Friendly Cab Co., Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 10, 2005

32-CA-021613 (N.L.R.B. Feb. 10, 2005)

JD(SF)–09–05
Oakland, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

FRIENDLY CAB COMPANY, INC.,
METRO-TAXICAB COMPANY, INC.,
CALIFORNIA CAB COMPANY, GRKWSS ENTERPRISE, INC.,
METRO-YELLOW TAXICAB COMPANY AND
GREYLINE CAB CO., a Single Employer

and Case: 32-CA-21613-1

EAST BAY TAXI DRIVERS ASSOCIATION

and

BROTHERHOOD OF TEAMSTERS, AUTO TRUCK
DRIVERS, LINE DRIVERS, CAR HAULERS AND
HELPERS, LOCAL NO. 70,
Intervenor

Jo Ellen Marcotte, Esq. Oakland, CA,
for the General Counsel.

Jerrold C. Schaeffer, Esq,. (Hanson Bridgett
Marcus Vlahos & Rudy), San Francisco, CA,
for the Respondent.

Duane B. Beeson, Esq., (Beeson, Tayer& Bodine),
Oakland, CA, for the Intervenor.

DECISION

Statement of the Case
JAY R. POLLACK, Administrative Law Judge: I heard this case in trial at Oakland,
California, on January 27, 2005. On September 8, 2004, East Bay Taxi Drivers Association (the
Union) filed the charge in Case 32-CA-21613-1 alleging that Friendly Cab Company, Inc., Metro-
Taxicab Company, Inc., California Cab Company, GRKWSS Enterprise, Inc., Metro-Yellow
Taxicab Company and Greyline Cab Co., (herein collectively called Respondent) committed certain
violations of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (29 U.S.C.
Section 151 et seq., herein called the Act). On November 23, 2004, the Regional Director for
Region 32 of the National Labor Relations Board issued a Complaint and Notice of Hearing against
Respondent, alleging that Respondent violated Section 8(a)(5) and (1) of the Act. Respondent filed
a timely answer to the complaint, denying all wrongdoing.

On May 18, 2004, in Case 32-RC-5060, the Union was certified as the exclusive collective-
bargaining representative of Respondent’s full-time and regular part-time taxicab drivers at its 48-
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49 East 12th Street, Oakland, California facility.1 This certification was based on an election held on
August 13, 2002. The delay between the representation election and the certification was caused
by the Respondent’s Request for Review of the Regional Director’s Decision and Direction of
Election. The Regional Director held that the taxicab drivers were statutory employees and
ordered a representational election. Respondent filed a timely Request for Review contending that
the taxicab drivers were independent contractors and not statutory employees. On November 15,
2002, the Board granted the Respondent’s Request for Review of the Regional Director’s Decision.
On April 30, 2004, the Board issued its Decision on Review and Order affirming the finding that the
taxicab drivers at issue were employees within the meaning of Section 2(13) of the Act. See
Friendly Cab Co., 341 NLRB No. 103 (2004). On August 13, 2004, the Board issued an
unpublished order in Case 32-RC-5060 correcting the name of the Respondent. Thereafter, on
August 17, 2004, the Regional Director issued a corrected Certification of Representative.

The complaint alleges that the Union is the certified collective-bargaining representative of
the unit of Respondent’s taxicab drivers and that Respondent violated Section 8(a)(5) and (1) by
failing and refusing to bargain with the Union on request. Respondent admits that it has refused to
bargain with the Union but contends that the Board’s certification is erroneous. Respondent
contends that the taxicab drivers at issue herein are independent contractors and therefore, not
statutory employees. As stated above, in its Decision on Review and Order of April 30, 2004, the
Board considered this argument and found the taxicab drivers to be employees within the meaning
of Section 2(3) of the Act. Friendly Cab, supra, 341 NLRB No. 103 (2004).

In the instant case, Respondent has refused to bargain with the Union in order to seek
judicial review of the Board’s April 30, 2004, Decision and Order of Certification. Section
102.67(f) of the Board's Rules and Regulations precludes relitigating "in any related
subsequent unfair labor practice proceeding, any issue which was, or could have been, raised
in the representation proceeding." The Board has stated that "[s]ubsequent unfair labor
practice cases 'related' to prior representation proceedings include not only Section 8(a)(5)
refusal-to-bargain cases where there is a test of certification, but also, in appropriate
circumstances, unfair labor practice cases that arise under other sections of the Act." Hafadai
Beach Hotel, 321 NLRB 116 (1996). In the instant case, the independent contractor issue
raised by the Respondent was litigated in the prior representation proceeding.2 I therefore find
that the Respondent has not raised any representation issue that is properly litigable in this
unfair labor practice proceeding. See, Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Accordingly, I am bound by the Board’s findings in the representation case.

The parties have been afforded full opportunity to appear3, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs4. Upon the entire record, I make the
following:
1 Official notice is taken of the "record" in the representation proceeding as defined in the
Board's Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).
2 Furthermore, Respondent did not offer any newly discovered and previously unavailable
evidence, nor does Respondent allege any special circumstances that would require the Board
to re-examine the decision made in the representation proceeding.
3 Teamsters Local 70 made a motion to intervene on the ground that the Union intends, after
negotiation with Respondent, to merge into Teamsters Local 70. The motion to intervene was
granted.
4 None of the parties presented witnesses. Only documentary evidence was presented.
The parties waived the filing of post-hearing briefs.
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Findings of Fact and Conclusions
I. Jurisdiction

Respondent is engaged in the operation of a taxicab service for the general public. The
Board found, in the underlying representation case, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2)(6) and (7) of the Act.

In the underlying representation case, the Board found that the Union is a labor organization within
the meaning of Section 2(5) of the Act.

II. Facts

As stated earlier, on May 18, 2004, the Union was certified as the exclusive collective-
bargaining representative of Respondent’s taxicab drivers in Oakland, California.

On May 24, 2004, the Union’s attorney wrote the Respondent’s attorney requesting that
the parties meet and negotiate regarding the terms of employment of the taxicab drivers. On
June 9, Respondent’s attorney responded contending that the drivers were independent
contractors and that the Respondent “will not participate in this collective-bargaining process.”
Respondent’s attorney further stated, “We intend to seek judicial review of the Board decision
finding the drivers employees under the Act.” Thereafter, on July 27, 2004, the Union’s attorney
again wrote Respondent’s attorney and requested that Respondent meet and negotiate with
regard to the terms and conditions of employment of the drivers. On August 16, 2004, the
secretary-treasurer of Teamsters Local 70 wrote Respondent stating that [the Union] asked us
to assist them in negotiating a collective-bargaining agreement with [Respondent]. The
secretary-treasurer requested that Respondent begin to negotiate a collective-bargaining
agreement. On August 19, Respondent’s attorney replied, “It is improper to meet at this time.”
With this letter, Respondent’s attorney enclosed a copy of his June 9 letter stating that
Respondent intended to seek judicial review of the Board’s finding that the drivers were
employees and not independent contractors.

III. Conclusions

A stated above, Respondent has refused to bargain with the Union in order to seek judicial
review of the Board’s April 30, 2004, Decision and Order and the subsequent Certification of
Representative. The independent contractor issue raised by the Respondent was litigated in
the prior representation proceeding. Furthermore, Respondent did not offer any newly
discovered and previously unavailable evidence, nor does Respondent allege any special
circumstances that would require the Board to re-examine the decision made in the
representation proceeding. Accordingly, the record shows that Respondent failed and refused
to bargain collectively with the exclusive-bargaining representative of its taxicab drivers in
violation of Section 8(a)(1) and (5) of the Act.

Conclusions of Law

1. Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

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3. The Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act, by failing and refusing on
and after August 19, 2004, to meet and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate unit.

Remedy

Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, I shall
recommend that it be ordered to cease-and-desist, to meet and bargain on request with the
Union, and, if an understanding is reached, to embody the understanding in a signed
agreement.

To ensure that the employees are accorded the services of their selected bargaining
agent for the period provided by the law, the Board shall construe the initial period of the
certification as beginning the date the Respondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962) ; Lamar Hotel, 140 NLRB 226, 229 (1962),
enfd. 328 F.2d 600 (5th Cir.1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).

Upon the foregoing findings of fact and conclusions of law, and upon the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 5

ORDER

Respondent, Friendly Cab Company, Inc., Metro-Taxicab Company, Inc., California Cab
Company, GRKWSS Enterprise, Inc., Metro-Yellow Taxicab Company and Greyline Cab Co., a
single employer, its officers, agents, successors and assigns shall:

1. Cease and desist from:

a. Failing and refusing to meet and bargain with East Bay Taxi Drivers Association
as the exclusive bargaining representative of the employees in the bargaining
unit.

b. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

a. On request, meet and bargain with the Union as the exclusive representative of
the employees in the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time taxicab drivers employed by Respondent at
its 4849 East 12th Street, Oakland, California facility; excluding all other
5 All motions inconsistent with this recommended order are hereby denied. In the event no
exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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employees, office clerical employees, dispatchers, mechanics, guards, and
supervisors as defined in the Act.

b. Within 14 days after service by the Region, post at its Facilities in Oakland,
California, copies of the attached notice marked "Appendix." 6 Copies of the
notice, on forms provided by the Regional Director for Region 32, after being
signed by the Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent at any time
since August 19, 2004.

c. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

Dated: February 10, 2005, San Francisco, California.

_____________________
Jay R. Pollack
Administrative Law Judge

6 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read
"POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."

APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to bargain with East Bay Taxi Drivers Association as the exclusive representative
of the employees in the bargaining unit.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on
terms and conditions of employment for our employees in the appropriate bargaining unit:

All full-time and regular part-time taxicab drivers employed by Respondent at its 4849 E. 12th
Street, Oakland, California facility; excluding all other employees, office clerical employees,
dispatchers, mechanics, guards, and supervisors as defined in the Act.

Friendly Cab Company, Inc, Metro-Taxicab Company,
Inc., California Cab company, GRKWSS Enterprise, Inc.,
Metro-Yellow Taxicab Company and Greyline Cab Co., a
single employer
(Employer)

Date By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
1301 Clay Street, Federal Building, Room 300N, Oakland, CA 94612-5211
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
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. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (510) 637-3270.