Diamond Cab

National Labor Relations Board - Board Decisions

May 22, 1967

164 N.L.R.B. 859 (N.L.R.B. 1967)

ASSN. OF INDEPENDENT TAXICAB OPERATORS 859
Association of Independent Taxicab Opera-
tors, Inc., T/A Diamond Cab , and its Mem-
bers, Employer and Taxicab Drivers
& Garage Employees, Local Union 426,
affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Petitioner. Case
5-RC-5638.
May 22,1967
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before August A. Denhard, Jr.,
Hearing Officer. The Hearing Officer's rulings made
at the hearing are free from prejudicial error and are
hereby affirmed. Briefs have been filed on behalf of
the Petitioner, the Employer-Association, and
individually on behalf of certain Employer-
Association members.
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.
Upon the entire record in this case, the Board
finds:
1. Association of Independent Taxicab Operators,
Inc., T/A Diamond Cab,' is a nonprofit membership
corporation whose members2 own and operate
taxicabs in Baltimore, Maryland. Its corporate
purpose is to provide Baltimore with efficient and
systematic taxicab service and, more directly, to
provide its members with facilities, such as a radio
dispatch system, which are required by law and
impractical for individual members to provide.
Diamond is comprised of about 114 members who
own about 354 cabs, which in normal operation
require between 700 and 800 drivers. While counsel
for Diamond specifically contended that the named
Employer is not an employer for the purposes of this
proceeding or for any other purposes, and reserved
as to admitting any joint activities engaged in by the
Association and its members, the parties
nevertheless stipulated that the named Employer,
during the past 12 months, received revenues in
excess of $500,000 from furnishing taxicab service in
the Baltimore metropolitan area and that, during the
same period, it purchased such items as gasoline
and motor vehicles valued in excess of $50,000 either
directly or indirectly from sources outside the State
of Maryland.3
Diamond contends that the petition should be
dismissed because the Association neither owns
taxicabs nor employs drivers, is not a joint employer
with any other entity or with its members, and its
members are not joint employers with one another.
None of the members considered individually would
satisfy the Board's jurisdictional standards.
As noted above, Diamond is comprised of
approximately 114 members who own about 354
cabs. Eighty to eighty-five members own only one
cab, about half driving their own cab and about half
hiring others to drive. At the other end of the
spectrum, about 13 members, who are called fleet
owners, own between 5 and 30 cabs, each and
between them own more than half of the cabs of the
entire Association. The Association prohibits any
member from owning more than 30 cabs.
The Association employs a number of individuals,
including a personnel manager and safety director,
to perform various functions and services. All are
paid by the Association which derives its income
from a differential added to the cost of gasoline
purchased by the Association for ' resale to its
members.4 Membership in the Association entitles
members to paint their cabs with a distinctive and
noticeable color scheme and diamond shaped
design, the words "Diamond Cab," and the
telephone number of the Association.5 Each cab also
carries a number which is apparently assigned by
the Public Service Commission of Maryland
(hereinafter PSC), and which is maintained in the
Association records.
The Association provides a number of services for
its members. These include a radio dispatch system,
a tire shop, a meter repair shop, a cab wash rack, a
paint shop, gas pumps, manifests, lease agreements
and stationery, parking facilities for cabs not in use,
record keeping, issuance of checks to members and
drivers weekly,6 handling charge accounts such as
hospitals, advertising (in yellow pages, newspapers,
on cabs themselves, and in the form of calendars),
and a safety class. The Association also provides
representation before the PSC regarding rate
,increases, pays part of workmen's compensation,
and provides and pays for group life insurance for
members and drivers. Liability insurance premiums
are paid to the carrier by the Association, and then
collected from the members, apparently as a
convenience to the carrier, but the coverage was
' Hereinafter referred to as Diamond or the Association
2 Diamond together with its members is the Employer hereu,
' The applicable jurisdictional standard is the $500,000 retail
standard Checker Cab Company and its Members, 141 NLRB 583,
affd 367 F 2d 692 (C A 6)
4 Advertising carried on the cabs is entirely administered by
the Association and is mandatory on all drivers and members The
proceeds from such advertising are earmarked specifically to an
Association-conducted safety program, the financing of which
appears to be entirely separate from that of the Association
generally
' Members may also paint their own names and telephone
numbers on their cabs
8 These checks are drawn on moneys turned into the
Association by the drivers at the end of each shift
164 NLRB No. 110
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiated by a committee on behalf of all
participating owner-members. While the voluminous
record contains extensive contradictory evidence as
to the degree of utilization of the above-mentioned
services of members, and particularly by fleet
members, the fact remains that the services are
provided, are available to members generally, and
are to some extent utilized universally.
There is much evidence as to the role played by
the Association in the hiring, discharging, and
disciplining of drivers. Thus, the Petitioner stresses
that which shows that applicants for jobs as drivers
are often obtained through Association newspaper
advertisements; all applicants are processed and
screened by the Association and fill out an
Association application form and a PSC application
form, fingerprinted, given an eye test, and
photographed, and, if accepted, given a payroll
identification number. The Employer, on the other
hand, contends that the newspaper want-ad is run
for the convenience of the small members; that
applicants are immediately referred to a member for
interviewing; that the member either hires or rejects
the applicant; that, if hired, the applicant is then
fingerprinted and otherwise processed by the
Association, and if rejected, the applicant is then
sent to another member; that the Association
employment procedures constitute a mere clearing
house for processing driver applicants, which is, in
any event, not utilized by the fleet members; and
that the Association neither hires nor discharges
drivers nor has any authority concerning the
employer-employee relationship between the
members and the drivers. Further, the Employer
contends, contrary to the Petitioner's position, that
the safety director has no authority to reject,
discharge, or discipline drivers. It is uncontroverted,
however, that the Association advertises for drivers
for general use and that, at some stage during their
hiring ritual, all applicants are photographed,
fingerprinted, assigned a payroll number, and
obliged to fill out an Association application, all at
the Association's behest. It is further
uncontroverted that all the drivers operate cabs
distinctively and clearly marked to be Diamond
Cabs, and that they begin their shift by picking up
their manifests at Association headquarters and
finish work by depositing those manifests at the
same location.
The Employer argues that the degree of
Association control is insufficient to warrant a
finding of a joint-employer relationship because,
unlike Checker,7 the Association issues no manual or
book of instructions to new drivers, employs no
roadmen to check on their performance, and
operates no board of review to administer discipline.
However, the Petitioner points out that Diamond
distributes a PSC booklet to all new drivers spelling
out their legal duties and obligations, and it
administers a safety class. The PSC booklet appears
to serve the purpose of rules published by the
Association itself, even dealing with attire to be
worn. Moreover, not all members maintain their own
payroll records, and as already indicated, liability
insurance is administered by the Association, life
insurance is paid by the Association, and workmen's
compensation is paid, at least in part, by the
Association, none of which factors was present in
Checker.
As noted above, each of the approximately 354
cabs owned by Diamond's members bears the
distinctive color scheme and the diamond shaped
design of the Association and the words "Diamond
Cab." Thus, to the public at large, Diamond appears
to operate as a single-integrated enterprise, and it is
Diamond, and not any individual member, upon
whom the public relies to meet its transportation
needs. In fact, Diamond operates as a single-
integrated operation, offering a radio dispatch
service and the various other services we have
already mentioned. Considering the volume of
business and the number of cabs involved, the effect
upon commerce of a work stoppage by Diamond Cab
drivers would be substantial.
It is apparent from all the foregoing that, in order
to satisfy the public demand for adequate cab
service and to assure the continuance of a common
public image, Diamond's members have yielded a
substantial degree of control over the working
conditions of their drivers to the Association and
that the members accordingly share control over
their drivers with the Association. Under all the
circumstances and consistent with the pattern of
operations established by the parties themselves, we
find that the Association and its members are joint
employers in a common enterprise, and, further, that
it is therefore appropriate to combine the gross
revenues of all members for jurisdictional purposes.8
As these total revenues exceed the retail standard of
$500,000, and as legal jurisdiction is present, we
conclude that it will effectuate the policies of the Act
to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all full-
time and regular part-time taxicab drivers of the
Employer excluding garagemen, mechanics,
dispatchers, office clerical employees, guards, and
supervisors as defined in the Act. The Employer is
opposed to an associationwide unit. In any event, it
contends that garagemen and mechanics should be
included in any bargaining unit. The sole dispute as
to cab drivers concerns lease drivers, whom the
Petitioner would include and the Employer exclude.
7 Checker Cab Company, supra 8 Checker Cab Company, supra
ASSN. OF INDEPENDENT TAXICAB OPERATORS 861
As our findings above indicate , drivers of
Diamond cabs have mutual employment interests.
They work under a pattern of operations which gives
the appearance of a single -integrated enterprise and
Petitioner seeks to represent them in a unit which is
consonant with this manner of operations ; no union
seeks to represent the drivers on any other basis.
Under all the circumstances , including our finding of
a joint -employer relationship herein , we find a unit of
all employees driving Diamond cabs to be
appropriate.
The lease drivers: Approximately half of the cabs
operated by Diamond members are operated under a
lease method . Lease drivers execute a daily lease
agreement which may be canceled by either party at
the end of any shift and for any reason . The lease
driver pays a prearranged rental for the use of the
cab for a shift, and also deposits a $25 cash bond. All
lease drivers procure a manifest from Association
headquarters at the beginning of each shift and
return it at the end of the shift , must purchase their
gasoline from the Association , and carry advertising
on their cabs which are identified as "Diamond
Cabs." Like other drivers they are subject to the
regulations set forth in the PSC manual and are
subject to the radio dispatch system . So far as the
record shows, cabs are garaged at Association
headquarters or at facilities provided by members;
and all complaints , traffic violations , or accidents
are reported to the employing member or the
Association . While lease drivers do not have social
security or other items withheld from their pay, they
are covered by the same life and liability insurance
coverage that other drivers enjoy.
The Board has frequently held that, in
determining the status of persons alleged to be
independent contractors , the Act requires
application of the "right of control" test . Where the
person for whom the services are performed retains
the right to control the manner and means by which
the result is to be accomplished , the relationship is
one of employment ; while, on the other hand, where
control is reserved only as to the result sought, the
relationship is that of an independent contractor.
The resolution of this question depends on the facts
of each case, and no one factor is determinative.
We find upon the entire record that the lease
drivers do not possess the independence of action as
to the manner and means of accomplishing their
work which is an essential characteristic of an
independent contractor . We are aware that the
evidence discloses some factors which may tend to
point toward an independent contractor status, but
none of these factors is alone determinative, and
even in combination they are not enough to override
the more substantial showing in this case that the
degree of control exercised by the Employer is such
as to establish that the drivers are employees within
the meaning of the Act.9
Service employees : Petitioner would exclude, and
Employer would include, garage employees and
maintenance men who in essence comprise the
service employees employed by the various
members.1° These employees work on a regular
hourly basis, under supervision , are hourly paid or
salaried , and have little or no contact with the
public. The drivers , on the other hand , work shifts of
up to 12 hours, are removed from supervision, are
paid on a commission or lease basis or a combination
of both , and are in constant contact with the public.
Moreover , the drivers contact those employees of
the Association only at the beginning and end of
each shift , and may or may not contact the service
employees of the various members at all during any
given shift . Further , the drivers , who use different
skills from the service employees , are also covered
by different insurance programs . Clearly, the service
employees work under different conditions of
employment , are paid by a different method than the
drivers, enjoy different fringe benefits , have little
contact with the drivers , and employ different skills.
We find that a unit limited to the taxicab drivers, as
sought herein , is appropriate.
Accordingly , we find on the basis of the entire
record that the following unit is 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 of the Employer,"
excluding garagemen , mechanics , dispatchers,
office clerical employees , guards, and supervisors as
defined in the Act.
[Text of Direction of Election12 omitted from
publication.]
" Veterans Cab Co of Memphis, Inc, 159 NLRB 251, Southern
Cab Corporation , Yellow Cab of Memphis Division, 159 NLRB
248
10 Petitioner would also exclude the employees of the
Association itself , who appear to include those who man the tire
shop, paint shop , gasoline pumps, and the dispatchers. The
Employer agreed to the exclusion of the office clericals employed
by the Association , but took no position with regard to the other
Association employees We find that these employees have
diverse interests from the drivers , and we shall exclude them from
the unit
" The parties stipulated that eligible to vote as drivers would
be all regular drivers , owner-drivers who employ no other drivers,
and regular part -time drivers who have worked at least 2 days per
week in 4 of the 6 full weeks immediately preceding the date of
the direction of the election or have worked at least 1 day per
week in 13 of the 16 full weeks preceding the date of the direction
of the election
't An 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 5 within 7 days after the
date of this Decision and Direction of Election 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 Excelsior
Underwear, Inc., 156 NLRB 1236