N.L.R.B. v. Associated Diamond Cabs, Inc.
| Citation | 702 F.2d 912 |
| Decision Date | 11 April 1983 |
| Docket Number | No. 81-5907,81-5907 |
| Parties | 113 L.R.R.M. (BNA) 2001, 97 Lab.Cas. P 10,073 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED DIAMOND CABS, INC., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Muller, Mintz, Kornreich, Caldwell & Casey, Herbert B. Mintz, Miami, Fla., for respondent.
Elliot Moore, Deputy Associate Gen. Counsel, Richard A. Cohen, Atty., NLRB, Washington, D.C., for petitioner.
Application for Enforcement of an Order of the National Labor Relations Board.
Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and MORGAN, Senior Circuit Judge.
In this case the National Labor Relations Board (the Board) seeks enforcement of its Decision and Order against Associated Diamond Cabs, Inc. (the Company), reported at 254 NLRB No. 134 (1981). Jurisdiction is founded on Sec. 10(e) of the National Labor Relations Act (the Act), as amended, 29 U.S.C. Sec. 151 et seq.
Pursuant to an election petition filed by the Brotherhood of Taxi Drivers Union, Local # 1 (the Union) and a hearing held on March 12, 1980, the Regional Director of the Board determined that the Union is a labor organization within Section 2(5) of the Act, that the Company is an employer under the Act, and that all taxi drivers qualifying as daily lessees or annual lessees are employees under the Act. A representation election was ordered and was held on April 23, 1980. Out of one hundred twenty-five (125) eligible voters, sixty-eight (68) cast ballots. Thirty-two (32) voted for representation by the Union, ten (10) against and an additional twenty-six (26) ballots were challenged. Thirteen of the twenty-six challenges were sustained by the Regional Director on the basis that the voters were ineligible to vote on the day of the election. The Regional Director did not rule on the eligibility of the other thirteen ballots, challenged on the basis that the voters were supervisors within the meaning of Section 2(11) of the Act, because thirteen votes were not sufficient to change the result of the election even if all were cast against the Union's representation. Accordingly the Union was certified as the exclusive bargaining representative for
All full-time and regular part-time taxi drivers, including steady daily lessees, extra board daily lessees and annual lessees employed by the Employer at its Miami, Florida facility; excluding all shareholder/owner-drivers, garage men, mechanics, dispatchers, office clericals, guards and supervisors as defined in the Act.
The Company refused to bargain with the Union and the NLRB found that the refusal was a violation of Section 8(a)(5) and (1) of the Act. The Board brought this action, seeking to enforce its order.
The Company is a Florida corporation engaged in the operation of a taxicab service in Dade County, Florida. It is an association of thirty-three taxicab owners and is governed by a six member Board of Directors who are cab owners elected by the association members.
The majority of those driving cabs under the auspices of the Company name, approximately 125 drivers, lease their cabs from the Company pursuant to standardized, daily lease agreements. The daily lease agreements require the lessees to pay a flat fee or "nut," plus a mileage charge, for each shift driven. For the day shift (5:30 a.m. to 3:30 p.m.), the nut is $28.50 and the mileage charge is $.13 per mile. For the night shift (3:30 p.m. to 5:30 a.m.) the nut is $29.50 and the mileage charge is $.15 per mile. Payments of the nut and mileage charges are collected by the Company at the end of each shift. The nut must be paid once a cab is taken out for a shift regardless of how many miles are driven or whether the driver is on duty for the entire shift. The nut for the daily lessees includes the price of one tank of gas provided by the Company. The daily lease agreement provides: "In order to protect Lessor's good will and licenses, Lessee shall keep himself and said taxicab in a neat and clean condition and agrees to conduct himself and operate said taxicab reasonably, prudently, gentlemanly and courteously in a careful manner and in conformity with all laws, ordinances and regulations of the United States, State of Florida and Metropolitan Dade County, and the respective municipalities in which the Lessor operates...." The daily lease agreement also provides: "By this Agreement, the Lessor and Lessee acknowledge and agree that there does not exist between them the relationship of employer-employee ... but that the relationship of the parties hereto is strictly that of lessor-lessee, the lessee being an independent contractor free from interference or control on the part of the lessor in the operation of said taxicab subject only to adherence to applicable statutes and ordinances...."
Taxicabs driven by the daily lessees are insured by the Company through Y.D. Taxi Corp., a company that provides self-insurance for the Company and other taxicab associations, and which has some common officers with the Company.
Approximately sixty-five (65) of the daily lessees are "steady" drivers who voluntarily have indicated their desire to work a set five- or six-day week and regularly drive the same cab. They work the days set by the cab's owner and are charged the set nut if they fail to arrive for a scheduled shift. The other daily lessees are "extra board" drivers who drive on a daily basis as taxicabs are available. As of nine months prior to the initial hearing in this matter, when Tom Donnelly became manager, the Company discontinued a seniority system of assigning taxicabs to extra board drivers and instituted a first-come, first-serve method of assignment. Extra board drivers are not disciplined for refusing a particular cab assignment but, as another will not be assigned, will forfeit a day's work if a cab is rejected for other than unsafety or defects such as ineffective air conditioning which impact negatively on customer goodwill. A practice exists whereby if a daily lessee is late in returning his cab and thereby cuts into the driving time on the next shift, he will pay a portion of the nut of the driver on the next shift. No disciplinary action is taken directly by the Company.
Both parties indicate in their briefs that annual lessees, unlike daily lessees, generally own their own cabs and, per a standardized lease agreement, rent the necessary permit, taxi meter, taxi light, and use of the dispatch system from the Company. The annual lessees also pay weekly fees to cover insurance and pay the permit fees due the city. The lease agreement and testimony at the hearing indicate that some of the taxicabs themselves are leased from individual owners for a one-year period; weekly installments are paid on an annual fee negotiated by the individual owner and the lessee-driver. All annual lessees supply all their own gasoline but can buy gasoline at a discounted price from the Company. Neither annual nor daily lessees can sublease the taxicabs, but annual lessees may hire replacement drivers who have filled out an application with the Company and are licensed by the city to drive for the Company.
Anyone who drives a Company cab must have filed an application with the Company's manager and have received a license from the city to drive for the Company. The Company supplies a standard application form but makes no independent inquiry into a driver's qualifications, leaving it to the city to investigate whether the applicant has any criminal record or is in any way ineligible for a license. Miami City Code Sec. 56-13.
The city requires all drivers to maintain daily "trip sheets" recording all trips made, their origin and destination, the fares charged and the time of each trip. Miami City Code Sec. 56-69. The Company has prepared trip sheets on envelopes which are submitted to the Company at the end of each shift and in which the drivers enclose their daily mileage and nut fees. The Company, however, makes no independent use of the trip sheets, merely retaining them for city inspection.
The Company will not allow daily lessees to drive more than twenty-four consecutive hours and will suggest the same limitation for annual lessees.
While the daily lease provides that the lessee shall "keep the taxicab and himself in a 'neat and clean' condition" and operate the taxicab "reasonably, prudently, gentlemanly, and courteously in a careful manner," undisputed testimony reveals that the Company enforces no dress code. The city requires, as a condition of obtaining and retaining a taxicab permit, that the taxicabs be maintained so as not to "interfere with or detract from the comfort, convenience or safety of the passengers transported therein." Miami City Code Sec. 56-30.
The manager of the Company investigates customer complaints by speaking to the driver involved. If corrective action is suggested but the driver refuses to comply with the suggestion, the Company metes out no discipline directly but refers the customer to the police department where a complaint may be lodged. In extreme cases where the driver is consistently abusive to passengers the Company may refuse to continue to lease him a taxicab.
The Company operates a central dispatch system through which calls are conveyed to individual drivers. The dispatcher announces the call generally over the dispatch system and it is within the discretion of the individual drivers to respond or not to any particular call. Drivers are free under usual circumstances to prospect independently for business from persons on the street.
The Company maintains contracts with certain institutions, including the Veteran's Administration Memorial Hospital, certain military bases and a blood bank. If a driver consistently refuses to accept dispatched fares from these institutional customers he will no longer be given these dispatched fares. The Company has instructed its drivers not to...
To continue reading
Request your trial
-
Doud v. Yellow Cab of Reno, Inc.
...not exert control over the means and manner of the drivers' performance.” Friendly, 512 F.3d at 1097 (citing NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 924 (11th Cir.1983) ; Local 777, Democratic Union Org. Comm., Seafarers Int'l Union of N. Am., AFL–CIO v. NLRB, 603 F.2d 862, 879......
-
Yellow Taxi Co. of Minneapolis v. N.L.R.B., 80-1481
...603 F.2d at 875-76. The Eleventh Circuit recently reached the same conclusion regarding ordinance-mandated trip sheets. Diamond Cabs, supra, 702 F.2d at 921-922, 923. The Board rejoins that, because Suburban imposes a trip sheet requirement "far in excess of that necessary for lessees to co......
-
Hilldrup Transfer & Storage of New Smyrna Beach, Inc. v. State, Dept. of Labor and Employment Sec., Div. of Employment, 82-1592
...to do the work, the stronger this factor weighs in the direction of an independent contractor relationship. See NLRB v. Associated Diamond Cabs, 702 F.2d 912 (11th Cir.1983); A. Duie Pyle, Inc.; SIDA of Hawaii, In this case, the record shows that the owner-drivers own their own tractors. Bo......
-
Hanson v. Trop, Inc.
...lack of control.”) Such emphasis is consistent with adjudication of National Labor Relations Act cases. See NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 919 (11th Cir.1983). Here, as in Clincy, Plaintiff signed an independent contractor agreement, and she also deducted, as self-empl......
-
Dynamex Is Dynamite, but Epic Systems Is Its Foil - Chamber of Commerce: The Sleeper in the Trilogy.
...their conclusion that taxicab drivers were frequently independent contractors. The leading cases here are NLRB v. Associated Diamond Cabs, 702 F.2d 912 (11th Cir. 1983); Local 777, Democratic Union Org. v. NLRB, 603 F.2d 862 (D.C. Cir. 1978); and Yellow Taxi Co. v. NLRB, 721 F.2d 366 (D.C. ......