Dial-A-Mattress Operating Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1998

326 N.L.R.B. 884 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
Dial-A-Mattress Operating Corporation and Local
363, Industrial and Allied Trade Workers, In-
ternational Brotherhood of Teamsters, AFL–
CIO, Petitioner. Case 29–RC–8442
August 27, 1998
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN,
AND BRAME
On July 28, 1995, the Regional Director for Region 29
issued a decision (pertinent portions of which are at-
tached as an appendix) finding that certain owner-
operators who provide customer delivery services for the
Employer, Dial-A-Mattress Operating Corporation
(Dial), are not independent contractors. In accord with
Section 102.67 of the National Labor Relations Board’s
Rules and Regulations, Dial filed a timely request for
review and a brief, and the Petitioner filed a brief oppos-
ing review. By Order dated May 8, 1996, the Board
granted review solely with respect to Dial’s contention
that its owner-operators are independent contractors.
Dial and the Petitioner submitted letters renewing their
respective positions set forth in their previously submit-
ted briefs.
On December 3, 1996, the Board heard oral argument
in this case and Roadway Package System, 326 NLRB
No. 72 (1998), also issued today. The Board sought,
inter alia, the parties’ comments relating to (1) the
Board’s authority to change or modify the common law
right-of-control test to determine if an individual is an
employee within the meaning of Section 2(3) of the Act;
(2) the relative importance of factors indicative of em-
ployee or independent contractor status; and (3) the ap-
plicability of particular cases raising similar independent
contractor issues.1 The parties as well as a number of
amici curiae2 filed preargument and postargument briefs
and/or participated in the oral argument.3
Dial is engaged in the retail sale and distribution of
mattresses and bedding from its office/warehouse in
Long Island, New York. Dial has 39 owner-operators
who use their own equipment and the assistance of a
helper and/or driver to deliver Dial’s products throughout
the New York Metropolitan area. At issue in this pro-
ceeding is the status of these owner-operators since July
20, 1993.4 There is no collective-bargaining history in-
volving this classification.5

ases.

1 These cases are Roadway Package System, 288 NLRB 196 (1988);
NLRB v. Amber Delivery Service, 651 F.2d 57 (1st Cir. 1981), enfg.
250 NLRB 63 (1980); and C.C. Eastern v. NLRB, 60 F.3d 855 (D.C.
Cir. 1995), enf. denied and vacating 313 NLRB 632 (1994).
2 American Federation of Labor and Congress of Industrial Organi-
zations, et al.; American Trucking Associations; Associated Builders
and Contractors; The Chamber of Commerce of the United States;
Council on Labor Law Equality; Messenger Courier Association of the
Americas; and Newspaper Association of America.
3 Member Hurtgen recused himself and took no part in the
consideration of these c
The Petitioner would include the owner-operators in
the petitioned-for unit with their helpers and drivers (a
total of approximately 103 individuals). Dial, on the
other hand, seeks to exclude the owner-operators on the
basis that they are independent contractors or, alterna-
tively, supervisors within the meaning of Section 2(11)
of the Act. The Regional Director found that the owner-
operators are not independent contractors, but he de-
ferred ruling on the supervisory question.6 He, however,
excluded three owner-operators—doing business as Ish’s
Trucking, Singh’s Express, and TDJ Santiago—from the
unit on community-of-interest grounds.7
Having carefully considered the record, the parties’
briefs, the amici briefs, and the oral argument, the Board
has decided to reverse the Regional Director’s decision,
find that all Dial’s owner-operators are independent con-
tractors, and remand the case for further proceedings
consistent with its Decision on Review.
I. FACTS
A. Identity
Dial uses a telemarketing campaign aimed at selling its
products, via telephone sales, to customers in the New
York City metropolitan area. Prior to July 1993, Dial
employed drivers to make customer deliveries with
trucks owned by the drivers, Dial, or another individual
4 Several witnesses testified to events that occurred 2 years or more
prior to the hearing. This testimony has not been considered because
those events preceded Dial’s purported changeover to owner-operator
status for its drivers in July 1993.
5 Dial employs about 300 employees in its warehouse, sales, ac-
counting, advertising and marketing, telecommunications, computer,
and legal departments. In 1995, the Petitioner filed a petition, Case 29–
RC–8441, seeking to represent Dial’s warehouse employees in a sepa-
rate unit. In that case, a Board election was held, and a certification of
results issued on April 13, 1995.
6 The Regional Director also deferred ruling on whether the helpers
share a sufficient community of interest with the owner-operators, if the
latter are considered employees. He stated that if his determination on
the independent contractor issue were upheld by the Board, then he
would re-open the record on the additional matters on which he de-
ferred ruling. We note that neither party has objected to this approach.
7 The Regional Director found that the owner-operators of Ish’s,
Singh’s, and TDJ should be excluded because the Petitioner did not
seek to represent them and they had significantly larger sized opera-
tions. Further, the Regional Director found that Dial guaranteed only
those owner-operators and all their drivers a regularly scheduled route.
We disagree with the Regional Director to the extent that these three
owner-operators are treated as a separate grouping for determining the
independent contractor status of all of Dial’s owner-operators. The
record does not support the finding that these owner-operators have a
regularly scheduled route. Further, the fact that they may have larger
operations, with more trucks and employees, does not necessarily mean
that they have a different status from the other owner-operators.
Rather, any differences appear to reflect the fact that they have chosen
to avail themselves of the opportunities open to all owner-operators.
Therefore, we have considered the facts concerning the owner-
operators of Ish’s, Singh’s, and TDJ in determining the issues before
us.
326 NLRB No. 75
DIAL-A-MATTRESS OPERATING CORP. 885
working for Dial.8 At Dial’s behest, approximately 37 of
these drivers became owner-operators and hired drivers
and helpers to perform deliveries. These owner-
operators formed their own trucking companies, filed
applications with the New York state transportation de-
partment for authority to transport Dial’s products, and
were granted such authorization on July 20, 1993. Under
this system, the owner-operator (or his driver), with the
assistance of a helper, loads Dial’s products on the
owner-operator’s truck at the loading dock of Dial’s
warehouse. The owner-operator (or his driver) then
drives the loaded vehicle and makes the scheduled deliv-
eries for Dial.
There are about 65 trucks and 7 vans delivering Dial’s
products. One owner-operator, doing business as TDJ
Santiago, owns 10 trucks. Two owner-operators, doing
business as Singh’s Express and Ish’s Trucking, own six
trucks each. Six owner-operators, doing business as LB
Trucking, Fast Freight Trucking, War & Betty Trucking,
Garcia Trucking, Edward Trucking, and R & G Truck-
ing, own two trucks each and employ one driver and one
helper for each truck. Two owner-operators, doing busi-
ness as Rambo Trucking and JR Service, own three
trucks each. Three owner-operators, doing business as
LAO Lazo Service, JM Delivery Service, and TNA
Trucks, own one truck and one van each. While most
owner-operators drive their own vehicles, three owner-
operators do not drive at all, but rather employ a driver.
Many of Dial’s owner-operators have New York state
business certificates for their companies. Several of the
companies formed by owner-operators (e.g., Fertasa
Trucking, War & Betty, Sky Fox, Garcia, Edward, Ish’s,
TDJ, and Fast Freight) are organized as corporations.
The owner-operators list their home addresses as their
companies’ business addresses. They maintain business
checking accounts, have their own company work uni-
forms, and file corporate tax returns. They also maintain
workers’ compensation insurance and have business tax
identification numbers.
B. Contracts Between Owner-Operators and Dial
On various dates in late August or early September
1993, each owner-operator executed a contract entitled
“Agreement” with Dial.9 In exchange for compensation
based on rate schedules for geographical zones unilater-
ally devised by Dial, the owner-operator agreed to fur-
nish delivery services for Dial (secs. 1 & 10).10 Three of
8 The Regional Director incorrectly stated that 37 former employees
of Dial who later became Dial’s owner-operators had driven “Dial’s”
delivery trucks prior to July 1993. The record shows that most of the
owner-operators who testified at the hearing drove for Dial using their
own trucks before their alleged conversion to independent contractor
status in July 1993.
9 The owner-operator signed his own name. The contract terms do
not refer to the owner-operator by his company’s name.
10 Sections in this portion of our decision refer to provisions in the
standard Agreement between Dial and its owner-operators.
the owner-operators (the owner operators of Ish’s,
Singh’s, and TDJ) have negotiated reduced delivery rates
in exchange for routes in certain geographical zones of
delivery.11 There is no guaranteed minimum compensa-
tion for owner-operators. They may use their vehicles to
make deliveries for other companies (sec. 12), and two
owner-operators, doing business as Ish’s and Singh’s, do
so. When performing services for Dial, each owner-
operator must display his company’s ICC certification
number on his truck (sec. 7). The owner-operators may
not perform deliveries for any of Dial’s competitors in
the New York metropolitan area (sec. 18).
The contract, by its terms effective for a 1-year period,
reserves to Dial and the owner-operator the right to ter-
minate the agreement with a 24-hour notice (sec. 11).
The contract also provides for automatic renewal for suc-
cessive 1-year periods, unless Dial or the owner-operator
gives the other party written notice of its election not to
renew prior to the termination of the initial or renewal
agreement (sec. 2). In December 1994 or January 1995,
Dial and each owner-operator executed an Addendum
which automatically extended the 1993 contract from
year to year unless it was terminated by either party in
accordance with the stated contract terms.
The contract also provides that the owner-operator
shall hire his own employees, have sole control over and
complete responsibility for them, set all terms and condi-
tions of employment for them, and pay workers’ com-
pensation insurance on his helpers or drivers (sec. 3).12 In
this connection, the contract provides that the owner-
operator shall direct the operation of his equipment and
staff in all respects and shall determine, without instruc-
tion from Dial, the method, means, and manner of per-
formance, including the choice of routes, points of ser-
vice of the equipment, and rest stops (sec. 12). The con-
tract gives the owner-operator the right to decline jobs
assigned to him by Dial’s dispatch office (sec. 9). Under
the contract, Dial provides no job training for the owner-
operator or his employees (sec. 15). The owner-
operators also agree to indemnify Dial for various losses,
injuries, or damages that may arise in connection with
their performance of Dial deliveries (sec. 10).
According to the contract, the owner-operator is exclu-
sively responsible for fueling, inspecting, and maintain-
ing his equipment used to deliver Dial’s products (sec.
4). He is also required to pay for all fees, maintenance,
and taxes related to the operation of his equipment (sec.
11 Other owner-operators have submitted similar proposals or have
tried to negotiate special deals for their companies. Dial has rejected
these proposals or separate deals.
12 Mario Zuluaga, the owner-operator of Zutra Trucking, testified
that about 3 to 6 months prior to the hearing he was suspended by Luis
Barragan, Dial’s chief operating officer, for failure to have enough
money to pay for workers’ compensation insurance. According to
Zuluaga, Barragan loaned him $800 to pay for the workers’ compensa-
tion insurance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
4). He must also have liability insurance, which names
Dial as additionally insured (secs. 5 & 8).
The contract indicates that the owner-operator and his
employees are not subject to the work rules that apply to
Dial’s employees (sec. 15). Likewise, the owner-
operator and his employees do not have access to the
grievance procedure established for Dial’s employees
(sec. 15). Disputes involving the owner-operator and
Dial are to be submitted to third-party arbitration (sec.
14). Finally, the contract expressly states that the parties
intend to create an independent contractor relationship
and that neither the owner-operator nor his employees
are to be considered employees of Dial in performing
delivery services for Dial (sec. 12).
C. Duties
The owner-operators service Dial’s delivery zones in
the New York metropolitan area. However, Dial does
not prevent the owner-operators from working else-
where.13 As part of their duties for Dial, the owner-
operators are not expected to cultivate either business or
customers for Dial. They also have no input into Dial’s
pricing for merchandise.
If a customer purchases Dial’s merchandise, an invoice
is generated with the customer’s name, address, item
ordered, method of payment, approval of payment
method, and date and time range of delivery. The in-
voices are forwarded to Dial’s dispatch department.
Dispatch employees batch invoices into a route, known
as the “daily driver log,” which is arranged based on the
customers’ requested delivery times. The log, listing
seven possible designated stops in numerical order, is
then assigned to an owner-operator.
Meanwhile, Dial’s warehouse personnel select the pur-
chased merchandise from the warehouse and bring it to
the loading dock. There, the owner-operator (or his
driver) inspects the merchandise for damage before he
(or his driver) and his helper load the merchandise onto
the truck. Dial’s warehouse employees do not assist in
the loading function. The owner-operator never has legal
title to Dial’s products. Title stays with Dial until the
customer accepts the goods.
The owner-operators are responsible for the delivery
and set up of the bed frame and the bed, as well as the
removal of old bedding and all packing materials from
the new purchase. The owner-operator and his employ-
ees are permitted to perform additional work, beyond the
above-described regular services, for the customer for
separate payment to the owner-operator. Any customer
who wants additional work performed is required to fill
out a “Delivery Service Work Request” form supplied to
the owner-operator by Dial. This form refers to the
owner-operator as an “independently owned and oper-

13 Barragan testified that Raymond Rahmakhan, the owner-operator
of Rahmakhan Trucking, works for a computer company when he is not
making Dial deliveries.
ated trucking delivery service.” The customer, and not
Dial, assumes any loss or damage that may result from
the performance of any additional work. After comple-
tion of all scheduled deliveries, the owner-operator (or
his driver) is not required to return to Dial’s warehouse,
but he may go directly home.
The owner-operator (or his driver) is expected to con-
tact the Dial warehouse to notify one of Dial’s dispatch-
ers which deliveries have been made or were attempted.
Barragan testified that the call-in rule is for the benefit of
the customers to estimate approximate arrival times for
their deliveries.
The record contains conflicting testimony as to
whether Dial has ever disciplined any owner-operator for
not calling in after delivery stops. Owner-operator Zu-
luaga testified that, on two or three occasions, he was
suspended for 1 day by Barragan when he had failed to
call Dial from each delivery stop. Zuluaga never speci-
fied whether these incidents occurred before or after his
alleged conversion to independent contractor status on
July 20, 1993. In addition, no written documentation of
such suspensions was submitted into evidence. Barragan
denied that he ever suspended Zuluaga for not calling in
after stops. According to Barragan, Zuluaga never re-
ceived any suspensions from Dial.
For the scheduled customer deliveries, Dial preauthor-
izes check or credit card payment from the customer.
When a customer payment problem arises, the owner-
operator is still paid for the delivery if he has accepted
the preapproved payment method from the customer.
However, if he has accepted a payment method without
Dial’s approval, the owner-operator bears the loss. The
owner-operator is responsible on a daily basis for depos-
iting in Dial’s bank account any cash received from the
customers. The owner-operator is also required to sub-
mit checks, credit card slips, and bank deposit slips to
Dial on the following day.14 The owner-operator is liable
for all receivables. If an owner-operator does not return
with the full amount of money as listed on the daily
driver log, he is not permitted to load his truck that day.15
D. Equipment
Dial has no requirement as to the type, model, make,
color, size, or condition of the trucks used by the owner-
operators. The owner-operators select their own vehi-
cles, and those trucks currently in use represent a variety
of models, colors, makes, and sizes.16 Dial does not have
title or any ownership interest in the trucks and vans used
14 Each owner operator is issued a plastic bank card and deposit slips
to deposit cash received from the customers directly into Dial’s bank
account.
15 Julio Carabello, the owner-operator of Delivery Express, testified
that he was suspended twice by Tony Santano, Dial’s finance depart-
ment manager, for failure to deliver the COD money properly or on
time in November and December 1994.
16 There is no evidence that Dial has ever rejected a truck used by an
owner-operator.
DIAL-A-MATTRESS OPERATING CORP. 887
by the owner-operators. The owner-operator has exclu-
sive ownership rights and must obtain his own independ-
ent financing, if necessary. The owner-operator displays
his company’s name, address, and Department of Trans-
portation number on his truck. In addition, each truck
displays a “recognition code” number provided by Dial
for its identification purposes.
Dial does not pay for any of the expenses related to the
operation of the owner-operators’ trucks, including gaso-
line, repairs, inspection, permit, license, or registration.
Dial does not inspect the owner-operators’ vehicles. Dial
supplies all owner-operators with plastic credit card
charge machines to generate credit card slips if the cus-
tomers pay by credit cards. Dial also supplies spare bed
frames, plastic bags, and two-way radios to the owner-
operators.
Pursuant to the terms of a separate advertising agree-
ment with Dial, the owner-operator is compensated $500
per year for each truck displaying Dial’s advertising, and
most owner-operators display Dial’s advertising on their
vehicles.
E. Compensation
Dial employees and the owner operators are paid sepa-
rately, on alternating Fridays, by Dial. The check is
made payable to the owner-operator’s company and not
the owner-operator himself.
There is a wide range in the owner-operators’ annual
compensation. The owner-operator is not guaranteed a
minimum amount, but he is paid for each delivery—
provided it is timely—in accordance with the rates
schedule attached to his contract. Sometimes, an owner-
operator is not paid for a late delivery if it is his fault.
However, if the customer is not home upon the arrival of
a timely delivery, the owner-operator is paid for that de-
livery.
Dial does not provide its owner-operators or their driv-
ers and helpers with any fringe benefits. Dial also does
not withhold any Federal, state, or local taxes from the
owner-operators’ checks. However, Dial deducts $4 per
pay period for use of restroom and lounge facilities at the
Dial warehouse reserved for the owner-operators. Dial
issues IRS 1099 forms to the owner-operators and main-
tains a list of the owner-operators’ tax identification
numbers.
F. Work Schedules
Dial maintains a schedule of starting times ranging
from 5 a.m. to 8 p.m. for the owner-operators’ trucks.
The work schedule identifies each owner-operator’s
truck recognition number for loading because it is the
truck, not the owner-operator, driver, or the helper, that
is scheduled. The trucks are generally scheduled for 6
days a week. The drivers’ hours range, on an average,
between 10 to 14 hours per day. The owner-operators,
their drivers, and their helpers are not required by Dial to
punch a timeclock or otherwise record their hours of
work. Dial does not schedule lunch and break times or
monitor the hours worked by the owner-operators or their
drivers and helpers.
An owner-operator whose truck has been scheduled for
work on a particular day is not required to make his truck
available on that day. If a particular truck is not there at
its assigned starting time, the Dial dispatcher assigns the
deliveries to the next truck listed on the schedule. Ac-
cording to Barragan, the owner-operator is not sus-
pended, terminated, or penalized in any way for not pre-
senting a truck for deliveries on a given scheduled work-
day.
Generally, Barragan testified that the same is true for
the owner-operator whose truck arrives late or leaves
before all the load assignments for the day have been
made. However, Hector Mendez, an owner-operator of
H & M Express, testified that he was suspended for 1 day
in late 1994 by Tony Santano, Dial’s finance department
manager, because he had refused to stay at the warehouse
for a route, as instructed by Santano that day.
The owner-operator arranges for another driver to sub-
stitute for him or his driver when he or his driver needs
to take a personal day off and during periods of sickness
and vacations. Some owner-operators notify Dial that
they are going on vacation or will be out sick and there
will be a substitute driver. However, the record does not
show that such notification is required by Dial. Dial has
no policy of refusing to load a truck to be driven by a
substitute driver and/or substitute helper even if the
owner-operator gave no advance notice of the substitu-
tion.
The owner-operators may inspect the Dial merchan-
dise prior to loading it onto their trucks, and they may
refuse to load any damaged items. Barragan also testi-
fied that an owner-operator may refuse, for any reason
and without any penalty imposed, a load assigned to his
vehicle. In support of Barragan’s testimony, Hernando
Ramirez, an owner-operator of Fast Freight Trucking,
testified that he has, on a few occasions, told a Dial dis-
patcher, that he was not going to make one of the stops
on the route sheet; and that the dispatcher simply di-
rected that he remove the merchandise from the truck.
Ramirez stated that he was not disciplined. However,
John Beltran, the owner-operator of JB Services, testified
that on one occasion when he refused a route he was told
by Scott Lanceford, who heads the dispatching depart-
ment, to unload his truck, go home, and return the next
day. Beltran’s testimony does not reflect if this incident
occurred before or after his alleged conversion to inde-
pendent contractor status on July 20, 1993. Bennett
Straker, the owner-operator of BS Trucking, testified that
he was suspended by Barragan because he had refused to
make a delivery about 1–1/2 years prior to the hearing.
According to Straker, he refused to deliver a mattress for
a customer up eight flights of stairs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 888
Complaints by owner-operators concerning the loading
schedule are directed to Dial’s dispatch department,
where a log of these grievances are kept. The record
does not give any further detail about how these com-
plaints are handled. There is no suggestion from the re-
cord that any established grievance procedure between
Dial and the owner-operators exists for resolving such
complaints.
Dial does not tell an owner-operator (or his driver)
which traffic pattern or route to take to make the as-
signed deliveries. The owner-operators receive different
routes every day and usually deliver to different geo-
graphical areas. In exchange for a reduced delivery fee,
Dial accepted proposals from the owner operators of
Ish’s, Singh’s, and TDJ for “guaranteed routes.” For
example, Ish’s trucks deliver in the Long Island zone and
TDJ’s trucks make Philadelphia deliveries, while West-
chester County and Connecticut zone deliveries go to
Singh’s trucks. This does not mean that the owner-
operators of Ish’s, Singh’s, and TDJ, as opposed to the
other owner-operators, have a regularly scheduled route
each day. Rather, the record shows that they have nego-
tiated a minimum number of stops when making deliver-
ies to these more distant locations. The trucks owned
and operated by Ish’s, Singh’s, and TDJ can still be as-
signed to deliver in any zone.
The record contains conflicting testimony on whether
an owner operator (or his driver) may deviate from the
route schedules. Barragan testified that the order of de-
liveries on the driver log given to the owner-operator (or
his driver) represents a “suggested efficient sequence”
based on the time requirements dictated by the cus-
tomer’s wishes. Barragan testified that the owner-
operators (or their drivers) may deviate from the driver
log order, without Dial’s permission, as long as each
delivery is made on time. Dial advertises guaranteed
delivery within a time frame designated by the customer.
Owner-operator Ramirez testified that he and his driver
do not always follow the sequence set forth in the driver
daily log and that they do not notify Dial in advance or
seek Dial’s permission to deviate. He further testified
that neither he nor his employees have been warned, sus-
pended, or disciplined by Dial. Owner-operator Mendez
testified that Finance Department Manager Santano sus-
pended him for 1 day in late 1994 because he failed to
follow the delivery order on the daily driver log. How-
ever, Mendez’ change in the order of deliveries on that
occasion had resulted in his being late for a New Jersey
delivery which was subsequently canceled by the cus-
tomer. Owner-operator Straker testified that Santano
threatened to suspend him for failure to follow the route
sheet.17

17 Whether the threat of suspension attributed to Santano was in re-
sponse to late deliveries is not indicated by the record.
G. Drivers/Helpers
The owner-operators interview, select, hire, retain, and
compensate their own drivers and helpers and solve all
problems relating to them. There is no uniform pay rate
and fringe benefit program for the drivers and helpers.
Dial does not maintain a list of the drivers and helpers
used by the owner-operators. Dial has requested, but not
required, the owner-operators to furnish certain employ-
ment information about the drivers and helpers. Many
owner-operators who have not submitted such informa-
tion to Dial continue to receive delivery orders for their
trucks from Dial.
In several ways, the drivers and helpers of the owner-
operators are treated differently from Dial’s employees.
The owner-operators and their drivers and helpers are not
directly paid by Dial. They do not receive Dial em-
ployee fringe benefits. They do not punch Dial’s time-
clock. They do not use the bathrooms and locker rooms
that Dial makes available to its employees. The owner-
operators instead are charged a $4 fee for the use of sepa-
rate restroom and lounge facilities at Dial. The drivers
and the helpers report to the owner-operators and often
wear uniforms bearing the owner-operators’ company
names. Like the owner-operators, the drivers and helpers
do not have access to any grievance procedure available
to Dial employees.
H. Rules/Personnel Policies
Dial’s human resource department has no responsibil-
ity with respect to the owner-operators or their drivers
and helpers. Dial does not maintain personnel files, im-
migration I-9 forms, or IRS W-4 forms for any of these
individuals. Dial also does not keep a record of the hours
worked by the owner-operators, drivers, or helpers. Dial
does not provide these individuals with job applications
or issue employee identification cards to them.
The owner-operators and their drivers and helpers are
not subject to the work rules established for Dial’s em-
ployees. However, they are expected to comply with
certain procedures contained in company memoranda
which have been posted in the dispatch office or distrib-
uted to the owner-operators at periodic driver meetings
held by Dial. These memoranda list various procedures
pertaining to loading; call-in; dress code; drugs; alcohol
and gambling; and damage to merchandise or to a cus-
tomer’s home.
The memorandum pertaining to loading procedures
states that an owner-operator’s failure to provide his
schedule of availability to Dial at least 24 hours in ad-
vance will result in a 2-day suspension. The loading
procedures memorandum also indicates that late drivers
are to load after drivers who arrive as scheduled, and that
consistent or patterned lateness will result in a lost posi-
tion on the delivery schedule. However, the record con-
tains no evidence that this policy is actually followed by
the owner-operators or has been enforced by Dial. As
DIAL-A-MATTRESS OPERATING CORP. 889
noted above, according to Barragan, with or without ad-
vance notice, the owner-operator is not penalized in any
way for not presenting a truck for deliveries on a given
scheduled workday.
According to the memorandum on call-in procedures,
the owner-operator (or his driver) must call Dial’s dis-
patch department at every stop to report certain informa-
tion about the delivery. According to the memorandum,
failure to call in can result in Dial’s termination of the
owner-operator’s services. There is no evidence that this
has occurred.
Pursuant to its dress code procedures, Dial requires
that the owner-operators maintain a “clean attire” while
delivering its goods. Dial also specifies that the owner-
operators must refrain from wearing sleeveless tee-shirts
of a certain length. Many owner-operators have gone
beyond these minimal requirements and supply their own
company work uniforms to their drivers and helpers.
Dial has also distributed a memorandum regarding use
of drugs and alcohol and gambling on or near Dial prop-
erty. The memorandum states that because such activi-
ties expose Dial to certain liability, such conduct will not
be tolerated, and that Dial will take all “necessary steps
to terminate these activities and prevent future occur-
rences.” In a May 8, 1995 letter, Dial warned Arcadio
Bautista, an owner-operator of A. B. Services, about his
alleged drinking of alcohol near Dial’s facility. The let-
ter stated that Dial would consider termination of Bauti-
sta’s contract if further complaints involving Bautista or
his “employees” were received.
Finally, Dial has several policies concerning damage
to merchandise and/or customers’ homes during deliver-
ies by the owner-operator. If damage occurs, the owner-
operator gives the customer a form stating, inter alia, that
Dial uses “independently owned and operated” contrac-
tors to deliver Dial’s products. If the owner-operator is
the apparent cause of damage to Dial’s merchandise, he
assumes 100-percent liability for the merchandise, pays
for it, and receives the damaged merchandise. If the cus-
tomer’s home is damaged by the owner-operator during
delivery, Dial and the owner-operator split the repair
costs 50–50 percent. If there are more than three inci-
dents of customer’s home damage per year, Dial requires
that 75 percent of the repair costs shift to the owner-
operator and 25 percent remain with Dial.
I. Termination and Suspensions
There is no progressive disciplinary system applicable
to Dial’s owner-operators. Dial has terminated the con-
tract of one owner-operator, for violent behavior in April
1995, and has threatened termination of another owner-
operator’s contract for alcohol use near Dial’s facility on
May 8, 1995. The first incident involved Noe Garcia, an
owner-operator of Garcia Trucking, who allegedly threw
a cup of coffee in the face of another driver at a diner
near Dial’s facility. The other incident pertained to the
warning that Dial gave owner-operator Bautista that it
would consider termination of his contract if further
complaints about his drinking were received.
As described above, owner-operators Beltran, Cara-
bello, Mendez, Straker, and Zuluaga testified that Dial
gave each 1-day suspensions for one of the following
infractions: refusing to stay at the warehouse after his
scheduled loading time; failing to call Dial from each
delivery stop; failing to follow the assigned route sched-
ule; refusing a route assignment; refusing to deliver a
mattress up eight flights of stairs; and failing to properly
and timely deposit money. None of these suspensions
has resulted in more serious penalties from Dial. Dial
has not terminated the services of these owner-operators,
but has renewed their contracts.
J. Entrepreneurial Activities
The owner-operators do not cultivate business or cus-
tomers for Dial, and they have no input into pricing of
Dial’s merchandise. They do not and cannot service
Dial’s competitors. The owner-operators have no pro-
prietary interest in their routes, which may change from
day to day. The owner-operators are required to receive
Dial’s authorization for all methods of customer pay-
ment, unless they want to assume the potential risk of
nonpayment.
As previously indicated, the owner-operators of Ish’s,
Singh’s, and TDJ have negotiated reduced delivery rates
in exchange for routes in certain geographical zones of
delivery. Although other owner-operators have submit-
ted similar proposals or have tried to negotiate other spe-
cial deals for their companies, Dial has rejected these
arrangements.
The owner-operators are permitted to perform addi-
tional work, beyond their regular services for Dial, for
the customer for separate payment to the owner-operator.
They may also use their trucks to cultivate business sepa-
rate and apart from Dial’s operations.18 However, sev-
eral owner-operators testified that their time commitment
to Dial prevents them from servicing other customers or
cultivating other business interests with their trucks.
II. REGIONAL DIRECTOR’S DECISION
Citing NLRB v. United Insurance Co.19 and Roadway
Package System,20 the Regional Director applied the
common law “right of control” test to determine whether
Dial’s owner-operators are employees or independent
contractors. In applying this test, the Regional Director
relied on the Board’s decision in C.C. Eastern, Inc.,21

18 The owner-operators of Singh’s and Easy Save testified that while
they use their trucks 90–95 percent of the time to service Dial’s cus-
tomers, the remaining percentage of time is spent on other business
projects or jobs.
19 390 U.S. 254, 256 (1968).
20 288 NLRB 196 (1988).
21 309 NLRB 1070 (1992). This decision was vacated by the United
States Court of Appeals for the District of Columbia in C.C. Eastern v.
NLRB, 60 F.3d 855 on August 1, 1995, 3 days after the Regional Direc-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 890
and focused primarily on (1) Dial’s control of the manner
and means of deliveries by the owner-operators and (2)
the owner-operators’ level of entrepreneurial activity.
As to the first item, critical in the Regional Director’s
view was evidence showing that Dial has devised the
loading schedules for the owner-operators and arranged
deliveries by geographical areas; any complaint about the
loading schedule was directed to Dial’s dispatch depart-
ment; Dial had issued company policies for its owner-
operators pertaining to loading, call-in, dress code, drugs,
alcohol, gambling, and damage to merchandise or cus-
tomers’ homes; and Dial had disciplined owner-operators
for various infractions. Regarding the second part of his
inquiry, the Regional Director found insignificant entre-
preneurial activity because the owner-operators do not
cultivate business or customers for Dial; they have no
input into Dial’s pricing for the merchandise; they must
receive Dial’s authorization for all methods of payment;
they do not service Dial’s competitors; most owner-
operators only service Dial’s delivery areas; they have no
proprietary interest in their routes; and they work solely
for Dial. In these circumstances, the Regional Director
concluded that Dial’s owner-operators are not independ-
ent contractors and found factually distinguishable those
cases cited by Dial in support of the contrary result.22
III. POSITIONS OF THE PARTIES
The parties and the amici agree that the Board should
not, and has no authority to, change the legal standard,
based on common-law agency principles, for determin-
ing whether the owner-operators are employees or inde-
pendent contractors. As more fully set forth in our
Roadway decision issued today, however, they differ as
to the proper interpretation and application of these prin-
ciples. The Petitioner and amicus AFL–CIO contend
that the common law test should be broadly applied and
that “no single factor may be given primacy,” while Dial
and the other amici assert that the right to control the
manner and means to accomplish the end result is the
“most important” factor in determining the individual’s
status.
Dial contends that it exercises only minimal control
over the owner-operators, who have significant entrepre-
neurial opportunities and risks. Dial emphasizes that (1)
several owner-operators use more than one delivery ve-
hicle and employ at least one driver or helper; (2) all
owner-operators are paid a flat fee for each completed
delivery; (3) they have significant freedom with respect
to the hiring, firing, supervision, and payment of their
drivers and helpers; and (4) they are free to work for
tor issued his decision in the instant case. The court disagreed with the
Board’s determination that the Eastern drivers were employees.
22 Central Transport, Inc., 299 NLRB 5 (1990); North American Van
Lines, 869 F.2d 596 (D.C. Cir. 1989); and Associated General Contrac-
tors, 290 NLRB 552 (1988).
other companies and use their trucks for personal busi-
ness.
Dial further asserts that the owner-operators perform
their delivery services virtually free of supervision,
monitoring, evaluation, or discipline by Dial. Regarding
its “disciplinary” authority, Dial asserts that any suspen-
sion it has imposed on owner-operators are not true ex-
amples of discipline. Dial notes, inter alia, that none of
these suspensions led to a termination or further disci-
pline of the owner-operator involved and that the termi-
nation of owner-operator Garcia cited by the Regional
Director was based on an unusual set of circumstances.
Dial also argues that its dealings with the excluded
owner-operators of Ish’s, Singh’s, and TDJ are not
anomalous but rather that these relationships illustrate
what the other Dial owner-operators potentially could
become, given sufficient entrepreneurial efforts and ne-
gotiating skill on their part. Thus, Dial maintains that the
evidence concerning the owner-operators of Ish’s,
Singh’s, and TDJ provides compelling support for find-
ing that all its owner-operators are independent contrac-
tors.
The Petitioner asserts that the Regional Director prop-
erly found that the Dial owner-operators, except the
owner-operators of Ish’s, Singh’s, and TDJ, are not inde-
pendent contractors under the common-law agency test.
The Petitioner agrees that the owner-operators of Ish’s,
Singh’s, and TDJ are independent contractors because
they have more vehicles and employees performing Dial
deliveries; they have different work schedules and deliv-
ery rates; and they are guaranteed daily loading to certain
geographical areas.23
The Petitioner cites, inter alia, the following facts to
support a finding of employee status here: (1) the owner-
operators do not set prices for Dial’s merchandise, culti-
vate business for Dial, work for Dial competitors, or
have any proprietary interest in the delivery routes which
are devised by Dial; (2) they have no time to drive for
other business concerns and have no opportunity to de-
velop their own customers because they are committed to
having their trucks available to Dial 10–15 hours per day,
6 days a week, 52 weeks a year; (3) Dial, the sole source
of the owner-operators’ income, unilaterally determines
their income level; (4) Dial imposes uniform costs on all
of its owner-operators (e.g., costs involving truck main-
tenance, business expenses, insurance, uniforms, and the
retention of a helper); (5) Dial controls the deliveries
made by the owner-operators by setting their workweek
schedules, daily routes, and delivery sequences; (6) Dial
supervises the owner-operators by having them follow
23 The Petitioner and the AFL–CIO further seek the determination of
employee vs. independent contractor status in light of the employer
controls imposed by certain Department of Transportation (DOT) regu-
lations. The record reveals that Dial, as a mattress retailer, and its
owner-operators are not subject to such regulations. Therefore, we find
it unnecessary to pass on this issue at this time.
DIAL-A-MATTRESS OPERATING CORP. 891
certain work rules or policies, including Dial’s “call-in”
requirement and customer payment approval system; (7)
Dial imposes discipline on owner-operators for noncom-
pliance with such work rules or policies; (8) Dial fur-
nishes all tools and supplies for the owner-operators; (9)
Dial treats the owner-operators as employees in their
dealings with the general public; and (10) the owner-
operators have no opportunity for economic profit be-
cause they have no control over their revenues and costs
and no ability to increase profits through productivity
improvements.
IV. DISCUSSION
A. Analysis of Factors
Section 2(3) of the Act excludes “any individual hav-
ing the status of an independent contractor” from the
definition of “employee.” The Board’s analysis of the
common-law agency test used in determining whether an
individual is an employee or an independent contractor is
set forth in detail in today’s Roadway decision. See 326
NLRB No. 72, slip op. at 7–9. As we discuss in Road-
way, the list of factors differentiating “employee” from
“independent contractor” status under the common-law
agency test is nonexhaustive, with no one factor being
decisive.
Applying the common-law agency test to the facts of
this case, we find that the factors weigh more strongly in
favor of independent contractor status for Dial’s owner-
operators. In the process of outsourcing its delivery
functions, Dial has structured its relationship with the
owner-operators to allow them (with very little external
controls) to make an entrepreneurial profit beyond a re-
turn on their labor and their capital investment. The
owner-operators arrange their own training, hire their
own employees, and have sole control over and com-
plete responsibility for their employees, including setting
their terms and conditions of employment. Dial also
plays no part in the selection, acquisition, ownership,
financing, inspection, or maintenance of the vehicles
used by the owner-operators. There is no minimum
compensation guaranteed the owner-operators to mini-
mize their risk of performing deliveries for Dial, and they
can decline orders without penalty. The owner-operators
are not required to provide delivery services each sched-
uled workday. In short, their separateness from Dial is
manifested in many ways, including significant entrepre-
neurial opportunity for gain or loss.
The owner-operators have a separate identity from
Dial that suggests independent contractor status. They
have formed their own trucking companies and have
filed applications with the state to transport Dial’s prod-
ucts. Many have state business certificates for their
companies, while several of them function in the corpo-
rate form. The owner-operators maintain business
checking accounts, often have their own company work
uniforms, and file corporate tax returns. They also main-
tain workers’ compensation insurance and have business
tax identification numbers. Contrary to the Petitioner’s
contention, Dial treats its owner-operators as independ-
ent contractors in its dealings with the public. For exam-
ple, Dial refers to its owner-operators as “independently
owned and operated” or as an “independently owned and
operated trucking delivery service” in forms supplied to
its customers.
The contracts executed by the owner-operators contain
several provisions that reflect the owner-operators’ inde-
pendence from Dial. The contracts provide that the
owner-operators shall hire their own employees, have
sole control over and complete responsibility for them,
set all terms and conditions of employment for them, and
pay workers’ compensation for them. Under the con-
tracts, neither the owner-operators nor their employees
are subject to the work rules applicable to Dial’s em-
ployees. The contracts further obligate the owner-
operators to pay for all fees, maintenance, and taxes re-
lated to the operation of their vehicles. They are directed
by the contracts to have liability insurance naming Dial
as additionally insured, and they must also indemnify
Dial for various losses, injuries, or damages that may
arise in connection with their performance of Dial deliv-
eries. In contrast, in employer-employee relationships,
employers generally assume the risk of these third-party
damages, and do not require indemnification from their
employees. Finally, the contracts express an intention on
the part of the contracting parties to create an independ-
ent contractor relationship. The contracts declare that the
owner-operators are not to be considered Dial’s employ-
ees.
Although Dial supplies its owner-operators with a few
items such as credit card charge machines, spare bed
frames, and two-way radios, the most costly piece of
equipment used in making deliveries for Dial—the truck
or van—is the owner-operators’ sole responsibility. Re-
garding their vehicles, the owner-operators have consid-
erable freedom and flexibility indicating independent
contractor status. Dial plays no role in the selection, ac-
quisition, ownership, financing, inspection, or mainte-
nance of the vehicles used by its owner-operators. Dial
has no requirement as to the type, model, color, size, or
condition of the owner-operators’ vehicles, and there is
no fuel subsidy or maintenance services support package
for the owner-operators. Each vehicle must display the
name, address, and Department of Transportation num-
ber of the owner-operator’s company, not Dial’s name.
In fact, the owner-operators are not required to display
any Dial advertising on their vehicles, but almost all do
so in exchange for an annual $500 fee. The owner-
operators may also use their vehicles for other purposes.
For instance, two owner-operators have used their vehi-
cles to make deliveries for other companies.
Several features of the owner-operators’ compensation
plan provide support for independent contractor status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 892
Contrary to the Petitioner’s contention, Dial does not
unilaterally determine the owner-operators’ income lev-
els. The owner-operators may and do have more than
one vehicle performing deliveries for Dial, and they may
submit contract proposals or try to negotiate special pay
deals for their individual companies. For example, three
owner-operators have successfully negotiated reduced
delivery rates in exchange for routes in certain geo-
graphical areas. Other potential indicators of independ-
ent contractor status are the fact that the owner-operators
are paid solely for deliveries made or attempted and not
by the hour or for reporting; they have no guaranteed
minimum compensation; and they may not be paid for
late deliveries, if the lateness is their fault. Dial also
does not provide its owner-operators with any fringe
benefits. It does not withhold any Federal, state, or local
taxes from the owner-operators’ checks, which are made
payable to their companies. Dial issues IRS 1099 forms
to the owner-operators, and it maintains a list of their tax
identification numbers. In addition, the owner-operators
are charged a fee, which is regularly deducted from their
checks, for their use of restroom and lounge facilities at
Dial’s warehouse. The cost of similar privileges is not
passed on to Dial’s warehouse employees.
Another indicator of independent contractor status is
the owner-operators’ extensive control over their drivers
and helpers. Every owner-operator has at least one em-
ployee, and without input from Dial, the owner-operators
interview, select, hire, retain, compensate, and supervise
their own drivers and helpers and solve all problems re-
lating to them. The owner-operators follow no uniform
pay rate and/or fringe benefit program for the drivers and
helpers. Dial does not necessarily know the identity of
these drivers and helpers because it does not maintain a
list of drivers and helpers who are working for the
owner-operators.
Several aspects of the owner-operators’ daily work
routine and schedule support an independent contractor
finding as well. The owner-operators primarily work
away from Dial’s warehouse, and they are not directly
supervised by Dial personnel. Indeed, the owner-
operators need not be present at the warehouse or in-
volved at all in the actual performance of services for
Dial because Dial schedules the trucks, not the owner-
operators, for work, and the owner-operators are free to
hire others to actually load and drive their trucks if they
so choose. Dial does not instruct them on which traffic
pattern or route to take to make their assigned deliveries.
After completion of all their scheduled deliveries, the
owner-operators (or their drivers) are not required to re-
turn to Dial’s warehouse.
The Petitioner, in arguing that other features of the
owner-operators’ working relationship more strongly
weigh in favor of employee status, claims that the owner-
operators may not refuse load assignments and may not
deviate from preassigned route schedules. We find that
the record, as a whole, does not support either point.
Regarding the Petitioner’s first point, the testimony by
owner-operators Straker and Beltran, relied on by the
Petitioner, does not establish that owner-operators may
not refuse loads. Straker refused to deliver a mattress at
the customer’s home because the delivery involved
climbing eight flights of stairs. His refusal came well
after he had already accepted the load assignment back at
Dial’s warehouse. Beltran testified that he was sent
home one time by Dial when he refused a load assign-
ment, but because Beltran never identified the period
when this incident occurred, the Petitioner did not estab-
lish that this occurred after July 20, 1993, when it is al-
leged that the owner-operators became independent con-
tractors.
With respect to the Petitioner’s second point, the re-
cord shows that Dial allows the owner-operators to
change the order of their deliveries, although the incen-
tive to do so is small. Dial’s dispatchers provide the
owner-operators with a “suggested efficient sequence” of
delivery assignments. These sequences order deliveries
taking into account the customer’s location and the cus-
tomer’s requested delivery time. If the owner-operators
handle the orders according to Dial’s schedule, they are
less at risk of making late deliveries and Dial will not
penalize them if they are late with some deliveries. If an
owner-operator deviates from the “suggested efficient
sequence,” on the other hand, he may be penalized by
Dial for late deliveries. Of critical importance to Dial is
delivery at the time scheduled with the customers, a con-
cern that supports its customer service strategy. Beyond
that, Dial does not care if the owner-operator changes the
delivery order, as evidenced by testimony by Barragan
and Ramirez.
The Petitioner argues that Dial requires its owner-
operators to comply with various policies. We find,
however, that there is no evidence that the loading policy
cited by the Petitioner has been followed by the owner-
operators or enforced by Dial. We also find that the
other policies referred to by the Petitioner are not at odds
with an independent contractor relationship. Dial mini-
mally requires that its owner-operators maintain a “clean
attire” and avoid short sleeveless tee-shirts. This leaves
the owner-operators with wide discretion in what they
and their drivers and helpers wear. Many owner-
operators have decided to supply their own company
uniforms, while others dress more casually. Dial’s pol-
icy of no drugs, alcohol, and gambling represents an ef-
fort to reduce potential liability if such activity occurs on
or near its property. There is nothing in the record to
indicate that Dial is interested in regulating such conduct
if the activity occurs elsewhere or that it concerns itself
with any other aspect of driver performance.
The Petitioner further argues that Dial imposes “disci-
pline” on its owner-operators. Dial has imposed 1-day
suspensions on owner-operators for various infractions as
DIAL-A-MATTRESS OPERATING CORP. 893
described earlier in our decision, and we agree that this
discipline tends to weigh in favor of finding employee
status. However, the record shows that the owner-
operators enjoy certain freedoms and bear certain risks
that are more consistent with the operation of an inde-
pendent business. The owner-operators are paid a flat
fee for each completed delivery, and the record shows
that the amounts have been changed by negotiation. In
addition, they have no guaranteed minimum compensa-
tion. Dial has no mechanisms or programs that guarantee
a certain level of income for the owner-operators, that
provide maintenance of their vehicles, or that facilitate
the acquisition or transfer for their vehicles.
Significantly, several owner-operators use more than
one delivery vehicle and employ at least one driver as
well as helpers, and at least three owner-operators do not
even drive but operate solely as entrepreneurs. All
owner-operators have complete authority regarding the
hiring, firing, supervision, and payment of their drivers
and helpers. In addition, the owner-operators bear the
risk of loss when damage to Dial’s merchandise or the
customer’s home is attributed to them (or their drivers)
or their helpers. The owner-operators may perform addi-
tional work for customers for separate payment. They
are also free to work for other companies and use their
trucks for personal business. Some have taken on deliv-
ery work for other business concerns.
The Petitioner argues that the owner-operators cannot
be found to be independent contractors unless they set
prices for Dial’s merchandise, cultivate business for Dial,
work for Dial competitors, and have a proprietary inter-
est in their routes. Such factors, if present, might en-
hance the owner-operators’ opportunity and ability to
increase their profits and decrease their losses, but the
absence of these factors is not incompatible with a find-
ing of independent contractor status since Dial chose to
outsource only its delivery—and not its sales or market-
ing—functions. Had Dial contracted with a single na-
tional parcel delivery company to handle all its deliver-
ies, it could not be seriously argued that the company
performing the delivery service was not an independent
contractor because it did not sell or price Dial’s mer-
chandise. The issue is the owner-operators’ control over
the functions which it contracted to perform.
Dial’s owner-operators have the freedom to negotiate
special deals like those obtained by the owner-operators
of Ish’s, Singh’s, and TDJ. Contrary to our dissenting
colleague, this demonstrated freedom does not become
illusory simply because Dial rejected offers from other
owner-operators under different circumstances. There is
no indication from the record that Dial will not entertain
proposals from other owner-operators in the future which
Dial considers more favorable than its existing arrange-
ments for the territory in question. It is plain that all
owner-operators remain free to propose a better business
deal for them and Dial in the future, and the multiple
truck ownership of several owner-operators suggests that
the standard arrangement offered sufficient incentives for
them to want to expand their businesses.
B. Roadway Distinguishable
Contrary to our dissenting colleague, our finding of in-
dependent contractor status for the Dial owner-operators
is consistent with today’s decision in the companion
Roadway cases. In several significant respects, the Dial
owner-operators differ from the Roadway drivers.
Unlike here, Roadway provides its drivers with a vast
array of support plans to reduce risk in the performance
of their deliveries and pickups for Roadway. The
amount of income for the Roadway drivers is based, inter
alia, on a “guaranteed” van availability settlement and a
temporary core zone settlement determined by Road-
way’s estimate of what is a “normal” level of packages
and pickup and deliveries for the drivers. The Roadway
drivers’ pay is also curtailed by the operation of Road-
way’s “flex” program where overflow work in a driver’s
service area is transferred to other drivers. Thus, the
elements of Roadway’s compensation plan, in effect,
result in both minimum guarantees and effective ceilings
for its drivers.
In contrast to Dial’s indifference about the size, color,
or type of vehicles used by the owner-operators, Road-
way provides its drivers with assistance in acquiring new
or leased custom designed specialty vans through its ar-
rangement and promotion of the Navistar vans distrib-
uted by Bush Leasing. Roadway also eases its drivers’
burden of obtaining a used vehicle from former Roadway
drivers. To meet these initial vehicle costs, Roadway
offers a startup loan to its new drivers. The Roadway
drivers also have a “business support package” to help
ensure that their vehicles are properly maintained and
covered by specific warranties.
Roadway also exercises more control over its drivers’
manner and means of accomplishing their work than Dial
does here. The Roadway drivers are required to provide
delivery services each scheduled workday. They cannot
refuse to deliver or pick up packages in their primary
service area without being subject to possible termination
of their operating agreement with Roadway. Roadway
also controls the appearance of its drivers and their vehi-
cles. For instance, Roadway drivers are required to wear
a specified uniform of a certain type and color, display-
ing the Roadway logo. Furthermore, the Roadway driv-
ers do not have the attributes of entrepreneurship pos-
sessed by the Dial owner-operators. The Roadway driv-
ers do not use multiple trucks or hire helpers or drivers to
allow them to pursue other business ventures and oppor-
tunities. There is no evidence that the Roadway drivers
can negotiate the type of special deals acquired by the
three owner-operators of Ish’s, Singh’s, and TDJ here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
V. CONCLUSION
For the foregoing reasons, the Dial owner-operators
are independent contractors rather than employees within
the meaning of Section 2(3) of the Act. Accordingly, we
shall reverse the Regional Director’s Decision and re-
mand the case to him for further proceedings consistent
with our Decision on Review.
ORDER
The case is remanded to the Regional Director for fur-
ther proceedings consistent with our Decision on Re-
view.

CHAIRMAN GOULD, dissenting.
Dial-A-Mattress’ arrangement with its owner-
operators at issue here presents a stronger case against
finding independent contractor status than in the com-
panion Roadway1 cases, decided today, where my col-
leagues and I agree employee status has been established.
I am, therefore, baffled by their decision to reverse the
Regional Director’s determination in the instant case that
the owner-operators are not independent contractors. In
my view, they reach this decision only by overemphasiz-
ing certain factual differences between Dial’s owner-
operators and Roadway’s drivers and ignoring or unduly
limiting the significance of other important indicators of
employer control. And they fail to take into account the
“powerful incentives” that some employers have not to
characterize individuals as employees in order to evade
the strictures of employment laws like the National La-
bor Relations Act.2 We must be ever mindful to avoid
the exaltation of the form of what appears to be an inde-
pendent contractor relationship over the substance of
employer-employee reality.
Regarding the question whether individuals are inde-
pendent contractors or employees within the meaning of
Section 2(3) of the Act, the Supreme Court stated “there
is no shorthand formula or magic phrase that can be ap-
plied to find the answer, but all the incidents of the rela-
tionship must be assessed and weighed with no one fac-
tor being decisive.”3 After assessing all the factors in-
volved in a relationship according to the principles of the
common law of agency, the scales will weigh toward a

1 See my separate concurrence in Roadway Package System, 326
NLRB No. 72, slip op. at 14.
2 Cf. Peter J. Keith, Contracts—Independent Contractor Agree-
ments—Ninth Circuit Finds That Misclassified Employees Are Eligible
For Federally Regulated Employee Benefits—Vizcaino v. Microsoft
Corp., 120 F.3d 1006 (9th Cir. 1997) (en banc), 111 Harvard L. Rev.
609 (1997):
Federal employment law protects employees. Corporations rec-
ognize this fact as more than just a truism: employers have power-
ful incentives to call workers anything but “employees” in order to
avoid the panoply of federal laws regulating the employment rela-
tionship.The independent contractor agreement is a popular, if not
always successful, way to avoid the “employee” label. [Footnotes
omitted.]
3 NLRB v. United Insurance Co. of America, 390 U.S. 254, 260
(1968).
relationship between two businesses or one between em-
ployer and employee. Here, I find, in agreement with the
Regional Director, that the scales conclusively weigh
toward a finding of employee status.4
There are a number of areas where Dial has exerted
significant control over the manner and means used by
the owner-operators in timely delivering mattresses.
Such control traditionally points toward an employer-
employee relationship.
Dial assigns geographic areas in which the owner-
operators make deliveries. These areas are completely
within Dial’s discretion and are subject to change on a
daily basis. Dial prepares a schedule for the owner-
operators’ arrival for loading. Those who arrive after
their scheduled loading time must wait until the end of
the day and risk receiving no work. In one case, Dial
suspended an owner-operator who failed to report for
loading at his scheduled time.
Dial also prepares a route sheet for each owner-
operator which lists the order in which deliveries are to
be made for the day. The record shows that Dial issued
verbal warnings to owner-operators concerning their
failure to follow the order of deliveries. Dial also re-
quires that the owner-operators call in to the dispatch
office after each delivery. It has suspended owner-
operators who failed to follow the call-in policy. Dial
has also suspended an owner-operator who refused to
make one scheduled delivery.
Dial has disciplined owner-operators in other ways. It
suspended owner-operators who failed to deposit COD
money in the bank and to return certain merchandise to
the Employer’s facility. In addition, it terminated the
contract of an owner-operator who had a physical con-
frontation with another owner-operator in a diner off
Dial’s premises.
It is, therefore, apparent that Dial makes considerable
demands concerning the manner in which the owner-
operators perform their work. Further, it assures these
demands are met by imposing suspensions for failure to
meet its demands. In my judgment, this interaction be-
tween Dial and the owner-operators weighs heavily to-
ward a finding of employee status.
The owner-operators are not only subject to the above-
described controls, they also have little opportunity to
engage in entrepreneurial activities which could increase
their opportunity for profit. They have no input into
Dial’s pricing for merchandise. They do not cultivate
customers for Dial. Indeed, they have no choice of cus-
tomers at all. Dial’s dispatch department exclusively
controls the number and location of customers assigned
to the owner-operators. Further, the owner-operators do
not have a particular route they service and cannot bid on
4 While I recognize that the supervisory status of Dial’s owner-
operators has not been determined, I will refer, for ease of discussion,
to the “employee status” of the owner-operators to reflect my view that
they are not independent contractors.
DIAL-A-MATTRESS OPERATING CORP. 895
any customer deliveries. Instead, they may be assigned
to any route within Dial’s entire New York metropolitan
territory and service a different route from day to day.5
Although the owner-operators own their trucks and do
not have to display Dial insignia, the record shows that
virtually all of them use their trucks solely to service the
Employer. The Regional Director found that the proba-
tive evidence shows that only Singh’s6 and Easy Save
service other employers. Even so, they service Dial 90–
95 percent of their time. There is, therefore, little or no
opportunity to increase profits by performing services for
Dial’s competitors or for other businesses. In my opin-
ion, this factor strongly favors a finding of employee
status.
Based on the above factors, I find a striking similarity
between Roadway and Dial. Both Roadway and Dial
have considerable control over their delivery personnel’s
work schedules, compensation, and customers. Both
have owner-operators who primarily work for them and
service customers and delivery areas that are assigned by
them.
While these features resulted in a finding of employee
status in Roadway, my colleagues appear to view the
same factors in a different light here. They cite other
factors which distinguish Dial from Roadway. For the
reasons stated below, I do not agree that Dial is distin-
guishable. Further, I find that many of the factors cited
by my colleagues actually favor a finding that the owner-
operators in the instant case are employees rather than
independent contractors.
My colleagues find that the owner-operators have a
separate identity from Dial that suggests independent
contractor status. They emphasize that owner-operators
have formed their own trucking companies and have
filed applications with the state to transport Dial’s prod-
ucts. The record shows, however, that Dial was involved
in each of these actions by the owner-operators.
In 1993, Dial used a telemarketing campaign requiring
a fleet of owner-operators to act as its authorized carriers.
At this time, drivers employed by Dial formed their own
companies and filed applications with the New York
State Department of Transportation for authority to
transport passengers or property. The Employer filed
public statements in support of each application. In a
decision issued by a New York State Department of
Transportation Administrative Law Judge, the 37 com-
panies formed by former drivers of Dial were authorized

5 See NLRB v. Amber Delivery Service, 651 F.2d 57, 62 (1st Cir.
1981), enfg. 250 NLRB 63 (1980) (The fact that distribution drivers
retain “no proprietary interest in their respective delivery routes” also
indicates an employer-employee relationship, as does the evidence that
the customers are Amber’s and that the drivers do not participate in the
negotiation of rates for new clients.)
6 As discussed more fully below, Singh’s is one of three companies
excluded from the unit by the Regional Director on community of
interests grounds and conceded by the Petitioner to be independent
contractors.
to transport commodities dealt in and used by Dial. The
judge’s decision states that prior to the 1993 telemarket-
ing campaign, authorized carriers were not necessary.
From these facts, it is clear that the decisions to form
companies and to file applications to transport Dial’s
products were prompted by Dial and its telemarketing
campaign. If the drivers wanted to continue to work for
Dial, they had to take these necessary steps. These ac-
tions by the owner-operators, therefore, show a connec-
tion to and dependence on Dial rather than an independ-
ent identity.
My colleagues also make much of the fact that the
owner-operators hire their own helpers for whom they
alone pay benefits, workers’ compensation insurance,
and the like. Yet once again, Dial is involved in a way
that suggests an employment relationship. First, Dial
imposed the requirement that owner-operators hire help-
ers. Second, there is evidence that in one case Dial did
not like the helper an owner-operator had hired as a sub-
stitute for his regular helper. Dial told the owner-
operator that he could not work if he failed to replace the
substitute. Finally, there is evidence that an owner-
operator was suspended for one day because he did not
have enough money to pay for workers’ compensation
insurance. Dial then loaned the owner-operator $800 to
pay for the insurance. Thus, it appears that Dial and the
owner-operators in truth do not have an arm’s-length
relationship with regard to the owner-operator’s helpers.
My colleagues point to aspects of the daily work rou-
tine which they find supportive of independent contractor
status. They assert that the record as a whole shows that
the owner-operators may refuse load assignments and
may deviate from the route schedules assigned by Dial.
While it is true that owner-operators have refused load
assignments and have deviated from the assigned route
schedules, it is also true that they have been penalized for
doing so by receiving suspensions. Suspension is a seri-
ous penalty; it entails loss of income. That the suspen-
sions are not part of a progressive discipline program and
do not affect the renewal of contracts with the owner-
operators does not mean that they show no control over
the manner in which the owner-operators deliver mat-
tresses. To the contrary, imposing a loss of income for 1
day or more is a powerful means of controlling the way
work gets done.
My colleagues note that the owner-operators primarily
work away from Dial’s warehouse and are not directly
supervised by Dial personnel. However, drivers always
primarily work away from warehouses regardless of their
status. While the owner-operators may not be supervised
directly by Dial, they must call in to Dial at each deliv-
ery. This frequent contact with Dial during the workday
is essentially required by Dial. The owner-operators face
suspension if they do not comply. Such frequent, re-
quired interaction with Dial clearly favors a finding of
employee status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
My colleagues also stress that the owner-operators are
not required to return to the warehouse at the end of the
day of deliveries. They find this to be a factor favoring
independent contractor status. I hold a different view.
The owner-operators do not have to return to the ware-
house because Dial issues them a bank card and deposit
slips bearing Dial’s name and bank account number so
that the owner-operators may deposit cash into Dial’s
account on a daily basis. They must submit the deposit
slips the following morning. Failure to return to Dial’s
facility the next day with the total amount listed on the
daily driver log results in withdrawal of permission to
load for the day. Consequently, the freedom not to return
to the warehouse at the end of the day does not constitute
freedom from end-of-the-day responsibilities toward
Dial.
Regarding the subject of vehicle ownership, my col-
leagues place great significance on the fact that Dial,
unlike Roadway, plays no role in the acquisition, selec-
tion, and financing of the owner-operators’ vehicles.
However, in the absence of other indicia of the operation
of an independent business, truck ownership alone does
not automatically turn the truckdriver into an entrepre-
neur.7 I find that Dial’s lack of a role in financing or
selecting the vehicles does not change the nature of the
truck ownership at issue here. I see no reason to distin-
guish this case from those, cited above, finding employee
status for drivers who owned their vehicles.
With respect to entrepreneurial activities, my col-
leagues assert that the Dial owner-operators have more
opportunities than the Roadway drivers. They argue that
the owner-operators have the potential to negotiate spe-
cial deals for their companies and to work for other com-
panies. This argument relies heavily on the actions of
Ish’s, Singh’s, and TDJ. However, these companies, in
contrast to others at issue here, involve significantly lar-
ger operations. Each owns 7 to 10 trucks and employs
some 12 employees. Each negotiated a guaranteed route8
with Dial in exchange for reduced delivery fees. Dial
posts a separate work schedule reserved only for these
three companies. Because of these differences between
Ish’s, Singh’s, and TDJ and the other owner-operators,
the Regional Director excluded the three companies from
the unit on community of interests grounds. I agree with
the Regional Director’s analysis and, therefore, find that
my colleagues err in considering facts concerning Ish’s,
Singh’s, and TDJ in determining the status of the owner-
operators.
Nor can I agree with my colleague’s finding that other
owner-operators have the freedom to negotiate the type

7 See, e.g., Adderley Industries, 322 NLRB 1016 (1997); R.W. Bozel
Transfer, 304 NLRB 200 (1991), and Exhibition Film Delivery & Film
Delivery, 247 NLRB 495 (1980) (cases where the Board found em-
ployee status for drivers who owned their own trucks).
8 For example, all Long Island deliveries go to Ish’s and all West-
chester County and Connecticut deliveries to Singh’s.
of special deals obtained by Ish’s, Singh’s, and TDJ.
This so-called freedom is more illusory than real. The
record shows that around November 1993 owner-
operators Hector Mendez, Herberto Melo, and Hernan
Moreno, each of whom had their own companies, formed
another company called Sky Fox, Inc. (Sky Fox) for the
purpose of attempting to secure a route agreement like
those obtained by Ish’s, Singh’s, and TDJ. Sky Fox was
not able to get a route agreement. Around the same time
period, Dial also rejected proposals for guaranteed routes
from AB Services, FE Services, LaMirage Trucking, and
Seven Wheels Express. Thus, when owner-operators
tried to increase their opportunities for profit by seeking
special arrangements with Dial, they were not successful.
In fact, other owner-operators do not have the same op-
portunities afforded Ish’s, Singh’s, and TDJ.
In terms of the ability to increase profits, this is a much
weaker case for finding independent contractor status
than Roadway. The Roadway drivers had some choice,
albeit marginal, in their customers because they were
assigned to a specific geographical service area and these
areas could, theoretically, be bought and sold by drivers.
In contrast, Dial owner-operators have no assigned routes
and no choice of customers. Their compensation is con-
trolled essentially by Dial which has total discretion over
which route they drive and how many customers they
service each day. To the extent that my colleagues assert
that the owner-operators have the opportunity to negoti-
ate separate deals, or the freedom to service other cus-
tomers because of the size of their operations, they prin-
cipally rely on the activities of Ish’s, Singh’s, and TDJ,
the three companies properly excluded from the unit by
the Regional Director.
Finally, the ability to hire helpers has no significant
impact on the owner-operators’ opportunity to increase
profits or reduce business expenses. The work per-
formed by the helpers is not complicated and the com-
pensation paid to them falls within a limited wage range
that is essentially dictated by Dial’s exclusive control
over the customer prices. The owner-operators are paid
a fee unilaterally determined by Dial. They are compen-
sated even if Dial loses money on the owner-operators’
routes for that day because, for example, none of the cus-
tomers are home to accept delivery. On the other hand,
the owner-operators have no way to increase their com-
pensation by charging the customers a higher delivery
rate or any additional fee for quicker service. Helper
assistance, therefore, does not significantly increase en-
trepreneurial opportunities.
Reviewing all the factors, I find that they decisively
favor a finding of employee status. Thus, Dial’s control
of the route schedules, call-in requirements, demand that
owner-operators be present when scheduled for loading
and not refuse to make any deliveries, discipline through
suspension of owner-operators who fail to meet its de-
mands or follow its policies, involvement with the selec-
DIAL-A-MATTRESS OPERATING CORP. 897
tion of helpers and payment of workers’ compensation
insurance, and the absence of genuine opportunities to
engage in entrepreneurial activities vastly outweigh any
factors which might suggest independent contractor
status. In my view, there is simply no meaningful differ-
ence between the owner-operators here and those in
Roadway. In neither case can it be said that the essential
nature of the relationship between the owner-operators
and the Employers is that of business to business rather
than employer to employee. I would not find independ-
ent contractor status in either case. In the instant case, I
would remand the proceeding to the Regional Director to
determine the supervisory status of the owner-operators
and the unit composition and scope among the peti-
tioned-for employees.
APPENDIX
REGIONAL DIRECTOR’S DECISION
. . . .
The Petitioner seeks to represent all owner drivers, drivers,
and drivers helpers’ employed by the Employer at its Long
Island City facility. The Employer contends that the petitioned-
for owner drivers, also known as owner-operators, are inde-
pendent contractors and not employees of the Employer. In its
brief, the Employer argues that the owner-operators purchase
and bear all costs incidental to their ownership of their trucks,
hire drivers and helpers to assist them, and are responsible for
their employees’ training, wages, benefits, and workers’ com-
pensation insurance. The Employer also asserts that even if the
owner-operators are employed by the Employer, they are su-
pervisors within the meaning of the Act inasmuch as they su-
pervise their drivers and helpers. The Employer asserts that it
does not employ either the owner-operators or their drivers and
helpers, thus, an election should not be directed in the peti-
tioned-for unit.
In its brief, the Petitioner argues that the Employer controls
the manner and means by which the owner-operators deliver
the Employer’s product. The Petitioner contends that the Em-
ployer sets the schedule of starting times, assigns the daily
routes, specifies the order of the routes, and resolves all prob-
lems arising from the owner-operators’ deliveries. The Peti-
tioner also contends that the owner-operators drive exclusively
for the Employer and remain in frequent contact with the Em-
ployer during the day. With respect to the Employer’s conten-
tion that the owner-operators may be supervisors, the Petitioner
argues that the independent contractor relationship “is a sham,
and . . . the owner-operator’s exercise of supervisory functions
is mandated by the Employer to maintain the charade that
owner-operators” are independent.3
Based on the record as a whole, I find, for the reasons set
forth below, that the owner-operators are not independent con-
tractors. I note, however, that the Employer, in its brief, argues,
in the alternative, that the owner-operators are supervisors
within the meaning of Section 2(11) and, therefore, an election
in a unit including such individuals is unwarranted.4 My review

3 See Petitioner’s brief.
4 The Employer’s Sec. 2(11) argument presumes that the owner-
operators are employed by the Employer as supervisors, and that the
owner-operators supervise the Employer’s employees, namely, the
of the record indicates that there is insufficient evidence to
resolve this issue and a related inquiry, that is, if the owner-
operators are employees and not supervisors, do their helpers
share the requisite community of interest with them to warrant
the inclusion of these employees in the unit sought? While the
continued pendency of such issues ordinarily mandates the
reopening of the record to adduce evidence with respect to
these matters, I have decided to defer that action at this time. If
any party to this proceeding seeks review of my determination
that the owner-operators are not independent contractors and
the Board were to disagree with that finding, then additional
record evidence regarding their 2(11) status would be unneces-
sary. Accordingly, before I order the re-opening of the record, I
will await either of two events: (1) no party files a request for
review, or (2) in the event review is sought, the Board affirms
my determination that the owner-operators are not independent
contractors. By proceeding in this fashion, the Board and the
parties will be spared the cost and inconvenience of reopening
the record if such action proves to be unnecessary.5
Notwithstanding their differences conceming the status of
the owner-operators, the parties agreed that there are about 103
individuals in the petitioned-for unit, and that the following
employees should be excluded from the unit: all warehouse
employees, warehouse clerical employees, customer sales con-
sultants, dispatchers, managers, confidential employees, guards
and supervisors as defined in the Act.6 There is no collective-
bargaining history in the petitioned-for unit.
The Employer has been in business since 1976 and currently
leases a two story building in Long Island City, New York. The
ground level is a 50,000 square foot warehouse and the second
floor consists of 12,000 square feet of office space. The Em-
ployer employs about 300 employees in its warehouse, sales,
accounting, advertising and marketing, telecommunications,
computer, and legal departments.
The Employer’s Chief Operating Officer Luis Barragan testi-
fied about the Employer’s operations. Barragan reports to Gen-
eral Manager Joe Vincens. The Operations Division, comprised
of seven departments, reports directly to Barragan. The seven
departments comprising the Operations Division are: inventory
control, merchandising, purchasing, driver operations, dispatch-
ing, distribution center management, and maintenance. Maricio
Farigua heads the driver operations department, Nelson Pagan
heads the distribution center management department, and
Scott Lanceford heads the dispatching department.
In addition to the Operations Division, there are 10 divisions
in the following areas: finance, marketing, advertising and pub-
lic relations, external markets, new business development, sales
and customer service, information services, information tech-

helpers. The corollary to that argument is that the owner-operators and
helpers are all employed by the Employer.
5 The President and Fellows of Harvard College, 229 NLRB 586
(1977).
6 The day that the instant petition was filed, the Petitioner also filed a
petition in Case 29–RC–8441, seeking to represent employees em-
ployed by the Employer in the warehouse. The parties entered into a
Stipulated Election Agreement and on April 7, 1995, an election was
held in the following unit: all full-time and regular part-time warehouse
employees, warehouse clerical employees and warehouse team leaders
employed by the Employer, excluding office clerical employees, cus-
tomer sales consultants, dispatchers, owner-operators, drivers, helpers,
managers, confidential employees, guards and supervisors as defined in
the Act. On April 13, 1995, in the absence of objections to the conduct
of the election, I issued a Certification of Results.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
nologies, human resources, and training and development.
Tony Santano heads the finance department and Zoraida Cook
heads the human resources department. It is undisputed that the
human resource department does not maintain personnel files
for the owner-operators or issue Immigration I-9 or IRS W-4
forms thereto, as it does with its undisputed employees.
The evidence showed that some time in 1993, the Employer
commenced a telemarketing campaign aimed at selling its
products, via telephone sales, to customers primarily in the
New York City metropolitan area. According to Barragan, the
advertising and public relations departments are responsible for
conveying information about the Employer’s product to the
public. The Employer’s bedding consultants answer telephone
calls from customers inquiring about certain product types,
sizes, availability, and price range. If the customer purchases
the Employer’s merchandise, the bedding consultant generates
an invoice through the Employer’s computer system. The in-
voice contains the customer’s name, address, home and busi-
ness phone, item ordered, method of payment, i.e., credit card,
cash or check, the name of the employee approving the method
of payment, and date and time of delivery.7 The Employer
guarantees delivery within a time frame designated by the cus-
tomer. The time of delivery is conveyed on the invoice by an
“alpha code” system: letter codes “M,” “A,” “E,” and “L” de-
note morning, afternoon, evening, and late evening, respec-
tively. The letter codes are followed by a time range, i.e., L10–
2, informing the driver that the customer requested a late eve-
ning delivery between 10 p.m. and 2 a.m.
Banragan testified that all invoices are forwarded to the dis-
patch department and the warehouse. The employees in the
dispatch department review the invoices and “batch” them into
a route known as a daily driver log.8 The daily driver log is
compiled from information on the invoices. According to Bar-
ragan, the daily driver log is arranged based on the customers’
requested delivery times. The daily driver log lists seven
“stops” which are the scheduled deliveries for that day. The
daily driver log contains seven customer names, their phone
numbers, addresses, item description and number, number of
pieces, payment type, and amount due. A “final total” is com-
puted by adding all of the amounts due for all the customers
listed on the daily driver log. The stops on the daily driver log
are listed in numerical order from one through seven; the first
customer on the daily log is stop number one, the second cus-
tomer is stop number two, and so on. Adjacent to the stop num-
ber is the time of delivery alpha code, which comes from the
invoice. When the daily driver log is complete, the invoices
related thereto are attached and the daily driver log is assigned
to an owner-operator.
While the dispatch department composes the daily driver log,
the Employer’s warehouse personnel select the purchased mer-
chandise from the warehouse and bring it to the loading dock.
At the loading dock, the owner-operator inspects the merchan-
dise for damage. The owner-operator’s helper9 assists in load-
ing the merchandise onto the truck. Each truck has a “recogni-
tion code,” a two or three digit number, on the back panel of the

7 See P. Exh. 22.
8 See P. Exh. 12.
9 The Employer’s warehouse employees do not assist in loading the
merchandise onto the owner-operator’s truck.
truck.10 When the merchandise is loaded onto a truck, the truck
number is written on the daily driver log so that an order may
be traced to the truck carrying the customer’s merchandise.
After the truck is loaded with the merchandise for all the deliv-
eries listed on the daily driver log, the owner-operator or his
driver commences the deliveries for the day.
Barragan also testified that sometime in 1993, around the
same time that the Employer’s telemarketing campaign began,
the drivers employed by the Employer formed their own com-
panies. Due to the commencement of its 1993 telemarketing
campaign, the Employer required a fleet of owner-operators to
act as its authorized carriers to meet its special delivery needs.11
In or about July 1993, about 37 former employees of the Em-
ployer who had driven its delivery trucks filed applications with
the New York State Department of Transportation for authority
to transport passengers or property. The Employer filed public
statements in support of each company’s application.12 On or
about July 20, 1993, the 37 companies were authorized by the
New York State Department of Transportation to transport
commodities dealt in and used by the Employer.
Currently, there are 39 owner-operator companies delivering
the Employer’s products to its customers. Each owner-operator
executed a contract with the Employer.13 Annexed to each con-
tract is a map of the Employer’s geographical zones and its rate
schedule. The Employer admits that the contracts, including the
geographical zones and rate schedules, are identical with the
exception of the rate schedules and zones for Ish’s Trucking,
Inc., Singh’s Express, Inc., and TDJ Santiago Corp. The con-
tracts among the owner-operators and the Employer were exe-
cuted on various dates in late August or early September 1993.
The contracts were effective for 1 year, although “[t]he Em-
ployer and the owner-operator each retain the right to terminate
the agreement on twenty-four hours notice.” The contract also
provides for automatic renewal for successive 1 year periods
“unless either the Employer or the owner-operator gives the
other written notice of its election not to renew prior to the
termination of the initial or any renewal agreement.” Although
each owner-operator signs his personal name on the signature
page of the contract, the owner-operator’s company name or
personal name is not typed anywhere on the signature page of
the contract. Rather, each owner-operator signed the contract
under a heading entitled “OWNER-OPERATOR.” Barragan’s
name and title are typed below his signature.
In late December 1994 or early January 1995, each owner
operator executed an addendum to the above-noted contract.14
The addendum automatically extended the contract terms from
year to year unless terminated by either the Employer or the
owner-operator in accordance with the terms of the contract.
Each owner-operator signed his personal name, but neither his
10 According to Barragan, the recognition code is placed on the truck
by the owner-operator, or by the Employer’s dispatcher at the owner-
operator’s request.
11 See P. Exh. 33, a New York State Department of Transportation
Administrative Law Judge’s decision authorizing the owner-operators
as “carriers.” The Employer stipulated that the document is an official
document. The ALJ’s decision states that prior to the commencement
of the 1993 widespread telemarketing campaign, authorized carriers
were not necessary. The decision does not make any finding concerning
the authorized carriers’ prior employee status.
12 See P. Exh. 39 and E. Exh. 45.
13 See E. Exh. 26.
14 Id.
DIAL-A-MATTRESS OPERATING CORP. 899
name, nor the name of his company, are typed on the signature
page. Barragan’s name and title are typed below his signature.
The Employer’s brief relies heavily on the contractual lan-
guage as evidence of the parties’ intention to create an inde-
pendent contractor relationship. In this regard, the Employer
points to sections 3, 4, 5, 8, 10, 12, and 15 of the contract which
state, inter alia, that each owner-operator hires its own employ-
ees; sets all terms and conditions of employment therefor; pays
for fees, maintenance, and taxes related to its equipment; bears
all general selling costs, including insurance, naming the Em-
ployer as additionally insured; receives no guarantee of mini-
mum compensation; directs its operation and staff; determines
the method, means and manner of performance; and acknowl-
edges an independent contractor relationship.
The contract states, and it is undisputed, that the Employer
does not hold the title to the owner-operators’ trucks and does
not pay for certain expenses related to the operation of the
trucks, including gasoline, repairs, inspection, permit, license,
or registration. The Employer has supplied all owner-operators
with plastic credit card charge machines to generate credit card
slips, spare bed frames, plastic bags, and two-way radios,
without cost to the owner-operator. Barragan testified that the
owner-operators do not pay for the two-way radios or the bed
frames unless they are lost or damaged. The record evidence
also showed that the Employer posts a “driver checklist,” in the
warehouse requiring that the owner-operators, drivers and help-
ers carry certain items supplied thereto at no cost by the Em-
ployer, including a center bar support, clamps, door hangers,
bolts, screws, and an extra bag of wheels.15
The contract between the Employer and the owner-operators
states that the “owner-operator shall display the Employer’s
insignia on its truck only when performing services under this
Agreement.” Despite the foregoing language, Barragan testified
that owner-operators may deliver and transport the goods of
other enterprises while displaying the Employer’s advertising.
With the exception of seven vehicles,16 all other vehicles deliv-
ering the Employer’s goods display the Employer’s advertising.
The Employer pays each owner-operator $500 per year for each
truck displaying its advertising. The check for advertising is
made payable to the owner-operator company. The record evi-
dence showed that about four owner-operators executed adver-
tising contracts with the Employer.17
As noted above, in or about July 1993, each owner-operator
received a New York State Department of Transportation per-
mit number authorizing them to carry the Employer’s goods.
The record evidence established that each owner-operator owns
his own trucks. It is undisputed that the Employer does not
inspect the trucks or choose the truck type. Each owner-
operator displays his company’s name, address, and Depart-
ment of Transportation number on the truck’s cab doors as the
Employer has informed the owner-operators in writing that they
may not load their trucks with the Employer’s merchandise
unless they do so.18
Barragan testified that the Employer pays its employees and
the owner-operators on alternating Fridays. The owner-operator

15 See P. Exh. 34 and owner-operator Ramirez’ testimony.
16 From E. Exh. 13B. Although the Petitioner’s brief states that all
but three vehicles display the Employer’s advertising, the exhibit does
not confirm that figure.
17 See E. Exh.s 9 to 12. The testimony of the owner-operators sug-
gests that more than four of them executed advertising agreements.
18 P. Exh. 20.
is paid for each delivery made in accordance with the schedule
of rates attached to the contract. The Employer’s check is made
payable to the owner-operator’s company and not the owner-
operator himself. The Employer does not withhold Federal,
state, or local taxes from the check issued to the owner-
operator. The Employer issues IRS 1099 forms to each owner-
operator and maintains a list of the owner-operator’s tax identi-
fication numbers.19 As per the contract between the owner-
operators and the Employer, each owner-operator maintains
liability and workers’ compensation insurance policies with the
State Insurance Fund, which company also insures the Em-
ployer’s warehouse employees.20 The Employer maintains a list
of the owner-operator’s insurance policy numbers.21
As noted above, there are currently about 39 owner-operator
companies performing delivery services on the Employer’s
behalf. In total, there are about 65 trucks and 7 vans delivering
the Employers products.22 Most owner-operators own only one
truck, drive their own truck and employ one helper to assist
them. Singh’s Express, Inc., (Singh’s), and Ish’s Trucking Inc.,
(Ish’s), own 6 trucks each, and TDJ Santiago, Corp., (TDJ),
owns 10 trucks.23 The record evidence showed that LB Truck-
ing, Fast Freight Trucking, War Betty Trucking, Garcia Truck-
ing, Edward Trucking and R & G Trucking own two trucks
each and employ one driver and one helper for each truck.24
Although the Petitioner’s brief states that no owner-operator
owns more than two trucks, Petitioner’s Exhibit 7 shows that
two owner-operators own three trucks each (Rambo Trucking
and JR Service) and three owner-operators own one truck and
one van each (LAO Lazo Service, JM Delivery Service and
TNA Trucks). While most owner-operators act as the driver for
their own trucks, the evidence showed that three owner-
operators, AB Services, LB Services, and Easy Save Trucking,
do not drive their trucks. Rather, each employs a driver for his
truck. It is unknown which owner-operators employ additional
drivers.
Barragan testified that the Employer maintains a schedule of
starting times ranging from 5 a.m. to 8 p.m.25 The work sched-
ule identifies each company’s truck number, the time each
truck is scheduled to arrive at the Employer’s facility for load-
ing, and the days that each truck is not scheduled to work. Ac-
cording to Barragan, each owner-operator has agreed to arrive
at the scheduled times and each has the opportunity to refuse to
load their trucks at any time. Barragan testified that failure to
appear as per the scheduled arrival time does not result in any
penalty or preclude the owner-operator from working the fol-
lowing day. If an owner-operator does not appear with his truck
as scheduled, the Employer offers the day’s work to the next
owner-operator listed on the schedule. If an owner-operator
19 E. Exh. 8.
20 See testimony of General Counsel Michael Stern.
21 E. Exh. 5. In-house counsel Michael Stern testified that owner-
operator Zuluaga of Zutra Trucking protested that he had to pay work-
ers’ compensation insurance for his helper as he asserted that his helper
is an “independent contractor.”
22 This figure is calculated by comparing E. Exh. 13B, an updated
advertising list with P. Exh. 7, a January 1995 schedule showing the
number of trucks and vans.
23 The Petitioner asserts that Ish’s, Singh’s, and TDJ are independent
contractors.
24 See P. Exh. 7, E. Exh. 8, and the testimony of owner-operator
Ramirez and helper Cano.
25 See P. Exh. 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
uses another driver to drive his truck, the Employer requires
that it be notified in advance for “security reasons.”
With regard to the Employer’s rules and regulations for load-
ing the Employer’s products, it is undisputed that the Employer
has a “Loading Procedures” form located near the window of
the dispatcher’s office. The form states, inter alia, that: failure
to provide a schedule of availability at least 24 hours in ad-
vance will result in a 2-day suspension; rotation for loading is
based on seniority; late drivers load after the drivers who ar-
rived as scheduled; consistent or pattern lateness will result in a
lost position on the schedule; and drivers with disagreements
about loading direct their grievances to the dispatching depart-
ment, which maintains a log of the grievances.26
As noted above, the dispatch department batches the invoices
into daily driver logs, also referred to as the route sheet. There-
after, the route sheets are assigned to the owner-operators. With
the exception of Ish’s, Singh’s, and TDJ, the owner operators
receive different routes every day and deliver to different areas
of the metropolitan area. Barragan testified that the owner-
operators have an opportunity to review the route sheet and
may refuse to deliver to certain areas listed thereon without
penalty. With regard to the chronology of the daily driver log,
Barragan testified that the order of deliveries are a “suggested
efficient sequence” of deliveries based on the customers’ re-
quested delivery times; most owner-operators do not follow the
order of deliveries listed on the daily driver log; the owner-
operators need not seek permission from the Employer to devi-
ate from the route; and the owner-operators may deviate from
the order of the route sheet without penalty, provided that each
delivery is made on time. According to the Employer, its only
requirement is that the owner-operator telephone the Employer
when a problem arises with a delivery.
According to Barragan, the owner-operators have been in-
structed to call the Employer at every stop so that the Employer
may convey to an inquiring customer the location and estimated
time of arrival of a delivery. When calling the Employer’s facil-
ity, the owner-operators communicate with the driver opera-
tions department, headed by Maricio Farigua. The record evi-
dence showed that the Employer notified the owner-operators,
in writing, that failure to follow the call-in procedure could
result in termination of the owner-operator’s services.27 The
driver operations department maintains contact between the
Employer’s customers and the owner-operators. This depart-
ment maintains handwritten logs of calls of incoming calls from
the owner-operators.28 This log is called the Driver Operations
Log which records the time an owner-operator telephoned with
a problem, the invoice number involved, a description of the
problem, and the truck number. Such problems listed on the
Driver Operations Log include incidents where a customer
refused the merchandise because it was the wrong size, the
customer is not home or the customer canceled the order. When
the owner-operator indicates that the merchandise will be re-
turned to the Employer’s warehouse, the Driver Operations Log
states “MCB”: merchandise is coming back. When a driver
calls for approval of a check or credit card, the driver opera-
tions department provides the approval, records the approval
code in the log, and initials the approval code.

26 See P. Exh. 35.
27 See P. Exh. 29. Owner-operator John Beltran testified that Em-
ployer representative Jorge Toro gave him P. Exh. 29 and he saw it
posted near the loading area.
28 See P. Exh. 37.
In support of its contention that the owner-operators are not
required to follow the numerical sequence of the daily driver
log, the Employer produced a document dated April 22, 1995,
which it printed from its computer program.29 The document
looks very similar to the daily driver log in that it numerically
lists the deliveries, the invoice number, the customer’s name
and home phone number, time of delivery alpha code, and city.
Employer’s Exhibit 46 shows that truck number 39 was as-
signed that route and has a column entitled “complete,” which
notes the time that the owner-operator reported the delivery to
the Employer as complete. By reviewing the completion times
on Employer’s Exhibit 46, it can be seen that truck number 39
did not deliver in the numerical order listed by the dispatch
department on the route sheet. Barragan testified that the Em-
ployer does not retain these documents as a business record and
the document is rarely generated or used.30 In order to discern
whether there was any explanation for the out-of-sequence
delivery, the previously described Driver Operations Log from
April 22, 1995, was produced.31 Although Employer’s Exhibit
46 shows that the last completed delivery for truck number 39
occurred at 8 p.m., the Driver Operations Log shows that truck
number 39 telephoned the Employer at 9:47 p.m. to indicate
that his truck broke down while in transit to deliver the mer-
chandise for invoice number 547921. Employer’s Exhibit 46,
however, does not contain said invoice number and there is no
record explanation as to why it was missing. In these circum-
stances, it is questionable whether Employer’s Exhibit 46 veri-
fies the Employer’s contention that the owner-operators can
deviate from the route sheet order without penalty. Moreover,
the owner or driver of truck number 39 was not called to testify
about what occurred on that day.32
Barragan testified that prior to loading merchandise onto
their trucks, the owner-operators inspect the purchased items
and can refuse to load damaged items. If the owner-operator
encounters customer complaints about the merchandise, the
owner-operator returns the merchandise to the Employer’s fa-
cility to be inspected by a warehouse employee. If the customer
complains to the Employer after the delivery, the Employer
sends an inspector to review the damage. Either way, if the
damage can be attributed to the manufacturer, the owner-
operator is not penalized. If the owner-operator is the apparent
cause of the damage, he assumes 100-percent liability for the
merchandise, pays for it, and the merchandise is given to the
owner-operator.
If an owner-operator has caused damage to a customer’s
property, the owner-operator gives the customer an Employer
“Customer Home Damage Form.”33 The form states that the
Employer uses “independently owned and operated” contrac-
tors to deliver the customer’s merchandise and “as such, these
drivers are responsible for any damage” caused. The form pro-
vides a space for the date, the invoice number, and the driver’s
29 See E. Exh. 46.
30 Once the Employer posts all of its receivables in the computer the
document is eliminated from the computer program. Barragan testified
that he requested that E. Exh. 46 be generated for the purpose of the
hearing and that he would only request that such a document be gener-
ated when a driver insists on payment for a delivery which the Em-
ployer believed was not timely.
31 See P. Exh. 41.
32 According to E. Exh. 28, truck number 39 belongs to Herberto
Melo.
33 See E. Exh. 22.
DIAL-A-MATTRESS OPERATING CORP. 901
and customer’s description of the event. Despite the language
on the “Customer Home Damage” form, the record evidence
showed that the Employer notified the owner-operators, in writ-
ing, that if a customer’s home has been damaged by an owner-
operator during delivery, the Employer and owner-operator
split the repair costs 50–50 percent; if there are more than three
incidents of damage per year, the Employer requires that 75
percent of the repair costs shift to the owner-operator and 25
percent to the Employer.34
The owner-operators are paid for each delivery provided it is
timely. If a delivery is late, the Employer’s customer service
representatives determine if a customer discount is warranted.
Barragan testified that “sometimes” the discount is charged to
the owner-operator, although he did not know when this occurs
as these matters are handled by the customer service and fi-
nance departments. The Employer did not call anyone from
these departments to testify. According to Barragan, an owner-
operator will not be paid for a late delivery if the Employer can
determine that the lateness was the owner-operator’s fault.
However, if an owner-operator, upon the Employer’s instruc-
tion, waited for a customer to arrive home, causing other deliv-
eries to be late, the owner-operator is paid for the late deliver-
ies.
If a customer is not home upon the arrival of a timely deliv-
ery, the owner-operator is paid for that timely delivery. When a
customer is not home, the owner-operator fills out a “sorry we
missed you card” provided by the Employer’s dispatch depart-
ment.35 The owner-operator, and/or the driver, fills out the card
indicating the scheduled time of delivery, time of the driver’s
arrival, time of the driver’s departure, the invoice number, and
a description of the customer’s house. The card is left at the
customer’s house and a carbon copy is forwarded to the finance
department. The finance department determines whether the
owner-operator should be paid for that stop. The “sorry we
missed you” card has the Employer’s name and logo on top but
does not contain the name of the owner-operator’s company.36
The owner-operators are responsible for delivery and set-up
of the bed frame and the bed, as well as the removal of old
bedding and all packing materials from the new purchase. If the
customer asks the owner-operator to perform work beyond their
regular services, the customer fills out a “Delivery Service
Work Request” form provided by the Employer.37 The form
notifies the customer that the “independently owned and oper-
ated trucking delivery service” is only required to deliver and
set-up the Employer’s products, and that requests for any addi-
tional work must be specified by the customer in writing, who
accepts full responsibility for any loss or damage caused in the
performance of the additional work.
On completion of the delivery, the owner-operators collect
the amount of money listed on the daily driver log and invoice.
The daily driver log and invoice both indicate the method of
payment. As indicated above, a customer’s check or credit card
number are approved by the Employer’s bedding consultants at
the time of purchase. When completing the delivery, the owner-

34 P. Exh. 14. See also P. Exh. 27.
35 P. Exh. 16.
36 The record evidence established that the Employer has a detailed
written policy concerning the “Not Home Policy and Procedure,” which
explains how long a driver should wait for a customer, and when the
driver operations or customer service departments can release him from
waiting. See P. Exh. 15.
37 See E. Exh. 23.
operator collects the previously approved check, obtains the
appropriate signature on the credit card slip, or collects cash. If
a customer’s check or credit card does not bear resemblance to
the customer name, address, or account number on the invoice,
or there are other unusual discrepancies, the owner-operator
telephones the Employer’s customer service department to
obtain authorization for the check or credit card.38 Barragan
testified that if the Employer authorizes the owner-operator to
accept the check or credit card, but the check does not clear or
the credit card company rejects the payment, the owner-
operator is paid for that delivery. However, if the owner-
operator accepts the method of payment without the Em-
ployer’s authorization, and the method of payment is rejected,
the owner-operator must pay the Employer for that delivery.
After the owner-operator completes all the deliveries on the
daily driver log, he is permitted to return home; he does not
have to return to the warehouse. Each owner-operator was is-
sued a plastic NatWest bank card and deposit slips, with the
Employer’s name and bank account number thereon, in order to
deposit cash into the Employer’s account on a daily basis. Bar-
ragan testified that the Employer provided the owner-operators
with the bank cards to protect them from carrying around too
much cash. When arriving at the Employer’s facility the fol-
lowing morning, the owner-operator must submit to the Em-
ployer’s finance department the credit card slips, checks,39 and
the deposit slips from the cash deposits. The owner-operator is
liable for all receivables and failure to return to the Employer’s
facility with the total amount listed on the daily driver log re-
quires the owner-operator to pay the Employer for the differ-
ence. If an owner-operator does not return with the full amount
of money as listed on the daily driver log, he is not permitted to
load his truck that day.40
With respect to the legal title to the Employer’s merchandise
while in the owner-operator’s possession, the Employer’s Gen-
eral Counsel Michael Stern testified that legal title to the Em-
ployer’s goods stays with the Employer after an owner-
operator’s truck leaves the Employer’s loading dock. Legal title
changes when the customer accepts the goods.
The Employer contends that the owner-operators select, hire,
retain, compensate, and solve all problems relating to their own
drivers and helpers. The Employer asserts that it does not con-
trol the employment of the owner-operators’ employees nor
does it retain a list of said employees. The Employer also con-
tends that the drivers and helpers: do not punch the Employer’s
timeclock; do not use the Employer’s employee bathrooms and
locker rooms; report only to the owner-operators; and wear the
owner-operator’s uniform. Barragan testified that the owner-
operators are not required to furnish the Employer with any
information concerning their drivers and helpers. The record
evidence established that the Employer circulated documents
entitled “Driver and Helper Information Requirements” to the
owner-operators requesting the name, address, phone number,
beeper number, date of birth, social security number, license
38 See P. Exh. 18, a document from National City Check Processing
Division, indicating how to approve a check. The document lists 12
items which should be reviewed prior to accepting a check. Although it
is not clear whether this exhibit was distributed to the owner-operators,
Barragan testified that the policies listed thereon were made known to
them.
39 The record does not show that the checks are deposited by the
owner-operators along with the CODs.
40 See P. Exh. 35.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
number, alien resident card, and nationality of their drivers
and/or helpers.41 Barragan testified that a little more than 50
percent of the owner-operators completed 20 percent of the
information requested. The parties stipulated that those owner-
operators who submitted the driver and helper information
forms list the owner-operator as the “employer.” Those owner-
operators who did not submit the information were not penal-
ized. However, the record evidence established that on or about
January 5, 1995, the Employer notified the owner-operators, in
writing, that it would schedule appointments for each owner-
operator to meet with an Employer representative to provide
certain information on their respective companies including, the
driver’s licenses of their drivers and helpers, their social secu-
rity card/alien resident cards, the certificate of insurance, insur-
ance card, and registration card.42 Barragan testified that the
above-noted information was not required but was considered
helpful for “security reasons.”
According to Barragan, the owner-operators are not subject
to any of the Employer’s rules and regulations for its employ-
ees and that it has not taken any disciplinary action against the
owner-operators or the owner-operators’ employees. In this
regard, Barragan testified that all owner-operators’ contracts
were renewed despite any disciplinary problems. The Em-
ployer’s General Counsel Michael Stern testified that in or
about early April 1995, he was involved in a decision to termi-
nate the contract of owner-operator Noe Garcia. Stern testified
that Garcia was called to his office for a meeting with him and
Barragan. According to Stern, there were reports that Garcia
threw a cup of coffee in the face of another driver while eating
at a diner a block away from the Employer’s facility. Stern
testified that Garcia admitted to the alleged incident but
claimed that he did not intend to hit the driver in the face. Bar-
ragan and Stern discussed the matter, decided to terminate Gar-
cia’s contract, and notified him of said decision orally and in
writing. The written notification was not submitted into evi-
dence. However, Stern testified that the written notification did
not indicate the basis for the Employer’s termination of the
contract.
With regard to the Employer’s other rules and regulations,
the record evidence established that the Employer has required
that owner-operators maintain “clean attire” while delivering
the Employer’s goods and that they must refrain from wearing
sleeveless tee-shirts or shorts that are two inches above the
knee.43
The record also showed that on or about November 1, 1994,
Employer warehouse manager Jorge Toro44 distributed a memo
to some of the owner-operators from General Counsel Stern
regarding their alleged use of drugs and alcohol, and their al-
leged gambling. According to the memo, Stern became aware
that some of the owner-operator drivers may have engaged in
these improper and/or illegal activities “while on the Em-
ployer’s premises, or in the adjacent streets, or on the owner-
operators’ trucks.” The memo states that such activities expose
the Employer to certain liability, such conduct would not be

41 See P. Exh. 5.
42 See P. Exh. 6.
43 See E. Exh. 21. The Employer argues that such a requirement con-
stitutes a minimal degree of control and has little impact on the details
of performance.
44 Barragan testified that Toro is the warehouse manager. The Hu-
man Resource manager testified that Toro is the driver relations man-
ager.
tolerated, and the Employer would take all “necessary steps to
terminate these activities and prevent future occurrences.”45 In
a May 8, 1995 letter signed by Barragan, the Employer notified
an owner-operator that he engaged in the consumption of alco-
hol across the street, on another employer’s property. Barra-
gan’s letter states that if he continues to receive complaints
regarding the owner-operator and his employees, Barragan will
consider termination of the owner-operator’s contract.46
During the hearing, the Employer maintained that all 39
owner-operators are independent contractors regardless of the
number of employees employed thereby or the number of
trucks and/or vans owned. In its brief, the Employer argues that
the Petitioner’s attempt to distinguish Singh’s, Ish’s, and TDJ
from the remaining owner-operators is to no avail because these
three companies operate like the other owner-operators. The
Petitioner contends that all of the owner-operators, except for
Ish’s, Singh’s, and TDJ, are employees of the Employer. In its
brief, the Petitioner argues that these three companies are dif-
ferent because they own a greater number of trucks; employ a
large number of employees; have their own loading schedule;
receive different delivery rates; and are guaranteed a route
every day. The Petitioner concedes that Ish’s, Singh’s, and TDJ
are independent contractors and should be excluded from the
petitioned-for unit.
In support of its position, the Employer relies on the testi-
mony of owner-operators Ishmael Guevara, Seeram Singh,
Carlos Bora, and Hernando Ramirez.47
Ishmael Guevara was employed by the Employer as a part-
time driver for about 10 years. During that time, the Employer
issued paychecks directly to Guevara. Guevara purchased his
second truck in 1991, and two more in 1993. Guevara testified
that in 1993, he formed Ish’s because the Employer “ordered”
all of its drivers to form companies. However, according to
Guervara, the Employer did not threaten to refuse to assign him
work if he refused to form a company. In 1994, Guevara incor-
porated Ish’s under the laws of the State of New York.
Seeram Singh commenced employment for the Employer in
1985. From 1985 to 1987, he was employed by the Employer as
a driver delivering the Employer’s merchandise in his own van.
Simultaneously, Singh made deliveries for other furniture
stores located on the same block as the Employer. As of 1988,
Singh owned two trucks and began to deliver exclusively for
the Employer. In 1990, Singh formed a company called Singh
Trucking, which was dissolved sometime in 1993. According to
Singh, the Employer was not involved in his decision to create
or dissolve that company. Sometime thereafter, Singh incorpo-
rated Singh’s under the laws of the State of New York. Singh
testified that the Employer did not instruct him to form that
company either.
In or about September 1993, Ish’s and Singh’s separately
negotiated and executed agreements with the Employer for
“guaranteed routes.”48 Although the record evidence showed
that Barragan received similar proposals from the owner-
45 See P. Exh. 28. Owner-operator Julio Carabello, who testified on
the Petitioner’s behalf, testified that warehouse manager Jorge Toro
gave him Stern’s memo.
46 See P. Exh. 42.
47 Although the Employer also called owner-operator Arcadio Bauti-
sta to testify on rebuttal, his testimony is described, infra.
48 The record evidence showed that on or about September 9, 1993,
Singh’s proposed to purchase additional trucks in order to accommo-
date the Employer’s needs. See E. Exh. 27.
DIAL-A-MATTRESS OPERATING CORP. 903
operators of Sky Fox Inc., AB Services, FE Services, LaMirage
Trucking, and Seven Wheels Express,49 the Employer rejected
their proposals. Instead, the Employer awarded all Long Island
deliveries to Ish’s, and all Westchester County and Connecticut
deliveries to Singh’s. In exchange therefor, lsh’s and Singh’s
accepted a reduced delivery fee. Ish’s and Singh’s owned four
trucks each prior to their guaranteed route agreement. However,
after reaching said agreements with the Employer, Ish’s, and
Singh’s purchased additional trucks.
Ish’s and Singh’s each hold the title to their respective
trucks. Both Guevara and Singh testified that the Employer did
not financially assist them in the purchases of the trucks.
Rather, both Guevara and Singh took out loans to pay for the
trucks. All of Ish’s trucks display the Employer’s advertising;
six of the seven Singh’s trucks do so. The Employer pays
Singh’s and Ish’s $500 per annum per truck for the advertising.
Ish’s and Singh’s pay for all expenses related to their trucks
including gasoline, repairs, title, license, registration, inspec-
tions, and motor vehicle violations.
Ish’s and Singh’s each employ 12 employees. Guevara testi-
fied that he hired his employees without the Employer’s ap-
proval, although he furnishes the Employer with the drivers’
licenses, resident alien identification cards, social security
numbers, and addresses for all his employees. Singh testified
that the Employer has not required that he furnish such infor-
mation regarding his employees. Both Ish’s and Singh’s pay
their employees on a biweekly basis. The drivers employed by
Ish’s and Singh’s are paid about $450 a week. Ish’s helpers are
paid $325 a week, and Singh’s helpers are paid between $350
and $375 a week. According to Guevara, taxes are withheld
from his employees’ pay. According to Singh, his employees
are either paid in cash or by check, although the record evi-
dence does not reflect whether taxes are withheld from their
pay. The employees of Ish’s and Singh’s receive between 1 to 2
weeks of paid vacation per year. Although Ish’s provides medi-
cal insurance for some of its employees, the record does not
reflect which employees receive the benefits. None of Singh’s
employees receive medical benefits therefrom. With respect to
uniforms, Singh testified that he purchased blue “Singh’s Ex-
press” shirts as a uniform and those employees who have the
shirt wear it daily. Guevara testified that “sometimes” his em-
ployees wear uniforms consisting of blue pants and a light blue
“Ish’s Trucking” shirt. According to Guevara, the uniforms are
cleaned by CINTAS and it was the Employer’s idea to have all
the owner-operators use CINTAS to cut costs.50
Guevara testified that Ish’s delivers only the Employer’s
goods; Singh testified that 95 percent of Singh’s work is de-
rived from delivery of the Employer’s goods; Singh’s remain-
ing work involves general moving services. Singh drives one of
his trucks on a daily basis, whereas Guervara drives one of his
trucks about 3 days a week. When Guervara is not driving his
truck, he stays in the Employer’s warehouse and remains in
contact with his employees who are on the road. In order to
maintain contact with their drivers, Ish’s and Singh’s provide
beepers to each driver and helper employed by them. Accord-
ing to Singh and Guevara, the Employer provided two-way
radios for all of Singh’s trucks and five of six of Ish’s trucks.

49 See E. Exh.s 28, 34, 42, and 43.
50 The uniforms are picked up and delivered by CINTAS at the Em-
ployer’s facility.
On a daily basis, both Guervara and Singh collect all moneys
for the previous day’s deliveries from their drivers.
The record evidence established that the Employer posts a
separate work schedule reserved only for Ish’s, Singh’s, and
TDJ. The work schedule identifies the company truck number,
scheduled time that each truck is to arrive at the Employer’s
facility for loading, and the days that each truck is not sched-
uled for work.51 The schedule shows that the trucks belonging
to Ish’s, Singh’s, and TDJ’s load their trucks at various times
between 5 a.m and 5 p.m. Guevara testified that some of his
trucks report to the Employer’s facility for loading at 5 a.m., as
per the loading schedule. The remaining trucks arrive for load-
ing at about 9:30 a.m., although there are occasions when they
wait until 12 noon for deliveries.
Both Singh and Guevara testified that they have refused to
deliver the Employer’s damaged items about 10 to 15 percent
of the time. Guevara testified that upon a customer’s rejection
of a damaged product, he returns the item to the Employer’s
warehouse. If the damage if caused by the manufacturer,
Guevara is paid for the stop. If Guevara or one of his employ-
ees damaged a customer’s home, Guevara arranges for the re-
pair, although the cost thereof is split 50–50 between Ish’s and
the Employer. Both Guevara and Singh testified that if a cus-
tomer telephones the Employer with a complaint about their
delivery service, the Employer mentions the incident to them.
In sum, Guevara and Singh discuss the incident with the em-
ployee involved.
With respect to the order of the daily driver log, Guevara tes-
tified that he and his drivers decide the order of delivery with-
out regard to the numerical order prepared by the Employer.
Guevara also testified that if he or one of his drivers are unable
to make a timely delivery and have failed to secure an exten-
sion of time from the Employer in which to make a timely de-
livery, he is not paid for the late delivery. According to
Guevara, a late delivery is permitted provided the Employer
and the customer approve it. Singh testified that he rarely re-
fuses to deliver in the order set forth on the route sheet. Both
Guevara and Singh testified that if a customer is unable to pay
the bill for the delivered merchandise, they do not leave the
merchandise at the customer’s home without the Employer’s
consent. They do not extend credit to the customer without the
Employer’s authorization.
No representative of TDJ was called to testify. However, the
record evidence established that TDJ owns ten trucks, most of
its trucks are scheduled to deliver the Employer’s goods 7 days
a week,52 and all 10 display the Employer’s advertising.53
Guevara testified that TDJ also has a guaranteed route. Singh
testified that TDJ operates in the same fashion as Ish’s and
Singh’s.
The Employer also called Carlos Bora and Hernando Rami-
rez, brothers-in-law, who testified that they were partners in
Fast Freight Trucking, (Fast Freight). According to Ramirez,
Fast Freight was formed in 1991 and operated as a delivery and
moving service for about 10 different companies. Sometime in
1993, Ramirez and Bora parted ways and each took one truck
from Fast Freight to start his own business. Ramirez remained
the owner of Fast Freight, whereas Bora formed his own com-
pany, Easy Save Trucking, (Easy Save). Neither Bora nor Ra-
51 See P. Exh. 8.
52 See P. Exh. 8.
53 See E. Exh. 13B.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
mirez performed any delivery services for the Employer until
sometime in 1993. Easy Save and Fast Freight have business
cards, although the business address and telephone numbers
printed thereon are Bora’s and Ramirez’ home addresses and
telephone numbers respectively.
Although Bora and Ramirez testified that they filled out em-
ployment applications at the time they commenced work with
the Employer, the record did not contain the applications. The
record evidence established that on or about August 28, 1993,
Easy Save and Fast Freight separately executed contracts with
the Employer. Both Ramirez and Bora recall meeting with Em-
ployer safety officer Luis Cornejo regarding the contract.54 In
this regard, Bora testified that Cornejo orally translated the
contract into Spanish. Ramirez testified that Cornejo said that
Ramirez had to form a “company” in order to deliver the Em-
ployer’s merchandise, although Fast Freight was formed by
Ramirez prior thereto. Ramirez testified that he did not ask for
any changes to be made in the contract and recalled that during
the meeting with Cornejo he signed two things: the contract and
an agreement regarding advertising on his truck.
Bora of Easy Save owns only one truck and Ramirez of Fast
Freight now owns two trucks. Bora and Ramirez each hold the
title to their own trucks and pay for expenses related thereto,
including insurance, registration, gasoline, and other items.
Until recently, Bora drove his truck and employed only one
helper, whom he pays $250 per week. In or about March 1995,
Bora hired a driver, who is paid $350 per week. Bora’s driver
and helper are paid in cash and taxes are not withheld there-
from. Ramirez drives one of his two trucks, employs another
driver for the second truck, and employs two helpers, one for
each truck. Ramirez pays his drivers and helpers $60 and $50
per day, respectively. His employees are paid for the number of
days worked per week. Ramirez testified that taxes are withheld
from his employees’ pay.
According to Ramirez, Fast Freight employees receive 1
week’s paid vacation, paid sick leave, and medical benefits.
According to Bora, Easy Save employees receive 1 week’s paid
vacation per year. Easy Save employees do not wear uniforms
whereas Fast Freight employees have been wearing uniforms
since April 1993. The uniform consists of dark blue pants and a
light blue “Fast Freight” shirt. According to Ramirez, he saw a
representative of CINTAS, a uniform cleaning service at the
Employer’s facility, and asked whether CINTAS could clean
his uniforms. CINTAS bills the Employer for the unifomm
cleaning and the Employer deducts the monies from Ramirez’
check.55
With respect to their drivers and helpers, Bora testified that
he has provided the Employer with his helper’s name, address,
social security number, and alien registration card. Bora
vaguely recollected that during a meeting with Barragan, he
asked Bora to provide the green card, social security number
and driver’s license for his recently hired driver. Bora has not
yet provided that information. Ramirez testified that he must
submit certain information to the Employer about his employ-
ees because they handle, and are responsible for, the Em-
ployer’s goods. Upon recently hiring his third employee, Rami-
rez submitted that employee’s driver’s license to the Employer.

54 According to Human Resource Manager Cook, Cornejo went on a
leave of absence in July 1993, and has not returned to the Employer’s
emp loy.
55 Ramirez testified that he signed “a paper” with CINTAS, although
the record does not contain that document.
Ramirez testified that should this employee successfully com-
plete his “trial period,” he intends to submit the employee’s
resident alien card and social security number to the Employer.
With respect to the scheduled loading times for Easy Save
and Fast Freight, both Bora and Ramirez testified that they have
seen the Employer’s loading schedule posted at the Employer’s
facility.56 Ramirez testified that he was not consulted by the
Employer regarding his availability prior to the posting of the
schedule. Bora testified that he is scheduled to appear at the
Employer’s facility for loading at 6 p.m. Bora’s truck contains
a two-way radio provided by the Employer and displays the
Employer’s advertising. Bora initially testified that an unidenti-
fied Employer representative told him that his truck must dis-
play the Employer’s advertising. Later, he testified that he
agreed to have the ad placed on his truck because he saw the
advertising, liked the way it looked, and was offered $500
therefor. Bora testified that 90 percent of his work involves
delivery for the Employer and the remainder of his work in-
volves delivery for private furniture companies.57 Bora did not
inform the Employer that he uses his truck, which displays the
Employer’s advertising, to deliver goods for other companies.
Ramirez testified that he drives truck number 108 and is sched-
uled to arrive at the Employer’s facility for loading on Thurs-
day through Sunday at 6 p.m. Ramirez’ truck number 108 has a
two way radio and displays the Employer’s advertising, for
which Fast Freight is paid $500 per annum. Ramirez employs
another driver to drive his second truck, truck number 149,
which is scheduled to arrive at the Employer’s facility for load-
ing on Saturday and Sundays at 8 p.m. Truck number 149 does
not have the Employer’s advertising or a two-way radio. Rami-
rez testified that he has not used truck number 108 for any pur-
pose other than delivery of the Employer’s products, although
he has used truck number 149 for deliveries for other enter-
prises.
With respect to the daily driver log or route sheet, Bora testi-
fied that upon receipt thereof he inspects the merchandise and
he can refuse to accept damaged merchandise. Bora will only
deliver damaged goods if the Employer’s “checker” signs on
the route sheet that Bora has taken damaged goods for delivery.
According to Ramirez, on a few occasions, he has refused to
deliver to particular stops listed on the daily driver log, i.e.,
when the delivery area is dangerous or when the merchandise
for delivery is damaged. When refusing to make a delivery, the
Employer’s dispatcher asks that Ramirez remove from the truck
the merchandise he does not wish to deliver.
With respect to the method of delivery, Ramirez testified that
he is not required to notify the Employer if he does not follow
the order on the daily driver log. However, Ramirez testified
that he will not “skip around” the daily driver log if he suspects
it will cause a late delivery. Ramirez also testified that while
out on the road, he has never informed the Employer that he
was unable to make a delivery. Bora testified that after each
delivery he telephones the Employer and the next customer on
the daily driver log to see if the customer is at home. If the
customer is not home, Bora finds the next customer listed on
the route sheet who is at home. However, Bora testified that he
must inform the Employer if he intends to change the sequence
56 See P. Exh. 7.
57 Although Bora initially testified that he used his truck, with the
Employer’s advertising, to remove some garbage from a restaurant he
is constructing, he later testified that the truck he used belonged to his
brother-in-law and did not display the Employer’s advertising.
DIAL-A-MATTRESS OPERATING CORP. 905
of deliveries on the driver log. Although Bora can request per-
mission to deliver out of sequence, the Employer can “prevent”
him from changing the route.
In support of its position that the owner-operators are em-
ployees of the Employer, the Petitioner called five owner-
operators to testify: John Beltran of JB Services, Mario Zuluaga
of Zutra Trucking, Bennet Straker of BS Trucking, Hector
Mendez of H & M Express,58 and Julio Carabello of Delivery
Express. Although Arcadio Bautista of AB Services was called
by the Employer, his testimony is discussed here as his testi-
mony is similar to the testimony of these owner-operators. The
Petitioner also called Carlos Luzano and Enrique Cano, a driver
and helper, respectively, for LB Trucking. The owner-operator
of LB Trucking, Luis Bocanegra, was not called to testify.
All the owner-operators called by the Petitioner testified that
they were employed by the Employer prior to their forming
their own companies. During their employment by the Em-
ployer, they were issued paychecks directly in their name.59 Al1
the owner-operators testified that they were told by Employer
representatives Juan Vergas or safety officer Luis Cornejo60
that in order to continue working for the Employer delivering
its goods, they each must form a company.61 Owner-operators
Beltran, Straker, and Mendez were told that they must have
business cards printed.62 According to all the owner-operators

58 The record evidence established that in or about November 1993,
owner-operators Hector Mendez of H & M Express, Herberto Melo of
Seven Wheels Express, Jorge Melo, and Heman Moreno of Heman R
Moreno Services, formed another company called Sky Fox, Inc., (Sky
Fox). Although each of these owner-operators executed individual
contracts with the Employer in August 1993, Hector Mendez testified
that he and the other owner-operators elected to form a corporation in
an attempt to secure a route agreement similar to those obtained by
Ish’s and Singh’s. Hector Mendez and the other owner-operators were
shareholders of Sky Fox (see E. Exh. 7) and the parties stipulated that
Sky Fox issued W-2 forms to its employees, including Mendez (see E.
Exh. 30), and maintained workers’ compensation and liability insurance
for its employees. Mendez was employed by Sky Fox as a driver. By
October 1993, Sky Fox had not secured a route agreement leading
Hector Mendez to resign as an officer and employee of Sky Fox (see E.
Exh. 29). According to Mendez, after he “resigned” from Sky Fox, he
returned to his prior operations as H & M Express. The Employer’s
loading schedule shows that Mendez’ truck, #104, is operated by Sky
Fox. The Employer implies that because Sky Fox was not properly
dissolved as a corporate entity, Mendez remains employed by it. How-
ever, the record shows that in December 1994, H & M Express exe-
cuted a renewal agreement with the Employer, evidencing H & M
Express’ existence as a separate entity, which was signed by Hector
Mendez
59 There was some testimony from John Beltran and Bennet Straker
that, during their employment by the Employer, their checks were
issued by a company called Galaxy. According to Straker and Beltran,
taxes were not withheld from their Galaxy paychecks. There is no
record evidence explaining Galaxy, other than some inference there
was a New York State Tax Authority investigation into Galaxy. It
appears that Galaxy may have been a payroll company.
60 According to Employer Human Resource Manager Zoriada Cook,
Luis Cornejo was hired by the Employer in August 1992 as a safety
officer. In July 1993, Cornejo requested a leave of absence and has not
returned since that time. According to Cook, Juan Vergas was hired by
the Employer in October 1991 and was terminated during the first
quarter of 1993.
61 Hector Mendez of H & M Express testified that Luis Cornejo as-
sisted him in selecting a name for his company.
62 Owner-operator Zuluaga testified that the Employer did not ask
him to print business cards and he does not have any. The record did
not establish whether owner-operators Carabello of Delivery Express or
called by the Petitioner, certain Employer representatives pre-
sented them with a contract to sign.63 Some did not understand
the contract, but all owner-operators were told that they either
sign the contract or they could no longer work for the Em-
ployer. The record evidence showed that JB Services, Zutra
Trucking, BS Trucking, H & M Express, and Delivery Express
each executed contracts with the Employer in late August or
early September 1993. The record evidence also established
that they executed renewal agreements between December 16
and 22, 1994. All these owner-operators derive 100 percent of
their income from their deliveries for the Employer.
All these owner-operators own only one truck. John Beltran
of JB Services, Mario Zuluaga of Zutra Trucking, Bennet
Straker of BS Trucking, Hector Mendez of H & M Express, and
Julio Carabello of Delivery Express, drive that one truck, and
employ one helper. Arcadio Bautista of AB Services owns one
truck but does not drive it. About 8 months ago, Arcadio
Bautista ceased driving his own truck and hired a driver to
drive his truck; he also employs one helper. The owner-
operator of LB Trucking, Luis Bocanegra. did not testify al-
though the record evidence showed that he owns two trucks,
numbers 19 and 101, and that he hired a driver and helper to
work on truck number 19, as discussed more fully below.64
The trucks owned by JB Services, Zutra Trucking, BS
Trucking, and AB Services display the Employer’s advertising,
whereas the trucks owned by H & M Express and Delivery
Express do not.65 Each owner-operator displaying the Em-
ployer’s advertising is paid by the Employer $500 per annum
per truck therefor. Beltran of JB Services testified that about 2–
1/2 years ago Employer safety officer Sylvia Paredes instructed
him that his truck could not carry the Employer’s products if
the truck did not display the Employer’s ads.66 Thereafter,
Beltran had the ads placed on his truck. Although owner-
operators Mendez and Carabello were told by Employer repre-
sentatives or dispatch employees that they could not deliver the
Employer’s products without advertising on their trucks, both
continue to do so without penalty.
The testimony regarding the uniforms of the owner-operators
varied. Owner-operator Beltran testified that about 1 year ago,
he bought 12 tee-shirts, 6 for him and 6 for his helper, with the
Employer’s name on it. According to Beltran, Employer safety
officer Sylvia Parades instructed him to wear a uniform.
Owner-operators Straker and Bautista testified that about 2
years ago, they stopped wearing the Employer’s uniform and
started to wear their own tee-shirts with their company names
printed thereon. Owner-operator Zuluaga wears a tee-shirt with
his company name printed thereon when it is cold outside. The
record established that CINTAS cleans the uniforms and bills

Arcadio Bautista of AB Services have business cards. Although the
owner operator for LB Trucking did not testify, the record evidence
showed that LB Trucking has business cards. See E. Exh. 3.
63 The Employer representatives mentioned were former Security
Officer Luis Cornejo, Chief Operating Officer Luis Barragan, or Fi-
nance Department Manager Tony Santano.
64 See P. Exh. 7. Also see driver Luzano’s testimony.
65 Although owner-operator Straker testified that he was suspended
for refusing to have his truck display the Employer’s advertising, this
incident occurred in 1989, long before Straker signed the independent
contractor contract with the Employer. In 1990, Straker had the Em-
ployer’s advertising placed on his truck.
66 According to Employer Human Resource Manager Zoriada Cook,
Paredes was hired by the Employer in September 1993.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
the Employer, who deducts the cost thereof from the owner-
operators’ paychecks.67
Owner-operators Mendez and Straker testified that about 1
year ago, dispatch employee Raul Forbes instructed each of
them to remove old mattresses from inside their trucks because
their trucks are required to be empty prior to loading the Em-
ployer’s deliveries. Mendez testified that Dispatch Manager
Scott Lanceford told him that there was a “regulation” requiring
that the trucks be completely empty before loading. Owner-
operators Zuluaga and Beltran were instructed by Employer
Representative Juan Vergas68 and dispatch employee Raul
Forbes that they may not carry goods for any other employer. It
is unclear from the record the supervisory status, if any, of Raul
Forbes.
Owner-operators Beltran, Zuluaga, Straker, and Carabello
testified that in the past, the Employer held meetings with the
owner-operators once a week or every 2 weeks. According to
Beltran, the meetings were conducted by Barragan, Lanceford,
Driver Operations Department Manager Mauricio Farigua,
dispatch employee Raul, and certain salesmen. Currently, the
Employer calls these meetings at random and has held only one
or two meetings in the last 8 months. According to Straker, the
meetings were held for the purpose of discussing customer
complaints and general marketing information. Straker testified
that during one of the meetings, the Employer distributed a
marketing survey and asked that the owner-operators fill out the
information requested, i.e., the size of the customer’s house, the
number of bedrooms, type of car owned, and the presence of
new or old furniture.69 The marketing survey was also trans-
lated into Spanish. Straker testified that he never filled out the
marketing survey.
The record evidence established that during an early meet-
ing, the owner-operators received a document entitled “Re-
quirements from Independent Contractors” stating that: the
owner-operators’ trucks must be in good mechanical condition;
truck drivers are 100 percent responsible for accidents, thefts
and damages while making deliveries; drivers should be prop-
erly dressed to make a good impression with the customers;
delivery assignments to each driver must be completed 100
percent; drivers must complete radio checks after each com-
pleted delivery; trucks will not carry anyone other than the
driver and helper; and trucks will not be loaded until CODs are
settled with the cashier.70
With respect to the schedule for loading, BS Trucking, AB
Services, Zutra Trucking, Delivery Express, JB Services, and H
& M Express are scheduled to arrive at the Employer’s facility
for loading at 5, 7, and 11 a.m., and 2, 3, and 5 p.m., respec-
tively. Owner-operators Zuluaga and Straker testified that if
they do not arrive at the time listed on the Employer’s schedule,
they are the last to receive a route.71 All of the owner-operators
testified that if the Employer does not have a route available at

67 See E. Exh. 33, which is a contract between AB Services and
CINTAS. Also see P. Exh. 38.
68 As previously indicated, Vergas was terminated from the Em-
ployer’s employ in the first quarter of 1993.
69 See P. Exh. 36.
70 See P. Exh. 13. Based on Barragan’s testimony, it appears that the
owner-operators no longer submit the cash they collect to Santano.
Rather, the owner-operators are given ATM cards to deposit the cash
and they return a copy of the deposit slip to Santano.
71 This is confirmed by statements made in the Employer’s Loading
Procedures form. See P. Exh. 35.
the time of loading, they wait until the Employer has enough
orders to comprise a route.72 In this regard, Beltran of JB Ser-
vices, who arrives at 11 a.m., Zuluaga of Zutra Trucking, who
arrives at 3 p.m., and Mendez of H & M Express, who arrives
at 5 p.m., all testified that if there are no routes available when
they arrive, they are required to wait at the Employer’s facility
until 10 or 11 p.m. just in case they are needed for a route.
Owner-operator Straker of BS Trucking, who arrives at 5 a.m.,
testified that he must wait until 2 p.m. for a route, although he
was not instructed against leaving before 2 p.m. Both Beltran
and Zuluaga testified that dispatch department employees Omar
Bishundat and Raul Forbes threatened to suspend them if they
left the Employer’s facility and refused to stay as instructed. It
is unclear from the record whether dispatch employees Omar or
Raul are supervisors or managers. Owner-operator Mendez
testified that on an unknown date in late 1994, he was sus-
pended by finance department manager Tony Santano for refus-
ing to stay at the Employer’s facility as instructed. Mendez
testified that on that date he waited for a route until 8 p.m. At
that time, he questioned the dispatch office as to when he
would be assigned a route. Upon notification that four trucks
were waiting for a route assignment, Mendez left. When a route
became available later that evening, Mendez was not at the
Employer’s facility. Thus, Santano suspended Mendez for 1
day.
With regard to the Employer’s contention that the owner-
operators may refuse a route, owner-operator Beltran of JB
Services testified that on one occasion he refused a route and
was told by Lanceford that he should unload his truck, go
home, and return the next day. According to owner-operator
Straker of BS Trucking, about 2 years ago he refused to deliver
an assigned route because it was “not feasible.” Straker testified
that dispatch employee Raul Forbes “made it clear” that Straker
must accept the route. As indicated above, Raul’s supervisory
status is unknown.
With regard to the Employer’s contention that the owner-
operators are free to change the order of deliveries on the daily
driver log or route sheet, all of these owner-operators testified
that they were instructed to deliver to the customers in the nu-
merical order listed on the daily driver log or route sheet. The
uncontroverted testimony showed that Tony Santano suspended
owner-operators Beltran, Zuluaga, and Mendez for their failure
to follow the order on the route sheet. According to Beltran,
years ago, upon submission of his COD sheet to Santano, San-
tano was able to tell from the COD payment list that he did not
follow the order on the route sheet. Santano suspended Beltran
for 1 day. Owner-operator Zuluaga testified that about 2 years
ago, he was suspended five or six times for refusal to follow the
order on the route sheet. In this regard, Zuluaga recalled one
incident when he changed the order on a route sheet, he
telephoned the Employer from one of his stops on the route,
and was told by Santano that the driver operations department
complained about his failure to follow the route. Zuluaga was
suspended for one day. Owner-operator Mendez testified that
sometime in late 1994, he chose to change the order of deliver-
ies on a route sheet and delivered to a Staten Island customer
before two New Jersey customers. Because Mendez was late
72 Carabello’s and Bautista’s testimony was silent in this regard.
However, Carabello testified that if he arrived after his scheduled load-
ing time, and the Employer had a busy day, the Employer would ques-
tion him as to why he was late.
DIAL-A-MATTRESS OPERATING CORP. 907
for his second New Jersey customer, the customer canceled the
order and Santano suspended him for 1 day. Owner-operator
Straker testified that during the last year Santano became aware
that he did not follow the route sheet. Santano threatened
Straker that if the incident occurred again, he would be sus-
pended. Owner-operator Carabello testified that certain un-
named dispatch department employees and Employer represen-
tative “David” (whose last name is unknown), instructed him
that failure to follow the route sheet sequence will result in
suspension. Owner-operator Bautista, who employs a driver to
drive his truck, testified that he always instructs his driver to
follow the route sheet because there have been numerous em-
ployees who were suspended for failure to do so. According to
Bautista, any driver who wishes to change the delivery se-
quence on the route sheet must secure the Employer’s permis-
sion to do so. LB Trucking’s driver Carlos Luzano also testified
that the dispatch department employees instructed him to fol-
low the order of deliveries on the route sheet.
Although the Employer in its brief relies on Employer’s Ex-
hibit 4673 as evidence that the owner-operators are not required
to follow the order of delivery on the route sheet, this single
document reflecting one day’s deliveries by one driver does not
serve to discredit the foregoing testimony. Moreover, despite
numerous references to Santano as the Employer representative
responsible for disciplinary action, Santano was not called to
refute the owner-operators’ testimony or testify at all with re-
spect to these matters. The testimony showed that there have
been additional incidents when the Employer disciplined the
owner-operators. Owner-operator Beltran testified that about 2
years ago, he failed to report for loading at his scheduled 11
a.m. time because he fell asleep in his truck which broke down
on the highway. Santano suspended Beltran for one day. About
1–1/2 years ago, Beltran used a different helper to substitute for
his regularly scheduled vacationing helper. The Employer did
not like Beltran’s substitute helper and he was instructed that he
could not work if he failed to replace the substitute. Owner-
operator Zuluaga testified that about 3 to 6 months ago, Barri-
gan suspended him from delivering the Employer’s goods for 1
day because he did not have enough money to pay for workers’
compensation insurance. According to Zuluaga, Barragan
loaned him the $800 to pay for the workers’ compensation
insurance. Zuluaga also testified that on two or three occasions,
he was suspended for 1 day when he failed to call the Employer
from each delivery stop. Owner-operator Straker testified that
about 1–1/2 years ago, he was suspended by Barragan for his
refusal to deliver a mattress up eight flights of stairs.74 Owner-
operator Carabello testified that prior to December 1994, he
was suspended by Santano for failure to deposit his COD
money in the bank. He also was suspended in November 1994,
when he was unable to return certain merchandise to the Em-
ployer because his truck was at the mechanic’s shop. In its
brief, the Employer asserts that any disciplinary action taken
against any of the owner-operators “had no effect” as each of
their contracts were renewed after the alleged discipline.

73 Discussed in detail at p. 17.
74 Although Straker testified that he was also suspended in 1989 and
1992, those incidents occurred prior to his alleged independent contrac-
tor status. Owner-operator Mendez also testified that he was suspended
on a few occasions in 1991, when he worked for another owner-
operator as a driver, before his alleged conversion to an independent
contractor. Mendez also provided hearsay testimony concerning the
Employer’s suspension of other owner-operators’ employees.
Although the record evidence showed that there are about 39
companies, some of which own more than one truck, the record
does not establish how many drivers or helpers each owner-
operator employs, or their rates of pay, hours, and other terms
and conditions of employment. With respect to the owner-
operators’ helpers, the record evidence discloses the manner in
which the helpers are referred to, or allegedly hired by, the
owner-operators. In this regard, the record evidence showed
that owner-operator Guevara’s helpers come to the Employer’s
warehouse looking for work, or Guevara gets them “through
recommendations.” Similarly, owner-operator Singh’s helpers
are referred by other drivers and some come to the Employer’s
warehouse looking for work. The record evidence also showed
that up until 10 months ago, owner-operator Straker used his
cousin as a helper. Owner-operator Bautista, an employee of
the Employer from 1989 to 1993, testified that he has had his
helper since 1990. Thus, it appears that this helper was em-
ployed directly by the Employer from 1990 to 1993. Another
helper used by Bautista, Fransico Espinal, became the owner-
operator of FE Services. Owner-operator Bora had his helper
long before he commenced his services for the Employer.
Owner-operator Beltran worked as a helper for various other
drivers employed by the Employer prior to his becoming an
owner-operator.
With regard to the Employer’s relationship with the owner-
operators’ helpers, the record evidence showed that the Em-
ployer suspended owner-operator Beltran because it did not
approve of his helper. According to Beltran, Santano once in-
formed him that Beltran’s replacement for a vacationing helper
was not satisfactory and must be replaced. On another occasion,
Beltran submitted certain information regarding his helper for
the Employer’s approval. The record also showed that owner-
operator Singh and one of his former employees met with an
Employer customer representative to discuss some damage
caused to a customer’s telephone. The record also established
that Enrique Cano and Carlos Luzano, the helper and driver of
LB Trucking, were suspended by Dispatch Manager Scott
Lanceford for parking in the wrong place at the Employer’s
facility. With regard to helpers’ hours of work, the record evi-
dence showed that owner-operator Mendez’ helper works only
3 days a week and that owner-operator Zuluaga’s helper is only
called to work when Zuluaga is sure that his truck will be
loaded for deliveries.
In its brief and during the hearing, the Employer argued that
all the owner-operators, regardless of the size of their fleet,
“operate in a corporate style requiring effort and financial out-
lay, buy their own trucks, bear all costs incidental to their own-
ership of their trucks, and hire drivers and helpers to assist
them.” In its brief, the Employer raised an alternate theory not
presented during the hearing; if the owner-operators are not
independent contractors, they are supervisors within the mean-
ing of the Act. The Employer’s brief relies heavily on the
owner-operators’ contracts with the Employer as evidence of
their independent contractor status. Such reliance is misplaced
as it is well established that the Board does not regard as de-
terminative the fact that written contracts define the relation-
ship as “independent.”75 In its brief, the Employer also asks
that I recognize IRS Ruling 76–226, which facts allegedly mir-
ror the facts herein. Although there was testimony alluding to
75 See National Freight. Inc.,153 NLRB 1536 (1965); Big East Con-
ference, 282 NLRB 335, 345 (1986).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
an alleged IRS investigation and ruling, the Employer never
produced the documentation, despite the Petitioner’s repeated
requests therefor. The Employer also failed to provide docu-
ments from an alleged New York State Tax Authority investi-
gation, which was mentioned by one of the Employer’s wit-
nesses during the hearing. Thus, I am unable to consider any
governmental rulings without record documentation thereof.76 I
also reject the Employer’s assertion in its brief that the owner-
operators’ business cards stating that they offer a “wide variety
of services” evidences the owner-operators’ intention to seek
other prospective business. The above-quoted statement does
not necessarily mean they are interested in working for other
businesses. Moreover, the evidence tends to show that the busi-
ness cards were made at the behest of the Employer and were to
be submitted with each owner-operator’s Department of Trans-
portation application. Finally, with respect to the Employer’s
assertion in its brief that the owner-operators work for other
employers, this is not supported by first hand record evidence.
For example, although the Employer contends that owner-
operator Raymond Ramiakan works for another corporation,
this information came through the testimony of another owner-
operator, Ramiakan did not testify.
In its brief, the Petitioner argues that the Employer controls
the manner and means by which the owner-operators deliver
the Employer’s product by setting the schedule of starting
times, assigning the daily routes, specifying the order of the
routes, and resolving all problems arising from the owner-
operators’ deliveries. The Petitioner also contends that the
owner-operators drive exclusively for the Employer and remain
in frequent contact with the Employer during the day. With
respect to the Employer’s contention that the owner-operators
may be supervisors. the Petitioner in its brief argues that the
independent contractor relationship “is a sham, and . . . the
owner-operator’s exercise of supervisory functions is mandated
by the Employer to maintain the charade that owner-operators”
are independent.
The Board applies the common law right-of-control test to
determine whether individuals are independent contractors or
employees within the meaning of Section 2(3) of the Act. Un-
der this test, an employer-employee relationship exists when
the employer reserves the right to control not only the ends to
be achieved, but also the means to be used in achieving such
ends. On the other hand, where control is reserved only as to
the result sought, an independent contractor relationship exists.
The resolution of this question depends on the facts of each
case, and no one factor is detemminative.77 Additionally, for an
independent contractor relationship to exist, the arrangement
most typically should exhibit entrepreneurial or proprietary
characteristics.78 Thus, the question of whether the owner-
operators herein are independent contractors or the Employer’s
employees hinges on the outcome of a two prong analysis: (1)
whether the Employer herein has the right to control not only
the results but the manner and the means by which the desired
result is to be obtained; and (2) whether the owner-operators

76 I find the Employer’s reliance on Lorenz Schneider Co., 209
NLRB 190 fn. 5 (1974), is inapposite and the case does not alter my
ruling.
77 See Roadway Package System, Inc., 288 NLRB 196 (1988); NLRB
v. United Insurance Co., 390 U.S. 254, 256 (1968).
78 Id. Also see Mission Foods Corp., 280 NLRB 251 (1986).
are entrepreneurs assuming the risk of loss and opportunity for
profit.79
The Board in C.C. Eastern Inc., 309 NLRB 1070 (1992),
found that owner-operators were employees within the meaning
of Section 2(3) of the Act notwithstanding certain facts strik-
ingly similar to those in the instant case. Common to the
owner-operators in C.C. Eastern, and here are that the owner-
operators own their own trucks, for which they pay all expenses
and are responsible for their own costs such as insurance, main-
tenance, repairs, and gasoline; sign a contract with the em-
ployer that designates them as independent contractors; and are
provided no fringe benefits, and no taxes or other payments are
withheld from their compensation, which is based on each
timely delivery made in accordance with the schedule of rates
attached to each contract.
The record evidence here established that the owner-
operators arrive for loading based on an Employer-prepared
schedule, and those who arrive after their scheduled loading
time are loaded at the very end of the day. The record also
shows that the owner-operators service Employer-assigned
geographic areas in which they are to make deliveries and, with
the exception of Ish’s, Singh’s, and TDJ, the delivery service
areas are subject to change on a daily basis by the dispatch
office, depending on the Employer’s needs. Any grievances
arising from the loading schedules are brought to the dispatch
department, where the Employer maintains a log of grievances.
The Employer has issued certain memoranda with respect to
certain policies including its call-in procedure, the timeliness of
arrival for loading, the dress code during delivery, and the han-
dling of damage to a customer’s home or property. The Em-
ployer has also issued verbal warnings to owner-operators con-
cerning their failure to follow the order of deliveries listed on
the route sheet and has suspended an owner-operator who failed
to report, for loading at his scheduled time. The Employer also
has suspended owner-operators who failed to: call the Em-
ployer from each delivery stop; deposit COD money in the
bank; and return certain merchandise to the Employer’s facility.
The Employer has suspended an owner-operator who refused to
deliver a mattress up eight flights of stairs. A driver and helper
were suspended by the Employer for parking their truck in the
wrong place. Further evidence of the Employer’s control can be
seen from the recent termination of the contract of an owner-
operator who had a lunchtime physical confrontation with an-
other owner-operator in a diner off the Employer’s premises.
On the above-described facts, it appears that the Employer has
reserved not only the right to control the end result, i.e., the
timely delivery of mattresses, but has also exhibited control
over the manner and means used by the owner-drivers in
achieving the final result.
With respect to entrepreneurial indicia, it is difficult to envi-
sion significant entrepreneurial activities when the record evi-
dence established that: the owner-drivers do not cultivate busi-
ness or customers for the Employer; they have no input into the
Employer’s pricing for the merchandise; they must receive
Employer authorization for all methods of payment; they do not
service the Employer’s competitors, they only service the Em-
ployer’s delivery areas; they have no proprietary interest in
79 See Capital Parcel Delivery Co., 269 NLRB 52 (1984), cited by
the Employer in its brief.
DIAL-A-MATTRESS OPERATING CORP. 909
their routes; and they work solely for the Employer.80 Thus,
there is insufficient record evidence that any owner-drivers
engage in significant entrepreneurial endeavors outside of their
regular employment with the Employer. In sum, the Em-
ployer’s exertion of control over the manner and the means by
which the owner-drivers perform their work, which includes the
disciplining of individuals for various work rules or practices
established by the Employer, coupled with the absence of en-
trepreneurial activity, favors a finding that the owner-operators
are not independent contractors.
The cases cited by the Employer which are factually distin-
guishable from the facts of this case were distinguished by the
Board in C.C. Eastern Central Transport, 299 NLRB 5 (1990),
concerned the status of owner-operator drivers at a corporate
affiliate of the employer, who were found by the Board to be
independent contractors because they engaged in greater entre-
preneurial activity than those in the instant case. In that case,
unlike here, owner-operators were permitted to work for com-
petitor companies, and one of the three owner-operators at issue
regularly hauled for other firms, including competitors, and
regularly hired his own drivers to drive for other companies as
well as Central Transport. The Board found that the size and
scope of this latter person’s operations tended to indicate that
he was in the hauling business. By contrast, in the instant case,
there is no evidence that any of the owner-operators work for
other companies, or hire drivers to do so. Also, the drivers in
the instant case are subject to disciplinary action if they fail to
appear for loading as scheduled, if they fail to follow the route
sheet, or engage in physical altercations off the Employer’s
property. By contrast, the drivers in Central Transport were not
subject to any kind of disciplinary system. Instead, the em-
ployer there threatened to find another driver to work on a par-
ticular run, or to cancel the driver’s contract if displeased with
the driver’s work. The extent to which the Employer herein
disciplines the owner-operators goes beyond the threat to can-
cel their contract.
The Employer also cites North American Van Lines v. NLRB,
869 F.2d 596 (1989), in support of its position that the owner-
operators herein are independent contractors. I find that case
similarly distinguishable. There, unlike here, the owner-
operators had complete discretion to turn down assignments
and the incentive system employed by North American Van
Lines was designed to motivate drivers to accept assignments
by rewarding those who took undesirable loads and by disci-

80 The probative record evidence shows that all of the owner-
operators, except for Singh’s and Easy Save, use their trucks solely to
service the Employer. The aforementioned exceptions use their trucks
90-95 percent of time to service the Employer. The Petitioner does not
seek to represent Ish’s, Singh’s, and TDJ, or any of their drivers or
helpers.
plining those who did not have a sufficient number of loads.
The court found that the “drivers’ ability to decline particular
loads is manifest and the exercise of that ability leads to signifi-
cant independence in practice.” In this regard, the Employer
also points to Associated General Contractors, 290 NLRB 522
(1988), where the drivers were found to be independent con-
tractors as they were free to reject a job when offered, drive off
the job after they arrived, or leave abruptly in the middle of the
day if the job involved hauling of material other than the kind
which was represented to them. In contrast to the facts in the
cases cited by the Employer, the owner-operators herein are not
permitted to turn down assignments and the record is devoid of
any evidence that any owner-operator did so without penalty.
To the contrary, the record shows that the Employer’s owner-
operators’ frequently risk discipline for a variety of different
reasons previously discussed.
Despite the Employer’s contention that there is no difference
between the operations of the owner-drivers and that of Ish’s,
Singh’s, and TDJ, the record indicates otherwise. The Em-
ployer guarantees these owner-operators, and all of their driv-
ers, a regularly scheduled route, whereas the remaining owner-
operators do not have any such guarantee. In fact, when there
are no deliveries waiting for loading at the scheduled arrival
time, the owner-operator is forced to stay at the Employer’s
facility until there is a load available. Ish’s, Singh’s, and TDJ
also involve significantly larger sized operations. They own
large fleets of trucks, and employ a substantial number of em-
ployees, who clearly earn more than the drivers and helpers of
other owner-operators. As the employees of these three compa-
nies have different working conditions than the remaining
owner-operators, they do not share a community of interest
with other owner-operators, or their helpers. More importantly,
the Petitioner does not seek to represent these three owner-
operators or the employees employed by them. Based on the
foregoing, Ish’s, Singh’s, and TDJ, and all of the employees
employed by them, would not be included in any unit found
appropriate.
Having resolved the independent contractor issue, two other
issues remain unresolved: the supervisory status of the owner-
operators and the unit composition and scope among the peti-
tioned-for employees. As indicated above, I am of the opinion
that neither issue can be decided without re-opening the record
to provide the parties with the opportunity to present additional
evidence related thereto. If the Board disagrees with my find-
ings regarding the independent contractor issue, the record need
not be re-opened as the matter will be moot. In the absence of
requests for review of this decision, or should the Board affirm
this decision after review, I will issue an order reopening the
record specifying the evidence to be adduced at the hearing.
. . . .