Yellow Taxi Company of Minneapolis, d/b/a Suburban Yellow Taxi Company

National Labor Relations Board - Board Decisions

Jul 2, 1982

262 N.L.R.B. 702 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yellow Taxi Company of Minneapolis, d/b/a Subur-
ban Yellow Taxi Company and Guild of Taxi
Drivers and Associated Workers, Local Lodge
3025, Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express
and Station Employees. Case 18-CA-5506
July 2, 1982
SUPPLEMENTAL DECISION AND
ORDER
On May 5, 1980, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding that Suburban Yellow
Taxi Company (herein called Respondent) violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act, as amended, by withdrawing recognition
from, and refusing to bargain with, Guild of Taxi
Drivers and Associated Workers, Local Lodge
3025, Brotherhood of Railway, Airline and Steam-
ship Clerks, Freight Handlers, Express and Station
Employees (herein called the Union). The Board
ordered Respondent to cease and desist therefrom
and to take certain affirmative action to remedy the
unfair labor practices.
The Board, sua sponte, has decided to reconsider
its original Decision and Order to the extent set
forth below. By letter dated October 7, 1980, all
parties were informed of this decision to reconsider
the original Decision and Order, and were advised
to submit statements of position. Thereafter, both
the General Counsel and Respondent filed state-
ments of position.
In our original Decision and Order we adopted
the findings of the Administrative Law Judge who
stated that the facts in this case are "not materially
distinguishable" from those presented in Yellow Cab
Company, 229 NLRB 1329 (1977) (herein called
Chicago Yellow Cab), and we cited as additional
support for our decision Air Transit, Inc., 248
NLRB 1302 (1980). The United States Court of
Appeals for the District of Columbia disagreed
with Chicago Yellow Cab's finding that the cabdriv-
ers were employees rather than independent con-
tractors, and denied enforcement of the Board's
Order. Local 777. Democratic Union Organizing
Committee, Seafarers International Union of North
America v. N.L.R.B., 603 F.2d 862 (1978), rehear-
ing denied 603 F.2d 891 (1979).
Subsequent to the original Decision and Order
herein the D.C. Circuit in City Cab Company of Or-
lando, Inc. v. N.L.R.B., 628 F.2d 261 (1980) (herein
called City Cab of Orlando), approved the Board's
finding of employee status for cab drivers, noting
that the work relationship in Chicago Yellow Cab
i 249 NLRB 265.
differed substantially from that in City Cab of Or-
lando. In view of City Cab of Orlando, we have de-
cided to reconsider the original Decision and
Order herein in order to highlight several features
present in the record.2
The lease agreement herein states that an em-
ployer-employee relationship does not exist and is
not intended to exist between the parties to the
lease. However, diligent reexamination of the
record reveals significant discrepancies between the
relationship described in the lease agreement and
that which actually exists. The reality of the situa-
tion convinces us that Respondent retains not only
control over the result to be achieved, but also the
means by which that result is effected.
Thus, the lease agreement specifies that a
"Lessee shall not be required to furnish Lessor any
trip sheet or other record of Lessee's activities
unless required by applicable law." However, con-
trary to this lease provision, Respondent imposes a
trip sheet requirement far in excess of that neces-
sary for lessees to comply with applicable law. Re-
spondent's cabs are licensed in Burnsville, Bloo-
mington, Edina, Eden Prairie, Richfield, and at the
airport. Richfield and the airport require that trip
sheets be submitted by taxi drivers to the local au-
thorities. Respondent has transformed this require-
ment of two localities into a blanket rule that les-
sees maintain trip sheets for all their trips and
submit them directly to Respondent.
In addition, and in contrast to the lease agree-
ment which provides that, "Any rates of fares sug-
gested by Lessor which are not regulated by law,
ordinance or governmental rules or regulations are
merely for the information of Lessee and Lessee is
not obligated to charge such rates," Respondent
has contracted with certain customers to furnish
transportation, usually for packages, at flat rates
which are negotiated and not regulated by law.3
Since Respondent maintains flat-rate agreements
with 25 or 30 corporate customers, this represents
a Respondent urges that the Board is bound by the Administrative
Law Judge's finding that this case is not materially distinguishable from
Chicago Yellow Cab, and, citing our Rules and Regulations, Sec.
102.46(h), moves that the Board strike the General Counsel's statement of
position because no exceptions were taken to that finding. We deny Re-
spondent's motion. "Even absent an exception, the Board is not com-
pelled to act as a mere rubber stamp for its [Administrative Law Judges].
The narrow construction of the rule for which the respondent contends
is, we think, inadmissible, for it would unduly cripple the Board in its
administration of the Act." N.LR.B. v. WTVJ. Inc., 268 F.2d 346, 348
(5th Cir. 1959). Reconsideration of the record in the instant proceeding,
moreover, discloses differences between this case and Chicago Yellow Cab
which establish that our earlier adoption of the Administrative Law
Judge's conclusion that the facts are "not materially distinguishable"
from those in Chicago Yellow Cab was unwarranted. It is axiomatic that
each case must be resolved upon the basis of its own individual record;
and as the decision herein makes clear, there exist material dissimilarities
between the two cases.
' Some of these agreements even prohibit accepting tips.
262 NLRB No. 89
702
SUBURBAN YELLOW TAXI COMPANY
a significant restriction on a lessee's manner of con-
ducting business. Further, Respondent's airport de-
livery rates also limit a lessee's freedom. These
rates are set unilaterally by Respondent based on
its determination of the shortest route from the air-
port to the delivery destination, regardless of de-
tours or traffic jams.4 Respondent insists that les-
sees who overcharge flat-rate customers, or who
fail to charge for the shortest airport delivery
route, reimburse Respondent (which will in turn
refund the overcharge to the customer) for the
overcharge. Respondent determines in summary
fashion if there has been an overcharge, and will
deny a lease to a driver who refuses to comply
with the reimbursement policy.
The trip sheet, flat-rate agreements, and airport
delivery rates function as a monitoring device by
which Respondent keeps track of the amount of
business generated for Suburban Yellow Taxi Com-
pany's drivers. The record evidences that Respond-
ent jealously guards this complex system of control
by denying leases to drivers who solicit flat-rate
customers without receiving a dispatch radio call, 6
or who refuse to reimburse Respondent for over-
charges, thereby significantly restricting a lessee's
opportunity to exercise entrepreneurial initiative in
the manner in which he conducts his business. This
complicated control mechanism militates strongly
in favor of an employer-employee relationship.
While some, but not all, of these requirements
are mandated by municipal ordinance, nevertheless
it is possible for the mandatory legal requirements
to become so detailed, and consequently bind the
parties so closely together operationally, that com-
pliance prevents the existence of an independent
contractor relationship, and rather ensures that of
employer-employee. Moreover, some of the com-
pany requirements are not mandated by ordinance;
regulations by the Company regarding the flat-rate
agreements, tips, and luggage runs are not gov-
erned by local law.
In addition, Respondent operates a radio dis-
patch and an airport starter system which further
define the employer-employee relationship. One
lessee, who estimated that 70 percent of his busi-
ness is provided by radio dispatch, tellingly re-
marked that "this isn't New York or Chicago as far
as people thinking taxi and just grabbing cabs off
the curb or off the street." Although a lessee may
be free to decline dispatch orders, he is in reality
4 The manner in which airport delivery orders are received insures
that Respondent knows the destination of each delivery.
s The lease agreement provides that "Lessee shall not be restricted in
any manner as to the area in which Lessee may operate the Taxicab."
Nevertheless, Respondent forbids lessees from operating independently at
numerous locations throughout the Company's jurisdiction.
dependent upon that system for it is his primary
supplier of business.
Regarding the airport starter system, technically,
a lessee may refuse an order from the airport start-
er. However, in order to refuse effectively an air-
port order, the lessee must do so before he knows
what the order is! To discover how profitable an
airport order might be, a driver must leave his cab
to answer the airport starter's call, and at that point
a driver is deemed to have accepted the order. The
driver's option, once he knows what the order en-
tails, is to complete it, refuse it and lose his place in
the cab line, or leave the airport. Since a driver
knows that he may have to wait several hours
before another starter call, he is effectively pre-
vented from refusing airport orders.
Other factors that manifest an employer-employ-
ee relationship are:
I. Respondent prohibits subleasing. Respondent
actively polices this restriction by spot checking to
determine whether lessees have sublet cabs in vio-
lation of the prohibition.
2. Respondent instructs lessees to keep mileage
to a minimum.
3. Respondent unilaterally detemines fault in case
of an accident.
4. Respondent receives reports about speeding
and warns lessees against repetition.
5. Respondent maintains a bulletin board on
which it posts sundry instructions with which les-
sees are expected to be familiar, such as against
congregating in a private parking lot.
6. The goodwill generated by performance of the
service provided inures to the benefit of Respond-
ent. We base this conclusion on the following fac-
tors: Cabs carry Respondent's name and phone
number; lessees are given items to distribute (e.g.,
matchbooks, business cards, calendars) to custom-
ers which publicize Respondent's name and phone
number; lessees must clean and wash their cabs;
lessees are prohibited from accepting tips from cer-
tain clients; customer complaints are grounds for
denial of a lease. Most important, Respondent has
experimented with several different types of leases,
and has unilaterally changed the financial terms of
the lease arrangement. These unilateral changes,
coupled with Respondent's ability, through the trip
sheets, flat-rate agreements, airport delivery rates,
and charge slip system,6 to monitor a driver's over-
all business, suggest that Respondent's standard
rental fees may be directly related to, and vary ac-
cording to, the total volume of business generated
by the lessees.
a The charge slip system, described in detail by the Administrative
Law Judge, is another method by which lessees account to Respondent
for each day's revenue.
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Lessees are expected to keep their radios on at
all times while on duty, although the lease agree-
ment states that "Lessee shall not be required to
report the location or whereabouts of the Taxicab
at any time during the lease period."
8. Respondent sets de facto hours of employment
for the lessees. While it is true that the driver has
some flexibility in this regard and can if he wishes
work unlimited hours upon occasion, the fact re-
mains that Respondent starts its 12- and 24-hour
leases at 6 a.m., and accordingly its 12-hour night
lease at 6 p.m.; and in any event implicit in the Ad-
ministrative Law Judge's finding that de facto
hours are set is that there are certain minimum
hours a lessee must work, but no limit to the
number of hours a lessee may work.
9. Lessees acquire no equity in the cabs. Indeed,
frequent reassignment of cabs is a real possibility
because of the greater number of lessees than cabs.
10. Lessees have a permanent working relation-
ship with the Company, under which they may
continue as long as their performance is satisfac-
tory. We do not believe that the short-term aspect
of the leases intimates otherwise, for in reality
leases are denied only when Respondent unilateral-
ly decides that a lessee's performance is unsatisfac-
tory.
Finally, although stated previously, we note
again that Respondent retains the ultimate penalty,
which is to deny individuals the opportunity to
renew a lease. And, further, Respondent has not
been chary in exercising this sanction. Over a 22-
month period, while leasing to 240 drivers, Re-
spondent refused leases to approximately 21 appli-
cants-almost 10 percent of the total number of
drivers. Thus, each lessee is aware not merely of
the potency of the threat of ultimate sanction, but
also that the sanction is exercised without hesitan-
cy.
In sum, we find, inter alia, that Respondent re-
quires its drivers to maintain trip sheets and man-
dates an extensive system of flat-rate fares drivers
must charge; that Respondent in effect controls the
drivers' source of business; that Respondent signifi-
cantly regulates the hours that the drivers may
work; and that Respondent is the recipient of the
goodwill generated by the services drivers provide.
We conclude that these characteristics reflect the
method by which Respondent effectively retains
control over the manner in which its drivers per-
form their duties. See City Cab of Orlando, 628
F.2d at 264-266. We therefore find that the taxicab
drivers are employees within the meaning of the
Act.
ORDER
It is hereby ordered that the Order in Yellow
Taxi Company of Minneapolis, d/b/a Suburban
Yellow Taxi Company, 249 NLRB 265 (1980), be,
and it hereby is, affirmed.
MEMBER ZIMMERMAN, concurring:
I agree with my colleagues that the drivers who
work for Respondent are employees within the
meaning of the Act, and that Respondent violated
Section 8(a)(5) and (1) by withdrawing recognition
from, and refusing to bargain with, the Union. I
write separately only to address the decision of the
United States Court of Appeals for the District of
Columbia Circuit in Local 777, Democratic Union
Organizing Committee, Seafarers International Union
of North America, AFL-CIO v. N.L. R.B., 603 F.2d
862 (1978), and its impact on this case. In that case,
the court denied enforcement of the Board's con-
clusion in Yellow Cab Company, 229 NLRB 1329
(1977), that the cabdrivers were employees. Here,
the Administrative Law Judge found that the facts
in these two cases are "not materially distinguish-
able."
In Seafarers, the court took note of what it con-
siders to be "an unusual degree of confusion and
vacillation" in this area.7 It reviewed a series of
Board decisions which it found to demonstrate
"diametrically" opposite conclusions on the basis of
virtually identical facts in cases involving the issue
of whether cabdrivers are employees or independ-
ent contractors. 8 I believe the court's harsh criti-
cism of the Board for its seeming vacillation in this
area is unwarranted. It fails to recognize both the
nature of the Board's decisionmaking process and
our implicit congressional mandate. In each of
these cases, as the court itself acknowledged in
Seafarers, there are factors indicative of an employ-
ee-employer relationship, and conversely of an in-
dependent contractor relationship. Thus, as the
Board has often said, it must analyze the facts pre-
sented in the particular case, balance them, and
arrive at a result.9 It must be expected, therefore,
that various Board Members, after analyzing the
facts in distinct cases, have struck the required bal-
ance somewhat differently.1 0 That result, more-
' 603 F.2d at 869.
a The court also noted that the respondent in Seafarers set up a lease
arrangement identical to that found by the Board in Columbus Green
Cabs. Inc.; e aL, 214 NLRB 751 (1974). to constitute independent con-
tractor status. 603 F.2d at 870.
g Twin City Freight, Inc. S A B Nelson. Inc., 221 NLRB 1219 (1975);
Yellow Cab Compony, 229 NLRB at 1332.
to The Board has utilized the "right of control" test for distinguishing
between employees and independent contractors which it has defined as
follows:
Continued
704
SUBURBAN YELLOW TAXI COMPANY
over, is inherent in the congressional scheme,
which is hardly designed to exalt permanency in
the Board's interpretation and application of the
Act. Section 3 of the Act provides for Board Mem-
bers to be appointed by the President for staggered
5-year terms and authorizes the Board to delegate
its decisionmaking powers to three-member panels.
So, as much as the parties who depend on the
processes of the NLRB deserve consistent and pre-
dictable decisions, and as much as that ought to be
a highly sought goal of any administrative agency,
it is clear that Congress assured only short-term
stability in Board law by making the Board, and
therefore its application of precedent to a particular
set of facts, somewhat susceptible to change
brought about by the annual appointment process.
In finding the cabdrivers in Seafarers to be inde-
pendent contractors, the court relied primarily on
two factors: its finding that the lessor cab company
lacked control of the manner and means in which
drivers carry on their business after they leave the
garage, and its finding no relation between the
compensation received by the cab company for the
lease of the cab to the amount of fares collected by
the lessee-drivers. Although the court noted that
the drivers had some indicia of employee status, it
minimized the importance of those factors. The
court found that "[w]hen a driver pays a fixed
rental, regardless of his earnings on a particular
day, and when he retains all the fares he collects
without having to account to the company in any
way, there is a strong inference that the cab com-
pany involved does not exert control over 'the
means and manner' of his performance." 1 The
court concluded that the cabdrivers were inde-
pendent contractors because it found that the cab
company has no financial incentive to impose con-
trols on the drivers and that the drivers are out
prospecting for fares in their own self-interest. It
was crucial to the court's decision that the compa-
ny had surrendered the right to make the drivers
account for their earnings. Thus, although the ap-
pearance of leased cabs might be identical to that
of commission cabs, the court saw the economic
realities of the two systems as quite different be-
cause in the former the lessee-driver's labor does
not benefit the lessor.
With all due respect, I find that the analysis and
conclusions in Seafarers are not cognizant of the
An employer-employee relationship exists when the person for
whom the services are performed retains the right to control both
the result to be achieved and the manner and means to be used in
achieving it. An independent contractor relationship exists if the em-
ployer reserves only the right to control the results to be achieved.
In applying this test, the Board has used an "all of the circumstances"
approach and no one factor is determinative. See National Freight. Inc.,
146 NLRB 144 (1964); Sidea of Hawaii Inc., 191 NLRB 194 (1971).
I" 603 F.2d at 879.
peculiarities of the taxi industry as they pertain to
the employment relationship. While the court ac-
knowledges the extremely short-term duration of
the leases, it finds this does not affect the relation-
ship between the cab company and the cabdriver
during the term of the lease. Thus, the court seems
to conclude that a lease is the sine qua non of an
independent contractor relationship. This analysis,
however, begs the issue and misapplies the right-of-
control test to the circumstances of this industry.
Although the cab company does not exert control
over the drivers' specific actions once inside the
cab, drivers who operate on a 24-hour lease with-
out the right to sublease are nevertheless subject to
substantial control by the cab company. The unres-
tricted right to cancel the lease of any driver who
fails to perform adequately in any way gives the
cab company, at any 24-hour juncture, essentially
total control over which drivers will receive a
lease and which drivers will no longer receive a
lease. 1 2
As the court acknowledges, whether the driver
works for a commission, or leases a cab on a daily
basis, does not vary the degree of control the cab
company exercises over the driver's actions in the
cab. In either situation, the basic "control" really
required is no more than to insure that the driver
diligently and successfully prospects for fares. In
N.LR.B. v. United Insurance Co. of America, et al.,
390 U.S. 254 (1968), the Supreme Court affirmed
the Board's conclusion that insurance agents were
employees even though they spent the majority of
their worktime beyond their employer's control. A
24-hour lease arrangement, 1 3 with lease termina-
tion at the company's will coupled with mileage
and subleasing limitations, imposes control by the
company over the driver analogous to that in
United Insurance. It allows the cab company the
virtually unfettered right to terminate a driver.
Given the nature of the occupation, an unsuccess-
ful driver may be easily replaced. As the Board
noted in Air Transit, Inc., 248 NLRB 1302, fn. 30
(1980), "it is the right to control, not the actual ex-
ercise of control, which is the determinative
factor." While I fully agree with my colleagues in
the majority that the additional factors on which
they rely indicate such control, I would adhere to
the view. expressed in our decision in Yellow Cab
Company, 229 NLRB 1329, and in our original de-
cision in this case, that a short-term lease, cancela-
ble at will, containing mileage restrictions and sub-
leasing prohibitions, also indicates such control.
" See Yellow Cab Company, 229 NLRB at 1332.
" The court in Sefarers acknowledges this arrangement involves
"substantial" driver funds, amounting to approximately $7,000 per year.
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is not to suggest that I would find an em-
ployer-employee relationship between a cab com-
pany and its drivers in every case in which a lease
arrangement is involved. However, in analyzing
and balancing the facts of any particular case, I be-
lieve some indicia should be regarded as particular-
ly relevant to finding employee or independent
contractor status. For example, driver ownership
or substantial investment in the cab (such as a long-
term lease) should be highly indicative of an inde-
pendent contractor relationship. And, merely leas-
ing the use of the cab company's radio dispatching
service would not contradict such independent
contractor status.14 Conversely, where the only in-
vestment by the driver in the instrumentalities of
his work is a 24-hour lease payment, and there is a
mileage limitation and a prohibition on subleasing
as in this case and Yellow Cab Company, supra,
there is a strong indication of employee status.
For these reasons, I respectfully disagree with
the court's decision in Seafarers and would adhere
to the Board's original decision in this case.
CHAIRMAN VAN DE WATER, dissenting:
The Administrative Law Judge in this case
found the "facts not materially distinguishable"
from Yellow Cab Company,'5 herein called Chicago
Yellow Cab. Recognizing that the United States
Court of Appeals for the District of Columbia's de-
cision in Chicago Yellow Cab'6 compels a different
result, the Administrative Law Judge nonetheless
found that the cabdrivers were employees rather
than independent contractors because he was
bound to follow Board precedent. Subsequently,
over then Member Penello's dissent which stated
that "my colleagues . . . agree that the facts here
are not materially distinguishable from those
present in" Chicago Yellow Cab, the Board adopted
the Administrative Law Judge's findings, including
the critical finding that the instant case was indis-
tinguishable from Chicago Yellow Cab.
Now my colleagues insist that the instant case
more closely resembles City Cab Company of Or-
lando, Inc., et al. v. N.L.R.B.,' 7 a case the District
of Columbia Court of Appeals distinguished from
Chicago Yellow Cab. I believe the Board correctly
concluded in the original decision in this case that
the facts of Chicago Yellow Cab and those herein
are indistinguishable. Accordingly, I would, as then
Member Penello did in Chicago Yellow Cab and the
original Decision and Order herein, find the cab-
drivers to be independent contractors.
" See Sida of Hawaii Inc., v. N.L.R.B., 512 F.2d 354 (9th Cir. 1975).
'i 229 NLRB 1329 (1979).
' 603 F.2d 862 (1978), rehearing denied 603 F.2d 891 (1979).
7 628 F.2d 261 (D.C. Cir. 1980).
The majority attempts to convey the impression
that Respondent controls every facet of a lessee's
employment. However, the characteristics upon
which the majority focuses are of only minimal sig-
nificance in analyzing whether an employer-em-
ployee relationship exists, see 603 F.2d at 878 and
fn. 45, and, upon closer scrutiny of some of the
more potentially relevant characteristics advanced
for their conclusion, one discovers a fragile house
of cards rather than a solid infrastructure.
For example, the majority weaves together a trip
sheet requirement and certain mandatory flat rates
and airport delivery rates to find that Respondent
monitors lessees' and its own earnings. In reality,
lessees maintain trip sheets because they are re-
quired to do so by municipal ordinances. And, as
the Chicago Yellow Cab court made clear, the "gen-
eral insistence that the driver comply with the law
is not the type of control of a driver that will
create an employee relationship since the source of
the control is statutory law and municipal regula-
tions." 603 F.2d at 901. Furthermore, the record
reflects that lessees may refuse orders and prospect
for fares in the manner they deem most profitable.
Since Respondent acts merely as a clearinghouse
for lessees in connection with radio dispatch and
airport orders, and since the Company receives no
money from services provided by lessees to flate-
rate customers, there is no incentive for Respond-
ent to monitor the amount of business generated by
lessees. Consequently, the majority's finding that
Respondent uses the trip sheets, flat-rate agree-
ments, and airport delivery rates to control lessees
is unwarranted.
Next, the majority states that the radio dispatch
and the airport system for assigning orders makes a
lessee dependent upon Respondent, and finds, as
did the City Cab of Orlando court, that the Compa-
ny substantially controls passenger selection. The
Administrative Law Judge herein made no such
findings, not could he, since the record is devoid of
information regarding the percentage of a lessee's
total business represented by the radio dispatch and
airport system.18 Further, the City Cab of Orlando
court's finding that the company controlled passen-
ger selection was based not only on evidence of
the percentage of a driver's business generated in-
dependently, but on the company's admission that
it could refuse to rent a cab to drivers who ignored
a dispatcher's instructions. In the instant case the
Administrative Law Judge credited testimony that
a8 In fact, the only reference by the Administrative Law Judge to this
subject was that one driver testified that he received more than 30 percent
of his business from sources independent of the Company or the airport
starter system-a substantially greater percentage than found in City Cab
of Orlando, and certainly not a negligible amount of business.
706
SUBURBAN YELLOW TAXI COMPANY
"lessees are free to refuse orders for runs, without
penalty, and dispatchers are so instructed." Conse-
quently, not even the threat of retaliation for refus-
ing orders, which the City Cab of Orlando court
found crucial, is present in this case.
In addition, the majority finds this, similar to
City Cab of Orlando, the goodwill generated by
performance of the cab service inures to the benefit
of Respondent. Even if this is true, as Chicago
Yellow Cab noted, it is "of minor importance."
However, it is doubtful whether the instant case
and City Cab of Orlando are alike in this respect.
Here, the lessees pay a flat fee for the use of their
cabs, and all fares they collect belong exclusively
to them. As stated earlier, the record will not sus-
tain the assertion that Respondent monitors lessees'
performance Lo make them account for their earn-
ings, nor that Respondent manipulates the leasing
fee arrangement so as to vary the amounts lessees
earn. Therefore, the tangible manifestation of good-
will engendered by the cab service (i.e., the reve-
nue, over and above the flat leasing fee, resulting
from prompt and courteous service) inures to the
lessees.
Regarding a lessee's hours of work, the majority
apparently believes the Administrative Law
Judge's finding that the Company sets de facto
hours of work resembles the court's finding in City
Cab of Orlando that the "company significantly
regulates the hours that drivers work." However,
the Administrative Law Judge herein also found
that "[t]here are no limits on the hours lessees may
work." Further, the majority fails to mention that
Respondent also leases cabs on a weekly basis, in-
suring lessees the freedom to determine their work
schedules over a 7-day period.19 Finally, it is sig-
nificant that the same day/night/24-hour leasing
system existed in Chicago Yellow Cab, and did not
persuade the court that the company regulated
drivers' hours of work. See 603 F.2d at 881, fn.
51.20
Thus, it is obvious that the characteristics that
distinguished City Cab of Orlando from Chicago
Yellow Cab are significant only by their absence in
the instant case. Indeed, the District of Columbia
Court of Appeals has already intimated as much:
The [Suburban Yellow Taxi Company] decision
is not now before us for review, so we express
no opinion about it. We do not note that,
unlike the case before us where the Board was
at some pains to point out significant factual
differences between it and [Chicago Yellow
Cab], the Board majority in [Suburban] made
no reference to this court's opinion in [Chicago
Yellow Cab]. [628 F.2d 261, fn. 11 (emphasis
supplied).]
Here, on facts "not materially distinguishable"
from Chicago Yellow Cab, an objective appraisal re-
veals that the lease agreement utilized by the Com-
pany was taken verbatim from the lease considered
in Chicago Yellow Cab; that the lessee drivers do
not work for hire, wages, or salary, or under super-
vision; that the lessee drivers pay only their leasing
fees to the Company, and the Company has no
right to obtain, for its own benefit, any accounting
of the lessee drivers' earnings; that the lessee driv-
ers depend for their income solely upon their own
initative and the profits derived from the difference
between their cost of leasing and operating the cab
and what they collect in fares.
As the D.C. Circuit in the original Chicago
Yellow Cab succinctly noted:
When a driver pays a fixed rental, regardless
of his earnings on a particular day, and when
he retains all the fares he collects without
having to account to the company in any way,
there is a strong inference that the cab compa-
ny involved does not exert control over "the
means and manner" of his performance. [603
F.2d at 879.]
I believe that the majority offers no convincing ar-
gument for distinguishing that case from the instant
case. Accordingly, I would find that the lessee
drivers herein are independent contractors rather
than statutory employees,2 1 and therefore would
dismiss the complaint.
" Further distinguishing the instant case from City Cab of Orlando is
the fact that lessees are not subject to termination of leasing privileges if
they do not purchase services for 5 consecutive days.
a Other factors relied on by the majority, such as the lack of equity in
cabs argument, have been dispositively discarded by the D.C. Circuit (the
capital investment of lessee drivers herein is virtually identical to that of
lessee drivers in Chicato Yellow Cab).
n Reported at 249 NLRB 265 (1980).
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER HUNTER, dissenting:
I agree with the Administrative Law Judge and
with my dissenting colleague that this case and
Yellow Cab Company, 229 NLRB 1329 (1977), en-
forcement denied 603 F.2d 862 (D.C. Cir. 1978)
"are not materially distinguishable." I was not on
the Board when it issued its Decision and Order"2
in the instant case. However, I have reviewed care-
ta Reported at 249 NLRB 265 (1980).
fully the underlying record in light of the views ex-
pressed by the circuit court. Based on my reading
of the record as a whole, I am not persuaded by
the majority's analysis, as set forth in its initial De-
cision and Order, and reiterated herein, that the
drivers who work for Respondent are employees
within the meaning of the Act, and thus that Re-
spondent violated Section 8(a)(5) and (1) by with-
drawing recognition from, and refusing to bargain
with, the Charging Party. Accordingly, I dissent.
708