5-A Because of the difficulty of securing a full complement of regular drivers, these rules and regulations were not always enforced, though the plaintiffs at all times had the right to enforce them.
6. From January 1, 1955 through March 20, 1956 the plaintiffs had the right to hire and discharge drivers in the discretion of the plaintiffs.
7. From March 20, 1956 (the date of the agreement between the Union and the plaintiffs) through December 31, 1957, the plaintiffs had the right to hire all taxicab drivers. The plaintiffs had the discretionary right to discharge any driver during the first 30 days after the driver was hired. After a driver had worked 30 days the plaintiffs had the right to discharge any driver and were required to give the Union notice of such discharge. If the Union challenged such discharge, the differences were to be processed through a grievance and arbitration procedure.
8. The agreement between the plaintiffs and the Union provided for a one-week paid vacation each year for any driver who had worked 44 weeks.
9. The agreement between the plaintiffs and the Union further provided:
'20.1 The Company shall exercise the functions, duties and responsibilities of management. The conduct of the business and the right to hire and fire and to make all other decisions which are the functions of management shall be exercised by the Company without interference or hindrance by the Union or its members. Particularly, but not by way of limitation, the Company shall have the right to schedule the days of work and the hours of employment of its employees, including work on Sundays and Holidays, the latter to be rotated as equitably as feasible among the employees.
'20.2 The Company shall have the right to promulgate rules and regulations concerning the conduct of its employees and the operation of its business, which rules, when promulgated, shall be posted in a prominent place upon the Company's premises.'
10. The plaintiffs had the right to control and direct the drivers, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. The drivers were subject to the will and control of the plaintiffs not only as to what was to be done but how it was to be done.
11. The drivers by agreement received one-half of the meter reading as their compensation, in lieu of a fixed salary.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and the subject matter of this action. Title 28 U.S.C. § 1346(a)(1).
2. By virtue of the right of the plaintiffs to control and direct its drivers as to the details and means of accomplishing the work to be done; the right of the plaintiffs to discharge its employees; and the fact that the taxicabs were owned by the plaintiffs, the relationship between the parties was that of employer and employee. See Treas. § Reg. 31,3121(d)-1(c).
3. The method of compensation did not alter the relationship of employer and employee.
4. The drivers were employees of the plaintiffs within the meaning of Sections 3101 et seq. (FICA) and Sections 3301 et seq. (FUTA) of the Internal Revenue Code of 1954.
5. Plaintiffs are not entitled to refund of the taxes paid on the earnings of the drivers of their taxicabs.
Let an order be entered.
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