Central Transport, Inc. And Cc South As Joint Employers

CENTRAL TRANSPORT 5 Central Transport, Inc. and CC South as Joint Em- ployers and Teamsters Local 41, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO. Case 17-CA-14503 July 13, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On January 31, 1990, Administrative Law Judge Marvin Roth issued the attached decision , The General Counsel and the Union filed exceptions and briefs, and the Respondents filed a brief in re- sponse The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge's rulings, findings,' and conclusions, 2 and to adopt the recommended Order The General Counsel and the Union have excepted to some of the Judge's credibility findings The Board's established policy is not to over- rule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in- correct Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Car 1951) We have carefully examined the record and find no basis for reversing the findings 2 In his decision, the Judge states that "the Board has no special exper- tise" in determining whether an independent contractor relationship exists, and charges the Board with "shifting and sometimes inconsistent or irreconcilable results" in decisions in this area Contrary to the Judge's statement, although the Board applies the same common law standards that a court would apply in determining whether individuals are employ- ees or independent contractors and, to that extent, lacks a special claim to expertise (see NLRB v United Insurance Ca, 390 U S 254, 256, 260 (1968)), each case Involves a fact-Intensive inquiry of a kind that the Board has been continually engaged in for more than 55 years Since there is no accepted bright-line test in this area, it is not surprising that differences of opinion may arise on close cases and that courts may some- times disagree with the Board We do not believe such differences fairly indicate any fundamental inconsistencies in the Board's approach or de- tract from its experience-based expertise as a factfinder in this area We also disagree with the Judge's suggestion that Ida Cal Freight Lines, 289 NLRB 924 (1988), on which he partly relied in finding independent contractor status in the instant case, is incompatible with Roadway Pack- age System, 288 NLRB 196 (1988), enfd on other grounds, 902 F 2d 34 (6th Or 1990) Nor do we regard the holding that the drivers in Road- way Package were employees as inconsistent with our finding that the drivers here are Independent contractors We note that unlike the drivers in Roadway, drivers in the Instant case purchase or lease their tractors through sources other than the Respondent, and there is no evidence that the drivers are released from financial obligations for their tractors when their relationship with the Respondent ends, as happened in two instances in Roadway Further, in Roadway, the employer provided drivers with names of replacement drivers to cover for them in their absence, required drivers to wear uniforms they had to purchase, terminated drivers for lateness and failure to report for work, and had in place a grievance-type procedure for drivers In contrast, the drivers in the instant case must find their own replacements, do not wear uniforms, have not been disci- plined even Informally, and have no grievance or complaint procedure ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed David A Nixon, Esq , for the General Counsel Timothy K Carroll, Esq , of Detroit, Michigan, for the Respondents John P Hurley, Esg , of Kansas City, Missouri, for the Charging Party DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge This case was heard at Mission, Kansas, on October 30 and 31 and November 1, 1989 The charge was filed on June 15 by Teamsters Local 41, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) The com- plaint, which issued on July 28 and was amended at the hearing, alleges that Central Transport, Inc and CC South as joint employers (respectively Transport and South and collectively the Company or Respondents) violated Section 8(a)(1) and (3) of the National Labor Relations Act The gravamen of the complaint is that the Company allegedly engaged in unlawful interrogation and threats of reprisal, and terminated its employees Everet Bryant, Bradley Smallwood, Christopher McGuire, and Gregory Callahan because of their union and concerted activities The Company's answer denies the commission of the alleged unfair labor practices The principal issues are whether the alleged discrimmatees were independent contractors or employees of independ- ent contractors and, if not, whether they or any of them were company supervisors All parties were afforded full opportunity to participate, to present relevant evidence, to argue orally, and to file briefs General Counsel, the Union, and the Company each filed a brief On the entire record in this case2. and from my obser- vation of the demeanor of the witnesses, and having con- sidered the briefs and arguments of the parties, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Transport, a Michigan corporation wholly owned by Centra, Inc, a Michigan corporation, is engaged in the over-the-road delivery of freight In the operation of its business Transport annually performs services valued in excess of $50,000 in the delivery of freight directly across state lines South, a Michigan corporation wholly owned by Centra, Inc, is engaged in the local pickup and delivery of freight, with an office and place of busi- ness in Kansas City, Missouri In the operation of its business, South annually performs services valued in All dates are for 1989 unless otherwise indicated 2 Errors in the transcript have been noted and corrected 299 NLRB No 4 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD excess of $50,000 for customers located outside of Mis- souri It is undisputed, and I so find, that Transport and South are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act The par- ties have stipulated, for the purpose of this proceeding only, that in the event that the alleged discrimmatees are found to be employees within the of the Act, Transport and South are a joint employer II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Company's Operations, and Evidence Pertaining to Status of the Alleged Discruninatees As indicated, Transport is engaged in over the road delivery of freight South provides local pickup and de- livery service for Transport, usually in metropolitan areas In 1985 South commenced operations at its Kansas City terminal South Regional Manager Terry Weisman has overall responsibility for South's operations in Mis- souri, Oklahoma, Arkansas, and Texas Dennis Kessmger is the Kansas City terminal manager and reports to Weis- man Joe Bowman was until recently operations manager at Kansas City, functioning as a dispatcher South chose to conduct its operations through owner-operators of tractors, whom it regards as independent contractors Weisman testified that South chose this method of oper- ation because South is a service operation and does not wish to make a heavy investment in equipment Appli- cants wishing to provide driving services are presented with a form "non-exclusive operating agreement with in- dependent contractor," between South and the owner- operator The form agreement is presented on a take-it or leave-it basis, i e, there is no negotiation as to terms One form agreement is executed for each tractor Some agreements indicate that they are effective until canceled Others indicate that they are effective for a 1-year term, renewable yearly Each agreement provides in sum as follows (1) The "Contractor" (i e, owner-operator) is an independent contractor and not an employee, receives no employee benefits, and is responsible for payment of all fees and taxes required by law, (2) the contractor shall not engage in any business which conflicts with the Company's interests or the contractor's contractual obli- gations, (3) the contractor shall provide pickup and de- livery service on a nonexclusive basis, in accordance with the Company's instructions, (4) the contractor has the sole right to hire and terminate and to direct its em- ployees, except as to ultimate delivery However the contractor will replace any driver to whom the Compa- ny objects as not being competent or careful, (5) the con- tractor will furnish a performance bond, (6) the Compa- ny has the right to terminate the agreement at any time and for any reason, (7) the contractor will provide insur- ance, (8) compensation to the contractor is based on mileage (53 cents per mile) plus tonnage per stop (based on a schedule of rates for cargo loaded or unloaded) There is also incentive pay in the form of additional pay- ment for pickups after the contractor has earned $850 in pickup and delivery revenue in a week The contractor also receives a "king pin" rate of $13 for dropping or hooking a trailer without loading or unloading The Company also compensates the contractor for attempted pickups, (9) the contractor rents a two-way radio from the Company, (10) the Company provides trailers, (11) the contractor receives a guaranteed income of $900 per week for the initial 13-week period, or for a 6-week period if his rate is changed, until the contractor attains gross revenue of $900 for 3 consecutive weeks (Driver and tractor must be available for work to qualify for the guarantee), (12) the contractor guarantees that a driver and tractor will be available, and that the owner is the principal driver, and (13) the contractor is required to maintain records of pickups and deliveries on company forms The form agreements only partially reflect the actual relationship between the "contractor" and the Company (unless otherwise indicated, the individuals whose status is in dispute in this proceeding shall be referred to as drivers) Those drivers who signed form agreements do in fact own or lease the tractors which they use in the Company's operations Drivers may obtain financing or lease a tractor from Equip-Lease, a company subsidiary Bradley Smallwood owned one tractor which he pur- chased through Equip-Lease Financing Greg Callahan purchased a tractor which he financed on his own through a bank Everet Bryant owned up to five tractors (the number varying from time to time) two of which were under contract to the Company Chris McGuire, the fourth alleged discrimmatee, falls into a different cat- egory McGuire did not own or lease a tractor and was not signatory to any agreement with the Company In February 1988 Everet Bryant hired McGuire to drive one of Bryant's trucks under contract to the Company Bryant determined McGuire's rate of compensation Bryant initially paid McGuire $350 per week, and subse- quently gave him a raise to $375 Bryant also agreed to pay McGuire 30 percent of his earnings above $900 per week Bryant withheld Federal and state income tax and social security contribution from McGutre's paychecks McGuire's W-2 form for 1988 designated Everet Bryant Trucking as his employer A tractor usually cost be- tween $12,000 and $20,000 The Company preferred, but did not require, the driver-owners to use a single-axle tractor, because they were more economical In fact the drivers used various types of tractors The Company re- quired that the tractors display a company decal when operating in its service, but otherwise there was no uni- form color or design There was no dress code for driv- ers The driver-owners paid their own expenses (cost of truck, fuel, repairs, maintenance, license, performance highway bond, use tax, insurance, and tires) They could if they wished arrange through Equip-Lease to deduct payments for insurance premiums and use tax from their company paychecks (The Company paid the driver- owners on a weekly basis ) There was no other with- holding from company payments Driver-owners made their own income tax payments and social security con- tributions and filed tax returns as self-employed persons They were responsible for maintaining their own trac- CENTRAL TRANSPORT 7 tors They were also responsible for providing a replace- ment driver or tractor, at their own expense, when they or their tractor were unavailable The Company set the rates paid by its customers, and the dnvers had no say in this matter (ICC regulations set only maximum rates for local pickup and delivery of freight ) Regional Manager Weisman testified in sum that the drivers could control their costs by proper maintenance and efficient schedul- ing of their stops As indicated, the drivers were respon- sible for tractor maintenance The extent to which they controlled their scheduling will be discussed at later points in this decision Considerable testimony was adduced on the interrelat- ed matters of working hours, accountability, and restric- tions on outside work Each driver was required to and did fill out and turn in to the Company a daily settlement worksheet These worksheets purported to indicate among other information times in and out of the Compa- ny's terminal, each stop and the time in and out of the stop, weight load for each stop, the appropriate payment formula for each stop, and total mileage The worksheets constituted the basis for calculating the driver-owner's pay The worksheets introduced in evidence reflected daily starting times which ranged from 7 15 to 10 a m, but usually ranged from 7 15 to 8 a m Bradley Small- wood testified that Operations Manager Bowman deter- mined his starting and quitting times, and that Small- wood normally reported for work at 7 30 a m Small- wood testified at one point that he entered only the times he left the terminal on his worksheet, and at another point that he Just wrote in any time and that the work- sheets generally were not accurate Smallwood's work- sheets are inconsistent with his testimony The work- sheets indicate both times in and out, and the columns of times in and out show a precision which indicates that the driver sought to be accurate within a 5-minute span Smallwood further testified that he usually called into the terminal at intervals of 60 to 90 minutes According to Smallwood, in the summer of 1986 Bowman repri- manded him when he called in after taking lunch, be- cause he did not call in earlier Smallwood testified that shortly thereafter at a meeting of drivers, Terminal Man- ager Kessmger told them they had to call in before lunch and leave a phone number where they could be reached At the time the tractors were not equipped with compa- ny two-way radios Smallwood further testified that in February 1988, by which time the tractors were equipped with radios, he completed taking some loads to the General Motors Leeds plant by 1 30 p m, was unable to contact Bowman, and proceeded to lunch After Smallwood returned to the terminal, Bowman demanded to know what he was doing However Smallwood's nar- rative of the incident indicated that Bowman was not upset because Smallwood failed to call in before taking lunch, but because Smallwood allegedly called him an unprintable name Smallwood further testified that in the spring of 1987 Kessmger told the drivers that they had to run railway trailers from the piggyback terminal, and they would alternate weekends doing this work The drivers were reluctant, because this was kingpin work and therefore not particularly remunerative They began doing the work by rotation, but eventually Everet Bryant took all the work Smallwood also testified that one Saturday in September 1986 he hauled a load of fur- niture for a private individual, using his tractor and a company trailer The following Monday Kessinger asked him why he hauled the trailer Smallwood answered that he was testing his tractor, and Kessmger responded that he preferred that Smallwood didn't Smallwood testified that this was the only time that he used his tractor for outside work In view of the fact that Smallwood was using a company trailer without authorization, the inci- dent has no bearing on the question of employee status Smallwood admitted that the Company never told him that he could not use his tractor for outside work Everet Bryant testified that when he began hauling for the Company (December 1985), Kessmger told him he would start work about 7 30 a m, finish about 4 30 to 5 p m, and be available on Saturdays Bryant testified that after about 3 weeks he began coming in at 4 to 4 30 a m to unload inbound trailers At that time the Company did not have a dock contractor, and the drivers performed dockwork for which they were paid an hourly wage In September 1986 the Company retained Jerry Kerr as dock contractor Kerr performs the dockwork with his own employees, and the drivers no longer do this work Bryant testified that since that time he usually arrived at the terminal between 6 30 and 7 a m (before other driv- ers), checked if his trailer was ready, and if it was loaded, he would leave between 7 30 and 8 a m Bryant testified that when he began work Kessmger told him that he was showing too many hours on his timesheet, and he need not indicate the exact starting and ending times Smallwood testified that he was not told what to enter on the sheet As indicated, after 1986 the drivers did not receive any hourly wage There is no legal re- striction on the number of hours a driver may work in local pickup and delivery Bryant testified that dispatch- er Bowman would call him in when he was finished for the day, and would then tell him when he should come in the next morning Bryant testified that when he began hauling for the Company, Bowman told him he could not stop for lunch without calling in and giving a phone number, and could not take lunch if they were too busy Bryant testified that in the summer of 1986 he heard Kessmger reprimand Smallwood for taking lunch with- out calling Bryant further testified that Kessmger repeat- edly complained that Bryant did not call in often enough Therefore Bryant called in hourly, although this was expensive After the Company installed radios in the tractors (winter of 1985-1986), Bryant, in accordance with Kessmger's instructions, continued to call in hourly Kessmger said this was necessary to notify the drivers of pickups and changes in deliveries Bryant would notify the dispatcher of his location and progress Bryant testi- fied that Kessmger and Bowman continued to complain if they could not reach him or if he did not call in hourly Bryant and Chris McGuire testified that occa- sionally, after leaving the terminal in the morning, the drivers would meet for breakfast before proceedmg on their routes As indicated, Bryant at times owned more than the two tractors under contract to the Company Bryant testified that in 1988 he had four tractors, two of 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which were under contract to another trucking firm, Consolidated Transfer and Warehouse (CTW) Bryant further testified that he also used his tractors to haul for other firms and individuals, including trucking firms, and that he sometimes did the dnving, including for Over- nite, a trucking firm Bryant initially testified that he per- sonally did not haul for other customers during Compa- ny working hours, but subsequently admitted that he may have hauled one or two such loads when work was slow In light of Bryant's testimony, it is evident that the Company did not prohibit its driver-owners from using hired dnvers to haul for other firms, including competi- tors, with tractors not under contract to the Company With regard to tractors under company contract, Bryant testified that when he began hauling for the Company Kessmger told him he could do outside work if the Com- pany had no other work and the outside work did not interfere with the company work Bryant testified as to several mstances when Kessmger told him or other dnv- ers not to perform certain outside work Bryant testified concerning the incident involving Smallwood, previously discussed Bryant also testified concerning an incident in 1986 involving driver-owner David Moore Bryant testi- fied that at a meeting of drivers, Kessmger said that Moore was observed pulling a railway container, and he could not do this Moore said he had no other work, and was told he could do outside work Kessmger responded that he could not do outside work during business hours Moore, a General Counsel witness, hauled for the Com- pany as driver-owner from about June 1984 to July 1986 Moore testified with regard to the incident, that on 2 successive days, for about 2 hours in the early afternoon, he hauled a trailer for Container Pool While doing this he left the Company's trailer parked on Container Pool's yard Moore testified that Kessmger said he did not want Moore doing outside work during the day, or he would terminate Moore's contract because Moore was obligated to work for the Company Bryant testified that on one occasion Kessmger told him that the Missouri state police reported that he was hauling trailer homes and boats on the weekend, and he should quit doing this Bryant testified at one point that he used company trail- ers, and at another that he used trailers owned by the boat owners Bryant admitted that he did not have a re- quired intrastate permit to do such hauling Bryant also testified that shortly after the incident involving Moore, Kessmger told him to stop doing outside work at night because other drivers wanted to do outside work during business hours At the time Bryant was hauling railway containers for Container Pool On the face of General Counsel's witnesses' testimony, this was the only incident described by Bryant which did not involve unauthonzed use of company trailers or misuse of trailers Chris McGuire testified that he worked Monday through Friday and on weekends when requested, usually from 7 30 a m to 5 pm unless told differently by Kessmger or Bowman McGuire testified that Bowman told him several times that if he did not like working late or the runs given him, the Company could cancel Bryant's con- tract Greg Callahan testified that when he began hauling for the Company (October 1986), Kessinger told him the hours would be about 7 30 a m to 430 p m, Monday through Friday, but there would be no set hours Bowman told him to call in after each stop The Compa- ny never told him whether he could do outside work Callahan did not use his tractor for outside work How- ever he used his father as his driver replacement, and also to do runs for the Company at night Callahan testi- fied that the Company offered him railway runs on weekends, but he turned them down because he and his father preferred to work evenings during the week The other drivers took turns handling the railway loads, leav- ing the Callahans to handle the evening runs Callahan's testimony with regard to this matter is at least partially inconsistent with that of Bradley Smallwood However when their testimony is viewed together, it is evident that while the Company expected this work to be done, the drivers were given considerable leeway to decide who did the work Eventually the matter was resolved in a mutually satisfactory manner, with Callahan left free to take the evening work, and Bryant, who wanted all the work he could get, and had two tractors to do it, talung the weekend railway runs David Moore testified that Kessmger or Bowman told him his startmg times, which ranged from 6 to 8 a m, and when he was fin- ished (not before 4 pm) If Moore began at 8 a m he would have to load in the evening Moore testified that lunchbreaks were at his discretion, unless there was a "hot load," but had to be reasonable, and he had to report when taking lunch Moore testified that about July 1986 he hired another dnver to operate his tractor while Moore hauled freight for a competitor of the Com- pany Moore testified that Kessmger told him he was ob- served working for someone else, and if he didn't come back and drive his tractor the Company would give his freight to other drivers and let Moore's driver sit Moore terminated his driver As indicated, the driver-company operating agreement requires that the signatory driver be the principal dnver of the tractor Joe Bowman is no longer employed by the Company, and the Company did not call him as a witness Terminal Manager Kessmger was the Company's principal witness Kessinger testified in sum as follows Starting and finish- ing times for drivers depended on normal operating hours of the Company's customers and their priorities If there were no special needs, the Company expected the drivers between 7 30 and 8 a m Normal customer hours for shipping and receiving were between 8 a m and 5 p m The Company required the drivers to be available on customer request dunng the normal workday, i e from about 8 a m to 4 p m Company work had pnonty After the drivers completed their work, they were free to do what they wanted on evenings and weekends Kes- singer admitted that these requirements effectively pre- cluded the drivers from hauling for others during regular shipping hours With regard to David Moore, Kessmger testified that Moore was observed picking up trailers during daylight hours Kessmger objected because (1) he was not then able to contact Moore, and (2) he left com- pany equipment unguarded Kessmger further testified that in 1986 Moore was driving for Bowman Transporta- tion, a competitor of the Company, which would be a violation of their agreement The drivers were required CENTRAL TRANSPORT 9 to call in or maintain radio contact Customers called about shipments, wanting to know when they were coming, and the Company had to keep the driver in- formed Greg Callahan was required to keep in radio contact more often than other drivers The Company maintained a computer link with the General Motors Fairfax plant, which was on Callahan's route This link required constant updating of information on the status of loads The Company would from time to time contact drivers on the road to determine their location Certain days were busier than others Tuesdays and Wednesdays were usually the slowest days The drivers had to be available to meet customer requests If this requirement was met, there was no restriction on the driver's person- al activity When a driver chose to take off, whether for vacation or other reasons, he had to have a replaCement driver available A driver could take off to operate an- other tractor Sometimes another driver-owner would cover for the driver Dock contractor Kerr, who was presented as a company witness, testified that since May 1989 he has also hauled for the Company as a driver- owner (he now uses a hired driver) Kerr testified that as a driver-owner he received messages from dispatch, but was not required to check in or notify the Company when he was taking lunch With regard to the settlement sheets, Regional Manager Weisman testified that the time entries were solely for the purpose of protection in the event of customer complaints The sheets contain spaces for entry of notation of evaluation of the dnvers, includ- ing productivity, need for improvement, need for greater sales effort, and recommendations However no evidence was introduced to indicate that these spaces were ever used In the absence of evidence to indicate that the time entries served any other purpose, I credit Weisman's tes- timony in this regard Weisman also testified that since 1987 or 1988, the settlement sheet information serves as a backup for driver invoices, which the drivers submit weekly, and which simply purport to constitute bills for moneys owed to the drivers In order to resolve certain conflicting testimony con- cerning the extent of company control over the drivers, including availability for weekend work, it is necessary to consider the contractual guarantee to the drivers As indicated, the driver operating agreements provided that the drivers could be eligible for a $900-per-week guaran- teed income under certain limited circumstances The form agreements indicated that the guarantee would be available only for relatively short periods of time In practice, the guarantee was made available over longer periods Bradley Smallwood testified that he was on guarantee on and off; during periods when business was slow, for about 2 years When on guarantee he had to be available for Saturday work or lose one-sixth of the guarantee Smallwood and Everet Bryant testified in sum that the dnvers were required to make sales calls for the Company as a condition of the guarantee They testified concerning a meeting of drivers in early 1986 Kessmger told the drivers they did not indicate enough sales calls, e, soliciting business, on their settlement sheets, and had to make more in order to get the guarantee When one driver protested that he was a contractor and not a sales representative, Kessmger simply repeated his state- ment It is undisputed that the Company issued company business cards to the drivers Smallwood's card described him as a "city contractor," and Bryant's card described him as a "Driver-Salesman" Regional Manager Weisman testified in sum as follows The Company extended the initial 13-week guarantee to all drivers during slow pen- ods, in order to generate new business and assure that drivers would be available on a daily basis If drivers were under guarantee, the Company required that they be available to meet customer calls, and for Saturday pickup and delivery, and to make sales calls However the guarantee has not been used in Kansas City for the past 2 to 3 years None of the drivers testified that they were required to accept the guarantee, or were required to make sales calls or be regularly available for weekend work when they were not covered by the guarantee Considerable testimony was adduced concerning the matters of order of runs, assignments within routes, and deviations from routes The Company gave each driver an assigned route Bradley Smallwood testified in sum as follows Operations Manager Bowman determined the order of stops, which was based on the order in which the trailer was loaded At a meeting of drivers m De- cember 1988 Smallwood said that the drivers should be able to make stops at their own discretion Kessmger re- sponded that he would not relinquish his dispatch Small- wood asked dock contractor Kerr why two of his stops (Ford and Riverside seat) were placed on the end He said Kessinger told him to do this On one or two occa- sions Kerr would place the loads as requested by Small- wood, but not Ford or Riverside Smallwood objected to one stop on his route (Central Air Freight) but he did the run anyway He did not want airport runs because they were time consuming Kessmger offered the runs to Everet Bryant, who took them When Smallwood began hauling for the Company, Kessmger told him he had a "protected route" However the route was not protected The Company would dispatch other drivers into his route without his permission if he was tied up elsewhere, or couldn't be reached, or for any reason The Company also dispatched Smallwood to stops outside of his as- signed route Smallwood initially had route 5, which in- cluded General Motors, but was later switched to route 4, which did not include General Motors Nevertheless on several occasions the Company dispatched him to General Motors Smallwood did not like stopping at that plant because of the long delays there He complained several times to Kessmger, who told him that he had no choice, that the Company needed someone to do the run, and that Smallwood should cooperate or the Company would get someone else to do the work However on many occasions Smallwood was able to get out of doing General Motors, which was an important company cus- tomer In February 1988 Bowman dispatched him to Dahmer Sales, which was on route 3 Smallwood pro- tested because Dahmer was in a bad area and he could get stuck Bowman told him that other trucks got in and out, and that Smallwood was needed because no one else was available Smallwood went and his truck got stuck Everet Bryant testified in sum as follows Operations Manager Bowman determined the order of delivenes by 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD giving the bills in the order he wanted them delivered However about 10 percent of the time the drivers could load the trailer their way Bryant's route was changed from day to day, he was dispatched to stops outside his designated route, and he could not decline a run whether in or out of his assigned route In November 1986 he asked Kessmger why he took away interline dehvenes and pickups and gave them to Greg Callahan Kessmger replied that Callahan was complaining about not making enough money, but Bryant was doing all right In the summer of 1987, Bowman directed Bryant to make a stop in Slater, Missouri, outside his route Bowman promised to hold a stop on Bryant's route, which was more lucrative, until Bryant got back Instead he gave the stop to other drivers Bowman explained that the freight got hot, i e, the customer wanted immediate de- livery On several occasions Kessmger informed Bryant that certain "solid load," i e, full trailer load stops on his route would now be handled directly by Transport over- the-road drivers, instead of by transshipment via the Kansas City terminal When Bryant complained, Kes- singer said Transport wanted it this way One day in August 1988, about 430 p m, Kessmger told Bryant to make driver Carl Crow's run to Hamsonville Bryant didn't want the run, but Kessmger insisted he take it, and Bryant went Bryant told Kessmger that he welcomed all work opportunities on a regular basis Eventually Bryant handled all airport and railway runs Chris McGuire tes- tified in sum as follows Bowman assigned him his route, and Kessmger and Bowman frequently changed his route, Including stops outside his assigned route The trailer was loaded in the same order as the manifest However McGuire and other drivers sometimes asked dock contractor Kerr to load trailers in a particular order, or to rearrange loading, and Kerr usually com- plied with such requests Greg Callahan testified m sum as follows He had an assigned route, which was subject to change, and he was pulled off his route almost every- day to make one or more trips On December 12, 1986, he finished a late afternoon run to the General Motors Fairfax plant When he returned to the terminal he was dispatched to take additional loads, all on his route Cal- lahan protested, saying he was ready to go home The dispatcher said he had to go At this point Kessmger ex- plained that paperwork caused the delays, and the situa- tion would improve when they had a better computer hookup Callahan took the runs On December 16, 1987, Bowman told Callahan to prepare a written manifest (cargo information) Callahan refused because the trailer was loaded and sealed, Callahan did not see the trailer loaded (he was out the previous days, and he did not wish to identify cargo of which he had no personal knowledge Kessmger said the driver must make the manifest and, if Callahan did not, Kessmger would get someone else who would Callahan prepared the mani- fest Callahan admitted that he could have prepared the manifest from the freight bills prepared by the shopper, which Callahan had signed Callahan corroborated Smallwood's testimony about the meeting at which Kes- singer said he would not relinquish dispatch, although Callahan testified that the meeting took place in Decem- ber 1987 Callahan testified that in March 1988, Kes- singer told the drivers that at General Motors' request, the drivers would drop trailers at its Fairfax plant instead of unloading As a result the drivers would get only a kingpin rate of $13 instead of payment based on weight (usually $33 50 or $49) The parties stipulated that the cost to General Motors would be the same Martin McGuire, Chris McGuire's brother, was also hired by Bryant and operated Bryant's tractor for the Company from about August to December 1988 Bryant made the same wage arrangements with both brothers Martin McGuire testified that in December 1988 he asked Bowman if he could pick up a load fo CT!, which was on his route Bowman said the load was already gone Bowman refused to say who took the load, adding that was the way it was, and if McGuire didn't like a, he would talk to Bryant about pulling Bryant's contract Carl Crow hauled for the Company as a driver-owner from about October 1987 to December 1988 Crow testi- fied about the December 1987 meeting at which Kes- singer said he would not relinquish dispatch control Crow testified that Kessmger was responding to a ques- tion by Smallwood as to why the drivers could not use discretion as to when to break off making deliveries and proceed to pickups Crow further testified in sum as fol- lows In January 1988 he had an airport delivery among his bills, which was not on his assigned route Crow said he did not want the run, but Bowman said he had to take it One day in March 1988 about 2 30 p m, Crow was at RND, his pnmary and most profitable customer, when Bowman told him to make a pickup at O'Brien Parti- tions Crow protested, but Bowman said he had to go, and someone else would handle RND O'Brien Partitions closes at 3 30 p m , but RND closes at 4 30 p m and will load later if necessary In February 1988 Bowman told Crow to go to Technical for a pickup Crow protested that there was a steep incline and dirt road and he was afraid of getting stuck Bowman said he had to go Crow went, got stuck, and had to be towed In April 1988 Crow took a delivery to Lakeside Hospital He found that this was an inside delivery, which meant moving the cargo about 50 yards from the truck Crow contacted Kissinger, told him there were nearly $100 in delivery charges, and asked what was his share Kessmger an- swered it was $15, according to the contract Crow said he couldn't do it, and Kessmger told him to bring back the load The next day Kessmger, who was visibly angry, asked Crow if he was trying to terminate his con- tract Crow answered he was not, that the contract said nothing about inside delivery Kessmger replied that Crow was still responsible for delivering the freight RND, O'Brien, Techmseal, and Lakeside were all on Crow's route Crow further testified that in March 1988 he complained to Company Supervisor Larry Thomas about having to return to the terminal, at the Company's discretion, to pick up freight for delivery Crow said this caused him to lose money Thomas replied that it was his policy for all freight to be delivered on the same business day it was received at the Company's terminal Former driver-owner David Moore testified in sum as follows On April 14, 1986, after 4 p m, Bowman assigned him to take a hot load to Lipton Tea, which was on his route CENTRAL TRANSPORT 11 Moore said he didn't want to go in rush hour traffic Kessinger said he had to go if he wanted to get paid on Friday Moore went The Company required drivers to complete all deliveries before making pickups Moore an- ticipated making a pickup at Ideal Truck, which was on his route Bowman dispatched him to another stop out- side his route which paid less than Ideal, and gave Ideal to another driver Moore objected to making Thom McAn Deliveries, because it was inside a shopping center and the Company did not pay the drivers the inside delivery charges Eventually all the drivers stopped doing Thom McAn Moore could load his freight in any order he wanted, unless there was a hot shipment However at that time there was no dock con- tractor, and the drivers did their own loading Regional Manager Weisman testified in sum as follows The Company designates "protected" territories in which each driver has prime responsibility However the purpose of this arrangement is to protect the customer e, not the driver), and the drivers are obligated to per- form as dictated by the customer The Company relays information on pickups and deliveries from the customer to the driver The dispatcher sets up the customers by cards within each area, and relays all pertinent informa- tion to the driver Terminal Manager Kessmger testified in sum as follows The dock contractor will load freight in the order requested by the driver Such requests are submitted orally or by note However the Company will note customer requests and needs Sometimes, usually about 3 or 4 times each week, the Company will request a driver to change the order of stops Sometimes, usually less often than once a week, a driver will object to han- dlmg particular loads The dnver might object because of shipper or consignee requirements, need for special handling, or insufficient payment Sometimes, at least once or twice weekly, the Company requests a driver to make pickups or stops outside his territory The Compa- ny can do this Sometimes the driver objects to such re- quests Some drivers, like Bryant, were more willing than others to go outside their territory Drivers fre- quently complain about assignments in their territory to other drivers, because this causes them to lose money When confronted with driver objections, Kessmger try to persuade the driver to take the assignment If un- successful, Kessmger will use another driver, use an out- side cartage company (which he has done some 6 to 12 times, at the rate of about $25 per hour), or he will take the load himself (which he has done some 30-50 times) At the December meeting of drivers, Smallwood asked why the drivers could not decide when to stop deliveries and commence pickups Mondays were very busy, and the drivers wanted to carry over some freight to Tues- day Kessmger responded that the Company must pro- vide service to its customers, and must deliver all freight everyday if possible, or else lose customers Kessmger told the drivers that he did not want to relinquish dis- patch control Kessmger testified that it was the Compa- ny's policy to try to handle all freight within 1 day, and he would do everything possible to achieve this goal With regard to the change at General Motors' Fairfax plant, this was done at General Motors' request Calla- han's father had been a supervisor at the plant The plant manager complained that someone was manipulating re- ceiving so that Callahan and his father got the most un- loading, and this was causing internal dissention There- fore General Motors requested that the trailers be dropped instead of unloaded In the absence of contrary evidence, I credit Kessmger's explanation Except to the extent indicated, Kessmger in his testimony did not ex- pressly contradict the testimony of driver witnesses con- cernmg specific incidents involving order of runs, assign- ment within routes, and deviations from routes Dock contractor Kerr testified in sum as follows As dock con- tractor he has two full-time and six part-time employees They break inbound loads, distribute them to the routes, and load the trailers Each truck makes an average of from 10 to 20 stops per day, Monday being the busiest day Either Kerr or his employee will set up the order of freight, to assure an orderly procedure The drivers may give preferences (some more than others), or request changes in order of loading Kerr and his employees are aware of driver preferences Kerr has honored such re- quests by Smallwood, Bryant, and other drivers (Calla- han usually hauled a solid load ) The Company does not direct order of loading except to meet an appointment, e, when a customer requests a specific tune for deliv- ery Testimony was also adduced concerning the extent to which the Company exercised control over drivers hired by driver-owners As indicated, Bryant was the only al- leged discrimmatee who used hired drivers on a regular, full-time basis (Callahan used his father to drive eve- nings and as a temporary replacement, and Smallwood used only a temporary replacement ) Bryant testified that as late 1986 the Company agreed to place a second trac- tor under contract, and in March 1987 he commenced using a second tractor to haul for the Company Bryant testified in sum that he hired a succession of drivers to haul his tractor for the Company, that Kessmger told him with respect to some six of these drivers that their performance was unsatisfactory and/or unacceptable to the Company and that as a result he either fired the driver, or the driver quit after Bryant told the driver of the Company's complaints However the Company did not complain about or reject all of Bryant's drivers The Company did not reject Chris or Martin McGuire, or Brad Schones, who drove for about a year, or Mark Keifer, who drove for some 6 to 7 months Bryant gave contradictory testimony with respect to one Ed Dawson Bryant testified at one point that he fired Dawson after 1 or 2 days because the Company said his work was unsat- isfactory At another point Bryant testified that Dawson drove for him in 1989 until Dawson voluntarily quit Bryant also indicated in his testimony that he did not always react in the same manner when the Company told him a driver was unsatisfactory Bryant immediately terminated Alan Robmett and Joe Rhodes However he spoke to Roderick Mansaw several times about his per- formance before terminating him In 1987 Bryant was laid up with a broken ankle and drove only 1 to 2 weeks Chris McGuire drove one tractor and (apparently) Ed Dawson drove the other Bryant testified that about April 1, 1989, he removed one truck from service How- 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ever on April 24, 1989, the day of the alleged unlawful terminations, both Bryant and Chris McGuire reported for work Therefore it is evident that Bryant either an- ticipated using two tractors, or using one with McGuire as driver Therefore, I do not agree with General Conn- sd's suggestion (Br fn 2) that as of April 1989 the ques- tion of Bryant's possible supervisory status was moot Chris McGuire testified that Bryant interviewed him and discussed his experience before hiring him McGuire fur- ther testified that operations manager Bowman gave him his papers and assigned him his rate, and that he usually saw Bryant at work once or twice a week, specifically, when Bryant paid him and if and when his truck broke down However Bryant told him to take all the loads he could handle Terminal Manager Kessmger testified in sum that he informed Bryant about problems with hired drivers, and specifically, repeatedly told him about prob- lems with Rodenck Mansaw, finally telling Bryant that he had to do something about Mansaw However Kes- singer testified that on only one occasion did he actually request Bryant to replace a driver On that occasion a driver showed up who had no expenence baclung up a trailer The driver took 90 minutes to accomplish this task B The Union's Organizational Efforts, and the Alleged Unlawful Conduct In 1986, the Union filed a petition for a Board-con- ducted election among the Company's drivers and dock personnel (Case 17-RC-9891) On December 24, 1986, following a hearing, the Regional Director issued his De- cision and Order, concluding that the drivers and Kerr were independent contractors, and therefore dismissing the petition The Regional Director based his conclusion with respect to the drivers, in sum, on his findings that the drivers determined their own work schedules and de- livery routes within assigned areas, if they covered their necessary pickups and deliveries they were free to go elsewhere, the contracts with South created an independ- ent contractor relation, and the driver provides his own insurance, pays his own taxes, including Social Security, and provides a replacement vehicle and obtains a substi- tute driver if necessary, all at his own expense The Union was not represented by counsel at the hearing, and did not present any witnesses, but cross-examined the Company's two witnesses In early 1988 the Union demanded that the Company recognize it as bargaining representative of the Kansas City drivers, claiming that it had authorization cards from the drivers When the Company failed or refused to extend recognition, the Union sought recognition through the grievance procedure of Teamsters' national contract with Transport The grievance proceeding re- sulted in a deadlock, which in effect precluded a con- tractual resolution of the matter and left the Union free to use alternative procedures By letters dated February 8 and April 6, 1989, the Union notified the Company of its intention to strike in furtherance of its demand for recognition Upon receipt of these notices, Regional Manager Weisman and Terminal Manager Kessmger asked Smallwood, Bryant, Chris McGuire, and Callahan each whether they would cross the Union's picket line Each driver answered that he would not Weisman and Kessigner told each driver that in that event he could or would be terminated, or that his contract would be can- celed The complaint alleges that the Company thereby violated Section 8(a)(1) by interrogating and threatening employees From April 18 through 21, 1989, the Union picketed the Company's Kansas City terminal All four drivers honored the picket line, and Smallwood, Bryant, and Callahan participated in the picketing On April 22 the Union advised the drivers to return to work On April 24 the drivers reported to the Company's terminal, but the Company did not permit them to enter By let- ters to Smallwood, Bryant, and Callahan, the Company •• informed each that his operating agreement was termi- nated Kessinger testified that the Company terminated them because by honoring the picket line, they failed to fulfill their contractual obligations Kessmger testified that the Company did not terminate McGuire, i e, that McGuire could not haul because Bryant's agreement was terminated The complaint alleges that the Company vio- lated Section 8(a)(1) and (3) by terminating all four driv- ers because of their union and concerted activities C Analysis and Concluding Findings The threshold and principal issue in this case is wheth- er Smallwood, Bryant, and Callahan were mdependent contractors or company employees, and if mdependent contractors, whether Chris McGuire was employed by Bryant or the Company For the reasons which will be discussed, I find that Smallwood, Bryant, and Callahan were independent contractors, and that McGuire was an employee of Bryant In determining whether individuals are employees or independent contractors, the Board is required to apply the common law of agency, and specifically, the "right- of-control" test Under this test, an employer-employee relationship exists when the employer reserves not only the right to control the result to be achieved, but also the means to be used in attaining the result On the other hand, where the employer has reserved only the right to control the ends to be achieved, an independent contrac- tor relationship exists The resolution of this question de- pends on the facts of each case, and no one factor is de- terminative NLRB v United Insurance Co, 390 U S 254 (1968), Precision Bulk Transport, 279 NLRB 437 (1986) As this test is one of common law, the elements to be considered do not include effectuation of the purposes of the Act Indeed, in United Insurance the Court made clear that this was the intent of Congress Also, as the test is one of common law, the Board has no special ex- pertise in this area which warrants judicial deference North American Van Lines v NLRB, 869 F 2d 596 (D C Cu 1989) Rather it is the Courts who are the experts on the common law This factor probably accounts in large part for the many cases in which courts of appeals have reversed Board determinations that individuals were em- ployees rather than independent contractors, particularly in the trucking and taxicab industries Also, as the test is one of common law, one might reasonably expect a fairly consistent pattern of Board decisions m this area over the years, particularly in light of the fact that both CENTRAL TRANSPORT 13 the Board and the Internal Revenue Service (IRS) are required to apply the same standard Therefore, theoreti- cally at least, both agencies should reach the same con- clusions in dealing with the same fact situations In prac- tice, as we know, this has not been the case Board deci- sions in this area have been characterized by shifting and sometimes inconsistent or irreconcilable results, usually but not always depending on the Board's composition Therein lies the fallacy of General Counsel's position in this case In arguing that the alleged discrmunatees are company employees, General Counsel relies substantially on the authority of pre-1983 Board decisions, while almost totally ignoring court decisions and post-1982 Board decisions General Counsel relies principally on Capital Parcel Delivery Co, 256 NLRB 302 (1981), while ignoring the subsequent history of that case I agree that Capital Parcel should be regarded as authority on the kind of fact situation in the present case, but I do not rely on the above-cited decision The Ninth Circuit Court vacated that decision and remanded the case for Board consideration in light of Merchants Home Delivery Service v NLRB, 580 F 2d 966 (9th Cir 1978), which also reversed a Board decision (230 NLRB 290) relied on by General Counsel The Board accepted the remand as the law of the case, applied the right-to-control tests set forth in the Restatement (Second) of Agency, 220 (1957), coupled with examination of entrepreneurial indicia, and on the basis of this analysis, found the owner-operators in question to be independent contractors (269 NLRB 52) Subsequent Board decisions indicate that the Board did not simply accept the court's view as the law of the case, but continued to follow on analysis which was par- allel to and compatible with the court's approach See Precision Bulk Transports, 279 NLRB 437 (1986), Con- tainer Transit, 281 NLRB 1039, 1050-1058 (1986), and Ida Cal Freight Lines, 289 NLRB 924 (1988), citing Preci- sion Bulk and Container Transit as authority Each of these cases involved arrangements comparable to those in the present case, and in each the Board found the drivers at issue to be independent contractors or employ- ees of independent contractor drivers North American Van Lines, 288 NLRB 38 (1988), which suggests a differ- ent approach, was a short form Board decision which the District of Columbia Circuit Court subsequently re- versed (869 F 2d 596) But see Roadway Package System, 288 NLRB 196 (1988) Although Ida Cal was decided shortly after Roadway Package, and by the same panel, the Board in Ida Cal made no reference to Roadway Package Applying the standards set forth in Capital Parcel II and followed in Precision Bulk Container Transit, and Ida Cal, I find that the signatory driver-owners were inde- pendent contractors and that the drivers whom they hired were their employees Many of the facts which demonstrate this status are undisputed The driver- owners voluntarily signed agreements by which they ac- knowledged and accepted their status as independent contractors See Capital Parcel, 269 NLRB at 54 In this regard, the unequal bargaining power as between the Company and the drivers is immaterial North American Van Lines, supra, 869 F 2d at 599 The driver signatories owned or leased their own tractors, which involved a substantial investment on their part Bryant owned or leased from two to five tractors, and when he had more than two, he regularly used them to haul for other firms, including competitors of the Company The size and scope of Bryant's operations tend to indicate that he was engaged in a haulmg business The Company imposed no requirements on the size or type of tractor used (al- though the Company had its preference) and required no uniform color or appearance, except to display a compa- ny decal when engaged in hauling for the Company The drivers were not paid an hourly wage, but were paid by the job plus compensation for mileage The driver-signa- tories paid their expenses, were solely responsible for mamtammg their tractors, and paid their own Federal and state income taxes and made their social security contributions as self-employed persons They kept their own books and records They were not subject to any dress code As they were responsible for maintaining their own tractors, the drivers could at least to this extent control some costs and thereby enhance their income The drivers could also enhance their income, like Callahan, by hiring another driver to perform evening work, or like Bryant, to add another tractor or hire another driver to do weekend work These are in& cia of entrepreneurial status The evidence indicates that working hours were dic- tated by the needs of the Company's customers Normal delivery and pickup hours ran from about 8 a m to 4 pm The Company did not care what time the drivers checked into the terminal, and when or how many breaks they took, or for how long, provided that the drivers were available to meet the needs of its customers The evidence indicates that the drivers checked Into the Company's terminal at varying times, and took breaks at varying times, all at their own discretion, subject to the needs of the Company's customers Insofar as the Com- pany exercised control over the working hours of the drivers, that control was addressed to ends to be achieved, i e, customer service, rather than the means to achieve that result, i e, a determination by the Company that the drivers be on duty during fixed periods of time, without regard to the need for particular pickups and de- liveries The same is also true with respect to account- ability The nature of the Company's business required that the drivers remain in regular contact with dispatch in order to promptly meet the needs of the Company's customers, which needs were subject to change It is true, and the Company so admits, that the nature of the Company's business precluded the drivers from engaging in noncompany hauling during weekdays It is also true, and the Company so admits, that the drivers' working hours, assignments, order of runs and changes in assign- ments, were to a significant extent dictated by the Com- pany's policy of sameday delivery However this was an essential element of the Company's business, i e, the end to be achieved rather than the means to achieve that end As indicated, the drivers were required, as a condition of receiving a guarantee, to be available for Saturday work and to solicit business for the Company The fact of a guarantee does not in itself demonstrate employee status Capital Parcel, 269 NLRB at 54 But see Roadway 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Package, supra Moreover, the guarantee arrangement was voluntary The drivers were not required to accept the guarantee and the conditions which come with it As indicated, the guarantee system was not in use at the time of the alleged unfair labor practices The evidence indicates that absent a guarantee, the drivers were usual- ly free to engage in outside hauling on weekends In practice, such opportunities were limited, because the drivers could not use company trailers for hauling, and were subject to state restrictions governing such hauling However such restrictions do not demonstrate employee status With regard to assignments, the evidence indicates that from a long-range standpoint the Company and the drivers worked out arrangements to accommodate the drivers' preferences Thus, Bryant eventually took the airport and railway runs, which involved weekend work, and Callahan took evening work, using his father as driver It is also significant that the Company eventually stopped using its driver-signatories to make inside deliv- eries because they were unable to reach agreement on terms of compensation This fact tends to corroborate Kessinger's testimony that he sometimes used alternative methods of delivery when he could not persuade drivers to handle particular runs The Company was less tolerant of driver unwillingness to handle runs on their designat- ed routes, or to accept deviations from their routes These deviations usually involved changes in order to meet customers' changing needs or requirements, or changes needed to effectuate same-day delivery The Company had no disciplinary procedure Insofar as the Company exercised coercion over the drivers to achieve compliance with dispatch, such coercion usually took the form of telling the driver that the Company would get someone else to do the run, or threatening to cancel the driver's contract The Company had no training program for drivers Rather the evidence indicates that the Company expect- ed that its drivers, whether signatories or hired by signa- tories, would be skilled, experienced drivers who did not require training or supervision over the performance of their work The evidence also demonstrates an employer- employee relationship as between the driver signatories and their hired drivers The driver-signatories independ- ently selected their hired drivers, set their rates of pay, assumed full responsibility for paying the hired drivers, counseled them concerning unsatisfactory work perform- ance (as in the case of Bryant and his hired driver Mansaw), and terminated hired drivers As indicated, the Company informed a driver signatory when it regarded the performance of his hired driver as unsatisfactory If the Company remained of this view, the signatory invari- ably terminated the hired driver However as discussed, the driver-signatory exercised discretion in deciding whether to first attempt counseling his driver On the job the Company exercised the same kind of control over hired drivers as over driver-signatories, namely, through the dispatch procedure The testimony of the four al- leged discrimmatees indicates that the Company was less tolerant of McGuire's dislikes than the dislikes of the driver-signatories McGuire testified in sum that when he complained about dispatches or working late, Bowman would tell him that the Company could cancel Bryant's contract However Bryant told both the Company and McGuire that he wanted as much work as he could get Therefore the Company was in effect carrying out Bry- ant's preference It is also significant that Bowman did not threaten McGuire that he would be terminated Rather Bowman spoke in terms of Bryant's contract As indicated, McGuire testified that dock contractor Kerr usually complied with driver requests that trailers be loaded in a particular order If Kerr honored such re- quests by a hired driver, then it is probable that he did likewise for driver-signatories Therefore I credit Kerr's testimony that the Company did not direct the order or loading except to meet an appointment, i e, to achieve the end result rather than to establish a means for achiev- ing that result The drivers were engaged in performing the Compa- ny's regular business, and the driver-signatories hauled for the Company on a long-term basis However these factors were also present in Capital Parcel, Precision Bulk Transports, Container Transit, Ida Cal Freight Lines, and North American Van Lines I recognize that one may recite a long list of factors in any pair of cases, in no par- ticular order, and declare on the basis of a few differ- ences that the cases are distinguishable The fact remains that the cited decisions involved arrangements which were substantially similar to that in the present case In each of the cited cases, the Board or reviewing court ul- timately determined that the drivers were independent contractors or employees of independent contractors 3 As Smallwood, Bryant, and Callahan were independent contractors, it follows that the Company did not violate the Act by terminating their contracts, thereby dispens- ing with their services, or by threatening or interrogating them as alleged in the complaint The Company did not terminate McGuire Rather, McGuire no longer hauled for the Company because the Company canceled his em- ployer's contract The allegations that the Company un- lawfully threatened and interrogated employees, present a closer question insofar as they involve McGuire be- cause the Company was an "employer" under the Act and McGuire was an "employee," albeit not the Compa- ny's employee I find that the alleged threat was ad- dressed to the business relationship between the Compa- ny and Bryant, and therefore did not constitute a threat of unlawful termination The alleged mterrogation had a legitimate purpose, namely, to determine whether Bryant intended to fulfill his contractual obligations, and there- fore was not unlawful CONCLUSIONS OF LAW 1 Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 In finding that the drivers were not company employees, I have con- sidered but not relied on the representation decision in Case 17-RC-9891 The findings in that proceeding were based on an inadequately developed record See Air Transit, 256 NLRB 278, 279 (1981), revd on other grounds 679 F 2d 1095 (4th Cu- 1982) CENTRAL TRANSPORT 15 2 The Union is a labor organization within the mean- On these findings of fact and conclusions of law and mg of Section 2(5) of the Act on the entire record, I issue the following recommend- 3 Everet Bryant, Bradley Smallwood, and Gregory ed4 Callahan were at all times material mdependent contrac- tors, and Christopher McGuire was an employee of ORDER Bryant The complaint is dismissed 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses