Pony Trucking, Inc.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pony Trucking, Inc. and General Teamsters, Chauf- feurs, Warehousemen and Helpers, Local 428, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 8-CA-6896 August 3, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on March 8, 1972, by General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 428, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called the Union, and duly served on Pony Trucking, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint on March 23, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 28, 1972, following a Board election in Case 8-RC-8391 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about March 3, 1972, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 4, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 20, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 1, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file a response to I Official notice is taken of the record in the representation proceeding, Case 8-RC-8391, as the term "record" is defined in Secs 102.68 and 102 69(f) of the Board's Rules and Regulations, Serves 8, as amended See LTV Electrosystents, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 Notice To Show Cause and the Union filed a Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, the Respondent contends that the Acting Regional Director arbitrari- ly and capriciously determined, in Case 8-RC-8391, that the owner-drivers and nonowner-drivers, includ- ed in the unit found to be appropriate by him, are employees of the Respondent within the meaning of the Act rather than independent contractors and that therefore their designation, selection, and certifica- tion of the Union as exclusive bargaining representa- tive is invalid. We find no merit in this contention. The record in Case 8-RC-8391 reflects that, after a hearing in which the Respondent participated, the Acting Regional Director issued on December 7, 1971, his Decision and Direction of Election in which he found, contrary to the Respondent, that the owner-drivers and the nonowner-drivers employed by the Respondent are employees of the Respondent within the meaning of the Act and not independent contractors or employees of independent contractors. Accordingly, he found that they constituted an appropriate bargaining unit. On December 20, 1971, the Respondent filed with the Board a request for review in which it argued again that the owner- drivers and the nonowner-drivers are independent contractors and that the Acting Regional Director's determination that they are employees is capacious and clearly erroneous. By telegram dated January 13, 1972, the Board denied the request on the grounds that it raised no substantial issues warranting review. In its answer to the complaint, the Respondent again raises these issues. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly F Supp 573 (D C Va , 1967), Follett Corp, 164 NLRB 378, enfd. 397 F 2d 91 (C A 7, 1968); Sec 9(d) of the NLRA 2 See Pittsburgh Plate Glass Co v. N LR.B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102.67(f) and 102 69(c) 198 NLRB No. 59 PONY TRUCKING, INC. discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. As found by the Acting Regional Director, the record shows that the Respondent, a West Virginia corporation, is a contract carrier, licensed under the Interstate Commerce Commission, which hauls steel products to Pennsylvania , Ohio, and New York. A total of 23 drivers operate trucks for the Respondent. Fifteen drivers operate the equipment they lease to the Respondent, and eight drivers operate equipment leased to the Respondent by the owners of more than one tractor. Fleet owners lease equipment to the Respondent and furnish drivers , but do not drive such leased equipment . The Respondent leases all tractors and trailers and owns no equipment. Owner-drivers who lease both a tractor and trailer to the Respondent receive 77 percent of the gross revenue charged by the Respondent for hauling the customer's product. Those owner-drivers who lease only tractors to the Respondent receive 67 percent of the gross revenue charged. Owner-drivers who do not own a trailer may lease one from the Respondent or other source. The Respondent leases trailers from other companies and leases them in turn to owner- drivers and charges them at a rate of 8 to 15 percent. Adjustment is also provided for in the percentages paid owner-drivers depending upon whether they pr6vide their own tarpaulins and chains to protect and, secure their loads. Alt equipment owners execute individual but identical leases with the Respondent. Each lease provides that the vehicles are for the Respondent's "exclusive possession, control, use and responsibili- ty;" the owner is to furnish competent and physically fit drivers and helpers to operate equipment; the drivers shall cooperate with the Respondent by filing log sheets, physical examination certificates, and accident and other required reports ; either party may terminate the lease at any time after 30 days from its effective date ; "any failure to furnish equipment or any use of equipment by" the owner or by any person other than the Respondent prior to written termination of the lease is a breach of the lease; and the owner warrants that the equipment is in good and safe operating condition and agrees "to submit said equipment for carrier's inspection at the time carrier takes possession and periodically thereafter as required by carrier." The lease further provides that the owner must pay for all repairs, maintenance costs, fuels, wages of drivers and helpers, and public liability and property 687 damage insurance coverage for periods the vehicle is not being operated in the service of the Respondent, although the Respondent pays for the cost of all public liability, property damage, and cargo insur- ance on the equipment while the same is operated in the service of the Respondent ; the owner must make payments for injury to drivers or helpers and damages to equipment whether the same occur while equipment is being operated in the service of the Respondent or not; the owner must pay for the cost of insurance coverage for collision , fire, or other catastrophe ; the owner must pay workmen's com- pensation, unemployment insurance, social security or other similar taxes, and insurance or benefits on the drivers and helpers ; and the owner must make all payroll tax or other deductions required by law. The Respondent pays the axle mile tax where required by state law. Finally, the lease provides that the Respondent may sublease the equipment and is considered the owner during such subleasing. However, the owners are permitted to sublease their equipment only with the Respondent's knowledge and consent and any such unauthorized sublease releases the Respondent from any claims during the period of such unauthor- ized sublease. Pursuant to Department of Transportation and Interstate Commerce Commission regulations, the Respondent requires all drivers to undergo a physical examination if they do not have a currently valid medical certificate. Copies of the drivers' medical certificates and leases are filed in the Respondent's office. The Respondent will not permit a driver to operate a vehicle if he cannot pass a physical examination. The record shows that the Respondent maintains a list of the tractors and trailers and the available drivers on a rotation board and that the dispatcher calls the driver at the top of the list to make an assignment. The drivers pick up and deliver the goods at the designated times . After completing a delivery, an owner-driver who has secured previous authorization from the Respondent may attempt to secure a trip lease for the return trip . A driver's name is again placed on the rotation board as soon as he notifies the Respondent that he has completed his delivery and that he is again available. Some accommodation is allowed those owner- drivers who do not wish to make trips to certain areas. Although drivers may reject a load, there is no evidence that successive rejections are permitted. All drivers are free to choose the route they wish to travel provided they meet pickup and delivery times established by the customer. There is evidence in the record that the Respondent terminated the lease of one owner-driver who violated a state law by driving 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an excessively heavy load across a bridge and also violated D.O.T. regulations by drinking beer within the 4-hour period prior to going on duty. Although D.O.T. regulations require only that the vehicles be periodically inspected, and the lease provides for such inspection, the Respondent at- tempts to inspect each vehicle every 90 days. When defects are discovered, the Respondent instructs the owner to correct such defects. Leases are terminated by the Respondent whenever the owner-drivers fail to correct their personal physical defects or defects in their equipment. Only the Respondent's name, address, and ICC permit appear on the vehicles. The Respondent's rate charges are based on a rate schedule prepared by the ICC and interpretations of that rate schedule by the Respondent's rate clerk. Neither the owner-drivers nor the nonowner-drivers participate in establishing such rates. The Board, in making determinations as to whether an individual is an employee or an independent contractor, has often stated that it will apply the common law right-of-control test. Under this test, an employer-employee relationship exists when the employer reserves the right to control not only the ends to be achieved, but also the means to be used in achieving such ends. However, where control is reserved only as to the result sought, an independent contractor relationship exists. Applying this test to all the evidence relevant to the relationship in this case, we find, unlike our dissent- ing colleague, that the owner-drivers and the non- owner-drivers are employees of the Respondent and not independent contractors. In making such finding, we make particular reference to two cases involving similar facts and issues in which the Board found that owner-drivers and nonowner-drivers were not independent contractors, but were employees.3 We find here, as we did in the Deaton cases, that the Respondent controls the manner and means by which the owner-drivers and nonowner-drivers per- form work for the Respondent by determining the qualifications of drivers, by disqualifying those who are not qualified or fail to pass the physical, by terminating the employment of drivers who violate state laws and D.O.T. safety regulations, by requiring leased equipment to be inspected every 90 days, by its "exclusive possession, control, use and responsi- bility" for all leased equipment for the term of the lease, by reserving the right to sublease such equipment, and by requiring the owner-drivers to request permission from the Respondent before they can sublease their own equipment. The Respondent also requires all drivers to file logs, physical examina- tion certificates, and other required reports; it performs all dispatch services for the drivers; it requires all leased equipment to exhibit the Respon- dent's name and identification number; and it controls the duration of the relationship since the Respondent may terminate the lease 30 days after the commencement thereof. The record contains further evidence of the Respondent's control of the means by which the owner-drivers and nonowner-drivers perform their daily work tasks. The Respondent may terminate those drivers and owners who fail to correct defects in their equipment or have failed to correct personal physical defects. Also, drivers who fail to abide by state and Federal regulations pertaining to both equipment and the driver's personal conduct, may be terminated by the Respondent. The record also shows that the Respondent unilaterally determines the applicable percentages of the Respondent's gross revenue the owner-drivers are to be paid for their trips. We also find here, as we did in Deaton, Inc.,4 that the Respondent, pursuant to its obligation to comply with all ICC and D.O.T. regulations which are applicable in view of its carrier status, must, of necessity, exercise control over the leased equipment, as well as the drivers of such equipment, to a degree sufficient to assure compliance with such regulations. In order to insure such compliance, the Respondent specifically provides for pertinent language in its lease. - We are also aware that in this case there are factors which indicate that the owner-drivers exercise some control in their day-to-day relationship with the Respondent. Such factors include: the owner-drivers make payment for all costs operation, maintenance, repairs, and fuel; the Respondent makes no deduc- tions for social security or Federal or state income taxes; the drivers are paid on a "per trip basis" and are free to choose their own working hours and to hire and pay helpers and drivers; drivers may select their own routes; they may reject a given load; and the Respondent makes payments only to owners of the vehicles and not to the nonowner-drivers. ' Although we have evaluated these factors, we find unlike our dissenting colleague, that they are not controlling. Moreover, we find that the presence of such factors is not inconsistent with our finding that the owner-drivers and nonowner-drivers are employ- ees in view of the Respondent's considerable control over the manner in which and the means by which the drivers are required to perform their work functions. We note, also, that these same factors which our dissenting colleague finds constitute 3 Deacon Truck Lines, Inc., 143 NLRB 1372, denied petition to review 337 F.2d 697 (C.A. 5); and Deaton, Inc., 187 NLRB No. 102. 4 187 NLRB No. 102. PONY TRUCKING, INC. evidence of independent contractor relationship have been raised in prior Board proceedings and found not to be controlling.5 Moreover, we note that the Board has already determined herein that such factors are not determinative of independent con- tractor status since, for the most part, the issues raised by our dissenting colleague in support of a finding of independent contractor relationship have already been raised by the Respondent in its Request for Review of the Acting Regional Director's Decision, and the Board denied that Request for Review. Although our dissenting colleague would rely on Fleet Transport , Company, , Inc., 6 to support his finding that the owner-drivers and nonowner-drivers herein are independent contractors, we find that such reliance is misplaced and that Fleet is clearly distin- guishable. In Fleet, the Regional Director had found in an earlier proceeding that the lease agreement established that the owner-operators and nonowner- drivers were employees and not independent con- tractors. The lease had contained many of the provisions found in the lease in this proceeding; e.g., the employer had exclusive use of the equipment, it required compliance with ICC regulations, the employer unilaterally established commissions paid to drivers, and the employer had the right to terminate drivers who did not comply with the employer's rules. The Board, while finding that the owner-operators were independent contractors, based its finding on the fact that the employer had made significant changes in the lease agreement subsequent to the Regional Director's finding that the owner-operators were employees. Such changes included deletions from the lease of a clause which provided that, when not in use for the employer, the tractor could be operated only for the purpose of effecting repairs or parking or storing; a provision allowing the employer to make all decisions as to consignors, consignees, and customer relations and to designate which trailer would be used by a driver; a provision stating that the tractor was under the direct control of the employer when pulling the employer's trailer; and a clause requiring that the tractor must be lettered and painted as prescribed by the employer. Clearly, neither the Respondent nor our dissenting colleague contends that similar provisions were deleted from the lease agreements in issue herein or that the record contains evidence of changed circumstances following the Acting Regional Direc- tor's decision. Finally, we respectfully disagree with the finding of our dissenting colleague that the factors herein are 5 Chemical Leaman Tank Lines, Inc., 146 NLRB 148, and Western Nebraska Transport Service Division, 144 NLRB 301. 689 indicative of an entrepreneur relationship between the Respondent and the lessors. We note that, by 'definition, an entrepreneur is one who manages and assumes the risks of a business. Here, though the lessors assume many of the risks in the relationship, the Respondent controls most of the meaningful management prerogatives; i.e., exclusive control over the leased equipment; the dispatching of drivers; unilateral determination of the percentages of its gross revenue it will pay the lessors for hauling products; the right to determine which drivers are qualified and whether their equipment is operable; the right to terminate drivers who fail to comply with state and Federal regulations; and the right to terminate the lease if the owner-driver fails to remedy a personal physical defect or a mechanical defect in his equipment. In view of the foregoing, and on the basis of the entire record, we find that the owner-drivers and the nonowner-drivers are employees of the Respondent. We shall, accordingly, grant the General Counsel's and the Union's Motions for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a West Virginia corporation, has its headquarters, principal office, and place of business in Steubenville, Ohio, where it is engaged in the intrastate and interstate transportation by trucks of goods, including, but not limited to, steel products. Annually, in the course and conduct of its trucking operations, Respondent derives gross revenues in excess of $250,000 of which more than $50,000 is derived from the interstate transportation of goods by truck. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 428, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 6 196 NLRB No. 61. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All owner-drivers and nonowner-drivers operat- ing leased equipment out of the Respondent's Steubenville, Ohio, facility, excluding office cleri- cal employees, multiple equipment owners, and all professional employees, guards, and supervi- sors as defined in the Act. 2. The certification On January 21, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 8, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on January 28, 1972, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 3, February 23, and March 3, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about March 3, 1972, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 3, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Pony Trucking, Inc., is an employer engaged-in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Chauffeurs, Warehouse- men and Helpers, Local 428, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All owner-drivers and nonowner-drivers oper- ating leased equipment out of the Respondent's Steubenville, Ohio, facility, excluding office clerical employees, multiple equipment owners, and all professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 28, 1972, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- PONY TRUCKING, INC. tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 3, 1972, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Pony Trucking, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 428, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All owner-drivers and nonowner-dnvers operat- ing leased equipment out of the Respondent's Steubenville, Ohio, facility, excluding office cleri- cal employees, multiple equipment owners, and all professional employees, guards and supervi- sors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a 691 standing is reached, embody such understanding in a signed agreement. (b) Post at its Steubenville, Ohio, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER KENNEDY, dissenting: Because I believe that the owner-drivers and nonowner-drivers involved in this proceeding are not employees of Respondent, I dissent from the majori- ty's finding that by refusing to bargain with the Union for such individuals Respondent violated Section 8(a)(5) and (1) of the Act. Respondent operates under license from the Interstate Commerce Commission as a contract carrier of iron and steel products for three steel producers in or near Weirton, West Virginia. It hauls from the Weirton commercial zone to points throughout Pennsylvania, Ohio, and New York. For its haulage work it uses leased equipment. Fifteen of the leased trucks are operated by the owners thereof; they are known as owner-dnvers. Eight of the leased trucks are operated by drivers supplied by the equipment lessors; these drivers are known as nonowner-drivers. The Union petitioned for an election in a unit of the owner- and nonowner-drivers. Respondent con- tended that the owner-drivers were independent contractors and the nonowner-drivers were employ- ees of equipment lessors. It therefore urged that the petition be dismissed. The Regional Director rejected Respondent's contention, found that all the drivers were employees of Respondent, and directed an election which the Union won. Thereafter, Respon- dent refused to bargain with the Union arguing, as stated in its answer to the complaint, that the Regional Director had erroneously decided that the drivers involved were employees of Respondent. Owner-drivers have absolute ownership of their equipment. Respondent played no part in determin- ing the make, weight, style, or financing of equip- ment furnished by the owner-drivers or other lessors. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The owner-drivers pay for their license fees, gas and oil, vehicle maintenance and repairs, and fire, theft, collision, and other vehicle-related insurance, with- out any restrictions on the part of Respondent. Owner-drivers are paid on a "per trip" basis according to varying percentages set out in the different lease agreements without deduction for Federal or state income taxes or social security. Respondent maintains a board on which the names of available drivers are placed in rotation and from which the drivers are contacted in turn for assign- ments. A driver is free to accept or reject an offered load without penalty. He determines his own working hours and may select his own route for making deliveries, subject to the requirements that he meet the pickup and delivery times established by the customer and that he does not violate Federal or state laws. Provided he receives permission from Respondent, a driver may, handle other hauling business on the return trip and receive the entire income thereof. There are, of course, elements of control exercised by Respondent over the drivers. But, for the most part, these are requirements imposed by governmen- tal regulatory agencies primarily in the interest of safety. In this category are written driver examina- tions, driving tests, certifications of physical fitness, vehicle inspections, and maintenance of logbooks by drivers. Governmental regulations also require that trucks leased by Respondent be identified with a decal naming Respondent as operator and that the lease give the lessee "exclusive possession, control, use and responsibility" of the equipment, the phrase used in the Respondent's lease agreements. There is no single factor which is determinative of whether an employer-employee relationship, rather than an independent contractor relationship, exists between two persons. All the incidents of the relationship must be examined and weighed to decide this question. If one party has the right to control only the end result of the other's labors, the relationship is that of independent contractor; if he has the right to control the means as well as the end, the relationship is that of employer-employee.8 The rule is easier stated than applied. In my opinion, the Regional Director erred in concluding that the owner-drivers and nonowner- drivers are employees of Respondent. The owner- drivers have invested considerable sums in the equipment which they bring to Respondent's service. They pay all the expenses in connection with the operation of this equipment in behalf of Respondent. They determine the hours they will work, decided whether to haul or not to haul a given load, and select the route they will follow in making deliveries. They are free to select substitute drivers and to hire as many helpers as they may desire. In the case of lessors who do not drive their own vehicles, the lessors hire their own drivers and fix their salaries. Respondent makes payments only to owners of the vehicles and not to nonowner-drivers. The above factors indicate that Respondent is not concerned with the means by which the owner-drivers and nonowner-drivers carry out the tasks assigned to them. Whatever control is exercised by Respondent over these two groups is in response to governmental regulations which have been promulgated in the public interest rather than in the specific interest of Respondent and trucking companies similarly situat- ed. Other factors also indicate that the parties did not understand their relationship to be that of employer- employee. Thus, Respondent does not participate in the determination of what wages are to be paid to nonowner-drivers or to driver-helpers. It does not deduct social security or other taxes from the sums paid the lessors. The earnings of the latter are determined by how well they are able to control expenses which, as indicated above, may be consider- able. All of the above are indicative of an entrepre- neur relationship between lessors and Respondent rather than an employer-employee relationship. This conclusion is not weakened by the fact that Respon- dent unilaterally fixes the percentage of trip receipts it will pay to the lessors. Respondent's ability to do so indicates no more than that its economic power exceeds that of the lessors. It is not uncommon in business relationships for the stronger party unilater- ally to decide the price to be paid for a particular product or service. Steel companies for whom Respondent does its hauling may well decide unilaterlaly the tariffs they will pay for such haulage work. Nor is the fact that either party may cancel the lease agreement after 30 days inconsistent with an independent contract relationship. A business rela- tionship, as well as an employer-employee relation- ship may be severable at will. The facts in this case, it seems to me, are almost identical with those in the recently decided case of Fleet Transport Company, Inc., 196 NLRB No. 61, where the Board concluded that owner-operators who leased tractors to a trucking company were independent contractors and that nonowner-drivers hired by the lessors were employees of the independ- ent contractors.9 Accordingly, contrary to the major- ity, I would dismiss the complaint. 8 Fleet Transport Company, Inc, 196 NLRB No. 61 9 See also Reisch Trucking and Transportation Co, Inc, 143 NLRB 953 PONY TRUCKING , INC. 693 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Gener- al Teamsters, Chauffeurs, Warehousemen and Helpers, Local 428, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All owner-drivers and nonowner-drivers operating leased equipment out of the Respondent's Steubenville, Ohio, facility, excluding office clerical employees , multiple equipment owners, and all professional employees, guards and supervisors as de- fined in the Act. PONY TRUCKING, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli-, ance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 513-684-3686.