Argix Direct, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1017 (N.L.R.B. 2004)

ARGIX DIRECT, INC.
343 NLRB No. 108
1017
Argix Direct, Inc. and Local 11, International Broth-
erhood of Teamsters. Case 22–RC–12480
December 16, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 16, 2004, the Regional Director for Region 22
issued a Decision and Direction of Election in the above-
entitled proceeding in which he found that the Em-
ployer’s truckdrivers (owner-operators) at its Ridgefield,
New Jersey facility are employees within the meaning of
Section 2(3) of the Act.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regulations,
the Employer filed a timely request for review, maintain-
ing that the owner-operators are independent contractors
and not statutory employees.
By Order dated July 21, 2004, the Board granted the
Employer’s request for review.1 The election was con-
ducted as scheduled on July 16, 2004, and the ballots
were impounded.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we con-
clude, contrary to the Regional Director, that the Em-
ployer’s owner-operators are independent contractors
and, therefore, not employees within the meaning of Sec-
tion 2(3) of the Act.2 Consequently, we dismiss the peti-
tion.
Facts
The Employer provides distribution and transportation
services to major retailers under what is known as
“source to store” delivery.3 It picks up shipments at
various sources as directed by its customers and trans-
ports them to one of its two retail sort centers, in James-
burg, New Jersey, and Southgate, California. At the re-
tail sort center cartons are weighed, scanned, identified,
and relabeled for sorting. The Employer then reconfig-
ures these multiple shipments for store deliveries. From
the retail sort centers, the shipments are sent to 40-store
delivery terminals located throughout the country. When
the shipments arrive at the individual store delivery ter-
minals, the cartons are again scanned, weighed, and
sorted by individual retail store. Those reconfigured
shipments are then loaded and delivered to the various

1 Chairman Battista was not on the panel that granted review.
2 In view of this finding, we find it unnecessary to pass on the Em-
ployer’s request to strike the Petitioner’s brief on review or, alterna-
tively, to strike an exhibit attached to the brief.
3 The Employer is a motor carrier subject to the regulations of the
United States Department of Transportation (DOT).
stores by owner-operators. It is the owner-operators who
work out of the Employer’s Ridgefield, New Jersey store
delivery terminal who are the petitioned-for unit of driv-
ers in this matter.4
When the need for Ridgefield drivers arises, the Em-
ployer advertises in local newspapers for owner-
operators. Applicants are required to have their own
truck, 1-year’s driving experience, and a clean driving
record. Once an applicant meets the Employer’s mini-
mum requirements and passes all Department of Trans-
portation (DOT) requirements, which include a back-
ground check, a check of driving record, and a physical
and drug test, the applicant signs a written operating
agreement with the Employer entitled “Retail Delivery
Contractor Operating Agreement.”5 That agreement pur-
ports to establish an independent contractor relationship
between the Employer and the owner-operator and sets
forth all of the terms governing the relationship. Each
owner-operator is presented with the agreement on a
take-it-or-leave-it basis and has no power to negotiate a
more favorable contract.
An owner-operator must own or lease his own truck,
or have authority to drive a truck owned by another
owner-operator. The Employer does not lease any of the
trucks to the owner-operators and does not provide any
financial assistance to the owner-operators to help them
acquire trucks. The Employer’s only requirements are
that the owner-operators’ trucks be no less than 24 feet
long and that they pass a DOT-required inspection.6 The
Employer does not require that the trucks be of any par-
ticular make, model, or color, and owner-operators are
not restricted from placing their names on the trucks. In
fact, a majority of the owner-operators have their own
names, addresses, and/or logos emblazoned on their
trucks. The only identification that the Employer re-
quires the owner-operators to place on their trucks is a
small, DOT-required sign with the Employer’s name and
DOT number. The Employer also requires that a special
“Vaslock” lock be installed on the cargo box of the truck
to help secure the truck’s cargo. The owner-operators
are responsible for paying for all repairs and maintenance
to their trucks, as well as for registration fees, truck in-
surance, and fuel. Owner-operators are provided with

4 Thirty-seven of the store delivery terminals are owned by 20 inde-
pendent companies, each of which has a contract with the Employer.
Three of the store delivery terminals are owned and operated by the
Employer, including the one located in Ridgefield, New Jersey. All of
the factors discussed in this case relate to the Employer’s Ridgefield
operation.
5 Many of the provisions in the operating agreement are mandated by
the DOT.
6 The Employer sometimes accepts 22-foot trucks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1018
the opportunity to park their trucks at the Ridgefield fa-
cility at no cost.7
Five of the Ridgefield owner-operators own 20 of the
approximately 63 trucks that operate out of the Ridge-
field facility.8 Some of these owner-operators drive one
of their own trucks, while others elect not to do so. Each
owner-operator is ultimately responsible for supervising,
paying, withholding taxes, and obtaining workers’ com-
pensation coverage for the drivers they employ. All
drivers are required to sign an operating agreement in-
cluding drivers who work for an owner-operator who
owns multiple trucks. Even though nonowner-operator
drivers must sign this agreement, an owner-operator must
still notify the Employer that such a driver has permis-
sion to drive his truck. Additionally, the owner-operator
will confirm that he or his company remains responsible
for truck insurance, maintenance, repairs, and road ser-
vice for the truck.
DOT regulations require that the Employer inspect
each vehicle. The Employer’s insurance company re-
quires that the inspection be done quarterly. Inspections
are usually done at the Ridgefield facility by a company
named Ray’s Way. The Employer contracts with Ray’s
Way and pays for its services.9 If a truck fails inspection,
it cannot be driven. If repairs are required to bring the
vehicle up to DOT standards, the owner-operator pays
for the repairs. If the owner-operator chooses to have
Ray’s Way perform the maintenance, the Employer will
pay Ray’s Way and deduct the cost from the owner-
operator’s weekly settlement check. The Employer al-
lows such costs to be amortized over several pay periods
and charges the owner-operator interest.10
Owner-operators are required by DOT regulations to
submit proof of truck insurance to the Employer. Since
the owner-operator is carrying the Employer’s cargo, the
Employer provides general liability and cargo insurance
for the owner-operators. However, the owner-operators
must purchase nontrucking liability insurance which
covers damage to the trucks even when not used in the
Employer’s operation. Owner-operators must also have
“occupational accident” insurance, a substitute for Work-
ers’ Compensation coverage required for sole proprietors
by New Jersey law. If an owner-operator is in need of an
insurance provider, the Employer refers him to an inde-

7 Owner-operators are required to leave a spare set of keys for their
trucks with the Employer.
8 The following owner-operators own multiple trucks: Jose Araujo
owns two trucks; Eric Puncel owns six trucks; Diego Varela owns six
trucks; Amauri Gutierrez owns four trucks; and Neal Lindsey owns two
trucks.
9 Each inspection costs the Employer approximately $50.
10 At the time of the hearing, the Employer was charging 5-percent
interest.
pendent third-party insurance carrier named Empire In-
surance who will provide insurance to owner-operators at
a discounted rate. If the owner-operator elects to pur-
chase insurance from Empire, the Employer will deduct
the cost of the insurance from the owner-operator’s
weekly settlement check once a month and remit pay-
ment directly to Empire. Owner-operators are not re-
quired to purchase insurance from Empire, and only 20
do so. The Employer also requires that all drivers attend
DOT-required safety meetings. These meetings are usu-
ally held at the Ridgefield facility on Saturdays.
Each of the Employer’s clients has strict delivery time
requirements, known as “windows,” when each store will
accept the delivery of merchandise. Window delivery
times vary from a few hours to most of the day. To op-
timize the retail store deliveries made by the owner-
operators, the Employer uses a computer program called
“Roadshow,” which develops what the Employer calls a
“unique delivery solution.” Roadshow calculates the
number of packages and stops that can reasonably be
made within a particular service area and prints out a
manifest setting out the deliveries to be made. The road-
show manifest suggests the order that the deliveries be
made, including proposed arrival and departure times for
each stop. Each owner-operator is provided with his own
road show manifest for the day. However, owner-
operators are not required to follow the order of delivery
suggested by roadshow, as long as they make deliveries
within the client’s windows. The roadshow manifest
does not map out the roads to be followed from stop-to-
stop; that decision is up to the owner-operator. The vol-
ume of packages on a route may vary from day-to-day
depending on the volume of merchandise at the Ridge-
field facility.
The Ridgefield facility does not have enough doors to
load out all of the owner-operators at the same time.
Accordingly, owner-operators typically pick up mer-
chandise in two different waves, 5 and 6:15 a.m., de-
pending on how far their deliveries are from Ridgefield
and the window delivery times established by the clients.
Owner-operators arrive at the facility, check in with dis-
patch, pick up a roadshow manifest, and load their
trucks. They must wear the Employer’s uniform and
bear the Employer’s identification badge while on their
route.11 Owner-operators may hire their own helpers and
are responsible for hiring, supervising, paying withhold-
ing taxes, and obtaining the appropriate insurance to
cover such employees. However, the Employer contracts
with an employment agency to provide helpers for

11 The Employer’s customers require these forms of identification
for security purposes.
ARGIX DIRECT, INC. 1019
owner-operators who deliver to stores in Manhattan.
These helpers serve primarily a security function and the
Employer pays their salaries.12
Owner-operators are not assigned specific routes.
Rather, they are generally assigned to deliver in general
geographic areas, such as Manhattan or Queens. Road-
show develops daily routing assignments based on each
day’s scheduled deliveries; owner-operators do not de-
liver to the same stores each day. At the client’s store,
the shipment is unloaded. The owner-operators must
supply their own loading and unloading equipment, such
as power pallet jacks and handtrucks. Labels are scanned
by the owner-operator using a scanner gun provided by
the Employer. If an owner-operator is running late or
has an accident, and will miss a window as a result, he
uses his two-way radio, provided by the Employer, to
call the dispatcher at the Ridgefield facility so that the
Employer can notify the client of the delay. The owner-
operator will also use the two-way radio to contact the
dispatcher if he has lost a carton or has a problem with a
customer, and after his last stop so that the dispatcher can
arrange an unscheduled pickup, if need be. Owner-
operators are not required to make unscheduled pickups,
but most do so when asked. Owner-operators decide for
themselves when to take lunch or other breaks.
After an owner-operator has finished his deliveries, he
returns to Ridgefield and turns in his radio and scanner.
This is done so that the Employer can download the de-
livery information from the scanner into its computer
system and then make the information available to its
customers. They also turn in their roadshow manifests
and proof of delivery documents. If an owner-operator
accidentally loses or destroys any of the Employer’s
cargo, the owner-operator is responsible for paying for it.
Owner-operators are free to elect not to work for the
Employer on any particular day without penalty, pro-
vided that the owner-operator has not previously advised
the Employer that he would be available at such time.
For instance, some owner-operators elect not to accept
routes on specific days of the week, some may take a
week or more off, and some only accept routes during
the busy season. During most of the year, there are not
enough deliveries out of the Ridgefield facility to provide
routes for all owner-operators each day. The number of
routes available also varies from day-to-day within the
week, with Monday and Tuesday being the busiest days
and Thursday the slowest. Thus, for most of the year
owner-operators drive for the Employer fewer than 5
days a week. Under the operating agreement, owner-

12 No party contends that these employees should be included in the
unit.
operators specifically reserve the right to provide ser-
vices for other carriers, and nothing in the agreement
prohibits owner-operators from using their trucks for
personal or other business use. The record reflects that at
least two owner-operators have curtailed their services
for the Employer in order to work elsewhere 1 day a
week.
Owner-operators are paid on a sliding scale depending
on the amount of miles driven per day. However, the
mileage calculation is dictated by the roadshow manifest,
regardless of the actual mileage driven. Owner-operators
who make pick-ups not listed on their roadshow mani-
fests are paid $40 per pickup. The owner-operators’
gross payments from the Employer vary greatly. In
2003, owner-operators who contracted with the Em-
ployer for the entire year earned from a low of
$42,911.68 to a high of $92,129.77. The Employer
charges each owner-operator a weekly $10 fee to cover
administrative expenditures such as random drug testing,
road taxes, and uniforms. The Employer pays tolls, fuel
taxes, and parking tickets for the owner-operators. The
Employer also pays the owner-operators a fuel surcharge
when the price of fuel surpasses a preset average. Such
payments are common in the trucking industry. The
Employer awards three different types of bonuses: a
quarterly bonus of $300, a “years of service bonus”
based on how long the owner-operator has contracted
with the Employer, and a yearly bonus of $1200. The
quarterly bonus and “years of service” bonus are given to
all owner-operators. The yearly bonus is given in full to
those owner-operators who have contracted with the
Employer for a full year and is prorated for those that
have not.
Owner-operators fill out IRS Form W-9, and the Em-
ployer does not withhold income taxes or FICA from
their weekly settlement checks. In addition to various
individuals, the Employer remits settlement checks to
eight companies, some of which are incorporated. The
parties stipulated that each of these companies is paid
through an employee identification number (EIN), rather
than a social security number.
In addition to its owner-operators, the Employer em-
ploys warehouse employees at its Ridgefield facility.
These employees are paid on a salaried basis, are re-
quired to punch a timeclock, receive holiday pay, a
401(K) with profit sharing, paid vacation, personal/sick
time, major medical, and vision and life insurance.
Owner-operators do not receive any of these benefits.
Warehouse employees are also subject to the terms and
conditions of employment set forth in the Argix Ridge-
field employee handbook. Owner-operators do not re-
ceive the employee handbook, but instead are provided
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1020
with a business support guide. This guide contains DOT-
mandated policies and procedures as well as the Em-
ployer’s drug and alcohol policy and various other regu-
lations and responsibilities for the owner-operators. The
owner-operators are required to sign a “Certificate of
Receipt” noting that the owner-operator received the
handbook and “materials describing the company’s drug
and alcohol policy as described in the Federal Motor
Carrier Safety Regulations.”
The Employer’s clients place strict on-time delivery
requirements on the company. Hence, the Employer
reviews the performance of the owner-operators. Its
management at Ridgefield will discuss such issues as
missed delivery windows with owner-operators and urge
them to be more cautious. The Employer keeps a record
of such issues for each owner-operator, and may termi-
nate an owner-operator’s contract for not meeting con-
tractual obligations. If the issue involves a driver who
works for one of the owner-operators, the Employer will
discuss the issue with both the driver and the owner-
operator.
Analysis
Section 2(3) of the Act provides that the term “em-
ployee” shall not include “any individual having the
status of independent contractor.” In determining
whether an individual is an employee or an independent
contractor, the Board applies the common law agency
test and considers all the incidents of the individual’s
relationship with the employing entity.13 See Roadway
Package System, 326 NLRB 842, 850 (1998); Dial-a-
Mattress Operating Corp., 326 NLRB 884, 892 (1998);
and Slay Transportation Co., 331 NLRB 1292, 1293
(2000). The determination of whether an individual is an
independent contractor is quite fact-intensive. NLRB v.
United Insurance Co., 390 U.S. 254, 258 (1968). The
burden is on the party asserting independent contractor
status to show that the classifications in question are in-
dependent contractors. BKN, Inc., 333 NLRB 143, 144
(2001).

13 The multifactor analysis set forth in Restatement (Second) of
Agency, Sec. 220 includes the following factors to be examined: (1) the
control that the employing entity exercises over the details of the work;
(2) whether the individual is engaged in a distinct occupation or work;
(3) the kind of occupation, including whether, in the locality in ques-
tion, the work is usually done under the employer’s direction or by a
specialist without supervision; (4) the skill required in the particular
occupation; (5) whether the employer or the individual supplies the
instrumentalities, tools, and the place of work for the person doing the
work; (6) the length of time the individual is employed; (7) the method
of payment, whether by the time or by the job; (8) whether the work in
question is part of the employer’s regular business; (9) whether the
parties believe they are creating an employment relationship; and (10)
whether the principal is in the business.
In this case, the Petitioner maintains that the Regional
Director did not err in finding that the owner-operators
are employees within the meaning of Section 2(3) of the
Act.14 The Employer, on the other hand, contends that
the petitioned-for owner-operators are independent con-
tractors and therefore excluded from the coverage of the
Act. We agree with the Employer and find that it has
met its burden of establishing that its Ridgefield owner-
operators are independent contractors.
Here, the owner-operators have a significant proprie-
tary interest in the instrumentalities of their work. Al-
though the Employer supplies the owner-operators with a
few items such as a two-way radio and scanner, the most
costly piece of equipment used in making deliveries for
the Employer—the truck—is the owner-operators’ sole
responsibility.15 The Employer does not own or lease
any of the owner-operators’ trucks and does not provide
any financial assistance to the owner-operators to help
them acquire trucks; each owner-operator must own or
lease his own truck. Trucks can be of any make, model,
or color, and the owner-operators frequently place their
corporate or individual names and logos on the trucks.16
The Employer’s only requirements are that the truck be
at least 24 feet long and that it pass a DOT-required in-
spection. The owner-operators are responsible for their
trucks’ maintenance, repairs, and insurance. Since the
owner-operators personally own or lease their trucks, the
Employer places no restriction on the use of the trucks
for purposes other than delivering for the Employer and,
in fact, its agreement with each owner-operator specifies
that the owner-operator reserves the right to provide ser-
vices for other carriers. The record reflects that at least
two owner-operators have curtailed their services for the
Employer in order to work elsewhere 1 day a week.
Additionally, some of the owner-operators are entre-
preneurs who have their own independent companies,
several of which are incorporated. Five of the owner-
operators own 20 of the approximately 63 owner-
operator trucks. Some of these owners drive one of their
own trucks while others elect not to do so. Those owner-
operators with multiple trucks hire their own drivers.

14 To the extent that the Regional Director’s decision equates the
common law agency test with the “right to control” test, the Regional
Director’s analysis is incorrect. In Roadway Package Systems, supra,
the Board affirmatively abandoned the “right to control” test and
opined that it would apply the common-law agency test and consider all
the incidents of the individual’s relationship with the employing entity
when determining whether an individual (or group of individuals) is an
employee or independent contractor under Sec. 2(3) of the Act.
15 Owner-operators must also supply their own equipment, such as
power pallet jacks and handtrucks.
16 The only sign that the Employer requires the owner-operators to
place on their trucks is a small, DOT-required, Argix sign with Argix’s
DOT number.
ARGIX DIRECT, INC. 1021
The owner-operator is ultimately responsible for super-
vising, paying, withholding taxes, and obtaining work-
ers’ compensation coverage for the drivers of their
trucks. Contrary to the Petitioner’s contention, by having
the owner-operator’s drivers sign operating agreements,
the Employer is not mandating the terms of the relation-
ship between the owner-operator and his driver(s). The
owner-operator still negotiates individual terms and con-
ditions of employment and wages with his driver(s).
Specifically, all money is remitted directly to the owner-
operator’s company or corporation and the owner-
operator in turn pays his driver(s) the agreed-upon salary.
Owner-operators have discretion over their work
schedules, and the Employer does not guarantee that each
owner-operator will receive a minimum amount of work.
For instance, some owner-operators elect not to accept
routes on specific days of the week, some may take a
week or more off, some only accept routes during the
busy season, and some have work elsewhere. Owner-
operators are not penalized in any manner for electing
not to work, so long as they have not previously agreed
to work on a given day. Additionally, during most of the
year, there are not enough deliveries out of Ridgefield to
provide routes for all owner-operators each day. The
number of routes available also varies from day-to-day
within the week, with Monday and Tuesday being the
busiest days and Thursday the slowest.
Several aspects of the owner-operators’ daily work
routine support an independent contractor finding as
well. While the roadshow manifest suggests the order in
which the deliveries are to be made, the owner-operators
are not required to follow the order of delivery suggested
by roadshow, as long as they meet the client’s delivery
windows. Since delivery window times vary from a few
hours to most of the day, the owner-operators have lati-
tude in arranging the routes for their day. Indeed, the
record reveals that owner-operators regularly deviate
from roadshow’s proposed delivery sequence.17 The
Employer does not instruct them on which traffic pattern
or route to take to make their assigned deliveries. The
owner-operators also establish their own lunch and
breaktimes, and they do not have a minimum daily time
requirement. Lengths of routes vary and once the owner-
operator finishes his route for the day and returns his
paperwork and scanner, he is free to do whatever he
wants. Additionally, owner-operators are free to hire

17 See Dial-a-Mattress, supra at 892 (Board found that by proffering
the “suggested efficient sequence” of deliveries Dial did not exercise
significant control over its owner-operators because the owner-
operators deviated from the suggested sequence, and Dial did not pe-
nalize them unless the owner-operator missed the customer’s scheduled
delivery time).
helpers to assist them with their routes. The owner-
operator is ultimately responsible for supervising, pay-
ing, withholding taxes, and obtaining workers’ compen-
sation coverage for his helpers.
Also important is the Employer’s method of compen-
sating the owner-operators. An owner-operator is not
paid an hourly rate or a salary and receives no guaranteed
income. Rather, the Employer compensates the owner-
operators based on a sliding scale that depends on the
length of the route for the day. The mileage calculation
is from the roadshow manifest, regardless of the actual
mileage driven. Although they are not required to do so,
owner-operators can make pickups for the Employer not
listed on their roadshow manifest. When they do so, they
are paid $40 per pickup. Because they are free to elect
not to work for the Employer at particular times based on
their own schedule and because the Employer’s volume
of work varies, owner-operators can choose to maximize
or minimize their income. Indeed, the owner-operators’
gross payments vary greatly. In 2003, owner-operators
who contracted with the Employer for the entire year
earned from a low of $42,911.68 to a high of $92,129.77.
In addition, the owner-operators bear the risk of loss
when they (or their drivers) damage customers’ mer-
chandise.
The owner-operators are responsible for paying their
own expenses, as well as their own taxes. The Employer
takes no deductions from the owner-operators for taxes,
social security contributions, state disability, fringe bene-
fits, health insurance benefits, or vacations. The Em-
ployer does not provide workers compensation insur-
ance/benefits for the owner-operators.
In contrast to the relationship between the Employer
and the owner-operators, the Employer employs ware-
house employees at its Ridgefield facility who are paid
on an hourly or salary basis, are required to punch a
timeclock, and receive benefits. These employees are
also subject to the terms and conditions of employment
set forth in the Argix Ridgefield employee handbook.
Owner-operators are not subject to the policies contained
in the employee handbook and their business support
guide is not akin to an employee handbook.
Furthermore, the Employer does not maintain a system
of progressive discipline and discharge rules for the
owner-operators.18 The Employer, however, demands
that all of its owner-operators perform up to its and its

18 The Petitioner maintains that the Employer will discipline an
owner-operator by not scheduling him to work the following day for
various infractions, such as failing to wear a uniform, failing to attend a
safety meeting, or missing a window. However, after reviewing the
record, we conclude that the weight of the evidence does not support
this contention.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1022
clients’ demands. To this end, the Employer discusses
missed window times with owner-operators, keeps re-
cords of such discussions, and will terminate an owner-
operator’s contract for repeatedly not meeting contractual
obligations.
Finally, although not a dispositive fact, the contract be-
tween the owner-operators and the Employer expresses
an intention on the part of the contracting parties to cre-
ate an independent contractor relationship. The contract
states that owner-operators are independent contractors
and that the owner-operators have the sole control over
the means and manner of the performance of their work.
Indeed, the facts of this case bear similarity to the facts
of Dial-a-Mattress Operating Corp., supra, where the
Board found Dial-a-Mattress’ owner-operators to be in-
dependent contractors. In Dial-a-Mattress, the owner
operators, among other facts: acquired and financed their
own trucks; had few restrictions on the types of trucks
they could use, or the appearance of the trucks; had busi-
ness identities independent of the company; owned mul-
tiple vehicles and hired supplemental drivers and helpers;
controlled their own work schedules; were given a “sug-
gested efficient sequence” of deliveries by the Employer
but were free to choose their own delivery order; had no
minimum guaranteed compensation; were free to use
their trucks for outside pursuits; were not subject to pro-
gressive discipline and discharge rules; and did not re-
ceive any fringe benefits from the Employer.
Despite the aforementioned, we are not unmindful that
there are some facts favoring finding the owner-operators
to be statutory employees. The owner-operators have a
permanent working relationship with the Employer that
ordinarily continues as long as performance is satisfac-
tory; they wear the Employer’s uniform and bear Em-
ployer identification badges; the Employer pays their
tolls and parking tickets; and the agreement containing
the terms and conditions under which they operate is
promulgated unilaterally by the Employer. Nevertheless,
we find that, evaluating all of the relevant factors, the
facts weigh more strongly in favor of independent con-
tractor status.19
For the foregoing reasons, we conclude that the Em-
ployer’s owner-operators are independent contractors
rather than employees within the meaning of Section 2(3)
of the Act. Accordingly, we reverse the Regional Direc-
tor’s decision and dismiss the petition.
ORDER
The Regional Director’s Decision and Direction of
Election is reversed, and the petition is dismissed.

19 As the Board stated in Austin Tupler Trucking, 261 NLRB 183,
184 (1982):
Not only is no one factor decisive, but the same set of factors that was
decisive in one case may be unpersuasive when balanced against a dif-
ferent set of opposing factors. And though the same factor may be
present in different cases, it may be entitled to unequal weight in each
because the factual background leads to an analysis that makes that
factor more meaningful in one case than in the other.