Yellow Cab Co. And Dixie Cab Co.

National Labor Relations Board - Board Decisions

Jan 9, 1985

273 N.L.R.B. 1344 (N.L.R.B. 1985)

1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
City Cab Company of Orlando, Inc.; Yellow Cab
Company of Orlando, Inc. d/b/a Yellow Cab
Company and Dixie Cab Company and Yellow,
City, Dixie Independent Cab Drivers Associa-
tion. Cases 12-CA-8705 and .12-CA-9788
9 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 26 August 1983 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The Board has considered the decision and the
record in -light of the exceptions 1 and briefs2 and
has decided to affirm the judge's rulings, findings,3
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, City Cab
Company of Orlando, Inc., Yellow Cab Company
of Orlando, Inc. d/b/a Yellow Cab Company and
Dixie Cab Company, Orlando, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I We note that the Respondent does not attempt to relitigate in this
proceeding the status of its drivers as employees within the scope of Sec.
2(3) of the Act.
'The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
3 In the penultimate paragraph of sec. III,A,3(b) of his decision, the
judge states that Union Secretary Angelo Spedale testified that there
were two other cab companies in Orlando. The record establishes that
this evidence was introduced through the testimony of Respondent's
night manager Duane Johnson. 'Also, in the first paragraph of sec. III,B,4
of his decision, the judge states that the Respondent's argument that the
complaint is defective because not based on timely filed charges is "ex-
pressly linked" by the Respondent to its argument that the settlement
agreement was improperly set aside by the Regional Director. However,
in its posthearing brief to the judge, and again in its brief in support of its
exceptions, the Respondent did assert, as an alternative argument, that
even if the settlement agreement had been properly set aside, the com-
plaint would still be barred by Sec. 10(b). We reject the Respondent's ar-
guments in this regard. In affirming the judge's finding that the settle-
ment agreement was properly set aside, we find it unnecessary to address
the issue of whether the complaint would have been barred by Sec. 10(b)
if the settlement agreement had not been properly set aside.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charges in this proceeding were filed on dates de-
scribed hereinafter by Yellow, City, Dixie Independent
Cab Drivers Association (the Charging Party or the
Union). A consolidated complaint issued on September 1,
1982, alleging that City Cab Company of Orlando, Inc.,
Yellow Cab Company of Orlando, Inc. d/b/a Yellow
Cab Company and Dixie Cab Company (collectively Re-
spondent) changed the cab rental fees paid by, or the
working conditions of, its drivers, in 29 separate in-
stances: 6 on May 1, 1979, 9 in the last 4 months of 1979,
10 in 1980, and 4 in 1981. The complaint alleges that
these acts were engaged in without giving the Union
prior notice and an opportunity to bargain, and were
therefore violative of Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act).
A hearing was held before me on these matters in Or-
lando, Florida, on November 15 and 16, 1982. On the
entire record, including my observation of the demeanor
of the witnesses, and consideration of briefs filed by the
General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The various companies collectively designated as Re-
spondent are affiliated business enterprises with common
officers, ownership, directors, management, supervision,
a common labor policy, and shared common premises
and facilities. They have provided services for each
other, have interchanged personnel with each other, and
have held themselves out to the public as a single inte-
grated enterprise. Because of these factors, Respondent
constitutes a single employer within the meaning of the
Act. During the calendar year preceding issuance of the
complaint, Respondent derived gross revenues in excess
of $500,000 and purchased and received at its Orlando,
Florida facility parts and supplies valued in excess of
$10,000, which were shipped directly to it from points
located outside the State of Florida. Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer denies that the
Union is a labor organization. However, on October 26,
1977, the Union was certified by the National Labor Re-
lations Board (the Board) as the exclusive representative
of Respondent's drivers (G.C. Exh. 14). Thereafter, the
Board found with judicial approval that the Union is a
labor organization within the meaning of the Act. City
Cab Co. of Orlando, 242 NLRB 94 (1979), enfd. 628 F.2d
261 (D.C. Cir. 1980). I reaffirm these prior findings.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Summary
1. The allegations of unilateral changes in Case 12- •
CA-8705 and the settlement agreement
After . the Union's certification in 1977 as described
above, the parties bargained, and entered into an interim
collective-bargaining agreement in March 1978. Thereaf-
ter, based on a judicial decision in another case finding
273 NLRB No. 131
TEXACO, INC 1343
It is apparent from Waggoner's testimony that he had
decided to support the strike as soon as he felt able to be
present on the picket line. Inasmuch as he admittedly ap-
peared on the picket line to ascertain that his prospective
picketing duty was scheduled for January 10, he must
have presented himself at the strike headquarters on Jan-
uary 9. Furthermore, since he presented himself at the
temporary strike headquarters, i.e., 15-20 feet from the
actual picket line, and for the purpose of reading the
posted picket schedule to ascertain his tour of picket
duty, I conclude that he enmeshed himself in the strike
to an extent that he is disqualified from the receipt of
any A&S benefits after January 8.
12. Joe Weger
Weger, an employee of 15 years' tenure, had experi-
enced reoccurring medical problems with respect to his
inner ear over a period of 10 years. From January 7
through January 8 he received A&S benefits while on
sick leave. He testified that he joined the strike on Janu-
ary 13 and commenced picketing duties. Weger engaged
in no conduct supportive of the strike prior to January
13.
It appears that there is a factual dispute as to whether
Weger was so ill as to have precluded him from working
between January 8 and January 13. The examining physi-
cian executed a report dated January 4 which suggests
that it was not recommended that Weger refrain from
working. The Respondent takes the position that Weger
was erroneously paid A&S benefits on January 7. His
benefits were terminated, however, because of the strike
activities of other employees. The Respondent at no time
made a determination that Weger was not able to per-
form his work duties from January 7 through January
13, and refrained from making such determination be-
cause of the pendency of this unfair labor practice
charge. Inasmuch as the evidence is insufficient to make
any such determination herein, I conclude only that
Weger was entitled to A&S benefits that he would have
received from January 8 to January 13 had it not been
for the strike activities of his fellow workers I leave to
the compliance stage of these proceedings the resolution
of whether he would have been precluded from A&S
benefits for any other reason.
13. Clarence Zehner
Zehner, a union member, suffered what appeared to be
the symptoms of a heart ailment on January 2, 1980. He
went on sick leave and received A&S benefits. After
taking a "treadmill" test on January 11, he was medically
released to work as of January 14. Instead of reporting
to work on January 14 he joined the strike and com-
menced picketing on a regular basis. Prior to January 14
he was physically unable to picket. He engaged in no
conduct supportive of the strike prior to January 14 I
conclude that he is entitled to A&S benefits that he
would have otherwise received from January 8 to Janu-
ary 14 had it not been for the strike action of other em-
ployees.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. On January 8, 1980, the Respondent notified em-
ployees that accident and sickness benefits for union
members would be discontinued upon the commence-
ment of a lawful strike and thereby interfered with its
employees' nghts under the Act in violation of Section
8(a)(1) of the Act.
4. On January 8, 1980, the Respondent discontinued
accident and sickness benefits for employees who were
members of the Union and who had been receiving said
benefits prior to a lawful strike engaged in by other em-
ployees represented by the Union, and of whom the Re-
spondent had no information that they had shown public
support for the strike; and by such conduct the Respond-
ent interfered with its employees' rights to engage in
protected concerted and union activities thereby violat-
ing Section 8(a)(3) and (1) of the Act.
5. The above-described unfair labor practices affect
commerce within the meaning of the Act.
THE REMEDY
It having been found that the Respondent unlawfully
withheld accident and sickness benefits to employees re-
ferred to in this decision, it is recommended that the Re-
spondent be ordered to pay each of them whatever acci-
dent and sickness benefits were due to them from Janu-
ary 8, 1980, to the date of their recovery or the date
they actively participated in strike activity or publicly
supported the strike, whichever was sooner, with inter-
est, had their fellow employees not engaged in a strike
[Recommended Order omitted from publication.]
CITY CAB CO. OF ORLANDO 1345
certain taxi drivers to be independent contractors, Re-
spondent withdrew recognition from the Union in No-
vember 1978. The Union filed a charge in December
1978 (Case 12-CA-8436) and, following the General
Counsel's Motion for Summary Judgment, the Board's
Decision and Order issued in May 1979, finding that Re-
spondent had violated Section 8(a)(5) and (1) by refusing
to bargain with the Union. City Cab Co. of Orlando,
supra. Respondent thereafter filed a petition for review
of that decision, and the Board filed a cross-application
for enforcement. The Union made a written request that
Respondent bargain with it, and the Company answered
with a written refusal (G.C. Exhs. 4 and 5).
On July 3, 1979, 2 months after issuance of the Board's
decision in the first case, the Union filed the charge in
Case 12-CA-8705, and complaint issued on July 25,
1979, alleging six instances of unilateral changes in the
terms and conditions of the drivers' employment on May
1, 1979, in violation of Section 8(a)(5) and (1). In general,
these constituted increases in the Company's charges to
the drivers for leasing a cab, or as the Company put it,
"selling services" to the drivers.'
The following month, August 1979, the parties entered
into an informal settlement agreement with the approval
of the Regional Director for Region 12. The agreement
itself is on one of the Board's standard forms for such
purposes, which include a provision that the charged
party will "make whole the employees named below by
payment to each of them of the amount set opposite his
or her names." No employees are so named in the agree-
ment, but the parties included a clause in the backpay
section that Iblackpay will be computed in accordance
with established agency policy" (G.C. Exh. 3(a)). Union
President Cruz testified that he understood that the
agreement required the Company to compensate the
drivers for all monetary losses from 1979 until the date
of an agreement on rental rates.
The agreement also requires the charged party to post
a notice, and to comply with its terms and provisions. In
the notice Respondent states that it will if necessary
make whole any employees who have incurred monetary
loss as a result of "any" unilateral changes in terms and
conditions of employment (G.C. Exh. 3(c)). A further
clause in the agreement specifies that execution of the
agreement does not constitute an admission that the
charged party has violated the Act (G.C. Exh. 3(a)).
At the same time, the parties and the Regional Direc-
tor for Region 12 entered into a stipulation providing
that the settlement agreement would be null and void if
the reviewing court in the first case rejected the Board's
position that the drivers were employees as defined in
the Act. On the other hand, if the court rejected Re-
spondent's position that the drivers were independent
' The Company also employs "commission drivers," who are pawl a
commission on all fares. They are not involved in this proceeding. As in-
dicated in the prior record, the Company attempted to change from com-
mission drivers to contract drivers, whom It called Independent contrac-
tors. Company President Mears testified in the instant proceeding that
this was not entirely successful, because.the contract drivers would refuse
to accept a call if they considered it unprofitable. The Company was
therefore unable to provide complete service. Accordmgly, It now retains
a limited number of commission drivers, whom it may order to take calls,
according to Mears.
contractors, then Respondent agreed "to remedy the vio-
lations alleged in the instant case by immediately abiding
by and giving full force and effect to the Attached Infor-
mal Settlement agreement" (G.C. Exh. 3(e)).
During the remainder of 1979 and the first part of
1980, Respondent .pursued its appeal from the Board's
decision in the first case. The decision of the Court of
Appeals for the District of Columbia Circuit, enforcing
the Board's Order, issued on July 30, 1980 (id.). Re-
spondent filed a petition for rehearing in August 1980,
and this was denied in September 1980.
2. The bargaining history, and Respondent's
objections to Union President Cruz
William Cruz, 2 the Union's president, had worked for
and had been discharged by Respondent. Cruz filed an
unfair labor practice charge and then withdrew it. He
thereafter drove a cab, and was active in the organiza-
tion of an "Independent Taxi Owners Association"
(IATO). In July 1980 he issued a notice to members of
the association, in which he referred to the members as
"we (Independent Owners)" (R. Exh. 3). Cruz drove a
cab for another company, but was not an owner of the
company according to the credible testimony of Angel
Santiago. Nor was he a member of IATO since his wife
owned the cab which he drove.
Following denial of Respondent's request for rehearing
in September 1980, the Union's attorney sent a letter to
Respondent's attorney in November 1980 requesting bar-
gaining "after three years of litigation" (G.C. Exh. 9).
On the same day, Respondent's attorney wrote a letter to
Cruz asserting that the Company was not obligated to
bargain with a committee of which Cruz was a member,
because of his "past conduct" as a driver for the Compa-
ny and his "present position with another competitive
taxicab company" (G.C. Exh. 8). Nonetheless, Cruz was
present as a member of the union negotiating team when
the parties commenced bargaining in January 1981.
The court's decision in the first case shows that Re-
spondent had 115 out of a total of 127 taxicab permits
issued by the city of Orlando (City Cab Ca of Orlando,
628 F.2d 261 (D.C. Cir. 1980)). Cruz spoke with the
city's mayor in favor of "deregulation," the issuance of
additional permits, and what he called the "free enter-
prise" . system. The principal proponent of deregulation
was the city attorney, according to Company President
Mears. In February 1981, Cruz testified at a meeting of
the Orlando city council, and opposed the system of
rental fees charged to drivers by Respondent (R. Exh. 4).
In March the city increased the allowable number of per-
mits to 220, which posed a threat to Respondent accord-
ing to Mears. He protested Cruz' actions, and, in April
1981, filed a charge against the Union alleging violation
of Section 8(b)(3) (R. Exh. 5). Cruz then voluntarily
withdrew from the contract negotiations pending disposi-
tion of the charge.
On June 12, 1981, the Regional Director for Region 12
dismissed the 8(b)(3) charge. His letter of dismissal indi-
cates that Respondent had made a number of allegations.
2 Cruz' full name is William Cruz Pizzaroz.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In response, the Regional Director stated that "there is
no evidence that Cruz has operated a business in compe-
tition with the Employer or has been affiliated with any
competitor of the Employer." As for the evidence that
Cruz supported deregulation which would hurt Respond-
ent economically, the dismissal letter observes that "the
union represents commissioned drivers of the Employer
whom deregulation would help, as well as salaried driv-
ers. Cruz' pursuit of the interests of those bargaining unit
employees whose interests do not totally coincide with
the Employer's is deemed insufficient to bar him from
bargaining with the Employer on behalf of all unit em-
ployees" (R. Exh. 6).
Cruz thereafter returned to the negotiations, and was
present on July 21, 1981, when the parties reached agree-
ment on cab rental rates, including a $42 daily rate. This
was incorporated in a collective-bargaining agreement
which the parties executed on February 2, 1982 (G.C.
Exh. 7).
3. The Region's efforts to secure compliance with
the settlement agreement
As these events were taking place, the compliance offi-
cer for Region 12 was attempting to obtain compliance
with the settlement agreement in Case 12-CA-8705, fol-
lowing the court's denial of Respondent's petition for re-
hearing in September 1980. Respondent did post the
notice set forth in the agreement. However, the Region
was unsuccessful in getting Respondent to undertake the
additional action which, the Region believed, was re-
quired by the settlement agreement.
a. The backpay issue
Robert R. Morley, an expenenced compliance officer,
testified that Respondent owed "substantial backpay"
under the settlement agreement. He computed the
amount due under existing Board policy, utilizing three
different time periods. The amounts under these three al-
ternative calculations were $200,000, $400,000, and
$800,000, respectively. In making these computations,
Morley used the drivers' records of their trips, since the
Company contended that it did not keep such records
beyond 90 days.
Morley was unable to obtain agreement on backpay
from Respondent and, following a conference with the
Regional Director in September 1981, Respondent deliv-
ered a letter to the Regional Director setting forth the
conclusion that it did not owe any backpay, with the fol-
lowing arguments.
1. The Company has not increased the rental rates
charged to drivers since the date of the court's decision,
and therefore owes no backpay. (This argument implies
that the settlement agreement requires compliance only
from the date of the court's decision.)
2. There could have been no bargaining with the
Union from August 1979 until September 1980 because
the Union was "defunct," and its president Cruz was at-
tempting to destroy Respondent's business.
3. The settlement agreement only contemplated back-
pay as a result of "monetary loss" sustained by the driv-
ers. Even if there had been "improper 'unilateral
changes," there was no such loss for reasons which are
"a bit complex." The taxicab business is "volatile," and is
related to seasonal changes. "When the rates are in-
creased some drivers leave, thus leaving more business
for the remaining drivers." Respondent supplied data
purporting to show an increase in rental rates from 1978
through 1980, and an increase in drivers' net income. Ac-
cordingly, it argued in its letter, additional backpay to
the drivers would provide them with a "windfall" (G.C.
Exh. 15).
On the other hand, compliance officer Morley, who
examined the tax records of some the drivers, testified
that most of them asserted their income had declined
after the rental changes. Union Vice President Robert
Harris gave similar testimony. As for any causal relation-
ship between the rental changes and what the Company
contended were increases in net driver income, Mears
agreed that there was one minor fare increase allowed by
the city during the period covered by his figures. He also
stated that his computations did not include the price of
gasoline purchased by the drivers.
In July 1982, Respondent delivered a letter to Region-
al compliance officer Morley offering to pay "50% of
the amount computed per driver for period involved"
(G.C. Exh. 16). 3 The Region considered this offer to be
unacceptable.
b. Respondent's rationale for rental increases
Mears provided a rationale for higher rental fees
charged to the dnvers. Thus, he contended that the
higher fees reduce the number of drivers willing to pay
it, and thus increases the amount of business available to
the remaining drivers. He was asked whether these re-
maining drivers had to work harder in order to make the
same income they had earned at the lower rental fees.
Although Mears contended that they did not have to
work any "longer," he agreed that they had to make
"more trips." In general, Mears argued that the Compa-
ny had to "walk a fine line" in providing needed revenue
for the Company, a fair living for the drivers, and ade-
quate taxicab service for the city. Accordingly, he assert-
ed that the rate changes were in accordance with past
practice and were economically justifiable.
Mears stated that the "history of rates has generally
been higher not lower." He said there were "seasonal ad-
justments" and "technical adjustments." As an example
of the latter, the company president testified that it is dif-
ficult to get drivers to work on holidays. Accordingly,
he reduces the rates during these periods to induce more
3 The offer was introduced by the General Counsel during redirect ex-
amination of compliance officer Morley During cross-examination, Re-
spondent's counsel had asked Morley about their "many discussions" of
the backpay issue, including the nature of "any offers or proposals" made
by Respondent In response, Morley made reference to a "letter" from
Respondent On redirect examination he identified the Company's July
1982 letter as the one he was referring to on cross-examination The doc-
ument was received over Respondent's objection on the ground that the
General Counsel had the right on redirect examination to introduce evi-
dence pertaining to matters brought up on cross-examination My ruling
included the provision that receipt of the document was not for the pur-
pose of establishing any backpay obligation or the commission of an
unfair labor practice
CITY CAB CO OF ORLANDO 1347
drivers to take out cabs. Other factors taken into account
are consumer demand, and changes in the rates which
the city allows the drivers to charge the customer. If
that rate goes up, then, as Mears frankly conceded, the
Company wants a share of the increase. He defended an
"airport surcharge" added to the fares of airport custom-
ers. In general, according to Mears, the Company seeks
to meet the demand for taxicab services with the least
possible number of cabs on the street. It also tries to limit
the mileage driven by the cabs, by use of any daily mile-
age surcharge
Mears noted that, although thei e were rental changes
subsequent to the date that the court denied Respond-
ent's request for a rehearing (September [980), none of
these changes went above the rate then in effect, $36,
until the date the parties agreed on a $42 rate in July
1981.
Other witnesses gave different versions of the rate
changes Angelo Spedale, a union official, said that
Mears changed the rates so often that the drivers could
not keep up with them. Duane Johnson was a former
union president who was replaced by Cruz Called as a
witness by Respondent, he affirmed on cross-examination
that the Union was formed because Respondent was
changing the rates "unpredictably," that the drivers did
not know what to expect, and that a few of them were
forced out of business by the changes. Although there
were two other small cab companies according to Spe-
dale, they had only about 12 cabs, and Respondent was
the only employer who, as a practical mai ter, was avail-
able to an individual who wanted to drive a cab
Robert Harris, vice president of the Union, denied that
the Union's agreement to the $42 rate in July 1981 was
occasioned by agreement that a higher rate would result
in larger earnings for drivers. Although there were sea-
sonal fluctuations, the drivers lost money during a 2-year
period. The Union agreed to the $42 rate in July 1981
because they were already being charged a mileage
charge which brought the previous $36 rate up to about
$40, and because the city had just granted a fare increase
to which the drivers were "held hostage" (because the
Company wanted a share of the higher fare) Harris op-
posed the airport surcharge as coming out of the tip
which the driver could expect If the surcharge is not
collected from the customer, the driver has to pay it
c. Continued unilateral changes
The parties stipulated that Respondent engaged in five
of the six changes on May 1, 1979, alleged in the com-
plaint in Case 12-CA-8705. They also stipulated to 10
additional such changes in 1979, 5 in 1980 (including 3
after September 1980, the date of the court's denial of
Respondent's petition for rehearing), and 4 in 1981 One
of the latter, reinstatement of a daily mileage surcharge
on July 13, 1981, was the subject of a new unfair labor
practice charge in Case 12-CA-9788. Fifteen of the
changes increased the charges, surcharges, or late penal-
ties which the drivers were required to pay, while one
altered the bidding procedure, and another increased the
minimum number of shift assignments to warrant issu-
ance of a cab to a driver. Seven of the changes reduced
the charges to the drivers
Cruz testified that Respondent did not give the Union
notice of these changes or an opportunity to bargain
over them. Mears contended that the changes were
posted on the bulletin board, that Cruz must have known
of them, and that the Union never requested bargaining
concerning the changes. Mears agreed that he had about
two meetings with drivers to discuss changes and that he
did not invite union officials.
d. Setting aside the settlement agreement, and issuance
of the consolidated complaint
By letter to the parties dated August 26, 1982, the Re-
gional Director for Region 12 set aside the settlement
agreement because it had "failed in its purpose and be-
cause of allegations of post-settlement violations of the
Act" (G.0 Exh. 3(0). Thereafter, as indicated above, the
consolidated complaint issued on September 1, 1982.
B. Legal Conclusions
1 Interpretation of the settlement agreement
Respondent contends that the settlement agreement re-
quires it to remedy only the violations alleged in the
complaint in Case 12-CA-8705, i e., the unilateral
changes on May 1, 1979. "[T]here was no promise to re-
frain from making future changes except one that by the
terms of the settlement would not take effect until the
appellate court had issued its ruling"
I conclude that this argument is erroneous. The settle-
ment agreement requires Respondent to comply with the
terms of the notice, and the latter requires the Company
to make employees whole for monetary loss suffered as a
result of "any" unilateral changes in terms and condi-
tions of employment When Respondent executed the
stipulation, it agreed to "give full force and effect" to the
settlement agreement upon losing its appeal, and thereby
undertook to make whole employees suffering monetary
loss as a result of "any" unilateral changes.
As a corollary argument, Respondent seizes on the re-
quirement in the stipulation that it give full force and
effect to the settlement agreement "immediately" (on loss
of its appeal), and argues that this shows that prior viola-
tions—other than those allege in the complaint—were
not included. This is not a reasonable interpretation of
the language in the stipulation. The word "immediately"
describes when it is that Respondent shall comply with
the settlement agreement, i e., without delay on loss of
its appeal. It does not specify the actions required to
constitute compliance with the settlement agreement.
Having been charged with unfair labor practices, and
having conditionally agreed in August 1979 to remedy
"any" such practice upon rejection of its position by the
court, Respondent committed additional such practices at
its peril
This dispute has limited relevance in any event, since
it pertains only to the unilateral changes taking place
after May 1, 1979, and before July 30, 1980, when the
court issued its "rulings" in September (in the language
of Respondent's brief) Respondent admits that the agree-
ment covers the May 1, 1979 changes, and all those
taking place after the court's "ruling." As the record
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows, Respondent committed further violations after the
court issued its ruling, and, indeed, committed seven of
them after September 1980, when Respondent's petition
for rehearing was denied.
2. Setting aside the settlement agreement
a. The continuing unilateral changes
Respondent's continued unilateral changes, which I
conclude hereinafter were unfair labor practices, are suf-
ficient to justify setting aside the settlement agreement.
Respondent argues to the contrary, citing Radio Station
KHMO, 102 NLRB 26 (1962); Deister Concentrator Co.,
253 NLRB 358 (1980); and Utrad Corp., 185 NLRB 434
(1970). Respondent apparently relies on KHMO because
of its asserted belief that the unilateral changes herein did
not violate the settlement agreement. This is clearly in-
correct, and KHMO actually supports the General Coun-
sel's position. Deister is not on point, because the post-
settlement violations therein were unrelated to the pre-
settlement violations, whereas they are closely related in
the case at bar. Indeed, they are identical in nature.
Utrad is also inapposite, because the postsettlement viola-
tions were remote in time and did not affect the remedial
order, whereas the unilateral changes herein continued in
an unbroken sequence and directly affect the remedial
order. Authority for the Regional Director's withdrawal
of the settlement agreement herein may be found in Sheet
Metal Workers Local 80 (Sise Heating Co.), 236 NLRB 41
(1978); and Laborers (Joseph's Landscaping Service), 154
NLRB 1384 (1965).
b. The absence of agreement on backpay
The language of the settlement on backpay appears to
indicate that Respondent agreed to pay backpay to its
employees "in accordance with established agency
policy." It is also clear from Cruz' testimony that the
Union expected the Company to pay backpay to its em-
ployees. As an additional undoubted fact, Respondent
and Region 12 could not agree on an appropriate back-
pay formula or amount. Indeed, at one point in the nego-
tiations, the Company contended that it did not owe any
backpay, because the drivers had not suffered any "mon-
etary loss." Respondent continues this argument in its
brief herein. Respondent's only offer—"50% of the
amount computed per driver for period tnvolved"—is so
vague as to be meaningless. In similar circumstances the
Board has concluded as follows:
It appears obvious . . . that there was no meeting
of the minds when the settlement agreements were
executed. . . Respondent expected a liability sub-
stantially less than . . . the amount ultimately com-
puted by the Regional Director. And the Regional
Director was apparently faced with uncertainty as
to the choice of formula for making his determina-
tion. In such circumstances, we believe that it
would be inequitable to hold the parties to the com-
mitments contained in the settlement agreements,
and we find that the Regional Director did not
commit reversible error in withdrawing approval of
the settlement and reopening the case for further
proceedings. While settlement agreements are enti-
tled to be treated with sanctity and should not be
lightly set aside, we recognize that circumstances
can exist which warrant permitting withdrawal
from a settlement agreement. Such is the case here.
[Motion Picture Photographers (MPO-TV of Califor-
nia), 197 NLRB 1187 (1972).]
I conclude that the same pnnciple is applicable in this
case, and constituted further warrant for the Regional
Director's setting aside the settlement agreement.
3. Respondent's unilateral changes of its drivers'
working conditions
"Initially, it is well settled that unilateral changes in
the terms and conditions of employment, as admitted
herein, without bargaining with a union certified as ex-
clusive representative of the unit employees, violates
Section 8(a)(5)." Amsterdam Printing Corp., 223 NLRB
370, 372 (1976).
Respondent, however, argues that "changes which are
continuations of past and established practices do not
violate Section 8(a)(5) even in the absence of bargaining
. . . . Quite simply, the law is that where changes are a
normal and established fact of life for the employer and
its employees, then the existence of an obligation to bar-
gain does not require a change in that pattern." Respond-
ent relies on two decisions by the Court of Appeals for
the Fifth Circuit, NLRB v. Phil-Modes, 406 F.2d 556 (5th
Cir. 1969), enfg. in part 162 NLRB 1435 (1967), and
NLRB v. Southern Coach & Body Co., 336 F.2d 214 (5th
Cir. 1964), denying enf. of 141 NLRB 80 (1963). In Phil-
Modes, where the employer shifted from a piecework to
an hourly rate of compensation during sample-making
periods, the court's decision reads in relevant part as fol-
lows-
We cannot agree from the record before us that a
unilateral change in the wages of employees was
shown. The evidence shows that the shift to hourly
pay during the sample-making period had been ef-
fected every year that the respondents had been in
operation. While the sample-making period lasted
for different lengths of time each year, the begin-
ning, duration, and end of the period were "trig-
gered" each year by the demands of customers,
which in turn depended on whether the season for
the coats manufactured by the respondents was
early or late. There has been no finding that the
hourly rate paid during the sample-making period of
the year in question was different from that paid in
the sample-making period of any other year or even
that the total compensation during the sample-
making period had vaned. [Id. 406 F.2d at 557.]
In Southern Coach & Body, where the employer fol-
lowed past practice in giving automatic wages to new
employees 3 and 6 months after they began work, and in
paying employees according to the operation they per-
formed, the court states:
CITY CAB CO. OF ORLANDO

1349
[T]he Supreme Court clearly indicated in both the
Crompton-Highland4 and Katz5 cases that a mere
continuation of the status quo during the bargaining
period cannot constitute a disparagement of the bar-
gaining process; there must be an actual change in
working conditions. Therefore, as to the three-
month and six-month automatic increases, there is
no evidence on which to base a conclusion that sec-
tion 8(a)(5) was violated. .
An additional number of wage increases resulted
from the company's established policy of paying an
employee the wage rate applicable to a new oper-
ation when it was necessary that he perform that
operation. . . . There is no indication in the record
that the promotions deviated from past company
policy, or that there was any motive other than eco-
nomic necessity. None of the rates themselves were
altered in any fashion[.] [T]he Board argues that the
company was required to consult the union about
each of these changes because each involved an ele-
ment of discretion which precluded the union from
ascertaining whether there had been a deviation
from past company policy. In support of this con-
tention, the Board relies on NLRB v. Katz, supra,
which held, inter alia, that the granting of individ-
ual merit increases without consultation with the
bargaining agent constituted an 8(a)(5) violation.
We feel that there is a distinction between individ-
ual merit increases and the promotions which were
made in the instant case. Individual merit increases
are discretionary increases in pay based upon man-
agement's assessment of the performance of an indi-
vidual employee. They are not motivated by eco-
nomic necessity, but are a means of rewarding fa-
vored employees. The promotions involved here, on
the other hand, were necessitated by the strike, and
did not involve discretionary raises in pay. Hence,
we do not feel that section 8(a)(5) precludes an em-
ployer from making the necessary adjustments in his
work force which were made here in the absence of
some evidence that he has deviated from established
company policy or has refused to bargain with re-
. spect to the standards to be used for promotion. [Id.
236 F.2d at 217-218.]
The COurt of Appeal's for the District of Columbia
Circuit addressed the same problem as follows:
In Katz the Supreme Court held that an employer
cannot unilaterally change conditions of employ-
ment during the course of negotiations with a
union; if the company desires to alter a preexisting
practice, it must give the union an opportunity to
bargain over the change. The Court applied this
principle to distinguish between automatic wage in-
creases to which the employer has already commit-
ted itself and wage increases that are nn no sense
automatic, but [are] informed by a large measure, of
discretion?? 369 U.S. at 746, 82 S.Ct. at 1113. The
4 NLRB v. Crompton-Highland Mills, 337 U.S! 217 (1948).
5 NLRB v. Katz, 369 U.S. 736 (1962).
employer would be required to grant the automatic
wage increase unless it notified the union that it
wished to make a change in the existing conditions
of employment and gave the union an opportunity
to bargain over the change. However, the employer
could not unilaterally grant a nonautomatic, discre-
tionary wage increase since "[t]here simply is no
way in such a case for a union to know whether or
not there has been a substantial departure from past
practice." Id. Thus, the union could "insist that the
company negotiate as to the procedures and criteria
for determining such increases." [NLRB v. Blevins
Popcorn Co., 659 F.2d 1173 (D.C. Cir. 1981)].
I conclude that the record in this case does not justify
Respondent in making unilateral changes in its employ-
ees' working conditions under the criteria set forth by
the Supreme Court in Katz and explicated by the courts
cited above. Respondent had not committed itself to any
fixed practice, such as shifting employees from piece-
work to hourly compensation during sample-making pe-
riods, giving new employees automatic increases after
specific periods of employment, or changing employees'
pay in accordance with the operation they were per-
forming.
If Respondent had any practice, it was simply one of
constant change, caused by a multiplicity of factors.
Some of these, such as the totality of consumer demand
and the amount of fares allowed by the city, were
beyond Respondent's control. Others, particularly the
number of drivers willing to work for Respondent, were
directly controlled by Respondent's rental rates. The evi-
dence shows that this factor was one of the most if not
the most significant of the factors which Respondent
considered. To argue, as does Respondent, that its
changes in rental rates were merely an impersonal re-
sponse to the market, i.e., the supply of drivers available
at specific rates, overlooks the fact that it is this market,
found in the employer-employee relationship and the
terms and conditions of employment, which Federal
labor policy seeks to control, and in which an employer
is subject to legal restraints.
Mears agreed that he had to walk "a fine line" in jug-
gling the demands of the city, the financial needs of his
company, and the demands of his employees. He thus ex-
ercised a high degree of discretion in changing the rental
rates. He did so without giving notice to the Union, and
held meetings with employees on the increases without
inviting the Union.
Respondent argues that the Union failed to protest the
changes for an inordinate period of time. This argument
turns the entire settlement procedure upside down. The
Union had alleged unlawful unilateral action in the first
charge, and the Region was attempting to get Respond-
ent to comply with its promise not to engage in any fur-
ther changes. It would have been useless for the Union
to have protested each additional change under these cir-
cumstances. As to each change, the Union "was present-
ed with a fait accompli, making a request to bargain
about it a futile and unnecessary gesture." Peat Mfg. Co.,
261 NLRB 240 fn. 2 (1982).
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I therefore find that, by engaging in the above-de-
scribed unilateral changes in its employees' terms and
conditions of employment, Respondent thereby violated
Section 8(a)(5) and (1) of the Act.
4. Respondent's additional arguments
Respondent presents an elaborate argument to the
effect that the complaint is defective because it is not
based on a charge filed within 6 months of the alleged
unfair labor practices, and is therefore contrary to the
mandate of Section 10(b) of the Act. However, this argu-
ment is expressly linked by Respondent to its contention
that the settlement agreement was improperly set aside—
an argument I have rejected. The complaint herein was
clearly warranted on the basis of the two charges which
were filed, under applicable law.
Respondent also argues that the receipt into evidence
of details of the settlement discussions prejudiced its case
because "the Judge has heard that the companies were
willing to pay some money to settle the case." Accord-
ingly, Respondent argues, a new trial is required.
This argument has no merit. Testimony with respect to
Respondent's willingness to pay backpay was directly re-
lated to its undertaking to do so in the settlement agree-
ment, and to the issue of whether that agreement had
properly been set aside. The evidence of Respondent's
negotiations with the compliance officer showed that it
denied that it had any obligation to pay backpay. The
only evidence of its willingness to do so is its letter of
July 1982—a document submitted by the General Coun-
sel on redirect examination of compliance officer Morley
after Respondent initially raised the subject on cross-ex-
amination. As noted above, the letter was received with
the express provision that it was not to be considered
evidence of any unfair labor practice.
Respondent also presents an argument based on the
conduct of Union President Cruz, which requires no
comment in light of the facts set forth above.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. City Cab Company of Orlando, Inc., Yellow Cab
Company of Orlando, Inc. d/b/a Yellow Cab Company
and Dixie Cab Company together constitute a single em-
ployer engaged in commerce with the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Yellow, City, Dixie Independent Cab Drivers Asso-
ciation is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following unit is now and has been at all times
material herein an appropriate unit for the purpose of
collective-bargaining within the meaning of Section 9(c)
of the Act:
All regular and part-time taxi drivers at Respond-
ent's West Gore Street, Orlando, Florida, facility,
including contract drivers and Winter Garden driv-
ers; excluding all other employees, dispatchers,
starters, office clerical employees, guards, and su-
pervisors as defined in the Act.
4. On October 14, 1977, a majority of the employees in
the unit described above, by secret-ballot election con-
ducted by the Board, selected the above-named Union as
their representative for the purpose of collective bargain-
ing with Respondent, and, on October 26, 1977, the
Board certified the Union as such exclusive representa-
tive.
5. At all times since October 26, 1977, and continuing
to date, the Union has been and is the exclusive repre-
sentative of the employees in the unit described above
for the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
6. By engaging in unilateral changes in the terms and
conditions of its employees' employment on 24 separate
occasions from 1979 through 1981, without notice to the
Union or an opportunity for it to bargain concerning
those changes, Respondent thereby committed unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act.
7. On August 30, 1979, a settlement agreement entered
into by Respondent and the Union, intended to remedy
some of the practices described above, was approved by
the Regional Director for Region 12.
8. On August 26, 1982, the Regional Director for
Region 12 appropriately set aside the aforesaid settlement
agreement, because it had failed in its purpose and be-
cause of postsettlement violations of the Act.
9. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
10. Respondent has not violated the Act except as
specified.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act. Thus, I shall recommend that Respondent cease
and desist from engaging in unilateral changes in the
terms and conditions of its employees' employment, that
it notify the Union in advance of any contemplated
changes and give it an opportunity to bargain concerning
them.
It is also appropriate that Respondent be required to
make whole, with interest, all employees who may have
suffered losses in earnings as a result of said unilateral
changes in their terms and conditions of employment. El
Centro Mental Health Center, 266 NLRB 1 fn. 1 (1982).
Accordingly, I shall include such a provision in my rec-
ommended Order.6
The General Counsel also appears to request issuance
of a general bargaining order. It should be noted that the
violations herein took place prior to the parties' execu-
tion of a collective-bargaining agreement There is no al-
legation that Respondent is failing to abide by the terms
6 The General Counsel does not request a specific backpay order, nor
would one be warranted on the basis of the pleadings and evidence in
this case
CITY CAB CO OF ORLANDO 1351
of this agreement and, accordingly, I consider issuance
of a general bargaining order to be inappropriate.
I shall also recommend that Respondent be required to
post appropriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 7
ORDER
The Respondent, City Cab Company of Orlando, Inc.,
Yellow Cab Company of Orlando, Inc. d/b/a Yellow
Cab Company and Dixie Cab Company, Orlando, Flori-
da, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing the rental rates or other
terms and conditions of employment of their drivers,
without giving advance notice thereof to Yellow, City,
Dixie Independent Cab Drivers Association, and afford-
ing it an opportunity to bargain concerning any such
changes.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmalive action necessary to
effectuate the policies of the Act.
(a) Make whole its drivers for any loss of earnings
they may have suffered, with interest thereon, as a result
of Respondent's unilateral changes in the rental rates and
other terms and conditions of employment of its driv-
ers 8
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Orlando, Florida facility copies of the
attached notice marked "Appendix A." 9 Copies of the
7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
8 Interest on amounts due under this paragraph shall be computed in
the manner prescnbed in Florida Steel Corp, 231 NLRB 651 (1977) See
generally Isis Plumbing Co. 138 NLRB 716 (1962)
9 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
notice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein. i°
The General Counsel's unopposed motion to correct transcript, at-
tached as "Appendix B," is granted [Appendix B has been omitted from
publication I
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally change the rental rates or
other terms and conditions of employment of our driv-
ers, without giving advance notice thereof to Yellow,
City, Dixie Independent Cab Drivers Association and af-
fording it an opportunity to bargain concerning any such
changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed under Section 7 of the Act.
WE WILL make whole our drivers for any loss of earn-
ings they may have suffered, with interest, as a result of
our unilateral changes in their rental rates and other
terms and conditions of employment.
CITY CAB COMPANY OF ORLANDO, INC.,
YELLOW CAB COMPANY OF ORLANDO
D/B/A YELLOW CAB COMPANY AND DIXIE
CAB COMPANY