Yellow Cab Co., and Dixie Cab Co.

National Labor Relations Board - Board Decisions

Sep 9, 1977

232 N.L.R.B. 105 (N.L.R.B. 1977)

YELLOW CAB CO. AND DIXIE CAB CO.
City Cab Company of Orlando, Inc.; Yellow Cab
Company of Orlando, Inc. d/b/a Yellow Cab Co.
and Dixie Cab Co. and Yellow, City, Dixie
Independent Cab Drivers Association, Petitioner.
Case 12-RC-5243
September 19, 1977
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer C. W. Hunt,
Jr. Following the hearing, this case was transferred to
the National Labor Relations Board in Washington,
D.C., pursuant to Section 102.67 of the Board Rules
and Regulations and Statements of Procedure, Series
8, as amended. Thereafter, briefs were filed by the
Employer and the Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board
finds: 2
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The appropriate unit: Petitioner seeks a unit of
all taxi drivers working in Orlando and Winter Park,
Florida. The Employer contends that drivers who
work under a service-lease arrangement (contract
drivers) are not employees but independent contrac-
tors and therefore should not be included in the unit.
It also takes the position that drivers in the city of
Winter Park should be excluded both because they
I The two corporations involved herein, City Cab Co. of Orlando, Inc.,
and Yellow Cab Co. of Orlando, Inc. d/b/a Yellow Cab Co. and Dixie Cab
Co.. are referred to collectively as the Employer for the purposes of this
proceeding.
2 The Employer's request for oral argument is hereby denied as the
record and the briefs adequately set forth the issues and positions of the
parties.
1 Yellow Cab Company of Orlando, Inc.., does business as Yellow Cab
Co. and Dixie Cab Co.
232 NLRB No. 29
lack community of interest with the Orlando employ-
ees and because they are temporary employees.
City Cab Company of Orlando, Inc., and Yellow
Cab Company of Orlando, Inc.,3 are Florida corpo-
rations engaged in the operation of taxicabs in the
Orlando, Florida, area under authority granted by
the city of Orlando and the Florida Public Service
Commission. The two corporations are under com-
mon ownership and control with Paul S. Mears, Sr.,
being chairman of the board and Paul S. Mears, Jr.,
being president and chief operating officer of both
corporations. Both operate out of a common facility
located at 324 West Gore Street, Orlando, Florida. 4
City Cab Company of Orlando, Inc., employs
approximately 30 taxicab drivers who work on a
commission of gross revenue basis (commission
drivers).5 Yellow Cab Company of Orlando, Inc.,
uses the services of approximately 90 contract drivers
who drive Yellow cabs or Dixie cabs on a regular
basis. It also employs 22 commission drivers who
drive Yellow cabs in the city of Winter Park.
Prior to July 16, 1976,6 all drivers of both
corporations worked on a commission basis. On July
16, the Employer instituted a lease agreement system
whereby those who wished to continue driving were
required to lease a taxicab from the Employer. At
first this arrangement extended to all drivers and was
instituted as a means of avoiding the increasing costs
of operation, particularly in the area of workmen's
and unemployment compensation. A schedule of
rates was attached to the contract and made a part
thereof. The rates were changed by the Employer five
times between July 16 and October 1.
On October 1, a second contract was presented to
the drivers changing the lease agreement to a
contract for the sale of services. The Employer stated
that the change was made in order to save drivers the
expense of a sales tax, since under Florida law leases
are taxable while sales of service are not. The second
contract contained the additional provision that the
Employer reserved the right to change the rate at any
time.
On November 1, a third contract was offered to the
drivers, containing essentially the same terms as the
second contract, with a change in the rate schedule.
During the life of the third contract, however, the
Employer informed the drivers that it had decided
there was a need for some commission drivers as well
as contract drivers. Those desiring to change back to
4 The two corporations agree that any unit found to be appropriate
should include the employees of both corporations, with the exception of
those employed at Winter Park.
I The Employer concedes that commission drivers are employees within
the meaning of the Act.
6 All months and dates are in 1976 unless otherwise indicated.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commission driving were asked to arrange for an
interview with a company official. By November 22,
a number of drivers were employed on a commission
basis.
On January 10, 1977, a fourth contract was
presented to those drivers continuing to work as
contract drivers. It contained a change in the rate
schedule and a change in the name of the contracting
party from City Cab Company of Orlando, Inc., to
Yellow Cab Company of Orlando, Inc. The Employ-
er stated that, for insurance purposes, they wanted
contract drivers to drive only Yellow cabs. This
contract was in effect at the time of the hearing. It
provides that the Employer is to furnish a cab,
liability insurance, payments of those licenses, taxes,
and fees required by law, maintenance and wrecker
service, training of drivers, and dispatch and tele-
phone answering service. Drivers wishing to purchase
these services may choose one of three rates. Under
rate 1, the driver pays a fixed charge for up to 10
hours, plus a mileage charge. Under rate II, a driver
pays a certain amount per mile. Under rate III, a
straight flat rate is paid with no reference to mileage.
If, however, the cab is driven more than 160 miles in
a day, there is a charge per mile for any mileage over
160 miles. In contrast to the other rates, rate III is
only available starting at 6 p.m.
The contract also provides that the drivers must
keep themselves in a "neat and clean" condition,
conduct themselves in conformity with all applicable
laws, ordinances, and regulations, keep a record of
all trips as required by the city of Orlando and the
Orlando airport concession agreement, and pay a
security deposit. The driver is not permitted to assign
any rights or duties. Further, the contract requires
that the owner and the driver agree that there is no
employment relationship between them and the
driver is to perform taxicab service free from
interference or control on the part of the owner. The
term of the agreement is for a period of 12 months,
but a driver's failure to purchase services for 5
consecutive days and/or the Employer's failure to
deliver services results in a cancellation of the
agreement.
In addition to the above, the contract requires
drivers to honor provisions of the concession
agreement between the Orlando airport and the
Employer. Under the terms of the airport concession,
the Employer promises that its drivers shall accept all
passengers desiring service and that no selection of
passengers according to destination shall be permit-
ted at any time. To meet this obligation, the
Employer published rules governing the operation of
cabs at the airport. Under the rules, the Employer's
supervisors, called starters, are responsible for
assisting arriving passengers obtain a cab. The starter
determines which of two methods of rotation of the
order of picking up passengers is to be used. A starter
also may skip over the cab which is next in line if he
thinks another vehicle is more appropriate. Contract
drivers may refuse to take a passenger, but, if they
do, they may be required to go back to the end of the
line.
The cabs driven by contract drivers are wholly
owned by the Employer. Employer advertisements
are placed on the trunks of the cabs and income
realized from these advertisements is not shared with
the drivers. Both commission and contract drivers
are provided with cards containing the Employer's
name and address, which may be given to passen-
gers. The cards do not show the driver's name, but
the driver's name may be written on the card.
Both contract and commission drivers must report
to the Employer's facility at West Gore Street to get a
cab. Commission drivers are required to work shifts,
while contract drivers may report to work whenever
they want. However, the Employer's office is closed
between 11:30 a.m. and 2:30 p.m. each day,
preventing a driver from beginning or ending work
during these hours. The cabs are assigned on a first-
come, first-served basis, regardless of the driver's
status. If a contract driver wants to drive the same
cab daily, he must get to the office before another
driver, whether commission or contract, is assigned
that cab. Therefore, as a practical matter, contract
drivers report at the same time as commission
drivers.
Upon checking in, the Employer's personnel at the
desk review the drivers' appearance. The Employer's
practice has been to require that the contract drivers
be clean shaven, wear a shirt with a collar, and
refrain from wearing blue jeans, shorts, or tennis
shoes. A hat may be worn, but it must be one
designated by the Employer as a cabdriver's hat. If a
contract driver fails to meet these standards of
appearance, he is not allowed to drive a cab.
After receiving a cab, the contract driver is
provided with a trip sheet. While driving, he may use
the Employer's dispatcher to receive customer calls.
Unlike commission drivers, contract drivers are, at
least theoretically, not bound to the dispatch system
and may give service to customers obtained by
prearrangement without the Employer's knowledge.
However, a number of contract drivers have received
oral reprimands from a dispatcher when they refused
his request to pick up riders, preferring to seek their
own customers.
The Employer frequently agrees to haul groups of
passengers for a rate less than the metered rate,
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YELLOW CAB CO. AND DIXIE CAB CO.
because of the volume of business. Most of these
arrangements come from the airport.7 A commission
driver must take these group passenger arrange-
ments, while contract drivers may refuse to do so. If
the latter refuse, however, they lose their place in the
line at the airport. If they take the fixed rate
passengers, they are not compensated for the
difference between the fixed rate and what would
have been the metered rate.
In addition to arranging for fixed rates with groups
of passengers the Employer also arranges a flat rate
for hauling of luggage alone. The Employer sets this
rate and, if the contract driver elects to take the
luggage, he is not compensated for the difference
between hauling the luggage at a flat rate and
hauling it at the metered rate where it is treated as a
passenger. Contract drivers may make individual
arrangements with airlines to haul luggage, while
commission drivers may not. One contract driver has
done so.
In determining whether individuals are employees
or independent contractors under the Act, the Board
has consistently applied the right-to-control test.
Under this test, an employer/employee relationship
exists when the employer reserves the right to control
both the result to be achieved and the means to be
used in achieving it. When, however, the employer
reserves only the right to control the result to be
achieved, an independent contractor relationship
exists. The test requires an analysis and balancing of
the facts in each case.8
In our view, a balancing of the facts in the instant
case results in a finding that the factors pointing
toward employer control outweigh those pointing
toward independent contractor status. A major
indication of the contract drivers' lack of indepen-
dence can be found in the manner in which the
contract was established and in the terms it contains.
While the contract purports to cover a 12-month
period, in practice the Employer changed the
contract whenever it desired. The drivers did not
negotiate any of these contracts with the Employer,
and in every case they were required to sign the
agreement if they wanted to continue driving.
Further, the terms of the contract reserved to the
Employer the right to change the rate schedule at any
time and the Employer exercised this right eight
times in 6 months. Thus, through its ability to make
unilateral changes in the contract and the rates at
any time, the Employer effectively controls the
conditions under which the drivers will work and the
amount of money they can earn.
Other terms in the contract also result in the
exercise of a large degree of control by the Employer.
I Approximately 50 percent of the Employer's business comes from the
airport.
Many, if not all, of the contract drivers service the
airport. When they work at the airport, under rules
established to meet the obligation of the concession
agreement, they must follow the Employer's starters'
directions or suffer a penalty in terms of lost
opportunities for failure to do so. The Employer is
thereby able to assert control over which passengers
the drivers will take and how much they will earn.
Similarly, by fixing rates for hauling luggage from the
airport, the Employer predetermines the earnings of
contract drivers who choose to engage themselves in
this service.
Further, the contract requirement that drivers be
"neat and clean" is so broad that the Employer may
and does interpret it in such a way as to effectively
prescribe its own dress code for the drivers. The
Employer has refused cabs to drivers who did not
conform. In practice the Employer, by cab assign-
ments and its hours of operation, regulates the
contract drivers' hours of work. In addition, the
drivers have no investment in the instrumentalities of
their work and are not permitted to sublease. The
work performed by them is an essential part of the
Employer's normal operations, and the income and
goodwill arising from the advertisements on the cabs
they drive inure entirely to the Employer's benefit.
True, factors are present which point toward
independent contractor status. There are no fringe
benefits. Contract drivers may refuse Employer-
arranged passengers and independently prospect for
fares. However, as indicated above, in our view, these
factors are outweighed by those discussed earlier
which support the finding of an employer/employee
relationship. Accordingly, we find that the contract
drivers are employees within the meaning of the Act
and are included in the unit.
Remaining for consideration is the question of
whether the drivers working in the city of Winter
Park should be included in the unit. All of these
individuals are commission drivers; hence, as the
Employer admits, they are employees under the Act.
The Employer first contends, however, that they are
temporary employees and should therefore be ex-
cluded from the unit. In support of this, the
Employer points to the following facts:
Yellow Cab Co. of Orlando, Inc., had previously
sold a number of cabs to Safety Cab Co. of Winter
Park, Inc., and held mortgages on this equipment.
Safety Cab Co. went bankrupt on January 31, 1977,
and Yellow Cab Co. repossessed the cabs and
applied to the city of Winter Park for franchised
authority to take over Safety's operations. It received
the authority to operate approximately 20 cabs, took
over Safety's 22 employees, and began operations.
8 Yellow Cab Company, 229 NLRB 1329 (1977); Twin City Freight, Inc., S
& B Nelson, Inc., 221 NLRB 1219(1975).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, two other cab companies have pending
applications with Winter Park. Yellow Cab has
notified the city that the permit it has been granted
allows for the operation of an insufficient number of
cabs to make the operation profitable, and that it will
therefore cease operations if the other two companies
are granted permits. Thus, the Employer argues, the
Winter Park drivers are temporary employees. We
disagree. At the present time the Employer has full
and unconditional authority to operate in Winter
Park and is in fact doing business there. The question
of whether or not the operation will continue is solely
within the Employer's control, and it has as yet made
no decision on this question. Winter Park drivers,
therefore, can only be found to be temporary
employees on the basis of a future possibility. Our
findings, however, are based on what is and not on
what may be. Accordingly, we find that the Winter
Park drivers are regular employees.
The Employer further contends that, in any event,
the Winter Park drivers do not share a community of
interest with unit employees.
The Winter Park drivers report to the Employer's
Gore Street facility to pick up their cabs. They then
travel 15 to 20 miles to Winter Park where they
operate out of former facilities and a dispatch system
of Safety Cab Co. While on duty, the drivers operate
under the direction of the Winter Park dispatcher,
advertise and charge different fares pursuant to the
Winter Park ordinances, and can only pick up fares
within the Winter Park area. At the close of the
workday, they return the cabs to the West Gore
Street facility. The cabs are serviced and maintained
at the Employer's garage. The drivers are under the
supervision and control of the Employer's supervi-
sors and are paid by the Employer. All records
pertaining to their operation are maintained at the
Gore Street facility by the Employer's clerical
employees.
Contrary to the Employer's contentions, we find
that the Winter Park drivers share a community of
interest with the other unit employees. Although they
use a different dispatch system, charge different
fares, and are confined to a specific geographic area,
they share the same supervision, report to work at the
same facility, have their cabs stored and serviced at
the same facilities, and have records kept at the same
office as the other unit employees. Accordingly, we
find that these employees are included in the unit.
On the basis of the foregoing, we find that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All regular and part-time taxi drivers at the West
Gore Street, Orlando, Florida, facility, including
contract drivers and Winter Park drivers; exclud-
ing all other employees, dispatchers, starters,
office clerical employees, guards and supervisors
as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
108