Stamford Taxi

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1372 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1372
Stamford Taxi, Inc. and International Union, United
Automobile, Aerospace & Agricultural Imple-
ment Workers of America, Local 376. Case 34–
CA–7532
December 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On May 20, 1999, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions as
further discussed below, and to adopt the recommended
Order as modified and set forth in full below.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
The Respondent additionally argues that the judge’s conduct demon-
strated bias against the Respondent; that he prejudged legal issues
against the Respondent; and that the judge thus improperly refused to
recuse himself from this proceeding. On careful consideration of the
judge’s decision and the entire record, we are satisfied that the Respon-
dent’s contentions are without merit.
The Respondent requests that the Board take administrative notice of
(1) proposed regulations by the Connecticut Department of Transporta-
tion (CDOT) of the taxicab industry in that state; and (2) Hanson v.
Transportation General, Inc., 245 Conn. 613, 716 A.2d 857 (1998).
We decline to take administrative notice of the former, because the
proposed regulations were not in effect during the time period relevant
to this case. We shall take administrative notice of the latter, in which
the Connecticut Supreme Court found one taxicab driver to be an inde-
pendent contractor for purposes of that state’s workers’ compensation
system. That case involved another employer and different facts, how-
ever, and thus is of limited relevance to this case.
2 We find meritless the Respondent’s exception to the judge’s refusal
to admit into evidence business cards assertedly used by five drivers to
generate their own taxicab business. The record shows that the Re-
spondent was unable to authenticate the business cards. We further
find that the judge, for the reasons set forth in his decision, properly
refused to rely on an affidavit which the Respondent asserted supports
its interpretation of the recognition agreement executed by the parties.
Finally, the Respondent contends that the judge erred in failing to con-
sider a deposition in which one driver described himself as self-
employed. However, we find that even if we were to receive this evi-
dence, it would not alter our agreement, discussed infra, with the
judge’s finding that the drivers are statutory employees.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 363
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The relevant factual background is set forth in full in
the judge’s decision and briefly summarized here. The
Union campaigned to organize the Respondent’s taxicab
drivers in the summer of 1995. On January 11, 1996,4
the drivers went on strike, which resulted in the parties
entering into a written agreement granting recognition to
the Union as the representative of a bargaining unit of
approximately 70 drivers. As a consequence of having
secured the recognition agreement, the drivers ended the
strike and returned to work.
The parties thereafter held seven negotiating sessions
between January and May 1996. The main point of con-
tention was the amount of fees the drivers are required to
pay the Respondent pursuant to their lease agreements
with the Respondent. On May 14, about 42 drivers re-
fused to pay to the Respondent the daily train station fee
required by their lease agreements. In response the Re-
spondent terminated their leases. The NLRB’s Regional
Office 34 subsequently refused to issue complaint on the
Union’s charge alleging the lease terminations to be
unlawful, and the General Counsel’s Office of Appeals
found the withholding of fees to be an unprotected partial
strike. The Respondent thereafter withdrew recognition,
refused to bargain with the Union, unilaterally changed
unit drivers’ lease terms, and engaged in direct dealing
with the drivers regarding those terms.
On May 20, the drivers authorized a strike. Continu-
ing to show their prounion adherence in support of the
Union were the drivers whose leases had been termi-
nated. Between May 20 and November 27, 13 or 14 of
the drivers who had had their leases terminated and had
been prounion adherents individually returned to the Re-
spondent and requested new leases. The Respondent
accepted 10 or 11 of those drivers back to employment,
on condition that they repay withheld fees, and enter into
new leases containing the new flat-fee weekly terms
which the Respondent unilaterally implemented on May
20. The Respondent refused, however, to hire discrimi-
natees Augustine Solinaire, Andre Chery, and Max
Lucien, as further discussed infra.
On November 27, the Union made “an unconditional
offer to return to work on behalf of all your employees
that it represents.” Between December and June 1997,
the Respondent entered into lease agreements with seven
newly hired drivers. It refused to consider as applicants
for those openings, however, any of the drivers it had
formerly employed whose leases had been terminated
and who had remained prounion adherents.
4 All dates are in 1996 unless otherwise noted.
332 NLRB No. 149
STAMFORD TAXI, INC. 1373
1. We agree with the judge that the Respondent’s taxi-
cab drivers are employees within the meaning of Section
2(3) of the Act. The judge correctly observed that in
determining whether an individual is a statutory em-
ployee or an independent contractor, the Board applies
the common-law agency test and considers all the inci-
dents of the individual’s relationship to the employing
entity, with no one factor being decisive. NLRB v.
United Insurance Co., 390 U.S. 254, 258 (1968). At
other points in his decision, however, the judge described
the test he was applying as the “right-of-control” test.
Recently, in Roadway Package System, 326 NLRB
842 (1998), the Board reexamined the test for determin-
ing whether an individual is an employee or an inde-
pendent contractor. On the basis of its analysis of Su-
preme Court precedent, the Board concluded that the
common-law agency test is the standard to determine the
distinction between employee and independent contrac-
tor status. The Board emphasized that under the com-
mon-law agency test “all of the incidents of the relation-
ship” must be considered. 326 NLRB at 850. The Board
rejected the argument that the predominant factor in the
analysis is whether an employer has a “right to control”
the manner and means of the work performed by the in-
dividual whose status is in issue, stating:

While we recognize that the common-law agency
test . . . ultimately assesses the amount or degree of
control exercised by an employing entity over an indi-
vidual, we find insufficient basis for the proposition
that those factors which do not include the concept of
“control” are insignificant when compared to those that
do. [Id.]

We accordingly examine the facts of this case under the
common-law agency test and “consider all the incidents of
the individual’s relationship to the employing entity.” Id.
The judge exhaustively reviewed the record evidence
of all the incidents of the taxicab drivers’ employment
relationship with the Respondent. Our review of the re-
cord confirms the judge’s conclusion that the drivers are
statutory employees.
The drivers here, like the drivers in issue in Roadway,
do not operate independent businesses, but rather devote
virtually all of their time, labor and equipment to provid-
ing the essential functions of the Respondent’s taxicab
business.5 The record supports the judge’s finding that
the rules maintained and enforced by the Respondent
severely restrict the drivers’ entrepreneurial opportunities
to engage in taxicab business independent of the Re-
spondent. Thus, the Respondent does not permit the

5 See Slay Transportation, 331 NLRB No. 170 (2000).
drivers to operate its registered vehicles independently or
for another taxicab company. The Respondent retains
title to the vehicles, restricting the drivers’ ability to
work for themselves, or for another taxicab company,
and severely diminishing their proprietary interest in the
taxicabs. It warns drivers that personal use of their vehi-
cles on and off duty will not be covered for insurance
purposes, further restricting the drivers’ use of the vehi-
cles to business use only on behalf of the Respondent.
The Respondent also maintains a commission-based sys-
tem whereby the Respondent’s income is directly corre-
lated to the amount of fares collected by the drivers.
Accordingly, the drivers here, like those in Roadway
found by the Board to be statutory employees, do not
ordinarily engage in outside business, have no significant
entrepreneurial opportunity for gain or loss, and lack
meaningful proprietary interest in the taxicabs. Id. at
851.
In addition, the Respondent requires that all taxicabs
be painted black and carry only the Respondent’s logo.
“Thus, the drivers’ connection to and integration in [the
company’s] operations is highly visible and well publi-
cized.” Id. Further, the drivers operate under the Re-
spondent’s elaborate and regular reporting procedure.
The Respondent maintains a system of financial account-
ing by drivers and other rules of conduct exceeding
CDOT requirements, and imposes discipline on drivers
for not complying with those rules. All these rules, along
with the imposition of a dress code and the requirement
that the drivers use the Respondent’s dispatch service,
establish that the drivers operate under the substantial
control of the Respondent. The judge additionally ob-
served that the Respondent unilaterally drafts, promul-
gates, and changes the terms of the lease agreements the
taxicab drivers are required to sign. All these factors
weigh heavily in favor of employee status.
The judge appropriately considered countervailing fac-
tors, including that the lease agreements define the driv-
ers as independent contractors, the drivers pay their own
taxes, and the Respondent makes no payroll withholdings
on their behalf. These factors are outbalanced, however,
by the factors summarized above demonstrating em-
ployee status. Substantial evidence in the record as a
whole amply support the judge’s finding that the taxicab
drivers are statutory employees.
2. The judge found, and we agree for the reasons set
forth by him, that the Respondent unlawfully withdrew
recognition from the Union as the exclusive collective-
bargaining representative of the drivers.6 In its excep-
6 Thus, we agree with the judge’s findings that the Respondent,
when it entered into the binding, written agreement recognizing the
Union as the representative of the bargaining unit of 70 drivers, agreed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1374
tions, the Respondent reiterates its affirmative defense,
rejected by the judge, that its duty to bargain with the
Union was suspended, because the Union condoned the
withholding by approximately 42 drivers of the daily
train station fee required by their lease agreements with
the Respondent. The General Counsel does not allege
that the withholding of those fees was protected conduct,
or that the Respondent’s termination of the lease agree-
ments of those drivers who withheld fees was unlawful.7
The Respondent asserts in its brief that an employer is
not obligated to continue bargaining during periods when
the union has endorsed unprotected conduct, citing
Arundel Corp., 210 NLRB 525 (1974); Phelps Dodge
Copper Products, 101 NLRB 360 (1952); and Johns-
Manville Products Corp. v. NLRB, 557 F.2d 1126 (5th
Cir. 1977), cert. denied sub nom. Oil, Chemical &
Atomic Workers v. Johns-Manville Products Corp., 436
U.S. 956 (1978). These cases are distinguishable from
the instant proceeding, however, and do not provide a
basis for privileging the Respondent’s withdrawal of
recognition and subsequent course of direct dealing with
employees.
In Arundel Corp., a Board majority held that the re-
spondent was under no obligation to meet or bargain
with the union, so long as the union’s unprotected strike
continued in violation of the parties’ no-strike agreement.
The respondent thus lawfully conditioned bargaining on
the union’s abandonment of the unprotected strike. 210
NLRB at 527. Similarly, in Phelps Dodge Copper Prod-
ucts, the Board held that the respondent’s obligation to
bargain was suspended while the union engaged in an
unprotected work slowdown during negotiations for a
new contract. The respondent resumed negotiations as
soon as the union called off the unprotected slowdown.
101 NLRB at 367–369. In each of these cases the bar-
gaining obligation was suspended only for the period of
the unprotected conduct.
The Respondent here, in contrast, did not merely sus-
pend bargaining for the duration of the unprotected con-
duct. Rather, the judge correctly found that the Respon-
dent “seized” on the drivers’ withholding of fees to with-
draw recognition entirely from the Union and engage in

to recognize the Union on behalf of “all of its drivers.” As the judge
correctly explained, the 42 drivers whose leases were cancelled were
only a portion of the larger unit of 70 employees the Respondent had
agreed to recognize. The Union therefore continued to represent the
drivers who did not withhold fees and have their leases terminated; and
further that the Union continued to represent the 10 or 11 drivers whose
leases were terminated but whom the Respondent took back on their
individual applications, as discussed infra.
7 As stated above, the Regional Director refused to issue a complaint
on the Union’s unfair labor practice charge that the Respondent unlaw-
fully terminated the drivers’ leases. The Union’s appeal was denied.
direct dealing with its employees. As the Board ex-
plained in Phelps Dodge Copper Products, “the Union’s
majority standing remained unaffected during the course
of the [unprotected conduct.]” Id. at 368. Such conduct
did not negate the Respondent’s duty to honor the Union
as the employees’ exclusive bargaining representative
and to refrain from direct dealing with unit employees.
See Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,
684–685 (1944) (circumventing the designated represen-
tative and dealing directly with employees undermines
the fundamental representation and collective-bargaining
scheme established by the Act).8 Accordingly, we agree
with the judge’s finding that the Respondent unlawfully
withdrew recognition from the Union as the exclusive
collective-bargaining representative of the drivers in vio-
lation of Section 8(a)(5) and (1) of the Act.
3. The judge applied the Wright Line9 test and found
that the Respondent discriminatorily refused to hire
Augustine Solinaire, Andre Chery, and Max Lucien
when they appeared in person at the Respondent’s facil-
ity, offered to pay the fee amounts they previously with-
held and to work under the new lease terms unilaterally
implemented by the Respondent.10 We agree with the
judge’s unfair labor practice finding for the reasons set
forth by him and for the additional reasons set forth be-
low.
In FES, 331 NLRB No. 20 (2000), the Board recently
clarified the elements of a discriminatory refusal-to-hire
violation:

To establish a discriminatory refusal to hire, the
General Counsel must, under the allocation of bur-
dens set forth in Wright Line, [supra], first show the
following at the hearing on the merits: (1) that the
respondent was hiring, or had concrete plans to hire,
at the time of the alleged unlawful conduct; (2) that
the applicants had experience or training relevant to
the announced or generally known requirements of
the positions for hire, or in the alternative, that the
employer has not adhered uniformly to such re-
quirements, or that the requirements were them-
selves pretextual or were applied as a pretext for dis-
8 Johns-Manville Products Corp. v. NLRB, supra, is inapposite. In
that case, the respondent never suspended or withdrew recognition but
rather expressed a “continuing desire to negotiate and [accord] full
recognition and acceptance of the Union,” despite employee sabotage
of plant equipment which the court found justified the Respondent’s
decision to lock out employees. 557 F.2d at 1133.
9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
10 The judge described this violation as a refusal to reinstate the three
drivers. Because the Respondent had previously lawfully terminated
their lease agreements, the violation is more aptly described as a refusal
to hire.
STAMFORD TAXI, INC. 1375
crimination; and (3) that antiunion animus contrib-
uted to the decision not to hire the applicants. Once
this is established, the burden will shift to the re-
spondent to show that it would not have hired the
applicants even in the absence of their union activity
or affiliation. [Footnotes omitted.]

FES, supra, slip op. at 4.
The judge’s findings comport with this test. The Re-
spondent was hiring drivers at the time the three dis-
criminatees applied; it had hired 10 or 11 drivers who
abandoned the strike and agreed—as did these three dis-
criminatees—to pay withheld fees and work under the
new lease terms. There is no dispute that the three dis-
criminatees had appropriate experience; they previously
had worked as taxicab drivers for the Respondent. Fi-
nally, the judge found that antiunion animus contributed
to the decision not to hire, and that the Respondent failed
to show it would not have hired them even in the absence
of their union activity.
b. The judge applied the Wright Line test and found
that the Respondent unlawfully refused to consider for
employment the drivers on whose behalf the Union made
an unconditional offer to return to work.11 We agree
with the judge’s unfair labor practice finding for the rea-
sons set forth by him and the additional reasons set forth
below.
In FES, supra, the Board also clarified the elements of
a discriminatory refusal-to-consider violation:

To establish a discriminatory refusal to consider,
pursuant to Wright Line, supra, the General Counsel
bears the burden of showing the following at the
hearing on the merits: (1) that the respondent ex-
cluded applicants from a hiring process; and (2) that
antiunion animus contributed to the decision not to
consider the applicants for employment. Once this
is established, the burden will shift to the respondent
to show that it would not have considered the appli-
cants even in the absence of their union activity or
affiliation. . . . If the respondent fails to meet its bur-
den, then a violation of Section 8(a)(3) is estab-
lished.

FES, supra, slip op. at 7.
The judge’s findings comport with this test. The judge
found that none of the approximately 32 drivers who
stayed the course of the strike were considered for em-
ployment, and that antiunion animus contributed to that

11 The judge described this violation as a refusal to consider the driv-
ers for reinstatement to their former positions. Because the Respondent
lawfully terminated the drivers’ lease agreements, this violation is
appropriately termed a refusal to consider them as applicants for em-
ployment.
decision. In contrast, the Respondent considered for em-
ployment and in fact offered new leases to 10 or 11 driv-
ers who abandoned the strike, made individual offers to
return to work, and agreed to repay withheld fees and
execute new lease agreements. The Respondent did not,
however, grant the option of repaying fees and executing
new lease agreements to the drivers who supported the
Union’s strike for its duration and who did not make in-
dividual offers to return to work.12 We agree with the
judge that this disparate treatment warrants the inference
that the Respondent’s refusal to consider the remaining
drivers for employment was motivated by their prounion
sympathies. The Respondent did not show that it would
not have considered the remaining drivers for employ-
ment absent their support of the Union.
AMENDED REMEDY
In FES, supra, the Board held that the appropriate rem-
edy for a refusal to hire violation is a

cease-and-desist order, and an order to offer the dis-
criminatees immediate instatement to the positions to
which they applied or, if those positions no longer ex-
ist, to substantially equivalent positions, and to make
them whole for losses sustained by reason of the dis-
crimination against them. [Id., slip op. at 4.]

We shall accordingly provide this remedy for the three dis-
criminatees the Respondent unlawfully refused to hire:
Augustine Solinaire, Andre Chery, and Max Lucien.
The Board further held in FES that the appropriate
remedy for a refusal to consider violation is a

cease-and–desist order; an order to place the discrimi-
natees in the position they would have been in, absent
discrimination, for consideration for future openings
and to consider them for the openings in accord with
nondiscriminatory criteria; and an order to notify the
discriminatees, the charging party, and the Regional
Director of future openings in positions for which the
discriminatees applied or substantially equivalent posi-
tions.
If job openings arise after the beginning of the
hearing on the merits, the General Counsel must ini-
tiate a compliance proceeding for the purpose of de-
12 Rather, the Union made an unconditional offer to return to work
on their behalf. We find without merit the Respondent’s contention
that the Union’s unconditional offer to return to work on behalf of the
remaining drivers was “a nullity” because it had lawfully terminated
their leases. The judge correctly explained that the drivers remained
statutorily protected from discriminatory treatment subsequent to their
lawful discharge, including for consideration as applicants for employ-
ment. Thus, the unconditional offer to return to work in the circum-
stances of this case is tantamount to an application for employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1376
termining whether the discriminatees would have
been selected for the openings in the absence of the
proven discriminatory failure to consider them for
employment. [Footnotes omitted.]

Id., slip op. at 7.
Here, the record shows that the Respondent hired at
least 7 new drivers following its discriminatory refusal to
consider approximately 32 drivers for employment. In
these circumstances, it is established that the Respondent
had seven job openings for drivers, and that absent its
unlawful conduct it would have hired seven of the driv-
ers who it had previously employed. Under the frame-
work set forth in FES, instatement to three of those seven
job openings shall be offered to discriminatees Solinaire,
Chery, and Lucien; and instatement to the remaining four
of those seven job openings shall be offered to four of
the discriminatees the Respondent unlawfully refused to
consider for employment.13
The number of applicants the Respondent unlawfully
refused to consider for employment, however, exceeds
the number of available jobs. Thus, if job openings arise
subsequent to the beginning of the hearing, the General
Counsel must initiate a compliance proceeding for the
purpose of determining whether the remaining discrimi-
natees would have been selected for the openings in the
absence of the proven discriminatory failure to consider
them for hire. FES, supra, slip op. at 7.14
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Stamford Taxi, Inc., and Tibbetts Enter-
prises, Inc., a single employer, of Stamford and Green-
wich, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from

13 The identity of the four discriminatees is to be determined in the
compliance stage of this proceeding. This is the appropriate remedy
because, for the same reasons set forth above in Sec. 3 regarding dis-
criminatees Solinaire, Chery, and Lucien, the General Counsel has
established that the Respondent unlawfully refused to hire four of the
discriminatees into these four additional open positions.
14 The Respondent has excepted to the judge’s recommended remedy
requiring it to preserve and, on request, provide at the office designated
by the Board or its agents, copies of specified records necessary to
analyze the amount of backpay due under the terms of the Board’s
Order. The Respondent’s exception, however, does not meet the mini-
mum requirements of Sec. 102.46(b) of the Board’s Rules. The Re-
spondent merely cites to the judge’s decision and fails to allege, either
in its exceptions or its supporting brief, the particular error it contends
the judge committed or on what grounds it believes the judge’s remedy
should be overturned. In these circumstances, we find, in accordance
with Sec. 102.46(b)(2), that the Respondent’s exception on this point
may be disregarded. See Show Industries, 312 NLRB 447 (1993).
(a) Failing and refusing to hire employees because
they engaged in protected concerted activities in support
of the International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America,
Local 376.
(b) Failing and refusing to consider applicants for em-
ployment because they engaged in protected concerted
activities in support of the International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America, Local 376.
(c) Refusing to recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit:
All drivers, lessees and sub-lessees, employed by Re-
spondent; excluding all other employees, guards, and
professional employees and supervisors as defined in
the Act.
(d) Withdrawing recognition from the Union as the
collective-bargaining representative of the employees in
the above-described unit; failing and refusing to bargain
with the Union on its request to do so; bypassing the Un-
ion and dealing directly with the unit employees by solic-
iting them to enter into new lease agreements; and uni-
laterally changing the terms and conditions of employ-
ment of unit employees, including the amount and pay-
ment of lease rates, without notifying or affording the
Union an opportunity to bargain with respect to this con-
duct.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative of the
employees in the above-described unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
(b) Within 14 days from the date of this Order, offer
Augustine Solinaire, Andre Chery, and Max Lucien in-
statement to the positions to which they applied or, if
those positions no longer exist, to substantially equiva-
lent positions.
(c) Make Augustine Solinaire, Andre Chery, and Max
Lucien whole for any loss of earnings and other benefits
sustained by reason of the discrimination against them, in
the manner set forth in the remedy section of the judge’s
decision.
(d) Offer instatement to four additional discriminatees,
whose identity is to be determined in the compliance
stage of this proceeding consistent with the amended
STAMFORD TAXI, INC. 1377
remedy section of this Decision and Order, to the posi-
tions to which they applied or, if those positions no
longer exist, to substantially equivalent positions and we
will make them whole for any loss of earnings and other
benefits sustained by reason of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s decision.
(e) Consider the remaining discriminatees for future
job openings that arise subsequent to the beginning of the
hearing in accord with nondiscriminatory criteria, and
notify the discriminatees, the Charging Party, and the
Regional Director for Region 34 of such openings in
positions for which the discriminatees applied or sub-
stantially equivalent positions, in the manner set forth in
the amended remedy section of this Decision and Order.

(f) If the Union so desires, revoke and cease giving ef-
fect to the changes in the unit employees’ terms and con-
ditions of employment which were implemented on or
after May 20, 1996; and make the employees whole for
any losses they may have suffered as a result of such
changes, in the manner set forth in the remedy section of
the judge’s decision.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Augustine Solinaire, Andre Chery, and Max Lucien, and
within 3 days thereafter notify them in writing that this
has been done and that the refusal to hire them will not
be used against them in any way.
(h) Remove from its files any reference to the unlawful
refusal to hire four additional discriminatees, whose
identity is to be determined in the compliance stage of
this proceeding, and notify them in writing that this has
been done and that the refusal to hire them will not be
used against them in any way.
(i) Remove from its files any reference to the unlawful
refusal to consider for employment the remaining dis-
criminatees, whose identity is to be determined in the
compliance stage of this proceeding, and notify them in
writing that this has been done and that the refusal to
consider them for employment will not be used against
them in any way.
(j) Preserve and, within 14 days of a request, provide
at the office designated by the Board or its agents, a copy
of all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order. If
requested, the originals of such records shall be provided
to the Board or its agents in the same manner.
(k) Within 14 days after service by the Region, post at
its places of business in Stamford and Greenwich, Con-
necticut, copies of the attached notice marked “Appen-
dix,”15 which shall be printed in Haitian and in English.
Copies of the notice, on forms provided by the Regional
Director for Region 34, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that the no-
tices are not altered, defaced, or covered by any other
material. The Respondent shall also duplicate and mail,
at its own expense, a copy of the notice to all drivers then
employed by it during the week of May 13, 1996, upon
whose behalf the Union unconditionally requested rein-
statement on November 27, 1996, but who have not, to
the date of this Order, been considered for employment.
In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed
the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
May 16, 1996.
(l) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection

15 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1378
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to hire employees be-
cause they engaged in protected concerted activities in
support of the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of Amer-
ica, Local 376.
WE WILL NOT fail and refuse to consider applicants
for employment because they engaged in protected con-
certed activities in support of the International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, Local 376.
WE WILL NOT refuse to recognize and bargain with
the Union as the exclusive representative of the employ-
ees in the following appropriate unit:
All drivers, lessees and sub-lessees, employed by us;
excluding all other employees, guards, and professional
employees and supervisors as defined in the Act.
WE WILL NOT withdraw recognition from the Union
as the collective-bargaining representative of the em-
ployees in the above-described unit; fail and refuse to
bargain with the Union on its request to do so; bypass the
Union and deal directly with you by soliciting you to
enter into new lease agreements; and unilaterally change
your terms and conditions of employment, including the
amount and payment of lease rates, without notifying or
affording the Union an opportunity to bargain with re-
spect to this conduct.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL on request, bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the above-described unit con-
cerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
WE WILL, within 14 days from the date of the
Board’s Order, offer Augustine Solinaire, Andre Chery,
and Max Lucien instatement to the positions to which
they applied or, if those positions no longer exist, to sub-
stantially equivalent positions.
WE WILL make Augustine Solinaire, Andre Chery,
and Max Lucien whole for losses sustained by reason of
our discrimination against them, plus interest.
WE WILL offer instatement to four additional dis-
criminatees to the positions to which they applied or, if
those positions no longer exist, to substantially equiva-
lent positions.
WE WILL make them whole for losses sustained by
reason of the discrimination against them, plus interest.
WE WILL consider the remaining discriminatees for
future job openings in accord with nondiscriminatory
criteria, and notify them, the Charging Party, and the
Regional Director for Region 34 of future openings in
positions for which the discriminatees applied or sub-
stantially equivalent positions.
WE WILL if the Union so desires, revoke and cease
giving effect to the changes in the unit employees’ terms
and conditions of employment which we implemented on
or after May 20, 1996; and make the employees whole,
with interest, for any losses they may have suffered as a
result of such changes.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusal to hire Augustine Solinaire, Andre
Chery, and Max Lucien, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the refusal to hire will not be used
against them in any way.
WE WILL remove from our files any reference to the
unlawful refusal to hire four additional discriminatees,
whose identity is to be determined in the compliance
stage of this proceeding and WE WILL notify them in
writing that this has been done and that the refusal to hire
them will not be used against them in any way.
WE WILL remove from our files any reference to the
unlawful refusal to consider for employment the remain-
ing discriminatees whose identity is to be determined in
the compliance stage of this proceeding, and WE WILL
notify each of them in writing that this has been done and
that the refusal to consider them for employment will not
be used against them in any way.
STAMFORD TAXI, INC. AND TIBBETTS
ENTERPRISES, INC.
Rick Concepcion, and Jennifer F. Creaturo, Esqs., for the General Counsel.
Sigismund L. Sapinski Jr., Esq. (Updike, Kelly & Spellacy, P.C.), for the Respondent.
Thomas W. Meiklejohn, Esq. (Livingston, Adler, Pulda & Meiklejohn, P.C.), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case was heard by me on January
12, 13, and 14, February 25, 26, and 27, and March 17, 1998, in Hartford, Connecticut. The
complaint alleges that Stamford Taxi, Inc. (Respondent) withdrew its recognition of the Inter-
national Union, United Automobile, Aerospace & Agricultural Implement Workers of America,
Local 376 (the Union) as the exclusive collective-bargaining representative of its drivers,
lessees and sublessees, has failed and refused to recognize and bargain with the Union as the
exclusive collective-bargaining representative, and bypassed the Union and dealt directly with
its employees in the unit by soliciting employees to enter into new lease payment agreements,
and changed the amount of payment terms of its lease rates without prior notice to the Union,
and without affording the Union an opportunity to bargain with Respondent with respect to this
conduct, in violation of Section 8(a)(1) and (5) of the Act.
STAMFORD TAXI, INC. 1379
The complaint also alleges that, following a strike engaged in by certain employees of Re-
spondent and an unconditional offer to return to work made by the Union on their behalf,
Respondent, by letter, failed and refused to consider reinstatement of the employees to their
former positions of employment, in violation of Section 8(a)(1) and (3) of the Act.
By amendments to the complaint, offered and approved during the trial, Tibbetts Enter-
prises, Inc. (Tibbetts, or TE) is alleged to constitute, with Respondent, a single-integrated
business and a single employer. By further amendments, similarly approved, an alternative
jurisdictional allegation was made regarding Respondent’s functioning as an essential link in
the transportation of passengers in interstate commerce. In another allegation, approved at trial,
Respondent is alleged to have bypassed the Union and dealt directly with the drivers in the unit
by soliciting then to enter a new lease agreement. Finally, during trial, a further amendment to
the complaint was approved alleging the discriminatory failure and refusal to reinstate three
named Union affiliated drivers in violation of Section 8(a)(1) and (3) of the Act.
Respondent, by its timely filed answer, denied the commission of any alleged violations of
the Act, as well as other allegations relating to the Union’s status as exclusive bargaining
representative of the drivers. Respondent denied the original conclusionary complaint allega-
tions and amendments asserting jurisdiction over its operations, while admitting certain related
commerce allegations. Respondent also denied the amendments to the complaint alleging
further violations of Section 8(a)(1) and (5) soliciting new lease agreements, asserting the 10(b)
time bar, among other defenses, and also denied the other conclusionary 8(a)(1) and (3) allega-
tions, as well as the status of Respondent and Tibbetts as a single employer. Respondent also
admitted the status of Bruno Necatera as its manager and agent, in an allegation added, with
approval, to the complaint, but denied his status as a supervisor within the meaning of Section
2(11) of the Act.
In its answer, Respondent also asserted affirmative defenses; denying jurisdiction; that it is
an employer within the meaning of Section 2(11) of the Act; that all taxicab drivers with leases
with it are independent contractors; that any agreement it entered with the Union was expressly
conditioned on their status as independent contractors, and, was further, the product of duress
and is unenforceable.
The issues thus posed by the pleadings are the following:
1. Are Respondent and Tibbetts a single employer, and are they engaged in interstate
commerce?
2. Are Respondent’s drivers employees within the meaning of Section 2(3) of the Act?
3. Is Respondent’s assistant manager, Bruno Necatera, a supervisor within the meaning of
Section 2(11) of the Act?
4. Did Respondent agree to recognize the Union as exclusive collective-bargaining repre-
sentative of its drivers?
5. Did Respondent violate Section 8(a)(1) and (5) of the Act:
(a) By withdrawing recognition from the Union as exclusive bargaining representative
since May 16, 1996.
(b) By refusing to recognize and bargain with the Union as exclusive representative of its
drivers since the same date.
(c) By bypassing the Union and dealing directly with its drivers to enter new lease payment
agreements on May 16, 1996 and by offering new lease agreements on or about February 12,
1998.
(d) By unilaterally changing the amount and payment terms of its lease rates on or about
May 20, 1996, without prior notice to or affording, the Union, an opportunity to bargain about
these matters.
6. Did Respondent violate Section 8(a)(1) and (3) of the Act:
(a) By failing to reinstate Max Lucien, Andre Chery, and Augustine Solinaire since about
May 20, 1996.
(b) By refusing to consider for reinstatement all other drivers who remained affiliated with
the Union since about November 27, 1996, the date of the Union’s unconditional offer made on
their behalf to return to their former positions of employment.
7. As a consequence of an argument made by the Union in its posttrial brief, a further issue
is posed by it, as to whether, assuming I answer each of the above issues in the affirmative,
shall an additional remedy be imposed against the Respondent under Section 8(a)(1) and (5) of
the Act, requiring Respondent to offer reinstatement and a make-whole remedy to each driver
represented by the Union who was terminated for failing to make lease payments allegedly
immediately after the Respondent withdrew recognition from the Union.
Each party was represented by counsel and all were provided a full opportunity to introduce
relevant evidence, to examine and cross-examine witnesses, to make opening and closing
statements and to file briefs with me. Each of the parties has filed a timely posttrial brief and
they have been carefully considered.
On the entire record, including my observation of the deameanor of the witnesses, I make
the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, Respondent, a Connecticut corporation, with an office and place of
business in Stamford, Connecticut (facility), has been engaged in the business of providing
local and interstate taxicab service to the general public. During the hearing, Respondent
stipulated in writing that during the period June 1, 1996, through May 31, 1997, it derived gross
revenues in excess of $50,000 from its operations. This period covered the year immediately
preceding the issuance of complaint in this proceeding on June 20, 1997. During the hearing,
Respondent also agreed to change its earlier denial in its answer, to an admission to the allega-
tion in the complaint that during the same 12-month period ending May 31, 1997, Respondent
in conducting its business operations described, purchased and received at its facility goods
valued in excess of $5000 from other enterprises located within the State of Connecticut, each
of which other enterprises had received these goods directly from points outside the State of
Connecticut. In doing so, Respondent has thereby admitted that its activity in interstate com-
merce exceeds the de minimis level, Pioneer Concrete Co., 241 NLRB 264 (1979), enfd. 637
F.2d 698 (9th Cir. 1981), and statutory jurisdiction exists.
The complaint alleges that during the same 12-month period ending May 31, 1997, Re-
spondent, in conducting its business operations as described above, derived gross revenues in
excess of $500,000. In its Federal tax return filed for the year of 1996, the last year for which a
return had been completed during the trial, Respondent reported $700,720 in gross receipts
derived from its operations for that year. This allegation, if true, provides the basis for the
Board to assert that this Employer meets its discretionary standard for asserting jurisdiction
over all retail enterprises, including taxicab companies, such as Respondent, which provides,
through its drivers, direct transportation services to the public. Carolina Supplies & Cement
Co., 122 NLRB 88 (1958); Union Taxi Corp., 130 NLRB 814 (1961). As to this allegation,
after acknowledging the figures appearing in Respondent’s Federal income tax return, early in
the hearing, its counsel, on its behalf, entered a stipulation that in the tax year ending 1996,
Respondent received gross receipts and sales in excess of $700,000 from its operations. (Tr.
187.) At this point in the hearing Respondent had not produced income tax information regard-
ing Respondent’s business operations from the years 1991 through 1996, nor did Respondent
ever produce this subpoenaed material.
Subsequently, following an adjournment of the hearing of over a month, during which Re-
spondent had ample time to seek to properly contest the validity of the figure representing gross
receipts appearing in its 1996 Federal tax return, Respondent offered a single-page facsimile
transmission from an accountant claiming that $277,888 of the $700,720 gross receipts figure
were actually reimbursement of expenses from the drivers for liability insurance and a collision
insurance pool. The accountant was not produced to testify. The document was rejected. In
making the offer of the document, counsel for Respondent did not seek to be relieved of the
earlier entered stipulation.
Respondent made a belated and inadequate offer. I cited in support of my ruling, Bannon
Mills, 146 NLRB 611 fn. 4 at 614, and 633—634 (1964), which permits the General Counsel to
produce secondary evidence in lieu of subpoenaed but unproduced records and denies Respon-
dent leave to introduce subpoenaed but unproduced records to counter those offered by the
General Counsel. I also cited Tropicana Products, 122 NLRB 1121 (1958), which authorizes
the Board to assert jurisdiction here where the de minimis test is met, even though the discre-
tionary standard is not met, if the employer, as Respondent has failed to do, fails to disclose
information with respect to its business in interstate commerce. The Tropicana doctrine has
been applied in unfair labor practice proceedings. Pickle Bill’s, 224 NLRB 413 (1976). See
also Perdue Farms v. NLRB, 144 F.3d 830 (D.C. Cir. 1998), affirming Perdue Farms, 323
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
NLRB 345 (1997). (In an unfair labor practice proceeding, the court of appeals affirms preclu-
sion order of Administrative Law Judge Albert Metz, precluding Respondent from entering
evidence on any subjects mentioned in a subpoena, which it complied with only in part. The
court notes a party cannot “pick and choose which parts . . . it will obey and which parts it can
ignore.” (144 F.3d at 834.)
Apart from the foregoing, Respondent also stipulated that during the period June 1, 1996,
through May 31, 1997, the drivers who operated taxicabs under lease with Respondent received
fares from such operations in excess of $500,000. Assuming the drivers are found to be em-
ployees rather than independent contractors, these fares may be deemed gross receipts to the
business for providing taxi service, see Major Cab Co., 255 NLRB 1383, 1384 (1981), and
thereby meet the Board’s discretionary $500,000 retail standard for asserting jurisdiction.1
A separate ground for asserting jurisdiction relied upon by the counsel for the General
Counsel is that by virtue of the degree to which the record shows that a significant portion of
Respondent’s business consists of picking up from, and delivering customers to, the Stamford
railroad station for interstate trips from and to New York City and, further, that Respondent’s
drivers on a regular basis take customers to New York State Airports for interstate trips and
pick up customers from those airports, Respondent’s operation functions as an essential link in
the transportation of passengers in interstate commerce. See Major Cab Co., Id. Since Re-
spondent has stipulated to receiving gross revenues in excess of $50,000 from its business of
providing local and interstate taxi operations, I conclude that the Board may assert jurisdiction
over Respondent under this standard. HPO Service, 122 NLRB 394, 395 (1958).
On the basis of the foregoing, I conclude that Respondent is engaged in commerce within
the meaning of that Act. Respondent also admits, and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Corporate Relationships and Management and the Single-Employer Status of
Respondent and Tibbetts
Hubert Tibbetts has been Respondent’s president and sole owner for many years. His wife,
Gunhill Tibbetts, is Respondent’s secretary and treasurer. Tibbetts is also the sole owner and
president of two related enterprises, TE and Greenwich Taxi. Greenwich Taxi provides taxicab
service to the city of Greenwich, Connecticut, and surrounding communities, just as Respon-
dent does in Stamford and its surrounding area.
TE maintains an office and place of business at Respondent’s office at 26 Grenhart Road in
Stamford and another at Greenwich Taxi Office at Greenwich Plaza, city of Greenwich.
Tibbetts works out of TE’s Stamford and Greenwich offices, as well as from his home in
Greenwich. TE employees between 5 and 10 dispatchers at each of its Stamford and Green-
wich locations who provide dispatching services for the drivers of both Respondent and
Greenwich Taxi. Joseph Buddy Boskello, Respondent’s manager, also serves as vice president
of TE.
Boskello, who is paid his salary by Respondent, Greenwich Taxi and TE, and is also gen-
eral manager of Greenwich Taxi and TE, spends about 90 percent of his time at the Greenwich
Taxi office. He is thus responsible for supervising the dispatchers employed by TE. The
drivers, directed by these dispatchers, make fee payments to Tibbetts, TE’s owner, and
Boskello, its general manager. In managing Respondent, Boskello is also assisted by Bruno
Necatera, assistant manager, who works from an office located at a service station, Mark’s
Service Center, which he owns and operates and which is located approximately 60 yards away
from Respondent’s Stamford facility. At this office, Necatera maintains all the files relating to
Respondents’ operation, including all files related to Respondent’s drivers.
The evidence establishes that in all significant matters relating to Respondent’s personnel
relations with its drivers, including labor relations with its drivers and their representatives, as
well as with TE’s dispatchers, Tibbetts exercises final control and direction. Thus, Tibbetts
oversees Boskello’s supervision of both TE’s dispatchers and Respondent’s drivers, and
Tibbetts acts as final authority and consults frequently with Boskello regarding Respondent’s

1 Whether this alternate method of proving jurisdiction may be relied
upon will be determined in the analysis and conclusion section of this
decision.
and TE’s labor relations. Necatera as agent of both Respondent and TE is involved in the day-
to-day direction of both dispatchers and drivers.
As a consequence of the presence here of the important elements of common ownership,
common management, centralized control of labor relations, and integration of operations, I
conclude that Respondent and TE comprise a single employer under the Act. Broadcast
Employees NABET Local 2364 v. Broadcast Service of Mobile, Inc., 379 U.S. 812 (1964);
South Prairie Construction Co. v. Engineers, 425 U.S. 800 (1976). Burgess Construction, 227
NLRB 765, 773 (1977), enfd. 596 F.2d 378 (9th Cir. 1979).
B. Respondent’s Prior Labor Relations
Between 1973 and 1991, Respondent and the International Brotherhood of Teamsters
(Teamsters) were parties to a series of collective-bargaining agreements pursuant to which the
Teamsters were the exclusive bargaining representative of the drivers. Sometime around 1982,
Respondent changed its relationship with its drivers, who had been, admittedly, employees up
to that time, operating out of its own garage, and now required them to enter lease agreements
in which they were described as “independent contractors.”
In 1991, the Teamsters filed unfair labor practice charges against Respondent and Greenwich
Taxi in Cases 34–CA–5065 and 34–CA–5066 alleging that they had unilaterally changed the
driver’s health plan and failed to tender union dues.2 On March 27, 1991, the Region dismissed the
charges, relying on a determination that the drivers were independent contractors and not employ-
ees, and citing Yellow Cab, 285 NLRB 1191 (1987), in support of its dismissal. The Teamsters
appealed the Regional Director’s refusal to issue complaint. In a letter dated November 8, 1991,
denying the appeal, the General Counsel, by its Director Office of Appeals, relied on insufficient
evidence to show a unilateral change in the employee health plan or that there was a dues–checkoff
provision in the last executed agreement. The letter specifically noted that these grounds were
relied upon to sustain the dismissal, apart from the issue of whether the drivers were employees or
independent contractors, which was not resolved on the appeal. Later in 1991, the teamsters ceased
their representation of the drivers.
C. The Evidence Regarding Employee Status for the Drivers
The State of Connecticut Department of Transportation (DOT) has issued 51 Public Certifi-
cates of Convenience and Necessity to Respondent to operate cabs in Stamford and neighboring
areas. To operate the cabs Respondent maintains a complement of approximately 70 drivers.
Four individuals who were hired as drivers and drove taxicabs for Respondent during the
relevant periods were called as witnesses by counsel for the General Counsel. The following is
a composite of their testimony, and, includes, as well, references to various exhibits, which they
identified and were received in evidence. Respondent admissions have also corroborated driver
testimony.
Individuals interested in driving a cab for Respondent are referred to Necatera at his office
at Mark’s Service Center where they fill out an “Application for Employment.” The applica-
tion is used to fill both driver and dispatcher positions. The application ask for basic informa-
tion, including name, address, marital status, education, and references. But the form also
requests information on past arrests and whether the applicant prefers working days, nights,
weekends, or holidays. No specified taxicab driving test or course is required nor does Re-
spondent require applicants to demonstrate any specific knowledge regarding Stamford area
streets or locations. Respondent does require driver applicants to hold a public service license
required by the DOT to operate a taxicab in the State of Connecticut. Such a license is issued
in addition to a regular driver’s license and requires a satisfactory physical examination and
background check.
After Necatera reviews the application and interviews the prospective driver, he decides
whether or not the individual should be hired by Respondent. Necatera’s functioning in this
regard as hiring agent, satisfies at least one of the indicia for achieving supervisory status under
the Act. The record shows Necatera meeting other statutory criteria as well in his dealing with
drivers. Thus, depending upon the status of the drivers as employees under the Act. I find
Necatera to be a statutory supervisor, as alleged in the complaint amendment.
2 Apparently, the Teamsters represented the Greenwich Taxi drivers
as well as Respondent’s.
STAMFORD TAXI, INC. 1381
Once hired, a driver who doesn’t own a vehicle is provided a vehicle by Necatera which he
can finance through Respondent or Necatera assigns the driver as a sublessee to another of
Respondent’s drivers. Once provided, the vehicle is equipped with a two-way radio, a meter is
painted black if it is not already that color, and Respondent affixes the “Stamford Taxi” logo to
the vehicle. Necatera supplies the drivers with the equipment and logo, which are purchased by
the driver and installed at Mark’s Service Center.
If the driver already owns a vehicle at the time of hire, Necatera will make a determination
as to its suitability for use as a taxi, and then, if approved, will then arrange for the proper
equipment to be purchased and installed in the vehicle by Mark’s Service Center. Either at the
time of hire or shortly afterward, Necatera presents the driver with a lease agreement which he
must sign in order to drive a cab for Respondent. Necatera will also assign the driver to one of
two possible work shifts established by Respondent, depending upon Respondent’s needs at the
time. The shifts are a day shift from 5 a.m. to 4 p.m. and night shift from 4 p.m. to 3 a.m.
Respondent also requires the drivers to work 6 days a week, and Necatera selects the
driver’s day off. Drivers are required to report to the dispatcher upon beginning their shift and
continue to report their location to the dispatcher throughout their shift, including when they
leave duty to take a break for lunch, coffee, or dinner. A driver cannot change his hours of
work, by starting or ending work earlier or later, without first obtaining Respondent’s permis-
sion, in particular, Necatera’s permission. Respondent has permitted drivers to continue to
work behind their shift but it alone determines the circumstances, which includes a continuing
demand for customer services beyond the capacity of the drivers on duty to supply.
In presenting the lease agreement to the drivers, Necatera does not explain the lease terms
nor the specific amounts of money representing weekly and daily fees the drivers are obligated
to pay under the agreement. Neither are the drivers provided with the time or opportunity to
review the agreement overnight or to have it reviewed by a representative of their choosing.
The lease describes the relationship as one between lessor and lessee “with the lessee being
an independent contractor, free from interference or control by lessor in the operation of the
taxicab.” (GC Exh. 20, p. 3.) While Payson Ayres, the only driver witness called by Respon-
dent, had the amounts filled in on the schedules attached to his last 1996 agreement, each of the
drivers who testified for the Government, had the amounts blank on these schedules which
otherwise described the weekly and daily fees the drivers were required to pay. None of the
driver witnesses, including Ayres, however, could explain what some of the “management” or
“lease” fees represented. In addition to the other fees described, the driver must pay Respon-
dent a weekly lease fee and, if the driver is financing the vehicle and equipment through
Respondent, he must make a weekly payment on his vehicle and equipment loan.
The drivers are required to insure their vehicles through Respondent and are required to
make weekly payments for automobile liability insurance and an internal collision repair pool.
Group medical insurance is also available through Respondent for those drivers willing to make
a weekly payment. In addition to the weekly lease payments and the other weekly payments,
including car and equipment loan repayments, for group medical, automobile liability, and the
collision repair pool, the drivers are also obligated to pay certain daily fees for dispatching
services, described in the lease agreement as covering “telephone call service, radio dispatch
service, customer billing and advertising support.” As earlier noted, none of the amounts were
set forth in the drivers’ lease agreements executed in 1994, and received in evidence.
The lease agreements, which by their terms were weekly and automatically renewed until
cancelled by written notice by either lessee or lessor, continued in effect for substantial periods
of time exceeding 1 or 2 years or more, until Necatera or Boskello required drivers to sign new
ones. Respondent presented new leases when it decided to change lease terms or to increase
the amount of weekly or daily fees paid by drivers. One of these occasions arose in 1992 or
1993 when the DOT increased the regulated fares, which cabs could charge for metered rides.
On another occasion, Respondent unilaterally withdrew the workmen’s injury pool it had
offered to drivers because in its view the associated costs became too high and removed this
term from its lease agreement. The drivers had no input into either decision. Neither had
drivers any say on lease terms, the amounts of payments required under the lease, or the draft-
ing of the agreements.
With respect to the vehicles, whether supplied by the drivers or Respondent, the title and
registration must be transferred to Respondent and placed in Respondent’s name. Respondent
registers and obtains the license plates for the vehicle, but the costs of both are borne by the
driver. Once the driver completes all financing and loan payments on a vehicle provided by
Respondent, the title is not transferred to the driver but is retained by Respondent until the
vehicle is no longer being used as a taxicab for Respondent. Drivers who have requested the
transfer of title after completing such payments, have been denied. The ostensible reasons
provided by Respondent for this requirement varied from witness to witness, but were in each
case, unsatisfactory. Tibbetts claimed the title was retained for insurance purposes but without
providing a satisfactory rationale. Boskello, at one point, offered to return the title to drivers
who had fully paid all charges, including loan charges, for the vehicle, but then repeated
Respondent’s position of retaining title while the vehicle was still servicing Respondent cus-
tomers. Necatera, who handled insurance matters for Respondent, did not assert that Respon-
dent’s policy mandated title in Respondent, but saw its retention as providing collateral for
possible repairs a driver might have done on the vehicle. The inconsistent and flimsy responses
point to title retention under the circumstances described as a device to permit Respondent to
maintain constructive control over the vehicle which for the driver is his sole means of opera-
tion.
The black colored vehicles must display the Stamford Taxi logo on the exterior driver and
passenger side front doors. The logo, which is affixed at Mark’s Service Center, is paid for by
the driver. Necatera informs drivers that no other advertisement may be displayed on the
interior or exterior of the vehicle, although the lease agreement, to the contrary, appears to
permit such display, but only with the lessor’s written consent. This restriction reinforces
Respondent’s position that the vehicle its drivers operate may not be operated for any other
taxicab company. Although, as noted, the driver pays the cost of the meter and radio installed
on all vehicles, on lease termination these items of equipment must be returned to Respondent.
In terms of vehicle maintenance and repairs, the drivers are responsible. They may have
the work done at Mark’s Service Center or another service station. Drivers pay for the cost of
gasoline, towing, tolls, parking tickets, and traffic tickets. All taxicab vehicles must be in-
spected by the State of Connecticut, twice a year, in order to renew the vehicle registration. All
of Respondent’s vehicles are registered in the month of March. Respondent also performs its
own vehicle inspection and allows drivers 5 working days to correct any problems at the cost of
the driver. If the problem still exists upon re-inspection by Respondent, the driver’s lease will
be terminated.
With respect to insurance, drivers are informed by Necatera that they must insure vehicles
through Respondent and cannot purchase their own policy. Necatera makes arrangement for
the insurance coverage through a particular agent. The drivers are charged weekly by Respon-
dent for liability and collision pool insurance. If a driver has an accident or an insurance claim
is made, Necatera handles the matter. Any deductibles that must be satisfied are paid by the
driver. Although Boskello and Necatera both testified that the vehicle is covered by insurance
24 hours a day, the drivers testified credibly that they were informed by Necatera that the
vehicle is only covered by insurance when the driver is on duty or working and that the vehicle
cannot be driven by drivers off duty because the vehicle is not covered by insurance for per-
sonal use. Necatera, who denied informing drivers of this limitation, admitted that his medical
condition, as well as a recent injury to his head, adversely affects his memory, and that he does
not remember every conversation he has with the drivers. He is not credited on this conflict.
Drivers obtain passengers through Respondent’s dispatch service, by picking up customers
who flag them on the street, and by undispatched pickups at either the Stamford train station or
the Stamford Marriott Hotel. Regardless of the means of obtaining passengers. Respondent
charges its drivers a fee.
As to dispatched fares, Respondent’s dispatchers make customer calls to drivers through the
driver’s car radio by either issuing a “general dispatch” over the radio requesting drivers in the
area of the customer to respond to the call or “bid” for the call, or by specifically calling a
driver in the area where the customer is located. The dispatcher knows the location of each
driver because they must continually report their location to the dispatchers during their shift.
In each instance, once the driver makes the pickup he is obligated to pay Respondent a 77-cent
“dispatch” or “unit” fee for each such dispatch call. Thus, while Respondent argues in its brief
that the fee does not vary based upon the amount of the actual fare collected for one dispatch
call, the fee can quickly multiply and become a significant portion of the fares collected for
multiple dispatch calls made during 1 day. There is thus a direct correlation between the
Respondent’s income and the amount of fares collected by its drivers. Yellow Cab of Quincy,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
312 NLRB 142, 144 (1993). Respondent provides the drivers with a chart showing the dispatch
fee due to Respondent for dispatch calls between 1 and 50. For example 10 dispatch calls
require a payment of $7.70 and 40 require a payment of $30.80. This fee is paid daily. The 77-
cent fee is solely determined by Respondent and is not set by the State of Connecticut.
Respondent requires its drivers to perform a minimum of 10 dispatch calls per day. The
dispatchers maintain a log of all of the dispatched calls each driver performs on a daily basis.
This log is then compared with the number of dispatch calls claimed and paid for by the driver
each day. When a driver does not report or pay for a call recorded by the dispatchers, Respon-
dent will contact the driver to remit payment or explain why the call was not reported.
Besides requiring drivers to report their locations to the dispatchers, drivers must answer
dispatcher’s page and cannot turn down or refuse a dispatch call. Drivers are subject to disci-
pline, denial of further dispatched calls, or lease termination if they do not answer a dis-
patcher’s page or refuse a dispatched call.
Regarding flagged fares, notwithstanding the absence of dispatch involvement, Respondent
requires that its drivers inform the dispatcher whenever they pick up a flagged fare. Once
informed, Respondent requires payment of the 77-cent unit fee on all flagged fares. Respon-
dent enforces this requirement by informing drivers they would not be covered by Respon-
dent’s insurance policy in the case of an accident while transporting an unreported flagged fare.
Drivers do not pay the 77-cent unit fee for customer pick-ups at the train station or Marriott
hotel. Instead, Respondent charges its drivers an $8 daily fee for the privilege of making
pickups at these locations. This daily fee is not set by the DOT but is determined solely by
Respondent. This daily fee was unilaterally instituted by Respondent after it ceased providing
or maintaining a dispatch stand at the Stamford train station in or about 1992. After the dis-
patch stand was no longer maintained and Respondent thereby lost its ability to check the actual
fare trips of its cabs to and from the train station, Respondent instituted the daily fee to cover
the lost unit fees which it could no longer regularly calculate. But it is important to note that
Respondent prohibits its drivers from working their entire shift from the train station or Mar-
riott hotel. Necatera enforces this policy by policing the train station on a frequent basis and
then directing drivers to leave the train station in order to answer dispatch calls.
While the metered fares for local travel in and around Stamford, Connecticut, and rates per
mile for travel between Stamford and other Connecticut towns and cities are set and regulated
by the DOT, Respondent unilaterally determines how much a driver must charge a customer in
all other instances depending on the location of the customer’s departure and destination.
Respondent also unilaterally determines the charge to the driver for trips within Connecticut.
Even within greater Stamford, depending upon the number of passengers and their relationship,
Respondent sets the fare.
Respondent, by Necatera, distributes fare schedules to its drivers, which must be adhered
to. The schedules contain four categories: (1) shared travel within the greater Stamford area or
zone; (2) in-state travel outside of the Stamford area or zone; (3) out of state travel and; (4) a
fare schedule for the New Canaan Train Breakdown.
For a “shared ride,” defined by Respondent as passengers unknown to each other who share
the same cab, Respondent requires its drivers to charge each passenger a fee depending upon
the distance traveled among each of six zones it has established with the greater Stamford area.
Each zone represents a distance from the Stamford train station, with zone 1 closest and zone 6
farthest away. The fare varies between $3 per passenger in zone 1, to $11 per passenger for
travel to zone 6. For customers dispatched to the drivers away from the train station, the
required 77-cent unit fee is due Respondent from the driver for each customer in a shared ride.
While the DOT approves the shared ride schedule, it is created in the first instance by Respon-
dent.
While the DOT determines and sets the rate for what Respondent can charge per mile from
one town to another within Connecticut, it is Respondent alone who sets the charge payable to
it by the driver for such “out of zone” (out of Stamford) travel. These charges are listed on the
schedule and expressed in absolute amounts, but in each case they comprise a percentage of the
fare collected. For example, up to $24.99 collected as fare, the driver must remit $3 or 12
percent to Respondent. Between a fare of $25 and $34.99, the driver’s charge is $4.50 or
between 18 and 13 percent. For a fare exceeding $95 the drivers are directed to contact
Necatera or Boskello so that Respondent may determine what percentage of the fare must be
paid by the driver.
With respect to out-of-state travel, Respondent, alone, determines the fare to be charged for
travel to a location outside the State of Connecticut. For example, a customer traveling from
Stamford to Kennedy Airport located in Queens, New York, is charged $67, exclusive of tolls
and gratuities. Respondent has no input from the drivers in setting these fares. Neither does
the DOT have any involvement. Periodically, Respondent will unilaterally change the fares for
out-of-state travel. The same percentage amounts paid to Respondent are calculated based on
the amounts due Respondent for fares charged for instate travel. Thus, the trip to Kennedy
Airport requires a $10 payment to Respondent.
Respondent also determines the fares to be charged when drivers pick up passengers who
have been stranded by a breakdown of the train traveling between Stamford and New Canaan,
Connecticut. Respondent submits the fare schedule to the DOT for its approval.
Respondent permits customers to open charge account with it. When a customer charges a
ride, the customer submits a voucher to the driver. The completed voucher lists the driver’s
name, customers name, the fare amount including a 20-percent service and gratuity charge, the
tip amount and tolls, if any. The customer fills in the tip amount, and signs the voucher. Upon
its submission to Respondent by the driver, the driver receives back the amount of the fare plus
the tip, less a 5-percent service change on the fare deducted from the tip for handling the
charge account. For example, where the fare was $10 and the tip amount was $2 Respondent
retains 5 percent of the fare or 50 cents from the $2 tip, leaving the driver with only a $1.50 tip.
(Tr. 971.)
It is apparent from the foregoing that the drivers’ income is derived from the fares and tips
they collect from passengers. Out of this revenue, the drivers must pay Respondent the weekly
lease and insurance payments and the daily fees, including the unit fee, the $8 train station fee,
Respondent’s portion of the tips for charge account customers and the percentage of fares owed
to Respondent on all out-of-zone fares. From the balance remaining, the drivers pay for
operational expenses, including gasoline, oil changes, and repairs. Respondent does not
withhold Federal taxes, State taxes, or social security from the driver’s revenue and does not
issue any tax forms, W-2s or 1199s, to the drivers. Neither does Respondent contribute toward
unemployment insurance or workers compensation coverage. Under these circumstances, the
drivers have no choice but to file tax returns as independent contractors, listing their business
income, and itemizing expenses in a schedule C as part of their Federal tax return. Interest-
ingly, in its own Federal tax return, Respondent lists deductions for depreciation of the taxi-
cabs, radios, meters, apparently including those owned by drivers in which all lease and finance
payments have been satisfied, as well as for gasoline, oil, and other maintenance expenses
borne by the drivers. These expenses would appear to be allowable only for the driver owners
as expenses or costs of their doing business. By taking these deductions Respondent undercuts
its claim, that the drivers are independent entrepreneurs who control the financial return on the
operation of their vehicles. To the extent Respondent argues that even those taxicabs leased
and not fully owed by the drivers are controlled in their operation by the drivers as independent
contractors, Respondent has removed from the drivers a major business expense normally
attributable to their individual taxi service operation.
While the drivers may choose to sublease their taxicab to another individual, subleasing is
subject to certain restrictions. Even the lease agreement prohibits subleasing without Respon-
dent’s approval. Subleases have to be approved by Necatera, who also approves the hours of
work and workshift of the sublessee. The driver and sublessee are free to decide how to divide
the money earned by the sublessee, but Respondent charges an additional daily fee of $10 to
any driver who has a sublessee. Respondent also increases the amount of insurance payment to
the collision insurance pool to any driver who has a sublessee as well as charging the driver
more for the weekly payments to cover liability insurance.
Drivers are subject to a host of rules and procedures governing their conduct and operation
of the taxicabs. These are communicated to the drivers verbally by Necatera, Boskello, and the
dispatchers, as well as by memoranda, notices, and letters distributed to the drivers. The rules
are enforced by them by means of discipline issued to the drivers, including verbal warnings,
denial of dispatching services, suspensions of one or multiple days, and, finally, lease termina-
tion. Respondent makes the sole determination as to whether to issue discipline in the first
instance, and then, what level of discipline to issue for the infraction of the rule or procedure.
None of the following rules described are mandated by the DOT. Because in this instance as
well as a number of others, including its setting of the fees payable by the drivers, Respondent’s
STAMFORD TAXI, INC. 1383
pervasive control exceeds governmental regulations to a significant degree, employees status, is
justified. See Seafarers Local 777 v. NLRB, 603 F.2d 862, 876 (D.C. Cir. 1978).
With respect to the dispatching service provided and the driver’s relations with the dis-
patchers, Respondent enforces a number of rules. Drivers are required to answer the call or
page by a dispatcher. A failure to respond results in discipline, up to and including termination
of the lease. Respondent has disciplined drivers for not answering a dispatcher’s page and for
not reporting their location to the dispatchers. Discipline is also imposed against drivers for not
reporting to dispatchers when they take a break for coffee, lunch, or other reasons. Drivers
must also accept a dispatch call and, if they refuse to do so they are disciplined by being denied
further dispatch calls and have also been suspended for such conduct. Drivers are also subject
to discipline for engaging in certain behavior towards dispatchers, such as fighting with them,
hitting them, or swearing at them. While the DOT restrains such conduct when it occurs on
public property and affects the public at large, Respondent imposes discipline when such
conduct occurs on its own property, for example, inside its dispatching office.
As noted earlier, drivers do not select their own work hours, but are assigned either a day or
night shift by Necatera at the outset of their association with Respondent. Work outside their
regular shift hours must be expressly approved by Necatera. Respondent determines what, if
any, circumstances warrant the driver working beyond his shift. A driver who works beyond
his shift without Respondents’ approval has been denied the opportunity to earn fares by being
excluded from receiving dispatch calls. Respondent also issues verbal and written warnings to
drivers for failing to start their shift on time.
As also noted earlier, the drivers, who must pay an $8 daily fee for customer pickups at the
Stamford train station, cannot remain at the station throughout their shift. Necatera, who
policies the train station directs drivers to leave and answer dispatch calls. Respondent also
imposes a requirement that drivers must perform a minimum of 10 dispatch calls a day. For a
failure to meet this minimum requirement, Respondent has assessed drivers the $7.70 fee for 10
dispatch calls and has also denied one driver a change he requested in his shift until he met the
requirement and threatened a change in shift of another driver who failed to make or answer
sufficient dispatch calls.
Respondent also maintains minimum dress requirements, which prohibit drivers from wear-
ing jeans (dungarees), sandals, sneakers, shirts without collars, T-shirts, and jogging suits while
operating their vehicles. Respondent enforces this dress code by issuing verbal and written
warnings to drivers who violate it. In a letter dated February 1, 1994, copy to Necatera, Gen-
eral Manager Boskello, after noting that he had warned the recipient, driver A. Torzia, many
times about his dress attire, informed him that Respondent would be having a meeting with all
drivers to discuss this unwritten rule [forbidding jeans and a colorless shirt] and that it “will not
tolerate at [sic] one breaking this rule.” (GC Exh. 42.) Respondent also requires courteous
conduct toward customers, going so far as to warn drivers in writing for arguing with custom-
ers. Drivers are also required to assist customers with luggage and place their baggage in the
trunk.
Respondent prohibits drivers from having a personal rider, whether a friend or relative, in
the taxicab at any time during a driver’s work shift. In a multipage document dated January 11,
1995, issued to the drivers, listing various procedures, which they are obligated to follow,
Respondent includes a prohibition against “personal riders in cars while on duty.” (GC Exh.
22.) The term “on duty” is not defined. Respondent has issued warnings against drivers for
having personal riders in the taxicab at any time, on or off duty, and directed drivers to remove
the personal rider even when there was no customer in the cab at the time. On one occasion,
driver Joseph Spencer was reprimanded by Necatera for taking his son home from school in his
cab as his sole passenger. Even though this was clearly a time period when the driver was not
on duty and was therefore in accordance with Respondent’s own rule, Necatera threatened the
driver that using the cab for this personal use, or any other, would result in his lease being
terminated. Owner Tibbetts first confirmed that during a driver’s work shift, he would be
continuously on duty. Then, when confronted with a 1986 DOT letter to his general manager
prohibiting drivers from co-mingling friends and/or relatives with paying passengers, but not
prohibiting drivers from carrying friends or relatives while not “on duty,” Tibbetts retreated and
acknowledged that drivers can carry friends or relatives when not using the vehicle for taxi
purpose, even during their shift. Respondent’s rule does not so specify and its assistant man-
ager’s interpretation reinforces Tibbett’s original restriction. Respondent has made no effort to
explain the meaning of on or off duty as it applies during the course of a driver’s work shift.
Thus, while the DOT acknowledges that taxicab drivers may remove themselves from duty
during their shifts, to engage in personal errands and the like, Respondent’s rule as enforced by
its management makes no such distinction and prohibits a driver’s transportation of friends or
relatives or for personal errands during the work shift whether or not the driver is in revenue
service and available to pick up passengers.
Personal use of a taxicab outside of shift hours is also prohibited by Respondent. Driver
Etienne Decembre was informed by Necatera during the course of providing a police report of
an accident he had with his cab, that in any such accident after work, the vehicle was not
covered by insurance. This warning effectively denies driver use of his vehicle outside his
workshift.
Respondent also goes well beyond DOT rules by requiring that drivers’ vehicles be in-
spected by Respondent and that any problems discovered are corrected within 5 days. If not,
the driver’s lease will be terminated. DOT requires taxicab inspections twice a year by its own
employees and that the cab must be in good and safe condition before being permitted to go
into service on any shift. If not in such condition, DOT requires the vehicle be immediately
removed from the road until the problem is corrected. Respondent’s 5-day requirement goes
well beyond the DOT’s own regulations. Under another rule of its own making, all of Respon-
dent’s drivers must have the state inspection completed before March of each year, subject to
nonrenewal of the registration as well as lease termination for failure to do so.
Respondent allows drivers to take 2 sick or vacation weeks per year, during which time
they are relieved of paying weekly lease, vehicle, or insurance fees. But Respondent does not
permit drivers to take their first sick or vacation week until the first week of June and may only
take the second week thereafter.
Another requirement imposed by Respondent on its drivers is that they must maintain trip
sheets, recording the points of origin, destination, and fares charged to customers during the
course of a driver’s shift of work. These sheets provide a ready means of calculating the
moneys in terms of unit and other changes, which the drivers become obligated to remit to
Respondent.
D. The Circumstances Regarding Union Recognition and Bargaining, Followed by With-
drawal of Recognition, Refusal to Bargain, Unilateral Changes, and a Refusal to Reinstate
Certain Drivers or to Consider Others for Reinstatement
1. The union organizing drive
Julie Kushner, International representative for the UAW, became involved in the Union’s
organizing effort among Respondent’s drivers in the summer of 1995. At that time, accompa-
nied by Russell See, president of the Union, she attended a meeting with about 30 drivers at
which they voiced their complaints and the representatives explained the role of the Union and
how it might help them. After reviewing a copy of the contract, or lease agreement drivers had
signed, with UAW counsel, and reviewing copies of previous Board decisions on the status of
taxi drivers, Kushner met again, with a smaller group of six drivers, to explore their working
conditions. Convinced of their employee status, another meeting with Russ See and 35 to 40
drivers was arranged where Kushner and See told them the Union was prepared to organize
them but made them aware of the struggle that lay ahead. The drivers voted privately for union
representation, and union authorization cards were distributed and signed at the meeting and
drivers were encouraged to approach and sign up others not present.
2. The January 1996 strike and resulting
recognition agreement
On Thursday, January 11, Kushner received word that the drivers were on strike. The next
morning, January 12, during a heavy snow fall she arrived in Stamford at 8:30 a.m., and met
with a large group of drivers, close to 40, at the city of Stamford Government Center, a quarter
to half a mile from the Stamford train station, where they were standing in a group, saying they
wanted their grievances resolved. Kushner learned of an incident at the train station where a
driver, after refusing to leave with his taxicab when told to do so by a dispatcher, was punched
by Bruno Necatera through an open window of his cab after Necatera had been summoned to
the station from his garage.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
Kushner arranged for a conference room inside the center and spent the next hour reviewing
the drivers’ grievances and problems they had with their treatment by Respondent. They
complained about the high rates of their cab purchase agreements, other requirements, and
disciplinary actions against them. Kushner obtained their agreement to seeking union recogni-
tion and a contract from Respondent. By the afternoon, DOT and Respondent officials had
arrived. The company officials were Boskello and Necatera. In a joint meeting, a DOT official
and then Boskello, asked what it would take to get the drivers to go back to work. Kushner
responded they would like union recognition and a union contract. Boskello now said he would
do whatever he had to, to get the drivers back to work.
At this point the two sides separated. Kushner arranged for faxes of the signed authoriza-
tion cards to be forwarded from union headquarters and received advise from union counsel on
drafting the recognition agreement. Kushner suggested that the parties ask someone from the
City Corporation Counsel office in the Government Center to witness the cards as a neutral so
the Union’s majority status could be established. Kenneth Provodator, an attorney from that
office, came from another floor and met with Kushner and Boskello in the hallway. Provodator
asked Boskello to confirm the number of drivers Respondent had. Boskello told him there were
70 drivers. Kushner agreed to this figure, and then showed Provodator copies of the signed
cards and he counted them. Provodator then wrote out a document, which he dated January 12,
1996, and signed. In it, after first noting that he had been advised by Joseph Boskello, general
manager of Stamford Taxi, that there are no more than 70 drivers, he acknowledged he had
received authorization cards, and witnessed that the UAW represents more than 35 drivers of
Stanford Taxi.
Kushner next presented Boskello with the recognition agreement she had drafted. After
first reciting that it has been established by an impartial third party that the UAW represents a
majority of all of the drivers of Respondent, the agreement goes on to provide for Respondent’s
recognition of the UAW as the drivers’ exclusive bargaining representative and its agreement to
commence negotiations for a collective-bargaining agreement no later than January 17, 1996.
The agreement also went on to deal with an issue involving the claimed discharge of two
drivers, Rene Job and Meres Blanc. The draft asks Respondent to agree to meet and discuss the
discharges, and, if the parties cannot resolve these cases, to agree to an arbitration before the
American Arbitration Association no later than February 12, 1996.
The recognition agreement, dated January 12, 1996, was signed by Boskello for Respon-
dent after two corrections or changes were made to the document. In the first, the word
“leasee” was inserted before the word “drivers” in the first paragraph reciting the establishment
of the Union’s majority status. In the second, the words “cancellation of the contracts” was
inserted, replacing the phrase “discharge,” and the words “leasee drivers” replaced “drivers” in
the third paragraph dealing with the two drivers, Job and Blanc. Boskello and Provadator
initialed the second set of corrections, but Kushner also agreed to them.
According to Kushner, after showing him the draft agreement, Boskello excused himself
and left to telephone Tibbetts. On his return he said they wanted to change the language in the
agreement to refer to the drivers as leasee drivers. Kushner said she was prepared to do that if
that’s what they called them but she also asked for a clear understanding that the Union and
Respondent were talking about all the drivers, and Boskello agreed they were. Boskello also
claimed the drivers were independent contractors and wanted that in the agreement. Kushner
said she didn’t care what he called them, but the Union believed them to be employees and that
they had the protection of the Act. Kushner said we will call them what you call them, leasee
drivers, but they are what they are and we believe they are employees. Boskello then signed
the agreement with no further changes. Under Kushner’s testimony, which is credited, and
contrary to Boskello’s and Respondent’s claim, the Union never agreed to the driver’s status as
independent contractors, and made clear its view as to their employee status. It is evident that
the Respondent signed the agreement with full knowledge of the Union’s position and with the
agreement clarified only to identify the drivers as lessee drivers, who had been requested to
sign lease agreements with Respondent prior to assuming their driving duties. Kushner was not
confronted with policemen or any other city officials on the matter of the drivers’ strike or
return to work. Upon execution of the recognition agreement her role ceased and under UAW
policy it assigned the follow up negotiations and representation of the drivers to the Union,
Local 376.
Kushner acknowledged during her cross-examination by Respondent’s counsel that the
DOT representatives present at the Stamford Government Center on January 12, 1996, had
expressed concern about the taxicab drivers being on strike, which was denying services to the
citizens of Stamford. Kushner also explained that she readily agreed to the change in terminol-
ogy that Boskello had requested because she didn’t consider relevant whether the agreement
said cancellation of contract or discharge; rather, what is relevant and important is what the
person does, what the conditions are, not what the employer calls them. Kushner also repeated
that she very clearly informed Boskello that the Union believed the drivers to have the protec-
tion of the NLRB, that it considered them to be employees. And while Boskello claimed the
drivers were independent contractors, he also had informed Kushner and the others present that
he would do whatever he had to, to get these people back out in the street.
As a consequence of the agreement the drivers returned to work.
3. Negotiations are held between January and May 1996
Robert Cerritelli testified that between January 1996 and July 1997, he was employed by
the UAW and various of its locals in negotiating, servicing and organizing. In January 1996, he
became involved in representing the drivers at Stamford Taxi, assisting Local 376 President See
in negotiations, meeting with the drivers, preparing proposals, and acting as spokesperson with
See at the bargaining sessions. By letter dated January 16, 1996,3 See wrote Boskello seeking
the information itemized on a four-page attachment. By attachment to a letter dated January 25,
then Respondent’s Counsel, Mark Katz, submitted certain information and agreed to provide
additional information as they were able. He also confirmed a bargaining meeting for January
30. Earlier, an initial bargaining session was held on January 17. In addition to Cerritelli and
See, the four members of the drivers negotiating committee also attended, Decembre, Jean
Max Lucien, Fritznel Noelzil, and Augustine Solinaire, known as “Poppie.” For the Respon-
dent, present were Attorney Katz, Boskello, and Necatera. The Union presented a full set of
bargaining proposals comprising seven pages, as well as a demand for the immediate reinstate-
ment of Blanc and Job. The Respondent, representatives noted that where the proposal refers to
“employee” and “employer” it should read “lessee” and “lessor.” The meeting lasted two
hours. It was Cerritelli’s understanding that the Respondent was prepared to respond by
counterproposal to the Union’s proposal which had placed all the issues on the table.
At neither this initial meeting, nor at any of the six which followed until negotiations broke
off in early May, did any representative of Stamford Taxi say it was not going to recognize the
Union for any reason, or that they had been under duress when Boskello first signed the recog-
nition agreement.
Cerritelli testified that the parties had reached agreement on almost all of the proposals the
Union had made except for the amount of the weekly fee and the deduction of dues. Union
proposal article 10 provided that the bargaining unit members shall pay a fee for leasing and
dispatching services provided by the “Employer” in the flat amount of $175 per week. After
providing for a union-security provision in article 3.0, the Union included a dues and initiation
fee checkoff clause in article 3.1. During negotiation, Respondent had agreed to take back
driver Blanc but refused to restore driver Job, so on April 16 and 18 the Union wrote Boskello
proposing to arbitrate the cancellation of sublease of Rene Job before a named arbitrator and
requested certain documents relating to Job’s sublease cancellation. On May 7, the Union
wrote the arbitrator it had selected, with company agreement, requesting the matter of Job’s
lease termination be set down for arbitration, and enclosing a copy of the recognition agreement
and other communications between the parties concerning this matter, apparently the Union’s
April 16 and 18 communications. According to Cerritelli a date for the arbitration, July 24, had
been selected and had even been agreed to at one point by Respondent.
At the last session, held on May 6, the parties were apart $24 a week on the amount of the
weekly fee. In contrast to the unit fees then imposed, comprising payment of a portion of each
fare the driver collected, as well as an $8 daily fee for utilizing the train station and a weekly
leasing fee, the drivers were seeking the payment of a flat weekly fee regardless of how many
fares they collected. At the last session, the Union was proposing a fee of $250 a week for a
single driver and $310 if they had a second driver or sublease. The Company was at $274 and
$334.

3 All dates hereinafter shall refer to 1996, unless otherwise noted.
STAMFORD TAXI, INC. 1385
All along the Company had offered to have the Union review its books and financial re-
cords, but because of conflicting UAW negotiations, the Union had been unable to secure the
services of an auditor from the International Union’s Detroit, Michigan offices for this purpose.
Thus, in a letter to the Union dated February 1, Attorney Katz had confirmed a willingness of
owner Tibbetts and Boskello to meet with its auditor for the purpose of substantiating the
overhead and expense numbers previously provided.
At the conclusion of the last session on May 6, the Union agreed to take the Company’s fi-
nal and last best offer to the drivers. That offer was limited to the weekly financial terms.
Other terms were still being negotiated. At the subsequent meeting the union representatives
held with the drivers on May 13, the Company’s last offer was rejected and the negotiators
were authorized to make a counter offer increasing the Union’s last offer on the weekly fee by
$5. In a motion made by a driver at the meeting, the drivers agreed that the negotiating com-
mittee was authorized to continue negotiations for a week to reach agreement, failing which the
drivers would cease payment of the daily $8 train fee by the following Monday, May 20.
On or about May 10, Respondent had posted a notice at its Stamford facility signed by Tib-
betts and Boskello in which it first informed drivers about the reasonableness of Respondent’s
offers throughout negotiations, and then threatened to “cancel immediately the insurance on
any vehicle” from a driver who continued to support the Union’s offers with regard to the
weekly fees, because, according to the notice, “the lease agreement will have been broken” by
such demands (G.C. Exh. 11). The Union was not provided with the document which was
addressed to the lessee drivers of Stamford Taxi.
Following the membership meeting on May 13, Cerritelli, See, and the drivers’ negotiating
committee went directly to Boskello’s office in Greenwich. The Union presented its
counterproposal to Boskello and See also informed Boskello that the drivers would cease
paying the $8 train station fee beginning May 20 unless an agreement was reached between the
parties by that date. Boskello became upset and replied that Respondent needed that money in
order to operate its business. Cerritelli responded that they had a week to negotiate the fee and
the Union was available, just let him know when and where.
Following this meeting between the union committee and Boskello, Respondent distributed
to all drivers and/or posted another notice addressed “to all leasee Drivers of Stamford Taxi”
and signed by Tibbetts and Boskello. In it, Respondent informed the drivers that it would
cancel the lease agreement of any driver who refused to pay “our present fee structure.” (GC
Exh. 12.) The notice also stated, “The Union bosses apparently dont care about some of you
losing your income. They don’t lose theirs. They are paid by the Union. So be it if you wish
to listen to them.” On Tuesday, May 14, approximately 42 drivers failed to pay the $8 daily
train station fee. In response, on the same date, Respondent mailed a letter to each of these
drivers informing them that Respondent was terminating their respective leases effective May
20.
4. The evidence regarding Respondent’s withdrawal of recognition, refusal to bargain any
further, direct dealing with the drivers, and unilateral changes without notice to, or
opportunity to bargain with, the Union
On Thursday, May 16, Cerritelli called Boskello at Respondent’s Stamford facility to in-
form him that the Union’s Detroit-based auditor was finally available to travel to Connecticut to
review Respondent’s financial records. Cerritelli, unaware that the drivers had already begun
withholding certain fees, sought to establish dates for the auditor’s review. Cerritelli also told
Boskello that once the auditor had reviewed the records the Union might be more receptive to
the Company’s offer as to the weekly fee. Boskello responded that he wasn’t going to let the
auditor in, that the Union didn’t represent the drivers anymore and they weren’t going to
recognize the Union. Cerritelli asked Boskello to reconsider, they were extremely close and
should be able to work out their differences, but Boskello said the Company would not recon-
sider. After a heated discussion the conversation ended.
Union President See also wrote Tibbetts by letter dated May 16, responding to the notice of
cancellation. See disputed that the railroad station fee was part of the lease agreement, and, in
any event, the lease required the Company to provide a full week’s notice of cancellation. See
requested that the drivers be allowed to continue to operate under existing conditions and terms
until the auditor can review the books on the next Tuesday (May 21) and the Union will be able
to verify the Company’s claim that the railroad fee is required to enable it to run its business.
There is no evidence that Respondent replied to this letter. Instead, Respondent posted and
distributed to its driver’s a two-page notice on Friday, May 17, responding to what it learned
was a strike vote meeting for that evening. This union meeting had been called to deal with
Respondent’s withdrawal of recognition and threat to cancel drivers’ leases.
After first noting that the Union had called a strike vote for that evening, the notice signed
by Tibbetts and Boskello, goes on to inform the drivers, inter alia, that: (1) “The Union does
not represent all lessee drivers. They lost that possibility when they said you could break your
lease by not paying required fees” and; (2) “Beginning next Monday (May 20) we will be
offering new weekly pay leases to qualified drivers” (GC Exh. 14) (emphasis added). The
notice goes on to list the amounts payable weekly under the new lease for single-driver leases
for insurance, lease, and dispatch overhead. Another paragraph also changed the existing
sublease fees. The notice also advised that drivers who have not had their leases canceled may
continue under the present daily pay system or sign up under the new weekly pay program.
The weekly flat fee described in this notice was clearly significantly different from the ex-
isting terms and conditions of employment. Cerritelli testified credibly that Respondent had
never offered to negotiate with the Union the new weekly lease terms, nor had it ever notified
the Union about the plan to offer the weekly pay leases.
Although not present at the union meeting that evening, Cerritelli later learned that the
drivers had authorized a strike on Monday, May 20. On Monday, May 20, approximately 45
drivers struck and a picket line was set up at the train station and at the Company’s headquar-
ters in Stamford. The picket signs read “UAW on strike” and “unfair labor practice strike.”
Following the strike, all of the drivers who did not go on strike, ultimately accepted the new
terms and entered into new lease agreements with Respondent. These agreements contained the
weekly fee Respondent now offered, and to that extent, at least, they differed markedly from
the lease agreements drivers had entered prior to May 20, all of which contained the daily fee
provision.
Cerritelli tried to approach Boskello at the Stamford train station, but Boskello wouldn’t
speak with him. Since the strike began on May 20, Respondent has continued to refuse to
recognize the Union as the drivers’ bargaining representative. Also beginning on May 20,
Respondent and its agents began towing taxicabs from the homes of striking drivers, including
taxicabs which had been fully paid for by their respective driver-owners.
Following the strike, between May 20 and November 27, approximately 13 or 14 of the 45
striking drivers abandoned the strike, individually returned to Respondent and requested a new
lease. Respondent informed about 10 or 11 of these drivers that it would offer them new leases
provided they reimbursed Respondent for any fees which they may have withheld during the
week of May 13. Each of these 10 or 11 drivers accepted Respondent’s terms, repaid any
amount due Respondent, and entered into new lease agreements which provided for the new
flat weekly terms Respondent unilaterally implemented beginning May 20.
Respondent, however, refused to reinstate three other drivers. These are Max Lucien, the
drivers’ union steward and negotiating committee member, Augustine Solinaire, another
member of the four-person negotiating committee, and Andre. Just as in the case of the 10 or
11 who each individually returned to Respondent seeking to enter into new leases, Lucien and
Solinaire each sought to enter a new lease and offered to repay Respondent for any outstanding
fees due. Respondent nonetheless refused to reinstate these three drivers ostensibly because of
certain acts or conduct in which they engaged prior to the strike. Those defenses will be
explored in a later section of this decision dealing with Respondent’s presentation and defenses.
During his cross-examination by Respondent counsel, Cerritelli testified that the reason
Boskello gave at the parties’ negotiations for objecting to the use of the terms “employer” and
“employee” in the Union’s draft collective-bargaining agreement, was that use of those terms
would have left Respondent vulnerable to an obligation to pay unemployment tax, withholding
tax, and make normal employee payroll deductions. Cerritelli assured Respondent the Union’s
only goal was to achieve an agreement and if Respondent wanted to call the drivers, “lessees,”
and Stamford Taxi, the “lessor,” the Union had no problem with that. Cerritelli could not recall
Respondent using the term “independent contractor” during the negotiations.
Cerritelli also strongly denied that when the drivers rejected Respondent’s last best offer on
the weekly fee arrangement, that the parties were at impasse. Indeed, the drivers willingness to
modify their last position and provide a counterproposal of a weekly fee increased by $5 per
week, thereby narrowing the parties’ difference on the weekly fee from $24 to $19, was never
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
directly acknowledged by Respondent when it broke off negotiations and withdrew union
recognition. Cerritelli had also suggested to Boskello that the union audit might convince it to
be more receptive to the Company’s offer.
After almost 6 months of striking, during which time Respondent continued to ignore the
Union’s offer to continue to bargain, by letter, dated November 27, signed by Union President
See and directed to Owner Tibbetts, the Union made “an unconditional offer to return to work
on behalf of all your employees that it represents. We are prepared to continue working
pending negotiation of a new agreement. The employees will report to work on December 5,
1996.” (GC Exh. 15.) By a letter dated the same date, on its attorney’s letterhead, signed by its
attorney, Sigismund L. Sapinski, Jr., on its behalf and addressed to See, Respondent replied:
“This is to advise you that Local 376 does not represent any individuals who are employees
with Stamford Taxi. Although Local 376 may have had some sort of relationship with certain
independent contractors of Stamford Taxi, such individuals violated their lease agreements and
have no further rights with the Company.” (GC Exh. 16.) (Emphasis added.)
In view of Respondent’s response, virtually refusing to consider for reinstatement any of
the drivers affiliated with the Union who withheld the daily train fee, none of the drivers
reported to Respondent on December 5 as originally planned. In fact, Respondent refused to
consider any of the union-affiliated drivers whenever a subsequent opening occurred. Thus,
between December 9 and June 1997, Respondent entered into new lease agreements with seven
new drivers, but did not offer such an arrangement to any of its drivers who had remained on
strike. As one driver, Eugene Poteau, called as a witness by the General Counsel, testified, on
cross-examination, when asked why he had not repaid the money he owed Stamford Taxi, “I
never been there. I’m on strike and the Union tried to negotiate with Mr. Buddy. I don’t know
what’s going on, if I’m going back to work and Mr. Buddy never asked me to come pay or call
me. I’ve talked to him after that because he hold my title. I call him and talk to him. He don’t
tell me, ‘Oh, you are owing me 5 calls.’ If he told me that, I go pay him [sic]. Until now, if
you want, I’ll pay you now.” (Tr. 469.)
On February 13, 1997, Respondent posted another notice at its facility addressed to its driv-
ers in which it informed them, inter alia, that they were able to: (1) choose their own hours; (2)
use their vehicles for personal business during off-hours; and (3) reject a dispatch call. All of
these conditions of employment represented changes from what was uniformly in place prior to
May 20. Despite this fact, Respondent failed to notify the Union that it was instituting changes
in the lease terms affecting working conditions and failed to send a copy of this notice to the
Union.
On February 12, 1998, as a result of newly available positions for drivers, Respondent sent
a letter directly to the drivers who had remained on strike, described by Tibbetts in his testi-
mony, as “Union members who had their leases cancelled.” (Tr. 850.) Respondent did not
provide the Union with a copy.
The letter provides, in relevant parties [sic], as follows:

Since the cancellation of the leases, several drivers have approached the Company asking if it
was possible to enter into a new lease agreement. Some drivers entered into such new lease
agreements. Before doing so, each of these drivers offered and repaid the outstanding sums due
the Company.

Because questions may still exist, this letter states what is, and has been, our position about new
lease agreements. The Company will consider new lease agreements for former leaseholder on
the same conditions applied to the other drivers, namely, all moneys due the Company are re-
paid, plates and registrations are returned, and drivers must meet all Department of Transporta-
tion requirements. Then, as we did with the other drivers, lease requests will be reviewed on a
case-by-case basis.

If you are interested in a lease arrangement and will meet the above-stated conditions, please
contact Buddy Boskello, Manager, and Stamford Taxi before February 24, 1998. If we do not
hear from you, we will accept this to mean that you have no further interest.

In the letter, Respondent failed to recognize the Union as the representative of any drivers
who returned to drive for it and also failed to state that Respondent was prepared to consider its
drivers as employees rather than as independent contractors or was prepared to remedy its past
alleged unfair labor practices. Accordingly, the union affiliated drivers to whom the letter was
addressed refused to contact Respondent regarding reinstatement. The letter does make clear,
however, that Respondent, at least, was prepared to condone the unprotected conduct in which
it claimed the drivers had engaged who had withheld daily fees from Respondent during the
week preceding their strike.
E. The Region Refuses to Issue Complaint on an 8(a)(3) Allegation in the Underlying Charge
in this Proceeding
In an amended charge filed by the Union in this proceeding on December 2, 1996, it al-
leged, inter alia, that since on or about May 20, 1996, Stamford Taxi has suspended its employ-
ees for engaging in protected, concerted activity in violation of Section 8(a)(3) of the Act, and
that since on or about May 20, the employees have been engaged in an unfair labor practice
strike. After an investigation, the Regional Office notified the Union that it was refusing to
issue a complaint on this allegation. The Union then filed an appeal of this decision with the
General Counsel of the Board.
By letter to union counsel dated May 30, 1997, the General Counsel, by Yvonne T. Dixon,
Director, Office of Appeals, denied the Union’s appeal. In the letter, the General Counsel
concluded that the fees the employees had paid to the Employer were part of their working
conditions. By withholding and ceasing the payment of certain required fees, the employees
had engaged in a partial strike, which is not protected by the Act. Thus, the Employer’s notifi-
cation to the employees on or about May 14 that they would be discharged the following week
for failing to make the payments was not unlawful, notwithstanding that they subsequently
engaged in a full strike.
By letter dated June 20, 1997, the Regional Director, Region 34 of the Board approved the
Union’s request to withdraw the 8(a)(3) allegation concerning Respondent’s failure to hire
striking drivers since November 27. Nonetheless, the complaint, as issued, does allege a
respondent failure and refusal to consider reinstatement of the drivers upon whose behalf the
union made an unconditional offer, as well as a discriminatory refusal to reinstate the three
named drivers who made individual applications to return to work and were rejected.
F. Respondent’s Defenses to the Alleged Unfair
Labor Practices
1. Respondent witnesses’ testimony regarding drivers status under the Act, execution of the
recognition agreement, subsequent offers of new leases, and alleged discriminatory
hiring practices
In the presentation of the Government’s case supporting employee status, I referred from
time to time to admissions made by Respondent’s management to various indicia of such status
which I reviewed. In its presentation at trial, Respondent relied in seeking to establish inde-
pendent contractor status almost exclusively upon the testimony of a single witness, Payson B.
Ayres III. Unlike all of the drivers who appeared as The General Counsel’s witnesses, and who
are native Haitians, Ayres, who had previously been a general manager with another taxi
company, had a preferred status and a special alignment with Respondent which none of the
other drivers had achieved.
Ayres left a position as general manager of Metro Taxi in New Haven, Connecticut, be-
cause of family considerations to work in Hartford for Stamford Taxi from May 1994 to July
1996. The first vehicle he drove for Respondent was his own 1987 Ford Taurus. Although not
asked, it is clear that Ayres was required to have his Taurus painted black. He later testified he
had the Stamford Taxi logo affixed and purchased the meter and radio from Respondent and
had them installed at Necatera’s service station. His second vehicle used as a cab was a 1989
Lincoln Town car which he purchased. On both vehicles Ayres turned over the title to Respon-
dent and had the vehicles registered in its name, as required by Stamford Taxi.
Ayres also agreed to drive during a certain core period, the day shift. Ayres was free to
start driving before his shift started and “on occasion,” to drive beyond his shift. He cultivated
what he called his own clientele, who requested his driving services either through dispatch or
by contacting him directly on the pager and cellular telephone numbers listed on his business
cards. In promoting his services, he distributed these cards to the passengers he carried in the
taxicabs.
While Ayres did not have to seek permission to take lunch or other breaks from service, he
was required to report to dispatch whenever he would be off the road. Similarly, whenever
STAMFORD TAXI, INC. 1387
Ayres received a call to pick up a passenger at an airport, he was obliged to notify dispatch he
would be out of town on this assignment.
Ayres also exercised discretion on picking up fares who sought to flag him down. He also was
not assigned to a particular geographic area. Unlike the Government’s driver witnesses, Ayres
testified he had the ability to turn down dispatch calls and he did so. Ayres did not explain the
circumstances.
When he left Stamford Taxi, the Company transferred a bill of sale on his vehicle to him in
exchange for $1 and transferred title to the vehicle back to him. But he had to return the meter
and radio he had purchased. While driving for Respondent, Ayres determined how many miles
he would drive each week. He paid for his own gasoline, oil change, and servicing at a garage
of his choice and paid for his own towing. Also contrary to the drivers who testified for the
Government, Ayres claimed he could have used his vehicle for his own purposes after his shift
ended and was not told that he couldn’t use it off hours.
In Ayre’s July 5, 1996 lease agreement received in evidence, unlike all those signed by the
union affiliated drivers who had previously testified, the schedule attached had figures listed for
each category of payments for which Ayres was responsible. Thus, his weekly lease manage-
ment payment was $87, weekly lease and management fee (including taxes) was $53, weekly
dispatching/overhead fee was $114.50, and collision repair pool, if in effect, was $19. Ayres
acknowledged that these fees had not been explained to him by management. It is clear that
these lease fees are part of the new lease agreement which Respondent started offering its
drivers beginning May 20. There is no mention or inclusion in Ayres’ July 5, 1996 lease, of a
Schedule C—dispatching service payment calculation, payable daily in addition to weekly
payments, listing day or evening dispatching periods. This schedule C was included in all prior
leases issued prior to May 20, 1996. It is this schedule which required the unit payment of 77
cents for each fare or local call on a daily basis, which has been previously described in detail.
In this connection, whether, and to what extent, the freedom which Ayres’ enjoyed to drive
beyond his shift, to refuse dispatch calls, and to use the vehicle, personally, after his shift, and
to which he testified, related only to the period following May 20, 1996, or included an earlier
time frame, is unclear from his testimony. For example, Ayres’ testimony at Transcript 635,
that he was not required to give Stamford Taxi a percentage of his day’s fares, can only be true
for the period after May 20, and not before, when each driver, including Ayres, was required to
account daily for each fare (trip) and to pay Respondent the unit fee of 77 cents for each. Ayres
denial was also not true for the percentage fares which Respondent charged under schedules it
issued to drivers for shared rides in zones 1 to 6, rides outside Stamford, Darien, or Greenwich,
out-of-state rides, listed fares for rides throughout Connecticut and for passengers picked up on
a New Canaan Train Breakdown. During his cross-examination by counsel for the General
Counsel, Ayres was compelled to admit that his denial was incorrect.
Ayres did acknowledge Respondent’s requirement to maintain and provide a daily trip sheet
listing starting and ending mileage and fares he had picked up and what they were charged.
While Ayres noted that the DOT requires the maintenance of such records, he did not mention
that these sheets also provide Respondent with information necessary to calculate the daily fees
due it, at least until May 20, 1996, as well as other daily fees due it arising from shared rides,
even after May 20.
Ayres testified he did not withhold any fees due Respondent when the other union affiliated
drivers did so in the week of May 13.
During Ayres’ cross-examination, it became clear that he was a friendly Respondent wit-
ness who had voluntarily spoken with both Necatera and Respondent counsel prior to his
testimony, although he had received a subpoena which counsel had advised he would be
receiving. It was Necatera who had offered him the position as taxicab driver.
Unlike earlier driver witnesses, Ayres was given an opportunity to review his first lease be-
fore signing it. There is no evidence, however, that Ayres sought, or was able to, modify or
change any of the written terms.
Ayres now explained that he first started as a driver on the night shift in 1994 because Ne-
catera told him there was a need, although it was also his preference, but after 7 months Necat-
era agreed to switch him to days at his request.
Interestingly, Ayres quit Respondent on July 14, so his new lease was only in effect for 9
days, from July 5. It was only in the new lease that Ayres was offered the flat fee arrangement
as described so that the unit fee continued to be charged by Respondent, at least in his case,
from May 20 to July 5, 1996. Also, Ayres, knew, until July 5, that he was required to report all
flagged fares and was responsible for the 77-cent unit fee for each such fare.
Ayres now admitted that over the 2-year period of his tenure with Respondent, he had only
turned down a dispatch call, “once or twice, maybe . . . possibly three times.” (Tr. 669.) This
admission severely undercuts Ayres’ claim of other occasions in which he claimed during his
direct examination he was free to drive outside his shift or to use his vehicle on personal trips
on which he was similarly vague and tacitern.
Once or twice, among the 10 or so times Ayres visited the Stamford train station to pick up
all passengers, he saw Necatera, observing. This is consistent with other drivers’ claims of their
time at the station having been monitored and limited.
Ayres paid the $8 daily fee without question and did not sublease his vehicle, although
permitted to do so. He also was required to comply with Respondent’s dress restrictions. And
he understood he was supposed to follow the rules and procedures set forth in Respondent’s
detailed three-page memorandum to all drivers dated January 11, 1995, regarding work period,
answering pages by dispatchers, payment of fees, customer courtesy, recordkeeping, time limits
on correction of car problems disclosed on company inspection, insurance payments, and
procedures on lease termination (G.C. Exh. 22). Thus, Ayres both admitted he was obliged to
follow Respondent’s rule that a failure to answer a dispatcher’s call was a direct attack on its
obligation to service the public (G.C. Exh. 22, p. 1) and also asserted he could refuse the
dispatch at any time. Such an inconsistent and contradictory position, seriously erodes Ayres’
credibility as a witness, and supports my conclusion that he exhibited a strong bias in favor of
Respondent’s claim of independent contractor status for the drivers not consistent with the facts
culled from The General Counsel’s witnesses and managerial admissions.
Ayres noted that because of Respondent’s rule prohibiting personal riders in cabs while “on
duty” he refrained from having such riders while he was providing services to the public.
Ayres agreed that he did not join the drivers’ strike in May 1996, and he did not support the
union movement while he was a driver for Stamford Taxi.
Ayres testified that if the “need was there” he could stay on the road beyond his shift hours
of 5:30 a.m. to 4 p.m. (Tr. 699). He learned of the need by listening to the cab radio and
hearing the amount of work put out to bid. He stayed on the road beyond his shift possibly
twice a week. To this extent, it appears that Ayres probably enjoyed privileges beyond those
available to the predominantly Haitian drivers who incurred discipline for working extended
hours without company permission. Yet, at the same time, Ayres knew that his extended work
hours were not authorized in the lease agreement.
During his examination by counsel for the General Counsel as an adverse witness called
pursuant to Fed R. Evid 611(c), F.R.E., Boskello claimed, falsely, that he had adjusted the
recognition agreement to read “independent lease drivers” where, in fact, the agreement only
added the word “leasee” to the word “drivers” before he signed it. Boskello did not say any-
where in the document that he was signing under duress, nor did he provide the Union with any
document during the subsequent negotiations in which he claimed he signed the original
agreement under duress.
Boskello testified that he offered new leases during the week of May 13 to commence on
Monday, May 20. Ultimately, all of the drivers who didn’t go on strike accepted the terms.
The weekly lease payments have been previously described as set forth in Ayre’s July 5 lease
agreement. Boskello agreed that neither the daily 77-cent fee per fare, the daily $8 train station
fee nor, the extra $18 sublease fee were dictated by DOT regulations, and, further, Respondent
had discretion to change those amounts. Indeed, Respondent changed them, by eliminating
them in its offer of the new lease on May 20.
Well after the Teamsters Union ceased representing the drivers, in 1991, Boskello acknowl-
edged that Respondent issued a 3-day suspension in 1993 to a driver for a physical altercation
with and swearing at a dispatcher, and issued a written warning in 1994 to another driver for
violating Stamford Taxi’s unwritten rule about proper attire while driving its taxicabs.
In his pretrial affidavit, Boskello swore that the drivers also do not owe the dispatch fee for
any “flagged” call. This conflicts with Boskello’s testimony that once a driver reported a
flagged fare he was responsible for the unit charge. (Tr. 548.) Boskello also swore in his
affidavit that drivers could stay at the Stamford train station as long as they desired and he
would not discipline any driver for staying at the station for an excessive period, including their
entire work period. Yet, on April 17, 1995, Boskello issued a written first warning to driver
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1388
Rene Job for a failure to answer dispatch calls and working only at [the] railroad. (GC Exh. 35.)
Drivers have previously testified credibly that they were required to respond to dispatched calls
at the risk of discipline for failing to do so.
Boskello swore in his affidavit that drivers could choose to work 24 hours straight, yet on
January 9, 1991, he terminated the lease of a driver, R. Gervais, for, among other infractions,
working other work periods without permission (G.C. Exh. 37). Boskello also denied in his
affidavit that he ever disciplined or suspended the lease of any driver who worked a different
service period, used his cab for personal reasons during or after or before their respective work
period, or had failed to check in with the dispatcher at the beginning of his shift. Yet, Boskello
terminated Gervais for failing to comply with two of these work rules, and drivers called by the
General Counsel testified credibly to discipline for violating the third rule. While the discipline
of Gervais and some others took place while the Teamsters Union was the drivers’ representa-
tive, it is clear that the same warning form continued to be used by Respondent 4 years after the
Union ceased its representation and the same infractions continued to be assessed against the
drivers.
After the strike commenced on May 20, Boskello acknowledged that 8 to 10 drivers ceased
striking, and sought to return to work and he accepted them all back under the new lease system
when they agreed to pay the fees they had withheld during the week of May 13. But Boskello
also noted that the alleged discriminatees in this case, the three drivers denied positions as
drivers, may have asked to come back, and probably were refused.
Later, when called as a witness by Respondent during the presentation of its defense,
Boskello testified he learned in the morning of January 12, during a heavy snow, that Stamford
taxi drivers had started a work stoppage, refusing to move their cars from the line of taxis at the
Stamford train station, blocking the circle there, and jamming the two-way radio. By the time
he arrived, the drivers, who had dispersed when local police arrived, were picketing outside the
Stamford government center. After consulting with Ken Gabriella and his assistant, Bob
Carlucci, of DOT, who pressed him to get the cabs back on the road or suffer the loss of some
certificates to a competitor, Boskello told the woman union representative present that he would
agree to negotiate. Without testifying at all about the third-party card check, Boskello related
his dealings with Kushner which led to his signing the recognition agreement.
Boskello claimed that it was only after he said he couldn’t sign the document unless it said
lessee, “which indicated independent contractor” (Tr. 894), that Kushner agreed to the insertion
of “leasee” before “driver.” While he claimed Kushner physically changed the document
“based on their demand” (Tr. 894) he failed to note any response by Kushner to his request for
the amendment. Kushner also agreed to the changes to “cancellation of the contracts” and
“leasee drivers” in the paragraph dealing with the drivers Job and Blanc after he wanted her to
be sure that we understood these are lessee/independent contractors.
Boskello did not explain why he did not insist on insertion of the words “independent con-
tractor” in the agreement, or why, Kushner, who had interviewed the drivers, consulted union
counsel and engaged in her own legal research, would have acquiesced in Boskello’s assertion
as to the status of the drivers. Boskello, whose testimony is replete with inconsistencies and
evasions, is not credited on his understanding of the intent and meaning of the use of the
phrases “lessee driver” and “cancellation of the contracts” in the agreement and Kushner is
credited whenever her testimony conflicts with Boskello’s on the negotiations leading to his
execution of the recognition agreement. It is clear that the parties agreed to identify the drivers
by the document which they signed as a condition to entering a relationship with Stamford
Taxi, but that neither abandoned their position that the drivers could ultimately be found to be
either employees or independent contractors if that issue were ever litigated. Likewise,
Cerritelli is credited over Boskello as to the statements and positions Cerritelli attributes to
Boskello during their negotiations.
While Boskello claims, at one point in his testimony, that “I was sort of forced into it,” at
no point did he indicate to Kushner, orally, or in writing, in the agreement, or separately, that he
was negotiating and signing the recognition under duress. Indeed, in the agreement itself, as a
predicate to its written recognition of the UAW as exclusive-bargaining agent of all of its
drivers, Respondent acknowledges that the Union’s status as majority representative had been
established by an impartial third party. While Boskello may have been acting under pressure,
the pressure was created by a legitimate strike of his drivers, and under circumstances where he
became convinced by virtue of the card count and his own observation of the unity and adher-
ence of a clear majority of his drivers, that the Union did represent a majority of them.
At some point after November 27, when the Union made its unconditional offer to return to
work on behalf of the striking drivers, Boskello acknowledged that Max Lucien and Andre had
come in, there were three or four in all, and he had rejected them. He recalled having rejected
because of his involvement in some type of gambling operation which someone had told him
about.
Boskello claimed that Tibbetts had told him that if any of the striking drivers came in after
the Union offered their unconditional return to work, he was to talk to them, and he never
refused to consider them for driving positions. Yet, Respondent’s counsel in his November 27
letter, replied to the Union’s offer with a firm rejection both of the Union’s status as the drivers’
bargaining representative (because they were not employees) and of these drivers having any
further rights with the Company. By those rejections, Respondent was clearly signaling that the
striking drivers would not be given any consideration on a return to work for Stamford Taxi and
the Union and the drivers took it as such, making any approach to Respondent a futile one. In
spite of this rejection, the three alleged discriminatees came in to seek reinstatement to their
prior positions as drivers.
Although Boskello claimed that drivers use of business cards was widespread, and that
there was no requirement that the dispatch office number appear on the card, Respondent did
not subpoena or demand the production of any business cards from the drivers who were
Government witnesses, and the five business cards which Respondent produced were never
offered in evidence after Respondent failed to provide proof that any of the drivers named on
the cards had worked as a driver for Stamford Taxi prior to May 1996. (Tr. 912.) Thus, the
only concrete testimony relating to business card use was that of Payson Ayres, which has been
previously described. Ayres, however, failed to produce or offer the business card he testified
about.
During his cross-examination Boskello confirmed that Respondent continues to the present
to maintain two separate work periods, day and night, to which drivers are assigned. Boskello
also admitted he told the DOT on the January 22 strike day, that he was willing to negotiate
with the drivers about what was going on to get them back on the road. He also never told the
union agent there that he would not negotiate with them because of their disruption of service.
Neither did he claim duress before he signed the document or afterward during the negotiations.
He also agreed that at the conclusion of one of those sessions, there was a document prepared
by the Union described as tentative agreements between the parties which the Union submitted.
Not included in the document were items on which the parties still had differences, including
the amount of the flat fee, the dues-checkoff clause, and the status of the drivers. However,
Boskello did not ask the Union to change the phrase “lesser” and “lessee” in the document to
“independent contractor.”
Boskello also acknowledged that when he told the union agents during the week of May 13
that Respondent would no longer recognize the Union any more since it had encouraged drivers
to not pay their fees, there were other drivers who had continued to make their payments that
week. Boskello took this position of withdrawing recognition in spite of the fact that he had
signed a recognition agreement recognizing the Union as exclusive representative for all of its
drivers.
As to his refusal to reemploy Max Lucien, Boskello could not recall the circumstances. He
did know that Lucien was one of the four union representatives on the drivers’ negotiating
committee who attended the bargaining sessions on behalf of the Union. Regarding Andre,
who he was aware was a union member who refused to pay his fees and then gone on strike, he
was rejected for allegedly running a gambling establishment for drivers at his house, although
Boskello never saw him gamble, including on Stamford Taxi premises, and he was never
disciplined for gambling during the 15 years he drove for Respondent. According to Boskello,
had just started the gambling enterprise, but was vague on dates or circumstances. Although he
was aware five drivers gambled at [Andre]’s house, he took no action against any of them.
Boskello acknowledged that when Tibbetts wrote his February 12, 1998 letter to the prior
drivers whose leases had been cancelled for withholding lease payments, Respondent was
prepared to forget about the past and take them back if they would like to come back. This
offer included both Lucien, whose gambling habit, so far as he was aware, has subsided, and as
well the third driver (Solinaire), who he had rejected.
STAMFORD TAXI, INC. 1389
Mark Katz testified he participated in the negotiations as counsel for Respondent. When he
objected to the Union’s proposed agreement because it used the terms employer and employee,
See readily agreed to substitute the terms lessee and lessor. However, when Katz said he
agreed to that substitution because that’s the same as an independent contractor relationship,
See didn’t say yes or no, and the parties just went on to the next issue. Thus, just as I have
found with respect to the parties’ positions on driver status taken at the negotiation and execu-
tion of the recognition agreement, during the bargaining, the parties agreed on language to
describe the drivers the Union represented derived from the contract they were required to sign,
but neither side conceded its respective position that the drivers were employees or independent
contractors.
Attorney Katz’ rudimentary knowledge of labor law was best illustrated when he confused
the concepts of bargaining unit and compulsory union membership. While Respondent counsel
sought to get Katz as a witness to testify that Respondent disputed the article 2 recognition
clause of the Union’s proposal contained in the tentative agreement it submitted near the end of
bargaining, Katz, instead, testified, that Respondent was disputing not recognition (which, after
all, Boskello had previously bound Respondent to accept) but rather the union security clause,
article 3. (Tr. 1017, LL. 9 to 1019, L. 7.) It is probable that since the union-security clause was
contained in the tentative agreement which Cerritelli credibly testified included clauses agreed
to at the bargaining table, that Katz may have been further confused, and that Respondent was
really disputing the dues-checkoff clause not included in the tentative agreement.
Katz agreed on cross-examination that he did not seek to nullify the recognition agreement
on grounds of duress, even after learning of the pressure the drivers had applied at the Stamford
train station in the morning of January 12. Katz was frank in stating that Respondent was not
contesting the recognition agreement, but continued to insist it recognized the Union as repre-
sentative of only independent contractors, not employees, in spite of the failure of the agree-
ment to so specify and his ignorance of the Union’s position on the drivers’ employee status
expressed or understood by it at the meeting on January 12 when the recognition agreement
was signed. Katz finally also agreed the terms “lessee/lessor” may mean different things for
legal purposes, such as employee or independent contractor status.
Attorney Katz was also sure that at the bargaining sessions he made the Union aware of the
worker’s compensation insurance premiums that would be due and probably mentioned the IRS
ramification as well, in terms of withholding of payroll taxes and the like which would be
required, were the drivers to be deemed employees rather than independent contractors. Katz
agreed he also explained to the Union the additional bookkeeping requirements and liability for
sales which would be imposed on Respondent as reasons why Stamford Taxi didn’t want to
agree to referring to the drivers as employees in any collective-bargaining agreement.
Although Katz claimed the Union agreed to an independent contractor relationship before
the negotiations terminated, he admitted there was no proposal memorializing such an under-
standing, and he did not draft one. Katz’ claim is not credited, and neither is his testimony
where it conflicts with that of Cerritelli on the discussions held and positions taken at the
negotiations. In particular, Katz’ assertion that the parties reached an understanding on the
drivers’ status at the last session when the Union submitted its tentative agreements is negated
by his testimony characterizing such an understanding arising from agreement of the parties to
enter into the same contract the drivers are using now, but with a change in the amount of the
fees, and conforming their understanding to a union collective-bargaining agreement (Tr.
1049).
In calling as a witness, Robert Cumpstone, manager of motor transportation services for the
DOT, Respondent was clearly seeking to establish that its lease agreements including its relation-
ship with its leasee drivers, established their status as independent contractors. Respondent did not
achieve its objective. Cumpstone repeatedly carefully hedged his responses to establish that while
Stamford Taxi and other taxi companies take the position that their drivers are independent contrac-
tors, their lease arrangements do not establish that status but are only one factor in determining such
status. Cumpstone’s department, the DOT, does not have jurisdiction to determine that status. The
Connecticut Department of Labor (DOL) does have jurisdiction to investigate and determine such
status, for purposes of compliance with state minimum wage laws. In some cases, the DOL has
determined taxi company drivers were employees, although they were subject to lease agreements.
While performing services as cab drivers under certificates of public convenience and necessity
issued by his department, the DOT exercises oversight over the day-to-day operations of the
company issued the certificates, to insure that the company is responsible for the behavior and
conduct of the drivers as their agents while they are in revenue service. Thus, Cumpstone signed a
letter dated November 3, 1997, directed to Connecticut Limousine, copy to Boskello, responding to
its complaint about the behavior of a Stamford Taxi driver (in operating a vehicle in an erratic
manner in front of Connecticut Limousine’s terminal location), in which he informed the complain-
ant that “Stamford Taxi like any other certificate holder has ‘control’ over who they allow to drive
their vehicles and is responsible to take corrective action over a driver’s behavior”. (R. Exh. 17.)
An earlier section of this decision has made clear that whether to take action at all, and the nature
and severity of that corrective action, is solely within the discretion of the cab company, in this case
Stamford Taxi.
As an expert witness, Cumpstone offered his opinion that based upon his review of Re-
spondent’s 77-cent dispatch call computation of unit fees due it for calls between 1 and 50 in a
day, as well as Respondent’s fee schedules for shared ride zones and daily lease fees, all in
effect prior to Respondent’s unilateral imposition of a flat fee after May 20, there was no
shifting of the risk to the drivers, that the system continues to be almost a commission type
basis, under which the drivers would be considered to be employees. Under a flat rate per shift
or per week system, where the revenue the driver generates by the meter or by flat rates for the
over-10-mile trips he keeps for himself, the drivers would more likely be considered to be
independent contractors.
Cumpstone also confirmed that the phrase “on duty” means a driver available for service,
and drivers have the ability to “book off,” remove themselves from revenue service, even
during their work shifts. The DOT does not regulate whether and when drivers may go off
duty; it is up to the taxicab company to determine that. In a previous section of this decision,
Stamford Taxi’s restrictions on permitting drivers off-duty use of their cabs, by engaging in
personal and family errands and the like, has been described. Cumpstone opined that if the
Respondent’s drivers were truly independent contractors they could book off at any time.
Cumpstone pointed out that even in Stamford Taxi’s February 13, 1997 self-serving notice
to all of its “Independent Contract Drivers,” prepared months after it unilaterally issued the new
lease agreements, Respondent, in paragraph 10, improperly placed the responsibility for the
upkeep of the cabs on the drivers, whereas the maintenance of the cabs is the Company’s
absolute responsibility, putting aside the question of who pays for it. This responsibility
encompasses as well as the responsibility for the clean and sanitary condition of all equipment
and the safety of the vehicle for operation on the highway. As to the Company’s decision to
terminate a driver’s lease for not correcting a maintenance problem within 5 days, as required
in the Company’s rules and procedures, that, said Cumpstone, is Stamford Taxi’s decision and
it is not compelled by DOT regulations.
Tibbetts, Respondent’s owner, testified that when he received the Union’s unconditional
offer to return to work on behalf of the employees it represented, on or about November 27, he
instructed his counsel to inform the Union that he had no employees, and also told Boskello to
consider the strikers who showed up on December 5, as noted in the letter, the way he had with
others who came to him wanting to sign new leases. But, as earlier noted, no union drivers
showed up. Tibbetts admitted he did not instruct his attorney to advise the Union that the
drivers the Union represented could just show up on December 5, and be considered for driving
positions, as he claims he told Boskello. Tibbetts just didn’t “think of that.” (Tr. 795.) Instead,
of course, Respondent counsel’s reply to the Union made no offer to consider the union-
affiliated drivers, but instead, asserted that by virtue of their having violated their lease agree-
ments, they had no further rights with the Company. It is little wonder then that none of the
union-represented drivers reported to Stamford Taxi on December 5.
This was not the first time that Respondent, in writing, had issued threats to deny any con-
sideration to drivers who had affiliated with the Union. In its notice to leasee drivers issued on
or about May 10, Respondent threatened to cancel immediately the insurance on any vehicle
with a bargaining demand that does not permit us to cover its operating costs, thereby resulting
in the lease agreement having been broken.
During his cross-examination by counsel for the General Counsel, Tibbetts agreed that after
May 20, Stamford Taxi had not recognized the Union as the exclusive bargaining representative
of the drivers. As to the drivers whose leases had been canceled, they no longer had a relation-
ship to Stamford Taxi. As to the drivers who remained, according to Tibbett’s, they did not
indicate in any way that they wanted the Union to represent them. In this response, Tibbetts
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390
ignored both the January 12 recognition agreement in which, on its face, Respondent granted
the Union status as bargaining representative for all of its drivers after recognizing its estab-
lishment of a majority status as a result of a card count, as well as its bypassing of the Union
and direct dealing in its May 17 notice posted and distributed to the individual drivers.
Tibbett’s claim that it is the DOT regulations which mandate Stamford Taxi’s exercise of
control over the conduct and appearance of drivers under lease with it, is not credited. The
record makes abundantly clear that Stamford Taxi imposes its own system of discipline,
decides which elements of behavior will be subject to control and to what extent, and deter-
mines its own dress requirements. Respondent never produced state regulations governing
personal appearance or grooming of drivers, although the claim was repeatedly made of their
existence. Tibbetts is also not credited in his assertion that drivers were free to work their own
hours beyond or outside their work shifts without Respondent’s approval, and that drivers were
free to carry family members in their cabs or engage in personal errands during their shifts
unless they informed the dispatcher they were available for a call. It is clear that the company
rule prohibiting personal riders during the drivers’ “on-duty” period exceeds the state DOT’s
concerns expressed in Robert Cumpstone’s letter to Boskello of August 7, 1996, objecting to
“personal” use of a cab which is carrying paying passengers.
During Boskello’s recall as a witness by Respondent, he testified on cross-examination that
in addition to a list of 22 union-affiliated drivers Respondent had prepared whose leases were
canceled and who have since not returned to work, there were 10 or 11 other drivers who came
in after May 20 and signed new leases after also withholding certain fees earlier in May. The
Company told them they would have to square up the fees they owed and any delinquent
payment on their car leases and permitted them to come back after they paid what they owed.
All had good driving records as well. As to Max Lucien, he had started driving for Respondent
for possibly 10 years, and had a driving record which was neither the best nor the worst. After
the Union’s unconditional offer to return to work, Lucien did come back looking for a job and
like the 10 or 11 other drivers offered to pay the Company what he owed in withheld fees, but
Boskello told him no.
During Respondent’s redirect examination of Boskello, after the General Counsel had suc-
cessfully amended the complaint to allege Respondent’s discriminatory failure to hire Lucien
on or about May 21, Boskello disclosed that in an accident Lucien had had with his vehicle, he
had submitted an estimate of repair which exceeded the actual costs of repair. Boskello learned
later that Lucien had been paid from the collision pool for work which had not been done on the
vehicle, based on an inflated estimate he had submitted.
Boskello agreed that Max Lucien, Andre Chery, and Augustine Solinaire had each ap-
proached Boskello to ask for their driver’s positions back and in each case, had offered to pay
back the fees that were due. In each case, Boskello refused to take them back. They each had
come in sometime after May 20, 1996. Had driven for Stamford Taxi for approximately 10 to
15 years. Solinaire had driven for about 3 years. Boskello noted that Solinaire had hid his
vehicle when his contract was canceled. (Respondent had used a tow truck to pick-up the
vehicles used by drivers after cancellation of their leases.) But Boskello acknowledged that
others had done the same thing. Solinaire still owed about $12,000 on the vehicle under a lease
with Respondent.
Boskello also admitted that Respondent’s letter to drivers whose leases had been canceled
dated February 12, 1998, asking if they were interested in a lease arrangement, was forwarded
to Lucien and Solinaire.
Boskello agreed that many of its drivers who received this letter had accidents while driving
cabs for Stamford Taxi. However, Lucien’s insurance scam reflected on his character and was
a separate issue. Yet, Boskello was willing to admit that Lucien’s character had improved from
the time of the padded insurance estimate and that “[e]verybody’s entitled to a second chance.”
(Tr. 1326.) Boskello also noted that Lucien’s accident insurance claim had occurred prior to
May 1996 and that when he found about it, he did not cancel Lucien’s lease agreement.
As a consequence of counsel for the General Counsel’s cross-examination of Boskello, he
moved, successfully, to amend the complaint to allege the discriminatory refusal to reinstate all
three of the named drivers.
Respondent’s last witness was Bruno Necatera. He denied that Stamford Taxi drivers are
not covered while driving off duty. While not recalling any discussions with drivers about not
being covered off duty, Necatera was sure he wouldn’t have told them they’re not covered. He
recounted two separate claims which Respondent covered under its insurance policy involving
accidents while drivers were off duty, in one instance, with the driver’s wife and children in the
car.
Necatera also claimed that he had gone to the Stamford train station to observe whether the
number of available cabs are sufficient to handle the incoming traffic in order to aid Respon-
dent’s position that applications to DOT by its local competition, Stamford Yellow Cab and
Eveready, for additional certificates of registration as taxicabs were not necessary and should
be denied.
Necatera asserted that it was during the tenure of the Teamster’s as the drivers’ bargaining
representative, until 1991, that Stamford Taxi restricted day-shift drivers from working past
their shift after the Union grieved for night drivers losing fares. After 1991, Respondent
permitted its drivers to drive when they want. Neither did Necatera ever tell drivers they had to
work 6 days a week.
Necatera denied he physically, or verbally threatened any drivers with lease cancellation to
force them to leave the Stamford train station during the January 12 snowstorm when the union
affiliated drivers staged a work stoppage there and refused to move their vehicles which were
blocking the area. Necatera denied he had any power to cancel leases. Necatera swore this was
the only time between 1991 and 1996 he asked drivers to leave the station to handle dispatch
calls.
Necatera corroborated the Union Agent Kushner’s testimony that at the later meeting that
day at the Government Center, after Boskello telephoned Respondent’s attorney or Tibbetts, he
returned and told Kushner the only way he would sign the paper (the recognition agreement)
was if she agreed the drivers were lessee drivers and instead of driver discharge she agreed to
use the words, lease termination. And Kushner said she would go along with that. In spite of
this testimony, Necatera unaccountably asserted that when Boskello equated lessee drivers with
independent contractors, Kushner agreed to that characterization as well, although the agree-
ment does not so specify and, admittedly, Boskello did not ask for the insertion of those words.
With respect to Max Lucien, Necatera discovered Lucien’s insurance scam on February 29,
1996, when certain repairs worth $497.68 had to be performed on Lucien’s vehicle pursuant to
state inspection, after Stamford Taxi had already paid for them based upon an inflated estimate
of damage arising from his accident which Lucien had obtained in late December 1995 from
another car repair body shop. After Necatera told Boskello of the duplicate charges, Boskello
said, “[L]et it go for now.” (Tr. 1381.) In spite of this apparent condonation, Boskello referred
to this conduct in explaining why he rejected Lucien’s later application for reinstatement.
During his cross-examination Necatera claimed it was “impossible” that he would have had
his wife serve as a witness to a discipline he issued to a driver, regarding the fact that they had
to start their shift at a certain time. Necatera then confirmed that his wife had signed, as a
witness, a statement signed by driver Joseph Spencer on February 22, 1995, in which Spencer,
driver of car 55, declared that he “will start working at 4:00 p.m. everyday and will answer
dispatched calls during my work period.” (GC Exh. 32.)
Spencer had credibly testified earlier as a Government witness to the circumstances sur-
rounding his receipt of this reprimand. Spenser had complained to Necatera that he allowed
day-shift drivers who have their vehicles repaired at his service station to work longer hours
beyond the end of their regular shift. This cut into the number of dispatch calls available to
Spencer and limited his fares and his earnings. When Necatera questioned when he started
work, Spenser replied he came in at 6 p.m. when the day guys are going home. Necatera then
told him he had to start to report to work at 4 p.m. in the afternoon and he had his wife draft the
letter and informed Spencer that he had to sign it or else he was not going to work there any
longer. After Spencer signed it, Necatera told him he was free to go to work.
By swearing that he had no power to cancel leases, and that drivers were not restricted as to
their work hours, Necatera’s testimony has been impeached by indisputable documentary
evidence to the contrary. As a consequence, I do not credit any of Necatera’s testimony which
conflicts with that of any of the drivers who testified during the General Counsel’s presentation
of his case or conflicts with Union Agent Kushner’s testimony regarding the events of January
12, 1996.
ANALYSIS AND CONCLUSION
I consider first the underlying issue of the status of Respondent’s drivers under the Act.
STAMFORD TAXI, INC. 1391
Section 2(3) of the Act excludes from the definition of employee “any individual having the
status of an independent contractor.” In determining whether individuals are employees or
independent contractors, the Board applies the common law of agency, specifically the “right-
of-control” test set forth in News Syndicate Co., 164 NLRB 422, 423–424 (1967).

Where the one for whom the services are performed retains the right to control the manner and
means by which the result is to be accomplished, the relationship is one of employment; while,
on the other hand, where control is reserved only as to the result sought, the relationship is that
of an independent contractor. The resolution of this question depends on the facts of each case,
and no one factor is determinative.

There are many factors considered significant under the “right-of-control” test: (1) whether
individuals perform functions that are an essential part of the company’s normal operation or
operate an independent business; (2) whether they have a permanent working relationship with
the company which will ordinarily continue as long as performance is satisfactory; (3) whether
they do business in the company’s name with assistance and guidance from company person-
nel; (4) whether the agreement which contains the terms and conditions under which they
operate is promulgated and changed unilaterally by the company; (5) whether they account to
the company for the funds they collect under a regular reporting procedure prescribed by the
company; (6) whether particular skills are required for the operation subject to the contract; (7)
whether they have a proprietary interest in the work in which they are engaged; and (8) whether
they have the opportunity to make decisions which involve risks taken by the independent
business person which may result in a profit or loss. Metro Cars, 309 NLRB 513, 515 (1992);
Standard Oil Co., 230 NLRB 967, 968 (1977); NLRB v. Pepsi Cola Bottling Co., 455 F.2d
1134, 1141 (6th Cir. 1972). This analysis also includes an examination of the “entrepreneurial
risk” undertaken by the party performing the service and the method of compensation and tax
withholding. NLRB v. United Insurance Co., 390 U.S. 254 (1968); Diamond L. Transportation,
310 NLRB 630, 632 (1993); Metro Cars, supra at 515, Cardinal McCloskey Services, 298
NLRB 434 (1990).
For a recent Board decision in which these factors were enunciated, and considered signifi-
cant in determining whether an employment relationship exists under the right-to-control test,
see Prime Time Shuttle International, 314 NLRB 838, 840 (1994), citing Standard Oil Co.,
cited supra.
In a recent case, Yellow Cab of Quincy, 312 NLRB 142 (1993), the Board set forth the test
for determining employee status of taxicab drivers: (1) whether the employer controls the
driver’s means and manner of operation; and (2) whether there is any correlation between the
employer’s income and the amount of fares collected by its drivers. Yellow Cab of Quincy,
supra 144, citing Checker Cab Co., 273 NLRB 1492 (1985), and Air Transit, 271 NLRB 1108
(1984).
The factors which I have previously reviewed, as applied to the drivers’ hire, vehicle selec-
tion, work shift assignment, dispatch call system requirements, fare schedules and fees; and
work rules governing their conduct and operation of the taxicabs, substantially support the
conclusion that the drivers are employees and not independent contractors. The record shows
that the Respondent clearly controls the means and manner of the drivers’ operation of their
taxicabs by assigning drivers to work shifts, by requiring the use of its dispatch services, by
imposing a dress code and by disciplining drivers for not complying with Respondent’s numer-
ous rules. Of equal or even greater significance, Respondent’s income is directly correlated to
the amount of fares collected by the drivers. During the relevant period, prior to Respondent’s
unilateral adoption of a flat fee arrangement with its drivers after May 20, 1996, Respondent
maintained a commission-based system pursuant to which it received not only a set daily fee,
but a unit fee for each local fare and a percentage of the drivers’ other fares. Even after May
20, the percentage payments continued to be made for trips outside the Stamford area, in other
portions of Connecticut, and across state lines.
Applying the factors deemed significant under the right-to-control test, the drivers perform
a function essential to Stamford Taxi’s basic business of providing taxicab service to the public.
In performing that function, the drivers work a particular shift and do not work for themselves
in their own business then or at any other time. Respondent does not permit the drivers to
operate its registered vehicles, painted black and carrying its own logo, independently, or for
any other cab company. Since Respondent holds title to the vehicles, it thereby controls drivers
use of the vehicle for other taxicab business.
The drivers’ relationship is permanent and continues as long as they perform consistent
with Respondent’s rules and regulations, and even if they do not, rarely have their leases been
terminated under Respondent’s disciplinary system.
It is clear that the drivers operate in Respondent’s name, in vehicles Respondent selects or
approves, which bear only Respondent’s color and logo. Respondent requires the drivers to use
its dispatch service. While driver Ayres used a business card to solicit business, I have found
he was obliged to utilize Stamford Taxi’s dispatch service, and that he also was required to pay
the Company the unit fee for each fare he solicited. Although Ayres’ business card was not
produced, he acknowledged customers utilized his services either through dispatch or calling
him directly. In either case, he was selling Stamford Taxi services, operating a vehicle which
bore Stamford Taxi advertising by virtue of its uniform color and logo. As to the importance of
company advertising of this nature in helping to establish an employer-employee relationship,
see Prime Time Shuttle International, cited supra at 840.
By retaining title to the vehicles the drivers operate, Respondent effectively restricts their
ownership rights in the cabs. By warning drivers that personal use of their vehicles on and off
duty will not be covered for insurance purposes, Respondent further impedes and restricts
driver use of their vehicles to business use only on behalf of Respondent.
While Respondent failed to have any business cards of drivers included in the record, the
evidence shows that Respondent required these cards to list its dispatch telephone number. The
only evidence supporting pager and cellular phone use by drivers was offered by Ayres whose
testimony I have largely discredited and who had a special status and alignment with manage-
ment different from that of the other drivers. In any event, the fact that drivers were free to
solicit passengers in addition to complying with Respondent’s dispatch orders, and that Ayres
did so, and even Lucien, among others, may have done so on limited occasions, is not determi-
native of a finding that the drivers are independent contractors. Southern Cab Corp., 159
NLRB 248 fn. 4 (1966); Veterans Cab Co. of Memphis, Inc., 159 NLRB 251 (1966).
While the drivers have an incentive to maximize their income much the same as an em-
ployee working on commission, and in spite of the fact that some of the drivers may have fully
paid the lease and financing charges on their vehicles, to the extent that Respondent retains
their registration and title so long as they continue to drive for Respondent, they do not fully
own their vehicles and similarly, they have no proprietary interest in a business. See Prime
Time Shuttle International, supra at 841.
I have previously described the facts regarding the preparation and execution of the lease
agreement the drivers are required to sign. Respondent unilaterally drafts, promulgates and
changes its terms. There is no negotiation with any driver, including Ayres. There is no
reasonable time provided drivers for its review before being directed to sign. The two occa-
sions on which Respondent changed the terms and required new lease executions, it did so for
its benefit and without any input from the drivers. Drivers’ leases did not contain the fee
amounts and they could not explain the various fees and charges they were required to remit.
Respondent’s exercise of unilateral control over the lease agreement is a significant factor
supporting employee status. Prime Time Shuttle International, supra; Red Cab, 173 NLRB
1262 (1968); Transportation Promotions, 173 NLRB 828 (1968); Miami Beach Yellow Cab,
173 NLRB 831 (1968), Blue Cab Co., 156 NLRB 489, 498–499 (1966).
The Respondent’s system-in-place for driver accounting each day for local fares, and num-
ber and type of out of town calls on daily trip reports, coupled with the dispatcher’s logs,
provides Respondent with the information necessary to determine the amounts of fees owed by
drivers and whether a disparity exists for which the driver is responsible. Respondent’s system
of accounting, beyond DOT requirements, to the extent drivers must remit daily moneys plus a
computation of unit calls, the $8 train fee and number and type of out of town and out of state
calls, provides a further basis for concluding the drivers are employees. Yellow Cab of Quincy,
312 NLRB 142 fn. 7 (1993).
Another factor supportive of a finding that the drivers are statutory employees, is the ab-
sence of any special driver training or a requirement of knowledge of the Stamford area or city
streets. The public service license required, in addition to the regular drivers license, involves
only a physical examination and a background check.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392
Various requirements imposed by Respondent on its drivers, severely limit their entrepre-
neurial opportunities and are thus strongly indicative of employee status, Yellow Cab of Quincy,
supra, at 144. Thus, the drivers are both required to pay an $8 daily fee to cover the costs
associated with customers picked up at the Stamford train station, and are prohibited from
working all day out of that station. Drivers cannot extend or limit the hours of their work shift
without permission from Respondent. When circumstances warrant, Respondent may permit
drivers to stay beyond their shift, but this is a decision made by Respondent and not the driver.
Drivers who select later starting times without permission, in order to enhance their earning
potential for example, are disciplined for such business-oriented decision making. Neither are
drivers free to work 7 days a week, or on a shift of their own choosing, or to select a day off
other than the one selected for them by Respondent.
While the busiest hours for taxicab services in Stamford run from 6 to 10 a.m., 12 to 2 p.m.,
and 4 to 8 p.m. Respondent was unable to identify a single driver who worked those times. By
retaining the title to all of the taxicabs, Respondent restricts the ability of drivers to work for
themselves or another taxicab company. Thus, unlike true independent contractors, Respon-
dent’s drivers have a very limited opportunity to make decisions which entail the risk of profit
or loss and they also have a very limited proprietary interest in the taxicab business.
The fact that the lease agreements defines the driver as an independent contractor with ex-
clusive custody and control of the taxicab is undercut by the strong evidence of control exer-
cised by Respondent over its drivers, and, consequently, may be accorded limited weight in
determining the actual status of the drivers. National Freight, Inc., 153 NLRB 1536 (1965).
Even where additonal factors supporting independent contractor status are present, such as the
absence of payroll deductions, drivers paid their own social security and other taxes and were
free during part of their shift to obtain their own passengers, such factors have been held by the
Board not to be determinative. Southern Cab Corp. and Veterans Cab Co. of Memphis, Inc.,
supra.
In an earlier section of this decision I have described in detail the degree to which Respon-
dent maintains rules and enforces them with discipline, thereby significantly controlling the
manner and means by which the drivers operate their vehicles. These rules and discipline
continued in effect to the present and well after the Teamsters ceased being the drivers exclu-
sive representatives and have not been dictated by a collective-bargainging relationship which
terminated in 1991. Respondent’s control has remained the same whether Respondent consid-
ered the drivers as employees up to 1991, or it considered them as independent contractors
since 1991.
I have also shown how DOT rules and regulations do not mandate the discipline Respon-
dent imposes, nor the decision to impose discipline, nor the degree of discipline selected.
Accordingly, Respondent’s argument that in enforcing its rules of conduct against drivers in
operating the cabs and in their behavior toward dispatchers and others, it is merely complying
with DOT regulations, lacks merit. For example, in testifying about its dress requirement,
Tibbetts could not identify any DOT rule which imposed a state requirement of neat appearance
or dress, in general, or in specific detail. None of Respondent’s work rules and procedures
mandating drivers work a particular shift or number of days of work per week, respond to
dispatch calls, report their locations to dispatchers, limit their time at the train station, refrain
from using the taxicabs after hours or during their shift for personal use, place customer lug-
gage in the trunk, refrain from wearing sneakers, jeans, sandals, T-shirts, and shirts without
collars, are required by DOT. In certain instances, Respondent has enforced a rule more
restrictive than DOT’s, for example, regarding restrictions on personal riders while a driver is
on duty. Respondent has never informed its drivers they could “book off” during their shift to
transport personal riders or perform personal errands.
Respondent has also enforced rules contrary to DOT requirements, for example, as to rates
per mile charged on in-state travel, and its 5-day limit on repairs to vehicles which became
evident on inspections. Surely, Respondent cannot rely on State action in imposing these fares
and this rule on its drivers.
As noted earlier, the degree to which the income of the taxicab company is correlated with
or is dependent on the work effort and fares collected by the drivers, is a key consideration in
determining employee status of taxicab drivers. Elite Limousine Plus, 324 NLRB 992, 1002,
and cases cited at fn. 67 (1997).
In Yellow Cab of Quincy, 312 NLRB 142, 144 (1993), the cab company, in effect, received
a percentage of the drivers’ fares, since the fares paid by customers to the drivers were based on
mileage, and the rental fee paid by the drivers to the employer was also based mileage. The
pure mileage based fee resulted in a direct correlation between the employer’s income and the
amount of fares collected by the drivers “thus substantially limiting the drivers’ entrepreneunial
opportunities and strongly indicating that the drivers are statutory employees.” [Citations
omitted.] Id. at 244. Furthermore, in Yellow Cab of Quincy, the Board recognized an employer
incentive to have the cabs driven as many miles as possible. That incentive, coupled with the
driver’s substantial reliance on the employer’s dispatching service, “gives the Employer both a
motive for, and a method of, controlling the drivers’ means and manner of operating the cabs.”
Both of these factors, which the Board found heavily outweighed the few circumstances
facially indicative of independent contractor status, led the Board to determine the drivers were
employees. Those same factors are present in the instant case. Respondent’s income is directly
correlated to the fares collected by the drivers. The unit fee is earned by Respondent on each
fare, and Respondent, as well, charges a percentage of every fare outside of the Stamford area.
Respondent’s revenues are thus strongly dependent on the earnings of the drivers. There is also
a strong incentive for Respondent to maintain full driving shifts for the drivers during which
they are obligated to respond to dispatch calls, thereby enabling Respondent to both audit and
to maximize the fares collected by the drivers subject to the unit and percentage fees which it
collects, as well as providing it with a measure of control over the driver’s means and manner
of operating the cabs.
By limiting time spent by the driver at the Stamford train station, where there are no unit
charges and only a single $8 daily charge due Respondent, and by requiring a minimum of 10
dispatch calls a day, Respondent maximizes its income and exercises control over driver
opportunities to profit from the fares they otain.
Aside from the opportunities for profit available at the train station (which Respondent’s
rules have effectively restricted), the drivers have little incentive to maximize trips on which
they are obligated to pay a percentage of their fares. In contrast, under a flat fee arrangement,
which Respondent unilaterally implemented after May 20, 1996, drivers do have an incentive to
maximize their trips, since, once that is recouped income thereafter is largely profit.
In determining the status of a worker as employee or independent contractor, the common
law agency test requires that, “all the incidents of the relationship must be assessed with no one
factor being decisive,” NLRB v. United Insurance Co. of America, 390 U.S. 254, 258 (1968).
Though no one factor carries unparalleled weight, two recent Board decisions, issued sub-
sequent to the date on which the parties filed their posttrial briefs, have emphasized decisive
factors to be taken into account, and both support the conclusion I have reached that Respon-
dent’s drivers are employees under the Act.
In Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998), the Board concluded that the
owner-operators who use their own equipment and the assistance of helper and/or driver to
deliver Dial’s products throughout the New York Metropolitan area, are independent contrac-
tors within the meaning of Section 2(3) of the Act. Unlike the owner-operators in Dial-A-
Mattress, whose vehicles displayed the name and addresses of their particular company, and
not of their employer, the drivers of Stamford Taxi are restricted to driving only black vehicles
that bear the Stamford Taxi logo on the driver and passenger side door. No other advertise-
ments are allowed. Though no specific uniform is required bearing Stamford’s name, its
drivers do not maintain the persona of self identity like the drivers of Dial-A-Mattress who
supply their own company’s work uniform solely promoting their individual companies. Thus,
Stamford drivers do not maintain a separate identity indicative of independent contractor status.
The Dial-A-Mattress drivers, unlike the Stamford Taxi drivers, exercised substantial free-
dom and flexibility in selecting the work days they provided delivery service, in selecting their
own vehicle and retaining exclusive ownership rights and their own independent financing, if
necessary, and being free of any inspections of their vehicles, and in exercising complete
freedom to hire their own employees and to have complete control and responsibility over
them. Although able to sublease their vehicles, the Stamford Taxi drivers’ subleases, their
hours and conditions, are all subject to managerial approval. By having the power to limit the
subleasee’s working hours, thereby substantially controlling the subleasee’s productivity,
Stamford Taxi, and not its drivers, determine which subleases, if any, will be given the oppor-
tunity to be productive and profitable for the owner drivers.
STAMFORD TAXI, INC. 1393
Unlike Stamford Taxi drivers, Dial-A-Mattress owner-operators are paid a flat fee for each
completed delivery, have significant freedom with respect to the hiring, firing, supervision and
payment of their drivers and helpers, and are free to work for other companies and use their
trucks for personal business. Furthermore, under the contracts they sign, neither the Dial
owner-operators nor their employees are subject to the work rules applicable to Stamford
employees.
The Board concluded in Dial-A-Mattress that by virtue of the manner by which it structured
its relationship with the owner-operators to allow them (with very little external controls) to
make an entrepreneurial profit beyond a return on their labor and their capital investment,
among other factors, that the Dial-A-Mattress owner operation are independent contractors. As
this decision has repeatedly noted, the Stamford Taxi drivers opportunities for an entrepreneu-
rial profit are severely limited and controlled, and thus this factor, among many others dis-
cussed, clearly distinguish the Dial-A-Mattress owner-operators from the Stamford Taxi
drivers.
In Roadway Package System, 326 NLRB 842 (1998), the Board relied on a series of deci-
sive factors, derived from United Insurance Co. of Amercia, cited supra, in determining that the
drivers are employees. These factors, which I have previously itemized, include; (1) whether
the workers operate their own business, (2) whether they perform functions which are an
essential part of their Company’s operations, (3) whether they need prior experience or re
trained by the company, (4) whether they do business in the company’s name with considerable
assistance and guidance from the company, (5) whether the workers operate under an elaborate
and regular reporting procedure, (6) whether they receive benefits from the company, and (7)
whether they have a permanent working arrangement under which they can continue as long as
their performance is satisfactory. 326 NLRB 849. In applying these factors to the instant case,
based on the preceding analysis, it is clear that the drivers of Stamford Taxi should be classified
as employees.
With the possible exception of item number 6, in that while Roadway drivers received
group rates for insurance, compensation mechanisms and a “business support package,” Stam-
ford Taxi drivers receive little to no assistance from the Respondent, application of all of the
other factors points clearly in the direction of employee status for them. As noted in Standard
Oil Co., 230 NLRB 967, 968 (1977), and equally applicable to Stamford Taxi drivers:

It is clear that, unlike the genuinely independent busi-
nessman, the driver’s earnings do not depend largely on
their ability to exercise good business judgment, to follow
sound management practices, and to be able to take finan-
cial risks in order to increase their profits.

Having concluded that Respondent’s drivers are employees within the meaning of Section
2(3) of the Act, it is also apparent that the drivers, who share a community of interest, and with
regard to whom, Respondent had, prior to 1991, recognized and bargained with the Teamsters
on their behalf, Washington Post Co., 254 NLRB 168 (1981), constitute a unit appropriate for
collective-bargaining within the meaning of Section 9(b) of the Act. Thus, all of the drivers
work under common supervision, possess similar skills, perform the same function, and receive
the same benefits.
Respondent never claimed that all of its drivers did not constitute an appropriate unit until it
filed its answer in the instant proceeding. By entering the recognition agreement, Respondent
agreed to the appropriateness of such a unit. I therefore conclude that a unit of Respondent’s
employees composed of lessee and sublessee drivers is an appropriate unit for purposes of
collective bargaining within the meaning of Section 9(b) of the act.
The facts of record also warrant the conclusion, which Respondent also denies in its an-
swer, that on January 12, 1996, the Union demonstrated its majority status in the unit through a
card count conducted by an impartial third party, Provodator, which Respondent explicitly
acknowledged in the recognition agreement.
Not only did Respondent acknowledge the validity of the card count conducted on January
12, to verify the establishment of its majority status in the appropriate unit, but Respondent has
never contested its validity thereafter. In agreeing to permit majority status to be determined by
means other than a Board election, Respondent is bound by the result of that election. Snow &
Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687 (9th Cir. 1962). See also Linden Lumber
Division, Summer & Co. v. NLRB, 419 U.S. 301, 310, fn. 10 (1974). Once an employer has
made a commitment to bargain upon some demonstrable showing of majority, the Respondent
cannot unilaterally withdraw its recognition, and to do so is a violation of its bargaining duty
under the Act. Jerr-Dan Corp., 237 NLRB 302, 303 (1978); Brown & Connolly, Inc., 237
NLRB 271 (1978).
Notwithstanding the foregoing, Respondent asserts that the agreement lacks mutuality be-
cause there was “no meeting of the minds” at the time it entered the agreement, or, alterna-
tively, that the agreement should be rescinded because the Union mislead the Respondent into
believing that it concurred with Respondent’s view that the drivers were independent contrac-
tors.
As to the first defense to the enforceability of the agreement, I reject Respondent’s claim.
Respondent, in its brief, cites the appropriate legal authority but reaches the wrong conclusion
in applying the facts. As I have found in the fact section of this decision, the Union’s agent,
Kushner, on January 12, 1996, in testimony I have credited, never agreed to the drivers’ status
as independent contractors and made clear to Boskello the Union’s position as to their em-
ployee status. In signing the agreement, Boskello was fully aware of the Union’s positions with
regard to the status of the “leasee drivers.” I also found that Boskello both agreed to substitute
“leasee drivers” for “employees” and did not insist on inclusion of the word “independent”,
much less the phrase “independent contractors” in the final agreement which he executed. In
taking this position, Boskello recognized the Union’s understanding of the employee status of
the drivers, and while he differed with it, he was willing to allow the agreement to reflect the
meaning ascribed to it by the Union.
As the Board decisions make clear, only where the facts show a mutual misunderstanding or
mistake with respect to a basic term of an agreement, will the Board conclude that there was no
meeting of the minds necessary to show that the parties entered a binding contract. Butchers’ Local
120, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL–CIO, 154 NLRB 16,
26 (1965), Oil, Chemical and Atomic Workers International Union and Its Local 7–507, 212 NLRB
98, 107–108 (1974), Cherry Valley Apartments, 292 NLRB 38, 40 (1988), Transit Service Corp.,
312 NLRB 477, 482 (1993).
In reaching this conclusion, the administrative law judges in both Butcher’s Local 120 and
Oil Chemical and Atomic Workers, with Board approval, referenced and relied upon basic
principles set forth in the Restatement Contracts. Thus, Restatement Contracts, (1932) contains
the following comment (b) to Section 501 headed When Mistake Prevents The Formation of
Contracts:

b. Misunderstanding exists where the words or other acts of the parties indicate assent, but one
or both of the parties in fact intend something different from what the words or acts express. If
the misunderstanding is due to the fault of one party and the other party understanding the
transaction according to the natural meaning of the words or other acts, both parties are bound
by that meaning. If the misunderstanding is due to ambiguity for which neither party is to
blame, or for which the parties are equally to blame, and parties differ in their understanding,
their apparent agreement creates no contract under the rule stated in § 71. [Emphasis added.]

This is the comment which Respondent quotes at page 77 of its brief. As applied to the
facts of the instant proceeding, it is evident that the underlined portion most nearly fits the
negotiations which led to execution of the recognition ageement. Any misunderstanding, if one
existed, was on the part of Boskello only, and Kushner understood the phrase “leasee drivers”
in their natural meaning, as referring to the leases which the drivers were obliged to execute,
and which permitted the Union to continue to assert, correctly, that the drivers enjoyed status as
employees. Only Respondent held the mistaken belief with respect to the status held by the
drivers. Respondent has clung to this belief despite the fact that Kushner repeatedly informed
Boskello that the Union considered the drivers to be employees under the Act. In continuing to
assert that it maintained its position as to the independent contractor status of the drivers,
without insisting on so characterizing them in the agreement, Respondent’s position is disin-
genuous. Even if it truly believed the agreement characterized the drivers as non-employees, its
mistaken belief cannot result in the recission of the contract.
Another Section of the Restatement Contracts (1932), referenced by the Judge in Butchers
Union Local Union Local 120, supra, has relevance here. A comment dealing with Section 71,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394
headed Undisclosed Understanding of Offeror or Offeree, When Material, provides, in perti-
nent part, as follows:

if the manifestations of the parties have more than one rea-
sonable meaning, it must be determined which of the pos-
sible meanings is to be taken. If either party had reason to
know that the other will give the manifestations only one
of those meanings and in fact the manifestations are so
understood, the party conscious of the ambiguity is bound
in accordance with the understanding. . . .

I have found that Boskello was fully aware of the interpretation Kushner was placing on the
phrase “leasee drivers” which she had agreed to substitute for the word “employee” in the
agreement. In accordance with the principle of contract law referred to in the comment,
Boskello must be bound by his understanding of the Union’s interpretation of the language
inserted in the agreement. Board law holds that a meeting of the minds between parties is
reached not by their subjective inclinations, but rather by their intent as objectively manifested
in what they said to each other. M.K. Ferguson Co., 296 NLRB 776 at fn. 2 (1988). Under
that test, where only one party, here the Respondent, professes a mistaken belief about the
status of the drivers, but nonetheless enters the agreement in which the drivers are described as
leasee drivers, it must be held to have assumed the risk for having held that mistaken belief.
Accordingly, where, in fact, the drivers are employees, Respondent is bound by that result,
regardles of its belief.
There is also no question that the Union did not waive its position regarding the employee
status of the drivers, either on January 12, when the agreement was signed, or at any time
thereafter. The facts, as I have found them, do not support such a conclusion. Neither did
Kushner ever inform Boskello that the Union was agreeable to treating the drivers as independ-
ent contractors at the time Boskello signed the recognition agreement. In its brief at page 79,
Respondent counsel relies heavily on what he describers as a “sworn affidavit” from a cab
driver as supporting Respondent’s version of the events with the UAW organizer. Respondent
counsel’s attempted reliance on this document as supporting proof of a Union agreement to the
drivers’ status as independent contractors is improper and is strongly rejected.
During the presentation of its case in chief Respondent offered in evidence, without objec-
tion from the General Counsel (Tr. 1210), a letter, with attachments, Respondent counsel had
written to the Regional Director, providing information relative to the underlying charge,
during the investigative phase of the case. At no time did counsel, on the record, reference
attachment 1 to the letter, which the letter describes as “a sworn affidavit from a cab driver who
was present at the initial meeting between the Union and Stamford Taxi.” While the letter, as
well as the attachments, constituted documents suitable for inclusion in the record as a position
taken by Respondent during the investigation of the charge, under no account did Respondent
counsel alert opposing counsel or the trier of the facts that he intended to rely on a hearsay
document for the truth of the Respondent’s claim that the Union acquiesced in its understanding
that the recognition agreement covered independent contractors only. Respondent counsel had
been made acutely aware 21 pages earlier in the transcript, of the refusal of the undersigned to
permit a document offered for the truth of its assertions to be received in evidence without the
presence of the writer of the document, Respondent’s accountant, to be present to support its
authenticity (Tr. 1189). Under these circumstances in particular, Respondent counsel’s attempt
now to rely on hearsay declarations of an individual without calling him as a witness subject to
both examination and cross-examination to test his credibility on a central factual issue in this
proceeding will not be permitted.
I have previously credited Cerritelli’s account of the bargaining process, and I have found
both Boskello and Katz to have been unreliable witnesses to that process, in particular, discred-
iting Katz as to his assertion that the parties reached an understanding as to the drivers’ status at
the last bargaining session. Neither Cerritelli’s bargaining notes nor Katz’s recollection of their
interchanges support Respondent’s position that the Union clearly and unmistakenly relin-
quished its right to claim employee status for the drivers. Without such evidence, Respondent’s
argument of the existence of a waiver of rights must fail. NLRB v. Katz, 369 U.S. 736 (1962).
Both in Boskello’s responses to Cerritelli during their May 16 telephone conversation, and
in the 2-page notice it posted the following day, Respondent withdrew its recognition of the
Union as the exclusive collective-bargaining representative of the drivers. Respondent does not
deny its withdrawal of recogntion, but argues that since the drivers were independent contrac-
tors, and the agreement it executed was unenforceable because there was no meeting of the
minds, or because the Union agreed with its position, it had no legal obligation to accord such
recognition. Those positions have each been rejected in turn. But Respondent also argues that,
even if the drivers were employees, they lost status as such when they engaged in unprotected
conduct.
Respondent can cite no legal support for this proposition, and, indeed, there is none. Un-
protected conduct does leave employees vulnerable to discharge or discipline for engaging in
such conduct. Thus, the citations collected at page 85 of Respondent’s brief are accurate, as far
as they go. And, the record shows that the Board refused to issue complaint on the Union’s
charge that by discharging the employees who withhold daily fees in the week preceding the
strike, the Respondent had discriminatorily terminated them. But the drivers whose leases were
cancelled were only a portion of a larger unit when Respondent had agreed to recognize the
Union on behalf of “all of its drivers.” (GC Exh. 21). Thus, the Union continued to represent
all of the drivers, beyond the 42, who did not withhold fees and did not go on strike commenc-
ing May 20. Furthermore, the Union continued to represent the 10 or 11 drivers whose leases
were cancelled, but who ceased striking and whom Respondent took back on their individual
applications, after May 20. Finally, as to both the drivers who returned to its employ, and, the
11 new drivers hired since May 20, the Board has refused to adopt, with Supreme Court ap-
proval, an anti-union presumption as to replacement workers’ interest in continued union
representation. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 792–794 (1990). As
the Court noted, it was reasonable for the Board to conclude that the antiunion presumption
could allow an employer to eliminate the Union merely by hiring a sufficient number of re-
placement employees, and thereby avoid good-faith bargaining over a strike settlement, and
instead, use the strike as a means of removing the union altogether, id, at 794. Indeed, Respon-
dent has seized not only on the drivers’ withholding of fees, but also on its re-hiring of old
drivers and of new ones, without any evidence of their support for the Union, to justify its
withdrawal of recognition and refusal to bargain.
The Court also noted that the Board’s refusal to adopt an antiunion presumption is also con-
sistent with the Act’s “overriding policy” of achieving “industrial peace,” and that the Board
“further[s] this policy by promot[ing] stability in collective-bargaining relationship, without
impairing the free choice of employees,” quoting and citing Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, at 38 (1987), in support.
The Respondent also argues at page 84 of its brief that it was under no obligation to bargain
with the Union once the Union condoned and encouraged the drivers’ unlawful and unprotected
conduct. The Respondent is wrong. The Supreme Court has long recognized that while certain
conduct engaged in by employees may not be a protected concerted activity, “[B]ut surely that
a union activity is not protected against disciplinary action does not mean that it constitutes a
refusal to bargain in good faith.” NLRB v. Insurance Agents’ International Union, 361 U.S.
477, 494 (1960).
When Respondent bypassed the Union and dealt directly with its employees in the unit in
its two-page notice, posted and distributed to the drivers on May 17, it violated its bargaining
obligations under the Act. By offering its drivers the choice whether to continue under the
former daily payment system, or accept a new, flat weekly payment system it described,
Respondent bypassed and undermined the Union’s negotiation efforts regarding the single most
critical issue presented during negotiations. Central Cartage, Inc., 236 NLRB 1232, 1258
(1978); Greenery Extended Care Center in Cheshire, 322 NLRB 932, 937 (1997).
When, later, in February, 1998, approximately 14 months after it had refused to honor the
Union’s unconditional offer to return to work, Respondent directly addressed by individual
letter the drivers who remained on strike, and solicited them to enter into new leases provided
they met some conditions such as repayment of all outstanding fees, Respondent again by-
passed the Union and dealt directly with its past drivers in violation of its bargaining obligation.
Contrary to Respondent’s argument made at page 83 of its brief, the fact that these drivers were
no longer employees, did not mean that they lost the protection of the Act. They were clearly
being invited to apply for reinstatement as former lease drivers, and, as such, enjoyed the right
to be considered for these positions, free of discriminatory considerations, and to be addressed
through their bargaining representative.
STAMFORD TAXI, INC. 1395
By failing to recognize the Union as their exclusive bargaining representative, and by fail-
ing to offer to restore the terms and conditions of employment in existence prior to May 20,
when it withdraw recognition and unilaterally offered and imposed new terms, Respondent
compounded its violations committed under Section 8(a)(1) and (5) of the Act.
Since May 20 the Respondent violated its bargaining obligation under the Act, by unilater-
ally altering the terms and conditions of employment of the unit drivers. Peerless Food Prod-
ucts, 236 NLRB 161 (1978). After withdrawing recognition, and commencing on May 20,
Respondent unilaterally offered new weekly lease terms to those drivers who remained, as well
as those drivers who abandoned the strike and returned to its employ. The major change
offered and accepted by these drivers concerned the method of their compensation and thus
went to the heart of their relationship and of the negotiations between the Respondent and the
Union, and thereby clearly met the Board test that a unilaterally imposed change be “a material,
substantial and significant one.” Id.
Further, on February 13, 1997, when Respondent posted another notice in its facility ad-
dressed to its drivers informing them that they could choose their own hours, use their vehicles
for personal business during off hours, and reject a dispatch call, Respondent violated the Act
again, by imposing, unilaterally, substantial new terms and conditions of employment. Con-
trary to Respondent’s contention, these terms had not been in effect prior to its withdrawal of
recognition, and thus constituted significant new terms which, it is clear, Respondent would be
prepared to argue, established its driver as independent contractors. On neither of these occa-
sions, subsequent to May 20, did Respondent provide prior notice to the Union to bargain prior
to their implementation.
The February 13, 1997 letter constitutes another in a series of unilateral actions, in this case,
changing the terms and conditions of employment of its drivers, which is closely related to its
May 17, 1996 notice unilaterally offering new weekly pay leases to qualified drivers, and both
of which grow out of Respondent’s withdrawal of recognition and refusal to bargain with the
Union. Accordingly, I conclude, contrary to Respondent’s argument made at pages 95 to 98 of
its brief that the test enunciated by the Board in Redd-I, Inc., 290 NLRB 1115 (1988), for
determining when an otherwise late filed charge will nonetheless be deemed timely under
Section 10(b) of the Act, has been met. The same may also be said for the allegation added to
the Complaint charging Respondent with bypassing the Union and dealing directly with its
employees on February 13, 1998.
Respondent’s defense that an impasse in bargaining existed at the time of implementation
on and after May 20, also lacks merit, by virtue of the facts previously discussed, showing a
Union late counter offer never considered by Respondent, the Union’s willingness to reconsider
its opposition to the Respondent’s last best offer based upon an anticipated Union audit of its
financial records, and the remaining issues such as dues checkoff at the time of the last bargain-
ing meeting, on which the Union had not yet taken a final position and bargaining was still
open and unresolved.
I consider now the allegation charging Respondent with discriminatorily failing and refus-
ing to consider reinstatment of the drivers on whose behalf the Union made an unconditional
offer to return to work.
The facts show that, aside from the 10 to 11 drivers who abandoned the strike and to whom
Respondent offered new leases, none of the strikers who stayed the course have been consid-
ered for reinstatement. Respondent’s attitude toward the Union and its adherents has been
uniformly hostile. As early as May 10 Tibbetts and Boskello threatened to cancel the insurance
on any vehicle and thereby consider as breached the leases of any drivers who continued to
support the Union’s offer with regard to the weekly fees. On November 27, in response to the
Union’s unconditonal offer to return to work, Respondent’s attorney Sapinski vigorously
disputed the Union’s status as representative of any of the drivers so long as the Union claimed
they were employees and denied that the drivers whose leases had been cancelled had any
further rights with the Company. Such a position conflicts strongly with any claim by Respon-
dent that it was prepared to consider these drivers for reinstatement. As noted earlier, while
employees may be discharged for unprotected conduct, the Union continues to retain the right
to represent them in collective bargaining, and the discharged employees continue to retain all
rights under the Act to be free from any subsequent discriminatory treatment, e.g. as in this
case, as applicants for reinstatement to their prior postions of employment. The Respondent’s
November 27 letter, coupled with its reemployment of strikers who abandoned the Union,
evidenced disparate treatment sufficient to warrant a conclusion that by rejecting their offer,
Respondent was motivated by their Section 7 conduct.
Respondent cannot rely on these Union affiliated drivers’ failure to appear on December 5
in conformity with the Union’s offer, since by rejecting them outright, and denying them any
rights with the Company, Respondent presented the Union and its members with a fait accom-
pli that they would not be rehired.
Since Respondent has hired at least seven new drivers between December 1996 and June
1997, it is established that positons for drivers have become available since the Union’s uncon-
ditional offer was made, and it is clear that, in accordance with its November 27 response to
that offer, no Union affiliated driver who remained on strike has been considered for these
positions. One witness, Eugene Poteau, showed that, although he was in contact with Boskello,
he was never asked to repay the small fees he withheld or to come in to apply for work.
Even Respondent’s belated, February 12, 1998 letter to the strikers, cannot be considered a
legitimate consideration of the terminated drivers for reinstatement, since it bypassed the Union
and failed to recognize the Union as their representative, and further gave no assurance the
strikers would be considered as employees and that it would negotiate with the Union on their
behalf and remedy its other unfair labor practices. Even so, the letter does provide evidence
that the fees the strikers had withheld would not be an impediment to their reinstatement, and
thus their unprotected conduct would be forgiven and condoned. On the foregoing evidence I
conclude that under Wright Line4 the General Counsel has shown that in denying the strikers
consideration for reinstatement, Respondent was motivated by their Union activity, and,
further, that Respondent has not shown that it would have denied such consideration absent the
employees’ protected activities.
As to the three named drivers, the evidence establishes that Respondent was aware of the
Union affiliation and activity of each of them, in particular, their participation in the strike, and,
as to two, Lucien and Solinaire, that they were leading Union advocates, through Lucien’s
service as Union steward and both of their service on the drivers’ four man negotiating commit-
tee. The Respondent’s hostility and animus to their union activity is evidenced by the May 10
threat to cancel insurance coverage of any driver supporting the Union’s demands at the bar-
gaining tallee. Both Lucien and Solinaire were at the bargaining table supporting the Union’s
demands. Further evidence of union animus appears from Respondent’s precipitate withdrawal
of recognition, and its immediate commission of the unfair labor practices of bypassing the
Union and making unilateral changes in its fee schedules upon learning of the Union’s strike
vote.
Unlike the other strikers, the three named drivers each appeared at Respondent’s facility
and offered to return under the new lease terms and to pay the fee amounts previously withheld.
Nonetheless, they were each denied any consideration whatsoever for reinstatement.
I conclude that the three drivers have made a prima facie showing that their union activity
motivated Respondent’s rejection of their applications for reinstatement. Respondent offered
varying defenses to their reinstatement. As to Lucien, Boskello and Necatera recited his
participation in an insurance scam as foreclosing any return to his position. But it is clear that
Lucien’s involvement in padding an accident estimate was condoned at the time when Boskello
testified that “everybody deserves a second chance.” Although the inflated claim was discov-
ered on February 26, 1996, Lucien was not disciplined before the strike on May 20 and
Boskello told Necatera to “let it go for now.”
Having retained Lucien without any change in their relationship notwithstanding the
grounds for discharge, Respondent has condoned his conduct and may not rely on it as a basis
for its refusal to reinstate him. Harry Hoffman & Son Printing, 278 NLRB 671 (1986). Having
no other legitimate justification for refusing his return to work, I also conclude that Respondent
has failed to meet its Wright Line burden of showing it would have acted the same absent his
protected concerted activity.
As to Augustine Solinaire, Respondent noted that he had hidden his vehicle and that it has
been unable to reclaim it since the strike. Since Respondent was prepared to accept Union
drivers who made it whole by repaying any fees withheld and Solinaire had admittedly offered

4 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396
to do so, it is unclear that Solinaire’s retention of his vehicle after Respondent rejected his offer
to return can be used now as a ground to keep him off of Respondent’s driver roster. There is
also no evidence that Boskello or Necatera informed Solinaire that he was denied reinstatement
for retaining his vehicle in his possession, particularly when other drivers engaged in the same
conduct without any repercussions. I conclude that Respondent has failed to show Solinaire
would have been denied reinstatement absent his union activity.
With respect to Andre Chery, Respondent pointed to a gambling problem. However,
Boskello conceded he had only hearsay knowledge of the gambling habit, did not discipline
him once it was discovered, did not discipline other drivers who also gambled with him and did
not use their gambling as a ground to deny them reinstatement. In the case of Chery, I also
conclude that Respondent has failed to show it would have refused to reinstate him about his
union activity.
By offering all three of these drivers consideration for reinstatement by its letter of Febru-
ary 1998, Respondent expressly withdrew whatever reservations it may have had about their
prior behavior.
CONCLUSIONS OF LAW
1. The Respondent, Stamford Taxi, Inc., and Tibbets Enterprises, Inc. are employers en-
gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.5
2. The Union, International Union, United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, Local 376, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent Stamford Taxi, Inc., and Tibbetts Enterprises, Inc., constitute a single inte-
grated business enterprise, and have been at all times material herein a single employer within
the meaning of the Act.
4. The following employees of Respondent constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act:

All drivers, lessees and sub-lessees, employed by Respondent; excluding all other employees,
guards, and professional employees and supervisors as defined in the Act.

5. At all times material, since January 12, 1996, based on Section 9(a) of the Act, the Un-
ion has been and is now the exclusive collective-bargaining representative of the employees in
the unit described in paragraph 4 above.
6. By withdrawing recognition from the Union as the collective-bargaining representative
of the above-described unit; failing and refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit; bypassing the Union and dealing
directly with the employees in the unit by soliciting employees to enter into new lease pay-
ments agreements; unilaterally changing the terms and conditions of employment of its drivers,
including the amount and payment terms of its lease rates, without prior notice to the Union and
without affording the Union an opportunity to bargain with it with respect to this conduct,
Respondent has been failing and refusing to bargain collectively and in good faith with the
exclusive bargaining representative of its employees, and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the Act.
7. By failing to consider for reinstatement to their former positions of employment, the
driver employees who remained affiliated with the Union, upon the Union’s unconditional offer
made to Respondent on their behalf on or about November 27, 1996, and by failing and refus-
ing to reinstate drivers Max Lucien, Andre Chery and Augustine Solinaire upon their individual
applications for reinstatement, Respondent has been discriminating in regard to the hire and
tenure and terms and conditions of employment of its employees, and has thereby engaged in
unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act.

5 Having found that the drivers are employees within the meaning of
the Act, I also conclude that the combined fares that they received
during the year running from June 1, 1996 through May 31, 1997 may
be deemed gross receipts to Stamford Taxi for providing taxicab ser-
vice, thereby alternatively satisfying the Board’s discretionary
$500,000 retail standard for asserting jurisdiction. See Major Cab Co.,
255 NLRB 1383, 1384 (1981).
8. The unfair labor practices of Respondent described above affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated Section 8(a)(1), (3), and (5) of the Act, I
shall recommend that it be ordered to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. The recommended Order will provide that
Respondent Stamford Taxi, Inc. and Tibbetts Enterprises, Inc., as a single employer be required
to bargain collectively in good faith with the Union as the exclusive collective-bargaining
representative of its unit employees. Inasmuch as counsel for the General Counsel has been
unable to cite any cases in which the Board extended the certification year, where the recogni-
tion was voluntary and not based on a Board certififcation, I will not require, as he has re-
quested, bargaining to extend beyond the usual reasonable period. See, e.g. Mar-Jac Poultry
Co., 136 NLRB 787 (1962); Colfor, Inc., 282 NLRB 1173, 1174 (1987), enfd. 838 F.2d 164
(6th Cir. 1988); Jasco Industries, 328 NLRB 201 (1999), which cases all involve a certification,
not present in the instant proceeding.
The Order will also require Respondent, including Tibbetts, to offer immediate and full re-
instatement to the drivers it discriminatorily refused to consider for reinstatement, as well the
three named drivers, Max Lucien, Andre Chevy and Augustine Solinaire, who it refused to
reinstate upon their individual applications, to their former jobs, or in the event their former
jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or
other rights and privileges, discharging, if necessary, any drivers hired since the date of the
Union’s November 27, 1996 unconditional offer, and the dates of the individual applications of
drivers Lucien, Chery and Solinaire. The identity of each of the drivers upon whose behalf the
Union made its unconditional offer shall be fixed during the compliance stage of this proceed-
ing. Any drivers who, under this remedy, may not be entitled to immediate reinstatement, shall
be placed on a hiring list based upon seniority, and shall be recalled before any new drivers are
hired.
Respondent shall also be required to make whole the drivers described and named for any
loss of earnings they may have suffered by reason of Respondent’s unlawful conduct, by
making payment to them of a sum of money equal to that which they normally would have
earned from the date of Respondent’s unlawful action to the date of its offer of reinstatement,
less net earnings during such period, with backpay to be computed as provided in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and interest as provided in New Horizons for the Retarded,
283 NLRB 1173 (1987). Respondent should also be required to remove from its files any
reference to the termination and refusal to reinstate, of any of the drivers discriminated against,
and notify them of this fact, in writing.
I will also recommend, that if the Union so desires, Respondent shall revoke and cease giv-
ing effect to the changes in the unit employees’ terms and conditions of employment which
were implemented on or after May 20, 1996; and in the event of such revocation, make em-
ployees whole, with interest, for any losses they may have suffered as a result of such changes.
NLRB v. Keystone Steel & Wire, 653 F.2d 304, 308 (7th Cir. 1981); Children’s Hospital of San
Francisco, 312 NLRB 920, 931 (1993), affd. 87 F.3d 304, 311 (9th Cir. 1996).
The Union in its brief argues that I may appropriately order reinstated all of the drivers
whose leases were terminated, as a remedy for the Section 8(a)(1) and (5) violation of the Act
committed by Respondent. By forcing the drivers to bargain on an individual basis at the cost
of their representation by the Union, the drivers were placed in an untenable situation which,
Union counsel argues, may only be rectified by restoring the status quo ante, by putting the
drivers all back at work before the bargaining obligation can become effective. The Union
would apparently require an order of reinstatement effective from on or about May 17, 1996,
when the Respondent withdrew recognition and first offered new lease terms, individually, to
its drivers. I cannot grant this requested remedy.
First, in my judgment, it smacks much more of a claim of a substantive violation then a
remedy. If Respondent had a bargaining obligation dating from May 17 or 20, 1996 that
included bargaining about the decision to discharge the drivers and related matters, the Com-
plaint would have included such an allegation, and it does not. The reason it does not is, as the
Union recognizes, Respondent was free to discharge the drivers who withheld fees, and thereby
engaged in an unprotected partial strike. Second, to require bargaining about whether the
STAMFORD TAXI, INC. 1397
drivers who withheld fees would be terminated and whether they should have been required to
reimburse Respondent, would be inconsistent with the right Respondent enjoyed, to then
discipline the drivers because they engaged in unprotected conduct. While I have previously
recognized the status of the terminated drivers as employees under the Act and the status of the
Union as their bargaining representative with respect, in particular, to their applications for
reinstatement, these drivers ceased being employees of Respondent upon the cancellation of
their leases, even though Respondent was prepared, thereafter, to reinstate certain terminated
drivers, excluding the ones who remained Union affiliated. The discriminatory and disparate
treatment of these drivers only arose once the Union offered their unconditional return on
November 27, 1996, and the three named drivers applied individually for reinstatement.
Counsel for The General Counsel also seeks changes to the standard provision that requires
a Respondent to preserve and make available, for the purpose of computing the amount of back
pay due, payroll and other records. The changes would require a Respondent to provide greater
assistance in making its payroll records available to the Region for backpay calculations, and
also would require the Respondent to make available to the Region electronic copies of its
payroll records where the records are already maintained in such form. Most recently, the
Board, in Bryant & Stratton Business Institute, 327 NLRB 1135 fn. 3 (1999), reversed the
administrative law judge’s denial of such relief, and modified the recommended Order to
provide for the production of electronic copies of the specified backpay records if they are
stored in electronic form. The Board concluded that such records are encompassed within the
Board’s traditional remedial language and the Respondent therein had not established that it
would be prejudiced by requiring their production. I will, accordingly, provide this remedy.
Although the Board in Bryant & Stratton declined to order the Respondent to submit copies of
the necessary backpay records at the Board’s Regional Office because the litigation did not
satisfactorily present the question of the propriety of requiring such an order, I am persuaded
that the record adequately supports such relief. Although the payroll records of Respondent are
stored in either Stamford or Greenwich, Connecticut, Respondent brought the records it did
produce into the Hartford, Connecticut Region 3 hearing room without undue hardship. I also
agree with counsel for the General Counsel that the time and expense incurred by Respondent
in providing this assistance would be minimal, and the cumulative saving of time and expense
by the Regional Office would be considerable. It is also appropriate that the wrongdoer assume
a greater burden of gathering and providing payroll records necessary to calculate the amount
of backpay owed.
Finally, I will recommend that the Order require Respondent to mail copies of the Notice it
will be required to post, to the last known address of all drivers then employed by it during the
week of May 13, 1996, immediately preceeding the strike which began on May 20, upon whose
behalf the Union unconditionally requested on November 27, 1996, but who have not to the
date of this Order been offered reinstatement. By this means, all drivers who are subject to the
backpay provisions of the remedy and who have been exposed to the unfair labor practices and
their effects, but who have not been reinstated, will receive actual notice of the violations found
and of Respondent’s obligations to comply. Cf. Indian Hills Care Center, 321 NLRB 144
(1996), and Excel Container, Inc., 325 NLRB 17 (1997). I will also recommend that the notice
be printed in the Haitain language as well as in English.
[Recommended Order omitted from publication.]