Miami Beach Yellow Cab, et al.

National Labor Relations Board - Board Decisions

Nov 15, 1968

173 N.L.R.B. 831 (N.L.R.B. 1968)

MIAMI BEACH YELLOW CAB 831
Miami Beach Yellow Cab , et al. and Taxi Drivers
Union , Brotherhood of Railway , Airline and
Steamship Clerks , Freight Handlers , Express and
Station Employees , AFL-CIO,' Petitioner. Case
12-RC-3042
November 15, 1968
DECISION AND DIRECTION OF ELECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Leonard Bass, Hearing Of-
ficer. Following the hearing, this case was transferred
to the National Labor Relations Board in Washington,
D. C., pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended.
Thereafter, the Petitioner and Employer filed briefs,
which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-mem-
ber panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. American Taxicab Dispatch Systems, Inc., is a
corporation whose stock is owned by Joseph Silow,
Samuel Levine and their wives. American Taxicab
Dispatch Systems, Inc., herein called ATD, operates a
centralized and integrated radio dispatch service for
taxicab owners and operators who subscribe to the
service through payment of monthly dues. Those
taxicab owners and operators who subscribe to ATD
are known to the public, through the listings in the
telephone book and through the advertising place on
the cabs, as Miami Beach Yellow Cab or Yellow Cab.
Subscribing to the radio dispatch service are three
fleet owners, Silow, who controls J & S Transporta-
tion, Inc., and Beach Cab Company, through which
he operates 23 vehicles; Levine, who operates 32 or
33 cabs through his control of S & J Transportation,
Inc., and Elma Transportation; and John Rettig,
president of 406 Miami Beach Taxi Corporation,
d/b/a Yellow Cab Company, which operates 14
vehicles; and approximately 21 independent opera-
tors. The parties stipulated that if all the employers
who receive dispatch service through ATD are one
appropriate unit, those combined employers do in
excess of $500,000 worth of business and purchase
material in excess of $50,000 directly from outside
the State of Florida.
Petitioner seeks a single unit of all full-time and
regular part-time taxicab drivers of all subscribers to
the ATD taxicab radio dispatch service. The Em-
ployer claims that each subscriber is an individual
employer, and that AID neither owns taxicabs nor
employs drivers, is not a joint employer of drivers
with any other employer, and that therefore the
petition should be dismissed.
As noted, ATD has as subscribers approximately 25
persons or corporations who own and operate about
90 cabs and who pay monthly dues to ATD on each
cab they operate. ATD employs dispatchers who take
calls from the public and radio and dispatch cabs
subscribing to ATD to service those calls. Formerly
the radio dispatch service was operated by Rettig and
his 406 Corporation under the name of Yellow Cab
Company. Under Rettig, the Yellow Cab Company
obtained the Florida Public Service Commission tags
for Rettig and the independents under Rettig's master
permit, and obtained insurance for all cab owners
through Bergman's Exchange Agency and forwarded
the money from other cab owners to Bergman's. All
cabs were painted black and yellow with the common
telephone number for Yellow Cabs appearing thereon.
The Yellow Cab Company radio dispatch service
maintained lists of drivers seeking jobs and owners
seeking drivers and referred one to the other. Also, a
list was kept of all drivers not permitted to drive.
Yellow Cab had rules which were uniformly enforced
in the system and drivers who violated the rules
would have their radio shut off, usually for the
remainder of the day. Yellow Cab Company also
maintained a central charge account for drivers, paid
money to hotel doormen so they would call Yellow
cab, and sponsored drivers for licenses with the police
department.
In late 1966, Rettig sold the radio dispatch
operations to ATD, controlled by Silow and Levine.
ATD continued the operation of the radio dispatch
service at the previous location for over a year after it
was sold and still continues to maintain the same
central charge account for all drivers. In this regard,
drivers check the authenticity of Yellow charge
accounts with AID dispatchers, and Silow reimburses
all drivers for Yellow charge accounts. Cabs now
subscribing to ATD service are painted yellow or
yellow and black, and have the words Yellow Cab,
Yellow, or Cab with the same telephone number on
them. Independents as well as fleet owners can now
pay ATD for insurance and ATD forwards their
money to Bergman's Exchange. Although testimony
shows that ATD does not distribute stationary, trip
sheets, or business cards, contrary evidence and
t The name of the Petitioner appears in the caption as amended at
the hearing
173 NLRB No. 116
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony indicates such are still available at the ATD
office.
Evidenced by the universally identical telephone
number which is carved on all cabs, the charge
account system, and the business cards, it is clear that
ATD and its participants hold themselves out to the
public as a single integrated enterprise known as
Miami Beach Yellow Cab. Although it is asserted that
dnvers were no longer referred to owners and no
longer disciplined after ATD took over the dispatch
system, contrary evidence shows that such procedures
still exist. Thus, if a dnver violates any "moral
obligations" or any rules of the dispatch service, the
dnver would be disciplined by being taken off the air.
Further testimony shows that some owners would not
allow certain individuals to drive, for various reasons
including violations of procedure. In such a case, the
owner would advise the dispatcher at ATD who
would then post the driver's name on a blackboard in
the dispatch office. Upon posting, the dnver would be
unable to receive radio service, even if he were able to
obtain a cab from another owner.
The Employer seeks to distinguish recent Board
cases finding that a group of taxicab operators
constitute a joint employer,' contending that the
only similarity to the instant case is the maintenance
of a radio dispatch service. However, upon all of the
foregoing, we find that AID and each of its dues
paying members are a point employer in a common
enterprise. In reaching our conclusion, we rely partic-
ularly on the fact that ATD and its subscribers
represents itself to the public as a single integrated
enterpnse known as Yellow Cab, and the evidence of
ATD's authority to exercise a uniform labor policy,
including effective discipline of drivers and control of
hiring of all drivers for cabs subscribing to ATD's
dispatch service. Although the Employer claims that
many of the services provided by ATD are simply
matters of convenience or individual and personal acts
by Silow, we find it more important that the services
do exist, are provided by ATD or one of its owners,
and are utilized by subscribers. Therefore, we find it
appropriate for jurisdictional purposes to combine the
gross revenues of all the Employers subscribing to
ATD 3 As it was stipulated that the combined
revenues thus exceed $500,000, and as legal juris-
diction is present, we further find it will effectuate
the policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employers.
3. A question affecting commerce exists con-
cerning the representation of certain employees of the
2 See , Association of Independent Taxicab Operators , Inc., t/a
Diamond Cab , 164 NLRB No 110, and Checker Cab Company and its
Members, 141 NLRB 583, affd 367 F.2d 692 (C A 6, 1966).
3 See, Transporation Promotions , Inc., et al., 173 NLRB No. 114,
and Central Taxi Service , 173 NLRB No 115, decided this day.
Employers within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all
full-time and regular part-time taxicab drivers of the
Employers, excluding garagemen, mechanics, dis-
patchers, office clerical employees, guards, and super-
visors as defined in the Act. The parties stipulated
such a unit would be appropriate should the Board
find a single unit appropriate. The parties also
stipulated that eligible to vote would be all regular
drivers and regular part-time dnvers who have worked
at least 2 days per week in 4 of the 6 full weeks
immediately preceding the date of the direction of
the election, or have worked at least 1 day per week
in the 13 of the 16 full weeks preceding the date of
the direction of the election. At the hearing the
Employers claimed that owner-drivers are inde-
pendent contractors or, at least, supervisors, and are
to be excluded. Petitioner claimed that owner-drivers
are employees. In their briefs, the Employer sought to
exclude dnvers who lease cabs and/or permits as
independent contractors and the Petitioner sought to
include "lease dnvers" as employees.
The record shows that some individuals lease
permits or certificates issued by the city of Miami
Beach from the owners of such permits and then
operate a cab under the leased permit. The lessee is
responsible for paying the monthly fee to AID and
for making insurance payments. Unlike regular dnv-
ers, a lease driver usually owns his own taxi, can
garage his taxicab anywhere, is responsible for ob-
taining his own gas and tires, can work his own hours,
and can hire persons to drive his cab. However, like all
other drivers, lessees receive and are subject to the
rules of the radio dispatch system and are liable to
have their radio service cut off if in violation of these
rules or procedures, carry the telephone number and
name carried on cabs driven by regular drivers, and,
although he makes the insurance payments, does not
provide for obtaining the insurance policy on his cab.
On the record as a whole, we find that the lessor of
the cab or permit retains the right to control the
manner and means by which a unified cab service is
accomplished, and the relationship of lessor to lessee
is one of employment. Accordingly, we find that the
lease drivers are employees within the meaning of the
Act.
On the basis of the entire record, we find that the
following unit is appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act: All full-time and regular part-time
taxicab drivers ' of employers paying fees to Ameri-
4 The parties stipulated , as set out in the body of this decision,
supra, concerning eligibility and unit descriptionlas set forth in
Association of Independent Taxicab Operators , Inc., t/a Diamond Cab,
supra
MIAMI BEACH YELLOW CAB 833
can Taxicab Dispatch Systems, Inc., including owner clerical employees, guards and supervisors as defined
drivers who do not hire others, and lease drivers, but in the Act.
excluding garagemen, mechanics, dispatchers, office [Direction of Elections omitted from publication.]
5 An election eligibility list, containing the names and address of all list shall be granted by the Regional Director except in extraordinary
the eligible voters, must be filed by the Employer with the Regional circumstances Failure to comply with this requirement shall be grounds
Director for Region 12 with 7 days after the date of this Decision and for setting aside the election whenever proper objections are filed
Direction of Election The Regional Director shall make the list Excelsior Underwear, Inc., 156 NLRB 1236
available to all parties to the election No extension of time to file this