City Yellow Cab Co.

National Labor Relations Board - Board Decisions

Oct 9, 1963

144 N.L.R.B. 994 (N.L.R.B. 1963)

994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Yellow Cab Company and G.I. Cab Company and Edward
L. Kobb. Case No. 8-CA-3007. October 9, 1963
DECISION AND ORDER
On June 20, 1963, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they 'cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. Thereafter, the Respondents filed exceptions to the
Intermediate Report and a supporting brief. The General Counsel
and the Charging Party filed no exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in the case including the Intermediate Report, the exceptions,
and brief and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the modification noted
below.2
ORDER
The Board adopts as modified the Recommended Order of the Trial
Examiner.
In accord with the Trial Examiner's finding that City Yellow Cab Company and
G I Cab Company constitute a single Employer, we also find that such single Employer
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act
In addition to the reasons cited by the Trial Examiner in support of his finding that
switchboard operators-dispatchers were not supervisors within the meaning of the Act,
see Eastern Greyhound Lines, 138 NLRB 8.
2 The Trial Examiner ordered backpay for all the discriminatees from the date of the
discrimination we note, however, that Justice and Kobb were discharged on October 28,
the day they struck and began picketing the Respondents As we do not ordinarily order
backpay for striking employees, backpay for Justice and Kobb will date from October 31,
the day they abandoned the strike and made themselves available for employment. Sea-
Way Dtistributang, Inc, 143 NLRB 460, Sea View Industries, Inc., 127 NLRB 1402 This
change, of course, does not affect Respondent's liability for making xobb whole for any
loos of pay lie may have suffered as the result of his earlier unlawful discharge from his
part-time job as it mechanic.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on December 4, 1962, the General Counsel of the National
Labor Relations Board issued a complaint dated January 15, 1963, against City
Yellow Cab Company and G.I. Cab Company , herein called the Respondents, al-
leging that the Respondents had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
144 NLRB No. 97.
CITY YELLOW CAB COMPANY AND G.I. CAB COMPANY 995
of the National Labor Relations Act, as amended , herein called the Act. The
Respondents filed answers on or about February 4, 1963, in which they admitted
the jurisdictional allegations of the complaint but denied the commission of any
unfair labor practices.
A hearing was held before Trial Examiner John H . Eadie at Akron , Ohio, from
March 12 to 15, 1963, inclusive. After the conclusion of the hearing, the
General Counsel and the Respondents filed briefs with the Trial Examiner.
Both from the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Both Respondents are Ohio corporations , with their principal offices and places
of business located in Akron , Ohio, where they conduct taxicab businesses. The
gross volume of business of Respondent G.I. Cab and Respondent Yellow Cab was
$293,835.45 and $780,160.05 , respectively , during 1961 , and $281,521.75 and
$765,986.10 , respectively , during 1962 . In 1962, Respondent G.I. Cab received auto-
mobiles valued in excess of $24,000, and Respondent Yellow Cab received automo-
biles valued in excess of $43,000, directly from points outside the State of Ohio. Ap-
proximately 5 percent of the trips of both Respondents involve conveyance of
passengers between links and channels of interstate commerce such as depots, termi-
nals, airports , and hotels.
William R . McClenathen is president of G.I . Cab and vice president and secretary
of Yellow Cab . He is the attorney for both Respondents . Byron W. Fry is vice-pres-
ident of G.I . Cab and president of Yellow Cab . Fry also is general manager of both
Respondents . Jack H . Gibson is secretary of G.I . Cab. C. P. Chima is treasurer
of both Respondents . George Edick and Gibson are assistant managers of G.I.
Cab and Yellow Cab, respectively . McClenathen , Fry, Chima, and Gibson constitute
the board of directors of G.I . Cab. McClenathen , Fry, and Chima constitute the
board of directors of Yellow Cab . McClenathen, Fry, Gibson , and Chima own 94
percent of the stock of G.I . Cab and 100 percent of the stock of Yellow Cab.
Edick is the immediate supervisor of the switchboard operators' of both Re-
spondents . He also investigates all accidents , and interviews and occasionally hires
cabdriver applicants for both Respondents . On at least one occasion Edick per-
mitted a prospective driver to choose as his employer between the Respondents.
The switchboard exists for the purpose of acceptance of telephonic requests for
cab service from the general public and of relaying by radio of the customers'
requests to cabdrivers . Fry hires dispatchers for both Respondents. During about
the latter part of March 1962 , the switchboard of G.I . Cab was moved temporarily
to the same location as that of Yellow Cab. About the latter part of July 1962,
the switchboards of both Respondents were moved to their present common location,
where the operators sit at one continuous switchboard panel in the same room. From
July through October 1962, switchboard operator Ralph Miller substituted for other
operators of both Respondents on their day off, but was paid for such work by
Yellow Cab alone . On the only two occasions when the operators received written
instructions, the memoranda from Edick addressed them without distinguishing
between their employers . During rush periods the operators of both Respondents
were required to take customer calls of the other Respondent , which interchange
required about 5 to 10 percent of an operator 's time.
George Heidish , a switchboard operator of G.I . Cab, "broke in" or instructed new
cabdrivers for both Respondents . On at least several occasions , new drivers of both
Respondents occupied the same cab together while being instructed by Heidish.
Heidish was paid for such work by G.I. Cab alone. During part of 1962, Herman
Klingenhagen worked full time as a switchboard operator for Yellow Cab and part
time as a cabdriver for G .I. Cab.
Yellow Cab had three "road supervisors ." This job was abolished about July
or August of 1962. As will be hereinafter related and found, Edick told Heidish
that he was being discharged as a switchboard operator in order to provide jobs
for the road supervisors who "had their option to go on the switchboard or back
to driving" and that other employees "would be coming off the switchboard .
due to the road supervisors coming back , senioritywise , they could bump them off
of the switchboard."
i Switchboard operators are also referred to in the record as dispatchers.
727-083-64-vol . 144---64
,996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Since about February 1962,., the cabs of both Respondents. have been garaged and
maintained at the same location. Gibson had supervision over the garage and over
the mechanics of both Respondents. Parts for the cabs were taken from a common
source without regard to which Respondent's cab was being repaired. Gasoline
used by the cabs of both Respondents came from the same pumps. Although part-
time mechanic Edward Kobb occasionally worked on cabs of Yellow Cab, he was
paid by G.I. Cab only.
The offices of both Respondents have been in the same building since July 1962.
The office payroll clerk of Yellow Cab occasionally helps Edick prepare the payroll
of G.I. Cab.
Fry purchases large items such as radios and gasoline for both Respondents. All
cabs purchased by the Respondents during 1962 were obtained from Geneva Motors,
a Ford dealership of which Fry is vice president and half owner. One company
performs over 90 percent of the bodywork on cabs of both Respondents. Both Re-
spondents self-insure themselves for accident liability, with McClenathen represent-
ing both Respondents in all lawsuits. Since July 1962, excess liability insurance
over and above the self-insurance has"been provided by the same insurance company.
About April 1962, the numbers `on the cabs of both Respondents were altered
where necessary to avoid duplication in cab numbers. Since about April, the charge
slips given to the customers of either -Respondent do not give either Respondent's
name and give only one telephone number. Prior to April, the charge slip of each
Respondent had its respective name on it. Group insurance policies covering Re-
^spondents' employees, and pamphlets- explaining that coverage to the employees, are
identical, are issued by the same insurance company, and specifically refer to both
Respondents as a single employer.
Fry testified that the two Respondents have the same office location, garage, main-
tenance facilities, and switchboard in order to cut overhead and share the expense
,of "rent, light, heat, utilities" and possibly in the purchase of large items. Major
personnel decisions of both Respondents, such as disciplining, hiring, and discharg-
ing employees are made by Fry.
From the above, I find that at all times material herein, the Respondents com-
prise a single employer under the Act.
II. THE LABOR ORGANIZATION INVOLVED
Taxicab Drivers Union Local No. 345, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Union, is a labor organization which admits to membership employees of the
Respondents.
HI. THE UNFAIR LABOR PRACTICES
A. The status of switchboard operators
The complaint alleges that the Respondents discharged switchboard operators
George Heidish, Francis Justice, Edward Kobb, and William Lurie in violation of
Section 8(a)(3) and (1) of the Act. The Respondents contend that these em-
ployees were supervisors within the meaning of the Act.
The primary duty of switchboard operators of both Respondents is to receive tele-
phone calls for taxicab service from the general public and to relay the customers' re-
quests by radio to an available cabdriver. Another duty is answering inquiries or
complaints from customers concerning delayed or poor service, and attempting to
ascertain the cause of the delay or quality of service by communicating with the
cabdriver. In such cases the switchboard operator attempts to satisfy the customer,
but refers any "major" complaint either to Edick or to Fry. Switchboard operators
also "check-in" cabdrivers by accepting their record of trips and cash collected.
This function also is performed at times by cabdrivers and garage mechanics.
Cabdrivers are preassigned their cabs on a "trip board." In situations not covered
by the preassignment recorded on the trip board, the switchboard operator occasion-
ally furnishes a cab to a driver based on established policies with respect to the
seniority of the driver and also depending on which driver first made known his
availability to drive. Although a switchboard operator may try to resolve grievances
of the cabdrivers, the matter is referred to Edick if he fails in the attempt.
Switchboard operators report to the office infractions of the Respondents' rules
by the cabdrivers. These are verbal reports which do not contain any recommenda-
tion for discipline. Also, upon occasion, cabdrivers have been called in "off the
road" by switchboard operators for violation of company rules. In such cases the
drivers are not permitted to resume their driving duties until permitted to do so by
Edick or Fry. Although a switchboard operator may ask a driver to work past his
CITY YELLOW CAB COMPANY AND G.I. CAB COMPANY 997
scheduled quitting hour, the driver is free to refuse the request without incurring any
disciplinary action.
Drivers report accidents to the switchboard operators. If requested by the driver,
the switchboard operator sends an ambulance or telephones the police. Further,
under established procedure the switchboard operator reminds the driver of certain
information to be secured, such as the names of witnesses.
On out-of-town trips the trip rate which is quoted to a driver by a switchboard
operator is ascertained by reference to a "flat rate" book provided by the Respond-
ents. The only direction given to a driver in such a case would be a reminder to
pick up a spare tire as required by company rules. Although switchboard operators
may authorize cabdrivers to accept a charge or a customer's check, the authority is
limited by whether or not the Respondents previously have passed on the credit
rating of the customer involved.
The record does not show that the authority of the switchboard operators was
increased during the night hours and Sundays when Fry, Edick, and Gibson were
not present in the office. In this connection, Justice testified, "We generally have a
given set of rules that we effectively follow, whether anybody was there or not .
if it was severe . we have even called Mr. Edick out of bed, we have called
Mr. Fry out of bed."
The evidence shows conclusively that at all times material herein, switchboard
operators had the authority to call cabdrivers in off the road .2 As pointed out in the
Respondents' brief, this action by a switchboard operator amounted to suspension
of a driver from work until such time as he was reinstated by either Fry or Edick.
However, the cabdriver involved brings his cab into the garage and reports, not to
the switchboard operator, but to Edick or Fry. The switchboard operator reports
orally to the office concerning the alleged violation of the driver but makes no recom-
mendation. The matter apparently is investigated independently by Edick or Fry,
who decides whether to send the driver back to work or discipline him. The evi-
dence does not show that they even consult with the switchboard operators in such
cases; and it appears that management has never instructed the switchboard operators
that they have any responsibility for disciplinary action. Further, the switchboard
operators work in an isolated area and have little or no contact with drivers except
b^.radio.
Accordingly, on the basis of the foregoing and the entire record, I find that the
switchboard operators do not responsibly direct cabdrivers, do not have authority
to discipline them or effectively to recommend discipline , and do not exercise any
of the other statutory indicia of supervisory authority. I find, therefore, that they are
not supervisors within the meaning of the Act .3
B. The discharges
During June 1962, the switchboard operators of both Respondents discussed among
themselves their dissatisfaction concerning their wages and working conditions
About eight of them held a meeting during the last week of June to draft a "petition"
which set forth their "demands" with respect to desired changes in "wages, fringe
benefits, and working conditions" and requested that the Respondents meet with
them to "negotiate." The petition was mailed to Fry who received it on about
July 6.
After July 6, the switchboard operators did not receive their paychecks as usual,
but had to go to the office to get them. There they were told to go upstairs to Fry's
office. Switchboard operators Clinton Hornig and Herman Klingenhagen went to
the office on July 11 and spoke to Fry. Fry told them that he did not like the
word "demand" in the petition and that their demands were "silly, asinine, and
2 Kobb testified that sometime during 1961, the switchboard operators were ordered "not
to pull anybody off the road for any reason" and that he had not heard of the rule being
rescinded However, it is undisputed that under date of January 9, 1962, Edick issued
written rules to the switchboard operators, one of which reads as follows:
It is the duty and responsibility of every dispatcher to make certain that each and
every driver calls in as each have been instructed to do-each time he drops off a
passenger , each time he picks up a passenger ( to give a destination ) and before
entering the downtown area. Any driver who consistently refuses to co-operate will
be brought into the office immediately. Any dispatcher who fails to do this is just
as guilty of neglect of his job as is the offending driver and will be dealt with
accordingly.
3 Yellow Cab, Inc., 131 NLRB 239.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ridiculous." Fry also told them that eventually they were going "to be made
supervisors."
George Heidish worked as a part- time switchboard operator for G.I. Cab. On
or about July 12, he went to the office where he was told that he could not get his
check until he spoke to Edick. Edick told him that he was discharged as a switch-
board operator, but that he could "go back to driving a cab" since his "record had
always been excellent, safety and otherwise." Edick stated that the discharge was
"due to the cutdown ... the road supervisors were to be taken off, and they had
their option to go on the switchboard." When Heidish asked him if the petition had
anything to do with his discharge, Edick replied, "It may have hurried the cutdown."
Edick also told Heidish that he should not have signed the petition since he was
"a part time man" and since he had just received a raise in wages; and that "the rest
of the people that signed the petition would rue the day they put their names on
that paper." Heidish thereafter became a cabdriver. I find that Edick's threat of
reprisal was violative of the Act.
Switchboard operator Edward Kobb also worked as a part-time mechanic for
G.I. Cab. On or about July 12, Kobb had a conversation with Edick. Edick spoke
about the petition, asking Kobb if he knew who was responsible for getting it started
and if he "went along with it." After Kobb stated that he was in favor of the petition,
Edick told him that "on the order of Jack Gibson" he would not be needed any longer
as a part-time mechanic because "the Company was financially pressed, and they
were going to cut expenses, and the garage was one place they were going to do it."
I find that Edick's interrogation was violative of the Act.
After the discharges of Heidish and Kobb the switchboard operators decided that
they needed the help of a union. They met with representatives of the Union on or
about July 14. The switchboard operators signed union membership application
cards at the time. Thereafter, they solicited other employees, including cabdrivers
of G.I. Cab,4 to sign union cards.
On or about July 16, Union Representative Favaro met with Fry and McClenathen.
On July 17, Favaro reported back to the switchboard operators that Fry and
McClenathen refused to recognize the Union as their bargaining agent since they
considered the switchboard operators as "supervisors and part of management."
Favaro met again with McClenathen on or about July 24. When McClenathen still
insisted that switchboard operators were supervisors, Favaro said, "If you are going
to take that position about it, as far as I am concerned, it is a dead issue "
On or about July 26, Heidish went to Fry's office at the latter's request. Gibson
also was present. Although Heidish was a cabdriver for G.I. Cab at the time, Fry
spoke at length about the petition. Heidish's answers were to the effect that he was
still sympathetic with the position of the switchboard operators and that he did not
think they were supervisors. Near the end of the conversation Fry asked Heidish
if any employees other than switchboard operators had grievances. Heidish replied
that the cabdrivers of G I. Cab also were dissatisfied. Either Fry or Gibson com-
mented, "Is it worth paying $6 a month union dues to have these things changed?"
I find that Fry's interrogation constitutes interference, restraint, and coercion.
On or about July 21, Fry called switchboard operator Francis Justice at his home.
Fry stated that the petition had the Respondents "more or less in a bind" and that
he did not like the word "demands." He said that the Respondents could not permit
"a union on the switchboard" and asked why the switchboard operators wanted one
Justice replied that they needed protection, saying, "Well, I will give you two good
examples, Kobb and Heidish, and the rest of us could end up with the same thing."
Fry said that Kobb and Heidish had not been discharged. He reiterated that the
Respondents would not tolerate "a unionized switchboard," saying, in substance,
that the switchboard operators were supervisors who "directly controlled" the
drivers and that the switchboard operators would lose their effectiveness if they
belonged to the same union as the drivers. Shortly thereafter, Fry had another
conversation with Justice He again pointed out that switchboard operators were
supervisors and that the Respondents would not tolerate having them belong to the
same union as the drivers. He stated that he had heard that Justice was soliciting
drivers to join the Union; that the Respondents did not consider this to be "proper"
as he was "part of management"; and that if he wanted to continue this activity, he
should "go back to driving." When Justice asked him if he would still object if the
switchboard operators belonged to different unions, Fry evaded the question.
On September 19, Edick discharged Heidish from his position as cabdriver. Con-
cerning his conversation with Edick at the time, Heidish testified credibly as follows:
'The record discloses that for a number of years the Union was the bargaining repre-
sentative of the drivers of Yellow Cab.
CITY YELLOW CAB COMPANY AND G.I. CAB COMPANY 999
Mr. Edick told me that he was given a job that he didn't like to do and he
didn 't know why he was given the job, but orders came from downtown that I
was to be told I was fired and no longer drove a cab for G.I . Cab Company, and
at the time this happened I-1 had had some damage on my cab the Sunday
before, so I asked Mr. Edick if it was due to the damage on my cab and Mr.
Edick told me no, that it was not due to the damage on my cab, and I said to
him "Well , you just don't fire people and not give them a reason." I says "Isn't
there some reason why I am fired," and he said he was told that he didn't have
to give me a reason why I was fired . . . .
Kobb was one of the switchboard operators who had been soliciting cabdrivers
on behalf of the Umon On October 1, he was called to Fry's office. Fry, Mc-
•Clenathen , and Edick were present, McClenathen told Kobb that : he had heard that
he was signing up drivers in the Union ; this activity was not appreciated and would
not be tolerated "any further" since he was considered to be a supervisor and part of
management , Kobb was free to join the Union or engage in union activities if he
gave up his "dispatching job and went back on the road as a driver "; if he refused
to do that, "steps" would be taken to "eliminate" him; if Kobb did not "want to go
along with" their "way of thinking " and if they watched him "long enough, close
enough," they "could find a good reason to get rid of" him ; he expected an answer
from Kobb within a few days on this question ; and he did not like the word
"demand" in the petition or "the Union's attitude of the whole grievance petition."
I find that McClenathen 's threat of reprisal was violative of the Act.
At approximately 4 p.m., on Sunday , October 28 , Kobb and Justice began picketing
the offices of the Respondents with a sign which read, "On strike for union recogni-
tion." 5 About 5 p.m ., McClenathen arrived at the scene of the picketing . He asked
who had authorized the strike . Justice replied that the Union had authorized it.
Kobb denied this, but stated that the employees "hoped" that the Union was "going
to respect our picket line" and that they had asked the president of the Union to
"represent us to get us in the Union " if they needed "someone to act as our spokes-
man." McClenathen then went into the Respondents ' building and returned shortly
with Fry and Gibson. Several cabdrivers were present, including Bernard Ward,
a driver of G.I. Cab. Speaking to Kobb and Justice, McClenathen said , "If you
think I am going to tolerate this communistic demonstration , you got another think
coming . . . . you are not getting me to submit to these dictatorial tactics, because,
as of now you are fired." Referring to the picketing as "communistic " and "Cuban-
like" demonstrations and to Justice and Kobb as "communistic children," Mc-
Clenathen then asked Ward what he was doing there and if he was going to work.
Ward replied to the effect that he had "come down to see if he couldn't do something
about preventing a strike" and that he would respect the picket line.
The employees continued to picket until "the early afternoon" of October 31. Fred
Kerr , a cabdriver for G.I . Cab, joined in the picketing for about 8 hours during the
night of October 29 and 30. Ward joined the picketing for about 10 hours during
the night and early morning hours of October 30 and 31. McClenathen appeared on
the scene and told Ward that he was or would be discharged . William Lurie, a
switchboard operator for Yellow Cab,6 did not report for work during the picketing
and picketed for a short time on October 30.
The Respondents obtained two temporary restraining orders against the picketing
from the common pleas court of Summit County, Ohio. The first court order was
obtained on October 29 and enjoined the Union . The second order was obtained on
October 30 and specifically enjoined four -named strikers , including Justice and
Kobb, from picketing . Justice testified that he ceased picketing when served with the
order.
About 11 a.m. on October 30, Fry called Lurie and asked him why he had not re-
ported for work Lurie replied that he would not cross the picket line. Fry then
told him that he was considered to be a supervisor and that he "expected" him to re-
port for work . As found above , Lurie joined in the picketing that same day. When
he reported for work about 8 a.m . on October 31, he was informed that he was
-discharged for "walking out."
B Justice testified that the employees picketed because "we felt that we had taken all
,of the possible roads that we could , and we had gotten no constructive response from the
Company " Kobb testified that they picketed because "we didn ' t get any answer [on the
grievance petition ], other than Mr Heldish and myself being released from our part-time
Jobs, and a flat refusal to do anything about that"
a Lurie was a road supervisor until about June 12 , 1962 He was off from work be-
cause of illness from that date until August 19 When he returned to work he was made
a switchboard operator.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Ward reported for work about 5:30 a.m . on October 31, he was sent to the
office. Edick told him that he was discharged because his "name was on the list."
During the afternoon of October 31, Justice , Kobb, Kerr, and some of the other
strikers went to the Respondents ' garage where they talked to McClenathen . Fry and
Gibson were present . Justice, acting as spokesman for the group , told McClenathen
that they wanted to return to work. McClenathen confirmed that Justice and Kobb
had been discharged and told Kerr that he was discharged for being on the picket
line.
On or about November 7, McClenathen and Fry met with the president of the
Union. A number of employees also were present, including Kerr. It was called to
McClenathen 's attention that Kerr had not picketed after the order of the court-
McClenathen stated that he had made a mistake in discharging Kerr, and that he
would confer with the board of directors and recommend that Kerr be reinstated
` on probation ." When asked by McClenatben , Fry answered that he also would vote
to reinstate Kerr. Kerr asked if he would receive backpay for the time he was off.
McClenathen replied that he would not receive it. In late November or early
December Kerr was informed that he would be reinstated with "full seniority" if he
signed a document stating that he agreed "to forego [ sic] any claims for wrongful
discharge or backpay" and that he was to be "on probation ." Kerr did not accept
either of the above offers.
On December 13, Fry called Ward and offered him reinstatement "with full
seniority" if he would sign a statement accepting "three years of probation" and
waiving any rights to backpay. Ward refused.
The Respondents contend that Heidish was removed from the job of part-time
switchboard operator in order to make room for the road supervisors of Yellow Cab.
However, from Edick's own testimony it is clear that the Respondents were motivated,
at least in part, by reason of the fact that Heidish had signed the petition . Accord-
ingly , since Heidish's concerted activity was protected , I find that this discharge on
July 12 was violative of Section 8(a) (1) of the Act.
With respect to Kobb's discharge on July 12 from his job as part -time mechanic,
other than Edick 's testimony concerning the conversation when he notified Kobb of
his termination , the Respondents adduced no evidence in this connection . Gibson,
who allegedly made the decision to "cut-down" by terminating Kobb's employment,
did not even testify. From all of the evidence I believe and find that the Respondents'
reason for the discharge was pretextual and that the real reason was the fact that Kobbr
had engaged in concerted activity with the other switchboard operators by signing and
presenting the petition . I find that Kobb's discharge was in violation of Section
8(a)(1) of the Act.
The Respondents contend that Heidish was discharged from his position of cab-•
driver on September 19 because they had "reports " or "complaints " that he "had
been running the Company down for taking him off the switchboard ," during con-
versations with other cabdrivers and with customers. Both Edick and Fry testified
to this effect.?
In summary , the Respondents discharged a cabdriver with a "good" record who
had been employed for about 11 years without prior warning and in the middle of a
pay period , relying only on either a customer 's or a cabdriver 's version of a conversa-
tion, without giving Heidish the opportunity to give his version and without even
giving him any reason at all for the discharge . Further, from their conversation with
Heidish on July 26. Fry and Gibson had reason to believe that he not only continued,
to be sympathetic to the grievances of the switchboard operators but also was involved
in the effort to organize the drivers of G.I. Cab into the Union. Accordingly, I find
that the Respondents ' reason for the discharge was a pretext and that the discharge
was violative of Section 8(a)(3) and ( 1) of the Act.
7 Fry testified that Heidish was discharged because of the "reports " He testified that
he talked to McClenathen about the complaints "the first part of September ," but that
"a definite decision hadn't been made, although we thought probably around the 10th
he would be replaced as a part-time cabdriver , although , I don't believe lie was actually
told until the week of the 17th, 18th or 19th , somewhere in there" Fry then testified
that Hoidish had an accident "the Sunday of September , which I believe is September 16th"
which he did not report and which "he couldn't explain in the course of his driving that
day" : and that the following day after talking with McClenatben "I told Mr Fdick then
to tell him to terminate his driving , but I don 't think he saw him until Wednesday "
Concerning the accident , Edick testified , "I understood it to be an accident , I believe, at
the parking lot of Kent State University , that somebody had backed into his cab " In
view of Fry 's testimony as to when the Respondents decided to discharge Heidish and,
of Edick's statements when lie notified Heidish of his discharge , it appears that the
accident was not a reason for discharge
CITY YELLOW CAB COMPANY AND G.I. CAB COMPANY 1001
With respect to the discharges of Justice and Kobb on October 28 and of Lurie, Kerr,
and Ward on October 31, the Respondents contend that (1) Justice, Kobb, and Lurie
were lawfully discharged because they were supervisors, (2) Kerr and Ward were
engaged in unprotected activity in that they "were striking and picketing, not for
recognition of a drivers union, but rather for the winning of bargaining rights for
the dispatcher-supervisors, and (3) all of the above employees were lawfully dis-
charged in that they "were engaged in unlawful activity because they continued to
picket after the issuance of an injunction." The Respondents' contentions are rejected.
I find that the discharges of Justice, Kobb, Lurie, Kerr, and Ward were violative of
Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the Respondents' operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents discharged Edward Kobb and George
Heidish from their part-time jobs on July 12, 1962, discharged Heidish from his job
as cabdriver on September 19, 1962, discharged Kobb and Francis Justice on Octo-
ber 28, 1962, and discharged Fred A. Kerr, Bernard Ward, and William Lurie on
October 31, 1962. Accordingly, it will be recommended that the Respondents offer
the above employees immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights or privileges,
and make them whole for any loss of pay suffered by reason of the discrimination by
payment to each of them of a sum of money equal to that which he would have earned
as wages from the date of the discrimination to the date of reinstatement, less his net
earnings during such period in accordance with the formula prescribed in F. W. Wool-
worth Company, 90 NLRB 289, together with interest on such sum, such interest to
be computed in accordance with the formula prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents comprise a single employer under the Act and are engaged
in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondents have engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
4. By discharging George Heidish, Edward Kobb, Francis Justice, Fred A. Kerr,
Bernard Ward, and William Lurie because they engaged in protected concerted ac-
tivities or because of their membership in and activities on behalf of the Union,
thereby discouraging membership in the Union, the Respondents have engaged in
unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that City Yellow Cab Company and G.I.
Cab Company, Akron, Ohio, their officers, agents, successors, and assigns, shall be
ordered to:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating against them because of
their concerted activities for the purpose of collective bargaining, or other mutual
aid and protection.
(b) Discouraging membership in the Union, or any other labor organization of
their employees, by discharging employees or otherwise discriminating against them
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in regard to their hire and tenure of employment or any term or condition of
employment.
(c) Interrogating their employees concerning their concerted activities or their
activities on behalf of the Union , or of any other labor organization , and threatening
their employees with reprisal for engaging in such activities.
(d) In any other manner interfering with , restraining , or coercing its employees
in the exercise of the right to self-organization , to form labor organizations, to
join or assist the above -named labor organization or any other labor organization,
to bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or 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) Offer the employees named above immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to their seniority or
other rights or privileges, and make them whole in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all records necessary for the de-
termination of the amount of backpay due under these recommendations.
(c) Post at their plant in Akron, Ohio, copies of the attached notice marked
"Appendix." 8 Copies of said notice, to be furnished by the Regional Director for
the Eighth Region, shall, after being duly signed by the Respondents or their author-
ized representatives, be posted by Respondents immediately upon receipt thereof and
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 to insure that said notices are not altered , defaced,
or covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report, what steps they have
taken to comply herewith.9
8 In the event that this Recommended Order be 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 Deci-
sion and Order."
8In 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 Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Taxicab Drivers Union Local No.
345, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of our employees, by dis-
criminating in regard to their hire or tenure of employment , or any term or
condition of employment.
WE WILL NOT discharge employees or otherwise discriminate against them
because of their concerted activities for the purpose of collective bargaining, or
other mutual aid and protection.
WE WILL NOT interrogate our employees concerning their concerted activities
or their activities on behalf of the above Union, or of any other labor organiza-
tion, or threaten our employees with reprisal for engaging in such activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist Taxicab Drivers Union Local No. 345 Interna-
LOCAL 102, INT'L LADIES GARMENT WORKERS UNION 1003
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted activities for the pur-
poses of collective bargaining or mutual aid or protection , or to refrain from
any or 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.
WE WILL offer to the employees named below immediate and full reinstate-
ment 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 as a result of the discrimination against them.
George Heidish Fred A. Kerr
Edward Kobb Bernard Ward
Francis Justice William Lurie
All our employees are free to become , remain , or refrain from becoming or
remaining members of any labor organization except to the extent that this right
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.
CITY YELLOW CAB COMPANY
AND G.I . CAB COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , 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, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland 15, Ohio, Telephone No. Main 1-4465, if
they have any question concerning this notice or compliance with its provisions.
Local 102, International Ladies Garment Workers Union, AFL-
CIO and Henry Rosenfeld, Inc., and Jerry Gilden Fashions,
Inc. Case No. 22-CC-183. October 9, 1963
DECISION AND ORDER
On February 28, 1963, Trial Examiner Ivar H. Peterson issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom, and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
Respondent filed exceptions to the Intermediate Report and a support-
ing brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Leedom,
Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
144 NLRB No. 95.