Teamsters Local No. 688

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1518 (N.L.R.B. 1986)

1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local No. 688 , affiliated with Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Air-
Ways Cab Co., Inc. and Skyway Cab Co., Inc.
and Airlane Cab Co., Inc. Cases 14-CC-1754-
1, 14-CC-1754-2, and 14-CC-1754-3
10 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 April 1985 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Mary J. Tobey, Esq., for the General Counsel.
Clyde E. Craig, Esq., of St. Louis, Missouri , for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me on February 21, 1985, pursu-
ant to charges filed on August 6, 1984; amended charges
filed on September 19, 1984, and on January 8, 1985; and
a consolidated complaint issued on September 26, 1984,
and amended on January 14, 1985, and on February 21,
1985. The pleadings establish that taxicab transportation
service to and from Lambert St. Louis International Air-
port has at all material times been provided by the
Charging Parties-namely, Air-Ways Cab Co., Inc. (Air-
Ways); Skyway Cab Co., Inc. (Skyway); and Airlane
Cab Co., Inc. (Airlane). The three Charging Parties are
sometimes collectively referred to as the Companies. The
pleadings further establish that at all material times Re-
spondent Teamsters Local Union No. 688, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union) had
a labor dispute with the Companies; the posthearing
briefs filed by both the General Counsel (Br. It) and the
Charging Parties (Br. 6)1 admit that this labor dispute
was primary in nature. The complaint in its final form al-
leges that at Lambert Airport, and in support of this
labor dispute, the Union violated Section 8(b)(4)(i) and
(ii) of the National Labor Relations Act by picketing
(since July 28, 1984) certain independent contractors to
whom the Companies had leased their taxicabs, and also
other persons engaged in commerce; and violated Sec-
tion 8(b)(4)(ii)(B) on August 6, 1984, by stating, in the
presence of one of these independent contractors, that
today was "kill-the-scab" day and union members had
the Union's blessing to kill the scabs. The Union's post-
hearing brief admits (Br. 2) that these lessees are inde-
pendent contractors.
On the entire record, including the demeanor of the
witnesses, and after due consideration of the briefs filed
by the Union, the General Counsel, and the Charging
Parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
The Companies are each Missouri corporations which
furnish taxicab transportation to and from Lambert Air-
port. The Companies maintain a, common garage facility
in Breckenridge Hills, Missouri. Air-Ways maintains its
principal office in St. Louis, Missouri. Skyway and Air-
lane maintain a common principal office in Chesterfield,
Missouri. During the 12-month period ending August 31,
1984, Air-Ways' gross revenues exceeded $400,000 and it
purchased and received in St. Louis, Missouri, goods and
materials valued in excess of $10,000 directly from points
located outside Missouri. During the same period,
Skyway's gross revenues exceeded $240,000, and it pur-
chased and received in St. Louis, Missouri, goods and
materials valued in excess of $10,000 directly from out-
side Missouri. During the same period, Airlane's gross
revenues exceeded $145,000.
Until August 1, 1984, Air-Ways' entire revenue con-
sisted of fares turned over to it by its employee drivers.
So far as the record shows, until that date Skyway's and
Airlane's entire revenue consisted of such fares and of
payments received from Air-Ways for repair services and
parking. As discussed infra, as of August 1, 1984, and at
least until the February 21, 1985 hearing, all the Compa-
nies' cabs were driven by independent contractors. After
August 1, 1984, Air-Ways' entire revenue consisted of
rental payments made by the drivers; and (so far as the
record shows) Skyway's and Airlane's entire revenue
consisted of such rentals and payments received for Air-
Ways for repair services and parking. For reasons dis-
cussed infra, none of the Companies received any rentals
during most or all of August 1984.
During various periods which ended on January 31,
1985, and began on various dates between August 1,
1984, and January 7, 1985, at least 18 individuals leased
1 Counsel for the Charging Parties did not file an appearance at the
hearing and testified at length on the General Counsel's behalf However,
he and an associate in his law firm have filed a posthearing brief.
277 NLRB No. 181
TEAMSTERS LOCAL 688 (AIR-WAYS CAB)
from Air-Ways, as independent contractors, taxicabs
which are used to furnish taxicab transportation to and
from Lambert Airport. Their respective names, the date
on which the operation of each began, the gross reve-
nues of each during this period, and the value of gasoline
purchased by each in St. Louis, Missouri, during this
period from service stations which received such gaso-
line directly from outside Missouri, are summarized
below in tabular form:
Driver
Date
Operations
Began
Gross
Revenues
Minimum
Gasoline
Purchases
B. Stricklin 11/7/84 $ 3,500 $ 620
H. Gerran 9/6/84 8,100 960
J. Billups 10/2/84 6,000 720
W. Whitehorn 9/1/84 14,000 1,800
M. Thompson 10/1/84 6,000 1„200
R. Hartman 1/7/85 980 100
S. Britton 8/1/84 14,850 1,728
J SchackIeford 10/12/84 8,460 960
T. Dampier 9/1/84 10,700 1,200
D. Dampier 9/1/84 11,500 1,200
J. Zerillo 9/1/84 12,000 1,200
R. Bohn 9/14/84 13,460 1,200
S. Vitale 9/17/84 9,700 1,200
A. Frazier 10/11/84 9,800 1,440
J. Copeland 9/6/84 10,950 960
M. Thompson 10/25/84 5,000 1,500
H. Thompson 9/10/84 9,220 1,800
R. A. Hakeem 9/1/84 8,500 1,000
During various periods which ended on January 31,
1985, and began on various dates between September 1,
1984, and January 5, 1985 , at least 10 individuals leased
from Skyway, as independent contractors, taxicabs
which are used to furnish taxicab transportation to and
from Lambert Airport. The table below shows, as to
these operations, the same information previously sum-
marized as to Air-Ways:
Driver
Date
Operations
Began
Gross
Revenues
Minimum
Gasoline
Purchases
V. Ratcliffe 9/19/84 $ 10,070 $ 960
S. Spielberg 10/1/84 4,970 800
J. Wilson 9/1/84 13,650 2,040
L. Walker 9/1/84 9,100 1,200
D. Sitzes 1 /5/85 1,700 500
G. Liddell 9/1/84 11,300 1,200
R. Conner 10/11/84 6,900 960
D. Barbee 10/8/84 8,500 960
B. Bennett 9/14/84 9,000 1,000
S. Sitzes 9/1/84 16,200 1,560
During various periods which ended on January 31,
1985, and began on September 1 to 10, 1984, at least four
individuals leased from Airlane, as independent contrac-
tors, taxicabs which are used to furnish taxicab transpor-
tation to and from Lambert Airport. The table below
shows, as to these operations, the same information pre-
viously summarized as to Air-Ways and Skyway:
1519
Date Gross Minimum
Driver Operations Revenues
Gasoline
Began Purchases
W. Clay 9/1/84 $10,000 $ 1,200
R. Lenior 9/1/84 12,200 2,040
E. Bennett 9/10/84 9,000 1,200
C. Perkins 9/10/84 9,250 1,200
Although all the foregoing facts are either admitted or
undenied, the Union's answer neither admits nor denies
the complaint allegations that the Companies and the in-
dependent contractors are persons engaged in commerce
or in an industry affecting commerce within the meaning
of Sections 2(6) and (7) and 8(b)(4) of the Act. Nor has
the Union taken any position about whether the Board's
jurisdictional standards call for assertion of jurisdiction
over the instant case. Of the three posthearing briefs filed
with me, only the General Counsel's brief addresses
either issue. I find that each of the Companies, and each
of the independent contractors who leased cabs from the
Companies, are engaged in commerce or in an industry
affecting commerce within the meaning of Section 2(6)
and (7) of the Act. NLRB v. Reliance Fuel Oil Corp., 371
U.S. 224 (1963). Further, I find that at least prior to
August 1, 19$4, each of the Companies met the Board's
jursidictional standards. Open Taxi Lot Operation, 240
NLRB 808 (1979). Whether the Board's jurisdictional
standards call for assertion of jurisdiction over the in-
stant case must be determined in light of other evidence
discussed infra.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. , Background
Before about the end of July 1984 (see infra), the
Companies performed their taxicab operations without
leasing their taxicabs and through drivers who were ad-
mittedly employees. Between May 1, 1981, and April 30,
1984, these employee-drivers were covered by a collec-
tive-bargaining agreement negotiated between the Union
and the Airport Taxicab Industries (the Association). In
accordance with this agreement, the Companies compen-
sated drivers by giving them a commission consisting of
half their gross receipts.
Lillian Miceli owns most of the stock of Air-Ways and
performs virtually all of its managerial and clerical work.
She performs these duties in her home which is Air-
Ways' principal office. About February 1983 she learned
that taxicab businesses similar to her own had been suc-
cessfully operated by leasing cabs to the drivers for a
fixed sum and compensating them by permitting them to
retain the rest of the fares and 'tips paid to them. She
concluded that this arrangement would save her a lot of
paperwork, cut down her working hours, and make it
easier for her to take periodic vacations. She told Union
Business Representative Joseph Galli that she wanted to
change over to this lease operation. He consulted the
unit employees , who said no. In January 1984, she sent
the Union a letter, stating that when the bargaining
agreement ended in April, she would like to change Air-
Ways to a lease operation.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the stock in Skyway and Airlane is owned by
Elmer L. Eltinge and his son, Ervin Eltinge. Elmer is
president of Skyway and vice president of Airlane; Ervin
is president of Airlane and vice president of Skyway.
Both of them perform all their duties for both corpora-
tions in Elmer 's home, which is the principal office for
both corporations. Elmer performs all the paperwork for
both corporations. Ervin runs and maintains the cabs.
After the changeover to lease operations, neither corpo-
ration has had any employees except the two Eltinges.
The bookkeeping work performed by Elmer had been
performed by his wife until her death in late 1981.
Elmer, who was born about 1915, felt that he was too
old to continue performing this bookkeeping work.
Ervin's wife refused to do it, and Ervin believed that he
did not have enough time to perform such work in addi-
tion to keeping up the cabs. In order to save paperwork
and avoid daily arguments with the drivers about money,
Skyway and Airlane decided to change to a lease oper-
ation.
On March 20, 1984,2 attorney Thomas W. McCarthy,
acting on behalf of all three Companies, sent the Union a
letter stating that all three of them were abandoning any
"group or association" bargaining through the Associa-
tion, and that "each of my clients will not be bound by
any contract negotiated [by] other than themeselves indi-
vidually." The letter went on to say that the three Com-
panies planned to meet and to negotiate in good faith
with the Union on a group basis for a new contract; but
that "they are not forming a multi-employer bargaining
association . . . they each are bargaining with the Union
individually and reserve the right to disband the group.
Morever, they will each not be bound by what the other
Employers agree to ." No contention is made that the
Companies untimely withdrew from any multiemployer
bargaining unit which may have previously existed, or
that at any subsequent time they formed a multiemployer
unit. The General Counsel and the Union agreed at the
hearing before me that at all material times before the
changeover, the Companies were under an obligation to
recognize the Union as the bargaining representative of
their respective taxicab drivers, under Sections 9(a) and
8(a)(5) of the Act.
B. Bargaining Negotiations Regarding Changeover to
Lease Operations
By letter to Skyway and Airlane dated March 29,
Union Business Representative Galli enclosed union pro-
posals with respect to, among other things, health, wel-
fare, and insurance ; sick leave; vacations; holidays; com-
pany payment for uniforms; and grievance procedure.
No changes were requested in the existing 50-percent
commission rate. By letter to Galli dated April 24,
McCarthy requested a discussion to establish times and
places to meet in regard to contract negotiations for "the
Airways and Skyway Cab Companies. As you know,
these companies are negotiating separately but we repre-
sent both of them."
On May 4, the first bargaining session was held.
McCarthy was the sole representative of all three Com-
2 All dates are 1984 unless otherwise stated.
panies. The Union was represented by Galli, one em-
ployee from each Company, and two other union repre-
sentatives. After a discussion of the Union's proposals to
Skyway and Airlane, McCarthy said that all three Com-
panies were interested in changing their operation to a
lease operation. McCarthy said that the Companies' mo-
tives "had to do with paperwork and the obligations that
being an Employer incurred as well as the company [sic]
hoped to do better in terms of making money, as a result
of the change." McCarthy said that he "did not believe
that company [sic] had an obligation to bargain about the
decision; however, the state of the law was anything but
clear and as a result we had no objection to bargaining
with the Union about the change. If there was any hope
at all that we might reach some sort of accommodation
[to] their goals as well as ours, we were certainly willing
to do it." McCarthy expressed the hope that "we could
reach some common ground and [effect] our purposes
and still accommodate our relationship with the Union.
It was, quite frankly, the easiest thing for us to do."
Throughout negotiations, the Companies made it clear
that they wanted the present employees to work for the
Companies under the lease arrangement.
By letter to,the Union dated May 10, McCarthy sub-
mitted "an outline of the proposed lease agreeement [the
Companies] are contemplating. The outline does not pur-
port to be a lease or a final legal document, but only an
outline of the relationship contemplated." The letter
went on to state that proposed rates had not been includ-
ed, "as we felt that discussion of the basic relationship
contemplated would more appropriately come before
any discussion of rates." The letter added that the Com-
panies were willing to discuss rate proposals at this time
if the Union so wished. The "outline" stated, inter alia,
that the lessee drivers would be required to sign an ac-
knowledgement that they were independent contractors,
and would be entitled to retain the gross receipts after
paying cab rental fees to the Companies.
The next meeting was held on May 15. The Compa-
nies were represented by McCarthy, attorney Diana
Wieland from his law firm, and Miceli. The union repre-
sentatives were the same as those who attended the first
meeting. The parties went over the Companies' proposal,
and the Companies tried to explain the answers to the
Union's questions about the proposal. The Union ex-
pressed dislike of or disagreement with the idea of going
to a lease, but was vague about objections to any specific
propsals. The Union said that it "needed" a union con-
tract with recognition, seniority, and union security. The
Companies said that it was not impossible to "marry" a
union contract and a lease method of doing business, and
that the Companies would be happy to try to work with
the Union along those lines. However, the Companies
stated that they were "serious" about this change in op-
erations. The Companies asked the Union for specific
proposals. Galli said that without having the men's
"okay" (by means of a vote) on 'the lease arrangement,
he was not going to make a counterproposal. The Union
asked about the lease fee for the cabs. McCarthy said
that the matter could be discussed immediately if the
Union wished, but that in that event the Companies
TEAMSTERS LOCAL 688 (AIR-WAYS CAB)
would have to assume the worst in terms of the potential
contract items and would have to take the hardest possi-
ble position "just to hedge our bets." McCarthy asked
the Union to "negotiate the language and get that out of
the way" before the Companies made money proposals.
Galli agreed that this was an orderly way to proceed.
The Union proposed that the Companies agree to a con-
tinuation of commission payments to drivers with a
change in the "split" more favorable to the Companies.
The Companies replied that the economics of the situa-
tion were certainly important to the Companies, but that
a change in the "split" was not going to solve their prob-
lems of bookkeeping and recordkeeping and those things
that were attendant on having employees.
At the next meeting, on May 22, all parties were rep-
resented by the same persons who had represented them
at the previous meeting. Galli said that only one of the
employees on the Companies' payrolls was interested in
a lease. McCarthy said, ". . . well, we are interested in a
lease. And we're here to get somewhere between you
don't want one and we want one." McCarthy offered to
try to draft an agreement which would contain a lease
and as many of the former bargaining-agreement provi-
sions as could be included with the lease. Galli told him
to go ahead.
At, the next meeting, on June 7, all parties were repre-
sented by the same persons who had represented them at
the previous meeting. The Companies presented the
Union with a draft lease, with blanks where the rents
were to be specified, and a draft collective-bargaining
agreement. The draft bargaining agreement provided,
inter alia, that its provisions were to be limited "solely to
persons who qualify as employees"; and that "nothing
herein contained shall apply if any of the following cir-
cumstances exists: (a) where the Company leases, rents
or borrows equipment; and (b) where persons do not
occupy the status of Employees within the meaning of
the . . . Act." The Union criticized some of the provi-
sions in both documents, and the Companies agreed to
make certain changes in such provisions; during this
process, the Union indicated, and the Companies under-
stood, that agreement on a specific did not necessarily or
in fact mean that the Union was "buying the package."
The Union again said that the men were upset because
the Companies wanted to become lease operators. The
Union stated that it wanted the Companies to exercise
control over the men, particularly as to the rules, includ-
ed in the expired agreement, which governed the con-
duct of taxicabs lined up at the airport to pick up passen-
gers. The Companies said that escaping the responsibility
of administering these rules was part of the reason the
Companies "wanted out of the Employer business." At
the end of the'; meeting, the Companies said to the Union,
"If you're unhappy with the way we're going here we've
got to have some specific proposals" from the Union.
Galli' said that prior to the next meeting, he_ would "pick
the men's brains." There is no evidence that monetary
issues were discussed at this meeting.
The next meeting was held on June 11. The Compa-
nies were represented by McCarthy and Miceli. The
Union was represented by Business Agents Galli and
Terry Phelps,'and by an employee bargaining committee
1521
whose membership had changed owing to resignations
from employment with the Companies. Miceli told Galli
that the Union was supposed to come back to the Com-
panies with specific proposals. Galli admitted this, but
said that he could not make proposals that his men did
not agree with. Galli said that the Union's proposals
were its initial proposals, which it had tendered in its
March 29 letter and before the first bargaining session.
Miceli commented that the parties had been there , for
months, the Union's position had not changed, and the
Companies were negotiating with themselves. The par-
ties briefly discussed the Companies' June 7 proposal.
The Companies said that appropriate rentals might be
$42 per shift for a "single-shift" lease and $37 per shift
for a "double-shift" lease .3 During this or the next and
last meeting, the Companies proposed a graduated rental
payment, and an accumulated security deposit rather
than the lump-sum security deposit which the Compa-
nies' June 7 draft had called for but the Union had ob-
jected to. The Union expressed no reaction to these
changes; and an employee representative said that the
Union did not like the lease arrangement and he did not
care whether the rent was $20. The Union said (perhaps
during this meeting, and certainly during at least one of
the meetings) that the Companies might be making mis-
takes in the "technical positions" which the Companies
were taking. The Companies said that this was entirely
possible, that the conditions which the Companies were
proposing were new to them and to the Union, and that
perhaps it would be appropriate to include in the con-
tract a provision for a series of reopeners as to econom-
ics or whatever terms the parites were having difficulties
with or were somewhat unaware of. The Union dis-
played no interest in such a provision. McCarthy said
that he was afraid, given the Union's position, that it was
back to its March 29 proposals, that the parties were rap-
idly approaching an impasse . The Union asked for an
offer which it could take to the men for an "up or
down" vote. McCarthy said no, that he wanted to be
certain that the parties could not go anywhere, and sug-
gested a request for intervention by the Federal Media-
tion and Conciliation Service. Galli said that he was
amenable.
On an undisclosed date before the next and last formal
bargaining session , which was held on July 17, Galli and
Phelps came to McCarthy's office and inquired if there
was "some give" in the Companies' proposal regarding
rental rates. After some discussion, McCarthy said that
the "bottom line" was $37 for a single shift and $32 for a
double shift.
All the formal May and June bargaining sessions had
been held at the Union's headquarters. The final bargain-
ing session , on July 17, was held at the FMCS headquar-
ters. The Companies were represented by McCarthy and
5 Under a single-shift lease, the driver leases the cab for one 12-hour
shift, and that cab is idle when he is not driving it Under a double-shift
lease, two drivers each sign a separate lease for successive 12-hour shifts
in the same cab The principal reason,for a higher single-shift rent is that
the driver can select a 12-hour shift (beginning somewhere between 8
a in and noon) covering the prime hours at the airport A double shift
would begin at 4 p in or 4 a in
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miceli. The Union was represented by Galli, Phelps,
Chief Steward Charlie Waddell, Air-Ways employees
Ferguson (the steward at Air-Ways) and Floyd Kellis,
and (perhaps) shop secretary Jim Hamilton. Ferguson
and Kellis had not attended any of the prior meetings
and were replacing other bargaming-committee employ-
ees who had resigned from the Companies' employ.
Before beginning negotiations , each side conferred sepa-
rately with Federal Mediator Jim La Martino. Then, the
parties conferred with each other. Kellis stated that the
union committee opposed a lease agreement because of
its cost to the drivers. The parties may also have dis-
cussed other matters which had been discussed at previ-
ous meetings; but the Union's propsal was not discussed.
After about 30 or 45 minutes, and at a point when the
parties did not feel they were getting anywhere, Media-
tor La Martino separated the parties by taking McCarthy
and Miceli into his office, and then conferred with each
party separately. After that, the Companies presented to
the Union what they said was their final offer. McCarthy
read aloud the proposed lease he had given the Union on
June 7, but included various agreed-upon changes and
also provisions for a $37 single-shift rental and a $32
double-shift rental . Galli said that he would take the
Companies' proposal to the membership at a meeting at 2
p.m. on Friday, July 20. McCarthy said that he would
do his best to get a complete, clean typewritten copy of
the Companies' proposal to Galli's office before that
meeting.4
Union counsel disavowed on the record any conten-
tion that during these negotiations the Companies were
bargaining in bad faith.
C. Events After the Final Negotiating Session and
Before the Companies' Alleged Implementation of
Their Offer
On July 19 Galli telephoned Wieland that he had not
yet received a clean copy of the Companies' July pro-
posal. This proposal, consisting of the proposed lease and
the proposed bargaining agreement , was delivered by
cab to Galli's office at 11 a.m . on July 20 before the
membership meeting. The proposed bargaining agree-
ment continued to provide for coverage of statutory em-
ployees only. Attached to this proposal was a letter to
Galli from McCarthy, stating in part:
The companies' final offer is enclosed herewith.
In the event that your membership chooses to reject
the companies' final offer, that offer will be imple-
mented as follows:
Airways Cab Company will implement on Satur-
day, July 28, 1984.
Skyways and Airlanes Cab Companies will im-
plement on Tuesday, July 31, 1984.
4 My findings about the July 17 bargaining session are based on a com-
posite of the undisputed testimony of McCarthy and Galli I find it un-
necessary to determine the source of the idea that the Companies present
a "final" offer; or whether McCarthy said at that meeting that if the
Union did not accept that offer, the Companies were going to implement
it
The membership meeting that afternoon was attended
by a total of 28 drivers from all three companies. Galli
read aloud the entire proposed bargaining agreement and
the proposed lease agreement. He told the employees
that if there was a labor dispute, there was a very good
possibility that the Union would not win and the em-
ployees would be without jobs. He further stated that if
the Union did win, but the Companies hired replace-
ments, these replacements could very easily become the
senior employees even though the contract had been set-
tled. He said that it was their livelihood he was talking
about, they had to decide whether to accept these pro-
posals, and he was not going to make a recommendation.
The employees unanimously voted to reject these pro-
posals.
Immediately after this Friday, July 20 meeting, Galli
telephoned McCarthy's office. Galli was advised that
neither McCarthy nor Wieland was there. Galli left a
message about what the vote was, and that he -would
telephone McCarthy's office the following Monday, July
23. When Galli telephoned McCarthy's office that
Monday, Galli told Wieland that if the Union and the
Companies were not going to meet again and the Com-
panies were going to implement their lease agreements
on July 28 and 31, Galli had no choice but to strike the
Companies at midnight on those dates. He expressed a
desire for another meeting. Wieland said that she thought
the Companies were sincere in what they were saying
and there was no change. On July 25, Galli telephoned
McCarthy's office again. Galli told Wieland that "we
really had a problem" and needed to meet. She said that
that there was no change in the Companies' position. He
told her that if the Companies put their proposal into
effect, he would have to strike them; but that otherwise,
he would not. Galli telephoned McCarthy's office again
on Friday, July 27. Wieland told him that there was no
change in the Companies' position, and that they were
going to "implement" on the dates specified in
McCarthy's July 20 letter.
D. The Companies' Alleged Implementation of Their
July 17 Proposal
1. Air-Ways
About Saturday, July 21, Air-Ways posted on its em-
ployee bulletin board a notice that on July 28 Air-Ways
would be a "leased company." Until about noon on July
28, Air-Ways did not ask any individual to agree to a
lease. According to the schedule which was being ob-
served at Air-Ways, several employee-drivers were
scheduled to start their shifts at 4 a.m. on July 28. Galli
came to the Companies' garage several hours before this
scheduled start. An unidentified Air-Ways driver who
was supposed to start work at 4 a.m. told Galli that the
driver did not know what to do. According to Galli's
testimony, Galli said that "I couldn't tell him What to do
in a sense, but I said he was fearful if he did not go to
work [Air-Ways] may take a position he quit ... use
your own judgment but I would think you're better off
to go and get in your cab and go to work." The driver
did so.
TEAMSTERS LOCAL 688 (AIR-WAYS CAB) 1523
Galli left the garage at 5 a.m. Miceli came to the
garage about 7 a.m. An Air-Ways driver, Felix Feygel-
man, asked her what to do.s She said that if he wanted
to work under a lease operation , he should get in the cab
and go to work. He said that he did not know what to
do. He went on to say that he had seen some people
driving at the airport. She said that if they were doing
that, they were driving; under a lease contract because
Air-Ways was a lease company . Feygelman said that he
did not think so; that the drivers had told him that Galli
had instructed them to go to work as they normally did.
Miceli advised Feygelman to get in touch with a union
official about whether to go to work. About 10:30 a.m.,
Feygelman reached Galli at his office by telephone. Fey-
gelman said that he was at the garage and did not know
what to do. Then Galli talked to Miceli by telephone.
She said that she did not know whether she had drivers
out working at the airport. He said that he would come
out to the garage. Then he telephoned Air-Ways drivers
Ferguson (the union steward) and Kellis and told them
to meet him at the garage . Before Galli left for the
garage, Air-Ways driver Greg Van Valkenburg tele-
phoned him that Miceli had offered him some refresh-
ments at the garage, and he had thereafter got in his cab
and gone to works Before Galli reached the garage,
Miceli told the drivers who were driving Air-Ways cabs
at the airport to return to the garage . One of them
reached the garage before Galls did, and the other came
in afterward.7 Miceli testified that she took this action
because, if they were not working under a lease contract,
she did not want them driving.
At 11:30 or 11:45 that morning, Galli, Ferguson,
Kellis, and Miceli conferred in her office. Galls suggested
that she let the drivers work; she said she was a "lease
company." Galli said that Miceli had not asked the em-
ployees whether they wanted to "drive lease." She said
that the notice had been posted'on the board, and that
she had not "verbally" asked the employees if they
wanted to "drive lease" because she did not want to be
accused of unfair labor practices. She asked Ferguson
whether he wanted to "drive lease"; he made noncom-
mittal noises. She then made the same inquiry of Kellis.
Galli said that her offers to them were not "really fair;"
that these two men should not be singled out and put on
the spot; that this was their day off; that they had come
in that day simply because of the union situation; and
that she could not just ask them what they were going to
do. Galli expressed irritation at the fact that the Union's
notice of the Companies' intent to implement had been
received by means of a recent letter from the Companies'
attorney. He asked hei to let the drivers continue work
on a commission basis and to continue to meet with the
Union to try to resolve the problem. Pounding the desk,
she said that the Union had known for 2 years, and
during the effective term of the expired contract, that
she wanted a lease operation, that she had honored the
5 Galli's testimony suggests that this was "one of the Russian drivers,"
whose first name was Alec or Alex and whose last name Galli could not
recall The driver's identity is immaterial
6 This finding is based on Galh's testimony which was not received, to
show that Van Valkenburg's report was true
7 The record fails to show who they were Cf supra fns 5-6
contract until its expiration, that she had posted a notice
on the board that she was going to a lease operation, that
she saw no reason to postpone the start of her new pro-
gram, and that she was implementing it on that day. She
said that since Galli had said that she should not single
out Ferguson and Kellis to ask if they wanted to "drive
lease," she would go out to the crowd of drivers stand-
ing on the street and ask them if they wanted to "drive
lease ." Getting excited, Galli said, ". . . no you don't.
Now that I know what you're going to do, I know what
I've got to do."
At this point, Galli left the office and gave the drivers
picket signs which stated:
Employees of Air-Ways
We have no dispute with any
other employer on this location
ON STRIKE
Teamsters Local Union 688
I.B. of T.C.W. & H. of A.
He told the pickets to walk in the garage driveways, but
not to stop the Skyway or Airlane cabs "because they
were not on strike." In addition, picket signs were posted
on lampposts in the area. No contention is made that this
picketing was unlawful (see infra fn. 9).
None of the commission drivers agreed to drive under
a lease arrangement on July 28. The few drivers who
drove for a limited period on July 28 kept all of what-
ever money they collected on that day. Laying these
drivers to one side, Air-Ways had nobody to drive its
cabs on July 28.
On Saturday, July 29, and perhaps thereafter, Air-
Ways ran a newspaper advertisement inviting prospec-
tive drivers to telephone Air-Ways. Miceli told interested
callers to come to the garage on Sunday, July 30, by ap-
pointment, for an interview. She had each applicant read
a copy of the lease agreement which McCarthy had sent
the Union on July 20, but during this period did not ask
anyone to sign it or give anyone a copy.
2. Skyway and Airlane
About July 20 Skyway and Airlane posted on the
garage bulletin board a notice stating that they were
going to convert to a leasing operation on Tuesday, July
31. At or before 7 a.m. that Tuesday, Galls and at least
one employee member of the bargaining committee ap-
proached Ervin Eltinge, who had just come to the
garage. Galls said that the Union did not want to put the
Eltinge companies on strike or to set up a picket line,
and would like to settle the contract. Galli proposed that
the drivers continue to work on a commission basis but
be paid only a 40- or 45-percent commission. Ervin sug-
gested that the drivers take a day off sick and said that
he would have to consult his father and Miceli. During
this conversation, some of the Eltinge drivers were wait-
ing at the curb. Galli told them to go home and said he
would call them later. He told Ervin that Galli could be
reached at the telephone in the starters' booth at the air-
port and asked Ervin to telephone him as soon as possi-
ble about Galli's proposal
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After waiting at the starters' booth for a while without
hearing from Ervin, Galli telephoned the garage. He
reached Elmer, who said that Ervin was not there and
would be back in about 15 minutes. Galls explained who
he was and asked Ervin to return Galli's call. Elmer said
that Ervin was not going to call Galli, and that Galli
could call him. Meanwhile, Ervin had consulted Elmer
and Miceli. When Galli reached Ervin by making an-
other telephone call, Ervin said that he had decided to
go the same way as Miceli, and that the Eltinge compa-
nies were going to change operations. Galls told Ervin
that he had no choice but to come over and establish
picket lines. Ervin asked Galli if he would sit down and
discuss a lease operation. Galli said that there was "no
way" he could sit down and talk to the Eltinges about
that.8
About 10 minutes later, Galli came down to the
garage and gave the pickets there new signs which said:
Employees of
Air Way Skyway Airlane
ON STRIKE
Teamsters Local Union 688
I.B. of T.C.W. & H. of A.
No contention is made that this picketing was unlawful
(see infra fn. 9).
None of the commission drivers agreed on July 31 to
drive under a lease arrangement. The Eltinge companies
tried to get drivers by help-wanted newspaper advertise-
ments and through unemployment offices.
E. The Allegedly Unlawful Picketing
In addition to Air-Ways, Skyway, and Airlane, five
cab companies, whose employees are represented by the
Union, pick up passengers at Lambert Airport. The vari-
ous cabs ordinarily take turns at picking up passengers at
two loading areas, referred to in the record as "the
island" and "the west end," respectively. At any given
time, about six cabs are lined up at the island, and about
three cabs are lined up at the west end. A starter is fre-
quently stationed at the island, at least. The starter, an
employee of St. Louis County (where the airport is lo-
cated), is supposed to direct the prospective passenger
who heads the line at the island to the cab at the head of
the cab line there; this cab occupies what is referred to
in the record as the "ace," "ace up," or "ace out" posi-
tion. In the absence of a starter, the prospective passen-
ger at the head of each line nonetheless, as a matter of
practice, ordinarily takes the "ace" cab.
At all relevant time, cabs owned by the Companies
have had their respective owners' names painted on the
outside. The lessees' names do not appear on the outside
of the cabs, although the lessees' permits (with their
names) are posted on the inside. Galli arranged for the
preparation of a picket sign or signs which stated:
Employees of
Airway Skyway Airlane
We have no dispute with any other
employer at this location
ON STRIKE
Teamsters Local Union 688
I.B. of T C.W. & H. of A.
The Union conducted picketing with this sign at Lam-
bert Airport from the time that the Companies' inde-
pendent contractors began to pick up passengers at the
airport until October 12, 1984, when the picketing was
enjoined by a United States District Court in a proceed-
ing brought under Section 10(1) of the Act. The picket
sign was ordinarily kept behind the starters' booth. How-
ever, when (but not until) an Air-Ways, Skyway, or Air-
lane cab reached the "ace" position, a picket would put
on the sign and picket by the cab. On occasion, passen-
gers were told ^ that they could not use the Companies'
cab because they were on strike, and were "blocked
from proper process from being able to walk" to such a
cab. On occasion, pickets or unionized drivers for other
taxicab companies would pick up passengers' luggage
and carry it to other cabs. Some of the skycaps would
not carry baggage for the passengers to cabs owned by
the Companies; some of these skycaps were employed by
Airport Terminal Service and some, who were apparent-
ly nonunion, were employed by one of the airlines at the
airport. When the cab owned by one of the Companies
drove away, the picket would take off his sign and put it
behind the starters' booth. Galli had "cleared" this pick-
eting procedure in advance with the "airport authority
people," the airport commission, and the airport chief of
police, An ordinance of the county where the aiport is
located provides that every driver of a taxicab in the
county, "regardless of the arrangements between him
and the operator [who conducts a taxicab business li-
censed by the county], shall be deemed the employee,
agent and servant of the operator."
None of the Companies has an office at Lambert Air-
port. After the changeover to leased operations, none of
the Companies had any employees who worked at that
airport. The leases used by all three Companies required
each driver to pick up his vehicle at the Companies'
Breckenridge Hills garage facility at the beginning of his
shift, and to return it to that garage at the end of his
shift. The driveways to the garage lead into a public
street, but there is no evidence whether members of the
general public ever come to the garage to obtain taxi-
cabs Nor is there any evidence whether, in order to
obtain taxicabs, members of the public ever come to the
Companies' offices, which (as previously noted) are Mi-
celi's home and Elmer Eltinge's home, respectively. On
October 12, 1984, picketing at the garage, as well as the
airport, was enjoined by the United States District
Court.9
8 My findings about the conversations between Galh and the Eltmges
are based on a composite of credible parts of Gash's and Ervin's testimo-
ny. Except for immaterial differences regarding the time of day when
these conversations occurred and how many employee representatives ac-
companied Galli to the garage, the testimony is not in conflict
s The original complaint , issued on September 26, 1984 , alleged that
the Union had a labor dispute with the independent contractors , that it
had no lawful labor dispute with the Companies , and that the picketing
was unlawful at both the airport and the garage The amended complaint,
Continued
TEAMSTERS LOCAL 688 (AIR-WAYS CAB) 1525
Galli gave honest testimony that the "strike" and the
picketing were intended to induce the Companies to con-
tinue negotiations, to preserve union jobs, and (because
the lease agreements were "not economically sound" for
the employees) to induce the Companies to abandon the
use of such agreements.
F. The Alleged Unlawful Threat
R. Stephen Britton started driving for Air-Ways on
August 1, 1984, and was still doing so on February 21,
1985, the date of the hearing. He testified as follows: On
August 6, 1984, he was sitting in one of a number of cabs
which had formed a line in the "holding lot" of the air-
port in preparation for feeding into a line at a loading
area . About six cabs were in front of him and about the
same number were behind him. At least some of these
cabs were owned by three named cab companies whose
drivers (other evidence shows) are still represented by
the Union. About 7:45 that morning, Galli pulled up his
personal car across from Britton's cab, got out of his ve-
hicle, looked at the other drivers on the lot, and said in a
loud, clear voice that "today was kill the scab day," and
that the drivers "had his blessing and the blessing of the
Union to do anything they wanted to, anything they
could think of to gel the scabs." Britton was the only
driver then present from any of the Companies.
Galli denied making such a statement at the date and
hour specified by Britton or at any other time. He fur-
ther testified that he was at the airport on August 6, but
could not have been there at 7:45 a.m. because he had a
meeting in his office at 9 a .m. on that day.' ° Although
he was not asked how long it takes to drive from his
office to the airport, he elsewhere testified that it took
him about a half hour to drive from his office to the
Companies' garage. Morever, a composite of Galli's and
Ervin Eltinge's credible testimony about the events on
July 31 indicates that Galli took about 10 minutes to
drive from the airport to the garage. Galli admitted that
he has "no great love for people that cross picket lines
and scabs." For demeanor reasons, I credit Britton and
do not accept Galli's denial.
which alleged that the Union had a labor dispute with the Companies
and did not attack the picketing at the garage , did not issue until January
14, 1985
10 Both Britton and Galls testified about this alleged incident at the
October 1984 10(1) hearing At the February 21, 1985 hearing before me,
Galls testified that after the 10 (1) hearing, he ascertained from his appoint-
ment book that he had had a 9 a.m meeting at his office on August 6,
1984 This appointment book was not offered into evidence The com-
plaint was not amended to allege the Britton incident as an independent
unfair labor practice until after Britton had been excused as a witness,
and Galls testified immediately thereafter for the Union as its sole wit-
ness . However, in granting the motion to amend over the Union's objec-
tion, I advised union counsel that he could move for a continuance if, at
what would otherwise be the conclusion of his case, he believed that he
had not had adequate preparation time because of the late notice of the
amendment . No such motion has been made. I note that whether or not
the Britton incident was timely alleged to be an unfair labor practice in
itself, it was at all times material to the object of the union picketing at
the airport , which picketing was attacked in all versions of the complaint
Indeed , evidence about this incident was presented for that purpose
during the 10(1) proceeding.
G. The Companies ' Hiring Practices After the Alleged
Implementation
The St. Louis County Department of Public Works
has issued to each of the Companies a limited number of
permits in the form of stickers , one of which is to be at-
tached to each taxicab . No taxicab without a sticker
(other than a taxicab which has been specifically ordered
to the airport by a prospective passenger) can pick up
passengers at the airport . A taxicab company will lose its
stickers if it has failed for 30 days to pick up passengers
at the airport. Air-Ways has 13 stickers , Skyway has 7,
and Airlane has 4.
After the alleged implementation by all three Compa-
nies, Miceli did practically all the interviewing of pro-
spective drivers on behalf of all three Companies . During
the first few weeks of lease operations , she took on (on
behalf of all three Companies) about 54 drivers, of whom
30 quit within less than a week and (in some cases)
within an hour or two). Until the end of August 1984,
she had each prospective driver read a lease which (at
least as to the amount of lease payments) was identical to
the lease included in the Companies ' proposal-namely,
$37 for a single shift and $32 for a double shift . Howev-
er, until about late August, the Companies did not re-
ceive any lease payments from any of the drivers . Miceli
and Ervin Eltinge credibly testified that their failure to
require such payments was due to reports which they
had received from the drivers about being harassed at
the airport and at the entrance to the garage. i' Mean-
while, counsel had advised Miceli that for insurance pur-
poses, each driver should be required to sign a lease. Be-
ginning about late August , each driver was in fact re-
quired to sign a lease and to pay rent . However, the
rental called for in these leases was $30 for a single shift
and $25 for a double shift.
Miceli credibly testified that Air-Ways' changeover to
a lease operation was a permanent change. Ervin Eltinge
gave similar credible testimony with respect to Skyway
and Airlane.
H. Analysis and Conclusions
As previously found, the Board has statutory jurisdic-
tion over each of the Companies and over each of the
lessee-drivers. Further, as previously found, during the
12-month period ending August 31, 1984, the revenues of
each of the Companies, which are the primary employers
here, exceeded the $50,000 annual gross revenues which
will cause the Board to assert jurisdiction over firms
which (like the Companies and the lessee-drivers) furnish
taxicab service to airports. Open Taxi Lot Operation,
supra, 240 NLRB 808. Moreover, the allegedly unlawful
picketing herein may have begun as early as July 28,
1984, and was admittedly in process by the end of the
i 1 Similarly, Britton, the only lease driver who was called as a witness,
credibly testified that a couple of days after he started to drive on August
1, Miceli told him that he would not have to pay a lease fee "due to the
difficulties out at the airport and obtaining fares fairly and to earn a fair
share of the money to be earned out at the an port ." In addition to credi-
bly testifying about difficulties when his cab reached the "ace" position
(see supra part II , E), Britton credibly testified about being blocked in by
other cabs while he was waiting in line at the holding lot.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first week in August 1984 . 12 Ordinarily ,- this evidence
would call for assertion of jurisdiction herein. Salem
Building Trades Council, 163 NLRB 33, 34 fn. 1 (1967),
enfd . 388 F.2d 987 (1968), cert. denied 391 U.S. 965
(1965); Hartford Glass Co. of Mishawaka , 230 NLRB 103
(1977); Reliable Roofing Co., 246 NLRB 716 fn. 1 (1979),
stayed on other grounds 250 NLRB 456 ( 1980); Blake's
Restaurant, 230 NLRB 27 , 28 (1977).
However, before the Union began its picketing with
respect to Air-Ways , Air-Ways had stopped using em-
ployee drivers to operate its taxicabs, and had at least an-
nounced (and, perhaps , had already begun to implement)
its eventually implemented decision to have its taxicabs
driven by independent contractors . The same is true
about the action of Skyway and Airlane before picketing
began with respect to them. Even if the Union had
agreed to this change, its result would almost certainly
have been a substantial diminution in the gross revenues
of all three Companies . More specifically , the Companies
no longer received from the drivers all the fares paid by
the passengers, but instead received only the rentals paid
by the lessee-drivers , who would likely not have contin-
ued driving if the rentals equaled the fares and the driv-
ers could retain only their tips.13 These circumstances
undermine the basis for the normal presumption, which
underlies the Board 's willingness to use commerce date
for periods before or after conduct attacked in an unfair
labor practice complaint, that the employers ' business re-
mained -the same.14 Nor is this a situation where no posi-
tive, nonspeculative evidence could have been obtained
with respect to the Companies' gross revenues after the
changeover and in the absence of the Union 's picket-
ing.'-' Rather, all three of the Charging Parties operated
under their new leasing system , without any picketing by
the Union , between October 12, 1984 , and the date of the
hearing on February 21, 1985 , a period of more than 4
months. However , and even though the Union has never
admitted either that the Board has statutory jurisdiction
or that the Board 's jurisdictional standards have been
met, the General Counsel introduced no evidence about
the amount of any of the Companies ' revenues after
August 31 , 1984.16
12 Galh testified that this picketing began at the airport 3 or 4 days
after Monday , July 30, 1984 The parties stipulated that "pikceting"
began on July 28, 1984 (the testimony shows that lawful picketing at the
garage began on that date), and stipulated to the wording on the picket
signs for periods beginning July 28 and 31.
13 The leases also required each driver to pay $1 per "rental period"
toward a $500 security deposit, to pay 25 cents paid mile for single trips
of over 200 or 250 miles, and to pay "late charges " There is no evidence
about the amounts received by the Companies pursuant to such require-
ments, which are not material to the resutls.
14 See Galaxy Theatre, 210 NLRB 695 (1974), Montex Drilling Co, 122
NLRB 139 (1950), Sparkie's Special Delivery, 247 NLRB 623, 625 (1980),
Retail Wholesale Union District 76 (Morgan Shoe Co.), 129 NLRB 1339
(1961)
15 Cf Botany Mills, 115 NLRB 1497 (1956), Hickory Farms of Ohio,
180 NLRB 755 (1970), Jos McSweeney & Sons, 119 NLRB 1399, 1401
(1958).
16 As of the February 21, 1985 hearing, Air-Ways had 18 drivers to
lease its 13 taxicabs , Skyway had 10 drivers to lease its 7 taxicabs, and
Airlane had 6 drivers to lease its 4 taxicabs Although the stipulation
which underlies my commerce findings for periods ending Juanuary 31,
1985, about the lessee-drivers (18 for Air-Ways, 10 for Sky-Way, and 4
for Airlane) does not unequivocally state that ' all of them were still driv-
ing for the Companies as of January 31, the close correspondence be-
Concerning whether the Board's jurisdictional stand-
ards call for assertion of jurisdiction in the instant case,
the General Counsel's case is not saved by the commerce
evidence regarding the lessee-drivers' operations in and
after -July 1984. Even where projected over a 12-month
period, the operations of none of these lessee-drivers
(who are secondary parties to the Union's primary dis-
pute with the Companies) individually meet the Board's
jurisdictional standards. Accordingly, their operations
may not be aggregated to determine whether the Board's
jurisdictional standards call for assertion of jurisdiction
over the instant case. Musicians (Penza Theatrical
Agency), 177 NLRB 842, 844-845 (1969).
Nor can the lessee-drivers' revenues be attributed to
the Companies in determining whether the Companies'
operations after the changeover meet the Board's juris-
dictional standards. As urged by the General Counsel
and the Companies, the lessee-drivers are not "allies" of
the Companies; the Companies' action in changing to a
lease operation did not constitute an attempt to continue
operations, notwithstanding an impending or anticipated
strike by the Companies' employees, but was intended to
be a permanent arrangement motivated largely by a
desire to avoid paperwork. Distributive Workers District
65 (S.N.S. Distributing Service), 211 NLRB 469 (1974).
Neither can the lessee-drivers' revenues be attributed to
the Companies on the theory that these drivers' status as
independent contractors rather than- employees is due to
the Companies' wrongful conduct. Rather, I agree with
the General Counsel that the Companies' changeover to
lease operations was lawful because, by the time it was
effected, the Companies and the Union had reached an
impasse about whether the change should be made.
Where (as here), no contention is made that a particular
party to negotiations has bargained in bad faith, that
party is entitled to claim an impasse at the point where
he is warranted in assuming that further bargaining
would be futile. E.L du Pont Co., 268 NLRB 1075 (1984).
Throughout negoitations , the Companies maintained
their position that the cabs were to be driven by inde-
pendent contractors under lease agreements ; whereas the
Union persistently maintained that the cabs should con-
tinue to be driven by statutory employees. At the fourth
bargaining session, the Union was still adhering to the
proposals it had advanced before negotiations began,
which proposals assumed that drivers would be statutory
employees; and even after the Companies had announced
their intention of actually changing to lease operations,
the Union modified its prior position by proposing a
tween the number of drivers for each Company as of January 31 and as
of February 21 suggest that at least most of them were . However, the
record failed to show, as to any given period, the number of shifts for
which any of the Companies received rentals Indeed , the record fails to
show whether all drivers were full-time drivers, or how many weekly
shifts were ordinarily paid for by each full-time driver ; I note that before
January 31 , 1985, the 11 lessee-drivers who started on September 1, 1984,
grossed between $8500 (Hakeem of Air-Ways) and $16,200 (S Sitzes of
Skyway), respectively Moreover, although the record shows that Air-
Ways leased half its cabs for double shifts as of February 21, 1985, the
record otherwise fails to show (except by inferences which might be
drawn where the number of possible full-time drivers exceeded the
number of cabs) how many leases were for $30 single shifts and how
many were for $25 or $26 double shifts
TEAMSTERS LOCAL 688 (AIR-WAYS CAB) 1527
change in the size of the drivers' commission rather than
ever tendering a proposal which called for even a partial
or eventual lease operation . I conclude that the parties
had reached an impasse about the Companies' proposal
to change to a lease operation. Thomas Sheet Metal Co.,
268 NLRB 1189 (1984). I need not and do not consider
whether a contrary finding would be procedurally
barred by the absence of an unfair labor practice com-
plaint against the Companies;17 whether the decision was
a mandatory subject of collective bargaining; or whether
the Companies' and the employee-drivers' respective
rights were affected by the Companies' decision, several
weeks after beginning operations with independent con-
tractors, to charge the lessee-drivers lower rentals than
the Companies had proposed to the Union.
For the foregoing reasons , I conclude that the General
Counsel has failed to sustain her burden of showing that
assertion of jurisdiction over the instant case is called for
by the Board's jurisdictional standards. Accordingly, the
complaint will be dismissed.
11 So far as I am aware , no relevant charges have been filed against
them
CONCLUSIONS OF LAW
1. Air-Ways, Skyway, Airlane, and each of the lessee-
drivers named in part I of this decision are each engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The evidence fails preponderantly to show that as-
sertion of jurisdiction over the instant case is called for
by the Board's jurisdictional standards.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The complaint is dismissed in its entirety.
18 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses