Metro-Taxicab Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 722 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
Friendly Cab Co., Inc. d/b/a, a.k.a. Metro Cab Com-
pany, Inc., California Cab Company, Bay Area
Taxi Management, Grkwss Enterprises, Inc.,
Metro-Yellow Taxicab Co., Friendly Cab Com-
pany, California Cab, Yellow Cab Company,
Greyline Cab Company and East Bay Taxi
Drivers Association, Petitioner. Case 32–RC–
5060
April 30, 2004
DECISION ON REVIEW AND ORDER
BY MEMBERS LIEBMAN, WALSH, AND MEISBURG
On November 15, 2002, the Board granted the Em-
ployer’s request for review of the Regional Director’s
Decision and Direction of Election (pertinent portions of
which are attached as an appendix), in which the Re-
gional Director found that the Employer’s taxi drivers
were employees, not independent contractors.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
Having carefully considered the entire record, we af-
firm the Regional Director’s decision for the reasons
stated therein, with one modification. Contrary to the
Regional Director, we find that the voucher system sup-
ports a finding that the drivers are employees. The re-
cord reveals that voucher trips are fairly common; the
Employer’s dispatcher has complete discretion in assign-
ing voucher work; drivers must redeem vouchers through
the Employer; the Employer charges drivers a significant
percentage of the voucher amount when it is redeemed;
and the drivers perform voucher work for Friendly
Transportation Company when its employee drivers are
not available.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed.
APPENDIX
DECISION AND DIRECTION OF ELECTION
5. The Employer contends that the petitioned-for taxicab
drivers are independent contractors and, therefore, not statutory
employees. For the reasons set forth below, I find that the taxi
drivers are employees within the meaning of Section 2(3) of the
Act and I will direct an election among them.
Facts
All seven entities constituting the Employer operate out of
the same facility in Oakland, California, and are under the ulti-
mate authority of Surinder Singh, chief administrator. Her
husband, Baljit Singh, is president of each company; Leo Ba-
zile is general manager; and Kevin Ito is head dispatcher. Cur-
rently, the Employer has approximately 80 cabs on the street,
50 of which are designated as airport cabs, thereby allowing the
drivers access to Oakland International Airport. In addition to
the airport permit, the Employer has permits to operate in the
cities of Emeryville, Oakland, Berkeley, and Alameda.
The Employer owns all of the taxicabs. All drivers must
sign a lease. Although a cab can be leased by the hour or day,
most leases are for a 7-day period, which allows the driver to
drive on 6 days with 1 day for maintenance, and then the lease
automatically renews. In order to sign a lease, the prospective
driver must submit a printout of his/her driving record from the
Department of Motor Vehicles (DMV) to the Employer. If the
printout is acceptable, the Employer sends it to its insurance
company to determine if the person is insurable. If approved,
the person must go to the police department to obtain a permit.
If the person obtains a permit, the Employer will lease a cab for
the location specified in the permit. The prospective driver
must also pass a drug test that is paid for by the Employer.
Although the drivers designate which entity they would prefer
to work for, the actual assignment depends on the availability
of cabs and is ultimately determined by the Employer. Drivers
are not required to post a bond.
Each week, the driver is required to pay a fee or “gate”
which ranges from $450 to $600 depending on the cab model,
employee driving record, driving ability, and number of acci-
dents. Thus, the amount of the weekly gate varies among the
drivers, at the Employer’s discretion. The Employer also owns
16 natural gas (CNG) cabs for which the gate is $750. The
Employer from time to time unilaterally increases the amount
of the lease and the driver has no recourse other than to turn in
the cab and stop driving.1 Under the terms of the lease, the
Employer is not responsible for withholding any Federal or
State taxes or providing worker’s compensation insurance.
Although drivers may request certain cabs and runs, it is based
on availability. Permits for the airport are in high demand and
are generally held by drivers with more experience.
As part of the lease, drivers agree to abide by the Employer’s
policy manual and standard operating procedures, which cover
a wide range of topics including safety, courtesy, respect, radio
procedures, training requirements, and drug testing. Under the
operating procedures, the Employer’s policy requires drivers to
keep themselves and their vehicles clean and sanitary. Specifi-
cally, they must wear collared shirts with sleeves, slacks, or
knee high skirts, closed shoes with socks or hose. The cab
must display the name and logo of the appropriate entity. Driv-
ers may not discriminate against customers and must provide
service in response to any reasonable request. All calls for
service must be conducted over an Employer provided commu-
nication system; drivers may not provide individual business
cards or phone numbers to customers or develop their own
independent relationship with individuals or businesses. Al-
though drivers may decline a particular dispatch, they do not do
so because the dispatcher will ignore them or bypass them in

1 Driver Dabb testified that his lease came up for renewal in June
2002, at which time General Manager Bazile told him he would be
restricted in his new lease to driving for only 10 hours per day pursuant
to the California vehicle code. When Dabb questioned this, Surinder
Singh told him she was raising his gate by $50 per week because he
argued with her.
341 NLRB No. 103
METRO CAB CO. 723
the future. If the drivers do not follow the Employer’s policies,
the Employer can terminate the lease. Drivers are required, at
their own expense, to attend a 3- to 6-hour class conducted by
the Employer on an annual basis covering policies and the laws
dealing with discrimination. Drivers may not use the cabs for
nonemployer business nor may they sublease them. Nor may
they smoke or use cellular phones while in the vehicle. They
must report all accidents and incidents immediately to dispatch.
There are additional policies governing airport drivers; anyone
violating those policies can be suspended and fined by the air-
port authority. The Employer has recently hired a road man-
ager who monitors the appearance of the drivers and the cabs
and ensures drivers are conducting themselves in a manner to
avoid problems for the Employer with regulatory agencies.
General Manager Bazile investigates customer complaints, as a
result of which he may issue a warning or terminate a lease. It
is the Employer’s policy to provide all customers with 15-
minute service. The dispatcher also tells drivers they must
respond to a dispatch within a certain amount of time. Drivers
must also carry with them a Thomas Brothers map, a clip
board, and flashlight.
Each cab has a meter that records the charge based on mile-
age.2 Drivers pay for their own gasoline. Drivers are required
to accept scrip, issued by Oakland and Emeryville, from elderly
passengers and others who are eligible, pursuant to the Em-
ployer’s contract with those cities to provide taxi service. The
Oakland contract (City of Oakland Paratransit Taxi Service
Agreement) provides under section V.B. that “All drivers of
vehicles under this Agreement shall be employees of the Pro-
vider (i.e., the Employer) or of the Fleet Management Company
managed by the fleet manager.” Under section D, the pro-
vider/Fleet Manager must provide to all drivers, at its own ex-
pense, 8 hours of classroom training, which includes sensitivity
training, passenger assistance techniques, service animal proto-
cols, emergency procedures and defensive driving techniques.
Under section K, living wage requirements, the provider must
pay minimum compensation of $8.65 with health benefits or
$9.95 without health benefits and 12 compensated days off per
year for sick leave, vacation, or personal necessity to drivers
performing work under the contract.
Although there was conflicting testimony as to whether driv-
ers must accept credit cards, when they do so and turn them in
for payment, the Employer charges a 6-percent fee. Drivers
working for Friendly Cab also transport passengers and pack-
ages pursuant to contracts between Friendly Transportation, a
related employer, and various private companies such as UPS,
Federal Express, and Union Pacific. This occurs whenever
Friendly Transportation does not have a sufficient number of its
own vehicles and drivers to perform the work. (It is not clear
how often this occurs.) On those occasions, the taxi drivers are
paid by voucher, which they turn into the Employer for pay-
ment. The amount of the voucher is determined by mileage or

2 Drivers must complete and turn in waybills for each shift, as re-
quired by State regulations. It is unclear from the record exactly what
information is contained therein. However, the drivers apparently do
not account to the Employer for the number of passengers or amount of
fares collected.
distance traveled. On vouchers up to $50, the Employer keeps
10 percent of the total amount; from $50 to $100, 15 percent;
from $100 to $125, 20 percent, from $125 to $200, 25 percent
and over $200, 30 percent.3 There are occasions when a driver
may have scrip, vouchers and/or credit cards receipts which
exceed his weekly gate; however, the Employer does not pay
the driver cash but only credits his account against the next
week’s gate. The Employer does not charge any fees for credit-
ing scrip to a driver’s account. It is not clear from the record
how often drivers transport passengers who pay with scrip.
Drivers are responsible for any traffic tickets issued to them;
the Employer pays any tickets issued to the cab itself, such as
parking violations, and then collects the amount from the
driver. The Employer may also collect liquidated damages
from a driver for violations of any rules that might result in a
lawsuit against the Employer.
On any occasion when a driver’s cab is not available, such as
for repairs or maintenance, the driver must still pay the gate for
the week. The same is true for any times when the driver is not
available for work such as illness or vacation. During these
times, drivers are not allowed to secure replacement drivers.
The driver may surrender the cab and not pay the gate for the
week but has no assurance of being assigned the same cab or
any cab in the future since assignments are based on availabil-
ity. Many of the cabs carry advertisements on the roofs; the
drivers cannot refuse this but receive no revenue from it. Al-
though the Employer pays the insurance on the taxicabs, drivers
have been required to pay extra fees, at times in excess of
$1000, when involved in accidents.
Drivers with airport cabs can work at the airport only on al-
ternate days depending on the vehicle license number. The
driver can work on city streets the rest of the period for which
he has paid the gate. It appears that the Employer has recently
begun requiring at least some of the drivers to sign leases
whereby they are restricted to only 10 hours of driving in any 1
day pursuant to California vehicle code.
Sedan/Van Drivers
In addition to the taxicab drivers, there are approximately 6
to 10 sedan or van drivers who, the Employer maintained at the
hearing, are employed by Friendly Transportation. Despite
some testimony about these drivers, Petitioner never sought to
amend the petition to include them in the unit or to name
Friendly Transportation as Employer. In fact, during the hear-
ing Petitioner never took a position as to whether the sedan or
van drivers’ should be included in the unit. It was not until its
brief that Petitioner finally sought to include them in the unit, to
the extent that any of them are employed by the Employer
rather than Friendly Transportation.
3 Employer’s General Manager Bazile testified these fees are
charged only when the drivers want immediate payment; that the driv-
ers could submit the credit card receipts and vouchers directly to the
appropriate company and receive payment by mail. However, driver
Zadran testified he attempted to submit the vouchers directly to at least
two airlines and was told he must go through the Employer for pay-
ment. Zadran also would need to form his own business and acquire a
merchant number in order to deal directly with the credit card compa-
nies.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
Analysis
In Roadway Package System, 326 NLRB 842, 850 (1998),
the Board concluded that the common-law agency test is the
standard to determine whether individuals are independent
contractors or employees under the Act, that “all of the inci-
dents of the relationship” must be considered and that the “right
to control” test is not to be considered as the predominant factor
in such a determination. In Stamford Taxi, Inc., 332 NLRB
1372 (2000), the Board also stated that the common-law agency
test, “ultimately, assesses the amount or degree of control exer-
cised by an employing entity over an individual,” and then
explained that those aspects of the test that do not include the
concept of “control” are equally significant as those that do.
With regard to rules and requirements that are imposed on driv-
ers because of governmental regulations, the Board has held
that such rules and requirements generally do not constitute
control by the employer. Elite Limousine Plus, Inc., 324 NLRB
992 (1997).
In applying the common-law agency test in taxicab cases, the
Board has held that when a driver pays an employer a fixed
rental and retains all fares he collects without accounting for
those fares, there is a strong inference that the Employer does
not exert control over the means and manner of his perform-
ance. City Cab Co. of Orlando, Inc., 285 NLRB 1191 (1987).
The theory underlying this inference is that in a flat rate system,
the employer makes its money irrespective of the fares received
by the drivers; therefore, the employer has no compelling rea-
son to try to control the means and manner of the drivers’ per-
formance. Rather, the employees have a strong financial incen-
tive to provide good and efficient service in order to cover the
flat rate and to make a profit.
In this case, the drivers pay this type of flat fee,4 the drivers
are not required to account to the Employer for the amount of
fares or tips they have collected and the flat rate fees constitute
the bulk of the Employer’ income from this enterprise. There-
fore, there is a strong inference that the Employer does not
exert sufficient control over the means and manner of the driv-
ers’ performance to warrant a finding of employee status. In
addition to this inference, there is other evidence supporting a
finding that the drivers are independent contractors. In particu-
lar, the evidence establishes that the Employer does not require

4 There is evidence that the Employer does not use a flat fee when
drivers redeem their vouchers. On vouchers up to $50, the Employer
keeps 10 percent of the total amount; from $50 to $100, 15 percent;
from $100 to $125, 20 percent, from $125 to $200, 25 percent and over
$200, 30 percent. Thus, drivers who do a greater amount of voucher
work, pay a higher percentage to redeem their vouchers. While this
evidence shows that the voucher system is somewhat more akin to a
commission system, the significance of this evidence is diminished
because there is insufficient evidence to establish the dollar amount of
vouchers that employees submit in a typical week. Similarly, the Em-
ployer takes a 6 percent fee for processing credit card receipts for the
drivers. Because the amount of the credit card charges is related to the
number of miles the driver drove the passengers, the credit card fee is
another example of how the Employer’s income is tied in part to the
amount of work performed by the drivers. The evidence does not es-
tablish the dollar amount of credit card receipts that the drivers submit
in a typical week.
the drivers to work set hours or even a minimum number of
hours. I also note that the lease agreement provides that the
drivers are independent contractors; the Employer does not
provide the drivers with benefits; and the Employer does not
withhold social security or other taxes on behalf of the drivers.
In light of the above, it must be determined whether there is
sufficient evidence supporting a finding of employee status to
overcome the flat rate inference and the other evidence support-
ing a finding of independent contractor status. The most sig-
nificant evidence of Employer control in this case is that the
drivers are not permitted to operate independent businesses.
The drivers are not allowed to solicit customers or to use their
cabs for personal reasons or an outside business. In addition,
other than their lease fee, the drivers have no investment in
their vehicles, and they may not sublease the vehicles that they
lease. The Employer requires the use of leases and sets and
changes the terms unilaterally.
Additional examples of the Employer’s control are the Em-
ployer’s discretion to determine which entity a driver is as-
signed to, the model of the vehicle assigned to a driver, the
weekly gate a driver is required to pay, and whether a driver
may drive an airport cab. Although the weekly gate is a flat
fee, the amount varies among the drivers and is determined by
the Employer after taking into account a number of variables
such as driving ability and driving record. I also note that the
evidence is uncontroverted that, on at least one occasion, the
Employer raised a driver’s weekly gate because that driver
argued with the chief administrator, effectively punishing the
driver for his conduct.
The Employer also requires drivers to carry advertising on
their cabs, but the Employer does not give the drivers a share of
the advertising revenue it receives. The Employer has the au-
thority to require drivers to come in for an inspection or to
change advertising materials, even during periods when the
drivers are most likely to secure fares. In addition, the Em-
ployer mandates a set color scheme and logo for its vehicles,
and drivers are not permitted to alter the cabs.
Under the Employer’s policy manual and standard operating
procedure, drivers must adhere to a dress code, attend Em-
ployer and government mandated classroom training and follow
procedures concerning the use of the radio, operation of the
vehicle and reporting of accidents and incidents. Drivers may
not use private business cards and must accept credit cards,
vouchers, and scrip. The Employer has the right to discipline
drivers or terminate their leases for any infractions. To ensure
that the Employer’s policies are followed, the road manager
monitors the drivers’ activity while on the job. The Employer
also investigates customer complaints and may terminate the
lease or issue discipline as a result. Thus, the Employer main-
tains and enforces rules that go beyond, and do not involve,
government regulations.
Considering the large amount of evidence of the Employer’s
extensive control over the means and manner of the drivers’
performance of their duties, I conclude that the evidence is
sufficient to overcome the strong inference of minimal control
that is created by the Employer’s use of a flat rate system.
Moreover, in light of the evidence as a whole, including the
evidence of Employer control and the evidence that the drivers

METRO CAB CO. 725
are not permitted to use the leased cabs for personal matters or
other business, I find that the taxicab drivers are employees
within the meaning of the Act.
Conclusion
I find that the evidence as a whole, including the large
amount of day-to-day control exercised by the Employer over
the drivers, warrants a finding that the taxicab drivers are em-
ployees, not independent contractors. Therefore, I will direct
an election among the Employer’s taxicab drivers. However,
because Petitioner never sought to amend the petition to include
the sedan/van drivers, or to name Friendly Transportation as the
Employer, and did not take a position at the hearing on the
status of the sedan/van drivers, the record is not complete in
this regard and I will not include the van/sedan drivers in the
unit.
Accordingly, I shall direct an election among the following
employees:

All full time and regular part time taxicab drivers employed
by the Employer at its 4849 E. 12th Street, Oakland, Califor-
nia facility; but excluding all other employees, office clerical
employees, dispatchers, mechanics, guards, and supervisors as
defined in the Act.

The only record evidence concerning the number of employ-
ees in the unit is a driver list dated June 6, 2001, which was
attached to the Employer’s insurance policy. There were 298
names on that list.