Checker Cab Co.

National Labor Relations Board - Board Decisions

Mar 18, 1963

141 N.L.R.B. 583 (N.L.R.B. 1963)

CHECKER CAB COMPANY AND ITS MEMBERS 583
2. New York Mailers' Union No. 6, International Typographical
Union, AFL-CIO, is not entitled by means proscribed by Section
8 (b) (4) (D) to force or require News Syndicate Co., Inc., to assign the
operation of belt #2, during mail runs, to employees engaged as
mailers who are currently represented by New York Mailers' Union
No. 6, International Typographical Union, AFL-CIO. Newspaper
and Mail Deliverers' Union of New York and Vicinity is not entitled,
by means proscribed by Section 8 (b) (4) (D), to force or require News
Syndicate Co., Inc., to assign the operation of belt #1, during mail
runs, to employees engaged as deliverers who are currently represented
by Newspaper and Mail Deliverers' Union of New York and Vicinity,
Independent.
3. Within 10 days of the date of this Decision and Determination
of Dispute, Newspaper and Mail Deliverers' Union of New York and
Vicinity, Independent, and New York Mailers' Union No. 6, Interna-
tional Typographical Union, AFL-CIO, shall notify the Regional
Director for the Second Region in writing, whether or not they will
refrain from forcing or requiring News Syndicate Co., Inc., by means
proscribed by Section 8(b) (4) (D), to assign the work in dispute
in a manner inconsistent with the provisions of (1) above.
Checker Cab Company and its Members and Local 10, Trans-
portation Services and Allied Workers, Seafarers Interna-
tional Union of North America, AFL-CIO, Petitioner. Case
No. 7-RC-5346. March 18, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph Kulkis, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. Checker Cab Company is a nonprofit membership corporation,
whose members own and operate taxicabs in the city of Detroit. The
principal corporate purposes of Checker, as stated in its charter,
are to provide the city of Detroit with an efficient and systematic taxi-
cab service, to enable its member taxicab owners to associate for mutual
benefit, and to afford a means by which persons engaged in rendering
cab service may improve operating procedures and practices and main-
tain suitability of equipment.
1 The request for oral argument made by the 286 members of Checker is hereby denied,
since the record , including the briefs , adequately sets forth the issues and the positions
of he parties.
141 NLRB No. 64.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated at the hearing that during the calendar year
of 1961 there were approximately 286 owner-operators of Checker
cabs who were either senior or associate members of Checker,' and
that in the course of operating approximately 900 cabs 3 owned by the
members, the combined gross revenue received as fares for taxicab
services approximated $7,000,000. Of this total, approximately
$250,000 was received as fares from customers transported to and from
passenger terminals engaged in interstate commerce. Individually,
however, none of the owner-operators had a gross revenue of
$500,000'
Checker and its members contend that the petition herein should be
dismissed inasmuch as each of the members in an individual employer,
no one of which meets the Board's jurisdictional standards for the as-
sertion of jurisdiction. They also contend that Checker is not an em-
ployer of the Checker Cab drivers, and that no multiemployer associa-
tion of Checker members exists. There has been no prior collective
bargaining.
To conduct its operations, Checker employs approximately 15 em-
ployees, none of whom is sought to be represented herein, and finances
its expenses through the collection of annual dues from each of its
members, amounting to more than $377,000. Membership in Checker
entitles an owner-operator of taxicabs to display prominently on his
cabs a distinctive black and white checkerboard design and the words
"Checker Cab." In addition, each taxicab owned and operated by a
Checker member bears for purposes of record and instant identifica-
tion a numerical designation assigned by Checker. The services ren-
dered by Checker to its members include a radio dispatch system,
the ordering in bulk of certain forms and pamphlets which its mem-
bers distribute to all drivers, the necessary arrangements for advertis-
ing on Checker cabs, and the bookkeeping in connection with Checker
charge accounts. In the performance of these services, Checker issues
checks under its name and maintains several bank accounts.
A study of the record as it relates to the employment conditions of
the employees sought to be represented herein reveals the following :
All applicants for employment must first be screened by a Checker
employee at Checker's central office. If the particular applicant is
deemed satisfactory, he is then referred to one of the members who
may be seeking additional drivers.
It is clear that each of the members hires and discharges his own
drivers, if any, bargains individually with his drivers regarding wages
2 An associate member is one who owns from one to three cabs ; a senior member is one
who owns more than three cabs.
8 It appears that there are 40 locations in the city of Detroit out of which Checker cabs
operate.
A The Board applies the $500,000 standard to taxicab companies , which it considers for
purposes of jurisdiction as retail enterprises Caroitina Supplies and Cement Co., 122
NLRB 88.
CHECKER CAB COMPANY AND ITS MEMBERS 585
and hours of employment; has the exclusive right to direct his drivers
where to operate; maintains his own payroll records; withholds social
security and Federal tax payments from his drivers; purchases his
own cabs and the insurance on these cabs; pays unemployment com-
pensation insurance; carries workmen's compensation insurance for
his drivers; and is alone responsible for the care and maintenance
of his cabs.
On the other hand, it is clear that Checker exercises substantial con-
trol over each member's drivers in their day-to-day conduct. Upon
commencing his employment, a new driver receives a copy of both the
Checker Cab Driver's Manual and "Things You Should Know" (also
bearing the name of Checker), which set out the rules and regulations
for drivers and which have been drawn up and approved by a majority
vote of the members. The former booklet prescribes the method of
operating the cab generally and includes instructions as to personal
cleanliness, driver courtesy to passengers, and how to cope with any
unusual circumstances. The latter manual prescribes, inter alia, that
uniform caps must be worn and that certain articles of clothing may
not be worn; it prohibits smoking, fighting, drinking intoxicants, push-
ing a car with a cab, and picking up another fare while there is a
passenger in the cab; it states that the driver first up on stand must
answer the callbox, and that a passing driver must stop and answer
the telephone at all empty cabstands. In addition, drivers are required
by the rules to have the cabs inspected every month, to check out with
a supervisor (a Checker employee) before going beyond certain lim-
its, to refrain from lounging in the rear of their cabs, and to lock their
cabs whenever leaving them. In all, there are 39 rules which Checker
issues for cab drivers to follow.
Checker also maintains a board of review which is composed of
certain senior members who have been elected by the membership. The
board meets every week to consider complaints against drivers. The
complaints may have been received from roadmen (starters employed
by Checker), the police, other drivers, members, or the public.
As stated above, the 286 members of Checker operate approximately
900 cabs in the city of Detroit, and each of these cabs is clearly dis-
tinguished by a black and white checkerboard design and the words
"Checker Cab." Thus, to the public at large, Checker appears, and it
does in fact operate, as a single integrated enterprise, with its radio
dispatching service, 40 call stations and other common services, and
it is Checker, not any individual member, whom the public relies upon
to meet its transportation needs. Particularly in view of the fact that
some $7,000,000 was received as fares by Checker cabs in 1961, includ-
ing about $250,000 received from customers transported to and from
passenger terminals engaged in interstate commerce, the effect upon
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce of a work stoppage by Checker cab drivers would clearly
be substantial.
It is apparent from the evidence that in order to assure the continu-
ance of a common public image and an effective operation as an inte-
grated enterprise, the members of Checker have surrendered to Check-
er a considerable measure of control over the employment conditions
of the drivers employed by each member. As set forth previously, each
prospective driver is first screened at the Checker office before being
referred to a member for hire. In this manner, drivers who appear un-
desirable for any reason are discouraged by Checker in their quest for
employment. Those who are referred are given copies of the Checker
Cab Driver's Manual and of "Things You Should Know," and are
thus immediately apprised of Checker's rules and regulations govern-
ing their conduct as Checker drivers. Also impressed upon them at
the commencement of their employment is the fact that Checker road-
men may report them for conduct violative of any of the multitude of
rules they are expected to follow, and that a reported violation will
cause them to be brought before the Checker board of review. Two
drivers testified that they had in fact been disciplined by the board for
violations. Although the president of Checker stated at the hearing
that the board's function was merely to recommend discipline to the
member who employed the driver, and that the member was free to
reject the recommendations, we note that the bylaws of Checker pro-
vide that Checker's board of directors may expel any member from the
organization for cause. Since it is obviously beneficial to each member
that all drivers be required to adhere to the jointly agreed-upon rules,
we strongly doubt that any member would disregard the recommenda-
tions made by the board of review with respect to his drivers.
It is thus quite apparent that the members of Checker recognize
both the need for, and the benefit from, uniformity of control which
Checker alone can exercise over all the drivers, and that the members
accordingly share control of their drivers with Checker. Thus we
in turn are merely recognizing the pattern established by the parties,
without in any way changing the manner in which they have sub-
divided such control as between the individual cab owner and Checker.'
Under all the circumstances, and particularly in view of the facts
that the operation of Checker cabs is represented to the public as one
integrated enterprise and that Checker is authorized by its members
s Our dissenting colleagues concede that Checker is an "association of independent
owner-operators for their mutual advantage." The dissent, however, concludes that the
mutuality of their interest does not extend to labor relations . In view of the extensive
evidence set forth above as to the nature and degree of control exercised by Checker over
the employees of its members , we are satisfied that mutuality does exist in this area suffi-
cient for our finding that Checker and its members are engaged in a joint venture. Con-
trary to the dissent , our decision does not purport to establish a "multiemployer bargain-
ing association ." Having elected to subject their employees to regulation on a joint basis,
the employers within Checker must likewise accept the statutory right of their employees
to join together tfor the purposes of collective bargaining.
CHECKER CAB COMPANY AND ITS MEMBERS 587
to exercise a substantial degree of control over the drivers of each of
its members for this purpose, we find Checker and each of its members
to be joint employers in a common enterprise-the operation of
Checker cabs-and therefore deem it appropriate to combine the gross
revenues of all members for jurisdictional purposes.' As these total
revenues exceed the retail standard of $500,000 and as legal jurisdic-
tion is present, we find that it will effectuate the policies of the Act
to assert jurisdiction herein.
2. The labor organizations involved claim to represent certain
employees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Sections
9(c) (1) and2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all full-time and regular
part-time drivers of Checker cabs, including lease drivers, but exclud-
ing senior and associate members, office clerical employees, casual
drivers, roadmen, garage employees, and all supervisors as defined in
the Act. Intervenor 7 agrees with the unit as defined.
Checker and its members contend that separate units of each mem-
bers employee drivers are appropriate. However, as we have stated
above, Checker and its members seek to establish and preserve the
public image and the operating reality and benefit of a single inte-
grated enterprise. Pursuant thereto, all the drivers have similar
working conditions and mutual employment interests. In addition,
no union seeks to represent the drivers on any other basis. In view
of the above, and in view of our finding of a joint employer rela-
tionship between Checker and each of its members in one common
enterprise under the aegis of Checker, we find a unit of all employees
driving Checker cabs to be appropriate.
Checker and its members also contend that the lease drivers are
independent contractors and should be excluded. In determining
whether lease drivers are employees or independent contractors, the
Board applies the "right of control" test .8 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 rela-
tionship is one of employment; but where control is reserved only as
to the final result, the relationship is that of an independent contractor.
The facts herein show that the lease drivers are required to abide
by the same Checker rules and regulations as the employee drivers.
Moreover, they sign one of the three Checker form leases, depending
8 Frostco Super Save Stores, Inc., 138 NLRB 125 ; United Stores of America, 138 NLRB
383; Spartan Department Stores, 140 NLRB 608.
T Taxi Cab Drivers, Maintenance and Garage Helpers Union Local 902, affiliated with
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Ind, intervened on the basis of a showing of interest.
8 Albert Lea Cooperative Creamery Association , 119 NLRB 817.
,588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the nature of the shift to be worked. Although each lease provides,
inter alia, that it is not to be construed as creating the relationship
of employer and employee and that the lessee is at all times free from
the control or direction of the lessor, it appears that the signing of
such leases was merely a formality. Thus, two lease drivers testified
at the hearing that they had signed a number of leases at the same
time, that they were not informed of such provisions, and that the
leases had been folded over in such a way that they were able to see
nothing more than the signature lines for the lessor and lessee. The
leases are for a month, terminable immediately by the lessor for cause.
One member, who was also the president of Checker, testified that
he does not pay social security or withholding tax on behalf of his
lease drivers, and that his lease drivers may buy gas wherever they
please. He also testified that they are not bound by the Checker rules
and regulations, and that they are not subject to the board of review.
On the other hand, one lease driver testified that the member for
'whom he drove told him to buy his gas at the Navin Field Garage 9
or he would not be able to drive, and that he was bound by the same
rules as he had been when employed as an employee driver. Another
lease driver testified that he had been called before the board of review
for fighting and had been suspended by the board of review. In
addition, it is clear from the record that roadmen, who report driver
violations, make no distinction between lease drivers and employee
drivers.
From all the above, we find that Checker and its members jointly
control the manner and means by which the lease drivers operate their
cabs. Accordingly, we further find that the lease drivers are em-
ployees, and we shall include them in the unit.
The parties disagree as to which drivers should be included as
regular part-time employees and which should be excluded as casuals.
However, the parties did agree, in the various formulas they advanced
in an attempt to define regular part-time employees for the purposes
of this case, that the determination should be based on the regularity
of the drivers' work record in the period immediately preceding the
direction of election.
The respective proposed formulas are as follows :
Petitioner-Those drivers who worked a minimum of one regular
shift on 14 separate days in each of the 3 months prior to the di-
rection of election.
Intervenor-Those drivers who worked three regular shifts per
week in any 20 weeks of a 30-week period prior to the direction of
election.
Q The Navin Field Garage is run by Checker through a wholly-owned subsidiary corpo-
ration An advantage of purchasing gasoline there comes in the form of a cash rebate to
the members when so directed by the officers of the garage.
CHECKER CAB COMPANY AND ITS MEMBERS 589
Employers-Those drivers who worked at least one regular shift for
1 day or more per week during any 10 weeks out of the 21-week period
immediately preceding the direction of election.
It appears from the record, and the parties do not dispute, that the
part-time drivers have substantially the same terms of employment and
working conditions, perform the same work, use similar equipment,
-drive! in the same geographical area, work under the same supervision,
and hold the same type of license as full-time drivers.
In making determinations as to whether employees are part-time or
casual workers, the Board has included part-time cab drivers who
regularly worked 1 or 2 days each week,10 beer delivery men who
worked at least 8 hours per week,1' mechanics and a radio technician
who regularly worked on Saturdays,12 and the laundry personnel who
worked several hours per day or a certain day or days each week 13
In the present case, we note from the record that in the first 21 weeks
of 1962, a total of 7,654 employees drove Checker cabs, and that a sub-
sstantial number of these individuals had an obviously irregular work
record in that period. Assuming that the statistics presented to us in
this regard are fairly representative, we find, after due consideration of
all the pertinent facts herein, that those employees who have worked
at least 2 days per week in 8 of the last 10 full weeks preceding the date
of the direction of election set out below are regular part-time em-
ployees, and we shall include them in the unit.
Our dissenting colleagues maintain that if a joint-employer relation-
ship exists at all, it can only be between Checker and each of its mem-
bers separately. But even granting that the department store cases
upon which we rely and which they distinguish, go no further, the
factual differences in operating methods of the integrated taxicab
business here under consideration in our view justify our further find-
ing that each of these owners and Checker are joint employees in a
common enterprise. The employees of each owner are doing the identi-
cal driving work done by the employees of the others. They are all
working under those common employment conditions and regula-
tions, administered by Checker, which we have outlined above. Each
of the cab owners thus, by his participation in Checker, does in fact
have some measure of control over the employment conditions of the
other owners' drivers. We therefore find, contrary to our colleagues,
that the relationship which the owners have established (a) with
Checker, (b) through Checker with each other, and (c) with the
drivers, warrant our conclusions that we should asesrt jurisdiction
10Jat Transportation Corp., at al., 128 NLRB 780.
u Chester County Beer Distributors Association , 133 NLRB 771.
"S. G. Tilden, Incorporated, 129 NLRB 1096; Booth Broadcasting Company, 134
NLRB 817.
'* Laundry Owners Association of Greater Cincinnati, 123 NLRB 543.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein and that the unit determination we make is appropriate for the
employment conditions the parties have established.
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
All full-time and regular part-time drivers, including lease drivers,
of Checker cabs owned by persons, partnerships, corporations, and
associations who are members (senior, associate, or otherwise) of
Checker Cab Company,14 Detroit, Michigan, but excluding office cleri-
cal employees, member-drivers, casual drivers, roadmen, garage em-
ployees, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS RODGERS and LEEDOM, dissenting :
We would dismiss this petition because, in our opinion, the record
supports neither the assertion of jurisdiction nor the appropriateness
of the unit sought.
On the issue of jurisdiction, it is clear that none of the individual
owner-operators has a gross revenue of $500,000; hence, under es-
tablished Board standards the petition must be dismissed, unless there
is warrant for considering in combination the revenues of the individ-
ual owner-operators. The Board has in the past done so when there
exists such common ownership and control, including control of labor
relations, that separate entities may be considered as a single employer
for purposes of the Act.'-' The Board has also considered in com-
bination the business of separate entities when the record discloses
the existence of an established or agreed-upon multiemployer unit.18-
It is patent that this record does not support the assertion of juris-
diction on either of these grounds and our colleagues do not purport
so to find.'' Yet our colleagues, in their determination to assert, have
taken a hard case and made bad law. Checker and each of its members
14 At the hearing, Petitioner amended Appendix A attached to its amended petition,
which contained the names of Checker 's members , by removing therefrom the employers
numerically designated as number 23, Robert Waite ; number 62, Joe Arnold ; number 70,
Gordon R. Wilson ; number 86, E. It . Larges ; number 107 , Thomas Marr ; and number 136,
Max Schneider.
is For example, Bell Bakeries of St. Petersburg, of Ward Baking Company, et at., 133
NLRB 1344.
1e For example , Atlas Shower Door Co , Distribudor Inc. d/b/a Basco-Sacramento, et at,
131 NLRB 96.
17 The record shows that the Petitioner urged upon the Board that the members of
Checker constituted a single employer , based on the normal factors involved in such a
finding, that is, common ownership and control , interlocking officers, directors , and stock-
holders, centralized control of labor relations , integrated operations , and similar employee
working conditions. Such factors are almost completely lacking in this case , and we see
no basis in the record warranting our colleagues ' statement that there is "extensive evi-
dence" to support their position. Also , since there has been no history of multiemployer
bargaining in the unit requested , and since the members clearly oppose such bargaining
now, there is no basis for combining revenues for jurisdictional purposes either because
of an existing or an agreed -upon multiemployer unit.
CHECKER CAB COMPANY AND ITS MEMBERS 591
are found to be joint employers of the employees of such member, even
though there is lacking any real employment relationship between
Checker and such member's employees. By this hypothesis, there
would appear to be as many joint-employer relationships as there are
members of Checker. The assertion of jurisdiction would then depend
on a combination of the commerce facts of an individual member and of
Checker. However, no one member and Checker together meet the
Board's jurisdictional standards. Here, again, the membership in
Checker serves our colleagues' purpose. The fact of such membership
is made the basis for a finding that all the members are in relation to
one another "joint employers in a common enterprise." This legal
coinage of our colleagues cannot, however, hide the fact that there is
no sound basis whatever for finding that each member is an employer
of the employees of every other member. Thus, by a form of legal hop-
scotch, the individual members who, in combination, are neither a
single employer, joint employers, nor a group organized into an estab-
lished multiemployer unit, find themselves subject to the Board's
jurisdiction on a theory which has no basis in fact or law.
The vice of all this is further demonstrated by the fact that the ma-
jority uses the very same approach in finding a unit of all employees
driving Checker cabs to be appropriate. Thus, in disregard of long-
standing precedent which precludes the establishment of a multiem-
ployer unit in the absence of a multiemployer bargaining history, or
agreement as to the appropriateness of such a unit,18 our colleagues
have forced the members of Checker into exactly what they have chosen
to avoid, that is, a multiemployer bargaining association.
In sum, we reject this unwarranted use of the Checker Cab associa-
tion as an amalgam for joining these independent owner-operators into
a pseudo-integrated relationship for purposes of asserting jurisdiction
and for unit purposes. This association is no more than an association
of independent owner-operators for their mutual advantage; it is
not an association for dealing with labor relations. We choose to re-
spect the substance and intent of this mutual arrangement, and we
would do so by dismissing the petition.
18 Since we did not participate in Frostco Super Save Stores , Inc, 138 NLRB 125,
United Stores of America, 138 NLRB 383, or Spartan Department Stores, 140 NLRB 608,
we do not regard those cases, which depart from precedent , as binding on us. It is note-
worthy, however, that these department store cases relied upon by the majority in making
the joint-employer findings are all clearly distinguishable . Thus, under the provisions of
the lease or license agreements between the store owners and the concessionaires, the
store owners retained the right to negotiate jointly w ith the concessionaire in any matters
concerning labor relations . The concessionaires in those cases , unlike the members of
Checker herein, were willing at the outset to bind themselves by contract to a joint-
employer relationship . Furthermore, since the store owner satisfied the Board's jurisdic-
tional standards in each case, the Board never considered combining the revenues of the
concessionaires to create jurisdiction which did not otherwise exist.