Time Auto Transportation

National Labor Relations Board - Board Decisions

Nov 22, 2002

338 N.L.R.B. 626 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
Time Auto Transportation, Inc. and Time Auto
Transport, L.S. and Randy Hill and Ernest L.
Blake. Cases 7–CA–43641–1 and 7–CA–43641–2
November 22, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On April 10, 2002, Administrative Law Judge Eric M.
Fine issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
filed an answering brief.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Time Auto Transportation,
Inc., Troy, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

MEMBER BARTLETT, dissenting.
Unlike my colleagues, I find that lease drivers Hill and
Blake were independent contractors, not employees. I
would therefore dismiss the complaint.
The Board applies the common-law agency test to dis-
tinguish between independent contractors and employ-
ees. Roadway Package System, 326 NLRB 842 (1998);

1 The judge found that the Respondent committed several unfair la-
bor practices against Charging Parties Randy Hill and Ernest L. Blake,
culminating in their unlawful discharge. In doing so, he rejected the
Respondent’s argument that Hill and Blake—who haul vehicles for the
Respondent using tractor-trailers that they lease from the Respondent—
are independent contractors, finding to the contrary that they are statu-
tory employees. Member Cowen joins in affirming this finding for the
following reasons. In Member Cowen’s view, considering in isolation
the structure of Hill’s and Blake’s work relationship with the Respon-
dent, the balance tips in favor of finding independent contractor status.
However, the terms of both Hill’s and Blake’s truck-lease contract give
the Respondent the right to terminate the lease at will on 5 days’ notice,
and the Respondent used that right to control the manner of Hill’s per-
formance of his work. Specifically, the Respondent’s owner and presi-
dent, James D. Ferns, Sr., threatened Hill that he would “sell” Hill’s
truck—i.e., terminate the lease on that truck—unless Hill “learned how
to do his logs.” The logs in question are meant to verify that drivers are
conforming to drive time limits imposed by the Department of Trans-
portation (DOT). Hill reasonably understood Ferns to be threatening
him with job loss unless Hill began exceeding DOT drive-time limits
and falsifying his logs. By demanding over-limit drive time and back-
ing that demand with a threat of job loss, the Respondent sought to
exercise a degree of control over the manner of work performance that
Member Cowen finds inconsistent with independent contractor status.
Based on all of the factors set forth in the judge’s decision, including
the factors relied on by Member Cowen, Member Liebman finds that
Hill and Blake are statutory employees.
Dial-A-Mattress Operating Corp., 326 NLRB 884
(1998). That test requires an examination of all relevant
factors, including but not limited to those that involve a
right of control. Id.
Here, numerous factors tend to support a finding of in-
dependent contractor status. Thus, the lease agreements
with the Respondent signed by Hill and Blake identified
them as independent contractors; the Respondent did not
withhold social security taxes, issued 1099 forms to the
drivers’ companies, and did not provide the drivers with
any benefits; the drivers formed their own corporations
and paid their own expenses to maintain the vehicles, in-
cluding repairs, inspections, permits, and fees; the Re-
spondent’s payments were made to the drivers’ corpora-
tions, which in turn hired additional drivers and filed fed-
eral corporate income tax returns; the lease drivers, such as
Hill and Blake, were responsible for paying the additional
drivers (whom they could terminate) and for providing
them with insurance coverage; and, except for deliveries in
Canada, the drivers could choose their own routes.
Despite this strong evidence of independent contractor
status,1 the judge found Hill and Blake to be employees,
essentially because he found that the Respondent con-
trolled the manner and means by which they generated
income. For example, the judge noted that the Respon-
dent required its drivers (who received their assignments,
generally on a “first-come, first-serve” basis, through the
Respondent’s Troy, Michigan dispatch office) to contact
the dispatch office every day. The apparent purpose of
this requirement, however, was simply to enable a driver
to receive his next assignment and report the status of
deliveries. Indeed, given the nature of the Respondent’s
business and of the tasks performed by Hill and Blake for
the Respondent, it would be surprising if the Respondent
did not require at least this minimal contact. The Re-
spondent is engaged in long-haul and over-the-road
trucking. Those, like Hill and Blake, who contract to
drive for the Respondent, make trips that can last for
days or even weeks, generally choosing their own routes.
The Respondent simply requires that a delivery be made
at a particular place and (approximate) time. The report-
ing requirement is a commonsense measure that enables
the Respondent to track the progress of the deliveries, as
it must. Clearly, such a minimal requirement is insuffi-
cient to infer an employer-employee relationship.2
1 See Central Transport, 299 NLRB 5 (1990).
2 The judge also found that the Respondent exercised control by
threatening to terminate the lease agreement unless a driver exceeded
DOT hourly restrictions and falsified his logbook. While I agree that
this is significant evidence of control, it is insufficient to outweigh the
substantial countervailing evidence supporting independent contractor
status in this case.
338 NLRB No. 75
TIME AUTO TRANSPORTATION 627
Further, the cases relied on by the judge to find em-
ployee status are distinguishable. For example, Corporate
Express Delivery Systems, 332 NLRB 1522 (2000), unlike
the instant case, concerned a city package pick-up and
delivery service whose drivers had to report to the office at
the beginning and end of each workday. They received
daily assignments to a route schedule from which they
could not deviate. The drivers were also required to ad-
here to a mandatory dress code or wear uniforms.
Similarly, the drivers at issue in Elite Limousine Plus,
324 NLRB 992 (1997), transported passengers from one
place to another within a small geographical area. Their
trips were measured in minutes or at most hours, not in
days or weeks. There, unlike here, the employer pro-
vided at least some fringe benefits, and the employer
maintained and enforced many rules, beyond those re-
quired by government agencies, pertaining to, inter alia,
strict time limits for pickup and delivery as well as the
conduct of drivers while they transported customers.
The vehicles involved in Elite were equipped with on-
board computer systems that continually kept track of the
vehicles’ movements and whereabouts throughout the
workday.
In NLRB v. Corporate Express O’Hare-Midway Limou-
sine Service, 924 F.2d 692 (7th Cir. 1991), also relied on
by the judge, the employer transported customers to and
from two Chicago airports. Thus, if anything, the scope of
this operation was even narrower than the ones at issue in
Elite and Corporate Express. In addition, each driver had
to select a shift which he could not change without the
employer’s permission, there was a mandatory dress code
for the drivers, and the company had its own specific rules
governing customer service and the collection of fares.
Likewise, in City Cab Co. of Orlando v. NLRB, 628
F.2d 261 (D.C. Cir. 1980), the company supplied the
cabs to the drivers on a daily basis; indeed, each driver
had to report to the company every day for a cab assign-
ment. Unlike the Respondent’s drivers, no City Cab
driver either leased his vehicle for purchase or already
owned it. The City Cab drivers were subject to a manda-
tory dress code and, pursuant to the company’s own di-
rective (as opposed to government regulations), main-
tained a daily trip sheet detailing each trip and fare.
Finally, in NLRB v. Amber Delivery Service, 651 F.2d
57 (1st Cir. 1981), also cited by the judge, the employer
operated a same-day pickup and delivery service in the
Boston area. The drivers had to report for work each day
by 8 a.m., and the company mandated the sequence of
deliveries on their assigned routes. Unlike the Respon-
dent’s drivers, none of the Amber drivers operated as a
corporation or partnership.
The Respondent here has done virtually everything
possible to structure the relationship with the lease driv-
ers in such a way as to make clear to all that they are
independent contractors rather than employees. Indeed,
it is difficult to see how, if Hill and Blake are not inde-
pendent contractors, there could be any independent con-
tractors among drivers in the long-haul trucking industry.
Accordingly, I dissent.

Amy Roemer, Esq. and Kelly Gackie, Esq., for the General
Counsel.
William L. Hooth, Esq. and Ryan Perry, Esq., of Troy, Michi-
gan, for the Respondent.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was
tried in Detroit, Michigan, on November 13, 14, and 15, 2001.
The charges were filed by Randy Hill and Ernest L. Blake
against Time Auto Transportation, Inc. (Time Auto) and Time
Auto Transport, L.S. (Time Auto L.S.) jointly referred to as
Respondent. The consolidated complaint issued on March 30,
2001, alleging that Time Auto and Time Auto L.S. are a single
employer within the meaning of the Act; that on about Novem-
ber 16, 2000, Respondent created the impression that its em-
ployees’ union activities were under surveillance, interrogated
employees about their union activities, and threatened to dis-
charge employees because of their union activities in violation
of Section 8(a)(1) of the Act. It is also alleged that on Novem-
ber 17, 2000, Respondent discharged and terminated the leases
of Hill and Blake in violation of Section 8(a)(1) and (3) of the
Act.1 Respondent asserts in its answer that Hill and Blake were
independent contractors and not its employees within the mean-
ing of Section 2(3) of the Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Time Auto and Time Auto L.S. are each Michigan corpora-
tions, with an office and place of business in Troy, Michigan,
where Time Auto has been engaged in the interstate transporta-
tion of freight and Time Auto L.S. has been engaged in the
purchase and leasing of trucks and trailers. Respondent admits
that each corporation derived gross revenues in excess of
$50,000 by activities outside the State of Michigan, and I find,
as Respondent admits, that Time Auto and Time Auto L.S. are
each employers within the meaning of Section 2(2), (6), and (7)
of the Act. Respondent also admits and I find that Time Auto
and Time Auto L.S. are a single integrated enterprise and single
employer within the meaning of the Act. Respondent admits

1 All dates are in 2000 unless otherwise indicated.
2 The General Counsel’s unopposed motion to correct the transcript,
dated December 20, 2001, is granted and received in evidence as GC
Exh. 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
and I find that Local 299, International Brotherhood of Team-
sters, AFL–CIO, (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
James D. Ferns Sr. (Ferns Sr.), is the owner and president of
Time Auto and Time Auto, L.S. During the year 2000, Cynthia
Morefield served as office manager and controller for Time
Auto and Time Auto L.S. Respondent admits and I find that
Ferns Sr. and Morefield, during times relevant here, served as
its statutory supervisors and agents within the meaning of Sec-
tion 2(11) and (13) of the Act. Respondent also admits that
dispatchers James Ferns Jr. (Ferns Jr.), Scott Zabel, and Darrell
(J.D.) Fulford are Respondent’s agents within the meaning of
Section 2(13) of the Act for the purpose of conveying work
assignments and scheduling off-duty time for drivers.
Hill and Blake are car haulers who signed lease agreements
for trucks and trailers with Respondent and independent con-
tractor agreements with Respondent in order to haul for Re-
spondent. The parties stipulated at the outset of the hearing that
Respondent terminated the contracts of Hill and Blake because
they engaged in activities on behalf of the Union. Respondent
asserts that it could legally terminate Hill and Blake because
they are independent contractors and not statutory employees.
The parties agree that if Hill and Blake are found to be statutory
employees their November 17 terminations were violative of
Section 8(a)(1) and (3) of the Act and Respondent violated
Section 8(a)(1) of the Act as alleged in the consolidated com-
plaint. The parties also agree that if Hill and Blake are found to
be independent contractors that the complaint will be dismissed
in its entirety.3
A. Respondent’s operations and the employment status
of Hill and Blake
The General Counsel called Morefield as a witness. More-
field began working for A.T.T. S. & L., a company owned by
Ferns Sr. in 1992. She left A.T.T. S. & L. and became an em-
ployee of Time Auto L.S. in January 1999. Morefield’s ser-
vices were leased to Time Auto during the whole course of her
employment with Ferns Sr.’s companies. Morefield left Re-
spondent’s employ in February 2001, which was prior to the
hearing in this case.4
Time Auto hauls automobiles for a variety of customers
throughout the United States and Canada. Time Auto uses two
categories of drivers, owner-operators who own their own trac-
tors and trailers and lease drivers who sign lease agreements
with Time Auto L.S. for these vehicles, which on their comple-
tion results in the lease driver owning the equipment. Hill

3 The parties stipulation is set forth in Jt. Exh. 23.
4 Morefield testified that she quit Respondent’s employ due to an ar-
gument. However, considering her demeanor, I found her to be a
credible witness and have credited her testimony as set forth in this
decision. In this regard, Morefield’s testimony was uncontradicted as
Respondent called no witnesses during the course of the hearing. I
have also credited the testimony of Hill and Blake as set forth in the
body of this decision unless otherwise noted. In doing so, I have con-
sidered their demeanor, and I note that their testimony was for the most
part substantiated by Morefield or Respondent’s records.
hauled cars for Respondent as a lease driver beginning in Sep-
tember 1999, and Blake started in the same capacity on August
17, 2000. Respondent terminated both their contracts and
leases by letters dated November 17, 2000. During the years
1999 and 2000, Time Auto had between 32 to 44 trucks operat-
ing for it the vast majority of which were operated by lease
drivers. The drivers reside throughout the United States and
Canada and do not report to Time Auto’s Troy facility for the
receipt of their assignment or their compensation. The owner-
operators and the lease drivers have basically the same car
hauling responsibilities.
Morefield put together an information packet for Time Auto
for a driver applicant. It consists of a Department of Transpor-
tation (DOT) driver’s application; a request for a copy of the
applicant’s driver’s license and motor vehicle record; and a
Bank One or NBD credit application. Morefield maintained a
checklist of items she was to receive from new drivers includ-
ing copies of their CDL, a physical card, vehicle registrations,
an exemption form from worker’s compensation, an annual
inspection of the tractor and trailer, and a contractor’s lease
agreement.5 A new driver was required to read Respondent’s
safety brochure, and sign a safety regulation book. Morefield
gave new drivers fuel and mileage report forms, a copy of the
contractor lease agreement, Respondent’s licenses, permits and
decals, inspection report forms, Federal Express information, a
drug kit, an insurance certification, Respondent’s safety manual
and a DOT safety book. Morefield testified that the minimum
requirements for a driver include 2 years of car hauling experi-
ence and a “pretty good” motor vehicle record. The driver also
had to pass a drug screen as part of the application process.
Morefield arranged the applicant’s drug screen, which the
driver eventually paid for as a deduction from their weekly
settlement check issued as their pay by Respondent.
Time Auto maintains the following information on the driv-
ers, a paid file, a log file, a qualification file,6 their application,
a permit file showing the registrations and the permits, and a
confidential file showing their drug test results. Time Auto
keeps audit logs for all of the drivers based on the logs they
turn in showing the date, their driving hours, and their on duty
hours. A driver can be on duty and not driving. Time Auto
keeps track of the total hours to show that the drivers do not go
over 70 hours in 8 consecutive days or over 10 hours a day of
driving which the witnesses testified are DOT requirements and
that DOT requires that the drivers fill out and maintain daily
logs showing duty hours and hours driven. They submit copies
of the logs to Time Auto. Any repair work performed on a
leased truck is paid for by the driver but a record of the work is
5 Morefield testified that DOT requires: drug testing of the drivers, a
bi-annual physical for the drivers; and annual inspections of their trucks
and trailers copies of which are to be maintained by Respondent. The
cost for all these procedures are paid for by Respondent’s drivers.
6 Included in Hill and Blake’s qualification files are documents stat-
ing that they employed only themselves, that they understood that they
were not entitled to workers compensation benefits under Michigan
Law, and that they would hold Time Auto harmless for injuries sus-
tained while performing services for Time Auto.
TIME AUTO TRANSPORTATION 629
maintained in a file kept by Time Auto.7 Time Auto does not
keep repair records for owner-operators, aside from their vehi-
cles annual inspections.
Morefield reviewed a driver’s application and Ferns Sr. had
the final say on whether a driver is offered a position. After the
driver is offered a position, they may be required to ride a week
with another of Respondent’s driver to learn Time Auto’s paper
work and car loading procedures. Time Auto does not compen-
sate the applicant for driving during this week, nor do they com-
pensate the driver with additional money for driving with the
applicant. Hill and Blake each had extensive car hauling experi-
ence before they started driving for Respondent. They each filled
out applications and took drugs screens, which were arranged by
Respondent. Both were required to ride with another driver to
learn Respondent’s procedures. Hill made arrangements to ride
with driver Don McClung, who paid Hill for the work Hill per-
formed while riding with him. Blake rode with and was paid by
Hill for work during Blake’s training. Hill and Blake were
friends and Hill, who was already hauling for Time Auto, rec-
ommended that Blake do the same. Hill received authorization
from Morefield before he could ride with McClung, and Blake
had to sign a waiver of liability for Respondent before he could
ride with Hill.
Morefield prepared a manual for Time Auto entitled, “Time
Auto Transportation, Inc. Safety Manual and Lease Require-
ments,” which was distributed to all of the drivers during their
orientation. Morefield testified that the manual is “basically little
bits and pieces of th(e) actual DOT Safety Manual plus some of
Time Auto’s requirement.” The manual states at the outset that it
is “not for the control of an owner/operator. It is for the benefit
and safety of the driver and the general public.” However, it also
states that any lease contractor leased for more than 7 consecutive
days “must abide by these requirements.”
The manual provides as follows: Maintenance records must
be maintained for vehicles under contract for more than 30 con-
secutive days and copies submitted to Time Auto on a weekly
basis. Pre-trip inspections are required. Drivers must complete
at the end of each day, driver’s inspection reports of the vehicle
and submit a copy to Time Auto. It states that DOT requires that
all vehicles and equipment undergo an annual inspection and that
any driver not in compliance with an annual inspection will re-
ceive written notice and allowed 30 days to comply. Vehicles
will not be loaded for noncompliance. The manual states that a
reportable accident is any accident involving damage or injury to
any property or person and that drivers are supplied accident
report forms. It states that should there be a fatality, DOT must
be notified within 24 hours. The manual states that if it is deter-
mined, after investigation, that an accident was preventable, a
driver may receive a written warning and may not be loaded on a
temporary basis. It also states that depending on the seriousness
of an accident and proof of driver negligence, immediate termi-
nation of the lease contract may occur.
The manual states that no driver can drive more than 10
hours per day or after being on duty for 15 hours before taking
an 8-hour break and that no driver can drive over 60 hours in a

7 Other carriers Hill had hauled for did not require him to turn in re-
pair records.
7-day period (driving or on duty) or more than 70 hours in an 8-
day period.8 The manual provides that driver logs concerning
driving and on-duty hours must be completed and forwarded to
Time Auto every 2 weeks and that 6 months of logs must be
retained on file. Drivers are required to notify dispatch of the
hours performed on a daily basis and dispatch should be aware
of the last 7 days of service performed by drivers. It states that
a driver in violation of hours of service or not recapping hours
will be given a written warning, that if the situation is not cor-
rected the driver will not be loaded and that the final result for
noncompliance will be termination of the lease contract. The
manual requires that drivers complete a mileage and fuel report
for each month, and forward a copy to Time Auto along with
fuel receipts. The drivers are required to submit signed-off bills
of lading on a weekly basis to Time Auto. It states that drug
and alcohol testing is a DOT requirement and a lease contract
will be terminated immediately for any driver failing a drug
test, consuming alcohol while on duty, or convicted of a driving
violation involving the same. The manual states that, drivers
not complying with any requirements that are not considered
serious will be given a written warning and that if non-
compliance continues, termination of lease contract will occur.
The manual states that DOT requires the provision of a driver’s
prior employment history covering the past 10 years of em-
ployment when applying as a operator of a motor vehicle.
Morefield testified that a driver does not have input in the
truck or trailer that they lease from Time Auto L.S. if the com-
pany has already placed an order at the time the driver is sign-
ing a lease agreement. If there was no order placed, a driver
might have input in the truck, but it mainly depended on what
Ferns Sr. wanted to order. Hill and Blake’s credited testimony
reveals that they had no choice in the truck or trailer that they
leased from Respondent. Blake was required to put down a
$1000 deposit in order for Respondent to order the equipment,
and Hill, after talking to Morefield, was allowed to put down a
$500 deposit. They signed their leases after their trucks came
in. At that time, each had to put down a total deposit of
$10,000, including their prior deposits, as part of the lease
agreement. Blake’s testimony revealed that the engine on
Blake’s truck was smaller than the one he was told was or-
dered. When Blake questioned Morefield about this, he was
told that Ferns Sr. had taken some money off of the price.
However, Blake was not told the amount the price had been
reduced. In response to Blake’s question, Morefield told him
that he could not use the truck to haul for any other company
besides Respondent. Morefield testified that there are no nego-
tiations between Respondent and the driver regarding the price
of the truck, the interest, or the monthly payments. Morefield
testified that the down payments were sometimes negotiable
and on occasion they were reduced during the negotiations.
The title and registration of the trucks and trailers are under
Time Auto L.S.’s name. Respondent keeps the titles, copies of
which are not given to the lease drivers.
On September 17, 1999, Hill signed a standard form equip-
ment lease agreement presented by Time Auto L.S. (Lease
8 Driver hours are regulated by DOT.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 630
Agreement) and signed by Ferns Sr. for Respondent.9 The
agreement specifies the tractor and trailer Hill (the lessee) was
to receive. It is a 60-month lease setting forth the monthly
payments. The agreement provides, in pertinent part, that Time
Auto L.S. (the lessor) may cancel the agreement for any reason
with 5 days written notice to the lessee. On receipt of written
notice of cancellation, the lessee agreed to pay the lessor the
full balance remaining on the lease agreement within 7 days.
The agreement obligates the lessee to pay for collision, fire, and
theft insurance naming the lessor as the insured using an insurer
approved by the lessor. The lessee is obligated, at his expense,
to maintain the vehicles in good operating condition and to
have preventive maintenance performed as required by DOT
regulations and the manufacturer’s warranty. The lessee is
required to pay for all State inspections and fines. The lessee is
required to provide license plates and have a valid CDL, to pay
registration fees, taxes, and other governmental charges for the
vehicles. The lease provided for a 2-percent penalty if the lease
was paid off before 36 months.10
On September 17, 1999, Hill and Ferns Sr., also signed an
agreement entitled “Time Auto Transportation, Inc., Independ-
ent Contractor Lease Agreement Only” (Independent Contrac-
tor Agreement). This agreement had an effective date of Sep-
tember 13, 1999. The agreement is on a typewritten form and
there appears to be no changes to the form language aside from
the insertion of the dates, Hill’s name, and the handwritten
signatures. The agreement refers to Time Auto as “shipper”
and Hill as “carrier.” It states that the shipper agrees to pay to
the carrier 80 percent less any agent fees for the transport of
commodities. The agreement provides, in pertinent part, that
“Carrier, as an independent contractor, desires to furnish motor
carrier services to the shipper . . . .” It states that the shipper
represents that it is a duly qualified common carrier with a
permit issued by the Interstate Commerce Commission (ICC).
The carrier is required to tender to the shipper delivery receipts
and invoices and the shipper is obligated to pay the carrier
within 7 days after the receipt of the invoices. The carrier is
obligated at its expense to provide motor vehicles and equip-
ment for use in the services to be performed which are satisfac-
tory to the shipper, and to maintain the vehicles in good condi-
tion as to operation and appearance. The carrier is obligated to
procure licenses and permits as are required by local, State, or
Federal authorities. The agreement states that the “Carrier shall
be an independent contractor and shall have exclusive control
and direction of the persons operating vehicles or otherwise
engaged in such transportation services. Carrier assumes full

9 The lease agreement was signed in Hill’s name as an individual.
Hill formed and operated as a corporation at a later date. However, the
lease agreement was never changed.
10 On August 17, 2000, Blake signed a very similar equipment lease
agreement. It was also for 60 months, although the price of Blake’s
equipment varied from that of Hill’s. Blake’s agreement contained a 10
percent late payment penalty not contained in Hill’s agreement. More-
over, the 2 percent prepayment penalty clause in Hill’s lease was re-
placed by the following provision in Blake’s lease, “If this lease is paid
off before the lease ends, and you do not enter into a new lease agree-
ment, there will be a 5-percent prepayment penalty on the balance owed
at that time.”
responsibility for taxes for unemployment”. . . “or other social
security and related protection with respect to the person en-
gaged in the performance of such transportation services, and
agrees to comply with applicable rules and regulations . . .”
“under such laws.” The agreement provides that “all contrac-
tors having employees and/or independent contractors driving
their trucks must provide workman’s compensation certificates.
All lease contractors not in compliance with workman’s com-
pensation requirements will not be loaded.” It states that the
carrier shall maintain at its own expense liability insurance and
sets the minimum coverage amounts. The carrier is obligated
to furnish the shipper with copies of the insurance policies. It
states that carriers on the Time Auto insurance policy are re-
sponsible for the first $1000 deductible per vehicle, and that
payment for liability, cargo, and physical damage insurance is
at a cost of 10 percent of gross sales per trip for the driver and
that they are only covered while hauling Time Auto cargo. The
agreement provides that it will become effective on September
13, 1999, and terminated by either party on 72 hours’ written
notice. The agreement provides that it will be construed under
and governed by the laws of the State of Michigan. It states
that, “All carriers are responsible to check in with the office
before 10 a.m. and after 5 p.m.” It states that lease contractors
will be charged on a quarterly basis for fuel tax based on their
fuel and mileage reports. It states that, “In the event that any
Independent Contractor hauls loads for any other carrier, under
Time Auto Transport, Inc., ICC Authority and Insurance, the
Independent Contractor forfeits all equity in their Equipment
and will be automatically terminated.” It states that effective
January 1, 1996, “any Independent Contractor with a truck six
years or older has to have equipment updated to a newer
model.” It also states that “In the event that this lease is can-
celled or terminated by either party, the Independent Contractor
understands that there is “NO REHIRE POLICY.” The agree-
ment sets forth the rate a driver pays for COMCHECK charges.
COMCHECK is a company contracted with Respondent to
provide cash advances to drivers who are on the road.11
Blake signed the Independent Contractor Agreement on Au-
gust 17, 2000. Blake signed both the lease and independent
contractor agreements under his corporate name as Dimarlou
Enterprise/Ernest L. Blake. The Independent Contractor
Agreement signed by Blake contained an insurance provision
stating that the insurance was to be “8 percent of gross sales per
trip.”12 Blake’s agreement differed from Hill’s in that it pro-
vided that “Effective 1/1/96, any Independent Contractor with a
truck fives years or older has to have equipment updated to a
newer model.” The agreement Blake signed also contained the
following provisions not contained in Hill’s agreement: “I
agree that I will perform at the current, Company Monthly
11 Morefield testified that when an owner-operator contracted with
Time Auto they would not sign the Lease Agreement, but they would sign
the Independent Contractor Agreement with a few revisions, but that it is
basically the same agreement as that signed by the lease drivers.
12 Blake’s insurance cost at 8 percent of his gross was a reduction
from the 10 percent of the gross reflected in Hill’s agreement. More-
field testified that, as a result of complaints from the drivers, Respon-
dent reduced the insurance rate across the board in January or February
2000 to 8 percent for all lease drivers, including Hill.
TIME AUTO TRANSPORTATION 631
Gross Average, example, currently between $20,000 and
$21,000 per month”; “Requests for time off should be submit-
ted to the office of Time Auto Transport four (4) days before
taking the time off”; “holiday time off will be selected by sen-
iority and must be designated two weeks before the actual time
off”; and “You will be allowed five days off before Christmas
or three days before New Years and three days after New
Years.” Blake’s agreement also contained the statement that,
Blake understood that he was required to call into Respondent’s
office twice per day every day, and once per day when he was
not on duty.
Morefield’s testimony reveals that there are no negotiations
between Respondent and the drivers as to the terms of the Inde-
pendent Contractor Agreement. Morefield was present when a
driver signed the Independent Contractor and Lease Agree-
ments. She reviewed certain points of the agreements with the
driver including Respondent’s call-in requirements. Morefield
testified that if either party terminates an equipment lease the
driver loses their down payment and equity in the vehicles
unless the driver arranges to refinance the equipment loan
through another lender.13 Morefield testified that there is no
penalty to Respondent for terminating a Lease Agreement.
Under the Lease Agreement, Time Auto provides insurance for
the truck, tractor, and cargo, which the driver pays for through
deductions from their weekly settlement check. Morefield
testified that the driver had no choice in the insurance company.
Time Auto is named as the primary on the driver’s insurance
and the policy is under Time Auto’s name. Time Auto files any
claims made under the policy. An owner-operator is also re-
quired to take out insurance under Time Auto’s policy, except
for physical damage to their vehicles, although an owner-
operator has the option of taking complete insurance coverage
through Time Auto.
Time Auto employs a system of weekly settlement checks as
a means of paying the car haul drivers. Time Auto formulates a
weekly settlement sheet showing the driver’s gross pay, the
deductions allocated to Time Auto, and the driver’s net check.
A copy of the settlement sheet goes to the driver and to Re-
spondent’s file clerks. Hill’s initial settlement sheet was dated
September 15, 1999, and is made out to Hill as an individual.
For the week ending October 13, 1999, Time Auto began issu-
ing settlement sheets to Hill in the name of Hill’s corporation,
Four Hills Auto Transport (Four Hills). Time Auto pays the
driver’s or their corporations at the rate of 80 percent of Time
Auto’s receipt for transporting the load minus deductions such
as insurance. On certain loads the customer will pay a fuel
surcharge to help compensate the drivers for cost of fuel. This
payment is reflected on the settlement sheet. The customer
pays the money to Time Auto, all or a portion of which is in
turn remitted to the driver. The lease driver pays a weekly or
monthly lease fee for the truck and trailer to Time Auto, which
is reflected on the settlement sheet. The driver is also charged a
fee for COMDATA withdrawals on the settlement sheet. A

13 Morefield testified that towards the end of December 2000, at the
time they signed the lease agreements, some of the drivers were al-
lowed to finance their trucks and trailers through another bank, rather
than through Time Auto.
fuel tax is calculated on a quarterly basis based on the driver’s
fuel reports to Time Auto and taken out of a driver’s settlement
check. An owner-operator receives the same settlement sheet
as a lease driver, but there is no deduction for a truck or a
trailer, and they may pay a lower insurance rate as set forth
above. Respondent maintains the underlying documents for the
settlement sheets for each of the drivers. Respondent either
sends the settlement check to the drivers by Federal Express or
it mails it to them at the driver’s election. The driver pays for
the cost of Federal Express. Drivers are not paid vacation or
other fringe benefits. They are only paid when they were haul-
ing vehicles. Time Auto does not pay employment taxes for
the drivers, or deduct social security. Time Auto issues a 1099
form to the drivers.
Morefield’s testimony reveals that: The drivers are not re-
quired to wear uniforms. The drivers do not have an exclusive
territory or an exclusive right to any customers. Once a driver
starts hauling for Time Auto, they are required to call Time
Auto’s dispatchers to receive a load which originates from
Time Auto’s customers. The dispatcher determines the loads
the driver receives. They are supposed to dispatch drivers on a
first-come first-serve basis taking into consideration their loca-
tion and the location of the load. Morefield testified that this
procedure is not followed all of the time. It depends on the
driver and how long they had been at their location. If someone
is doing poorly, or been in trouble for not calling in, they are
not going to get the next load if they are first in. Morefield
testified that drivers are told that they are going to go to the
bottom of the list if they refuse a load and that if they refuse a
load they will sit until the dispatchers are ready to send them
out, but the driver does not know when that is going to be.
A driver is required to inspect their cargo when they pick it
up, and they obtain the customer’s signature when they pick it
up and drop it off. They turn in their inspection reports to Time
Auto. Usually the dispatcher tells the driver that the customer
would like to have the load delivered by a specific date and
time. However, Morefield testified that Time Auto does not
guarantee a delivery date and that depending on who the driver
is with a late load they may be punished but usually nothing
happens to the driver.14 Morefield testified that if a customer
has a complaint they would talk to the driver or call in to Time
Auto. Drivers do not solicit work for Time Auto or negotiate
the cost of loads with customers. Time Auto uses the drivers to
haul loads for other carriers, but Time Auto dispatches these
loads to the drivers who continue to use Time Auto’s ICC li-
cense and logo on their trucks and they are paid by Time Auto.
Morefield testified that Time Auto requires a driver to pro-
duce a certain minimum monthly gross earnings, that Respon-
dent maintained quarterly summary sheets showing the driver’s
earnings, and that if a driver continually fails to perform up to
14 On May 31, 2000, a driver was issued a warning for failing to de-
liver a load within 72 hours of pick up in violation of Time Auto’s
contract with its customer. Another driver’s lease was terminated be-
cause there was a problem with customs in Canada, and he ended up
going home without finishing his route and someone else had to pick up
his load.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632
the average they would be let go.15 Respondent issued a letter
to driver Howard Glover on November 25, 1998, stating that its
bank performed a periodic audit of independent contractors
revenues and that Glover was 45 percent below the average.
The letter stated that “We advise at this time that you should
bring your gross revenue up to at least the average so that the
bank stays satisfied.” Respondent issued a letter to driver
Norman Palaszeski on February 19, 1999, stating that he was
terminated because his equipment was not reliable, that he had
been late in his lease payments, and that the average independ-
ent contractor gross earnings in 1998 was $30,000 over what
Palaszeski earned. On April 30, 1999, Ferns Sr. sent a letter to
Gary Winters & Gail Harbin terminating their lease agreement.
The only explanation in the letter was that it was not in the
financial best interest of Time Auto, independent contractors
and employees to continue the agreement. On July 13, 2000, a
warning letter issued to a driver for maintaining a negative
balance on his settlement. Morefield testified that during the
period of 1999 to 2000, driver Richard Irvin was terminated
because he would go home a lot and was not available to drive.
On October 19, 2000, Respondent issued warning letters to two
drivers threatening termination for failing to earn the monthly
average.
Morefield testified that Respondent has enforced the re-
quirement that the drivers call in two times a day. On July 2,
1996, a driver was issued a letter stating that he had been
warned twice about not calling in to the office twice a day. The
letter stated, “once more you will be looking for a new place to
work.” On June 9, 1999, a driver was issued a letter stating that
they had been given 5 days off for not calling in, that the next
time it happened they would be given 10 days off, and that if it
happened again he would be terminated. Respondent’s records
reveal that a driver’s contract was terminated in January 2000
for not calling in. On August 23, Respondent issued a final
warning letter to a driver for not calling in. Respondent has
also issued disciplinary action to drivers for safety concerns,
hauling passengers without permission, and damage to cargo.
On June 9, 1999, a driver was given a written warning for ex-
cessive damage to his cargo. On June 20, 1999, a warning
letter issued to a driver for carrying his four children on the
truck at the same time and without authorization. On Novem-
ber 11, 1999, a driver was issued a final warning for unsafe
driving. Morefield testified that another driver was terminated
because a car fell off of the top of his truck.
Morefield testified that Time Auto, per Federal regulations,
requires that lease drivers and owner-operators put Time Auto’s
logos and ICC license numbers on the side of their trucks when

15 Time Auto runs a weekly spread sheet on the drivers for Ferns
Sr.’s review showing the truck’s monthly gross, monthly average, and
year to date gross, loaded miles, year to date loaded miles, how much
they are receiving per loaded mile. Morefield testified that Ferns Sr.
uses the information to make sure that every one was working and that
no one was receiving poor loads. On November 24, 1999, Ferns issued
a document to the drivers showing the monthly gross average for all
drivers and the individual driver’s monthly average. The document
states that “If you have the desire and ambition to put on another truck,
you would have to meet the Company’s Monthly average in order to
qualify.”
hauling for Time Auto customers.16 These items are difficult to
remove from the sides of the trucks, and Morefield testified that
Time Auto does not allow a driver to take down Time Auto’s
license and logo and haul for another carrier under that carrier’s
license and insurance. Morefield testified that there were no
drivers that she was aware of who did this, and that Ferns Sr.
made the statement that if they did do it they would be cut off.
During the time that they hauled for Time Auto, Hill and Blake
never hauled for another carrier without being dispatched by
Time Auto. Hill testified that he did not think that he could
haul for another carrier even if he used that carrier’s ICC num-
ber in that it would take quite a bit of effort to remove Time
Auto’s numbers and stickers from his truck. Blake testified that
when he was filling in the paper work to pick up his truck,
Morefield told him that he could not use the truck to haul for
another company. Hill and Blake never refused to haul a load
for Time Auto when they called in to dispatch. Blake ex-
plained that, while he had the right to refuse an assignment, if
he did he would not make his $20,000 a month gross as re-
quired by Respondent’s contract and Blake would not be able
to make the payments on his truck.
Hill hauled his first load for Time Auto on September 14,
1999, although Hill did not sign his contracts with Time Auto
until September 17, 1999. On September 17, 1999, Ferns Jr.
told Hill that he had to call in to dispatch twice a day and the
times he had to place the calls. Ferns Jr. also told Hill that he
took a little too long in loading his first load and that Hill had to
be on time. Blake hauled cars for Respondent as a lease driver
beginning in August 2000. Blake met with Morefield when he
was signing Respondent’s contracts and she emphasized Re-
spondent’s call in requirements. Morefield told Blake that he
had to turn in his paper work on time to be paid. Blake met
with Ferns Sr., and the dispatchers that same day. Dispatcher
Scott Zabel told Blake that he had better follow the rules to the
“T” because he did not “want the old man on (his) ass.”
Hill and Blake drove for Respondent in the United States and
Canada. They received their assignments by calling Respon-
dent’s dispatchers. Their testimony revealed that there were no
negotiations with dispatch about what the loads would pay or the
loads the driver received, although some loads paid more than
others. The driver had to turn in daily logs, mileage trip sheets,
bills of lading, cargo inspection reports, and fuel receipts to Time
Auto. While the drivers were paid 80 percent of the gross per
load by Time Auto, Blake testified that he had no way of verify-
ing Time Auto’s calculation of the gross for a load.
As set forth above, Federal regulations limited the number of
hours a driver could drive a day, and over the course of an 8-
day period, and the drivers kept daily logs which were turned in
to Respondent showing their driving and on duty hours. Hill’s
testimony reveals that, shortly after Hill started with Time
Auto, on one occasion Hill asked dispatcher Fulford if Hill
could go home after he loaded his truck. The response was yes,
but that there would be no insurance on the truck or cargo and
that if anything happened it would be Hill’s responsibility.
When Hill decided to go home, Ferns Sr. phoned Hill and told
16 Drivers also have their own company name or their individual
name on the truck.
TIME AUTO TRANSPORTATION 633
him that he should not be running out of the route when Hill
had 3 hours of driving time remaining. Ferns Sr. told Hill that
he needed to learn how to do his logs or that Ferns Sr. would
sell his truck. Hill testified that he went home because he was
low on hours and that it sounded to him like he should never
run out of hours and that Ferns Sr. was instructing him to fal-
sify his logs.
Blake testified that under U.S. law he was limited to driving
10 hours a day, but “I normally went way over that.” Blake
explained that when he called Respondent’s dispatch the dis-
patcher told him where the load was going and when it had to
be there. Blake had to fill in a daily log reporting the number
of hours that he worked. He testified that he did not put on the
log that he was driving more than 10 hours a day, “Because if I
did, I would be fired.” Blake testified that the dispatcher did
not tell him to drive more than 10 hours a day or to falsify his
log. Rather, the dispatcher just told him that the load had to be
delivered at the specified time, which according to Blake re-
quired him to drive more than 10 hours a day. Blake testified
that he would not be loaded, and that “You would be more or
less starved if you didn’t play the game.”
Hill testified that when a dispatcher assigned him a load run-
ning through Montreal, Canada, the dispatcher would tell Hill
to go through Thousand Islands to cross into Canada rather than
crossing through Windsor. Hill testified that this was because
the truck and trailer were over length under Canadian laws and
the route change avoided the scale where the drivers were re-
ceiving tickets. Similarly, Blake testified that he was instructed
by Respondent’s dispatch to take a specific route for deliveries
in Canada because Blake’s truck was over length and over
weight under Canadian laws.17
Morefield testified that, at the time she left Respondent’s
employ in February 2001, all of the lease drivers but one were
incorporated. Ferns Sr. had instructed Morefield, around Octo-
ber or November 2000, to tell the drivers to incorporate. How-
ever, prior to this directive, Morefield had started helping driv-
ers incorporate based on driver’s requests to allow them to
obtain certain tax writeoffs. Hill and Blake operated as Ken-
tucky corporations while hauling for Respondent. Hill had
filed his corporation papers prior to hauling for Time Auto, but
the filing had not been approved until after Hill started to haul
for Respondent. Hill decided to incorporate based on the ad-
vice of a friend. Blake formed a corporation named Dimarlou
Enterprise Inc. (Dimarlou) just prior to the time he started driv-
ing for Time Auto. Ferns Sr. told Blake at the time Blake or-
dered his truck that he should incorporate for purposes of
workmen’s compensation insurance.
Time Auto maintains a file for the extra drivers who drive
for its the lease drivers. These extra drivers are required to
submit an application to and to be approved by Time Auto, to
take a drug test arranged by Time Auto, to have a physical, and
Time Auto maintains a record of these documents.18 Six differ-

17 Blake’s claim that he went to Canada almost every trip was not
substantiated by Respondent’s records.
18 Time Auto also requires that the lease drivers obtain authorization
to have a passenger in their trucks and the passenger is required to sign
ent individuals drove Hill’s truck for him for brief periods of
time during the period Hill operated a truck for Time Auto.
Hill paid these drivers through his corporation at rates he nego-
tiated with them. Hill did not receive a copy of the drivers’
applications that they submitted to Respondent or their drug test
results. Drivers that drove Hill’s truck were required to main-
tain a separate daily log, which was tendered to Time Auto.
The drivers submission of the time logs to Time Auto and the
drug testing of these drivers was done, according to Hill, pursu-
ant to DOT requirements. The loads these drivers hauled were
dispatched by Time Auto dispatchers. Hill’s corporation pro-
vided workmen’s compensation insurance for these drivers,
although the corporation charged the drivers for the cost of the
insurance. Hill took a vacation in 2000 and he asked Ferns Sr.
if he could take the time off. Ferns Sr. said yes, but that Hill
would have to get someone to run the truck because the truck
could not remain idle. Hill also looked into leasing a second
truck through Time Auto in June or July 2000. Hill testified
that Jerry Posey was going to operate the truck for Hill, but it
did not happen because Ferns Sr. stayed on Posey’s back when
Posey substituted for Hill causing Posey to quit. Hill testified
that Ferns Sr. was on the cell phone with Posey every day.
Blake used another driver in his truck for about a 2-week pe-
riod while Blake was driving for Time Auto. Ferns Sr. told
Blake he had to have workmen’s compensation insurance for
that driver whose name is Jack Johnson. Johnson was required
to submit an application to Respondent, and Ferns Sr. initially
refused to approve Johnson’s driving with Blake. Ferns Sr. told
Blake that Johnson had insufficient experience. Blake told
Johnson to obtain letters of recommendation from companies
he had driven with and to submit them to Ferns Sr. Johnson
followed Blake’s advice and Ferns Sr. subsequently approved
Johnson’s application. Blake paid Johnson based on an agree-
ment reached between the two drivers. Blake remained in the
truck while Johnson drove. Ferns Sr. told Blake that if he had a
co-driver he would get longer loads and earn more money.
However, Blake’s assignments did not change while Johnson
was in the truck. Blake testified that he decided to let Johnson
go after around 10 days since Blake’s income did not increase
to absorb the cost of paying Johnson. Blake issued a 1099 tax
form to Johnson. Both Hill and Blake filed corporate tax re-
turns for their corporations. They deducted wages, lease pay-
ments, vehicle depreciation, and operating expenses for their
trucks on their corporate taxes.19
By separate letters dated November 17, Ferns Sr. terminated
the lease agreements of Hill and Blake. The letters state that
Hill and Blake jeopardized two major accounts “by soliciting
our Independent Contractors to join a union.” The letters state
that Hill and Blake no longer had permission to operate under

a form holding Time Auto harmless “for any or all liabilities” while
they are in the vehicle.
19 Hill and Blake used the same accountant to prepare their corporate
taxes. Hill’s tax income statement became separated from his corporate
tax form at the hearing and was submitted as a separate exhibit as R.
Exh. 6. I find that Hill’s tax records entered into evidence as R. Exhs. 6
and 8 should have been entered into evidence as one document.
Blake’s income statement was attached to his tax form when entered
into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
Time Auto’s ICC license, and that they were required to re-
move all door plaques, license plates, and decals and remit
them to Time Auto along with their copy of the lease agree-
ment. The letters state that all insurance coverage provided
under Time Auto’s policies would be cancelled effective No-
vember 24. The letters set forth the remaining amounts that
Hill and Blake owed under their lease agreements for their
vehicles and state that if they paid off those amounts the titles
would be turned over to them. The letters state that if they
chose not to pay off the equipment it should be returned to
Time Auto for auction. Neither Hill or Blake paid off their
truck and trailer on receipt of these letters, and they lost their
deposits as well as any equity they had in the vehicles.
Morefield testified that some of Respondent’s lease drivers
have leased more than one truck from Respondent and have
other drivers driving for them in the operation of these trucks.
However, Respondent’s records reveal that only three lease
drivers operated more than one truck at any time during 1999 to
2000 time period although Respondent used between 32 and 44
trucks during that period. Lease driver Stowers showed two
truck numbers after his name on Respondent’s records for the
quarter ending June 30, 1999. Lease driver Smith showed three
truck numbers after his name beginning for the payroll records
ending January 26, 2000, and Smith operated three trucks
throughout 2000. Lease driver Ashabaugh began operating two
trucks for Respondent as reflected in Respondent’s records for
the quarter ending June 28, 2000, and he operated two trucks
for the remainder of the year.20
B. Analysis
1. Legal principles
In NLRB v. United Insurance Co., 390 U.S. 254 (1967), the
Court reversed the Seventh Circuit to find that an insurance
company’s debit agents were statutory employees as opposed to
independent contractors. The Board had found that they were
statutory employees but was reversed by the Seventh Circuit.
In reversing the Board, the Seventh Circuit held in United In-
surance Co. of America v. NLRB, 304 F.2d 86, 90 (7th Cir.
1962) as follows:

20 Morefield testified that there were no owner-operator’s hauling for
Respondent in 1999 or for the first part of 2000, until Motor City,
owned by Ferns Jr., began operating two trucks in June 2000. More-
field testified that driver Roach is an owner-operator whose name ap-
pears on Respondent’s quarterly records ending June 28, 2000. Roach
was operating one truck at that time. Morefield’s testimony and Re-
spondent’s records reveal that for the third quarter of 2000, Respondent
had 39 trucks hauling for it. At that time, Motor City (Ferns Jr.) owned
three of those trucks, and Roach owned and operated one of them. At
the end of the fourth quarter of 2000, there were 44 trucks hauling for
Respondent of which owner-operators owned nine. Roach had left, but
Respondent had contracted with 6 additional owner-operators in De-
cember 2000, with each only operating one truck, plus the three oper-
ated by Motor City. Morefield testified that none of the owner-
operators acquired their vehicles through Respondent’s lease agree-
ments. Rather, they started hauling for Respondent already owning
their own vehicles. She testified, however, that one of the owner-
operators had previously worked for Respondent as a lease driver and
had purchased a truck before he left.
We hold the debit agents are independent contractors. A debit
agent is “on his own.” He sets his own hours of work and
work days and makes his own arrangements with policy hold-
ers respecting frequency of premium payments. As admitted
by the trial examiner, the agent pays his own travel expense,
rent postage, telephone, bond expense and salaries of assis-
tants; he may take holiday when he desires without notice to
United. Agents may transfer polices among themselves and
are not required to do so by United. An agent retains his own
commission from collected premiums. As to selling insur-
ance, the agent . . . is free to follow the superintendent’s sug-
gestion or to devise his own methods.

The Supreme Court, on review, stated that, “there is no doubt
that we should apply the common-law agency test here in dis-
tinguishing an employee from an independent contractor.”
NLRB v. United Insurance Co., supra. at 255–256. The Court
noted that the agents were paid based on a commission plan
under which they retained between 10 to 20 percent of their
weekly insurance premium collections, and that they also re-
tained 50 percent of the first year’s premiums of ordinary life
policies that they sold. The agent was required to turn in his
collected premiums to the office once a week and file a weekly
report. It was stated that agents who had poor productions
records were cautioned. The district manager also submitted a
weekly report to the home office, stating the agents whose re-
cords were below average and what had been done to remedy
the “letdown.” If there was no improvement the company
asked the agent to resign, or exercised its right to fire them at
any time.
The Supreme Court applied the following principles in con-
cluding that the debit agents were statutory employees:

There are 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, and these cases
present such a situation. On the one hand these debit agents
perform their work primarily away from the company’s of-
fices and fix their own hours of work and work days; and
clearly they are not as obviously employees as are production
workers in a factory. On the other hand, however, they do not
have the independence, nor are they allowed the initiative and
decision-making authority, normally associated with an inde-
pendent contractor. In such a situation as this there is no
shorthand formula or magic phrase that can be applied to find
the answer, but 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. When this is
done, the decisive factors in these cases become the follow-
ing: the agents do not operate their own independent busi-
nesses, but perform functions that are an essential part of the
company’s normal operations; they need not have any prior
training or experience, but are trained by company supervi-
sory personnel; they do business in the company’s name with
considerable assistance and guidance from the company and
its managerial personnel and ordinarily sell only the com-
pany’s policies; the “Agent’s Commission Plan” that contains
the terms and conditions under which they operate is promul-
TIME AUTO TRANSPORTATION 635
gated and changed unilaterally by the company; the agents
account to the company for the funds they collect under an
elaborate and regular reporting procedure; the agents receive
the benefits of the company’s vacation plan and group insur-
ance and pension fund; and the agents have a permanent
working arrangement with the company under which they
may continue as long as their performance is satisfactory. Id.
at 258–259.

In Roadway Package System, 326 NLRB 842 (1998), and
Dial-A-Mattress Operating Corp., 326 NLRB 884, (1998),
following oral argument, the Board issued decisions on the
same date as to the status of certain delivery drivers finding
those driving for the former company to be statutory employees
and those hauling for the latter to be independent contractors.
The Board stated in Roadway Package System, supra at 850,
that in determining independent contractor versus employee
status that:

. . . the common-law agency tests encompasses a careful ex-
amination of all factors and not just those that involved a right
of control. See NLRB v. Amber Delivery Service, 651 F.2d 57,
61 (1st Cir. 1981) ) (“The determination of ‘independence’. . .
ultimately depends upon an assessment of ‘all of the incidents
of the relationship . . . with no one factor being decisive.”
NLRB v. United Ins. Co., 390 U.S. at 258; . . . see also Re-
statement (Second) of Agency Sec. 220 (1958)’.) As the
Board stated in Austin Tupler Trucking, 261 NLRB 183, 184
(1982): “Not only is no one factor decisive, but the same set
of factors that was decisive in one case may be unpersuasive
when balanced against a 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 fac-
tual background leads to an analysis that makes that factor
more meaningful in one case than in another.

In concluding that the drivers in Roadway Package System,
supra, are statutory employees the Board noted that the drivers
devote a substantial percentage of their time performing func-
tions that allow Roadway to compete in the small package
business and that these functions constitute a regular and essen-
tial part of the company’s business. The Board noted that while
a few operate as incorporated businesses, all do business in the
name of Roadway. The drivers’ vehicles were designed by
Roadway and display that company’s name, logo, and colors.
While the drivers had a contractual right to use their vehicles
for other commercial purposes none of the drivers in dispute
had exercised that right. The Board concluded in that instance
that this was a result of obstacles created by Roadway in that
the drivers work schedules prevented them from taking on addi-
tional business in their off duty hours. The Board noted that
while truck ownership can suggest independent contractor
status, “the form of truck ownership, here, does not eliminate
the Ontario and Pomona drivers’ dependence on Roadway in
acquiring their vehicles” Id. at 851. The Board noted that
Roadway provides the source for equipment required by
agreement, albeit using third parties, under a system which it
controls. Id at 853.
In Slay Transportation Co., 331 NLRB 1292, 1294 (2000),
the Board majority, in concluding that certain owner-operators
are statutory employees stated the following:

Having considered all of the incidents of the owner-operators’
relationship with the Employer, we find that the various fac-
tors 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, test-
ing, dispatch operations and procedures. Further, the Em-
ployer controls the compensation the owner-operators receive,
and sharply limits their entrepreneurial opportunities, by re-
quiring that each individual who leases a tractor to the em-
ployer enter into a contractual agreement which sets forth
specific compensation rates for the type of work that the trac-
tor will be used to perform (either by the owner-operators
themselves or by drivers they hire and compensate directly.)

The Board majority stated in Slay Transportation Co., id. at
1294, that, “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).”
In Corporate Express Delivery Systems, 332 NLRB 1522
(2000), the Board found certain owner-operators to be statutory
employees. The Board stated that they perform work that “con-
stitutes essential functions of the Respondent’s normal opera-
tions as a package pickup and delivery service.” They were
trained by the respondent, do business in the respondent’s name
with substantial guidance and control by the respondent. They
were not permitted to use their vehicles to deliver for any other
company, and they purchased insurance with a company desig-
nated by the Respondent. They displayed the Respondent’s
logo on their vehicles, and their routes and base pay are deter-
mined by the respondent. The owner-operators had no right to
add or reject customers, and the company incurred no liability
for unilaterally terminating an owner-operator’s contract.
As the Board’s decisions in Slay Transportation Co., supra,
and Corporate Express Delivery Systems, supra, suggest, while
the Board has sought to de-emphasize the right to control test in
determining whether an individual is an independent contractor
or statutory employee, it has not eliminated the test as a signifi-
cant factor for consideration. Moreover, various circuit courts
of appeal place significant reliance on the right of control test in
determining independent contractor status. See Labor Rela-
tions Division v. Teamsters Local 379, 156 F.3d 13, 19 (1st Cir.
1998), where the court stated:

Applying the common law to determine whether owner-
operator truck drivers are employees or independent contrac-
tor[s] is nothing new to this or other federal appellate courts.
In doing so, the fundamental inquiry is whether the employer
has the “right to control the manner and means by which the
product is accomplished.” This is the so-called “right to con-
trol” test. In applying this multi-factored test, “all of the inci-
dents of the relationship must be assessed and weighed with
no one factor being decisive.” [Citations omitted.]

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
In Labor Relations Division v. Teamsters Local 379, supra at
21, the court in concluding that certain owner-operators were
independent contractors distinguished its decision in NLRB v.
Amber Delivery Service, 651 F.2d 57 (1st Cir. 1981), holding
that certain owner-operators were statutory employees, as fol-
lows:

In Amber, the owner-operator delivery truck drivers were re-
quired to report to work by 8:00 a.m. with their vehicles
loaded, were required to phone the employer every two hours
during the day, were not allowed to reject loads, were prohib-
ited from providing similar services to other employers, were
required to attend training and safety meetings and were re-
quired to wear company uniforms and paint their vehicles
with company colors affix company sign. See id. at 62–63
(explaining that these specific facts were important to the
resolution of that case). At the Boston Harbor Project, the
owner-operators can begin their work day at any time, occa-
sionally reject loads, provide similar services to other em-
ployers, are not required to attend any meetings, and are not
required to identify with a given employer by wearing uni-
forms, painting their trucks or using company signs. Ulti-
mately, despite factors such as the drivers receiving an hourly
wage, which would tend to support a finding of an employer-
employee relationship, there is insufficient evidence of man-
agement control over the manner in which owner-operators
work to support the arbitrator’s opinion.

In NLRB v. O’Hare-Midway Limousine Service, 924 F.2d
692, 695 (7th Cir. 1991), the court held as follows concluding
that certain drivers are statutory employees:

The Regional Director’s decision, upon which the ALJ relied,
cites numerous aspects of O’Hare-Midway’s relationship with
its drivers which provide ample support for the Board’s con-
clusion that Berg was an employee. When O’Hare-Midway’s
drivers are first employed they may select the a.m., p.m. or
all-day shift, but a driver may not change his or her work
schedule, or terminate a shift early, without the Company’s
permission. Drivers keep only 40 percent of the gross fares
they take in and they must turn in the remaining 60 percent to
O’Hare-Midway. The drivers are required to adhere to com-
pany rules regarding the manner in which they collect fares
and service passengers, including maintaining records of each
fare received. O’Hare-Midway has the right to fine or repri-
mand the drivers for failure to comply with company proce-
dures and the Company also retains discretion to refuse to
provide a driver with a vehicle. All drivers must also follow a
mandatory dress code which requires them to wear a black
suit, dark tie and a white shirt. Although drivers buy their
own gasoline and absorb the losses for delinquent passengers,
and although the Company provides no benefits to its drivers,
makes no deductions for social security and does not withhold
state and local income taxes, on balance, the evidence was
substantial that Berg was not an independent contractor.
Cases cited by O’Hare-Midway holding that lessee cab
drivers are independent contractors do not compel a dif-
ferent result. See Local 777, Democratic Union Organiz-
ing Committee, Seafarers International Union of North
America v. NLRB, 603 F.2d 862 (D.C. Cir. 1978); Yellow
Taxi Cab of Minneapolis v. NLRB, 721 F.2d 366 (D.C.
Cir. 1983); NLRB v. Associated Diamond Cabs, 702 F.2d
912 (11th Cir. 1983). The decisive factor in those cases
was the lack of any financial interdependence between the
taxicab companies and the cab drivers. The cab companies
earned the same income irrespective of any individual
driver’s fare intake since the companies profited solely
from lease contracts with the drivers, and the cab drivers
did not account for their earnings nor did the companies
control the hours the lessee drivers operated the leased
cabs. By contrast, O’Hare-Midway has a direct financial
stake in the amount of fares collected by its drivers, re-
quires extensive reporting of each driver’s productivity
and the Company determines the hours its drivers may
work. Unlike the taxicab companies, O’Hare-Midway has
significant control over the manner and means by which
its drivers perform their jobs.21
2. Hill and Blake are statutory employees
I conclude, on consideration of the cited precedent, as well
as weighing all the factors here including the “right of control”
test described above that Respondent’s lease drivers are em-
ployees within the meaning of Section 2(3) of the Act. Re-
spondent orders the trucks and trailers for the lease drivers and
arranges financing for those vehicles. The drivers have little or
no choice in the vehicles that are ordered, and Hill and Blake’s
testimony reveals that they, in particular, had no choice. The
lease drivers sign 60-month leases for the trucks which specify
the gross contract amount as well as the monthly payments.
The contracts do not show the interest rates the drivers are
charged for the loan. Hill and Blake were required to put down
a $10,000 deposit for the truck and trailer, and to take out
liability insurance secured by Respondent in the amounts speci-

21 See, Elite Limousine Plus, 324 NLRB 992, 1002, (1997), where
drivers were found to be employees where their fares were recorded by
a voucher system maintained by the company and the company retained
17 to 20 percent of the voucher. It was found there that, “the Em-
ployer has a substantial and direct financial stake in the amount of fares
collected by the drivers.” See also, NLRB v. United Insurance Co., 390
U.S. 254 (1967), where debit agents were paid on a percentage basis of
the policies they sold with the remainder of the money going to the
employer. The employer closely monitored their performance and
terminated agents for insufficient sales. Similarly, in Seafarers Local
777 (Yellow Cab), 603 F.2d 862, 878–879 (D.C. Cir. 1978), the court
held that one of the dispositive factors in finding that the drivers there
were independent contractors was that the drivers paid a fixed rental for
the cabs regardless of their daily earnings. The court held that the cab
companies had no financial incentive to impose controls on their lease
drivers. In Yellow Taxi Co. of Minneapolis v. NLRB, 721 F.2d 366, 377
(D.C. Cir. 1983), the court distinguished it decision in Seafarers and its
findings in another decision by stating that “In Orlando, on the other
hand, we found that the company closely monitored fares chronicled on
trip sheets and, on that basis, had changed the financial details of the
drivers’ lease arrangement seven times in 6 months. Thus, because the
company’s compensation was effectively tied to the revenues generated
by the drivers, we concluded, upon consideration of all the circum-
stances that the ‘goodwill’ of the enterprise inured to the Orlando com-
pany, not to the drivers. 628 F.2d at 265.” The court had concluded
that the drivers in the Orlando case were statutory employees. See City
Cab Co. of Orlando, Inc. v. NLRB, 628 F.2d 261 (D.C. Cir. 1980).
TIME AUTO TRANSPORTATION 637
fied by Respondent with Respondent named as the principle in
the policy. The lease agreements are terminable at will by Re-
spondent for any reason without penalty,22 at which time the
driver will lose any equity in the truck if they fail to secure
alternative financing to pay the remainder of the lease amount
within 7 days.23 The titles to the leased vehicles are in Respon-
dent’s name and the drivers do not receive copies of the title.
Thus, Respondent selected and controlled the equipment used
by the drivers in its car hauling operation. See Roadway Pack-
age System, 326 NLRB 842, 851, 853 (1998).24
The lease driver’s car hauling assignments constitute the
central operation of Respondent’s business and Respondent
engaged in strict oversight in the manner and means in which
the drivers performed their work. While Hill and Blake had
extensive car hauling experience before they began hauling for
Respondent, they each were required to undergo training with
another of Respondent’s drivers to learn how to complete Re-
spondent’s paperwork and how to load and unload the vehicles.
At the outset of their employment they were told that they had
to call in to Respondent’s dispatch office twice a day at times
specified by Respondent and this requirement was memorial-
ized in Respondent’s Independent Contractor Agreements.
Morefield’s testimony reveals that this requirement was en-
forced, and Respondent’s records reveal that drivers were is-
sued warning letters, one driver was suspended for 5 days, and
another driver’s contract was terminated for not calling in as
required in the contracts. Along these lines, Hill was required
to obtain approval from Ferns Sr. before he could take time off
at which point he was told that he had to employ a substitute
driver because his truck could not remain idle. The Independ-
ent Contractor Agreement Blake signed set forth procedures for

22 See Corporate Express Delivery Systems, 332 NLRB 1522 (2000),
where the Board specifically cited the fact that an employer incurred no
liability for terminating an owner-operator’s contract as an indication
that the owner-operator’s there were statutory employees.
23 Respondent concedes at p. 3 of its posthearing brief that most
drivers “do not have the ability to finance their tractor/trailers or to
acquire the necessary insurance coverage.” In fact, Hill and Blake lost
all equity in their trucks when Respondent terminated their contracts in
November 2000 because they had engaged in union activity. Blake had
only been hauling for Respondent for 3 months at the time and lost his
$10,000 deposit in the leased equipment.
24 The vast majority of Respondent’s drivers were lease drivers as
opposed to owner-operators. Moreover, Morefield could only name
one of Respondent’s owner-operators who had purchased a truck
through a lease arrangement with Respondent. The status of this indi-
vidual was unclear as he had stopped hauling for Respondent and then
returned as an owner-operator. Morefield testified that the remainder
of Respondent’s owner-operators came to work already owning their
own vehicles. While Hill and Blake each signed 5-year lease agree-
ments with Respondent for them to pay off their trucks and trailers, the
Independent Contractor Agreement Hill signed prevented him from
using a truck more than 6 years old, and the one signed by Blake pre-
vented him from using a truck more than 5 years old. The lease agree-
ment Blake signed contained a 5-percent prepayment penalty on the
balance owed if the agreement was paid off before the lease ended and
Blake did not enter into another lease. Thus, the agreements were
designed and Respondent’s driver history reveals that they operated to
keep the drivers in a permanent leasehold status with Respondent.
requesting time off, and stated that requests for time off for
holidays would be based on seniority.
The lease drivers received their assignments through Re-
spondent’s dispatch office, which operated on a first call in first
out basis taking into consideration geographic requirements.
However, drivers hauled throughout the United States and Can-
ada and only received their next assignment after they dropped
off their current load of cars. Respondent’s dispatchers penal-
ized a driver if they refused a load by dropping them to the
bottom of the dispatcher’s referral list thereby stranding them
where they were at the time they called in. Hill and Blake testi-
fied that they never refused a load and Morefield’s testimony
revealed that if a driver refused a load the timing of their next
assignment would be at the dispatcher’s discretion. Thus, a
driver is punished by Respondent’s dispatch procedures for
refusing a load a factor that tends to suggest employee status.
See, Elite Limousine Plus, 324 NLRB 992, 1002 (1997).25
Respondent, per its form agreement, pays its drivers 80 per-
cent of the gross per load. Respondent does not conduct indi-
vidual negotiations or vary this rate for any of its drivers.26
Respondent determines a driver’s weekly settlement pay minus
deductions based on the extensive records the driver submits to
Respondent. Ferns Sr. reviews weekly and quarterly computer
generated spread sheets to determine a driver’s productivity
including year to date gross earnings and average monthly
gross earnings. Morefield’s testimony reveals that if a driver
continually fails to generate the average monthly earnings they
would be let go. In November 1998, Respondent issued a letter
to a driver stating that his revenues were 45 percent below av-
erage, and that he should increase those revenues to the average
amount so that the “bank stays satisfied.” In February 1999, a
driver’s contract was terminated, in part, because his earnings
the prior year were $30,000 below the average annual gross
earnings. A letter issued in April 1999 terminating the lease of
two drivers stating that it was not in Respondent’s financial
interest to retain them. In October 2000, Respondent issued
disciplinary letters to two drivers threatening termination for
failure to earn the monthly average. Respondent incorporated
the requirement drivers perform at the current monthly average
in Blake’s independent contractor agreement, which he signed
in August 2000.27
25 Blake explained that if he refused a load he would not make his
$20,000 a month gross as required by his contract and he would not be
able to make the payments on his truck.
26 The drivers do not solicit work from customers, nor do they nego-
tiate prices for the transport of vehicles with customers.
27 While the monthly gross provision was not specified in Hill’s
agreement, both Hill and Blake’s contracts were terminable at will by
Respondent. Moreover, Respondent’s disciplinary records and More-
field’s testimony reveal that Respondent maintained this requirement
during the course of Hill’s employment there as a car hauler. Respon-
dent’s pressure on the drivers to generate income also manifested itself
in statements by its officials to Hill and Blake. Dispatcher Ferns Jr.
told Hill that he took too long to haul his first load. On another occa-
sion, Hill asked the dispatcher if he could go home after he loaded his
truck. Hill testified that, at the time, he was low on lawful driving
hours. The dispatcher told Hill he could go home but that he would
lose insurance coverage on the truck and cargo. Hill decided to go
home, but he then received a call from Ferns Sr. who stated that Hill
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
I find that Respondent has a direct financial stake in the
amount of cargo hauled by its drivers as it received a percent-
age of the gross for their loads. As a result, Respondent en-
gages in extensive oversight and review of each driver’s pro-
ductivity. The Board and the courts have concluded that this
type of relationship demonstrates that Respondent has signifi-
cant control over the manner and means by which its drivers
perform their jobs suggesting that the drivers are statutory em-
ployees. See NLRB v. United Insurance Co., 390 U.S. 254
(1967); NLRB v. O’Hare-Midway Limousine Service, 924 F.2d
692, 695 (7th Cir. 1991); Seafarers Local 777 (Yellow Cab),
603 F.2d 862, 878–879 (D.C. Cir. 1978); Yellow Taxi Co. of
Minneapolis v. NLRB, 721 F.2d 366, 377 (D.C. Cir. 1983); City
Cab Co. of Orlando, Inc. v. NLRB, 628 F.2d 261 (D.C. Cir.
1980); and Elite Limousine Plus, 324 NLRB 992, 1002 (1997).
I have also considered the fact that the Respondent’s drivers
hire drivers as codrivers or replacement drivers and that both
Hill and Blake did so during brief periods of their employment
by Respondent. However, the evidence reveals that Respon-
dent plays an integral role in this process. First, any of these
extra drivers must be approved by Ferns Sr. They submit ap-
plications to Respondent, copies of which do not go to the lease
drivers.28 Respondent arranges for these extra drivers to be
drug tested and copies of the testing results are supplied to and
maintained by Respondent, not the lease drivers. Respondent
requires that the lease drivers provide workmen’s compensation
insurance for these extra drivers. Respondent’s dispatchers
dispatch these extra drivers, and Respondent maintains paper-
work similar to that of the lease drivers for the extra drivers.
Respondent’s control of the hiring of these substitute drivers
was also evidenced in other ways. Ferns Sr. directed Hill to
hire a substitute driver to keep Hill’s truck running while Hill
took time off. He similarly initially rejected a substitute driver
recommended by Blake, causing Blake to suggest to the driver
to obtain additional references to satisfy Ferns Sr., which al-
lowed the driver to eventually be hired. Blake had to let the
extra driver go after about 10 days of operation because his
truck income did not change while driver was in the truck in
that Respondent’s dispatchers did not increase Blake’s assign-

should not go off of his route when he had 3 hours of drive time avail-
able. Ferns Sr. threatened Hill by stating that he better learn how to do
his logs or Ferns would sell his truck. Hill and Blake testified that the
vehicles Respondent ordered for them were over length to legally run in
Canada. Their dispatch logs reveal that they made regular runs to Can-
ada. They testified that when they were required to go to certain por-
tions of Canada, Respondent’s dispatcher specified a certain route to
avoid being ticketed. Respondent does not take issue, in its brief, that
“Time Auto tractor/trailers were ‘too long to run in Canada.’” (R. Br. at
12, fn. 5.) Rather, it argues concerning the instructions from its dis-
patchers regarding Canadian runs that, “Other than this one situation, of
which it is arguable whether this was an instruction or guidance, it is
not disputed that the operators were free to select their own route to the
scheduled destination.” (R. Br. at 12, fn. 5.) I do not find these instruc-
tions to be isolated as Respondent contends. Rather, I find that Re-
spondent issued a variety of instructions to the drivers requiring them to
maximize Respondent’s earnings including directions on how to avoid
scales in Canada.
28 In fact the lease drivers must obtain approval from Respondent to
even have a passenger in their truck.
ments. Similarly, Hill contemplated leasing another truck
through Respondent. Hill’s file contains a letter stating that he
would have to be generating at least the driver’s monthly aver-
age before he would be allowed to lease another truck. How-
ever, it never reached that point as Hill’s testimony reveals that
the driver quit as a result of frequent phone contacts by Ferns
Sr. with the driver.
I do not find the fact that Hill and Blake were able to hire ex-
tra drivers establishes that they were independent contractors in
the circumstances here where Respondent was involved in the
hiring process and maintained the ability to prevent the hiring
of a driver when it chose to do so. Moreover, Hill and Blake
could only negotiate the extra driver’s wages in the context of
the compensation rate set by Respondent, which in Blake’s case
caused him to lose money resulting in the termination of the
extra driver. See Slay Transportation Co., supra at 1294. 29
Respondent’s independent contract agreement signed by Hill
and Blake provides that in the event the driver (independent
contractor) hauls loads for another carrier under Respondent’s
ICC authority and insurance the independent contractor forfeits
all equity in their equipment and will be automatically termi-
nated. Morefield’s testimony reveals that Respondent went
further than the contract provisions in practice and that Ferns
Sr. announced that Respondent would prohibit drivers from
taking Respondent’s logo and license off the vehicles to use
them to haul for another carrier. Morefield was not aware of
any driver who did this, and Hill and Blake’s testimony reveals
that they were only dispatched by Respondent during the time
they hauled for Time Auto. Blake credibility testified that, in
response to his question, Morefield told him that he could not
haul for another company. Moreover, Hill’s testimony reveals
that Respondent’s ICC license and logo were affixed to his
vehicle in such a manner that it would make them difficult to
remove. Finally, Respondent required the drivers to generate a
certain amount of monthly income. The drivers hours were
limited by federal regulations and as Blake’s testimony reveals
he could not generate the necessary income required by Re-
spondent if he turned down loads, and he certainly could not
have done so if he used limited drive time to haul loads for
another company. 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. See Roadway Package System, 326
NLRB 842, supra; Corporate Express Delivery Systems, 332
29 I have also considered the fact that Respondent lease driver Smith
operated three trucks during 2000, and that two other drivers who ap-
pear to be lease drivers operated two trucks for brief periods of time
during the 1999 or 2000 period. I do not consider these numbers to be
significant because Respondent had between 30 and 44 trucks hauling
for it during this time period. Given these odds, I do not feel that there
is a strong likelihood that a lease driver will have an opportunity to
operate more than one truck under Respondent’s current format. I do
not find that the ability to lease more than one truck presented itself as
viable means for Hill and Blake to generate income outside of Respon-
dent’s control. I make no findings here as to the employee status of
Respondent’s owner-operators or of its lease drivers who operate more
than one truck as their status was not fully litigated here.
TIME AUTO TRANSPORTATION 639
NLRB 1522 (2000); and NLRB v. Amber Delivery Service, 651
F.2d 57 (1st Cir. 1981).
As contended by Respondent, there are factors here that
would tend to support a finding that Hill and Blake were inde-
pendent contractors. The agreements Hill and Blake signed
identified them as independent contractors. Respondent did not
withhold social security taxes, issued 1099 forms to Hill and
Blake’s companies, and did not provide them with any benefits.
The drivers have formed their own corporations, and pay their
own expenses to maintain the vehicles, including repairs, in-
spections, permits and fees. Respondent’s payments were
made to Hill and Blake’s corporations. These corporations
hired drivers and filed Federal income tax returns on a corpo-
rate basis. The lease drivers are responsible to pay the extra
drivers, and to provide them with insurance coverage, and they
can decide to terminate these additional drivers. Outside of
Canadian deliveries, the drivers could choose their own routes.
Respondent also asserts that either party had the authority to
terminate Respondent’s driver agreements and that when Re-
spondent terminated the agreement or warned an operator of
possible termination, it occurred when the operator was not
performing up to standard or in a careless manner and this oc-
curs in normal contractual relations between businesses and
does not necessarily evidence an employer-employee relation-
ship. Respondent contends that while Hill and Blake lost the
equity in their vehicles, they did not exercise their right to refi-
nance and keep them at the time Respondent terminated their
contracts.30
The Board and the courts have found the factors cited by Re-
spondent to be insufficient to establish independent contractor
status, in circumstances such as here, when a company controls
manner and means in which an employee generates income.
See, NLRB v. United Insurance Co., 390 U.S. 254 (1967),
where the Court found debit agents to be employees although
they set their own hours and paid their own expenses including
assistants’ salaries;31 NLRB v. O’Hare-Midway Limousine Ser-
vice, 924 F.2d 692 (7th Cir. 1991), where drivers were found to
be employees although they received no benefits, absorbed
losses for delinquent passengers, the employer made no deduc-
tions for social security and did not withhold State and local
taxes; City Cab Co. of Orlando, Inc. v. NLRB, 628 F.2d 261
(D.C. Cir. 1980), where drivers were found to be employees
although their contract with the company stated that the parties
do not intend to create an employment relationship and that
drivers are to work without interference or control by the com-
pany; Roadway Package System, 326 NLRB 842 (1998), where
drivers were found to be employees although some of them
were incorporated, the drivers could hire extra drivers, a few of
the drivers operated more than one vehicle, the drivers were
responsible for their own withholdings and Roadway provided
no paid holidays, vacations, disability or retirement benefits;

30 Despite making this argument, as set forth earlier, Respondent
states in its posthearing brief that “most operators do not have the fi-
nancial ability to individually finance their tractor/trailers or to acquire
the necessary insurance coverage.”
31 For reasons set forth above, I have found Hill and Blake’s hiring
of additional drivers to be severely circumscribed and in fact controlled
by Respondent’s practices and procedures.
and Elite Limousine Plus, 324 NLRB 992 (1997), where drivers
were found to be employees although they signed franchise
agreements stating it was the intent of the parties not to create
an employer-relationship, the drivers filed profit, loss, and self
employment statements with the IRS, they were issued 1099
forms by the employer which did not withhold Federal income
tax, FICA, or unemployment insurance from their pay, the
company did not provide them with disability or workmen’s
compensation insurance, and they could employ other drivers.
The cases Respondent cites in its brief do not require a dif-
ferent result. In North American Van Lines v. NLRB, 869 F.2d
596, 601–602 (1989), the court noted that drivers there rou-
tinely turned down particular loads and had the ability to chose
between available loads which impacted on their income. The
court specifically stated that, “In other situations, the ability to
refuse particular loads may not bear so decisively in favor of
the independent contractor status. Especially in cases where
the worker (1) gains little control over the nature or perform-
ance of the job by declining particular loads; (2) bears a heavy
burden for exercising the option to decline loads; (3) has little
incentive in practice to decline loads . . . . In the instant case,
Respondent produced no evidence to show that drivers rou-
tinely decline loads and Hill and Blake’s credited testimony
reveals that they never declined a load. Morefield’s testimony
shows that a driver was punished for declining a load by being
placed at the bottom of the dispatcher’s referral list with the
driver not knowing when they would receive their next assign-
ment. In Seafarers Local 777 (Yellow Cab) v. NLRB, 603 F.2d
862, 879 (D.C. Cir. 1978), cited by Respondent, the court found
that the drivers were independent contractors because they paid
a fixed rental on their vehicles and retained all their fares rais-
ing a strong inference that the cab company did not exercise
control because it had no financial interest to do so. It has been
previously discussed that, unlike the situation in Local 777,
Respondent here received 20 percent of the driver’s gross per
load, had a strong incentive, and did in fact exercise control
over means and manner of a driver’s performance. While Re-
spondent is in a heavily regulated industry, I have concluded
that it has gone beyond any government requirements in its
control over the drivers by its setting earnings minimums,
adapting dispatch procedures which punish drivers for refusing
a load, and maintaining a system which in effect prevents a
driver for hauling for another carrier. Central Transport, 299
NLRB 5 (1990), cited by Respondent, involved the status of
three drivers who were found to be independent contractors and
is clearly distinguishable from the facts present here. One of
the drivers there owned or leased between two to five tractors
and at the times that he operated more than two tractors he
regularly hauled for other companies including the respondent
employer’s competitors. In Central Transport, the company
accommodated driver preferences in terms of assignments, and
the company used outside delivery services when it could not
persuade its drivers to make particular runs. The Board, in
finding the drivers were independent contractors, also noted
that they purchased or leased their tractors from sources other
than the respondent, and that the drivers had never been disci-
plined even informally.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
Accordingly, I find that Hill and Blake are statutory employ-
ees within the meaning of Section 2(3) of the Act in that their
equipment was selected and controlled by Respondent, and they
were required to be trained in and implement Respondent’s
operating procedures. Their activities were closely monitored
by Respondent including: the pace of their performance, their
ability to take vacations, their ability to hire substitute drivers,
and the minimum income they needed to generate since Re-
spondent received a percentage of their gross income. They
were prevented from hauling for other employers, they were
subject to punishment for refusing loads, and to disciplinary
action for failing to call in or failing to generate enough in-
come, and Respondent could terminate their contracts at will
without penalty. Based on the parties’ stipulation, since I have
concluded that Hill and Blake are statutory employees I find
that Respondent has violated Section 8(a)(1) and (3) of the Act
by Hill and Blake’s discharge and the termination of their
leases and by statements by its officials as alleged in the con-
solidated complaint.
3. Procedural arguments and other matters.
a. Hill and Blake’s district court suit
On February 7, 2001, Hill and Blake, through counsel, filed
a lawsuit against Respondent in the United States District Court
for the Western District of Kentucky. I allowed Respondent to
enter the complaint in the lawsuit into evidence in the instant
case over the General Counsel’s objection. The General Coun-
sel renews its objection in its posthearing brief. It is alleged in
paragraph 3 of Hill and Blake’s district court complaint that
Hill and Blake provided services to Respondent “purportedly as
an independent contractor.” Paragraph 6 and 7 of the complaint
assert that Hill and Blake entered into a written agreement with
Respondent which, among other things, provided that “as a
purported independent contractor” they were to drive a motor
vehicle in Respondent’s car hauling business. Paragraphs 12
and 13 of the complaint states in pertinent part, “At all times
pertinent herein, following the start of their operation as ‘inde-
pendent contractors,’ Blake and Hill . . . .” The gravamen of the
district court suit is that Respondent failed to comply with Fed-
eral regulations of the trucking industry in its dealings with Hill
and Blake, that Respondent allegedly made unlawful deduc-
tions from Hill and Blake’s financial settlements, and that Re-
spondent fraudulently refused to pay Hill and Blake 80 percent
of the gross which was the agreed on compensation. This law-
suit was not decided that the time of the unfair labor practice
hearing, and no party has provided me with any update as to the
status of the lawsuit. Respondent’s counsel stated at the hear-
ing that this unfair labor practice proceeding should not be
delayed by the lawsuit. Respondent contends in its brief that
“Hill and Blake have identified themselves as independent
contractors in their civil district court lawsuit against Time
Auto” and it argues that this constitutes a conclusive admission
in this case under Federal Rules of Evidence 801(d)(2) that they
are independent contractors. The Board has found statements
by counsel to be admissible as evidence in that they can consti-
tute admissions and I adhere to my decision admitting the dis-
trict court complaint into evidence. See, McKenzie Engineer-
ing Co., 326 NLRB 473, 485 fn. 6 (1998). However, the refer-
enced district court complaint clearly uses the term “purported”
in reference to Hill and Blake’s alleged independent contractor
status or otherwise places the term independent contractor in
quotes signifying that the label was gleaned from the Respon-
dent’s documents and not necessarily adopted by Hill, Blake, or
their attorney as suggestive of Hill and Blake’s actual status.
Accordingly, I do not find that the terminology used in the
district court complaint constitutes an admission that Hill and
Blake are independent contractors, nor would I find that such
an admission would be binding on me here where the facts of
the parties’ relationship have been fully litigated and, in my
view, warrant a finding that Hill and Blake are statutory em-
ployees.
b. Blake’s statements that he drove in excess of DOT limits
A common carrier engaged in interstate transportation by
motor vehicle, is subject to the DOT Federal Motor Carrier
Safety Regulations which provide, in pertinent part at Section
395.3, (a) that:

. . . no motor carrier shall permit or require any driver
used by it to drive nor shall any such driver drive:
(1) More than 10 hours following 8 consecutive hours
off duty; or . . . 49 CFR Ch. III (10-1-01 Edition).

Section 395.8 (e) of the same regulations provides details for
driver reporting requirements concerning hours of work and
states that “making of false reports in connection with such
duty activities shall make the driver and/or the carrier liable to
prosecution.” 49 CFR Ch. III (10–1–01 Edition). Respondent,
pursuant to these regulations requires that its drivers maintain
daily driving logs, which are turned in to Respondent on a bi-
weekly basis. Both Hill and Blake testified that they felt pres-
sured by Respondent to falsify their logs and to drive over the
legal limit in hours.32 However, neither driver testified that
they were told directly by Respondent’s officials to falsify their
logs, although Hill interpreted certain remarks by Ferns Sr. to
constitute such an instruction. When asked by the General
Counsel about his driving schedule Blake testified that “The
law is 10 hours a day but I normally went way over that.”
Blake went on to testify as follows:

JUDGE FINE: You say you were driving more than 10
hours a day during the weeks you were there?
THE WITNESS: Yes.
JUDGE FINE: Didn’t you have to fill in a Daily Log to
show how many hours you were driving?
THE WITNESS: Yes.
JUDGE FINE: Did you put down that you were driving
more that 10 hours a day?
THE WITNESS: No sir.
JUDGE FINE: Why not?
THE WITNESS: Because if I did, I would be fired.

32 Hill, unlike Blake, did not testify that he drove over the DOT lim-
its or that he recorded false information in his logs.
TIME AUTO TRANSPORTATION 641
Blake explained that the dispatcher gave him delivery dead-
lines, that he had to meet those deadlines, and that his truck
would not be loaded “if you didn’t play the game.” 33
At the close of the hearing, I asked counsel for the General
Counsel why Hill and Blake’s testimony should credit that
Respondent was requiring them to run illegal when Hill rec-
ommended to Blake that he should haul for Respondent. Coun-
sel for the General Counsel argue at page 23 of their brief con-
cerning Blake’s falsification of reported hours that:

As questionable a practice this may be for those of us sitting
behind desks, and reaping the benefits of the interstate truck-
ing industry, being directed to avoid scales, and to leave off of
a log some hours here and some hours there is a small price to
pay to obtain a rig of one’s own. As evidenced by the daily
logs and settlement checks, although their hours were long
and grueling, the deductions sometimes astronomical, and the
dispatches uncertain, the potential to earn a more than decent
living appeared to present itself through Respondent. Be-
tween them Blake and Hill have upwards of 40 years in the
car hauling business . . . . Each has worked for varied and
numerous carriers throughout that time, but always driving
someone else’s truck. It is wholly understandable that they
perceived driving for Respondent as an opportunity to get into
the car haul business for themselves. It is neither inconsistent
or inherently incredible that Hill would recommend this op-
portunity to Blake, and Blake would seize it regardless of pe-
riodically running over the limits.

I do not find these contentions on the part of the General Coun-
sel particularly convincing. First, contrary to the General
Counsel’s assertion, Blake testified that he “normally went way
over” the 10-hour-a-day limit, thereby indicating that he regu-
larly falsified his logs for pecuniary advantage. Blake’s will-
ingness to falsify his logs for monetary gain does not serve to
enhance his credibility in this proceeding where it was to his
monetary advantage to testify against Respondent.
Enforcement of DOT safety regulations is not part of this
proceeding. However, I do not condone conduct that may vio-
late those regulations putting the driver and others who use the
highways at risk so that someone can own their own truck, nor
do I find this conduct “wholly understandable” as the General
Counsel contends. Noting that Respondent has tacitly admitted
in its brief that its dispatchers suggested to drivers the means by
which to evade scales in Canada, as well as the concentrated
effort made by Respondent to monitor and maximize drivers’
earnings, I have concluded that it was also not beyond Respon-
dent’s officials to indirectly pressure drivers to under report
their hours as Hill testified. I do not condone this conduct on
part of Respondent or on the part of Blake, nor do I condone
Respondent’s instructions to Hill and Blake and their acquies-
cence to those instructions to avoid Canadian truck scales.

33 Blake’s testimony on this point is somewhat undercut by that of
Morefield who testified that Respondent did not guarantee the delivery
date of a load, and that while a driver may be punished, usually nothing
happens to a driver with a late load. However, on May 31, 2000, Ferns
Sr. issued a letter to a driver stating that he was late for the drop off of
certain vehicles and that, “If this should ever happen again you will not
be allowed to haul out of Canada.”
I have considered counsel for the General Counsel’s state-
ment in their brief that Hill and Blake perceived driving for the
Respondent as an opportunity to “get into the car haul business
for themselves,” but do not consider it to be an admission war-
ranting a finding that they are independent contractors. Rather,
the Board and the courts have directed that I consider all of the
factors of the parties’ relationship including the employer’s
“right to control” which I have set forth in detail in concluding
that Respondent’s lease drivers are statutory employees. I do
not find that inopportune statements by counsel in the circum-
stances here should warrant a different result.
CONCLUSIONS OF LAW
1. Time Auto and Time Auto L.S. are, and each is, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Time Auto and Time Auto L.S. (jointly referred to as Re-
spondent) are a single employer within the meaning of Section
2(2) of the Act.
3. Local 299, International Brotherhood of Teamsters, AFL–
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
4. Respondent violated Section 8(a)(1) of the Act by:
(a) Creating the impression of surveillance of employees’
union activities.
(b) Coercively interrogating employees about their union ac-
tivities.
(c) Threatening to discharge employees because of their un-
ion activities.
5. Respondent violated Section 8(a)(1) and (3) of the Act by
on November 17, 2000, discharging and terminating the lease
agreements of its employees Randy Hill and Earnest Blake
because they engaged in union activities.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having discriminatorily discharged employ-
ees Randy Hill and Earnest Blake, it must offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).34 Included this recommended
34 Both Hill and Blake testified to the effect that they acquiesced in
the instructions of Respondent’s dispatchers to improperly run over-
sized loads in Canada under Canadian law. However, Blake in particu-
lar testified that, when driving in the United States, he also normally
ran way over DOT prescribed hours and under reported those hours in
apparent violation of DOT regulations. Such conduct presents a clear
safety hazard to himself and others. It is therefore with great reluctance
that I have issued a reinstatement order for Blake in this proceeding and
the Board may view the matter in a different light. However, in issuing
a reinstatement order for Blake, I have found that Respondent created
an environment that seemed to foster such behavior. Moreover, despite
the admissions on the record by Blake as to his apparent DOT viola-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
remedy is that Respondent make Hill and Blake whole for the
equity lost in their trucks and trailers, plus interest, resulting
from their unlawful discharges and Respondent’s termination of
their leases.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended35
ORDER
The Respondents, Time Auto Transportation, Inc., and Time
Auto Transport, L.S., Troy, Michigan, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression of surveillance of employees’
union activities.
(b) Coercively interrogating employees about their union ac-
tivities.
(c) Threatening to discharge employees because of their un-
ion activities.
(d) Discharging employees and terminating their leases be-
cause they engaged in union activities.
(e) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employ-
ees Randy Hill and Earnest Blake full reinstatement to their
former positions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
(b) Make Randy Hill and Earnest Blake whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Randy Hill
and Earnest Blake, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Within 14 days after service by Region 7, post at its facil-
ity in Troy, Michigan, copies of the attached notice marked
“Appendix A.”36 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-

tions, Respondent did not argue at the hearing or in its posthearing brief
that such conduct by Blake should serve to bar his reinstatement. Thus,
this issue was not briefed to me or raised by Respondent as a defense to
Blake’s reinstatement.
35 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
36 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 Na-
tional labor Relations Board” shall read “Posted Pursuant to a Judgment
of the United Stated Court of Appeals Enforcing and Order of the Na-
tional Labor Relations Board.”
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. Additionally, within 14 days
after service by the Region, Respondent shall duplicate and
mail at its own expense a copy of said notice to all lease drivers
who haul or have hauled for Respondent at any time since No-
vember 16, 2000. The notice shall be mailed to the last known
address of each of these drivers after being signed by the Re-
spondent’s authorized representative. In the event that, during
the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent on or after November
16, 2000.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties

WE WILL NOT create the impression of surveillance of employ-
ees’ activities on behalf of Local 299, International Brotherhood
of Teamsters, AFL–CIO, or any other labor organization.
WE WILL NOT coercively interrogate employees about their
union activities.
WE WILL NOT threaten to discharge employees because of
their union activities.
WE WILL NOT discharge employees or terminate their leases
because they engaged in union activities.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL within 14 days of the Board’s Order, offer Randy
Hill and Earnest Blake full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
TIME AUTO TRANSPORTATION 643
WE WILL make Randy Hill and Earnest Blake whole for any
loss of earnings and other benefits suffered as a result of their
discharges and termination of their leases as directed in the
Board Order.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of Randy Hill and Earnest Blake and within 3 days thereafter
notify the employees in writing that this has been done and that
the discharges will not be used against them in any way.

TIME AUTO TRANSPORTATION, INC. AND TIME AUTO
TRANSPORT, L.S.