City Cab Co. of Orlando, Inc. v. N.L.R.B., 85-3085

• Decision Date: 28 April 1986
• Docket Number: No. 85-3085,85-3085
• Parties: 122 L.R.R.M. (BNA) 2392, 104 Lab.Cas. P 11,850 CITY CAB COMPANY OF ORLANDO, INC., Yellow Cab Company of Orlando, Inc., d/b/a Yellow Cab Company and Dixie Cab Company, Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner,
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1475

787 F.2d 1475

122 L.R.R.M. (BNA) 2392, 104 Lab.Cas. P 11,850

CITY CAB COMPANY OF ORLANDO, INC., Yellow Cab Company of Orlando, Inc., d/b/a Yellow Cab Company and Dixie Cab Company, Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner,

No. 85-3085.

United States Court of Appeals Eleventh Circuit.

April 28, 1986.

Harrison C. Thompson, Jr., Thomas M. Gonzalez, Tampa, Fla., Lawrence D. Levien, Paul M. Eskildsen, Jeffrey J. Pargament, Washington, D.C., for petitioners, cross-respondents.

Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, N.L.R.B., Marc B. Seidman, Washington, D.C., for respondent, cross-petitioner.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before HILL, Circuit Judge, TUTTLE and HENDERSON ^*, Senior Circuit Judges.

HILL, Circuit Judge:

This case involves a petition for review and cross-application for enforcement of an order issued by the National Labor Relations Board (hereinafter "the Board") on January 9, 1984, against City Cab Company of Orlando, Inc., Yellow Cab Company of Orlando, Inc. d/b/a Yellow Cab Company and Dixie Cab Company (hereinafter referred to collectively as "City Cab"). ¹ Appellant

seeks review of the Board's affirmance and adoption of an Administrative Law Judge's findings that the Regional Director for Region 12 of the Board appropriately set aside an informal settlement agreement and that appellant violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158 (the "Act") by unilaterally changing the terms and conditions of its employees' employment. Specifically, appellant claims that (1) the Board's determination that appellant's unilateral changes in rental rates of its cabs and in other terms and conditions of employment of its drivers constituted an unfair labor practice is not supported by substantial evidence; (2) the Board abused its discretion in setting aside a settlement agreement entered into between appellant and the employees' union; and (3) the Board abused its discretion in instituting formal proceedings against appellant based upon allegations of post-settlement unfair labor practices inasmuch as charges with respect to the overwhelming majority of these practices were time-barred.

FACTS

The following facts are relevant to the decision in this case. Appellant City Cab operates taxi service in and around Orlando, Florida. Most of City Cab's drivers lease their cabs from City Cab for a fixed daily rate. In January, 1977, Yellow, City, Dixie, Independent Cab Drivers Association [hereinafter "the Union"], an in-house labor organization formed by drivers for City Cab, filed a petition with the Board seeking to represent taxi drivers under contract with appellant. The Board rejected City Cab's claim that the drivers were independent contractors and directed an election which the Union won. The Union and City Cab subsequently entered into an interim collective bargaining agreement. Following a 1978 United States Court of Appeals decision finding certain taxi drivers in Chicago to be independent contractors, City Cab withdrew its recognition of the Union. After the Union filed a refusal to bargain charge against City Cab, the Board reaffirmed its previous position and found appellant's refusal to bargain constituted a violation of the Act. City Cab then petitioned the United States Court of Appeals for the District of Columbia for review of the Board's decision.

On July 3, 1979 the Union filed an unfair labor practices charge against City Cab, alleging unlawful unilateral changes in the driver's wages and working conditions. On July 25, 1979 the Regional Director issued a complaint alleging six instances of unilateral changes in terms and conditions of the driver's employment. In August 1979, the parties entered into an informal settlement agreement consisting of three documents: a standard "settlement agreement" form, a "notice to employees," and a "stipulation." In the notice, City Cab agreed to make no unilateral changes with respect to wages, rates, and other matters and that it would if necessary make whole any employees who had suffered monetary loss as a result of any unilateral changes in terms and conditions of employment. The settlement agreement, set forth on one of the Board's standard forms, promised, among other things, to comply with all terms and provisions of the notice. The agreement also provided that City Cab would "make whole the employees named below by payment to each of them of the amount set opposite his or her name," and though none of the employees were named in the agreement a clause regarding back pay stated that "[b]ack pay shall be computed in accordance with established agency policy." The stipulation recognized the pending Court of Appeals case on the independent contractor issue, and provided that if City Cab's appeal in the District of Columbia Circuit was successful, the complaint would be dismissed. However, if the D.C. Circuit affirmed the Board's position that the drivers were employees as defined in the Act, and thus within the purview of the protection afforded by the Act, then City Cab would carry out the provisions of the settlement agreement.

On July 3, 1980, the United States Court of Appeals for the District of Columbia rendered a decision affirming the Board's assertion of jurisdiction over appellant's drivers and enforced the bargaining order against the company. City Cab Co. of City Cab filed exceptions to the ALJ's decision, complaining that the ALJ's finding that City Cab had made unlawful, unilateral changes was not supported by substantial evidence, that any claims regarding unfair labor practices were time-barred, and that the Board abused its discretion in setting aside the settlement agreement. The Board affirmed and adopted the ALJ's ruling, resulting in the instant appeal.

                Orlando, Inc., et al. v. N.L.R.B., 628 F.2d 261 (D.C.Cir.1980).  The parties subsequently began discussions in an attempt to effectuate the August, 1979 settlement agreement but were unable to reach agreement as to the amount of back pay due the drivers.  Thereafter City Cab instituted a series of changes, occurring between September, 1979 and July 1981, as to the daily cab rental rate and mileage surcharge to City Cab's drivers, changes which the Board would later determine were made without advance notice to the Union.  On July 20, 1981 the Union filed a second unfair labor practices charge against City Cab concerning the reinstatement of a daily mileage surcharge on July 13, 1981.  Meanwhile, City Cab and the Union continued negotiations regarding implementation of the August 1979 settlement.  On August 26, 1982, the Regional Director set aside the settlement agreement because it "had failed in its purpose and because of allegations of post-settlement violations of the Act."    Shortly thereafter, in September, 1982, the Director issued a consolidated complaint, based upon violations alleged in both the July 1979 and July 1981 complaint as well as violations alleged to have occurred between September 30, 1979 and the July 13, 1981 violation.  The ALJ concluded that the alleged violations were unlawful unilateral changes in violation of the Act and ordered City Cab to compensate its drivers for any loss of earnings they had suffered as a result of these changes
                

DISCUSSION

Whether City Cab's Changes in Cab Rental Rates and Other

Working Conditions Violated the Act

Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their right to, among other things, organize and bargain collectively. Section 8(a)(5) of the Act requires that an employer bargain with the duly designated representative of its employees. Section 8(d) sets forth the parameters of this obligation, requiring that the parties "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder...." In addition, employers may not impose new or different working conditions without first affording the employees' representative an opportunity to bargain over them. A.H. Belo Corp. v. N.L.R.B., 411 F.2d 959, 970 (5th Cir.1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 561, 24 L.Ed.2d 498. On the other hand, an employer may lawfully make changes in working conditions without obtaining the agreement of the employees' representative if the changes act merely to maintain a "long-standing practice" and are so "automatic" as to constitute a "continuation of the status quo...." N.L.R.B. v. Katz, 369 U.S. 736, 746, 82 S.Ct. 1107, 1113, 8 L.Ed.2d 230 (1962). The burden is on the employer to show that these changes satisfy this standard N.L.R.B. v. Allis-Chalmers Corp., 601 F.2d 870, 875 (5th Cir.1979).

Appellant initially contends that the Board's finding that City Cab violated sections 8(a)(5) and (1) by unilaterally changing the rental rates and other terms and conditions of employment of its drivers is not supported by the evidence. Specifically, City Cab asserts that it was not required to bargain with the Union regarding the changes of which the Board complains as those changes were merely the continuation of established practices which operated merely to maintain the status quo relationship. City Cab notes that it began systematic adjustments in 1977 and that these adjustments were integrally tied to both swings in demand for taxi service and in driver availability. Though the volatility of market influences prevented the timing and amount of adjustments from being identical in each case, the policy of the adjustments remained consistent, so that a bargaining obligation under the Act was not invoked.

This court will uphold the Board's findings of fact if those findings are supported by substantial...