Cab Operating Corp., et al.

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 878 (N.L.R.B. 1965)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cab Operating Corp ., et al., etc.,' Petitioners, and Taxi Drivers,
Organizing Committee , AFL-CIO and Taxi Drivers and Bus
Drivers Local Union 826, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Cases Nos. 29-ISM-10-16, 29-RM-18, 29-RM-92-24, and 29-RM-
26-50.2 June 29,1965
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the National
Labor Relations Act, as amended, a consolidated hearing was held
before Hearing Officer Irwin N. Alberts in the above cases. The Hear-
ing Officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in these cases, the National Labor Relations
Board funds :
1. The Employer-Petitioners are engaged in commerce within the
meaning of the Act and it will effectuate the purposes of the Act to
assert jurisdiction herein.
2. The labor organizations involved, Taxi Drivers Organizing Com-
mittee, AFL-CIO, herein called TDOC, and Taxi Drivers and Bus
Drivers Local Union 826, International Brotherhood of Teamsters,,
Chauffeurs, Warehousemen and Helpers of America, herein called
Local 826, claim to represent certain employees of the Employer-
Petitioners.
3. Questions affecting commerce exist concerning the representa-
tion of certain employees of the Employer-Petitioners within the
meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer-Petitioners, all engaged in the taxicab business in
the city of New York, seek elections in single-employer units of taxi-
cab drivers .3 TDOC contends that only a multiemployer unit of driv-
ers and maintenance personnel of all 36 Employer-Petitioners is appro-
priate. Local 826 perfers single-employer units of drivers, but would
also participate in an election in a multiemployer unit of drivers.
1 Thirty-six Employers filed separate petitions with the Board . In view of the common
issues presented , they were consolidated for hearing and decision. The 36 Employer-
Petitioners , who are listed in Appendix A, include affiliated corporations operating taxicabs
from the Employer -Petitioners' garages.
2 Cases Nos. 29-RM-26 through 38 were formerly Cases No . 2-RM-1379 through
91 ; Case No . 29-RM-39 was formerly Case No 2-RM-1394; and Cases Nos. 29-RM-
40 through 50 were formerly Cases Nos . 2-RM-1396 through 1407
;Testimony was taken from representatives of 10 of the Employer -Petitioners and from
5 dispatchers as to various aspects of the operations of the Employer-Petitioners. Local
826 and the Employer -Petitioners agreed that this testimony was representative of the
operations of all 36 Employer -Petitioners . TDOC contended that testimony should have
been taken concerning the operations of each of the 36 Employer -Petitioners . The Hear-
ing Officer found , and we agree , that the testimony taken furnished an adequate and repre-
sentative picture of the activities of the 36 Employer -Petitioners.
153 NLRB No. 100.
CAB OPERATING CORP., ET AL., ETC. 879
Each of the Employer-Petitioners operates from 40 to 300 taxicabs
and employs from 150 to 1,100 drivers at any one time. Together they
own approximately 3,248 cabs and employ about 11,000 drivers. Exclu-
sive of driver-owned cabs, there are approximately 7,000 cabs owned
by more than 90 taxicab companies in New York City. Approximately
38,000 individuals, excluding those who operate driver-owned cabs,
are licensed to drive taxicabs.
The taxicab industry in the city of New York has been, and is now,
largely unorganized. In the past, none of the Employer-Petitioners
had ever been part of an employer association authorized to engage in
collective bargaining on behalf of its members. The Board's records
show that in a few instances a union has been certified as the represen-
tative of single-employer units of drivers at certain New York City
taxicab companies .4
Most of the Employer-Petitioners currently belong to the Metro-
politan Taxicab Board of Trade, Inc., a trade association dealing with
issues affecting the taxicab industry, such as fare increases and the
change to small taxicabs. These issues are discussed among the mem-
bers of the board of trade, and a single position on a particular issue
is decided upon. The board of trade then presents this position to the
public official or body concerned. At no time, however, have the
Employer-Petitioners authorized the board of trade to represent them
for collective-bargaining purposes. Terminal System, Inc., the largest
of the Employer-Petitioners, is not a member of the board of trade.
In asserting that a multiemployer unit is appropriate, the TDOC
relies on the uniform regulation of the taxicab industry through the
New York City Hack Bureau, the appearance of one attorney on behalf
of a number of the Employer-Petitioners in the present Board proceed-
ing, the uniformity of position taken by all the Employer-Petitioners
on the legal aspects of the instant cases, the identical literature concern-
ing union organization distributed by some of the Employer-Petition-
ers, and the fact that some drivers may work for more than one
Employer-Petitioner during the course of a year. The TDOC also
contends that evidence it offered concerning alleged harassment,
threats, and coercion by the Employer-Petitioners, but which was
refused admission by the Hearing Officer, would show that the
Employer-Petitioners were pursuing a common labor relations policy.
It is well settled that a single-employer unit is presumptively appro-
priate, and that to establish a claim for a broader unit a controlling
history of collective bargaining on a broader basis or agreement of the
4 For instance , on April 18, 1961 , Local 826 was certified as bargaining representative
for drivers in Clinton Tami Corp ., Case No. 2-RC-9956, and Metropolitan Taxi Workers
Union, Independent , was certified for a similar unit in West Fifty-Seventh Street Garage
Management, Case No. 2-RC-10290.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties is necessary.5 Neither of these is present here s Indeed, it is
clear that none of the Employers here has delegated authority to the
board of trade to act as its agent for bargaining purposes. Under these
circumstances, we are not persuaded that any reason exists for the
Board to depart from its established policies in regard to such units.?
The parties are in dispute as to the inclusion in the driver units of
employees servicing and maintaining the taxicabs. The Employer-
Petitioners and Local 826 would restrict the units to drivers. TDOC
would also include mechanics, bodymen, greasers, gasboys, carwashers,
and any other employees involved in the maintenance of the taxicabs.
The record shows that the Employer-Petitioners operate 24 hours
a day, 7 days a week. Drivers generally work on either a.m. shift,
beginning in the early morning and lasting into the afternoon, or a p.m.
shift beginning in the late afternoon and lasting until the late evening
or early morning hours. Thus, a driver ordinarily works from 8 to
12 hours a day. The length of time he works on a particular day
appears to depend largely upon his own needs and desires, as does the
amount of time he takes for lunch or dinner. He is away from the ga-
rage almost the whole of his shift and has contact with garage em-
ployees only when lie picks up his taxicab at the beginning of his shift,
returns it at the end of a shift, or has a mechanical failure on the road
which requires the attention of the garage mechanics.
The service and maintenance employees, who comprise less than 10
percent of the entire employee complement of each Employer-Peti-
tioner, generally work on staggered 8-hour shifts day and night, with
a scheduled lunch hour. Most of the mechanics and a large number of
other service employees work in the daylight hours. The Employer-
Petitioners maintain a reduced maintenance force at night, although
some Employer-Petitioners have their taxicabs washed by two or three
carwashers at night.
5 Chicago Metropolitan Home Builders Association, 119 NLRB 1184.
9 Houston Automobile Dealers Association, 132 NLRB 947. However, where there is
common control of separate companies so that they constitute a single employer within
the meaning of the Act, a multicompany unit may be found appropriate without the above
criteria . For example , in Checker Cab Company, 141 NLRB 583, the Board found that
drivers of all members of the Checker Cab Company constituted a single appropriate unit
on the basis that the Checker Company and its members were joint employers in a com-
mon enterprise inasmuch as the Checker Company exercised a substantial degree of con-
trol over the drivers of each of its members and the operation of the Checker Cab was
represented to the public as a single integrated enterprise . There is no contention in the
present case that there is common control of the operations of the Employer -Petitioners
or that the companies operate as an integrated enterprise.
7 A panel of Herman E. Cooper , Thomas J. Miley , and Theodore W. Kheel was appointed
by Mayor Robert F. Wagner on March 26, 1965 , " to inquire into the question of repre-
sentation that had arisen in the taxicab industry of New York City." On April 30, 1965,
a majority of the panel submitted a report recommending that an election be held in a
citywide unit of drivers . The panel majority relied , however, on such factors as the
presence of associationwide bargaining in other industries in New York and the unstabiliz-
ing effect bargaining on a single -employer basis might have on the taxicab industry.
These factors alone, in our view, are insufficient to support a finding of a multi-
employer unit.
CAB OPERATING CORP., ET AL., ETC. 881
The drivers earn a 44-percent commission on all fares, computed on
a daily basis, in addition to gratuities. The service and maintenance
employees are paid a fixed weekly salary. Although both drivers and
service personnel usually receive certain benefits such as vacation pay,
Christmas bonus, and life insurance, the eligibility for these benefits
differs as between the two groups, as does the amount of the benefits.
At some cab companies, drivers alone are eligible for certain benefits
and programs, such as attendance bonuses and safety contests, whereas
only service and maintenance employees receive other benefits such as
sick pay, and turkeys and liquor at Thanksgiving and Christmas.
The service and maintenance personnel generally work in a part of
the garage separate from the areas where drivers are dispatched and
where drivers turn in their receipts at the end of the day. A foreman
supervises the maintenance personnel; a dispatcher supervises the
drivers. Unlike drivers, all maintenance personnel wear uniforms,
usually supplied by the Employer-Petitioners. No interchange occurs
between drivers and maintenance personnel.
The TDOC has requested what may be viewed as an optimum unit
of both drivers and maintenance personnel, the equivalent of an operat-
ing and maintenance unit in the bus transportation industry.8 As
such, this unit is presumptively appropriate. In view of the above-
related facts, however, we believe that a separate unit of drivers,
requested by Local 826 and the Employer-Petitioners,9 and a separate
unit of maintenance personnel, may also be appropriate.10 Under
these circumstances we shall make no final unit determination at this
time, but shall be guided in part by the desires of the employees as
expressed in the elections hereinafter directed. Accordingly, we shall
direct that separate elections be held among the following voting
groups of each Employer-Petitioner's employees, excluding from each
group office clerical employees, guards, and supervisors as defined in
the Act.
Group 1. All regular full-time and regular part-time taxicab drivers.
Group 2. All full-time and regular part-time employees engaged
in the maintenance and service of the taxicabs."
If a majority of the employees in each voting group select the same
labor organization, they will be deemed to have indicated their desire
to constitute a single unit, and the Regional Director conducting the
elections is instructed to issue a certification of representative to the
labor organization selected by the employees in the two groups, which
8 See Tennessee Coach Company, 88 NLRB 253
8 See Checker Cab Company, 141 NLRB 583; Jat Transportation Corp., et at., 128 NLRB
780; Terminal System, Inc., at at., 127 NLRB 979.
10 Tennessee Coach Company, supra.
"As TDOC has expressed a desire to represent service and maintenance personnel, its
name will appear on the ballot for voting group 2. Local 826 may also appear on the
ballot, if it indicates its interest in representing these employees.
7 9 6-02 7-0 6-v o f 15 3-5 7
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board in that event finds to be a single unit appropriate for the
purposes of collective bargaining. If the same labor organization is
not selected by both groups, the Regional Director conducting the elec-
tions is instructed to issue the appropriate certificate depending on the
outcome of the elections in each of the voting groups which the Board
in such circumstances finds to be separate appropriate units.
5. The parties are in disagreement as to the eligibility of some of
the part-time drivers to vote in the elections. (There is no dispute as
to eligibility in the voting group of maintenance employees.) The
Employer-Petitioners contend that all full-time and regular part-time
drivers, excluding casual drivers, should be eligible to vote. Local
826 argues that only drivers who work at least 4 days a week should
be permitted to vote. TDOC would limit eligibility to drivers work-
ing 3 or more days a week.
The Employer-Petitioners generally classify drivers working 4 or
more days a week as full-time drivers, and others as part-time drivers.
Working conditions and benefits for these two groups are in some
respects alike, and in others different. Thus, many full-time drivers
drive the same cab day after day; part-time drivers do not. Most of
the Employer-Petitioners offer an attendance bonus of 1 percent of
gross bookings to full-time, but not to part-time, drivers. Vacation
pay and Christmas bonuses are generally given on the same basis as
the attendance bonuses, although some Employer-Petitioners do make
such benefits available to part-time drivers on a reduced basis. In
December 1964 the Employer-Petitioners adopted a medical insur-
ance plan which pays hospitalization and medical expenses to those
of the drivers working at least 52 days in a quarter, which works out
to an average of 4 days a week. The Employer-Petitioners generally
offer paid-up $1,000 life insurance policies to full-time drivers, and
to some of the part-time drivers; 1-day-a week drivers are, however,
uniformly denied this benefit.
On the other hand, many working conditions are the same for the
two classes of drivers. The New York City rules and regulations for
taxicab drivers are applied on the same basis to full-time and to part-
time drivers. All drivers are paid the same commission and have
deductions made from their earnings for taxes and social security.
Full-time and part-time drivers work the same shifts, use the same
cabs, share the same locker facilities in the garages, and are under the
same supervision.
There is some difference in the employment backgrounds of the full-
time and part-time drivers. The former usually derive their entire
income from their employment as taxi drivers. Most of the part-time
drivers have other jobs and supplement their income from these jobs
by driving taxicabs. Some are social security annuitants or students,
who have no other jobs. The lines between the two groups are not
CAB OPERATING CORP., ET AL., ETC. 883
necessarily inflexible. Sometimes full-time drivers become part-time
while they try other employment, and then return to full-time status
when they become dissatisfied with their new employment. Other
drivers may start as part-time drivers and then become full-time
drivers.
Part-time drivers appear to be an essential part of the driver work
force, particularly on weekends, when full-time drivers have their days
off. Because of a shortage of taxicab drivers, the city of New York
at present places no restriction on granting driver licenses to part-time
drivers, although under the New York City code, the head of the hack
bureau is empowered to deny licenses to applicants for drivers' licenses
who derive the major part of their income from sources outside the
taxi industry.
In order to determine the stability of employment of the different
classes of drivers, the 1964 employment records of 9 of the 36 Employ-
er-Petitioners were introduced into evidence. From such data, we have
ascertained that of the total number of full and part-time drivers, 42
percent worked an average of 5 days or more a week, 9 percent worked
4 days, 5 percent worked 3 days, 14 percent worked 2 days, and 30 per-
cent worked 1 day or less. Of the 5-day-or-more-a-week drivers, 77
percent were still employed at the end of 1964; of the 4-day-a-week
drivers, 55 percent were still so employed; of the 3-day-a-week drivers,
44 percent were still working for their companies; of the 2-day-a-week
drivers, 49 percent were still employed; but of the 1-day-or-less driv-
ers, only 23 percent were still employed at the end of 1964.12 The fig-
ures thus show that while the turnover among drivers working on the
average 1 day or less per week is very high, that among drivers work-
ing 2, 3, and 4 days is considerably less so and falls within a narrow
range among these three groups. In fact, turnover among drivers
averaging 2 days a week appears to be less than that for drivers work-
ing 3 days a week, and is only 6 percent more than that for drivers
working 4 days a week.
As the evidence indicates, employment conditions for part-time
drivers are in some respects like, and in others unlike, those for full-
time drivers. The differences appear to relate principally to fringe
benefits, and not to the basic working conditions, such as commissions,
etc. Moreover, part-time drivers are part of the regular work forces
of the taxicab companies, and the stability of employment among those
of them who work 2 or more days a week is considerable. We con-
clude, upon the basis of the foregoing, that part-time drivers who work
at least 2 days a week have sufficiently substantial interests in general
working conditions of all drivers to justify permitting them to vote in
the election. However, because of high turnover among them, part-
nOf the 77 percent of the 1-day-or-less drivers not on the payroll at the end of 1964,
02 percent worked less than one quarter.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time drivers working 1 day a week or less appear to be essentially
casual employees. In accordance with our practice, we find them
ineligible to vote.13
In order to translate the above formula for determining eligibility
into practicable form, we shall direct that all drivers working at least
26 days during the quarter immediately preceding the issuance of this
Decision and Direction of Elections, that is, March, April, and May,
1965, shall be eligible to vote.
[Text of Direction of Elections omitted from publication.]
I5 Although in Jat Transportation Corp., 128 NLRB 780, the Board found 1 - day-a-week
drivers were eligible to vote in a unit of taxi drivers, the evidence in that case did not
show as clearly as in this the high turnover among 1-day-a -week drivers . Accordingly,
we reject the Employer-Petitioners ' contention that the Jat formula should be used in
determining eligibility.
APPENDIX A
Case No.
'Cab Operating Corp., et al---------------------------- 29-RM-10
Jackson Maintenance Corp. , et al---------------------- 29-RM-11
Zone Operating Corp., et al--------------------------- 29-RM-12
Metro Systems Corp., et al---------------------------- 29-RM-13
Cab Management Corp., et al-------------------------- 29-RAI-14
Circle Maintenance Corp., et al------------------------ 29-RM-15
Fare Operating Corp., et al------- -------------------- 29-RM-16
Butler Maintenance Corp., et al----------------------- 29-RM-18
Marby Operating Corp., et al----------------------- --- 29-RM-22
Forest Maintenance Corp., et al------------------------ 29-RM-23
Ike Service , Inc., et al-------------------------------- 29-RM-24
Hobart Maintenance Corp., et al----------------------- 29-RM-26
(Formerly 2-R M-1379 )
Cornell Maintenance Corp., et al---------- ------------ 29-RM-27
(Formerly 2-RM-1380)
Super Operating Corp., et al-------------------------- 29-RM-28
(Formerly 2-RM-1381)
Ann Service Corp., et al------------------------------ 29-RM-29
(Formerly 2-RM-1382)
Andrea Service Corp., et al---------------------------- 29-RM-30
(Formerly 2-RM-1383)
Columbia Operating Co., Inc., et al-------------------- 29-RM-31
(Formerly 2-RM-1384)
En Operating Corp., et al----------------------------- 29-RAT-32
(Formerly 2-RM-1385)
Lenox Maintenance Corp., et al------------------------ 29-RM-33
(Formerly 2-RM-1386)
`Transportation Maintenance , Inc., et al--- -------------- 29-RM-34
(Formerly 2-RM-1387)
TRANSWAY, INC.
APPENDIX A-Continued
885
Case No.
Rego Maintenance Corp., et al_________________________ 29-RM-35
(Formerly 2-RM-1388)
Star Maintenance Corp., et al_________________________ 29-RM-36
(Formerly 2-RM-1389)
Cross Country Taxi Service, Inc., et al__________________ 29-RM-37
(Formerly 2-RM-1390)
Essex Maintenance Corp., et al________________________ 29-RM-39
(Formerly 2-RM-1391)
Eden Maintenance Corp., et al________________________ 29-RM-39
(Formerly 2-RM-1394)
Rodney Maintenance Corp., et al______________________ 29-RM-40
(Formerly 2-RM-1396)
Dynamic Operating Corp., et al_______________________ 29-RM-41
(Formerly 2-RM-1397)
Level Maintenance Corp., et al________________________ 29-RM-42
(Formerly 2-RM-1398)
Willow Maintenance Corp., et al______________________ 29-RM-43
(Formerly 2-RM-1399)
Terminal System, Inc., et al___________________________ 29-RM-44
(Formerly 2-RM-1400)
Haso Maintenance Corp., et al_________________________ 29-RM-45
(Formerly 2-RM-1401)
Ilex Operating Corp., et al____________________________ 29-RM-46
(Formerly 2-RM-1402)
Helen Maintenance Corp., et al________________________ 29-RM-47
(Formerly 2-RM-1403)
Margol Operating Corp., et al_________________________ 29-RM-48
(Formerly 2-RM-1404)
Checker Garage Service Corp., et al____________________ 29-RM-49
(Formerly 2-RM-1406)
Tedmar Service Corp., et al___________________________ 29-RM-50
(Formerly 2-RM-1407)
Transway, Inc. and General Truck Drivers, Chauffeurs, Ware-
housemen and Helpers , Local 270, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Ind., Petitioner. Case No. 15-RC-3024.
June 29,1965
DECISION ON REVIEW
On February 25, 1965, the Regional Director for Region 15 issued a
Decision and Direction of Election in the above-entitled proceeding,
153 NLRB No. 79.