Major Cab Company

National Labor Relations Board - Board Decisions

May 8, 1981

255 N.L.R.B. 1383 (N.L.R.B. 1981)

MAJOR CAB COMPANY 1383
Samuel J. Wade, an Individual d/b/a Major Cab
Company and Chauffeurs & Industrial Workers
Local 5 of Seafarers' International Union of
North America, AFL-CIO. Case 14-CA-13257
May 8, 1981
DECISION AND ORDER
On December 4, 1980, Administrative Law
Judge William F. Jacobs issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Samuel J.
Wade, an Individual d/b/a Major Cab Company,
East St. Louis, Illinois, its agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
i We agree with the Administrative Law Judge's conclusion that Re-
spondent violated Sec. 8(a)3) and (1) of the Act by discharging employ-
ees Blue, Floyd, and Davis, as the credited testimony and admissions by
Respondent establish that these employees were discharged because of
their union activities, and Respondent offered no other credible reasons
for the discharges.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
255 NLRB No. 181
To refrain from the exercise of any or all
such activities.
WE WILL NOT interfere with, restrain, or
coerce employees in the exercise of the rights
guaranteed them by Section 7 of the National
Labor Relations Act by threatening or interro-
gating employees because of their union activi-
ties.
WE WILL NOT discourage membership in
Chauffeurs & Industrial Workers Local 5 of
Seafarers' International Union of North Amer-
ica, AFL-CIO, or any other labor organiza-
tion, by discharging or otherwise discriminat-
ing against any person in regard to hire or
tenure of employment or any term or condi-
tion of employment.
WE WILL NOT refuse to recognize and bar-
gain collectively concerning wages, hours, and
other terms and conditions of employment
with the above-named Union as the exclusive
bargaining representative of the employees in
the following unit:
All drivers of taxicabs employed by the Em-
ployer at its East St. Louis, Illinois, facility,
excluding dispatchers, mechanics, office
clerical and professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section
7 of the Act.
WE WILL offer Ottis Blue, Archie Floyd,
Albert Davis, and Harry L. Blue immediate
and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and
make them whole for any loss of earnings they
may have suffered, plus interest.
WE WILL recognize and bargain collectively
and in good faith with the above-named Union
as the exclusive bargaining representative of
the employees in the above-described unit, and
embody in a signed agreement any understand-
ing reached.
SAMUEL J. WADE, AN INDIVIDUAL
D/B/A MAJOR CAB COMPANY
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on January 29, 30, and 31,
1980, in St. Louis, Missouri. The charge was filed on De-
MAJOR CAB COMPANY
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember 7, 1979, and amended on December 17, 1979, by
Chauffeurs & Industrial Workers Local 5 of Seafarers'
International Union of North America, AFL-CIO, here-
inafter called the Union. The complaint was issued on
January 9, 1980, alleging that Samuel J. Wade, an Indi-
vidual, d/b/a Major Cab Company, hereinafter called
Respondent, violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended. More specifi-
cally, the complaint alleges that Respondent violated
Section 8(a)() by threatening and interrogating employ-
ees with regard to their union activity, violated Section
8(a)(1) and (3) by discharging and refusing to reinstate
certain employees because of their union activities, and
violated Section 8(a)(l) and (5) by failing and refusing to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of its employees. Re-
spondent filed an answer' in which it denies the commis-
sion of any unfair labor practices.
All parties were represented 2 at the hearing and were
afforded full opportunity to be heard and to present evi-
dence and argument. Upon the entire record, my obser-
vation of the demeanor of the witnesses, and after giving
due consideration to the briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, Samuel J. Wade, is an individual propri-
etor doing business under the trade name of Major Cab
Company.3 Respondent maintains its principal office in
East St. Louis, Illinois, a cabstand and office, where it is
engaged in the operation of a taxicab business. 4 Whereas
the General Counsel alleges that during the year ending
December 31, 1979, Respondent derived gross revenues
in excess of $500,000 per year, Respondent denies the
truth of this allegation.
The discretionary Board standard applicable to the
taxicab business is the retail standard; namely $500,000. 5
The General Counsel was unable to establish jurisdiction
over Respondent on the basis of this standard through
company records because Respondent did not keep re-
cords. As an alternative method of proving jurisdiction,
the General Counsel called in excess of 20 witnesses 6
who testified concerning the total amount of fares7 col-
I The General Counsel objected to the receipt of Respondent's answer
inasmuch as it was deficient under the National Labor Relations Board
Rules and Regulations, Series 8, as amended, Sec. 102.20. The General
Counsel was correct in so objecting since Respondent's answer did not
specifically address each and every allegation and numbered paragraph in
the complaint. The General Counsel, however, chose not to move to
strike the answer, but rather to request that Respondent be permitted at
the hearing to take the opportunity to respond to each paragraph and al-
legation in the complaint in order to determine if the issues could be nar-
rowed for the sake of efficiency. I find the General Counsel's position
laudable. Subsequently, Respondent admitted a number of nonsubstantive
allegations, saving a great deal of time.
2 Respondent appeared pro se.
I The parties so stipulated at the hearing.
4 See fn. 3, supra.
I Carolina Supplies and Cement Co., 122 NLRB 88 (1958).
The General Counsel subpenaed additional witnesses who did not
appear and there were other employees of Respondent who worked
during the relevant period who neither testified nor were subpenaed.
Gross receipts of all drivers is an appropriate method of determining
whether or not a taxicab company satisfies the Board's discretionary
lected from passengers during the calendar year 1979.
The testimony of these witnesses, all drivers, was not
supported by any records since none of them kept re-
cords. Taking the average weekly gross of each of the
drivers who testified with some degree of certainty, s the
record indicates that Respondent's drivers grossed in
excess of $400 per week in fares. Approximately 229
drivers are engaged at any one particular time in driving
Respondent's cabs so that approximately $8,800 per week
in gross fares are collected by the 22 drivers. Over a
year's time the total fares collected would be $457,600.
The record reveals that Respondent collects from each
cab driver a certain sum in return for the use of the
Company's colors and radio service if the cab is owned
by the driver. This amounts to $325 per month. If the
cab is leased from the Company the driver pays a budget
fee of $17 or $26 depending on the number of hours for
which the cab is leased. Seventeen drivers testified con-
cerning dues or budget payments. By projecting the fig-
ures cited by these witnesses to reflect payments in dues
and budget payments by 22 full-time drivers over a full
year, the total amount paid by drivers to Respondent ap-
pears to be in excess of $80,000. This amount, according
to Board law, may be added to the gross receipts of the
drivers in order to establish jurisdiction over a taxicab
company under the retail standard." Add to the gross
receipts of the drivers and the rental receipts of the
Company the $41,697 which represents income received
by Respondent from the Baltimore and Ohio Railroad
for providing taxi services to it during 1979 and it be-
comes apparent that the Board's discretionary $500,000
retail standard is met. The statutory jurisdictional re-
quirements are met by virtue of Respondent's dealings
with the Baltimore and Ohio Railroad and by the fact
that many of Respondent's drivers travel to St. Louis,
Missouri, to discharge passengers as well as to interstate
bus and train terminals in Illinois.12 In view of these
findings, it is concluded that Respondent is engaged in
commerce within the meaning of the Act. '3
standard. Checker Cab Company and its Members. 141 NLRB 583 (1963),
affd. 367 F.2d 692 (6th Cir. 1966); Supreme. Victory and DeLuxe Cab
Companies, 160 NLRB 140 (1966).
Abraham Anthony, Charles Bell, Harvey Blue, Ottis Blue, L. C.
Coleman, Alonzo Cookley LaGrone, Albert Davis, Andrew Green,
James Hill, Otis Jenkins, George Jim McCray, Sam McGee, Russell
Richards. and Joe Wells.
Samuel Wade testified that between 17 and 22 drivers are so en-
gaged. The dispatchers sheet for January 20, 1980, 7-3 p.m. shift, offered
as representative of a typical day's work, indicates that on that shift alone
there were 17 cabs in use. I will presume that during the other two shifts
there were at the very least five additional cabs in use for that date. The
record indicates that there is a heavy turnover at the Company. Samuel
Wade so testified. I conclude from this evidence that the number of driv-
ers remains fairly constant in order to keep all available cabs in use.
'0 There is no indication that the Company closes down for a vacation
period or that cabs are taken out of service if and when particular drivers
take vacations.
'I Are Cab Company d/b/a Checker Cab Company, 175 NLRB 20
(1969); Brotherhood of Railway, Airline and Steamship Clerks. Freight Han-
dlers. Express and Station Employees, AFL-CIO et al. (Safety Cabs Inc..
and New Deal Cab Company, Inc.), 180 NLRB 126 (1969).
12 Blue Cab Company and Village Cab Company, 156 NLRB 489
(1965), affd. 373 F.2d 661 (D.C. Cir. 1967).
13 Carolina Supplies and Cement Co., supra.
. s A .
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MAJOR CAB COMPANY 1385
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs & Industrial Workers Local 5 of Seafarers'
International Union of North America, AFL-CIO, is a
labor organization within the meaning of the Act.' 4
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background-The independent contractor issue
Respondent, in its answer, denies that any of its driv-
ers are employees, but, on the contrary, takes the posi-
tion that they are independent contractors. But 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. 5 In the instant case the record
indicates that Respondent's drivers pay to the Company
a monthly sum of $325 or a budget of $17 or $26 in
return for use of the cab for a certain number of hours.
Neither an owner-operator nor lessee is permitted to let
another individual drive his cab except with the approval
of Respondent. By the payment of the above sums, driv-
ers are enabled to drive a taxicab, their own, Respond-
ent's, or someone else's, carrying the Company's colors,
name, phone number, address, and a cab number as-
signed for purposes of specific identification. The city of
East St. Louis requires that all cabs operated by Re-
spondent be painted in the same fashion and it is up to
Respondent to enforce the city ordinance. The drivers
have no option in this matter. The payment to Respond-
ent also entitles the drivers to the use of its dispatching
service and to liability insurance16 paid for by Respond-
ent. A driver who intends to put his cab into service is
required to so advise the dispatcher and similarly must
advise Respondent when he goes out of service. 7
Rates are established by the city council of East St.
Louis on a zone basis and Respondent is required to en-
force strict compliance with these regulations, again the
drivers having no option but to comply. Rate sheets are
supplied to the drivers by Respondent with instructions
to abide by the regulations. In addition to the require-
ment that drivers comply with these regulations, drivers
must also abide by a set of work rules distributed to
them by Respondent. The work rules apply equally to all
drivers and are enforced equally by Respondent. Thus,
all drivers are required to wear chauffeurs caps, keep
4 James Matthews, president and business agent for Local 5, credibly
testified that the purpose of his organization was to represent taxi drivers
for collective-bargaining purposes.
15 Association of Independent Taxicab Operators. Inc.. t/a Diamond Cab.
and its Members, 164 NLRB 859 (1967).
iA Accidents are reported to the dispatcher. Supervision handles acci-
dent investigations and reports, and notifies police.
II Drivers are otherwise free to drive whatever hours they choose.
themselves and their cabs clean, and refrain from drink-
ing, smoking, or using narcotics while on duty. Drivers
may not park their cabs within a city block of a tavern
and must have hubcaps on their cabs. Breaches of any of
these rules make the offending driver susceptible to disci-
plinary action up to and including possible discharge.
Cabs are inspected by Respondent's supervisor, Lonnell
Williams. If Williams determines that a cab is unsatisfac-
tory he may order it to be cleaned up and rechecked
before being permitted to go into service.
Where complaints are received from the public con-
cerning the action of a particular driver, that driver is
called in to the stand where the matter is discussed with
him by supervision. The record contains testimony and
indeed Respondent admits to incidents having occurred
wherein drivers were called in to the stand and repri-
manded or disciplined because of complaints from cus-
tomers or other drivers. Drivers can be and, in some
cases, have been reprimanded or disciplined for such vio-
lations of rules as overcharging customers, physically
abusing customers, failing to wear a chauffeurs cap, and
failing to keep cabs clean. Types of discipline range from
a warning for a first offense through 3 days' grounding"'
to discharge for offenses which Respondent considers
particularly serious. The discharges in the instant case
are of course more fully discussed below. Suffice it to
say, at this point, that the record more than adequately
reflects that the relationship between Respondent and its
drivers is one of employer-employee rather than one in-
volving an independent contractor situation. Yellow Cab,
Inc., 179 NLRB 850 (1969). Inasmuch as the parties stip-
ulated that Respondent's drivers all share common terms
and conditions of employment, this relationship extends
to all drivers, owners, and lessees alike.
2. The incidents giving rise to the filing of the
charge and the issuance of the complaint
During the several days prior to December 5, 1979,
employees of Respondent manifested interest in obtaining
union representation, in part because of a desire to obtain
hospitalization insurance, perhaps through a union. On
December 4 drivers Archie Floyd'9 and Nathaniel
Cooper discussed these matters when they met at the
Union Electric Company. When Floyd asked Cooper
what he thought of the the Union2 0 and its insurance
plan, Cooper agreed that both the Union and its insur-
ance plan were all right.
On December 5 at a meeting of the drivers and man-
agement called to discuss various matters, Lonnell Wil-
liams, a supervisor, advised the drivers that he had con-
tacted two insurance brokers to have them talk to the
men about group insurance. Insurance apparently had
been the subject of discussion among the drivers for
8 "Grounding" is the term used to describe a disciplinary measure in-
volving denial to the driver of his right to the use of the dispatching
service while still requiring him to pay the cost of renting the cab. Since
the record indicates that a large proportion of a driver's income is de-
pendent on his access to the dispatching service, denial of this privilege
effectively undermines his income, and continuing to charge him for use
of the cab during this period is considered tantamount to a fine.
19 One of the alleged discriminatees.
20 The Charging Party herein.
MAJOR CAB COMPANY
_
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some time prior thereto. Cooper, at this point, stated,
"We're going to scout around, we got something
better.2 ' We can get insurance to cover us and we only
have to pay S9 per month." Cooper was, of course, re-
ferring to the Union's insurance plan. Ottis Blue, another
driver apparently familiar with the subject matter, com-
mented, "Fellows, that insurance would have to come
through the Union. You can't get that unless you join
the Union." Freddie Wade, Respondent's manager, over-
hearing Blue's remark, said, "You can quit beating your
chops. There will not be no union in this company." He
added that he would close up his business before he
would have a union.22 Lonnell Williams, Respondent's
supervisor, stated that the Company would not discuss
any insurance plan which was affiliated with a union, but
was agreeable to looking into an insurance plan without
unionization.
After the meeting some of the drivers went outside
where the subject of the Union continued to be discussed
by Cooper and others. They asked Ottis Blue if he could
get in contact with a union representative in order to
further look into the matter. Blue assured them that he
could. The drivers told Blue that they felt that they
should meet with the Union as soon as possible. Blue
contacted the Union and spoke with the president of
Local 5, who advised him that, although he could not
meet with Respondent's employees that day, he could do
so the following day. Arrangements were made to meet
at 13th and St. Louis Avenue at noon the following day,
December 6. Blue subsequently advised the other em-
ployees of the scheduled meeting. Meanwhile Union
Business Representative Matthews had the Union's attor-
ney draw up a petition for the drivers to sign at the
forthcoming meeting. During the discussion between
Blue and Matthews there was no mention of insurance.
On December 6 while the drivers were gathering at
the appointed place waiting for the arrival of Matthews,
Freddie Wade stopped by23 and, noticing Floyd, said to
him, "I see you're here messing with Blue in this union
thing again. Blue has already been fired. We're going to
take his radio out tomorrow. You keep messing with me
and you're going to find yourself without a cab to drive
also."24
Shortly thereafter the scheduled meeting took place.
About 17 of Respondent's drivers attended the meeting,
including Archie Floyd, Ottis Blue, and Albert Davis, 3
of the alleged discriminatees. Blue introduced Matthews
whom many of the drivers already knew because they
had been members of Local 5 while working for other
companies. After being introduced, Matthews read the
petition which had been drawn up to the assembled driv-
ers:
21 This statement was attributed to Ottis Blue by Respondent's super-
visor, Lonnell Williams.
2 Par. 5A of the complaint was admitted at the hearing.
2s Wade had been advised of the meeting by the dispatchers.
24 At this time Blue apparently had not been advised of the decision
to terminate him. Wade substantially admitted the gist of this conversa-
tion.
Authorization Petition
The undersigned hereby authorizes Chauffeurs &
Industrial Workers Local 5 Seafarers' International
Union of North America to represent us exclusively
in negotiating with our Employer regarding our
wages, hours and conditions of employment.
Matthews read the petition through three times before
signatures were obtained thereon. Besides reading the
content of the petition to the drivers, Matthews advised
them as to how it was going to be used. He informed
them that the petition would be presented to the Compa-
ny in order to obtain recognition as their representative,
but that, if recognition were denied, the Union would pe-
tition the National Labor Relations Board for an elec-
tion. He also assured those present that the initiation fee
for joining the Union would be waived for all of those in
the bargaining unit. With regard to the Union's health
and welfare plan Matthews stated that anyone who came
into the Union, working in a shop covered by a contract,
would be covered by the plan. 2 5 Seventeen of those
present signed the petition in Matthews' presence. After
the 1728 signed the petition, Matthews gave it to Ottis
Blue to obtain additional signatures with instructions to
read the petition to each driver and to explain what it
was before obtaining their signatures on it.
After the meeting closed, Ottis Blue took the petition
to get additional signatures. He saw driver Wade Bu-
chanan at the corner of 19th and Bonn. He pulled him
over, gave him the petition, and told him to read it. Bu-
chanan then signed the document and returned it to
Blue. Blue then proceeded to 18th and Broadway to a
restaurant where he found driver James Hill. Blue told
Hill to read the petition, that Blue wanted to make sure
Hill really understood what he was signing. Hill did as
requested and then signed the document in the presence
of both Blue and Archie Floyd. Later, Ottis Blue pre-
sented the petition to his brother, Lundy Blue, and told
him, "Sign this for the Union." Lundy agreed to sign the
document and did so. Still later Floyd and Ottis Blue at-
tempted to get other employees to sign the petition but
without success. 2 7
Sometime during the afternoon of December 6, after
Ottis Blue had just dropped off a passenger, he received
a call on the radio from the dispatcher ordering him
back to the stand. When he arrived, Samuel Wade asked
Blue why he was calling meetings and pulling cabs off
the street. He told Blue that all meetings should be at the
cabstand. Blue replied that the meeting was called in
order to get a union. Wade asked, "How are you going
to get a union? Nobody has asked me about a union.
How can anyone put a union in here without my con-
sent?" Blue said, "We don't need your consent. We are
a2 This statement may have been in reply to a question concerning
whether the drivers could obtain the Union's health and welfare cover-
age without actually joining the Union. Matthews replied that this could
not be done and offered the cited explanation.
z6 Drivers Otis Jenkins' and Samuel McGee's description of what was
said at this meeting differs in certain respects from that contained in the
testimony of other witnesses. Where their testimony differs from that of
other witnesses, it is not credited.
27 L. C. Coleman so testified.
MAJOR CAB COMPANY 1387
going to get a petition and the majority is going to rule."
Wade asked Blue, "If there's two cab companies in town,
one has a union and one doesn't, why don't you go over
to American Lease, they have got a union over there. I
don't want a union over here. All of my people, as far as
I know, don't want a union." Blue said, "We want a
union because a union has insurance." Wade replied,
"You don't need a union to have insurance. They are
two different things. You pay union dues, that's one
thing. Insurance is something else. I have brought two
different companies in here with their plans for group in-
surance. Group insurance is fine. We all need group in-
surance; we don't need no union. The same company
that has insurance for the cabs also has group insurance.
Their rates are not high. And there is another company
that also offers group insurance. I have a responsibility
to help keep these cabs running. I have a responsibility
to these people. I have a responsibility to our customers
and to the city. And if you are going to be calling cabs
off the street, I would rather for you to take your cab off
the stand and I'll pay you whatever you have coming,
and you can go your way and I can go mine."2 8 Some-
time during this conversation, it is admitted, 29 Wade told
Blue that he would close the business down before he
would have a union in his cab company.
About 7 or 7:30 p.m. on the evening of December 6
Ottis Blue was riding with Floyd in Floyd's cab when
Floyd said that he would like to talk with Williams. He
contacted the stand and requested Williams to remain at
the stand until he could get there. When he arrived he
asked to speak with Williams in private. Williams agreed
and he, Blue, and Floyd went out to Floyd's car where
they engaged in a discussion during which Floyd asked
Williams why he was so much against the Union. Wil-
liams replied that he was not against the Union but that
"Mr. Wade owns the cab company and he's against the
union." He went on to say that the Company would not
have a union and would not discuss possible benefits in-
volving unionization.3 0 At this point in time, Freddie
Wade came up and tapped on the window on the driv-
er's side of the car and motioned Floyd to roll down the
window. When Floyd did so, Wade said, "I see you're
messing with Blue again and that damn union. You're
fired right now. Give me your keys." Floyd replied,
"No, I'm not giving you my keys because I paid my
budget for the day." Wade asked them whether or not
they had started the union activities.31 Both denied the
accusation. Nevertheless, Wade stated, "I told you guys
there will be no union, there just won't be no union ...
In the morning we'll pull your radio out of your car [ap-
parently addressing Blue], because you're starting a lot of
stuff that oughtn't to be." Then directing himself to
28 This portion of the conversation appears as read into the record
from Samuel Wade's sworn affidavit which he admitted at the hearing to
be a true reflection of what was said. Blue testified only that Wade stated
that he would like Blue to take his cab off the stand and, when Blue
asked him why, Wade replied, "Because you're the instigator of the
Union." I credit both but find either version is violative in itself
29 Samuel Wade admitted under cross-examination that he made this
statement.
30 Admitted at the hearing by stipulation.
'3 This interrogation was admitted during cross-examination of Fred-
die Wade by counsel for the General Counsel.
Floyd, Wade said, "And Archie Floyd, you're right with
him." At this time Williams got out of the cab, walked
around, and took Wade by the arm, and, as they walked
toward another cab, Floyd drove off.
On December 7, between 9:30 and 10:30 a.m., James
Matthews visited Samuel Wade's office. There, in the
presence of Lonnell Williams, Freddie Wade, Ottis Blue,
Archie Floyd, and Albert Davis, Matthews told Wade
that he had a petition and represented a majority of his
drivers. He asked Wade for authorization to represent
the employees. Wade replied, "I don't care if you've got
a hundred per cent, there won't be a union.3 2 I'm not
going to join the union. There will be no union here. I
don't want no union." After Matthews tried to explain to
Wade that he was not asking Wade to join the union, but
that the employees had authorized him, Matthews, to
represent them, and that it was the employees who were
joining the union, Wade stated, "There won't be no
union here. I am not going to have a union, I will close
this shop down before I have a union." 3 3 At this point
Matthews merely thanked Wade, and then left.
As they were leaving, Freddie Wade asked Blue
where his car was. Blue replied that it was on the corner
of 13th and St. Louis Avenue. Wade then stated, "Bring
it to the stand. I want to take the radio out." Blue did as
he was told. When he returned to the cabstand he was
met by Samuel Wade. He explained to the owner that
Freddie had told him to bring his car to the stand so that
he could take out his radio. Samuel Wade replied simply,
"That's right." Blue asked, "What, you're firing me off
the stand?" Wade replied, "That's right, you're the insti-
gator of the Union." He added, directing his remark at
Floyd who was also present, "That goes for you too."
While this conversation was going on, Freddie Wade
was taking out Blue's radio. When Floyd was told that
he too was being fired, he went to the cab which he had
been driving for Wade, removed his personal effects, and
gave the keys to Freddie Wade.
Also on December 7, presumably before they were
fired, Lonnell Williams engaged Ottis Blue and Archie
Floyd in a conversation during which he accused them
of being instigators and told them that the Company did
not need instigators. Since Williams admitted on the
stand that he knew that both Blue and Floyd were in-
volved with the Union, I must conclude that, by accus-
ing them of instigating, Williams was referring to their
union activity.3 4
On the afternoon of December 7 Albert Davis re-
ceived a call to come to the stand. When he arrived at
the stand he found Samuel and Freddie Wade and Lon-
nell Williams waiting for him. They asked him who had
gotten the Union started. Davis replied that he did not
know, and that all of the employees who had signed the
petition wanted the Union. Freddie Wade stated that
Davis was fired from Major Cab Company, and that
3' According to Lonnell Williams' testimony.
33 The conversation appears as credibly testified to by James Mat-
thews as supported by the testimony of Ottis Blue. Albert Davis. and. in
part, Freddie Wade and Lonnell Williams.
34 In an affidavit which Williams furnished to the National Labor Re-
lations Board he used the phrase "union instigators" in connection with
the termination of Blue, Floyd, and Davis.
M AJO R C A B C O M P A N Y 1387~~~~~~~~~~~~~~~~~~~~~~~~~~~~
-_ .........
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"there would be no union at Major Cab Company." Wil-
liams accused Davis of being an instigator and stated, "I
don't feel that the company needs an instigator, so as of
now you are no longer employed with Major Cab."
Davis again denied complicity, whereupon Freddie
Wade accused Davis of having flagged his drivers over
in order to talk to them about the Union. He asked him
why he was stopping his cabs. Davis explained that he
had always talked to the drivers. 3 5 Samuel Wade then
said that maybe they should give Davis one more
chance. He sent Davis back to work.
Ten minutes after being sent back on the street to
work Davis was recalled to the stand. Freddie Wade and
Lonnell Williams were there. They told him that he was
no longer with the Major Cab Company, to take his cab
back to the owner and not to put his foot back on the
premises. Davis left.
During the hearing stipulations were received to the
effect that:
During the week of December 10, 1979, on a spe-
cific date unknown to the Regional Director, Super-
visor Lonnell Williams told an employee that Re-
spondent would close his business before he allowed
employees to have a union represent them.
On various occasions during the week of Decem-
ber 10, 1979, on specific dates unknown to the Re-
gional Director, both in person at Respondent's cab
stand and office and by telephone, Respondent
owner Samuel J. Wade interrogated various em-
ployees about their union activities and sympathies.
B. Analysis and Conclusions
1. The 8(a)(l) violations
Evidence and stipulations in the record indicate that
Respondent interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in
Section 7 of the Act by the following acts and conduct:
The statement of Freddie Wade on or about December
5, 1979, that there would be no union at the Company
and that he would close up his business before he would
have a union.
The statement of Freddie Wade on or about December
6, 1979, made at the intersection of 13th Street and St.
Louis Avenue and directed to employee Archie Floyd,
"I see you're here messing with Blue in this union thing
again. Blue has already been fired. We're going to take
his radio out tomorrow. You keep messing with me and
you're going to find yourself without a cab to drive
also."
The statement of Samuel Wade on or about December
6, 1979, made to Ottis Blue, that he would close the busi-
ness down before he would have a union in his cab com-
pany.
The statement of Lonnell Williams on or about De-
cember 6, 1979, made to Ottis Blue and Archie Floyd,
that the Company would not have a union and would
not discuss possible benefits involving unionization.
"a Davis had in fact stopped drivers George LaGrone and Joe Wells.
Ottis Blue had stopped certain drivers to ask them if they were in favor
of the Union.
The statement of Freddie Wade on or about December
6, 1979, made to Archie Floyd in Ottis Blue's presence,
"I see you're messing with Blue again and that damn
union. You're fired right now. Give me your keys."
The interrogation of Ottis Blue and Archie Floyd by
Freddie Wade on or about December 6, 1979, wherein
Wade asked these employees whether or not they had
started the union activities.
The statement of Freddie Wade on or about December
6, 1979, wherein he threatened to take Blue's radio out of
his cab because of his union activity and suggested to
Floyd that action might also be taken against him.
The statement of Samuel Wade on or about December
7, 1979, made in the presence of certain of his employ-
ees, that he did not care if the Union had a hundred per-
cent, there would not be a union, and he would close the
shop down before he would have a union.
The statement of Samuel Wade on or about December
7, 1979, in telling Ottis Blue and Archie Floyd that they
were being fired because they were "instigators of the
Union."
The statement of Lonnell Williams on or about De-
cember 7, 1979, to Ottis Blue and Archie Floyd in which
he accused them of being union instigators and told them
that the Company did not need instigators.
The interrogation on or about December 7, 1979, by
Samuel Wade, Freddie Wade, and Lonnell Williams of
Albert Davis concerning who had gotten the Union
started.
The statement of Freddie Wade on or about December
7, 1979, to Albert Davis that he was fired from Major
Cab Company, and that there would be no union at
Major Cab Company.
The statement of Lonnell Williams on or about De-
cember 7, 1979, to Albert Davis wherein he accused
Davis of being an instigator and stated that he did not
feel that the Company needed an instigator and that as of
then Davis was no longer employed with Major Cab
Company.
The statement of Freddie Wade on or about December
7, 1979, wherein he accused Albert Davis of having
flagged down other drivers in order to talk to them
about the Union.
The statement of Lonnell Williams made during the
week of December 10, 1979, to an employee that Re-
spondent would close his business before he allowed em-
ployees to have a union represent them.
The interrogation by Samuel Wade during the week of
December 10, 1979, of various employees about their
union activities and sympathies.
2. The 8(a)(3) violations
a. Ottis Blue
The record indicates that Ottis Blue was active on
behalf of the Union. On December 5 he spoke to the em-
ployees in favor of joining the Union in order to obtain
the benefits of the Union's insurance plan. His remarks
were overheard by Freddie Wade who stated that he
would close up his business before he would have a
union. Thus, it is evident that early in the campaign Blue
MAJOR CAB COMPANY 1389
was active on behalf of the Union, his sympathies were
well known to Respondent, and the latter did nothing to
disguise its animus toward the Union.
Thereafter, Blue, upon request of the other employees,
acted as a go-between, contacting the Union and arrang-
ing for a meeting with the Union's business agent. Subse-
quently, Blue took the responsibility of advising the
other drivers of the scheduled meeting. When Respond-
ent's manager heard about the meeting, he visited the site
while the drivers were still awaiting the arrival of the
Union's representative. Noticing Floyd, he made the
statement to him, "I see you're here messing with Blue in
this Union thing again. Blue has already been fired.
We're going to take his radio out tomorrow. You keep
messing with me and you're going to find yourself with-
out a cab to drive also." Thus, this incident reveals not
only continued union activity on the part of Blue and
knowledge of his union activity on the part of Respond-
ent but a decision already having been made by Re-
spondent to terminate him because of his involvement in
the union campaign.
At the union meeting, after the petition was signed by
those present, it was given to Blue to obtain additional
signatures. Blue succeeded in getting three more drivers
to sign the petition, one by having a driver pull over in
order to solicit his signature. Thus, Blue continued the
organizing campaign which the record clearly indicates
came to the attention of management. That afternoon
Blue was called back to the stand where Samuel Wade
complained about Blue's calling the meeting and pulling
cabs off the street. Blue openly admitted that the meeting
was called in order to get a union to represent the driv-
ers. An argument then took place during which Wade
rejected the idea of having a union at his cab company
and threatened to close the business before allowing one
to represent his drivers. Blue just as vociferously backed
his position, stating that whether or not a union repre-
sented the employees was a matter for the employees
themselves to decide. Thus, the two antagonists stood
their ground firmly and the argument concluded with
Wade stating that he would rather Blue take his cab off
the stand adding, "I'll pay you whatever you have
coming, and you can go your way and I can go mine."
Thus, the discussion highlights the antagonism between
Wade and Blue based entirely on their antiunion and
prounion positions. Wade's animosity was in no way dis-
guised.
Later in the evening when Freddie Wade discovered
Blue and Floyd together sitting in Floyd's car, he said,
"I see you're messing with Blue again and that damn
union. You're fired right now. Give me your keys."
Thus, Wade, by this statement, clearly indicated that in
his eyes Blue and the Union were practically synony-
mous. He told Blue that in the morning he would pull
the radio out of his car. Wade left no doubt that the
threat was in retaliation for Blue's activity, support, and
sympathy for the Union and its organizing campaign.
The following day when Matthews visited Respondent
and presented the petition and asked for recognition, he
was accompanied by Blue, Floyd, and Davis. It had to
be obvious to Wade that the meeting organized by Blue
and his activity of the previous day had resulted in the
signing of the petition by the drivers and that his pres-
ence there with Matthews was evidence that he was still
firmly resolved to maintain his position in favor of the
Union and against Respondent. Once again Wade reject-
ed the Union and the principle of representation and reit-
erated that he would close the shop before permitting a
union to represent his employees. Since Blue, by his very
presence at the side of Matthews and by his previous
statements in support of unionization, had clearly taken a
position diametrically opposed to Respondent's position,
Freddie Wade took immediate action. He ordered Blue
to bring in his cab so that the radio could be removed.
When Blue returned, Samuel Wade, leaving absolutely
no doubt as to the reason for his discharge, told Blue
that he was being fired because he was "the instigator
for the Union." He added, directing his remark at Floyd,
"That goes for you too." Blue's radio was at that time
removed from his cab by Freddie Wade, thus effectively
terminating his employment. I find the evidence over-
whelming that Blue was terminated because of his activi-
ties on behalf of the Union and that his discharge was in
violation of Section 8(a)(1) and (3) of the Act.
b. Archie Floyd
Floyd was among the first of Respondent's employees
to discuss with other employees the possibility of obtain-
ing insurance through the Union. When Blue scheduled
the December 6 union meeting with Matthews, Floyd
was not only there but was Freddie Wade's target when
he came by to see what was happening. Pointedly, as
noted above, Wade said to Floyd, "I see you're here
messing with Blue in this union thing again. Blue has al-
ready been fired. We're going to take his radio out to-
morrow. You keep messing with me and you're going to
find yourself without a cab to drive also." Thus, Wade
not only announced that he knew of Blue's involvement
with the Union, was dissatisfied with that involvement,
and had decided to discharge Blue because of his in-
volvement, but also made known the fact that Respond-
ent was aware of Floyd's complicity in Blue's union ac-
tivity and would terminate him as well, unless he
mended his ways.
Despite Wade's warning, Floyd remained at the union
meeting and was the first to sign the petition when circu-
lated at the meeting. When Blue took the petition from
Matthews after the meeting to circulate it further among
drivers who had not been present, Floyd accompanied
Blue on his organizing campaign and was present when
the document was presented for signature to other driv-
ers. Similarly, when Blue was called back to the cab-
stand to be confronted by Wade with the fact that he
had been "pulling cabs off the street" to solicit for the
Union, Respondent's knowledge of Floyd's participation
in the same activity may fairly be inferred since Blue and
Floyd had been engaged in this activity riding around to-
gether.
Despite Freddie Wade's warning to Floyd about
"messing around with Blue in this union thing," Blue and
Floyd continued to ride around together and while doing
so on the evening of December 6, Floyd decided to
return to the cabstand to talk to Williams. When he did
MAJOR CAB COMPANY 89
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so, in the company of Blue, he asked Williams why he
was so much against the Union. By his mere question he
clearly indicated his support thereof. While Williams was
explaining to both Blue and Floyd that he personally
was not against the Union but that Wade, who owned
the Company, was against the Union and, by implication,
against its supporters, i.e., Blue and Floyd, Wade came
up and said to Floyd, "I see you're messing with Blue
again and that damn union. You're fired right now. Give
me your keys." Thus, it is apparent that after having de-
cided to terminate Blue because of his activities on
behalf of the Union, Wade, preceiving that Blue and
Floyd were firmly allied in the organizing campaign, an-
nounced his decision to discharge Floyd for the same
reason he had already decided to terminate Blue.
As noted above, when Matthews visited the cabstand
on the morning of December 7 to demand recognition,
Floyd was there along with Blue and Davis to indicate
where their support lay. When, after the meeting, Blue
was directed to bring in his cab to have his radio re-
moved, and thereafter did so, and was told that he was
being fired because he was an instigator for the Union,
Wade pointedly remarked to Floyd, "That goes for you
too." Thus, Floyd was told point blank that he, like
Blue, was being terminated because he was an instigator
for the Union. And so he was. I find, therefore, that
Floyd, like Blue, was terminated in violation of Section
8(a)(1) and (3) of the Act because of his union activities.
c. Albert Davis
Albert Davis attended the union meeting on December
6 at 13th Street and St. Louis Avenue and signed the pe-
tition distributed at the time by Matthews. When Mat-
thews presented the petition to Samual Wade he was ac-
companied at the time by Davis along with Blue and
Floyd.
That afternoon Davis received a call to come to the
stand where he was interrogated by both Wade and Wil-
liams as to who had gotten the union started. Why Davis
should have been chosen for interrogation is not evident
from the record except that he was in the company of
Matthews, Blue, and Floyd that morning when recogni-
tion was demanded. When Davis replied that he did not
know who had started the Union, and that all of the em-
ployees who had signed the petition wanted the Union,
Freddie Wade, apparently dissatisfied with Davis'
answer, stated that Davis was fired from Major Cab
Company, that there would no union at Major Cab Com-
pany. Williams' accusation that Davis was an instigator
and statement that he did not feel that the Company
needed an instigator, followed by his immediate termina-
tion of Davis, clearly indicate that Davis was terminated
because of Respondent's conclusion that Davis, like Blue
and Floyd, who were terminated earlier in the day, was
involved with the Union. Wade specifically asked Davis
why he had been flagging other drivers over and talking
to them about the Union. When Davis replied that he
had always talked to the other drivers, Samuel Wade de-
cided to give him another chance. However, 10 minutes
later he was called back to the cabstand and summarily
discharged. I conclude from the context of the entire se-
quence of events that Davis was terminated because of
his activity on behalf of the Union in violation of Section
8(a)(1) and (3) of the Act.
d. Harvey L. Blue
Harvey Blue was employed as a cabdriver by Re-
spondent up until December 1979, off and on, for about
a year. The arrangement which he had with Respondent
was one whereby he would drive a 12-hour shift for a
budget fee of $17 per night. The cab he drove belonged
to his father, Ottis Blue.
When the Union's organizational campaign began,
Harvey Blue was active on its behalf. He attended the
union meeting on December 6 and signed the petition at
that time.
When Freddie Wade removed the radio from Ottis
Blue's cab, in effect terminating him, he also deprived
Harvey Blue of his means of earning a livelihood, thus,
in effect, terminating him also since Harvey Blue no
longer had a cab to drive.
It would not appear that Harvey Blue was terminated
because of his own participation in the union organiza-
tional campaign. Respondent may or may not have
known of his role therein. Rather, it seems quite appar-
ent that, when Respondent removed the radio from his
father's cab for the sole purpose of terminating Ottis
Blue, thereby retaliating against Ottis Blue for organizing
for the union with the deliberate intention of undermin-
ing the union campaign, Harvey Blue suffered the same
fate as his father. Respondent was fully aware at the time
that Harvey Blue's job was dependent on his father's cab
along with the radio service supplied by Respondent.
Therefore, when Respondent removed the radio from
that cab, it necessarily must have foreseen the conse-
quences of its discriminatory act. It is therefore responsi-
ble for such foreseeable consequences. Since the discri-
minatorily motivated act which resulted in the termina-
tion of Ottis Blue resulted likewise in the termination of
Harvey Blue, the latter's termination is in violation of
Section 8(a)(l) and (3) of the Act as well.3 Cf. Seligman
& Associates, Inc., and its Wholly Owned Division, Scott
Management Company, 240 NLRB 110 (1979).
e. Defenses
Respondent contends that the dischargees were termi-
nated, in part, because they were stopping other cabdriv-
ers, thus interfering with business.3 7 However, there is
no evidence that there was any rule, written or other-
wise, which forbade one driver from signaling another to
stop, and then engaging him in conversation about the
weather, sports, personal matters, or whatever. Thus, if
Respondent truly had any objection to the discriminatees
36 The record reveals that Harvey Blue later in December drove for
Major Cab Company by using his uncle's cab with the apparent acquies-
cence of Respondent. The question of whether or not Harvey Blue could
have made other arrangements with Respondent to drive a Major Cab
Company cab is irrelevant to the question of the violation. That issue
would more properly be addressed in a backpay procedure to determine
to what extent Harvey Blue ameliorated the effects of the discriminatory
discharge.
37 Respondent's allegations that the discriminatees were scaring passen-
gers is rejected for lack of documentation or other substantiating evi-
dence.
MAJOR CAB COMPANY 1391
stopping other drivers, it is patently clear that the objec-
tion was not to the fact that one driver stopped another
to engage him in conversation but rather to the fact that
they were soliciting for the Union. This conclusion is
based both on the absence of any rule against such con-
tact between drivers as well as the blatantly demonstrat-
ed union animus reflected in the record by the numerous
instances of 8(a)(X) conduct on the part of Respondent's
officers.
Moreover, Ottis Blue denied that he, Floyd, and Davis
stopped any cabs prior to his being fired, and asserted
that it was after he was terminated that the three discri-
minatees began to pull cabs over in order to advise the
other drivers of their discharges and to request that they
attend a meeting to be held the evening of December 7
to discuss the matter. Although Williams testified that
Davis was fired for riding around with Ottis Blue and
Archie Floyd, and stopping other drivers, threatening
them, asking them to sign a petition, and telling them not
to pick up passengers, and that all of this was going on
before the discharges, the record does not support Wil-
liams' testimony. On the contrary, the record clearly in-
dicates that all, or nearly all, incidents
3s wherein cabs
were stopped occurred after the termination of Blue and
Floyd, and before the termination of Davis, when drivers
were advised of the earlier terminations, of a forthcom-
ing meeting39 called to discuss the terminations, and of
the continuing union organizing effort. Consequently,
since the incidents wherein drivers were flagged down
by Blue, Floyd, and Davis occurred after the discharge
of Blue and Floyd the flagging incidents 4 could not
have been the reason for the discharge of the first two.
And even if Davis' discharge was based on his flagging
down drivers to get them to attend the specifically called
meeting, as it might appear, his efforts were protected
since they were in response to Respondent's earlier
unfair labor practices; i.e., the terminations of Blue and
Floyd.
Aside from the complaint that the discriminatees were
flagging down other drivers, Respondent proffered cer-
tain other reasons as defenses for the discharges of Blue,
Floyd, and Davis. Thus, all three, it was stated, were the
subjects of customer complaints over the previous sever-
al years. L. C. Coleman, admitted by Respondent at the
3s The solicitation of Wade Buchanan's signature on the union petition
may have been an exception.
a9 Although Carol Johnson, the dispatcher, testified extensively on the
subject of the flagging incidents and their supposed effect on other driv-
ers and on passengers, I find her testimony of little value. It was vague,
lacked specificity, and was virtually unsupported. It is clear from the
total context of her testimony, however, that, contrary to Respondent's
position, the flagging incidents which she described would had to have
occurred after the terminations of Blue and Floyd, and I so find. The
various dates she assigned to the incidents, though, are clearly in error,
the events necessarily occurring later than she stated.
'0 The record does not indicate, as Respondent appears to contend,
that when Davis was flagging down cabs he was trying to instigate a
general strike. Rather, it would appear that Davis was merely attempting
to organize a meeting of the drivers at which the discharges could be
discussed. Evidence in the record indicates that some drivers stopped
working in the late afternoon on December 7, that the meeting was
scheduled for 6 o'clock that evening, and that the drivers returned to
work about 7:45 or 8 p.m. Thus, it would appear that the work stoppage
was a temporary one called for a specific purpose and not a full strike as
intimated by certain of Respondent's witnesses.
hearing to be one of its supervisors, testified that Ottis
Blue had on one occasion failed to pick up a passenger
though he had been scheduled to do so and had said on
another occasion that he would not haul senior citizens
for S1 as required by an East St. Louis ordinance. Carol
Johnson, the dispatcher, testified that Blue had on an-
other occasion overcharged a passenger, while Freddie
Wade testified that Blue had caused problems with city
hall and had on one occasion had "physical contact"
with a passenger for which he had been grounded 3 days
as discipline for the offense. Floyd, in his testimony, ad-
mitted to having put a passenger out of his cab when the
passenger pulled a knife on him and having on one occa-
sion been called into the stand for overcharging a passen-
ger. No particulars were offered to substantiate the alle-
gation concerning customer complaints against Davis.
I reject Respondent's contention that these customer
complaints were the basis for its decision to terminate
Blue, Floyd, and Davis. The incidents occurred long
before the discharges of the discriminatees, they were
never told that such incidents would be grounds for dis-
charge, and the incidents were not even mentioned at the
time of their discharges. The incidents were clearly after-
thoughts and not even considerations in Respondent's de-
cision to terminate the three employees.
In an affidavit supplied to the Board, Lonnie Williams,
Respondent's supervisor and the individual who admitted
personally having fired Davis, stated:
In my view, Ottis Blue, Archie Floyd and Albert
Davis were the Union instigators, and it is because
they was the union instigators that they got fired.
Williams at the hearing admitted that what was con-
tained in the affidavit was true. Then later he denied that
it was true and attempted to explain:
A. No its not true. That [the union activity] led
up to that part of it but they should have been fired
a long time ago. That just topped it off.
JUDGE JACOBS: What you're saying is the fact
that they joined the union or instigated the union,
that was one of several reasons.
THE WITNESS: One of several reasons.
Thus, Williams admitted that the three discriminatees
were, at least in part, terminated for instigating on behalf
of the Union, and that is good enough for me. Respond-
ent violated Section 8(a)(l) and (3) of the Act by termi-
nating Ottis Blue, Archie Floyd, and Albert Davis.
f. Recall of the dischargees
The General Counsel alleged that Respondent failed
and refused to reinstate Ottis Blue, Harvey Blue, Archie
Floyd, and Albert Davis to their former positions of em-
ployment. The record reflects that Respondent made no
offer to reinstate any of the discriminatees to their
former positions after their discharges, and I find that it
did not do so.
MAJOR CAB COMPANY 1391~~~~~~~~:'^
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The 8(a)(5) violations
a. The appropriate unit
The General Counsel alleges in the complaint that the
following employees of Respondent constitute an appro-
priate unit for purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All drivers of taxicabs employed by the Employer
at its East St. Louis, Illinois, facility, excluding dis-
patchers, mechanics, office clerical and professional
employees, guards and supervisors as defined in the
Act.
Respondent answered that the drivers are independent
contractors. I have, however, rejected this contention in
this Decision and have found the drivers to be employ-
ees, supra.
During the hearing the parties entered into the follow-
ing stipulations:
The drivers of the Major Cab Company all share
the common terms and conditions of employment,
such as the same supervision, the same duties, the
same work rules, that they are compensated in the
same fashion, that they charge the same fares,
which fares are established by the City of East St.
Louis and are enforced by the Major Cab Compa-
ny.
That the Major Cab Company carries liability in-
surance for the cabs, that Major Cab Company han-
dles all traffic accident investigations and reports.
That Major Cab Company enforces work rules, that
the Major Cab Company enforces the city require-
ments that all cabs be painted in the same fashion,
that Major Cab Company provides dispatching
service for all drivers.
That Major Cab Company counsels drivers about
customer complaints. That Major Cab Company
disciplines drivers for violations of the work rules.
And that Major Cab Company calls drivers' meet-
ings for the purpose of discussing Major Cab Com-
pany operations.
Under similar circumstances, a unit of taxicab drivers has
been found by the Board to be appropriate (Mound City
Yellow Cab Company, 132 NLRB 484 (1961)), and I find
the unit herein described also appropriate.
b. The Union's representative status
The General Counsel alleges that on December 6,
1979, a majority of the employees of Respondent, in the
appropriate unit previously described, designated and se-
lected the Union as their representative for purposes of
collective bargaining. In support of this allegation the
General Counsel subpenaed what few records Respond-
ent kept and had read into the record the names of ap-
proximately 20 individuals whom Respondent's manager
or owner agreed on the record were driving for Re-
spondent as of December 6. Comparing this list of em-
ployees to the names of the drivers appearing on the pe-
tition designating the Union as their representative, it is
clear that as of December 6, 1979, the Union did, as al-
leged, represent a majority of Respondent's employees
for purposes of collective bargaining, and I so find.
The language on the petition,4 ' which was read to the
signers three times by Matthews and which was read by
most of the signers themselves, is clear and unambiguous.
The fact that some of the drivers authorized the Union
to represent them in order to take advantage of the
Union's insurance plan in no way detracts from or under-
mines the authorization itself. Moreover, I find that Mat-
thews' offer to have the initiation fee of all people in the
bargaining unit waived had no deleterious effect on the
authorization plainly made by the individuals involved.
The Union was, as of December 6, the exclusive collec-
tive-bargaining representative of the employees in the
above-described appropriate unit and remained so there-
after.
c. The refusal to bargain
The record reflects that on December 7 Union Busi-
ness Representative James Matthews visited Respondent
and requested Respondent to recognize the Union as the
exclusive collective-bargaining representative of Re-
spondent's employees in the appropriate unit described
above, and to bargain collectively with it as the exclu-
sive collective-bargaining representative of said employ-
ees with respect to their rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment. Respondent on that day refused to recognize the
Union and likewise refused to bargain with it. Rather,
Respondent undertook immediately a campaign consist-
ing of the above-described conduct violative of Section
8(a)(l) and (3) of the Act. The Board has held that,
where an employer refuses to recognize and bargain with
a union as the duly designated majority representative of
its employees while simultaneously engaging in unfair
labor practices which serve to undermine the union's ma-
jority status, the employer is in violation of Section
8(a)(1) and (5) of the Act.4 2 Since the record reflects
that this is precisely what occurred in the instant case, I
find that Respondent has, as charged, violated Section
8(a)(l) and (5) of the Act.
I also find that Respondent's unfair labor practices
were so pervasive as to tend to undermine the majority
status of the Union, thus impeding the election process
by rendering a free choice therein improbable. 43 Under
similar circumstances, where a union's majority has been
established and the nature and extent of an employer's
unfair labor practices have made the holding of a free
election improbable, the Board has found a bargaining
order appropriate. 44 I find that proper effectuation of
the National Labor Relations Act requires a bargaining
order in the instant case.
41 Quoted verbatim, supra.
42 Trading Port. Inc., 219 NLRB 298 (1975).
4 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
44 Ibid.
MAJOR CAB COMPANY 1393
CONCLUSIONS OF LAW
1. Samuel J. Wade, an Individual d/b/a Major Cab
Company, is an employer engaged in commerce and in
an industry affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening to close up the business before per-
mitting a union to represent the employees, stating that it
had already fired one union adherent and threatening to
fire another if he continued to engage in union activities,
stating that it would not have a union and would not dis-
cuss possible union benefits involving unionization, tell-
ing an employee that he was fired because he had been
fraternizing with union adherents and engaging in union
activity, interrogating employees concerning their union
activities, threatening employees that it would remove
the radios from their cabs because they had engaged in
union activities, telling employees that they were being
fired because they were "instigators of the Union," and
forbidding employees to discuss union matters with other
employees, Respondent has violated Section 8(a)(1) of
the Act.
4. By discharging Ottis Blue, Archie Floyd, and
Albert Davis because they engaged in union activities
and by effecting the termination of Harvey L. Blue be-
cause of the union activities of his father, Ottis Blue, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. All drivers of taxicabs employed by Respondent at
its East St. Louis, Illinois, facility, excluding dispatchers,
mechanics, office clerical and professional employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
6. Since December 6, 1979, a majority of the employ-
ees of Respondent in the aforesaid appropriate unit has
designated or selected the Union as its representative for
purposes of collective bargaining.
7. By refusing to recognize and bargain with the
Union as the exclusive bargaining representative of the
employees in the aforesaid appropriate unit, Respondent
has violated Section 8(a)(1) and (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Ottis Blue, Archie Floyd, Albert
Davis, and Harvey L. Blue were discriminatorily dis-
charged, I shall recommend that Respondent be required
to offer them full and immediate reinstatement, with
backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (19 77 ).
4 5
Having also found that Respondent refused to recog-
nize and bargain with the Union in violation of Section
8(a)(5), I shall recommend that it be required to bargain,
upon request, with the Union, and to embody any under-
standing reached into a signed agreement.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 4 6
The Respondent, Samuel Wade, an Individual d/b/a
Major Cab Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening to close up the business before permit-
ting a union to represent the employees, stating that it
had already fired one union adherent and threatening to
fire another if he continued to engage in union activities,
stating that it would not have a union and would not dis-
cuss possible union benefits involving unionization, tell-
ing an employee that he was fired because he had been
fraternizing with union adherents and engaging in union
activity, interrogating employees concerning their union
activities, threatening employees that it would remove
the radios from their cabs because they had engaged in
union activities, telling employees that they were being
fired because they were "instigators of the Union," and
forbidding employees to discuss union matters with other
employees.
(b) Discouraging membership in Chauffeurs & Indus-
trial Workers Local 5 of Seafarers' International Union
of North America, AFL-CIO, or any other labor organi-
zation, by discharging or otherwise discriminating
against any person in regard to hire or tenure of employ-
ment or any term or condition of employment.
(c) Refusing to recognize and bargain collectively con-
cerning wages, hours, and other terms and conditions of
employment with the above-named Union as the exclu-
sive bargaining representative of the employees in the
following appropriate unit:
All drivers of taxicabs employed by the Employer
at its East St. Louis, Illinois, facility, excluding dis-
patchers, mechanics, office clerical and professional
employees, guards and supervisors as defined in the
Act.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
45 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
46 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall. as provided
in Sec 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
M A J O R ~~ ~ C A C O M A N 1 3 9 3 . _ .
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Ottis Blue, Archie Floyd, Albert Davis, and
Harvey L. Blue immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them
whole for any lost earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Recognize and, upon request, bargain collectively
in good faith with the above-named Union as the exclu-
sive bargaining representative of the employees in the
above-described appropriate unit, and embody in a
signed agreement any understanding reached.
(d) Post at its location in East St. Louis, Illinois, copies
of the attached notice marked "Appendix." 4 7 Copies of
47 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of of this Order,
what steps Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."