NLRB v. City Yellow Cab Company

• Decision Date: 20 April 1965
• Docket Number: No. 15923.,15923.
• Citation: 344 F.2d 575
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CITY YELLOW CAB COMPANY and G. I. Cab Company, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

344 F.2d 575 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CITY YELLOW CAB COMPANY and G. I. Cab Company, Respondents.

No. 15923.

United States Court of Appeals Sixth Circuit.

April 20, 1965.

Paul M. Thompson, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Elliott Moore, Attorney, N. L. R. B., Washington, D. C., on brief, for petitioner.

William R. McClenathen, Akron, Ohio, Buckingham, Doolittle & Burroughs, Edward C. Kaminski, Akron, Ohio, on brief, for respondents.

Before MILLER, PHILLIPS and EDWARDS, Circuit Judges.

PHILLIPS, Circuit Judge.

The National Labor Relations Board has filed a petition for enforcement of its order, which is reported at 144 N.L.R.B. 994. The labor organization involved is Taxicab Drivers Union Local No. 345, affiliated with the Teamsters. Respondents, who operate taxicabs in Akron, Ohio, contend that enforcement of the Board's order should be denied, raising four questions:

(1) Whether the Board properly treated the two respondents as a single employer; (2) whether the Board has jurisdiction over respondents; (3) whether the Board was correct in holding that switchboard operators employed by respondents are not supervisors; and (4) whether the Board was correct in holding that the discharge of two non-union taxicab drivers was a violation of § 8(a) (3) and (1) of the Act, 29 U.S.C. § 158(a) (3) and (1).

1) Relationship between the two companies.

Respondents are two Ohio corporations, one known as City Yellow Cab Company and the other as G. I. Cab Company. First we consider the action of the Board in treating respondents as a single employer for jurisdictional purposes.

The record demonstrates that the two corporations have substantially the same management, and that the same four stockholders who own all the stock of City Yellow Cab also own ninety-four per cent of the stock of G. I. Cab.¹

The Board further found additional joint operations by the two companies as follows: The offices of both respondents have been in the same building since July 1962; the taxicabs of both companies are garaged and maintained at the same location; gasoline used by the cabs of both companies come from the same pumps and parts for cabs are taken from a common source, regardless of which cabs are being repaired; switchboard operators for both companies sit at one continuous switchboard panel in the same room, taking telephone calls for cab service and relaying the requests by radio to cabdrivers; Bryon W. Fry, an officer and director of both companies, makes major personnel decisions, such as the disciplining, hiring and discharging of employees, and makes purchases for both companies; the same person is the immediate supervisor of the switchboard operators for both companies; and the same person supervises the mechanics for both.

Respondents contend that the two companies in fact compete with each other; that all records and financial transactions are kept separate; that their labor policies are different (primarily in that employees of G. I. Cab are not unionized and employees of City Yellow Cab are represented by a union); that the cabs are dispatched somewhat differently; that there is some variance in fringe benefits; and that the companies have separate bank accounts, social security, internal revenue, and unemployment compensation accounts, and separate Ohio workmen's compensation accounts.

We conclude that under the foregoing findings of the Board, which are supported by substantial evidence, the Board was justified in treating the two corporations as a single employer for jurisdictional purposes. N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 93 L.Ed. 638; N. L. R. B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 362 (CA 6); Cf. N. L. R. B. v. Winn-Dixie Stores, Inc., 341 F.2d 750 (C.A. 6).

2) Jurisdiction

The trial examiner made the following findings of fact relative to the gross receipts and interstate commerce links of respondents:

"The gross volume of business of Respondent G. I. Cab and Respondent Yellow Cab was $293,835.45 and $780,160.05, respectively, during 1961, and $281,521.75 and $765,986.10, respectively, during 1962. In 1962, Respondent G. I. Cab received automobiles valued in excess of $24,000, and Respondent Yellow Cab received automobiles valued in excess of $43,000, directly from points outside the State of Ohio. Approximately 5 percent of the trips of both Respondents involve conveyance of passengers between links and channels of interstate commerce such as depots, terminals, airports, and hotels." 144 N.L.R.B. at 995.

Although part of the testimony concerning the purchase of automobiles is confusing, we hold that the findings of the Board are supported by substantial evidence on the record as a whole, and that under these facts the Board was authorized to exercise jurisdiction. N. L. R. B. v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279; N. L. R. B. v. Denver Building Council, 341 U.S. 675, 684, 71 S.Ct. 943, 95 L.Ed. 1284; McLean v. N. L. R. B., 333 F.2d 84 (C.A. 6); N. L. R. B. v. Crystal Laundry & Dry Cleaning Co., 308 F.2d 626 (C.A. 6); N. L. R. B. v. City Transportation Co., 303 F.2d 299 (C.A. 5), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed. 2d 230.

3) Whether switchboard operators are supervisors

Respondents do not dispute that their conduct toward the switchboard operators violated Section 8(a) (1) and (3) of the Act, 29 U.S.C. § 158(a) (1) and (3), if they were employees as defined in Section 2(3), 29 U.S.C. § 152(3). The only issue as to the unfair labor practices with respect to the switchboard operators is whether or not the Board was correct in finding that they were "employees" rather than "supervisors." It is contended by respondents that the Board was in error in holding that switchboard operators were "employees" and not "supervisors" as defined by Section 2(11) of the Act, 29 U.S.C. § 152 (11). If the operators are supervisors, Section 14(a) of the Act, 29 U.S.C. § 164(a), relieves the respondents of the duty to bargain with a union as their representative.

The facts concerning the switchboard operators in the present case are set forth in detail in the decision of the Board at 144 N.L.R.B. 994, and will not be repeated here except in summary. During the summer of 1962, all of the switchboard operators except two signed and mailed to Bryon W. Fry, President of City Yellow Cab and Vice President of G. I. Cab, a petition demanding an improvement in their pay and working conditions. On the next pay day Mr. Fry called two of the switchboard operators to his office, told them that he did not like the word "demand" in their petition, and that "their demands were silly, asinine and ridiculous." Thereafter one switchboard operator was demoted to driver and then fired, and another was discharged upon grounds of "economy." A representative of management stated that "the rest of the people that signed the petition will rue the day they put their names on that paper." Thereupon the switchboard operators asked the assistance of the union, and eight of the ten operators signed union cards. The union demanded recognition and respondents refused on the basis that the switchboard operators were supervisors. Mr. Fry told one of the operators that "they couldn't tolerate a unionized switchboard." It is uncontradicted that the majority of the switchboard operators signed cards authorizing the union to represent them.

On October 28, two switchboard operators and a few drivers began picketing respondents' premises, carrying signs: "ON STRIKE FOR UNION RECOGNITION." The strike ended after respondents obtained two temporary restraining orders from Ohio courts. Ultimately four switchboard operators and two drivers for G. I. Cab were discharged. The Board ordered all six employees reinstated, with back pay plus interest.

The primary function and duty of the switchboard operators was to receive telephone calls from customers for taxicab service and to relay these requests to available cabdrivers. Other duties as summarized by the Board are set forth in the margin.²

This court recently considered the statutory definition of "supervisor" in our decision in Eastern Greyhound Lines v. N. L. R. B., 337 F.2d 84 (C.A. 6), in which we held that dispatchers for the bus company were supervisors. There we applied the definition of the term "supervisor" as set forth in 29 U.S.C. § 152 (11).³ We followed the well-established rule that this statute is to be read disjunctively and that if a bus company dispatcher possessed any one of the powers described in the act, to be exercised as a matter of independent judgment on the part of the dispatcher, rather than as a matter of a mere routine or of a clerical nature, he was a supervisor within the meaning of the Act. We found that bus company dispatchers under the facts of that case had the power to suspend bus drivers and effectively to recommend discipline. We pointed out that:

"The evidence showed that in some places Eastern\'s terminals and its buses are in operation all day and all night. Dispatchers operate in three shifts so that one of them is in service at all hours. In the late night and the early morning hours there are generally no personnel with authority higher than that of a dispatcher on duty. If dispatchers are not supervisors, this multistate transportation system operates a substantial part of the time without supervision." 337 F.2d at 87.

We recognized the rule that the statute does not require that the powers described therein be exercised during any definite part of the supervisor's time, and that it is the existence of the power that determines the classification.

Although the switchboard operators involved in the instant case are sometimes called "dispatchers," we find that substantial evidence on the record considered as a whole supports...