Union Taxi Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1961

130 N.L.R.B. 814 (N.L.R.B. 1961)

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act.
2. Local Union 415, International Brotherhood of Electrical Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, as above found, the Respondent has
engaged in unfair labor practices in violation of Section 8(a)( I) of the Act.
4. Respondent has not engaged in unfair labor practices in violation of Section
8(a)(5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Board orders was made clear by the United States Supreme Court In N.L.R.B. v. Express
Publishing Company, 312 U.S. 426, at 433:
It would seem equally clear that the authority conferred on the Board to restrain
the practice which it has found the employer to have committed is not an authority
to restrain generally all the other unlawful practices which it has neither found to
have been pursued nor persuasively to be related to the proven unlawful conduct . . . .
We hold only that the National Labor Relations Act does not give the Board author-
ity, which the courts cannot rightly exercise , to enjoin violations of all the provi-
sions of the statute merely because the violation of one has been found.
In a case decided as recently as July 25 , 1960, and In the face of the above decisions,
the scope of the Board's order was Increased beyond the recommended order despite the
fact that no previous unfair labor practices had been committed by the employer and
there was no reasonable grounds for anticipating, on the facts of the case , that future
violations would be committed . The caseload of the Board Is sufficient without provoking
needless appeals and the issuance of orders which no court will enforce serves no purpose
at all.
Union Taxi Corporation and Wayne B. Lewis
Teamsters Automotive & Chauffeurs Local Union No. 165 and
Wayne B. Lewis. Cases Nos. 2O-CA-1586 and 20-CB-668. Feb-
ruary 28, 1961
DECISION AND ORDER
On February 12, 1960, Trial Examiner Maurice M. Miller issued
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of Section 8(a) (1) and (3) and
8(b) (1) (A) and (2) of the Act, and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent Union and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
130 NLRB No. 97.
UNION TAXI CORPORATION 815,
tions of the Trial Examiner with the following additions and
modifications.
We agree with the Trial Examiner that Board should assert juris-
diction herein. The Company operates about 70 to 80 taxicabs in
and about Sacramento, California. It has by terms of a city ordi-
nance been allotted public curb space for its exclusive use close to the
Western Greyhound bus terminal in Sacramento. Also, through
agreement with the Southern Pacific Railroad, it maintains a cab-
stand at the railroad's depot and is granted the exclusive right to
load passengers at the nearby curb. Western Greyhound and South-
ern Pacific are interstate carriers. In view of the foregoing and es-
pecially the franchise-type arrangements described above and the fact,
as shown in the record, that Respondent Company's annual gross
income is $500,000 or more annually, we find that its operations have a
close and intimate relationship to interstate commerce and, conse-
quently, affect such commerce within the meaning of Section 2(7) of
the Act.' Further, we find that as the Company's operations meet
applicable Board standards it will effectuate the policies of the Act to
assert jurisdiction in this proceeding?
THE REMEDY
We agree with the Trial Examiner that the contracts between the
Respondent Company and the Union contain union-security provi-
sions establishing unlawful closed-shop and preferential employment
conditions and that Respondents by maintaining and enforcing such
provisions unlawfully encouraged or required employees to acquire
and maintain union membership as a condition of employment.
Under these circumstances we find, in further agreement with the
Trial Examiner, that a Brown-Olds 3 type reimbursement remedy is
appropriate .4
However, contrary to the Trial Examiner, we find that the reim-
bursement remedy should take effect on August 19, 1958, the begin-
ning of the 10(b) period,' rather than as he recommended, on October
i See Superior Court v. Yellow Cab Service, 361 U.S. 373, reversing per curiam State v.
International Brotherhood of Teamsters . etc, 333 P. 2d 924.
2 Carolina Supplies and Cement Co ., 122 NLRB 88.
8 United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry
of the United States and Canada , Local 231 , AFL-CIO (J. S. Brown -E. F. Olds Plumbing
& Heating Corporation ), 115 NLRB 594, 598.
4 Although Member Jenkins concurs in the substantive findings of violations made by
the majority , he does not agree for reasons stated in his separate opinion in Shear's
Pharmacy, Inc, 128 NLRB 1417, that a Brown- Olds type reimbursement remedy is war-
ranted under the facts of this case . Member Jenkins would, therefore, not apply a broad
Brown - Olds remedy , but would limit reimbursement to the Charging Party, Lewis, and
employee Richard Bragg, who , the record shows, were in fact coerced with respect to
their employment rights and union membership in a manner proscribed by the Act. He
therefore expresses no opinion with respect to those matters discussed below concerning
a broad reimbursement remedy.
5 Section 10(b) of the Act provides that no complaint shall issue based upon any unfair
labor practice occurring more than 6 months prior to the filing of the charge with the
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2, 1958, when the Board announced the adoption of revised jurisdic-
tional standards,' which, unlike the previous standards, brought the
Respondent Company within that group of employers over whom the
Board would assert jurisdiction. In making its jurisdictional revi-
sions in 1958, the Board announced that it would apply the new
standards to all pending and future cases even though in unfair labor
-practice cases the alleged misconduct may have occurred at a time
when it would not have asserted jurisdiction over the company in-
volved. The Board stated that it did not believe "that the mere fact
-that a respondent had reason to believe by virtue of the Board's an-
nounced jurisdictional policies that the Board would not assert juris-
diction over it, gave it any legal, moral, or equitable right to violate
-the provisions of the Act." I Consequently, we find no warrant for
deferring the effective date of the reimbursement remedy until the
date of the change in jurisdictional standards.
Insofar as material here, the first contract between the Respondents,
containing the union-security provisions found unlawful, expired on
October 1, 1958. Not until January 16, 1959, did the Respondents
enter into a new agreement-one which contained, however, union-
security provisions identical to those in the expired contract. The
Trial Examiner in effect recommended that reimbursement include
the period from October 1, 1958, through January 15, 1959, during
which period no contract existed. However, we find that this period
of contractual hiatus should be excluded from the reimbursement
coverage, for we do not believe that there is sufficient evidence in the
record to support a finding that an unlawful arrangement existed
between the Respondents as to all employees during that period or that
the coercive effects of the expired unlawful union-security provisions
-prevailed until the execution of the new agreement.' Our conclusion
here does not apply, of course, to the right of the Charging Party or
Richard Bragg to reimbursement of moneys paid the Union as a con-
,dition for union clearance necessary to employment, for even though
such moneys were paid during the period of the contractual hiatus,
specific coercion with respect to their exaction is clearly shown in the
-record.
Board and the service of a copy thereof upon the person against whom such charge is
made . . . " The charges here were filed on February 17, 1959, and served on the other
parties on February 19, 1959.
6 See Siemens Mailing Service, 122 NLRB 81.
1Id., at 84. See also, N.L.R.B. v. Pease Oil Company, 279 F. 2d 135 (C.A. 2) ;
N.L.R.B. v. Guernsey-Muskingum Electric Cooperative, Inc., 2'85 F. 2d 8 (CA. 6).
8 The Trial Examiner recommended that the Union should be permitted to set off strike
benefit payments and relief allotments against its reimbursement obligations. As all such
payments and allotments were made during the period of the contractual hiatus and as we
have found the reimbursement order should not cover this period, we do not adopt this
recommendation, and therefore shall not provide for the recommended setoffs. Tn so
concluding, we express no opinion as to whether or not such setoffs would under other
.circumstances be appropriate.
UNION TAXI CORPORATION
ORDER
817
Upon the entire record in this proceeding and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that :
A. The Respondent Company, Union Taxi Corporation, Sacra-
mento, California , its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Performing , maintaining , enforcing , or giving effect to its
agreement of January 16, 1959, with Teamsters Automotive & Chauf-
feurs Local Union No. 165 in respect to union security , or entering
into, maintaining, enforcing, or giving effect to any extension, re-
newal, modification , or supplement of the aforesaid agreement, or any
superseding agreement with the said Union which contains a union-
security provision, except one executed in conformity with the re-
quirements of Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Encouraging membership in Teamsters Automotive & Chauf-
feurs Local Union No. 165 by discharging or suspending employees,
or by refusing to hire applicants for employment because they are not
members of the said labor organization, or because they have not been
hired through the said labor organization, or because they have not
obtained approval, clearance, or a job referral from it, or by dis-
criminating against them in any other manner in regard to their hire
or tenure of employment, or any other term or condition of their em-
ployment, except to the extent permitted by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(c) Interfering with, restraining, or coercing employees, or pros-
pective employees, in any other manner in the exercise of their right
to self-organization , to form, join , or assist labor organizations, to
bargain collectively through representatives of their own free choice,
and to engage in other concerted activities for the purpose of collec-
tive bargaining and other mutual aid and protection , or to refrain
from any and all such activities , except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section
8 (a) (3) of the Act, as modified by the Labor -Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action, which , the Board finds
will effectuate the policies of the Act :
(a) Offer to Wayne B. Lewis immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to the seniority or other rights and privileges previously enjoyed by
him.
597254-61-vol. 130-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Jointly and severally with the Respondent Union, make whole
Wayne B. Lewis for any loss of pay he may have suffered by reason
of the 'discrimination practiced against him, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy," as
modified by this Decision and Order.
(c) ' Jointly and severally with the Respondent Union reimburse
its present and former employees for all initiation fees, dues, assess-
ments, and other moneys paid to Respondent Union as a condition of
employment, liability therefor to begin 6 months prior to the date of
filing and service of the charge against each Respondent and to ex-
tend to all such moneys thereafter collected except as otherwise pro-
vided in the Decision herein.
(d) Preserve, upon request, and make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
and the rights of employment under the terms of this Order.
(e) Post at its offices and those places where notices to employees
customarily are posted copies of the notice attached hereto marked
"Appendix A." 9 Copies of said notice, to be furnished by the Re-
gional Director for the Twentieth Region, shall, after being duly
signed by representatives of the Respondent Company, be posted by
it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter in conspicuous places, in-
cluding all places where notices customarily are posted. Reasonable
steps shall be taken by Respondent Company to insure that said not-
ices are not altered, defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e), above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein marked
"Appendix B."
(g) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto marked "Appendix A" for post-
ing by Respondent Union at its offices where notices to members and
other persons using its facilities are customarily posted. Copies of
said notice, to be furnished by the Regional Director, shall, after be-
ing duly signed by representatives of the Respondent Company, be
forthwith returned to the Regional Director for such posting.
(h) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Decision and Order, as
to what steps it has taken to comply herewith.
0In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
UNION TAXI CORPORATION 819
B. The Respondent Union, Teamsters Automotive & Chauffeurs
Local Union No. 165, its officers, representatives, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Performing, maintaining, enforcing, or giving effect to its
agreement of January 16, 1959, with Union Taxi Corporation in re-
spect to union security, or entering into, maintaining, enforcing, or
giving effect to any extension, renewal, modification, or supplement
of the aforesaid agreement, or any superseding agreement with the
Respondent Company which contains a union-security provision, ex-
cept one executed in conformity with the requirements of Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(b) Causing or attempting to cause Union Taxi Corporation to
discharge, suspend, decline or hire, or otherwise discriminate against
employees or applicants for employment because they are not members
of the respondent labor organization, or because they have not been
hired through the respondent labor organization, or because they have
not obtained approval, clearance, or a job referral from it, except to
the extent permitted by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959,
(c) Restraining or coercing employees or applicants for employ-
ment in any other manner in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own free choice, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all such activities, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Send written notice to Union Taxi Corporation, with a copy
thereof furnished to Wayne B. Lewis, that it has withdrawn its objec-
tion to the employment of the latter, and that it has no objection to
his employment or that of any other person, based upon lack of mem-
bership in, or lack of clearance from, Teamsters Automotive & Chauf-
feurs Local Union No. 165.
(b) Jointly and severally with the Respondent Company, make
whole Wayne B. Lewis for any loss of pay he may have suffered as a
result of the discrimination practiced against him, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy,"
as modified by this Decision and Order.
820 DECISIONS OF NA?tlIONAL LABOR RELATIONS BOARD
(c) Jointly and severally with Respondent Company reimburse
present and former employees of Respondent Company for all initia-
tion fees, dues, assessments, and other moneys paid to it as a condition
of employment, liability therefor to begin 6 months prior to the date
of filing and service of the charge against each Respondent and to
extend to all such moneys thereafter collected except as otherwise
provided in the Decision herein.
(d) Preserve and, upon request, make available to the Board and its
agents for examination and copying, all membership dues, permit, and
other records necessary to compute the moneys illegally exacted from
employees of the Respondent Company.
(e) Post at its offices, in conspicuous places, including all places
where notices to members are customarily posted, copies of the notice
attached hereto marked "Appendix B." 10 Copies of said notice, to
be furnished by the Regional Director for the Twentieth Region, shall,
after being duly signed by Respondent Union's representative, be
posted immediately upon receipt thereof and be maintained by Re-
spondent Union for 60 consecutive days thereafter. Reasonable steps
shall be taken by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e), above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Company's notice herein marked
"Appendix A."
(g) Mail to the Regional Director for the Twentieth Region signed
copies of Appendix B for posting by Respondent Company as pro-
vided herein. Copies of said notice, to be furnished by the said
Regional Director, shall, after being signed by Respondent Union's
representative, be forthwith returned to the Regional Director for such
posting.
(h) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, as to what steps
the Respondent Union has taken to comply herewith.
MEMBER RoDGExs took no part in the consideration of the above
Decision and Order.
10 See footnote 9.
APPENDIX A
NOTICE TO ALL EMPLQYEEs
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT maintain or enforce any provisions in a trade
agreement with Teamsters '..utomotive & Chauffeurs Local Union
UNION TAXI CORPORATION 821
No. 165 , which condition employment on union membership, give
preference in employment to union members , or require union
clearance as a condition of, employment , except where , and to the
extent that , such conditions of employment are lawfully estab-
lished by an agreement executed in conformity with Section 8(a)
(3) of the Act, as modified by the Labor -Management Reporting
and Disclosure Act of 1959.
WE WILL NOT encourage membership in Teamsters Automotive
& Chauffeurs Local Union No. 165 by discharging or suspending
employees , or by declining to hire applicants for employment be-
cause they are not members of the Teamsters or because they
have not been hired through or with the approval or clearance
of the Teamsters , or by discriminating against them in any other
manner in regard to their hire or tenure of employment or any
other term or condition of their employment , except where, and
to the extent that, such conditions of employment may be lawfully
established by an agreement executed in conformity with Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT interfere with, restrain , or coerce our employees
or applicants for employment , in any other manner, in the exer-
cise of their right to self-organization , to form, join, or assist
Tabor organizations , to bargain collectively through representa-
tives of their own free choice , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any and all such activities,
except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment , as authorized in Section 8(a) (3) of the Act, as
modified by the Labor -Management Reporting and Disclosure
Act of 1959.
WE WILL, jointly and severally with Teamsters Automotive &
Chauffeurs Local Union No. 165 , make whole Wayne B. Lewis for
any loss of pay he may have suffered by reason of the discrimina-
tion practiced against him.
WE WILL, jointly and severally with Teamsters Automotive &
Chauffeurs Local Union No. 165 , reimburse our present em-
ployees, and persons formerly in our employ , for any losses suf-
fered by them because they were illegally required to pay initia-
tion fees , periodic dues, or any other moneys to the Teamsters as
a condition of employment.
All our employees are free to become or remain , or to refrain from
becoming or remaining, members of Teamsters Automotive & Chauf-
feurs Local Union No. 165, or any other labor organization , except to
the extent that this right may be affected by an agreement requiring
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959. We will not discriminate in regard to hire or tenure of em-
ployment, or any other condition of employment, against any employee
because of membership in, or activities on behalf of, any such labor
organization.
UNION TAXI CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF TEAMSTERS AUTOMOTIVE & CHAUFFEURS
LOCAL UNION No. 165, AND TO EMPLOYEES OF UNION TAXI CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT maintain or enforce any provision in a trade
agreement with the Union Taxi Corporation, which condition
employment on union membership, gives preference in employ-
ment to union members, or require union clearance as a con-
dition of employment, except where, and to the extent that,
such conditions of employment may be lawfully established by
an agreement executed in conformity with Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT cause or attempt to cause Union Taxi Corpor-
ration to discharge or suspend employees, or to decline to hire
applicants for employment because they are not members of our
organization, or because they have not been hired through our
organization, or because they have not obtained approval, clear-
ance, or job referral from our organization, or to discriminate
against them in any other manner, except where, and to the
extent that, such conditions of employment may be lawfully
established by an agreement executed in conformity with Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WIVE WILL NOT restrain or coerce employees of, or applicants
for employment with, Union Taxi Corporation, in the exercise
of their right to self-organization, to form, join, or assist labor
UNION TAXI CORPORATION 823
organizations, to bargain collectively through representatives
of their own free choice, and to engage in other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities,
,except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL send written notice to Union Taxi Corporation and
Wayne B. Lewis that we have withdrawn our objection to the
employment of the latter, and that we have no objection to his
employment or to the employment of any other person, based
upon lack of membership in our organization or lack of clear-
ance by our organization for employment.
WE WILL jointly and severally with Union Taxi Corporation
make whole Wayne B. Lewis for any loss of pay he may have
suffered as a result of the discrimination practiced against him.
WE WILL jointly and severally with Union Taxi Corporation
reimburse present employees of the Company, and persons for-
merly in its employ, for any losses suffered by them because they
were illegally required to pay us initiation fees, periodic dues,
or any other moneys as a condition of employment.
TEAMSTERS AUTOMOTIVE & CHAUFFEURS
LOCAL UNION No. 165,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed-effective February 17, 1959, specifically-and subse-
quently served in the name of Wayne B. Lewis, designated as the complainant in this
report, the General Counsel of the National Labor Relations Board, in the name of
-the Board, caused the Regional Director for its Twentieth Region at San Francisco,
California, to issue a consolidated complaint and notice of hearing on May 29, 1959,
under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136.
Therein, Union Taxi Corporation, designated at the Respondent Company in this
report, and Teamsters Automotive & Chauffeurs Local Union No. 165, designated
as the Respondent Union herein, were charged with the commission of certain
unfair labor practices under Section 8(a) (1) and (3), and Section 8(b)(1)(A) and
(2) of the statute, respectively. Copies of the consolidated complaint and notice of
-hearing were duly served upon the Respondent Company, the Respondent Union,
and other interested parties.
In due course, each of the Respondents filed an answer. These answers, essen-
tially, challenged this Agency's power to assert jurisdiction in the present consoli-
dated case. Certain substantive allegations of the consolidated complaint were
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted; the Respondent Company and the Union, however, denied the commission
of any unfair labor practice.
Pursuant,to notice, a hearing with respect to the issues was held at San Francisco,
California, on July 28, 29, and 30 and September 8, 1959, before the duly designated
Trial Examiner. The General Counsel and the Respondent Union were represented
by counsel. The president of the Respondent Company also filed an appearance.
Each of the parties was afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce evidence pertinent to the issues, to argue orally
upon the record, and to file briefs and proposed findings and conclusions. At the
outset of his presentation, the General Counsel moved a formal amendment of the
consolidated complaint; despite objection, the motion was granted. (Prior to this
permitted amendment, the Respondent Company and the Respondent Union had
been charged with the maintenance and enforcement of a trade agreement which
included an illegal union-security clause subsequent to January 16, 1959; the effect of
the permitted amendment was to charge each of the Respondents with the main-
tenance and enforcement of a trade agreement which included an illegal union-
security clause at all times material, for a period beginning 6 months prior to the
date on which the initial charges in the present consolidated case were filed.) Upon
the completion of each party's testimonial presentation, oral argument was heard.
Thereafter, counsel for the Respondent Union submitted a brief. It has been duly
considered.
Upon the entire record in the case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
A. Issues
As previously noted, both the Respondent Company and the Union have chal-
lenged the statutory power of this Agency to assert jurisdiction in the present con-
solidated matter. Their contentions, in this respect, have raised several issues:
(1) Whether the Respondent Company and another Sacramento, California, taxi-
cab enterprise, Yellow Investment Company, may properly be considered a single
employer, with respect to the resolution of the jurisdictional issue only, in this con-
solidated case.
(2) If so, whether these related taxicab enterprises may properly be considered
engaged in commerce, or business activity which affects commerce, within the mean-
ing of these terms of art. statutorily defined and judicially construed.
(3) Finally, whether these enterprises, considered as a single entity, derive a suffi-
cient amount of business income from their taxicab operations to warrant the exer-
cise of this Agency's statutory powers, under present jurisdictional standards.
Each Respondent contends, of course. that these issues should be resolved nega-
tively. To their consideration, therefore, this report must now turn.
B. Analysis
1. Union Taxi Corporation and Yellow Investment Company
The Respondent Company, Union Taxi Corporation, conducts a taxicab business
in Sacramento, California, and environs. Incorporated in the State noted, it main-
tains an office. garaee, and dispatch facilities at two locations in the State capital.
Mrs. Marie Littlefield functions as the firm's president; Frederick Pleines serves as
its vice president; and Leonard Grimmett as its secretary and office manager. These
officers, toeether with the firm's attorney, John Welsh, make up its board of direc-
tors: that board, which meets six or seven times per year. determines the firm's labor
relations policy. Mrs Littlefield. I find. holds more than half of the corporate
stock; Pleines and Grimmett are the firm's other principal stockholders. There are
three additional minor stockholders. however.
Yellow Investment Company, previously noted. likewise operates a taxicab busi-
ness in Sacramento. California. and environs. It, too, functions as a California
cornoration Sometime in l951. I find the firm was nurcbased by Mrs. Tittlefield,
Pleines, and two others: in 1957 or 1958. however, Mrs. Littlefield and Pleines ac-
quired the interest of the other initial purchasers At all times material, since that
reorgani,ation, Mrs. Littlefield has served as Yellow investment Company's nreQi-
dent. Pleines as its vice president and Grimmett as its secretary. Mrs. Littlefield
and Pleines determine its labor relations nnlirv. Nn information with resnert to
the firm's hoard of directors or stockownershin is availnhle. althonnh Mrs. Littlefield,
while a witness, identified herself as the firm's principal stockholder.
UNION TAXI CORPORATION 825
The Respondent Company maintains a fleet of 60 to 70 taxicabs, approximately.
It also maintains and operates a public garage, within which its vehicles are stored,
and within which any necessary repair or maintenance work is done. The firm cur-
rently has 109 employees, approximately; of this number, about 85 to 95 are drivers.
Taxicab service is maintained throughout the week, and around the clock; the
drivers, I find, work 83/4-hour staggered shifts. All of the firm's cabs are radio-
dispatched. The dispatcher's office is located in downtown Sacramento, immedi-
ately adjacent to the Greyhound bus depot; the firm's chief dispatcher, Boyd Hall,
performs his functions at that location. (Mrs. Littlefield appears to be the only
company official who hires employees; in her absence, however, Hall is also author-
ized to hire. I so find.) At the time of the hearing, Yellow Investment Company
owned 10 vehicles. When not in use, these vehicles are stored in the Respondent
Company's garage; they are also serviced and repaired there. When in use, they
are dispatched from established locations by the Respondent Company's dispatcher.
The labor relations policies of Yellow Investment, as previously noted, are de-
termined by Mrs. Littlefield and Pleines; the employees of the firm are supervised,
in every material respect, by the management of the respondent enterprise. Em-
ployees of the two firms also are sometimes interchanged.
Pursuant to an express, written agreement with the Southern Pacific Railway Com-
pany, the Yellow Investment Company maintains a taxicab stand or assembly area
immediately adjacent to the Southern Pacific depot. Under the terms of the agree-
ment, it is accorded an exclusive right to station dispatchers at the depot entrance
while trains are present, to solicit passengers to summon parked taxicabs and load
them at the nearby curb. (Taxicabs dispatched by other local enterprises are per-
mitted to occupy only certain designated spaces within a nearby parking area, ap-
proximately 150 feet from the railway depot's entrance, and their drivers are per-
mitted to solicit patronage verbally from that distance. Such competition is con-
sidered legitimate.) Taxicabs operated by the Respondent Company are likewise
permitted, however to utilize Yellow Investment Company's allotted private curb
space at the Southern Pacific depot, both to pick up and discharge passengers.
At the Greyhound bus depot in downtown Sacramento, a reciprocal situation pre-
vails. By the terms of a city ordinance, the Respondent Company has been allotted
public curb space for its exclusive use as a taxi stand, close to the bus terminal.
While taxicabs operated by any other Sacramento firm are considered free both to
pick up and discharge passengers within the immediate vicinity of the bus facility,
Yellow Investment Company cabs are the only taxicabs, exclusive of the Respondent
Company's fleet permitted to park and use curb space for this purpose.
Throughout the period with which this case is concerned, Yellow Investment Com-
pany appears to have been financed, partially at least, by a loan from the respondent
enterprise. I so find. And undisputed testimony establishes that Yellow Investment
Company profits have routinely been applied to reduce the loan balance.
The Respondent Union's counsel argues that the Respondent Company and Yellow
Investment Company may properly be considered a single employer-for the pur-
pose of determining whether this agency's discretionary jurisdictional standards
have been met-only if statutory jurisdiction can be shown to exist, first, with re-
spect to each firm separately considered. In this connection, it is asserted that:
Lumping revenue figures of firms over which statutory jurisdiction exists to
determine whether the purpose of the Act will be effectuated is a vastly different
concept from lumping together commerce data from firms over which the Board
does not have jurisdiction either because they are totally intrastate commerce
or because the maxim of de minimis is applicable to said firms. The former
practice involves merely a determination as to whether jurisdiction should be
asserted; the latter involves an attempt to create jurisdiction on the theory that
two intrastate operations make one interstate operation.
No cases have been cited by counsel in support of the contention noted. I find it
lacking in merit Chicaeo North Side Newspapers, 124 NLRB 254; Duval Jewelry
Company, 122 NLRB 1425; The Family Laundry, Inc., et a!., 121 NLRB 1619; Key-
stone Coat, Apron & Towel Supply Company, et al., 121 NLRB 880; Aliens Inc., 120
NLRB 1021. Cf. N.L R.B. v. A. K. Allen Co., Inc., et al., 252 F. 21 37 (C.A. 2) In
the light of the available evidence-which clearly reveals the respondent enterprise
and Yellow Investment Company to be closely integrated firms, under common
ownership and control-the General Counsel's contention that the firms may properly
be treated as a single employer, for jurisdictional purposes at least, would certainly
seem to be warranted. See the cases previously cited; also see Dearborn Oil and Gas
Corporation, et. al., 125 NLRB 645; The Transport Company of Texas, et al., 111
NLRB 884; Metco Plating Company, 110 NLRB 615; Venus Die Engineering Com-
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany, 110 NLRB 336; National Labor Relations Board Twenty-first Annual Report,
pp. 14-15, and cases therein cited. I so find. Throughout this report, specifically
with reference to the jurisdictional issue, they will be so treated
2. Statutory jurisdiction
The Respondent Union's principal argument appears to be that the Board lacks
any statutory justification for the assertion of its jurisdiction in this consolidated
case. Agency and court decisions have made it abundantly clear, however, that the
statutory jurisdiction of the Board presently extends to any commercial enterprise,
with intrastate enterprises included, wherein a stoppage of business operations caused
by industrial strife would tend to impede or disrupt the free flow of interstate com-
merce in normal channels.
Specifically, it should be noted that Section 10(a) of the statute has empowered
the Board to prevent unfair labor practices which affect commerce. And in Sec-
tion 2(7) of the Act, as amended, the statutory term "affecting commerce" has,
been defined to mean "in commerce , or burdening or obstructing commerce or the
free flow of commerce, or having led or tending to lead to a labor dispute burdening
or obstructing commerce or the free flow of commerce." [Emphasis supplied.]
The sweep of this jurisdictional grant has been judicially noted. Polish National-
Alliance, etc. v. N.L.R.B., 322 U.S. 643, 647-648. In the cited case, the Supreme
Court observed that the national legislature-
in order to protect interstate commerce from adverse effects of labor
disputes has understaken to regulate all conduct having such consequences that
constitutionally it can regulate . . . Congress . . . left it to the Board to
ascertain whether proscribed practices would in particular situations adversely
affect commerce when judged by the full reach of the constitutional power of
Congress.
See also, in this connection, N.L.R.B. v. Fainblatt, et al., 306 U.S. 601, 607; Santa
Cruz Fruit Packing Co. v. N.L.R.B., 303 U.S. 453, 467; N.L.R.B. v. Bradford
Dyeing Association, 310 U.S. 318, 326; N.L.R.B. v. Denver Building and Construc-
tion Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 684. This Agency's
statutory jurisdiction, therefore, may properly be said to cover business enterprises,
inclusive of those operative within a single State, wherein a stoppage of operations
due to a labor dispute would tend to impede or disrupt the free, normal flow of-
commerce. When called upon to define, specifically, the minimal volume of business
properly subject to the Board's cognizance , the interruption of which would tend to-
impede or disrupt the free flow of interstate commerce, the Supreme Court has de-
clined. See N.L.R.B. v. Fainblatt, et al., supra . In the cited case, it observed that:
Examining the Act in the light of its purpose and of the circumstances in
which it must be applied we can perceive no basis for infering any intention
of Congress to make the operation of the Act depend on any particular volume
of commerce affected more than that to which courts would apply the maxim
de minimis.
Since the decision noted, the Supreme Court has done little more than adumbrate-
its views with respect to the specific business level for which the maxim cited would-
be considered applicable, through opinions in particular cases and determinations-
with respect to certiorari writs which tend to affirm this Agency's jurisdictional
determinations or those of State tribunals. See International Brotherhood of Elec-
trical Workers, Local 501, et al. v. N.L.R.B. (Samuel Langer), 181 F. 2d 34, 36-37
(C.A. 2), affd. 341 U.S. 694; N.L R.B. v. Suburban Lumber Company, 121 F. 2d
829 (C.A. 3), cert. denied 314 U.S. 693; Pennsylvania Labor Relations Board v.
Napoli, 150 A. 2d 546, cert. denied 361 U.S. 823; Pennsylvania Labor Relations
Board v. Friedberg, 148 A. 2d 909, cert. denied 361 U.S. 2, in this connection.
Within the limits, then, established by the statutory language noted and the
generalized judicial gloss with which it has been invested, the existence of statutory
jurisdiction in the present case must be established.
In an October 2, 1958, press release, the Board declared its intention to assert
jurisdiction over retail concerns, taxicab companies included, with $500,000 gross-
volume of business annually. This jurisdictional standard was subsequently estab-
lished, specifically, in a representation case. Carolina Supplies and Cement Co.,
122 NLRB 88. The Agency declared in the cited case, that:
The Board has decided that it will assert jurisdiction over all retail enterprises
[taxicab companies included] which fall within its statutory jurisdiction and'
which do a gross volume of business of at least 500,000 per annum. The
UNION TAXI CORPORATION 827
Board will apply this standard to the total operations of an enterprise whether
it consists of one or more establishments or locations , and whether it operates
in one or more States. [Emphasis supplied.]
With respect to retail enterprises, therefore, evidence sufficient to sustain a conclu-
sion that legal or statutory jurisdiction exists must be produced before an inquiry
with respect to gross business income may be considered relevant or essential. In
the cited case, this requirement is clearly made explicit rather than implicit. Cf.
International Longshoremen & Warehousemen's Union, et al. (Catalina Island Sight-
seeing Lines), 124 NLRB 813. And under the circumstances, reference to basic
principles would seem to be required in the present consolidated matter.
Preliminarily, of course, some determination must be made as to the manner in
which the operations of the Respondent Company and Yellow Investment affect
commerce. Their direct participation in interstate passenger transportation would
seem to be minimal. (The relevant testimony of Secretary Grimmett merely sug-
gests that cabs operated by the Respondent Company are used to carry passengers
to Reno, Nevada-approximately 150 miles distant-less than once per month, and
possibly no more than one or two times each year. While the fare charged for such
trips does not appear, reason would seem to compel a conclusion that fare income
thus earned would represent an infinitesimal part of the Respondent Company's
total annual revenue.)
And the extent to which the respondent enterprise may purchase taxicab equip-
ment and supplies, directly or indirectly, from out-of-State sources-clearly a relevant
factor in connection with any determination as to the respondent enterprise's in-
volvement in commerce-has not been clearly established. (Each year, apparently,
the firm purchases about 12 Plymouth automobiles to replace obsolescent or wornout
taxicabs. These are purchased from a local automobile distributor. While the
amount expended by the Respondent Company for this purpose, annually, may be
substantial, the distributor's source of supply must be considered uncertain. Grim-
mett's testimony establishes his opinion that some of the cars purchased, at various
times, by the Respondent Company may have been assembled at the Chrysler
Corporation's California assembly plants. Others may have been assembled else-
where and shipped to the State of California for sale. The secretary of the respondent
enterprise was permitted to speculate, on the basis of common knowledge, that
many Plymouth parts conceivably utilized by the California assembly plants of the
Chrysler firm are routinely fabricated elsewhere and shipped to such plants; nQ
information with respect to the extent of the practice, however, has been provided
for the present record. The radio transmitter and the receivers utilized by the
Respondent Company for its radio-dispatched cabs appear to have been purchased
many years ago. I so find. The available evidence establishes that they will soon
be replaced, and that several designated radio equipment manufacturers, with pre-
sumptive national distribution, have been invited to submit bids for the replacement
contract. No purchases, however, have thus far been made. The respondent enter-
prise uses recapped tires exclusively. These are purchased, after being recapped,
from a Sacramento dealer, the State of their original manufacture does not appear
to be known. Finally, the record establishes that the Respondent Company pur-
chases its gasoline and oil from a local Standard Oil Company distributor; nothing
in the record would warrant an inference as to the location of his refinery source,
but official notice that the oil company involved maintains extensive production and
refinery facilities within the State of California would seem to be justified. I have
taken official notice of the fact indicated, and I so find.)
Upon the present record, therefore, the operations of the Respondent Company
and Yellow Investment can only be said to affect commerce, significantly, by virtue
of their relationship to the transportation of interstate passengers. The carriage of
inbound interstate passengers from various Sacramento railroad and bus terminals
to local destinations, for example, would seem to establish the Respondent Com-
pany and Yellow Investment as important, though not indispensable, adjuncts of
interstate travel. And their carriage of passengers from various city points to the
aforementioned railroad and bus terminals certainly deserves characterization as a
service intended to greatly facilitate interstate travel. I so find. (Although the
Respondent Company is not authorized to pick up inbound passengers at the
Sacremento airport, its cabs, I find, are utilized-to an extent not clearly specified-
for the transportation of outbound airline passengers to the airport.) Such services
presumably cannot be viewed, legitimately, as services performed in interstate
commerce; they certainly may be characterized, however, as services which affect
such commerce, in a very real and practical sense. See N.L.R.B. v. White Swan
Company, 313 U.S. 23, 27, for significance of this distinction.
With respect to this aspect of the Respondent Company's operation, the record
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishes the existence of two Sacramento railroad depots , those of the Southern
Pacific and Western Pacific Railroad Company , respectively . At the Western
Pacific depot , throughout the 1958-59 period with which this case is concerned,
trains operated to provide interstate service arrived and departed , I find , four times
daily; this figure reflected the inbound arrival of the California Zephyr from Chi-
cago, Illinois, the arrival of the Zephyrette from Salt Lake City, and the arrival
and departure of their outbound counterparts . At the Southern Pacific depot
there were eight comparable arrivals and departures daily; these included the in-
bound arrival and departure of the City of San Francisco and the San Francisco
Overland from the Midwest , the arrival and departure of their outbound counter-
parts, two bus departures arranged to provide outbound connections at Davis,
California , with the northbound Shasta Daylight and the Cascade , en route to Port-
land, Oregon , and two bus arrivals from Davis with passengers from the south-
bound counterparts of each designated train . At the Sacramento terminal of
Western Greyhound Lines, 13 buses inbound from Nevada, Utah , and points east
arrive and depart daily; additionally , 12 buses eastbound across the California
border arrive and depart each day. Seven buses northbound from Los Angeles,
routed to various Oregon and Washington communities , passed through Sacra-
mento daily during the period with which this case is concerned . An equivalent
number also passed through Sacramento , southbound , routed from various points
north of the California border. (In this connection , I have taken official notice of
the various passenger service schedules routinely published and posted by the inter-
state carriers noted; these are matters of public record , and information with respect
to the bus and train arrivals and departures which the schedules purport to an-
nounce is widely disseminated.)
Common experience would seem to justify inference that , within the Sacra-
mento metropolitan area, many travelers will require and utilize taxicab service,
such as the Respondent Company furnishes , for transportation to and from rail-
road and bus terminals . I so find. The hardship and inconvenience which inter-
state travelers-most likely to be burdened with baggage-would experience from
a disruption of taxicab service may be readily visualized . Curtailment of the
service, therefore , would necessarily tend to cast a burden on interstate travel. Even
if an assumption might be warranted that the service could not be viewed as involving
a business activity in commerce , the provision of such service would certainly seem
,to deserve characterization as a business activity which affects commerce. The
Board, under the statute , is clearly authorized to extend its protection to such
operations.
It has been observed by the Supreme Court , that Congress , in the statute now
under consideration , has explicitly regulated not merely transactions or goods in
interstate commerce but activities which , considered in isolation , might be deemed
to be merely local but in the interlacings of business across State lines adversely
affect such commerce. Polish National Alliance v. N L.R.B., sunra. Thus it is
well settled , for example , that local transit concerns are subject to the Board 's juris-
diction. Amalgamated Association of Street , Electric Railway & Motor Coach
Employees of America , et al. v. Wisconsin Employment Relations Board, 340 U.S.
383; N L R.B. v. Baltimore Transit Company, et al., 140 F. 2d 51, 53-54 (C.A. 4),
cert. denied 321 U.S. 795; NL.R.B. v Fort Worth Transit Comnanv, 187 F. 2d
792 (C A. 5); N.L.R.B v. El Paso-Ysleta Bus Line, Inc, 190 F 2d 261 (C.A. 5).
Judicial affirmation of the Board's jurisdiction over such enterprises has rested anon
acceptance of its conclusion that a disruption of their service , as a result of .labor
strife, would seriously hinder and impede the operation of other businesses engaged
in interstate commerce , whose workers actually depend upon the transit systems,
cars, and buses for transportation . By the same token , the Board 's jurisdiction
may he said to extend to taxicab enterprises.
Additionally , it should be noted that the preferential arrangements under which
the Respondent Comnanv and Yellow Investment operate-whether or not they may
be considered exclusive in character-are not uncommon in.the taxicab transpor-
tation system of the country . The immediate situation. therefore , may very well he
characterized as representative of many others throughout the country , the total
incidence of which . if left unchecked , may well become far-reaching in its harm
to commerce Polish National Alliance v. N.L R B , supra. I so find.
When the Board announced its present jurisdictional standards , it clearly indicated
its intention to exercise statutory jurisdiction over taxicab operations . Although
it has, upon certain occasions , refrained from the assertion of luricdiction over
such enterprises . the abstention of the Board has been prompted by policy consider-
atinns rather than by any doubt with resnect to the existence of A"enc" newer.
Before 1950 , the Board exercised jurisdiction over taxicab companies which did
UNION TAXI CORPORATION 829
some business across State lines. Taxicabs of Cincinnati, Inc. (Ferguson Division),
82 NLRB 664; B. Royce, et al., Yellow Cab Company, 88 NLRB 282; Louis Dix,
d/b/a Hickey Cab Company, 88 NLRB 327. During the latter year, the Agency
did decline to assert jurisdiction over particular taxicab companies operating within
a single State, on the ground that their operations, while not entirely unrelated to
interstate commerce, were "essentially local in character," so that it would not
effectuate the policies of the Act, in the Board's view, to assert jurisdiction in
particular cases. Yellow Cab Company of California, 90 NLRB 1884; Lillian
Jacobs, et al., d/b/a Skyview Transportation Co., 90 NLRB 1895; Brooklyn Cab
Corporation, 90 NLRB 1898. However, before the end of the year, the Board
modified its position and began to exercise jurisdiction over local taxicab companies
which serviced interstate passengers. Red Cab, Inc., 92 NLRB 175. Noting that
taxicab enterprises service terminals handling interstate traffic, pursuant to exclusive
franchises, the Board found that the operation of such enterprises might properly
be regarded as an essential link in the service performed by the interstate carriers.
Red Cab, Inc., supra, at 177. See also Lillian Jacobs, et al., d/b/a Sky view Trans-
portation Company, 92 NLRB 1664, 1665; Rite Rate Cab Company, Inc., 95 NLRB
1302, 1304-1305; Cashman Auto Company, 98 NLRB 832, 833, enfd. 200 F. 2d
412 (C.A. 1); Charman Service Corporation, 99 NLRB 534. Between 1952 and
1954, jurisdiction was asserted over matters involving local taxicab companies if the
firm involved (1) was either the sole concern in the area serving instrumentalities
of commerce, or was licensed by such an instrumentality, and (2) derived a sub-
stantial part of its income from providing this service. Cambridge Taxi Company,
101 NLRB 1328; New Taxi Dispatch Corp. et al., 101 NLRB 1327; Rose Acker-
man, et al., Taxi Transit Company, 102 NLRB 45; Yellow Cab Company, et al.,
103 NLRB 394; Checker Taxi Company, 107 NLRB 266. Between 1954 and 1958,
the Board declined to exercise jurisdiction overy any local taxicab companies.
Checker Cab Co., et al., 110 NLRB 683; Union Cab Company, 110 NLRB 1921.
As previously noted, however, the Board has indicated its intention to assert juris-
diction over local taxicab companies under current jurisdictional standards.
The power of the Agency to assert its jurisdiction in the premises-which as not,
previously, been successfully challenged-cannot be considered extinguished merely
by virtue of the Board's 1954-58 failure to exercise its jurisdiction; nor can any
possible lack of consistency in the Board's policy, I find, argue against the existence
of its power in the premises.
Any disposition on the part of the Respondent Union to rely upon a Supreme
Court decision that local taxicab enterprises which are not involved in "through-
passenger" transportation may not be considered subject to Sherman Act prosecu-
tion, would be misplaced. United States v. Yellow Cab Company, 332 U.S. 218.
The Court, therein, did conclude that any local taxicab service, utilized to convey
interstate train passengers between their homes and the railroad station, in the nor-
mal course of their independent local service, does not constitute an integral part of
interstate transportation, so that a restraint imposed upon that general local service,
without more, could not be said to call for Sherman Act prosecution. But the Court
did not hold that local cab company activities could have no effect on commerce,
and that such activities were beyond the reach of the congressional power to regulate
commerce. On the contrary, it expressly disclaimed its purpose:
to establish any absolute rule that local taxicab service to and from rail-
road stations is completely beyond the reach of federal power or even beyond
the scope of the Sherman Act. . A conspiracy to burden or eliminate
transportation of passengers to and from a railroad station where interstate
journeys begin and end might have sufficient effect upon interstate commerce to
justify the imposition of the Sherman Act or other federal laws resting on the
commerce power of Congress.
The Court decided, essentially, that, under the statute before it, a demonstration that
taxicab companies had engaged in monopolistic practices or restraints as such would
not be sufficient to justify an exercise of the Federal Government's proscriptive
powers; additionally, these practices or restraints would have to be affirmatively
related to some part of interstate commerce itself. Under the National Labor Rela-
tions Act, however, Agency jurisdiction cannot be said to rest on the actually alleged
and demonstrated effects on commerce of the specific action challenged as an unfair
labor practice. It may rest, instead, upon findings as to the nature of the employer's
business, and the potential threat to interstate commerce implicit in any labor dispute
or work stoppage.
Counsel for the Respondent Union argues that the Respondent Company has not
been established as the possessor of any exclusive franchise, and that Board de-
terminations, with respect to the assertion of jurisdiction over taxicab enterprises as
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essential links in the chain of interstate commerce have invariably been concerned
with the existence of exclusive franchises or contracts between any taxicab company
before the Agency and some interstate carrier; it is contended that evidence with
respect to the existence of such exclusive contracts ought to be considered essential
to any determination that statutory jurisdiction exists. No administrative or judicial
decisions reasonably calculated to support this contention have been cited, however.
Upon due consideration , it must be rejected . The existence of an exclusive franchise
or contract may well serve to establish, prima facie, that the services rendered by any
taxicab company as an essential link in interstate passenger transportation are sub-
stantial ; the absence of proof with respect to the existence of such an exclusive
franchise or contract , however, cannot , logically, require a contrary conclusion.
Counsel for the Respondent Union has raised a question as to whether the avail-
able evidence will support a determination-under the jurisdictional test suggested in
the Fainblatt case, previously noted-that the operations of the Respondent Company
and Yellow Investment as essential links in the chain of interstate passenger trans-
portation involve something more than minimal service, insufficient to require
Agency attention. It has been judicially noted that the legal concept, de minimis, has
always been taken to mean trifles-matters of a few dollars or less. N.L .R.B. v.
Suburban Lumber Company, 121 F. 2d 829, 832 (C.A. 3), cert. denied 314 U.S. 693.
Compare International Brotherhood of Electrical Workers, Local 501, et al. v.
N.L.R.B. 181 F. 2d 34, 36-37, affd. 341 U.S. 694, wherein the Court of Appeals for
the Second Circuit held that a labor dispute which involved a New York contractor,
whose construction work on a particular Connecticut house was valued at $325
only, fell within the Board's statutory jurisdiction. While the record in this case
cannot be said to provide a substantial clue as to the gross income derived by the
Respondent Company from the transportation of interstate travelers , to and from
Sacramento railroad stations and bus terminals , logic and experience would seem to
compel an inference that the respondent enterprise-together with its associate
company, by far the largest taxicab enterprise of the eight operative in the State
capital-provides more than minimal service for travelers inbound or outbound
across State lines. While the General Counsel 's inability to provide specific gross
income figures, with respect to this relevant aspect of the Respondent Company's
business , necessarily requires that a determination of the issue now under considera-
tion be made upon reasonable inference only, no conclusive impediment to a de-
termination is thereby presented. As the court of appeals in the Suburban Lumber
Company case observed:
We are concerned here with the utilization rather than the extent of the com-
merce power. The National Labor Relations Act uses what have been described
as words of art to indicate the fullest employment of this congressional au-
thority. The selection of the word "affect" is of recent origin. . . That the
word has the widest conceivable scope is apparent both from its dictionary defi-
nition and its judicial interpretation . . In this view, percentages and such
mathematical formulae are manifestly irrelevant except possibly in one respect.
Using the commonly accepted water-course metaphor, a thimble affects a brook,
a bucket affects a stream and a spillway affects a river.
Here, despite the General Counsel's failure to establish that the Respondent Com-
pany and Yellow Investment derived a substantial portion of their gross annual
revenue as taxicab operations from the carriage of interstate travelers to and from
railroad stations and bus terminals, an inference that the portion of their consolidated
yearly income derived from such operations was more than minimal, throughout
the period with which this case is concerned, would certainly seem to be warranted.
Cf. Plant City Welding and Tank Company, 123 NLRB 1146; Tropicana Products,
Inc., 122 NLRB 121. I so find. Also, as the Court of Appeals for the Third Cir-
cuit observed, statutory jurisdiction may be considered established when the record
will support a conclusion that the participation of any business enterprise , regardless
of its size , as a link in the chain of commerce exceeds a minimum amount in relation
to the total amount of interstate commerce involved. In the present case , certainly,
there can be no reason for doubt that the Respondent Company and Yellow Invest-
ment provide local transportation service utilized by a substantial number of inter-
state travelers, inbound and outbound from the State capital, whatever the total
volume of such interstate travel. And I so find.
3. Gross volume of business
As previously noted, this Agency has declared its intention to assert discretionary
jurisdiction over all retail enterprises (taxicab companies included) which fall within
its statutory jurisdiction and do a gross volume of business of at least $500,000 per
UNION TAXI CORPORATION 831
annum. Carolina Supplies and Cement Co., 122 NLRB 88. In the cited case, the
Agency declared that it would apply its indicated jurisdictional standard to the total
operations of the enterprise involved, whether it consisted of one or more establish-
ments or locations, and whether it operated in one State or more.
In the light of the available evidence, which the Respondent Union has not chal-
lenged, there can be no doubt that the Respondent Company and Yellow Investment,
considered as a single employer, derived gross income from their 1956-57 con-
solidated operations greater than the amount now declared to be prerequisite to an
assertion of Agency jurisdiction. During the 1958 calendar year, however, actual
consolidated gross income appears to have fallen below $500,000, primarily because
of an 8-week strike, from October 26 to December 19, during which the operations
of both firms-together with those of every other unionized taxicab company in
the Sacramento area-were entirely suspended. The relevant figures follow:
ITEM 1956 1957 1958
Gross income--Union Taxi----------------------------------- $600,946 89 $477, 488 10 $413, 071.71
Less Charges paid by Yellow Investment-------------------- -7,954 99 -12,133 84 -10,241 32
Adjusted gross income-Union Taxi Corp-------------- 592, 991.90 465,354 26 402,830 39
Gross income-Yellow Investment------------------------ 53,207 79 62,496 66 48, 067.20
Consolidated gross income ------------------------------ 646,199 69 527,850 92 450, 897.59
Note that these figures differ somewhat from those supplied for the record by Secre-
tary Grimmett of the Respondent Company, and the General Counsel's representa-
tive. The dollar volume figures supplied for the 3-year period reflect certain com-
putation errors. Correctness of the basic data supplied on behalf of the Respondent
Company has been assumed, but my summary of the information, embodied in this
report, has been based upon adjusted arithmetical computations.
The records of the Respondent Company and Yellow Investment thus reveal their
combined business volume, during 1956 and 1957 operations, to have been greater
than the amount now deemed necessary to justify the assertion of Board jurisdiction.
And the failure of their consolidated operation to achieve the $500,000 gross income
level during the 1958 calendar year, because of the strike previously noted, cannot
justify or require a refusal by the agency to assert its powers. When an employer's
business has suffered a strike interruption, the Agency customarily projects over a
full-year period whatever figures on gross business volume are available, to deter-
mine whether Agency jurisdiction should be asserted. Hygienic Sanitation Com-
pany, 118 NLRB 1030; Essex County and Vicinity District Council of Carpenters,
AFL, et al. (Fairmount Construction Company), 95 NLRB 969, 971. Such a pro-
jection made in the present case-with due allowance for an estimate that average
weekly business volume for taxicab enterprises during the fall and winter season
normally exceeds average weekly business volume during earlier periods of the year-
fully warrants a conclusion that the combined operations of the Respondent Com-
pany and Yellow Investment, during the 1958 calendar year, would have equaled
or exceeded the Board's minimum business volume requirement for retail enter-
prises, absent the strike. I so find.
Additionally, it may be noted that the Respondent Company has been able to
supply consolidated gross income figures for the first 6 months of 1959 during which
its operations, together with those of its associated enterprise, suffered no interrup-
tion. These figures follow:
Total income-Union Taxi________________________________ $224,016.43
Total income-Yellow Investment__________________________ 33, 770. 25
Consolidated gross income__________________________ 257, 786. 68
When an employer's business is newly established, and the record necessarily fails
to provide information with respect to the scope of its annual operations, the Board
has asserted its jurisdiction if the available figures for a shorter period can be pro-
jected in such a manner as to create some "reasonable expectation" that the estab-
lished yearly minimum business volume deemed prerequisite to the exercise of
Agency power would be achieved with the passage of time. Coast Aluminum Com-
panv, 120 NLRB 1326; General Seat and Back Mfg. Corp., 93 NLRB 1511. Such a
projection in the present case, again, would certainly seem to warrant a conclusion
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the consolidated enterprise with which we are now concerned may reasonably
be expected to derive more than $500,000 gross income from Sacramento taxicab
operations, during the 1959 calendar year. And it is so found.
C. Conclusions
In the light of the considerations noted, I have found that the respondent enter-
prise and Yellow Investment Company may properly be considered a single em-
ployer-specifically with respect to the resolution of the jurisdictional issue in the
present consolidated case-within the meaning of Section 2(2) of the Act, as
amended. I have found that, throughout the period with which this case is con-
cerned, the Respondent Company and its enterprise have been engaged in business
activities which affect commerce, within the meaning of Section 2(6) and (7) of
the statute. With due regard for the jurisdictional standards which the Board pres-
ently applies-outlined in Stemons Mailing Service, 122 NLRB 81; Carolina Supplies
and Cement Company, supra, and related cases-I now find that assertion of the
Board's jurisdiction in this case would be warranted and necessary to effectuate the
statutory objectives.
II. THE RESPONDENT UNION
Teamsters Automotive & Chauffeurs Local Union No. 165, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act,
as amended, which admits employees of the Respondent Company to membership.
III. UNFAIR LABOR PRACTICES
A. Issues
In his consolidated complaint, the General Counsel has charged the Respond-
ents herein with two distinct unfair labor practices. Primarily, it is alleged that
the Respondent Company and the Union have, at all times material , maintained and
effectuated trade agreements with union-security clauses more restrictive of em-
ployee rights than the statute, as amended, permits. (The relevant articles of the
trade agreement can be construed, arguably, to establish closed-shop conditions with
respect to the employment of taxicab drivers, chauffeurs, and other employees, by
the Respondent enterprise. They may also be open to constriction as commitments
by the Respondent Company to prefer available union members for employment.
The General Counsel, however, has only charged, expressly, that the agreement
establishes an exclusive referral arrangement, subject to the Respondent Union's
control, which must be considered illegal in the absence of certain specific con-
tractual provisions, together with consistent practices, deemed essential to fore-
stall the discriminatory effectuation of such arrangements.)
The Respondents, severally, concede the maintenance and effectuation of trade
agreements with the challenged union-security provisions. They also concede their
failure to restrict the discretion of the Respondent Union, contractually, with
respect to the effectuation of the exclusive employment referral arrangement estab-
lished by the agreements, in certain designated ways. Any failure, on their part,
however, to maintain and effectuate the exclusive employment referral arrangement
noted within limits considered- essential by this Agency to forestall discrimination
statutorily proscribed is denied.
Secondarily, the Respondent Company is alleged to have terminated the em-
ployment of Wayne B. Lewis, the complainant herein, upon the Respondent
Union's demand made pursuant to the provisions of the challenged agreement. The
complainant's termination, under the circumstances, is alleged to have involved an
unfair labor practice on the Respondent Company's part, with the Respondent
Union as its causative agent. The Respondents, severally, concede the termination
of Lewis at the Respondent labor organization's request, but deny that the course of
conduct attributable to them was undertaken pursuant to the provisions of their
trade agreement.
The issues posed as a result of these substantive contentions must now engage
our attention.
B. Contracts and employment practices
1. The union-security agreements
In October 1956, the Respondent Company and the Union executed their "Taxi
Aereement" with an October 1, 1957, expiration date. Its termination clause pro-
vided for the agreement's automatic renewal from year to year thereafter, absent
UNION TAXI CORPORATION 833
timely written notice by either party of a desire for modification . Identical agree-
ments appear to have been executed by four or five other unionized taxicab enter-
prises operative in the State capital . (The available evidence establishes that the
Respondent Union negotiated and separately executed a similar 1956-57 agreement
with Yellow Investment Company for its drivers . For present purposes , however,
no definitive conclusion wth respect to the execution or effectuation of such an
agreement need be reached.)
During 1957, various Sacramento taxicab enterprises-the Respondent Employer
among them-pleaded their inability to effectuate a wage increase for the year to
follow. On October 1, 1957, therefore , the current 1956-57 trade agreements be-
tween these enterprises-the Respondent Company included-and the Union were
automatically renewed for the 1957-58 contract year. The union-security clauses
of the renewed agreement , I find , read as follows:
Article I Jurisdiction:
(a) All employees of the Employer who are engaged in driving cabs, lim-
ousines, sightseeing buses, ambulances , funeral cars, U Drive cars , owner drivers,
dispatchers , supervisory dispatchers , emergency starters, and automotive main-
tenance men and whether working full or part time as drivers or operators or
in a dual or combination capacity , shall be and at all times during their employ-
ment shall remain members of Local Union #165 in good standing.
(b) Employment of Men: The Company or party of the first part agrees
that in the employment of men in the class of work herein mentioned at all
time [sic] to employ none other than members of this Union while this Union
is in a position to furnish same. The Company before hiring new men not
members of the Union shall first call the Union to ascertain if there are eligible
men on the unemployed list and if eligible men are on the unemployed list,
Employers shall give preference to the Union Men on the unemployed list.
No man previously discharged for drinking , dishonesty , or proved incompetency
shall be regarded as eligible . All new men to be employed shall obtain O.K.
Cards from the Union on day of employment.
Article VII Delinquents:
The Employers , upon notification of the Business Agent agrees [sic ] to with-
hold from service any Employee who is delinquent in his Union dues on forty-
eight ( 48) hours notice.
In due course , negotiations for the revision and modification of the 1957 -58 agree-
ment were initiated . These negotiations , however, finally deteriorated to an impasse
in October of the latter year, and a strike resulted . It began, I find, at 12 : 01 o'clock
on the morning of October 26, 1958, and lasted until the afternoon of December 19,
just slightly less than 8 weeks. ( All of the Sacramento taxicab enterprises pre-
viously under contract with the Respondent Union were struck. The available evi-
dence suggests that the firms involved in negotiations before the strike had been
bargaining , jointly, for a uniform agreement which each of them expected to execute
separately . Since the history of the negotiations cannot be considered germane for
present purposes , however, no conclusions with respect to their scope or prospective
goal need be aritculated.)
On December 19, 1958, an informal agreement to settle the strike was reached.
Pursuant to its terms , the drivers in the employ of each struck taxicab company, the
respondent enterprise and Yellow Investment included , reported directly for work
thereafter . Ultimately , the agreement reached to terminate the strike was formalized
in a new form "Taxi Agreement" dated and executed by the various taxicab enter-
prises on January 16, 1959. The agreement with which this consolidated case is
concerned was executed by the Respondent Company and the Union , at least, on
the indicated date. It provided , specifically, for the retroactive effectuation of a
minimum wage scale and maximum workday, starting December 31, 1958; health
and welfare provisions calling for employer payments in a designated amount were
declared effective retroactively as of January 1 , 1959, with an initial payment due 1
month later. No other provisions of the agreement were made effective retroactively.
By its terms , the agreement was to be effective until December 31, 1959; it was to
be subject to automatic renewal thereafter , absent timely written notice by either
party of a desire to negotiate modifications. The union-security provisions of the
new agreement recapitulated those of the previous agreement , noted, without change.
In the formal answer of each Respondent , it is conceded that their 1959 agreement
fails to incorporate standards of criteria for preference in referral ; that it fails to
incorporate explicit provisions with respect to the nondiscriminatory selection of
597254-61-vol . 130-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicants for referral; that it fails to incorporate provisions with respect to the
employer's right to reject applicants pursuant to its terms, and that it does not provide
for the posting of notices containing all provisions relative to the functioning of the
exclusive referral arrangement which it establishes. I so find.
2. Employment practices
The testimony of Secretary Grimmett of the Respondent Company, and Business
Agent Milonich of the respondent labor organization-which the General Counsel
has made no effective effort to contradict-establishes that, despite the union-security
provisions of their agreement, representatives of the respondent enterprise do not
routinely solicit the Respondent Union to refer applicants for employment. (Undis-
puted testimony, which I credit, establishes that, for a period of 2 years at least, and
possibly longer, most unemployed men interested in taxi driver work have not been
applying to the Respondent Union for referral. The record establishes Mrs. Little-
field's awareness of this fact, as the Respondent Company's employing head; Business
Agent Milonich, frequently in contact with her, appears to have kept her so advised.)
Under the circumstances, I find, the contractual obligation of the Respondent
Company to call upon the Union, for the purpose of ascertaining the presence of
eligible men on the labor organization's unemployed list before hiring new men not
union members, has been more often breached than observed during the period
indicated. In the case of the Respondent Company, applicants for driver employ-
ment have routinely called upon Mrs. Littlefield, or other company representatives
authorized to hire. They have not been questioned, I find, with respect to their
membership in the respondent labor organization. If thereafter employed, however,
they have been directed to the Respondent Union's office for clearance. (The record
is silent as to whether newly hired employees are advised, expressly, of their obliga-
tion , under the trade agreement previously noted, to perfect or maintain member-
ship throughout their employment. Grimmett merely testified, without contradic-
tion, that newly hired employees are "naturally" told to visit the Union's office, and
to "find out" whatever the organization will require of them. Available evidence
will support an inference, however, that newly hired drivers thus referred to the
Respondent Union fully understand their obligation to secure clearances, and to
perfect and maintain union membership as a condition of their employment. I so
find.) At the offices of the Respondent Union, newly hired drivers referred for
clearance are requested to execute an application for membership in the Respondent
Union, if not already members. Upon the completion of their application, they
receive clearance cards, for presentation to the Respondent Company or any other
firm privy to a similar union-security arrangement.
Their clearance cards may or may not be presented to the Respondent Company
after their issuance . The testimony of Secretary Grimmett establishes that about
50 percent of the newly hired drivers cleared for employment by the Respondent
Union present clearance cards upon their return. With respect to others, the Re-
spondent Company may be advised of clearance by a telephone call from some
representative of the respondent labor organization; in other cases, no clearance card
or telephone call may be received. Grimmett's testimony establishes, absent con-
tradiction, that the Respondent Company makes no routine effort to check each
employee's compliance with the contractual union-security requirements noted; if
no report with respect to the clearance of some particular employee is received, the
Respondent Company assumes the employee's compliance with clearance require-
ments, in the absence of notice to the contrary from the Respondent Union, pur-
suant to their trade agreement.
C. Wayne B. Lewis
1. Employment
Essentially, the circumstances under which Wayne B. Lewis acquired employment
with the Respondent Company are not disputed. The available evidence establishes
that after a previous period of employment as a driver for City Cab Company, he
sought employment on October 20, 1958, as a taxi driver with Mrs. Littlefield of the
respondent enterprise. She advised him that he would be put to work if he secured
union clearance; he was, in fact, instructed to secure a clearance document. Later
that day, Lewis visited the Respondent Union's office and reported to a secretary
that Mrs. Littlefield had told him he should go to work if he procured a union clear-
ance; he asked what he had to do to secure such a document. Pursuant to routine
"normal" practice, Lewis was asked to execute an application for union membership.
This he did. He was advised that he would be expected to pay a $25 initiation fee,
UNION TAXI CORPORATION 835
plus $9.75 for dues and various assessments; $34.75 was thus fixed as his total
financial obligation. Lewis reported his inability to pay the full amount immediately,
proffered a $4 payment on account, and received a union clearance. He was advised
that a further sum, sufficient to complete a $14.75 payment, would be due within
2 weeks, and that his $34.75 obligation would have to be satisfied within 31 days.
On October 21, 1958, pursuant to a suggestion of the Respondent Union's office
secretary, he submitted his clearance to Secretary Grimmett, and began work for
the respondent enterprise.
2. Participation in the strike
When the drivers in the employ of the Respondent Company, among others,
struck on October 26, 1958, Lewis ceased work. Neither Yellow Investment Com-
pany nor the respondent enterprise maintained cab operations. (The complainant
did not, however, participate in any picket line activity.) Approximately 1 month
later, while the strike was in process, he went to work for another taxicab enterprise,
City Cab Company, with North Sacramento headquarters. This firm had not been
privy to any prior agreement with the respondent labor organization. Lewis also
worked, during the strike period, for a West Sacramento taxicab enterprise, which
continued operations.
In the middle of December, about 1 week before the end of the strike, Lewis
observed Mrs. Littlefield seated in a parked automobile, and halted the taxicab be
was driving-plainly marked as a "City Cab" vehicle-to converse with her. His
corroborated report with respect to their conversation, which I credit, reads as
follows:
Well, I pulled up alongside of her and I said, "Hi, Mom," and she said, "Hi,
Kid." Speaking of Marie Littlefield, we all called her "Mom." . . She says,
"How're you doing?" And I said, "Best 'Spects'." And I asked her about going
back to work after the strike was over with. . And she says, "Sure, you
can have your job back." And I told her that I have heard rumors that since
I was driving a non-union cab that I wasn't going to get cleared through the
union to drive for Mrs. Littlefield. She said, "Well, don't worry about that,
I will try-" that "I will get you cleared to go to work for me after the strike is
over with." And I drove off.
When the strike ended, most of the drivers previously on strike-if not all of
them-appear to have reported for work and to have resumed work immediately
with their respective employers. In the absence of evidence to the contrary, I so
find. Lewis, however, did not report for work or resume work as a driver for the
Respondent Company automatically; he continued to drive a City Cab Company
vehicle, I find, for 1 day-the 19th of the month. Within a few days after the
strike ended, however, he reported, initially, to the Respondent Union's office and
requested a clearance to resume work. The complainant's decision that he would
have to secure a new clearance before any resumption of work for the respondent
enterprise appears to have been made on his own initiative. I so find. He was ad-
vised by Business Agent Milonich that no clearance could be issued for him until
everyone previously on strike had resumed work; specifically, I find, Lewis was ad-
vised that one man would have to be restored to employment by the Respondent
Company before he could receive a clearance. He decided to wait. (The com-
plainant's testimony, at this point, indicates that he met Mrs. Littlefield while in the
vicinity of the union office, and that he apprised her of his desire to resume work.
She is reported by the complainant herein to have said that she would see about
getting him back. Mrs Littlefield, however, could not recall this conversation. I
find the suggested testimonial conflict unnecessary to resolve.) After a short wait,
Lewis was advised by Milonich that Mrs. Littlefield had rehired the driver whose un-
employment had held up his clearance. A clearance to work for the Respondent
'Company was thereupon issued to him; December 22, 1958, is shown as its date of
issuance.
Upon receiving his clearance, Lewis was again advised that he would be allowed
a 2-week grace period within which to pay $14.75 toward his initiation fee, current
dues, and other union charges; the secretary of the business agent also advised him
again that he would be allowed 31 days from the day of his clearance to pay the
.$34.75 total due. (Lewis could recall no discussion with the secretary in which
At was indicated that his previous $4 payment had been forfeited. The available
evidence establishes, however, that his initial membership application had included a
notation that "all money left on deposit for initiation shall be considered forfeited
if initiation is not completed within thirty days." And the complainant's testimony
does not establish that this possibility had been called to his attention by the secretary
An the Union's office, at the time of his initial application. His financial obligations-
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fixed as of the date of his second clearance=suggest that his previous payment
had, indeed, been considered forfeited by the respondent labor organization.) Lewis.
took the clearance to Secretary Grimmett of the Respondent Company, and resumed
work. On January 5, 1959, he paid $14.75 to the respondent labor organization;
its records establish the allocation of this sum as follows: $5 as partial payment of
the $25 initiation fee; $4.50 for December 1958 dues; $2.50 for an assessment;
$2.50 for a second assessment; and $.25 for a strike fund contribution.
Sometime after January 26-presumably on the following day-Secretary Grim-
mett of the Respondent Company, with the concurrence of Mrs. Littlefield, showed
Lewis a letter which the firm had just received from Business Agent Milonich of
the respondent labor organization. The letter, addressed to Mrs. Littlefield's at-
tention, read as follows:
This is to inform you that under the provisions of Section 7 of the present
working Agreement between your Company and this Local Union, we are
requesting that "WAYNE LEWIS and RICHARD BRAGG" be withheld from
service until they have completed their obligation to this Local Union.
Grimmett, pursuant to Mrs. Littlefield's instructions, advised Lewis personally,
I find, that he would have to see a union representative; the testimony of the com-
pany secretary that he notified the firm's dispatcher to deliver such a message to
Lewis is rejected. When questioned by the General Counsel's representative as to
whether Grimmett-in the course of their conversation, herein found-had said
that he was suspended by the Respondent Union, and that he would not be able
to work, therefore, until his obligation to the Union had been cleared, Lewis de-
murred, partially at least. His recital with respect to Grimmett's statement, which
I credit despite the secretary's contrary testimony, reads as follows: "He said that
he [1] had to see the Union before I went back to work to get this straightened
up before I do go back to work."
The record does not establish any remark by Grimmett indicative of his knowledge
as to the nature of the complainant's problem requiring settlement or adjustment.
(In passing, it may be noted that Grimmett's remarks to Bragg, also cited in the
letter from the Respondent Union as a presumptive delinquent, appear to have been
of similar tenor. I so find.)
Immediately after receiving the advice noted, Lewis went to the union office and
spoke to Business Agent Milonich. He requested the assistance of the latter to
get "this mess" adjusted so that he could resume work; Milonich, however, said that
he would have to confront the executive board of the Respondent Union, approxi-
mately 1 week thereafter, to secure a clarification of his status. (Lewis, I find, told
the business agent that he had in his pocket money sufficient to pay his initiation
fee and dues, Milonich, however, refused to accept it, prior to his appearance be-
fore the Union's executive board, whose determination with respect to the com-
plainant's status would be final.)
Subsequently, on February 4, 1959, Lewis appeared before the Respondent
Union's executive board. Seven members were present, two of them employees of
the respondent enterprise. Immediately prior to his conference with the executive
board, Lewis was advised by Richard Bragg-the o'her driver designated, in the
letter previously noted, as delinquent in his obligation to the respondent labor
organization-that he had been cleared to resume employment, if he proved able
to produce the money necessary to complete the payment of his initiation fee with-
in a short time. (Bragg, I find, did resume work as a driver for the Respondent
Company on February 5, 1959, thereafter, after having been withheld from service
since January 27, previously. He paid the $20.50 balance due on his initiation fee
within 1 to 2 days.) The complainant was then summoned to confront the board.
His testimony with respect to their discussion, which I credit, reads as follows:
Well, I recall when I went in; I don't know how the conversation started out
that they were kicking me out of the union. It isn 't because I haven't paid
my initiation fee or nothing. It is because-that I drove a non-union cab dur-
ing the strike.... Well, I don't rermember who said it. Seven of them were
taking part in saying this and that.... I told him, "What do you expect me
to do?" I said, "You stayed on strike just about a month and he [Milonichl
helped me out a little and then this comes up here and you are kicking me
out." And, "Well, what can I do, starve or go down on skid-row or something
like that or live, whatever it is." They said, "You could have got a job
digging ditches or something like that." I said, "Where can you get a job
digging a ditch without joining the union?" They Said, That is your tough
luck."
UNION TAXI CORPORATION 837
At the end of the discussion , Lewis was told that he would not be cleared.
,On the following day, however, he spoke to Vice President Pleines of the respondent
enterprise . The latter, I find, made an unsuccessful effort to persuade at least one
member of the Respondent Union's executive board that complainant 's conduct
during the strike provided insufficient justification for the Respondent Union's de-
cision to reject his membership application ; at the close of his telephone conversa-
tion with the executive board member , Pleines advised the complainant to see an
attorney.
On February 6, 1959, Lewis dispatched a $34.50 money order to the respondent
labor organization , by mail, to satisfy his financial obligations . The money order
was returned, and Lewis was advised that he would not be accepted as a union
member. Thereafter, on February 17, 1959, Lewis filed his charges in the present
consolidated matter.
Questioned as to whether he had subsequently had any conversations with Mrs.
Littlefield about the situation , Lewis replied in the affirmative. His testimony with
respect to her comments , which I credit, reads as follows:
She always told me that if I ever got cleared through the union to go to work
she would take me back whether it was day or night, that she would take me
back, I always had a job waiting whenever I was cleared through the union.
Since January 27, 1959, however, the complainant has performed no services as a
taxi driver for the respondent enterprise.
D. Conclusions
1. Contracts and employment practices
Upon the entire record, considered in the light of established decisional doctrine,
there can be no doubt that the trade agreements executed and effectuated by the
Respondents , throughout the period with which this consolidated case is concerned,
,established conditions of employment proscribed by the statute. By the terms of
their first article, which purported to define the employee group involved, the agree-
ments provided that all of the employees they covered "shall be and at all times dur-
ing their employment shall remain " members in good standing of the respondent
labor organization . Additionally, the agreements clearly established preferential
employment conditions . By their terms, the Respondent Company was obligated to
give the Respondent Union first call, before it could consider itself free to undertake
the employment of new men not members of the designated organization; if ap-
prised that eligible men were available for work, enrolled for that purpose on the
Respondent Union's list of unemployed men, the Respondent Company was obli-
gated to give preference in employment to members of the Respondent Union on the
designated list, and to employ members of the Respondent Union only, while that
organization was in a position to furnish them for employment. Finally, to effectu-
ate these provisions of the first article found in their trade agreements , the Respond-
ents contracted that all new men employed would be required to obtain union clear-
ance cards on their first day of employment, and that the Respondent Company, upon
appropriate notice, would withhold from service any employee delinquent in dues
to the respondent labor organization.
Neither of the Respondents has challenged the General Counsel's factual allega-
tions with respect to the execution or effectuation of the trade agreements which
embodied these provisions . Their only response , indeed , appears to be a contention
that the contractual terms in question have not been strictly observed. Any such
argument , however, if pressed, would have to be reiected as immaterial . The mere
existence of contracts which contain closed-shop and preferential employment provi-
sions, apart from their actual enforcement , has been held to threaten the rights of
employees statutorily guaranteed , and to encourage membership in a labor organiza-
tion by "discrimination in regard to hire" on the part of the employer involved; the
agreements themselves , shortly, have been held to fall squarely within the statutory
prohibition. Eichleay Corporation v. N.L R.B, 206 F. 2d 799, 803 (C A. 3);
N.L.R.B. v. F. H. McGraw and Company, 206 F. 2d 635, 641 (C.A. 6); Katz et al.,
d/b/a Lee's Department Store v. N.L.R.B., 196 F. 2d 411, 415 (C.A. 9); Red Star
Express Lines of Auburn, Inc. V. N.L.R B. 196 F. 2d 78, 81 (C.A. 2). See also
Nassau and Suffolk Contractors' Association , Inc., et al., 123 NLRB 1393; Jandel
Furs, 100 NLRB 1390, 1391 . And since the respondent labor organization involved
in the present consolidated case necessarily participated in the execution of the
successive agreements which embodied the improper provisions noted , it would seem
to follow that the organization must be held to have caused the Respondent Com-
pany to discriminate against employees in violation of Section 8(a) (3) of the statute.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent Union thus itself became involved in the commission of a statutory
unfair labor practice. N.L.R.B. v. National Maritime Union of America, et al., 175 F.
2d 686, 689 (C.A. 2), cert. denied 338 U.S. 954. I so find.
These conclusions, as previously noted, rest upon a determination that the express
terms of the trade agreement with which we are now concerned establish closed-shop
and preferential-employment conditions. Such union-security arrangements have uni-
formly been held subject to administrative proscription, since the passage of the
statute, as amended. Under the circumstances, therefore, I find it unnecessary to de-
termine whether, as the General Counsel's consolidated complaint alleges, the con-
tractual union-security arrangement between the Respondent Company and the
Union, now under consideration, might likewise be subject to interdiction on the
ground that it authorizes the latter organization to exercise exclusive control over
employee hire within the given contract unit, without the safeguards which this
Agency has found necessary to negate the inherent tendency of such agreements to
encourage union membership unlawfully. See Mountain Pacific Chapter of the
Associated General Contractors, Inc., et al., 119 NLRB 893. Such a determination,
made at the General Counsel's request, would merely provide supplementary justi-
fication for a recommendation and order otherwise demonstrably appropriate.
In this connection, however, it may be noted that the record will fully support a
determination with respect to the actual effectuation of certain contractual union-
security provisions by the Respondents herein. While the available evidence may not
warrant a finding that the Company regularly sought men for employment as drivers
initially through the union office, or that the firm accorded established union mem-
bers preference in hire, it will clearly support a determination that all of the Com-
pany's newly hired employees, covered by the agreement, were routinely directed to
obtain union clearance. (The fact that the Respondent Company may have neg-
lected postdirection enforcement of this requirement by failing to require the subse-
quent production of clearances for all of the employees thus instructed, cannot
vitiate the significance of the directions given.) And the record made with respect
to the treatment accorded Lewis and Bragg by responsible officials of the respondent
enterprise would certainly seem to provide sufficient justification for a conclusion that
the firm actually enforced the contractual closed-shop provision. I so find.
Note, however, should be taken of the fact that the union-security provisions of
the 1957-58 agreement-subject to challenge in this case, under the statute, for the
last 11/2 months of the agreement's term-became effective by virtue of the auto-
matic renewal of a previous agreement with an October 1956 execution date. And
both of these trade agreements, counsel for the Respondent Union has observed, were
negotiated and effectuated during a period, noted elsewhere in this report, when the
Board, pursuant to an established policy, was declining to exercise its statutory juris-
diction over local taxicab enterprises. In the light of this circumstance, counsel has
suggested that a decision with respect to the legality of the 1957-58 union-security
arrangement, reflective of a determination to assert legal jurisdiction for the purpose
of deciding that question on the basis of present jurisdictional standards, would
be arbitrary and constitute an abuse of discretion. N.L.R.B. v. Guy F. At-
kinson Company, et al., 195 F. 2d 141, 149 (C.A. 9). The observations of counsel
in this connection reflect a contention that this Agency may not properly utilize the
sanctions within its power to proscribe statutory violations if the unfair labor prac-
tices found are shown to have occurred only at a time when the Board allegedly
would not have considered the Respondent Company's business operations subject
to Agency jurisdiction.
Established decisional doctrine requires the rejection of this contention as de-
ficient in substantive merit. Whenever the Board has revised its jurisdictional
standards, it has announced its intention to apply its newly enunciated criteria to
all of the cases already before it, as well as future cases. Edwin D. Wemyss, d/b/a
Coca-Cola Bottling Company of Stockton, 110 NLRB 840, 843; Siemons Mailing
Service, 122 NLRB 81. Newly announced jurisdictional standards have, therefore,
been applied-and unfair labor practice determinations have been made-when the
statutory violations involved demonstrably occurred during a period in which the
business of the respondent enterprise would not have been considered sufficient to
warrant the Board's exercise of jurisdiction under standards then applicable. The
Board has observed that its discretionary abstention from the exertion of jurisdiction
under such previously effective standards cannot be relied upon by Respondents as
a bestowal of immunity against prosecution under the Act, as amended. Siemons
Mailing Service, supra. The decision cited includes an observation that:
. the Board does not believe that the mere fact that a respondent had reason
to believe by virtue of the Board's announced jurisdictional policies that the
Board would not assert jurisdiction over it, gave it any legal, moral, or equitable
UNION TAXI CORPORATION 839
right to violate the provisions of the Act.. . . In the final analysis what is
conclusive with us is the fact that any other policy would benefit the party whose
actions transgressed the provisions of the Act at the expense of the victim of
such actions and of public policy.
This view has been approved by the Court of Appeals for the Second Circuit.
N.L.R.B. v. Gottfried Baking Company, 210 F. 2d 772, 781. Answering an em-
ployer's complaint that the Board's assertion of jurisdiction over its operation was
inconsistent with previous Board policy, the court stated that: "We do not see how
clauses which are invalid under the Act would become valid merely because the
Board chose not to assert jurisdiction." Other courts have. also upheld the Board's
determination to apply, in cases already pending, revised jurisdictional standards
promulgated subsequent to the occurrence of the unfair labor practices charged.
Local Union No. 12, Progressive Mine Workers of America, District No. 1 (Rawalt
Coal Co.) v. N.L.R.B., 189 F. 2d 1, 4-5 (C.A. 7), cert. denied 342 U.S. 868; Optical
Workers' Union Local 24859 v. N.L.R.B. (Rogers Brothers Wholesalers), 229 F.
2d 170, 171 (C.A. 5), cert. denied 351 U.S. 963; N.L.R.B. v. Kartarik, Inc., 227 F.
2d 190, 192 (C.A. 8). N.L.R.B v. Stanislaus Implement and Hardware Company,
Ltd., 226 F. 2d 377, 379 (C.A. 9). Hence my observation that established decisional
doctrine dictates the rejection of the Respondent Union's contentions that such an
Agency determination would be arbitrary and constitute an abuse of discretion.
In the light of the course of decision noted elsewhere in this report-specifically
with respect to the Agency's assertion of jurisdiction over taxicab enterprises before
the 1954-58 abstention period-the Respondent Company and the Union cannot
legitimately claim to have been ignorant of some possible justification for the Board's
assertion of jurisdiction over such enterprises. Nor can they claim any real lack
of knowledge with respect to the possibility of a Board determination as to their
legal inability to engage in conduct statutorily proscribed. The fact that they may
have believed, when they executed their 1957-58 trade agreement, that the Board
would not assert its jurisdiction and compel their compliance with the law, cannot
be said to constitute either a legal or equitable defense to statutory transgressions.
Compare N.L.R.B. v. Guy F. Atkinson, supra, wherein the court, under the peculiar
factual situation there present, characterized the impact of retroactive policy deter-
minations upon a respondent innocent of any conscious statutory violations as in-
equitable. Even the possible applicability of the Atkinson decision, however, appears
to have been limited by the Court of Appeals for the Ninth Circuit in cases sub-
sequently decided. N.L.R.B. v. Forest Lawn Memorial Park Association, Inc., 206
F. 2d 569, 571 (C.A. 9), cert. denied 347 U.S. 915; N.L.R.B. v. Charles E. Daboll, Jr.,
et al., 216 F. 2d 143, 144 (C.A. 9), cert. denied 348 U.S. 917; N.L.R.B. v. W. B. Jones
Lumber Company, Inc., et al., 245 F. 2d 388-391. Its applicability-upon the present
record-would certainly seem to be questionable. I find it inapposite now.
The formal answer of the Respondent Company includes an admission with
respect to the receipt of advice from the Respondent Union that it could not employ
Wayne B. Lewis, and a further admission that the complainant's employment was
terminated. And the Respondent Union, pleading in turn, has admitted the termina-
tion of Lewis by the Respondent Company, pursuant to its request. Each Respond-
ent, however, has denied the General Counsel's contention that the employment of
the complainant by the Respondent Company was terminated, specifically, pursuant
to the provisions of their trade agreement.
Obviously, the denials of the Respondent Company and the Union in this con-
nection must be rejected. The letter by which the Respondent Union requested that
Lewis be "withheld from service" expressly noted that the request of the labor
organization was being made under the provisions of section 7 of the trade agree-
ment then in force, discussed previously in this report. And the testimony of Grim-
mett establishes that, but for the Respondent Union's letter and its aftermath, Lewis
would have continued in the Respondent Company's employ. In the absence of
evidence, therefore, sufficient to sustain any conclusion that the Respondent Com-
pany was otherwise motivated, a determination that Lewis was actually withheld
from service after the firm's receipt of the respondent labor organization's written
request, pursuant to the contractual obligation established by the trade agreement
provisions challenged in this case, would seem to be obligatory. I so find. The
contractual union-security arrangement involved was, clearly, the one embodied
in the trade agreement executed by the Respondents after the 8-week strike. My
conclusion that this union-security arrangement established closed-shop and
preferential-employment conditions, contrary to statutory requirements, has already
been noted.
It is well established now, as the General Counsel's representative has observed,
that a discharge requested and effectuated pursuant to an invalid union-security
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requirement must, itself , be considered violative of the statute . Such a discharge
clearly has been established in this consolidated case. The fact that Lewis con-
ceivably could have been terminated legally, absent some proscribed motivation,
pursuant to a union-security provision carefully drawn to meet statutory requirements,
cannot be relied upon by the Respondents to exculpate themeslves. (Since the
request which the Respondent Union addressed to the Company was that Lewis and
a fellow employee be "withheld from service" until they completed their obligation
to that labor organization, no determination has been made that the Respondent
Company suspended or terminated the complainant's employment pursuant to a
belief that his membership in the Respondent Union had been denied or terminated
for some reason other than his failure to tender the periodic dues and initiation fees
uniformly required by that organization as a condition precedent to the acquisition
or retention of membership. And my conclusion, with respect to the nature of the
unfair labor practice committed in this connection, has not been bottomed upon a
determination that the Respondent Union actually demanded the withdrawal of
Lewis from service primarily because of his demonstrated willingness to drive a
taxicab for a nonunion firm during the strike. Upon the entire record, such a de-
termination might well be warranted; its relevancy and materiality, however, would
seem to be questionable. The General Counsel, it may be noted, has challenged the
termination of the complainant as an unfair labor practice merely because of its
effectuation, pursuant to the respondent labor organization's request, under the con-
tractual union-security arrangement herein found to be improper.)
Upon the entire record, therefore , I find that the complainant 's termination on
January 27, 1958, when he was suspended from service by the Respondent Company
until he could make his peace with the respondent labor organization , pursuant to
a mandate of the union -security provisions embodied in the trade agreement then
effective, involved discrimination by the Respondent Company with respect to
his employment tenure, reasonably calculated to encourage membership in the
respondent labor organization ; it was also reasonably calculated , I find, to inter-
fere with, restrain, and coerce employees in the exercise of rights statutorily
guaranteed . (Counsel for the Respondent Union suggests that the record contains
no evidence indicative of an effort by Lewis to achieve reinstatement with the
respondent enterprise , after the refusal of the Union 's executive board to permit
the completion of his membership application . In the respondent labor organi-
zation's behalf , counsel argues primarily that the refusal of its executive board to
permit the complainant 's achievement of membership status cannot be held to have
established that body's opposition to his continued employment; secondarily, it is
argued that the Respondent Company cannot be said to have effectuated his dis-
charge These contentions, however, must be rejected. Whether or not repre-
sentatives of the Respondent Union or the Company apprised Lewis, expressly of
their disinclination to sanction his continued employment , it is clear that his initial
suspension from employment was requested by the labor organization and that it
was effectuated pursuant to that request, by the Respondent Employer. Under the
circumstances , also, the complainant could logically assume that he would not be
permitted to resume work until his contractual "obligation" to perfect union
membership was satisfied ; he could also assume , legitimately , that any attempt to
resume work , after his resection as a membership applicant by the Union 's execu-
tive Board, would be futile. The available evidence with respect to his subse-
quent conversations with Pleines and Mrs. Littlefield-indicative of a tacit acknowl-
edgement on their part that his return to employment could not be effectuated in
the face of Respondent Union's disapproval-clearly established the validity of his
assumptions . In substance , Lewis was effectively apprised , by the conduct at-
tributable to the company and union representatives , that his temporary suspension
by the respondent enterprise had been transmuted into one of indefinite duration,
specifically because of the Respondent Union 's unwillingness to accept him for
membership.)
By its demand , therefore , that Lewis be withheld from service, pursuant to the
union-security provisions herein found improper , the Respondent Union clearly
caused the Company to discriminate against him in violation of the statute , regard-
less of motive, and thereby itself committed an unfair labor practice.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent Company and the Respondent Union set forth
in section TIT, above , since it developed in connection with the operations of the
Respondent Company described in section I, above, has a close , intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States and, if
UNION TAXI CORPORATION 841
continued , would tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondents engaged and continue to engage in
unfair labor practices, it will be recommended that they cease and desist there-
from and take certain affirmative action, including the posting of appropriate
notices, designed to effectuate the policies of the Act, as amended.
It has been found, specifically, that the union-security provisions of the two
most recent trade agreements negotiated and executed by the Respondent Company
and the Union exceeded permissible limits. In the light of this determination, it
will be recommended that the Respondent Company and the Union cease and
desist from the maintenance, effectuation, or enforcement of the union-security pro-
visions herein found to be improper. Additionally, it will be recommended that
each of these Respondents cease and desist forthwith from the execution, main-
tenance, or enforcement of identical or similar union-security provisions embodied
in any agreement negotiated to extend, renew, modify, or supplement the recent
trade agreement with a January 16, 1959, execution date. It will also be recom-
mended that the Respondents refrain hereafter from the execution of any contract
with union-security provisions similar to those herein found to be improper.
Additionally, it has been found that the Respondent Company discriminated
with respect to the employment tenure of Wayne B. Lewis to encourage union
membership, in violation of Section 8(a)(3) of the Act, as amended, and that its
employees were interfered with, restrained, and coerced thereby, in the exercise of
rights statutorily guaranteed. The Respondent Union has been found to have
caused the Company to engage in the proscribed conduct noted. It will be recom-
mended, therefore, that the Repondent Union send some sort of written notice to
Wayne B. Lewis and the Respondent Company that it has withdrawn its objection
to his employment by the firm. Any such notice addressed to the respondent
enterprise should include a request that the latter offer Lewis immediate and full
reinstatement to his former or substantially equivalent position, in the manner set
forth hereinafter, without prejudice to his seniority or other rights and privileges.
See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827, for a definition of the phrase "former or substantially
equivalent position" as here used. With respect to the Respondent Company, also,
it will be recommended that Lewis be offered immediate and full reinstatement to
his former or substantially equivalent position, defined in the manner set forth
above, without prejudice to his seniority or other rights and privileges.
Also, it will be recommended that the Respondents, jointly and severally, make
Lewis whole for any loss of pay or other incidents of the employment relationship
which he may have suffered as a result of the discrimination practiced against
him, by the payment to him of a sum of money equal to the amount he normally
would have earned in the Respondent Company's employ, between the January 27,
1959, date on which discrimination was practiced against him and the date of any
unconditional offer of reinstatement of employment made by the Respondent Em-
ployer herein pursuant to the recommendations noted elsewhere in this report, less
his net earnings during the period indicated. Crossett Lumber Company, 8 NLRB
440, 497, 498; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7. The pay
losses for which it is recommended that Lewis be made whole should be computed
on a quarterly basis, pursuant to the formula which the Board now utilizes. F. W.
Woolworth Company, 90 NLRB 289, 291-294; N.L.R.B. v. Seven-Up Bottling Com-
pany of Miami, Inc., 344 U.S. 344.
In this connection, it would clearly be inequitable to permit the amount of the
Respondent Union's liability to increase, despite the possibility of its willingness to
cease, past discrimination; the Respondent Union, therefore, should be free to
terminate its liability for further backpay accruals by dispatching written notice to
the Respondent Company, with copies to the complainant herein, noting the with-
drawal of the organization's objection to the employment of the latter, in the
manner recommended elsewhere in this report. In that event, the Respondent
Union should not be considered liable for any backpay accruals after the passage
of 5 days subsequent to the date on which the notice is mailed. The Englander
Company, Inc, 108 NLRB 38, 40, overruled 109 NLRB 326, with respect to an issue
not involved in the present consolidated case. Absent such notice, the Respondent
Union should remain liable with the Respondent Company, jointly and severally,
for all backpay that may accrue.
In this connection also, it will be recommended that the Respondent Company,
in order to make possible the expeditious compliance of the Respondents with the
842 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
recommendations made above in regard to backpay , preserve and, upon request,
make available to the Board and its agents, all pertinent payroll and other records.
The conduct of the Respondents with respect to the maintenance and enforcement
of the contractual union -security provisions herein found to be improper indicates
a general purpose , attributable both to the respondent enterprise and the respondent
labor organization , to limit the lawful rights of employees and applicants for
employment. I am persuaded that such practices are potentially related to similar
unfair labor practices, the future commission of which may reasonably be antici-
pated, in view of the course of conduct attributable to the Respondents herein. The
preventive purposes of the statute will be thwarted unless remedial action in this
consolidated case, and any necessary order, can be made coextensive with the threat.
In order , therefore, to make the interdependent guarantees of Section 7 effective,
prevent a recurrence of the unfair labor practices found , minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
statute , it will be recommended that the Respondents cease and desist from infringe-
ment, in any other manner, upon the rights guaranteed by the aforesaid statutory
provision.
As previously noted , the General Counsel 's consolidated complaint includes an
allegation that , during the 6 -month period prior to the service of charges upon
them, and at all times since then, the Respondent Company and the Union have
required employees and job applicants to pay dues, fees, assessments and fines to the
respondent labor organization as a condition of employment . Little direct evidence
with respect to this allegation was proffered. Nevertheless, the record establishes,
I find, that employees covered by the 1957-58 agreement were permitted to deposit
voluntary checkoff authorizations, which the Respondent Company honored for
the duration of the agreement in question . It also establishes that applicants for
employment with the Respondent Company were referred to the Respondent Union
routinely for clearance, pursuant to the union-security arrangement embodied in
the trade agreements with which this consolidated case is concerned, and that the
Respondent Union routinely required employment applicants, referred under these
circumstances, to execute membership applications as a condition precedent to
clearance. The obligation of the Respondent Company's employees to seek member-
ship in the Respondent Union and to maintain it without impairment thereafter, as
a condition of employment, may be considered patent in the light of the contractual
union-security provisions governing their hire and employment tenure; the continued
viability of these provisions throughout the period with which this case is concerned,
despite the arguments advanced by the Respondent Company and respondent labor
organization to the contrary, may be considered established, in view of the available
evidence with respect to the ,treatment Lewis and Bragg received. The Respondent
Company and the Union have adduced no evidence whatever reasonably calculated
to impair the validity of the inferences legitimately to be drawn from the evidence
noted.
In this consolidated case, the General Counsel 's notice of hearing included a
special notice which read as follows:
SPECIAL NOTICE is hereby given that the General Counsel in these proceed-
ings will request the Board, in addition to any other remedy otherwise ordered,
for reimbursement by Respondent Union and Respondent Employer, jointly and
severally, of all monies, dues, fees, fines and assessments collected and received
by Respondent Union from all applicants for employment and all employees
dispatched by Respondent Union to or for jobs with Respondent Employer
for the six-month period prior to the filing and service of charges upon said
Respondents and continuing thereafter.
Since the initial charges in this consolidated case were filed on February 17, 1959,
the General Counsel's reimbursement request would appear to cover a period with
its inception in the middle of August 1958. As previously noted, it would cover the
last 11h-month period of the 1957-58 agreement maintained and effectuated by
the Respondents And the General Counsel has also indicated that a reimbursement
recommendation and possible order is sought with respect to all sums surrendered
by the Respondent Employer's employees and applicants for employment to the
Respondent Union for dues, fees, fines, and assessments between the expiration
date of the 1957-58 agreement and the execution of the January 16, 1959, agreement
with union-security provisions likewise herein found improper. There can be no
doubt, of course, that the General Counsel's reimbursement remedy would also
cover sums collected and received by the Respondent Union from the Respondent
Company's employees and applicants for employment after the execution date of
the 1959 trade agreement.
UNION TAXI CORPORATION 843
With respect to the first portion of the 6-month period covered by the General
Counsel 's reimbursement request , such a remedial recommendation , however, would
not appear to be warranted . This Agency has recently affirmed its previously an-
nounced determination to exercise administrative discretion , with respect to remedial
orders within its power , to absolve Respondents of any reimbursement obligation
affecting dues payments and other money coercively collected from employees,
under illegal union -security clauses , while the parties privy to such contractual ar-
rangements had reason to believe that Agency jurisdiction would not be asserted
over the enterprises involved . Baltimore Transit Company , et al., 47 NLRB 109,
112-113, enfd. 140 F. 2d 51 (C.A. 4); cf. Mike Trama (F/V Sandy Boy), 125
NLRB 151. In the Baltimore Transit case, the Board rejected a contention that,
because of a Regional Director 's dismissal of charges previously filed against the
respondent therein , for lack of jurisdiction , the Agency lacked the power to find
the respondent guilty of unfair labor practices , at least until after the Regional
Director 's prior "adjudication" with respect to the jurisdictional issue had been
reversed . The decision , however, included a determination that:
. .. in the exercise of our administrative discretion as to the remedy most
appropriate in the circumstances , we find that it will best effectuate the policies
of the Act if the provisions in our Order , that the respondents reimburse em-
ployees for dues checked off from their wages on behalf of the Independent .. .
are limited to the period since June 2, 1942, the date on which the complaint
herein was issued , since upon the issuance of the complaint the respondents
were placed on notice that the Board 's prior administrative determination was
no longer in effect.
Due regard for this indication of the manner in which the Board has chosen to
exercise its administrative discretion would seem to compel a conclusion that any
unfair labor practice determination with respect to the contractual union-security
provisions in the 1957-58 agreement would not warrant a reimbursement recom-
mendation or order.
Since the Board 's present jurisdictional standards were publicly announced October
2, 1958, the Respondent Company and the Union cannot, legitimately, claim ignor-
ance of the Board's readiness to assert jurisdiction over taxicab enterprises after that
date. Between October 1, 1958, and January 16, 1959, however, the prior trade
agreement having expired by its terms, no contractual union -security provision rea-
sonably calculated to coerce employment applicants and employees into the acqui-
sition or retention of union membership was effective . Conceivably , this change
in the situation could be said to have some relevance with respect to the scope of any
reimbursement remedy.
It is argued , in the General Counsel 's behalf, that effective reimbursement of
any money collected and received by the Respondent Union from employees and
employment applicants during this contractual interregnum should, nevertheless,
be recommended-and, if necessary , ordered-because payments made to the re-
spondent labor organization throughout the period in question can legitimately
be attributed to the coercive thrust of the improper union -security provisions found
in the 1957-58 agreement, newly expired . After due consideration , I have found
merit in this contention.
While the express language of the defunct agreement cannot be said to have re-
tained the power to coerce , despite the agreement 's lapse, there can be no doubt
that the Respondents-pursuant to some consensus , tacit or otherwise-continued
to effectuate their contractually established union -security arrangement for a major
part of the interregnum period . (Obviously , no such arrangement could have been
maintained or effectuated during the 8-week strike period previously noted.) As
a matter of law, conditions or circumstances proven to exist throughout some
designated period may be presumed to have continued thereafter, absent evidence
sufficient to warrant or require an inference to the contrary. Wigmore on Evidence,
§ 437. In the absence of evidence, therefore, sufficient to establish that the Re-
spondent Company's driver employees were advised that the contractual union-
security arrangements established pursuant to the 1957-58 agreement would be
discontinued, their persistent viability after October 1, 1958, certainly may be pre-
sumed. In this case, however, any determination that the respondents actually
did continue to maintain and effectuate previously established preferential employ-
ment conditions need not be rested upon inference alone. The testimony of Lewis
and Bragg with respect to the circumstances of their October employment by the
Respondent Company and a competitor, respectively, clearly establishes the con-
tinued effectuation, by the Respondent Company and the Union, of previously
established clearance requirements reasonably calculated to encourage union mem-
bership. Finally, the renegotiation of contractual union-security provisions for
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 1959 trade agreement , identical in terms with those found in the terminated
1959 trade agreement, identical in terms with those found in the terminated
1957-58 contract, would certainly seem sufficient to buttress soundly any determina-
tion that practices consistent with- the provisions in question had been followed
during the contractual interregnum. Upon the entire record, I so find.
In the light of this conclusion, the contentions of the General Counsel with re-
spect to the propriety of a reimbursement recommendation or order, with respect
to sums collected from employees after October 1, 1958, by the respondent labor
organization, must be considered meritorious. Virginia Electric and Power Com-
pany v. N.L.R.B., 319 U.S. 533, 539; United Association of Journeymen & Ap-
prentices of Plumbing & Pipefitting Industry of the United States and Canada,
Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing and Heating Corporation),
115 NLRB 594, 598. The record establishes that, by the maintenance, effectuation,
and enforcement of certain union-security arrangements consistent with those pre-
viously embodied in a trade agreement, the respondent labor organization improperly
caused the Respondent Company to encourage its driver employees and employ-
ment applicants to acquire and retain union membership, as a condition precedent
to their employment and the retention of their employee status. J. W. Saltsman,
d/b/a Saltsman Construction Company, 123 NLRB 1176; Union de Soldadores,
Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas, Local 1839, et al.,
122 NLRB 1603. And after January 16, 1959, when the Respondents executed their
new trade agreement for the 1959 calendar year, the maintenance and effectuation
of the contractual union-security provisions, previously found in this report to ex-
ceed permissible limits in scope, was clearly calculated to achieve the same ob-
jectives. As a result of the course of conduct thus attributable to the Respondents,
these employees were inevitably coerced to pay moneys, dues, and initiation fees to
the respondent labor organization. It would defeat the purposes and policies of
the statute, this Agency has held, to permit the retention of these payments, unlaw-
fully exacted from employees. To expunge the effect of the exactions, found un-
lawful under Board decisional doctrine, it will be recommended that the Respon-
dents, jointly and severally, refund to the Respondent Company's employees the
initiation fees, dues, or any other moneys unlawfully exacted from them. Broderick
Wood Products Company, 118 NLRB 38, enf'd. 261 F. 2d 548 (C.A. 10). Such
reimbursement by the Respondents should cover a period beginning with the date
on which their 1957-58 agreement lapsed by termination-since the Respondents
were thereafter on notice, legally, that continuation of their prior closed-shop
and preferential-employment policies would subject them to proscriptive action-
and should include all moneys thereafter collected.
Each of the Respondents , however, should clearly have the right to set off against
any sum which they may be required to refund, pursuant to this recommendation,
moneys previously returned or refunded to such union members. Honolulu Star-
Bulletin, Ltd., 123 NLRB 395; News Syndicate Company, Inc., 122 NLRB, 818;
Houston Maritime Association, Inc., et al., 121 NLRB 389, 394, 407. And, under
the circumstances of this case, the right of the Respondent Union particularly, to
set off sums previously refunded or returned to members of the organization, others,
and, specifically, to the complainant herein, in the computation of its reimbursement
obligation, would seem to be worthy of acknowledgement.
In that connection, obviously, due consideration should be given to available evi-
dence with respect to the ultimate disposition of the sums which the respondent labor
organization routinely collected from employment applicants and employees covered
by its agreement with the respondent enterprise. The record establishes, inter alia,
that the Respondent Union collects $25 as an initiation fee; of this sum, $24 is
retained by the Respondent Union, the $1 balance being remitted to its parent
organization. Additionally, the Respondent Union requires members to pay $9.75
for their first month of membership. Of this amount, $4 50 represents local dues;
as such, the amount paid falls into the Respondent Union's treasury, subject only
to the $0.40 monthly per capita levy of the Union's parent organization. The balance
of the payment required during any member's first month of membership, I find, is
routinely handled as follows: Of the total amount, $2.50 is designated an assessment
for the benefit of a local relief fund, utilized-subject to the discretion of the Re-
spondent Union's executive board-to assist members confronted with some financial
emergency; additionally, $2.50 of the amount paid represents an additional assess-
ment for a local organizational fund; and, finally, the last $0 25 of every member's
payment for his first month of membership, is regularly allocated and remitted to a
strike fund maintained and administered by the Western Conference of Teamsters,
with which the respondent labor organization is affiliated. After their first month
of membership, members are expected to pay $4.75 monthly. Of this amount, $4.50
UNION,TAXI CORPORATION 845',
represents dues; the Respondent Union each month allocates and remits the addi-
tional $0.25 to the Western Conference strike fund previously noted.
During the 8-week-long strike noted elsewhere in this report, strike benefits of
$35 per week were paid. I find, to every paid-up member of the Respondent Union
on strike-including those in the Respondent Company's employ-under the auspices
of the respondent labor organization. (The available evidence indicates that the
funds utilized for this disbursement came partially from the general funds of the
Respondent Union's parent organization and partially from the Western Conference
strike fund. Business Agent Milonich testified credibly that $20 of each member's
weekly strike benefit was provided from the Western Conference fund, and that
the balance was derived from a contribution by the international organization.
About $46,000 appears to have been paid out for strike benefits during the Respond-
ent Union's 8-week strike.)
Additionally, I find, the complainant herein received an outright grant of $20
from the Respondent Union's emergency relief fund on November 11, 1959, pre-
sumably on the basis of a hardship plea since he could not then qualify for regular
strike benefits as one of the Respondent Union's members. Similar relief allotments
may have been paid to members of the respondent labor organization, or other ap-
plicants for membership; with respect to any such payments, however, the present
record is silent. Under the circumstances of this case, the Respondent Union's con-
tention with respect to its right to set off strike benefit payments and relief allot-
ments at least against its reimbursement obligation would seem to be equitably
justified. (There is evidence that the Respondent Union also sets aside a fixed per-
centage of its monthly dues collection to facilitate the payment of its share of the
yearly premium required to maintain a group insurance program, purchased jointly
by a number of labor organizations with Western Conference affiliation. Under the
program, benefits varying in amount are payable to members in good standing of
each labor organization in the event of death, total or partial disability of a perma-
nent nature, and temporary disability resulting from sickness or injury. For these
benefits, I find, the Respondent Union currently remits $0 71 per member per month
as its premium share. It may be arguable that the Respondent Union's right to set
off these amounts against reimbursement obligation should also be recognized.
Upon the present record, however, no such determination would seem to be
required.)
As previously noted, this Agency has already acknowledged the right of respond-
ent employers and labor organizations to set off against any reimbursement obliga-
tion moneys which may have been previously "returned or refunded" to the persons
entitled to reimbursement. Houston Maritime Association, Inc. (International Long-
shoremen's Association, Independent, Local No. 1273), supra. In the cited case,
available evidence with respect to the so-called rebate practice of the respondent
labor organization was considered sufficient to warrant recognition of that organiza-
tion's right to set off, against any reimbursement required, amounts previously re-
turned or refunded to the organization's members from funds "derived" through
exactions found unlawful. In the light of the evidence proffered in this case, the
relief allotment made by the Respondent Union to the complainant herein, and
possibly to others similarly situated, certainly can be considered money returned
from funds derived through an unlawful exaction. The strike benefits alloted to
paid-up members by the Respondent Union, however, appear to have been paid from
funds to which members of other labor organizations contributed. The funds in
question-namely the Western Conference strike fund and the general fund of the
Respondent Union's parent organization-derive, obviously, from strike assessments
levied by the various locals affiliated with the Western Conference, on the one hand,
and from the monthly per capita levy of the Respondent Union's parent organization,
on the other.
The fact, however, that members of the Respondent Union may have received
benefits divided from a fund to which members of other local labor organizations con-
tributed cannot equitably be held to affect the setoff rights of the respondent labor
organization. The benefits in question clearly appear to have been distributed under
the aegis of the respondent labor organization. And they represent the fruit of par-
ticipation in a program sponsored and supported by that organization, together with
its affiliates.
Previously, this Agency has refused to recognize any setoff rights for unions, based
upon some evaluation of the benefits received by the employees involved from their
employer, pursuant to trade agreements negotiated by the labor organization cited
in the case. The considerations which have impelled such determinations, however,
cannot be considered applicable, in my opinion, when a labor organization claims
the right to set off against its reimbursement obligation benefits directly provided
for members under union-sponsored and wholly union-supported programs. (As
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for the Respondent Union has observed , contract benefits received from an
employer , arguably because of a union's collective-bargaining activity , differ in kind
from benefits which may become payable to an individual solely because of his union
membership status. Contractual benefits must be distributed without discrimination,
to every employee within the bargaining unit covered by the agreement involved, but
union-administered benefit programs , not established through trade agreements, need
only be conducted for the benefit of the organization 's membership .) In a somewhat
analogous situation the Court of Appeals for the Fourth Circuit has considered the
right of a respondent employer to set off, against his backpay obligation , the amount
of any workman 's compensation award calculated to compensate the discrimina-
torily discharged employee for a period of disability directly traceable to the em-
ployer's antecedent unfair labor practice. N.L.R.B. v. Moss Planing Mill Co., 224
F. 2d 703-704 (C.A. 4). Contrasting the workmen's compensation payment, at
issue in the case , with unemployment compensation payments-previously held not
to be deductible from a backpay award-the court observed that:
Unemployment compensation is paid by the State itself from taxes and is an
obligation imposed on the public . . The employer participates only as a
taxpayer... . There is no contractual relationship between him and the re-
cipient. . . [A]ny benefit that the recipient of unemployment compensation
receives is collateral to the fact that he was working for a particular employer.
.. . [However ] The State is not the instrumentality through which [ workmen's
compensation ] payments are made. On the other hand, payments come from
the employer himself through the medium of his agent , his insurance carrier.
The workmen 's compensation payments made here were so directly derived
from the employer that we feel a back pay allowance for the period during
which these payments were made would make the employee more than whole
at the expense of the employer . [ Emphasis supplied.]
This Agency has indicated its reluctance to accept the court 's determination that
workmen 's compensation awards, generally , must be considered deductible from
gross backpay. Moss Planing Mill Company, 119 NLRB 1733, 1735, footnote 8.
But the court 's observation that an employee may be made more than whole, at his
employer's expense, by this Agency's failure to recognize the deductibility of specific
payments or other forms of compensation derived directly from the employer in-
volved, would appear to be sound in principle.
Under its statutory mandate, the Board is authorized to require respondents to
take affirmative action , reasonably calculated to effectuate the statutory objectives.
It has been judicially noted , however, that this legislative provision cannot be con-
strued to vest the Agency with "virtually unlimited discretion" to devise or require
measures properly subject to characterization as punitive , and that the affirmative
action which the Agency is authorized to require of respondents , to effectuate the
statutory objectives, must be limited to remedial acts. Republic Steel Corporation
v. N.L.R.B., 311 U.S. 7, 10-12; Phelps Dodge Corporation v. N.L.R.B., 313 U.S.
177, 197-200 . In this case, clearly, denial of the Respondent Union 's right to set
off, against its reimbursement obligation , sums paid to union members and other
employees directly, pursuant to union-maintained benefit programs would certainly
result in making such members or employees more than whole, at the expense of
the respondent labor organization.
In the light of the foregoing findings of fact, and upon the entire record in this
consolidated case , I make the following:
CONCLUSIONS OF LAW
1. Union Taxi Corporation, designated as the Respondent Company herein, is an
employer within the meaning of Section 2(2) of the Act, engaged in business ac-
tivities which affect commerce within the meaning of Section 2(6) and (7) of the
Act, as amended.
2. Teamsters Automotive & Chauffeurs Local Union No. 165 is a labor organiza-
tion within the meaning of Section 2(5) of the Act, as amended, which admits
employees of the Respondent Company to membership.
3. By its participation in the execution , maintenance , and enforcement of trade
agreements with union -security provisions invalid under the Act, as amended-and
by specific discrimination , pursuant to the requirements of the most recent of those
trade agreements , with respect to the hire and employment tenure of Wayne B. Lewis,
the complainant herein-reasonably calculated to encourage membership in the re-
spondent labor organization , Union Taxi Corporation did engage in and continues
to engage in unfair labor practices within the meaning of Section 8(a)(3) of the
Act, as amended.
ADRIAN STEEL CO. 847
4. By its course of conduct in this respect , Union Taxi Corporation has also inter-
fered with , restrained , and coerced employees and applicants for employment in the
exercise of rights guaranteed in Section 7 of the Act; it has thereby engaged in and
continues to engage in unfair labor practices within the meaning of Section 8(a) (1)
of the Act, as amended.
5. By its participation in the execution , maintenance , and enforcement of trade
agreements with union -security provisions invalid under the Act, as amended-and
by its action in causing Union Taxi Corporation to discriminate against employees,
applicants for employment, and Wayne B. Lewis in particular , in violation of Section
8(a)(3) of the Act, as amended-Teamsters Automotive & Chauffeurs Local Union
No. 165 did engage in and continues to engage in unfair labor practices within the
meaning of Section 8(b) (2) of the Act, as amended.
6. By its course of conduct in this respect , Teamsters Automotive & Chauffeurs
Local Union No. 165 has also restrained and coerced employees and applicants for
employment in the exercise of rights guaranteed in Section 7 of the Act; it has
thereby engaged in and continues to engage in unfair labor practices within the
meaning of Section 8(b) (1) (A) of the Act, as amended.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
Adrian Steel Co. and International Union , United Automobile,
Aircraft & Agricultural Implement Workers of America,
UAW-AFI,-CIO. Case No. 7-CA-2751. February 28, 1961
DECISION AND ORDER
On December 7, 1960, Trial Examiner Earl S. Bellman issued his
Intermediate Report in this case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in an unfair labor practice alleged in the complaint,
and recommended that such allegation be dismissed.' Thereafter, the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Adrian Steel Co.,
Adrian, Michigan, its officers, agents, successors, and assigns, shall:
I No exceptions were filed to this recommendation , and we therefore adopt it pro forma.
130 NLRB No. 104.