Slay Transportation Co.

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1292 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
Slay Transportation Company, Inc. and Industrial
Marketing, Inc., and Teamsters Local Union 988
affiliated with the International Brotherhood of
Teamsters, AFL–CIO, Petitioner. Case 16–RC–
10044
August 25, 2000
DECISION ON REVIEW AND ORDER REMANDING
BY MEMBERS FOX, LIEBMAN, AND BRAME
On July 21, 1998, the Regional Director for Region 16
issued a Decision and Direction of Election in the above-
entitled proceeding, in which the Petitioner seeks to repre-
sent a unit of approximately 56 truckdrivers, tank washers,
and mechanics employed by the Employer at its Houston,
Texas facility.
The Employer contends that approximately 71 owner-
operator truckdrivers also must be included in the unit
because they are statutory employees who are encom-
passed by the driver classification. The Regional Director
found, inter alia, that the owner-operators are independent
contractors, and not employees within the meaning of Sec-
tion 2(3) of the Act. He therefore excluded them from the
unit.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s deci-
sion, contending, inter alia, that the Regional Director
erred by excluding owner-operators from the unit. On
August 19, 1998, the Board granted the request for review
solely with respect to the Regional Director’s finding that
the owner-operators are independent contractors. In all
other respects, the request for review was denied.1 The
election was conducted as scheduled on August 20, 1998,
and the ballots were impounded.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record in this
case with respect to the issue on review, we conclude, in
agreement with the Employer, that the Employer’s owner-
operators are employees within the meaning of Section
2(3) of the Act.
I. FACTS
The Employer transports hazardous and nonhazardous
chemicals in liquid and dry bulk form. Charles King,
manager of terminal operations at the Houston facility, is
responsible for transportation, maintenance, and tank-
cleaning operations. King oversees the drivers, mechan-
ics, and tank cleaners who perform those functions. Ap-
proximately 109 drivers are employed at the Houston ter-
minal, including 38 “company” drivers (who drive com-
pany-furnished tractors) and 71 owner-operators (who
own and operate tractors that they lease to the Employer).
All drivers—both company drivers and owner-operators—
are hired by King or by Regional Safety Manager Shelby
Startz. King is responsible for the enforcement of the Em-
ployer’s policies and procedures, and any problems with
pay or required paperwork are reported to him.

1 Member Brame, dissenting, would have denied the request for re-
view in its entirety.
The Employer provides all of the trailers used by both
company drivers and owner-operators, and is responsible
for the repair, maintenance, and operating costs of that
equipment. The Employer, however, has no ownership
interest in the tractors driven by owner-operators. Rather,
it leases these tractors from the owner-operators pursuant
to individual contract lease agreements that specify the
particular tractor that will be leased. The Employer is not
responsible for the maintenance, repair, fuel, licensing, or
operating expenses of these tractors.
All drivers are offered over-the-road, regional, and local
jobs. There are a variety of pay arrangements for the driv-
ers, depending on the type of run. Company drivers are
paid hourly for some local runs, by the load on other runs,
and by the mile on over-the-road runs. Owner-operators
generally are paid on the same basis as company drivers
for similar runs. Company drivers receive vacation, sick
pay, medical benefits, and employer-issued gas cards.
Owner-operators do not receive these benefits.
Owner-operators receive separate payments from the
Employer for the rental or lease of their tractors. There is
no evidence that owner-operators may negotiate pay rates
different from those received by company drivers for simi-
lar jobs. Owner-operators are prohibited from subcon-
tracting; however, they may hire other drivers to operate
their tractors, subject to the approval of the Employer.
The owner-operators negotiate and pay the wages of any
driver they hire, and they are responsible for making the
appropriate tax and insurance deductions for those drivers.
There is no evidence that owner-operators are prohibited
from working for other employers; however, the testimony
indicates that none currently do so.
All drivers, including those hired by owner-operators to
operate their tractors, are required to pass a physical ex-
amination, and are subject to the same drug-testing pro-
gram. All drivers must attend a training or orientation
period conducted primarily by Startz, and all are given the
Employer’s employee manual, which is reviewed in detail
with them during their orientation period. All drivers are
trained on the proper procedures for safely handling the
products they transport and for using the Employer-
provided personal protective equipment. All must suc-
cessfully complete written tests covering material con-
tained in a series of training videos. All new drivers are
then assigned for up to 2 weeks to an experienced driver
who knows the customers and products.2 Company driv-
ers and owner-operators are subject to the same discipli-
2 It is not clear from the record whether new drivers are assigned to
owner-operators as well as to company drivers for these on-the-job-
training periods.
331 NLRB No. 170
SLAY TRANSPORTATION CO. 1293
nary standards and procedures, and are held to the same
performance, safety, and attendance standards.
All leased equipment must display the Employer’s logo.
Although drivers are not required to wear company uni-
forms, the Employer will provide them if requested. All
drivers report to the same dispatcher. Drivers may refuse
job assignments, but if any driver declines a load or a run,
that driver goes to the bottom of the job assignment board.
If no driver voluntarily accepts a load or a run, the dis-
patcher can “force” a driver to accept the load. There is no
evidence that any driver is penalized or disciplined for
refusing assignments. All paperwork must be completed
and returned to the dispatcher before a driver is paid, and
logbooks, which are audited for compliance, must be
maintained as directed by the Employer.
Neither owner-operators nor company drivers are au-
thorized to extend credit to customers. Both groups are
eligible for year-end awards, e.g., “driver of the year.”
II. THE REGIONAL DIRECTOR’S FINDINGS
The Regional Director found that the owner-operators
are independent contractors, and not employees as defined
in the Act. The Regional Director found that the owner-
operators possess certain entrepreneurial opportunities, as
demonstrated by their ability to hire other drivers and the
Employer’s lack of control over that employment relation-
ship. The Regional Director further found that the owner-
operators have the opportunity to control their costs and
enhance their income, depending on the employment ar-
rangements they negotiate with the drivers they hire to
operate their tractors. Although the drivers hired by the
owner-operators are subject to approval by the Employer,
the owner-operators pay their drivers directly and pay all
appropriate Federal and State taxes. Further, the Regional
Director found no evidence that the Employer is able to
discipline or has disciplined any of the drivers hired by
owner-operators.
The Regional Director noted that the Employer neither
owns nor has financed any of the tractors it leases from the
owner-operators. The Regional Director also noted that
the Employer is not responsible for maintaining any nec-
essary insurance coverage on those tractors or for comply-
ing with Federal licensing requirements for their operation.
Based on the foregoing, the Regional Director concluded
that the owner-operator drivers are independent contrac-
tors and excluded them from the unit found appropriate for
collective bargaining.
III. ANALYSIS
Section 2(3) of the Act provides that the term “em-
ployee” shall not include “any individual having the status
of an independent contractor.” In a decision issued subse-
quent to the Regional Director’s consideration of the in-
stant case, the Board reaffirmed that the common-law
agency analysis is the proper test to be used in determining
whether an individual is an employee or an independent
contractor, and clarified the parameters of that analysis.
Roadway Package System, Inc., 326 NLRB 842 (1998).
See also, Dial-A-Mattress Operating Corp., 326 NLRB
884 (1998).
The Supreme Court has held that “[T]he obvious pur-
pose of [the Taft-Hartley Act] was to have the Board and
the courts apply general agency principles in distinguish-
ing between employees and independent contractors under
the Act.”3 In Community for Creative Non-Violence v.
Reid, 490 U.S. 730 (1989), the Court highlighted the im-
portance of the multifactor analysis of the Restatement
(Second) of Agency, Section 220, pp. 485–486 (1958).4 In
Roadway, the Board rejected the argument that the pre-
dominant factor in this analysis is whether an employer
has a “right to control” the manner and means of the work
performed by the individual whose status is at issue. The
Board cautioned that the Restatement factors are not ex-
clusive or exhaustive, and that, in applying the common-
law agency test, it will consider “all the incidents of the
individual’s relationship to the employing entity.” Road-
way, supra at 850 (emphasis added). See also, Dial-A-
Mattress, supra at 892.
Applying the foregoing to the facts of this case, we con-
clude, contrary to the Regional Director, that the Em-
ployer’s owner-operators are not independent contractors,
but are employees within the meaning of Section 2(3) of
the Act. The owner-operators, like the company drivers,
drive tractors that are leased by the Employer, and they are
trained by the Employer and tested on what they have
learned. Any driver hired by an owner-operator also must
be trained, tested, and approved to drive by the Employer.
All drivers are given specific instructions as to the manner
in which they are to perform their tasks, including where
loading or unloading will take place, when they are to be

3 NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968).
See also NLRB v. Town & Country Electric, 516 U.S. 85 (1995); Na-
tionwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992).
4 Sec. 220 (dealing with the definition of a servant) provides:
(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 perform-
ance 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 occupa-
tion 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 instrumen-
talities, 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
available for loading or unloading, and the time the prod-
uct must be delivered. The owner-operators are responsi-
ble for following the policies and procedures outlined in
the Employer’s employee manual, are held to certain per-
formance standards, and are subject to the same discipli-
nary actions as the company drivers.5
The owner-operators do not operate independent busi-
nesses. They use their tractors, on which they are required
to display the Employer’s logo, to perform work exclu-
sively for the Employer.6 In so doing, the owner-operators
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.
In Roadway, the owner-operators, found to be employ-
ees, devoted a substantial amount, if not all, of their time,
labor, and equipment to performing essential functions that
allow Slay to compete in the transport of chemicals. Thus,
the functions performed by the owner-operators
“. . . constitute a regular and essential part of the com-
pany’s business operations.” Roadway, supra at 851 (cita-
tion omitted). The same reasoning applies here. The
owner-operators here transport chemicals solely for Slay—
a company whose core function is the transportation of
such products for its customers. These owner-operators
augment the Employer’s own driver workforce, perform-
ing the same core functions as those drivers.
In contrast, in Dial-a-Mattress, heavily relied on by the
dissent, the owner-operators, who were found to be inde-
pendent contractors, did not perform work that was the
core of the company’s business, which was the marketing
and selling of the product. There the owner-operators
contracted only to deliver the company’s product. Unlike
the owner-operators working for Slay (whose tractors must
display Slay’s logo), the owner-operators in Dial-a-
Mattress displayed their own company’s name, address,
and Department of Transportation number on their indi-
vidual trucks. Also, there is no evidence that the owner-
operators driving for Slay own multiple trucks, while sev-
eral of the Dial-a-Mattress owner-operators had more than
one vehicle performing deliveries for the employer, thus
increasing their potential for entrepreneurial gain.7 Fur-
ther, while the owner-operators in Dial-a-Mattress could
submit contract proposals or try to negotiate special pay

5 In an example of “discipline” administered to an owner-operator,
Terminal Manager King testified that he had suspended one owner-
operator from dispatch for 3 days. The record does not provide any
information as to what provoked the suspension.
6 The Employer maintains that “when drivers are operating under
Slay’s authority, they must drive exclusively for Slay.” While it is
unclear from the record whether the lease specifically prohibits a
driver from driving for anyone else while under contract with Slay,
there is no evidence that any current owner-operator has done so.
7 In Dial-a-Mattress, the record showed that one owner-operator
owned 10 trucks; two others each owned 6 trucks; another two owned
3 trucks each; six more owned 2 trucks each; and three owner-
operators owned 1 truck and 1 van each which were used for mattress
deliveries.
deals for their individual companies, that is not the situa-
tion in this case.
The Employer’s owner-operators do not have a signifi-
cant entrepreneurial opportunity for financial gain or loss.
The Employer establishes and controls the rate of compen-
sation, which is based on the rates applicable to company
drivers as set forth in the master agreement between the
Employer and the Union, as well as the rates the Employer
charges to its customers. Such a compensation arrange-
ment leaves little room for the owner-operators to increase
their income through their own efforts or ingenuity. Thus,
as noted, there is no evidence that any of them use multi-
ple trucks or that they negotiate special deals with the Em-
ployer. Further, despite the fact that an owner-operator
may hire a driver to operate the tractor he leases to the
Employer, the owner-operator can only negotiate that
driver’s wages within the compensation rate set by the
Employer. See Roadway, supra; R. W. Bozel Transfer,
Inc., 304 NLRB 200 (1991).8
As is usually the case, not all of the record evidence fa-
vors a finding of employee status. Here, for example, the
owner-operators have the ability to hire drivers, even
though those drivers must be trained, tested, and approved
by the Employer. However, despite this theoretical poten-
tial for entrepreneurial opportunity, the control exercised
by the Employer over the other aspects of its relationship
with the owner-operators severely circumscribes such op-
portunity. In reality, there is little economic independence
realized by the owner-operators. Thus, there has been no
demonstration that this ability has resulted in true eco-
nomic gain, or even the chance for such gain.
Having considered all of the incidents of the owner-
operators’ relationship with the Employer, we find that the
various factors of the common law agency test weigh
heavily in favor of employee status for the petitioned-for
owner-operators. Thus, the Employer controls the manner
and means by which the owner-operators perform their
work through its training, testing, dispatch operation and
procedures. Further, the Employer controls the compensa-
tion the owner-operators receive, and sharply limits their
entrepreneurial opportunities, by requiring that each indi-
vidual who leases a tractor to the Employer enter into a
contractual agreement which sets forth specific compensa-
tion rates for the type of work that the tractor will be used
to perform (either by the owner-operators themselves or
by drivers they hire and compensate directly).
Accordingly, contrary to the Regional Director, we con-
clude that the owner-operators are not independent con-
8 This lack of pursuit of outside business activity may be less a re-
flection of entrepreneurial choice by the Employer’s owner-operators
and more a matter of the obstacles created by their relationship with
the Employer. See Roadway, supra; C.C. Eastern v. NLRB, 60 F.3d
855, 860 (D.C. Cir. 1995), denying enf. and vacating 313 NLRB 632
(1994), where the court agreed with the principle that “if a company
offers its workers entrepreneurial opportunities that they cannot real-
istically take, then that does not add any weight to the Company’s
claim that the workers are independent contractors.”
SLAY TRANSPORTATION CO. 1295
tractors, but rather are employees within the meaning of
Section 2(3) of the Act
ORDER
The Regional Director’s Decision and Direction of Elec-
tion is reversed with respect to the issue on review. The
case is remanded to the Regional Director for further pro-
ceedings consistent with this Decision.

MEMBER BRAME, dissenting.
The Regional Director found that the Employer’s
owner-operators are independent contractors, and thus are
not employees within the meaning of Section 2(2) of the
Act. This finding is solidly grounded on the record evi-
dence and on established precedent, and I would adopt it.
Accordingly, I dissent from the majority’s decision revers-
ing the Regional Director.
Facts
The Employer transports hazardous and nonhazardous
chemicals in liquid and dry bulk form from its facility in
Houston, Texas. The Employer contracts with 71 owner-
operator drivers for the purpose of providing these trans-
portation services.1 The Employer leases the tractors used
at the Houston facility from the owner-operators pursuant
to individual lease agreements which specify the particular
tractor being leased and the compensation arrangement.
The Employer also contracts with the owner-operators to
transport loads to its customers. These agreements contain
varying compensation arrangements: by the hour or by the
load for local runs and by the mile (with additional pay-
ments for detention or demurrage time) for over-the-road
runs.
The Employer has no ownership interest in the tractors
driven by the owner-operators and is not responsible for
their maintenance, repair, fuel, licensing, or operating ex-
penses.2 The Employer does provide the chemical tank
trailers used by the owner-operators and is responsible for
their maintenance. All leased owner-operator equipment
carries the Employer’s logo. However, the owner-
operators are responsible for maintaining the necessary
insurance and DOT and ICC licensing requirements for
the equipment they lease to the Employer.
Owner-operators are required to complete the same
Employer training required of Company drivers, which
involves safety, government regulations, product identifi-
cation and general company orientation. Upon satisfactory
completion of this program, the owner-operators are is-
sued safety gear and equipment. All drivers are subject to
the same company drug testing program and DOT regula-
tions. Drivers are not required to wear uniforms, although
the Employer issues them to company drivers and owner-
operators on request.

1 The Employer also employs 38 company drivers whose status is
not in dispute.
2 Company drivers, in contrast, receive gas cards from the Employer.
Owner-operators do not receive vacation, sick pay, or
medical benefits from the Employer, but are eligible for
the Employer’s “driver of the year” award. The Employer
offers insurance packages to owner-operators but they are
responsible for paying for the insurance. For tax purposes,
owner-operators are issued Form 1099s rather than W-2
forms and are treated as self-employed persons. In con-
trast, company drivers do receive vacation and medical
benefits.
All drivers operate under the same dispatch system and
report to the same dispatchers for their assignments. The
dispatch includes such details as: the equipment the driver
is assigned to operate, where the driver is to load or unload
the product, when the driver has to be available for loading
or unloading, and the time the driver has to make the de-
livery. Owner-operators, like company drivers, may refuse
job assignments. Although an owner-operator who refuses
a job goes to the bottom of the job assignment board, there
is no evidence that they forfeit their contract with the Em-
ployer. If no driver accepts a run, dispatch can “force out”
the driver.
All drivers are required to comply with the policies and
procedures set forth in the Employer’s driver manual and
are held to the same performance, safety, and attendance
standards. Company drivers are subject to discipline for
violations of these standards.3 With regard to owner-
operators, while the record shows that Manager King im-
posed a 3-day suspension from dispatch on an owner-
operator, no evidence was presented concerning the date,
circumstances, or details of this incident. There is no re-
cord evidence of any other “discipline” of owner-
operators.
Owner-operators may hire other drivers to drive their
tractors. While the Employer must approve the individual
selected by the owner-operator and requires that they
complete the Employer’s driver training program, the Em-
ployer does not control the wage rate or other terms and
conditions of employment for such drivers.
The Majority’s Decision
In finding, contrary to the Regional Director, that the
owner-operators are employees, the majority asserts that
they do not operate independent businesses but instead use
(their own) tractors to perform work “exclusively” for the
Employer by transporting chemicals in the Employer’s
trailers. According to the majority, it is “not clear” whether
the owner-operators are permitted to work for other em-
ployers but that in any event, none currently do so. The
majority claims that the Employer controls the manner and
means by which the owner-operators perform their work,
in that the Employer trains the drivers, specifies the time
and place of delivery, and has disciplined owner-operators
who violate its policies. The majority also concludes, con-
trary to the Regional Director, that the owner-operators do
not have a significant opportunity for financial gain or
3 The driver’s manual was not introduced into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
losses because the Employer controls the rate of compen-
sation. The majority also notes that, in practice, the owner-
operators do not pursue other business interests or hire
other drivers. According to the majority, these choices are
the consequence of obstacles imposed by their relationship
with the Employer.
Discussion
In determining whether an individual is an independent
contractor or an employee under Section 2(3) of the Act,
the Board applies the common-law agency test and con-
siders all of the incidents of the individual’s relationship to
the employing entity. Roadway Package System, 326
NLRB 842 (1998).4 Accord: AmeriHealth
Inc./Amerihealth HMO, 329 NLRB 870 (1999). Factors
to be considered include the following:

(1) The extent of the employing entity’s control
over the details of the work.
(2) Whether or not the individual is engaged in a
distinct occupation or business.
(3) The kind of occupation, including whether, in
the locality in question, the work is usually done un-
der an employer’s direction or by a specialist without
supervision.
(4)The skill required in the particular occupation.
(5) Whether the employer or the individual sup-
plies the instrumentalities, tools, and the place of
work.
(6) The length of time for which the person is em-
ployed.
(7) The method of payment, whether by the time
or by the job.
(8) Whether or not the work is part of the employ-
ing entity’s regular business.
(9) Whether or not the parties believe they are cre-
ating an employment relationship.
(10) Whether or not the principal is in the busi-
ness.

Roadway, supra at 849–850 fn. 32; see also Restatement
(2d) of Agency § 220.
Applying the foregoing standards, it is evident that the
owner-operators in this case are independent contractors.
They transport hazardous chemicals for the Employer us-
ing their own tractors, which are licensed and insured by
the owner-operators in their own name, not in the name of

4 In Roadway, the Board found that the employer’s drivers were em-
ployees based on evidence demonstrating that they do not operate inde-
pendent businesses, but perform functions that are an essential part of
one company’s normal operations; they need not have any prior train-
ing or experience, but receive training from the company; they do busi-
ness in the company’s name with assistance and guidance from it; they
do not ordinarily engage in outside business; they constitute an integral
part of the company’s business under its substantial control; they have
no substantial proprietary interest beyond their investment in their
trucks; and they have no significant entrepreneurial opportunity for
gain or loss.
Roadway, supra, at 851.
the Employer. The owner-operators are free to hire other
drivers to operate their tractors and to set the drivers’ rate
of pay. They are also free to work for other employers and
to refuse a job without losing their contract. There is no
evidence that the Employer controls the particular route
used by an owner-operator in making a delivery. In addi-
tion, the Employer treats the owner-operators as independ-
ent contractors, in that they do not receive fringe benefits
and are issued Form 1099s for tax purposes. Nor are they
required to wear company uniforms.
In Dial-A-Mattress, 326 NLRB 884 (1998), the Board
found on comparable facts that the disputed owner-
operators were independent contractors. The drivers there
delivered mattresses for the employer pursuant to agree-
ments specifying a flat rate for each delivery. The owner-
operators were solely responsible for the acquisition, fi-
nancing, maintenance, and ownership of their vehicles,
and for obtaining the appropriate DOT licensing. They
could use their trucks for other purposes and hire employ-
ees to drive for them without the employer’s prior ap-
proval. The owner-operators were issued IRS Form 1099s,
not W-2 forms, and did not receive any fringe benefits.
They were not required to wear company uniforms.
The majority’s purported grounds for distinguishing
Dial-A-Mattress are wholly unpersuasive. The majority
states that the Employer controls the manner and means by
which the owner-operators perform their work because
they receive specific dispatch instructions including where
loading will take place, the time to be available for loading
or unloading, and the time of delivery. However, in Dial-
A-Mattress, the company arranged the delivery with its
customers and company dispatchers provided a “suggested
efficient sequence” of deliveries specifying, inter alia, the
time of delivery. Owner-operators were not penalized for
late deliveries if they followed the “suggested” sequence;
if they departed from the sequence they were subject to
such penalties.5 These directives were not found to be evi-
dence of employer control over the means of performing
the work in Dial-A-Mattress, and the majority offers no
persuasive justification for finding otherwise in this case.6
The majority’s finding that the Employer “disciplines”
owner-operators for violations of its work rules also
5 Dial-A-Mattress, supra at 892. In this regard, the Employer’s
specification of the place to pick up and deliver loads can hardly be
viewed as proof of employee status, as the transportation of cargo be-
tween two points is the essence of the contract arrangement. The ma-
jority’s reliance on this factor suggests that they will find independent
contractor status only where a driver is free to pick up and deliver loads
at random points chosen by the driver.
6 In light of the Employer’s business, i.e., transporting hazardous and
nonhazardous chemicals, it is hardly surprising that it would require its
drivers to undergo training before allowing them on the road. Compare
Dial-A-Mattress, supra at 892 (employer’s policy prohibiting all drivers
from using drugs, alcohol, or gambling did not negate independent contrac-
tor status because based on liability concerns). In any event, even if the
Employer’s training requirement is evidence that weighs in favor of em-
ployee status, it is overcome by the other factors noted herein demonstrating
that the owner-operators are independent contractors.
SLAY TRANSPORTATION CO. 1297
misses the mark. The record contains one incident in
which an owner-operator received a 3-day suspension
from dispatch. The Regional Director found that this evi-
dence was entitled to little weight in the absence of evi-
dence concerning the reason for the suspension or other
surrounding details. The majority reverses this finding
without discussion.7 Even assuming that the record evi-
dence concerning this incident is sufficient to warrant its
consideration, the Board in Dial-A-Mattress found that the
company’s imposition of similar suspensions in that case
did not preclude a finding that the drivers there were
owner-operators.8
The majority also deprecates significant evidence estab-
lishing the independence of the owner-operators. Thus, as
noted above, the owner-operators own their own tractors
and are solely responsible for their purchase, financing,
maintenance, and insurance. The Board has recognized
that “truck ownership can suggest independent contractor
status where, for example, an entrepreneur with a truck
puts it to use serving his or another business’ customers.”9
The majority also neglects the fact that the owner-
operators are responsible for obtaining the requisite gov-
ernment licenses for the operation of the tractors, includ-
ing DOT and ICC permits. As in Dial-A-Mattress, these
facts support a finding of independent contractor status in
this case.10
Likewise, the majority ignores substantial evidence that
the parties have treated the owner-operators as independ-
ent contractors. As noted above, the owner-operators,
unlike the company drivers, receive no fringe benefits and
are issued Form 1099s for tax purposes. The Board in
Dial-A-Mattress found that these same facts supported a
finding of independent contractor status.11 The majority

7 But see Elmhurst Extended Care, 329 NLRB 535 (1999) (majority re-
jects undisputed evidence of effective recommendation that nursing aide’s
probationary period be extended because “no explanation was offered re-
garding the basis for or length of the extension”).
8 Dial-A-Mattress, supra at 893.
9 Roadway, supra at 851.
10 Dial-A-Mattress, supra at 891. While it is true that the Employer
owns and maintains the chemical tank trailers used for deliveries, this
would appear to be due to the nature of the cargo to be transported, i.e.,
chemicals, often hazardous chemicals. The tractors (owned by the
owner-operators) can be used with many types of trailers, and where, as
here, the products are specialized, it would be impractical (and limiting)
for owner-operators to provide their own trailers.
11 As in Dial-A-Mattress, supra at 892, the owner-operators are not
required to wear company uniforms.
provides no persuasive justification for ignoring them in
this case.
There is absolutely no basis for the majority’s conclu-
sion that the owner-operators are precluded from pursuing
outside business interests or from reaping entrepreneurial
financial gain or loss by obstacles imposed by their rela-
tionship with the Employer. In reaching this conclusion,
the majority relies on Roadway, supra. However, that case
is clearly distinguishable. In Roadway, the employer used
owner-operators as part of its parcel delivery system.
Through a variety of financial incentives, including the
provision of financing to owner-operators who purchased
“approved” vehicles, the employer virtually insured that
the owner-operators would own Roadway vans of a speci-
fied type. Further, the employer prohibited the owner-
operators from conducting outside business during the day
and required them to leave the vehicles at the employer’s
terminal overnight if they wished to have them loaded by
the employer’s package handlers.12 These requirements
saddled the owner-operators with limited use vehicles and
effectively prevented them from engaging in any outside
business using their vehicle. The employer also effectively
suppressed any potential for entrepreneurial profit through
a system of maximum and minimum number of packages
and customer stops. No evidence of this character is pre-
sent in this case.
Conclusion
For the foregoing reasons, I would affirm the Regional
Director’s finding that the Employer’s owner-operators
are independent contractors and, hence, are not employ-
ees under the Act.
12 Roadway, supra at 851.