Red Top Cab & Baggage Co.,

National Labor Relations Board - Board Decisions

Feb 3, 1964

145 N.L.R.B. 1433 (N.L.R.B. 1964)

RED TOP CAB & BAGGAGE CO., ETC . 1433
MEMBER LEEDOM, concurring :
I concur only in the result.6
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Election.
0 See my dissent in Martino 's Complete Home Furnishings, 145 NLRB 604.
Red Top Cab & Baggage Co., Yellow Cab Company of Miami,
Checker Cab Operators , Inc., B & S Taxi Corp., Yellow Cab
System and John A. Kurtz. Case No. 12-CA-2380. February 3,
1964
DECISION AND ORDER
On August 22, 1963, Trial Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in and were engaging in unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Intermediate Re-
port. The Trial Examiner also found that Respondents had not en-
gaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, Re-
spondents filed exceptions to the Intermediate Report and a support-
ing brief.'
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 [Chairman McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings,2 conclusions, and recommendations of
the Trial Examiner with the following additions :
We agree with the Trial Examiner that Kurtz's concerted activities
in protesting against alleged favoritism in dispatching at the airport,
which adversely affected his earnings and those of his fellow cab-
drivers, were protected by Section 7 of the Act.
We also agree with the Trial Examiner that Respondent corpora-
tions operating as members of the Yellow Cab System were joint em-
'Respondents requested oral argument . This request is hereby denied because the record,
the exceptions , and the brief adequately present the issues and the positions of the parties.
2 The Intermediate Report incorrectly states that the upper ramp at the airport is not
covered by Respondent Red Top's exclusive franchise and that the airport is in Miami.
The record shows that the franchise covers the upper and lower ramps and that the air-
port is not within Miami city limits but within Dade County. We hereby correct these
inadvertent errors.
145 NLRB No. 138.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployers of Kurtz and of other drivers similarly situated and are there-
fore jointly liable for the discharges of Kurtz brought about by their
agents. Moreover, even assuming that Respondent corporations were
not employers of Kurtz in the common law sense, their relationship to
the owners of the cabs and the immediate employers of Kurtz was so
close and they had such control over the employment relationship be-
tween drivers and owners as to make them liable as employers under
the Act for the discharges of Kurtz which their agents caused.3 The
evidence is clear that all the owners in the Yellow Cab System who em-
ployed Kurtz were satisfied with his services and wanted to retain
him. But they nevertheless discharged him under economic pressure
from top officials and supervisors in the Yellow Cab System, including
Norton Segal, Stanley Segal, and Jerry Nudelman, who had insisted
upon such action as a reprisal measure against Kurtz for having pro-
tested against alleged unfairness in dispatching. Accordingly, we
find, as did the Trial Examiner, that by terminating or causing the
termination of Kurtz's employment for the reason stated, Respond-
ents interfered with, restrained, and coerced him and other drivers in
the exercise of rights guaranteed in Section 7 of the Act, thereby violat-
ing Section 8(a) (1).
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification noted below.4
3 Operating Engineers Local Union No. 3 of the International Union of Operating
Engineers, AFL-CIO ( St Maurice, Helkamp & Musser) v. N L R B , 266 F 2d 905, 909
(C.A.D.C ), cert. denied 361 U S. 834 ; Hurd Corporation, 143 NLRB 306 ; Austin Company,
101 NLRB 1257.
Member Leedom agrees that the Respondent corporations violated Section 8 ( a) (1) of
the Act. However , in reaching the conclusion that the Respondent corporations were re-
sponsible for the discharges of Kurtz, he relies solely on the fact that they were Instru-
mental in bringing about such discharges and participated therein. Austin Company,
supra. Member Leedom therefore finds it unnecessary to decide whether an employer-
employee relationship existed between the Respondent corporations and Kurtz or between
the Respondent corporations and the owner- drivers See his position in Hurd Corporation,
supra, footnote 2.
'The Recommended Order is hereby amended by substituting for the first paragraph
therein the following:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondents , Red Top Cab & Baggage Co., Yellow Cab Company of Miami,
Checker Cab Operators , Inc, B & S Taxi Corp, Yellow Cab System, their officers,
agents , successors , and assigns , shall:
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case, with all parties represented, was heard before Trial Examiner A.
Norman Somers in Miami, Florida, on October 15 to 18, 1962, and April 3 to 5,
1963, inclusive, on complaint of the General Counsel and answer of Respondents.'
The issue is whether Respondents violated Section 8(a) (3) and (1) of the Act in
terminating John A. Kurtz as a driver within Respondent Yellow Cab System.
I John Kurtz filed a charge on June 18 and an amended charge on August 23 , 1962. The
General Counsel issued his complaint on August 31, 1962.
RED TOP CAB & BAGGAGE CO., ETC. 1435
The parties presented oral argument, and the General Counsel and Respondents
filed briefs, all duly considered.
On the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Of the five Respondents, Yellow Cab System is not a corporation and the other
four are: they are Florida corporations owned and controlled by a family of a
father and three sons called "the Segals." Together, they are part of a coordinated
taxi operation in Miami, termed the "Yellow Cab System," with a central dispatch
office in downtown Miami, in Dade County. The custodian of the Segals' interest
in this taxi operation is Respondent Red Top Cab & Baggage Co. In its formal
aspects, Red Top Cab is the full corporate parent of Respondent B & S Taxi Corp.,
and the interlocking affiliate of the other two corporate Respondents (infra, foot-
notes 9 and 13); in its practical aspects, it embodies the Segals' interest in the taxi
operation of Respondent system across the board. Red Top Cab has for years
had an exclusive franchise from the Dade County Port Authority to furnish taxi
service at the Miami International Airport (hereafter called the airport)? It
furnishes that service through cabs operating under permits from the city of
Miami, title to which is distributed among the corporate affiliates within Respondent
Yellow Cab System, 161 being owned by the 3 lesser corporate Respondents in
this case.
The Segals also own and control Red Top Sedan Service, Inc., a Florida corpora-
tion (not a respondent here), which has a separate exclusive franchise from the
same port authority for rendering limousine service at the airport. The System
and all the corporations within it, whatever the service, are located at 1000 Lejeune
Road, Miami, near the airport (the cab operation also having the central dispatch
office at the location in downtown Miami, previously mentioned).
The revenue of the cabs operating under the 161 permits of the 3 corporate
Respondents exceeds $1,000,000 a year. It is found and concluded that Respondent
corporations, operating as Respondent Yellow Cab System, are engaged in inter-
state commerce within the meaning of the Act and that it would effectuate the
policies of the Act to assert jurisdiction herein. Cf. City Transportation Company,
131 NLRB 814, enfd. 303 F. 2d 299 (C.A. 5), cert. denied 371 U.S. 920.
H. THE ORGANIZATION INVOLVED
International Taxi Drivers and Owners Association (called the Association) is
a Florida nonprofit corporation, membership in which is open to drivers of cabs,
owners or nonowners, in Dade County. The purpose recited in its certificate of
incorporation is "to promote the general welfare and better business opportunities
for [its members]." Kurtz and various owner-drivers testified that it had been
formed specifically to help improve their "working conditions" at the airport, and
to get their "fair share of the business" there.
Respondents deny that the Association is a labor organization within the mean-
ing of Section 2(5) of the Act. For reasons later stated (infra, footnote 36) we
shall not reach that issue.
M. THE UNFAIR LABOR PRACTICE
A. The issue
This case arises out of Kurtz' concerted activities in connection with a dispute
over the allocation of patronage as between limousines and cabs at the airport.
This, in turn, was an outgrowth of the change initiated in mid-1959, in respect ,to
Respondents' taxi operation. Before the change, both the limousine and the taxi
drivers were concededly employees. Under the change, the limousine operation
remained as before, but the cab operation was conducted under an "owner-operator"
arrangement, whose corporate complexities will engage our brow-knitting efforts
later. The point here is that after that occurred many cabdrivers thought the
starters at the airport had abandoned their former impartiality and were now favor-
ing limousines over cabs in steering patrons. Among these was John A. Kurtz,
who drove for an "owner-operator" on a commission basis. He sent petitions to
the public authorities in an effort to rectify the grievance and voiced it openly at
a meeting held by the port authority. He also obtained authorizations from owner
2 It has similar exclusive franchises at two railroad stations and the Southern Bell Tele-
phone Building in Miami.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and nonowner drivers in the System to "represent" them, and circulated a petition
for removal of a particular starter.
During these activities , Respondents declared Kurtz to be "undesirable" as a driver
within the Respondent System, and successively required five "owner -operators" to
dispense with his services under threat of being themselves ousted from the System
if they resisted. At the same time, Respondents barred Kurtz from the use of all
centralized facilities of the System.
Apart from disputing that they terminated Kurtz because of the above activities,
Respondents contend that even if they had, they are immune under the Act on
the ground there was no employment relation between them and Kurtz and also
that his activities were not protected by the Act.
B. The Segals' Yellow Cab System and its composition up to mid-1959
The Respondent System , as comprised in 1959 , was made up of preexisting cor-
porations bought up by the Segals . Years before , they started in the taxi business
with Yellow Cab Co . of Miami (now one of the three lesser corporate Respondents).
Later, they bought out other taxi corporations in Miami, acquiring in each instance,
aside from the stock and equipment , the all -important taxi permits of each com-
pany, as issued by the city of Miami (such a permit being the indispensable basis
for a cab's capacity to operate, i.e., pick up passengers, in that City) .3 The Segals
made their most significant addition in 1949 when they bought up Red Top Cab,
with its exclusive taxi franchise at the airport, and from the same owners, they
acquired also Red Top Sedan, which as stated , has the exclusive limousine franchise
there.4
The Segals amalgamated the management of all their corporations under a single
administration, which they called the Yellow Cab System. They continued the sep-
arate corporate entities (including the taxi corporations' title to the permits), but the
acknowledged employer of the entire personnel, whatever the service (including even
a car rental service), was the System. There was, as there still is, one address and
one telephone number for the System; there was also one set of officers and directors
for every corporation in it, one general manager, and one personnel manager. The
vehicles bearing the "Yellow Cab" designations have been the taxicabs, they being
additionally identified by a uniform color scheme of yellow and black. The limou-
sines have a different color scheme, and the designation appearing on them has
always been the corporate name-Red Top Sedan Service.5
C. The change to "owner-operator" arrangement
1. Introductory: the cab permits involved
As A. S. Costanzo, the lawyer who prepared the papers embodying the transition,
aptly put it, "It's a complicated setup."
In 1959, the Segals, while continuing their interest in the limousine revenues, shed
their direct interest in the revenues of the cab operation. However, they retained
control over both operations, over the limousine as before, and over that aspect of
the cab operation which is capable of being used in discharging Red Top Cab's
commitment to the port authority to furnish taxi service at the airport. This last can
be done only through cabs operating under Miami permits, because the airport is in
Miami. As stated previously (supra, footnote 4), the corporations operating under
permits outside Miami were sold outright-stock, equipment, and permits (subject
to the customary pledge as collateral for the purchase price). These did not re-
main in and are no longer a part of Respondent Yellow Cab System .6
8 Although a permit from any municipality in Dade County allows taking a passenger to
any point in the county, the crucial item is where a cab 'can pick up passengers. A cab can
only do so within the domain of an incorporated subdivision of Dade County (such as, for
example , Miami, Coral Gables, or Miami Beach ) under a taxi permit from that particular
municipality.
4 Before the change in 1959 , the Segals acquired and included in their Yellow Cab Sys-
tem taxi corporations operating outside Miami under permits from those respective munici-
palities (Miami Beach, Coral Gables, supra, footnote 3). These have been sold outright
to others , and are no longer part of Respondent Yellow System.
5 There now also appears the name , "Miami Beach Air Transport Service, Inc " We are
advised by counsel that whatever that entity's separate function within the limousine
operation for any other purpose or in any other context, for purpose of this case, it is to
be deemed the same as and interchangeable with Red Top Sedan.
6 Some still use the "Yellow Cab" designation , but in their case it is a trade name used
only for goodwill. They are not part of Respondent Yellow Cab System or within the
controls or disciplines of the System.
RED TOP CAB & BAGGAGE CO., ETC. 1437
Distributed among the taxi corporations within Respondent System were ap-
parently 202 taxi permits issued by the city of Miami. John S. McKenna, general
manager of the Yellow Cab System before and after the change,7 testified that the
opportunity to share in the profits of the cab operation was extended only to our
employees." Thereafter the use of 161 of these permits was accorded to Respond-
ents' rank-and-file cabdrivers under the standard "agreement and conditional sales
agreement" next to be described.8
2. The standard "Agreement and Conditional Sales Contract" used in the
"owner-operator" arrangement
a. The parties thereto
Involved in the arrangement covered by the "agreement and conditional sale con-
tract" are the 161 permits, title to which is distributed among the 3 corporate Re-
spondents other than Red Top Cab. The contract is in standard form consisting
of 27 articles (and a 5-paragraph "whereas" preamble) spread over 12 pages of extra
legal size. Each separate contract is between the specific "Operator" on the one
hand, and on the other, the given one of the three corporate Respondents having
title to the permit (or permits) involved, and the Segals or Red Top Cab as "owner"
of that corporation .9
b. The subject matter of the agreement and the financial obligations of the
operator under it
Under the agreement the "Operator," for each permit involved, buys from the
Segals one share of "Class A" stock in the given corporation named in the contract
(supra, footnote 9). The balance after the downpayment is payable in installments
of $17.50 a week, with the share of stock pledged as security. In return, the desig-
nated corporation gives the operator the use of the permit, an Ohmer taximeter, and
a two-way radio. Additionally, the operator agrees to pay to the given corporation a
sum "imposed to defray the costs of the corporate operating expenses ... as deter-
mined and voted by a majority of the stockholders of the Corporation." (Paragraph
6.) As carried out, the operator pays Red Top Cab a sum, currently $35 a week,
toward defraying the expenses of the cab operation of Respondent System. These
expenses include, first, Red Top Cab's payment to the port authority of $100,000 a
year for the taxi franchise; and secondly, the portion of the salaries of the limousine
corporation personnel prorated as a service to the cab operationle They include
also the cost of operating the central radio dispatch, the telephone services and clerical
expenses of the centralized operation, and the premium paid by Red Top Cab on an
overall policy of public liability insurance for all cabs operating within the System.
The operator furnishes the cab; he buys it on his own, or, as is usually the case,
through the System, but the corporation designated in the contract retains title in the
cab, first because of the overall public liability insurance policy referred to, and
secondly, as security for the operator's performance of his various obligations under
the contract (default in which results in forfeiture of his equity, unless he has paid
up for the cab in full). He also buys his own gasoline and secures and pays for
the cab's maintenance. He retains the actual fares collected, whether by him or
P He was a carryover from the management of the two Red Top corporations before the
Segals acquired them.
s The residue of 42 ultimately went to a newly formed corporation called Big Ten Taxi
Corporation (not a respondent). Its composition is of an altogether different stamp, and
will be separately treated in due course.
0In the Checker and Yellow of Miami contracts (General Counsel's Exhibits Nos. 4
and 6), the named "owner" is "the Segals" In that of B & S (General Counsel's Exhibit
No 5) it is Red Top Cab. The interest thereby denoted is in all instances the same :
Yellow of Miami and Checker were preexisting corporations, and the Segals own them in
their names ; B & S was newly formed for purpose of the "owner-operator" arrangement
here involved, and the Segals own it through Red Top Cab
10 These embrace the salaries of the starters and head starter at the airport, the salary
of Jerome Nudelman, personnel manager formerly of both services and now (avowedly)
only of the limousine service ; of McKenna, general manager of the System for both services
and vice president of all Respondent corporations and of Red Top Sedan ; and James
Andrews, safety and insurance director of the System for both services. The record does
not show whether this exhausts the list or includes other interlocking officers, such as
William Segal and Victor Behar, president and secretary, respectively, of all Respondent
corporations and of Red Top Sedan.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whoever drives for him, subject to such arrangement as the two make with each
other.11
3. The control over the taxi operator retained by the Segals (Red Top Cab)
a. The Segals' power as the majority stockholders
For each share of class A thus sold to the operator in the designated corpora-
tion, the Segals (Red Top Cab, supra, footnote 9) retain two shares of class B stock.
While only class A is "participating," both classes are "voting" stocks (paragraph 1).
The Segals thus outnumber the "owner-operators" in each corporation on a 2-to-i
basis, and in respect to each designated corporation, are the "majority of the stock-
holders of the corporation," who fix the weekly assessment that the operator must
pay to defray the overall cost of the System's cab operation. Additionally (under
paragraph 10) the class B stockholders elect four, and the class A holders three,
of the seven directors of the given corporation. Under paragraph 13, the opera-
tor is bound by the "uniform rules and regulations adopted by the board of directors
of the corporation" named in the contract.12 The four majority directors of each
of the three designated corporations are the four sole directors of Red Top Cab,
the interlocking being shown in the marginal note below.13
u The arrangements will vary with the individual. If Kurtz' case is typical, it may be
on the basis of half of what he collects above the expense for gas, or on a "lessee" basis,
whereby he retains a percentage subject however to the guaranty of a minimum amount
for the owner as lessor, or if he drives for a large "fleet" owner, like Moishe Zilber, it
may be on a smaller percentage, with no allowance for gas expense, and the fleet owner
even deducting for social security and tax withholding.
19 These rules and regulations are therein described (ibid) as being "for the purpose of
assisting in the proper operation of the taxicab business in [Miami and Dade County],
covering among other things, but without limitation, rules and regulations relating to the
dispatch and traffic control of cabs, the use of taxi stands, the servicing of transportation
accounts, display of advertising, and maintenance and care of the Operator's taxicab."
18 The directors and officers of the corporate respondents are:
DIRECTORS
Yellow of Miami Checker (Elected B & S (Elected by
Red Top Cab (Elected by class by class B) class B)
B)
1----------------- Wm Segal________
Wm Segal________ Wm Segal________ Win Segal
2----------------- Norton Segal______
Norton Segal______ Norton Segal______ Norton Segal.
3----------------- Stanley Segal_____
Stanley Segal_____ Stanley Segal_____ Stanley Segal.
4----------------- John S. McKenna-
John S McKenna_ John S McKenna_ John S McKenna.
(Elected by class A) (Elected by class A) (Elected by class A)
5----------------- --------------------
Moishe Zilber_____ Sophia____________ Jack Eisenberg.
6----------------- --------------------
Bertear___________ _________Sweedler---------- Ted Ungerman.
7----------------- --------------------
Henry Storck_____ Friedman---------an ---- Gilchrist.
OFFICERS
Red Top Cab Yellow of Miami Checker B&S
President-------- Wm. Segal________ Win. Segal _____-__ Wm Segal________ Wm Segal.
Vice president____ John S. McKenna- Jack Eisenberg____ M Zilber_________ Sophia.
Morris Segal*_____
Treasurer-------- Stanley Segal_____ Norton Segal______ Norton Segal______ Norton Segal.
Secretary________ Victor Behar______ Victor Behar______ Victor Behar______ Victor Behar.
* Father of the Segals Though sharing stock ownership with the sons, so far as the record shows he
is operationally a dormant figure.
RED TOP CAB & BAGGAGE CO., ETC. 1439
Respondent claims the above power of the Segals is qualified by two other pro-
visions. Under paragraph 7, if the operator has paid up in full, and at least 10
years have elapsed, he may demand title to the permit. But if he does so, he must
surrender his share of stock for cancellation, which means that he has eliminated
himself from Respondent System and has thus given up the very features that
accounted for the price he paid. Under paragraph 8, if all class A holders of
any given corporation shall have paid up for their shares in stock in full, the
Segals will give up their class B stock and relinquish their offices and directorships
in that corporation. But to avail themselves of the franchise rights belonging to
Red Top Cab and of its centralized facilities, they must be part of the System and
submit to its controls. Transcending this is that each item thus mentioned projects
into a remote future, not affecting the power that exists in the here and now.
b. The "Policy Board" as the governing body of Respondent System
The present governing body of the System's taxi operation consists of all the
directors in combination. This composite group is called the "Policy Board."
General Manager McKenna testified its function is the same as those of the prior
four directors for all the corporations across-the-board; indeed, that this body is
alternatively (and more often) called the "Board of Directors." The Segals'
governing role in each corporation considered separately is reflected in the decisive
majority of their directorships in all of them considered compositely (supra, foot-
note 13).
But according to McKenna and Nudelman, the vote at the meetings of the policy
board is only by individuals and thus the nine minority directors are really a
majority, since despite all the directorships occupied by the Segals, as individuals
they are four in number, in contrast with "the 9." This is a rather singular re-
nunciation of power, never confirmed by the Segals (none of whom testified) or by
any writing. Indeed, none is claimed to exist. The only instrument defining the
rights of the Segals (or Red Top Cab) and the operator is the contract. Under
paragraph 13, the "uniform rules and regulations" by which the operator is bound
are those adopted by the directors of the given one of the three corporations in
each instance. Under paragraphs 20 and 21, these are enforceable through the
power of the given corporation to declare the operator in "default" and the addi-
tional powers of the Segals therein provided to recapture the share of stock sold
and forfeit the right to use the permit.
The minority group of nine, as may be assumed, perform a useful administra-
tive function. As persons with experience in the field, their ideas of sound prac-
tices in a unified cab operation on such matters as courtesy to the public, and
fair dealings of cabdrivers with each other (such as forbidding "stealing a passenger,"
or "shooting the radio," etc.) would naturally accord with that of the Segals, and
in matters of that character there would be no necessity for the Segals, indeed it
would be more serviceable to them not, to take the initiative. In the matter of
administration of the rules, there is a "trial committee" of three or four members,
chosen by the policy board from among "the 9," which sits as a "court" to try
charges of infractions of rules or regulations by cabdrivers and impose a sentence.
That, too, is an administrative convenience to the Segals.
But all of the above can only be on the basis of an implied delegation from the
Segals to "the 9" on an ad hoc basis subject to what the Segals deem consistent with
their own interest . Such rules or regulations as inherently make sense in a unified
operation and present no question of conflict with their own interest, would expect-
ably not be opposed by the Segals, and though they will acquiesce in it, the rule is
still one "adopted" by them. The same applies to disciplinary action . On matters
in which their interest is involved, there is nothing in the existing instruments of
power which requires the Segals to subordinate their interest to any interest of the
operators, singly or in combination; and nothing in the record supports any intima-
tion that this has occurred. Such instances as appear ,in the record show the reverse.
c. The additional man on the "Policy Board"; Jerome Nudelman
Presiding at the meetings of the policy board is General Manager McKenna.
Present also is Jerome Nudelman. As earlier stated (supra, footnote 10), he is
"personnel manager formerly of both services and now (avowedly) only of the lim-
ousine service." The parenthesized avowal came from himself. He is concededly
still the direct superior of Arthur Catterlin, the head starter at the airport, and is
generally in charge of the System's airport operation. As such, his salary, though
paid by Red Top Sedan, is among those prorated as an expense also of the cab op-
eration (supra, footnote 10).
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since his managerial position in the System is second only to that of McKenna,
his presence at all the meetings would be understandable if frankly based on its reach-
ing into both services in the same manner as McKenna's. But Nudelman disavowed
this. He claimed that the managerial authority he had theretofore had over both
operations is now confined to the limousine operation. On that basis, Nudelman's
regular presence at the meetings of the policy board concerned with the cab opera-
tion would be incomprehensible, except, as he claimed, that he is there as an addi-
tional member of the policy board representing the interests of Big Ten Taxi Corp.,
on the same basis as "the 9" previously discussed.
That corporation, a nonrespondent, has earlier been identified as (apart from Red
Top Cab) the fourth corporate member of the Respondent System's cab operation
(supra, footnote 8), and as the holder of the residual 41 permits remaining after
the 161 disposed of in the owner-operator arrangement with the erstwhile avowed
rank-and-file employees. Though it has no class A-class B division of stock, we were
told that it too is entitled to designate three members on the policy board, and we
were told it had only one such-Nudelman, who is its president and one of its four
directors-a strange renunciation of rights in a body where the count, as claimed,
is by individuals.
The details developed at the resumed hearing showed a composition and structure
of a distinctly different character from the three corporate Respondents whose permits
are under the "owner-operator" arrangement. Its officers and directors are all,
like Nudelman, salaried officials of the limousine corporation, whose services are
chargeable pro rata to the cab operation. Its vice president is James Andrews, in-
surance and safety director of the System; 14 its treasurer is Head Starter Catterlin,
and its secretary is Victor Behar, the secretary of all the other corporations (supra,
footnote 13) and who, Catterhn explained, "has been taking care of the books of the
Company [the Yellow Cab System] for a long time."
Witnesses for Respondents testified Big Ten's purpose was to enable valued su-
pervisors too to "share in the profits" of the cab operation, that a new corporation
was formed with 100 shares of stock distributed equally among 10 persons (which
accounts for the name), and that each paid $1,000 for his 10 shares. The six stock-
holders other than the four officers and directors previously mentioned, include Nor-
man Segal, a college student and son of one of the Segals, a Mr. Woodbury, who
had been in charge of checking cabs at the central dispatch office, and four whose
presence is hardly explainable on the basis previously described.15
Catterlin testified to a detachment from Big Ten's actual operations which would
seem typical of the rest, except Woodbury.is The one stockholder directly concerned
in Big Ten's actual operations is Woodbury, who manages the corps of cabdrivers
operating under the 41 permits allotted to Big Ten. (This is done directly out of
the System's downtown dispatch office, where its cabs are garaged and maintained,
as all the System's cabs had been before the "owner-operator" change.) Assuming
Big Ten were an operation genuinely divorced from the Segals, one would normally
expect Woodbury to be the representative of Big Ten's interest on the policy board,
and he is neither that nor an officer or director. The probabilities, confirmed by
Nudelman's role in the events here involved, persuasively point to his exercising the
same functions across the board as before-in the limousine service in name and
in fact, in the cab operation in fact, though not in name.
d. The powers of control and supervision as in fact exerted
As previously stated, the franchise agreement requires Red Top Cab, as the "Car-
rier," to provide continuous taxi service at the airport and to exert detailed supervision
14 He is also paid by the insurance company which issues the overall liability policy.
15 They are a Mr. Voetto, who drove a limousine for 25 years, a Mr. Nitschke, who drove
a cab but is now in an unrelated business enterprise In Miami Beach, and a Mr. Silver
and a Mrs. Owsley, about whom Catterlin, who was the source of all this information,
could not enlighten us.
1e Though Catterlin is the treasurer, he testified he never actually performed as such, the
designation being more or less "honorary." Nudelman testified the $1,000 for the 10 shares
of stock paid by each stockholder was really a downpayment on the taxi permits sold by
the Segals to Big Ten (at $7,500 each)-subject to a pledge to secure payment. Catterlin
testified he has put in nothing beyond the $1,000 for the stock, presumably paid in July
1961, when the Big Ten was formed. (At that time it was given only 22 permits, the
additional 19 were transferred to it well over a year afterward from a Segal-owned
corporation now apparently defunct-lxreen Cab & Baggage ) Neither has he taken any-
thing out except "just enough to pay my Income tax on what the corporation shows a
profit on."
RED TOP CAB & BAGGAGE CO., ETC. 1441
over "its drivers." The agreement requires it to "instruct each of its drivers as to,
the method and procedure used at the Airport" (article III(e) ), to "maintain its
vehicles and other equipment in clean, first class, operable condition, and maintain
efficient and courteous service to the public," and to "control the conduct, demeanor,
and appearance of its officers, employees, agents, and representatives" (article IX).
[Emphasis supplied.] The degree of control and supervision as actually exerted
exceeds what even the franchise requires.
Control over who may drive a cab within the System: All drivers must pass a
preliminary fitness test at the central dispatch office of the System and receive their
general instructions there. The "owner-operators" are a preapproved group (since
they are all erstwhile employees under the old setup). Anyone driving for an
"owner-operator," as did Kurtz, must likewise pass the same test. Should he there-
after be declared "undesirable" by the System, the "owner-operator" may not retain
him, or himself be declared "in default." Exemplifying this were the five for whom
Kurtz last drove. The last, Louis J. Wine, was notified by letter that he was "in
default" of his contract and subject to its seizure provisions. At the same time all
owners were sent a notice as follows:
Effective immediately, owners will be required to clear prospective drivers,
of their taxicab with the radio room to determine whether the driver is eligible.
to drive.
Failure on the part of the owner to comply with the above regulation will'
result in severe disciplinary action since it will constitute a direct violation of
the contract existing between the owner and the corporation.
Transferability of interest: Except where the intended transferee is a preapprovedi
person who already has signed a contract with one of the three corporations, the
"owner-operator" may not sell or transfer his interest to another without the
written consent of "the Corporation." John Shaw, the first of the persons forced
to drop Kurtz, was then not yet an "owner-operator" but a "lessee" from one
(Sam Ruban), with an option to purchase. He was told by one the Segals and
Jerome Nudelman that if he did not dismiss Kurtz, the assignment of the contract
from Ruban to him would not be "approved," which would have meant a for-
feiture of his equity.
Control over where to operate cab: After the owner-operator arrangement was
instituted, Respondents limited the access of the cabs to alternate days (on an odd,
number-even number basis ). At first this applied merely to the area which is
the subject of the exclusive franchise of Red Top Cab-the lower ramp, where.
the limousines are also located and where the starters direct traffic. The upper
ramp is not within the franchise and is available at all times to all Miami cab-
drivers. Thus, it would be available that way to Respondents' drivers too except
for the fact that the limitation which Respondents had previously put into effect
for the lower ramp they have since put into effect for the upper ramp as well.
Manner of operating: General Manager McKenna testified the board of directors,
or policy board, supervises the actual operations of cabs, by owners and non-
owners alike , in respect to such matters as courteous treatment of passengers, poor
radio coverage, uncovered cab stands, the appearance of the drivers, cleanliness of
the cabs, the kind of advertising that the cabs may carry, etc. This is indeed ex-
pressly encompassed by the "uniform rules and regulations" provision of the basic
contract (supra, footnote 12). In respect to radio coverage, all cabdrivers are
subject to the instructions on the mimeographed "Yellow Cab System Radio Pro-
cedure," issued by the central radio and dispatch office, listing the various "radio,
call points" identifying the cab stands, and stating:
The stands to be called for any order will be determined by the Dispatcher
according to the procedures approved by the Board of Directors and are not
subject to challenge or discussion on the air. Any question concerning these
procedures should be directed to the Board.
Centralized personnel system; comparison with preceding system: Respondents
maintain in the dispatch office the same personnel cards for all cabdrivers, owners
and nonowners, as had been there prior to the change, and with the same kind of
entries. Previously, this was part of Nudelman's functions. Now it is done by
Robert Staton, Jr., Nudelman's former assistant, who testified that thought he is
now paid on a "contract" rather than salary basis, the personnel cards and records
are handled in the same way as before. And the entries are premised on a rela-
tionship hardly different from before. Thus, an entry for an employee made before
change to "owner-operators," read: "Separated-Liar-Sandbagger-Agitator-No
rehire under any circumstances." That for Kurtz, dated May 29, 1962, reads:
734-070--64-vol. 145-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Discharged by Board-No Rehire-Agitator." That for a driver severed even
later (Frank W. Leonard) reads: "Fired by Board-11/28/62 Chronic Offender,
Sharpshooting, Stealing Jobs, etc. NO REHIRE." The entries for three "owners,"
made since the new arrangement, are also of the kind one normally finds for an
employee.17
Limitation on right to abstain from driving: Respondents retain substantial con-
trol over the drivers' choice as to whether to refrain from driving. In June and
August 1961, certain owner-drivers engaged in work stoppages at the airport in
protest over the manner in which the starters were steering patrons at the airport.
After the August stoppage, William Segal, as president of Red Top Cab, wrote
them they were barred from using the airport, calling attention to Red Top Cab's
obligation under the franchise to provide taxi service. While the letter would sug-
gest that their naked refusal to operate their cabs was considered a violation of
the rules, it was not altogether clear whether this was the position taken or whether
the claimed offense lay in that they had hindered traffic at the airport. Respondents
clarified this at the resumed hearing. During the summation, counsel stated Re-
spondents interpreted the contract as one imposing a "no strike" obligation on the
drivers, on the ground that to engage in one would interfere with Red Top Cab's
own commitment to provide continuous taxi service at the airport.
Discipline and sanctions: For violation of a rule or regulation of the System as
laid down and interpreted by Respondents, a nonowner is subject to discharge out-
right. As to an owner, his obligation to comply therewith is one of the "terms,
conditions, or stipulations" of the agreement, for violation of which "the Corpora-
tion" may declare the Operator "in default," and if not corrected within the time
therein specified, the entire unpaid balance becomes "immediately due and pay-
able," and "in addition thereto" [emphasis supplied] the Segals and the Corporation
may vest themselves with title to the share of class A stock, which eliminates him
from Respondent System.18 These provisions (paragraphs 13, 20, 21) were spe-
cifically invoked against Louis J. Wine to force him to dispense with Kurtz.
The claimed need for the supervision as exerted: Nudelman volunteered the fol-
lowing statement in justification of the degree of supervision here shown. He stated:
You give the cab drivers a free hand on the streets without any supervision,
you have to tie your hands down your pockets. You have to have rules and
regulations and you have to supervise them yourself or also you won't have
any business left.
An operational necessity for the supervision all the more confirms the crucial
fact of its presence. And in thus protecting the drivers against themselves, as
Nudelman suggests, Respondents have effectively continued the cabdrivers in their
prior role, rather than vested them with the independence of entrepreneurs, as is
here claimed.
D. The activities of Kurtz and his termination in the System because of them
1. Background- the grievance over allocation of patronage as between cabs
and limousines at the airport preceding Kurtz' activities
As earlier stated, after the "owner-operator" arrangement took effect, numerous
drivers felt they were not being given their "fair share of the business" at the
airport by the starters. The place where the System's limousines and cabs operate,
under the respective exclusive franchises for each, is the lower ramp. Lined up
at the curb of the concourse are the limousines. The cabs are in a parking area
or "storage lot" out of immediate sight of patrons. There they wait for a call or
signal from the starters, and respond in order of their lineup.
As many cabdrivers saw it, the starters no longer asked the patron what kind
of transportation he wanted, but inquired only where he was going and sent him
to a limousine; and they called for a cab only if the patron volunteered a preference
"'They read:
Robert J. Titelman, Date employed Feb 10, 1959, Remarks: "Owner-operator as
of 6-1-59 J N [standing for Jerry Nudelman] N. G Troublemaker"
Thomas R Soukup, Employed Sept 24, 1959, Remarks: "Independent owner
5/10/60, Sold cab 7/15/62 JNW Agitator"
Levi Lloyd Weaver, Employed Feb. 10, 1960, Remarks: "Owner #17, OK. JG
7/21/61. Sold cab 5/62 no good-troublemaker-agitator."
le They also retain the cab, except when the operator has paid for it in full, in which
event he is entitled to have it along with the radio and meter. However, without the
taxi permit, he is hardly in a position to ply his trade with it.
RED TOP CAB & BAGGAGE CO., ETC. 1443
for one, or after all limousines had been loaded. An additional complaint was
that the patron's access to a cab, even when one was called, was hampered by the
fact that the cab was permitted to pull up only alongside the "bumper to bumper"
lineup of limousines, instead of the curb.
Dominic Bruno, one of the "owner-operators," testified, without contradiction,
that the income situation for cabs got "tighter and tighter," while the limousines
tripled in number. Numerous owners complained in vain first to Head Starter
Catterlin, and then to the board of directors. As stated earlier, in June and in
August 1961, some of the "owners" staged a work stoppage of a few hours each
in protest against that situation-the one in August resulting in William Segal's
earlier mentioned letter as president of Red Top Cab, notifying three of them that
they were indefinitely barred from the airport.19
2. Preliminary resume of Kurtz' employment in the System
Although Kurtz was then driving a cab within the System, he did not participate
in the stoppages. His own activities began in 1962, when he was driving for
John Shaw.
Kurtz was admitted to work within the Respondent System in January 1961, when,
on becoming a licensed chauffeur, he applied for a job at Respondent System's
central radio and dispatch office. After passing the System's test for vision and alert-
ness, he received from Safety Insurance Director Andrews the instruction concern-
ing safe driving and the radio dispatch procedure, previously mentioned. He was
then referred to Moishe Zilber, a "fleet" owner in Respondent System, for whom he
drove 8 days, then hired out to a single "owner-operator," then to Robert Sweedler
another "fleet" owner, from whom he "leased" a cab, and then in September 1961 to
John Shaw on the 50 percent of the gross basis, previously mentioned (supra,
footnote 11).
3. Kurtz' activities
a. Before the petitions
Aside from protesting individually to starters about the claimed unfairness in the
steering of patrons, Kurtz did not act on the grievance until early 1962. In the
early fall of 1961, he along with others signed up with a local of the Teamsters
Union. So far as the record shows, its only activity was a request of Respondent
System for recognition as bargaining agent for a unit of "drivers, lessees and owner
drivers," and on being refused, it faded out of the picture.
b. The court order preceding Kurtz' appeal to the authorities
Kurtz, on March 4, 1962, sent the Governor of the State, the commissioners of
Dade County, and the director of the port authority, a petition with some 240 signa-
tures asking for redress of the grievance in respect to claimed favoritism by the
starters at the airport. A copy of that petition is reproduced as Appendix A of this
report. As there noted, it also complains of failure to enforce an order of the
Florida Supreme Court directing "Red Top Limousine to go terminal to terminal "
The order, as Kurtz saw it, was calculated to prevent the limousines from duplicating
one of the major inducements of taxi service-that of delivery and pickup to and
from any point, instead of specified terminals, to which limousines are normally
limited. That subject, so far as appears, was not the underlying grievance of Kurtz
and his fellows, the order of the court being in fact the culmination of litigation
brought by taxi corporations outside Respondent System 20 But the court order
(which was issued on November 1, 1961) apparently furnished the occasion for
Kurtz taking to the public authorities his and his fellow drivers' grievance, and since
this ruling too tended to mitigate the inroads of limousines on the income of cab-
19 This penalty was mitigated pursuant to settlement of a State court suit brought
separately by each owner. In evidence here as typical of the rest are the complaint and
settlement decree in Eisenberg v. Checker Cab Co., et al (the other defendants being the
Segals individually and Red Top Cab). The decree enjoined further debarment of the
"owners" from the airport, on condition that they not "interfere" with the exclusive con-
cession of the defendants or violate the latter's "uniform rules and regulations," they
being specifically enjoined from so doing. (Respondent's Exhibit No. 6.)
20 Their interest in the subject would be in respect to transportation of patrons to the
airport. Those with Miami permits would be interested also in transportation of patrons
from the airport to the extent that there are any at the upper ramp (the area that is not
covered by exclusive franchise).
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers, he was interested in its enforcement as well. At the hearing before us,
Respondents debated with Kurtz the validity of his interpretation of the court de-
cision. My suggestion that perhaps there would be more point in producing a
copy of it never bore fruit. However, thanks to the facilities of the National Report-
ing Service we can take notice of it, and shall briefly describe its nature.
As appears from the reported decision,21 the court had under challenge a certificate
of the Florida Railroad & Public Utilities Commission authorizing Red Top Sedan to
furnish limousine transportation between the Miami International Airport and "all
points" in Dade County. The State commission had granted the certificate "as a
matter of right and without a hearing," under a provision of the State statute man-
dating it to do so when the commissioners of a county owning a given airport have
themselves already granted the carrier the requested authorization. Article I of the
subsisting franchise to Red Top Sedan from the port authority (an arm of the Dade
County Commission, infra, footnote 23), authorizes it to furnish limousine service
between the airport and "all points in Dade County." But the court thought this
to be contrary to the applicable provision of the statute, which empowers the county
to authorize limousine transportation only to "designated points," instead of "all
points" (emphasis the court's), and ordered the State commission's certificate
quashed.
c. Activities after the court order
Kurtz wrote asking about the status of the matter, and on January 30, 1962, the
State commission answered that it had quashed the certificate and that "Red Top
Sedan Service, Inc., now holds no authority from this Commission to operate [there-
under] and they have been so notified." Kurtz then attended a hearing, held before
the State commission on February 7, 1962, where the subject was the application
of Miami Beach Air Transport Service (Red Top Sedan's affiliate, supra, footnote 5)
for renewal of a temporary carrier's certificate on the disputed "all points" basis.
Kurtz played no role in it, except "to observe"-the "protestants" of record being
the Miami transit supervisor, two Miami transit lines, and certain taxi companies out-
side Respondent System.22
The activities of Kurtz in concert with his fellow drivers were directed not to the
State commission but to the county authorities, i.e., the metro commissioners (the
popular term for the commissioners of Metropolitan Dade County, which embraces
Miami and other municipalities), and the port authority, in the person of its di-
rector, Allen Stewart.23 As appears from his March 4 petition (Appendix A here-
of), Kurtz sent it after he wrote Port Director Stewart and got no reply. Also as
there appears, the basic grievance was the action of the starters at the airport, his
statement being that "we know that the limousines are necessary and we want them
to continue to do business, but in a leagel [sic] way. All we want is our full share
of the work."
On March 6, Alex S. Gordon, chairman of the metro, sent Kurtz a "cordially
yours" acknowledgment, with a copy to Port Director Stewart, stating:
I am concerned about the situation as outlined in your letter, and I am asking
the Port Director to submit a report to the Commission with respect to the com-
plaint concerning the starters and working conditions at the airport involving
taxicabs generally.
On April 1, Kurtz prepared and distributed among cabdrivers throughout Dade
County, both in and outside Respondent System, a letter for mailing to the metro
commissioners.24 It states that despite the letter of Chairman Gordon (whose
courtesy in answering Kurtz compares invidiously with Stewart's silence), "as of
this date [there is] no report." It claims further that Port Director Stewart had sent
2i Phil's Yellow Taxi Co, Inc., of Miami Springs, et at. v. Carter, et al., as members of
Florida Railroad & Public Utilities Commission, 134 So. 2d 230 (Fla.).
22 In July 1962, the State commission granted the renewal on the "all points" basis, as
requested (Respondent's Exhibit No. 12). We are informed that this too is now in court
litigation.
2s The metro is comprised of 13 commissioners, chosen by popular election Under a
"home rule" amendment , it has been ceded certain powers over Dade County by the State
legislature, including that over transportation at the airport. In connection with this last,
it "puts on its other hat" as the port authority, but the actual administration of that
function is in the port director, an appointee of the metro (We are indebted for this in-
formation, including the "other hat" metaphor, to counsel for Respondents, whose learned'
exposition on the subject was accepted without challenge )
24 He also posted it in the "storage lot" at the airport for cabs.
RED TOP CAB & BAGGAGE CO., ETC. 1445
a copy of his March petition to "Mr. Segal, President of Red l op Limousines," and
from then on the signers of the petition "have been subject to abuse, humiliation
and loss of business," being ticketed by "the Metro Police at the airport" for such
items as "sweeping sand out of cab," "cleaning cab on airport property," "putting
water in radiator," and "grease leaking out of transmission ." It concludes , "We pray
that someone on the Metro Commission will have the respect to listen to us,"
and that "if the men who run Metro cannot help us, then we will be forced to ask the
Hornorable [ sic] Governor Farris Bryant , to help us."
Port Director Stewart then arranged with Kurtz for a meeting at his quarters
to air the cabdrivers ' grievances concerning the limousine service. The meeting, held
about April 17, was attended by 25 to 30 people. Present apart from the port
director and certain port officials , were Personnel Manager Nudelman, and "fleet"
cabowners , Moishe Zilber and Robert Sweedler. There Kurtz presented a petition
with several hundred signatures reading:
We, the signers of this petition request that the Metro Commission enforce
the Florida Supreme Court Order, that Red Top Limousine , operating in Dade
County, will go terminal to terminal as ordered.
Kurtz, in addition , voiced the complaint of favoritism on the part of the starters
substantially along the lines of his petitions of March 4 and April 1 , and the port
director promised to investigate the matter.
Kurtz, as he testified , never heard again from the port authority , and a written
inquiry from him to Port Director Stewart went unanswered . However, he did not
abate his activities . At the April 17 meeting , Nudelman , as the latter testified, chal-
lenged Kurtz ' standing to speak for "owner-operators ," since he received no author-
ization from "fleet" taxi owners, such as Big Ten Corporation , Moishe Zilber,
and Robert Sweedler.25 So Kurtz, on April 24, 1962, procured 217 signatures to
the following authorization:
We, the signers agree to have John A. Kurtz represent us as workers and owners
of the Yellow Cab System.
Early in May he got up a petition looking toward the removal of one particular
starter, as follows:
We, the signers of this petition request that Mr. Bram be removed for the
following reasons , will not call cabs till the limousines are loaded . Wants pay
for good jobs.
He garnered 98 signatures to the above , but before its intended transmittal to William
Segal , the starter under attack quit for reasons of health, which mooted that
venture 26
The authorizations he procured on April 24 were the nucleus for the formation
of the Association , for which he filed the articles of incorporation on June 5, and
its purpose is stated in part II, above. Kurtz' termination was effectuated before
the incorporation papers of the Association were filed, and in the later -described
conversations of Respondents' officials with the owner-drivers concerning Kurtz'
activities , the Association was not mentioned . Hence, the specific question of
whether it is a labor organization is not here reached. We merely recite Kurtz'
activities on behalf of the Association to complete the narrative of events.
Beginning the end of May, Kurtz, on the letterhead of the Association , wrote tour-
ist agencies and organizations planning conventions in Dade County , wherein he
espoused certain desirable features of cab transportation , such as a cheaper rate
than limousines on a group basis. One letter states, "We have the concession at the
Airport (Yellow Cab ), clean cabs and courtious [ sic] drivers ." Another states that
for transportation to the airport from Miami Beach (to which Respondents ' permits
do not extend , they being limited to Miami ) there is available an organization called
25 Indeed , Nudelman testified that he attended the meeting solely on behalf of Big Ten
and not Red Top Sedan, and that he had only heard of the meeting through a "rumor"
Nudelman would normally have been informed of the meeting in his capacity as manager
of the airport for Sedan, a function of necessity bringing him in close association with
the port director, who arranged the meeting. Since no one else attended on behalf of
Sedan on a matter which would naturally call for its having someone there in its own
interest , and since Nudelman had direct responsibility over the starters, whose conduct was
the matter under inquiry, his denial that he was there at all on behalf of Red Top Sedan
defies comprehension.
20 Kurtz' signature-gathering activities were all at the airport and were known to both
Nudelman and Catterlin, as they admitted.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Taxi Cab System. (The latter is composed of owners that had bought from
the Segals certain corporations, previously referred to, operating in Miami Beach,
but which are not part of Respondent System. They do not operate under Miami
permits, and are not in competition with the operation conducted by the corporate
Respondents herein.)
4. The termination
The steps taken by Respondents to eliminate Kurtz from the System have been
previously sketched. For their relevance on the issue of motivation, we here recount
the statements made to the persons who were successively told to get rid of Kurtz.
The testimony they gave was not denied, and it is found that the various officials
named in these recitals made the statements thus attributed to them.
In late March or early April, Sam Ruban, the lessor of John Shaw for whom
Kurtz was then driving, was summoned on the radio to the main office of the System
to "see Jerry Nudelman immediately." Nudelman told him "Kurtz has been causing
a lot of trouble out here and we don't want him around." Ruban explained that the
cab was now Shaw's under the lease and purchase option previously stated. Shaw
was then called in, and he saw Norton Segal and Nudelman. Shaw testified:
They said that they had had complaints from passengers in the cab, in my cab,
that John Kurtz was talking about the situation between the limousines and the
Yellow Cabs at the Airport and that they did not want the passengers being
bothered by this and therefore he was considered as undesirable and they
wanted to let him go and I told them that John and I were very good friends and
he was one of the best drivers in the Yellow fleet, and that he was honest and
that the man, when I had trouble, helped me and I couldn't see how I could
possibly let him go, and they went on to tell me that I was purchasing the cab
from Sam Ruban and I said, "Yes, I was," and then they said that I would have
to be accepted by the Yellow Cab company and that if I didn't go along with
them that they wouldn't go along with me when it became time for them to
have the contract put in my name, so I had no further alternative than to let
him go.
Shaw related this to Kurtz, who stated he would not want to jeopardize Shaw's
equity of $1,700 or $1,800. Within 10 minutes, he went to work for Dominic Bruno.
It was while he was driving for Bruno, that Kurtz, after a meeting of the board of di-
rectors on May 29, was cut off from radio dispatch with the entry on his card in the
central dispatch office, "Discharged by Board. No Rehire. Agitator." Before this,
Stanley Segal twice told Bruno to get rid of Kurtz. In the first conversation, Segal
told Bruno "he should get rid of John Kurtz" because "he was causing a lot of trouble
to Yellow Cab with the petitions." Bruno said he could not do so because he was
disabled by a back injury and "needed Mr. Kurtz to help crack the nut" (pay his
weekly installments and the operational assessment). Two or three weeks later,
Stanley Segal approached Bruno at the main office when he was making his pay-
ments. Segal again told Bruno to get rid of Kurtz because "with these petitions,
he was hurting the Company," and again Bruno protested that he needed Kurtz
because of his back injury.
Two or three days later, Bruno was summoned over the radio to the "Board of
Directors" at the central dispatch office. There he was confronted by Henry
Storck, performing as chairman, and Robert Staton, Jr., the radio and dispatch
officer, who also maintains the drivers' personnel records. Storck said Bruno had
to get rid of Kurtz. Bruno protested. Storck then told him if he did not do so
in 48 hours he would have to sell his cab. It was at this point that radio dispatch
was cut off for Kurtz with the "discharge" entry previously quoted.
Dante Vergilli, another "owner-operator," nevertheless hired Kurtz immediately
after Bruno let him go. He was called to the dispatch office. There Director Storck
told Vergilli he was to get rid of Kurtz because he "was a troublemaker and he was
sending petitions, trying to organize the men," and threatened Vergilli with "severe
action" if he did not comply. Vergilli complied, and then Kurtz went to work for
Earl Shifflet. Shifiiet too was called in to the board of directors and told he had
to get rid of Kurtz, for the same reasons given the others.27 In implementation of
this, Nudelman directed Head Starter Catterlin to bar the loading of any cab
driven by Kurtz. In execution of this command, a starter, on June 14, refused
to load Kurtz, and at Kurtz' request, gave him a card on which he wrote, "Office
said not to load John Kurtz."
n In lieu of Shifflet's actually so testifying, it was stipulated he would testify to the
same effect as the other "owner-operators."
RED TOP CAB & BAGGAGE CO ., ETC. 1447
Louis J. Wine, still believing he could do his own hiring , took Kurtz on on June 17.
On June 19 , he called Nudelman at his home, and asked the reason for the non-
loading order in respect to Kurtz. Nudelman said "it was the decision of the Board
of Directors not to let him work . . . for the Yellow Cab System any more," but
gave him no reason. Wine nevertheless retained Kurtz. On June 21, he was sent
a letter in the name of Yellow Cab Co ., of Miami ( presumably "the Corporation"
designated in his particular contract ) that he was "in default" for having "failed
to abide by Paragraph 13 of your contract" (the one binding him to the "uni-
form rules and regulations ") and giving him 7 days "to correct said default ." At the
same time he received the mimeographed notice sent in the names of the three
corporations to all persons covered in the "owner -operator" contracts that hereafter
"owners will be required to clear prospective drivers of their taxicabs with the
radio room" under pain of "severe disciplinary action" for "direct violation of the
contract existing between the owner and the corporation."
This ended Kurtz' driving of a cab within Respondent Yellow Cab System.
Respondents at the hearing claimed that Kurtz' termination was not motivated by
his petitioning activities but was the result of misconduct . The testimony on that
score was given by Nudelman, Storck , Ted Ungerman , a member of the board of
directors (supra, footnote 13), Staton , the central dispatch officer, who made the
"discharge" entry, previously quoted, and Head Starter Catterlin . Their testimony
was mutually contradictory to the point where they rather canceled each other: 28
crucial here is that the only writing that purports to state the reason for the discharge
is the "agitator" entry on his personnel card, and , as previously stated, none of the
officials implicated denied the testimony that they specifically based their demands
for Kurtz ' dismissal on his activities in filing petitions-Stanley Segal doing so the
two times he spoke to Bruno and Director Storck when he spoke to Vergilli.
It is found and concluded that it was because of these activities that Respondents
eliminated Kurtz from Respondent System and compelled the various owners-
operators to dispense with him.
E. Conclusion: the liability
1. Introduction
As stated, the record establishes and I have found that Kurtz was terminated by
Respondents because of his concerted activities in seeking to redress the grievances
of himself and fellow cabdrivers in respect to the claimed unfairness of the alloca-
28 Ungerman testified that Kurtz was terminated on May 29 because at a meeting early
that month, he complained that some time in March, Kurtz had used vulgar language
toward him in the lower ramp for refusing to sign one of his petitions. Ungerman testified
that he indeed ran for a place on the board of directors for the specific purpose of squaring
accounts with Kurtz because of this incident.
Nudelman testified to other delinquencies: that during a county election early on the
spring, there was a "political" sticker on the bumper of a cab driven by Kurtz 3 inches
by 8 inches in dimension, and that Head Starter Catterlin complained that sometimes
while Kurtz was in a lane in the lower ramp, he left it to talk to people, and that this
would hold up traffic.
Storck, on the other hand, testified that the reports concerning Kurtz' actions were
"conflicting," that the Ungerman complaint was but "hearsay" and a "rumor," in which
he took no "stock," because "each man should take care of himself," and that the only
reason Kurtz was discharged was that he failed three times to appear before the "trial
committee" or "court" to answer charges, the nature of which he did not remember.
Nudelman and Staten also testified that his nonappearance before the trial committee was
a cause of his discharge. Kurtz, both during the General Counsel's case-in-chief and on
rebuttal, testified he had been called to the "trial board" only once, and that he attended
along with 30 other drivers brought up on charges, and that the charges against all, in-
cluding him, were dismissed. As to this Kurtz was corroborated by Ungerman. He testi-
fied that in none of the board meetings attended by him-and he attended all since his
election in April-was anything said about Kurtz' refusal to answer summonses before
the "trial board." Ungerman also testified to a conversation with Kurtz during the time
Kurtz' name was being mentioned in board meetings, giving rather telling indication of the
mutual understanding of their nature and propose insofar as they concerned Kurtz. He
quoted Kurtz as saying that "even if the board fires me from driving a cab I have a
source of income from something else that I will still stay and help the men" or "I will
fight Segal or the limousines " (Kurtz denied saying he had another source of income or
that he in fact had one-unless the reference was to his having then begun to collect dues
from drivers who had joined in his petitions )
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of patronage as between cabs and limousines. This takes us to the issue of
liability.
Respondents claim immunity for their conduct in respect to Kurtz, on two grounds:
(a) he was not their employee, and (b) his activity was not protected by Section 7.
I conclude that they err on both counts.
2. The employment relation of Kurtz to Respondents
On the question of whether Kurtz is an employee of Respondents, there was con-
siderable discussion as to whether the driver-owners too are such. This was on
the assumption that if they are not neither was Kurtz. For the reasons stated in
"4" of this discussion, I conclude that all Respondents' drivers are their employees,
whether owners or nonowners. But Kurtz' status as an employee of Respondents
does not hinge on whether the persons for whom he drove too are employees. It
the owners are not Respondents' employees, then they are a part of or members of
that unified operation, termed the "Yellow Cab System," which is the employer.
Respondents have in fact laid great stress, as previously described, on the governing
powers of the group, called the policy board, which consists of the directors of all
the corporate Respondents herein in combination. As I later indicate, since the
majority directorship of the three lesser corporate Respondents is in the four sole
directors of Red Top Cab, the latter is the true employer in every meaningful sense
and the other three its agents.
This last, however, concerns only the relationship of the owner-operators to Re-
spondent System, but not of Kurtz. Whether the policy board is controlled by the
directors of Red Top Cab or its power is diffused among its members on the in-
dividual basis Respondent sought to persuade us they are, that body is the mecha-
nism for operating the cab service on the centralized and integrated basis: it controls
the hire, tenure, and working conditions of all drivers, including the nonowners. If,
as Respondents' contend, the fact that the owner-operators have a hand in electing
nine of the members of that body renders them partners in that managerial func-
tion, that still leaves the nonowners as the employees of the group of employers
composed jointly of Respondents and the owner-drivers Every significant aspect
of the employing function is in that unified managerial group, whether the owner-
drivers can be said to be a part of it or not. The owner-operator arranges with the
nonowner the basis for his compensation (supra, footnote 11). All else is in the
centralized cab operation in the manner previously described: a driver for an
owner, whether of a single cab or a fleet, even if he is already a licensed chauffeur,
must pass the examination at the central dispatch office for "eligibility"; if he passes
the test, he receives his safe driving and radio dispatch instructions from that office,
and a card is entered for him in the centralized personnel file in the dispatch office;
he is subject to all the rules and regulations laid down by the policy board in re-
spect to geographic areas and the manner of his operation; he is subject to trial by a
`court" or committee from the policy board and to such discipline as that body may
impose; if the policy board declares him "undesirable," an entry to that effect is made
on his personnel card, and he is then placed upon a list of drivers "ineligible" for
radio dispatch, with an attendant prohibition on any owner to hire or retain him
under pain of being declared in "default" and himself expelled from the System.
The elements comprising the employer relationship here far exceed those that the
Board found sufficient in Checker Cab Company and its Members, 141 NLRB 583.
There the centralized authority was a nonprofit membership corporation (called
Checker) composed of members who had considerably more authority over the
persons driving for them than the owners here-such as the right to hire and dis-
charge and the "exclusive right to direct [their] drivers where to operate " In
Checker too, the owners performed additional employer functions unlike the owners
here, except in the rather rare instance of fleet owners like Moishe Zilber.29 These
included maintenance of "own payroll records"; withholding "social security and
Federal tax payment"; purchasing own cabs and insurance thereon (something which
•even the fleet owners here do not do); paying unemployment compensation insur-
ance; and carrying workmen's compensation insurance.
Nevertheless, on the strength of the respects in which the members "surrendered"
to Checker "control over the employment conditions of the drivers," the Board held
Checker and each of its members "to be joint employers in a common enterprise,"
and hence to be the joint employers of those who drove for members. The items
mentioned are present here but in much stronger forms. They include: (a) central
29 Or Big Ten Taxi, if we are to accept Respondents' claim that it is to be equated with
the three corporate Respondents composed of the owner-operators.
RED TOP CAB & BAGGAGE CO., ETC. 1449
screening of each prospective driver ("undesirable" applicants being there merely
"discourage[d]" instead of absolutely barred, as here; (b) a manual embodying the
rules and regulations of the association; (c) a central review board and disciplinary
body; (d) power of the association to expel "any member for cause" (it being as-
sumed that members would abide by that body's rules and determinations, instead
of being explicitly bound to do so, as are the owners here). The Board also pointed
to the features which identified Checker as "a single integrated service," such as a
central telephone number and radio dispatch service, call stations, and the distinctive
color scheme and other identifying characteristics of the cabs.
The Board gave due consideration to the fact that the members' purpose was "to
assure the continuance of a common public image and an effective operation of an
integrated enterprise," and that this stemmed from their "recogniz[ing] both the
need for, and the benefit from uniformity of control which Checker alone can exer-
cise over all the drivers." But however voluntary the act of the members in form-
ing or joining Checker and whatever the benefits they envisioned therefrom, the
fact remained that to obtain them they surrendered to it control over their employ-
ing function to a degree which made that central body and all the members in it
joint employers of all persons driving for them.
Can less be said for a central body that controls virtually every aspect of the
employing function under a set of restrictions, to which those here claimed to be
the sole employers of the nonowners must submit under the heaviest forfeitures for
themselves? The conclusion is that Kurtz, as a nonowner driver in Respondent
System, was an employee of Respondents, and this is so regardless of whether the
owner-operators too are employees of Respondents, or, as in Checker, joint em-
ployers along with Respondents.
3. The protected character of Kurtz' activity
There being an employment relationship between Respondents and Kurtz, as I
have found, then if Kurtz' concerted activities are protected by Section 7, Respond-
ents' conduct in terminating him because of them was a violation of the Act. The
violation would indeed be complete even assuming Kurtz' employment to be only
with the owner-drivers, for the Act "reaches discrimination as to employees of an-
other employer" no less than one's own. See N.L.R.B. v. West Texas Utilities
Company, 218 F. 2d 824 (C.A. 5), cert. denied 349 U S. 953, enfg. 108 NLRB 407,
412-413. N.L.R.B. v. Gluck Brewing Company and Bach Transfer and Storage
Company, 144 F. 2d 847, 855 (C.A. 8); Hurd Corporation, 143 NLRB 306; The
May Department Stores Company, et al, 59 NLRB 976, 986-987, enfd. as modified
on other grounds 154 F. 2d 533, 538-539 (C.A. 8), cert. denied 329 U.S. 725.
On any basis, whether Kurtz and the owner-drivers were coemployees of Respond-
ents, or whether Kurtz was an employee of Respondents and the owner-drivers as
joint employers, or whether Kurtz was an employee only of the respective owner-
drivers, his concerted activities in protest over the situation at the airport were pro-
tected by Section 7 of the Act. Insofar as the claimed favoritism in the allotment
of the patronage at the airport directly affected the livelihood of himself and his
fellow cabdrivers, his activities were for the "mutual aid or protection" of himself
and fellow nonowner drivers as employees, even if the contemplated "mutual aid or
protection" extended also to the nonowners, whatever the latter's status.
Respondents advance a number of grounds in support of their contention that
Kurtz' activities were not protected by Section 7. I am unable to find merit in them.
(a) The presentation of the grievance to the governmental authorities instead of
Respondents directly: It is well established that bringing a grievance to the attention
of public authorities falls within the protections of the Act no less than the direct
presentation of it to the employer.30 Giving particular pertinence to this principle
here are elements in addition to those in the cited precedents. First, the complaint
concerned the manner of the discharge of a function having aspects of a public trust;
second, the appeal had a background of the demonstrated futility of trying to get
Respondents to consider them; and third, the prospect of an objective response to
the matter by Respondents were here beclouded by the inherent conflict of interest
of the individuals controlling them. The employer here, if not Red Top Cab alone,
is Red Top Cab in combination with the three lesser corporate respondents. Con-
trolling them all are the persons who own and control the limousine operation, which
is in competition with the cab operation at the airport. The grievance was that the
30 Walls Manufacturing Company, Inc, 137 NLRB 1317, enfd 321 F. 2d 753 (C.A D C) ;
N.L R B v Moss Planing Mill Co, 206 F 2d 557, 559-561 (C A. 4) ; Salt River Valley
Water User's d.ssocation v N L R B , 206 F 2d 325, 328-329 (C A 9).
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
starters at the airport so conducted themselves as to enhance the income of the
limousines to the detriment of the cabdrivers . The grievance by its very nature was
one in which ( and we confine ourselves to the character of the interest , without
regard to inwardly entertained motivation ) those who control the conduct com-
plained of own and control the corporation that stood to profit by the continuation
of the claimed abuse and to forgo that profit if discontinued . The claimed abuse
was thus a natural subject for those who felt victimized by it to seek to have acted
upon by the public authorities , either directly or through pressure upon the in-
dividuals in control of the situation as a counterweight to their own conflict of
interest in the matter.
(b) Alleged disloyalty to the employer : The foregoing also serves to dispose of
the claim (which Respondents advanced at the original hearing but apparently
abandoned at the resumed one) that assuming an employment relation of Kurtz
to Respondents , his complaint against the limousine operation was an act of "dis-
loyalty" to his employer , and hence "indefensible conduct" falling outside the
protection of Section 7, under the doctrine of N.L.R B. v. Local Union No. 1229,
International Brotherhood of Electrical Workers, A.F.L., 346 U.S. 464 (affg.
Jefferson Standard Broadcasting Company, 94 NLRB 1507). The fallacy (which
Respondents apparently realized at the resumed hearing ) is that it identifies the
interest of the Segals as individuals with that of Respondents as the cab operation.
This was Stanley Segals' assumption when he stated to Owner-Driver Bruno that
Kurtz' petitions were "hurting the Company ." The ones "hurt"-if that be the
term for an effort to abate a claimed inequity-were he and his kin as the owners
of the limousine corporation . Kurtz' actions were not "hurting" the taxicab opera-
tion, but protecting it, and it is the corporations comprising it that were his employers.
Further, even if the two competing operations were to be deemed to be what
Respondents have themselves steadfastly insisted they are not, a single integrated
enterprise , so as to make a single employer of these two combined operations,
Kurtz' activities would still not be "disloyal " or "indefensible" in the sense connoted
by the Local Union No. 1229 (Jefferson Broadcasting ) doctrine . The disloyalty
there lay in the fact that the discharged employees promulgated leaflets disparaging
the quality of their employer 's television entertainment . They did so as ostensible
members of the viewing public, without disclosing their relation to the employer or
their purpose ; their purpose was to exert economic pressure on the employer to
force concessions in bargaining negotiations totally unrelated to the subject in the
leaflets. Kurtz, in his petition , could hardly have been more explicit in describing,
indeed proclaiming , the nature of his interest ("We the signers of this petition are
either owners , leasers, or drivers of the Yellow Cab of Miami" ), or the purpose of
the appeal ("We know that the limousines are necessary " but "all we want is our
full share of work" ). Activity, otherwise protected , does not lose its protected
character because it is embarrassing , financially or otherwise , to the employer. See
N.L R.B. V. Washington Aluminum Company , Inc., 370 U.S. 9; N.L.R.B. v. Peter
Cailler Kohler Swiss Chocolates Company, Inc., 130 F. 2d 503, 506 (C.A. 2);
N.L.R.B . v. Illinois Tool Works, 153 F. 2d 811 , 815-816 (C A. 7).
(c) That the activity was directed at "business conditions ," rather than at "work-
ing conditions": Respondents contend that since the owner-operators were "inde-
pendent businessmen ," the grievance concerning the conduct of the starters at the
airport was a "business condition" instead of a "working condition," and hence, that
Kurtz' activities were not for "mutual aid or protection," within the meaning of
Section 7.
There are two answers to the above: First, as indicated at the outset of this aspect
of our discussion , since the grievance was over a matter within the control of
Respondents and it affected the earning opportunities of Kurtz and the nonowner
drivers as employees, the matter concerned their own working conditions , whatever
its nomenclature for the owners ; second , concerted activities by employees in en-
hancement of nonemployees ' business opportunities on which their own livelihood
depends are for their "mutual aid or protection " as employees , even though the
protection extends to the nonemployees as well.
The argument in both its aspects overlooks the fact that the term "mutual aid
or protection" as used in Section 7 has a broader meaning in any event than "work-
ing conditions ." Section 7 guarantees "the right to self-organization [etc], to bargain
collectively through [chosen ] representatives ; and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection."
[Emphasis supplied.] Concerted activities in pursuit of a legitimate employee
objective do not lose their protected character because engaged in concertedly with
nonemployees who happen to have a legitimate concurrent interest with employees
in that objective . This is implicit in the opinion of the Supreme Court in the
RED TOP CAB & BAGGAGE CO., ETC. 1451
Los Angeles Meat Drivers case,31 wherein it stressed that valid employee objectives
may properly be sought to be attained with independent businessmen if there is a
legitimate connection between the interests of both. It did so in passing on the
validity of a lower court's order, which, as a condition of a union's purging itself
of contempt of an antitrust decree, prescribed that it expel from membership certain
independent businessmen ("grease peddlers") who abetted it in the violation. The
Court upheld this as a valid condition of purgation because "there was no showing
of any actual or potential wage or job competition or of any other economic inter-
relationship between the grease peddlers and other members of the Union"; but it
explained that its decision:
is not remotely to suggest that a labor organization might not often have
a legitimate interest in soliciting self-employed entrepreneurs as members
(citing Milk Wagon Drivers v. Lake Valley Farm, 311 U.S. 91; Bakery Drivers
v. Wohl, 315 U.S. 769; Local 24 v. Oliver, 358 U.S. 283).
In amplification, Mr. Justice Goldberg's concurring opinion specifically noted that
"the Court is not here called to pass upon and does not pass upon ... whether as
an original matter the grease peddlers might properly associate among themselves
or affiliate with a sympathetic and genuinely interested union to improve their
economic condition," but that "the import of the entire stipulated factual record
is that the Union neither had nor pursued any legitimate present interest in organiz-
ing the grease peddlers," so that "were it otherwise, that portion of the decree com-
pelling expulsion of the peddlers from the Union in my view, could not stand."
The fact that Kurtz included the owner-drivers along with the nonowners in his
concerted activity thus neither illegitimatized its character nor removed the pro-
tection of Section 7 from his activities, even assuming, as Respondents contend, that
the "owner-driver," under the facts here presented, were "independent businessmen."
Kurtz' activity would still be protected even if the "owner-drivers" were to be
deemed the separate employers of the respective nonowners driving for them. In
that respect, the activities of both classes of drivers in concert with each other would
fall within the category of "labor-management cooperation" in respect to a matter
of common interest to both. Insofar as employees engage in that cooperation in
advancement of their own interest as employees, they are exercising a right protected
under Section 7, as they are when engaging in concerted activities for outright im-
provement of working conditions with their own employer. Where the "mutual
aid or protection" concerns working conditions as between employees and the par-
ticular employer, the right to engage in concerted activities for such a purpose in-
cludes the additional right to have the employer bargain collectively in respect to
them; that is to say, improvement of working conditions as between employees and
the employer is a purpose in respect to which employees have both the right to
engage in concerted activities and also the right (buttressed by a mandatory obliga-
tion on the employer's part to do so) to bargain collectively with respect to them.
On the other hand, where the "mutual aid or protection" sought is not in respect to
working conditions with the given employer but with respect to a matter of com-
mon concern to both, then insofar as that subject concerns the employees' liveli-
hood, they have the protected right to pursue that common objective with the
employer for the purpose of "other mutual aid or protection" for them, although not
the additional right to demand that he do so, as they would have if the matter
concerned a working condition.
An illustrative example of the above is the subject of the "industry promotion
fund," which has been treated by the Board in a number of cases over recent years.
That type of fund represents a joint undertaking by employers and employees in
a given industry to enhance the selling prospects of the industry's product for
the common benefit of both. The Board has held that such a venture is not a
"working condition" as between the employee and the immediate employer, and
hence, that there is no right on the part of either side to insist that the other bargain
for the purpose of participating in such a fund. Such is the doctrine of the Detroit
Resilient case, recently approved by the Sixth Circuit.32 But the Board in that same
case reaffirmed its earlier holding in the Detroit Window Cleaners Union, Local 139,
Building Service Employees' International Union, AFL-CIO (Daelyte Service Com-
pany) case (126 NLRB 63) that the subject is a permissive one concerning which
the employer and the employees may bargain and legitimately provide for in their
3' Los Angeles Meat & Provision Drivers Union, et al v. U.S., 371 U.S. 94.
32 Detroit Resilient Floor Decorators Local Union No. 2265 of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Mill Floor Covering, Inc ), 136 NLRB 769,
enfd. 317 F 2d 269 (C.A. 6).
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract . Indeed, its most recent holding on the subject is that if the parties, after
bargaining , have agreed upon such a provision , then there is the corresponding right
to have it included in the written contract.33
What this means, then , is that a cooperative venture for a legitimate object of
benefit to employee and employer alike is one that the employees may concertedly
propose to employers and in cooperating in it, they are engaging in "concerted
activities for the purpose of . . other mutual aid or protection " in their own
interest as employees , within the guarantees of Section 7, undiminished by the fact
that the protection extends to the employer as well.
So here, even if we were to assume that the owners were the employers of the
nonowners , like Kurtz , he and his fellow nonowners had the protected right under
Section 7 , to act in concert with the owners concerning a matter affecting their
common economic interest , though the subject not be a "working condition" con-
trolled by the owners. Kurtz ' concerted activities thus enjoyed the protection of
Section 7 , and Respondents ' conduct in terminating his employment because of
them, interfered with, restrained , and coerced him and the other nonowners in the
exercise of their rights under Section 7 , thereby violating Section 8 ( a)(1) of the
Act.
4. The employee relationship of the owner-operators to Respondents
We have until now assumed , in accordance with Respondent 's contention,
that the owner-operators are not employees of Respondents . As already appears,
even with that assumption , Respondents are nevertheless liable for their conduct in
respect to Kurtz.34 While Respondents ' liability in respect to Kurtz is thus complete
without regard whether the owners too are employees of Respondents , the determi-
nation of whether they are such is not altogether superfious here , because Respond-
ents' liability is even clearer if the major prop of their claim of immunity , however
fallaciously it was applied , is shown not to exist in the first place, and ( although
this may be anticipating matters ) it is desirable also to know in advance whether
a remedial order that Respondents not interfere with the rights of "employees"
embraces all drivers alike or is limited to nonowners . For the reasons stated below,
I believe it has the broader scope.
It is true that with the change to the owner -operator arrangement , an important
facet was removed from the former conceded employer-employee relationship.
Previously , all the indicia of that relationship were present. Now it is less than
all. But whether the relationship itself has vanished or is still there turns on
how the scales tip after all the relevant elements are weighed. The applicable
criterion was summed up in N.L.R.B. v. Lindsay Newspapers , Inc., 315 F. 2d 709,
713 (C.A. 5), as follows:
Section 2 ( 3) of the Act provides that the term "employee" shall not include
"any individual having the status of independent contract ." This status of
independent contractor is not defined anywhere in the Act. It therefore be-
comes necessary to look to common law concepts to determine the true status
of persons who claim to be protected as employees . National Labor Relations
Board v. Nu-car Carriers, Inc., C.A. 3, 189 F. 2d 756 , cert. denied 342 U.S.
919. This Court has stated in N L.R.B. v. Steinberg & Company 5th Cir. 182
F. 2d 850 at 855 that the distinction between the employee and an independent
contractor under Section 2(3) ". . is found in the nature and the amount of
control reserved by the person for whom the work is done." [Emphasis
supplied.]
As appears from the factual discussion , Respondents have reserved a control over
all their drivers indistinguishable materially from what had prevailed during the
undisputed employee relationship . Its rules and regulations as formulated and ap-
plied are in reality working conditions entailing a pervasive supervision over them
in respect to such crucial items as the area of operation (restriction of access to
airport on alternate days ), manner of operation ( radio coverage , courtesy , advertis-
ing, dealing of drivers with each other ), and even the determination of whether to
abstain from driving ( if concertedly done so as to amount to what Respondents
claim would violate the implied "no strike" obligation in the standard contract).
33 Brotherhood of Painters , Decorators and Paperhangers of America , Glaziers Local
Union +,.k1385, AFL-CIO ( Associated Building Contractors of Evansville , Inc ), 143
NLRB 678.
34 The contention that in such case the successive owner - operators who employed Kurtz
would be "indispensable parties" to this proceeding is invalid under the doctrine of The
Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship
Company ) v. N.L.R B., 347 U.S. 17, 53-54.
RED TOP CAB & BAGGAGE CO., ETC. 1453
That degree of control, as previously indicated, renders the nonowner drivers em-
ployees of Respondents. But on that score the owner-drivers have no more inde-
pendent standing than the nonowner. The "uniform rules and regulations'- that they
must obey under pain of being declared in "default" have been applied to deprive
them of the right to hire any driver without prior clearance with Respondents for
"eligibilty" or to retain one who, though originally approved by Respondents, has
later been stamped as "undesirable." As earlier indicated, apart from setting with
the nonowner the basis of the latter's compensation, the conditions under which the
nonowner works are set not by the owner but by Respondents under "uniform rules
and regulations" as laid down and applied by them. In his capacity as a driver,
the owner is as subject to these restrictions as the nonowner and is equally subject
to disciplinary procedures and to ouster from Respondent System-the nonowner
summarily, the owner through the "default" provision of the contract. The per-
sonnel cards for all drivers, owners and nonowners, are maintained in the central
dispatch under the same filing system as before, and the entries deal with their
desirability as a driver within the System in the same manner as before (supra
footnote 17). During the hearing, various witnesses in Respondents' managerial
hierarchy frequently referred to all drivers, owners and nonowners, as "employees
of the Company." That may well be a carryover from prior habits of expression.
But it would seem to be an apt, though spontaneous, appraisal of the true situation,
and the same can be said for the entries of "discharged," "fired," and "do not rehire,"
which are still made on the personnel cards.
In N.L.R.B. v. Morris Steinberg and Julian Leslie Steinberg, d/b/a Steinberg
.and Company, 182 F. 2d 850, 855 (C.A. 5), Judge Borah stated that "Congress .
intended the word `employee' to mean someone who works for another hire .
Where he does so for an outright wage and is subject to the control and supervision
of the hirer in respect to the manner and means of doing the job, he meets all the
criteria of the employee relationship. Where he does so for a stipulated contract
price on a given job, being responsible only for the result and not subject to any
orders or instructions of the hirer in respect to the manner and means of doing it, he
meets all the criteria of the independent contractor relation. Between these two
extremes of black and white simplicity are the gray areas with features of each, that
are the grist of controversy furnishing the subject matter of case lore. Where the
hiree receives no wage from the hirer and provides and maintains his own tools, he
has lost some important characteristics of the indisputable employee relationship.
But where he remains responsible to the hirer not only for the result, but also for
the manner, means, and occasion for achieving it, he has retained sufficient char-
acteristics of that relation, so as, on balance, to be still in the class that works
"for hire."
The foregoing assumes that the owner's relation with Respondents is entirely free
of a wage factor between them, and even on that assumption, the balance, in the
light of the control exerted upon him, is such as to place him, under applicable
precedent, in the employee category.35 But that assumption is not without qualifica-
tion. We have noted the provision in the contract requiring the owner to pay an
assessment to defray the expenses of the centralized operation, as fixed by the
"majority of the stockholders of the corporation." The majority, in each instance,
are the Segals (or Red Top Cab) as the class B stockholders. The present assess-
ment of $35 a week, or $1,820 a year, is a rather substantial inroad in the owner-
driver's gross annual average revenue of $7,500, and to the extent that he derives
his income from his own labors, it determines the amount of what in every realistic
sense is his "wage." Cf. Local 24 Teamsters v. Oliver, 358 U.S. 283. The elements
that enter into "cost" are frequently subjects of varying interpretation depending on
the nature of the interest from which they are viewed. Red Top Cab's power to fix
that item in accordance with its own interpretation thus gives it a degree of control
over what in essence is the owner-driver's wage, and, by that token, over a "working
35 N.L R B v. Lindsay Newspapers, Inc., 315 F 2d 709, 713-714 (-C A. 5) ; Mound City
Yellow Cab Company, 132 NLRB 484; Checker Cab Company and its Members, 141 NLRB
583 (part 4: the lease drivers) ; A. S. Abell Company, 137 NLRB 238; N L R.B. v. Key-
stone Floors, Inc., d/b/a Keystone Universal Carpet Co., 306 F 2d 560 (C A. 3) ; Coca-
Cola Bottling Company of New York, Inc, 133 NLRB 762; Mohican Trucking Company,
131 NLRB 1174. The recent decision of the Eighth Circuit in Site Oil Company of
Missouri, Site Oil Company of Michigan, Inc. v N.L R.B., 319 F. 2d 86, is distinguishable
on its facts. It is to be compared with the court's prior holding (reaffirmed by it in Site)
in Minnesota Milk Co. v. N L.R B., 314 F. 2d 761 (C A. 8). As the court said in its Site
opinion, "the status of workers is much easier to state than to apply, and . . . each case
must stand or fall on its own peculiar facts."
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition" above and beyond those inhering in its power to lay down, interpret, and
apply the "rules and regulations" to which all drivers, owners and nonowners alike,
are subject.
Respondents claim the owner-drivers have a hand in formulating the "rules and
regulations" by which they are governed, through their right, as class A stock-
holders, to elect three directors in the corporations named in their particular con-
tract, who are a part of the composite policy board governing the taxicab operation.
But, as appears from the factual recital, that prerogative is illusory, since the Segals
or Red Top Cab, as the class B stockholders, elect the majority of the directors in each
corporation, and that majority, in turn, comprises the directorship and ownership of
Red Top Cab. Since under the contract, the owner is bound by the "uniform
rules and regulations" adopted by the directors of the corporation named in his
contract, it is the rules and regulations as adopted and interpreted by Red Top Cab
that he has to obey. The adoption may be outright or through approval of the action
of the group comprising the policy board, but it is the directors of Red Top Cab who
control. In terms of where the power lies and is exerted, the true employer of the cab
operation is thus Red Top Cab, and the other corporate respondents are its agents.
Respondents have asserted that Red Top Cab is but an accommodation to the
owner-operators in their gown interest in order to give them the benefit of the
exclusive rights to the airport under the franchise and of a centralized operation.
Even if that were so, Red Top Cab's control over the owner-drivers adds up to an
employer-employee relationship, whatever the motivation, cf. Checker Cab Com-
pany, 141 NLRB 583. But to characterize Red Top Cab and the centralized opera-
tion controlled by it as a mere accommodation to the owner-drivers in their mutual
interest, hardly squares with fact. Red Top Cab has an interest of its own in the con-
trol it exerts, such as meeting its obligation under the franchise to provide taxi
service at the airport and to prevent the kind of attrition that would destroy the value
of the permits. To that extent it has an interest of its own though consistent with the
promotion of the cab operation as such. But it also has an interest not consistent
with the cab operation and in some respects antagonistic to it. It is owned and con-
trolled by the same persons who own and control the limousine operation. Those
persons have retained a direct interest in the passenger revenues of the limousine
operation at the same time that they no longer retain it in the cab operation. In
terms of the hard fact of the profit incentive, Red Top Cab, the corporation in control
of the taxi operations, is thus the captive of the limousine interest. Red Top Cab's
possession of the taxi franchise puts it in a position to administer the cab operation
to the advantage of the limousine interest: one can hardly brush aside, as an incen-
tive in advancement of that interest, the exertion of an employer type of control by
Red Top Cab over ,the taxi drivers in Respondent System, such as limiting the days
on which they may have access to the airport, placing the supervision over, both
services at the airport in persons whose positions make them naturally responsive to
the interests of the limousine as against the cab operation, and, indeed, determining
the extent to which the limousine operation is to be reimbursed for the salaries of
those persons as a service to the cab operation. (The testimony is that the larger
part of their salaries is paid out of the weekly assessments collected from the owner-
drivers-a fact mentioned in Kurtz' petition.)
To avoid even remote possibility of misunderstanding, it is again here stressed
that nothing in the preceding discussion is intended to impugn or to pass upon
anyone's subjectively entertained intentions or to interject any notions on the part of
the Trial Examiner regarding the proper conduct of a transportation service or the
running of an airport. The relevancy of what has been said to the issue before us is
that it serves to underscore the diversity of interest from which the same matters
are viewed by those who control Respondent's operations and those who perform the
work, and the consequent differences of opinion concerning the propriety or fairness
of measures that affect what they derive from their labors. The act is premised
upon a recognition of that kind of diversity of viewpoint on the part of those who
work and those who manage. It recognizes also that a wholesome purpose is served
in permitting the workers concertedly to bring their grievances forward to manage-
ment for discussion, consideration, and decision. The process makes possible a
reconciliation of opposing views, which, if left to seethe, tend to erupt into stoppages
injurious to the Nation's commerce. Its utility as a safety valve was a vital factor
in Congress guaranteeing to employees the right concertedly to present their
grievances and protecting them from reprisal by employers for doing so.
Yet the subject matter of the day-to-day dealings between Respondents and their
drivers, whether owners or nonowners, is essentially of the same nature as those
to be found in the conceded employer-employee relation. Differences of opinion
regarding them too are the stuff out of which grievances arise. Respondents' posi-
RED TOP CAB & BAGGAGE CO., ETC. 1455
tion, in effect, is that the Act leaves them free to deny these persons the right to
present and demand consideration of their grievances, even though, as Respondents'
own experience in 1961 demonstrates, such suppression leads to the kind of eruptions
imperiling commerce, that Congress sought to avoid in enacting the protections of
Section 7. Every pragmatic consideration, in terms of the underlying policy of the
statute ,and the true nature of the relationship, shows the same bases for these per-
sons having the protection of the Act as in the case of any conceded employee, and
points persuasively to the conclusion that Congress intended that they do. Respond-
ents, indeed, take a rather contradictory position in urging that their owner-drivers
have contractually bound themselves to an implied no-strike obligation of the kind
found in collective-bargaining agreements covering the ordinary employee, and yet
are not employees for the purpose of the right to engage in the very concerted ac-
tivities whose culmination in the stabilized relationship embodied in a no-strike
clause is a prime object envisioned for the rights guaranteed by Section 7. Their pur-
pose is to promote the process that furnishes the alternative to the strike weapon
and, as importantly, the wholesome sublimation of the impulse to use it.
For all of the above reasons, I find and conclude that all who actually drive
cabs in Respondents' operation, whether owners or nonowners, are employees within
the meaning of the Act. Hence, by discriminating against Kurtz in reprisal for
exercising his rights under Section 7, Respondents in violation of Section 8(a)(1)
interfered with, restrained, and coerced all such employees in the exercise of those
rights.36
IV. THE REMEDY
Respondents will be required to cease and desist from the unfair labor practice
here found. This will be in the broad language of Section 7, since a discharge for
engaging in protected activity goes to the heart of the Act 37 Additionally, Respond-
ents will be specifically required to cease and desist from interfering through
discriminatory action or otherwise with the peaceful presentation of grievances to
them or the public authorities by Kurtz or any of their other drivers regarding
working conditions at the airport or elsewhere.
Secondly, to redress the injury done, Respondents will be required to restore
Kurtz to eligibility as a driver within Respondent System for radio dispatch, for
loading at the airport or working for any owner or lessee willing to hire him.
Respondents will be required to notify the persons whom they forced to dispense
with Kurtz-Shaw, Bruno, Vergilli, Shifflett, and Wine-by radio dispatch, and by
letter, with a copy to Kurtz, that Kurtz has been restored to eligibility as driver of a
cab within the System, that they withdraw their objection to their hiring or retaining
Kurtz as a driver, and that such action will not be deemed in violation of the terms
of the contract or, in Shaw's case, a reason for not approving an assignment of any
contract to him. Respondents will also be required to reimburse Kurtz for earnings
lost by reason of the discrimination against him from the time of his first termination
(by John Shaw) to 5 days after they have completed the affirmative measures above
36 Since , as previously indicated, it does not appear that the Association was either in
existence or mentioned at the time that Kurtz was terminated, Respondents' action, while
discriminatory, cannot be said to have discouraged membership in the Association, within
the meaning of Section 8(a)(3). We therefore do not reach the question of sshether the
Association is a labor organization On the question of whether there is an alternative
basis for finding that the discrimination violated Section 8(a) (3)--such as that the
drivers who signed the various petitions with Kurtz thereby constituted themselves a
"labor organization" (Factfinders Detective Buican, Inc., 133 NLRB 1332, 1343, and cases
cited) or that Kurtz by virtue of the authorization obtained April 24 became a "labor
organization" (Bonnaz, Hand Embroiderers, Tuckers, Stitchers, Pleaters Union, Local 66,
International Ladies Garment Workers Union, AFL: etc (Gemsco, Inc.), 111 NLRB 82)-
the answer would be that in this kind of case, a remedial order based on an 8(a) (1) vio-
lation protects employees against an 8(a) (3) violation as well, and thus there is no need
to labor over whether Respondents' conduct violated that specific subsection as well.
Gullett Gin Company, Inc. v. N.L.R B., 179 F. 2d 499, 502 (C.A. 5) ; N.L P.B. v TVash-
sngton Aluminum Company, Inc, 370 U.S. 2
37 The right to "form, loin, or assist labor organizations" will be stated in general terms
without specific reference to the Association, since Kurtz' activity on its behalf as such
has not been found to have contributed to his termination Whether it is encompassed
within the scope of the order will hinge on the criteria applicable to any other organiza-
tion not specifically named in it: it will depend on the facts appearing if and when such
an issue should arise.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prescribed , or to the day Kurtz is actually rehired, whichever occurs first.38 For
this purpose, there shall be applied the make -whole formula of F. W. Woolworth
Company, 90 NLRB 289, and to the sums computed as due, interest shall be added at
6 percent per annum in accordance with Isis Plumbing & Heating Co ., 138 NLRB
716. Notices shall be posted at the main headquarters of Respondents at 1000
Lejuene Road, Miami , the central dispatch office at 44 SW. Third Street , Miami, and
at the storage area for taxicabs in the lower ramps of the airport.39
Upon the foregoing findings and the entire record , I hereby state the following:
CONCLUSION OF LAW
1. Respondents are employers within the meaning of the Act.
2. John A. Kurtz is an employee of Respondents within the meaning of the
Act.
3. By discriminating against John A. Kurtz for engaging in activities protected by
the Act, Respondents interfered with, restrained , and coerced their employees in
the exercise of their rights under Section 7 of the Act. Thereby Respondents have
,engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. Said unfair labor practices affect commerce within the meaning of the Act.
5. Kurtz' activities in forming and sponsoring the Association as such did not
contribute to his termination . Accordingly, the matter of whether it is a labor
organization has not been reached and has not been passed upon . The same applies
to whether Respondents ' conduct also violated Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions , and the entire record, and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondents , Red Top
-Cab & Baggage Co., Checker Cab Operators, Inc., Yellow Cab Company of Miami,
B & S Taxi Corp ., separated and as Respondent Yellow Cab System, their officers,
!agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Terminating or causing the termination or otherwise discriminating or caus-
ing any discrimination against any employees , including all drivers of taxicabs,
whether owners or nonowners , for presenting or voicing any grievance concerning
working conditions or matters affecting the earning opportunities of persons driving
cabs within Respondent Yellow Cab System, or threatening to do so.
(b) In any other manner interfering with, restraining , or coercing said persons
in the exercise of their right to self-organization , to form, join or assist labor
organizations , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Restore John A. Kurtz to eligibility for driving a cab within the Respondent
Yellow Cab System, including eligibility for radio dispatch and loading cabs, and
his hiring or retention by any owner or lessee who is willing to do so.
(b) Notify John A. Shaw, Dominic A. Bruno, Dante Vergilli, Earl E. Shifflet, and
Louis J. Wine by radio dispatch, and by letter with a copy to John A. Kurtz, that the
above action has been taken and also that Respondents withdraw all objection to their
hiring or retaining John A. Kurtz as a driver or operator for them and that their
doing so will not be a basis for declaring them to be in default under their contract
or a ground for withholding approval of assignment of any such contract to Shaw,
or any other reprisal.
(c) Make John A. Kurtz whole for any loss in earnings sustained by reason of the
discrimination against him in the manner stated in the remedy portion of this
report.
(d) Post at their main headquarters at 1000 Lejuene Road , Miami , at their
central dispatch office at 44 SW. Third Street, Miami, and at the storage area for
"While it is rather implicit , It perhaps bears stating in express terms that to be effec-
tive in terminating the running of the reimbursement period , the affirmative measures
must be taken in good faith , without any overtures , direct or indirect , in opposition to the
assurances to be given In the letters or the posted notice.
^ There need be no reference in the notice to the rights of persons in the Armed Forces.
Kurtz' age would make that look silly.
RED TOP CAB & BAGGAGE CO ., ETC. 1457
taxicabs at the Miami International Airport , copies of attached notice marked
"Appendix B." 40 Copies of the said notice, to be furnished by the Regional Director
for the Twelfth Region, shall , after being duly signed by Respondents ' representatives,
be posted immediately upon receipt thereof, and be maintained for 60 consecutive
days thereafter , in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondents to in-
sure that such notices are not altered , defaced , or covered by any other material.
(e) Notify the Regional Director for the Twelfth Region , in writing , within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps the Respondents have taken to comply herewith 41
It is further recommended that the complaint be dismissed insofar as it alleges
that Kurtz' activity on behalf of International Taxi Drivers and Owners Association
as such contributed to his termination.
101n the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order " shall be substituted for the words " The Recommended Order of a
Trial Examiner " in the notice In the further event that the Board ' s Order be enforced
by a decree of a United States Circuit Court of Appeals, the words "A Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"A Decision and Order"
411n the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify the said Regional Director , in writing . within 10 days
from the date of this Oider, what steps the Respondents have taken to i,onipli herewith '
APPENDIX A
JOHN A. KURTZ,
860 E. FIFTH ST., HIALEAH , FLORIDA,
Maich, 4th. 1962.
To: Honorable Farris Bryant: Governor , of the State of Florida
Mr. McNayer : County Manager
All Metro Commissioners
Mr. Stewart : Port Authority
DEAR SIRS : We the signers of this petition are either owners, leasers or drivers of
the Yellow cab of Miami. We work at the airport . We feel that we are not getting
our fair share of work, due to the action of the starters . We have complained to
the Port Authority ( Mr. Stewart ) but to no availl . Last June 1961 , we had a work
stoppage of about three hours. We were promised better conditiond , but we never
received them. Last August, we h.id a work stoppage, and the results of this was,
some of the owners were barred from the port These men were put back to work,
,only after a just decision of the courts of Dade County.
We work twelve to thirteen hours a day , and cannot make a living to support our
families and homes. This is due to the action of the starters , who do not ask the
people what kind of transportation , they want . They are put into limousines. Many
times the cabs are not called under the ramp, till the limousines are loaded . This is
not fair, since the owners pay for the right to use the airport
We have approximate two hundred and twenty five cabs that pay $11.50 a week
to the holder of the port contract . This amounts to $2507.50 per week, or $134,550
per year. How much do the limousines pay? The Port Authority , receives $100,000
of the money the cabs pay . The limousines carry more people than the cabs.
We feel since we are paying the starters that they should be hired by the Port
Authority . This would eliminate favoritism to either one, cabs or limousines.
The Supreme Court of Florida , ordered Red Top Limousine to go terminal to
terminal . This order came out in November 1961, but has not been inforced ? ? 9
The States Attorneys Office refused to enforce it ? ? ? Do we not have to respect a
order from the Supreme Court of Florida in Dade County 9 Why doss the Railroad
& Public Utilities Commissions not enforce this court order ?
We know that the limousines are necessary and we want them to continue to do
business , but in a leagel way. All we want is our full share of work.
We do not want to strike as this would cause a hardship to the public and to our
visitors . We have no money to spend on lawyers or court cost . All we want is,
our God, given right to make a living and to be able to support our homes and
families. We will appoint a deligation of our own choosing three drivers and three
•owners to meet with you and disgus this problem. Again we are asking your help.
Yours Truly,
(S) John A. Kurtz,
JOHN A. KURTZ.
.See petition attached.
734-0 7 0-64-vol . 14 5-9 3
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To ALL OUR EMPLOYEES
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, we hereby notify you that:
WE WILL NOT terminate or cause the termination or otherwise discriminate
or cause any discrimination against any employee, including all drivers of taxi-
cabs, whether owners or nonowners, for presenting or voicing any grievance
concerning working conditions or matters affecting the earning opportunities
of persons driving cabs within our System, or threaten to do so.
WE WILL NOT in any other manner interfere with, restrain, or coerce any of
you in the exercise of your right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of your own
choosing, and to engage in other concerted activities for purposes of collective
bargaining or other mutual aid or protection.
WE WILL restore John A. Kurtz to eligibility as a driver within our System,
including eligibility for radio dispatch and loading of cabs, and hiring or reten-
tion by any owner or lessee who wants to do so.
WE WILL notify John A. Shaw, Dominic A. Bruno, Dante Vergilli, Earl E.
Shiffiet, and Louis J. Wine, by radio dispatch and also by letter with a copy to
John A. Kurtz that we have taken the above action and also that we withdraw
all objection to their hiring or retaining John A. Kurtz as a driver for them,
and that their doing so will not be a basis for declaring them in default under
their contract or withholding approval of assignment of any such contract to
Shaw, or of any other reprisal.
WE WILL make John A. Kurtz whole for any losses in earnings he sustained
by reason of the discrimination against him, with interest at the rate of 6 percent
per year.
RED Top CAB AND BAGGAGE CO., CHECKER CAB OPERATORS,
INC., YELLOW CAB COMPANY OF MIAMI, B & S TAXI
CORP., SEPARATELY AND AS THE YELLOW CAB SYSTEM,
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.
If you have any question concerning this notice or compliance with its provisions,
you may inquire by mail, telephone, or in person at the Board's Twelfth Regional
Office at the Ross Building, 112 East Cass Street, Tampa 2, Florida, Telephone
No. 223-4623; or its local suboffice at 1200 SW. First Street, Miami 35, Florida,
Telephone No. Fr. 7-1114.
Whiting Milk Company and District #38, Lodge #264, Inter-
national Association of Machinists, AFL-CIO. Case No. 1-CA-
4044. February 3, 1964
DECISION AND ORDER
On August 22, 1963, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practices and
recommending that the complaint be dismissed in its entirety, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel filed exceptions to the Intermediate Report and a sup-
porting brief.
145 NLRB No. 137.