Checker Cab

National Labor Relations Board - Board Decisions

Jan 15, 1970

180 N.L.R.B. 737 (N.L.R.B. 1970)

CHECKER CAB COMPANY
Checker Cab Company , Inc., d /b/a Checker Cab
and Buckhead Cab; Metropolitan Cab Company,
Inc., d /b/a Metro Cab; R .F. Hewatt , Sr. and R.F.
Hewatt , Jr., a partnership , d/b/a Emory Cab
Company and Taxi Drivers Union, Allied Service
Division , Brotherhood of Railway , Airline and
Steamship Clerks, Freight Handlers , Express and
Station Employees , AFL-CIO, Petitioner.' Case
10-RC-7837
January 15, 1970
DECISION ON REVIEW AND
DIRECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 15, 1969, the Regional Director for
Region 10 issued a Decision and Direction of
Election in the above-entitled proceeding, in which
he found appropriate a unit of all full-time and
regular part- time taxicab drivers (commission
drivers, lease drivers, and sub-drivers for co-op
operators ), gasoline pump operators , mechanics, and
mechanic helpers of Checker Cab and Buckhead
Cab, Metro Cab, and Emory Cab Company, but
excluding , inter alia , all co-op drivers and all other
supervisors as defined in the Act. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, as
amended, the Employer and the Petitioner filed
timely requests for review of the Regional Director's
Decision, contending that the Regional Director
made erroneous factual findings and departed from
officially reported Board precedent in making his
unit determination. Thereafter the Regional
Director , treating the Petitioner ' s request for review
as a motion for reconsideration ,' issued his order
denying motion for reconsideration and
supplemental decision . Thereafter, the Employer
requested permission to withdraw its request for
review. On October 9, 1969, the National Labor
Relations Board by telegraphic Order granted the
Petitioner's request for review and granted the
Employer's request to withdraw its request for
review. Thereafter, the Employer requested that its
request to withdraw its request for review be
rescinded. On October 13, 1969, the Board by
telegraphic Order denied the Employer's request to
rescind its withdrawal of its request for review.' On
October 16, 1969, the Employer filed a response to
the granting of Petitioner ' s request for review.
'The names of the Employer and the Petitioner appear as amended at
the hearing.
'However , the Petitioner' s Request for Review , filed with the Board was
not withdrawn.
'Thereafter , on November 10, 1969, the Employer filed a motion to
dismiss for lack of jurisdiction which attempts to raise the same issues
raised by the Employer in its withdrawn request for review . Although we
consider this motion to be an untimely request for review and accordingly
dismiss it , we take this opportunity to approve specifically the Regional
Director ' s findings and conclusions with respect to jurisdiction.
737
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the entire record in this
case with respect to the issues under review and
makes the following findings:
The Petitioner agrees with the Regional Director
that all company drivers, lease drivers and substitute
drivers of the Employer are properly included in the
unit, requesting review only of the Regional
Director's finding that those co-op drivers who own
only one cab and do not hire sub-drivers must be
excluded as supervisors.
The Employer engages each of its taxicab drivers
under one of three arrangements : commission , lease,
or co-op. Commission drivers drive vehicles
belonging to the Employer and retain 50 percent of
their fare receipts as compensation; lease drivers,
lease cab and meter from the Employer, pay all of
their own gas, and retain all fare receipts; co-op
drivers furnish their own vehicles, pay all of their
operating expenses, and retain all fares received.
There are some 43 commission drivers, 8 lease
drivers, and 54 co-op drivers. Four of the co-op
drivers own more then one taxicab and each of the
four hires one or more subdrivers to operate these
taxicabs. Further, three of the co-op drivers who
own only one taxicab also hire subdrivers.
The Regional Director found that the relationship
between the Employer and the commission drivers,
lease drivers and co-op drivers is one of
employment, and that the subdrivers hired by the
co-op drivers are also employees of the Employer.
The Regional Director included the commission
drivers, lease drivers, and subdrivers in the unit
which he found to be appropriate but found all of
the co-op drivers to be supervisors and excluded
them from the unit.
The Petitioner, in its request for review, agrees
with the Regional Director that those co-op drivers
who hire subdrivers to operate their taxicabs are
supervisors and were properly excluded from the
unit, but contends that those co-op drivers who own
only one taxicab and do not hire subdrivers are not
supervisors and should therefore be included in the
unit. We find merit in the Petitioner's contention.
The Regional Director found that all co-op
drivers possess authority to hire other drivers and
that it is the possession of such authority, rather
than whether such authority is exercised, which is
controlling. The cases relied on by the Regional
Director do not impel us to the same conclusion
which he reached.4 In each of these cases each
'Capital Transit Company. 114 NLRB 617, 619; Gem City
Manufacturing Co, 136 NLRB 1317, 1323, Mississippi Valley Barge Co..
151 NLRB 676, 678; Ohio Power Company v N L R B. 176 F.2d 385,
cert. denied 338 U.S. 899.
180 NLRB No. 116
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee whose supervisory status was in question
did, in fact, exercise the authority conferred upon
him by his employer. Moreover, in the Capital
Transit case upon which the Regional Director
relied the Board stated "But where the issue is the
actual existence of a supervisory power, the absence
of any exercise of authority may negate its
existence."'
The unit placement of taxicab owner-drivers does
not present a novel issue to the Board . In a recent
case involving a Florida taxicab company' the
contention was made that owner-drivers and
lease-drivers ( i.e. drivers operating a taxicab under a
leased permit) were supervisors and should be
excluded. The Board there found that any
lease-driver could hire another driver to operate his
taxicab. The Board then found, that the appropriate
unit included "owner-drivers who do not hire others,
and lease drivers ...."'
Inasmuch as only seven of the 54 co-op drivers
hire other drivers, and there is no showing in the
record that any of the remaining co-op drivers, all
of whom own only one taxicab, have done so, we
find that the latter are not supervisors and we shall
accordingly include them in the unit found
appropriate herein. We shall exclude only those
co-op drivers who hire other drivers.
Accordingly, we find that the following employees
of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time taxicab drivers
(commission drivers, lease drivers, co-op drivers who
own only one taxicab and do not hire other drivers,
and subdrivers for co-op operators ), gasoline pump
operators, mechanics, and mechanic helpers of
Checker Cab Company, Inc., d/b/a Checker Cab
and Buckhead Cab, Metropolitan Cab Company,
Inc., d/b/a Metro Cab, and R.F. Hewatt, Sr., and
R.F. Hewatt, Jr., d/b/a Emory Cab Company, but
excluding dispatchers, checkers, telephone operators
and all other office clerical employees, co-op drivers
who hire subdrivers and all other supervisors as
defined in the Act.
We shall therefore remand the case to the
Regional Director for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, with the exception that
the eligibility date shall be that immediately
preceding the date below.'
'Supra, at 619.
'Miami Beach Yellow Cab, et al., 173 NLRB No. 116
'See Association of Independent Taxicab Operators , Inc.. T/A Diamond
Cab, and Its Members , 164 NLRB 859, 861, fn 10; Transportation
Promotions , Inc., et al., 173 NLRB No. 114; Central Taxi Service, et al,
173 NLRB No. 115; in which cases the Board included owner-drivers who
do not hire other drivers and lease drivers who do not hire other drivers.
See also, Deaton Truck Lines , Inc., 143 NLRB 1372, 1378, and Supreme,
Victory and Deluxe Cab Companies . 160 NLRB 140, 147, in which cases
the Board excluded from the unit found appropriate , as supervisors, only
those owner-drivers who owned more than one vehicle.
'in order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236; N.L R.B. v . Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is hereby directed that a corrected election
eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 10
within 7 days of the date of this Decision on Review and Direction. The
Regional Director shall make the list available to all parties to the
election No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.