Trade Wind Taxi

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 373 (N.L.R.B. 1970)

TRADE WIND TAXI
Trade Wind Transportation Company Ltd. and Trade
Wind Services d/b/a Trade Wind Taxi' and
Hawaii Teamsters and Allied Workers , Local 996,
Petitioner . Case 37-RC-1498
August 27, 1970
DECISION AND DIRECTION OF ELI
Upon a petition duly filed under 9(c) of the National
Labor Relations Act, as amended, a hearing was
held before Bernard T. Hopkins, Hearing Officer
of the National Labor Relations Board. After the
closing of the hearing, the Acting Regional Director,
in conformity with National Labor Relations Board
Rules and Regulations transferred the case to the
Board for decision. The Petitioner and Employer
filed briefs.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:'
1. In our previous decision involving the same
parties and the same issues we found that the Employ-
er was engaged in interstate commerce and subject
to the Board's jurisdiction. It has been so stipulated
by the parties herein. Accordingly, we so find.
2. The labor organization involved' claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of certain employees of the Employ-
er within the meaning of Section 9(c)(1) and Section
2(6) of the Act.
4. The Petitioner seeks a unit composed of owner-
operators and lease drivers who operate from stands
that are controlled by the Employer at several hotels.4
The Employer contends that the drivers are independ-
ent contractors.
As amended at the hearing
The Board on December 12, 1967, issued its decision in Trade
Wind Transportation Company Ltd, 168 NLRB No 114, which involved
the same parties and the same issues (except that the roles of the
Petitioner and Intervenor were reversed) The parties stipulated that
the record in that case be made a part of the record in this case
except for the matters actually litigated in the instant hearing In
accordance with the stipulation, the record in the previous case is hereby
made a part of the record herein
' Drivers, Helpers, Warehousemen and Construction Division Local,
1, (Independent) hereinafter called the Intervenor, was permitted to
intervene at the hearing on the basis of a contractual interest as to the
employees involved At the hearing the Intervenor made a request to appear
on the ballot if an election is directed
' The Employer' s operations are fully described in our previous decision,
168 NLRB No 114
373
In our previous decision we found that the owner-
operators and lease drivers were not independent
contractors. The Employer in the instant proceeding
claims that, since our previous decision in which
we found that the drivers are independent contractors,
it has effected a basic change in its methods of
operation affecting the relationship between itself and
the drivers.
In our previous decision we found that, while there
existed some indicia that owner-operators and lease
drivers were independent contractors, such indicia
were outweighed by others which amply demonstrate
the effective control the Employer maintains over
the operations of both the owner-operators and lease
drivers, and which, on balance, are sufficient to sup-
port a finding that they are employees both in law
and as a "matter of economic reality." We relied
principally on the following: (1) all drivers are inter-
viewed and their police records are checked before
they are given stalls by the Employer; (2) uniforms
are required for all drivers; (3) the Employer enforces
certain rules concerning gambling, appearance of cabs,
and the general conduct of its drivers; (4) drivers
may lose their stalls if they fail to conform to the
general rules; (5) lease drivers must bring their cars
into the Employer's service station for periodic mainte-
nance or lose their cars; (6) the Employer advertises
the taxi service in the yellow pages for the benefit
of all drivers; (7) complaints are investigated by the
Employer and, in overcharge situations, the Employer
makes refunds to the customer and warns the driver;
and (8) owner-operators and lease drivers are super-
vised to the same extent and by the same individuals.
Testimony by the Employer's witnesses at the hear-
ing shows that factors (1) and (2) and factors (4)
through (6), outlined above, remain unchanged. As
to factor No. 7 the Employer now refers complaints
to the Honolulu Police Department. In regard to
factor No. 8 the Employer through its witnesses con-
tended that there is no supervision on the Employer's
part of the drivers. The record discloses that one
Ivan Rains, an owner-driver, has displaced the previ-
ous head drivers pursuant to an agreement executed
by Jay Eubanks, Employer's operation manager. This
latter agreement sets forth Rains' duties, which require
that he be familiar with the terms of the contract
between the Employer and Hilton Hawaiian Village
and that he report infractions of the hotel's rules
to the Employer, except in emergency situations when
he may report to the Hotel's security personnel. Fur-
ther testimony discloses that Rains inspects the vehi-
cles, orders a driver to have his car washed, directs
a driver to wear his required uniform, and reports
violations or infractions of the rules by drivers to
the Employer's operations manager or assistant opera-
185 NLRB No. 75
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions manager of the Employer. The agreement sets
forth that Rains' compensation is $120 per month.
This in effect means he pays no rent for his stall.
Finally, as to factor No. 3, the Employer contends
it has not itself promulgated any rules and regulations,
but that the only rules and regulations applicable
to the owner-operators and lease drivers are those
of the hotels it services under existing concessionaire
agreements; Therefore it argues it has no rules or
regulations of its own applicable to drivers. This
appears to be a fact without substance. The rules
of the hotels are part and parcel of the Employer's
concession agreement and must be adhered to by
the Employer or it faces possible loss of its concessions.
The drivers have no contractual relationship with
the hotels, and, when such rules and regulations
are made, as they are, a part of their employment
requirements by the Employer, such rules and regula-
tions in their impact on employees become the
Employer's own.
On the basis of the record we find that there
has been no substantial change in the effective control
the Employer maintains over the operations of both
the owner-operators and lease drivers since our find-
ings in our previous decision.
Accordingly, we find, on the basis of the entire
record, that the drivers in question are employees
of the Employer. We further find that the following
unit, as stipulated by the parties, is appropriate for
the purposes of collective bargaining and within the
meaning of Section 9(b) of the Act: All drivers of
taxi cabs at the Employer's place of business at Hono-
lulu, Hawaii, excluding all other employees, Sunset
Taxi employees, office clerical employees, guards,
watchmen, and supervisors' as defined in the Act.
[Direction of Election' omitted from publication.]
' The record evidence is insufficient for us to determine the status
of Ivan Rains We shall therefore permit him to vote subject to challenge
' in order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote, all parties to the election should have access to a list of voters
and their addresses which may be used to communicate with them
Excelsior Underwear, Inc, 156 NLRB 1236, NLRB v Wyman-Gordon
Company, 394 U S 759 Accordingly, it is hereby directed that 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 20 within 7 days of the date of this Decision and Direction
of Election The Regional Director shall make the list available to all
parties to the elections 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 objections are filed