Red and White Airway Cab Co.

National Labor Relations Board - Board Decisions

Mar 9, 1959

123 N.L.R.B. 83 (N.L.R.B. 1959)

RED AND WHITE AIRWAY CAB COMPANY 83
Cab Services , Inc., d/b/a Red and White Airway Cab Company 1
and Chauffeurs and Associated Workers Union , Petitioner.
Case No. 18-RC-3779. March 9, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Clarence A. Meter,.
hearing officer. The hearing officer's rulings made at the hearing:
are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board.
has delegated its powers in connection with this case to a three
member panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in the taxicab business in Minne-
apolis, Minnesota, operating about 48 cabs, 38 of which are owned
by the individual owner-drivers who are the shareholders in Cab
Services, Inc. ; the remaining cabs are owned by the corporation
itself or by the Red and White Airway Taxicab Association. The
Employer's annual gross volume of business is in excess of $700,000.
The gas and oil used in the Employer's operations, to the value
of $60,000 per year, is purchased from sources which obtain it
from outside Minnesota. The Intervenor contends that the Board
should not assert jurisdiction here, because the contract between the
Intervenor and the Employer, which the former urges as a bar,
was entered into on the assumption that the rules of interpretation
of the Minnesota Department of Labor would be applicable. In
view of the Board's decision to apply its revised jurisdictional
standards to all pending cases,2 and as the Employer's volume of
business exceeds the $500,000 minimum prescribed for retail enter-
prises, including taxicab companies, we find that it will effectuate
the policies of the Act to assert jurisdiction herein.3
2. The labor organizations involved claim to represent certain
employees of the Employer.4
3. The Intervenor contends that a current contract between it
and the Employer is a bar to this petition. The contract, effective
from February 15, 1958, to February 15, 1960, is a supplement to
an existing "master agreement" between the parties. The Petitioner
' Cab Services, Inc., is a Minnesota corporation, all of whose shareholders are cab
owners who are also associated together in an unincorporated group known as Red and
White Airway Taxicab Association . All parties agree that the operations of the corpora-
tion ` and the association are closely integrated, and that they constitute a single Employer.
2 Siemens Mailing Service, 122 NLRB 81.
S Carolina Supplies and Cement Co., 122 NLRB 88, footnote 5.
d Minneapolis Taxicab Drivers , Livery Chauffeurs, Ambulance Drivers and Helpers.
Union, Local 958, I .B.T.C.W. & H. of A., referred to herein as the Intervenor , was per-
mitted to intervene on the basis of its contractual relationship with the Employer.
123 NLRB No. 19.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserts that the contract is not a bar because the master agreement
contains an invalid union-security clause. The provision in question
is contained in section I, paragraph A, of the master agreement,
and reads as follows :
A. The Union shall be the sole representative of all employees
covered by this agreement in collective bargaining with the Em-
ployer. There shall be no discrimination against any employee
because of Union affiliation. The Employer agrees that after a
Forty (40) day qualifying period, all new employees shall become
members of the Union. In the event that the Union notifies the
Employer that any of the drivers are not members in good stand-
ing with the Union, it shall be the duty of the Employer to
discharge any such driver.
The contract fails to grant the requisite 30-day grace period dur-
ing which nonmember incumbent employees need not join the Inter-
venor. It thereby fails to conform to Section 8(a) (3) of the Act,
and may not, therefore, serve as a bar to this petition.° We do
not, in these circumstances, pass on other grounds urged by the
Petitioner for finding the contract not a bar.
4. The parties agree that all taxicab drivers, servicemen, dis-
patchers, and order takers employed by the Company constitute
an appropriate unit. The Petitioner and Intervenor would also
include, while the Employer would exclude, the owner-drivers.
Red and White Airway Taxicab Association is an organization
comprised of 31 taxicab drivers, each of whom owns at least 1 cab.
The Association itself owns eight cabs. Each member of the Asso-
ciation owns a share of stock in Cab Services, Inc., a corporation
which owns a building and land on which are located a gasoline
station, quarters for drivers, business offices, and a dispatching
room. Cab Services provides its shareholders with bookkeeping,
dispatching and managerial services, legal counsel, representation
in labor matters, and facilities for purchasing oil and gasoline.
Cab Services also owns two cabs. It employs regular, extra, and
part-time, or extra-extra, drivers for those shifts when the owner-
drivers are not driving, and for all shifts on the cabs owned by
itself. and the Association. Owners may work longer shifts than
other drivers and are not required to work as regularly. They
drive only their own cabs. Extra and part-time drivers may be
assigned by the Employer to drive any . cab available on their
shift. The owners keep the receipts earned from their driving, and
share the receipts of other drivers of their cabs on a predetermined
basis. The owners pay a fixed weekly amount for the general serv-
ices rendered by Cab Services. The letter withholds from the
5 Keystone Coat, Apron & Towel Sn[pply Company, 121 NLRB 880.
RED AND WHITE AIRWAY CAB COMPANY 85
receipts due them any amounts necessary to pay social security
and income taxes and workmen's compensation and prepares their
tax returns on an individual owner basis. Although the owners
have been members of the Intervenor, they have not been included
in the coverage of the contract between the Intervenor and the
Employer.
At yearly shareholder meetings, a board of directors is selected
from among the owner-drivers to direct the corporation's affairs
and supervise the paid manager who conducts the Employer's rou-
tine business. The manager is usually an owner-driver but one
who does no driving while serving in that capacity. The manager
hires, fires, and disciplines all drivers other than the owners. The
latters' breaches of discipline are referred to the board for decision.
Only the shareholders may force an owner to leave the association.
The shareholders also reserve to themselves the right to decide
disputes between the manager and the board of directors.
Although stock ownership does not alone preclude the inclusion
of employee stockholders in a collective-bargaining unit with other
employees 6 the Board has excluded them when their stockholding
interest gives them an effective voice in the formulation and deter-
mination of corporate policy.7 In the instant case, the owner-drivers
are the sole members and stockholders of the Employer, and have
an effective voice in determining policy through their selection of
the directors who are, themselves, required to be owner-drivers. The
stockholders also receive preferential treatment because of their
status as owner-drivers, in selection of shifts, and through their
freedom from the manager's exercise of disciplinary action against
the other drivers. This divergence of proprietary and bargaining
interest between stockholders and other drivers requires that the
former be excluded from a bargaining unit of employees. Under
these circumstances, we shall exclude the owner-drivers from the
unit hereinafter found appropriate.
Accordingly, we find that the following employees constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act :
All taxicab drivers, cab servicemen, dispatchers, and order takers
of the Employer at its Minneapolis, Minnesota, establishment, in-
cluding extra-extra drivers, but excluding owner-drivers, office
clerical employees, managerial employees, guards, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
9 Everett Plywood & Door Corporation, 105 NLRB 17.
7 Brookings Plywood Corporation, 98 NLRB 794, 798; of. Coastal Plywood & Timber
Company, 102 NLRB 300.