Red Cab, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1968

173 N.L.R.B. 1262 (N.L.R.B. 1968)

1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Red Cab , Inc. and Mitchell D. Brown . Case 25-
CA-3038
December 13, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
the parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses and to present evidence. Subsequent to the trial,
General Counsel and the Respondent submitted briefs.
Upon the entire record, careful consideration of the briefs,
and my observation of the demeanor of the witnesses as they
testified, I hereby make the following
FINDINGS AND CONCLUSIONS
On September 25, 1968, Trial Examiner John G.
Gregg issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Red Cab, Inc., Indianap-
olis, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
1 The Respondent 's exceptions to the Trial Examiner 's Decision are
in large part directed to his credibility resolutions . We will not overrule
a Trial Examiner's credibility resolutions unless a clear preponderance
of all the relevant evidence convinces us that they are incorrect Such a
conclusion is not warranted here . Standard Dry Wall Products, Inc., 91
NLRB 544, enfd 188 F 2d 362 (C.A 3).
TRIAL EXAMINER'S DECISION
JOHN G GREGG, Trial Examiner. This trial was conducted
in Indianapolis, Indiana, on June 10, 1968, on complaint of
the General Counsel and answer of Red Cab, Inc., herein called
the Respondent. The complaint alleges violations by the
Respondent of Section 8(a)(1) and (3) of the Act At the trial
173 NLRB No 197
I. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material herein
a corporation duly organized under and existing by virtue of
the laws of the State of Indiana, maintaining its principal
office and place of business at Indianapolis, Indiana, and is and
continuously has been engaged at its Indianapolis facility in
the business of operating a taxi cab system.
During the past year, a representative period, the Respon-
dent, in the course and conduct of its business operations
received gross revenues in excess of $500,000 and purchased,
transferred and delivered to its facility goods and materials
valued in excess of $50,000 which were transported to said
facility from and received from other enterprises located in the
State of Indiana each of which other enterprises had received
the said goods and materials directly from States other than
the State of Indiana, and each of which other enterprises
annually in the course and conduct of their wholesale business
operations purchased and had transported to their respective
places of business in Indiana goods and materials valued in
excess of $50,000 directly from States of the United States
other than the State of Indiana
I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Local 135, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, hereinafter
referred to as the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges essentially that since on or about
January 17, 1968, the Respondent has interfered with,
restrained and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act by the following acts and
conduct, that the Respondent, at its facility, and by certain of
its supervisors and agents, at certain times as more fully
indicated herein, threatened its employees with discharge or
other reprisals if they became or remained members of the
Union or gave any assistance or support to it The complaint
also alleges that on or about January 20, 1968 the Respondent
did discharge Mitchell D. Brown, an employee of the said
Respondent employed at the facility, and fails and refuses to
reinstate him to his former or substantially equivalent position
of employment because he formed, joined and assisted the
Union and sought to bargain collectively through representa-
tives of his own choosing and engaged in other concerted
activities for the purposes of collective bargaining and mutual
RED CAB, INC. 1263
aid and protection , and that by the foregoing acts the
Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (3) of the Act.
In its answer the Respondent denies the commission of any
unfair labor practices and avers that Mitchell D Brown was at
no time an employee of the Respondent , Red Cab, Inc. but
was a part -time independent contractor or lease driver of the
Respondent and that Brown's discharge was not discriminatory
but for good cause.
A The Alleged Acts of Interference, Restraint,
and Coercion
The complaint alleges that the Respondent interfered with,
restrained and coerced its employees at the Respondent
facility and through acts of its supervisors Johnston, More-
house and Hunt in threatening its employees with discharge or
other reprisals if they became or remained members of the
Union or gave any assistance and support to it.
At the trial it was stipulated by the parties that Richard
Hunt, Omer Loyd and James Johnston were supervisors and
agents within the meaning of the Act. There was no stipulation
as to the status of one Tommy Morehouse, referred to in the
complaint as Tommy, but identified more specifically during
the trial as Tommy Morehouse. As to Morehouse, who was
referred to incorrectly in the record as Morehead, a considera-
tion of the testimony of record convinces me and I find that at
the times material herein he was a supervisor within the
meaning of the Act. Ample uncontroverted testimony of
record by Carroll, driver-instructor and assistant to Personnel
Director Loyd establishes the fact that Morehouse worked the
7 a in to 3 30 p in day shift, regularly assigned the men to
their duties, and hired and fired employees.
Hunt testified that Morehouse was hired as a service writer
to write incoming repair orders on taxi cabs, and that
eventually he was to be made into an assistant shop foreman,
but he was discharged on March 28 of 1968, because of his
drinking on the job. Hunt testified further that Morehouse was
hired at $100 a week as a service writer. By the week ending
January 11, he had been raised to $125 a week. Morehouse's
function was to write up the damage or the repairs required on
a vehicle and together with the shop foreman would give this
work ticket to the mechanic who would work on the vehicle.
According to Hunt in January of 1968, besides the mechanics
in the maintenance department and Morehouse, Jack
McKenney was service manager on days, and Jimmy Johnston,
service manager on nights Hunt testified that Morehouse split
the hours with Jack McKenny One of them came in at 6 and
left at 3 30, and the other came in at 9 and left at 6.
Morehouse came in early in the morning, McKenney came in
later. According to Hunt during the hours from 6 in the
morning to 9 in the morning, Morehouse would assign the men
to their duties of repair on a daily and routine basis, and if a
man did a job improperly, and the ticket was turned in
between the hours of 6 and 9 in the morning, Morehouse could
return the ticket to the mechanic and have him do the job over
or have him correct the deficiency. Hunt stated that the men
would follow Morehouse's directions. I find ample testimony
of record to establish that Morehouse regularly assigned
mechanics to their duties and was given responsibility by the
Respondent to responsibly direct them and to hire and fire
employees Accordingly I find Tommy Morehouse to be a
supervisor of the Respondent within the meaning of the Act at
the times material herein
Mitchell Brown testified that sometime prior to January 19,
1968, he talked with Mr Green, organizer for the Union, and
set up the January 19 meeting to be held at the union hall.
Brown testified that there were five drivers including himself at
the meeting which was also attended by Green, and Robbins
who was president of the Union. According to Brown, on
January 18, the night preceding the meeting, he talked with
Gibson and Albertson in the Red Cab garage While he talked
with them Johnston walked up. Brown told Gibson that they
were going to try to organize a union at the Respondent
Company to which Gibson responded that it would be a good
thing but he could not go along with Brown "you could get
fired for talking that way." Brown also asked Albertson to
attend the meeting but according to Brown, Albertson shook
his head and walked away laughing
Brown testified that at this time Johnston said "Brown you
can get fired for talking about a union, they fired some here
before for the same thing." According to Brown, Johnston
also stated "they'll fire you right now if they find out about
it.,,
Brown also testified that on January 17, which was 2 days
before the union meeting, he was talking to Tommy the shop
foreman and asked if he would like to come to the meeting.
According to Brown, Tommy told him that he could not
participate in a meeting , that he was a foreman, and that
Brown ought to watch himself because he could get fired for
talking that way.
Brown testified further that on January 20th, the morning
following the union meeting , after being told by Mrs Selig that
he was on the "off-list" and in the absence of Mr Loyd he
approached Hunt, the Respondent's president who was talking
to some girls. Brown asked Hunt if he knew why Brown was
on the "off list" and according to Brown, Hunt turned around,
looked at him and said, "well you S.O.B. you're not gonna
have a union in here "
Johnston, in his testimony, denied threatening Brown on
January 18, 1968 or at any other time with reprisals
concerning his union membership or activities Johnston
testified that the first time he had heard that Brown was
connected with any union activity was on the 19th of January,
that he had no such knowledge on the 18th of January
Hunt, in his testimony denied making any mention to
Brown of union activity and stated that he "didn't know
anything at all about it until the following week somebody
mentioned that he was trying to organize a union."
Based on my careful observation of the demeanor of the
witnesses as they testified, and on the testimony of record, I
credit the testimony of Brown whom I found to be impressive-
ly straightforward in his testimony and in his responses on
cross-examination I was not persuaded by the denials of
Johnston and Hunt. I found their statements disclaiming
knowledge of any union activity on the part of Brown to be
most unconvincing, particularly in view of credible testimony
of record in this connection dealt with more specifically
hereinafter. Accordingly I find that, as charged in the
complaint, the Respondent through Johnston, Hunt and
Morehouse, each individually, and collectively, threatened
Brown with discharge or other reprisals and did thereby
interfere with, restrain and coerce its employees in the exercise
of rights guaranteed to them in Section 7 of the Act all in
violation of Section 8(a)(1) of the Act
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged Discriminatory Discharge of
Mitchell D. Brown
vehicle to other drivers when not operated by the lease driver.
As indicated above, the Respondent furnished the vehicle,
provided its gas and oil, maintenance and repair, and the
required licenses.
The record indicates further that the Respondent applies a
set of rules for the drivers including dispatching rules,
mandatory rules for radio procedure, and rules prescribing
restrictions on the method in which the driver performs his
services for the Respondent, such as courtesy, appearance and
safety,and specification of the posts for the vehicles. There was
also testimony of record by Hunt, the Respondent's president,
indicating that the drivers are told what types of clothing they
were not permitted to wear, and restrictions placed on their
conduct while driving, relating to such conduct as fighting,
drinking and smoking The drivers movement is further
restricted by the requirement to observe certain posts and the
restriction against leaving the area to go out of town without
the permission of the Respondent.
Brown testified that when driving his leased cab he could
not reject any calls that he received over the radio. "When you
are in a post, on a post, signing on a post, or an open post and
you hit the dispatcher and he gives you a call you have to take
the call he gives you."
Q. What can he do with you if you refuse?
A. He can bring you to the garage which is known as a
10-X. You are on the off list until you see Mr. Loyd or Mr.
Johnston or someone else.
It is well settled that the employer-employee relationship
exists when the employer reserves the right to control not only
the ends to be achieved, but also the means to be used in
reaching such ends. On the basis of the entire record herein it
is clear to me and I find, that the Respondent exercised a
substantial degree of control over Brown in his day to day
conduct and in his operation of the cab, and that Brown, as a
part-time lease or rental driver did not possess the indepen-
dence of action as to the manner and means of accomplishing
his work which is an essential characteristic of an independent
contractor. The record establishes by ample credible evidence
that the lease and rules gave the Respondent substantial
control over the lease driver's operation of the cab, some of
which was required by city ordinance, and that the Respond-
ent in fact controlled the hiring and the activities of its drivers,
and by the terms of the lease exercised unilateral control over
payment rates for the leased vehicles. Indiana Refrigerator
Lines, 157 NLRB 539. Accordingly, I find that Brown was, at
the times material herein, an employee of the Respondent
within the meaning of the Act. Mound City Yellow Cab
Company, 132 NLRB 484.
The General Counsel contends that Brown was discrimina-
torily discharged by the Respondent because of his union
activities known to the Respondent, while the Respondent
contends essentially that Brown was discharged for cause based
on repeated violations of company rules, culminating in the
Selig incident on January 19, 1968, and Brown's poor work
record. The Respondent contends that Brown was continually
violating company rules and regulations which resulted in a
number of disciplinary actions being taken against him, but
that the Respondent continued to rehire Brown and tolerate
his activities until the time of his discharge on January 20,
1968 because of the extreme and critical shortage of drivers.
The Respondent denies that it had knowledge that Brown was
a union adherent.
The record indicates that whenever a driver violates a
company rule the individual who witnesses the violation
Testimony of record indicates that Brown worked as a lease
driver for the Respondent at various intervals including 1959,
1962, 1963, 1966 and 1967; was last hired on December 15 or
23rd 1967 as a lease driver part time until he was placed on the
off-list on January 19, 1968 and discharged on the 20th of
January 1968.
Richard Hunt, President of the Respondent Corporation,
testified that the Company owns the cabs that are used by the
lease drivers, pays the insurance, does the maintenance work
on the cabs, advertises, calls for the drivers, and pays for the
gasoline to run the cabs. The rental drivers, including part-time
rental drivers, pay the Respondent two payments, one a fixed
rate per day and separately, but part of the formula, a rate of 5
cents a mile for the miles driven during their period of
employment
Concerning company rules Hunt testified that 1953 was the
last year in which the Respondent had written rules which
were in effect and of which the drivers had notice According
to Hunt in January 1968 the Respondent had 249 cabs on the
street including leased drivers as well as men who worked
directly for Red Cab. All Red Cab drivers are issued a
distinctive uniform cap by the Respondent When drivers
desire to go to other cities such as St Louis, Louisville,
Evansville or Chicago, the driver is required to clear with the
dispatcher of the Respondent and the Respondent supplies the
drivers with a spare tire and even deposits his money in a
cashier cage The Respondent also maintains inspectors who
may cause supervisors to check safety rules, to check on the
safety of the drivers, to check on other good working habits of
the drivers and to inspect the cabs for cleanliness from time to
time. The Respondent sells advertising which it mounts or
attaches to its vehicles which are used as cabs This advertising
material is part of the cab and is not under the control of the
driver.
Hunt testified further concerning the matter of the taking
of keys from the cars by drivers, the wearing of hats, and the
use of trip cards, that these procedures were all set up by
ordinances of the city of Indianapolis from whom the
Respondent receives its license to operate taxicabs. Hunt
indicated that the license is subject to revocation if any of the
terms or conditions are broken, and that the ordinance
specifies certain conditions that applicant drivers or applicant
employees must meet before they are given clearance. Hunt
indicated that the meters in the cabs are checked by
representatives of the city of Indianapolis
The General Counsel contends that Brown is an employee
within the meaning of the Act, while the Respondent contends
that as a part-time lease or rental driver Brown was not an
employee within the meaning of the Act. A review of the lease
under which Brown operated and other evidence of record
indicates that, among other things, the Respondent retained
and exercised extensive control over the method and manner
in which Brown performed his duties for the Respondent.
Such control included the requirement that Brown operate the
vehicle in a manner so as to abide by the policies of the
Respondent for the maintenance of good public service, the
provision of a security deposit, payments for late reporting and
the providing to the Respondent of various reports. The
testimony indicates that control of the cab was maintained by
the Respondent including the Respondent's right to assign the
RED CAB, INC. 1265
prepares an AVO (avoid verbal orders memorandum), which
subjects the driver against whom the complaint is made to
appropriate disciplinary action However, AVO's are also
issued for other than complaint purposes.
Hunt, the Respondent's president, defined the "off list" as
indicating that for one reason or another the driver, be he lease
driver or employee, cannot operate or take out a cab until he
sees some person in authority such as Mr Carroll, Mr. Loyd or
Mr Hunt Drivers could be placed on the off list for
disciplinary reasons. A file of off list drivers is kept by the
Respondent. If a driver came in that was on the off list,
accordingly to Hunt, the cashiers would enforce the list and
would tell the driver that he could not get a cab until such
time as the driver checked with Mr Loyd or Hunt or someone
in authority. The Respondent also maintains a separate list of
terminated drivers; drivers no longer connected with the
Respondent, and maintains a third list called the current list
which includes the names of drivers on the active list who are
permitted to drive without clearing through someone.
Mary Selig testified that she was a cashier for the
Respondent and that her duties included checking the drivers
trip cards for accuracy and collecting money from the drivers.
Selig testified that when trip cards were inaccurate it would be
pointed out to the drivers. She testified further that she was
responsible for the assignment of taxi cabs. She stated that the
Respondent has regular drivers that are assigned to regular
cabs. The Respondent also has a fleet of part-time drivers that
are not assigned to cabs and Selig stated that if a dnver did not
show up within 15 minutes of his due time for the shift on his
cab, she would put his taxi cab on the street, and that this
included both full time and part-time drivers
Selig testified to difficulties she had had with Brown.
Brown, on January 19, 1968 requested that she hold a cab for
him from 10 00 until he could pick it up at 12:00. Selig
testified that she told Brown she could not hold a cab for two
hours after shift time with other drivers waiting. She stated
that Brown raised his voice and got angry over this and told
her that she had better not put his cab out. Selig testified that
she wrote an AVO on this, that she kept the AVO, and when
she came in the next morning, showed it to Mr Loyd. She told
Mr Loyd that when Brown came back she knew they were
going to have trouble with him, and she told Loyd that she
would like him to show the AVO to Mr Hunt or to Mr. Brook
when they come in because "everytime Brown comes to the
window he wants to stand and argue and fight over his cab or
his hours." Selig stated that Brown always wanted to check in
early and did not want to pay his shift according to the time,
and in general did not follow the rules. Selig stated that she
told Loyd that Brown held up the other drivers and had the
other drivers behind him screaming. Selig testified further that
she told Loyd that she would like Mr. Brook or Mr. Hunt to
see if they could do something about it According to Selig,
Loyd came in early and left early that morning and when Mr.
Hunt came into the office she told Hunt that Brown had done
nothing but cause the girls trouble, to which Hunt replied "We
can't have this We cannot have drivers acting up like that."
According to Selig, Hunt said that he would take care of it. In
her testimony , Selig admitted that other dnvers besides Brown
caused her trouble and other dnvers had shortages very
frequently, and that drivers argue about shortages customarily.
Selig also admitted that Brown did not call her nasty names on
the night of the 19th, and she did not remember whether he
used any nasty language. She testified that during the 2-year
period 1966 and 1968, she knew of other drivers who had
been terminated by the Respondent, naming Steve Winters
who was terminated after Mitchell Brown. This happened in
February or March of 1968. She could not remember any
other instances of similar termination by the Respondent of
drivers, indicating that because of the shortage of drivers the
Respondent would not terminate too often.
Omer Loyd testified that he was traffic and safety director
for the Respondent corporation and had performed that
function since May 1966. Before that time, he was employed
by the Indianapolis Police Department for 24 years, retiringasa
lieutenant from the Police Force. Loyd testified that when
Brown was put on the off list in December he spoke with him on
that occasion and told him that he had violated the rules and
regulations of the Red Cab Company by driving around a group
of seven or eight cabs who were in line ahead of him in order to
pick up a fare that was going out of town and in the general
direction of one of his relatives, who lived in the southern part of
the state. According to Loyd he told Brown that he had to pay
the other driver. According to Loyd, Brown answered that he
was not going to pay that "God damn gypsy" anything.
According to Loyd, Brown was referring to Anthony Sohlan, the
dnver who wrote up the AVO on Brown. According to Loyd on
December 7, 1967, Brown did pay Sohlan. According to Loyd,
Brown came back to Red Cab on the 15th of December and in a
conversation with Brown on that date, according to Loyd,
Brown mentioned that he had thought quite a bit about it and
even though he didn't feel he owed Sohlan for the drive, he was
going to pay it that it was near Christmas, and it would be a
hardship on his children and his family if he did not return to
work. Loyd stated that he laid down some terms and conditions
for Brown's return to employment telling him that he would be
considered for employment with the understanding that another
false move and the Respondent would have to terminate his contract.
Mitchell Brown testified that he asked the men to attend a
union meeting on the night of January 19
Q. About how many drivers including leased dnvers and
employees of Red Cab, about how many did you ask to
come to the meeting?
A. Oh, I would say at least 50 to 100. It has been so
long I nearly forgotten. I know every driver I had a chance
to stop and talk to at the airport on the street, in the garage
I would ask him. As a matter of fact there was a time when
I went out and lost money on the radio just to get around
and ask them if they would come.
Brown testified that he recalled talking with Selig the
morning of January 20, which was the morning after the union
meeting. According to Brown he went in to get his cab and
Selig told him "you're on the off list." When Brown asked her
what for, she stated "you will have to see Mr. Loyd." Brown
waited around and when Loyd did not appear he went over to
where Mr. Hunt was talking to some girls. Brown asked Hunt if
he knew why Brown was on the off list and according to
Brown, Hunt turned around, looked at him and said "well you
S.O.B., you're not gonna have a union in here." According to
Brown, Hunt also stated "you're nothing but a trouble
maker." "I'm just not going to issue you a cab anymore, you
can go upstairs and get your deposit if you have one and get
off my premises and never come back." Brown testified that
he then left the premises. He returned several days later and
spoke with Loyd and had his deposit money refunded at that
time. According to Brown, at that time Loyd told him that
they were going through the files and cleaning out the trouble
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
makers. According to Brown, Loyd told him that he was being
let go because he argued with the girls downstairs over money
Brown testified that the night before he was fired, Mary
Selig was the card girl or cashier when he checked in and he
did have a discussion with her. He asked her to hold his cab for
him until around 11 or later. Selig told him that she could not
do that , that if someone came in and Brown was not there and
his cab was needed she would issue the cab . According to
Brown, he was supposed to pick up his cab at 10 a in , that he
did come in late quite a few times to get the cab, but that since
he was on it by himself , he did not have to worry about any
night men because there was no one on the night , that is one
who would rent from 10 at night till 10 in the morning Brown
had the cab from 10 in the morning till 10 at night and he was
the day man . According to Brown when Selig told him she
could not hold the cab he told her there was no reason she
could not hold it, that the other girls did. According to Brown,
prior to this time the cab had been held up as late as 1 o'clock
in the afternoon for him, that if the cab was not needed badly,
Shelby and another girl, Ann, would put a hold on the cab and
even hold it for as late a time as 1 o 'clock which would be 3
hours after the 10 o'clock issue time . Brown testified that
Mary Selig had previously held a cab for him for 1'k hours
According to Brown on this day when he asked Selig to hold a
cab for him and told her that other girls had held she said that
she was not the other girls that if the cab was needed she
would give it out Brown admitted that he had raised his voice
and told Selig he did not see why in the hell she could not hold
the cab when she had before. But he insisted that he had not
"cussed her out " Brown testified that it was not unusual for
the drivers to argue with the girls over things such as shortages
and the holding of cabs or the repair and maintenance of cabs,
or the fixing of broken -down time.
James G. Johnston , night superintendent for the Respon-
dent testified that in January of 1968, he was night superinten-
dent for the Respondent , had been a foreman for 15 years and
a night superintendent for 5 or 6 years . Johnston testified that
the night of January 19, the night that the union meeting was
held he learned about the union meeting after the meeting was
over The meeting which took place about 7 p.m came to his
attention according to Johnston around 11 p.m. when he was
informed of this by a driver, Jimmy Ryan. According to
Johnston , Ryan told him that Brown had told the other drivers
that he would have about 100 drivers there at the meeting but
only 5 showed up. Johnston stated that this was the first time
that he had heard anything about the Union, and it was after
the meeting took place. Johnston denied threatening Mr.
Brown on January 18, 1968, or at any other time with
reprisals or firing because of any union activities . Johnston
testified that the first time he had heard that Brown was
connected with any union activity was on the 19th of January,
that he had no such knowledge on the 18th of January.
According to the version of Hunt, when Hunt returned to
the garage on the 20th of January , Mitchell Brown asked him
why he was on the "off-list " to which Hunt responded, "I
don't know , I'll find out." Hunt went in to the cashier's cage
and talked to Mary Selig and she in turn handed him a copy of
the AVO and they both discussed Mitchell Brown. Hunt then
called Brown and walked with Brown to the garage and told
Brown that he was on the off list because of his argument with
Selig the previous night. According to Hunt, he told Mr.
Brown, "I have had just about all of you that I can stand" and
"I think the best thing for you to do is to terminate your lease
and leave the premises ." Hunt denied using any profane
language and denied making any mention whatsoever of a
Union or Union activity.
Q. When was the first time you had any knowledge that
there was anything connected with the Union with Mitchell
Brown?
A. Well I didn't know anything at all about it until oh
sometime the following week somebody mentioned that he
was trying to organize a union.
Marvin Morris , an employee of the Respondent, testified
that the night of January 19, 1968, Morris was employed by
the Respondent as dispatcher and was working one of the two
channels of the radio . Morris recognized Brown 's voice, knew
that he had been driving steadily. Morris testified that Brown
called him and requested him to say that Brown was out of
service at a certain location He asked Morris to announce over
the loudspeaker Brown's cab number and that he was out of
service. Morris acceded and announced over the air that
Brown's cab was out of service Morris stated that he did not
indicate that Brown was in the Fountain Square area Morris
stated that he was bawled out by his supervisor for unneces-
sary conversation over the air
Omer Loyd testified that the company runs a taped record
on the transmissions between drivers and dispatchers He
testified that he did not have knowledge that Marvin Morris
broadcast on the night of January 19 the fact that Brown was
in the Fountain Square area at Local 135 and that Brown
would be off transmission for period of time.
While I credit Morris' statement that he did not announce
the whereabouts of Brown on the night of January 19, it is
clear that the dnvers had been advised that Brown had left his
cab at the time the meeting was scheduled to take place
Based on my careful observation of the witness Brown as he
testified , I credit Brown' s testimony concerning his union
activities , his discussions with the drivers, his abortive attempt to
achieve a large turnout for the union meeting scheduled for the
night of January 19, 1968, and his version of the discussions with
Hunt, Johnston, and Morehouse . I do not credit the denials of
Johnston and Hunt. I am convinced and I find that through
Johnston , Hunt, and Morehouse individually and collectively the
Respondent at the times material had knowledge of the union
activities of Brown.
A careful analysis of the AVO's of record in this proceeding
and the testimony concerning some of the incidents involved
does not convince me that Brown indeed had a poor record as
alleged by the Respondent , for some of the complaints which are
the subjects of AVO' s have to do with minor shortages normally
encountered in the course of this kind of enterprise and not
uncommon in the Respondent's business according to testimony
of record . Other AVO's such as charges of "hijacking" stand on
the record as mere charges without any indication as to whether
or not the charge was in fact valid. In any event , accepting the
fact that a certain number of AVO's were issued in connection
with the workactivities of Brown I am nevertheless unconvinced
that this established Brown as a driver achieving a poor record in
the light of a comparison with the records of the other drivers of
the Respondent , concerning which testimony of record indica-
ted that many dnvers had AVO' s and that the issuance of AVO's
to drivers was not at all uncommon.
Assuming , arguendo , that Brown could be labeled as a
driver with a poor record based on the AVO ' s issued against
him I would remain unconvinced , based on my analysis of the
record herein, that the Respondent discharged him for that
RED CAB, INC. 1267
reason The Respondent contends that it ignored the violations
and indeed continued to rehire Brown in the face of the poor
record because of the extreme and critical shortage of drivers.
There is no indication in this record that such shortage had
been ameliorated or no longer existed on January 20, 1968
The Respondent takes the position that the Selig incident,
occurring on the night of January 19, 1968, was the straw that
broke the camel's back for Hunt. I am not so persuaded.
On the morning of January 20, 1968, the Respondent's
president, Hunt, returned from a trip and arrived at his office
about I 1 a m., talked with Brown at 11 30 and soon thereafter
summarily discharged Brown based presumably on the most
recent incident with Selig the nature of which had no element
distinguishing it from the myriad of day to day frictions
occurring between drivers and cashiers, and under circum-
stances which I have explicated above which do not convince
me that this incident could reasonably be viewed as the straw
which broke the camel's back. The Respondent's rationale for
the discharge I find most unconvincing, and in view of the
Respondent's knowledge of Brown's union activities preceding
and leading up to the meeting of January 19, 1968, and the
discharge of Brown coming hard on the heels of the union
organizational activity of the preceding night, effected prompt-
ly on the return of the Respondent's president from his out of
town trip, I am convinced and I find that the discharge of
Brown was triggered and motivated by, and would not have
taken place but for the union activities of Brown all of which
were protected by the Act I find therefore that the Respon-
dent discriminatorily discharged Brown because of his union
activities in violation of Section 8(a)(3) and (1) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in various
unfair labor practices affecting commerce, I shall recomment
that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act
Having found that Respondent unlawfully discharged
Mitchell Brown on January 20, 1968, I shall recommend that
it be ordered to offer him immediate and full reinstatement to
his former or to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have suffered
by reason of the discrimination against him, by payment to
him of a sum of money equal to that which he normally would
have earned from the aforesaid date of discharge to the date of
the Respondent's offer of reinstatement, less his net earnings
during such period. The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance with
the method prescribed in F. W. Woolworth Company, 90
NLRB 289 Interest at the rate of 6 percent per annum shall be
added to such net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716
Upon the foregoing findings of fact and conclusions of law
and upon the entire record in this case, I recommend the
issuance of the following
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with the operations
of the Respondent desciibed in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
CONCLUSIONS OF LAW
I Red Cab Inc is, and has been at all times material to this
proceeding, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is, and has
been at all times material to this proceeding, a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Mitchell D Brown, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act
4. By threatening employees with discharge or other
reprisals if they became or remained members of the Union or
gave assistance or support to it, the Respondent interfered
with, restrained and coerced its employees in their exercise of
rights guaranteed by Section 7 of the Act and thereby engaged
in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby
orders that the Respondent, Red Cab, Inc., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership of any of their employees in
Local 135, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other
labor organization, by discharging or in any other manner
discriminating against any employee in regard to hire, tenure
of employment, or any other term or condition of employ-
ment because of union or other protected concerted activity.
(b) Coercively threatening employees with discharge or
other reprisals, thereby interfering with, restraining, and
coercing its employees in the conduct of activities protected
by the Act.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively with representatives of their owrichoosing,
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2 Take the following affirmative action which will effec-
tuate the policies of the Act
(a) Offer to Mitchell D. Brown immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
1268 DECISIONS, OF NATIONAL
and make him whole in the manner set forth in the section of
this Decision entitled "The Remedy "
(b) Notify the above-named employee if presently serving
in the Armed Forces of the United States of his rights to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces
(c) Preserve and, upon request, make available to the Board
or its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amounts of backpay due to Mitchell D. Brown.
(d) Post at its facility in Indianapolis, Indiana, copies of the
attached notice marked "Appendix."' Copies of said notice on
forms to be provided by the Regional Director for Region 25
after being duly signed by the Company's representative, shall
be posted immediately upon receipt thereof, and maintained
by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 25, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.2
I In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order " shall be substituted for the
words "a Decision and Order."
2 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the Regional
Director for Region 25 in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exarruner
of the National Labor Relations Board and in order to
LABOR RELATIONS BOARD
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE WILL NOT try to discourage you from becoming or
being a member of Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri-
ca or any other union by discharging any employee, or in any
other manner discriminating against our employees in
regard to hire or tenure of employment or any other term
or condition of employment because of their union
activities.
WE WILL NOT threaten any of our employees with
discharge or other reprisals because of their union activities.
WE WILL offer Mitchell D. Brown his former employ-
ment with all of his rights, without prejudice to his
seniority, and make him whole for any loss of pay he may
have suffered as a result of our discrimination against him.
All our employees are free to become or remain, or refrain
from becoming or remaining members of any labor organiza-
tion.
RED CAB INC.,
(Employer)
Dated By
(Representative ) (Title)
Note. We will notify Mitchell D. Brown if presently serving
in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, Sixth Floor ISTA Center,
150 West Market Street, Indianapolis, Indiana 46204.