Supreme, Victory and Deluxe Cab Companies

National Labor Relations Board - Board Decisions

Jul 11, 1966

160 N.L.R.B. 140 (N.L.R.B. 1966)

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 6 and 13, 1965, alleged assistance to and interference in the formation of the
shop committee, as violative of Section 8(a)(2), no such allegation appears in
the complaint.
General Counsel cites the S.N.C. case, supra, and Northwest Engineering Com-
pany, 148 NLRB 1136, in support of his contention that Respondent's conduct
constituted interference, restraint, and coercion. I find these cases inapposite.16
I find the statement complained of did not contain a misrepresentation of fact,
threat, or promise of benefit, but was a statement of opinion, and as such, was
protected by the provisions of Section 8(c) of the Act. Accordingly, I will recom-
mend dismissal of the allegations of paragraph 5(d) of the complaint.
Upon the foregoing findings of fact, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 565, Sheet Metal Workers International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, I recom-
mend the complaint be dismissed in its entirety.
"In S.N C. the Board found Respondent urged the formation of a shop committee, as
an alternative to a union, and other conduct, to constitute violations of Section 8 (a) (2)
and (1) of the Act. In Northwest Engineering the Board found respondent had meetings
with an ad hoc, self-appointed Insurance committee, resulting in a new insurance program
The violation of Section 8(a) (1) was based on a withholding of announcement of the new
plan for over a month, until a time when it would have the greatest impact on the election
The Board also found Respondent selected ad hoc groups of employee representalnes to
treat with alleged grievances, resulting in changed working conditions, as part of a unified
plan of granting or holding out the promise of benefits, in order to influence the emploNces
in the exercise of their rights guaranteed in Section 7 of the Act
Supreme, Victory and Deluxe Cab Companies and Local 5, Trans-
portation Services and Allied Workers of Seafarers Interna-
tional Union , AFL-CIO affiliated with Seafarers International
Union of North America, Atlantic Gulf , Lakes and Inland
Waters District , AFL-CIO, Petitioner . Case 14-RC-51309.
July 11, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Harold D. Kessler. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Thereafter, the Petitioner filed a brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
160 NLRB No. 12.
SUPREME, VICTORY AND DELUXE CAB COMPANIES 141
Upon the entire record in this case the Board finds :
1. Supreme, Victory and Deluxe Cab Companies, hereinafter some-
times referred to as the Companies, are separate corporations which
are engaged in the taxicab business in St. Louis, Missouri. All three
corporations have the same corporate officers and owners and their
five supervisors hold this position with all three companies. During
the period from-1960 to 1965 the drivers of-all three companies were
represented in a single unit for the purposes of collective bargaining
by Local 688, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.' The parties stipulated,
based on this past bargaining history and the operations of all three
companies, that they were a combined business entity insofar as col-
lective bargaining is concerned. In view of all the foregoing we find
.that the- Companies are a, single employer within the meaning of
Section .2(2) of -the Act.2 -
,The Companies contend that the .petition, which seeks-an election
in a unit of taxicab drivers, should be dismissed' for. the reason that
-no employment relationship exists between them, and the drivers. The
Companies assert that, as they do not own any taxicabs, they are
rather a service, organization' which assists those who own or operate
taxicabs. The Companies further contend that in any - event their
only income is from franchise fees, which. are paid by the cab owners,
and from the sale of gasoline to taxicab drivers, and that the total
of these dollar figures is insufficient to satisfy the Board's jurisdic-
tional standard. applicable to .taxicab' companies.' We reject these
contentions.
The combined fleet of all the Companies consists of 98 taxicabs. It
is true, as the Companies contend, that 'no . taxi is owned by them.
The taxis, -instead, are privately owned by single cab. owners who
-drive their own- cabs,, multiple cab 'owners who, drive one of their
own cabs, and multiple cab owners who do not' drive any cab. All
owners pay to the Companies a monthly fee which covers the cost of
liability insurance, dispatching service,, and use of the franchise. Cabs
not driven by an owner are driven,by rent-drivers who pay the owner
a daily rental fee which includes the same services which are- covered
by the owner's- fee to the -Companies. -
The Companies determine' who may be a cab owner regardless of
,whether he. be .a driver or nondriver. • Thus, each- prospective owner
must be approved, by, one of the.Companies before he can buy a cab
1 Although served with a copy of the notice of hearing Iii the present case , Local 6188
did not intervene or enter an appearance.
2 Local 28, International Stereotypers' and Electrotypers' Union o f North America, AFL-
CIO (Capital Electrotype Company , Inc.), 137 NLRB 1467, 1470; Gibbs - Oil Company, 120
NLRB 1783.
3 Carolina Supplies and Cement Co., 122 NLRB 88, 89 , footnote 5.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be used under its franchise, and no cab or its space with one of the
Companies can be sold unless that Company first approves the pur-
chaser and the sale. All taxis operated under franchise with the
Companies must be painted a distinctive color with the name
Supreme, Victory or Deluxe lettered on it. The Companies require
that these taxicabs be equipped with two-way radios, and the Com-
panies' dispatchers direct the drivers by means of this radio system.
The Companies also control the hiring and discharge of the rent-
drivers. Thus, regardless of whether an owner has found a driver for
his cab or whether the Companies have found a driver for him, no
driver may be hired until he has been cleared by a supervisor of the
Companies. The clearance procedure consists of checking to insure that
each driver applicant has a proper license, does not have a serious
criminal record, and knows the Companies' rules. After the driver
is taken on, only the Companies may discharge him. In the past
the Companies have discharged drivers for the unauthorized posting
of a notice on a bulletin board used by one of the Companies or for
being in an accident. Although an owner could refuse further use of
his taxicab to a driver who has damaged it, the owner could not
discharge that driver or deny him use of any other taxicab operated
by the Companies.
The Companies' rules apply to all the drivers, and the Companies
may discipline a driver for violation of them. These rules are
detailed and cover all basic phases of the daily operating procedure.
They deal with neatness, taking of orders, drinking on the job, and
the duties of a taxicab driver. Also, drivers must wear a certain type
of hat while they are working. They must report in to the office
every day or call in to advise that their cab is out of service. To be
permitted to drive on any given day, each driver must sign a work-
sheet and obtain a work permit, signed by one of the Companies'
supervisors, which is good for that day only. All drivers are obliged
to purchase the gasoline they use in operating their taxis from one
of the Companies (Supreme). If a driver is involved in an accident,
he must report it promptly to the Companies. Thereafter, a super-
visor will come to the scene of the accident and handle any problems
which develop. Other rules of the Companies prohibit working for
longer than 14 hours per day and picking up passengers outside of
city limits. Periodically, all drivers will be called away from their
driving duties to attend a drivers' meeting 4 at which the Companies'
rules will be reviewed by a supervisor.'
A The radio dispatching system does not operate while these meetings are in progress.
5 Occasionally , when the weather is bad, the Companies will likewise order all taxicabs
off the streets.
SUPREME, VICTORY AND DELUXE CAB COMPANIES 143
A copy of the former agreement between the Companies and Local
688, affiliated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, the term of which ran
from 1960 to 1965, was placed in evidence at the hearings This agree-
ment covered such matters as recognition, union security, a grievance
procedure, bonds for nonowner drivers, franchise fees, and the Com-
panies' rules.' Included within the unit description of employees who
were represented under this contract were those who owned, leased,
rented, or borrowed equipment which they personally drove in the
performance of their duties.
In view of all the foregoing, including the bargaining history, we
reject the Companies' contention that they are merely an organization
which services the owners and drivers of taxicabs. It is manifest,
rather, that the Companies are themselves engaged in the business of
operating these taxicabs s and that the drivers operate them on the
Companies' behalf.9 There remains only the question of whether an
employment relationship exists between the Companies and the
drivers or whether the drivers are independent contractors of the
Companies.
In determining whether an employment relationship exists in these
circumstances, the Act requires the application of the "right of con-
trol" test.10 Where the person 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, when control is reserved only as to the result
sought, the relationship is not one of employment and the individual
performing the services is an independent contractor. In the present
case, it is clear from the same evidence, previously recited, that the
Companies, in addition to operating a taxicab business, also control
the manner and means whereby the taxicabs are to be driven. We
further find, therefore, that the relationship which exists between
9 The agreement was signed by a representative for each of the Companies and by repre-
sentatives of Local 688 . The cab owners were not parties to the agreement.
'The copy of the rules attached to this agreement covered the location of fare zones
and fare rates in addition to some of the other rules previously discussed herein.
8 The entrepreneurial interest of the owners is limited almost entirely to their owner-
ship of the taxis and the rents they collect.
G Further support for this conclusion lies in the fact that the Companies provide the
work permit to every driver on each day that he drives This work permit system is a
responsibility, undertaken pursuant to a city ordinance ( city of St . Louis, Missouri. ordi-
nance 51131 ), a copy of which was put into the record This ordinance prescribes that such
permits be issued by the "holder of a certificate of convenience and' necessity for the
operation of taxicabs and service cars." (Emphasis supplied ] Since it is the Com-
panies, and not the owners , which issue the permits here, it is apparent that the Companies
have the certificate to "operate " the cabs and not the owners. ,
'° Albert Lea Cooperative Creamery -Association , 119 NLRB 817 , 822; Deaton Truck
Lines, Inc ., 143 NLRB 1372, 1377.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Companies and the rent-drivers and driver-owners is one of
employment." Accordingly, consideration of the gross receipts of all
drivers is appropriate in determining whether the Companies' volume
of business satisfies our jurisdictional standard.12
As noted previously, the discretionary Board standard applicable
to the taxicab business is the same as the retail standard set forth in
Carolina Supplies and Cement Co., supra. Satisfaction of this stand-
ard requires a showing that: (a) an employer has an annual gross
volume of business of at least $500,000 and (b) the Board has statu-
tory jurisdiction. There is no issue as to statutory jurisdiction, for it
was stipulated at the hearing that, during the year 1965, the Com-
panies, in the name of the Supreme Company, purchased $75,330
worth of gasoline from Roco Petroleum Company, and that the latter
Company receives gasoline from across State lines which is mingled
with the gasoline sold to Supreme. However, as to satisfaction of the
Board's standard, there is a question whether the evidence presented
at the hearing is sufficient to support a finding that the gross annual
volume of all the Companies' drivers exceeds $500,000. We conclude
that it is.
The Companies stated they have no records of their drivers' earn-
ings. Therefore, some 164 subpenas were issued by the Regional
Office for those drivers to appear at the hearing.13 Only 96 individ-
uals appeared to testify, however, and the majority of them likewise
claimed to have no records of their earnings. Some stated that they
could only estimate their driving time and receipts. Others declined
even to offer an estimate. For those who gave estimates, approxima-
tions of their driving time ranged from less than a day per week to
6 or 7 days a week. Their estimates of regular daily gross earnings
ranged from amounts which would have been less than daily expend-
itures to amounts of $20 or $25 a day.
As to the 67 or 70 drivers who did not appear to testify, Petitioner
concedes in its brief that full enforcement of the subpenas would "do
little to further clarify" testimony already received. In these circum-
stances, we see no useful purpose to be served by directing the Region
to seek enforcement of these subpenas at this time, but will, instead,
decide this case on the existing record.
Taking this record as it stands, we reject the testimony of those wit-
nesses who averred that they consistently lost money or made only a
u Mound City Yellow Cab Company, 132 NLRB 484 , 486 ; Deaton Truck Lines, Inc., supra.
13 Checker Cab Company and its Members , 141 NLRB 583 , 584, 587.
13 Sixteen additional subpenas were issued, but these were duplicates.
SUPREME, VICTORY AND DELUXE CAB COMPANIES 145
couple of dollars per day over expenses. We find it incredible 14 that
these individuals could or would continue for long periods in an
employment-taxi driving-which is only a source-of consistent losses
or earnings too small to enable survival. An examination of the
remaining testimony, with projections based thereon, indicates that
the total receipts of all full-time and part-time drivers 15 does in fact
exceed $500,000 per year.
The Companies' taxicabs operate 7 days per week on two shifts.
And it was stipulated at the hearing that 115 to 135 drivers work
each day. Some 48 drivers testified that they • work full-time which
would normally be from 5 to 7 days per week, or an average of 6
days. The credible testimony in respect to their.earnings was that
they normally gross about $22 'to $23 16 per day- and that their annual
gross incomes ranged from $5,000, to-
,
per year.17 Taking an
average then of $5,500, the gross, combined receipts of these -full-time
drivers would total $264,000 annually.
Assuming that all the full-time drivers testified at the hearing,13
this would mean that a minimum of 67 part-time drivers also work
each day out of the estimated daily complement of 115-135. A rea-.
sonable sampling of the creditable testimony. of the part-time drivers
indicates that they take in some $13 per day.19 Multiplying this figure
by, 6 days per week and 52 weeks per year,20 the total combined gross
receipts of the part-time, drivers may be estimated as not less than
$271,752. c
11 See Best Art Products, Inc., 111 NLRB 181, 82; Associated Food Distributors , Inc, 109
NLRB 574, 575; William L. Davis d /b/a V & D Machine Embroidery Co., 107 NLRP. 1567,
1569, footnote 4. The following are examples of testimony which we deem incredible :
Witness Hutchinson, who stated that he drove a taxi all year during 1965 , asserted that
he drives a 12-hour shift for 5 days a week and , although he has no other income , he stands
losses on "many days or most days" of a dollar or. two ; driver Clark testified that while
he drives 8 to 10 hours per day and has no other employment, lie has never earned enough
to cover his rental fee and gasoline expense ; and driver Morris , who stated that he drove
11 hours per day, 7 days per week and has no other source of income, testified that he
loses $100 per month in his work.
15 Sometimes referred to in the record respectively as "all day" and "half day " drivers.
1e Inasmuch as an all day rental fee is $10 and gasoline purchases range from $3 to $4
each day, this would afford net earnings of from $8 to $10 per day for the all day rent-
driver.
17 The annual figure would allow for time off due to sickness , vacations , and time lost
when the driver' s regular taxicab was under repair and another was not available for
rental
16 Exact figures on the breakdown of the driver complement into full - time and part-time
drivers were not presented.
is For the part-time rental drivers these receipts would be required to cover a $6 per day
rental fee and, we estimate, gasoline purchases of from $2 to $ 3 each day . The net earn-
ings would then be about $4 to $5 per day
z° All 52 weeks of the year are considered here in view of the stipulation that there are
at least 115 drivers working on any given day
257-551-67-vol 160-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adding the receipts of the full-time and the part-time drivers
together the overall total is at least $535,752 per year, or substantially
more than the required $500,000.
The soundness of the foregoing projection and computation is fur-
ther supported by an examination of these figures presented at the
hearing respecting the costs of operating the 98 taxicabs. Thus, a
franchise fee of $110 per month is paid by the owners to the Com-
panies to cover each taxicab ($129,360 annually). Drivers also pur-
chased petroleum products from the Companies, in the name of
Supreme, which amounted to $92,708. The total of these two cost
figures amounted to over $222,000 last year. Subtraction of the latter
figure from the estimated gross, supra, would leave a net figure of
$313,752, or about $3,200 for each taxicab. Out of this $3,200 figure
the owners necessarily must obtain sufficient money to cover the cost
of depreciation,21 repairs, new tires, and batteries. And out of this
same figure at least 48 full-time drivers and some 67 part-time drivers
must derive earnings for their work.
However, we need not, and we do not, rest our assertion of jurisdic-
tion herein solely on the basis of the foregoing computations. For the
Board has held that where statutory jurisdiction exists it will assert
jurisdiction in any case in which an employer has refused, upon rea-
sonable request by Board agents, to provide the Board or its agents
with information relevant to the Board's jurisdictional standard.22
Here the Companies have not refused to give information in the sense
that they have declined to produce that which they are capable of
producing. Nevertheless the net effect of the absence of records and
failure to respond to subpenas outlined above upon the ability of the
Board to discharge its statutory functions, is little different from
that which would exist if there were here a refusal of the type
involved in the Tropicana case. In such circumstances and for the
reasons relied on in Tropicana, we conclude that it will effectuate the
policies of the Act to assert jurisdiction whereas here legal jurisdic-
tion is established and the Companies are unable to furnish proba-
tive information from which it can be determined whether the
Employer's operations do or do not meet the Board's discretionary
jurisdictional standards.
In view of all the foregoing, we shall assert jurisdiction herein.23
2. The labor organization involved herein claims to represent cer-
tain employees of the Companies.
2i One owner testified that the purchase price of a new taxicab was $2,250.
22 Tropicana Products , Inc., 122 NLRB 121, 123
23 Carolina Supplies and Cement Co., 122 NLRB 88 ; Southern Cab Corporation, Yellow
Cab of Memphis Division, 159 NLRB 248, Veterans Cab Co. of Memphis Inc, 159 NLRB
251 ; Tropicana Products, Inc , supra.
SUPREME, VICTORY AND DELUXE CAB COMPANIES 147
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Companies within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. Petitioner seeks to represent the rent-drivers and driver-owners
of all three Companies in a single unit. The Companies took the posi-
tion, previously considered and rejected in this Decision, that no such
unit could be appropriate, because neither the rent-drivers nor the
driver-owners are its employees. In the event the Board decided to
direct an election, however, both parties agreed to exclude from the
unit gas station attendants and dispatchers, who are represented by
other labor organizations, and certain other individuals who, it was
stipulated, are supervisors within the meaning of the Act.24
Although an employment relationship exists between the Com-
panies and the driver-owners and rent-drivers, it does not appear that
all of the driver-owners are "employees," within the meaning of the
Act. Thus, the record indicates that each driver-owner, who owns
more than one taxicab, has the power substantially to effect the hiring
and assignment of drivers for the taxis which he owns in addition
to the one which he drives himself. As noted previously, each
multiple-owner-driver may select a rent-driver for his extra taxis and
the driver selected will normally be hired by the Companies subject
only to their check of his driver's license, criminal record, and knowl-
edge of the Companies' rules. Each multiple-owner-driver may also re-
fuse to accept the further services of a rent-driver who has damaged
ene of the taxis owned by the multiple-owner-driver. We find, accord-
ingly, that the multiple owner-drivers are supervisors within the
meaning of the Act and we exclude them.25
In view of the foregoing and in the light of the bargaining history
we find that the following employees of the Companies constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act: 26 All single taxicab owner-
drivers and rent-drivers who drive under the franchises of Supreme,
Victory and Deluxe Cab Companies at these Companies' St. Louis,
Missouri, place of business, excluding the gas station attendants, dis-
patchers, guards, the multiple-owner-drivers, and all other super-
visors as defined in the Act.
[Text of Direction of Election omitted from pub] ication.] 27
2+ Louis Gibson, Clarence Miller, Sam Guccione, Eugene Edwards, and Julius McNeil
2u Dcaton Truck Lines , Inc, supra, 1378
2a Mound City Yellow Cab Company, supra, 486
27 An election eligibility list, containing the names and addresses of all ` the eligible voters,
must be filed by the Employer with the Regional Director for Region 14 within 7 days
after the date of this Decision and Direction of Election The Regional Director shall make
the list available to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances. Failure to comply
with this requirement shall be grounds for setting aside the election whenever proper ob-
jections are filed Excelsior Underwear Inc., 156 NLRB 1236