the Union's rights "died with the contract." s Ray
Schessley, one of the Teamsters' officials present, then asked if the companies would
0 The quotation is from the testimony of Attorney Levinson.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider giving the drivers a commision of 45 percent. After a short recess accorded
the company representatives to discuss this matter, the conference reconvened and the
latter informed the union agents that since Charles Ugaste was not present no deci-
sion could be made on the proposal but that in any event the companies had already
gone out of the cab business and were then engaged solely in the leasing business.
Thereafter Levinson stated to the company representatives that the drivers were
unreservedly offering to return to work under the terms and conditions contained
in the collective-bargaining agreements existing between the companies and the Union
on June 30, 1963. When Levinson asked when the drivers could retun to work,
Ronald Stackler replied that the companies were not employing any drivers and that
the drivers had been informed of this change. Levinson then asked what would be
done about the promise made on June 24 that a union auditor could examine the
company books. He was told that up to that time the company and union auditors
had been unable to get together because of a misunderstanding. Edward Stackler
told Levinson that he would discuss the matter with Charles Ugaste and contact
Levinson within a few days. Subsequent to the meeting, however, no one ever con-
tacted Levinson about this matter.10
Charles Ugaste testified that in connection with the Union's request to examine
the company books he was contacted by Frank Baker, accountant for Local 782, at
some time after July 1. According to Ugaste, on that occasion he declined Baker's
request for a meeting with the statement, "Well, the union has been picketing, no
sense in your coming out."
On September 9, 1963, Baggot sent the following letter to Charles Ugaste in his
,capacity as president of Village and secretary-treasurer of Blue:
On behalf of all Cab Drivers who were in your employ on June 30, 1963,
we hereby again make an offer to return to work. Will you notify us when these
employees should return to work?
In a letter to Baggot dated September 11, 1963, Attorney Edward K. Stackler rejected
this offer on the ground that the companies were no longer in the business of operat-
ing taxicabs and that all drivers who were formerly employed had their employment
terminated as of midnight June 30, 1963. The letter concluded with the statement:
As we have informed you previously, any of our former employees along with
those members of the general public who qualify, may lease cars from us as
independent contractors and drive these cars as cabs under such leasing. There-
fore, we cannot notify you when these former employees should return to work
for there is no work for them to perform. However, as members of the public
generally, we invite them to apply for leases at any time they wish.
At the time of the hearing there had been no further exchange, either written or
oral, between the parties.
C The issues with respect to Section 8(d) and Section 8(a) (3); findings and
conclusions with iespect thereto
The General Counsel contends, and the record supports the contention, that the
Respondents never notified, in writing, either the Federal Mediation and Concilia-
tion Service (FMCS) or the Department of Labor of the State of Illinois that they
proposed to terminate their existing contracts with Local 782. The Charging Party
sent such a notice to the FMCS on May 29, 1963, but no written notice of any
kind was ever sent by the Respondents. Edward K. Stackler, attorney for the
Respondents, testified 11 that after receipt of the Union's notice he discussed the
matter on the telephone with Commissioner Bowen of the FMCS but told the latter
that the Respondents did not care to use the facilities of that agency in its dispute
with the Union. As appears earlier herein, on June 24, at the one and only meeting
held in the office of the FMCS, the Respondents refused to participate on the ground
that a Federal agency had no jurisdiction in the matter.
The Board has consistently held that under the provisions of Section 8(d) of the
Act it is the duty of the party seeking to terminate an existing collective-bargaining
agreement to notify the FMCS and the appropriate State agency. Fort Smith Chair
Company, 143 NLRB 514; Retail Clreks International Association Local 1179,
AFL, and Esther Luther, Agent (J. C. Penny Co.), 109 NLRB 754, 757-758;
10 Levinson's testimony was corroborated by Baggot. John Ugaste adverted to this
meeting only briefly when on the stand. None of the Respondents' lawyers who were
present at the conference gave any testimony about it.
11 In a deposition taken subsequent to the hearing.
BLUE CAB COMPANY, ETC. 503
Local Union 219, Retail Clerks International Association , AFL-CIO ( Carroll House
of Belleville) v. N.L.R.B., 265 F. 2d 814, 817-818, 819 (C.A.D.C). Since the
Respondents gave no notice either to the FMCS or to the Department of Labor
for the State of Illinois, the appropriate State agency in this instance,12 I conclude
and find that by this course of conduct the Respondents violated Section 8(d)(3)
of the Act. Local 219, Retail Clerks v. N.L.R.B., supra; Fort Smith Chair Company,
supra; United Mine Workers of America, District 50, et al. (West Virginia Pulp &
Paper Co.), 118 NLRB 220, 224-226; Amalgamated Meatcutters and Butcher Work-
men of North America, Local #576 (Kansas City Chip Steak Co., Inc.), 140 NLRB
876, 880.
Section 8 (d)(4) of the Act requires that an employer in such circumstances must
continue "in full force and effect , without resorting to ... lockout , all the terms and
conditions of the existing contract for a period of sixty days after such notice is
given or until the expiration date of such contract, whichever occur later:" [Emphasis
supplied.] Since the requisite notices were not given , the Respondents were obligated
.to continue the existing collective -bargaining agreements "in full force and effect."
Instead, on July 1, 1963, the Respondents terminated their driver employees and
locked them out. The violation of Section 8(d) by the Respondents prior to that
date renders this lockout illegal. Further as was clearly borne out by the correspond-
ence of the companies and the statements of their counsel later that month and in
September, this abrupt action by the Respondents was plainly intended as a per-
manent layoff of all the driver-employees. This conduct, during the bargaining
negotiations , infringed upon the collective -bargaining rights of employees in violation
of Section 8 (a) (l) so that the lockout and the terminations , as the General Counsel
has alleged, violated Section 8(a) (3) of the Act. Quaker State Oil Refining Corpora-
tion, 121 NLRB 334, 337-338, enfd. 270 F. 2d 40 (C.A. 3), cert. denied 361 U.S.
917; American Brake Shoe Company, Ramapo Ajax Division, 116 NLRB 820, 826,
enfd. 244 F. 2d 489 (C.A. 7).13
D. Findings and conclusions with respect to the alleged violations of
Section 8(a) (5) of the Act
The General Counsel and the Charging Party have alleged that the Respondents
demonstrated a studied refusal to bargain in good faith with Local 782 by their
conduct during the months before and after July 1, 1963. This is denied by the
Respondents who aver that they made every possible effort to meet and bargain with
the Union.
The test of good faith in collective bargaining is whether a party to negotiations
conducted himself during the entire negotiations so as to promote rather than defeat
an agreement. N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131,
134-135 (C.A. 1), cert. denied 346 U.S. 887. It is my conclusion that the Respond-
ents here involved have not met that test.
Paramount among the conditions which the Respondents set for the execution of
a new agreement was the requirement that every driver post a $100 cash bond. In
every offer which he made to the union representatives , Charles Ugaste insisted that
12 At the hearing the Respondents contended that there is no agency in Illinois "estab-
lished to mediate and conciliate disputes" within the meaning of Section 8 ( d) (3) of the
Act. There is no merit to this contention . Local No . 156, United Packinghouse Workers
of America, AFL-CIO, et al. (Du Quoin Packing Company ), 117 NLRB 670 , 672, 679
(citing 111 . Ann. Stat. , ch. 10 , § 20 to 30, and ch. 127 , § 43). Further , in this connec-
tion, it should be noted that Francis J. De Laurie , a conciliator for the Illinois Depart-
ment of Labor , testified as to the operations of his office . According to De Laurie, it is
the function of the conciliators for that State agency to provide mediation services when
requested , in writing , by one or more of the parties to a labor-management dispute. See
also Amalgamated Meateutters and Butcher Workmen of North America , Local #576
( Kansas City Chip Steak Co., Inc. ), 140 NLRB 876, 878-880.
13 Various allegations in the complaint characterize the Union 's course of action after
July 1 , 1963, as a strike . On the facts found above, however, it would appear that a
statement of the Board in Wakefield's Deep Sea Trawlers , Inc., and Wakefield Fisheries,
Inc., 112 NLRB 1357 , more accurately defines the conduct of the driver employees who
began picketing on July 1: "Plainly , where as here , employees desire to work under their
contract but the Employer refuses to permit them to work , there cannot be a strike
regardless of whether the picketing is loosely referred to as a strike . Therefore, these
employees were not strikers , but were merely picketing . . . in an effort to force the . . .
Respondents to resume work under the terms of the . . . agreement for the 60-day period
required by Section 8(d) of the Act." Ibid . at 1359.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bond provision had to be included. Ugaste testified that this was absolutely
essential because the accident rate among the drivers was so high that the Respond-
ents' insurance carrier had threatened cancellation of its policy. According to Ugaste,
if the Union would agree to the bond, the companies could "live with this contract."
Notwithstanding the Respondents' insistence on a bond from each driver in all its
bargaining relations with the Union prior to July 1, the evidence as to their conduct
after that date demonstrates a completely different attitude once the Union was out of
the picture. Thus, although the lease agreements had a provision requiring that each
driver-lessee post a $100 bond, the driver-lessees who appeared at the hearing testified
that they had never posted such a bond and that they knew of no driver who had.
Charles Ugaste conceded that this was true and stated that he could only recall one
driver-lessee on whom the Respondents had imposed the bond requirement subsequent
to July 1.14 From this record it is apparent that whereas prior to July 1, the Respond-
ents insisted in their negotiations with the Union that they had to have the bond
provision in any agreement, they readily waived this requirement immediately there-
after when dealing with the individual driver-lessees. From this course of conduct
it is apparent, and I so conclude, that the Respondents' insistence that the bond provi-
sion was a condition precedent to any new contract with the Union was a stratagem
designed to forestall rather than promote agreement. By such action, the Respond-
ents violated Section 8(a) (5).
As found above, on or about July 1, without any negotiations with the Union, the
Respondents reduced the meter rate on cabfares from 40 to 30 cents per mile Since
the drivers were compensated on a commission basis this effected an immediate cut
in their earnings. In taking this action without consultation or bargaining with the
-Union, the Respondents injected a last minute change in their bargaining position
which plainly indicated a lack of good faith in their dealing with the drivers' repre-
sentative. Armstrong Cork Company v. N.L.R.B, 211 F. 2d 843, 847 (C.A. 5).1a
Earlier it has been found that the Respondents made no effort to negotiate with
the Union about the driver-lease agreements In May, Baggot told Charles Ugaste
that the Teamsters had contracts with numerous fleet owners in which the drivers had
some type of lease arrangement and he suggested to Ugaste that the Union would
negotiate with him on the issue. Neither then, nor later, did Ugaste ever show to the
union representatives the terms of the proposed driver-lease agreements. At no time
did the Respondents deign to include the representatives of Local 782 in any of their
deliberations on the lease agreements which they proposed to the drivers on July 1.
This refusal to negotiate with the drivers' representative on a change in operations in
which they were so vitally concerned was clearly a violation of Section 8(a)(5) and I
so find Town & Country Manufacturing Company, Inc, and Town & Country Sales
Company, Inc., 136 NLRB 1022, 1027-1028, enfd. 316 F. 2d 846 (C.A. 5); East Bay
Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO (Fibre-
board Paper Products Corporation), 138 NLRB 550, 554, enfd 322 F. 2d 411
(C.A.D.C.); N.L R B. v. Intracoastal Terminal, Inc. and Louisiana Processing Com-
pany, Inc., 286 F. 2d 954, 959 (C A. 5); N.L.R B. v. Central Illinois Public Service
Company, 324 F. 2d 916, 918-919 (C.A. 7); East Bay Union of Machinists, Local
1304 v. N.L.R.B, 322 F. 2d 411, 415 (C.A.D.C.), Southern Coach & Body Company,
Inc., 141 NLRB 80.
Prior to July 1, the Respondents' representatives stated that one of the union
accountants would have an opportunity to examine the corporate books After the
picketing began, however, Charles Ugaste terminated this commitment by telling
Baker, the union accountant who sought the promised inspection, "the union has been
picketing, no sense in your coming out." The presence of the pickets gave the
Respondents no valid basis for refusing to honor the earlier agreement. Cf Jeffery-
De Witt Insulator Co v. N.L R.B., 91 F. 2d 134, 140 (C.A. 4). Similarly, it was a.
violation of the Respondents' obligations under Section 8(a) (5) for the Respondents
to presume that subsequent to July 1, 1963, they had no obligation to discuss severance
pay or other matters with the Union, and that all of the Union's rights "died with
14 Charles Ugaste testified that after July 1, 1963, the number of accidents declined
almost 95 percent. This statement , however, was not corroborated in any way . In view
of this fact and because of the generally evasive character of much of this witness' testi-
mony , his unsupported assertion that there was a dramatic decline in the accident rate
after July 1, was most unpersuasive.
15 See N.L.R .B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U.S. 736,
747, where the Supreme Court stated, "Unilateral action by an employer without prior
discussion with the union does amount to a refusal to negotiate about the affected condi-
tions of employment under negotiation , and must of necessity obstruct bargaining , contrary
to congressional policy."
BLUE CAB COMPANY, ETC. 505
the contract." Even assuming arguendo that the collective-bargaining contracts had
expired, the employer's duty to bargain as to rights acquired thereunder continues.
East Bay Union of Machinists, Local 1304, etc. (Fibreboard Paper Products Corpora-
tion), supra. In this case, however, it has been found above that because of the
Respondents' failure to comply with the requirements of Section 8(d)(3) of the Act,
the agreements with the Union remained in effect.16' Moreover, as also found earlier
in this Decision, the driver-lessees whom the Respondents had after July 1, were, in
fact and in law, employees rather than independent contractors. The Union's majority
among the employees was unquestioned prior to that date. It cannot be held to have
lost such a majority as a result of the Respondents' unfair labor practices. Franks
Bros. Company v. N.L.R.B., 321 U.S. 702, 705. In consequence it must now be held
that in refusing to discuss severance pay or any other aspect of the agreements with
Local 782 on July 24, 1963, or thereafter, the Respondents further violated Section
8(a)(5) and (1). Fibreboard Paper Products Corporation, supra. Finally, I con-
clude and find that the totality of the whole course of bargaining by the Respondents
makes manifest that they have failed to comply with the statutory requirement that
they bargain in good faith. As the Respondents' entire course of conduct did not meet
that requirement it is my conclusion that the violation of Section 8(a) (5) commenced
on April 29, 1963, when the Respondents first replied to the request of Local 782 that
the parties initiate bargaining conferences with respect to the wage provisions in the
current contracts. California Girl, Inc., 129 NLRB 209, footnote 2; Cabinet Manu-
facturing Corporation, 140 NLRB 576, footnote 2.
E. The alleged violations of Section 8(a) (1); findings and
conclusions with respect thereto
During the course of the period from April through August 1963, the Respondents'
officials and supervisors engaged in various acts and conduct which the General
Counsel alleges as independently violative of Section 8(a)(1). The testimony on
which these allegations are based will now be considered.
It was undisputed that about the middle of June 1963, the Respondents posted a
notice on the garage bulletin board announcing that as of July 1, Blue Cross hospitali-
zation insurance on the drivers would be discontinued and that thereafter each driver
would have to make his own arrangements for such coverage. Joseph Roberson, one
of the drivers, testified that when he saw this announcement he questioned John
Ugaste, Jr.,17 as to its significance and was told by the latter "July 1 there would be
no more union drivers so there would be no more paychecks to take the dues out of."
According to Roberson, a few minutes later John Ugaste, Jr., told him that the
announcement need not affect Roberson if the employee wanted to continue after
July 1 "as a part time dispatcher and a driver on a 50/50 lease basis ... you would
have to drive on a 50/50 lease basis because there [will be] no more union members
because they have to take a withdrawal card to do this ...." Roberson testified that
he met this proposal with a question as to what would happen if the companies and
the Union agreed on a new contract before July 1 and that he was told by Ugaste, "not
to worry about this because there would never be another union contract." John
Ugaste, Jr., conceded having had a conversation with Roberson at the time and place
in question and that on this occasion he discussed the announcement that Blue Cross
hospitalization was being discontinued as of July 1. He denied, however, telling the
employee that he would no longer be covered because he was a union member.
Roberson was a convincing witness and in this instance it is my conclusion that his
version of the conversation with John Ugaste, Jr., is the more credible.
16 As found earlier herein , because of the Respondents' failure to comply with the notice
requirements of Section 8(d), the collective-bargaining agreements with Local 782 re-
mained in effect, at least until they could lawfully be terminated in accordance with the
requirements of Section 8(d). Since these contracts were still in effect on and after
July 1, 1963 , when the Respondents established the driver-lease arrangements , thereby
unilaterally changing the wages and working conditions of their driver employees, I find
that in this manner the Respondents unlawfully refused to bargain with the Union within
the meaning of Section 8(d) and Section 8(a)(5). Jack Lewis and Joe Levitan d/b/a
California Footwear Company, 114 NLRB 765, 770, enfd. as to this point, 246 F. 2d 886
(C.A. 9).
17 John Ugaste, Jr., son of John Ugaste, Sr., president of Blue, was conceded by the
Respondents to have supervisory authority. Charles Ugaste in his testimony made the
same concession as to James Bennett, his son-in -law, and Louis Kane, manager for Blue,
both of whom are referred to hereinafter.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas W. Pope, another driver, testified that about June 29, on reporting for
work, he inquired of John Ugaste, Jr., as to which cab he should take from the
garage and that the latter responded: ". . . Take anything, you are only going to be
here two more days anyway." According to Pope, on July 1 and after the picketing
began, he was outside the garage and with the pickets when John Ugaste, Jr., engaged
him in conversation and told him, "If you come back to work ... I'll give you 10 days
free, everything in your book you can keep and I'll buy the gas." John Ugaste, Jr.,
denied the first conversation which Pope attributed to him, but did not testify as to
the second. I find that Pope's testimony as to both conversations was credible. Pope
also testified that while at the garage on June 28, James Bennett, the son-in-law of
Charles Ugaste and a supervisor, asked him where he would work the following
Monday, July 1. According to Pope, when he expressed the assumption that he would
continue working for the companies, Bennett stated, "Well, there won't be any more
Union here ... you will be out of a job Monday, but I want to show you the new
contract." Pope testified that although he disclaimed any interest in the latter, Bennett
thereupon secured a copy of a lease agreement from Charles Ugaste's office and gave
it to Pope with the statement, "Look it over, better deal than you are getting now ...
you're going to get 50 percent." Bennett conceded having had a conversation with
Pope about the time in question. According to Bennett, on the other hand, the dis-
cussion concerned only business conditions at Northwest Cab Company, another
Ugaste corporation which was operating under the lease agreement system at a
different location. This explanation was not convincing, however, and I conclude
that the conversation took place substantially as Pope described it.18
Theodore Rozmus, a driver for Village, testified that on the morning of July 1 and
after the strike had begun, Louis Kane, telephoned him and asked if he wanted to
make some money. According to Rozmus, after he answered this question in the
affirmative, Kane told him, "Come back to work and you can keep all of your book-
ings and the gas will be paid for by us ...." Kane denied having made this statement
to Rozmus. The latter, however, was the more credible as to this matter.
Several of the drivers testified about conversations allegedly had with Charles
Ugaste during this period. Alexander Cohen, a driver for Village, testified that about
June 27, Ugaste asked him if he would like to sign up under the new arrangement and
receive 50 percent of the bookings. According to Cohen, after he replied that he
would let the Union decide the matter, Ugaste declared ". . . the first of the month,
there will be no Union and we will close the doors if we have to." Charles Ugaste
did not deny having had such a conversation with Cohen. The latter was a credible
witness. Thomas Pope testified that while on picket duty he had two conversations
with Charles Ugaste. The first was on about July 7 when, according to Pope, Ugaste
told him, "You know, you will be out here when the snow is on the ground before I'll
sign another union contract." Pope testified that about a week later Ugaste asked him
when the men were coming back to work and when he gave a noncommittal response,
Ugaste told him, "You might as well [come back to work] ... because there will never
be another union in here; might as well come back to work ... nobody is going to tell
me how to run my business." Charles Ugaste was not asked about the first conversa-
tion which Pope attributed to him and as to the second he disclaimed having suggested
to Pope that the latter return to work while still on picket duty. Alexander Cohen
testified that while he was on the picket line about July 10 he noticed Charles Ugaste
sweeping out one of the cabs and jocularly inquired of Ugaste if the new collective-
bargaining agreement would include a requirement that the company president clean
out the taxis. According to Cohen, Ugaste replied with an epithet and declared,
"There will be no contract at any time, there'll be no Union contract at any time "
Ugaste denied having had any such conversation with Cohen. Walter Dunkovich
testified that while he was on picket duty about the third week in July, Ugaste initiated__
a conversation with him in which Ugaste told him that driver-lessees "were making
a killing." According to Dunkovich, when he told Ugaste that he was not interested
in doing what the driver-lessees were doing, Ugaste told him that he "wanted to run
his own company and it was his business and he would run it the way he wanted to and
he was tired of the union running his business." Earlier in this Decision, it was found
Is Another witness, Walter J. Dunkovich, testified that in August 1963, Bennett told
him, during the course of a conversation, that if any other union came into the cab com-
pany it would be the Seafarers. The General Counsel alleges that this constituted a
threat by the Respondents to bring in the latter union. Dunkovich's testimony as to this
conversation was hazy and incomplete. It is my opinion that in the present state of the
record there is little foundation for the inference which the General Counsel would draw
from this bit of testimony.
BLUE CAB COMPANY, ETC. 507
that Charles Ugaste was not a frank or forthright witness during much of his appear-
ance on the stand. The driver witnesses who testified as to the above conversations,
on the other hand, appeared credible. Moreover, their testimony in each instance
withstood a searching cross-examination by counsel for the Respondents. For these
reasons, I conclude and find that the testimony of Cohen, Pope, and Dunkovich, set
out above, is more credible than that of Charles Ugaste as to these incidents.ia
On the basis of the foregoing findings, 1 conclude and find that the Respondents
violated Section 8 (a) (1) of the Act by: (1) promising the employees benefits such as
greater compensation as driver-lessees and continued hospital insurance if they would
discontinue their union adherence; (2) threatening to close their business before they
would sign another union contract; (3) expressing an intention to get rid of the Union
and threatening the employees with discharge or other reprisals if they continued
their union adherence; and (4) offering economic benefits to those on the picket line
and soliciting their return to work, thereby attempting to undermine the Union and
destroy its majority.
Earlier herein it has been found that the Respondents engaged in extensive viola-
tions of Section 8 (a) (5) of the Act by: (1) unilaterally changing the existing wage
structure of its drivers; (2) bargaining directly with the employees with regard to
the proposed driver-lease agreements; (3) refusing to negotiate and discuss with the
Union the driver-lease arrangements and other terms and conditions of employment;
and (4) refusing to bargain in good faith within the meaning of Section 8(d) and
8(a) (5). It has also been found that, by locking out the drivers on July 1, 1963, the
Respondent violated Section 8(a)(3). All of this conduct likewise violated Section
8 (a) (1) of the Act. Finally, it is my conclusion that the picketing which the Union
initiated on July 1, 1963, was precipitated and prolonged by the foregoing conduct
on the part of the Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents Blue and Village set forth in section III, above, occur-
ring in connection with the operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondents Blue and Village engaged in certain unfair labor
practices , I shall recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
As the Respondents on April 29, 1963, and at all times thereafter have refused to
bargain in good faith with Local 782, and since July 1, 1963, have refused to recog-
nize or bargain with that Union, as the representative of a majority of their employees
in an appropriate unit , I shall recommend that the Respondents , upon request , accord
such recognition and bargain collectively with the Teamsters , and if an understand-
ing is reached , embody such understanding in a signed agreement.
Having found that on July 1, 1963, the Respondents unilaterally changed their
mode of operations and locked out and terminated all the employees in the bargaining
unit, in violation of Section 8(a)(5), (3 ), and (1 ) of the Act, I shall recommend that
the Respondents be ordered to cease and desist from locking out , or continuing to lock
out, their employees, or from making unilateral changes in the terms and conditions
of employment without consulting the designated bargaining agent. The nature of
the violations found herein requires the same type of remedy as prescribed by the
Board in Fibreboard Paper Products Corporation , 138 NLRB 550 , 554-555, enfd. 322
F. 2d 411 (C.A.D.C.). On the basis of that decision it will be recommended that the
Respondents restore the status quo ante July 1 , 1963, by reinstating their driver
employees whom they locked out on that day and by fulfilling their statutory obliga-
tion to bargain with the Union . Further, it will be recommended that the Respond-
ents offer to all the driver employees reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privileges.
ie The General Counsel also relied on the testimony of John B. Gauss and Joseph M.
Serra, two other drivers as to several additional incidents in which they attributed var-
ious statements to Charles Ugaste and James Bennett. Both of the former were very
garrulous and opinionated. Most of their testimony was denied by both Ugaste and
Bennett. Since neither of the aforesaid drivers was either convincing or persuasive,
I do not credit their testimony.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will also be recommended that the Respondents make whole the drivers for any loss
of earnings they may have suffered as a result of the Respondents' unlawful action in
locking them out on July 1, 1963, to the date of the Respondents' offer to reinstate
them, or the date of their actual reinstatement.20 Backpay shall be based upon the
earnings they normally would have received from the date of the discrimination to
the date of the offer of reinstatement, or reinstatement, and shall be computed in
accordance with the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, with interest at the rate of 6 percent per annum computed quarterly.
In view of the nature of the unfair labor practices committed the commission of
similar and other unfair labor practices may reasonably be anticipated. It will, there-
fore be recommended that the Respondents be ordered to cease and desist from in any
manner infringing upon the rights guaranteed their employees by Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondents Blue and Village constitute a single employer and are engaged in
commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. All taxicab drivers, dispatchers, and garage and maintenance employees em-
ployed by the Respondents at their Oak Park facilities, excluding all supervisors as
defined in the Act, constitute a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union is, and has been at all times material to this proceeding, the exclu-
sive representative for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act of all the employees in the aforesaid appropriate unit.
5. By refusing to bargain in good faith with the Union on April 29, 1963, and
thereafter, the Respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) of the Act.
6. By locking out and permanently laying off their drivers on July 1, 1963, in the
manner found herein, the Respondents violated Section 8(a)(5), (3), and (1) of
the Act.
7. By unilaterally changing the terms and conditions of employment of their
driver employees, in the manner found herein, the Respondents violated Section
8(a)(5) and (I) of the Act.
8. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
9. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, I recommend
that the Respondents, Blue Cab Company and Village Cab Company, their officers,
agents, successors , and assigns, shall:
20 If employees are discharged unlawfully while actually on strike the Board will award
backpay only from the date of their unconditional request for reinstatement , rather than
from the date of their discriminatory discharge . Kitty Clover, Inc., 103 NLRB 1665,
1667 , enfd. 208 F . 2d 212 ( C.A. 8). Such an unconditional request for reinstatement was
made by the Union on behalf of the employees on July 24 , 1963, and again on Septem-
ber 9, 1963. On the other hand, the Board has held that as to employees discharged be-
fore they went on strike , backpay must be awarded from the date of their discharge
until they are offered reinstatement by their employer . Spitzer Motor Sales , Inc., 102
NLRB 437 , 453, enfd. 211 F. 2d 235 (C.A. 2). According to the Board , "Because the
Respondents ' unlawful discrimination has made it impossible to ascertain whether these
employees would have gone on strike in the absence of such discrimination , the uncer-
tainty must be resolved against the Respondent ." Merchandiser Press, Inc., 115 NLRB
1441, 1442. For this reason , In the present case, it is my conclusion that the employees
here Involved are entitled to backpay from the time of the discriminatory lockout on
July 1, 1963 , until the date when the Respondents offer them unconditional reinstatement.
BLUE CAB COMPANY, ETC. 509
1. Cease and desist from-
(a) Refusing to bargain collectively with General Teamsters, Chauffeurs, and
Helpers Local 782, as the exclusive representative of all the employees in the appro-
priate unit set forth below with respect to wages, hours, and other terms and condi-
tions of employment.
(b) Discouraging membership in the above named labor organization, or any
other labor organization of their employees, by discriminatorily locking out or ter-
minating their employees, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of employment, except
to the extent permitted in Section 8(a) (3) of the Act.
(c) Locking out or terminating their employees in order to force them and their
bargaining representative to give up their bargaining demands and accept the Respond-
ents' contract proposals without further bargaining.
(d) Refusing to bargain collectively with the Union, by failing to notify the Fed-
eral Mediation and Conciliation Service and any appropriate State agency of the
existence of a dispute within the meaning of Section 8 (d) (3) of the Act, within 30
days after service of notice upon the Union that the Respondents seek or desire ter-
mination or modification of a collective-bargaining contract; provided, however, that
no such notice under Section 8(d)(3) shall be required if an agreement is reached
within 30 days following service of a notice that modification of a bargaining con-
tract is sought or desired.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form labor organizations, to join or
assist the above named Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, and to refrain
from any and all such activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2 Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Resume their taxicab operations as conducted prior to July 1, 1963, and offer
to their drivers immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered by them in the manner set forth
in the section entitled "The Remedy."
(b) Upon request, bargain with General Teamsters, Chauffeurs, and Helpers Local
782, as the exclusive representative of all employees in the appropriate unit and, if an
understanding is reached, embody such understanding in a signed statement. The
appropriate bargaining unit is:
All taxicab drivers, dispatchers, and garage and maintenance employees employed
by the Respondents at their Oak Park facilities, excluding all supervisors as defined
in the Act.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due and the rights of reinstatement under the terms
of this Order.
(d) Post at their facilities in Oak Park, Illinois, copies of the attached notice marked
"Appendix." 21 Copies of said notice, to be furnished by the Regional Director for
Region 13, shall, after being duly signed by the Respondents' representative, be posted
--by the Respondents immediately upon receipt thereof, and be maintained by them
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that said notices are not altered, defaced, or cov-
ered by any other material.
"In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision what steps the Respondents have taken to comply
herewith.22
re In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
sions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with General Teamsters, Chauf-
feurs, and Helpers Local 782, as the exclusive representative of our employees
in the appropriate unit.
WE WILL NOT unilaterally make changes in the wages, hours, and other terms
and conditions of employment for the employees in the appropriate unit without
prior bargaining with the above-named Union.
WE WILL NOT lock out or terminate our employees in order to force them or
their bargaining representative to give up their bargaining demands and accept
our contract proposals without further bargaining.
WE WILL resume our taxicab operations and offer to those of our employees
locked out on July 1, 1963, immediate and full reinstatement, each to his former
or substantially equivalent position, and make each whole for any pay lost by
reason of the lockout.
WE WILL, upon request, bargain collectively with General Teamsters, Chauf-
feurs, and Helpers Local 782, in the following unit of our employees with respect
to wages, hours, and other terms and conditions of employment, and, if any
understanding is reached, embody such understanding in a signed agreement:
All taxicab drivers, dispatchers, and garage and maintenance employees
employed at our Oak Park facilities, excluding all supervisors as defined in
the Act.
WE WILL NOT refuse to bargain collectively with the aforesaid Union by failing
to notify the Federal Mediation and Conciliation Service and any appropriate
State agency of the existence of a dispute within the meaning of Section 8(d) (3)
of the Act, within 30 days after service of notice upon the said Union that we
seek or desire modification of a collective-bargaining contract; provided, how-
ever, that no such notice under Section 8(d)(3) shall be required if an agree-
ment is reached within 30 days following service of a notice that modification
of a bargaining contract is sought or desired.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the above-named Union, or any other labor orga-
nization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment, as author-
ized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
BLUE CAB COMPANY AND VILLAGE CAB COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the employees presently serving in the Armed Forces
of the United States of their right to reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.