Boston Cab Co., Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1974

212 N.L.R.B. 560 (N.L.R.B. 1974)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston Cab Company, Inc. & McCann 's Taxi, Inc. and
Back Bay Drivers' Association (Boston Cab Orga-
nizing Committee). Case 1-CA-9397
DECISION
STATEMENT OF THE CASE
July 26, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On April 12, 1974, Administrative Law Judge Her-
bert Silberman issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated it author-
ity in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544, enfd 188 F 2d 362 (CA 3, 1951). We have carefully examined
the record and find no basis for reversing his findings
2 We find, in agreement with the Administrative Law Judge, that there is
insufficient evidence, either direct or circumstantial, to support a finding that
the Respondent was motivated to discharge James Barrett because of his
union activism . However, we do not adopt so much of the Administrative
Law Judge 's language which seems to suggest that proof of a "predisposition
to discriminate ," admittedly absent here, is the exclusive manner of proving
discriminatory motivation
We agree with the Administrative Law Judge's finding that, standing
alone, dispatcher George Pilla's conversation with employee Aster W Olsen
pertaining to the September 18, 1973, union meeting did not constitute un-
lawful interrogation in violation of Sec. 8(a)(1) Unlike the Administrative
Law Judge, however, we need not and do not deem it necessary to rely on
N.L.R.B v. Dorn's Transportation Company, Inc, 405 F.2d 706, 714 (C A 2,
1969), and National Can Corporation v. N L R B, 374 F 2d 796, 806 (C.A. 7,
1967)
HERBERT SILBERMAN, Administrative Law Judge: Upon a
charge filed by Back Bay Taxi Drivers' Association (Boston
Cab Organizing Committee), herein called the Union, on
October 25, 1973, a complaint was issued on December 21,
1973, alleging that Boston Cab Company, Inc. and McCann
Taxi, Inc., herein called the Company, has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended. In substance, the complaint, as amended at the
hearing, alleges that the Respondent unlawfully discharged
its employee, James R. Barrett, on October 18, 1973, be-
cause he joined or assisted the Union and, by reason of such
unlawful discrimination and other conduct set forth in the
complaint, Respondent also has interfered with, restrained,
and coerced employees in the a ,ercise of the rights guaran-
teed in Section 7 of the Act. Respondent's answer to the
complaint denied that it has engaged in the alleged unfair
labor practices. A hearing in this proceeding was held in
Boston , Massachusetts, on February 11, 12, 13, and 14,
1973. The parties were given leave to file briefs with the
Administrative Law Judge and briefs have been received
from General Counsel and Respondent.'
Upon the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The Company, a Massachusetts corporation, maintains
its principal place of business in Boston, Massachusetts,
from which facility it is engaged in furnishing transporta-
tion services by taxicabs. The Company's annual revenues
exceed $500,000 and its annual purchases of goods and
materials, directly or indirectly, from points outside the
Commonwealth of Massachusetts exceed $50,000. Respon-
dent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
11 THE LABOR ORGANIZATION INVOLVED
Back Bay Taxi Drivers' Association (Boston Cab Orga-
nizing Committee) is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
In February 1973 the Union began a drive to organize the
Company's drivers. Ultimately, a representation petition
was filed with the Board on November 13 pursuant to which
an election was conducted on December 20, 1973, which the
' No objection having been filed to General Counsel's motion, dated
March 13, 1974, to correct the transcript of proceedings, the motion is hereby
granted
212 NLRB No. 92
BOSTON CAB CO., INC. 561
Union lost. About March 1973 James R. Barrett began to
assist the Union in its campaign and thereafter became the
most active union supporter among the Company's employ-
ees. Barrett was discharged on October 18, 1973. The princi-
pal issue is whether the Company, which opposed the
organization of its employees and was aware that Barrett
was active in the Union's campaign, discharged Barrett for
such reason or, as Respondent contends, for cause unrelat-
ed to his union sympathies and activities.
The Company operates approximately 120 taxicabs and
uses two shifts of drivers. Because of a large turnover of
employees, which is an industry characteristic, during the
calendar year 1973 the Company employed between 1,100
and 1,300 drivers. The principals of the Company are Beryl
Barenholtz, his brother Leslie Barenholtz, and the latter's
son Daryl Barenholtz. Also conceded by Respondent to be
supervisors and agents are Melvin Sher, general manager,
and George Pilla, taxi dispatcher. There is an issue as to
whether Norman Pinto, who works during the late evening
and early morning hours, is a supervisor and agent.
The Union began its effort to organize the Company's
drivers in February 1973, The then president of the Union,'
Ronald Stoia, was in charge of the campaign and initially
was assisted by two company employees. On March 1973
Barrett offered his support to the campaign and became the
most active of the Company's employees in promoting the
Union. Barrett attended his first union meeting in March
which was held at the home of John Merriam. Thereafter,
between May and October 17 six union meetings were held
at Barrett's home each of which was attended by from four
to nine employees. Prior to his discharge, Barrett successful-
ly solicited union authorization cards from about 60 compa-
ny drivers and,` beginning in late August, Barrett wore a
union button at work. In addition to the foregoing, Barrett
with the assistance of Union President Stoia wrote cam-
paign leaflets and on at least four occasions between May
and October, including September 11 and 19, distributed
them at the Company's premises.2 No other company em-
ployee passed out leaflets at the Company's premises?
In March 1973 the Company learned of the Union's orga-
nizational drive and in early September 1973 the Company
received a letter from the Union which listed six individuals,
including Barrett, as constituting the in-plant organizing
committee of the Union. Barrett's participation in the distri-
bution of union leaflets at the Company's premises came to
the attention of management. More particularly, on the
morning of September 19, as Barrett was distributing union
leaflets in front of the Company's garage, Beryl Barenholtz
approached him and waving a finger at him said, "You
bastards are never going to win." Although this remark
reflects the Company's opposition to the organization of its
employees, contrary to General Counsel, I find that the
statement does not constitute a violation of Section 8(a)(1)
of the Act.
Barrett testified that in late August or early September
1973 dispatcher George Pilla assigned to him his "steady
cab." Barrett protested that he could not drive the vehicle
2 Barrett testified that he also distributed leaflets at taxistands
3 After Barrett was discharged other company employees distributed union
leaflets at the premises of the Company
any longer because "it was too bad." According to Barrett,
Pilla said, "Barrett, you're the biggest troublemaker we've
got here." Pilla then told Barrett that Barrett would have to
wait because there were no other cabs available for assign-
ment 4 This testimony does not establish that Barrett was
treated differently than other taxicab drivers. The remark to
Barrett that he was a "troublemaker," in the context of the
Company's knowledge of Barrett's union activities, was a
reference to such activities. However, without more, it does
not constitute a violation of Section 8(a)(1) of the Act, par-
ticularly as Barrett testified that the Company did not try
to hinder his union activities. According to Barrett, the
Company did not interfere with his distribution of union
leaflets, did not forbid or discourage him from wearing a
union button while driving a taxicab for the Company, and
did not try to prevent him from soliciting authorization
cards.
Evidence of a single instance of interrogation was ad-
duced at the hearing. Aster W. Olson, a long-term employee
of the Company, testified that the day after a union meeting
which was held in September 1973 dispatcher George Pilla
remarked to him, "You were at the Union meeting last
night." Olson responded in the affirmative. Standing alone
this evidence does not spell out a violation of the Act. Inter-
rogation of an employee by a supervisor is not unlawful
unless the questioning is itself threatening or unless "the
circumstances of interrogation would induce fear of repri-
sal"among employees.' Contrary to General Counsel, I find
no violation of the Act has been proved by the alleged
interrogation of Aster W. Olson.
A. Discharge of James R. Barrett
Barrett began his employment with the Company as a
taxicab driver in June or July 1972 and was discharged by
General Manager Melvin Sher on October 18, 1973. Sher
testified that he discharged Barrett because Sher had re-
ceived a forceful complaint from Virginia Josephs , a case-
work coordinator for the Crittenton Hastings House, which
in 1973 was the Company's third largest account.6 The Crit-
tenton Hastings House is a philanthropic institution which
assists unwed mothers. The institution has been a charge
account customer of the Company for more than 6-1/2
years and has a direct telephone line to the Company so that
quick transportation can be provided in situations where a
young lady is in labor or in other emergencies. Virginia
Josephs testified that in January 1973 the institution began
a new program to expand its services into the ghetto area
of Boston. At that time she explained to Sher that the ghetto
youngsters were distrustful and wary of the program and
4 Barrett further testified, "I asked him about getting a new cab, since they
were getting new cabs at the time, and he said there just wasn't any way. He
just said, `No."' The evidence in the case does not establish , nor does the
complaint allege, that the Company discriminated against Barrett in regard
to the assignment of new or better taxicabs
5 N L KB v. Dorn's Transportation Company, Inc, 405F.2d 706, 714 (C.A
2, 1969) Accord' National Can Corporation v N L R B, 374 F.2d 796, 806
(C.A 7, 1967).
6 The Company has approximately 15 accounts where it maintains direct
telephone line connections . In 1973 the most active account furnished the
Company in excess of $47,000 in revenue, the next largest account furnished
more than $19,000, and the Crittenton Hastings House furnished in excess
of $16,500.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she sought to impress upon Sher the importance of provid-
ing courteous drivers whose services would help to support
the program. On October 18, 1973, she complained to Sher
about the manner a driver had carried a 15-year-old preg-
nant youngster and the latter's mother from their home to
the Crittenton Hastings House and told him, "I am awfully
concerned, because these are people who, with one family
feeling this way, we could really do ourselves in, in terms of
the day program." In response' to questions of General
Counsel she explained that she had not magnified the im-
portance of her complaint because the program is brand
new, the institution is trying to get it off the ground, and
"little incidents like this might very well be blown up."
Melvin Sher testified that about 1 p.m. on October 18 he
received a telephone call from Virginia Josephs who was
enraged. She informed him that cab 254 had carried an
unwed 15-year-old girl in her seventh month of pregnancy
and the girl's mother from their home to the Crittenton
Hastings House. The vehicle had been driven along the
Jamaicaway7 at extremely high speeds. The driver had
weaved in and out of lanes which jostled the passengers and
caused them to be thrown about inside the cab so that the
mother had to hold on to her pregnant daughter. Also,
before the trip was over the driver had tailgated another
vehicle for 2 miles. Mrs. Josephs complained that the inci-
dent "was just unbelievable." Mrs. Josephs also stated that
this was the first time the girl had come to the office, it was
extremely important to project a good image and the whole
program was in jeopardy. According to Sher,"Mrs. Josephs
demanded that I take some sort of action."iAlthough Sher
did not then know who was the driver of the cab he testified
that he told Mrs. Josephs that he would fire the driver.'
Sher testified that as he was talking with Mrs. Josephs he
decided to discharge the driver and instructed the
Company's radio dispatcher to call the driver. A short while
later Barrett reported to him. Sher ascertained from Barrett
that he had transported the passengers who had initiated the
says she was driving in front of you and you were tailgating
her and there are three witnesses to prove that you were
driving recklessly and "we just can't tolerate this kind of
driving here anymore."10 Barrett remonstrated, "I've been
here over a year and a half and you haven't had one com-
plaint against me. It seems kind of odd that you want to fire
me for one complaint.... Doesn't my good record mean
anything?" Sher replied, "I don't know anything about it. I
don't want to discuss it any further. Go see your lawyer."
Barrett also testified that in the same conversation Sher
mentioned that Crittenton Hastings House was a large ac-
count.
Sher's version of his conversation with Barrett is not in
any important way substantively different from Barrett's.
According to Sher, in his conversation with Barrett, he ac-
cused Barrett of driving recklessly, he informed Barrett that
he had received a call which described the trip as unbelieva-
ble and said, "We're not 'carrying freight; we're carrying
human beings. How can you possibly drive a vehicle like
this, at that speed, and have a complaint like this?" Sher also
testified that Barrett denied that he drove with excessive
speed or recklessly. Sher, nevertheless, discharged Barrett.
About 2:15 p.m. that afternoon Sher telephoned Virginia
Josephs and informed her that he had discharged the driver
about whom she had complained. Mrs. Josephs testified
that the mother and daughter were with her when she re-
ceived the telephone call from Sher and they were gratified
that something had been done. In that conversation Sher
asked Mrs. Josephs to send him a writing for the Company's
file describing the incident and also made an appointment
to see her the next day. The following day Sher visited Mrs,
Josephs at her place of business and apologized for what
had happened the previous day. As requested by, Sher, Mrs.
Josephs sent, the Company a letter dated October 19,,1973,
with respect to the described incident, which is quoted as
follows:
complaint voiced by Mrs. Josephs . According to Barrett, Dear Mr. Shur [sic]:
Sher, speaking in a large voice, said that "they just called
and the women were literally shaking from the terrible ride
that you gave them." Sher also said there is a woman who
7 Although the Jamaicaway is a well-travelled road, according to Sher, it
"is a paved cow path, twisting and turning."
8
Mrs. Josephs testified that she did not ask the Company to take any
action against the dnver However , she testified that she had registered her
complaint so that the Company would investigate the incident and do what-
ever it thought was appropriate In general, Mrs Josephs ' testimony corrobo-
rates Sher's testimony. Virginia Josephs testified that on the afternoon in
question when the pregnant girl and her mother arrived "they were agitated,
upset, enraged , frightened ." After she heard what had happened she tele-
phoned Sher and complained about the incident. The mother and daughter
were sitting with her while she was speaking with Sher . Mrs. Josephs told Sher
that she was very much concerned about her clients' complaint She informed
Sher that the driver was reckless , almost had an accident with another vehi-
cle, and that the two women were extremely upset and agitated According
to Mrs . Josephs, Sher promised to attend to the matter and that he would
speak with her later . Also, Carol Goodenough, another caseworker for the
Crittenton Hastings House , testified that it was her automobile that cab 254
had been tailgating and that when she arrived at the House she observed that
the two women who had been in the taxicab were "visibly shaken."
9 Contrary to Sher, Mrs. Josephs testified that in her first conversation with
Sher on October 18 the latter did not inform her that he was going to fire
the driver. However, Mrs. Josephs testified that when Sher called back about
an hour later he told her that the driver was fired
I am writing to you on your request as a follow-up to
our telephone conversation of Oct, 18, 1973, and your
visit to this agency on the following day.
On Thursday, Oct. 18 this agency ordered a Boston cab
for a Mrs. Kilson and her daughter Dalia Nash of 733
Morton Street in Mattapan, to bring them to Critten-
ton Hastings House for an initial intake interview with
me. Dalia is seven months pregnant, unmarried and 15
years old. She was visiting us in order to make applica-
tion for participation in our Day Program, a recently
developed project at this agency whose purpose is to
reach out to the often-neglected (by other social service
agencies) population of inner-city pregnant teens. This
project, of which I am coordinator and senior case-
worker, depends on the use of your cabs in order to
bring these young girls into our agency from the ghetto
areas of Boston on a day-to-day basis, as opposed to
a residential program, which in former years has been
10 Upon being asked specifically whether Sher used the words, "your
kind," Barrett testified that Sher said, "We can't tolerate your kind of driving
around here. We don't want your kind around here anymore."
BOSTON CAB CO., INC. 563
Crittenton's primary service.
As you can appreciate, we must constantly attempt to
provide a welcoming and warmly accepting environ-
ment-as well as services such as continuing educa-
tion , prenatal care , counseling and recreation-for
these youngsters . Many of them have never been out-
side of their home communities , and most of them have
never applied for services to a traditionally white, mid-
dle-class agency in a white, middle-class community
such as Brighton . They are initially distrustful, wary,
and not quite ready to believe that we are sincere in our
wish to serve them-with no strings attached . It is for
these reasons that the initial intake visit to our agency
is so vitally important in terms of setting a tone and
atmosphere of warmth and trust.
When Mrs. Kilson and Dalia arrived at our agency for
this interview, the mother 's first comment to me as I
went to greet her at our front door was "If this program
includes my seven month pregnant daughter travelling
back and forth with a cab driver such as the one that
just brought as in, you can forget the whole thing." She
went on to tell me that this driver had been travelling
the whole length of the Jamaica Way at an excessive
rate of speed , came close to smashing into another
driver (who, I later discovered was another agency
worker, by the name of Carol Goodenough , who also
corroborated this story), who he subsequently was tail-
gating as both cars approached our driveway. Mr. Kil-
son told me that she had had to literally hold onto her
daughter at several points during the ride , in order to
prevent her from flying forward into the front of the
vehicle . She was particularly appalled by the fact that
at no point during the ride did the driver apologize for
his outlandish driving. Both Dalia and her mother ar-
rived at our front door shaking with rage and terror.
I .must include in this letter my observation that this
incident is unusual in our many years of dealing with
your company. Our experience for the most part has
been that your drivers are generally courteous , cautious
and especially devoted to helping the girls on our Day
Program to get into Crittenton each day. We have had
numerous drivers tell us that they have actually
knocked on the, doors of girls who do not come out at
the usual pick-up time to encourage them to come to
the house that day. This kind of personal reaching out
has proven especially effective in getting some of our
girls to get themselves mobilized in the morning. I hope
that this letter provides sufficient information for your
records. Thank you for your prompt and cooperative
handling of this matter.
General Counsel contends that the discharge of James
Barrett because of a single customer complaint "was sum-
mary, abrupt, without warning and was unprecedented. The
assigned reason was merely pretextual designed to rid the
Employer of the leading employee Union leader." In at least
one respect Barrett 's discharge was contrary to company
practice . According to Sher, the Company' s normal proce-
dure , after receiving an oral complaint about one of its
drivers, is to request the complainant to submit the com-
plaint in writing and disciplinary action is deferred until a
written complaint is received . The object is to separate
crank calls or other unreliable or unsubstantiative charges
from valid coplaints . Sher testified that after a written com-
plaint about a driver is received the Company does not
always discharge or otherwise discipline the driver . The pol-
icy is to speak to the driver, weigh the gravity of the com-
plaint , and then decide whether to discipline the driver
taking into consideration ameliorating factors such as the
length of service of the driver . Sher also testified that it
previously never had happened that after a driver was dis-
charged the complainant was requested to furnish the com-
plaint in writing as was done in the case of Barrett.
However, Sher explained that "I've never had a complaint
like this before , of this magnitude."
Sher testified that Barrett was an average driver of aver-
age productivity . He had received no prior complaint about
Barrett. However , during the approximately 15 months that
Barrett worked for the Company Barrett was involved in
three automobile accidents while driving company vehicles,
which occurred on September 19 and November 9, 1972,
and June 19, 1973. With respect to the last accident , Barrett
testified that Beryl Barenholtz spoke to him about the mat-
ter, accused him of driving the taxicab too fast , and said he
was going to give some thought to whether Barrett could
continue working for the Company. However, nothing fur-
ther was said to Barrett about the subject and Barrett con-
tinued working for the Company.
Considerable evidence was adduced regarding the termi-
nations of other drivers. The circumstances of the various
cases differ. In general , they tend to support the Company's
thesis that drivers who pass red traffic signals , who drive
excessively fast, or who otherwise handle their vehicles reck-
lessly are vulnerable to discharge . The Company exercises
its disciplinary powers arbitrarily subject only to self-im-
posed constraints and there is no evidence of any estab-
lished practice of giving disciplinary warnings or
conducting comprehensive investigations of complaints
against drivers.
Whenever, as in this case, an individual who is known by
his employer to be a leader in a moon campaign is peremp-
torily discharged there is generated a suspicion that the
action was taken to impede the progress of the employees'
organizational efforts or to punish the individual whom the
Company may deem responsible therefor . However, union
activities do not insulate an employee from normal plant
discipline . Section 8(a)(3) leaves "unscathed a wide range of
employer actions taken to serve legitimate business interests
in some significant fashion, even though the act committed
may tend to discourage union membership . . . . Such a
construction of § 8(a)(3) is essential if due protection is to
be accorded the employer 's right to manage his enterprise."
American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311
(1965). Thus, it has been observed that "an employer's gen-
eral hostility to unions , without more, does not supply an
unlawful motive as to a specific discharge .."" To prove that
" Fort Smith Broadcasting Company v. N.L.R.B, 341 F 2d 874, 878 (C.A.
8, 1965)
564 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
Respondent discriminatorily discharged Barrett , General
Counsel must establish by direct or circumstantial evidence
that the Company because of hostility towards the organiza-
tion of its employees or for other reasons was predisposed
to discriminate against union supporters and knew, which
it did in this case, that Barrett was engaged in such activities.
Only after proof of such discriminatory purpose has been
offered does Respondent's asserted reason for discharging
Barrett weigh upon the balance that points to whether the
evidence as a whole preponderates on the side of legality or
illegality. In this case there is no evidence of union animus
which would support a finding of discriminatory motiva-
tion 12 Furthermore, Respondent's asserted reason for dis-
charging Barrett is not implausible. Although Barrett had
been employed by the Company for a year and a half before
his discharge and had a satisfactory record, in a business
where employee turnover is high, Sher's peremptory deci-
sion to discharge Barrett on the basis of a single complaint
is not unbelievable when consideration is given to the vehe-
mence of the complaint and that it originated from a profes-
sional institution and good customer of the Company. I find
that General Counsel has not proved that Barrett was dis-
charged because of his union activities or for other unlawful
reason. 13
B. Additional Issues
The complaint alleges that Norman Pinto threatened an
employee that the Company would engage in reprisals
against its employees if the Union's organizational effort
should be successful. Respondent contends that Pinto dur-
ing the times material was not a supervisor or agent and
therefore it bears no responsibility for any remarks or con-
duct on the part of Pinto.
Pinto works during the late evening and early morning
hours. Normally no company official is then on the prem-
ises. Apart from drivers who come and go, during those
hours there are on the premises, in addition to Pinto, a
mechanic and a radio dispatcher. According to Sher, Pinto
is a "garage man" and operates out of the dispatcher's office
on the lower level of the Company's garage. Sher further
testified that Pinto has no authority to hire or to discharge
any employee nor does he have any authority to make rec-
ommendations in these respects, he has no authority to
recommend any employee for a wage increase, he has no
authority to grant time off to any employee, and he has no
authority or power to affect the tenure of employment of
any employee in any way. Also, according to Sher, Pinto has
no authority whatsoever over any employee. Further, Pinto
does not enjoy various benefits which the Company pro-
vides for its supervisory personnel, which include health
insurance, life insurance, and the privilege of obtaining gas-
oline from the Company for their personal vehicles and
12 See Shelby Liquors and Athens Distributing Company, a Division of Shelby
Liquors, 208 NLRB 859 (1974), Continental Can Company, Inc, 148 NLRB
640, 641 (1964)
13 In his brief General Counsel presents an elaborately constructed argu-
ment in support of his position However , the argument . although well writ-
ten, depends upon more inferences being made than the evidence will Justify
insurance provided by the Company for their personal vehi-
cles. Pinto's duties, as described by Sher, involve parking
cabs in the Company's garage, checking the oil levels in
vehicles, pumping gasoline, giving out waybills and eading
meters. The last two items require explanation. efore a
driver may take a taxicab from the Company's g, rage he is
required to have a waybill. During the day the waybills are
distributed by the dispatcher and, during the hours when
the regular dispatcher, George Pilla, is not on duty Pinto
gives out the waybills. As described by Sher this is a minis-
terial function. The Company maintains a board which lists
the taxicabs and alongside each taxicab number are the
names of the drivers to whom the cab is assigned. It is
Pinto's function merely to deliver the waybills to the as-
signed drivers. If during the night a driver returns because
his cab is defective and if the mechanic on duty ascertains
that the vehicle cannot be repaired quickly the mechanic
will advise Pinto to assign another taxicab to the driver.
Pinto then will give the driver an available cab so that the
driver will be able to complete his shift.14 Pinto also reads
the meters of cabs that are returned while he is on duty. This
is a step which is required to be taken before the driver
deposits his receipts.
General Counsel's principal witness in support of his con-
tention that Pinto is a supervisor was Gordon E. Furbush.
From April 1973 until he was discharged in October of the
same year, Furbush was employed by the Company as the
radio taxi dispatcher at night. He worked generally the same
hours as Pinto but his office was located elsewhere in the
Company's premises. Furbush testified that Pinto's duties
involved the following- giving out cabs to drivers, handling
lost and found articles, and acting as a relay for personal
calls to drivers. According to Furbush, Pinto was always in
the office downstairs to cover the telephone. Also, when
cabdrivers returned at night Pinto received their waybills,
read the figures off the meters, and gave them a bag in which
to deposit their receipts. Furbush testified, "I never knew
[Pinto] parking any cars or checking any oil or anything like
this." According to Furbush's further testimony, Pinto was
a salaried employee, and if Pinto did not give a cab to a
dnver during the night there was no one else present to
whom the driver could appeal. In refusing a cab to a driver,
according to Furbush, Pinto never explained his reasons,
"He'd just say, 'We don't have enough,' or `We don't have
this,' or `I can't give it to you. It's too late.' Or something
like that." Finally, Furbush testified that drivers report to
Pinto if they will be absent from a scheduled night shift, and
14 General Counsel's witness Gordon E Furbush generally corroborated
Sher's testimony regarding Pinto's function in reassigning taxicabs to drivers
who had breakdowns during the night According to Furbush, when the
mechanic was unable to fix a disabled vehicle the mechanic would say, "'Go
downstairs and tell Norman [Pinto] that the cab is inoperable for the eve-
ning' And I'd go down and tell him And if he had something available he'd
give it to me If all the cabs were out on road, he had no choice of giving
me another cab and he'd say, 'Wait until somebody comes in' But
usually he'll say, 'Why don't you just forget about it and go home and try
again tomorrow?' " The testimony of Stephen James Crabtree is not inconsis-
tent Crabtree testified that approximately 14 months ago he had the unfortu-
nate experience of having two vehicle breakdowns in the same evening After
the second breakdown when he went to the garage for a third cab Pinto
suggested that he should go home However, Crabtree remonstrated that the
breakdowns were not his fault and "was able to convince [Pinto] that [he]
should be allowed to take another cab out of the garage"
BOSTON CAB CO., INC. 565
when he (Furbush) was working at night if he had any
question he would ask Pinto for advice because Pinto had
been working for the Company longer than he and there
was no one else to answer the question.
Contrary to General Counsel, I find that such authority
as Pinto exercises is of a routine nature not requiring inde-
pendent judgment and that General Counsel has failed to
prove that Pinto is a supervisor within the meaning of Sec-
tion 2(11) of the Act. As there is no other basis in the record
for finding that Pinto was an agent of the Respondent I shall
dismiss the allegation of the complaint relating to him.15
Following the close of the hearing General Counsel
moved to amend paragraph 7 of the complaint "to add the
name of Jack Barenholtz and his position as management
official." Respondent'does not oppose the motion but con-
tends that Jack Barenholtz, during the times material to this
case, was not a management official and was not an agent
of the Respondent or a supervisor of the Company within
the meaning of Section 2(11) of the Act. General Counsel's
motion is granted. At the hearing the parties stipulated that
Jack Barenholtz, who is 70 years old, is the father of Beryl
and Leslie Barenholtz and the grandfather of Daryl Baren-
holtz. Jack Barenholtz formerly owned McCann Taxi Com-
pany, which is the predecessor of the Company that bought
Boston Cab Company. Jack Barenholtz has been retired for
the past 2 or 3 years. He holds no office with the Company,
no ownership interest in the Company, and no debt interest
in the Company. He is a widower and spends time in a small
office where he plays cards with friends and where at other
times he chats with drivers. The only significant evidence
involving Jack Barenholtz arises from the testimony of Jo-
seph W. Davis. According to Davis, in October 1973 when
15 Contrary to General Counsel, the evidence does not establish that "the
Employer had held out Pinto in a position of apparent authority" so that
responsibility for Pinto's alleged coercive statement should be attributed to
the Company.
he reported to work the dispatcher, George Pilla, informed
him that Jack Barenholtz wished to speak to him. Jack
Barenholtz came down and told Davis that two nights earli-
er Davis had been observed driving too fast in downtown
Boston and someone from the Hackney Bureau had called
about the matter. Barenholtz also said that he personally
had observed Davis driving too fast. Barenholtz spoke to
Davis for about 20 minutes as to why Davis should not drive
fast and why it was dangerous to drive fast. No discipline
was imposed upon Davis as a result of this incident.
I find, in agreement with Respondent, that Jack Baren-
holtz during the times material herein, was not a supervisor
or agent of the Company. However, I have given consider-
ation to Davis' testimony. If Jack Barenholtz was aware of
a complaint received from the Hackney Bureau it is likely,
and I infer, that the report had been received by an active
management official.
Upon the basis of the above findings of fact, and the
entire record in the case, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
Upon the basis of the foregoing findings of fact , conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERI6
The complaint is dismissed in its entirety.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all.objectiions thereto shall be deemed
waived for all purposes.