Transportation Promotions, Inc., et al.

National Labor Relations Board - Board Decisions

Nov 15, 1968

173 N.L.R.B. 828 (N.L.R.B. 1968)

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transportation Promotions , Inc., et al. and Taxi
Drivers Union , Brotherhood of Railway , Airline
and Steamship Clerks , Freight Handlers , Express
and Station Employees , AFL-CIO, ' Petitioner.
Case 12-RC-3043
November 15, 1968
DECISION AND DIRECTION OF ELECTION
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Herbert N. Watterson,
Hearing Officer of the National Labor Relations
Board.2 After the close of the hearing, the Employer
and the Petitioner filed briefs with the Board.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Petitioner seeks a unit of all full-time and
regular part-time taxi drivers employed in the
"Yellow Cab System" in Miami, Florida. The Em-
ployers represented by counsel at the hearing contend
that they cannot be treated as one Employer to
satisfy the Board's jurisdictional standard for taxicabs
in that each is an individual employer and moved to
dismiss on this ground. In addition, the Employers
claim that Transportation Promotions, Inc., Grey-
hound Corporation, and Red Top Sedan Service, Inc.,
cannot be included in any unit found appropriate
because they do not own taxicabs and do not employ
taxicab drivers. However, certain Employers and
Petitioner stipulated that, if an overall unit of
employees of various employers is found appropriate,
the combined volume of business of these employers
exceeds $500,000, and they annually purchase in
excess of $50,000 worth of products directly or
indirectly from outside the State of Florida.
Transportation Promotions, Inc., is a corporation
which operates a centralized and integrated dis-
patching office in the operation of the Yellow Cab
System in Miami, Florida. Transportation Promo-
tions, Inc., herein called TPI, functions as a dues
collecting agency for all the dues paid by cab owners
operating in the Yellow Cab System, in addition to
obtaining insurance, repairing meters and radios,
supplying trip sheets and receipts, and handling the
radio dispatch work which is contracted to another
party, Radio Communications Company, actually an
individual, Jason Boyer. TPI is located at 1000 N.W.
Lejeune Road, along with Red Top Sedan Service,
Inc., Yellow-Rent-A-Car, and Miami Beach Air Trans-
portation which owns the property at 1000 N.W.
Lejeune Road and rents to Red Top Sedan Service,
Inc., and Big Ten Corporation, a large fleet owner
within the Yellow system. The officers of all the
above-mentioned corporations, except Big Ten, are
Stanley Segal , Norton Segal, John McKenna, George
Christie, and Jim Hanley, and all the stock is owned
by Greyhound Corporation.
Taxicabs operating in Miami, Florida, operate
under a permit granted by the city of Miami. Other
taxicabs, such as cabs operating under Dade County
permits, can discharge within the city limits, and this
includes those cabs operated by Airport Taxi Com-
pany which provides shuttle service at the Miami
International Airport. All cabs within the Yellow
system operating under the city of Miami permits are
required to have the words Yellow Cab System Miami
painted on the vehicles.
In a prior case involving the Yellow Cab System,3
the Board found that the five Respondent corpora-
tions involved there operating as members of the
Yellow Cab System were joint employers of the cab
drivers in the system. In addition to the corporations
above named, the Yellow Cab System presently is
composed of approximately 26 members4 who pay
dues to TPI and who own about 232 taxi permits.
Many of the members are fleet owners, having a
substantial number of permits and cabs . A few cabs
are individually owned. All pay weekly dues to TPI,
and all cabs within the Yellow system, including the
shuttle cabs at the airport, have the same telephone
number. All must be painted black and yellow and are
required to have the name Yellow Cab and same
telephone number painted on the vehicles.
I The name of the Petitioner appears in the caption as amended at
the hearing.
2 After the hearing and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations , Series 8, as amended, the
Regional Director issued an order transferring the case to the National
Labor Relations Board for decision.
3 Red Top Cab & Baggage Co., 145 NLRB 1433.
4 The corporations or individuals who control permits within the
Yellow Cab System and named as employers are: Yellow Cab Company,
81 permits , Big Ten Taxi Corp., 41 permits , B & S Taxi Corp., 27
permits, Checker Cab of Coral Gables, 9 permits, corporations con-
trolled by the Ziblers including Zibler Taxicab Service, Incorporated,
Hurricane Taxi Incorporated , and Sun Cab Company, which account for
21 permits; Checker Cab of Miami, 17 permits; Checker Cab Operators,
Inc., 17 permits, Leo Wishman , 1 permit ; Ally Cab Corp ., 1 permit; A.
Breeze, 7 permits , Wimgell , Inc., 5 permits, L. J. & C. L. Wine, 1 permit;
United Cab #/ 1, Inc., 1 permit ; So-Net , Inc., 1 permit, Louis
Zuckerman , 1 permit ; Fibro Cab Corp., at least i permit; Soyco Cab
Corp., Airport Taxi Company, operating the shuttle service at the
airport under Dade County permits, Associated Cab Corporation,
Donboat Investments , Inc., and Little Four Cab and Leasing Corpora-
tion , all presently engaged in buying permits in the Yellow system; and
Red Top Cab & Baggage Co., allegedly defunct , but formerly held the
franchise to the International Airport , and d /b/a Yellow Cab , Miami,
holds the present F.C.C. license , which does not expire until 1970, to
operate the two-way radio.
173 NLRB No. 114
TRANSPORTATION PROMOTIONS 829
In return for the weekly dues paid TPI, owners
receive the benefits of TPI's central dispatching
service; are allowed to pick up passengers at the
airport, under rights secured by Red Top Sedan's
exclusive franchise agreement with the Dade County
Port Authority; can operate taxi service from
Southern Bell Telephone Company and Seaboard
Railway Station under exclusive arrangements with
these companies either through TPI or Red Top;
receive insurance and the services of a "Safety
Director"; have license plates obtained by the system;
can carry advertisements negotiated by TPI which
reduces the amount of weekly dues; are represented
before rate agencies, receive stationery, trip sheets,
and advertising material; have central office handling
of charge accounts; are provided with taxicab financ-
ing through the system; and receive instructions
regarding radio dispatch procedures and airport
procedure and a list of taxi stands. In addition the
central office at TPI maintains a file, allegedly for
insurance purposes, of approximately 1,000 drivers,
600 of whom presently drive, who are available and
eligible to drive within the system. Although members
are not required to utilize all of the above-mentioned
services, and there is evidence indicating that some
members, particularly fleet owners, do not exclusively
use all of the services, it is significant that such
services are provided and available and are utilized
universally to some extent.
Some owners operate their own cabs, and lease the
cab to other persons on another shift, some Employ-
ers lease cabs on a daily or weekly basis, while other
drivers are purchasing the permit to operate the cab
they are driving. When a prospective driver enters the
Yellow Cab System, he must be sponsored by the
System, or an employer within the System, cleared by
Jason Boyer, and recorded, if he obtains a hack
license, in the central personnel files. If a driver
purchases a cab, title remains in the Yellow Cab
System for insurance purposes and all registration
papers are kept at 1000 N.W. Lejeune Road. Admit-
tedly control and discipline of the drivers was
formerly applied by a "Board of Directors" selected
from owners of certain companies within the System.
Although testimony by one owner indicated that the
board no longer exercises disciplinary action, contra-
dictory testimony shows that the authority to exer-
cise disciplinary action still exists.
What amounts to central financial control is still
exercised by the Segal family. It is clear that the
Segals are officers of TPI, to which all members pay
weekly dues, that they are officers of Red Top Sedan,
which holds the exclusive franchise to the airport, and
that they control the permits being sold to indivduals
in the following manner: the purchasing "owner"
5 Checker Cab Co., 141 NLRB 583, enfd . 362 F.2d 692 (C.A. 6,
1966), cert. denied 385 U.S. 1008 ( 1967).
purchases one share of Class A common stock of the
Yellow Cab Company of Miami, Inc., from the Segals
for which he is entitled to one city of Miami and
Dade County taxicab permit from the Corporation,
Yellow Cab Company of Miami, Inc. The permit
remains the property of the Segals and the Corpora-
tion until the purchase price is fully paid. There are
95 shares of class A stock which elects three directors
and 190 shares of class B common stock, owned by
the Segals, which elects four directors. After payment
in full, the purchaser gets title to the class A stock,
but not the permit or certificate, which remains in the
name of the corporation. However, if the purchaser
desires the certificate in his name, he can obtain it,
but would then forfeit his stock in the corporation
and would be out of the Yellow Cab System, as the
Segals specifically reserved the trade name "Yellow
Cab" for corporations controlled by the Segals.
Upon all of the foregoing, we find that TPI, Red
Top Sedan, Red Top Cab and Baggage, Miami Beach
Air Transportation, Greyhound Corporation, and
each of TPI's dues paying members are a joint
employer in a common enterprise. In reaching our
conclusion, we rely particularly on the fact that the
Yellow Cab System represents itself to the public as a
single integrated enterprise, and the evidence of
authority, through the board of directors, to exercise
a uniform labor policy, including effective discipline
of drivers and owner-drivers, for all cabs within the
Yellow Cab System. Therefore, we find it appropriate
to combine the gross revenues of all the Employers
within the Yellow Cab System for jurisdictional
purposes.5 As the combined revenues thus exceed
$500,000, and as legal jurisdiction is present, we
further find it will effectuate the policies of the Act
to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees.
3. A question affecting commerce exists con-
cerning the representation of certain employees of the
Employers within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all
full-time and regular part-time taxicab drivers of all
who pay dues to Transportation Promotions, Inc.,
and participate in the Yellow Cab System, including
percentage drivers, daily and weekly lease drivers,
yearly lease drivers, and single owner drivers who do
not hire other persons, but excluding garagemen,
mechanics, dispatchers, office clerical employees,
guards, and supervisors as defined in the Act. The
Employers are opposed to the systemwide unit, and
would dispute the inclusion of lease drivers.
As evidenced by our findings above, drivers of cabs
within the Yellow system have mutual employment
interests. They work under an operational system
which gives the appearance of a single integrated
enterprise and Petitioner seeks to represent them in a
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit which is consonant with this manner of opera-
tions. No other union seeks to represent the drivers
on any other basis. Under all the circumstances,
including our finding of a joint employer relationship
herein, we find a unit of all employees driving cabs
within the Yellow Cab System to be appropriate.
The Employer contends that the lease drivers
sought by Petitioner are independent contractors and
thus not employees within the meaning of Section
2(3) of the Act. The record shows that some
Employers lease cabs to drivers on a daily, mileage,
weekly, or yearly basis, but it does not disclose the
number of drivers who lease in any form. The lease
driver pays rental for use of the cab, and the terms
and conditions of the lease are controlled by the
lessor. All lease drivers carry advertising on their cabs
identifying the cab as part of "Yellow Cab System
Miami" with the Yellow system telephone number,
besides carrying the advertising negotiated by TPI.
Like all other drivers, lessees receive and are subject
to the radio dispatch procedure of the Yellow system,
the airport rules and operating procedure, and regula-
tions of the Police Department of Miami. Lease
drivers, as well as all other drivers, including owner-
drivers, have been subject to the disciplinary action of
the board of directors, whose authority still exists.
Although some of the leases specifically state that
the status of the lessee is that of an independent
contractor, we must look to the facts to determine
the status of those so alleged. We have frequently held
that the Act requires application of the "right of
control" test in determining the status of persons
alleged to be independent contractors. Where the
person for whom the services are performed retains
the right to control the manner and means by which
the result is to be accomplished, the relationship is
one of employment; while, on the other hand, where
control is reserved only as to the result sought, the
relationship is that of an independent contractor. The
resolution of this question depends on the facts of
each case, and no one factor is determinative.
Upon the entire record in this case, we find that
the lease drivers do not possess the independence of
action as to the manner and means of accomplishing
their work, which is an essential characteristic of an
independent contractor. Thus, the lease drivers are
subject to the same rules and regulations of the
Yellow system as employee drivers and are committed
to the Yellow system for radio dispatch calls and
servicing the airport. Even the lease agreement in
evidence shows that the lessor provides insurance, and
provides telephone and radio service. Indeed, it
appears that the only differences between employee
drivers and lease drivers are that lease drivers pay a set
fee for use of the cab and are not required to turn in
trip sheets to the employer, who does not pay social
security or workmen's compensation taxes for them.
The more substantial showing in this case is that the
degree of control exercised by the employer is such as
to establish that the lease drivers are employees
within the meaning of the Act.
Accordingly, we find on the basis of the entire
record, that the following unit is appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All full-time and regular
part-time taxicab drivers,6 including owner-drivers
who do not hire others and lease drivers, of employers
paying dues to Transportation Promotions, Inc.,
excluding garagemen, mechanics, dispatchers, office
clerical employees, guards and supervisors as defined
in the Act.
[Direction of Election7 omitted from publication.]
6 Eligible to vote as drivers would be all regular drivers , lease drivers,
owner drivers who employ no other drivers , and regular part-tune
drivers who have worked at least 2 days per week in 4 of the 6 full
weeks immediately preceding the date of the direction of the election or
have worked at least 1 day per week in 13 of the 16 full weeks
preceding the date of the direction of election . See, Association of
Independent Taxicab Operators , Inc., t/a Diamond Cab, and Its
Members, 164 NLRB No. 110.
7 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 12 within 7 days after the date of this Decision and
Direction of Election. The Regional Director shall make the list
available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.
Excelsior Underwear Inc., 156 NLRB 1236.