Checker Cab Co.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 651 (N.L.R.B. 1965)

CHECKER CAB COMPANY AND ITS MEMBERS 651
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF THE GABRIEL DIVISION
OF THE MAREMONT CORPORATION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT require the employees of The Gabriel Division of the Maremont
Corporation , its successors or assigns , who are covered by an agreement author-
ized by Section 8(a)(3) of the Act, to pay discriminatory fees as a condition
precedent to becoming members of our union.
WE WILL NOT cause or attempt to cause The Gabriel Division of The Mare-
mont Corporation , its officers , agents, successors , or assigns, to discharge,
because of nonmembership in our organization , employees who have tendered
or paid the periodic dues and initiation fees uniformly required as a condition of
acquiring or retaining membership or to whom membership is not available on
the same terms and conditions generally applicable to other members , or in any
like or related manner cause or attempt to cause the said Company to discrimi-
nate against its employees in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
the said Company , its successors or assigns , in the exercise of the rights guaran-
teed in Section 7 of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a condition of
,employment, as authorized by Section 8 (a) (3) of the Act
WE WILL reimburse Stephen T. Phillips for the discriminatory overcharge of
initiation fee previously paid by him by refunding to him the sum of $20 together
with interest thereon at the rate of 6 percent per annum from May 1, 1963.
INTERNATIONAL BROTHEROOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, TEAMSTERS
UNION LOCAL No. 293,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, Room 720,
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465,
if they have any question concerning this notice or compliance with its provisions.
Checker Cab Company and Its Members and Local 10, Trans-
portation Services and Allied Workers , Seafarers International
Union of North America, AFL-CIO. Case No. 7-CA-5178.
June X8,1965
DECISION AND ORDER
Upon a charge duly filed on April 21, 1965, by Local 10, Transpor-
tation Services and Allied Workers, Seafarers International Union of
North America, AFL-CIO, herein called the Union, against Checker
Cab Company and its Members, herein called Respondent Company,
Respondent Members, or jointly Respondents, the General Counsel
for the National Labor Relations Board, by the Acting Regional
Director for Region 7, issued a complaint alleging that Respondents
had engaged in and were engaging in unfair labor practices affecting
153 NLRB No. 49.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of Sections 8(a) (5) and (1) and 2(6)
and (7) of the National Labor Relations Act, as amended, herein
called the Act. Copies of the charge, the complaint, and notice of hear-
ing were duly served upon the Respondents and the Charging Party.
With respect to the unfair labor practices, the complaint alleged, in
substance, that on or about March 16,1965, the Acting Regional Direc-
tor for Region 7 certified the Union as the exclusive collective-bargain-
ing representative of the employees in a unit composed of all full-time
and regular part-time drivers, including lease drivers, of Checker
cabs owned by persons, partnerships, corporations, and associations
who are members (senior, associate, or otherwise) of Respondent Com-
pany, but excluding office clerical employees, member-drivers, road-
men, garage employees, and all supervisors as defined in the Act ; and
that since on or about April 20, 1965, Respondents did refuse, and con-
tinue to refuse, to recognize and bargain collectively with the Union as
the exclusive collective-bargaining representative in the appropriate
unit.
On May 5 and 6, 1965, Respondent Company and Respondent Mem-
bers filed their answers to the complaint, admitting that they refused
and continue to refuse to bargain with the Union, but denying the com-
mission of any unfair labor practices, and alleging affirmatively that
the action of the Board in Checker Cab Company and its Members,
141 NLRB 583, is contrary to law and contrary to the record in that
proceeding, and that the Board erred in:
(1) Combining the gross revenues of each and all the members, with
each other and with Respondent Company, to establish jurisdiction
which could not otherwise have been asserted by the Board.
(2) Finding Respondent Company to be the joint employer of all
the driver-employees of Respondent Members, and in finding each
Member to be the joint employer of the driver-employees of any and all
other Respondent Members.
(3) Combining all employees of all Respondents to form an alleg-
edly appropriate unit.
Thereafter, all parties joined in a stipulation to transfer the pro-
ceeding directly to the Board. In their stipulation, the parties waived
a hearing before a Trial Examiner, the making of findings of fact and
conclusions of law by a Trial Examiner, the issuance of a Trial Exam-
iner's Decision and Recommended Order, and oral argument before
the Board or the filing of briefs with the Board. In lieu thereof, the
parties stipulated that the entire record of this proceeding shall con-
sist of the charge, complaint and notice of hearing, affidavits of service
of the charge and complaint, answers, transcript and exhibits of the
representation hearing in Case No. 7-RC-5346, held August 29, 30,
and 31,1962, the Board Decision and Direction of Election, 141 NLRB
CHECKER CAB COMPANY AND ITS MEMBERS 653
583, and the fifth supplemental decision on challenged ballots and order
revising tally of ballots and certification of representative issued
March 16, 1965.
By an order issued June 1, 1965, the Board approved the aforesaid
stipulation, made it a part of the record herein, and granted the par-
ties' motion to transfer the matter to and continue it before the Board,
for the purpose of making findings of fact and conclusions of law and
the issuance of a Decision and Order.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
Upon the basis of the stipulation of the parties, the documents, tran-
script and exhibits, and the entire record in this case, the Board makes
the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
Respondent Company is a nonprofit membership corporation,
organized under the laws of the State of Michigan. As stated in its
charter, the principal corporate purposes of Respondent Company are
to provide the city of Detroit with an efficient and systematic taxicab
service, to enable its member taxicab owners to associate for mutual
benefit, and to afford a means by which persons engaged in rendering
cab service may improve operating procedures and practices, and
maintain suitability of equipment. To conduct its services, Respond-
ent Company employs approximately 15 employees and finances its
expenses through the collection of annual dues from each of its 286
members, amounting to more than $377,000 in 1961.
Respondent Members are persons as defined in Section 2(1) of the
Act, who constitute the membership of Respondent Company, and who
own and operate taxicabs in the city of Detroit. In the course of oper-
ating approximately 900 cabs in 1961, the members received combined
gross revenue as fares for taxicab services amounting to more than
$7 million. Of this total, approximately $250,000 was received as
fares from customers transported to and from passenger terminals
engaged in interstate commerce. Individually, however, none of the
owner-operators had a gross revenue of $500,000, the retail jurisdic-
tional standard applied to taxicab companies.
Respondent Company and Respondent Members deny that they are
joint employers in a common enterprise rendering taxicab service to
the public in Detroit, and assert that it is not appropriate to combine
the gross revenues of all members for jurisdictional purposes. To
establish jurisdiction, the General Counsel relies upon the Board's
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior finding in the representation case involving Respondents.' At
the hearing in the underlying, representation case, these same issues
were fully litigated. Thereafter, the Board, in its Decision and Direc-
tion of Election, resolved them contrary to the contentions of the
Respondents after carefully analyzing the record. Respondents have
offered no additional evidence regarding the jurisdictional issue. Thus,
we find that the issue Respondents now seek to litigate has already been
decided by the Board in a representation case upon facts which were
not in dispute .2 Respondents have given no reason why the Board
should reach a different conclusion in this proceeding. We reaffirm
our previous conclusion and find Respondent Company and Respond-
ent Members to be joint employers in a common enterprise and com-
bine the gross revenues of all members for jurisdictional purposes. As
the total revenues exceed the retail standard of $500,000 and as legal
jurisdiction is present, we find that it will effectuate the purposes of
the Act to assert jurisdiction herein.8
II. THE LABOR ORGANIZATION INVOLVED
We find, and Respondents do not dispute, that Local 10, Transporta-
tion Services and Allied Workers, Seafarers International Union of
North America, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Union filed its petition for certification of representative on
May 22, 1962. On March 18, 1963, the Board issued a Decision and
Direction of Election, and on April 11 and May 4, 1963, amendments
thereto, finding that all full-time and regular part-time drivers, includ-
ing lease drivers, of Checker cabs owned by persons, partnerships,
corporations, and associations who are members (senior, associate, or
otherwise) of Respondent Company, but excluding office clerical
employees, member-drivers, casual drivers, roadmen, garage employ-
ees, and all supervisors as defined in the Act constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act. Pursuant to the Board's Decision and
1 Cheekier Cab Company and its Members , supra.
2 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U S. 146, 157-158 ; Thunderbird
Hotel, Inc , etc , 149 NLRB 362
2 Respondents originally denied the allegations of the complaint alleging that during
the calendar year 1964, Respondent Members received fares which exceeded $5 million
of which sum more than $200,000 was received from customers transported to and from
airport , railroad , and bus terminals servicing passenger transportation between the sev-
eral States of the United States. In the parties ' stipulation , however, it is clear that
Respondents are not contesting the total amount of revenue received as fares, but contend
that fares of Respondent Members should not be combined and are testing the validity of
the original Decision and Direction of Election on this ground . Therefore , we find that
the combined gross revenue received as fares in 1964 is as stated in the complaint.
CHECKER CAB COMPANY AND ITS MEMBERS 655
Direction of Election, a secret ballot runoff election was conducted
under the supervision of the Acting Regional Director for Region 7
on March 1 and 2, 1965, in which the majority of the employees in the
unit selected the Union as their representative for the purposes of col-
lective bargaining. Thereafter, on March 16, 1965, the Acting
Regional Director for Region 7 issued his fifth supplemental decision
on challenged ballots and order revising tally of ballots and certifica-
tion of representative, certifying the Union as the exclusive bargaining
representative of the employees in the unit found appropriate by the
Board.
On April 7, 1965, the Union requested Respondents to bargain. By
letter dated April 20, 1965, Respondent Company refused to bargain
with the Union. Thereafter, the General Counsel issued a complaint
alleging that such refusal was violative of Section 8(a) (5) and (1)
of the Act.
As indicated above, Respondents defend their refusal to bargain on
the ground that the Board's finding as to the appropriate unit in the
representation proceeding was erroneous. We reject this defense as
without merit. It is well established that absent newly discovered
evidence, the issues as to the appropriateness of a bargaining unit that
have been raised and determined in a prior representation proceeding
may not be relitigated in a subsequent unfair labor practice proceed-
ing.4 Respondents in this proceeding have presented no new or mate-
rial evidence which would warrant a reconsideration of our unit find-
ing in the representation proceedings. We therefore adhere to our unit
finding in the underlying representation proceeding with regard to
the appropriate unit.
Accordingly, we find that the Union was selected on or about
March 1 and 2, 1965, by a majority of employees in the appropriate
unit as their representative for the purposes of collective bargaining;
that at all times since March 16,1965, the Union has been the duly cer-
tified representative of the employees in the appropriate unit; and that
by refusing to bargain with the certified representative of their em-
ployees, Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts of Respondents described in section III, above, occurring
in connection with the operations of Respondent Company and
Respondent Members described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
4 Pittsburgh Plate Glass Company v. N.L R B , supra; Frisch's Big Boy Ill -Mar, Inc,
151 NLRB 454; S D. Warren Company, 1150 NLRB 288.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondents have engaged in and are engag-
ing in certain unfair labor practices, we shall order that they cease
and desist therefrom, and that they take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Respondent Checker Cab Company and Respondent Members
are, and at all material times herein have been, joint employers in a
common enterprise within the meaning of Section 2 (2) of the Act and
are engaged in commerce with the meaning of Section 2(6) and (7)
of the Act.
2. Local 10, Transportation Services and Allied Workers, Seafarers
International Union of North America, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time drivers, including lease driv-
ers, of Checker cabs owned by persons, partnerships, corporations, and
associations who are members (senior, associate, or otherwise) of
Respondent Company, but excluding office clerical employees, member-
drivers, casual drivers, roadmen, garage employees, and all supervisors
as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
4. The above-named labor organization, since March 16, 1965, has
been the certified exclusive representative of all the employees in the
above-described unit for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
5. By refusing, and by continuing to refuse, to bargain collectively
with the above-named labor organization as the exclusive representa-
tive of all the employees in the unit described above, the Respondents
have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
6. By the aforesaid conduct, Respondents have interfered with,
restrained, and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act, and have thereby engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
CHECKER CAB COMPANY AND ITS MEMBERS 657
Respondents, Checker Cab Company and its Members, Detroit, Michi-
gan, their officers, agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Refusing to bargain collectively concerning wages, rates of pay,
hours, and other terms and conditions of employment, with Local 10,
Transportation Services and Allied Workers, Seafarers International
Union of North America, AFL-CIO, as the exclusive, certified bar-
gaining representative of all the employees in the following appropri-
ate unit :
All full-time and regular part-time drivers, including lease driv-
ers, of Checker cabs owned by persons, partnerships, corporations,
and associations who are members (senior, associate, or otherwise)
of Respondent Company, but excluding office clerical employees,
member-drivers, casual drivers, roadmen, garage employees, and
all supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively with Local 10,
Transportation Service and Allied Workers, Seafarers International
Union of North America, AFL-CIO, as the exclusive bargaining rep-
resentative of the employees in the appropriate unit, as above found,
and, if an understanding be reached, embody such understanding in a
signed agreement.
(b) Post at the offices of Respondent, Checker Cab Company, and
at the offices of each of the Respondent Members, copies of the attached
notice marked "Appendix." b Copies of said notice, to be furnished by
the Acting Regional Director for Region 7, shall, after being duly
signed by Respondent Company and Respondent Members' authorized
representatives, be posted by them immediately upon receipt thereof,
and be maintained by them for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
Respondent Company and each Respondent Member to insure that
said notices are not altered, defaced, or covered by any other material.
(c) Notify the Acting Regional Director for Region 7, in writing,
within 10 days from the date of this Order, what steps Respondent
Company and Respondent Members have taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order " the words "a Decree of
the United States Court of Appeals, Enforcing an Order."
796-027--66-vol. 153 --4 3
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL recognize, and, upon request , bargain collectively with
respect to wages, rates of pay, hours , and other terms and condi-
tions of employment , with Local 10, Transportation Services and
Allied Workers , Seafarers International Union of North America,
AFL-CIO, as the exclusive bargaining representative of all
employees in the certified appropriate unit, and if an understand-
ing be reached , embody such understanding in a signed agreement.
The unit consists of:
All full-time and regular part-time drivers, including lease
drivers, of Checker cabs owned by persons, partnerships, cor-
porations, and associations, who are members ( senior, asso-
ciate, or otherwise) of Checker Cab Company , but excluding
office clerical employees , member-drivers, casual drivers, road-
men, garage employees , and all supervisors as defined in the
Act.
WE WILL NOT, by refusing to bargain collectively or in any like
or related manner, interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed by Section 7 of the Act.
All our employees are free to become, or remain , or to refrain from
becoming or remaining, members of any labor organization , except to
the extent that such right may be affected by the provisions of Section
8(a) (3) of the Act, as amended.
Member Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
CHECKER CAB COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 226-3244, if they have any question concerning
this notice or compliance with its provisions.