Friendly Cab Company

National Labor Relations Board - Board Decisions

Apr 20, 2005

344 N.L.R.B. 528 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 64
528
Friendly Cab Company, Inc., Metro-Taxicab Com-
pany, Inc., California Cab Company, GRKWSS
Enterprise, Inc., Metro-Yellow Taxicab Com-
pany and Greyline Cab Co. and East Bay Taxi
Drivers Association and Brotherhood of Team-
sters, Auto Truck Drivers, Line Drivers, Car
Haulers and Helpers, Local No. 70, Intervenor.
Case 32-CA-21613-1
April 20, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 10, 2005, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
filed exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
has decided to affirm the judge’s rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Friendly Cab Company, Inc.,
Metro-Taxicab Company, Inc., California Cab Company,
GRKWSS Enterprise, Inc., Metro-Yellow Taxicab Com-
pany and Greyline Cab Co., a single employer, Oakland,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.1
Jo Ellen Marcotte, Esq., for the General Counsel.
Jerrold C. Schaeffer, Esq. (Hanson Bridgett Marcus Vlahos &
Rudy), of San Francisco, California, for the Respondent.
Duane B. Beeson, Esq. (Beeson, Tayer& Bodine), of Oakland,
California, for the Intervenor.

1 This case involves allegations that the Respondent refused to rec-
ognize and bargain with the Union as the certified representative of the
Respondent’s taxicab drivers. The Respondent admits that it has re-
fused to recognize and bargain with the Union, but defends on the sole
basis that the Union was improperly certified because its taxicab drivers
are independent contractors and not employees. The Respondent raised
the same argument in its request for review of the Regional Director’s
determination that the drivers were employees in the underlying repre-
sentation case. Friendly Cab Co., 32–RC–5060. The Board granted
that request for review but concluded, on the merits, that the drivers
were employees and not independent contractors. Friendly Cab Co.,
341 NLRB 722 (2004).
Chairman Battista and Member Schaumber did not participate in the
underlying representation case. However, they agree with the judge
that the Respondent has not offered any newly discovered and previ-
ously unavailable evidence, nor alleged any special circumstances that
would require the Board to reconsider its decision in the representation
case. Indeed, the Respondent has merely resubmitted with its excep-
tions its brief to the Board in the representation case.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Oakland, California, on January 27, 2005. On
September 8, 2004, East Bay Taxi Drivers Association (the Un-
ion) filed the charge in Case 32–CA–21613–1 alleging that
Friendly Cab Company, Inc., Metro-Taxicab Company, Inc., Cali-
fornia Cab Company, GRKWSS Enterprise, Inc., Metro-Yellow
Taxicab Company and Greyline Cab Co. (collectively called Re-
spondent) committed certain violations of Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act). On November 23,
2004, the Regional Director for Region 32 of the National Labor
Relations Board (the Board) issued a complaint and notice of
hearing against Respondent, alleging that Respondent violated
Section 8(a)(5) and (1) of the Act. Respondent filed a timely an-
swer to the complaint, denying all wrongdoing.
On May 18, 2004, in Case 32–RC–5060, the Union was certi-
fied as the exclusive collective-bargaining representative of Re-
spondent’s full-time and regular part-time taxicab drivers at its 48-
49 East 12th Street, Oakland, California facility.1 This certifica-
tion was based on an election held on August 13, 2002. The delay
between the representation election and the certification was
caused by the Respondent’s request for review of the Regional
Director’s Decision and Direction of Election. The Regional
Director held that the taxicab drivers were statutory employees
and ordered a representational election. Respondent filed a timely
request for review contending that the taxicab drivers were inde-
pendent contractors and not statutory employees. On November
15, 2002, the Board granted the Respondent’s request for review
of the Regional Director’s Decision. On April 30, 2004, the
Board issued its Decision on Review and Order affirming the
finding that the taxicab drivers at issue were employees within the
meaning of Section 2(13) of the Act. See Friendly Cab Co., 341
NLRB 722 (2004). On August 13, 2004, the Board issued an
unpublished Order in Case 32–RC–5060 correcting the name of
the Respondent. Thereafter, on August 17, 2004, the Regional
Director issued a corrected certification of representative.
The complaint alleges that the Union is the certified collective-
bargaining representative of the unit of Respondent’s taxicab driv-
ers and that Respondent violated Section 8(a)(5) and (1) by failing
and refusing to bargain with the Union on request. Respondent
admits that it has refused to bargain with the Union but contends
that the Board’s certification is erroneous. Respondent contends
that the taxicab drivers at issue herein are independent contractors
and, therefore, not statutory employees. As stated above, in its
Decision on Review and Order of April 30, 2004, the Board con-
sidered this argument and found the taxicab drivers to be employ-
ees within the meaning of Section 2(3) of the Act. Friendly Cab,
supra.
In the instant case, Respondent has refused to bargain with the
Union in order to seek judicial review of the Board’s April 30,
2004 Decision and Order of Certification. Section 102.67(f) of
the Board's Rules and Regulations precludes relitigating “in any

1 Official notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68
and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).
FRIENDLY CAB CO. 529
related subsequent unfair labor practice proceeding, any issue
which was, or could have been, raised in the representation
proceeding.” The Board has stated that “[s]ubsequent unfair
labor practice cases ‘related’ to prior representation proceed-
ings include not only Section 8(a)(5) refusal-to-bargain cases
where there is a test of certification, but also, in appropriate
circumstances, unfair labor practice cases that arise under other
sections of the Act.” Hafadai Beach Hotel, 321 NLRB 116
(1996). In the instant case, the independent contractor issue
raised by the Respondent was litigated in the prior representa-
tion proceeding.2 I therefore find that the Respondent has not
raised any representation issue that is properly litigable in this
unfair labor practice proceeding. See Pittsburgh Plate Glass
Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, I am
bound by the Board’s findings in the representation case.
The parties have been afforded full opportunity to appear3 to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs.4 Upon the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the operation of a taxicab service
for the general public. The Board found, in the underlying
representation case, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
In the underlying representation case, the Board found that the
Union is a labor organization within the meaning of Section 2(5)
of the Act.
II. FACTS
As stated earlier, on May 18, 2004, the Union was certified
as the exclusive collective-bargaining representative of Re-
spondent’s taxicab drivers in Oakland, California.
On May 24, 2004, the Union’s attorney wrote the Respon-
dent’s attorney requesting that the parties meet and negotiate
regarding the terms of employment of the taxicab drivers. On
June 9, Respondent’s attorney responded contending that the
drivers were independent contractors and that the Respondent
“will not participate in this collective-bargaining process.”
Respondent’s attorney further stated, “We intend to seek judi-
cial review of the Board decision finding the drivers employees
under the Act.” Thereafter, on July 27, 2004, the Union’s at-
torney again wrote Respondent’s attorney and requested that
Respondent meet and negotiate with regard to the terms and
conditions of employment of the drivers. On August 16, 2004,
the secretary-treasurer of Teamsters Local 70 wrote Respondent

2 Furthermore, Respondent did not offer any newly discovered and
previously unavailable evidence, nor does Respondent allege any spe-
cial circumstances that would require the Board to reexamine the deci-
sion made in the representation proceeding.
3 Teamsters Local 70 made a motion to intervene on the ground that
the Union intends, after negotiation with Respondent, to merge into
Teamsters Local 70. The motion to intervene was granted.
4 None of the parties presented witnesses. Only documentary evi-
dence was presented. The parties waived the filing of posthearing
briefs.
stating that [the Union] asked us to assist them in negotiating a
collective-bargaining agreement with [Respondent]. The secre-
tary-treasurer requested that Respondent begin to negotiate a
collective-bargaining agreement. On August 19, Respondent’s
attorney replied, “It is improper to meet at this time.” With this
letter, Respondent’s attorney enclosed a copy of his June 9
letter stating that Respondent intended to seek judicial review
of the Board’s finding that the drivers were employees and not
independent contractors.
Conclusions
As stated above, Respondent has refused to bargain with the
Union in order to seek judicial review of the Board’s April 30,
2004 Decision and Order and the subsequent certification of rep-
resentative. The independent contractor issue raised by the
Respondent was litigated in the prior representation proceeding.
Furthermore, Respondent did not offer any newly discovered
and previously unavailable evidence, nor does Respondent
allege any special circumstances that would require the Board
to re-examine the decision made in the representation proceed-
ing. Accordingly, the record shows that Respondent failed and
refused to bargain collectively with the exclusive-bargaining
representative of its taxicab drivers in violation of Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act, by failing and refusing on
and after August 19, 2004, to meet and bargain with the Union
as the exclusive collective-bargaining representative of em-
ployees in the appropriate unit.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, I shall recommend that it be ordered
to cease-and-desist, to meet and bargain on request with the
Union, and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the services of
their selected bargaining agent for the period provided by the
law, the Board shall construe the initial period of the certifica-
tion as beginning the date the Respondent begins to bargain in
good faith with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd.
328 F.2d 600 (5th Cir.1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5

5 All motions inconsistent with this recommended order are hereby
denied. In the event no exceptions are filed as provided by Sec. 102.46
of the Board’s Rules and Regulations, the findings, conclusions, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD530
ORDER
Respondent, Friendly Cab Company, Inc., Metro-Taxicab
Company, Inc., California Cab Company, GRKWSS Enter-
prise, Inc., Metro-Yellow Taxicab Company and Greyline Cab
Co., a single employer, Oakland, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain with East Bay
Taxi Drivers Association as the exclusive bargaining represen-
tative of the employees in the bargaining unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, meet and bargain with the Union as the ex-
clusive representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement:
All full-time and regular part-time taxicab drivers employed
by Respondent at its 4849 East 12th Street, Oakland, Califor-
nia facility; excluding all other employees, office clerical em-
ployees, dispatchers, mechanics, guards, and supervisors as
defined in the Act.
(b) Within 14 days after service by the Region, post at its fa-
cilities in Oakland, California, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being signed by
the Respondent's authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings,

recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all. If no exceptions are filed as provided by Sec. 102.46 of
the Board's Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 19,
2004.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain with East Bay Taxi Drivers
Association as the exclusive representative of the employees in
the bargaining unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for our employees in the appropriate bargaining
unit:
All full-time and regular part-time taxicab drivers employed
by Respondent at its 4849 E. 12th Street, Oakland, California
facility; excluding all other employees, office clerical em-
ployees, dispatchers, mechanics, guards, and supervisors as
defined in the Act.
FRIENDLY CAB COMPANY, INC, METRO-TAXICAB
COMPANY, INC., CALIFORNIA CAB COMPANY,
GRKWSS ENTERPRISE, INC., METRO-YELLOW
TAXICAB COMPANY AND GREYLINE CAB CO., A SINGLE
EMPLOYER