and the drivers out of independent contractor are that of employees that for the limited purpose of and all of the under the the act and therefore the ability to vote to be a union the reason we're here today is although the and a large b board has very broad discretion in this issue and we can see that it cannot arbitrarily treat similar situations in dissimilar ways and i'm quoting from the carnation from the circuit merely asserting that circumstances are unique or unusual does not provide the proper guideline for future exercise boards discretion nor does it provide a petitioner with an explanation of why his case is being treated in a certain from carnation where the advertisements were actually for carnation there an argument can be made that both the company and the drivers are benefiting from promoting carnation here there are no benefits to  ahead of their advertisements in cedar but there's no evidence in this record of how much revenue that generates whether it's one percent or point one percent the law allows that a little amount to compensate go to the employer without creating an employee employer it's whether it's a significant amount and there's nothing in this record that would allow either the hearing officer or this court to say that it met that that threshold fundamental truck is sent to a client of the company taxicabs your honor the vast majority of players are individuals when you think that that's not true because i frequently like if i take a cab and i say well you know i'm going to be leaving on friday can i call you to come and pick me up can i and the way from a cab drivers can take that business i have to give out a friendly card and say call you know say i really like that cab driver i've had you know and i want call from if judge callahan wants her favorite veteran can drive her to pick her up he can give her his cell phone number and she can call him up and say ok john be here at my hotel at five thirty in the yes i can see the point you're on but i think everyone in this courtroom who has taken the taxi i would challenge you to find a driver who doesn't have a cell phone and is usually using it during i don't know i think that is an issue for us to consider on the record before the board before this court that friendly cab has a rule that drivers cannot have cell phones and cannot take reservations for pickups except through the friendly  control big because the law does allow for the employer to make a little revenue from the activity of the drivers the drivers are more productive you can get a little extra revenue for example percentages on credit cards etc what the l ask anyone that's got kids with cell phones you know when you want to control them what do you do you take away their cell phone so i mean that i mean it's it's almost like but not in a lot of people to have cell phones it's pretty intimate raskin danger it's i mean it's a very paternalistic tech you know i mean we all rely so much on our cell phones now that that's one of the most controlling behaviors i can think of in this day and age that conceded that a couple of points number one there are a number of states that are either in the process or have pass laws barring the use of cell phones while driving because it's dangerous california just passed a law that is going to allow cell phones but you have to have an earpiece or bluetooth technology but but here's my point both  friendly most of their business in the high revenue in the high gate vehicles go to the airport when you go to the airport you cannot call ahead for specific you cannot select your driver you take the next  control happens in practice and may be relevant but you you are given the right in your contracts to a substantial amount of control over what these cab drivers do with all due respect your honor i really must disagree when we lease the cab and the driver hits the end of the driveway they make a left they may go right they may go to a taxi stand they may go to the hilton if they have an airport permit they may decide to go to the airport there is i would suggest the court that the vast majority of revenue is derived from airport drivers for picking up fares of the revenue and taking them to their location that in fact most of those drivers return empty to go back to the airport to get the next fare that the street drivers go to businesses hotels and city doesn't pay the tax it stands that's for the vast majority of the revenues generated i can see that there are drivers that have some regular business calling cellphones colin what about don't mess around with and mr singh moonlighted is a taxi driver so they work their way up from the bottom by their own bootstraps and the taxi industry i don't say this is an exact portrait with ever seen the t v show taxi there's an interesting character in the taxi industry it's difficult business to manage but both veterans and friendly are mandated by the city to have a fleet manager to keep the fleet under control if you look and i we spent some time in our reply brief with the if you look at each and every aspect of control be addressed be at cleanliness food how many times you wash the car everything is laid out by either an airport regulation or the oakland regulation the only difference with my company is we actually amalgam eyes these rules and put them into the manual and standard operating procedure so the drivers would have them and effectively were being analyzed for that i can see the cell phone issue but where the rubber meets the road it's just not that big of a deal that's not that much control and there's nothing in this record to suggest that it's a lot of control yet you had mentioned and i gather that there is nothing in the record to indicate a friendly can't driver what percentage of this business is done cruising or at taxi stands versus being given assignments to the dispatcher is that correct that is correct and i would suggest the very talented lawyers for the union who handled the representation hearing had that evidence that the drivers for example of veterans were generating thirty percent of their income on cell phones that would have come in and you'll find it interesting in the record that of the four or five driver witnesses there's no question such as isn't it true you can't use your cell phone or that it's thirty percent of your business there's simply nothing in the record and the cold hard facts is the truth which i think play some role in this process is that it's not a large percentage of their income and in fact the friendly drivers as the the lease was written before cellphones became as prevalent as they are today things change should my clients updated the leas or taxi stands as opposed to being assigned by the friendly had dispatch center i will concede that i don't think there is evidence either one way or the other on what the percentage are but if it's this hearing officer was relying on control and i can see that one difference between my company and my competitors is this whole cell phone issue i think that in a minimum they would need to be in the michael my client's dispatch yard is just of half a mile away from veterans if we have to adopt the administrative burdens of unionization and following all those proceedings we have an additional costly that we have nowhere to pass on the record is when you start with the strong imprints because there's a flat rate and then there's that their evidence is presented you know don't you have a little trouble pushing the rock up hell just because of some deference that it's allowed terminated right now that's actually from sita what the the dispatcher if a number of calls are not taken the dispatcher can drop them to the bottom of the queue as can the dispatcher of veterans and in the   i remember it was another one of the interesting taxi moment drivers may not discriminate against customers and must provide service in response to any reasonable request and overhauls for services must be conducted over an employer provided communications system drivers may not provide individual business cards or phone numbers of customers or develop their independent relationship with individuals or or businesses that's not funny and i'm looking at the correct procedures and i may be wrong i'm looking at six o two the record i'm sorry manual the the issue of subleasing is very interesting the problem with subleasing is both friendly veterans and see that all provide the liability insurance coverage the difficulty with sudden leasing is if someone sa hey charlie take my cab that sounds reasonable but if charlie has three duis raises an issue both for the insurance company and for the cap company who might have some liability there so  a just not my reading of the record is a both companies required the proposed subleased or to essentially sign at least because the names and driving records need to go through the insurance company and that's to the insurance company to show your license etc that is really not a true sublease it's really a new lease altogether just like my five critical distinctions that differentiate this case from siddha and the other cases relied on by the company and the fully justified the board's finding here and these these critical factors demonstrate that these cab drivers have no true entrepreneurial opportunities to build a business and that the company controls the manner in which they perform their job first these drivers are not allowed to develop any client base as your honour's pointed out they are not allowed to use cell phones the general manager on page sixteen sixty one of the transcript specifically testified they can't have cell phones they can't use cell phones whether the cab is the can't have them period and they can't  he said so there's no reason to have cell phones why would they have cell phones and that's this testimony they can't give out their own business cards they can only give out the cost the company's cards they can't give out any type of contact information for themselves and if they can't truly build their own customer base how are they going to run a business of their own second they have to accept the dispatches from the company they cannot refuse calls the standard operating procedures on page six zero one of the the appendix specifically states drivers must service all reasonable customer calls from dispatchers and there's further testimony in the record that drivers who dare to to turn down a dispatch from the friendly dispatcher are they're not merely moved to the bottom of the list they are on page four forty five one of the cab drivers testified that when he actually pick someone  a fare up the bart station and then had to turn down a dispatch because he already had a passenger he was was not given another dispatch the rest of the day and what's going to how can they run a business if they pick up a customer pick up a fare from either a taxi station or a bart station and then are denied any dispatches the rest of the day so i would say those two factors in combination essentially prevent them from from getting any of their own passengers they'll get passengers exclusively from the company and the third critical factor is the accounts that the company has set up with private corporations the company has numerous lucrative accounts with it with other corporations to take their their employees pilots sometimes packages and other fares and not only are those are the taxicab drivers required to take those account passengers they have to turn over a percentage of the fare to the company a percentage can range from ten to thirty percent of the fair and they would otherwise be taking metered passengers who would pay the full fare to the cab to have to learn this the overflow it is flow and it is unclear from the record how much but i'm down almost shows that shows control in itself the friendly cab can require their drivers to take overflow from a related company they direct them to take these over flow passengers and then they turn around and take thirty percent of the fare and not only does that what about the scrip what does that mean that to me what is as significant is that a company has entered into contracts with municipalities as well r turns out over to the company and the and the company keeps the company no longer a percentage of that is my understanding and other companies do that i would say that that is a critical factor here in directly to the credit card company so that he wouldn't have to give up six percent of that to friendly and that he wasn't able to do that and again although that is a factor that supports control that the taxi driver drivers to take credit cards or not and not all cases do they it is not one of the most significant features and it doesn't necessarily distinguish it from some of the other cases but it is if it is a significant factor in that some companies don't make them pay credit cards and once they do make them take it they have to accept it and then they turn over a percentage to the company and in addition the accounts not only does it hurt the taxi drivers economically but it makes  creates a relationship between the company and the drivers an economic relationship that doesn't otherwise exist in these flat lease relationships and cases such as the city cab of orlando in the d c circuit they will lie on that type of economic relationship to show more control by the company over the taxi cab driver just out and i don't i can't remember it there was mention that they had to go to discrimination training yes as part of that says like how could he be trying to limit its liability to train it to make sure that there are drivers don't do you know they don't want to get sued my understanding is that at least in this area all drivers have to have a certain basic training as required by the municipalities but what what friendly required and this is another important factor is training on its own particular rules and procedures that contrary to the company's assertion do exceed the government regulations and they have more detailed dress code their dress code applies to all drivers not just the airport drivers which we certainly agree the airport drivers have to have a dress code but the airport drivers can only actually drive at the airport every other day and firmly requires them to follow the dress code on all days and it requires the street drivers to follow the dress code as well and they have very specific regulations of their own own rules about how to when to pick up a passenger how to assist passengers how to load luggage how to where to pull up on the curb i mean beyond not pulling up in front of the fire hydrant which nobody supposed to do that but they have detailed rules about don't pull up in front of a pothole and don't do this and those exceed the government regulations and they're required to attend training on their to learn all of these rules and they ri germination of their least if they don't if they don't follow the rules now i can see that there aren't instances in the record where it's clear that people have been fired for or lisa's been terminated for violating some of these minor roles but the standard operating procedures in the paul policy manual flat out say that they can be and and it isn't necessarily that the company has exerted that control but if your policy manual says you can be fired for doing those things you know for not following certain rules that certainly is an aspect of control certain and different their regional director was the one that did the veteran's cap right yes and that wasn't reviewed by the board it was not reviewed by how do you distinguish does that is not a distinction without a difference or what though that is that is the huge i mean the board has not reached any decision on veterans and it cannot it was not there was no appeal to the board take it no request for review is what we call it and unless there is a request from review request for vo it's just an a non presidential regional directors decision that has absolutely no value it is not the  board did not make that decision the board did not review it so you can't argue that the board acted arbitrarily because the board didn't act the board only acted in friendly so the case  is some relevance to what i think and since at least it's persuasive and in some respects but i gather your argument is there are differences between the two cases well first of all the r d could be wrong the board didn't rule on it there's and it never will be appeal but second there are very significant distinctions and i and your honour's have reviewed some of them i mean they those taxi cab drivers can use cell phones they can set up their own calls they can contact the clients can contact them set up their own schedules for pick ups and drop offs they can stop lease to approve drivers during vacation they can refuse refuse dispatch calls without any type of reprisal of punishment it's possible that they could get moved to the bottom of the queue but that's but that's but friendly went far beyond that and they can use the cab for personal business and veterans maintains no policy manual or standard operating procedures  on like friendly and the fifth factor that i think is very significant it has to do with the advertising and it's not merely that the cabs have the advertising on the roof and that the money goes directly the company that's doesn't appear on common but friendly requires their drivers to come in to have that advertising changed during the course of a business day when they would otherwise be driving passengers they can be called in from twenty miles away that can be called in during rush hour they can be called in whenever a friend feels like it to have the advertising change on their roof that can take from fifteen minutes to two hours during which time the drivers are in no way compensated for their lost fa and that is different than any case that certainly that the company relies on no that i'm aware of i'm not aware of any case in which the company exerts such control that it makes them come in to have that done during a time when they'd rather vitalized be working the one last point i'd like to make is that it is the company's burden to prove independent contractor status if they believe that these drivers are independent contractors and so to the extent that they're saying there isn't things in the board a little bit say ok you've met that hurdle they've met that hurdle but to show that first particularly with respect to the cell phones if they're claiming that their drivers really use cell phones then the drivers are up there testifying they said do you have a cell phone in your car do you use your cell phone do you set up customer you know pick ups using your cell phone their general manager specifically testified that they can't have cell phones and that they don't do that  so to suggest that it's there's something else going on the boards part for not being able to point to such evidence is just wrong and the evidence in this record is very clear and strongly supports the board's finding that these drivers have no entrepreneurial opportunities that the company controls the way they do their job and therefore i submit that the board's finding that the company was violated the act by refusing to bargain with this union should be enforced by this court thank you you thank  and what i'd like to discuss here today is how the decision being made by the board interacts with and works with the state law on this now california is considered to be pretty liberal in its protection of employees for the most part just as the actors decide i designed to protect as many individuals as possible as employees which is why there is a presumption that there is and that is there is an employee status and it is up to the party disputing that status to prove the independent contractor status the california test and the reality test i think that makes more sense in this situation because when you look at what actually happens here under a controlled tax you see that well california would say that there's no need to show complete control because there of control based on the nature of the work and the way the work is distributed that would be the just catch system if you have to accept the cost from dispatch then you have a pervasive control over you regardless of what else you call it and we know that drivers have to accept the dispatch because it's an economic reality to have continuing work inside the city of oakland really different from the way veteran cab drivers are treated better in cab drivers do you have the right to refuse the dispatch well i think i think in practice right i mean i think i think both cab drivers can refuse that there may be an economic it's hard to tell just from the veterans records because we just have the decision from the from the regional officer but there was some consequence and went out to the bottom of the dispatch and then went down to the part of the dispatch call as i recall in that veterans that is correct but here there's a way for you to actually wind up being taken off the list for the day altogether not receive any other the requirement of taking the voucher would also be another nature of this control where your lease could basically be terminated for not taking overflow from the company so i think that the control there is prevalent in the much workers compensation and once in a case of an unemployment insurance appeal and in both cases they determined that the care companies are not simply acting as we see agent if they were just acting as leasing agents and did not have any other contact with the driver other than to collect the gate at the beginning of the week then perhaps to review the situation where you have an independent contractor but what you have for the cab companies that were reviewed by the california court of appeals and what you have been friendly is something that's than that in most all look at more than simply the least money that is provided on a weekly basis off of the gate they hold themselves out for public charity that would be the company it's the company's name that's out there it is the company it's friendly that the public call not a particular driver when they're looking for a ride it is the company that maintains a municipal licenses here they're the permits do not actually belong to the individual drivers the driver doesn't have the ability to go out by car and start up their own cab company they have to be going through someone who has that permit and with that permit comes the ticket or control from the company in addition not not neither of the companies that were reviewed by the court of appeals in california more friendly has the ability to survive as a corporate entity doing what it does without the drivers that makes the drivers an integral part of the relationship and under both the federal task the federal commonlaw task as spec second agency and in the california economic realities tests the integral part of the business is actually quite important friendly couldn't do what it does if it did not have these drivers driving on a daily basis under the rules and regulations it's put out the same way it couldn't do what it does if the caps themselves were not maintained and working and that's probably one of the reasons why finally requires the caps to come in on it on a weekly basis for maintenance to keep the when it comes to how do you how drivers are able to build their own business so you would say that there are distinctions but in terms of whether they should be subject to unions or the act you would say they were just they were distinctions without a difference you stated both they both feel they should be studying that veterans should be sitting over there with friendly in my ideal world yet but do you have the right here to to review what happened for veterans i think veterans got pretty lucky that some of that the difference is that it does pass were taken to heart and i think one of those differences actually wound up being highlighted when the board had the opportunity to review friendly in that the board made a additional finding on the value of the vouchers itself and the batches actually came out to be a very important part for the board and we're not mentioning the record in friendly it's what as to their prior to being required to accept it so it takes away a bit of the drop it takes away the driver's control over their own economic losses and gains and it increases the company's control by taking a larger percentage of that doubts are based on the value of the voucher without disclosing that to the driver before they have to accept a run a couple of points there was no way of course for my clients to appeal or challenge the regional directors decision for veterans to the contrary we agree with it we think is right but counsel suggested that veterans got lucky  i would like to think that our rules and procedures and jurisprudence has a slightly tighter standard than that and again going back to carnation you can't be treated just similarly merely because there's unique or unusual circumstances we really have to look at the actual details here and you know we're focusing in the taxi industry look at the other industries for the course of found that you can be an independent contractor namely another industry where soon as you drive your vehicle off the lot you can go home and watch t v for a week you have the freedom as a taxi driver you have the freedom to go wherever you want the the idea that this is that the employer controls the detail of the work turn left turn right look at the brakes there's none of that control here are there some elements of control with with vouchers with percentages on credit cards of course but but i don't see that this regional director or the board had anything in the record talk about the percentages how much control these are just assumptions that were made and i don't think luck and assumptions should control the control the date here of one of the questions to me was there any evidence in the record of the decisions about percentage of work in reading from the veterans decision p b r zero five five nine one driver called as a witness by titian or testified that eighty percent of this business involves picking up customers of various parts stations you know the bart schedule is published you drive to the station you pick up the customers there's no control by the the company on that i think if you look at the record the dispatch systems are remarkably similar and we i think i want to go back to the fundamental point my client does not mind having an union this is not a union busting the top type case here what we object to is being treated differently for parent lease entirely subjective reasons and again i don't think luck should carry the day here i think that this should be remanded for the hearing officer to decide specifically percentages how much money what are the differences here between friendly and veteran if we don't survive that that's fine but i think on this record it leaves a bad taste in my client's mouth that we were treated differently for businesses work side by side but in those instances because employees and one company voted we don't want to be a union for example the auto industry there are plenty of nonunion autos but here we have a situation where if we don't prevail here today we are going into the realm of negotiations and unfair labor practices and all the administrative and legal expenses that entails and none of our competitors under a fixed government sanctioned monopoly where the price of the meter flag is set by the driver testified in veterans that eighty percent of his fares comes from randomly picking people up at the bart station but that's how the majority of the income this reached here and there is an entrepreneurial element to the tax a cafe can you drive off the lot with a go left or right that's based on your experience the more experienced drivers know where the people arcs a little bit like fishing you need to know where to go on the lake whereas what time of bar trains arrive is the convention in town do i go to the hilton do i go to the marion or do i go to the airport at two in the morning  go at nine am these are all subjective decisions that the driver makes and some drivers make a lot of money and some drivers don't make that much money and one final point at least as to the east bay drivers association the very first thing when they won this case what did they do they sued my client for not paying minimum wage not doing this not doing that we spent four years in the in a lawsuit and at the end of the day when we filed a motion for summary judgment they were independent contractors and even fall in o it falls generally there were statements as opposed to california law but i don't think it's consistent i think i don't think it's fair but the reason it's not fair is i don't think it was a reasoned decision and i don't think there's enough in this record to meet the carnation test that because i think all that happened here was the hearing officer decided that there are unique and unusual differences here fine i can see that but the the actual matter of fact the percentages