NLRB v. Checker Cab Company

• Citation: 367 F.2d 692
• Decision Date: 09 January 1967
• Docket Number: No. 16722.,16722.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHECKER CAB COMPANY and Its Members, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

367 F.2d 692 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHECKER CAB COMPANY and Its Members, Respondents.

No. 16722.

United States Court of Appeals Sixth Circuit.

October 4, 1966.

Certiorari Denied January 9, 1967.

Allison Brown, Atty., National Labor Relations Board, Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Michael R. Brown, Attys., National Labor Relations Board, Washington, D. C., on the brief.

Louis J. Colombo, Jr., and Philip J. Neudeck, Detroit, Mich., for respondents,

William J. Mullaney, Detroit, Mich., on the brief for Checker Cab Co., Colombo, Colombo, Colombo & Vermeulen, and Frederick Colombo, Detroit, Mich., on the brief for Checker Cab Co. members.

Before O'SULLIVAN and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

Certiorari Denied January 9, 1967. See 87 S.Ct. 715.

EDWARDS, Circuit Judge.

This petition for enforcement of a National Labor Relations Board order presents an unusual set of facts and a unique NLRB order. A union,¹ after an organizing campaign among drivers of Checker Cabs in Detroit, sought and won an NLRB election. The NLRB ordered the election after finding that the appropriate bargaining unit was all of the regular and part time drivers of Checker Cabs in Detroit. The Checker Cab Co. and its member-owners protested the election principally on the ground that the bargaining unit was inappropriate because it required 286 independent employers of taxi drivers to join in joint collective bargaining where previously there had been no history of such bargaining and where they didn't desire to do so.

The Checker Cab Co. and its members refused to bargain following an NLRB certification of the union.

An unfair labor practice complaint was filed. The proceedings on that complaint were based by stipulation on the record made in the representation proceedings. The NLRB, by a divided three to two vote, found respondents guilty of unfair labor practices and ordered them to bargain with the union on the basis indicated. Respondents continued to refuse to bargain, seeking judicial review of the appropriateness of the bargaining unit (see N.L.R.B. v. KVP Sutherland Paper Co., 356 F.2d 671 (C.A.6, 1966)). The NLRB now seeks enforcement of its order in this court.

Respondents contend that 1) the NLRB had no legal authority to define the "employees" as it did and hence that the bargaining unit which it defined was inappropriate. And 2) if it did have legal authority in these premises, that its order was arbitrary and capricious and (presumably) not based upon substantial facts on consideration of the whole record. 3) As an obviously subsidiary question, respondents claim the NLRB should not have assumed jurisdiction because no single member-owner met the $500,000 volume of business which the Board has determined as its standard for assuming jurisdiction in relation to taxicab companies.

The basic finding on the employer issue contained in the majority opinion of the NLRB is:

"It is thus quite apparent that the members of Checker recognize both the need for, and the benefit from, uniformity of control which Checker alone can exercise over all the drivers, and that the members accordingly share control of their drivers with Checker. Thus we in turn are merely recognizing the pattern established by the parties, without in any way changing the manner in which they have subdivided such control as between the individual cab owner and Checker.5

"Under all the circumstances, and particularly in view of the facts that the operation of Checker cabs is represented to the public as one integrated enterprise and that Checker is authorized by its members to exercise a substantial degree of control over the drivers of each of its members for this purpose, we find Checker and each of its members to be joint employers in a common enterprise — the operation of Checker cabs — and therefore deem it appropriate to combine the gross revenues of all members for jurisdictional purposes. As these total revenues exceed the retail standard of $500,000 and as legal jurisdiction is present, we find that it will effectuate the policies of the Act to assert jurisdiction herein." (Emphasis supplied; footnote 6 omitted).

5. "Our dissenting colleagues concede that Checker is an `association of independent owner-operators for their mutual advantage.\' The dissent, however, concludes that the mutuality of their interest does not extend to labor relations. In view of the extensive evidence set forth above as to the nature and degree of control exercised by Checker over the employees of its members, we are satisfied that mutuality does exist in this area sufficient for our finding that Checker and its members are engaged in a joint venture. Contrary to the dissent, our decision does not purport to establish a `multiemployer bargaining association.\' Having elected to subject their employees to regulation on a joint basis, the employers within Checker must likewise accept the statutory right of their employees to join together for the purposes of collective bargaining."

The position of respondents and of the minority of the NLRB is effectively set forth by the dissent:

"Our colleagues, in their determination to assert, have taken a hard case and made bad law. Checker and each of its members are found to be joint employers of the employees of such member, even though there is lacking any real employment relationship between Checker and such members\' employees. By this hypothesis, there would appear to be as many joint employer relationships as there are members of Checker. The assertion of jurisdiction would then depend on a combination of the commerce facts of an individual member and of Checker. However, no one member and Checker together meet the Board\'s jurisdictional standards. Here, again, the membership in Checker serves our colleagues\' purpose. The fact of such membership is made the basis for a finding that all the members are in relation to one another `joint employers in a common enterprise.\' This legal coinage of our colleagues cannot, however, hide the fact that there is no sound basis whatever for finding that each member is an employer of the employees of every other member. Thus, by a form of legal hopscotch, the individual members who, in combination are neither a single employer, joint employers, nor a group organized into an established multiemployer unit, find themselves subject to the Board\'s jurisdiction on a theory which has no basis in fact or law.

"The vice of all this is further demonstrated by the fact that the majority uses the very same approach in finding a unit of all employees driving Checker cabs to be appropriate. Thus, in disregard of long-standing precedent which precludes the establishment of a multiemployer unit in the absence of a multiemployer bargaining history, or agreement as to the appropriateness of such a unit, our colleagues have forced the members of Checker into exactly what they have chosen to avoid, that is, a multiemployer bargaining association.

"In sum, we reject this unwarranted use of the Checker Cab association as an amalgam for joining these independent owner-operators into a pseudo-integrated relationship for purposes of asserting jurisdiction and for unit purposes. This association is no more than an association of independent owner-operators for their mutual advantage; it is not an association for dealing with labor relations. We choose to respect the substance and intent of this mutual arrangement, and we would do so by dismissing the petition." (Footnote omitted)

This is one of those cases where it is easy to agree with either party if only those facts are viewed upon which that party relies.

Having the obligation to make an independent review of the whole record (Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)), we present the facts we glean on the dispute here involved, first from the point of view of respondents and then from that of the NLRB. Few if any of these facts are in dispute, but, of course, the parties differ markedly in their interpretation of the weight and significance to be given them.

Facts Tending to Establish 286 Independent Taxicab Owner Employers

1. The Checker Cab Company neither owns or operates any cabs nor holds any city or state licenses for same.

2. Each individual owner holds in his name city licenses for the cabs which he owns.

3. Each individual owner holds in his name licenses from the state for each cab in his name.

4. Each individual owner buys and owns title to his own cabs.

5. Each individual owner has final legal authority to hire and fire the drivers of his cabs.

6. Each individual owner hires an agent or agents to collect from and in effect manage his cabs or performs this function himself.

7. Each individual owner files federal income taxes on all of the proceeds from his own cabs.

8. Each individual owner pays social security taxes for drivers who are employed by him on his own cabs.

9. Each individual owner pays withholding taxes for each of the drivers of his own cabs.

10. Each individual owner pays unemployment compensation taxes to the state.

11. No one of the owners has a gross income from the cab business of $500,000 a year.

Facts Tending to Establish Joint Employer Relationships Between 286 Checker Cab Owners and the Checker Cab Company

1. The Checker Cab Company is a Michigan non-profit corporation which has as members all 286 of the owners of Checker Cabs operating in the Detroit area.

2. Its members operate 900 cabs under the Checker name and employ approximately 7,000 full-time and part-time cab drivers. Together the 286 member-owners gross about $7,000,000 per year.

3. The Checker Cab Company employs approximately 15 people, none of whom are cab drivers. Among the 15 are a personnel manager, an...