Checker Cab Co., Marcella Cab Co. And Manchester Cab Co.

National Labor Relations Board - Board Decisions

Jan 18, 1985

273 N.L.R.B. 1492 (N.L.R.B. 1985)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Cab Company, d/b/a Checker Cab Company,
Marcella Cab Company and Manchester Cab
Company and Chauffeurs and Industrial Work-
ers, Local No. 5, affiliated with Seafarers Inter-
national Union of North America, AFL-CIO.
Case 14-CA-15712
18 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 March 1982 Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
Based on an essentially undisputed record, the
judge found that the Respondent, a taxi service
company, violated Section 8(a)(5), (3), and (1) of
the Act by: (1) unilaterally announcing and imple-
menting changes in the terms and conditions of the
taxi drivers' employment; (2) dealing directly with
the drivers rather than with their union representa-
tive; and (3) terminating the employment of those
drivers who refused to abide by the unilateral
changes in working conditions. Underlying these
conclusions is the judge's determination that the
taxi drivers are employees of the Respondent and
not independent contractors as the Respondent
argues. We disagree with the judge's resolution of
the employee versus independent contractor issue
and therefore reverse his findings of violations.
The National Labor Relations Act protects indi-
viduals who fall within the classification of "em-
ployee" and specifically excludes individuals who
have the status of "independent contractor."' The
judge reasoned that the determination as to wheth-
er an individual is appropriately classified as an em-
ployee or an independent contractor is based on
general principles of agency law rather than on the
application of any shorthand formula. As fully ex-
plicated in the attached decision the judge relied
on the parties' long-established relationship (in
which they apparently regarded themselves as em-
ployer-employee) as well as a number of company
restrictions over the drivers' activities (as enumer-
ated in the body of the collective-bargaining agree-
ment and in an appended set of "Company's Work-
ing Rules") in concluding that the drivers are em-
' Sec 2(3) of the Labor Management Relations Act
ployees of the Respondent. 2 While we agree that
certain of the characteristics on which the judge
relied are suggestive of an employer-employee rela-
tionship, we find it significant that many of these
factors are imposed not by the Respondent but by
city and Federal regulations and insurance require-
ments. Moreover, we find that whatever factors
may point toward an employer-employee relation-
ship are overridden by the basic entrepreneurial
nature of the drivers' arrangement with the Re-
spondent which clearly establishes them as inde-
pendent contractors.
In the recent decision in Air Transit, 3 the Board
determined that taxicab drivers operating from
Dulles Airport are independent contractors and not
employees. Air Transit provided taxi service under
a contract with the Federal Aviation Administra-
tion (FAA). The FAA imposed an extensive array
of regulations on Air Transit which it, in turn, re-
quired the drivers to obey. The FAA contract re-
quired, for example, that taxi drivers accept all pas-
senger assignments, that they obey all lawful direc-
tions from the dispatch, that certain vehicles be
equipped with two-way radios, and that a particu-
lar fare schedule be followed. In exchange for a
weekly stand fee to the company, drivers obtained
the right to operate from its Dulles taxistand. Air
Transit paid the drivers no wages; the drivers'
income was determined solely by the receipts from
the passengers they transported.
Adopting the reasoning of the District of Colum-
bia Circuit Court of Appeals in Seafarers Local 777
(Yellow Cab) v. NLRB, 4 the Board determined that
two elements were significant in determining that
no employer-employee relationship exists: first, the
company's lack of control over the drivers' means
and manner of operation after leaving the garage
and, second, the absence of any correlation be-
tween the company's income and the amount of
fares collected by its drivers. The Board agreed
with the court's statement that "Government regu-
lations constitute supervision not by the employer
but by the state"; 5 therefore, the greater the con-
trol exerted by the governmental entity, the less
opportunity for control by the putative employer.
In such a situation the company has very little to
2 Among the factors the judge found persuasive in his determination
are (1) the parties' collective-bargaining relationship dating back to 1966,
(2) the parties' use of the terms "employer" and "employee" in referring
to one another, (3) company restrictions over the right of owner-drivers
to sell their vehicles, (4) restrictions over the right of owner-drivers to
keep their vehicles out of service while retaining company identification,
(5) widespread use by the drivers of the company dispatch service to
obtain fares, (6) company requirements for appropriate driver attire, and
(7) a variety of dischargeable offenses
3 271 NLRB 1108 (1984)
4 603 F 2d 862 (1978)
5 Id at 875
273 NLRB No. 186
CHECKER CAB CO 1493
do with directing the manner and means by which
the drivers conduct their normal daily business.
Second, the arrangement between the drivers and
the company entitled drivers to operate under the
company's authority in exchange for payment of a
fixed periodic fee. The company did not compen-
sate the drivers for their efforts, but rather the
drivers themselves determined their income by
virtue of the number of fares they carried. Like-
wise, the company's revenues were unaffected by
the drivers' efforts, but rather remained constant by
virtue of the fixed fee arrangement. In a situation
exhibiting both these elements—lack of control or
actual supervision over the performance of the
drivers' functions and lack of correlation between
the drivers' efforts and the employees' profits—a
finding of independent contractor status is warrant-
ed
The facts of the instant case lend themselves to
the same analysis. Most of the rules under which
the drivers operate are dictated by either insurance
or city requirements. Among the insurance-related
rules are accident reporting procedures, restrictions
on usage of alcohol or drugs while on duty, re-
maining within the authorized mileage radius, re-
questing passengers to ride in the back seat of the
vehicle, and compliance with safe driving proce-
dures. The city-imposed regulations address the op-
erating condition of the vehicles, drivers' wearing
apparel, procedures for obtaining weekly work au-
thorization permits, overcharging of passengers,
providing assistance to passengers, and prohibition
of use of the vehicles for unauthorized purposes.
Federal regulations govern drivers' use of two-way
radios. The remaining rules of conduct which the
company devised relate primarily to the orderly
dispatching of jobs, i.e., trip stealing sanctions, obli-
gations to service a fare once it is accepted, and
banning the transfer of one driver's charge tickets
to another driver. There is no requirement that
drivers use the company-provided dispatch service,
but rather they are free either to use it or to obtain
fares on their own. The company pays drivers no
wages, withholds no taxes, keeps no records re-
garding hours, and does not assign areas in which
the drivers must operate. The drivers provide the
Respondent with a monthly fee in exchange for the
right to display the company emblem on their cabs
and for permission to use the dispatch service. This
is the only revenue the Respondent receives from
the drivers, who are then free to carry as many or
as few fares as they are able. In this way the driv-
ers are responsible for generating their own income
and the Respondent's profits are unaffected by the
drivers' efforts. This type of arrangement is charac-
teristic of an entrepreneutrial endeavor by the driv-
ers rather than an employment relationship. 6 Ac-
cordingly we conclude that the drivers in this case
are not employees but are independent contractors.
Inasmuch as independent contractors are not cov-
ered by the Act, we reverse the judge's findings of
violations against the Respondent and dismiss the
complaint.
ORDER
The complaint is dismissed.
6 We find that the parties' historic reference to themselves as "employ-
er" and "employee" is not determinative of their relationship, but rather
is merely reflective of common, albeit legally inappropriate, terminology
DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Administrative Law Judge. An
unfair labor practice charge was filed in this case by the
Union on February 5, and a complaint was issued on
February 26, 1982 A hearing was conducted in St.
Louis, Missouri, on October 25, 1982. Briefly, the Gener-
al Counsel contends that Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act
by unilaterally implementing changes in terms and condi-
tions of employment of its taxicab drivers, without first
negotiating such changes with the Union, the exclusive
bargaining agent of an appropriate unit of drivers; by
dealing directly with unit drivers in the negotiation of
certain changes in their terms and conditions of employ-
ment; and by, in effect, terminating the employment of
unit drivers who refused to accept the changes in terms
and conditions of employment thus demanded by Re-
spondent. Respondent denies that it has violated the Act
as alleged The fundamental question presented here is
whether the unit taxicab drivers are "employees," instead
of "independent contractors," and thus covered by the
protective provisions of the Act.
On the entire record in this case, including my obser-
vation of the demeanor of the witnesses and, after due
consideration of the briefs filed by counsel, I make the
following
FINDINGS OF FACT
I. PRELIMINARY STATEMENT
The evidence adduced in this case is essentially undis-
puted, and is contained in a 10-page typewritten stipula-
tion, with exhibits A, B, C, and D annexed (Jt. Exh. 1);
two letters of counsel (G.0 Exhs. 2 and 3), and the sup-
plemental testimony of Allcorn Williams, Fleming
Hearn, Charles Mueller, James Matthews, Robert Wolf,
and James Cooper. The pertinent evidence is summa-
rized below.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Status of the Taxicab Drivers
Respondent is engaged in the operation of a taxicab
business in the St. Louis area It is admittedly an "em-
ployer engaged in commerce" and meets the Board's ju-
risdictional standards. The Union is admittedly a labor
organization under the Act. And, as stipulated, if the
taxicab drivers in question are found to be employees in-
stead of independent contractors, the following consti-
tutes an appropriate bargaining unit:
All owner and non-owner taxicab drivers employed
by Respondent, excluding dispatchers, service sta-
tion employees, guards, office clerical, professional
and managerial employees, and supervisors as de-
fined in the Act
In fact, over 16 years ago, on November 30, 1966, the
Union was certified by the Board as exclusive bargaining
agent for "all drivers and owner-drivers operating under
the franchise of' Checker Cab Company. Respondent is
admittedly now the successor to Checker Cab Company.
(See app A to Jt. Exh. 1.)
The Union has represented the above taxicab drivers
during the past years, and there have been agreements
between Respondent and the Union on behalf of these
drivers. Thus, during the summer of 1981, Respondent
and the Union negotiated the current agreement between
the parties, which by its terms runs from August 1, 1981,
through May 31, 1983. (See app. B to Jt Exh. 1.) Al-
though the 1981-1983 agreement was not signed by the
parties, the terms of the agreement, as stipulated, were
implemented.
The 1981-1983 agreement contains the following lan-
guage and provisions. In article I, the Company "recog-
nizes the Union as the sole and exclusive representative
for purposes of collective bargaining with respect to
wages, hours and other terms and conditions of employ-
ment for all owner and non-owner taxicab drivers, but
excluding office clericals, dispatchers, service station em-
ployees, guards, supervisors, professional and managerial
personnel." The Company "agrees not to discriminate
against any employees for legitimate Union activities,"
and
During the term of this Agreement, the Company
shall not negotiate or enter into agreements . .
with individual employees in the bargaining unit
. . and. . shall not by any means, directly or in-
directly, circumvent or impair the exclusive repre-
sentative status of the Union which the Union has
achieved in consequence of certification by the Na-
tional Labor Relations Board.
Article II contains union-security provisions, thus requir-
ing union membership as a condition of continued em-
ployment. Article III sets forth the rights of employees,
stating, inter alia, that no employees shall be deprived of
employment in the absence of good and sufficient cause;
no employee or union steward shall be similarly deprived
of his employment with the Company because of his
membership in or activity on behalf of the Union; a non-
owner driver prevented from operating a cab during his
regular working hours by reason of mechanical break-
down for more than 2 hours on any one occasion shall
receive a pro rata refund of his daily operating fee and
any attempt to collect such a refund for other than a
bona fide mechanical breakdown will subject the driver
to immediate discharge; the Company shall pay $5 per
day to each employee covered by this agreement who
serves on jury duty, the Company will enforce all rules
and regulations equally to all drivers and without dis-
crimination; and
An owner may remove his cab once a year for a
period not to exceed 30 days to take a vacation
without being required to paint his cab out provid-
ed the cab is parked on the Company lot while the
owner is on vacation. The owner shall notify the
Company at least 30 days prior to the date of in-
tended removal.'
Article IV provides, inter aim, that "service seniority
shall be Company wide," with an attached "list of driv-
ers rated according to seniority," and
When an owner desires to sell his equipment, notice
shall be posted . . First priority for purchase of
said equipment shall go to the non-owner driver
with the greatest amount of seniority with the Com-
pany, provided the applicant can provide evidence
of financial responsibility
Article V provides that no employee shall be required to
serve as a supervisor and no supervisor may drive cabs.
Article VI pertains to referral of employees in order that
the Company shall have a competent working force
Under this section, the Company shall consider for em-
ployment drivers referred to it by the Union. The Com-
pany, however, is not prevented from hiring any other
drivers that are qualified The Company has the right to
accept or reject, to employ or not to employee, any ap-
plicant referred by the Union.
Article VII contains grievance and arbitration proce-
dures, including the right of union visitation during
working hours for the purpose of adjusting disputes and
investigating working conditions. Article XI, in turn,
provides that "during the life of this Agreement there
shall be no strikes including sympathy strikes, cessation
of work or lockout." Appendix D to Joint Exhibit 1 is a
copy of a verified complaint by the Company against,
inter aim, the Union, filed in the United States District
Court for the Eastern District of Missouri during early
1982, alleging, inter aim.
Plaintiff [Company] has informed Defendant Local
5 that it stands ready to arbitrate any and all mat-
ters pursuant to article VII . .
' As stipulated, all taxicabs operated pursuant to permits issued to Re-
spondent are painted with the Company's colors, and display its name,
telephone number, and identification number The Company paints the
taxicabs and bills the taxicab owners for this service Radios, as discussed
below, are owned by the Company
CHECKER CAB CO. 1495
Despite the availability of the grievance procedure,
the Defendants have violated the collective bargain-
ing agreements by striking the Plaintiff and picket-
ing its premises.
The Company sought, inter alia, injunctive relief against
the Union and striking and picketing drivers under Sec-
tion 301 of the Labor Management Relations Act.2
Article VIII provides for working conditions, includ-
ing sanitary toilet facilities for its employees, "adequate
radio service, and uniform dispatching. The "Company's
Working Rules" are attached to and made a part of the
1981-1983 agreement as appendix A. The Company ex-
pressly agreed:
In the event that the Company changes any of the
aforementioned rules or promulgates additional
rules during the life of this Agreement, the Compa-
ny shall notify in writing the Union office of its in-
tention to do so at least five days before the effec-
tive date of changes or addition in order that the
Union may have an opportunity to bargain with the
Company.
Appendix A to the 1981-1983 agreement enumerates,
inter alia, the following "working rules":
All accidents must be reported immediately.
Drivers must not leave the scene of accident and
must wait for the Company supervisor.
Any driver having an accident which is his fault
may be subject to disciplinary action including dis-
charge.
. . .
Drivers should endeavor to take one percent of
total daily orders.
Wearing apparel will be a white shirt, black tie,
black pants and black dress shoes. All drivers are to
wear a chauffeurs cap or badge. All drivers are to
be neat (hair cut and combed; beards and mustaches
neatly trimmed) and the automobile to be in good
working order and to be clean inside out. Ties will
not be required May 1 to October 1.
Work tickets are to be picked up each Monday.
Turn in your old work ticket when obtaining a new
2 The parties, in their stipulation, explained that during January 1982,
the Union authonzed a strike against Respondent for slow payment of
charge business reimbursements; this strike lasted about 2 weeks; and
ended on January 26 "upon agreement between the parties after suit had
been filed."
I note also that sec. 7.5 of art VII also provides:
[T]he Union may designate a five member Committee. . . . The ju-
risdiction of this special panel shall be limited only to grievances in-
volving dispatching and payment of charges affecting all employees.
All other gnevances shall be handled pursuant to sections 7.1-7.4
above. This Committee shall have the authority to take such action
as it deems necessary to Insure compliance with the provisions of
this Agreement Involving dispatching and payment of charges, in-
cluding the right to reduce the monthly operating fee to $362 upon
proven violations, all subject to the grievance and arbitration provi-
sions . . . above.
one. Any driver failing to pick up a work authoriza-
tion will be subject to disciplinary action.
The above working rules also enumerate some 16 viola-
tions "subject to immediate dismissal," including: driving
under the influence of alcohol or drugs "or with the
odor of alcohol"; overcharging passengers; using profani-
ty; permitting an unauthorized person to operate cab;
taking cab beyond 150-mile limit without proper authori-
zation; failing to assist passengers failing to comply with
safe driving regulations; trip stealing; using the cab for
gambling or gambling on Checker Cab premises; not
coming to the office when called; servicing an order
with a person unauthorized by the Company in cab; not
requesting that passengers will ride in back seat; not fol-
lowing a supervisor's orders so long as they do not en-
danger health or safety of driver; failing to report an ac-
cident; failing to take job assignment after responding to
dispatcher's call regarding same; and transferring charges
from one driver to another. In addition, the 1981-1983
agreement also states, inter alia: "Citizen band radios and
other such two-way radios shall not be installed in any
taxicab." 3 It was stipulated that the above rules, attached
as appendix A to the agreement, have at all times been
enforced as to all drivers, without regard to the owner-
ship of. the taxicab operated by the driver.
Article IX of the agreement provides, inter alia:
The Company shall continue to provide during the
term of this Agreement liability Coverage as hereto-
fore maintained to protect drivers and owners of
every cab operating under the franchise of the
Company against claims of persons involved in acci-
dents inside or outside the cabs in the amount speci-
fied and in accordance with the provisions of [St.
Louis and State law] . . . and will defend and hold
its drivers . . . harmless against all liability.
Further, no driver shall be required to make any pay-
ment for or in connection with such liability coverage,
and any driver not cooperating with the defense of an in-
vestigation of any accident claim will be subject to im-
mediate discharge. (Also see the parties' stipulation, it.
Exh. 1, par. 17, p. 4.) And, article X requires the Compa-
ny to contribute $51 per month for each cab permit ob-
tained by it from St. Louis during the next preceding cal-
endar month to the Union's health and welfare fund.
This fund is jointly administered, and any difference be-
tween the trustees shall be resolved in accordance with
the provisions of Section 302(c)(5)(B) of the Labor Man-
agement Relations Act. The fund shall provide for pay-
ment of sickness and hospital benefits for employees in
3 The Company's working rules and related provisions of the 1981-
1983 agreement, as summarized above, were discussed and in part modi-
fied by the parties during their 1981 bargaining sessions. See generally
G.C. Exhs. 2 and 3. Note, for example, the Company's unwillingness to
accept a dress code of "dark blue pants, as apparently there are many
variations of blue." Similarly, the Company would not agree to the inser-
tion of the word "reasonably" with respect to the work requirement that
dnvers assist passengers, "as it provides a larger loophole for drivers not
to assist passengers." (Ibid.)
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit and for lost time of drivers due to sickness and
injury.
Article XII contains a management-rights clause. The
Union "recognizes that all management functions not
specifically limited by this Agreement are vested and re-
served exclusively in the Company," including, but not
limited to, "the direction of the working force; the utili-
zation of employees on any work assignment; the right
to hire, transfer, layoff, discipline, and discharge employ-
ees for just cause."
Article IX generally provides for service and operat-
ing fees. The monthly operating fees payable by driver-
owners to the Company total $450. This fee covers in-
surance premiums, radio and telephone service, general
service fees, and monthly operating sticker This fee may
be paid in two specified monthly installments, and if pay-
ment is not paid as asforesaid the driver is not permitted
to drive for the company. However, the agreement pro-
vides alternatively for a daily operating fee payable by
non-owner drivers to driver-owners and/or the Compa-
ny in the amount of $24 for a "daily one shift" or in the
amount of $35 for a "daily 24 hour shift." 4 The stipula-
tion executed by the parties explained:
There are three categories of drivers driving taxi-
cabs under an arrangement with the Respondent (a)
Drivers that own taxicabs and drive same. Said
drivers pay to Respondent a monthly service or op-
erating fee also known as the "proration" or "pro";
(b) Drivers that drive taxicabs owned by a corpora-
tion in which Barbara Wolf and Robert Wolf are
principal shareholders. 5 Said drivers pay a daily op-
erating fee to Respondent; (c) Drivers that drive
taxicabs owned by other drivers, or by third per-
sons whose only connection with the Respondent is
the payment of the monthly proration. Said drivers
pay a daily operating fee to these other owners or
third persons who in turn pay the monthly prora-
tion fee to Respondent. Driver owners or third per-
sons may own or operate any number of taxicabs
under the permits of Respondent.
And, as further stipulated, the Company does not with-
hold taxes for any of the drivers, keeps no records per-
taining to minimum wage or overtime pay for any
driver, and "pays no wage of any kind for any driver."
In addition, the parties stipulated with respect to rates
charged by drivers as follows:
Rates charged by drivers are established through
negotiation between Respondent and the Union.
Such rates are currently $.90 per mile except as oth-
erwise modified by the parties' Agreement. Drivers
are not permitted to overchange. Nor may drivers
request payment of charge fares directly from Re-
spondent's charge customers. Respondent reim-
burses drivers for charge fares. In about January
4 As noted supra, the agreement provides that the union committee
may reduce the monthly operating fee under specified circumstances See
sec 75 of art VII
5 The Wolfs, as discussed below, are admitted officers and agents of
Respondent
1982, driver Zachary Druckerman, who at that time
drove a taxicab owned by one Charles Mueller, at-
tempted to collect on certain charge fares directly
from Respondent's charge customers, which charge
fares he had been unable to collect from Respond-
ent Respondent's representative Robert Wolf in-
formed Druckerman that he could not continue to
drive under Respondent's name if he continued to
solict charge payments directly.6
It was also stipulated that drivers are not assigned
areas in which to drive, they are not assigned particular
times in which to drive, and no records are kept of
driver movements. The stipulation explains.
Drivers decide whether to use the Company dis-
patcher as a method of customer solicitation. Re-
spondent makes available to drivers a dispatch serv-
ice. If a driver wishes to use the dispatch service,
the driver either waits at one of several designated
stands for radio dispatch call, in which case the first
driver in line at that stand is normally dispatched;
or the driver may respond to "open" radio dis-
patches when no taxicabs are available at nearby
stands, in which case the nearest driver responding
is dispatched. While operating under Respondent's
permits, drivers may not be dispatched by other
taxicab companies.7
The supplemental testimony of the six witnesses ap-
pearing herein is essentially consistent with the above-
summarized provisions of the 1981-1983 agreement of
the parties, the working rules attached to the agreement,
the 10-page stipulation, and related documentary evi-
dence. Thus, Robert Wolf, an officer and agent of Re-
spondent, credibly testified that during February 1982
there were about 101 taxicabs operating under Respond-
ent's name. Respondent owned about 3 of the taxicabs
and a corporate entity known as Robar owned an addi-
tional 27 of these taxicabs. Robert Wolf and Barbara
Wolf, officers and agents of Respondent, are also the
principal stockholders of Robar The remaining some 71
taxicabs were owned by other individuals. There were,
according to Robert Wolf, about 37 persons who drove
taxicabs owned by other people—however, approximate-
ly 27 of the 37 apparently drove for Robar and approxi-
mately 10 drove for other individuals 8 All 101 taxicabs
were equipped with Company-supplied two-way radios,
and 85 to 90 percent of the drivers used these radios to
obtain business.
6 Respondent was permitted by an additional agreement, dated Octo-
ber 26, 1981, to discount by 5 percent "charge business reimbursement to
drivers" See Jt Exh 1, par 22, p 6, and app C
7 It was also stipulated that
Dnvers may sublease their cabs to other individuals Sublessees
must complete a written application provided by and submitted to
Respondent If said applicant passes a police check concerning his
driving record conducted by Respondent, he may be permitted to
drive
8 Wolfs testimony is not entirely clear in this respect, in any event,
whether or not he intended to include the three taxicabs owned by Re-
spondent Ace with his Robar figures is not critical here
CHECKER CAB CO 1497
Wolf also explained that the Company could discipline
drivers in a couple of different ways. It could put a
driver on hold, it could lay a driver off, and it could ter-
minate a driver. Moreover, the working rules, as summa-
rized above, were enforced evenhandedly without regard
to who owned the car. Thus, Wolf recalled that Michael
Van drove a vehicle owned by his father, he was given a
reprimand and disciplined for, inter aim, careless and
reckless driving Wolf recalled that Jesse Jones, a driver
of his mother's car, had two chargeable accidents in a 2-
week period, and Respondent's supervisor Todd told his
mother to remove him from the cab, which she did.
Wolf recalled that the Company laid George Emswiller
off for overcharging a passenger, and the Union obtained
his reinstatement. According to Wolf, the Company, in
disciplining a driver as a result of an accident or rule
violation, would, in effect, have to determine whether
the driver was responsible. Finally, although the stipula-
tion states that no records are kept of driver movements
Wolf acknowledged that the Company does maintain a
record of dispatches.9
Allcorn Williams, formerly a driver for Respondent,
credibly testified that he drove his own taxicab for Re-
spondent; that his normal procedure when he started in
the morning was to call the Company on the radio to let
them know he was in operation; and that he would then
proceed to the stand and wait for a call from the Compa-
ny's dispatcher Williams explained that, during the
course of a normal day, some 80 percent of his business
was the result of this dispatch service Williams noted
that
. the 80 percent was charges, charge business
[slips], which you are able to return to the Compa-
ny for cash . . . I [Williams] would pick up the pas-
senger or package and [the passenger] would give
me a charge [slip] . . [I] write in the fare . turn
it in later to the Company . for cash
Williams paid the Company a total fee of $450 each
month, as a proration. He was required to obtain a
permit to drive. He obtained such a permit every week
from the Company. The permit or workcard gave the
date of the dnve and the time.1°
Williams recalled that he had, for certain periods, two
taxicabs in operation with the Company He owned both
vehicles. He would sublease the second taxicab to an-
other driver. Williams explained:
9 Wolf noted that some of the working rules (annexed to the 1981-
1983 agreement) are the result of city, municipal, or Federal regulations,
some are the result of insurance company provisions or requirements, and
others were adopted without reference to or not because of law or insur-
ance Thus, for example, Wolf explained that "rule number three is by
city ordinance, you are required to keep your car neat," and the "city
does require a neat driver" However, as Wolf also acknowledged,
the city did not at the time require black dress shoes—there was no spe-
cific dress code
Williams explained that the only time restrictions on the permit
were daytime or nighttime
Also see the related credible testimony of former driver-owner James
Cooper
I had two on the stand. I paid the Company $450
per month and they set the daily run charge, which
was $35 a day.
A person named John Thomas drove his second vehicle.
Williams paid the Company $450 per month for the
second vehicle and Thomas paid Williams $35 per day.
Thomas, as Williams explained, was already employed
by the Company, so he Just got to switch over to Wil-
liams' vehicle without obtaining any special application
or permission from the Company. Williams added:
If you found a man [driver] for your car and he was
not employed by the Company, you would take
him to the Company and try to get him hired
before you could put him on your car . . If he
was already working for the Company, that was
different.
Fleming Hearn, formerly a driver for Respondent, cre-
dibly testified that he drove his own taxicab for the
Company; that he paid the $450 per month proration;
that he got a workcard from the Company at its office
every week, and that "any official of the Company could
sign it and give it to you" The work card named the
Company and the work hours that a driver was permit-
ted to work. According to Hearn, 90 percent of his busi-
ness during a normal day was a result of the Company's
dispatch service, and 85 percent of his daily business
would be charge business with the Company.
Charles Mueller, formerly a driver for Respondent,
credibly testified that he drove his own taxicab and also
subleased about three or four vehicles to other drivers.
Mueller recalled.
Most of the time I got drivers that were already
cleared by the Company. I never put anybody in
from scratch myself. You had to make out an appli-
cation and get the police report and a "C" taxicab
driver's license, and then the driver was avail-
able. On a new driver, the Company would
take and send him out with either a supervisor, if
there was a supervisor available, or with another
experienced driver, to teach him how to operate the
radio and taking in the orders and servicing the
orders and things like that
Mueller claimed that none of the people driving his vehi-
cles could sublease them "
" In addition, Mueller recalled that one of his drivers, Zachery
Druckerman, called him and told him that he had been fired by the com-
pany for trying to collect charges directly from charge customers
Mueller told Druckerman that his recourse was not with Mueller, it was
with the Union
James Matthews, president and business representative for the Union,
credibly recalled how he spoke with officials of Respondent about
Druckerman, and Company Officer Robert Wolf told Matthews that
Druckerman could go to work so long as he did not bother the custom-
ers anymore He would be reinstated Matthews similarly recalled that
Company Officer Barbara Wolf apprised him that driver Leroy Moore
was fired because he continually answered trips, and was not in the vicin-
ity of the trips He was lying about his location Moore was then driving
a vehicle owned by another individual
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Sequence of Events Culminating in the Filing
of Unfair Labor Practice Charges by the Union
The pertinent sequence of events culminating in the
Union's filing unfair labor practice charges with the
Board in this case was also stipulated by the parties. (See
Jt. Exh. 1, pp. 6-10.) Thus, during January 1982, as
noted above, the Union authorized a strike against Re-
spondent "for slow payment of charge business reim-
bursements." This strike, the subject of an injunction
proceeding instituted by the Company, lasted about 2
weeks, ending on January 26, 1982. (Ibid.)
Also, during early January 1982, the Board of Public
Service of the City of St. Louis (the governmental unit
responsible for issuing taxicab permits for operation in
the city of St. Louis), informed Respondent that the
Company would be required to take out insurance poli-
cies on all taxicabs operating under city permits. Previ-
ously, the Company had operated on a surety bond in
the approximate amounts of $30,000 to $40,000 for all of
the city permits. In addition, during early December and
January, the St. Louis County Department of Public
Works notified the Company that it would require insur-
ance on each taxicab operating in St. Louis County. (St.
Louis City is independent of and is not located in St.
Louis County.) (Ibid.)
Respondent, as further stipulated, attempted to secure
insurance, and was notified by its insurance agent that
the cost of insuring a taxicab in the city of St. Louis was
approximately $143 per month per cab and the cost of
insuring a taxicab in the county of St. Louis was approxi-
mately $83 per month per cab. The Company, however,
was in dire financial straits and, rather than close down,
determined to pass along the cost of the Insurance to the
drivers. (Ibid.)
A meeting was held at the Union's hall on January 26,
1982. There, Respondent, through its attorney, informed
the union representatives and others that the Company
was forced to pass along the cost of the insurance to the
drivers. The union representatives informed the Compa-
ny that the Union would not agree to the insurance cost
passthrough. In addition, at this same meeting, union rep-
resentatives informed company representatives that, due
to nonpayment of substantial charge reimbursements, the
5-percent discount of charge reimbursements to the driv-
ers would be discontinued and, further, the monthly op-
erating fee (proration) would be reduced for the month
of February to $363 from $450. Respondent's attorney, in
turn, informed the union representatives that the Compa-
ny would not agree to the reduction of the proration or
the discontinuance of the 5-percent discount. (Ibid.)
About January 27 or 28, 1982, Company Vice Presi-
dent Robert Wolf spoke by telephone to the Union's
president, and gave tum the approximate cost of the in-
surance, which he quoted at $143 for the city of St.
Louis. The Union's president then informed Robert Wolf
that he would submit the proposal calling for the drivers
to pay the insurance cost to the union membership.
Later, about January 29, the Union's president tele-
phoned Wolf to inform Wolf that the drivers had reject-
ed the proposed insurance passthrough. The Union's
president also informed Wolf that the proration would be
reduced from $450 per month to $362 per month.
(Ibid.)12
About this same time, Robert Wolf met with various
drivers to discuss operating problems and, in response to
a question as to whether the Company would be operat-
ing after February 2, 1982, Wolf informed the drivers
that the city of St. Louis and St Louis County were re-
quiring insurance; that the Company could not afford to
pay the insuance; and that drivers would have to pay the
insurance amount in addition to their monthly proration.
The amount discussed with the drivers was $113, an av-
erage of the city and county insurance costs. Wolf fur-
ther stated that, in lieu of paying $113 per month for in-
surance, drivers could pay Respondent $5000 for a me-
dallion (i.e., city permit or buy shares in the Respond-
ent's business in that amount, and pay a monthly operat-
ing fee equal to approximately one-half the monthly pro-
ration fee. (Ibid.)
Thereafter, commencing on January 31, 1982, all driv-
ers paying a monthly proration were told by Respondent
that an amount for insurance of $113 would be required
in addition to the $450 monthly proration These drivers
were told that the $113 had to be paid prior to February
5, 1982. After that date, Respondent did not give dis-
patches to any driver that had not paid both amounts.
(Ibid.)12
C. Discussion
The protective provisions of the National Labor Rela-
tions Act extend only to employees, and not to any indi-
vidual having the status of an independent contractor.
The question, whether an individual is an employee or
an independent contractor, is to be resolved by applica-
tion of general principles of agency law. See NLRB v.
United Insurance Co., 390 U.S. 254 (1968). And, as the
Supreme Court explained in NLRB v. United Insurance
Co., supra at 258:
[T]here is no shorthand formula or magic phrase
that can be applied to find the answer, but all of the
incidents of the relationship must be assessed and
weighed with no one factor being decisive.
" Also on January 29, as further stipulated, there was a meeting at the
Respondent's offices attended by the Union's president, the Union's attor-
ney, the Respondent's president Robert Wolf, and the Respondent's attor-
ney There, the Union suggested that the drivers collect their charges di-
rectly from customers This was rejected by Respondent (INA )
" It was stipulated that earlier, commencing on January 8, 1982, Re-
spondent had also increased the daily shift fee charged to non-owner
drivers from $35 per day to $39 per day (for 24-hour shifts) (Ibid )
Further, Kenilworth Insurance Company, the proposed insurer of the
taxicabs in St Louis, had notified the St Louis Board of Public Service
on February 2, 1982, that It would not accept Insurance coverage for Re-
spondent's taxicabs in the city of St Louis On February 16, the Board of
Public Service voted to revoke all permits for Respondent for various
reasons, including the failure to provide insurance on the amount of taxi-
cabs operating By its order, all taxicabs were to be off the streets of the
city of Si Louis and out of operation by noon, February 17, 1982 There-
after, about March 1, Respondent eliminated all insurance payment re-
quirements to the drivers Subsequently, the monthly proration required
by Respondent did not exceed $450 per month The daily operating fee
was reduced at the same time to $35 per day (Ibid )
CHECKER CAB CO 1499
Restatement 2d, Agency § 220 (2), lists the following in-
dicia, among others, to be considered in assessing this re-
lationship: the extent of control which may be exercised
over the details of the work, whether or not the individ-
ual is engaged in a distinct business, the skills required;
the supplier of the instrumentalities, tools, and place of
work; the term of employment; the method of payments;
whether the work is part of the regular business of the
alleged employer; and whether the parties believe they
are creating the relationship of master and servant
In the Instant case, the record makes clear that the
parties, for some 16 or more years, regarded the relation-
ship created here to be that of employer-employee. In
November 1966, the National Labor Relations Board,
following an election by "consent agreement," certified
the Union as the exclusive bargaining agent for all driv-
ers and owner-drivers operating under the franchise of
Checker Cab Company, the predecessor of Respondent
The Union thereupon represented the unit personnel, en-
tering into a series of collective-bargaining contracts
with Respondent The current contract, summarized at
length, supra, runs from August 1, 1981, through May
31, 1983 Although counsel for Respondent generally as-
serts that "the agreement itself was a business arrange-
ment rather than a collective-bargaining agreement," a
review of the contract clauses and attached working
rules makes it plain that the document purports to be and
is in fact a collective-bargaining contract Indeed, in
early 1982, Respondent filed a suit in the Eastern District
of Missouri, seeking, inter aim., to enjoin the Union and
its striking and picketing drivers from violating the no-
strike provisions of their "collective bargaining agree-
ments" under Section 301 of the Labor Management Re-
lations Act. The current contract, in addition, provides
that any differences between the trustees with respect to
the jointly administered health and welfare fund shall be
resolved in accordance with the provisions of Section
302(c)(5)(B) of the Labor Management Relations Act.
And, earlier, during this ongoing employer-employee re-
lationship, the National Labor Relations Board deter-
mined that Respondent had violated Section 8(a)(1) and
(3) of the National Labor Relations Act by terminating
one of its driver employees. See Checker Cab Go, 175
NLRB 20 (1969)
In sum, the parties have regarded and treated the unit
personnel here as employees, the parties have called the
unit personnel employees, and the parties have resorted
to, relied on, and complied with the protective provi-
sions of the Labor Management Relations Act, in con-
trolling this employer-employee relationship. Significant-
ly, counsel for Respondent, in his brief, makes no at-
tempt to cite here some new facts or recently discovered
evidence which would change this 16-year-old relation-
ship. Instead, as demonstrated below, Respondent, for
economic reasons, has attempted to unilaterally abrogate,
ignore, and modify the terms and conditions of employ-
ment expressly provided in the 1981-1983 collective-bar-
gaining agreement of the parties, as implemented by
them
On the significant issue of Respondent's right and exer-
cise of control over its taxicab drivers in the perform-
ance of their daily work, this record also demonstrates
that the Company possesses such power and in fact exer-
cises close supervision over the drivers. Thus, for exam-
ple, although some 71 of the 101 taxicabs involved here
are owned by individuals, all 101 taxicabs are painted
with the Company's name, telephone number, identifica-
tion number, and colors. An individual owner may
remove his cab once a year for a period not to exceed 30
days to take a vacation without being required to paint
his cab out provided the cab is parked on the company
parking lot An individual who wants to sell his taxicab
must post a notice giving first priority for purchase to
the non-owner driver with the greatest amount of senior-
ity with the Company. An individual may sublease his
taxicab; however, sublessees must complete a written ap-
plication provided by and submitted to Respondent.
Such an applicant, if not already employed by the Com-
pany, must fill out an application, get a police report or
check, and be instructed by a company supervisor, if
available, or experienced driver. In addition, some 80 to
90 percent of these individual drivers utilize and rely on
the Company-supplied two-way radios and dispatch
system. Further, about 80 to 85 percent of their business
is so-called charge business, for which drivers are subse-
quently reimbursed by the Company. As noted, drivers
are not permitted by the Company to request payment of
charge fares directly from Respondent's charge custom-
ers. And, drivers must obtain from the Company weekly
permits, which generally provide, inter alia, whether the
driver may work during the day or night period. Driv-
ers, while operating under such permits, may not be dis-
patched by other taxicab companies.
The Company also has a detailed set of working rules
which further enables it to closely supervise and control
its drivers' daily activities. These rules are admittedly ap-
plied evenhandedly to both owner and non-owner driv-
ers. And, as illustrated herein, violation of these working
rules has resulted in reprimands, discipline, and the firing
of unit drivers Thus, for example, owner and non-owner
drivers must report all accidents to the Company imme-
diately; must not leave the scene of accidents and must
wait for the company supervisor; are subject to discipli-
nary action by the Company if the Company determines
that an accident is his fault; are required to comply with
a strict dress code; are required to keep their vehicles in
good working order and clean inside and out; are re-
quired to pick up work tickets from the Company each
Monday; and are subject to discharge for violating 1 of
some 16 enumerated violations pertaining to, inter alia,
their conduct and behavior at work. Owner and non-
owner drivers are required to endeavor to respond to a
certain percent of total daily orders from the Company.
Further, not coming to the office when called, failing to
take a job assignment after responding to a dispatcher's
call, and not following a supervisor's orders make such
an owner or non-owner driver subject to immediate dis-
missal Likewise, owner and non-owner drivers may not
take their vehicles beyond a 150-mile limit without
proper authorization from the Company.
Respondent, in its collective-bargaining agreement, as
implemented, agreed to provide liability coverage to pro-
tect drivers and owners of every cab and driver was re-
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired to make any payment for, or in connection with,
such liability coverage. Respondent also agreed to con-
tribute to the Union's health and welfare fund, thus pro-
viding sickness and hospital benefits for employees in the
unit. And, while it is true that some 71 of the 101 vehi-
cles involved here are owned by individuals, and drivers
do not receive compensation or wages in the form of a
paycheck like a factory worker, it is also true that the
use of all such vehicles is substantially controlled by the
Company; over 80 percent of the moneys received by
the owner and non-owner drivers is from company dis-
patches; and an equally significant percent is charge busi-
ness for which the owner and non-owner drivers cannot
be paid directly, but must get their money from the
Company.
In sum, I find here that this record shows an employ-
er-employee relationship between the unit personnel and
the Company It is true, as counsel for Respondent con-
tends, there are present here some criteria which, if
viewed separately, suggest an independent contractor
status. However, on balance, and assessed in the context
of this full record, the scale, in my view, substantially
tips toward the employer-employee relationship.' 4
The record establishes here, and the parties do not se-
riously dispute, that the Company unilaterally deter-
mined to pass along to its unit drivers the insurance
costs, and related operating fees, contrary to the express
terms and conditions of employment contained in the
1981-1983 agreement of the parties, as implemented. The
Union would not agree to the Company's proposed
changes. Representatives of the Company later met pri-
vately with unit drivers, advised them that they would
have to pay the insurance costs and related operating
charges, and offered them, inter aim, an opportunity to
purchase an interest in the Employer's business. Under
the circumstances, Respondent unilaterally modified
terms and conditions of employment of the unit drivers,
as contained in the 1981-1983 agreement, in violation of
Section 8(a)(5) and (1) of the Act. Further, Respondent,
at the same time, attempted to circumvent the Union as
bargaining agent for the unit employees, also in deroga-
tion of its statutory bargaining obligation. And, it is set-
tled, economic needs of an employer will not, as here,
privilege such attempts to unilaterally modify or abro-
gate the terms and conditions of employment set forth in
the parties' collective-bargaining agreement. See general-
ly Inland Cities, Inc., 241 NLRB 374 (1979), enfd. mem.
618 F.2d 117 (9th Cir. 1980); Oak Cliff-Golman Baking
Co., 207 NLRB 1063 (1973), enfd. 505 F.2d 1302 (5th
Cir. 1974). Cf. Fibreboard Corp v. NLRB, 379 U S. 203
(1964); and First National Maintenance Corp v. NLRB,
452 U.S. 666 (1981)
Respondent unilaterally implemented these changes in
unit employees' insurance costs and operating fees. Unit
drivers, who did not comply with these midterm changes
in the terms and conditions of their 1981-1983 collective-
" The General Counsel and counsel for Respondent cite, inter aim,
City Cab Co of Orlando v NLRB, 628 F 2d 261 (DC Cu. 1980), and Air
Transit v NLRB, 679 F 2d 1095 (14th Cir 1982), seeking to derive sup-
port from the treatment of the various indima found present or lacking in
those and related cases Again, each of these cases rests on its own spe-
cial facts and no one fact is decisive in striking the required balance
bargaining agreement, were summarily denied dispatch
services from the Employer. In short, they were, in
effect, terminated because of their insistence that the
terms of their collective-bargaining agreement be fol-
lowed, in clear violation of Section 8(a)(1) and (3) of the
Act
In sum, I find and conclude that Respondent, by the
foregoing conduct, has violated Section 8(a)(1), (3), and
(5) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. The Union is a labor organization as alleged.
3. The following employees of Respondent constitute
an appropriate collective-bargaining unit, as alleged:
All owner and non-owner taxicab drivers employed
by Respondent, excluding dispatchers, service sta-
tion employees, guards, office clerical, professional
and managerial employees, and supervisors as de-
fined in the Act.
4 At all times material, the Union has been and is the
duly designated collective-bargaining agent of the unit
employees, as alleged.
5 Respondent violated Section 8(a)(5) and (1) of the
Act by announcing, contrary to the terms of its 1981-
1983 collective-bargaining agreement, an increase in, and
subsequently increasing, the amount of operating fees
which must be paid by certain of the unit taxicab drivers
as a condition of their employment, by advising unit em-
ployees that, contrary to the terms of its 1981-1983 col-
lective-bargaining agreement, they would have to pay
certain costs for insurance; and by bypassing the Union
and dealing directly with the unit employees.
6. Respondent violated Section 8(a)(1) and (3) of the
Act by failing and refusing to issue dispatches to unit
employees because they have engaged in union activities,
or other concerted activities for their mutual aid and
protection, including their insistence that the terms of
their 1981-1983 collective-bargaining agreement be fol-
lowed.
7. The violations found above affect commerce as al-
leged
REMEDY
Respondent will be directed to cease and desist from
engaging in the unfair labor practices found above, or
like or related conduct, and to post the attached notice.
It has been found that Respondent violated Section
8(a)(5) and (1) by, contrary to the terms of its 1981-1983
agreement, unilaterally modifying certain terms and con-
ditions of employment, as provided therein. Respondent
will therefore be directed to, on request, bargain in good
faith with the Union as the duly designated bargaining
agent of the unit employees; to abide by the terms and
conditions as contained in the 1981-1983 agreement; and
to make whole the unit employees for all monetary
losses sustained as a result of its unlawful unilateral
CHECKER CAB CO

1501
action, with interest, to be determined and computed as
provided below.
In addition, it has been determined that Respondent
violated Section 8(a)(1) and (3) of the Act by, in effect,
terminating the unit employees because they insisted that
the terms and conditions of the 1981-1983 agreement be
followed. Respondent will therefore be directed to offer
such unit employees immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority and other rights and privileges previously en-
joyed, and to make them whole for any loss of earnings
sustained as a result of this unlawful conduct, by paying
them a sum of money equal to that which they normally
would have earned from the date of this discrimination
to the date of Respondent's offer of reinstatement, less
net earnings during such period, with backpay computed
as provided in F. W Woolworth Co., 90 NLRB 289
(1950), and with interest computed as provided in Florida
Steel Corp., 231 NLRB 651 (1977).15
[Recommended Order omitted from publication]
15 See generally Isis Plumbing Go, 138 NLRB 716 (1962) Respondent
will preserve and make available to the Board, on request, all payroll
records, social security payment records, timecards, personnel records
and reports, and all other records necessary and useful to determine com-
pliance with and the amount of backpay due under the terms of this deci-
sion