FEDEX HOME DELIVERY

National Labor Relations Board - Board Decisions

Sep 30, 2014

361 N.L.R.B. 610 (N.L.R.B. 2014)

610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FedEx Home Delivery, an Operating Division of
FedEx Ground Package Systems, Inc. and
International Brotherhood of Teamsters, Local
Union No. 671. Cases 34–CA–012735 and 34–
RC–002205
September 30, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA,
JOHNSON, AND SCHIFFER
The issue in this case is whether drivers who operate
out of FedEx Home Delivery’s Hartford, Connecticut
terminal are employees covered under Section 2(3) of the
National Labor Relations Act or, instead, are
independent contractors, excluded from coverage.
The Regional Director found the drivers to be statutory
employees, and following the Union’s victory in an
election, certified it as the drivers’ representative.1 We
denied review of that finding. When FedEx Home
Delivery (the Respondent) refused to recognize and
bargain with the Union, the General Counsel issued a
complaint. Ordinarily, we would grant the General
Counsel’s motion for summary judgment and find that
the Respondent violated Section 8(a)(5) and (1) of the
Act.2 Following our denial of review, however, the U.S.
Court of Appeals for the District of Columbia Circuit
held that drivers performing the same job at two FedEx
Home Delivery facilities in Wilmington, Massachusetts,
were independent contractors.3
FedEx argues that the court’s holding compels the
Board to revisit its earlier denial of review. We agree.
The court’s decision raises important and timely
questions about the Board’s approach in independent-
contractor cases. Accordingly, we have reexamined the
merits of the underlying representation issue.4 Today, we
restate and refine the Board’s approach.
1 The Union, International Brotherhood of Teamsters, Local Union
No. 671, was certified on May 27, 2010, as the exclusive collective-
bargaining representative of employees in the following appropriate
unit:
All contract drivers employed by Respondent at its Hartford terminal,
but excluding drivers and helpers hired by contract drivers, temporary
drivers, supplemental drivers, multiple-route contract drivers, package
handlers, office clerical employees, and guards, professional
employees and supervisors as defined in the Act.
2 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941);
Sec. 102.67(f) of the Board’s Rules and Regulations.
3 FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009).
4 The Board initially granted the Acting General Counsel’s Motion
for Summary Judgment here and found that the Respondent violated the
Act. 356 NLRB 39 (2010). Following the Respondent’s filing of a
petition for review with the District of Columbia Circuit, the Board
vacated its decision in an unpublished Order.
First, we reaffirm the longstanding position—based on
the Supreme Court’s United Insurance decision5—that,
in evaluating independent-contractor status “in light of
the pertinent common-law agency principles,” “all of the
incidents of the relationship must be assessed and
weighed with no one factor being decisive.”6 Consistent
with Supreme Court precedent, our inquiry remains
guided by the nonexhaustive common-law factors
enumerated in the Restatement (Second) of Agency §
220 (1958).
Second, we more clearly define the analytical
significance of a putative independent contractor’s
entrepreneurial opportunity for gain or loss, a factor that
the Board has traditionally considered. In this respect, we
decline to adopt the District of Columbia Circuit’s recent
holding, insofar as it treats entrepreneurial opportunity
(as the court explained it) as an “animating principle” of
the inquiry.7 In our view, the Board should give weight
to actual, but not merely theoretical, entrepreneurial
opportunity, and it should necessarily evaluate the
constraints imposed by a company on the individual’s
ability to pursue this opportunity. Mindful of the
Supreme Court’s admonition in United Insurance that
“there is no shorthand formula or magic phrase that can
be applied to find the answer,”8 the Board should
evaluate—in the context of weighing all relevant
common-law factors—whether the evidence tends to
show that the putative independent contractor is, in fact,
rendering services as part of an independent business.
After careful consideration of the entire record and the
briefs of the parties, and for the reasons that follow, we
find that FedEx Home Delivery’s Hartford drivers are
employees under Section 2(3) of the Act. The
Respondent thus violated Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the Union
that represents them.9
I. LEGAL BACKGROUND
Before offering a detailed statement of the facts
relevant to our inquiry here, we set out the basic, and by
now uncontroversial, legal principles that govern cases
like this one.
Section 2(3) of the Act, as amended by the Taft-
Hartley Act in 1947, excludes from the definition of a
covered “employee” “any individual having the status of
an independent contractor.” 29 U.S.C. § 152(3). The
party asserting independent-contractor status bears the
5 NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968).
6 United Insurance, supra, 390 U.S. at 258.
7 FedEx Home Delivery, supra, 563 F.3d at 497.
8 United Insurance, supra, 390 U.S. at 258.
9 Member Miscimarra recused himself and took no part in the
consideration of this case.
361 NLRB No. 55

FEDEX HOME DELIVERY 611
burden of proof on that issue. See, e.g., BKN, Inc., 333
NLRB 143, 144 (2001). Accord: NLRB v. Kentucky
River Community Care, 532 U.S. 706, 710–712 (2001)
(upholding Board’s rule that party asserting supervisory
status in representation cases has burden of proof).
In applying the independent-contractor exclusion, the
Board is bound by the Supreme Court’s decision in
United Insurance, supra. There, the Court held that “[t]he
obvious purpose of [the 1947] amendment was to have
the Board and the courts apply general agency principles
in distinguishing between employees and independent
contractors.” 390 U.S. at 256. The Court acknowledged
that the application of the common-law agency test may
be challenging, given the “innumerable situations which
arise in the common law where it is difficult to say
whether a particular individual is an employee or an
independent contractor.” Id. at 258. Nonetheless, the
Court emphasized that “there is no shorthand formula or
magic phrase that can be applied to find the answer.” Id.
Instead, the Court stated that “all of the incidents of the
relationship must be assessed and weighed with no one
factor being decisive. What is important is that the total
factual context is assessed in light of the pertinent
common-law agency principles.” Id.
In identifying the relevant common-law factors to
consider in distinguishing between employees and
independent contractors under the Act, the Board must
also conform to the Supreme Court decisions that have
applied the same common-law test under other Federal
statutes. In those cases, the Court has cited with approval
the nonexhaustive, multifactor test articulated in the
Restatement (Second) of Agency § 220 (1958), and has
reiterated that no single factor of that test is
determinative. See Nationwide Mutual Insurance Co. v.
Darden, 503 U.S. 318, 323–324 (1992) (applying
Employee Retirement Income Security Act (ERISA));
Community for Creative Non-Violence v. Reid, 490 U.S.
730, 740, 751–752 and fn. 31 (1989) (Copyright Act).
Restatement § 220 provides that:

In determining whether one acting for another is a
servant or an independent contractor, the following
matters of fact, among others, are considered:

(a) The extent of control which, by the agreement, the
master may exercise over the details of the work.

(b) Whether or not the one employed is engaged in a
distinct occupation or business.

(c) The kind of occupation, with reference to whether,
in the locality, the work is usually done under the
direction of the employer or by a specialist without
supervision.

(d) The skill required in the particular occupation.

(e) Whether the employer or the workman supplies
the instrumentalities, tools, and the place of work
for the person doing the work.

(f) The length of time for which the person is
employed.

(g) The method of payment, whether by the time or by
the job.

(h) Whether or not the work is part of the regular
business of the employer.

(i) Whether or not the parties believe they are creating
the relation of master and servant.

(j) Whether the principal is or is not in the business.

Following Supreme Court precedent, the Board has
applied the Restatement factors, with no one factor being
determinative. The Board’s seminal decision in this area
is Roadway Package System, 326 NLRB 842 (1998)
(Roadway III). There, the full Board rejected the notion
that the predominant factor in its independent-contractor
analysis is whether an employer has a “right to control”
the manner and means of the work performed by an
individual. 326 NLRB at 850. Such an approach, the
Board found, was foreclosed by the Supreme Court’s
teachings. Roadway laid out the following principles for
evaluating independent-contractor status: (1) all factors
must be assessed and weighed; (2) no one factor is
decisive; (3) other relevant factors may be considered,
depending on the circumstances; and (4) the weight to be
given a particular factor or group of factors depends on
the factual circumstances of each case. Since 1998, the
Board has uniformly adhered to this analytical
approach.10
10 See, e.g., Lancaster Symphony Orchestra, 357 NLRB 1761, 1763
(2011); St. Joseph News-Press, 345 NLRB 474, 477–478 (2005).
Indeed, the Board has continued to repudiate efforts to give primary
emphasis to any factor in evaluating an individual’s status. See St.
Joseph News-Press, supra, 345 NLRB at 478; Argix Direct, Inc., 343
NLRB 1017, 1020 fn. 14 (2004); Slay Transportation Co., 331 NLRB
1292, 1293 (2000). The Board has similarly reiterated that the list of
Restatement factors “is not exhaustive, and the same set of factors that
was decisive in one case may be unpersuasive when balanced against a
different set of opposing factors in another case.” Lancaster Symphony,
supra at 1763.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
In addition to the factors set forth in Restatement §
220, the Board has considered, as one factor among the
others, whether putative contractors have “significant
entrepreneurial opportunity for gain or loss.”11 Related to
this question, the Board has assessed whether purported
contractors have the ability to work for other
companies,12 can hire their own employees,13 and have a
proprietary interest in their work.14 As we will explain,
however, we do not share the view of the District of
Columbia Circuit that, over time, the Board has come to
treat entrepreneurial opportunity as the decisive factor in
its inquiry.
We turn now to the factual background of this case.
II. FACTUAL BACKGROUND
FedEx Ground Package Systems comprises two
operating divisions: FedEx Ground Delivery, which
primarily serves business customers, and FedEx Home
Delivery, which primarily serves residential customers.
FedEx Home Delivery (FedEx, hereafter) was
established around 1998, when FedEx Corporation
acquired Roadway Package System, Inc.15 At the time of
the hearing, FedEx Home Delivery operated around 500
terminals with about 4000 drivers nationwide. In this
proceeding, the Union seeks to represent about 20 FedEx
drivers who work out of the Respondent’s Hartford
terminal.
The Hartford terminal, which was established in
March 2000, operates from Tuesday through Saturday
and covers areas in northern Connecticut. Within this
territory, FedEx maintains about 26 primary service areas
or routes. FedEx assigns each route to a driver; the routes
generally correspond to different zip codes. At the time
of the hearing, 18 of these routes were assigned to single-
route drivers, 2 routes were open, and the remaining
11 Roadway III, supra, 326 NLRB at 851; Dial-A-Mattress Operating
Corp., 326 NLRB 884, 891 (1998); Roadway Package System, 288
NLRB 196, 198 (1988). See also Standard Oil Co., 230 NLRB 967,
971 (1977) (finding that “all meaningful decisions of an entrepreneurial
nature which affect profit or risk of loss are controlled by the
Company”).
12 See C.C. Eastern, Inc., 309 NLRB 1070, 1070–1071 (1992), enf.
denied 60 F.3d 855 (D.C. Cir. 1995); Stamford Taxi, Inc., 332 NLRB
1372, 1373 (2000).
13 See C.C. Eastern, supra, 309 NLRB at 1071; Slay Transportation,
supra, 331 NLRB at 1294.
14 See Roadway III, supra, 326 NLRB at 853.
15 In three previous decisions, the Board found Roadway Package
System drivers to be statutory employees. See Roadway Package
System I, 288 NLRB 196 (1988); Roadway Package System II, 292
NLRB 376 (1989), enfd. 902 F.2d 34 (6th Cir. 1990); Roadway
Package System III, 326 NLRB 842 (1998).
routes were assigned to three multiple-route drivers
whom the Union does not seek to represent.16
A. Recruitment and Training
FedEx holds nationwide job fairs and runs
advertisements seeking drivers. After a candidate
completes a job application, FedEx reviews her driving
and criminal records pursuant to Department of
Transportation (DOT) regulations. FedEx requires
candidates with acceptable records to take a physical
exam and pass a DOT-required drug test. If successful,
FedEx hires candidates as temporary drivers through
Kelly Services, a temporary agency. Temporary drivers
are required to undergo a physical examination by a
FedEx-approved physician and complete a DOT-required
driver-training course administered by FedEx at no cost.
FedEx pays temporary drivers for time spent in training,
which includes 5 days of classroom training, 4 days of
behind-the-wheel instruction, and 5 days accompanying
managers as they make deliveries. The classroom
segment covers how to load packages into a vehicle, use
the package scanner, read road plans, and leave packages
for residents who are not home. Following training, the
new hires may continue as temporary drivers, who assist
permanent drivers and cover existing and open routes as
necessary, or they may acquire vehicles and become
permanent drivers, whose status is at issue here.
B. Operating Agreement
Prospective drivers who have completed training and
have acquired a vehicle are presented with FedEx’s
Standard Contractor Operating Agreement (the
Agreement). The Agreement, which spells out the
respective rights and obligations of each party, is used by
FedEx on a nationwide basis; it covers topics such as
equipment requirements, vehicle operations, insurance
coverage, compensation, and termination of services. The
Hartford terminal manager reviews the Agreement with
prospective Hartford drivers and allows them to review
the Agreement independently with a lawyer, accountant,
or other person of their choosing. At the outset, the
Agreement states that a driver provides services for
FedEx “strictly as an independent contractor, and not as
an employee of FHD for any purpose.” With two
exceptions, prospective drivers do not have the ability to
negotiate over the terms of the Agreement. Drivers may
negotiate over which particular route is assigned to them,
and over one aspect of their compensation: the
Temporary Core Zone Density Settlement, described
16 In addition, FedEx employs an unspecified number of temporary
and supplemental drivers, who among other things, cover the open
routes. These drivers are also excluded from the petitioned-for unit.

FEDEX HOME DELIVERY 613
more fully below. Otherwise, the Agreement is presented
on a take-it-or-leave-it basis to all drivers. The
Agreement gives drivers the option of incorporating as a
business; at the time of the hearing, three Hartford
drivers had incorporated.
FedEx typically makes unilateral changes to the
Agreement once a year after which drivers are given 30
days’ notice to review the changes and sign the modified
agreement. Drivers may choose to enter into a 1-year or
2-year Agreement, which is automatically renewed for
successive 1–year periods after the expiration of the
initial term, unless either party provides the other with 30
days’ notice of nonrenewal. FedEx has the right to
terminate the Agreement without notice if the Hartford
terminal closes, there is a decline in business, or the
driver breaches the Agreement by engaging in
misconduct, reckless or willful negligent operation of
equipment, or failure to perform her contractual
obligation. In the event of a dispute over a termination
decision, the Agreement provides for arbitration. Drivers
are required to place $500 in an escrow account
controlled by FedEx to cover any debts owed to FedEx
when the Agreement is terminated. The Agreement also
enumerates 25 specific unsafe driving acts or omissions
for which FedEx may suspend the driver.
C. Vehicles
In order to service their routes, drivers must purchase a
van or truck that FedEx deems appropriate. Although the
Agreement does not specify the make or size of a
driver’s vehicle, it provides that the vehicle is subject to
FedEx’s “determination of its suitability for the service
called for.” The Regional Director found that most
Hartford terminal drivers purchase their vehicles from a
local or national truck dealer, or from a current driver
looking to relinquish her route. FedEx provides drivers
with the names of local and national dealers, but drivers
are not obligated to purchase or lease their vehicles from
those sources. FedEx also maintains a web database
listing the names and contacts for all current drivers who
are seeking to sell their vehicles. Drivers negotiate the
terms of all vehicle sales without FedEx’s involvement.
FedEx does not provide financing or guarantee loans
obtained by drivers, but it does provide drivers with the
names of lenders, whom drivers are not obligated to
patronize.
FedEx requires that the vehicles be white, have a
backing camera, and be maintained in a clean condition,
free of damages or extraneous markings. Pursuant to
DOT regulations, and to foster brand recognition, FedEx
requires all vehicles to display the FedEx logo, which is
larger than the DOT minimum size. Drivers can opt to
have FedEx paint its logo onto the vehicle, or purchase a
removable magnetic logo; FedEx directs drivers to a
particular business for applying the logo to the vehicles.
Drivers who operate vehicles of a certain size must
install, at their own expense, a shelving system that
prevents packages from getting crushed during delivery.
Pursuant to DOT regulations, drivers must submit daily
driver logs and vehicle inspection reports, and the
vehicles must pass an annual safety inspection.
Drivers bear all expenses in operating their vehicles,
including costs of repair, maintenance, fuel, oil, taxes,
tires, insurance, and license fees. In order to track the
vehicle’s fitness, FedEx requires drivers to submit a
monthly maintenance form noting the vehicle’s tire tread
depth and attaching any receipts for maintenance and
completed repair work. If a vehicle becomes inoperable
for any length of time, drivers are required to provide a
suitable alternative at their expense; drivers generally
rent replacement vehicles from a national car rental firm
such as Enterprise.
The Agreement provides that, while the vehicle is in
the service of FedEx, “it shall be used by [the driver]
exclusively for the carriage of the goods of FHD, and for
no other purpose.” At all other times, drivers may use
their vehicles for other commercial or personal purposes,
provided they remove or mask FedEx’s logos. The
Regional Director found no evidence that any driver at
the Hartford terminal had ever used her vehicle for other
commercial purposes.
D. Route Acquisition
Individuals who are interested in becoming permanent
drivers may obtain routes from FedEx. FedEx does not
sell routes; rather, if FedEx has a vacant or open route, it
provides that route at no cost to a prospective driver or
an existing driver who is seeking a different or additional
route. Routes become available if the previous driver of a
route resigns or is terminated, or if FedEx creates a new
route. Drivers may also acquire routes from existing
drivers, who are permitted under the Agreement to
convey their routes, as described below. The Agreement
states that drivers have a “proprietary interest” in their
assigned routes.
Each Agreement includes an addendum that sets forth
the specific route to be serviced by the driver. The
Agreement provides that “as the customer base and
package volume in the Primary Service Area increases,
the geographic size of the area which Contractor will be
able to serve with the Equipment can be expected to
decrease.” The Agreement thus permits FedEx, with 5
days’ written notice, to unilaterally reconfigure any
driver’s route in order to “take account of customer
service requirements,” such as addressing a growing or
shrinking customer base in that area. During the 5-day
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
notice period, the driver has the opportunity to
demonstrate that she can meet the level of service called
for in the Agreement. FedEx may then reconfigure the
route if it determines that the driver has failed to make
such a demonstration. If a reconfiguration reduces the
average number of packages on a driver’s route, that
driver will be compensated for the lost work under a
formula set forth in the Agreement.
E. Business Support Package
Drivers have the option to purchase FedEx’s Business
Support Package (BSP) at a cost of $4.25 per day; if
purchased, the cost is deducted from the driver’s
compensation. The BSP includes various items that
drivers need to make deliveries: uniform and
identification badges bearing FedEx’s name; vehicle
decals bearing FedEx’s logo; a scanner and related
communications equipment; mapping software; driver
assistance programs; and a weekly vehicle washing
service necessary to comply with both government
regulations on waste water runoff and with contractual
standards. Although drivers are free to purchase these
required goods and services elsewhere, there is no
evidence that any Hartford-based driver has ever done so,
or that all components of the BSP would even be
available for purchase elsewhere.
F. Duties and Responsibilities
The Agreement requires that drivers make their
vehicles available for delivery from Tuesday through
Saturday. The process of package delivery from the
Hartford facility begins when FedEx’s three trailers
arrive from its New Jersey and Connecticut hubs
between 4 and 6:30 a.m. During that period, FedEx’s
package handler employees sort, scan, and assemble
approximately 3000 daily packages onto pallets (during
peak periods, the number of daily packages swells to
around 9000). Most Hartford-based drivers arrive at the
terminal between 6 and 7 a.m. and begin loading the
packages from the pallets onto their respective vehicles.
Drivers use scanners to report their on-duty time and to
scan each loaded package; once they have finished
loading, drivers report to the Respondent’s terminal
managers, who close the route by resetting the scanner.
Managers also provide each driver with a route manifest
and turn-by-turn instructions that list the driver’s stops
and suggest a delivery sequence. Drivers are not
obligated to follow the suggested sequence; in fact, they
can and do deliver packages in any order and by any
route they choose.
The Agreement compels drivers to deliver all packages
assigned to their route on the same day the packages
arrive at the Hartford terminal. In making the deliveries,
drivers must meet FedEx’s nationwide standard of
providing services in a way that “can be identified as
being part of the [Respondent’s] system.” This means
that drivers must: wear FedEx’s uniforms and badges,
maintained in good condition; present personal
appearances consistent with FedEx’s standards; and
leave packages for recipients not at home in accordance
with FedEx’s protocols. Drivers are also discouraged
from delivering packages after 8 p.m.
Upon completing each delivery, a driver is required
by FedEx to input information regarding the delivered
package, including the identification of the person who
signed for the package, into the scanner. The scanned
information tracks the movement of packages and is
instantly transmitted to FedEx. When drivers go off-duty,
they must enter their off-duty time into the scanner. They
must also submit a daily delivery report to FedEx that
indicates whether they failed to deliver any of the
packages assigned to their route. FedEx uses these
reports to determine if drivers are failing to provide
proper service and if so, whether termination of a
driver’s contract is warranted.
Drivers must follow specific protocols for deliveries if
the recipient is not home; if they fail to adhere to
protocols, fail to obtain a required signature, or release a
package to the incorrect address, they may be liable for
the loss of the package. FedEx maintains the right to
conduct up to four driver audits per year during which a
manager rides along with a driver to verify that the driver
is meeting customer service standards and protocols.
FedEx also maintains the right to conduct two customer
service rides annually, during which a manager rides
along for a day to evaluate the driver’s customer contacts
and driving methods, and may suggest operational
improvements to the driver related to package loading,
delivery sequencing, scanning practices, and other
responsibilities. The manager also evaluates whether the
driver has an appropriate workload and rates the driver’s
performance in areas such as professional appearance
and customer courtesy. FedEx may memorialize these
evaluations and rely on them in deciding whether to
terminate a driver’s agreement.
Aside from requiring drivers to deliver all packages on
the same day they arrive at the terminal, drivers have
discretion to operate their routes and perform deliveries
in the sequence and manner they see fit. FedEx does not
have the authority to direct drivers regarding their
specific hours of work, whether or when they take
breaks, the order in which they make deliveries, or other
details of their work. Drivers are free to use their vehicles
to perform personal duties during the day, and most park
their vehicles at their homes at night.
FEDEX HOME DELIVERY 615
FedEx retains the right to adjust the volume of a
driver’s daily deliveries. Any day when the volume of
packages on a driver’s route exceeds the volume that she
can be reasonably expected to timely deliver, FedEx may
reassign packages to another driver. FedEx also
maintains a practice known as “flexing” whereby the
terminal manager adjusts the number of packages
delivered by each driver by directing drivers to deliver
packages to locations outside of their route; this occurs
when a driver has an excessive number of packages or
FedEx needs to cover a regularly-assigned route because
of illness or other reasons. A driver may not reject
“flexed” packages assigned to her. Drivers, without
FedEx’s permission, may “flex” packages to each other,
principally to drivers who service adjacent routes.
Drivers play no role in generating customers or
establishing prices to be charged to customers; instead,
customers contact FedEx to arrange a delivery and
FedEx exclusively sets delivery prices, which are quoted
and charged to customers. Customer complaints about
drivers are directed to FedEx and are investigated by
managers at the Hartford terminal.
G. Compensation
Under the Agreement, FedEx unilaterally determinates
drivers’ rates of compensation and pays them with a
weekly settlement check that is based on, among other
things, the number of packages delivered, the number of
stops made, the distance traveled, and the number of
days a driver’s vehicle is available to provide service.
FedEx also pays various bonuses to drivers, including a
quarterly bonus for drivers who service two or more
routes; a quarterly service bonus based on years of
service; a bonus for meeting certain accuracy goals; and
a group bonus if all drivers at the terminal meet an
inbound service goal for the period. In addition, the
settlement check includes a Temporary Core Zone
Density payment ranging from $27 to $127 daily to
drivers who service routes where customer density and
package volume are still developing. The record does not
indicate a typical or average income for Hartford drivers.
FedEx provides other financial support to drivers. For
instance, if fuel prices rise substantially, the Agreement
provides that FedEx will pay drivers a fuel/mileage
settlement of up to 10 cents per mile depending on fuel
prices within a 5-mile radius of the terminal. The
Agreement also authorizes FedEx to pay certain vehicle-
related “licenses, taxes and fees” on behalf of each
driver; it then deducts those expenses from the driver’s
compensation. In order to encourage drivers to
accumulate a fund to cover vehicle maintenance
expenses and other costs of operation, FedEx maintains
and pays interest on a Service Guarantee Account into
which the drivers can deposit money. For each quarter in
which a driver’s average balance in the account is $500
or more, FedEx contributes $100. The Regional Director
found that FedEx also periodically assists drivers with
other vehicle-related issues, including lending drivers
money for repairs, and intervening on behalf of drivers
involved in repair and warranty disputes.
FedEx does not provide drivers with any fringe
benefits, such as vacations or paid holidays, nor does it
withhold taxes from their settlement checks. Most
Hartford drivers participate in FedEx’s time-off program,
under which FedEx makes available approved drivers to
service the routes of permanent drivers while they are on
vacation.
H. Insurance
The Agreement requires that drivers carry three forms
of insurance in types and amounts specified by FedEx:
(1) general liability insurance; (2) deadhead insurance,
which insures drivers against damages they incur while
operating their vehicles for personal use; and (3) work
accident insurance, which is akin to workers’
compensation coverage. Failure to maintain any of these
constitutes a contractual breach that could lead FedEx to
terminate the Agreement. DOT regulations require that
FedEx carry insurance for property damage, personal
injuries, cargo loss, or damage caused by its vehicles or
its drivers’ vehicles. FedEx maintains a self-insured
general liability program that indemnifies it and its
drivers against such claims resulting from the operation
of equipment in connection with FedEx’s business.
FedEx does not charge drivers for the cost of general
liability insurance, but all drivers are responsible for the
first $500 in damages resulting from the operation of
their vehicles; after 1 year, that amount is reduced to
$250, and after 2 years, it is eliminated altogether. Driver
indemnification does not occur if the driver engages in
willfully negligent or intentional misconduct, or if she
fails to comply with FedEx’s safe driving program
standards. Drivers are responsible for maintaining both
deadhead insurance and work accident insurance at their
own expense. FedEx has a relationship with Protective
Insurance, which will provide drivers with the required
insurance; if the drivers choose to insure through
Protective, FedEx deducts insurance premiums from
their settlement checks. The record shows that drivers
frequently obtain insurance through Protective because it
offers rates that are significantly lower than the rates
drivers can obtain elsewhere on their own.
I. Entrepreneurial Opportunities
In arguing that Hartford drivers are independent
contractors, FedEx relies heavily on what it identifies as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
three specific entrepreneurial opportunities: (1) drivers’
ability to hire other drivers; (2) drivers’ ability to sell
routes; and (3) drivers’ ability to operate multiple routes.
1. Hiring of supplemental drivers and helpers
Single-route drivers need not personally perform all of
their contractually-obligated deliveries. Instead, a driver
may hire another DOT-qualified and Respondent-
approved driver, typically one of FedEx’s temporary
drivers or another permanent driver, to perform her
deliveries. If the volume of deliveries on a driver’s route
is beyond the capacity of a single vehicle, the driver may
choose to lease a second vehicle, referred to as a
supplemental vehicle, and hire a supplemental driver to
fulfill the route’s demands. The Regional Director found
that at least half of the Hartford drivers have used
supplemental vehicles and drivers, usually during the
peak holiday season. Drivers may also hire helpers who
ride alongside the driver and assist in delivering
packages. Helpers’ employment terms and conditions are
negotiated exclusively between the driver and the helper.
At the time of the hearing, only one Hartford driver had
ever employed a helper.
2. Route sales
Drivers may also sell their routes to buyers deemed
qualified by FedEx and willing to enter into the
Agreement with FedEx “on substantially the same terms
and conditions” as the original driver. Although drivers
need not receive FedEx’s permission regarding a pending
route sale, FedEx must be notified once the sale is
complete so that the buyer can sign the Agreement.
FedEx is not involved in the negotiations between the
parties, but it retains the right to approve the individual
acquiring the route. The Regional Director found that the
overwhelming majority of drivers acquired their routes
from FedEx or from a previous driver at no cost for the
route itself. For example, in some instances, the former
driver merely relinquished her route at no cost to the new
driver, or sold her vehicle to the new driver, but did not
receive further consideration for conveying the route
itself. The record indicates that there had been only two
route sales at the Hartford terminal since it opened in
2000. If a driver wishes to give up her route but cannot
find any takers, she must relinquish her route to FedEx
for no compensation.
3. Multiple-route operators
Finally, drivers have the right to obtain and operate
multiple routes; supplemental routes can be obtained
from FedEx or another driver. To service an additional
route, the driver acquires an additional vehicle and either
hires her own driver to regularly service the route, or
contracts with one of FedEx’s temporary drivers. All
hired drivers must be DOT-qualified and approved by
FedEx. Hired drivers must follow all of the applicable
work rules and protocols, including using the package
scanner and wearing FedEx’s uniform and badge while
making deliveries. Multiple-route operators have sole
authority to hire and dismiss their drivers, to supervise
them, and determine the terms and conditions of their
relationship with their drivers, including hours, bonuses,
and approval of time-off requests. Multiple-route
operators are responsible for paying their drivers’
compensation, and for all expenses associated with hiring
drivers, such as the cost of training, exams, employment
taxes, and accident insurance. If FedEx learns of delivery
problems with one of the hired drivers, it has the
contractual right to pursue the matter with the multiple-
route operator. The Regional Director found that, since
the Hartford terminal opened in 2000, a total of six
drivers have operated multiple routes; at the time of the
hearing, three drivers were operating multiple routes.
Here, however, the Union does not seek to represent
multiple-route drivers, or the drivers that they hire.
III. THE REGIONAL DIRECTOR’S DECISION
The Regional Director found that FedEx failed to
establish that its drivers are independent contractors. At
the outset, the Regional Director indicated that,
consistent with Board precedent, he would apply the
common-law agency test and consider all the incidents of
the individuals’ relationship with the employing entity.
Using this approach, the Regional Director relied on the
following factors in finding the drivers to be employees:
(1) FedEx exercises substantial control over details of
drivers’ job performance; (2) drivers perform a regular
and essential part of FedEx’s business; (3) drivers do not
need significant skill or experience to perform delivery
functions; (4) FedEx provides drivers with necessary
instrumentalities, tools, and workplace; and (5) FedEx
unilaterally establishes compensation rates for all drivers.
The Regional Director acknowledged that several
factors, such as drivers’ obligation to purchase their own
vehicles and drivers’ discretion over delivery schedules,
supported finding independent-contractor status. He
noted, however, that the same factors were present in
Roadway III, supra, where the Board, in substantially
similar circumstances, found them insufficient to satisfy
the employer’s burden. Finally, the Regional Director
rejected FedEx’s argument that drivers’ options to
operate multiple routes and sell their routes established
independent-contractor status. Regarding drivers’ option
to operate multiple routes, the Regional Director found
that the record did not indicate that drivers incurred an
entrepreneurial risk in choosing to operate more than one
route, nor did the record show that multiple-route drivers
FEDEX HOME DELIVERY 617
realized a greater net per-route profit than single-route
drivers. He also noted that none of the drivers in the
petitioned-for unit are multiple-route drivers.
In addition, the Regional Director discounted the
import of drivers’ right to sell their routes, noting that
routes originating out of the Hartford terminal are
available from FedEx at no cost or in conjunction with a
vehicle sale. Moreover, drivers are required to sell only
to buyers approved by FedEx and willing to enter into
the Standard Contractor Operating Agreement. Finally,
he observed that there had been only two route sales
since the Hartford terminal opened in 2000, an
insufficient number to support independent-contractor
status.
In light of all the record evidence, the Regional
Director concluded that FedEx failed to establish that its
drivers are independent contractors.
IV. ANALYSIS
FedEx contends that the District of Columbia Circuit’s
holding, on “virtually identical” facts, that FedEx Home
Delivery drivers in Wilmington, Massachusetts, were
independent contractors requires the Board to reach the
same result here. We acknowledge that the court’s
decision cannot be squared with the Regional Director’s
determination here. But, after careful consideration, we
decline to adopt the court’s interpretation of the Act.
Nothing in the text of the Act, or its legislative history,
speaks directly to the precise issue in this case: how to
interpret and apply common-law agency principles in
distinguishing between employees and independent
contractors and so determining statutory coverage under
Section 2(3) of the Act. Notably, the Supreme Court has
held that the “task of defining the term ‘employee’ is one
that ‘has been assigned primarily to the agency created
by Congress to administer the [National Labor Relations]
Act,” the Board. Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
891 (1984), quoting NLRB v. Hearst Publications, Inc.,
322 U.S. 111, 130 (1944). In turn, the Court has applied
the principle of Chevron17 deference to the Board’s
interpretation of at least one exclusion from employee
coverage in Section 2(3) of the Act.18 Finally, in United
Insurance, supra, a pre-Chevron decision, the Court
described the independent-contractor inquiry as
involving the “application of law to facts” and held that
the Board’s determination should not be rejected by a
17 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
18 Holly Farms Corp. v. NLRB, 517 U.S. 392 (1996) (upholding as
reasonable Board’s interpretation of “agricultural laborer” exclusion);
Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298 (1977)(same).
reviewing court so long as the Board “made a choice
between two fairly conflicting views.” 390 U.S. at 260.
In FedEx Home Delivery, in contrast, a divided panel
of the court concluded that it would not “grant great or
even ‘normal’ deference to the Board’s status
determinations” “because the line between worker and
independent contractor is jurisdictional—the Board has
no authority whatsoever over independent contractors.”
563 F.3d at 492. However, as the Supreme Court
subsequently reaffirmed, deferential review does, indeed,
apply in “cases in which an agency adopts a construction
of a jurisdictional provision of a statute it administers.”
City of Arlington, Texas v. FCC, 569 U.S. 290 (2013).19
Below, we explain why we have chosen not to adopt
the court’s interpretation of the independent-contractor
exclusion in Section 2(3) of the Act. Neither Supreme
Court nor Board precedent mandates that position, and
adopting it would mean a broader exclusion from
statutory coverage than Congress appears to have
intended. To eliminate any uncertainty about the Board’s
test and its application going forward, we restate and
refine our approach. Finally, applying our refined
formulation of the Board’s standard, we find that the
Hartford drivers are employees under the Act, and thus
conclude that FedEx violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with their representative.
A.
The FedEx Home Delivery court stated that the
common-law agency test was the appropriate legal
standard. It observed, however, that over the course of
several recent decisions, the standard had changed its
focus from the employer’s right to exercise control over
the means and manner of the worker’s performance to
the “significant entrepreneurial opportunity for gain or
loss.” 563 F.3d at 497. “[W]hile all the considerations at
common law remain in play,” the court observed, “an
important animating principle by which to evaluate those
factors in cases where some factors cut one way and
some the other is whether the position presents the
opportunities and risks inherent in entrepreneurialism.”
Id.
As we understand the court’s decision, it treats the
existence of “significant entrepreneurial opportunity” as
the overriding consideration in all but the clearest cases
posing the independent-contractor issue under the Act.
19 Among the cases cited by the City of Arlington Court was a
decision involving the Board, NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 830 fn. 7 (1984). There, the Court rejected the argument that
it was not required to defer to the Board’s reasonable interpretation of
Sec. 7 of the Act inasmuch as its scope was “essentially a jurisdictional
or legal question concerning the coverage of the Act.” 133 S.Ct. at
1871.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
Whether or not the Supreme Court’s decision in United
Insurance, supra, permits this approach, we do not
believe that the decision compels it. United Insurance
does not reflect the use of a single-animating principle in
the inquiry or identify entrepreneurial opportunity as that
principle. To the contrary, as explained, United
Insurance (and subsequent Supreme Court decisions)
emphasized that “all of the incidents of the relationship
must be assessed and weighed with no one factor being
decisive.” 390 U.S. at 258; Community for Creative Non-
Violence v. Reid, 490 U.S. at 752. The Supreme Court’s
decisions look to the Restatement (Second) of Agency as
capturing the common-law standard, and the Restatement
teaches that the factors enumerated there are “all
considered in determining the question [of employee
status].”20 (Emphasis added.) The Restatement makes no
mention at all of entrepreneurial opportunity or any
similar concept. That silence does not rule out
consideration of such a principle, but it cannot fairly be
described as requiring it. At least arguably, the court’s
approach is in tension with the admonition of United
Insurance that “there is no shorthand formula or magic
phrase that can be applied to find the answer” as to who
is an employee and who an independent contractor under
the Act. 390 U.S. at 258.
In turn, we do not read the Board’s precedent, as
grounded in Roadway III, as adopting the position
reflected in the court’s decision. Indeed, the Board
decisions cited by the court confirm that the Board has
adhered to the “all incidents of the relationship”
approach set forth in Roadway III and earlier cases.21
The Board has never held that entrepreneurial
opportunity, in and of itself, is sufficient to establish
independent-contractor status.
In Corporate Express Delivery Systems, 332 NLRB
1522 (2000), enfd. 292 F.3d 777 (D.C. Cir. 2002), the
Board, “weighing all incidents of their relationship with
the Respondent,” found that the owner-operators who
delivered packages for the employer were employees
rather than independent contractors. Id. The Board noted
that those owner-operators “had no proprietary interest in
their routes and no significant opportunity for
entrepreneurial gain or loss,”—but it did so as part of a
thorough and balanced accounting of all relevant factors.
Id. Accordingly, the Board found, among other factors
routinely considered under the common-law test, that
owner-operators performed an essential part of the
20 Restatement (Second) of Agency § 220(1), comment c.
21 See, e.g., Operating Engineers Local 701 (Lease Co.), 276 NLRB
597, 600–601 (1985); Perrysville Coal Co., 264 NLRB 380, 381
(1982); Kentucky Prince Coal Corp., 253 NLRB 559, 560 (1980).
employer’s business; worked full time and were fully
trained by the employer; were not permitted to use their
vehicles to make deliveries for anyone other than the
employer; were required to wear uniforms and display
the employer’s logo; and received routes, base pay, and
daily freight allocations that were unilaterally determined
by the employer. Id. Contrary to the court, the Board did
not give more weight to entrepreneurial opportunity than
any of the other factors that it assessed.22
Similarly in Arizona Republic, 349 NLRB 1040
(2007), another decision on which the FedEx Home
Delivery court relied, the Board evaluated entrepreneurial
opportunity as one factor in its analysis, but gave it no
special prominence as an “animating principle.” The
Board found that the newspaper carriers’ entrepreneurial
opportunities—including their ability to operate multiple
routes, negotiate piece rates, and deliver other products
while on their routes—weighed in favor of independent-
contractor status. But the Board gave comparable weight
to other facts: that the employer did not exercise control
over details of the carriers’ work; that the employer did
not supervise or subject carriers to discipline; that
carriers provided and maintained their own vehicles and
tools; and that the parties clearly intended to form an
independent contractor relationship. Id. at 1043–1046.
Thus, the Board concluded that “the bulk of the
evidence”—not merely evidence of entrepreneurial
opportunity—“establishe[d] that the carriers [were]
independent contractors.” Id. at 1046.
B.
In examining one exclusion in Section 2(3) of the Act,
the Supreme Court has observed that “administrators and
reviewing courts must take care to assure that
exemptions from NLRA coverage are not so expansively
interpreted as to deny protection to workers the Act was
designed to reach.” Holly Farms Corp., supra, 517 U.S.
at 399 (applying agricultural laborer exclusion).
Consistent with this admonition, we believe that, within
the framework of common-law agency principles, the
Board should construe the independent-contractor
exclusion narrowly. But to be clear, in declining to adopt
22 We do not share the FedEx Home Delivery court’s view that the
General Counsel, in defending the Board’s Corporate Express decision,
urged the court to focus primarily on entrepreneurial opportunity. The
General Counsel’s brief in that case reiterated the Board’s position that
“all of the incidents of the work relationship must be assessed and
weighed with no one factor being decisive.” 2001 WL 36039100 (D.C.
Cir. 2001). The General Counsel urged the court to consider the
absence of entrepreneurial opportunities, but only as a single factor. In
any case, of course, the General Counsel’s position on appeal could not
substitute for, much less displace, the view of the Board itself. See
generally Securities & Exchange Commission v. Chenery Corp., 332
U.S. 194, 196 (1947).

FEDEX HOME DELIVERY 619
the view of the court, we do not hold that the Board may
not, or should not, give weight to evidence demonstrating
that a putative contractor exercises significant
entrepreneurial opportunity for gain or loss. The Board
has done so in the past, and we will continue to do so.
We take this opportunity, however, to restate and refine
the Board’s approach, in two respects. First, we make
clear what the Board understands by entrepreneurial
opportunity: an actual, not merely theoretical,
opportunity for gain or loss. Second, in restating and
refining our approach, we explain the place of
entrepreneurial opportunity in the Board’s analysis, as
part of a broader factor that—in the context of weighing
all relevant, traditional common-law factors identified in
the Restatement—asks whether the evidence tends to
show that the putative independent contractor is, in fact,
rendering services as part of an independent business.
1.
In a decision that preceded FedEx Home Delivery, the
District of Columbia Circuit observed that “if a company
offers its workers entrepreneurial opportunities that they
cannot realistically take, then that does not add any
weight to the company’s claim that the workers are
independent contractors.” C.C. Eastern, Inc. v. NLRB, 60
F.3d 855 (D.C. Cir. 1995). We agree, and we reaffirm
that principle today.
The Board has been careful to distinguish between
actual opportunities, which allow for the exercise of
genuine entrepreneurial autonomy, and those that are
circumscribed or effectively blocked by the employer. In
Roadway III, supra, for instance, the Board rejected the
employer’s argument that delivery drivers’ proprietary
interest in their routes and their ability to sell their routes
made them independent contractors. The Board noted
that the employer “imposed substantial limitations and
conditions on both . . . features of the driver’s
relationship such that neither one retains any significant
entrepreneurial characteristics.” 326 NLRB at 853.
Specifically, the employer exercised control over
whether a driver could sell her route, to whom, and under
what circumstances. Id. In addition, the employer
retained the right to unilaterally reconfigure all routes,
and it was unclear whether any drivers had ever realized
any gain or profit from the sale of their routes. Id.23
Similarly, in Slay Transportation, supra, the Board
rejected the Regional Director’s finding that drivers
possessed entrepreneurial opportunities via their ability
to hire drivers and control costs to enhance their income.
331 NLRB at 1294. The Board noted that the employer
23 See also Roadway I, supra, 288 NLRB at 198–199.
established and controlled the rates of compensation,
leaving little room for drivers to increase income through
their own efforts. Id. Moreover, although drivers were
permitted to hire other drivers, they could do so only at
the wage rates set by the employer. Id. Accordingly, the
Board concluded that “despite this theoretical potential
for entrepreneurial opportunity, the control exercised by
the Employer over the other aspects of its relationship
with the owner-operators severely circumscribes such
opportunity. In reality, there is little economic inde-
pendence realized by the owner-operators.” Id.24
The approach taken by the court in FedEx Home
Delivery was different. There, the court accepted
FedEx’s assertions of entrepreneurial opportunity with
little weight given to these countervailing considerations.
In finding, for example, that drivers had a genuine
entrepreneurial opportunity to assign their routes without
the employer’s permission, the court relied solely on the
fact that two drivers were able to sell their routes for a
nominal profit. 563 F.3d at 500. In fact, employees’
opportunities in this area were significantly constrained:
drivers could sell only to buyers that the employer
accepted as qualified; the employer awarded routes to
drivers without charge; and the employer retained the
unilateral right to reconfigure routes. Nonetheless, the
court concluded that the drivers’ ability to assign their
routes was a “significant . . . and novel” indicator of
contractor status. Id.
The court also relied heavily on the fact that drivers
were permitted to operate multiple routes. Id. at 499.25
But the record showed that only three drivers operated
multiple routes, and that those individuals had been
excluded from the unit as statutory supervisors.
Likewise, the court emphasized that drivers could use
their trucks to conduct business independently of FedEx,
despite the fact that no current drivers had ever done so,
and that drivers’ weekly work commitment to FedEx
would have realistically prevented them from taking on
extra business during nonwork hours. Id. at 498–499.
Insofar as the court’s decision holds that even a
showing of theoretical entrepreneurial opportunity
supports a finding of independent-contractor status—and,
indeed, will prove decisive if other factors point in
conflicting directions—we disagree. Such an expansive
approach departs from the mainstream of Board
precedent, lacks clear support in traditional common-law
24 See also Stamford Taxi, supra, 332 NLRB at 1373 (finding that
rules maintained and enforced by the employer “severely restrict[ed]
the drivers’ entrepreneurial opportunities to engage in taxicab business
independent of the [employer]”).
25 Here, of course, multiple-route drivers are not part of the
bargaining unit that the Union seeks to represent.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
principles, and could dramatically broaden the
independent-contractor exclusion under the Act. The fact
that only a small percentage of workers in a proposed
bargaining unit have pursued an opportunity
demonstrates that it is not, in fact, a significant aspect of
their working relationship with the putative employer.
Indeed, if the day-to-day work of most individuals in the
unit does not have an entrepreneurial dimension, the
mere fact that their contract with the employer would
permit activity that might be deemed entrepreneurial is
not sufficient to deny them classification as statutory
employees.26
For similar reasons, we disagree with the court’s
assertion in FedEx Home Delivery that the Board was
required to admit and assess systemwide evidence of the
number of route sales and the amount of profit, if any, on
such sales. We find instead that to be relevant, evidence
of entrepreneurialism must pertain directly to the
individuals that the petitioner actually seeks to
represent.27 Indeed, our focus on actual opportunity
demands that we assess the specific work experience of
those individuals in the petitioned-for unit. Evidence that
goes only to employees who are outside of the
petitioned-for unit is unlikely to have probative value.
Thus, unless a multifacility or systemwide unit is sought,
evidence regarding the entrepreneurial experience of
workers at other facilities cannot substantiate or refute
the entrepreneurial opportunity of the individuals at
issue.28 The hearing officer’s decision here to exclude
from the record similar systemwide evidence of
entrepreneurial opportunity was fully consistent with his
26 In Arizona Republic, supra, 349 NLRB at 1045, the Board stated
that “the fact that many carriers choose not to take advantage of [an]
opportunity to increase their income does not mean that they do not
have the entrepreneurial potential to do so.” Applying this principle, the
Board determined that newspaper carriers were independent contractors
after finding that 363 carriers, or 29 percent of them, had multiple
routes. Id. at 1045 fn. 6. To the extent that the Board’s approach in
Arizona Republic is inconsistent with today’s holding, it is overruled.
27 This approach is consistent with the Board’s practice in other
representation contexts. See, e.g. Oakwood Healthcare, Inc., 348
NLRB 686, 698 (2006) (refusing to consider the supervisory
characteristics of employees not included in petitioned-for unit);
Crittenton Hospital, 328 NLRB 879 fn. 6 (1999) (same); Dayton Tire
& Rubber Co., 206 NLRB 614 fn. 3 (1973), enfd. 503 F.2d 759 (10th
Cir. 1974) (same). See also D&L Transportation, 324 NLRB 160, 161
(1997); Tele-Computing Corp., 125 NLRB 6 fn. 6 (1959).
28 In Roadway III, supra, the Board relied on evidence showing that
only a small percentage of drivers in the employer’s nationwide system
had taken advantage of purported entrepreneurial opportunities. For
instance, the Board noted that only 3 out of Roadway’s 5000 drivers
nationwide had used their vehicles for other commercial purposes. 326
NLRB at 851. The Respondent argues that Roadway III supports the
consideration of systemwide evidence, but we do not read the decision
as compelling such consideration. In any case, for the reasons explained
here, we have clarified the Board’s approach today.
duty to “protect the integrity of [the Board’s] processes
against unwarranted burdening of the record and
unnecessary delay.”29 Here, systemwide evidence of
entrepreneurial opportunity cannot substitute for the
absence of similar evidence relating to employees in the
petitioned-for unit. In any case, as we will explain, even
if the systemwide evidence that FedEx sought to
introduce had been admitted and credited, it would not
affect our ultimate conclusion here, given the weight of
the record evidence supporting a finding of employee
status.30
2.
Actual entrepreneurial opportunity for gain or loss,
then, remains a relevant consideration in the Board’s
independent-contractor inquiry. We address here how
such evidence is to be properly assessed as part of the
analysis of the traditional common-law factors. In the
past, the Board has been less than clear about this point:
In some cases, entrepreneurial opportunity has been
analyzed expressly as a separate factor; in others, it has
been integrated into the Board’s analysis of other
factors.31 The Board has also spoken in terms of the
“economic independence” of putative contractors from
their employing entities.32 Today, we make clear that
entrepreneurial opportunity represents one aspect of a
relevant factor that asks whether the evidence tends to
show that the putative contractor is, in fact, rendering
services as part of an independent business.
This formulation is grounded in established law. In
United Insurance, for example, the Supreme Court
observed that the insurance agents involved did “not
operate their own independent businesses.” 390 U.S. at
259. And citing United Insurance, the Board in Roadway
III explained that the drivers did not operate an
independent business but rather “performed functions
29 Jersey Shore Nursing & Rehabilitation Center, 325 NLRB 603
(1998). See also Bennett Industries, 313 NLRB 1363, 1363 (1994)
(“[I]n order to effectuate the purposes of the Act through expeditiously
providing for a representation election, the Board should seek to narrow
the issues and limit its investigation to areas in dispute.”).
30 FedEx faults the Regional Director for “preclud[ing] a full and
complete record,” and barring FedEx from “proving its case to the
fullest,” but it does not explain why systemwide evidence would be
relevant to the drivers in the petitioned-for unit. We believe that the
Regional Director’s ruling was correct, but at worst, it was harmless
error, considering the record as a whole.
31 See, e.g., Lancaster Symphony Orchestra, supra, 357 NLRB 1761,
1763 (treating entrepreneurial opportunity as a separate factor);
Pennsylvania Academy of the Fine Arts, 343 NLRB 846, 846 fn. 1
(2004) (same). Cf. Roadway III, supra, 326 NLRB at 851–853
(considered in tandem with other factors); Stamford Taxi, supra, 332
NLRB at 1373 (same).
32 Slay Transportation, supra, 331 NLRB at 1294.

FEDEX HOME DELIVERY 621
that are an essential part of one company’s normal
operations.” 326 NLRB at 851.33
The independent-business factor encompasses
considerations that the Board has examined in previous
cases, including not only whether the putative contractor
has a significant entrepreneurial opportunity (as defined
above), but also whether the putative contractor: (a) has a
realistic ability to work for other companies;34 (b) has
proprietary or ownership interest in her work;35 and (c)
has control over important business decisions,36 such as
the scheduling of performance; the hiring, selection, and
assignment of employees; the purchase and use of
equipment; and the commitment of capital.37
In applying this factor, the Board must necessarily
consider evidence (as it has previously) that the employer
has effectively imposed constraints on an individual’s
ability to render services as part of an independent
business.38 Such evidence would include limitations
placed by the employer on the individual’s realistic
ability to work for other companies,39 and restrictions on
the individual’s control over important business
decisions.40 Pursuant to this inquiry, the Board will
consider whether the terms or conditions under which the
33 See also Slay Transportation, 331 NLRB at 1294 (owner-
operators do not operate independent businesses; rather they work
exclusively for the employer). Compare Restatement of the Law Third
Employment Law (Tentative Draft No. 2) Sec. 1.01 (“[A]n individual
renders services as an employee of an employer if . . . the employer’s
relationship with the individual effectively prevents the individual from
rendering the services as part of an independent business.”).
34 See DIC Animation City, 295 NLRB 989, 991 (1989) (noting that
“for 10 months out of the year, the writers do not work for the
Employer and do work for other companies”); Cf. C.C. Eastern, supra,
309 NLRB at 1070–1071.
35 Roadway III, supra at 846–848, 853; BKN, supra, 333 NLRB at
145.
36 See Penn Versatile Van Division of Penn Truck, 215 NLRB 843,
845 (1974) (“One of the basic factors in determining that an individual
is an independent contractor is his opportunity to make business
decisions affecting his profit or loss.”).
37 See, e.g. AAA Cab Services, 341 NLRB 462, 465 (2004)
(weighing these considerations); R. W. Bozell Transfer, 304 NLRB 200,
200–201 (1991) (same); Daily Express, 211 NLRB 92, 94 (1974)
(same).
38 See NLRB v. Friendly Cab Co., 512 F.3d 1090, 1098 (9th Cir.
2008) (“[The employer’s] restrictions against its drivers’ operating
independent businesses or developing entrepreneurial opportunities
strongly supports the NLRB’s determination that [its] drivers are
employees.”).
39 See Time Auto Transportation, 338 NLRB 626, 638–639 (2002),
enfd. 377 F.3d 496 (6th Cir. 2004) (“The witnesses credited testimony
reveals that Respondent’s procedures and its policies prevented drivers
from performing similar services for other companies, a factor relied on
by the Board and courts in concluding that individuals are statutory
employees.”).
40 See Standard Oil, supra, 230 NLRB at 971 (finding employee
status where the company made all “significant business decisions”).
individuals operate are “promulgated and changed
unilaterally by the company.”41 United Insurance, supra,
390 U.S. at 259.
To the extent that the Board’s decisions in Arizona
Republic, supra, 349 NLRB at 1045, and St. Joseph
News-Press, supra, 345 NLRB at 481–482, may have
mistakenly suggested that such considerations are not
relevant to the Board’s independent-contractor inquiry,
the two decisions are in tension with prior precedent, as
well as inconsistent with the view articulated today.
Those decisions are now overruled.
The more comprehensive independent-business factor
we set out today synthesizes the full constellation of
considerations that the Board has addressed under the
rubric of entrepreneurialism. Our formulation tracks the
forthcoming Restatement of the Law Third Employment
Law, and thus is consistent with contemporary
developments in jurisprudence.42 At the same time, the
independent-business factor supplements—without
supplanting or overriding—the traditional common-law
factors, to which the Board will continue to give full
consideration and appropriate weight. As with all other
relevant factors, the weight given to the independent-
business factor will depend upon the factual
circumstances of the particular case.
V. APPLICATION
Consistent with the preceding discussion, we now
carefully consider all relevant factors and find that the
drivers who operate out of FedEx Home Delivery’s
Hartford terminal are statutory employees under Section
2(3) of the Act. Our discussion tracks the factors set out
in § 220 of the Restatement (Second) of Agency—cited
with approval by the Supreme Court and routinely
applied by the Board—before concluding with the
newly-articulated independent-business factor. As
explained, under established law, the burden of proof is
on the party asserting independent-contractor status, here
FedEx.43
A. Extent of Control by Employer
FedEx exercises pervasive control over the essential
details of drivers’ day-to-day work. It requires that
drivers make their vehicles available for delivery from
Tuesday through Saturday, configures all of their service
areas, and controls the number of packages to be
41 See also Stamford Taxi, supra, 332 NLRB at 1373 (noting that
employer’s ability to unilaterally draft, promulgate, and change the
terms of the driver’s lease arrangements “weigh[s] heavily in favor of
employee status”).
42 See Restatement of the Law Third Employment Law, Reporter’s
Notes, comment D, and the cases cited therein.
43 See, e.g., BKN, supra, 333 NLRB at 144.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
delivered and stops to be made. FedEx accurately points
out that drivers enjoy some discretion over minor facets
of their work, namely the order in which to deliver
packages and the specific routes they travel. But “for a
rational driver, these decisions are mainly or wholly
dictated by the location of customers who need delivery
that day and the amounts they need. Such ‘decisions’ are
made every day by deliverymen whose employment
status is never questioned and involve little if any
independent judgment.”44 Similarly, while drivers have
some say over starting times and when to take breaks,
their freedom is limited by FedEx’s requirement that all
packages be delivered on the day of assignment, and by 8
p.m. Drivers’ minimal discretion over logistical choices
does not outweigh FedEx’s fundamental control over
their job performance.45 We find that the extent of
control factor weighs in favor of employee status.
B. Whether or not Individual is Engaged in a
Distinct Occupation or Business
By virtue of their uniforms and logos and colors on
their vehicles, drivers are, in effect, doing business in the
name of FedEx rather than their own. Even those drivers
who operate as incorporated businesses do business in
FedEx’s name.46 In practice, drivers are fully integrated
into FedEx’s organization and receive “considerable
assistance and guidance from the company and its
managerial personnel.”47 Drivers also rely extensively on
FedEx’s BSP, scanner system, and package handlers—
who sort, scan, and assemble packages on pallets for
drivers—to perform their jobs. Absent their affiliation
with FedEx, drivers would lack the infrastructure and
support to operate as separate entities.48 We find that the
44 Standard Oil Co., supra, 230 NLRB at 972 (finding that drivers’
control over minor job performance details, such as determining their
routes and sequence of deliveries, are “hardly significant indicators of
entrepreneurial activity or controlling the means of performance”).
45 FedEx asserts that much of the control it exerts over drivers—
namely the administration of drug tests and physical exams, display of
the FedEx logo on vehicles, and its safety inspection requirements—is
mandated by regulations. As explained, however, we find that FedEx’s
control over drivers far surpasses what is required by law. See Stamford
Taxi, supra, 332 NLRB at 1385.
46 See Roadway III, supra, 326 NLRB at 851 (noting that “the
drivers’ connection to and integration in Roadway’s operations is
highly visible and well publicized”). Cf. Argix Direct, supra, 343
NLRB at 1020–1021(finding independent-contractor status where
trucks could be any make, model, or color, and drivers could place their
own corporate names or logos on trucks).
47 See United Insurance, supra, 390 U.S. at 259.
48 See Gateway Chevrolet Sales, 156 NLRB 856, 866 (1966)
(finding individuals’ work to be “completely integrated into
Respondent’s regular business in a manner characteristic of an
employer-employee relationship”).
distinct-occupation factor weighs in favor of employee
status.
C. Whether the Work is Usually Done Under the
Direction of the Employer or by a Specialist
Without Supervision
Although drivers are ostensibly free of continuous
supervision in their work duties, FedEx essentially
directs their performance via the enforcement of rules
and tracking mechanisms. Drivers are required to adhere
to a strict company protocol, with guidelines governing
dress, appearance, safety, and the details of package
delivery.49 FedEx conducts periodic audits and appraisals
of driver performance, and has the ability to track all
major work activities—including signing in and out, and
deliveries—in real-time via scanner. Significantly,
FedEx may also impose disciplinary measures—
including suspension or termination—if drivers fail to
comply with contractual rules and procedures.50
Accordingly, we find that the direction factor weighs in
favor of employee status.
D. Skill Required in the Occupation
Drivers are not required to have any special training or
skills; in fact, drivers receive all necessary skills via 2
weeks of training provided by FedEx. The skill factor
thus weighs in favor of employee status.51
E. Whether the Employer or Individual Supplies
Instrumentalities, Tools, and Place of Work
Drivers own their vehicles and pay for most costs
associated with their operation, characteristics that the
Board has, in some instances, found to be supportive of
independent-contractor status.52 But the significance of
vehicle ownership is undercut considerably here by the
fact that FedEx plays a primary role in dictating vehicle
specifications and facilitating the transfer of vehicles
between drivers. FedEx eases drivers’ burden in
acquiring vehicles by providing prospective drivers with
the names of dealers, and by operating a vehicle-sales
database.53 In addition, drivers operate out of the FedEx
49 See Slay Transportation, supra, 331 NLRB at 1293–1294;
Lancaster Symphony, supra, 357 NLRB 1761, 1763.
50 See Slay Transportation, supra, 331 NLRB at 1294; Lancaster
Symphony, supra, 357 NLRB at 1763.
51 See United Insurance, supra, 390 U.S. at 259. See also Corporate
Express, supra, 332 NLRB at 1522; Prime Time Shuttle, 314 NLRB
838, 840–841 (1994).
52 See Argix Direct, supra, 343 NLRB at 1020. But see, e.g.,
Adderly Industries, 322 NLRB 1016, 1022–1023 (1997); R. W. Bozell
Transfer, supra, 304 NLRB at 201 (truck ownership unsupported by
other factors does not suggest independent contractor status).
53 See Roadway III, supra, 326 NLRB at 851–851. Accordingly,
“[a]lthough it does not directly participate in these van transfers, [the

FEDEX HOME DELIVERY 623
Hartford facility, where they work in tandem with
FedEx’s package handlers. Because aspects of the
instrumentalities factor cut both ways, we find it to be
neutral.
F. Length of Time for which Individual is Employed
Although drivers enter into 1-year or 2-year
Agreements, those Agreements are automatically
renewed for successive 1-year periods after the
expiration of their initial terms. In effect, drivers “have a
permanent working arrangement with the company under
which they may continue as long as their performance is
satisfactory.”54 Drivers’ sizeable capital investment in
vehicles, which must meet FedEx’s specifications, and
other FedEx-related equipment also suggests the
expectation of a continuous working relationship rather
than a short-term arrangement. We find that the length-
of-time factor weighs in favor of employee status.55
G. Method of Payment
FedEx establishes and controls drivers’ rates of
compensation, which are generally nonnegotiable.56
While drivers are not paid an hourly wage, FedEx’s
system of compensation nonetheless greatly minimizes
the possibility of genuine financial risk or gain.
Specifically, FedEx insulates drivers against loss by: (1)
guaranteeing a daily “vehicle availability payment” to
drivers simply for showing up on contractually-mandated
days; (2) subsidizing drivers in emerging routes via a
Temporary Core Zone Density settlement that
compensates them for what FedEx deems to be a
“normal” level of packages and deliveries; (3) granting
drivers a compensatory payment if FedEx reduces
customer volume on their routes; and (4) providing a
fuel/mileage subsidy if gasoline prices increase
substantially. All of these mechanisms “serve[] as an
important safety net . . . to shield [drivers] from loss” and
“guarantee[] an income level predetermined by [FedEx]
. . . .”57
FedEx likewise minimizes the possibility for
meaningful economic gain. To this end, FedEx retains
the right to curtail or reconfigure service areas in
response to growing customer bases, and to reduce the
Respondent’s] involvement in these deals undoubtedly facilitates and
ensures that a fleet of vehicles, built and maintained according to its
specifications, is always readily available and recyclable among the
drivers.” Id. at 852.
54 United Insurance, supra, 390 U.S. at 259.
55 See A. S. Abell Publishing Co., 270 NLRB 1200, 1202 (1984)
(“open-ended duration” of workers’ relationship with employer weighs
in favor of employee status); Cf. Pennsylvania Academy, supra, 343
NLRB at 847.
56 Lancaster Symphony, supra, 357 NLRB 1761, 1766.
57 Roadway III, supra, 326 NLRB at 853.
volume of packages on a driver’s route if FedEx
determines that it exceeds the volume she can reasonably
deliver. Accordingly, even though FedEx’s
compensation formula nominally accounts for incentive
factors, drivers’ ability to increase earnings based on
deliveries, stops, or mileage is broadly constrained by
FedEx’s control over service areas. “[U]nlike the
genuinely independent businessman, the drivers’
earnings do not depend largely on their ability to exercise
good business judgment, to follow sound management
practices, and to be able to take financial risks in order to
increase their profits.”58
Concededly, FedEx does not provide fringe benefits,
such as vacations or paid holidays, withhold taxes from
settlement checks, or pay for drivers’ work accident
insurance, all of which weigh in favor of independent-
contractor status. We find these considerations to be
outweighed, however, by the fact that FedEx
“establishes, regulates, and controls the rate of
compensation and financial assistance to the drivers as
well as the rates charged to customers.”59 For these
reasons, we find that the method of payment factor
weighs in favor of employee status.
H. Whether or not Work is Part of the Regular
Business of the Employer
The drivers devote a “substantial amount of their time,
labor, and equipment to performing essential functions
that allow [FedEx] to compete in the package delivery
market.”60 FedEx’s central mission is the delivery of
packages to customers; the drivers’ job is to effectuate
that purpose. Accordingly, drivers “perform functions
that are not merely a ‘regular’ or even an ‘essential’ part
of the Employer’s normal operations, but are the very
core of its business.”61 The regular-business factor thus
weighs heavily in favor of employee status.
I. Whether or not the Parties Believe they are
Creating an Independent-Contractor Relationship
FedEx believes that it is creating an independent-
contractor relationship when it requires that drivers sign
a contract acknowledging that characterization. But
drivers do not have an opportunity to negotiate over that
term, and a majority of unit members voted to be
represented as employees in collective bargaining with
FedEx. The intent factor is therefore inconclusive.62
58 Id. at 852.
59 Id.
60 Id. at 851.
61 Id.; United Insurance, 390 U.S. at 259; Slay Transportation,
supra, 331 NLRB at 1294.
62 Lancaster Symphony, supra, 357 NLRB at 1766.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
J. Whether the Principal is or is not in
the Business
FedEx, by the terms of the Agreement, “is engaged in
providing a small package information, transportation,
and delivery service throughout the United States.”
Because FedEx is engaged in the same business as the
drivers, we find that this factor weighs in favor of
employee status.63
K. Whether the Evidence Tends to Show that the
Individual is, in Fact, Rendering Services as
an Independent Business
FedEx has adduced limited evidence of actual
entrepreneurial opportunity for drivers, even if we
considered the systemwide evidence described in its
offer of proof and properly excluded by the Regional
Director. We agree with FedEx that drivers’ right to hire
and supervise supplemental drivers (which more than
half have exercised) is indicative of independent-
contractor status.64 But we give little weight to the
drivers’ right to sell their routes, which is more
theoretical than actual. FedEx exercises considerable
control over whether a driver may sell at all, to whom,
and under what circumstances. FedEx retains the right to
approve all individuals acquiring routes and obliges them
to enter into the Agreement “on substantially the same
terms and conditions” as the original driver. Moreover,
the nature of FedEx’s operation necessarily limits the
actual value of routes and any proprietary interest that
drivers might have in them. Specifically, FedEx does not
charge drivers to acquire new or existing routes, and it is
permitted to reconfigure or discontinue routes at any
time.65 It is perhaps unsurprising then that the Regional
Director found that only two route sales had taken place
in the history of the Hartford terminal.66 As FedEx
acknowledges in its brief, multiple-route drivers are
expressly excluded from the petitioned-for unit. Finally,
the actual exercise of the opportunity to sell her route
63 See Community Bus Lines/Hudson County Executive Express, 341
NLRB 474, 475 (2004) (observing that “owner-operators’ work is the
precise business of the Respondent”).
64 See Dial-A-Mattress, supra, 326 NLRB at 893. We note that the
existence of such an opportunity, in itself, does not preclude a finding
of employee status. See Roadway I, 288 NLRB at 198–199.
65 See Roadway III, supra, 326 NLRB at 853.
66 In its motion for reconsideration, the Respondent asserts that,
since the issuance of the Regional Director’s decision, “there have been
more than 20 route sales at Hartford.” Even assuming that to be true,
the Respondent’s assertion tells us nothing about the circumstances of
each sale or whether any profit was realized by the drivers. Nor would
it change the fact that all of these sales would have been made pursuant
to the terms imposed by the Respondent, as described above. For the
same reason, systemwide evidence of route sales would not weigh
significantly in favor of independent-contractor status.
takes a single-route driver out of the unit because the sale
ends the driver’s relationship with FedEx. The ability to
sell a route, then, has limited bearing on the status of
drivers who remain in the unit.67 It is not an incident of
their ongoing relationship with FedEx, but an aspect of
its severance.
It is also highly significant that drivers’ arrangement
with FedEx effectively prevents them from working for
other employers. Although drivers have a nominal right
to use their vehicles for other commercial purposes when
they are not delivering packages for FedEx, the Regional
Director found no evidence that any Hartford driver had
ever done so. As a practical matter, drivers’ work
commitment to FedEx—typically from 6 a.m. to 8 p.m.
from Tuesday through Saturday—occupies the time
when most other commercial opportunities would be
available.68 The availability of overnight hours to
procure other work, in between mandatory daylong
shifts, is hardly indicative of true entrepreneurial
freedom.69 On top of that, drivers’ vehicles are
specifically tailored for FedEx’s operation, and drivers
must mask FedEx’s logo before using vehicles for other
purposes.70 In our view, drivers’ “lack of pursuit of
outside business activity appears to be less a reflection of
entrepreneurial choice . . . and more a matter of the
obstacles created by their relationship with [FedEx].”71
We note finally that drivers have no control over
important business decisions. Indeed, FedEx has total
command over its business strategy, customer base and
recruitment, and the prices charged to customers.72
Moreover, FedEx unilaterally drafts, promulgates, and
changes the terms of its Agreements with drivers,
features that “weigh heavily in favor of employee
status.”73 There is no evidence in the record that the
drivers advertise for business or maintain any type of
business operation or business presence. For all of these
reasons, we find that drivers “do not have the
67 We thus find immaterial the Respondent’s assertion, in its motion
for reconsideration, that the number of multiple-route operators has
increased from three to six since the Regional Director issued his
decision.
68 Indeed, the Agreement states that FedEx “seek[s] to manage its
business so that it can provide sufficient volume of packages to
Contractor to make full use of Contractor’s equipment.”
69 See Time Auto Transportation, supra, 338 NLRB at 638–639.
The record also reveals that DOT regulations prohibit drivers from
working more than 12 hours a day or 60 hours a week.
70 See Roadway III, supra, 326 NLRB at 851.
71 Id. Cf. Argix Direct, supra, 343 NLRB at 1020–1021 (finding
contractor status where employer placed no restriction on the use of
drivers’ trucks, trucks could be of any model or color, and drivers
placed their own names and logos on trucks).
72 See C.C. Eastern, supra, 309 NLRB at 1072.
73 Stamford Taxi, supra, 332 NLRB at 1373.

FEDEX HOME DELIVERY 625
independence, nor are they allowed the initiative and
decision-making authority, normally associated with an
independent contractor.”74
We conclude, that considering the evidence as a
whole, this factor weighs in favor of finding employee
status.
VI. RESPONSE TO MEMBER JOHNSON’S DISSENT
In dissent, Member Johnson makes three principal
arguments, which, after careful consideration, we reject.
First, he argues that the approach we adopt today is not
permitted by the Act, because it is somehow inconsistent
with the common-law test that Congress has required the
Board to apply. Second, he endorses the approach taken
by the District of Columbia Circuit in FedEx Home
Delivery as the best option statutorily open to the Board.
Third, he argues that, our approach, even if permissible,
reflects a flawed “entrepreneurial opportunity
methodology.” We address each argument in turn.
A.
Member Johnson begins by asserting that the
“unmistakable origin and inspiration” for our approach
today is the Supreme Court’s 1944 decision in Hearst
Publications,75 which endorsed the Board’s then-
prevailing “economic realities” test. Congress rejected
that approach in adopting the Taft-Hartley Act in 1947,
as the Supreme Court explained in United Insurance,
supra. The “obvious purpose of this amendment,” in the
Court’s words, “was to have the Board and the courts
apply general agency principles in distinguishing
between employees and independent contractors under
the Act,” as opposed to a standard based on “economic
and policy considerations within the labor field.”
Contrary to the dissent’s claim—and in clear contrast to
Hearst—our approach today is demonstrably faithful to
United Insurance and the common-law test.
We have carefully applied the traditional, nonexclusive
common-law factors identified in the Restatement
(Second) of Agency and endorsed by the Supreme Court.
Consistent with prior Board case law, we have integrated
an examination of entrepreneurial opportunity into the
test, but without making that factor decisive or
neglecting other incidents of the relationship between the
drivers and FedEx.76 On this score, it is worth pointing
out that the U.S. Court of Appeals for the Ninth Circuit,
applying a California common-law test that closely
74 United Insurance, supra, 390 U.S. at 258.
75 NLRB v. Hearst Publications, 322 U.S. 111 (1944).
76 If anything, it is our colleague whose position is grounded in a
particular set of “economic and policy considerations” (though not
considerations clearly drawn from the history and purposes of the Act),
at the expense of traditional agency principles.
resembles the Restatement approach, recently concluded
that FedEx drivers in California are employees, not
independent contractors.77 The Ninth Circuit concluded
that the “entrepreneurial opportunities” cited by FedEx
did not support independent-contractor status, given the
company’s control over those opportunities.78
Member Johnson’s attempt to link our approach to
Hearst, supra, then, has no basis. Nor does his related
claim that we have adopted the test articulated by then-
Member Liebman, dissenting from the Board’s decision
in St. Joseph News-Press, supra. As explained, we
overrule St. Joseph News-Press, 345 NLRB 474 (2005),
today, insofar as that decision mistakenly suggested that
the Board cannot consider evidence that a putative
employer has effectively imposed constraints on an
individual’s ability to render services as part of an
77 Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981
(9th Cir. 2014). See also Slayman v. FedEx Ground Package System,
Inc., 765 F.3d 1033 (9th Cir. 2014) (holding that FedEx drivers are
employees under Oregon law, applying State right-to-control test and
State economic-realities test).
In Alexander, supra, the Ninth Circuit applied the “multi-factor test
set forth in [S.G. Borello & Sons, Inc. v. Department of Industrial
Relations, 48 Cal.3d 341 (1989)].” 2014 WL 4211107 at *5, slip op. at
14. The Ninth Circuit described the test this way:
California’s right-to-control test requires courts to weigh a number of
factors: “The principal test of an employment relationship is whether
the person to whom the service is rendered has the right to control the
manner and means of accomplishing the result desired.”
. . . .
California courts also consider “several ‘secondary’ indicia of the
nature of a service relationship.” The right to terminate at will, without
cause, is “[s]trong evidence in support of an employment
relationship.”
. . . .
Additional factors include:
(a) whether the one performing services is engaged in a distinct
occupation or business; (b) the kind of occupation, with reference to
whether, in the locality, the work is usually done under the direction of
the principal or by a specialist without supervision; (c) the skill
required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for
the person doing the work; (e) the length of time for which the
services are to be performed; (f) the method of payment, whether by
the time or by the job; (g) whether or not the work is a part of the
regular business of the principal; and (h) whether or not the parties
believe they are creating the relationship of employer-employee.

These factors “[g]enerally . . . cannot be applied mechanically as
separate tests; they are intertwined and their weight depends often on
particular combinations.”
Id. at *6, slip op. at 14–15. (Internal citations omitted.) The Ninth Circuit
accordingly addressed FedEx’s right to control the manner and means in
which the drivers performed their work, as well as the remaining secondary
factors. The similarity between the approach followed by the Ninth Circuit
and that of the Restatement (Second) of Agency § 220, examined here, is
clear, despite our dissenting colleague’s contrary suggestion.
78 Alexander, supra, 2014 WL 4211107 at *11, slip op. at 24–26.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
independent business. To reject the view of the St.
Joseph News-Press majority on this point, of course, is
not to adopt the test of the dissent in that case—and we
do not. Our test is the test articulated here.
B.
In Member Johnson’s view, the Board can and should
adopt the approach of the District of Columbia Circuit in
FedEx Home Delivery, supra. We have already
explained why we have chosen not to do so. In short, we
believe that the court’s approach would create a broader
exclusion under Section 2(3) of the Act than Congress
actually intended, denying the protections of the Act to
workers who are, in fact, employees under common-law
agency principles. The Ninth Circuit’s recent FedEx
Ground decisions suggest as much.
We do not understand Member Johnson to argue that
the Board is required to adopt the District of Columbia
Circuit’s approach, which approach the court incorrectly
ascribed as the Board’s own view. Member Johnson
points to no decision of the Supreme Court that treats
“entrepreneurial opportunity” as an “animating principle”
of the common-law agency test.79 Nor does he point to
anything in the Restatement (Second) of Agency—which
has guided the Court in this area—that clearly refers to
the concept of “entrepreneurial opportunity,” much less
makes it the “animating principle” of the inquiry.80 As
we have shown, the very notion of such an “animating
principle” is hard to reconcile with the Supreme Court’s
admonition against the use of a “shorthand formula or
magic phrase” in making the independent-contractor
determination.81 The dissent, then, does not persuade us
that “entrepreneurial opportunity” should be the focus of
the Board’s analysis.
79 Remarkably, after wrongly asserting that our approach is drawn
from the Congressionally abrogated “economic realities” test of the
Supreme Court’s Hearst decision, Member Johnson invokes another
Supreme Court decision, Silk, that applied the same economic realities
test. U.S. v. Silk, 331 U.S. 704 (1947) (applying Social Security Act).
The Silk Court made plain that it was following Hearst. Id. at 713–714
(“Application of the social security legislation should follow the same
rule that we applied to the National Labor Relations Act in the Hearst
case.”). The Silk Court did not apply common-law agency principles.
Member Johnson also cites appellate decisions where courts have
pointed to the absence of entrepreneurial opportunities as supporting a
finding of employee status. See NLRB v. Friendly Cab Co., 512 F.3d
1090 (9th Cir. 2008); Painting Co. v. NLRB, 298 F.2d 492 (6th Cir.
2002). But those decisions cannot be fairly read to say that the
presence of some entrepreneurial opportunities would suffice to
establish independent-contractor status. Nor do those cases support the
D.C. Circuit’s analysis or undermine the approach we take here.
80 Member Johnson explains that he “would apply entrepreneurial
opportunity as an important element in determining the factors b, c, e, f,
i, and j in the Restatement,” but he does not argue that the Restatement
itself does so.
81 United Insurance, supra, 390 U.S. at 258.
C.
Much of Member Johnson’s dissent is taken up by his
attempt to show that, in distinguishing between actual
and theoretical entrepreneurial opportunity (as he
concedes the Board must do), we have placed too much
emphasis on the degree to which bargaining unit workers
in fact take an opportunity. For our colleague, this point
is crucial, because of the overriding weight he would
give to the entrepreneurial-opportunity factor (at the
expense of the traditional common-law factors) and, in
particular, to route sales as the determining evidence of
entrepreneurial opportunity. Our commonsense
approach, by contrast, looks to demonstrable facts, not
speculative theories. As we have suggested, however, in
this case the debate is academic. Even if we employed
precisely the “methodology” that Member Johnson
demands, and even if we considered and credited the
systemwide evidence that FedEx proffered here,82 our
ultimate conclusion would be the same, given the weight
of the evidence supporting the other common-law
factors.
Most of the traditional common-law factors strongly
support a finding of employee status. The independent-
business factor, as we denominate it today, also points
toward employee status. In that context, we have
considered the entrepreneurial opportunities available to
FedEx drivers, and found them to be minimal. In
particular, we accord little weight to the right of drivers
to sell their routes, given the control FedEx exercises not
only over that right, but also over the existence and
configuration of the route itself.83 A driver’s actual sale
of her route, in turn, takes her out of the bargaining unit.
All of these considerations persuade us that a driver’s
right to sell her route is of very limited significance here,
in its own right and, more particularly, in the context of
the record as a whole. Simply put, and contrary to
Member Johnson’s view, this case does not turn on
“sample size,” “business valuation principles,” and
whether there was a “market for route sales.”84 Member
82 FedEx’s offer of proof regarding systemwide evidence asserts that,
as of March 2007, there were 933 multiple-route operators, and that,
from 2005–2006, there had been at least 11 route sales in the northeast
region. As we have noted, multiple-route operators are not in the unit
and a driver’s actual sale of her only route would terminate her
employment relationship with FedEx.
83 Accord: Alexander v. FedEx Ground, supra, 2014 WL 4211107 at
*11, slip op. at 26 (describing control exercised by FedEx with respect
to route sales as negating significance of asserted entrepreneurial
opportunities).
84 Member Johnson describes route sales as a “hallmark of
entrepreneurial opportunity,” but he does not convincingly demonstrate
why. What the selling driver conveys to the buyer is the creation of
FedEx and remains subject to the control of FedEx in every important

FEDEX HOME DELIVERY 627
Johnson endorses the “assessment of entrepreneurial
opportunity” while recognizing the Board’s lack of
expertise. Indeed, it seems to us highly implausible that
Congress intended to make the Board’s independent-
contractor inquiry turn on an economic mode of analysis
it objected to the Board performing.85
VII. CONCLUSION
Here, it was FedEx’s burden to establish that the
drivers are independent contractors, and it has failed to
carry that burden.
As explained, the great majority of the traditional
common-law factors, as incorporated in the Restatement
(Second) of Agency, point toward employee status:

that FedEx exercises control over the drivers’ work;

that the drivers are not engaged in a distinct business;

that the work of the drivers is done under FedEx’s
direction;

that the drivers are not required to have special skills;

that drivers have a permanent working relationship
with FedEx;

that FedEx establishes, regulates, and controls the rate
of drivers’ compensation and financial assistance to
them;

that the work of the drivers is part of the regular
business of FedEx; and

that FedEx is in the same business as the drivers.

Two of the traditional factors—who supplies the
instrumentalities of work, and whether the parties believed
they have created an independent-contractor relationship—
we view as inconclusive, but they would in any case not
outweigh the remaining factors. Finally, we have carefully
considered an additional factor: whether the evidence tends
to show that the drivers render services to FedEx as part of
their own, independent businesses. We have determined
that, on the whole, it does not—and we would reach the
same conclusion even considering the systemwide evidence
respect: FedEx has both the right to adjust the volume of daily
deliveries and the right to reconfigure the route at any time. Moreover,
it has exclusive control over the customer base, recruitment, and
pricing.
85 As noted by Member Johnson, the Board is prohibited from
employing individuals for the purpose of economic analysis. 29 U.S.C.
§ 154(a).
that FedEx proffered, but that the Regional Director
excluded from the record.
Weighing all the incidents of drivers’ relationship with
the Respondent, we conclude that FedEx Home
Delivery’s Hartford drivers are statutory employees and
not independent contractors.86 Accordingly, we grant the
General Counsel’s Motion for Summary Judgment.87 On
the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware
corporation, with a place of business in Windsor,
Connecticut, the Respondent’s facility, has operated a
home package delivery service.88
During the 12-month period ending June 30, 2010, the
Respondent, in conducting its operations described
above, derived gross revenues in excess of $500,000 and
purchased and received at its facility goods valued in
excess of $50,000 directly from points located outside
the State of Connecticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union, International
Brotherhood of Teamsters, Local Union No. 671, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on May 11,
2007, the Union was certified on May 27, 2010, as the
exclusive collective-bargaining representative of the
employees in the following appropriate unit:

All contract drivers employed by Respondent at its
Hartford terminal, but excluding drivers and helpers
hired by contract drivers, temporary drivers,
supplemental drivers, multiple-route contract drivers,
package handlers, office clerical employees, and
86 Consistent with Roadway III, supra, we note that “the same set of
factors that was decisive [here] may be unpersuasive when balanced
against a different 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.” 326 NLRB
at 850, quoting Austin Tupler Trucking, Inc., 261 NLRB 183, 184
(1982).
87 The Respondent’s request that the complaint be dismissed in its
entirety is therefore denied.
88 In its answer to the complaint, the Respondent admits that FedEx
Ground Package System, Inc. is a Delaware corporation with a place of
business in Windsor, Connecticut, and that the corporation has a home
delivery service offering.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
guards, professional employees and supervisors as
defined in the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letters dated June 2 and 11, 2010, the Union
requested that the Respondent bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since about June 2, 2010, the Respondent has
failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining
representative of the unit. We find that this failure and
refusal constitutes an unlawful failure and refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about June 2, 2010, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the
certification as beginning the date the Respondent begins
to bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, FedEx Home Delivery, an Operating
Division of FedEx Ground Package Systems, Inc.,
Windsor, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters, Local Union
No. 671 as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment, and if an understanding is reached, embody
the understanding in a signed agreement:

All contract drivers employed by Respondent at its
Hartford terminal, but excluding drivers and helpers
hired by contract drivers, temporary drivers,
supplemental drivers, multiple-route contract drivers,
package handlers, office clerical employees, and
guards, professional employees and supervisors as
defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Windsor, Connecticut, copies of the
attached notice marked “Appendix.”89 Copies of the
notice, on forms provided by the Regional Director for
Region 34, after being signed by the Respondent’s
authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the
Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since on or
about June 2, 2010.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 34 a sworn
certification of a responsible official on a form provided
89 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”

FEDEX HOME DELIVERY 629
by the Region attesting to the steps that the Respondent
has taken to comply.

MEMBER JOHNSON, dissenting.
In light of the U.S. Court of Appeals for the District of
Columbia’s decision that delivery truckdrivers at two
FedEx facilities in Massachusetts are independent
contractors,1 the Board must today reexamine its earlier
denial of review of the Regional Director’s finding, in a
factually indistinguishable case, that drivers at FedEx’s
Hartford, Connecticut terminal are statutory employees.
We all nominally agree that, in resolving independent-
contractor issues, the Board applies the common-law
agency test “with no one factor being decisive,” as
required by the Supreme Court.2 As with many
multifactor tests, however, the agency test is amenable to
substantial variations in the weight assigned to each
factor and, thereafter, in the resulting conclusions.3 In
response to the court’s emphasis on the factor of
entrepreneurial opportunity, my colleagues have done
more than clarify and return to the analysis previously
articulated by the Board in Roadway Package Systems,
Inc., 326 NLRB 842, 849 (1998) (Roadway III), and
subsequently applied in St. Joseph News-Press, 345
NLRB 474 (2005). They have essentially adopted the
view of the dissenting Board Member in the latter case,
and thereby fundamentally shifted the independent
contractor analysis, for implicit policy-based reasons, to
one of economic realities, i.e., a test that greatly
diminishes the significance of entrepreneurial
opportunity and selectively overemphasizes the
significance of “right to control” factors relevant to
perceived economic dependency.
In my view, this shift goes beyond the established
limits of our agency discretion to define independent
contractors under the traditional common-law agency
test; even if permissible, it arbitrarily fails to give
adequate weight to entrepreneurial opportunity as part of
the test. Further, my colleagues compound that failure
by both incorrectly measuring and then artificially
restricting the relevant evidence for assessing what
opportunity actually exists for FedEx delivery drivers. I
therefore respectfully dissent.
1 FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009).
2 NLRB v. United Insurance Co. of America, 390 U.S. 254, 256
(1968).
3 Even when concurring with the Board’s holding in recent cases, I
have noted that tests that rely on an extensive array of factors are
susceptible to results-oriented analysis and the dangers posed by same.
Los Angeles Airport (LAX) Hilton Hotel & Towers, 360 NLRB 1080,
1089 fn. 3 (2014) (Member Johnson, concurring). However, under
Supreme Court precedent, we are bound to apply such a multifactor test
here.
I. THE MAJORITY’S TEST IS AN IMPERMISSIBLE
RESURRECTION OF THE CONGRESSIONALLY REJECTED
HEARST STANDARD, IN THAT IT WARPS THE COMMON LAW
TEST TO SUBORDINATE EVIDENCE OF ENTREPRENEURSHIP
TO THAT OF “DEPENDENCY”
The majority’s “refinement” of the Board’s approach
to independent-contractor cases begins with the
proposition that “entrepreneurial opportunity” must be
understood to mean actual, not merely theoretical,
opportunity for gain or loss. That is reasonable to a
point, as I discuss later in this opinion, but my colleagues
go beyond that point both legally and factually. Legally,
they refine the analysis of the entrepreneurial opportunity
factor by reformulating it as simply one minor aspect of a
new, nondeterminative factor looking to whether the
alleged independent contractor is, in fact, rendering
services as part of an independent business.
Notwithstanding the majority’s disclaimers, I contend
that this is the standard advocated in the St. Joseph
News-Press dissent,4 and it is implicitly founded on the
policy-based notion that the Act should be construed to
protect as many service providers as possible from any
imbalance in economic bargaining power between them
and the other party to the service contract.
The majority is convinced that accepting the court’s
position would result in “a broader exclusion from
statutory coverage than Congress appears to have
intended,” contravening the Supreme Court’s admonition
that “administrators and reviewing courts must take care
to assure that exemptions from NLRA coverage are not
so expansively interpreted as to deny protection to
workers the Act was designed to reach.” Holly Farms
Corp. v. NLRB, 517 U.S. 392, 399 (1996). However, the
majority errs by applying this admonition in a vacuum.
The particular exemption reformulated in this case—the
independent-contractor exemption—has a long and
storied history. That history is replete with a
Congressional mandate reversing the Board, as fully
recognized by the Supreme Court many years ago, that
forbids us from journeying down the path the majority
chooses now. Specifically, the majority acknowledges
but fails to give meaningful weight to a legal background
manifesting a clear Congressional intent that the Board
must apply the common-law agency test in determining
the scope of the independent-contractor exemption, and
that it do so in a way that does not reflect the more
4 “Here, then, it is entirely appropriate to examine the economic
relationship between the [r]espondent and the carriers to determine
whether the carriers are economically independent business people, or
substantially dependent on the [r]espondent for their livelihood.” 345
NLRB at 484 (Member Liebman, dissenting) (emphasis added).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 630
expansive and specifically rejected “economic realities”
or “economic dependence” test.5
Whether or not admitted, the unmistakable origin and
inspiration for the majority’s test is NLRB v. Hearst
Publications, 322 U.S. 111 (1944), where the Supreme
Court articulated a policy-based economic reality test for
determining independent-contractor status in cases
involving the scope and coverage of New Deal social
legislation, such as the Wagner Act. As later
summarized by the Court in U.S. v. Silk, 331 U.S. 704
(1947), applying the same test to the Social Security Act,

The problem of differentiating between employee and
an independent contractor or between an agent and an
independent contractor has given difficulty through the
years before social legislation multiplied its
importance. When the matter arose in the
administration of the National Labor Relations Act, 29
U.S.C.A. s 151 et seq., we pointed out that the legal
standards to fix responsibility for acts of servants,
employees or agents had not been reduced to such
certainty that it could be said there was “some simple,
uniform and easily applicable test.” The word
“employee,” we said, was not there used as a word of
art, and its content in its context was a federal problem
to be construed “in the light of the mischief to be
corrected and the end to be attained.” We concluded
that, since that end was the elimination of labor
disputes and industrial strife, “employees” included
workers who were such as a matter of economic reality.
The aim of the Act was to remedy the inequality of
bargaining power in controversies over wages, hours
and working conditions. We rejected the test of the
“technical concepts pertinent to an employer’s legal
responsibility to third persons for the acts of his
servants.” This is often referred to as power of control,
whether exercised or not, over the manner of
performing service to the industry. Restatement of the
Law, Agency, s 220. We approved the statement of the
National Labor Relations Board that “the primary
consideration in the determination of the applicability
of the statutory definition is whether effectuation of the
declared policy and purposes of the Act comprehend
securing to the individual the rights guaranteed and
protection afforded by the Act.”6

Adverse Congressional reaction to this more expansive
alternative to the common-law test led to the specific
exclusion of independent contractors from the Act’s
5 NLRB v. United Insurance Co. of America, 390 U.S. at 256.
6 331 U.S. at 713.
coverage in the Taft Hartley Amendments of 1947. As
explained in the House report on this legislation

[I]n . . . National Labor Relations Board v. Hearst
Publications, Inc., the Board expanded the definition of
the term “employee” beyond anything that it ever had
included before, and the Supreme Court, relying upon
the theoretic “expertness” of the Board, upheld the
Board. . . . It must be presumed that when Congress
passed the Labor Act, it intended words it used to have
the meanings that they had when Congress passes the
act, not new meanings that, nine years later, the Labor
Board might think up. In the law, there always has been
a difference, and a big difference, between
“employees” and “independent contractors.” . . . It is
inconceivable that Congress, when it passes the act,
authorized the Board to give to every word in the act
whatever meaning it wished. On the contrary, Congress
intended then, and it intends now, that the Board give
to words, not far-fetched meanings but ordinary
meanings. To correct what the Board has done, and
what the Supreme Court, putting misplaced reliance
upon the Board’s expertness, has approved, the bill
excludes “independent contractors” from the definition
of ‘employee.7

Subsequently, the Supreme Court recognized that
Congress had effectively abrogated the holdings in
Hearst and Silk to the extent they authorized policy-
based alternatives to the common-law agency test of
employee and independent-contractor status in the
absence of express statutory language.8 Thus, unlike our
Act’s exemption for the “agricultural laborer” at issue in
Holly Farms, which Congress specifically intended to be
narrowly construed,9 the legislative history on the
exemption for “independent contractors” shows that
Congress clearly and specifically intends that the
exemption for independent contractors not be too
narrowly construed, and that the common-law agency
test must apply. In short, Congress has declared a wide
gulf between the concepts of (a) the independent
contractor left uncovered by the Act, and (b) the
employee covered by the Act, and, thanks to the 1947
reforms, the only bridge over that gulf is Congress’ own
legislative action, not our reformulation of a legal test or
our purported economic analysis.
7 H.R. 245, 80th Cong., 1st Sess., on H.R. 3020, at 18 (1947).
8 Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 324–
325 (1992).
9 Holly Farms Corp., 517 U.S. at 399 fn. 6 (noting that legislative
history suggests that Congress intended for the agricultural laborer
exclusion to be narrowly construed).

FEDEX HOME DELIVERY 631
In overruling St. Joseph News-Press and effectively
adopting the rationale expressed by the dissent there, my
colleagues apparently cling to the belief that an economic
dependence test of independent-contractor status is still
permissible if engrafted onto the common-law agency
test. I disagree, as did the St. Joseph News-Press
majority.10 Notwithstanding their protestations to the
contrary, my colleagues’ articulation of an economic
dependency test, even dressed in the common-law
agency wrappings, cannot be divorced from the policy-
based rationale endorsed in the Hearst and Silk opinions,
which the Supreme Court has itself deemed to be “feeble
precedents for unmooring the term [‘employee’] from the
common law.”11 In sum, the Board’s discretion to
10 345 NLRB at 481 (“It is not appropriate, as advocated by the
dissent, for the Board to implement such an alteration of the legal
landscape without Congressional direction.”).
11 Nationwide Mutual Insurance Co. v. Darden, 503 U.S. at 324.
The majority’s reference to the recent decision in Alexander v. FedEx
Ground Package System, Inc., 765 F.3d 981 (9th Cir. 2014), is
singularly unhelpful to their disavowal of reliance on the discredited
rationale of Hearst and Silk. The issue litigated in Alexander was
whether FedEx drivers should be considered employees or independent
contractors under the California Workmen’s Compensation Act. That
issue was governed by a State law standard, not the independent-
contractor standard pertinent to the Act that I discuss herein. Indeed,
the Ninth Circuit panel repeatedly made the point that it was deciding
this issue under the applicable State law test, which the parties agreed
was the multifactor test set forth in S. G. Borello & Sons, Inc. v.
Department of Industrial Relations, 48 Cal.3d 341 (1989). The
California Supreme Court there expressly stated that
the concept of “employment” embodied in the [California Workmens
Compensation] Act is not inherently limited by common law
principles. We have acknowledged that the Act’s definition of the
employment relationship must be construed with particular reference
to the “history and fundamental purposes” of the statute.
. . . .
Federal courts have long recognized that the distinction between tort
policy and social-legislation policy justifies departures from common
law principles when claims arise that one is excluded as an
independent contractor from a statute protecting “employees.” Where
not expressly prohibited by the legislation at issue, the federal cases
deem the traditional “control” test pertinent to a more general
assessment whether the overall nature of the service arrangement is
one which the protective statute was intended to cover. [Id. at 352.
(Emphasis added.)]
The Court cited Hearst and Silk, inter alia, in support of the
highlighted social policy proposition. It specifically distinguished the
law applicable to determinations of independent-contractor status under
the Federal Insurance Contributions Act and Federal Unemployment
Tax Act where, as in our own Act, Congress affirmatively amended the
statutes in 1948 to provide that the employment relationship must be
determined by “usual common-law rules.” Id., citing U.S. v. Webb,
Inc., 397 U.S. 179, 183-190 (1970). In an accompanying footnote, the
Court stated “[w]e find no similar express confinement to common law
principles in our workers’ compensation scheme.” Id. at 352 fn. 6. It
could not be clearer, then, that the test articulated by the California
Supreme Court in Borello & Sons and applied by the Ninth Circuit in
Alexander is not the common-law test that Congress requires us to
redefine the limits of the independent-contractor
exemption as the majority does today is therefore not as
broad or entitled to judicial deference as my colleagues
suppose it to be.12 None of the factors of Roadway
Express III, either singly or in combination, can serve as
a Trojan Horse for the proposition that any
nonequivalency of bargaining power in a service contract
must then create Board jurisdiction. It is for Congress,
not the Board, to address the policy-based concerns the
majority may have regarding the common-law test and
the significance of entrepreneurial opportunity under that
test, even as applied to individuals providing exclusive
service to one entity with superior economic power.13
apply, even if its “secondary indicia,” as the majority points out,
overlap with the common-law factors of Restatement § 220. This test
is instead a variant of the policy-based economic realities test of
Hearst, Silk, and the St. Joseph’s dissent. Similarly, the other Ninth
Circuit decision cited by the majority applied Oregon State right-to-
control and economic realities tests, neither of which is equivalent to
the common-law test we are required to apply under the National Labor
Relations Act. Slayman v. FedEx Ground Package System, Inc., 765
F.3d 1033 (9th Cir. 2014). Indeed, it proves my point that these State
tests ultimately declare themselves “not inherently limited by common
law principles” and in favor of making “a more general assessment
whether the overall nature of the service arrangement is one which the
protective statute was intended to cover” (Borello, 48 Cal.3d at 352),
despite technically including common-law agency factors. Just like the
majority’s new test, the State tests are inquiries ultimately tilted on
policy grounds to favor statutory coverage even where they may
contain some common-law agency factors. As described above,
Congress made a different coverage determination with the Act.
12 In contending that the Board is entitled to substantial judicial
deference in determining the scope of its jurisdiction with respect to
defining independent-contractor status, the majority misplaces reliance
on City of Arlington, Texas v. FCC, 569 U.S. 290 (2013). That case
involved deference to the so-called gap-filling discretion of an
administrative agency where Congress has not spoken directly
addressed the precise statutory question at issue. See Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–
843 (1984). Here, Congress has spoken, and the Supreme Court has
interpreted its intent to require the traditional common-law agency test.
The deference issue here is therefore comparable to the issue in NLRB
v. Bell Aerospace Co., Division of Textron, Inc., 416 U.S. 267, 289
(1974), where the Supreme Court held that the Board had no authority
to depart from past practice, in contravention of Congressional intent,
by narrowing the definition of managerial employees excluded from the
Act’s jurisdiction.
13 The majority’s analysis provides no real distinction from the
issues facing any sole proprietorship or small business that contracts as
a service provider to a company as immense as FedEx Ground. Large,
modern corporations will always be able to set the terms of engagement
in such dealings, yet this does not make the owners of the contractor
businesses their employees. The majority’s analysis, indeed, if applied
to small government contractors bound to the extensive obligations
typically imposed by the national Government in its contracts, would
seemingly make all of them government employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632
II. THE MAJORITY’S TEST, REGARDLESS OF ITS
INTRODUCTION OF ECONOMIC DEPENDENCE,
IMPERMISSIBLY GIVES THE CONCEPT OF
ENTREPRENEURIAL OPPORTUNITY SHORT SHRIFT
Even considered apart from the limitations imposed by
Congress and judicial precedent, the majority’s approach
impermissibly and arbitrarily discounts the historical
significance of evidence pertaining to entrepreneurial
opportunity under the traditional common-law agency
test and fails to provide an accurate and practical
measure of “actual” entrepreneurial opportunity. On this
point, I do not read the FedEx court’s decision as a major
departure from the traditional test or as giving inordinate
emphasis to entrepreneurial opportunity over all other
factors. At most, as discussed in section III below, the
only responsive refinement necessary in the Board’s
independent contractor analysis is to define factors
relevant to “actual” entrepreneurial opportunity, using a
realistic, practicable, and economically valid meth-
odology.14
As set forth in Roadway III,15 the Board applies the
nonexclusive 10-factor common-law agency test from
the Restatement (Second) of Agency § 220,16 cited with
approval in Community for Creative Non-Violence v.
14 As I will later explain, systemwide evidence excluded from the
preelection hearing in the underlying representation case is relevant and
necessary in order to have an accurate understanding of the actual
opportunities available to the drivers here. Thus, in my view, the
preferable alternative is to remand this case to the region to reopen the
record and to allow the parties to submit this systemwide evidence.
15 326 NLRB 842, 849 and fn. 32 (1998).
16 § 220 provides, in pertinent part:
(1) A servant is a person employed to perform services in the
affairs of another and who with respect to the physical conduct
in the performance of the services is subject to the other’s
control or right of control.

(2) In determining whether one acting for another is a servant or
an independent contractor, the following matters of fact, among
others, are considered:
(a) The extent of control which, by the agreement, the master
may exercise over the details of the work.
(b) Whether or not the one employed is engaged in a distinct
occupation or business.
(c) The kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision.
(d) The skill required in the particular occupation.
(e) Whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work.
(f) The length of time for which the person is employed.
(g) The method of payment, whether by the time or by the job.
(h) Whether or not the work is part of the regular business of
the employer.
(i) Whether or not the parties believe they are creating the
relation of master and servant.
(j) Whether the principal is or is not in the business.
Reid, 490 U.S. 730, 751–752 (1989). In applying this
test, the Board follows the Supreme Court’s direction
that “all of the incidents of the relationship must be
assessed and weighed with no one factor being
decisive.”17 In the majority’s view, the FedEx court’s
decision contravenes this direction because it now treats
the entrepreneurial opportunity factor as dispositive in
cases where the common-law factors equally support
both independent-contractor status and employee status.
A more precise interpretation of the court’s decision,
however, is that it merely and correctly recognizes the
importance of the entrepreneurial opportunity factor in
the independent-contractor analysis. This interpretation
fully comports with Supreme Court and Board precedent.
Although the Board does not treat any factor as
generally dispositive, it has observed:

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 different 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.18

The FedEx opinion is not to the contrary. The court
observed that the common-law test “is not merely
quantitative[,]” not just a matter of counting up the
factors on each side of the question, but that “[i]nstead,
there also is a qualitative assessment to evaluate which
factors are determinative in a particular case, and why.”19
It went on to hold that “while all the considerations at
common law remain in play, an important animating
principle by which to evaluate those factors in cases
where some factors cut one way and some the other is
whether the position presents the opportunities and risks
inherent in entrepreneurialism.” Id. at 496 (emphasis
added). In this context, it is clear that the court did not
intend that the entrepreneurial opportunity factor be
treated as dispositive in every factual context. It
certainly did not run afoul of the Supreme Court’s
observation in United Insurance, quoted by the FedEx
court, that there is no “shorthand formula or magic
phrase that can be applied to find the answer” in an
independent-contractor analysis.20 Indeed, the court
17 NLRB v. United Insurance Co., 390 U.S. at 258. The Supreme
Court added that “[w]hat is important is that the total factual context is
assessed in light of the pertinent common-law agency principles.” Id.
18 Argix Direct, Inc., 343 NLRB 1017, 1022 fn. 19 (2004) (quoting
Austin Tupler Trucking, Inc., 261 NLRB 183, 184 (1982)).
19 563 F.3d at 497 fn 3.
20 390 U.S. at 258.

FEDEX HOME DELIVERY 633
noted that this “emphasis” on entrepreneurship did not
make applying the test “purely mechanical.”21
It bears noting here that, although the policy-based
economic reality test has been abrogated by Congress,
one holding from the Supreme Court’s Silk decision still
stands. This holding solidly emphasizes the decisive
significance of entrepreneurial opportunity even in the
context of the test applied there—which is the same test
that the majority applies here. Two cases were
consolidated for consideration in Silk. In one, the Court
affirmed the decision of the Seventh Circuit that drivers
who worked exclusively for Greyvan Lines and had its
name on their trucks were independent contractors. In
relevant part, the Court stated: “These driver-owners are
small businessmen. They own their own trucks. They
hire their own helpers. In one instance [Greyvan] they
haul for a single business, in the other [Silk] for any
customer. The distinction, though important, is not
controlling. It is the total situation, including the risk
undertaken, the control exercised, the opportunity for
profit from sound management, that marks these driver-
owners as independent contractors.”22 Simply put, it
would be incongruous to hold that drivers who own,
possess, and use their own trucks as, by definition, the
central instrumentality of their work were not
contractors, absent substantial offsetting circumstances
beyond the fact that they work exclusively for one
company. Thus, there is nothing remarkable at all about
citing this aspect of Silk as contrary to the result reached
by my colleagues even under the test they advocate.23
Furthermore, the FedEx court’s emphasis on the
entrepreneurial opportunity factor is not only consistent
with Supreme Court precedent, it is shared by other
lower courts as well, whether or not identified as a
separate factor in the analysis. See, e.g., NLRB v.
Friendly Cab Co., 512 F.3d 1090, 1097 (9th Cir. 2008)
(“In finding that the incidents of the relationship between
Friendly and its drivers militate in favor of ‘employee’
status, we place particular significance on Friendly’s
requirement that its drivers may not engage in any
21 563 F.3d. at 497.
22 Silk, 331 U.S. at 719.
23 I note that at least two Supreme Court justices have expressed this
view of Silk. See then-Judge Breyer’s opinion for the court in NLRB v.
Amber Delivery Service, Inc., 651 F.2d 57, 64 fn. 8 (1st Cir. 1981)
(“That the [Silk] Court reached this result is particularly significant in
that it applied a more expansive definition of the term ‘employee’ than
that applicable here”) and then-Judge Kennedy’s opinion of the court in
Merchants Home Delivery Service, Inc. v. NLRB, 580 F.2d 966, 975–
976 (9th Cir. 1978) (“in view of its consideration of the economic
reality test, the Court’s determination that the Greyvan drivers were
independent contractors assumes greater significance for our
purposes”).
entrepreneurial opportunities.”); Painting Co. v. NLRB,
298 F.3d 492, 500 (6th Cir. 2002) (finding no
independent-contractor status where employer
“controlled the employment” of the two individuals at
issue and where neither individual “exhibited any
meaningful entrepreneurial or proprietary characteristics
that would lead one to believe that they controlled the
terms of the work they completed”); Collegiate
Basketball Officials Assn., Inc., 836 F.2d 143, 145 (3d
Cir. 1987) (applying “right to control” test, court
examined factors such as type of services rendered, the
potential for additional profits through the exercise of
entrepreneurial skill, ownership and maintenance of
equipment); Merchants Home Delivery Service, Inc. v.
NLRB, 580 F.2d at 974 (“While a balancing of the
various indicia of control is somewhat inconclusive, the
entrepreneurial characteristics of the owner-operators tip
decidedly in favor of independent contractor status.”).24
As my colleagues acknowledge, the Board itself has
long considered whether individuals have “significant
entrepreneurial opportunity for gain or loss”25 in the
context of its analysis of independent-contractor issues.
Originally it did so as part of the “right to control” test.26
More recently, particularly since Roadway Express III,
the Board has increasingly recognized the significance of
evidence of entrepreneurial opportunity, including
considering it as a separate factor.27
In sum, the FedEx court’s decision can be easily
reconciled with extant judicial and Board precedent.
Contrary to my colleagues’ rationale, it clearly did not
represent a sharp departure from that precedent, nor does
it justify a response from us that is a sharp departure
24 See also Labor Relations Division of Construction Industries of
Massachusetts, Inc. v. Teamsters Local 379, 156 F.3d 13, 19–20 (1st
Cir. 1998) (in affirming district court’s reversal of arbitrator’s decision
finding that truckdrivers were employees under the LMRA, the First
Circuit reaffirmed that fundamental inquiry is “right to control” test,
but that, “[w]hile no one factor is decisive in this determination, there
can be little doubt of the prominence of the factor of entrepreneurial
risk and reward . . . .”).
25 Roadway III, 326 NLRB at 851.
26 See, e.g., BKN, Inc., 333 NLRB 143, 145 (2001) (finding writers
to be employees because they “perform functions that are an essential
part of the Employer’s normal operations” and have “no substantial
proprietary interest and no significant entrepreneurial opportunity for
gain or loss when they are writing scripts for the Employer”); DIC
Animation City, 295 NLRB 989, 991 (1989) (finding that writers are
independent contractors “because they control the manner and means
by which the results are accomplished and are subject to certain risks
involved in an entrepreneurial enterprise” and because employer’s
“limited control is insufficient to warrant a finding that the writers are
employees”).
27 E.g., Pennsylvania Academy of the Fine Arts, 343 NLRB 846, 846
fn. 1 (2004) (listing the entrepreneurial opportunity factor as separate
factor).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
from precedent by diminishing the significance of the
entrepreneurial opportunity factor to the point where it
will rarely be considered as among the decisive factors in
determining independent-contractor status. My
colleagues have made entrepreneurial opportunity a mere
subfactor in their analysis. This gives short shrift to what
should be an “animating principle,” especially
entrepreneurship—a form of economic opportunity that
most believe marks a clear dividing line between
operating one’s own business and merely performing a
work assignment.28
III. THE MAJORITY’S VIEW OF ENTREPRENEURIAL
OPPORTUNITY FAILS TO GIVE SUFFICIENT WEIGHT TO
THE SIGNIFICANCE OF ROUTE SALES
Although I do view the FedEx court’s decision as
consistent with Supreme Court and Board precedent, I
agree with the majority that the Board needs to clarify
that when it refers to entrepreneurial opportunity, it
means actual entrepreneurial opportunity, as opposed to
theoretical entrepreneurial opportunity. The Board
already considers whether entrepreneurial
opportunities—because the employer exercises
restrictive controls in some manner—are rendered more
theoretical than actual entrepreneurial opportunities.29 In
this respect, the majority merely reaffirms the principle,
espoused by the D.C. Circuit, that “if a company offers
its workers entrepreneurial opportunities that they cannot
realistically take, then that does not add any weight to the
company’s claim that the workers are independent
contractors,” C.C. Eastern, Inc. v. NLRB, 60 F.3d 855,
860 (D.C. Cir. 1995). I agree with this principle, but
more needs to be said about its application to determine
what constitutes an actual “significant entrepreneurial
opportunity for gain or loss” Roadway III, 326 NLRB at
851 (emphasis added).
A. Contrary to the Majority’s Position, the Sales
in this Case are Evidence of Actual
Entrepreneurial Opportunity
As previously discussed, the majority tilts its analysis
against giving appropriate weight to evidence of
28 To be specific, I would apply entrepreneurial opportunity as an
important element in determining the factors b, c, e, f, i, and j in the
Restatement (Second) of Agency § 220, in the particulars of this case.
See fn. 16, above. This application leads me to the conclusions set
forth below.
29 See, e.g., Slay Transportation, 331 NLRB 1292, 1294 (2000)
(finding employee status where, “despite [a] theoretical potential for
entrepreneurial opportunity, the control exercised by the [e]mployer
over the other aspects of its relationship with the owner-operators
severely circumscribed such opportunity”); Roadway III, 326 NLRB at
853 (finding employee status where employer “imposed substantial
limitations and conditions”).
entrepreneurial opportunity by cabining consideration of
such evidence as relevant only to a mere subpart of the
single factor of “rendering services as an independent
business.” My colleagues pay lip service to the argument
that drivers’ right to hire and supervise supplemental
drivers, which more than half have exercised, indicates
independent-contractor status. I agree more whole-
heartedly than the majority that the fact of hiring others
to help perform the object of a contract indicates
independent-contractor status.
However, it is far more troubling that the majority
also gives “little weight” to the drivers’ right to sell their
routes, which is deemed “more theoretical than actual,”
because of the extent of FedEx controls over a sale.30
Given these controls, the majority finds it “perhaps
unsurprising” that the Regional Director found only two
route sales had taken place at the Hartford terminal.
Then, diminishing the significance of route sales to the
vanishing point, the majority opines that their analysis
would be the same even under FedEx’s rejected proffer
of additional sales at Hartford, as well as of systemwide
sales. They reason that a route sale at Hartford would
either remove the seller from the petitioned-for unit
because the driver’s relationship with FedEx would
terminate or it would remove the purchaser of an
additional route from the petitioned-for unit because
multiple-route drivers are excluded. Thus, they contend,
evidence of route sales has limited bearing, if it is not
altogether immaterial, with respect to the status of
drivers remaining in the unit.
In marked contrast to the majority’s approach here, the
FedEx court had found that drivers had significant
entrepreneurial opportunity where two drivers were able
to sell their routes for profit ranging from $3000 to
$16,000, drivers could operate multiple routes, and
drivers could use their trucks to conduct other business
outside of FedEx work. 563 F.3d at 499, 500. For the
panel majority, the fact that at least one person had
availed of an opportunity was sufficient to establish that
an actual opportunity exists because “there is no
unwritten rule or invisible barrier” preventing others
from availing of such opportunities. Id. at 502 (quoting
C.C. Eastern, 60 F.3d at 860). That view is consistent as
well with the Board’s statement in Arizona Republic, 349
NLRB 1040, 1045 (2007), which the majority today also
overrules, that “the fact that many carriers choose not to
take advantage of [an] opportunity to increase their
30 For the sake of clarity, the FedEx “route” is not the same as the
classic delivery route. It is a delineated delivery territory where the
driver has the right under the Agreement to deliver packages and
receive a settlement check from FedEx, based on various factors, for
that service.

FEDEX HOME DELIVERY 635
income does not mean they do not have the
entrepreneurial potential to do so.”31
In my view, the FedEx court supplied us with both the
correct definition of actual entrepreneurial opportunity
from a route sale, if the analysis is reduced to a basic
theory of proof, and the weight to be assigned evidence
of this opportunity in proper application of the required
common-law test. The fact that someone actually took
an entrepreneurial opportunity is proof positive that the
opportunity existed in the first place. If the Board cannot
or does not deploy a more accurate econometric analysis
due to the state of a factual record, that should suffice to
carry the employer’s burden. What the Board cannot do,
and exactly what the majority has done here, is declare
that the actual taking of the entrepreneurial opportunity
(here, at least one sale) amounts to nothing, because “not
enough people in the proposed unit” took the opportunity
and, in any event, those who take the opportunity remove
themselves from the unit, making evidence of the sale of
minimal relevance to the remainder. Specifically, my
colleagues maintain that the facts relied upon by the D.C.
Circuit show that FedEx drivers have only a theoretical
entrepreneurial opportunity and that the court gave “little
weight” to countervailing considerations.32 In both
respects, I believe the opposite is true. The facts in the
FedEx case before us and the one decided by the D.C.
Circuit, which all agree are not meaningfully
distinguishable, provide sufficient evidence of
entrepreneurial opportunity, and my colleagues give far
31 I note, however, that the Board also considered that the carriers
were allowed to hire other carriers at their discretion; that several
carriers delivered other papers in addition to the Arizona Republic; that
many carriers held other jobs; and that carriers could negotiate piece
rates and accept tips from subscribers. 349 NLRB at 1044–1045.
32 Both the majority’s departure from the teaching of the 1947
amendments, United Insurance, and Darden, as well as the majority’s
specific failure to give due weight to entrepreneurial opportunity shown
by the facts here, amount to reversible error. However, in addition, I
strongly disagree with the majority’s assumptions that (1) FedEx’s
emphasis on branding so that its customers would have a seamless
perception of the FedEx delivery system, or (2) FedEx’s “business
service package” monitoring tools and their use here, would constitute
evidence in favor of control, and thus employee status. As to the first
point, any delivery service might want to present the consumer with the
“look” of a unified service while having little actual control over the
person driving the vehicle. As to the second point, monitoring is not
“control over the details of the work,” which is what the Restatement
test specifies as relevant. There is no evidence in this case that FedEx
is constantly dispatching drivers or giving mandatory directions for
deliveries. At most, it adds emergency deliveries, something any
contractor has to contend with, and it gives drivers optional directions,
something that is commonly available today through various mobile
phone apps. Notably, the drivers themselves can trade particular
deliveries by “flexing” them to each other. Finally, government-based
control should not be counted as evidence of FedEx Ground’s control
of the details of the work or of route sales transactions.
too little weight to them, particularly as to the evidence
of route sales, in balancing all of the traditional common-
law test factors.
First, it seems the majority and I have a basic
disagreement on whether sales of the “business” at issue
from one putative contractor to another signify anything
at all in terms of actual entrepreneurial opportunity. In
my view, sales of routes between drivers in this case are
highly important in demonstrating actual entrepreneurial
opportunity: (1) they constitute a type of actually realized
opportunity; (2) they show that the asserted business
actually has an independent value derived from an arm’s-
length exchange between two individuals; (3) they show
that potential participants (i.e., potential buyers and
sellers) are actually sizing up a market that actually exists
for the asserted business (see fn. 49, below); (4) they
show that the value of the asserted business is actually
greater than zero, i.e., two common-law employees
typically don’t negotiate and fix a price when one
replaces another who quits a job; and (5) they provide a
price—a measure of the value that can help us determine
whether the entrepreneurial opportunity is actual.33 Sales
thus tend to be a hallmark of entrepreneurial opportunity,
not immaterial or irrelevant to it.34 The majority rejects
this principle, based on the power of FedEx to potentially
change certain terms of its Agreement with the drivers.
But the majority’s analytical reliance upon FedEx’s
potential use of contractual power in order to minimize
33 A uniform series of sales for a nominal amount typically would
not be evidence of actual opportunity. However, the mere existence of
a no or a low price does not rule out that an actual entrepreneurial
opportunity exists. Some businesses have been bought for $1, with the
hope of “unlocking” significant or even massive potential value under
new management. For example, this happened with Newsweek in
2010. See http://dealbook.nytimes.com/2010/10/07/newsweeks-price-
tag-1 (last visited September 13, 2014).
34 The majority assails the conclusion that sales are a hallmark of
opportunity, but its premises are faulty. Even if “[w]hat the selling
driver conveys to the buyer is the creation of FedEx,” that is true of any
third-party contractual right that is assigned. Moving on, I dispute the
majority’s contentions that the economic opportunity “remains subject
to the control of FedEx in every important respect.” First, that FedEx
potentially can alter the contract (but only with notice, not “at any
time” as the majority posits) in terms of the overall volume of
deliveries and route reconfiguration should be immaterial to a
consideration of actual economic opportunity, especially an
opportunity that has been demonstrated by sales for considerable
monetary value. Indeed, the majority’s argument here reinforces my
conclusion that their approach is simply an economic dependence test
looking primarily to potential control by FedEx. Moreover, contrary to
the majority, FedEx does not have “exclusive control over the customer
base, recruitment, and pricing.” The customer base is determined by
who, nationwide, uses FedEx on any particular day to deliver a package
within the route’s territory; the drivers can recruit helpers or
replacements themselves; and FedEx cannot and does not
instantaneously change its compensation formula at its whim.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
the relevance of the drivers’ actual sales clearly
highlights that the majority is applying an economic
realities test. Respectfully, I do not think the majority
has considered the full impact of what a sale signifies in
the context of the common-law test.
Second, I disagree with the majority’s central claim
that the court gave too little weight to countervailing
considerations. In my view, the court fully and correctly
considered the same constraints FedEx placed on a
driver’s ability to take advantage of opportunities that the
majority does above. The court gave those
considerations little weight, and that is all the weight
those considerations deserve. For example, although the
majority does not dispute the fact that drivers have sold
their routes, it claims their ability to sell was
“significantly constrained” because they could only sell
to buyers that FedEx “accepted as qualified.” But as the
court found, being “qualified” merely meant that the
buyer also satisfied Department of Transportation
regulations, FedEx Home, 563 F.3d at 499, and the
Board has held that government-imposed rules and
regulations generally do not constitute control by the
employer. A.K.A. Metro Cab Co., 341 NLRB 722, 724
(2004). Moreover, the existence of some approval
condition or some other paper restrictions on the
assignment of a contract, if they are typically not
exercised to thwart the sale, is not a meaningful barrier to
selling. Our Federal procurement regulations, for
example, also pose restraints on the ability of
government contractors to freely assign government
contracts to each other, but none would argue that this
transforms the contractors into government employees.
Here, it is not the fact of any conditional restraint that is
relevant—most business contracts pose some restriction
on assignment to a new party—but whether assignments
are totally forbidden by the contract, as they typically
would be regarding the services of a common-law
employee. A common-law employee typically cannot
assign out work duties to another to perform in his or her
stead.
The majority also emphasizes that FedEx awards
“routes to drivers without charge” without explaining
how that offsets the fact that there had been route sales of
$3000 to $16,000 (or higher, according to the proffer by
FedEx). Indeed, I believe that the price differentials
establish that the purchasers of those routes viewed them
as having some entrepreneurial potential beyond those
routes they could have for free. The significant
differentials in route prices across routes in general,
including the FedEx-assigned “free routes” and those
sold among drivers, become apparent once one surveys
all the proffered evidence (see fn. 49, below) and indicate
at least a $55,000 route price differential. In my view,
such a differential also indicates that individual driver
management of a route can cause that much “swing” in
route profitability inside the FedEx route system. That
“swing” in potential reward is a key measure—if not the
ultimate measure—of the actual entrepreneurial
opportunity with which the Board should be concerned.
The D.C. Circuit also pointed out that the routes do not
come with a truck and driver, which presumably would
be provided by the driver with his funds and time.
FedEx Home, 563 F.3d at 500. Again, I agree with the
court.
Admittedly, the FedEx court did not address the
above-mentioned argument that evidence of route sales is
of little fundamental significance to determination of the
employee status of individuals in the petitioned-for unit
because the seller of a single route has terminated any
relationship with FedEx and the single-route purchaser of
another route is thereby excluded from the unit. By this
reasoning, of course, and assuming the veracity of the
Respondent’s proffer of evidence of a substantial
systemwide increase in route sales and multi-route
drivers (as my colleagues apparently do), then evidence
of route sales can never be consequential in my
colleagues’ analysis no matter how often it occurs in a
unit such as defined here. But, as pointed out above, a
sale is a realized opportunity. It is thus evidence of
opportunity, not evidence of the absence or termination
of opportunity. It shows continuing entrepreneurial
opportunity in the putative bargaining unit because the
“new participant” has joined the unit, not left it. It also
shows such opportunity in that this new participant (i.e.,
the buying “entrepreneur”) gauged the facts and thought
that the route he or she purchased was worth something
more than zero. In fact, from this buyer’s perspective,
the buyer believes the route—under his or her new
management—to be worth more than the price he or she
paid for it, or else the buyer would have not paid that
price.35
However, leaving out all the economics, I have a
problem with the logic of the majority’s characterization
of sales as irrelevant because the sellers exit the proposed
bargaining unit. Let’s imagine two people standing on a
hill overlooking a bay on the coast. One asks the other,
“I wonder if there is an actual opportunity for whales to
live in this bay?” A whale then breaches in the middle of
the bay and then swims out for the open ocean. I don’t
think the two observers would then turn to each other and
35 The buyer may think that he or she can run the route better, and
create more profit than the prior driver could. See fn. 33, above.

FEDEX HOME DELIVERY 637
conclude, “there is no actual opportunity for whales to
live in this bay.”36
I interpret the majority’s position to be simply that
“FedEx’s route sales are irrelevant.” However, I may be
incorrect and the majority’s assessment is not that “sales
are irrelevant” but rather the majority believes instead (or
as well) that “[t]he fact that only a small percentage of
workers in a proposed bargaining unit have pursued [a
route sale] opportunity demonstrates that it is not, in fact,
a significant aspect of their working relationship with the
putative employer.” Inasmuch as my colleagues would
find any number of sales to be of little significance to
their application of the independent-contractor test, and
they claim they would reach the same result here if
systemwide evidence were considered, it is not clear why
they even bother to make this statement. However,
looking to the “small percentage” theory, in order for an
entrepreneurial opportunity to be actual, there has to be a
showing that a certain number of individuals have seized
that opportunity. In other words, the majority considers
all evidence of entrepreneurial opportunity to be
theoretical—notwithstanding lack of employer
constraints37—if an insufficient “percentage” of
individuals in the proposed unit are taking advantage of
the opportunities.
But there is a fundamental problem with the premise
that a low number of sales transactions automatically
evidences that there is no actual opportunity. Fully
functional markets may exist even when both (1) few
observable transactions occur and (2) they occur rarely
over time. As an extreme example, consider the market
for aircraft carriers. Ten Nimitz class carriers were
constructed by Newport News Shipbuilding Company in
Virginia. The USS Nimitz, the lead ship of the class, was
commissioned on May 3, 1975, and USS George H.W.
Bush, the tenth and last of the class, was commissioned
36 The “whale-as-sale” analogy works for an additional reason.
Much of what we could conceivably use to determine the existence of
an actual opportunity for entrepreneurship comes from observing
realized opportunities, one of which is sales. Like the observers on the
hilltop, we cannot measure much more than the occasional appearance
of the whale above the waterline.
37 Apart from route sales, the majority also asserts that no current
drivers have ever used their trucks to conduct business independently of
FedEx, and the work commitment would have prevented them from
taking on extra business during nonwork hours. Id. In fact, even when
FedEx required its logos and markings to be removed or masked for
both commercial and personal purposes, there was evidence that drivers
had used their trucks for “personal uses like moving family members,”
and a multi-route driver had used his truck for a separate delivery
service for a repair company. FedEx Home, 563 F.3d at 498–499.
Moreover, as the court pointed out, the drivers were only obligated to
provide service 5 days a week, a schedule which certainly would not
preclude operating another part-time business. Id. at 499 fn. 5.
on January 10, 2009.38 On average, we can deduce that
only one aircraft carrier was produced every 3.4 years.
Despite the rarity of these transactions, none would argue
that no market for aircraft carriers exists. A more down-
to-earth example is residential real estate in a typical
suburban market (unlike the District of Columbia
metropolitan area). Depending on the neighborhood,
houses may sell slowly over time, and any particular
house might sell only once every few decades. Other
examples of relatively low rates of transactions abound
in the economy, such as mergers and acquisitions or
unique items. Both these categories are instructive,
given that the employer claims that route sales are a form
of business acquisition and that most of its sales routes,
from a functional perspective on a day-to-day basis, are
relatively exclusive and thus unique. In other words,
FedEx’s contention essentially is that these route sales
are acquisitions of businesses that also have near-
exclusive geographic rights; that contention would
dovetail with a low rate of sales transactions from a
common sense perspective.39 Going beyond this
mistaken premise, there are also problems with the
methodology of the majority’s “small percentage”
assumptions.
B. The Majority’s Entrepreneurial Opportunity
Methodology is Flawed: The Wrong Tools are Used to
Ask the Wrong Questions about Opportunity
The majority and the D.C. Circuit use the same
evidence to support opposing positions. Perhaps this
divergence stems from the fact that the Board and the
court have not explained how counting the number of
times individuals have availed of certain opportunities is
an accurate measurement of the significance or value of
actual entrepreneurial opportunity. As noted above, the
Board has analyzed entrepreneurial opportunity for gain
or loss in terms of constraints on the ability to take such
opportunities (e.g., whether a putative contractor has the
ability to work for other companies or hire employees
without approval); and entrepreneurial risks or losses
(e.g., whether a putative contractor has proprietary
interest in the work or capital expenditures). The Board,
however, has never really discussed entrepreneurial
38 See Jane’s Fighting Ships, 107th edition, edited by Commodore
Stephen Saunders, RN, New York, NY Arco 2004–2005, at 893; “USS
George H.W. Bush Aircraft Carrier Commissioned,” Roger Runningen
and Tony Capaccio, Bloomberg News, January 10, 2009. Admiral
Chester W. Nimitz and President Bush both served with distinction in
World War Two, the first as Commander in Chief of our Pacific fleet
and a major, visionary architect of the strategy employed in that theater
of war, and the second as a frontline pilot of a Grumman TBM
Avenger, who fought in several major engagements.
39 This would be especially true if the capital investment (a truck) is
not insignificant relative to the net income of the entrepreneur.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
opportunity for gain beyond counting the number of
individuals who have taken advantage of opportunities.
Thus, beyond defining actual entrepreneurial
opportunity, it is imperative that the Board adopt an
analysis that is grounded in concepts under which
entrepreneurship actually operates, and which can answer
the relevant question in the independent-contractor
analysis of whether putative contractors have actual
entrepreneurial opportunity for significant gain or loss.
Notably, as the majority’s discussion makes apparent,
the assessment of entrepreneurial opportunity is
fundamentally an attempt to use economic concepts to
delineate where the jurisdictional line of the Act should
fall. As a Board, we are forbidden to directly employ
economists. See 29 U.S.C. § 154(a). Our resulting lack
of expertise is another reason why the Board’s claim to
deference is particularly weak in this case. As I note
above, I empathize with and fully understand that the
majority is duty-bound in this case to tackle the concept
of entrepreneurial opportunity, and I agree with the
majority on the general proposition that we should
separate the actual economic opportunities from the
merely theoretical. But here, if the Board is to determine
what is an actual entrepreneurial opportunity and what
weight that opportunity must be given in assessing
whether an individual is rendering services as an
“independent business,” it cannot overlook staple
concepts of economics and econometrics in conducting
its evidentiary review. I fear the majority has done that
here, making any claim to deference even weaker.
Although I am neither economist nor statistician, I will
do my best to demonstrate the apparent weaknesses in
the majority’s approach.
Here, the majority’s position is demonstrably incorrect
in categorically asserting that: “[t]he fact that only a
small percentage of workers in a proposed bargaining
unit have pursued an opportunity demonstrates that it is
not, in fact, a significant aspect of their working
relationship with the putative employer.” The majority,
although it apparently does not recognize this, is
essentially claiming that because a sample (the
bargaining unit and its routes) had few observed
transactions, there is no entrepreneurial opportunity
because no meaningful market activity exists. Here, the
“sample size” of routes associated with the proposed
bargaining unit in this case is 18 single-driver routes,
from which the majority assumes it can measure whether
there is overall economic opportunity.40
40 The routes should comprise the correct sample, as we are looking
to measure sales. This is because entrepreneurial opportunity—one
measurable form of it at least—comes from the sale of a route, not the
sale of a driver.
But making statistical claims about economic
opportunity (or anything else) based on low sample sizes
is inherently problematic. Samples smaller than 30
typically are not useful in drawing empirically valuable
inferences about broader phenomena, with the potential
exception of randomized samples that also have a normal
distribution curve of data (i.e., the archetypal “bell
curve”41) within the sample. See Frank L, Schmidt, John
E. Hunter, Vern W. Urry, “Statistical Power in
Criterion-Related Validation Studies,” Journal of
Applied Psychology, 1976, Vol. 61, No. 4, 473–485.
This is because:

[t]he law of large numbers does guarantee that very
large random samples will be highly representative of
the population from which they are drawn. Those who
falsely assume that small samples will be similarly
representative are endorsing the law of small numbers.
The result is a gross overestimation of the amount of
information contained in small samples and the
correlated overestimation of the power of statistical
tests to extract this “information.”

Id. at 473.42 See also Jacob Cohen, Statistical Power
Analysis For The Behavioral Sciences (1987 ed.) at 7 (“The
I note, however, an independent flaw in the majority’s limitation of
the analysis of economic opportunity to single-route drivers in the
petitioned-for unit. Multiple-route drivers are conveniently excluded
from consideration as supervisors. This avoids the question whether
they are FedEx supervisors or supervisors of their own enterprise who,
by investing capital to purchase more than one route, have
demonstrated the economic opportunity in doing so.
41 See, e.g., John E. Freund, Modern Elementary Statistics (7th ed.
1988) at 218–224 for a basic discussion of the normal distribution, its
characteristics, and appearance. Suffice it to say that the normal
distribution shows a distribution of values clustering around some
arithmetic mean (represented at “0” below) that resembles the below
figure:

42 Two of the three authors of this study were officials at the
Personnel Research and Development Center of the U.S. Civil Service
Commission. The authors note that sample sizes of 30 to 60 persons

FEDEX HOME DELIVERY 639
larger the sample size, other things being equal, the smaller
the error and the greater the reliability or precision of the
results.”).
Courts, including the Supreme Court, have recognized
the problem with using small sample sizes to draw
general inferences, in disparate impact discrimination
cases, a class of cases where statistical proof is
commonly used. See, e.g., Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 996–997 (1988) (discussing use of
statistical evidence in disparate impact discrimination
cases; “Without attempting to catalog all the weaknesses
that may be found in such [statistical] evidence, we may
note that typical examples include small or incomplete
data sets and inadequate statistical techniques.”) (internal
citation omitted); Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605, 621 (1974) (in race
discrimination case, “the District Court’s concern for the
smallness of the sample presented by the 13-member
panel was also well founded”); Pollis v. New School for
Social Research, 132 F.3d 115, 121 (2d Cir. 1997) (“The
smaller the sample, the greater the likelihood that an
observed pattern is attributable to other factors and
accordingly the less persuasive the inference of
discrimination to be drawn from it.”); Coble v. Hot
Springs School District No. 6, 682 F.2d 721, 734 (8th
Cir.1982) (sample of 15 employment decisions over a
course of 8 years “too small to support any inference of a
discriminatory pattern or practice”). The sample of 18
routes present in this case, then, is too small to draw an
overall conclusion about the absence of an economic
opportunity. Moreover, there are fewer than 30 in the
majority’s posited sample, even if we looked at
“individuals in the potential unit” rather than routes as
comprising the relevant group to measure market
activity. To compound matters, the majority is
attempting to make a much more difficult inference than
were considered adequate by government entities at that time in 1976
for criterion-related validation studies (e.g., the type of study then used
to detect evidence of race discrimination). Id. at 473. However, they
conducted an independent analysis of 406 studies with a much larger
median size of 68, demonstrating that even with this larger sample size,
there was a significant chance of “false positives.” Id. at 482. They
further demonstrated that once sample size was reduced to 30, a
criterion known to be valid across nearly half of the sample would now
be reported by the studies as “invalid” 73 percent of the time. Id.
Even I, with a layperson’s view of statistics, can see their point—
attempting to make inferences with small samples can be little better
than a coin toss. See also Shinichi Nakagawa, “Forum: A farewell to
Bonferroni: the problems of low statistical power and publication bias,”
Behavioral Ecology, Vol. 15 No. 6 (June 2004): 1044–1045 (measuring
an experimental and control group, both of a sample size of 30, for a
five variable test, and finding that the statistical power of such test to
detect even a “medium”-level statistical effect is significantly less than
acceptable).
usually asserted from a sampling analysis, which
typically is trying to prove the existence of something
(e.g., discrimination in a hiring process). Instead, the
majority is essentially trying to prove a negative, i.e., that
“there is no functioning market for route sales” (and thus
there is no entrepreneurial opportunity). In a statistical
sense, trying to prove the absence of anything requires a
much larger sample than a typical test.43 See Cohen,
Statistical Power Analysis, at 4 (the “power” of a
statistical test is the probability that it will result in the
conclusion that a phenomenon exists where it does in
fact exist; discussing how statistical tests should have
considerable statistical power in order to be useful);
Table 2.4. at 54–55 (showing how, to conduct an analysis
with the recommended statistical power of .80, and
holding statistical significance constant, sample size
must increase dramatically in order to detect phenomena
of smaller and smaller effect); Douglas G. Alonan, J.
Martin Bland, “Statistics,” Absence of evidence is not
evidence of absence, British Medical Journal, Vol. 311,
No. 7003 (Aug. 19, 1995), p. 485. The majority appears
to have fallen victim to a “belief in the law of small
numbers,” i.e., that viewing the experiences of a
relatively small group of people in a large population can
tell us anything about the economic opportunities present
for either.44
Low sample size is not the only problem. Obviously,
the sample we are presented with in this case was not
randomly selected; it represents instead a group
consciously selected by the petitioner for election victory
43 I note in this regard that the Roadway III Board drew its
conclusions only after examining sales across Roadway’s entire
national system:
Furthermore, it is unclear whether any driver has gained or
profited materially from the sale of his service area. For the most
part, the evidence consists of unverified and incomplete
information contained in e-mail messages between Director
Breese and some other managers, none of which were parties to
these transactions. . . .
The testimonial evidence shows that the sales by drivers
Gonzales, Irions, Hawkins, and Steenburgen took place at
Roadway’s behest, if not direction to the drivers, to sell or risk
having their entire contract terminated. No gain was shown. In a
system of over 5000 drivers assigned to over 300 terminals, we
find that these few forced sales, given their circumstances, are
insufficient to support a finding of independent contractor status.
326 NLRB at 853 (emphasis added).
44 Amos Tversky and Daniel Kahneman, Hebrew University of
Jerusalem, “Belief in the Law of Small Numbers,” Psychological
Bulletin, 1971, Vol. 76, No. 2. 105–110 (erroneous intuitions about the
laws of chance include believing that (1) a sample randomly drawn
from a population is highly representative, i.e., similar to the measured
population in all essential characteristics and (2) sampling is a self-
correcting process; these beliefs lead to expectations about
characteristics of samples that underestimate true variability, at least for
small samples).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
purposes and that petitioner believed was arguably
appropriate as a bargaining unit. Another problem is that
the group of transactions that actually would supply us
with meaningful information across this sample is
equally small. In other words, we only have binary data
on “sales” versus “no sales” (with no information on
attempted sales, for example), and there is only one
“sale” versus “non-sale” data point for each route. To
put it mildly, this is not a “robust data set.” There is no
assurance that any distribution would be normal enough
to justify drawing inferences about a market for sales
from only this sample, and the majority posits none.45
The majority does not address any of these core
problems in its methodology. Indeed, it does not even
recognize that these are problems, or even views sales as
relevant at all in this case. This omission should not
inspire judicial deference. The linchpin of the
majority’s test—that the mere measurement of (1) a low
number of sales within; (2) a small group of persons thus
shows that; and (3) there is no “real” economic market in
existence for those persons—simply isn’t so.46
C. The Correct Approach Would Have Been to
Review Whether There was a Market for Route Sales,
and Using this Approach, the Case Should Have Been, at
the Least, Remanded to Allow the
Employer and Petitioner to Submit Evidence on a
Systemwide Basis
Besides its failure to give sales any weight at all, or
use the right tools and correct premises, the majority fails
to identify any value benchmark for sales that would
satisfy the test of actual entrepreneurial opportunity.
Unfortunately, the majority applies an inchoate
“significant aspect of the working relationship” standard.
But an entrepreneur’s economic decision to exploit an
entrepreneurial opportunity does not look to something
that amorphous. It depends instead on an assessment
whether “the expected value of the entrepreneurial profit
will be large enough to compensate for the opportunity
45 Indeed, it should be obvious that the 18 routes presented in the
“sample” used by the majority—with one value of $6000 and 17
values of zero—are not distributed in any pattern like a normal bell
curve. See fn. 41, above. The distribution within the sample instead
has a standard sample deviation of over 300 units, which would then
dictate using an extremely large number of routes to ensure a
statistically probative sample. See George Snedecor and William
Cochran, Statistical Methods (7th ed. Iowa State Univ. Press, 1980), at
31, 53 (containing formulas for calculation of sample standard
deviations and estimating an optimal sample size from an observed
standard deviation).
46 That, conversely, the existence of many transactions tend to show
a functioning market is in place, however, is plausible to me, depending
on what kind of transactions they are.
costs.”47 This would suggest use of the widely
recognized and accepted fair market value standard to
measure the actual value of route sales. “Fair market
value” is “the price at which the property would change
hands between a willing buyer and a willing seller” in a
market consisting of all potential buyers and sellers of
like business.48 Once the Board has ascertained or at
least estimated the fair market values of the
entrepreneurial opportunities available to the drivers, it
can then examine whether the entrepreneurial
opportunity factor is significant enough to weigh in favor
of finding independent contractor status.
The relevant information necessary to determine the
fair market value of an entrepreneurial opportunity will
vary depending on the nature of the business in each
case. At this stage, and in this case, there is insufficient
evidence in the record to provide anything more than
minimal guidance. As noted previously, one
entrepreneurial opportunity available to all drivers and
which has already been taken by at least a couple of
drivers is the opportunity to buy a route. Thus, route
sales would be a centrally important transaction and
evidence of route sales would thus be equally central.
For example, there is evidence of at least one driver who
purchased his route for $6000. That price did not include
a vehicle and there is no other evidence about the
transaction, such as the seller’s ultimate profit from the
sale. There is also evidence that one of the drivers,
before working at the Hartford terminal, had sold his
route at a FedEx facility in Bethpage, New York, to
another driver for $42,000. Thus, in addition to the
monetary value of the route sale, evidence submitted
should also include details as to whether a vehicle was
included in the sale and the seller’s ultimate profit.
Another factor that affects the value of the routes is how
often routes become available for sale. At the time of the
hearing, there were only 26 routes overall (the total
number of routes serviced by single- and multiple-route
drivers) at the Hartford terminal, but there is no evidence
as to how many routes since 2000 have become available
for purchase.49 Furthermore, there is little evidence here
47 Shane, Scott, and S. Venkataraman, “The promise of
entrepreneurship as a field of research.” Academy of Management
Review, Vol. 25, No. 1, 217–226, 223 (Jan. 2000) (“The decision to
exploit an opportunity involves weighing the value of the opportunity
against the costs to generate that value and the costs to generate value
in other ways.”).
48 U.S. v. Cartwright, 411 U.S. 546, 551 (1973); Pratt, Shannon P.,
and Alina Niculita, Valuing a Valuing a Business: The Analysis and
Appraisal of Closely Held Companies, (5th ed. 2008), pp. 41–42.
49 In this respect, I note that FedEx’s proffer regarding systemwide
evidence asserts that a “representative listing” of route sales in the
New Jersey and New England areas contains no fewer than 10 such

FEDEX HOME DELIVERY 641
that would allow us to establish the relevant market for
these routes, whether it be national, regional, or local.50
The majority’s approach disdains the need for
complete information about the fair market value of the
route sales. Such evidence, they say, would not change
the result reached here because their assessment of
economic opportunity does not turn on “sample size,”
“business valuation principles,” and whether there was a
“market for route sales.” They are agnostic, at best, as to
the relevance of such evidence. They maintain that even
accepting all the systemwide evidence of route sales that
FedEx presented here and in the associated cases (see fn.
49, above), the outcome is still a finding of employee
status. I obviously disagree with their methodology.
The fact that many sales are occurring with that much
money changing hands between the drivers indicates that
there are businesses of independent value being
evaluated and sold by business owners who control these
enterprises, as opposed to being mere episodes of work
force reshuffling controlled by FedEx.
Although the FedEx court did not necessarily require
systemwide evidence for the same reasons as I do, it
recognized that such evidence was relevant to the extent
that multiroute drivers and other FedEx drivers
nationwide operated under the same Operating
Agreement as the petitioned-for drivers in that case.51 If
the issue being examined were whether certain daily
tasks support finding independent contractor or employee
status, what other drivers in other terminals are doing
sales, with amounts paid ranging from $15,000 to $55,000. The parties
have also agreed to incorporate the transcripts, decisions and directions
of elections, and proffers of entrepreneurial activity from prior FedEx
cases into the record in the instant case. FedEx Home Delivery (FHD)
(Wilmington, MA) (Cases 1–RC–22034 and 1–RC–22035, review
denied 11/8/06); FHD (Worcester, MA) (Case 1–RC–21966, review
denied 3/23/06); FHD (Barrington, NJ) (Case 4–RC–20974, review
denied in relevant part 8/3/05); FHD (Fairfield, NJ) (Case 22–RC–
12508, review denied 1/26/05). The systemwide evidence in those
cases shows that terms of routes sales vary with some transactions only
involving the route, some including both the route and vehicle, and
some including some financing such as a down payment and the
assumption of vehicle loan payments. The evidence also shows that at
least two transactions involved a broker and broker fees.
50 Determining a relevant market might be synonymous with
determining a correct sample size.
51 FedEx Home, 563 F.3d at 499 fn. 6. In his partial dissent in FedEx
Home, Judge Garland disagreed with the majority’s “view that the
common-law test has gradually evolved until one factor . . . has become
the focus of the test . . . and can be satisfied by showing a few
examples, or even a single instance, of a driver seizing an
entrepreneurial opportunity.” 563 F.3d at 504. Judge Garland found no
such evolution but agreed that the Regional Director erred in preventing
FedEx from introducing systemwide evidence concerning the number
of route sales and the amount of profit and would have remanded the
case for further proceedings “to give FedEx a fair opportunity to make
its case under the appropriate test.” Id. at 519.
would be irrelevant. But that is not the case here; the
Board is required to analyze an “opportunity for
entrepreneurship” factor which necessitates trying to
prove or disprove the existence of a marketplace where
profit can result. Consequently, I think a far more
prudent and accurate alternative to the task of
determining the existence of a route sales market based
only on “those individuals in the [18 route, 26 person]
petitioned-for unit” would be to consider detailed
evidence of other FedEx drivers—multiroute and
nationwide. To that end, I would remand the case back
to the Regional Director to reopen the record and accept
relevant systemwide evidence to allow a proper
determination of the fair market value of the
entrepreneurial opportunities available to the drivers
here, in line with my more comprehensive approach
outlined above. However, inasmuch as my colleagues
state they would reach the same result here even if they
were to consider the proffered systemwide evidence, I
would hold, consistent with the FedEx court’s
determination, that the existence of the actual sale or
sales52 evidenced here were enough to show
entrepreneurial opportunity in that aspect of the
relationship between the Hartford drivers and FedEx.
This evidence, considered with other factors in a proper
application of the statutorily-required common-law test,
is sufficient to warrant finding the employer satisfied its
burden to show independent contractor status.
Conclusion
My colleagues maintain that entrepreneurial oppor-
tunity for gain or loss remains a relevant consideration in
the Board’s independent-contractor analysis, albeit, in a
minimized role as “one aspect of a relevant factor that
asks whether the evidence tends to show that the putative
contractor is, in fact, rendering services as part of an
independent business.” I wish this were so. In my view,
the test they articulate is an impermissible diminution of
the significance of entrepreneurial opportunity and, in
any event, an unwarranted response to a judicial decision
that has substantial support in court and Board precedent.
This test relegates evidence of entrepreneurial
opportunity factor to such minor significance as to
contravene the principle that the “weight to be given a
particular factor or group of factors depends on the
factual circumstances of each case.” [Emphasis added.]
(Maj. Op. at 2.) In this and virtually all future cases
where independent-contractor status is contested, the
majority has essentially determined that little weight be
assigned to the entrepreneurial opportunity factor.
Because the majority has failed to articulate a compelling
52 See fn. 49, above.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
reason as to why such a drastic response is necessary to
respond to the court’s decision and to resolve this case, I
respectfully dissent. As I explained above, only after the
case has been remanded back to the Regional Director to
reopen the record and accept systemwide evidence can
the Board have the ability to conduct a comprehensive
analysis of the entrepreneurial opportunity factor.
Lacking that comprehensive evidence, and in the
alternative as explained above, I would hold that that the
employer satisfied its burden to show independent
contractor status.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Teamsters, Local
Union No. 671 as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the
following bargaining unit:

All contract drivers employed by us at our Hartford
terminal, but excluding drivers and helpers hired by
contract drivers, temporary drivers, supplemental
drivers, multiple-route contract drivers, package
handlers, office clerical employees, and guards,
professional employees and supervisors as defined in
the Act.
FEDEX HOME DELIVERY, AN OPERATING
DIVISION OF FEDEX GROUND PACKAGE
SYSTEMS, INC.

The Board’s decision can be found at –
www.nlrb.gov/case/34-CA–012735 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.