NLRB v. Friendly Cab Co.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS 
BOARD,
Petitioner,
EAST BAY TAXI DRIVERS
ASSOCIATION AND BROTHERHOOD OF
TEAMSTERS, AUTO TRUCK DRIVERS,
LINE DRIVERS, CAR HAULERS, AND
HELPERS, LOCAL NO. 70, No. 05-73752
Intervenor,  NLRB No.
v. 32-CA-21613
FRIENDLY CAB COMPANY, INC.;
METRO-TAXICAB COMPANY, INC.;
CALIFORNIA CAB COMPANY;
GRKWSS ENTERPRISE, INC.;
METRO-YELLOW TAXICAB
COMPANY AND GREYLINE CAB CO.,
Respondents.

173
174 NLRB v. FRIENDLY CAB COMPANY
FRIENDLY CAB COMPANY, INC.; 
METRO-TAXICAB COMPANY, INC.;
CALIFORNIA CAB COMPANY;
GRKWSS ENTERPRISE, INC.;
METRO-YELLOW TAXICAB
COMPANY AND GREYLINE CAB CO.,
Petitioners,
No. 05-73813
EAST BAY TAXI DRIVERS
ASSOCIATION AND BROTHERHOOD OF
TEAMSTERS, AUTO TRUCK DRIVERS,
 NLRB No.
32-CA-21613-1
LINE DRIVERS, CAR HAULERS, AND OPINION
HELPERS, LOCAL NO. 70,
Intervenor,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.

On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted
October 18, 2007—San Francisco, California
Filed January 8, 2008
Before: Jane R. Roth,* Sidney R. Thomas, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
NLRB v. FRIENDLY CAB COMPANY 177
COUNSEL
Arthur F. Rosenfeld, Acting General Counsel, John E. Hig-
gins, Jr., Deputy General Counsel, John H. Ferguson, Asso-
ciate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, David Habenstreit, Supervising
Attorney, Kathleen E. Lyon, Attorney, Meredith L. Jason,
Attorney (Argued), for petitioner-respondent National Labor
Relations Board.
Alexander J. Berline, Esq. (Argued), Shai Zemach, Esq., Han-
son Bridgett Marcus Vlahos & Rudy, LLP, for respondents-
petitioners Friendly Cab Company, Inc., et al.
David A. Rosenfeld, Esq., Caren P. Sencer, Esq. (Argued),
Weinberg, Roger & Rosenfeld, A Professional Corporation,
178 NLRB v. FRIENDLY CAB COMPANY
for intervenors East Bay Taxi Drivers Association and Broth-
erhood of Teamsters, Auto Truck Drivers, Line Drivers, Car
Haulers, and Helpers, Local No. 70.
OPINION
CALLAHAN, Circuit Judge:
Congress enacted the National Labor Relations Act (“the
Act”) to protect the right of employees to participate in collec-
tive bargaining for the purpose of negotiating the terms and
conditions of their employment. See 29 U.S.C. § 151. In an
effort to avoid an application of the Act and its concomitant
collective bargaining requirement, Friendly Cab Company,
Inc. (“Friendly”) maintains that its taxicab drivers are inde-
pendent contractors, rather than employees, and are therefore
excluded from the protections of the Act. After conducting an
unfair labor practice proceeding, the National Labor Relations
Board (“NLRB” or “Board”) concluded that Friendly’s taxi-
cab drivers are employees and that Friendly violated the Act
by refusing to meet and engage in collective bargaining with
the East Bay Taxi Drivers Association (“Union”). Friendly
now seeks review of that decision. Acting pursuant to the
jurisdiction that Congress granted under Section 10 of the
Act, we affirm the well-reasoned conclusion of the NLRB that
Friendly’s drivers are employees within the meaning of the
Act. This conclusion is supported by substantial evidence that
Friendly exercised considerable control over the means and
manner of its drivers’ performance and did not provide its
drivers the ability to pursue entrepreneurial opportunities.
I. Background
Friendly, along with six other taxicab entities, operates out
of a facility in Oakland, California, and is under the control
of Surinder Singh, the chief administrator, and her husband,
NLRB v. FRIENDLY CAB COMPANY 179
Baljit Singh, the president of the company.1 Friendly owns
approximately eighty taxicabs (fifty of which are designated
as airport cabs) and leases these cabs to its drivers who oper-
ate them at the Oakland International Airport and in the cities
of Emeryville, Oakland, Berkeley, and Alameda, California.
These leases typically state that the taxicabs are rented for
seven days, renew automatically, and provide the drivers with
six days of service and one day of mandatory maintenance per
week. Each of Friendly’s drivers is required to pay a fee or
“gate,” which ranges from $450 to $600 per week based on
Friendly’s discretion.2 In determining this fee, Friendly takes
into account the cab model, as well as the driver’s driving
record, driving ability, and prior accidents. Friendly has a lim-
ited number of permits to operate at the Oakland Airport,
which are in high demand and are typically held by drivers
with more experience. Although drivers designate which
entity they want to work for, Friendly retains the discretion to
assign drivers to different taxicab entities, taxicab models, and
the type of cab (airport or street cabs). These leases also spec-
ify that there is no employer-employee relationship between
Friendly and its taxicab drivers, and that Friendly is not
responsible for withholding any federal or state taxes or pro-
viding worker’s compensation insurance.
As part of the lease, Friendly’s drivers agree to comply
with Friendly’s Taxicab Company Policy Manual (“Manual”)
and its Standard Operating Procedures (“SOP”). Although
Friendly’s Manual and SOP cover a broad range of topics that
are common to the operation of a taxi service (e.g., safety
1
In addition to Friendly, the same employer operates Metro-Taxicab
Company, Inc.; California Cab Company; Bay Area Taxi Management;
GRKWSS Enterprise, Inc.; Metro-Yellow Taxicab Co.; and Greyline Cab
Co. The parties stipulated that the seven entities constitute a single
employer. In addition, the record indicates that it was not uncommon for
the same driver to operate different taxicabs assigned to the various enti-
ties. We refer to these entities collectively as “Friendly.”
2
Friendly also operates sixteen natural gas taxicabs which command a
weekly gate of $750.
180 NLRB v. FRIENDLY CAB COMPANY
concerns, non-discrimination policy, etc.), there are a number
of regulations that concern Friendly’s control over its drivers.
For example, the Manual instructs drivers that: “[a]cceleration
should be smooth,” they should “[a]void abrupt stops,” they
should “not stop next to puddles or in front of obstacles such
as signs, trees or hydrants,” and that “[w]hen stopping at
curbs, stop either right next to curb or out away from the
curb.” Friendly’s Manual also imposes a dress code, which
requires that all taxicab drivers “maintain good personal
hygiene and dress appropriately and professionally: collared
shirts with sleeves, slacks or knee-high skirts, closed shoes
with socks or hose.”
Friendly’s SOP contains a number of relevant regulations
as well. Of particular significance to this case, the SOP
restricts outside business opportunities for Friendly’s drivers
by stating that: “[a]ll calls for service must be conducted over
company provided communications system and telephone
number. No private or individual business cards or phone
numbers are allowed for distribution to customers as these
constitute an interference in company business and a form of
competition not permitted while working under the lease.”
The SOP also provides that “[d]rivers must service all reason-
able customer calls from dispatchers.” Several drivers testi-
fied that the dispatcher will ignore or bypass them if they
refuse or are late to a dispatch. One driver testified that if
drivers do not respond in a certain amount of time, the dis-
patcher reminds drivers over the radio that “we run the show,
you guys are just the driver. Just drive. That’s it.”
Although there was conflicting testimony regarding
whether Friendly’s drivers had to accept credit cards, the SOP
requires that drivers accept scrip and vouchers from customers.3
3
Taxicab companies in the Oakland region participate in a program
designed to assist blind, elderly, disabled customers, and passengers trav-
eling with service animals. This program allows these individuals to pay
with “scrip.”
NLRB v. FRIENDLY CAB COMPANY 181
Taxicab drivers are required to respond at Friendly’s discre-
tion to dispatches for voucher service from contract accounts
that Friendly Transportation (an independent company owned
by the Singhs) maintains with companies such as United Par-
cel Service, Federal Express, Union Pacific, and the American
Red Cross. It is not clear how often this occurs since the SOP
indicates that Friendly Transportation’s vans and sedans have
primary responsibility for these corporate accounts and taxi-
cabs are used at Friendly’s discretion as a secondary option.
On such occasions, Friendly reimburses drivers according to
a rate list, minus a set percentage based upon the total amount
of the voucher. For vouchers up to $50, Friendly keeps ten
percent of the total amount; from $50 to $100, fifteen percent;
from $100 to $125, twenty percent; from $125 to $200,
twenty-five percent; and over $200, thirty percent.4 There is
testimony from the drivers that these flat rates can be less than
the meter rate for the same trip, but the drivers do not have
the ability to refuse a voucher dispatch.
In addition to the requirements contained in the Manual and
the SOP, Friendly imposes a number of additional restrictions
on its drivers. For example, Friendly’s general manager testi-
fied that taxicab drivers are not able to sublease their vehicles
to other drivers. Friendly also requires that its taxicabs carry
advertisements for outside vendors on the roofs of the taxi-
cabs. Drivers must return to the station to replace these adver-
tisements at Friendly’s discretion. Furthermore, Friendly
requires that its drivers attend, at their expense, annual classes
on company policies and laws dealing with discrimination.
Finally, if the drivers do not comply with Friendly’s policies,
Friendly can terminate their leases. Friendly employs a “road
4
Friendly’s general manager testified that these graduated processing
fees are only charged when the drivers want immediate payment and that
the vouchers can be directly submitted to the appropriate company for
payment. However, a Friendly driver testified that he attempted to submit
vouchers directly to two airlines and was told that he had to submit the
vouchers to Friendly for payment.
182 NLRB v. FRIENDLY CAB COMPANY
manager” who monitors the drivers’ appearance and compli-
ance with Friendly’s policies.
As a result of tension between Friendly and its drivers, the
Union was appointed as the representative of a number of
Friendly’s drivers. The Union filed a petition under Section
9(c) of the Act with the NLRB for a declaration that Friend-
ly’s taxicab drivers were employees and thus entitled to repre-
sentation for collective bargaining purposes. Following a
hearing conducted before a hearing officer, a NLRB regional
director issued a Decision and Direction of Election conclud-
ing that Friendly’s drivers were employees within the mean-
ing of Section 2(3) of the Act and directing that a formal vote
take place among all of the taxicab drivers to determine
whether they wanted the Union as their official representative.
Friendly petitioned for review, and a three-member panel of
the NLRB affirmed the regional director’s decision in a Deci-
sion on Review. See Friendly Cab Co., Inc., 341 N.L.R.B.
722 (2004) (generally referred to as the “Underlying Repre-
sentation Proceeding”).
Following its certification as the exclusive collective-
bargaining representative of Friendly’s taxicab drivers, the
Union wrote Friendly on several occasions to meet and nego-
tiate over the terms of employment of Friendly’s taxicab driv-
ers. Friendly refused on the basis that it would seek judicial
review of the Underlying Representation Proceeding. The
Union subsequently filed a charge with the NLRB alleging
that Friendly violated Sections 8(a)(1) and (a)(5) of the Act by
refusing to participate in collective bargaining. Following a
trial, an administrative law judge (“ALJ”) concluded that
Friendly violated the Act and recommended Friendly be “or-
dered to cease-and-desist, to meet and bargain on request with
the Union, and, if an understanding is reached, to embody the
understanding in a signed agreement.” The NLRB affirmed
the ALJ’s decision that Friendly violated the Act and adopted
the ALJ’s recommended order. See Friendly Cab Co., Inc.,
344 N.L.R.B. No. 64, 177 L.R.R.M. (BNA) 1135 (Apr. 20,
NLRB v. FRIENDLY CAB COMPANY 183
2005) (generally referred to as the “Unfair Labor Practice
Proceeding”). Friendly now seeks review of that order.
Because the NLRB’s decision in the Unfair Labor Practice
Proceeding is based on findings made in the Underlying Rep-
resentation Proceeding, the record in the Underlying Repre-
sentation Proceeding is also before this court. See 29 U.S.C.
§ 159(d).
II. Standard of Review
In reviewing the NLRB’s application of agency principles
to the facts of this case, “the court should not set aside the
Board’s determination of the issue merely because the court,
as an original matter, would have decided the case the other
way. If the Board’s conclusion represents a choice between
two fairly conflicting views, it may not be displaced.” Mer-
chants Home Delivery Serv., Inc. v. NLRB, 580 F.2d 966, 973
(9th Cir. 1978) (internal quotation marks and citations omit-
ted); see also NLRB v. Town & Country Elec., Inc., 516 U.S.
85, 94 (1995) (stating “[s]ince the task of defining the term
‘employee’ is one that has been assigned primarily to the
agency created by Congress to administer the Act, . . . the
Board’s construction of that term is entitled to considerable
deference”) (internal quotation marks and citations omitted).
However, the NLRB’s decision cannot be upheld if its “ ‘ap-
plication of the law to the facts overlooked accepted princi-
ples of the law of agency . . . .’ ” SIDA of Hawaii, Inc. v.
NLRB, 512 F.2d 354, 357 (9th Cir. 1975) (citation omitted).
This is because “a determination of pure agency law
involve[s] no special administrative expertise that a court does
not possess.” NLRB v. United Ins. Co. of Am., 390 U.S. 254,
260 (1968). Accordingly, we will uphold the NLRB’s deci-
sion if it “correctly applied the law and if there is substantial
evidence on the record as a whole to support its findings of
fact.” Chipman Freight Servs., Inc. v. NLRB, 843 F.2d 1224,
1225 (9th Cir. 1988) (citing NLRB v. Int’l Longshoremen’s
Ass’n, 473 U.S. 61, 78-79 (1985)).
184 NLRB v. FRIENDLY CAB COMPANY
III. Analysis
[1] The entire dispute between Friendly, its taxicab drivers,
the Union, and the NLRB can be distilled into one question:
Are Friendly’s taxicab drivers “employees” or “independent
contractors” under the Act?5 If they are “employees,” Friend-
ly’s drivers are protected by the Act and are entitled to collec-
tive bargaining representation. See 29 U.S.C. § 152(3)
(defining “employees”); United Ins., 390 U.S. at 255 n.1 (stat-
ing that the Act protects only employees and excludes inde-
pendent contractors). Conversely, if Friendly’s drivers are
“independent contractors,” the Act does not afford them any
collective bargaining rights.6 Id.5
In our review of the NLRB’s order in the Unfair Labor Practice Pro-
ceeding under Section 10(f), we note that Friendly has previously stipu-
lated that it “refused to recognize and bargain with the Union, but defends
on the sole basis that the Union was improperly certified because its taxi-
cab drivers are independent contractors and not employees.” Friendly
Cab, 344 N.L.R.B. No. 64, at *1 n.1. Accordingly, we need only consider
whether Friendly’s taxicab drivers were “employees” under the Act to
determine whether Friendly violated the Act when it failed to meet and
bargain with the Union.
6
Congress specifically amended the Act in 1947 to exclude “indepen-
dent contractors.” This action was taken in response to a number of deci-
sions by the federal courts, including the Supreme Court in NLRB v.
Hearst Publications, 322 U.S. 111 (1944), enforcing the NLRB’s expan-
sive interpretation of the definition of the term “employee.” See NLRB v.
Associated Diamond Cabs, Inc., 702 F.2d 912, 919 (11th Cir. 1983). The
House Report on the bill that ultimately was passed to exempt independent
contractors stated:
‘Employees’ work for wages or salaries under direct supervision.
‘Independent contractors’ undertake to do a job for a price,
decide how the work will be done, usually hire others to do the
work, and depend for their income not upon wages, but upon the
difference between what they pay for goods, materials, and labor
and what they receive for the end result, that is, upon profits.
Id. (quoting H.R. Rep. No. 245, 80th Cong., 1st Sess. 18 (1947), reprinted
in 1 NLRB, Legislative History of the Labor Management Relations Act,
1947, 309 (1948)).
NLRB v. FRIENDLY CAB COMPANY 185
[2] In order to distinguish an “employee” from an “inde-
pendent contractor,” we must undertake a fact-based inquiry
applying common law principles of agency. United Ins., 390
U.S. at 256 (stating that “there is no doubt that we should
apply the common[ ]law agency test . . . in distinguishing an
employee from an independent contractor”); Merchants, 580
F.2d at 972-73 (same); Restatement (Second) of Agency
§ 220 (1957) (common law agency principles). Although
courts must look to the totality of the circumstances, “[t]he
essential ingredient of the agency test is the extent of control
exercised by the ‘employer.’ It rests primarily upon the
amount of supervision that the putative employer has a right
to exercise over the individual, particularly regarding the
details of the work.” SIDA, 512 F.2d at 357 (internal quota-
tion marks and citation omitted). Additional factors that are
relevant to this determination include “entrepreneurial aspects
of the individual’s business; risk of loss and opportunity for
profit; and the individual’s proprietary interest in his busi-
ness.” See Merchants, 580 F.2d at 973; SIDA, 512 F.2d at
359; see also Corporate Express Delivery Sys. v. NLRB, 292
F.3d 777, 780-81 (D.C. Cir. 2002). We must assess and weigh
all of the incidents of the relationship with the understanding
that no one factor is decisive, see United Ins., 390 U.S. at 258,
and that “[i]t is the rare case where the various factors will
point with unanimity in one direction or the other.” Mer-
chants, 580 F.2d at 973.
We cannot displace the NLRB’s conclusion that Friendly’s
drivers are “employees” within the meaning of the Act
because there is substantial evidence in the record that
Friendly exercises significant control over the means and
manner of its drivers’ performance. In finding that the inci-
dents of the relationship between Friendly and its drivers mili-
tate in favor of “employee” status, we place particular
significance on Friendly’s requirement that its drivers may not
engage in any entrepreneurial opportunities.
186 NLRB v. FRIENDLY CAB COMPANY
A. Evidence of Independent Contractor Status
The payment by taxicab drivers of a fixed rental rate to an
employer where drivers retain all fares collected without
accounting to that employer typically creates a “strong infer-
ence” that the employer does not exert control over the means
and manner of the drivers’ performance. See NLRB v. Associ-
ated 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 (D.C.
Cir. 1978); City Cab Co. of Orlando, Inc., 285 N.L.R.B.
1191, 1194 (1987) (“City Cab of Orlando I”). The rationale
behind this “strong inference” is that the employer does not
have an incentive to control the means and manner of the
drivers’ performance when the employer makes the same
amount of money irrespective of the fares received by the
drivers. See Associated Diamond Cabs, 702 F.2d at 924;
Local 777, Seafarers, 603 F.2d at 879; City Cab of Orlando
I, 285 N.L.R.B. at 1194.
Here, the NLRB accepted that this “strong inference” exists
because Friendly’s drivers pay a flat fee and are not required
to account for the amount of fares or tips they collect.
Friendly Cab, 341 N.L.R.B. at 724. Although Friendly
received the benefit of this inference, the NLRB was generous
to give it. There is nothing flat about this fee since it varies
among the drivers between $450 and $600, depending on their
cab model, driving record, driving ability and prior accidents.
Id. at 722. Those drivers that do not incur additional expenses
for Friendly — for example, in the form of higher automobile
insurance rates for poor driving records or increased costs for
repairs of taxicabs damaged in accidents — are presumably
rewarded with lower rental rates. Friendly’s rental fees thus
do in fact reflect some control over the drivers’ performance.
In addition to Friendly’s rental fees, the NLRB found addi-
tional indicia of independent contractor status. These include
the facts that Friendly’s drivers do not work set hours or a
NLRB v. FRIENDLY CAB COMPANY 187
minimum number of hours,7 the taxicab lease agreements pro-
vide that the drivers are independent contractors, Friendly
does not provide any benefits to drivers, and Friendly does
not withhold social security or other taxes on behalf of the
drivers. Id. at 724. However, the NLRB properly concluded
that such factors are substantially outweighed by the evidence
in the record of significant control by Friendly over the means
and manner of its drivers’ performance.
B. Evidence of Employee Status
[3] The ability to operate an independent business and
develop entrepreneurial opportunities is significant in any
analysis of whether an individual is an “employee” or an “in-
dependent contractor” under the common law agency test. See
Merchants, 580 F.2d at 973; see also Corporate Express, 292
F.3d at 780. Friendly’s restrictions against its drivers’ operat-
ing independent businesses or developing entrepreneurial
opportunities strongly supports the NLRB’s determination
that Friendly’s drivers are employees.
In SIDA, this court found that the taxicab drivers were inde-
pendent contractors, stating: “[t]he drivers are substantially
independent in their operations. They are generally free to
work or not work for SIDA when they choose; they may
‘moonlight’ by working for other cab companies; they are
free to make their own arrangements with clients and to
develop their own goodwill . . . .” 512 F.2d at 357-58. Simi-
larly, in Merchants, this court found that the “entrepreneurial
characteristics of the owner-operators tip decidedly in favor of
independent contractor status,” noting that the delivery truck
drivers “sometimes engage in non-Merchants business.” 580
7
It appears that Friendly began to restrict its taxicab drivers’ leases to
ten hours per day pursuant to the California Vehicle Code. Friendly Cab,
341 N.L.R.B. at 723. This does not constitute any degree of control since
it is mandated pursuant to government regulation. See, e.g., SIDA, 512
F.2d at 359.
188 NLRB v. FRIENDLY CAB COMPANY
F.2d at 974-75; see also Corporate Express, 292 F.3d at 780(placing significance on entrepreneurial opportunities of
delivery drivers in analyzing employee-independent contrac-
tor status); C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 860
(D.C. Cir. 1995) (same).
In the Underlying Representation Proceeding, the NLRB
stated that “[t]he most significant evidence of Employer con-
trol in this case is that the drivers are not permitted to operate
independent businesses.” Friendly Cab, 341 N.L.R.B. at 724.
A review of the record supports this conclusion. Friendly’s
own general manager testified that drivers can use the taxi-
cabs only to respond to dispatches from Friendly and not for
outside business. The SOP prohibits drivers from soliciting
customers, stating that “all calls for service must be conducted
over company provided communications system and tele-
phone number.” It also requires that drivers maintain com-
pany business cards at all times in the taxicab and prohibits
drivers from distributing any private business cards or tele-
phone numbers to customers because this would “constitute
an interference in company business and a form of competi-
tion not permitted while working under the lease.” Drivers
cannot accept calls for service on personal cellular telephones
and, in fact, cannot even use cellular telephones while driving.8
[4] These limitations do not allow Friendly’s drivers the
entrepreneurial freedom to develop their own business inter-
ests like true independent contractors. In SIDA, our conclu-
sion that the taxicab drivers were independent contractors was
premised largely on the fact that SIDA drivers were able “to
make their own arrangements with clients and to develop their
own goodwill.” 512 F.2d at 357-58. Here, it is telling that
Friendly’s SOP mandates that its drivers must operate the
8
There is nothing in the record to suggest that this restriction is related
to safety rather than another form of control over the means and manner
of the drivers’ performance.
NLRB v. FRIENDLY CAB COMPANY 189
taxis “in such a manner as to protect the goodwill that exists
between the company and its customers.”
[5] Additional entrepreneurial characteristics — such as
substantial investment in property and the ability to employ
others — are also absent. See Merchants, 580 F.2d at 975(finding ownership and ability to employ others as important
factors indicating independent contractor status); SIDA, 512
F.2d at 357 (finding ownership as an important factor indicat-
ing independent contractor status); see also Corporate
Express, 292 F.3d at 780 (stating “[t]ypically an entrepreneur
not only supplies his own equipment or tools; he may also
hire subordinates and work for more than one party”). Friend-
ly’s taxicab drivers do not own the taxicabs, but must lease
them from Friendly. Friendly also prohibits its drivers from
employing others by preventing the subleasing of its taxicabs.
One former driver testified that while he was hospitalized, he
was instructed by Mrs. Singh that drivers were prohibited
from subleasing the vehicles, even to other Friendly drivers.
[6] Another factor supporting the NLRB’s determination
that Friendly’s drivers are employees is the evidence that
Friendly sought to control the means and manner of its driv-
ers’ performance by regulating the manner in which they
drive, imposing a strict disciplinary regime, requiring drivers
to carry advertisements without receiving revenue, requiring
drivers to accept vouchers subject to Friendly’s “processing
fees,” imposing a strict dress code, and requiring training in
excess of government regulations. All of these factors support
the NLRB’s determination that Friendly’s drivers are employ-
ees.
[7] Friendly maintains direct control over the performance
of its drivers’ duties by exercising “discretion to determine
which entity a driver is assigned to, the model of the vehicle
assigned to a driver, . . . and whether a driver may drive an
airport cab.” Friendly Cab, 341 N.L.R.B. at 724. Friendly’s
Manual further instructs drivers in the manner they should
190 NLRB v. FRIENDLY CAB COMPANY
accelerate and stop their vehicles, as well as factors they
should consider in choosing where to stop their taxicabs.
Thus, Friendly’s interest in controlling the means and manner
of its drivers’ performance extends to the actual details of the
operation of the taxicabs.
In assessing control, courts have also focused on the pres-
ence, or lack thereof, of discipline imposed by a taxicab com-
pany on its drivers. In City Cab Co. of Orlando, Inc. v. NLRB,
628 F.2d 261 (D.C. Cir. 1980) (“City Cab of Orlando II”), the
court found it significant that drivers were reluctant to refuse
either a dispatcher’s call for fear of not receiving future dis-
patches or an airport assignment because they would have to
return to the end of the airport taxicab line. Id. at 265 (con-
cluding that taxicab drivers were employees); see NLRB v.
O’Hare-Midway Limousine Serv., 924 F.2d 692, 695 (7th Cir.
1991) (finding company’s “right to fine or reprimand the driv-
ers for failure to comply with company procedures” as sup-
port for concluding limousine drivers were employees);
Stamford Taxi, Inc., 332 N.L.R.B. 1372, 1384 (2000) (finding
taxicab drivers that refused dispatch calls were “subject to
discipline, denial of further dispatched calls, or lease termina-
tion” as support for concluding taxicab drivers were employ-
ees). Conversely, in Yellow Taxi Co. of Minneapolis v. NLRB,
721 F.2d 366 (D.C. Cir. 1983), the court held the lack of a
disciplinary regime was an important factor leading to the
determination that the taxicab drivers were independent con-
tractors. Id. at 376-77; see also C.C. Eastern, 60 F.3d at 858(finding company’s lack of a conventional disciplinary system
was an indicator of independent contractor status). Distin-
guishing the disciplinary system in City Cab of Orlando II,
the court in Yellow Taxi of Minneapolis found that the drivers
were free to refuse any radio call from the dispatcher. 721
F.2d at 377. In fact, the chief dispatcher testified that the driv-
ers were “free to refuse orders for runs, without penalty, and
dispatchers are so instructed.” Id. Such is not the case here.
Friendly exercised substantial control over its drivers
through a strict disciplinary regime. Significantly, Friendly
NLRB v. FRIENDLY CAB COMPANY 191
disciplines its drivers for any refusal to cooperate with Friend-
ly’s dispatcher. Friendly’s SOP states that “[d]rivers must ser-
vice all reasonable customer calls from dispatcher.”
Friendly’s drivers testified that they are disciplined if they
refuse or are late to a dispatch. Drivers are also disciplined
when they disagree with management. Mrs. Singh assessed a
fifty dollar fine to one driver who disagreed with her and pur-
portedly told him that “you open a mouth in front of me, now
you have to pay the penalty.” Furthermore, in order to moni-
tor drivers’ appearance and compliance with Friendly’s poli-
cies, Friendly employs a “road manager” who has the
authority to not only warn drivers, but to suspend or terminate
lease agreements. One driver testified that the road manager
unilaterally changed the terms of the lease (including the
weekly gate and preset fees to repair a taxicab) to punish him
for an accident. The evidence reveals that if the taxicab driv-
ers do not perform their duties in an acceptable manner,
Friendly punishes them using the most effective tool avail-
able: taking money out of the drivers’ income.
Friendly’s requirement that its taxicabs carry advertise-
ments is additional evidence of control because drivers are
subject to Friendly’s discretionary requests to change adver-
tisements. Friendly Cab, 341 N.L.R.B. at 724. These requests
require that the driver sit idle while advertisements are
changed and result in the driver losing potential fares. Also,
drivers testified that they complained to Friendly that they did
not want advertising signs for various companies on top of
their taxicabs, but were told they did not have a choice in the
matter. One driver testified that Friendly required him to
change the advertising up to once every twenty days, requir-
ing him to wait each time at the company’s premises between
fifteen minutes and one hour.
The type of control Friendly exercises over its drivers
exceeds that found in the typical case in which a company
requires its workers place advertisements on work vehicles. In
Carnation Company v. NLRB, 429 F.2d 1130 (9th Cir. 1970),
192 NLRB v. FRIENDLY CAB COMPANY
this court found that Carnation’s requirement that its dairy
distributors maintain advertisements on their work vehicles
did not evidence an employer-employee relationship. Id. at
1132; see also Associated Diamond Cabs, 702 F.2d at 921(concluding that income from advertisements that went to
taxicab company was “irrelevant to the issue of an employer’s
control over the lessees”). Similarly, in City Cab of Orlando
I, a taxicab company’s requirement that a driver return to its
facility in order for a mechanic to place decals listing the new
telephone number of the company was found to not be the
type of control normally exercised by an employer over an
employee. 285 N.L.R.B. at 1206. This was because the decals
primarily benefitted the taxicab drivers and the general public.
Id. In this case, Friendly’s requirement constitutes signifi-
cantly greater control. Friendly’s advertising requirement rep-
resents a form of control that inures to the benefit of Friendly
at the financial expense of the drivers.
Friendly’s requirement that its drivers accept vouchers is
yet further evidence of control. Some courts have found that
requiring taxicab drivers to accept flat voucher fees is not evi-
dence of sufficient control by itself to indicate “employee”
status. See, e.g., Yellow Taxi of Minneapolis, 721 F.2d at 371;
Air Transit, Inc. v. NLRB, 679 F.2d 1095, 1100 (4th Cir.
1982). However, Friendly exercises greater control through
the graduated processing fees it charges drivers when they
redeem vouchers. While it is unclear how often it occurs,
Friendly’s drivers are required at Friendly’s discretion to
transport passengers and packages pursuant to contracts
between Friendly Transportation and various companies.
Friendly Cab, 341 N.L.R.B. at 723. These mandated voucher
trips can pay lower amounts than the meter rates, and the
voucher reimbursement system charges Friendly’s drivers
graduated processing fees ranging from ten to thirty percent
of the total amount of the voucher. Id. Similar to the advertis-
ing requirement, Friendly’s voucher requirement exceeds the
type of control typically exercised over independent contrac-
tors.
NLRB v. FRIENDLY CAB COMPANY 193
Friendly’s extensive, mandatory dress code for all of its
taxicab drivers also constitutes additional evidence of control.
In City Cab of Orlando II, the court cited the extensive dress
code the taxicab company required of its drivers as one of the
factors that led the court to conclude the taxicab drivers were
employees. 628 F.2d at 265. There, the drivers were required
to wear a shirt with a collar, not to wear jeans or short pants,
to be clean-shaven, not to wear tennis shoes, and, if the driver
chose to wear a hat, it had to be a designated “cab drivers
hat.” Id. Friendly’s dress code is very similar to the one in
City Cab of Orlando II. Although this court and others have
not given a dress code requirement much weight, Friendly’s
extensive dress code is an additional factor supporting the
NLRB’s determination. See, e.g., SIDA, 512 F.2d at 358-59(finding independent contractor status where drivers were
required to “be neat and courteous, display the SIDA identifi-
cation on their dome lights and uniforms”); Carnation, 429
F.2d at 1132 (finding that the fact distributors did not have to
wear uniforms was indicative of independent contractor sta-
tus); see also C.C. Eastern, 60 F.3d at 858 (finding that com-
pany’s lack of control over the drivers’ dress or appearance
was indicative of independent contractor status).
Friendly’s training policy outlined in its Manual, which
incorporates both local government regulations and company-
specific regulations, also constitutes another minimal indi-
cium of control over the drivers. See Friendly Cab, 341
N.L.R.B. at 722-24. While the incorporation of government
regulations into a company’s manual is not evidence of an
employer-employee relationship, see SIDA, 512 F.2d at 359,
the NLRB reasonably found that Friendly’s training require-
ments exceed those required by the City of Oakland’s ordi-
nance and constitute some degree of control over the drivers.
Cf. Carnation, 429 F.2d at 1132 (noting that the fact distribu-
tors were not required to undergo training at company’s
request was indicative of independent contractor status); Air
Transit, 679 F.2d at 1098 (finding in independent contractor
analysis that “drivers receive no type of training and are not
194 NLRB v. FRIENDLY CAB COMPANY
given road tests to evaluate their driving skills”). Friendly
describes its mandatory two-day training class as being “in
addition to the class conducted by the City of Oakland Police
Taxi Detail.” It covers sensitivity training, operating proce-
dures, hands-on practical training, record keeping, and local
geography training. Like the dress code requirement, we find
the training requirement supports the NLRB’s determination
that Friendly’s drivers are employees.
IV. Regional Director’s Decision as
Evidence of Arbitrariness
[8] Finally, we reject Friendly’s contention that the
NLRB’s decision in Friendly Cab was arbitrary. Friendly’s
argument is based on the fact that the same regional director
that concluded Friendly’s taxicab drivers are employees in the
Underlying Representation Proceeding also concluded in a
separate representation proceeding that drivers for a rival taxi-
cab company, Veteran’s Cab Corporation, are independent
contractors. We find Friendly’s argument unpersuasive
because it is the three-member panel’s Decision on Review —
not the regional director’s Decision and Direction of Election
— that is being reviewed pursuant to Section 9(d) of the Act,
and, in any event, Veteran’s Cab is distinguishable.
Under Section 3(b) of the Act, Congress provided the
NLRB with the authority to delegate “any or all” of its powers
to a three-member panel and to delegate “to its Regional
Directors the [authority under Section 9] to determine the
appropriate bargaining units, to direct elections, and to certify
the results of such elections, subject to review by the Board.”
Ritz-Carlton Hotel Co. v. NLRB, 123 F.3d 760, 762 (3d Cir.
1997) (citing Pub. L. 86-257, 73 Stat. 542 (1959) (codified as
amended at 29 U.S.C. § 153(b) (1983))). Acting pursuant to
this authority, the NLRB promulgated rules codified at 29
C.F.R. § 102.67 “delegating the initial decisionmaking on rep-
resentation issues to the Regional Directors, but retaining the
authority in the Board to make the final administrative deci-
NLRB v. FRIENDLY CAB COMPANY 195
sion.” Id. (citing 26 Fed. Reg. 3889 (May 4, 1961) (codified
as amended at 29 C.F.R. § 102.67)). A decision by a regional
director becomes final either if the parties fail to request a
review by the Board or the Board denies such a request. See
29 C.F.R. § 102.67(f). Should the Board grant a request for
review, it may affirm or reverse the regional director’s order,
or determine that another disposition of the matter is appropri-
ate. See 29 C.F.R. § 102.67(j).
Friendly ignores the fact that the Board — acting through
a panel — granted Friendly’s request to review the regional
director’s decision and concluded that Friendly’s drivers are
“employees” within the meaning of the Act.9 See Friendly
Cab, 341 N.L.R.B. 722. The panel’s decision then became the
final administrative decision that we review. See 29 C.F.R.
§ 102.67. That the regional director may have acted differ-
ently in another case is of little concern. Cf. Corporate
Express, 292 F.3d at 781 (addressing challenge to the Board’s
decision as being inconsistent with that of a regional director
in another case and stating that “the decision of a Regional
Director does not bind the Board”). Accordingly, we find
Friendly’s argument that the regional director’s decision con-
stitutes evidence of arbitrariness to be misplaced.
Moreover, Friendly’s reliance on Veteran’s Cab is flawed
because Friendly exercises substantially more control over its
taxicab drivers than Veteran’s does over its drivers. The
weekly gate charged by Veteran’s to its drivers depends
solely on the type of cab they drive (city cab, airport, or clean
natural gas) and does not vary from driver-to-driver based on
discretionary factors such as driving record or driving ability.
See Veteran’s Cab Corp. & East Bay Taxi Drivers Ass’n,
9
We note that this review is far from a “rubberstamp.” In affirming the
regional director’s decision, the panel disagreed with the decision by the
regional director on the question of whether the voucher system supports
a finding that Friendly’s drivers are “employees.” See Friendly Cab, 341
N.L.R.B. at 722.
196 NLRB v. FRIENDLY CAB COMPANY
N.L.R.B. Case 32-RC-5050, at 3 (Sept. 30, 2002). The
regional director also found that Veteran’s drivers “are free to,
and do, solicit independent business through the use of cell
phones, pagers, etc., and they are free to use their cabs for
personal reasons. They may use the Employer’s dispatch sys-
tem, but are not required to do so.” Id. at 7-8. Veteran’s driv-
ers are also permitted to distribute business cards with their
cell phone and pager numbers. Id. at 4. Drivers are freely per-
mitted to pick up fares from any location including various
taxi stands, hotels and transit stations. Id. at 8. One driver tes-
tified that eighty percent of his business involves picking up
passengers at various train stations. Id. at 4. Thus, the regional
director found that “drivers are not dependent on the Employ-
er’s dispatch system for their income.” Id. at 8. Veteran’s
drivers also have the ability to sublease their taxicabs with
Veteran’s permission, are not subject to discipline for refusing
dispatches, and are not required to abide by a dress code. Id.
at 4-5. Veteran’s also has no rules or limitations on their driv-
ers’ use of taxicabs for personal business or vacation. Id. at
4. In fact, Veteran’s does not maintain any written policy
manual or standard operating procedure. Id.
Thus, we do not find any support for Friendly’s position
that the NLRB’s decision is arbitrary based on the actions of
the regional director in adjudicating the representation pro-
ceedings in this case and in Veteran’s Cab. Even if we could
examine the regional director’s decisions for evidence of arbi-
trariness, we would find that they are sound because Veter-
an’s Cab exercises substantially less control over its drivers.
V. Conclusion
[9] In sum, we conclude there is substantial evidence in the
record to support the NLRB’s determination that Friendly’s
taxicab drivers are “employees” within the meaning of the Act.10
10
Friendly asserts for the first time before this court that the NLRB erred
by not considering Friendly’s airport taxicab drivers separately from its
NLRB v. FRIENDLY CAB COMPANY 197
The NLRB relied on a number of factors that in their totality
compel a finding of employee status, the most significant of
these being Friendly’s prohibition on its drivers’ operating an
independent business and developing entrepreneurial opportu-
nities with customers. Additional salient indicia of control by
Friendly over the means and manner of its drivers’ perfor-
mance include: (1) regulating the details of how drivers must
operate their taxicabs, (2) imposing discipline for refusing or
delays in responding to dispatches, (3) requiring drivers to
carry advertisements without receiving revenue, (4) requiring
drivers to accept vouchers subject to graduated “processing
fees,” (5) prohibiting subleases, (6) imposing a strict dress
code, and (7) requiring training in excess of government regu-
lations. Although some of these factors individually may not
constitute substantial control, the NLRB reasonably con-
cluded that these factors taken together overcame any evi-
dence of independent contractor status. We therefore affirm
the NLRB’s decision.
AFFIRMED.
street drivers. Section 10(e) of the Act constitutes a jurisdictional bar to
this court considering claims not raised before the NLRB. See 29 U.S.C.
§ 160(e) (“No objection that has not been urged before the Board, its
member, agent, or agency, shall be considered by the court, unless the fail-
ure or neglect to urge such objection shall be excused because of extraor-
dinary circumstances.”); see Woelke & Romero Framing, Inc. v. NLRB,
456 U.S. 645, 665-66 (1982) (stating that Section 10(e) of the Act bars the
courts from considering issues not raised before the Board) (citations
omitted).