Yellow Cab, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1969

179 N.L.R.B. 850 (N.L.R.B. 1969)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yellow Cab, Inc. and Independent Drivers'
Association of Denver, Petitioner. Case
27-RC-3651
December 3, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before J. Donald Meyer, Hearing
Officer. Thereafter, pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended, and by direction of the Regional
Director for Region 27, this case was transferred to
the National Labor Relations Board for decision.
Briefs have been timely filed by the Employer, the
Petitioner, and the Intervenor.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Petitioner seeks to represent a unit of all
taxicab drivers employed by the Employer in
Denver, Colorado. The parties, including the
Intervenor, have stipulated that the Employer is
engaged in commerce within the meaning of the Act
and the Board so finds. However, the Employer and
Intervenor contend that the Board lacks jurisdiction
over the present petition for certification because the
drivers in question are independent contractors and
not employees of the Employer within the meaning
of the Act.
Pursuant to a series of collective-bargaining
agreements' with the Intervenor, the most recent of
which expired, after a 3-year term, on May 31,
1969, the Employer has "leased" taxis to
approximately 860 drivers whom Petitioner seeks to
represent.3 The majority of these are regular
full-time drivers, who are committed by Intervenor's
contract to drive 5 or 6 days per week, and who pay
a daily fee of $9.75 plus 5 cents a mile for the use of
a cab owned and maintained by the Employer. A
minority of drivers are otherwise classified and have
lesser driving obligations at slightly different rates.
The Employer is self-insured and provides the
'Local Union No. 775, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, was permitted to
intervene in this proceeding on the basis of a contract interest
drivers with liability insurance coverage. In addition
to the vehicle itself, the Employer furnishes radio
equipment, a dispatching service, and use of the
Employer's public franchise. The taxis are painted a
distinctive color and carry the Yellow Cab name
and telephone number. The recently expired
collective-bargaining agreement between the
Employer and Intervenor deals with such matters as
the suspension and termination of "lease"
arrangements, providing generally that leases may
be suspended or terminated for just cause after a
warning notice, or without a warning notice if the
cause is dishonesty, insubordination, incapacity, loss
of insurability, drinking while driving, drunkenness,
or substantiated carelessness resulting in serious
accident. On timely appeal, a grievance procedure
(and binding arbitration) from such adverse action,
and for other complaints, is provided. The
aforementioned agreement also provided that during
the first 30 days of a lease to a new driver the
Employer had the right to cancel the lease without
showing cause. Finally, that agreement recognized
the Employer's right to establish such reasonable
rules as were deemed necessary to its operations.
Pursuant to this provision, the Employer furnishes
all drivers with an operating manual which contains
work rules, and in addition details the requirements
of the Public Utilities Commission and city
ordinances applicable to cab operators. Drivers are
required to be familiar and comply with this
manual.
Typical manual rules establish dress requirements
for drivers, including particularly the wearing of a
yellow cap in public places while working, and
normal service periods for picking up customers
downtown, within city limits, and in outlying areas.
Accurate trip sheets are required of each driver
showing times and fares charged. Drivers are
required to be clean shaven and have their hair
neatly shorn. Sleeping in cabs is forbidden. Drivers
must make full payment of their daily "lease" fee
each day. While the manual states that drivers are
not required to use the radio dispatching service,
detailed instructions governing its use are included
in the manual, and the fact that 75 percent of the
Employer's total cab trips (about 700 per hour) are
radio-dispatched is also set forth therein. In
addition, testimony in the present case shows that
drivers, although not required to do so, normally use
the radio to preclude the chance of their picking up
customers already assigned by the dispatcher to
other drivers, an action which may result in
discipline, and also in order to receive and respond
to main office calls from the Employer, and to
promptly return to the garage when so directed. The
'The latest agreement provided that the parties intended that the drivers
be considered "independent contractors," and that the agreement would
terminate if an "appropriate judicial authority" should finally declare that
an employer-employee relationship existed
'There are, in fact, no leases signed between the Employer and the
drivers
179 NLRB No. 148
YELLOW CAB, INC. 851
manual also contains tariffs set by the Public
Utilities Commission, and maximum hours to be
worked in a single day, which are established as no
more than 10 in any one 24-hour period. Drivers
may be disciplined for the violation of the
Employer's or Public Utility Commission rules, and
the Employer maintains a "spot check" surveillance
of their operations, using a roving safety inspector.
The Employer does not make deductions from
daily "lease" payments for social security or income
tax purposes, and although it pays workmen's
compensation premiums, the cost is charged to the
drivers. The Employer does not exercise direct
control over the number of drivers working on a
given shift, or over which drivers work particular
shifts. These matters are arranged by the drivers
themselves, pursuant to a seniority system as
provided by the contract. Once a driver has reported
in on a shift, he is free to begin work whenever he
wishes, and he. may, if he desires, attend to personal
business. A driver is theoretically free to secure
fares in any manner, and is not contractually bound
to use the radio-dispatch system. The Public
Utilities Commission, not the Employer, sets the
rates which the drivers may charge. The Employer's
income is not directly proportional to the business
done by the drivers, although there is undoubtedly a
long-range relationship between the two. The
evidence shows that employee profits may vary from
$10 to $50 a day, indicating that employee initiative
(and good fortune) may contribute to the value of
the job.
The Board has held that in determining the status
of persons alleged to be independent contractors, the
Act requires the application of the "right of
control" test.4 Where the person for whom the
services are preformed retains the right to control
the manner and means by which the result is to be
accomplished, the relationship is one of
employment, and where control is reserved only as
to the result sought, the relationship is that of
independent contractor. On the basis of the entire
record in this proceeding, we are of the opinion that
the Employer has retained significant control over
the manner and means by which all taxicab drivers
operating under its Denver franchise perform their
duties. Although in some respects required by its
public carrier certificate, the rules promulgated by
the Employer are in many other respects intended to
serve the Employer's self interest in operating an
efficient and reputable service. The fact, for
example, that a driver can be disciplined for being
"insubordinate" indicates that the Employer has
expressly recognized the need to reserve to itself one
of the normal prerogatives of the
employer-employee relationship. While it is true that
drivers need not avail themselves of the
radio-dispatch system if they do not wish to, it
appears from the record that this is equivalent to
saying that they need not breathe if they do not wish
to. As previously noted, about 75 percent of the
Employer' s business is done by radio dispatch; and
other salient reasons , discussed previously, lead
employees to listen to the dispatch system even if
they have no need to. Once logged in on the system,
the drivers are subject to a close system of controls
in the dispatching procedure. While the Employer
argues that these controls are imposed by law, they
are in effect controls which the law requires the
Employer to assume as part of its relationship with
its employees, if it wants to stay in business.
The Employer contends that it is merely a lessor
of cabs, interested primarily in obtaining the flat
rate payoff from the drivers. This is a narrow view
of the Employer's business. While it is true that the
Employer's sole financial income is derived from its
"lease" arrangements with the drivers, it is also
vitally interested in making such arrangements
lucrative and successful, in order that it may
continue to employ drivers; in order to derive the
greatest income from its capital investment; and in
order to satisfy the conditions of its certificate of
public necessity. To these ends, it has imposed a
network of regulations upon the drivers which, in
practical effect, result in the kind of control over the
manner in which the drivers' jobs are accomplished
that is characteristic of the employer-employee
relationship. Therefore, we find merit in Petitioner's
contention that all such drivers are employees of the
Employer within the meaning of Section 2(3) of the
Act.' Accordingly, jurisdiction over the present
petition for certification is established, and we find
that it will effectuate the purposes of the Act to
assert that jurisdiction herein.
2. The Petitioner and Intervenor are labor
organizations claiming to represent certain
employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer, within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. Employer and Intervenor contend that the
petition filed on June 12, 1969, is barred by their
contract negotiations within the 60-day insulated
period, negotiations which, in their view, first had
the effect of properly extending the contract
(expiring on May 31, 1969) to June 14, 1969, and
then culminated in a "new contract" that assertedly
became effective, or could have become effective,
during the extension period and prior to the filing of
the petition.
'Mound City Yellow Cab Company . 132 NLRB 484, Albert Lea
Cooperative Creamery Association , 119 NLRB 817
'Cf Mound City Yellow Cab Company, supra Subsequent to the
submission of briefs in this case , the Employer moved the Board to reopen
the hearing for the purpose of adducing evidence that the Internal Revenue
Service has recently rendered an administrative decision holding that the
drivers are independent contractors and not employees of the Employer
Although we consider such a decision to be relevant , and we accept as true
for the purposes of this proceeding the Employer's assertion that such a
decision was rendered , we respectfully decline to follow it, for the reasons
described supra The motion to reopen is , accordingly, denied
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this regard, the record shows that, after
extensive negotiations for a new contract to replace
the one expiring on May 31, 1969, the Employer, on
May 28, made a final contract proposal to the
Intervenor, which its negotiators found acceptable,
but sought to have ratified by the union's general
membership in a mail referendum. Because there
was insufficient time to complete such a referendum
before May 31, Intervenor orally requested an
extension of the old contract to June 14, which the
Employer agreed to provide on condition that duly
authorized officers of Intervenor promptly
confirmed the extension by a letter. This document,
signed by Intervenor's president, was received by the
Employer on May 29. However, the Employer never
signed the letter to indicate its own concurrence in
the contract extension, nor did the parties execute in
writing any other contract-extension document. On
June 11, 1969, at the behest of three individuals
employed under Intervenor's expiring
collective-bargaining agreement, a state court at
Denver, Colorado, issued a temporary restraining
order which prevented completion of the
Intervenor's mail referendum. On June 12, 1969, the
same day that the mail ballots were to be counted,
the present petition was filed. On June 13, the
restraining order was dissolved and the ballots
counted. While the employees voted against the
proposal by a tally of 228-126, it appears that such
a vote constitutes acceptance under the Intervenor's
constitution. However, the contract terms were
never thereafter executed in written form.
We find no merit in the contention of the
Employer and Intervenor that the petition herein
must be dishiissed as one which was barred either by
an extension of the contract expiring May 31, 1969,
or by the results of the mail referendum which, they
contend, would have resulted in a contract executed
in writing, were it not for intervening state court
litigation. Neither the contract extension nor the
"new contract" which we are asked to speculate
about comply with the well-established requirement
that a contract, to constitute a bar, must be signed
by all the parties before a petition is filed, and that
unless such a contract precedes a petition, it will not
constitute a bar, even though the parties consider
the contract properly concluded and put into effect
some or all of its provisions."
Accordingly, we agree with Petitioner that its
petition herein was not barred under the relevant
rules, and we shall direct an election herein in the
unit which the parties agree is appropriate.
We find, in accordance with the stipulation of the
aforementioned parties, that the following employees
of the Employer constitute a unit appropriate for
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All taxicab drivers employed by the Employer in
its operations at Denver, Colorado, excluding
dispatchers, mechanics, office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
[Direction of Election 7,8 omitted from publication.
'Appalachian Shale Products Co , 121 NLRB 1160, 1162
'See Jot Transportation Corp, 128 NLRB 780, Cf Cab Operating
Corp. et at, 153 NLRB 878
'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, N L R B v Wvman-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 27 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 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