Veterans Cab Co. of Memphis, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1966

159 N.L.R.B. 251 (N.L.R.B. 1966)

VETERANS CAB CO. OF MEMPHIS, INC.
[Text of Direction of Election omitted from publication.] T
251
'' 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 26 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 objections are filed . Excelsior Underwear Inc., 156 NLRB 1236.
Veterans Cab Co. of Memphis, Inc. and General Drivers, Salesmen
and Warehousemen 's Local No. 984, affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehousemen &
Helpers of America, Petitioner.' Case 26-RC-2587. June 13,
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 -James, D. Walpole, on ' February. 23, 1966. The Hearing
Officer's rulings made at the -hearing are free from prejudicial error
and are hereby,, affirmed. Briefs; -have been filed by the Employer
and- the Petitioner.2
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 Brown and Zagoria]. - -
Upon: the entire record, in this case; :including, the briefs filed by
the parties, the Board finds:,"'
1. The Employer is engaged in the business of furnishing taxicab
service,, in. Memphis, Tennessee, and owns more than ones. hundred
taxicabs; it contends that its operation is local in nature,.ithat.,the
drivers sought by the Petitioner are independent contractors, that
none of the drivers satisfy the Board's jurisdictional standards, and,
therefore, that the Board lacks, jurisdiction herein. We find, how-
ever, for the reasons set forth below, that the drivers are employees
and not independent contractors. -
At the hearing, the Employer took the position that, it was the,
duty of the Petitioner to establish that the Employer was engaged
in commerce, and did not submit any evidence relative to the juris-
diction issue., The Petitioner elicited testimony from employee wit-
nesses which establishes that the Employer's gross revenue is in
excess of $500,000, the Board's standard for asserting jurisdiction
I The names of the parties appear as amended at the hearing.
2 The Employer's request for oral argument is hereby denied because the record, in-
cluding the briefs, adequately presents the issues and the positions of the parties
159 NLRB No. 22.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over retail enterprises, and, further, that about one-third of the
Employer's revenue is derived from pickups or deliveries at airports,
bus stations, and railroad stations. Accordingly, we find, upon the
entire record, that the Employer is engaged in commerce within the
meaning of the Act, and that it will effectuate the purposes of the
Act to assert jurisdiction herein.3
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all the drivers who
operate taxicabs owned by the Employer. The Employer, although
presenting no witnesses at the hearing, contends that the drivers are
independent contractors who lease their taxicabs from the Employer.
The record shows that the Employer owns more than one hundred
taxicabs, and enters into lease agreements with the individual drivers
which provide that the drivers are to operate as independent con-
tractors, These lease agreements, however, require the drivers to
deposit a $100 performance bond with .the Employer; to work 6 days
a week or pay the Employer a daily guaranty; to purchase gasoline
from the Employer; and to notify the Employer when required to
go beyond a 30-mile radius of the city. The lease agreements also
provide that the Employer will provide the insurance, maintenance,
and upkeep for the taxicabs, and that taxicab assignment shall be
the Employer's prerogative.
The Employer stores the taxicabs on its premises, and controls the
advertising which appears on them. The drivers, who are not per-
mitted to drive for another company, are assigned to one of two
shifts, and are not permitted to change without the Employer's
approval. Drivers begin their shift by signing a sign-out sheet.
While they are free to solicit fares on their own, the Employer oper-
ates a central dispatching office and taxicab stands throughout the
city. When a driver discharges a fare, he is required to proceed to
the nearest taxicab stand. If he refuses an order, he is subject to
reprimand. Drivers are called in by the Employer when complaints
are lodged against them by customers; and, when a driver is involved
in an accident, he is required to call the Employer, who investigates
it. Upon completing their shifts, drivers pay the rent on the basis
of time plus miles driven outside the city limits. The drivers pay
their own social security and other taxes.
The Board has frequently held that, in determining the status of
persons alleged to be independent contractors, the Act requires appli-
cation of the "right of control" test. Where the person for whom
8 Union Taxi Corporation, 130 NLRB 814; Tropicana Products , Inc., 122 NLRB 121
VETERANS CAB CO. OF MEMPHIS, INC. 253
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.
We find upon the entire record that the drivers do not possess the
independence of action as to the manner and means of accomplishing
their work which is an essential characteristic of an independent
contractor. We are aware that the evidence discloses some factors
which may tend to point toward an independent contractor status,
but none of these factors is alone determinative ,4 and even in com-
bination they are not enough to override the more substantial facts
in this case supporting our finding that the degree of control exer-
cised by the Employer is such as to establish that the drivers are
employees within the meaning of the Act.5
At the hearing, the Employer agreed that, if the drivers were
found to be employees, the unit as petitioned for was appropriate.
Accordingly, we find that a unit of the following employees is
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All taxicab drivers at the Employer's Memphis, Tennessee, opera-
tion, excluding all clerical employees, technical employees, mechanics,
professional employees, watchmen, guards, and supervisors as
defined in the Act.6
[Text of Direction of Election omitted from publication.] 7
* Thus , we do not regard as determinative the fact that the written agreement defines the
relationship as one of "independent contractor " ( National Freight, Inc, 153 NLRB 1536) ;
that the Employer does not make payroll deductions and the drivers pay their own social
security and other taxes ( Frederick 0. Glass d/ b/a Miller Road Dairy, 135 NLRB
217, 220 ) , that the drivers are free to solicit their own passengers In addition to com-
plying with the Employer ' s dispatch orders ; and that the Employer does not give the
drivers written driving instructions.
5 Blue Cab Company and Village Cab Company, 156 NLRB .489 ; Mound City Yellow Cab
Company, 132 NLRB 484 . See also Southern Cab Corporation, 159 NLRB 248 , issued on
the same day as the instant case.
6 The Petitioner would exclude Sullivan , Lawson, and Scroggins on the basis that they
are supervisors within the meaning of the Act, whereas the Employer asserted that It
would Include them as employees in the event that the Board directs an election. The
record indicates that these Individuals drive taxicabs about 95 percent of the time and,
during approximately 5 percent of their time, Investigate accidents for the additional
compensation involved . In addition , Sullivan takes over for the night manager on Sun-
day nights , but there is no indication in the record that be exercises any managerial
authority . Accordingly , as these Individuals spend practically all their ' time as drivers
and do not regularly exercise any statutory supervisory authority , we shall include them
in the unit
'+ 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 26 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 objections are filed Excelsior Underwear, Inc, 156 NLRB 1236.