1. 1 C. C. Eastern Issue: are truck drivers in question “independent contractors” within the meaning of Section 2(3) and therefore not covered by the NLRA? Standard of Review –Not based on expertise – law of agency –Board’s decision entitled to deference if views “fairly conflicting”

2. 2 Basic Principle – Right of Control Employee –Er controls means of performing tasks results to be achieved Independent Contractor –Er controls Results to be achieved –Er does not control Means of performing tasks

3. 3 Means Distinction between –Supervision for an Ee –Monitoring, evaluating, and improving results for an IC

4. 4 Application to C.C. Eastern Company does not –Set drivers’ hours –Establish dress/appearance rules –Discipline drivers Quality assurance is monitoring –Provide equipment Drivers use personal tractors/tools –Maintain Equipment –Provide benefits –Withhold income tax –Limit use of equipment when not hauling for company –Require drivers to actually deliver the product Driver may hire another driver –Dictate how freight delivered in designated area –Dictate route

5. 5 Evidence Supporting Ee Status Company determines area of deliveries Not sufficient to outweigh other evidence Only one ee has ever leased truck –No company prohibition –Work only 40-50 hours per week

6. 6 IC Monitoring/Evaluating/Improving vs. EE Discipline Quality Contractor Award Program –Characteristics Lump sum promised with reductions for unavailability, accidents, inaccurate documentation –Board: Bonus/Discipline Explicit: “Discipline” is a reduction in portion of compensation and the program meets that criterion –Court: Monitoring – purpose to provide incentives for certain behavior Implicit: “Discipline” is direct warning with ultimate termination and the program does not meet that criterion