Sida of Hawaii, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1971

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

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sida of Hawaii, Inc. and Drivers, Helpers and Ware-
housemen Local # 1 (IND.), Petitioner. Case 37-
RC-1652
June 15, 1971
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Wilma K. Tice. Fol-
lowing the hearing and pursuant to Section 102.67 of
the National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as
amended, and by direction of the Acting Regional Di-
rector for Region 20,' this case was transferred to the
National Labor Relations Board for decision. There-
after, the Petitioner filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce' within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The labor organizations2 involved claim to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
4. The Petitioner and the Intervenor seek a unit com-
posed of dispatchers and taxicab drivers who, they con-
tend, are employees of the Employer. The Employer
argues that the drivers are independent contractors.3
Sida, the Employer, was organized in 1963 by ap-
proximately 85 taxicab drivers. One purpose of Sida's
organization was to obtain a concession from the State
of Hawaii to provide taxi service to and from the
Honolulu International Airport. Under its agreement
with the State, Sida is not required to furnish these
' The Employer points out that the Board's dollar volume jurisdictional
standard for retail enterprises will be met in this case only if, contrary to its
contention, the taxicab drivers involved herein are its employees. As we
make such a finding, infra, it follows that the Employer has met these
standards.
2 Hawaii Teamsters & Allied Workers, Local 996, hereinafter called the
Intervenor, was permitted to intervene at the hearing in accordance with
Section 102 65 of the National Labor Relations Board Rules and Regula-
tions
9 The parties stipulated at the hearing that the dispatchers should be
included in the unit.
services through taxicabs owned by it, but rather is
permitted to utilize the services of drivers who own
their own cabs.
At the present time, Sida owns no cabs itself. It holds
itself out to the public, however, as the operator of the
cabs driven by the 250 drivers under contract with it.
This contract permits the drivers to operate their taxi-
cabs out of the Honolulu Airport as well as out of
various hotels in the Honolulu area. The contract
places upon the drivers certain requirements and re-
strictions which are called for in Sida's license from the
State.
Thus, drivers are required to provide their own cabs
and to maintain and carry liability insurance on these
vehicles at their own expense. Drivers keep their fares,
but are required to pay a monthly fee to Sida. Drivers
must keep a record of all trips to and from the airport
and submit these records to Sida so that a calculation
can be made as to the amount due to the State. Drivers
operating out of hotels must maintain trip records to
comply with regulations of the city and county of
Honolulu.
The contract between Sida and the drivers can be
terminated by either party upon 7 days' written notice.
In addition, Sida has the right to suspend the drivers
if they fail to comply with the requirements in the
contract and Sida's rules and regulations. In the event
a driver is suspended, Sida has the sole discretion to
either reinstate the driver, with or without restrictions,
or to terminate the relationship.
Sida's rules and regulations require drivers to wear
uniforms consisting of a white shirt with a blue collar,
black trousers, black shoes, and black socks. Drivers
obtain these uniforms at their own expense through
Sida, who has an arrangement with a local clothing
manufacturer. In addition, drivers are required to wear
name tags on their uniforms, bearing the legend "SIDA
OF HAWAII, INC." followed by the name of the
driver. All cabs must carry Sida dome lights. The rules
and regulations impose restrictions on the personal ap-
pearance of the drivers and state that a driver will be
fired for damaging or destroying notices placed on any
Sida bulletin board.
These rules and regulations set out the amount of
insurance required on cabs, prohibitions on littering
airport property, and rates to be charged for carrying
passengers and handling baggage. In addition, cabs are
required to be maintained in excellent mechanical con-
dition, must be cleaned and polished, and all dents
must be repaired promptly. Drivers are either sus-
pended or terminated for turning down short trips, for
rudeness to passengers, for failure to follow instruc-
tions of Sida's dispatchers, and for falsifying records.
Moreover, the rules list 20 activities which are ex-
pressly forbidden, including honking horns, gambling,
191 NLRB No. 46
SIDA OF HAWAII, INC. 195
sleeping in cabs, fraternizing with dispatchers, and loi-
tering.
While drivers set their own schedules, can choose to
work either out of the airport or out of the hotels with
which Sida has concessions, and pay for their own
health insurance, social security taxes, and unemploy-
ment benefit insurance fees, all prospective drivers
must fill out an application form which is approved by
Sida's manager who checks the applicant's police
record. In addition, the manager and the president of
Sida investigate passenger complaints and initiate disci-
plinary actions for infractions of the above rules. More-
over, Sida advertises its cab operation in the yellow
pages of the telephone directory and provides identifi-
cation cards which drivers are urged to place in the
back of the front seat of their cabs.
It is well settled that, in determining the status of
persons alleged to be independent contractors, the Act
requires application of the "right of control" test.'
Thus, where the person for whom services are per-
formed retains the right to control the manner and
means by which the result is to be accomplished, the
relationship is one of employment. Where control is
reserved only as to the result sought, the relationship
is one of independent contractor. The resolution of this
question depends on the facts of each case, and no one
factor is determinative.'
While certain factors in the instant case suggest in
isolation that the drivers are independent contractors,
the record as a whole convinces us that Sida in fact
retains sufficient control over their activities to warrant
a finding of the existence of an employee-employer rela-
tionship. Thus, we do not regard as controlling the
facts that Sida does not make the usual payroll deduc-
tions for the drivers; that drivers own their own vehi-
cles, provide insurance, and maintain them at their own
expense; that they can choose their own schedule and
area of operation; that they keep their own fares and
pay for their uniforms and health insurance. We find,
rather, that these factors are outweighed by others
which amply demonstrate the effective control Sida
exercises over the operations of the drivers, and that, on
balance, this control is sufficient to warrant a finding
that they are employees rather than independent con-
tractors. We make such a finding notwithstanding lan-
guage in the drivers' contract with Sida to the contrary.
In arriving at this conclusion, we note particularly
the following circumstances: (1) All prospective drivers
are interviewed and their police records are checked
before they can drive for Sida. (2) Sida uniforms and
name tags are required of all drivers. (3) All drivers
must sign a contract with Sida before being allowed to
commence employment. (4) Sida has the right to sus-
pend or terminate any driver who fails to comply with
the contract and with Sida's rules and regulations. (5)
Sida has the sole discretion to decide whether or not a
driver should be reinstated, and, if so, under what con-
ditions. (6) Strict regulations are placed upon the
amount drivers can charge for various services and
upon the personal appearance and conduct of drivers.
(7) Sida enforces rules concerning the appearance and
mechanical condition of cabs. (8) Sida advertises its cab
operation in the yellow pages. (9) Complaints against
drivers are investigated by Sida, and, where appropri-
ate, disciplinary action is taken.
The Petitioner contends that, in the event the drivers
are found to be employees, those drivers who are stock-
holders in the Employer should not be excluded. We
find no merit to this argument. Sida has approximately
142 stockholders, with each stockholder possessing 1
share of stock. Twenty-seven of the stockholders are
individuals who were at one time, but are no longer,
drivers for Sida. The remaining 115 stockholders are
active drivers. Thus, out of a total of 250 drivers, 115
have a proprietary interest in the Employer.
The stockholders meet annually to elect a board of
directors from among themselves.' The board of direc-
tors selects the officers of the Employer, all of whom are
stockholders, and all of whom normally are active driv-
ers, with the exception of the manager who devotes his
time exclusively to the operation of the business.
The record also discloses that some preferential
treatment is enjoyed by stockholder drivers over non-
stockholder drivers: they receive a rebate on their
monthly dispatch fees when they are ill or their vehicles
are being repaired so that they cannot drive. We are
persuaded in the instant case, with such a large percent-
age of the stockholders in the position of drivers, that
they have an effective voice in determining policy as
well as their terms and conditions of employment
through their selection of the directors.' This being the
case, to include stockholders in the unit would be inap-
propriate because of the considerable adverse impact
on the nonshareholder drivers. Moreover, the Em-
ployer's officers and directors would, in effect, be
placed in a position of bargaining with stockholder
drivers who held the power to oust them from their
positions, a situation hardly conducive to arm's length
collective bargaining. Consequently, we shall exclude
stockholder drivers from the unit.
Accordingly, we find, on the basis of the entire
record, that the following unit is appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
4 Trade Wind Transportation Company, Ltd., and Trade Wind Services,
Ltd., d/b/a/Trade Wind Taxi, 168 NLRB 860, 185 NLRB No. 75.
5 National Freight, Inc., 146 NLRB 144.
6 Only one director is not a stockholder and apparently is not a driver
' Cab Services, Inc, d/b/a Red and White Airway Cab Company, 123
NLRB 83
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees of the Employer employed as taxi-
cab drivers and dispatchers at the Employer's
place of business in Honolulu, Hawaii, excluding
all other employees , stockholder drivers, office
In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them. Excelsior Underwear
Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Co., 394 U S. 759.
Accordingly , it is hereby directed that an election eligibility list, containing
clerical employees , guards, watchmen, and super-
visors as defined in the Act.
[Direction of Elections omitted from publication.]
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 20 within 7 days of the
date of this Decision and Direction of Election . The Regional Director shall
make the list available to all parties to the election . No extension of time
to file this list shall be granted by the Regional Director except in extraordi-
nary circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed.