Red Cab, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1971

194 N.L.R.B. 279 (N.L.R.B. 1971)

RED CAB, INC. 279
Red Cab, Inc. and Richard G. Covington Case
25-CA-3963
bargaining," it hardly effectuates the policies of our
statute to condone such flagrant illegal conduct.
November 22, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On July 8, 1971, Trial Examiner Paul Bisgyer issued
his Decision in the above-entitled proceeding, finding
that 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. The Trial Examiner further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed limited cross-exceptions and 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 the case, and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner, as modified herein.2
We agree with our dissenting colleague that the
unusual circumstances of this case may well have
subjected these labor and management negotiators to
a nightmarish experience. However, we cannot agree
that the unhappy situation in which the employer
found itself justified "forcible employer measures"
specifically prohibited by Sec. 8 (a)(1), (3), (4), and (5)
of this Act. Here the Respondent deliberately broke
off bargaining, locked out and discharged its employ-
ees, unilaterally changed working conditions, refused
to reemploy an employee whose name appeared on an
unfair labor practice charge, and refused to reinstate
other employees in reprisal for their concerted
activity. Surely, whatever "the realities of collective
i In adopting the Trial Examiner 's dismissal of the allegation that a
supervisor promised a preference in cab selection to those who signed the
back-to-work petition, we note that this issue turns upon an unresolved
question of credibility, and, in any event, is cumulative and would not
affect the remedy provided herein.
In addition, we find that Respondent's lockout of employees on August
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) Discharging, locking out, refusing to reinstate, or
otherwise disciplining employees for seeking to
induce employees to vote against ratification of an
agreement tentatively reached by the employees'
bargaining representative and the Respondent, or for
engaging in other union or concerted activity for
mutual aid and protection guaranteed by Section 7 of
the Act.
(b) Discouraging membership in Local 193, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, by discharging, locking out, or refusing
to reinstate employees or discriminating against them
in any other manner in regard to their hire or tenure of
employment or any term or condition of employment,
in reprisal for their internal union activities.
(c) Discharging or refusing to reinstate employees or
otherwise discriminating against them because their
names appeared in an unfair labor practice charge
filed on their behalf as unlawfully terminated employ-
ees.
(d) Unilaterally establishing new terms and condi-
tions of employment for its employees in the appro-
priate unit described below, without first notifying
and bargaining with the above-named Union, as their
exclusive representative; soliciting employees to
abandon a picket line and return to work as new
employees under the unilaterally established terms;
and preparing or participating in the circulation of a
back-to-work petition or offering employees better
terms and working conditions than those previously
offered in order to induce them to sign the petition.
The bargaining unit includes:
All full-time and part-time drivers together with
garage employees of the Respondent employed at
its facility, exclusive of all personnel department
employees, office clerical employees, porters,
salaried employees, professional employees,
guards, and all supervisors as defined in the Act.
(e) Threatening to discharge or refusing to hire
17 was motivated by the same considerations as the discharges and
constituted a separate violation of Section 8(a)(3) and (1).
2 Because the unfair labor practices found herein demonstrate
Respondent's opposition to the policies of the Act, we deem it necessary to
order Respondent to cease and desist from in any manner infringing upon
the rights guaranteed its employees in Section 7 of the Act.
194 NLRB No. 41
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in reprisal for their protected union and
concerted activities.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their
bargaining rights through their exclusive representa-
tive, or in the exercise of their right to engage in union
and concerted activities for mutual aid and protection
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer the drivers who were discharged on August
17, 1970, and have not yet been rehired immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and
other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason
of their unlawful discharge, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) If it has not already done so, restore to those
drivers who have previously been rehired their former
seniority and other rights and privileges and make
them whole for any loss of earnings they may have
suffered by reason of their unlawful discharge, in the
manner set forth in the section of this Decision
entitled "The Remedy."
(c) Notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(d) 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 or useful in analyzing the
amount of backpay due and the right to reinstatement
and employment under the terms of this recommend-
ed Order.
(e) Post at its terminal facilities in Indianapolis,
Indiana, copies of the attached notice marked
"Appendix." Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be 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
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 25, in
3 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
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.3
CHAIRMAN MILLER, concurring in part and dissenting
in part:
It seems to me that both the Trial Examiner and my
colleagues have not adequately taken into account the
realities of collective bargaining.
During a 6-month bargaining period, both the
Union's representatives and Respondent's representa-
tives were working arduously to work out a mutually
acceptable set of conditions to enable them to
accommodate to this Board's view that its cab drivers
are employees. Respondent, prior to this Board's
decision in an earlier proceeding, had treated them as
independent contractors and their income had con-
sisted of their fares less a fee and mileage rate paid by
the drivers to Respondent for use of the vehicles.
In the negotiations, Respondent wished to move
away from the old lease system and convert to one
more consistent with the concept that its drivers were
employees---one which would have instituted a
commission form of payment and which would have,
for the first time, granted fringe benefits of the variety
common to employees, but not to independent
contractor compensation plans.
The Union found its membership of a mixed mind
about the conversion, but ultimately its representa-
tives, believing they had succeeded in coalescing the
diverse views of their constituents into support for a
set of conditions which would make the transition
feasible, agreed at the bargaining table to include a
mutually agreeable commission schedule and certain
new fringe benefits. Indeed, the union bargainers
believed they had obtained so favorable a set of
commitments from Respondent that they advertised
the tentative agreement as "one of the best Taxi-Cab
agreements in the country."
Then followed a debacle of the type which gives
experienced negotiators for both companies and
unions nightmares. Stimulated by certain defecting
members of the union negotiating team who broke
ranks with their fellow-negotiators' and openly violat-
ed their pledge to maintain unanimity in support of
the package produced by their long and difficult
negotiations, a factionalized membership hooted
down the union leadership which attempted to
present the proposed agreement for ratification, and
the meeting broke up in disorder.
Faced with this chaotic state of affairs, Respondent
took action which, in my view, was designed to create
the necessary leverage to bring about a settlement. It
unilaterally instituted a change to the new type of
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
RED CAB, INC.
compensation arrangement, but at rates less favorable
to the employees than those last offered to the Union.
And because this involved a change from lease
agreements to a genuine employee arrangement, it
announced that those who wished to work under the
changed employment conditions should file applica-
tions to become Red Cab, Inc., "employees" rather
than lessees.
This step, too, produced factionalized reaction from
the Union, the officers counseling patience, but some
employees urging an immediate walkout. The upshot,
within a few days, was a series of events which one
party characterizes as a strike, and the other as a
lockout. But the ultimate outcome was that some 5
weeks later the parties were successful in signing a
contract bearing a striking resemblance to the one
which was first agreed to between the negotiators-an
outcome which those experienced in negotiations
could probably have predicted would, sooner or later,
follow the set of circumstances which I have described
as occurring here.
But such experienced observers would also, I think,
conclude that the Respondent's tactical maneuver of
putting into effect a set of conditions less favorable
than those which the union leaders had recommend-
ed, but which it had been unable to sell because of
internal disagreements, in all probability hastened the
day of agreement, as it was doubtless designed to do.
Just as there are times when the forcible measure of
union strike action is necessary to move an employer
from uncertainty to a willingness to agree, so also are
there times when rather forcible employer measures
are necessary to accomplish a fusion of opposing
factions within a union membership in such manner
that it is possible to conclude a bargain.
This was just such a case, and it would not surprise
me in the least if the union leadership, if it were frank,
would be among the first to concede it. Indeed, it will
be noted here that members of the original union
negotiating team led the back-to-work movement
here-a phenomenon hardly characteristic of a
typical strike situation.
For us to attempt to fit this set of facts into our
traditional molds, to hold that the actions taken by
Respondent were "discriminatory discharges," illegal
"interference" with Section 7 rights, and a
"bypassing" of the Union and thus bad-faith bargain-
ing, demonstrates our sometimes woeful inability to
truly comprehend the realities of the world of
collective bargaining.4
So, in substantial degree, I must dissent from the
decision herein. On the other hand, once an agree-
ment was reached, Respondent unquestionably had a
duty to reinstate the strikers without discrimination,
and to the extent that the majority decision finds a
discrimination in reemployment, after the strike, of
281
employees who had reinstatement rights under our
law as it normally applies to economic strikers, I
would concur.5
4 The majority, in response to my dissent, recites a number of sections
of the Act alleged to have been violated, characterizes the 'conduct once
again in the phraseology we use when typical violations are found, and
adds a rhetorical reference to "flagrant illegal conduct " None of this
comes to grips with the issue of whether , in the context of a complicated set
of bargaining conditions , the course followed with respect to the bargaining
was designed to prevent agreement or instead was the only visible course
which held out a hope for reaching agreement . Nor does it consider
whether, in a realistic view of the context, the termination of operations on
August 17, when an insufficient number of drivers were willing to work, for
a variety of reasons , should be found to be an illegal `lockout" or
"discharge "
In fact, the majority response merely again demonstrates a too hasty
willingness to affix our familiar labels to conduct which, in my view, ought
to be more carefully evaluated in the light of a knowledgeable
understanding of the total bargaining situation.
5 There would remain , as to some of these employees , factual questions
as to whether they requested reinstatement , and as to whether some of
them remained on strike after an agreement with a no-strike clause had
been executed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, loin, or support unions
To bargain as a group through a repre-
sentative they choose
To act together for collective bargaining
or other mutual aid or protection.
WE WILL NOT discharge, lockout, refuse to
reinstate, or otherwise discipline employees for
seeking to induce employees to vote against
ratification of an agreement tentatively reached by
the employees' bargaining representative and the
Company or for engaging in other union or
concerted activity for mutual aid and protection
guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL NOT discourage membership in Local
193, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization, by discharg-
ing, locking out, or refusing to reinstate employees
or discriminating against them in any other
manner in regard to their hire or tenure of
employment or any term or condition of employ-
ment, in reprisal for their internal union activities.
WE WILL NOT unilaterally establish new terms,
and conditions of employment for our employees
in the bargaining unit described below without
first notifying and bargaining with the above-
named Union, as their exclusive representative; or
solicit employees to abandon their picket line and
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work as new employees under the
unilaterally established terms. The bargaining unit
includes:
All full-time and part-time drivers togeth-
er with garage employees of Respondent
employed at its facility, exclusive of all
personnel department employees, office cler-
ical employees, porters, salaried employees,
professional employees, guards, and all su-
pervisors as defined in the Act.
WE WILL NOT prepare or participate in the
circulation of a back-to-work petition or offer
employees better terms and working conditions
than those previously offered in order to induce
them to sign the petition.
WE WILL NOT threaten to discharge or refuse to
hire employees because of their protected union
and concerted activities.
WE WILL NOT discharge or refuse to reinstate
employees or otherwise discriminate against them
because their names appeared in an unfair labor
practice charge filed on their behalf as unlawfully
terminated employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their bargaining rights through their exclusive
representative, or in the exercise of their right to
engage in union and concerted activities for
mutual aid and protection as guaranteed in
Section 7 of the Act.
WE WILL offer all our drivers who were
discharged on August 17, 1970, immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of- earnings they suffered by reason of their
discharge.
RED CAB, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone
317-633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Trial Examiner : This proceeding, with all
parties represented,' was heard on March 16 through 18,
1971, in Indianapolis , Indiana, on the complaint of the
General Counsel issued on January 12 , 1971,2 as amended
at the hearing, and the answer of Red Cab , Inc., herein
called the Respondent or Company . In issue are questions
whether the Respondent , in violation of Section 8(a)(1), (3),
(4), and (5) of the National Labor Relations Act, as
amended,3 discharged, locked out, and refused to reinstate
employees because of their protected union and concerted
activities; denied reinstatement to an employee because he
was named in the unfair labor practice charge filed herein;
unilaterally changed terms and conditions of employment
without notice to, or bargaining with the Union , and dealt
with individual employees ; prepared and participated in
the circulation of a back -to-work petition in derogation of
the Union's representative status; and threatened to
discharge and refuse to rehire employees because of their
protected union and concerted activities . The parties did
not avail themselves of the opportunity to present oral
argument at the close of the hearing but thereafter the
General Counsel and the Respondent submitted briefs in
support of their respective positions.
Upon the entire record ,4 and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
1 Local 193, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, herein called the Union, was
permitted to intervene in this proceeding.
2 The complaint is based on a charge filed by Richard G Covington on
September 29, 1970, a copy of which was duly served on the Respondent
by registered mail the next day
3 Sec 8(a)(1) of the Act makes it an unfair labor practice for an
employer "to interfere with , restrain, or coerce employees in the exercise of
the rights guaranteed in section 7." Insofar as pertinent , Sec. 7 provides
that "[e ]mployees shall have the right to self-organization, to form, join, or
assist labor organizations , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection .. "
Sec. 8(a)(3), with certain qualifications not material herein, prohibits
an employer, "by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage
membership in any labor organization . .
Sec. 8(a)(4) prohibits an employer "to discharge or otherwise
discriminate against an employee because he has filed charges or given
testimony under this Act." Finally , Sec. 8(aX5) makes it an unfair labor
practice for an employer "to refuse to bargain collectively with the
representatives of his employees , subject to the provisions of section 9(a) "
4 In accordance with prior arrangement made at the hearing, and on
notice to the Charging Party and the Union, the General Counsel
submitted after the close of the hearing a stipulation signed by the
attorneys for the General Counsel and the Respondent, identified as G C.
Exh 29. No objection having been made, the document is received in
evidence
RED CAB, INC. 283
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation, operates a
taxicab system in Indianapolis, Indiana, where its principal
office and terminal facilities are located. Its annual gross
revenues exceed $500,000. During the past year the
Respondent in the course and conduct of its business
purchased goods and materials originating outside the State
valued in excess of $50,000.
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Admittedly, the Union is a labor organization within the
meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The events giving rise to the unfair labor practice charges
herein are, as follows:
1. The Union's selection as bargaining
representative of the Respondent's cabdrivers;
contract negotiations
Prior to August 17, 1970, the Respondent employed
approximately 300 cabdrivers. Except for newly hired
individuals without experience, drivers operated under full-
time or part- time lease or rental agreements containing
substantially the same terms and conditions. Pursuant to
these arrangements, the drivers retained the collected fares
but paid the Respondent a fixed fee per shift and a mileage
rate for use of the vehicle. The newly hired inexperienced
drivers, however, were paid on a commission basis during
the first month or less of their employment, after which
time, if proved to be satisfactory, they were required to sign
a lease agreement to continue driving a cab. Although the
Respondent alleged in its answer to the complaint that
drivers were independent contractors and not employees
covered by the Act, in its brief it has apparently abandoned
this contention for the purposes of this case. In any event,
5 Red Cab, Inc., 173 NLRB 1262, 1264. It is undisputed that no change
has occurred in the lease agreements, operating procedures , and the duties
and functions of drivers since the Board's decision in the cited case.
6 Except as otherwise indicated, all dates refer to 1970.
r The conceded appropriate unit, as described in the complaint, consists
of:
All full-time and part-time drivers together with garage employees of
the Respondent employed at its facility exclusive of all personnel
department employees, office clerical employees, porters, salaried
employees, professional employees , guards and all supervisors as
defined in the Act.
However, the parties thereafter bargained separately for the garage
employees, concluding an agreement for them in July Consequently, the
issues in the present case relate only to the drivers.
8 It was the Respondent 's position that, under rulings of the Internal
Revenue Service , fringe benefits could not be given to drivers without
impairing, for income tax purposes, the independent contractor
relationship purportedly established by the lease agreements.
9 The Committee which approved the tentative agreement consisted of
the evidence reflecs suc° complete control retained by the
Respondent over the lease drivers, not only with respect to
the ends to be achieved, but also with respect to the means
of accomplishing those ends as to make the drivers clearly
employees within the coverage of the Act and not
independent contractors. Indeed, the Board has so held in
another case in which it found the Respondent guilty of
discrimination against one of its cabdrivers.5 There is no
question that since August 17 the relationship between the
Respondent and the drivers has been that of employer and
employee.
In February 1970,6 as a result of an election conducted by
the Indiana Division of Labor, the Union was certified as
the collective-bargaining representative of the Respon-
dent's drivers.? A series of some 12 to 15 contract
negotiating meetings then followed at which the Respon-
dent was represented by its president, Richard Hunt, and
other officials and the Union by its president, Maurice Day,
its secretary-treasurer, Louis H. Floerke, and an employee-
designated committee. In the course of these negotiations, it
soon developed that the major stumbling block to
agreement was a dispute whether to continue the lease
arrangements with improved terms and conditions of
employment, as the Union proposed, or whether to
abandon those agreements and pay the drivers straight
commissions and grant them certain fringe benefits,8 as the
Respondent demanded. Making the Union's position even
more difficult was the serious split among the drivers
themselves whether to retain the lease system. Indeed, the
conflict in views became apparent at the very inception of
negotiations when the Union, in preparing its initial
proposals for submission to the Respondent, conducted a
poll of the membership which favored a lease arrangement
only by a close vote. Happily, however-but not for
long-the Union on August 4, with the unanimous
concurrence of the Employee Committee, including Ben
Edmonds and the Charging Party Richard Covington,
leaders of the group advocating retention of the lease
arrangement,9 resolved its differences with the Respondent
and reached tentative agreement on the basis of the
Company's commission proposal, eliminating the existing
lease arrangement . Among other things, this agreement
established a graduated scale of commissions to be paid
drivers 10 and its adoption was made subject to ratification
Rev. Oscar Hill, its chairman, and drivers Ben Edmonds, John Welker,
Mary Pennell, Richard Covington, Leonard Sanders , and Floyd Marine.
Edmonds and Covington were newcomers to the Committee . Edmonds
participated in the August 4 and prior meeting, while Covington attended
only the August 4 one. Although Edmonds, Covington, and Sanders
originally objected at the August 4 meeting to the Company's commissions
proposal and the discontinuance of lease arrangements , they eventually
joined the other committeemen to approve the tentative agreement. It is
also noted that, prior to the August 4 meeting, Edmonds had complained
to the International Umon about the representation drivers were receiving
from the Umon.
10 Specifically, the tentative agreement provided commissions of 42
percent on gross bookings up to $150; 46 percent on gross bookings of
$151 to $250; and 48 percent on bookings over $251. The gross bookings
figure reflected a compromise by the Respondent which originally
proposed higher amounts This scale was known as the 42-46-48
arrangement . Provision was also made for new employees to be paid a
straight commission of 40 percent during the first 30 days of employment.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the drivers. The Com 'ertook to use its
best efforts to sell the agreement ter ers.
Union President Day promptly drafted a document,
setting forth the results of the August 4 negotiations, and
noting that the proposal was unanimously accepted by the
Committee and that it could be "one of the best Taxi Cab
Agreements in the country." Copies of this document were
distributed among the drivers with a copy being posted on
the bulletin board at the Respondent's terminal. A
ratification meeting of drivers was scheduled for August 14.
2. Opposition to the tentative agreement; August
8 preratification union meeting; the Respondent's
cancellation of lease agreements
It was not long before Committeemen Ben Edmonds and
Covington experienced a change of heart as to the
desirability of the commission arrangement that they and
the other committeemen had agreed to sell to the drivers.
Instead, they and other drivers launched a campaign to
defeat its acceptance. Accordingly, at a meeting on August
8 attended by about 60 out of some 300 drivers, which the
Union called for the purpose of explaining the terms of the
tentative agreement, Edmonds and his colleagues urged its
rejection and succeeded in preventing Day and the Union's
attorney, Leroy New, from making their presentation. The
meeting adjourned in disorder without anything being
accomplished.
Word of the activities of the Edmonds-Covington group
soon came to the attention of Company President Hunt.
Apparently provoked by this turn of events and deciding
not to wait for the formal ratification vote scheduled to be
held on August 14, Hunt on August I 1 sent Day a letter. In
it he referred to his sincere efforts to negotiate an
agreement with the Union and expressed his surprise "at
recent developments that are carrying on within . . . [the]
driver organization." Continuing, the letter stated:
Therefore, I am withdrawing our proposal as agreed to
on August 4, 1970 and under the terms of the Lease
Agreement, I am hereby terminating the Lease Rental
Contract for all drivers, effective 6:00 a.m. August 17,
1970.
If we are to maintain this company, we must have a
good employee-employer relationship and we will
consider any rehiring of the terminated lessees after
careful screening.
Effective Monday, August 17, 1970, the drivers will
receive 40% of their gross bookings, wherein the
company will furnish gas, maintenance, etc.
By separate letter, posted on the Bulletin Board, we are
hereby notifying our Lease Drivers as of this date.
As indicated in the letter, the Respondent posted the
following notice on the bulletin board in the drivers' room
and on the front door of the building:
TO ALL DRIVERS UNDER TERM OF
CONTRACT DESIGNATED AS LESSEE
Notice is hereby given that the present lease contract
shall be terminated at the end of the work day on
li There is evidence that on various earlier occasions during
negotiations the drivers also considered calling a strike in support of the
Sunday, August 16, 1970. A work day at Red Cab Inc. is
considered as 6:00 a.m. the morning of the 17th.
After 8 months of careful negotiations with the
Teamsters' Local, including two lengthy discussions
with the State Labor Board, we have decided to
terminate lease agreements with the present drivers. It is
our feelings that the Company cannot operate under
present conditions, unless we maintain a good employ-
ee-employer relationship and I feel that good employee-
employer relationship is in the best interest of the public
and the general welfare of of the Company and drivers
combined.
I quote from the State Labor Commissioner, that: "An
employer certainly has a right to run his own
Company."
Lease contracts (independent contractors) are no longer
in the best interest of the Company, or present lessees,
and are cause to terminate such agreements.
If any present lessees would like to become an employee
of Red Cab Inc. they may do so by filling an application
for consideration.
This in no way effects present commission drivers and
we will operate on a 40% commission to the drivers on
their gross bookings.
Undeniably, the announced new commission rates were
inferior to those prescribed in the tentative agreement
scheduled to be voted upon on August 14. As expected, the
Respondent's action only served to aggravate the situation,
causing the drivers seriously to consider among themselves
the feasibility of calling a strike against the Company."
The Union, however, made no direct response to the
Respondent's letter, although Union President Day advised
the drivers to continue working and wait to "cross the
bridge when we got to it." Secretary-Treasurer Floerke also
counseled several members of the Committee to ignore the
Company's notice and to inform the drivers not to stop
working as the Union intended to seek further negotiations.
3. The August 14 ratification ballot; the
scheduled strike vote
On August 14, the Indiana Division of Labor conducted
a secret ballot among the drivers to determine whether or
not to accept the tentative agreement. The proposition was
defeated by a vote of 94 to 58 in a unit of some 300 eligible
drivers. Immediately after the results were announced,
Union President Day assembled the drivers to consider
their future action. This led to a discussion of the
Respondent's contemplated cancellation of the lease
agreements on August 17, the drivers' threatened termina-
tion, and the requirement of new employment applications
in order to be considered for work on 40-percent
commissions. Day testified that he did not regard those new
terms and conditions of employment acceptable especially
since the Respondent had previously offered higher
commission rates. He further testified that to urge their
acceptance by the drivers would put the Union "in a
position of not being able to get the best contract" for them.
In anticipation of the fast approaching effective date of the
Union's contract demands but such action was either voted down by the
membership or they were dissuaded by union officials from striking.
RED CAB, INC. 285
newly imposed conditions of employment, it was suggested
by Edmonds, Covington, and others that a strike vote be
taken then and there in view of the fact that the defeated
tentative agreements had embodied the Respondent' s final
offer . However, the assemblage acceded to Day's advice
that the strike vote be deferred to afford absent drivers the
opportunity to participate. Accordingly, Day scheduled a
strike vote for August 17 at 6:30 p.m. at the union hall
unless the Respondent delayed putting into effect its new
employment conditions. Strike vote notices were thereupon
posted in the union hall and at the Company's terminal. In
the meantime , the drivers continued to operate company
cabs under the existing lease arrangements.
4. August 17 events; shutting down of operations
Beginning about 4 or 5 o'clock in the morning of August
17, drivers appeared at the terminal for work, as they
customarily did. Undisputably, employment was available
to them only as new employees under the previously
announced terms, which required the filing of a new
application of employment, subject to the Respondent's
approval, and a willingness to work on a 40-percent
commission basis. A number of drivers who requested cab
assignments that morning were denied them because of
their refusal to submit a completed employment application
form or to accept a 40-percent commission arrangement.12
Other drivers who had filled out an application form the
same morning or a day or two before and were willing to
work under the new conditions, were not given a cab or
were told to wait because cab assignments were being
withheld for the time being.13 There were also several
drivers who had filed the required application but who did
not take out a cab because of an alleged fear of the
nonworking drivers or some other concern or reason or the
fact that the Respondent had decided to close down its
operations.14 Finally, there were drivers, manifestly
dissatisfied with the newly imposed conditions of employ-
ment or with the situation at the terminal, who congregated
outside the terminal building at different times during the
day, without seeking a cab assignment.15 When General
Manager Jack Brooke a little after 5 a.m. asked a group of
drivers standing outside the building whether they intended
to go to work, they replied that they were not interested in
working for 40-percent commissions. Brooke thereupon
ordered them to leave as they were on private property. The
drivers obeyed and congregated on the sidewalk.
According to Covington's undisputed and credited
testimony, Supervisor Cecil Jones assembled the drivers
who were in the vicinity of Company's terminal and made
an announcement that, under instructions from President
Hunt, they were to remove their automobiles from the
premises as the Company was "going to lock [the ] place
up," and block the entrances and exits to the facility. The
drivers complied and then returned to the sidewalk and
other areas surrounding the facility. In the meantime, the
Company proceeded to block access to the premises with
cabs, transport carriers, and other vehicles, leaving only the
main entrance open . Thereafter, no trespassing signs were
posted around the premises.
As a result of the foregoing events, no cabs left the
terminal on August 17. There is testimony by Hunt which
seems to attribute the suspension of operations , at least in
part, to a firebomb threat that Brooke received from an
unidentified telephone caller about 5:15 in the morning of
August 17, and to fear of a few drivers to take a cab out on
the streets. Brooke, however, testified that, despite the
bomb threat, the Respondent would have kept its
operations going had there been enough drivers willing to
work manifestly under the Company's new terms. As
Brooke further testified, "If the cabs are not on the lot they
can't fire bomb them." Moreover, it is not claimed that any
driver was discharged or denied reemployment on account
of such misconduct. Except for an abortive attempt to
resume operations on August 25, the terminal was shut
down until September 25 when it was reopened under
circumstances to be hereinafter discussed.
It appears that following the closure, the drivers remained
outside the premises, milling and standing around, and
discussing in groups the situation confronting them. During
the day other drivers came to the area and joined these
groups. Although there is conflicting testimony, I find that
later in the day a number of drivers began to picket, initially
with handmade signs bearing the legend "On Strike." These
signs, however, were subsequently replaced by lockout
signs following the August 17 evening meeting considered
below.
As soon as the Union's offices opened about 8 o'clock the
same morning, Covington, Edmonds, Highbaugh, and
other drivers went there and reported the developments at
the terminal to either President Day or Secretary-Treasurer
Floerke. The drivers were told that nothing could be done if
the Company was unwilling to let them take its cabs out.
After being reminded of the strike vote scheduled for the
evening, the drivers returned to the terminal area.
5. August 17 strike vote meeting; lockout
picketing
In accordance with the previously issued strike vote
notice, the Union held a meeting at 6:30 in the evening of
August 17, over which Day presided. Some 120 to 135
drivers attended. After reviewing the events of the day and
the denial of employment except under the newly imposed
conditions, Day and Attorney Leroy New explained the
legal implications of the Respondent's action. They stated,
as the drivers had been locked out of their jobs, they could
not engage in a strike and therefore a strike vote was
premature. New further advised them that they were free to
picket the Respondent peacefully in protest to the lockout
until the Respondent terminated the lockout and resumed
operations, at which time they could either return to work
under the Company's new terms or take a vote whether to
strike. The drivers were also instructed that only signs
indicating that they were locked out should be carried or
displayed:
12 Credited testimony of drivers Covington, Ben Edmonds , and George drivers Mary Pennell , Virgil Arthur, Alice Wolfe, and Willie Wardell
E. Crutcher. 15 Testimony of drivers John W . Bryant , Anthony N. Solhan, and James
13 Credited testimony of drivers Charles Rhea and Daniel Williams . Moore.
14 Testimony of the Respondent 's general manager, Jack Brooke, and
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the meeting ended about 7:45 p.m., the
drivers went to the terminal. Finding it still closed, the
drivers set up a picket line which they manned with
handmade lockout signs. The next morning (August 18),
Day arrived there with lockout signs which bore the
Union's name and instructed them to remove or refrain
from using strike signs 16 To give the picketing the official
stamp of approval, Day put on one of the signs, walked a
few paces and then handed the sign to a picket. The lockout
picketing continued until August 25.
6. The Respondent's attempted resumption of
operations on August 25; the strike vote and
subsequent picketing with strike signs
On August 25, the Respondent attempted to resume
operations with drivers willing to sign new employment
applications and accept the 40 percent commission ar-
rangement. On that day a total of some 20 drivers drove
cabs out of the company lot escorted by internal security
police. Mindful of the Union's admonition not to strike
unless the Respondent resumed operations, Committee
Chairman Hill, Covington, and other committeemen
decided to report this new development to the Union.
Accordingly, Hill drove to the union hall where he alerted
Day to the resumption of operations. Day thereupon
prepared the following notice of strike vote to be held on
August 28:
The Red Cab Company Inc., had officially lifted their
lockout and demanded that the drivers return to work
under the company terms, therefore the drivers have no
alternative other than take a strike vote.
In the meantime the drivers are not returning to work,
and a strike vote will be taken this Friday, August 28,
1970 between the hours of 9:00 a.m. and 6:00 p.m. at
the local union hall, 849 South Meridian Street,
Indianapolis, Ind.
In the meantime, after a number of cabs had left the
terminal, Company President Hunt addressed the- pickets
and other nonworking drivers in the area. Proclaiming his
intention to put 100 cabs on the street the next morning,
Hunt invited the drivers to return, "make out these
applications and get rolling." Three or five of the drivers
responded to the solicitation, abandoned the picket line,
and entered the building. Approximately 10 minutes later,
five cabs left the -terminal, three of which were identified as
driven by the former pickets.
Hill then returned to the picket line, bringing with him
the strike vote notice for posting and publication.
Concerned over Hunt's intervening solicitation of the
drivers to abandon the picket line and report for work on
Hunt's unilaterally established terms and his expressed
intention to put 100 cabs on the street, a decision was made
by Hill, Covington, and others in the group to take a strike
vote at the union hall at 6 in the evening without waiting
until the August 28 scheduled date, which they believed
would be too late to be effective. To reach as many drivers
as possible, the telephone numbers of the individuals to be
called were divided among the members of the group.
Several drivers testified that they had not received such
notice and were unaware of the accelerated August 25
voting date.
Between 5 and 6 p.m. (August 25), drivers began arriving
at the union hall to participate in the strike vote. Secretary-
Treasurer Floerke tried, but to no avail, to dissuade them
from proceeding with the vote because one had already
been set for August 28. He also stated that a strike could
not be sanctioned unless there was compliance with certain
union procedures, such as a secret ballot and a two-thirds
majority vote.17 When Floerke denied the drivers' request
to use the Union's facilities to conduct the vote, the drivers
assembled on the parking lot where, under the supervision
of Hill, the balloting was held. The procedure utilized was
for the voter to sign a register and then vote on a tally sheet
his preference for or against calling a strike. The final
tabulation showed a vote of 80 to 0 in favor of a strike.18
Following the balloting, the drivers returned to the picket
line where they prepared signs stating that they were on
strike. Although the strike was not formally authorized,
some signs bore the Union's name while others did not.
Several signs indicated that the drivers refused to take a cut
in pay. This strike activity continued until, as later
discussed, it was terminated when the Union concluded a
contract with the Respondent on September 23. Although
Day and Floerke informed the leaders of this activity that
the strike was not authorized, it is perfectly clear that
neither union official expected the drivers to return to work
on the basis of 40-percent commissions which were below
those previously offered the Union.
The Respondent's attempt to operate on August 25
proved to be a complete failure and the terminal was again
closed down. The Respondent presented some testimony
that several cabs were being followed during the day; false
service calls were received at the terminal; a bomb threat
from an unidentified caller was received the same or next
day; and it was not worthwhile trying to maintain
operations.
7. Subsequent union efforts to reopen
negotiations; the drivers' petition to the Union to
sign contract
At the instance of Committee Chairman Hill, Union
President Day arranged a meeting with Company President
Hunt in the latter part of August for the purpose of
canvassing the possibility of settling the labor dispute. Out
of deference to Hunt's wishes to exclude the other
committeemen, only Day and Hill conferred with him.
According to Day, Hunt made an additional offer, the
details of which he could not remember. While leaving the
terminal, Day was accosted by Covington and other pickets
and taken to task for meeting with the Company without
the entire committee being present. In response, Day
declared his intention to avail himself of every opportunity
to talk to the Company to try to end the dispute. However,
nothing productive apparently came of Day's meeting with
Hunt.
On another occasion during the latter part of August,
16 There is some testimony that a stake sign was seen in the vicinity on 18 There is no evidence of the number of union members who were
August 18' notified of the August 25 strike vote. It was estimated that there were about
17 Apparently, International authorization was also required. 270 union members at that time
RED CAB, INC. 287
Day was approached by several drivers desirous of
returning to work. This led to a discussion of circulating a
petition among the members. Although voicing his
reluctance to utilize such a procedure because he believed a
better bargain could be achieved by further negotiations,
Day prepared the following petition:
REQUEST FOR LOCAL 193
TO SIGN
BARGAINING AGREEMENT WITH RED CAB
INC.
The Red Cab drivers bargaining committee negotiated
terms of a proposed working agreement under which
commissions of 42%, 46% and 48% were to be paid to
drivers, along with other benefits.
The proposal was withdrawn and rejected by Red Cab.
Red Cab closed it's operation, effective August 17,
1970.
The undersigned drivers hereby request that Local 193,
as the selected bargaining representative of Red Cab
drivers, sign a 3 yr. bargaining contract for drivers with
Red Cab which will contain the above commission
schedule and benefits, if such agreement is available
from the employer.
About 50 or 60 copies were made so that several drivers
could participate in securing signatures. This procedure was
soon aborted when a driver brought a copy of the petition
to the picket line where it was destroyed.
After the Respondent's unsuccessful effort to reopen
operations on August 25, a group of drivers, which included
Hill, Edmonds, Covington, Highbaugh, and Solhan, held
unofficial meetings of drivers, with Day's knowledge and
acquiescence, to consider resumption of negotiations with
the Respondent. At one meeting held on September 4 at St.
Johns Church, which 40 to 50 drivers attended, Hill,
Marlnee, and Pennell 19 were removed from the Committee
and drivers Highbaugh and Fredericks were added. New
contract proposals were then prepared and later given to
Day for submission to the Respondent with a request for
further negotiations. According to Day, he forwarded the
group's proposals, as requested. These were subsequently
rejected by the Respondent as "ridiculous" and no meeting
was held. In Day's absence during several weeks in
September, Covington also presented contract proposals to
Floerke, urging him to seek negotiations. However, nothing
came of those efforts. It is undenied that at no time did the
Edmonds-Covington group ever go over the heads of union
officials to bargain with the Respondent; on the contrary,
they always utilized union channels.
Probably, Hunt's refusal to meet with the Committee as
part of the Union's negotiating team is attributable, at least
in part, to his displeasure with the active opposition of the
Edmonds-Covington group to a contract which was
restricted to commissions and excluded a rental provision.
Indeed, on September 4, when driver Rhea remained
behind to man the picket line while the other drivers
attended the St. Johns Church meeting, Hunt engaged
Rhea in a conversation in which he blamed Edmonds,
Covington, Sanders, Hill, and Solhan for keeping the
drivers from returning to, work. Hunt remarked that
Edmonds was "crazy" for "think[ing] you can operate this
business on a dollar an hour," adding that "as long as .. .
[Hunt] live[d] ... [Edmonds would] never go back to work
here." As for Covington, Hunt stated "he had trouble with
some baking company and now he's bringing trouble here."
Hunt then proceeded to make disparaging remarks about
Sanders, Hill, and Solhan and warned that he was going to
reduce the number of black drivers he employed to 20
percent, which was all the law required him to hire, and that
he was going to do the selecting. Rhea estimated that before
the shutdown 70 percent of the Company's drivers were
Black. Finally, Hunt suggested that, if Rhea had a family or
needed money, he'd better look for work elsewhere as the
Company had no intention of reopening operations soon.
8. The back-to-work petition; the execution of a
bargaining contract; termination of picketing
After the Company's unsuccessful attempt to resume
operations on August 25, Marlnee and Pennell, original
members of the Committee, and other drivers spoke to Day
about returning to work. In Pennell's conversation with
Day, she inquired whether it was permissible for her to
secure from General Manager Brooke a list of drivers who
had previously signed new employment applications in
order to support a petition to go back to work. Day
indicated that he had no objection as things were at a
standstill anyway.
Apparently assuming the leadership in the back-to-work
movement Marine and Pennell then conferred with
Brooke about the end of August or the first day or two in
September concerning the drivers returning to work on the
basis of the proposal the Company had withdrawn on
August 11. They pointed out that this would enhance the
prospect of securing signatures to a petition they intended
to circulate than would a petition based on acceptance of
the Respondent's most recently imposed terms-the
straight 40-percent commissions. Brooke was manifestly
pleased with this development and agreeable to their
proposition. At their request, Brooke prepared the follow-
ing petition in language assertedly suggested by them:
We the undersigned-FULL TIME RED CAB
EMPLOYEES, Desire to return to work, by accepting
RED CABS, Contract proposal to Teamsters Local 193.
NAMELY: As Follows:
42% on $150.00 Bookings
46% on 151.00 to 226.00
48% on 226.00 +
We also accept the Fringe Benefits of $8.66 per month,
on Hospital Insurance and $1.50 Voluntary matching
Contribution to Teamsters Pension Fund. Also vaca-
tion provisions as outlined in proposal.20
Additional copies were made for other drivers to assist in
soliciting signatures . Brooke also furnished Marlnee and
Pennell with the names, addresses, and telephone numbers
19 Hill, Marlnee, and Pennell were not present, the latter two not Committee as part of the Union's negotiating team.
receiving timely notice of the meeting It is unnecessary to determine 20 This petition contained a column entitled "Name" and another
whether such removal was effective as it related purely to an internal union "Former Dever #." Obviously, this was a recognition that the drivers'
matter. In any event, the Respondent had ceased dealing with the earlier employment had been terminated.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the drivers who had previously signed employment
applications to work on 40-percent commissions. This
information was distributed among the cooperating drivers
who then proceeded to solicit signatures.
There is undisputed testimony by driver John W. Bryant
that early in September Supervisor Gilbert Barnet came to
his home with a petition and asked him to sign, asserting
that he needed 10 or 15 more signatures before the drivers
could return to work. Bryant declined to sign . James E.
Childress also credibly testified, without contradiction, that
about the middle of September he went to Supervisor
Albert Belt's office and told him that he wanted to sign a
petition which he heard was being circulated in order to
return to work. Belt confirmed the existence of the petition
and stated that many of the drivers who were picketing with
him had already signed the petition and that Childress
could sign the one on Belt's desk. Belt also told Childress,
that if he knew other drivers who wanted to go back to
work,, to send them to him to sign the petition and added
that drivers could return to work either under a rental
arrangement or on commissions plus fringe benefits.21
Childress then signed the petition and, as he evidently
indicated a preference for the rental arrangement, Belt
inserted an "R" alongside of Childress' name. Although
Belt did not suggest that Childress stop picketing, Childress
stated that it would only be fair for him to do so under the
circumstances . The next day Childress conveyed Belt's
invitation to join in the petition to four or five drivers.
As a result of the back-to-work solicitation, more than
150 signatures were obtained. The signed petitions were
then delivered to Brooke who in turn submitted them on
September 14 to the Indiana Division of Labor for
verification of the authenticity of the signatures. The
Division promptly notified the Union of the receipt of the
petitions. On September 23, the Division advised the
Respondent and the Union that, "after examining the
signatures on the petition and the list furnished by Red
Cab, Inc. [it] finds that there is a majority signing the
petition." When the Covington-Edmonds group learned of
the petition the same morning, they severely criticized Day
who disavowed responsibility for it. Covington further
warned Day "that there was no way anybody was going to
go back to work ... because . . . that building was going
to come down brick by brick up there" and that "the
Panthers was going to take over."
Later in the day (September 23), President Hunt, the
Company's attorney, Day and the Union's attorney
conferred with the result that a contract was executed
providing substantially the same terms and a strict
commission arrangement as those contained in the
proposal the Respondent had withdrawn on August 11.
21 There is a conflict in testimony which need not be resolved, whether
Belt also stated that those who signed the petition would be given a
preference in assignment of new or better cabs. Childress admitted that he
was not induced to sign the petition for this reason.
22 See Resp Exh. 7 and G. C. Exhs. 3, 29A, and 29B
23 This preference for inexperienced drivers was in sharp contrast with
the Respondent's wanted advertisements on August 17, when the
cancellation of the leases became effective.
24 See Resp. Exh. 7. Included in the 90 nonrecalled former drivers are
Charles Rhea, Verlon Sweatt and Michael F Elliott. There is no persuasive
evidence that they were not employees on August 17, as the Respondent
seems to suggest. While it appears that Sweatt and Elliott had been placed
Surprisingly, no discussion was had on this occasion
regarding the reinstatement of drivers; nor is there any
evidence of any intervention by the Union to secure the
recall of the individuals here involved.
On September 24, the Union and the Respondent issued
a joint news release, announcing the settlement of their
labor dispute upon the terms proposed by the Company
and the signing of a bargaining contract. The release
further stated that the Company "will commence hiring
drivers immediately." When this release was shown to the
pickets by the internal security police, picketing terminated.
9. The resumption of operations on September
25; refusal to rehire approximately 90 former
drivers
Following the execution of the bargaining contract and
the termination of picketing, the Respondent reopened its
operations on September 25. To man its cabs, the
Respondent rehired, as new employees, those of its former
drivers who had filed new employment applications and
signed the back-to-work petition. In addition, it began
hiring the first week of its resumed operations new drivers
who were not in its employ at the time of the August 17
events in preference to former drivers, whether or not the
former drivers had also applied for jobs after picketing had
ended or had filed new employment applications 22 Indeed,
completely disregarding the pool of experienced manpow-
er, the Respondent ran daily advertisements for drivers in
local newspapers from October 23 until February 1971,
noting its preference for applicants "with no previous cab
experience." 23 As a consequence of this recruitment policy,
there were approximately 90 former drivers still not recalled
at the time of the hearing in this case.24 This number is far
less than the number of new employees the Respondent had
hired during the period from September 25 to March 11,
1971 .25
There is undisputed evidence of specific unsuccessful
efforts by nine former drivers to secure employment with
the Respondent after picketing had ended and operations
were resumed. In accordance with customary procedures,
these drivers, separately or, in groups at different times,26
approached the female-clerk in charge of issuing trip cards
and cab keys and requested cab assignments. She
thereupon directed them to Supervisor Marvin Edmonds or
Omer Lloyd. Their ensuing experience was substantially the
same. The supervisors informed them of the requirement of
filing new employment applications with which they then
complied. In response to their inquiries concerning their job
on an "off list" which the Respondent maintained for drivers who failed to
pay looney owed to it and which disqualified the individuals from driving
until they arranged for discharge of their obligations, their leases were not
canceled prior to that date . Moreover, General Manager Brooke admitted
that Sweatt drove a cab on August 16 and that Elliott was removed from
the list when he arranged to pay for cab damages he had caused.
25 See G. C Exh. 3, 29A, and 29B.
26 Richard Covington , Ben Edmonds , Richard Highbaugh , George
Crutcher, Charles Rhea, Henry Williams, Michael Elliott, Verlon Sweatt,
and James Childress Several of them applied for work on September 25
while the other drivers applied on September 29 or within that time period
RED CAB, INC. 289
prospects, the supervisors observed that they had not signed
the back-to-work petition; 27 that since the supporters of the
petition had previously agreed to return to work and were
instrumental in ending the work stoppage, the Company
was obligated to hire them first; and that business had
suffered by reason of the strike with the result that there
were insufficient jobs available even to take care of all of
the drivers who had signed the petition. In concluding the
interviews, the named individuals were advised that their
new applications would be screened and kept on file for
consideration for future employment.
According to the uncontradicted testimony of Henry
Williams, one of the above applicants, he visited the
terminal about a month after submitting his new applica-
tion and asked General Manager Brooke when he would be
called back to work. Brooke's reply was negative,
remarking that at one time "he had-[Williams] coming
back to work but-[his] name showed up on the Labor
Board list." Apparently, Brooke was referring to the unfair
labor practice charge Covington had filed on, September 29
in the present case in which Williams and other drivers were
named as employees unlawfully terminated and denied
employment for engaging in protected union and concerted
activity.
Another of the nine named drivers, James Childress, had
a different experience from the others. As noted earlier,
Childress had voluntarily signed the back-to-work petition
and abandoned the picket line. He and other former drivers
reported for work about 8 a.m. on September 25. After a
supervisor announced how operations were to be initiated,
Childress proceeded to the window counter for a cab
assignment. However, he was informed by the female clerk
that he could not have one as he had been "red lined" and
that she did not know the reason. He thereupon discussed
the situation with Supervisor Lloyd who stated that
"evidentally something has happened" and suggested that
he be patient until the matter was "straightened out." After
waiting a while and again being advised by Lloyd that the
situation had not changed, Childress spoke to Brooke who
indicated that the records had gotten mixed up or lost or
"they couldn't find-[his] signature on them." In reply to
his inquiry, Brooke disavowed any intention not to rehire
him. Subsequently, Childress communicated with Brooke
and was advised that things had not yet been straightened
out. On a later visit to the terminal, Childress asked
President Hunt about his chances of being rehired. Hunt
answered that he might as well get another job as he was "a
big trouble maker" who made "more noise and stuff than
anybody around here"; that he even had his wife on the
picket line; and that, in any event, the Company did not
have much business and preferred inexperienced drivers.
In addition, there is testimony by another former driver,
John Bryant, that he did not apply for a job with the
Respondent after picketing had ended because other
former drivers had informed him that they had been turned
27 The drivers denied having ever seen the petition, although they
admitted hearing rumors of its circulation.
28 The Respondent in its brief identifies the leaders of the "minority
group" to be the "complainant Covington, Ben Edmonds, Tony Soihan
and a few others." Actually, as noted above, approximately 90 drivers had
not been recalled as of the time of the hearing.
29 N L.R B v. Draper Corporation, 145 F.2d 199 (C.A. 4), setting aside
down. However, it appears from Respondent's Exhibit 7
that he had at an undisclosed time filed an employment
application. As indicated above, neither he, the above-
named individuals nor other former drivers listed in
Respondent's Exhibit 7 had been recalled as of time of the
hearing.
B. Concluding Findings
On the basis of the foregoing evidence, the General
Counsel contends, in substance, that the Respondent, in
violation of Section 8(a)(1), (3), (4), and (5) of the Act,
discharged and locked out its drivers because of their
protected union and concerted activity relating to the
ratification of the tentative agreement, and thereafter
refused to reinstate approximately 90 of these employees;
that the Respondent denied reinstatement to driver Henry
Williams for the additional reason that he was named in the
unfair labor practice charge filed herein; that it threatened
drivers with loss of employment because of their protected
activity; and that it unilaterally established new terms and
conditions of employment, dealt with individual employees
and solicited their return to work on such terms,
participated in the preparation and circulation of the
petition and engaged in other acts in derogation of the
Union's representative status. The Respondent, on the
other hand, simply views the drivers' activity as nothing
more than an unauthorized wildcat strike conducted by a
dissident minority in opposition to the union leadership
and the progress of contract negotiations' with the
Respondent. It therefore argues that such interference with
the bargaining process was not a concerted activity
protected by Section 7 of the Act and hence its refusal "to
reemploy the leaders" 28 was not an unfair labor practice. In
support of its position, the Respondent relies on the
principle expressed by, the court in the Draper line of
cases.29 For the reasons hereinafter indicated, I find that
this principle is not applicable to the situation here
presented.
It cannot be seriously denied that the Respondent
discharged its drivers 30 on August 17 when the cancellation
of the lease agreements became effective. This is plainly
shown by the notice the Respondent posted at its terminal
and the letter it sent to the Union, notifying it of the
Company's action and its intention to "consider any
rehiring of the terminated lessees after careful screening"
on the basis of its newly imposed terms of employment.
Certainly, clearer language is not needed to effect a
severance of the employment relationship. Indeed, subse-
quent events including, among other things, the rehiring of
former drivers as new employees after filing the required
employment application, even though their original appli-
cation was apparently still on file with the Company, and
the Respondent's refusal to recall the other drivers involved
52 NLRB 1477; Harnischfeger Corporation v. N.LR B., 207 F.2d 575 (C.A.
7), setting aside 103 NLRB 47; N.L.R.B v. Sunbeam Lighting Company,
Inc, 318 F.2d 661 (C.A. 7), setting aside 136 NLRB 1248.
30 As found above, drivers were employees within the meaning of the
Act on and prior to August 17, as they have concededly been since that
date.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, confirm that a discharge was contemplated and
accomplished.31
Equally clear is the fact that the discharge action was
taken by the Respondent in reprisal for the campaign
conducted by the Edmonds-Covington group to defeat
ratification of the tentative agreement reached by the
Union's negotiating team with the Respondent. Thus, upon
learning of this campaign, which unquestionably displeased
Company President Hunt, especially since Edmonds and
Covington had previously concurred in the tentative
agreement, Hunt informed the Union in his August 11
letter mentioned above that he was withdrawing the
company proposal in view of the "recent developments that
are carrying on within our driver organization" and that he
was therefore terminating the lease agreements. This the
Respondent did without even waiting for the results of the
contemplated ratification meeting scheduled to be held 3
days later on August 14. However, all the Edmonds-
Covington group was actually doing was to express
dissatisfaction with the proposed agreement in an effort to
secure ultimately further concessions from the Respondent
through their bargaining representative. Undeniably, the
employees had the right to reject the tentative agreement
and implicit in this right was the privilege to engage in
vigorous advocacy among themselves to achieve this
objective. Whether or not they acted reasonably or wisely is
not material in determining the permissibility of their
conduct.32 Moreover, such activity related to the internal
affairs of the Union into which the Respondent was
statutorily barred from intruding.33 In 'a real sense,
therefore, the anti-ratification conduct was union and
concerted activity "for the purpose of collective
bargaining-[and] mutual aid and protection" which
Section 7 of the Act safeguards and for which the
participants may not be lawfully discharged, much less all
the drivers many of whom favored ratification.34
As the Board so aptly observed in Nu-Car Carriers: 35
The discharge of a dissident within a union when that
termination is motivated by a desire to eliminate protest
must inevitably result in an infringement under Section
8(a)(1) and 8(a)(3) of the employee's right to self-
organization. We believe that inherent in that right is
the privilege of protest and persuasion of others.
Without this, effective employee representation be-
comes a nullity.
As the Respondent's conduct was inherently destructive
of the drivers' protected rights, I find that the discharges
31 This is also evident in the back-to-work petition which General
Manager Brooke drafted wherein the signers were identified as "Former
Driver #."
32 N.L.R.B. v Mackay Radio & Telegraph Co., 304 U.S. 333, 344,
N.L R B. v. Washington Aluminum Company, Inc, 370 U.S. 9, 16.
33 Jack Roesch, d/b/a Roesch Transportation Company, 157 NLRB 441,
448; cf. N L.R.B v. Wooster Division of Borg-Warner Corp., 356 U.S. 342,
349-350.
34 N L.R B. v. Nu-Car Carriers, Inc., 189 F.2d 756 (C.A. 3) enfg. 88
NLRB 75, cert. denied 342 U.S. 919; see also Simmons, Inc v. N.LR.B.,
315 F 2d 143, 145 (C.A. 1), where the court sustained the Board's finding
that the employer violated Sec 8(a)(l) by threatening employees with
discharge in order to coerce their acceptance of the terms of a proposed
bargaining agreement (134 NLRB 1038).
35 88 NLRB at 76-77.
36 NL.R.B v. Katz, 369 U.S. 736, 742-743.
37 Cf N LR.B v. Armour & Co, 154 F.2d 570, 577 (C A. 10).
which became effective on August 17 violated Section
8(a)(1) and (3) of the Act. Moreover, I find that the
Respondent's unilateral imposition of new terms inferior to
those previously offered to the Union, as a condition of
reemployment as new employees also amounted to punitive
action condemned by the same provisions of the Act. By
thus bypassing the Union in establishing new terms and
conditions of employment and by dealing with the drivers
directly in offering jobs on those terms, I further find that
the Respondent acted in complete disregard of the
bargaining duty it owed to the Union and thereby violated
Section 8(a)(5) of the Act 36
As a result of the wrongful discharge of the drivers and
the unwillingness of a sufficient number of drivers to
operate cabs under the Company's unilaterally imposed
terms37, the Respondent on August 17 closed down its
terminal. I am not persuaded that the alleged threats of
firebombing or violence that morning contributed to the
shutdown to any significant degree, if at all.
As discussed above, after operations ceased and the
drivers' termination became an accomplished fact, the
drivers began picketing the Respondent's premises to
protest their discharge and conditions for rehire as new
employees. This was not an unusual response. Such
picketing has long been regarded as a protected, concerted
activity to regain jobs unlawfully terminated. Certainly, this
protection was not forfeited, as the Respondent argues,
because the drivers, without obtaining union authorization
engaged in a strike so designated by the several handmade
picket signs which were carried the first and second days.
However, if it is legally important to label the drivers'
activity, the language of those few signs must not be
evaluated in a vacuum but must be considered in the light
of surrounding circumstances. Here, the evidence demon-
strates that, technically speaking, there was no strike under
the statutory definition as the drivers did not stop work but
were discharged.38 On the other hand, assuming that the
drivers' activity was a strike, they, as unlawfully discharged
employees, retained their employee status 39 and as such
were privileged to strike in support of their labor dispute
with the Respondent over their lost jobs 40 Moreover, under
settled authority,41 union sanction or compliance with
internal union procedures is not a prerequisite for
exercising this right. In any event, the strike signs were
replaced with lockout signs shortly after the Union advised
the drivers that they had been locked out and furnished
them with signs containing such language. Indeed, to make
38 Sec. 501 (2) of the Act defines the term "strike" as including "any
strike or other concerted stoppage of work by employees (including a
stoppage by reason of the expiration of a collective-bargaining agreement)
and any concerted slow down or other concerted interruption of operations
by employees."
39 Sec. 2(3) of the Act provides that the "term `employee' ... shall
include any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair labor
practice-."
90 Sec. 13 states that "[nlothing in this Act, except as specifically
provided for herein, shall be construed so as either to interfere with or
impede or diminish in any way the right to stake, or to affect the
limitations or qualifications on that right." Sec. 2(9) defines the term "labor
dispute" as including "any controversy concerning terms, tenure or
conditions of employment ... .
41 NLRB v 'Deena Artware, Inc., 198 F.2d 645, 652 (C.A. 6), cert.
denied 345 U.S. 906.
RED CAB, INC. 291
the picketing official Union President Day carried the first
union sign. That this picketing thus had union sanction
cannot be seriously questioned.
I also find that the drivers' activity did not lose its
statutory protection on August 25 when they replaced the
lockout signs with strike signs. As previously noted, this
action was taken on the Union's advice given on August 17
that they could strike the Respondent if the Respondent
discontinued the lockout by resuming operations. Whether
or not this advice was meaningful in the framework of the
events here, it is perfectly clear that the so-called strike was
in furtherance of the same lawful objective to secure
reinstatement of the drivers to their former jobs. For this
reason, I find, contrary to the Respondent's contention,
that the so-called strike, like the prior lockout picketing,
was a protected concerted activity and the drivers may not
be deprived of their jobs for engaging in it, even though the
strike was not authorized because they did not wait for the
strike vote the Union had scheduled for August 28,42 or
because they did not otherwise comply with internal union
procedures 43
Lastly, I find no substantial business or other legitimate
reason in the record for the Respondent's refusal to
reemploy the nine named drivers 44 who personally applied
for jobs after operations were resumed or in its failure to
rehire the other former drivers who filed new employment
applications. As these employees have been found to have
been unlawfully discharged because of their earlier
protected union and concerted activity, I conclude that the
Respondent's refusal to reemploy them constitutes inde-
pendent unfair labor practices under Section 8(a)(1) and (3)
of the Act 45 As Henry Williams, one of the named
individuals, was not rehired for the additional reason that
his name was included in the unfair labor practice charge
filed herein on his behalf, I further find that such
discrimination violated Section 8(a)(4) of the Act.
In making my above findings, I have given careful
consideration to the Respondent's reliance on the principle
enunciated by the court in Draper and followed in several
other cases to justify the discharge and refusal to reinstate
the drivers in question and perceive no factual basis for its
position. In the cited cases,46 a dissident minority engaged
in a wildcat strike which preempted or undermined the
authority of the employees' exclusive representative in its
negotiations with the employer, and thereby interfered with
the normal bargaining process. As shown above, there was
no such unwarranted wildcat strike by the Edmonds-
Covington group. On the contrary, the picketing that
occurred was to protest the unlawful discharges and the
imposition of unilaterally established terms inferior to those
previously offered to the Union, as a condition of
42 As indicated above, the Edmonds-Covington group, however,
conducted its own strike ballot on August 25 which resulted in a vote of 80
to 0 in favor of striking.
43 N.L R B v. Deena Artware, Inc, supra.
44 Covington, Ben Edmonds , Highbaugh, Crutcher, Rhea, Henry
Williams, Elliott, Sweatt, and Childress.
45 In view of the fact that the remedy of reinstatement and backpay
would be the same, it is unnecessary to decide whether it would have been
futile for the remaining discharged drivers to apply for reinstatement
Certainly, the Act does not require unlawfully terminated employees to do
so
46 N.L.R B. v Draper Corporation, 145 F 2d 199 (C.A. 4), setting
reemployment as new employees. Accordingly, I reject the
Respondent's contention as lacking in merit.
In addition to the foregoing, I find that the Respondent
engaged in other unfair labor practices during the course of
the drivers' protected union and concerted activity.
Specifically, I find that on September 4 President Hunt,
after criticizing the activities of the drivers associated with
the Edmonds-Covington group, warned both expressly and
by implication that Edmonds, Covington, and other drivers
would never return to work for that reason. Clearly, such an
ominous threat for engaging in protected union and
concerted activity, which later became a reality, violated
Section 8(a)(1) of the Act. I further find that Hunt's
solicitation of drivers to abandon the picket line and return
to work as new employees under the unilaterally estab-
lished terms on the occasion of the Respondent's abortive
attempt to resume operations on August 25 necessarily
undermined the Union's representative status in violation
of Section 8(a)(5) and (1) of the Act. Similarly in derogation
of the Union's bargaining status was the Respondent's
conduct in acceding to the request of drivers Marlnee and
Pennell to restore the Company's previously withdrawn
offer of 42-46-48 percent commissions to induce the
drivers to sign a back-to-work petition, as was its conduct in
preparing and participating in the circulation of such a
petition. There is room for little doubt that conduct of this
nature also violated Section 8(a)(5) and (1) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent cease and desist from
engaging in the unfair labor practices found and in like and
related conduct and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent unlawfully discharged
all its drivers on August 17, 1970, and subsequently refused
to rehire a substantial number of them when it resumed
operations on September 25, 1970. I, therefore, recommend
that the Respondent offer the drivers who have not yet been
recalled 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 by reason of their
discharge, by payment to each of them of a sum of money
equal to that which each one normally would have earned
from the date of discharge to the date of the offer of
reinstatement ,47 less his net earnings during the said
period48 As for those drivers who have returned to work, it
appears that they were rehired as new employees and that
aside 52 NLRB 1477 (union agreed to postpone negotiating meeting to
new date and employees struck to compel earlier meeting), Harnischfeger
Corporation v. N.L R.B, 207 F.2d 575 (C.A. 7), setting aside 103 NLRB 47
(walkout because of dissatisfaction with the manner in which the union
negotiating committee was bargaining); N.L R B v. Sunbeam Lighting
Company, Inc., 318 F.2d 661 (C.A. 7), setting aside 136 NLRB 1248
(walkout while bona fide contract negotiations were in progress).
47 The record shows that the parties concluded a collective-bargaining
contract on September 23, 1970. Consequently, the commissions therein
provided shall govern the computation of backpay after that date.
48 See N.L.R.B. v Armour & Co., 154 F.2d 570, 577 (C.A. 10). As a
number of drivers held other regular jobs at the time of their wrongful
(Continued)
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they also may have suffered loss of pay as a result of their
unlawful discharge. Accordingly, I recommend that the
Respondent take the same action concerning reinstatement
and backpay with respect to these employees as is
recommended above with respect to the nonrecalled
employees. Backpay shall be computed with interest on a
quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. To facilitate the computa-
tion, as well as to clarify the named employees' rights to
reinstatement and employment, the Respondent shall make
available to the Board, upon request, payroll and other
records necessary and appropriate for such purposes. I
further recommend that the Respondent notify these
employees of their right to reinstatement on application if
they are serving in the Armed Forces of the United States.
The posting of a notice is also recommended.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and part-time drivers, together with
garage employees of the Respondent employed at its
facility, exclusive of all personnel department employees,
office clerical employees, porters, salaried employees,
professional employees, guards, and all supervisors as
defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By discharging its employees and refusing to
reinstate them to their former jobs because they engaged in
union and concerted activities protected by Section 7 of the
Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
6. By refusing to reinstate an employee because his
name appeared in the unfair labor practice charge filed
herein on his behalf as one of the unlawfully discharged
individuals, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(4) of the Act.
7. By unilaterally establishing new terms and conditions
of employment without first notifying and bargaining with
the Union; by dealing with individual employees with
respect to terms and conditions of employment in
derogation of the Union's exclusive representative status;
by soliciting drivers to abandon the picket line and return
to work as new employees under the unilaterally estab-
lished terms; and by preparing and participating in the
circulation of a back-to-work petition based on the
employees' acceptance of terms and conditions of.employ-
ment contained in a tentative agreement it had previously
withdrawn but which it reoffered to employees to induce
them to sign the petition, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
8. By threatening to discharge and refuse to reemploy
drivers in reprisal for their protected union and concerted
activity, the Respondent has engaged, and is engaging, in
unfair labor practices in violation of Section 8(a)(1) of the
Act.
9. The aforesaid unfair labor practices affect commerce,
within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent has not violated the Act by
promising employees a preference in selection of cabs to
induce them to sign the back-to-work petition, as alleged in
the complaint.
[Recommended Order omitted from publication.]
discharge in addition to driving for the Respondent, the earnings from the
regular jobs, of course, may not be considered in determining the
Respondent's backpay liability under the terms of this Order.