Local 777, Democratic Union Organizing Committee v. National Labor Relations Board

603 F.2d 862, 195 U.S. App. D.C. 280

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 20, 1978
• Docket: Nos. 77-1512, 77-1673
• Status: Published

Opinions

Opinion for the court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

The Yellow Cab Company and the Checker Taxi Company (hereinafter “Yellow” and “Checker” and “the Companies”)¹ in Chicago, petition pursuant to Section 10(f) of the National Labor Relations Act (the “Act”), as amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C. § 151 et seq.) for review of a decision and order of the National Labor Relations Board (the “Board”)² requiring the Companies to recognize Local 777, Democratic Union Organizing Committee, Seafarers International Union of North America, AFL-CIO (the “Union”) as the representative of their lessee cab drivers.³ The Board, pursuant to section 10(e) of the Act, has filed a cross-application for enforcement and the Union has itself filed a petition for review insofar as the Board’s order failed to grant certain remedies.⁴

I. FACTS

A.) Background of the Leasing Decision

The dispute which precipitated this litigation arose as a result of the decision by Checker and Yellow to inaugurate a cab-leasing program as an alternative to. the commission arrangement they had used exclusively until 1975.⁵ Under the leasing system all the cab companies receive is a flat rate for the use of a cab and a “medallion.” Under the commission system the sole compensation to the Companies is a certain percentage (approximately 50%) of the total fares paid to the cab drivers.

In 1974, the Companies, suffering a decline in earnings, based in part on the increasing scarcity of full-time commission drivers, decided to embark on a leasing program.⁶

By December of 1974, the companies had developed detailed plans concerning the use of subsidiaries to begin leasing operations, and they sent the Internal Revenue Service a summary of their proposed operation requesting a ruling that the lessees were independent contractors and not employees for federal tax purposes. A favorable ruling was granted some three months later in March of 1975.

Immediately upon receipt of the favorable IRS ruling, Yellow applied to the Commissioner of Consumer Sales, Weights, and Measures for the transfer of 50 of its 2,166 licenses to its subsidiary, Bell Cabs, in order that leasing operations might begin. Meanwhile, the Union had begun a virulent campaign against the leasing plan, denouncing it as a “union-busting tactic” and threatening a retaliatory cab strike. In late May, the Commissioner announced that he would not approve the transfer of licenses to Bell. At this point, Yellow and Checker abandoned their plans to establish subsidiaries to run their leasing operation and decided instead to lease their cabs directly to the drivers.

Accordingly, they requested a supplemental ruling from the IRS that if they did so the lessee drivers would still not be considered employees for tax purposes. This ruling was eventually rendered in October 1975, sometime after actual leasing operations had begun.

After the companies decided to utilize direct leasing rather than forming subsidiaries, they informed the Union of their intentions and invited discussion before they arrived at a final decision. Two meetings were held between the parties, on June 5 and 17, 1975. At these meetings the Union manifested its categorical opposition to the idea of leasing⁷ and its “pattern of conduct prior to and during the June meetings indicates that it was resigned to the belief that negotiations would be futile, and that its opposition to leasing would have to be sustained in the arenas of political and legal combat.”⁸ The Union also considered the leasing program simply to be a modification of the current collective bargaining agreement and insisted that it be recognized as the representative of the lessee drivers, since it had been certified to represent all drivers employed by the Company. The Union left no doubt that, even were the companies willing to bargain about a modification of the leasing program, it would not do so until it was recognized as the representative of the lessee drivers.⁹

After the second meeting had ended in impasse, the Company declined the Union’s request to meet further, stating their belief that any future discussion would, given the Union’s attitude, be futile. Two weeks after the final meeting with the Union, on July 1, 1975, Checker and Yellow both commenced their leasing operations.

B.) The Leasing Programs

In the course of establishing its leasing operation the Companies transferred no driver from a commission to a lease system other than at his own request, and there is no evidence that they even solicited drivers to become lessees.¹⁰ The terms of the lease itself are straightforward. Leases are given on a day, night or twenty-four hour basis and the driver must post a bond to cover any damage that he may do to the car during its operation.¹¹ The terms of the lease agreement state that the Company is not required to renew or extend any lease and that it can terminate a lease and repossess the car involved for any violation of a government ordinance or regulation. It also provides explicitly that the driver is a lessee and not an employee, is not required to report his location, complete a trip sheet recording his rides and fares, account for his collections, or maintain his cab in any specific place. The lease contains a prohibition on subleasing and imposes a total mileage limit — calculated to ensure that subleasing does not take place — of 250 miles in any twenty-four hour period.

There is no question that even though the lease agreements by their explicit terms do not directly regulate the lessee-drivers, they do require compliance with the provisions of all applicable laws and regulations and lessees may be terminated for violation thereof. The drivers’ conduct is in fact fairly closely controlled by the local ordinances. The municipal regulations are multitudinous. They not only require the cab driver to pass a series of medical, geographical and driving tests, but also to run his meter properly, to present a neat appearance, and to use cab stands and the large ranks at O’Hare Airport in a certain prescribed manner. In sum, “the regulations cover numerous aspects of the drivers’ work which, in a different context, might normally be dealt with by the drivers' employer.” ¹² The fundamental difference between commission and lessee drivers, both of whom are subject to the same municipal regulations, is that the former work for the companies and are accountable to them for all sums collected as fares, from which they receive a stated portion as their earnings, while the latter lease their cabs, pay only a single flat rate and work for themselves.

The Union charged that the Companies were guilty of unfair labor practices by instituting the leasing program without consulting the Union and by refusing to recognize it as the bargaining representative for the lessee drivers. The Administrative Law Judge found that on the basis of recent NLRB decisions the lessees were not employees and that the Union itself had made bargaining impossible by adopting an adamant opposition to leasing and by refusing to negotiate unless it was first recognized as the bargaining representative for the lessee drivers. The Union was not entitled to assume this position unless it was so selected by the drivers in an election.¹³

The NLRB reversed the Administrative Law Judge on both these issues.¹⁴ The Board held that the cab companies exercised sufficient control over the lessee drivers that an employer/employee relationship existed ¹⁵ and that the Union’s refusal to bargain before it was recognized was immaterial in light of the Companies’ firm resolution to begin leasing operations regardless of the union’s position.¹⁶ We find ourselves in agreement with the Administrative Law Judge, and accordingly deny enforcement of the Board’s order insofar as it is inconsistent with that examiner’s conclusions.

II. STANDARD OF REVIEW

Before reaching an analysis of the merits of the petitions before us it is appropriate to point out why in this particular case little deference is due to the Board’s decision.¹⁷ The Board’s treatment throughout the years of the distinction between “employees” and “independent contractors” in the area of vehicular, and especially cab, leasing has been marked by an unusual degree of confusion and vacillation. The Act covers “employees” but not “independent contractors” by virtue of an express statutory provision: “The term ‘employee’ shall not include . . . any individual having the status of an independent contractor . . . ” 29 U.S.C. § 152(3). As discussed below,¹⁸ the criteria for distinguishing between these two types of workers is based on an “all of the circumstances” test. Given such a standard, one would expect a somewhat irregular, case-by-case approach to elaborating the controlling distinctions. The Board, however, has surpassed itself in clouding what need not have been an unusually confusing development of the law. Not only has the NLRB repeatedly reached diametrically opposite conclusions on the basis of virtually identical fact situations, compare Checker Cab Company and its Members, 141 NLRB 583, 588—590 (1963); 153 NLRB 651 (1965), aff’d 367 F.2d 692 (6th Cir. 1966); Blue Cab Company and Village Cab Company, 156 NLRB 489 (1965); Association of Independent Taxicab Operators, Inc., T/A Diamond Cab, 164 NLRB 859 (1967); John Himmer Transfer, Inc., 221 NLRB 52 (1975) and Local 814, I.B.T. (Santini Brothers), 223 NLRB 752 (1976); Greater Houston Transportation Company d/b/a Yellow Cab Company, 208 NLRB 1020 (1974); Barwood, Inc., 209 NLRB 19 (1974); Columbus Green Cabs, Inc., 214 NLRB 751 (1974), but moreover, it has done so in a series of opinions which typically offer no explanation for their result other than a recitation of the pertinent facts, e. g., Greater Houston Transportation Company and All other Employees d/b/a Yellow Cab Company, supra, 208 NLRB at 1022 (“In our opinion, these facts conclusively show [that the lessee drivers are independent contractors]”); Columbus Green Cabs, supra, 214 NLRB at 752 (“Based on the entire record, we conclude [that the lessee drivers are independent contractors]”).¹⁹

This process of ad hoc and inconsistent judgments — in which the only determinative elements seems to be the composition of the NLRB panel which happens to hear the case²⁰ — has descended in the instant case almost to the point of absurdity. Yellow and Checker Cabs not only took into account their own legal analysis of the most recent NLRB opinion on the subject, Columbus Green Cabs, supra, but also in formulating their leasing plan actually consulted with other cab companies whose leasing programs had been held by the Board to create independent contractors rather than employee drivers. Nevertheless, the Board has now determined, seeking to dismiss Columbus Green Cabs as an aberration,²¹ that the Companies’ drivers are in fact employees because “in regard to Columbus Green Cabs, Inc. suffice it to say that it and similar cases must be narrowly construed in order that employees not be denied the protection of the Act through an undue extension of independent contractor status.”²²

The vacillation of the NLRB in regard to the question of the status of cab leasing makes an attitude of judicial deference to its decision especially inappropriate. The Board cannot, despite its broad discretion, arbitrarily treat similar situations dis-similarly, e. g., Carnation Company v. NLRB, 429 F.2d 1130 (9th Cir. 1970); Burlington Truck Lines v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); NLRB v. WGOK, Inc., 384 F.2d 500 (5th Cir. 1967); Burinskas v. NLRB, 123 U.S. App.D.C. 143, 357 F.2d 822 (1966). When it both fails to distinguish contradictory decisions rendered in similar cases and also misapplies accepted principles of law, it errs doubly, NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). An agency in its deliberations is under an obligation to follow, distinguish, or overrule its own precedent, Brown v. NLRB, 462 F.2d 699 (9th Cir.), cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972); May Department Stores Co. v. NLRB, 454 F.2d 148 (9th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 116, 34 L.Ed.2d 144 (1972); Carnation Co. v. NLRB, supra. The NLRB has clearly failed to discharge this obligation here, and its actions indicate that lack of reasoned articulation and responsibility that vitiates the deference we would otherwise show to its very considerable expertise in strictly labor matters. NLRB v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307 (1972); Office and Professional Employees International Union, Local 425, AFL-CIO v. NLRB, 136 U.S.App.D.C. 12, 419 F.2d 314 (1969).

The issues here are not peculiarly confined to labor matters. While the Board does have a great many cases that involve this same question so do the state and federal courts generally and a number of other agencies. Basically the issue involved calls for applying general principles of the law of agency — the distinction between employees and independent contractors — to undisputed facts. On such an issue we must affirm the administrative decision only if it is supported by the record considered as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Brown v. NLRB, supra. Since the problem is essentially the interpretation of the common law — in which the courts themselves are expert, see Davis, Administrative Law § 30.09 (1957) — we need not accord the Board’s decision that special credence which we normally show²³ merely because it represents the agency’s considered judgment.

In sum, because of the Board’s history of vacillation and the basically legal nature of the question before us, it is inappropriate for this court to extend any great amount of deference to the Board’s disposition of the problem of whether or not Yellow and Checker’s lessee-drivers are employees or independent contractors.

III. THE STATUS OF THE LESSEE DRIVERS

A.) The Board’s Analysis

Under the right-of-control test which the NLRB and numerous courts have adopted for distinguishing between employees and independent contractors for purposes of the NLRB, the Board is instructed to apply the same general agency principles as would the courts in determining whether or not an individual is an employee or an independent contractor, Lodge 1858 v. Webb, 188 U.S.App.D.C. 233 at 242, 580 F.2d 496 at 505, n. 25 (1978); NLRB v. United Insurance Co., 390 U.S. 254, 256, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); see also Brown v. NLRB, supra; NLRB v. Lindsay Newspapers, Inc.,, 315 F.2d 709 (5th Cir. 1963); News Syndicate Co., Inc., 164 NLRB 422 (1967); Kheel Labor Law § 14.04[1]e (1978); Werne, The Law of Labor Relations 63 (1951).²⁴ Although this test essentially requires an “all of the circumstances” approach and no one factor is determinative, e. g., Frito-Lay, Inc. v. NLRB, 385 F.2d 180, 187 (7th Cir. 1967); NLRB v. A. S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964); News Syndicate Co., Inc., supra, the extent of the actual supervision exercised by a putative employer over the “means and manner” of the workers’ performance is the most important element to be considered in determining whether or not one is dealing with independent contractors or employees, Lodge 1858 v. Webb, supra, 188 U.S.App. D.C. 233, 241-245, 580 F.2d at 504-508; Carnation Co. v. NLRB, supra; Independent Owner-Operators, Inc. v. NLRB, 407 F.2d 1383, 1385 (9th Cir. 1969); NLRB v. A. S. Abell Co., supra, 327 F.2d at 3; New York University, 205 NLRB 4 (1973); 4 Kheel, Labor Law § 14.04[1]e. As the NLRB has stated,

Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished the relationship is one of employment; but where control is reserved only as to the final result the relationship is that of an independent contractor.

Checker Cab Co. and its Members, 141 NLRB 583, 587 (1963). In the case of cab drivers, the control over the “manner and means” of performance has specifically been limited for purposes of distinguishing between employees and independent contractors to that “control which the [cab company] exercised over the drivers during the period they were in possession of the cabs,” Party Cabs Co. v. United States, 172 F.2d 87, 92 (7th Cir.), cert. denied, 338 U.S. 818, 70 S.Ct. 62, 94 L.Ed. 496 (1949).

The NLRB in this case, much as in previous decisions in which it has found cab lessees to be employees, e. g., Checker Cab Ass’n, 185 NLRB 182 (1970); Buffalo Cab Co., 189 NLRB 410 (1971), identified some thirteen factors indicating that Checker exerted a control over its drivers inconsistent with its assertion that they should be considered independent contractors.²⁵ While acknowledging that the cab companies have substituted “economic controls” for the more usual forms of direct control typical of an employer/employee relationship, the Board echoed the dissent in several recent NLRB opinions stating that to hold cab-lessees to be independent contractors and to overlook the drivers’ lack of any meaningful independence from Checker or Yellow would be “to ignore economic realities.”²⁶

The Board, although it did not articulate any reason for doing so, laid particular emphasis on the facts that the drivers had no investment in their cabs; that the leases offered were of extremely short duration; that the Companies had complete discretion to refuse renewal of these leases; and that by requiring that their drivers comply with the host of applicable municipal regulations the Companies in fact were able to control a great deal of the drivers’ behavior while in the cab.²⁷ While conceding that the drivers when operating their cabs under lease were “on their own and are free to prospect for fares when and where they choose,”²⁸ the Board dismissed this freedom as it had in Checker Cab Ass’n, Inc., supra, as being “inherent in the nature of the work” rather than indicative of independent contractor status.²⁹ While acknowledging that a number of recent NLRB cases had found taxicab lessees to be independent contractors rather than employees, the Board remarked that it was significant that none of these cases had explicitly overruled previous Board authority to the contrary,³⁰ and asserted that it was important to limit the holding of the more recent cases narrowly to their specific facts.

We share the Board’s solicitude to avoid depriving employees of the benefits of the Act by unjustifiably expanding the concept of “independent contractor.” We feel, however, that the Board in distinguishing between employees and independent contractors has failed to do so in any reasonable or consistent pattern and moreover has tended to rely on a variety of factors some of which are of only marginal relevance while glossing over the fundamental question of whether or not the putative employer has the right to control the driver during the course of his operation of the cab in the manner and means in which he earns his income and whether the drivers can be most aptly described as working for themselves or for a wage they receive from companies.

“[T]he employer-employee relationship exists only where the person, for whom the work is done, has the right to control and direct the work, not only as to the result to be accomplished by the work, but also as to the details and means by which that result is accomplished . . . [I]t is the right and not the exercise of control which is the determining element.” Williams v. United States, 126 F.2d 129 (7th Cir.), cert. denied, 317 U.S. 655, 63 S.Ct. 52, 87 L.Ed. 527 (1942); Carnation Co. v. NLRB, supra, 429 F.2d at 1134. Control exercised over the “manner and means of performance,” NLRB v. A. S. Abell Co., supra, 327 F.2d at 3, not merely the economic controls which many corporations are able to exercise over independent contractors with whom they contract, Carnation Co. v. NLRB, supra, 429 F.2d at 1134, is the identifying characteristic of an employer/employee relationship.

The Restatement (Second) of Agency in listing factors relevant to distinguishing between employees and independent contractors refers to “the extent of control which, by the agreement, the master may exercise over the details of the work” Restatement (Second) of Agency § 220 at 485 (emphasis added).³¹ The reference to “details” indicates the extent to which the supervision typical in employment relationships regulates the actual activities undertaken by the employee in the course of his occupation rather than merely the general objective or context of this work. See Associate Independent Owners-Operators, Inc. v. NLRB, supra, 407 F.2d at 1385; National Freight, Inc., 146 NLRB 144 (1964). “The right to control the physical movements of the employee is the most important single element in most of these [employment as opposed to independent contracting] situations,” Seavey, Agency 142 (1964).

In the instant case, there is virtually no control imposed by Yellow or Checker over the lessee-drivers, independent of municipal regulations, which are themselves beyond the companies’ control. Certainly such company regulation as does exist does not so “overshadow considerations of the worker’s right to assert his own prerogatives” that an employment relationship can be said to exist, Kheel, supra at 14 — 139. Once a driver leases a cab, Checker and Yellow not only do not assert, but have no interest in asserting, control over his conduct, except to ensure that the cab is not sub-leased and the companies’ liability is not enlarged.

As for the Board’s argument that the extensive regulation of taxi-drivers by municipal ordinance de facto gives the companies control over the drivers’ conduct on the job, the NLRB’s position is not only inconsistent with precedent, but also evinces a misunderstanding of the effect of state regulation on the nature of the employer-employee relationship. The Administrative Law Judge pointed out that not only is extensive municipal regulation typical of the cab business in most metropolises,³² but also such regulation had been present in a number of cases in which the Board found that the drivers were independent contractors.³³ Furthermore, regardless of whether or not the Board has dealt with the presence of municipal regulations consistently, in terms of substantive principle the existence of legal restrictions on the performance of an occupation are relevant but not necessarily controlling on the question of whether or not a given individual is an employee or an independent contractor.

Government regulations constitute supervision not by the employer but by the state.³⁴ Thus, to the extent that the government regulation of a particular occupation is more extensive, the control by a putative employer becomes less extensive because the employer cannot evade the law either and in requiring compliance with the law he is not controlling the driver. It is the law that controls the driver. Thus requiring drivers to obey the law is no more control by the lessor than would be a routine insistence upon the lawfulness of the conduct of those persons with whom one does business. The effect of state regulation is a far cry from such restrictions as cause “the actor’s physical activities and his time [to be] surrendered to the control of the master,” Restatement (Second) of Agency § 220, comment at 487-488 (emphasis added). In the situation before us, whatever control is exercised is not the master’s but that of the local government. That the state has chosen to so regulate cab drivers that those who lease cabs can be reasonably confident of the conduct of the drivers while in their cabs does not mean that the lessors thereby “control” this conduct. That government regulation has made supervision or control by the lessor unnecessary is not the equivalent of the presence of actual supervision or control. Looking at the “realities” of the situation, as the NLRB explicitly insists one must,³⁵ leads to the conclusion that to the extent that municipal ordinances prescribe the conduct of lessee drivers they are regulated by law, not supervised or controlled by Checker or Yellow and in this context it is significant that the lessor does not control, or have the right to control, the lessee in the performance of those functions that are free of local regulation.

The Board itself has noted that incorporation of government regulations into a contract does not alone establish an employer/employee relationship, Local 814, IBT (Santini Bros.), supra; Portage Transfer Co., Inc., 204 NLRB 787 (1973); Reisch Trucking and Transportation Co., Inc., 204 NLRB 953 (1963), and this view has been adopted in some courts, e. g., Sida of Hawaii, Inc. v. NLRB, 512 F.2d 354 (9th Cir. 1975). Indeed the NLRB stated only recently that it is only where “pervasive control” by the putative employer “[exceeds] governmental regulations to a significant degree” that employee status will be found, Teamsters Local 814, supra, 223 NLRB at 753; see also NLRB v. Deaton, Inc., 502 F.2d 1221 (5th Cir. 1974), cert. denied, 422 U.S. 1047, 95 S.Ct. 2665, 45 L.Ed.2d 700 (1975); NLRB v. Cement Transport Inc., 490 F.2d 1024, 1027 (6th Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190, 194 (6th Cir. 1972). In this case, far from exerting “pervasive control” in excess of municipal regulations, Checker and Yellow have required only such minimal measures as are normally used to protect themselves “from civil or criminal liability resulting from the operation of the cabs.”³⁶

It appears that the cab companies’ chief method of controlling their drivers in the past has been through the use of a “trip sheet” on which the driver was required to record all his rides and on the basis of which his commission was calculated. The companies evidently are prepared to concede that if they still made use of trip sheets to force drivers to account for their income, their drivers should be considered employees.³⁷ Under the Companies’ leasing plan, however, trip sheets are not required as they would serve no purpose. The driver who leases a cab is not required to produce any revenue and the company receives the same amount of money irrespective of the amount the driver receives. The absence of a trip sheet or any other means of holding drivers accountable for their income is a significant indication of the lack of company control over the drivers.³⁸

The Union points out that the City of Chicago itself has recently promulgated a regulation requiring all cab-drivers to maintain a trip sheet whether or not they operate on a lease or commission basis.³⁹ This additional municipal regulation, however, no more changes the nature of the cab company/driver relationship than did any of the other regulations alluded to above. Although a lessee-driver now presumably must fill out much the same records as a commission cabbie, the company does not use these records to exert any financial control over the drivers. The formality is required by the ordinance, but this does not involve control by the company. It is not the simple fact of having to fill out a trip sheet, but the use made of that sheet by the employer which is relevant to the inquiry as to whether an individual is an employee or an independent contractor. In this case, the Companies make no use whatsoever of the trip sheets. They can be very useful in law enforcement and to that extent the city may legitimately require them. If they were required for other purposes the ordinance might be of doubtful validity.

As additional evidence of the control in fact exerted by Yellow and Checker over their drivers, the Board makes much of the short-term of the leases offered by the cab companies, the brevity of their duration creating the possibility of swift disciplinary action (by refusal to renew a lease) and keeping the drivers dependent on remaining in the good graces of the company. The length of the lease has been acknowledged as pertinent to the inquiry as to whether or not a lessee is sufficiently controlled by the lessor to be deemed an independent contractor, see, e. g., NLRB v. A. S. Abell, supra, 327 F.2d at 3, but this fact alone is not determinative of the issue, cf. Frito-Lay Inc. v. NLRB, supra, 385 F.2d at 187. Even in the trucking field — where the Board has appeared more reluctant to find independent contractors than among cab-lessees— the right of the putative employer to terminate a driver on short notice has not proved fatal to the latter being found to be an independent contractor, Local 814, I.B.T. (Santini Brothers, Inc.), supra. The shortness of the lease term thus could be no more than one of many factors relevant to categorizing the drivers as employees or independent contractors.

Moreover, conceptually the length of the lease term does not reflect on the nature of the lessor/lessee relationship during the term of the lease. Regardless of how short the leases under which Yellow and Checker drivers operate may be, the fact remains that once they have obtained a lease they do not — within limits designed to prevent subleasing ⁴⁰ and to ensure compliance with the applicable laws — have to account to the cab company for the operation of their cabs. Rather than working for and at the command of Yellow or Checker, the drivers essentially work for themselves and merely pay the companies for the service of providing the use of a cab and medallion. The companies for a price provide the instrumentalities of the drivers’ livelihoods, and also reserve the right to review at short intervals whether or not they desire to continue to supply a given driver. Having done so, however, they do not supervise or control or, indeed, have much interest in, how the driver goes about his business of transporting persons for hire. The length of the lease term in no way affects this fundamental characteristic of the relationship between Yellow and Checker and their drivers while the latter are operating leased cabs.

The Board also remarked upon,⁴¹ and the Restatement, Second, mentions,⁴² the importance of a lack of investment in the instrumentalities of one’s occupation as tending to indicate employee rather than independent contractor status. However much importance this factor should in general have in the determination of employee as opposed to independent contractor status, it does not support the Board’s position here. Although the Board drew support from “the drivers havpng] no investment in the instrumentalities of their work,” in fact, it appears that the Board has been deceived by the brevity of these agreements. To be sure, the amount paid for each day of leasing is not large — $22 per day, $16 per night and $31 for a twenty-four hour lease⁴³ but when aggregated over a years’ driving, it comprises a substantial investment on the part of the driver, amounting to somewhere in the neighborhood of $7,000.00.⁴⁴

The drivers do not acquire any equity interest in the cars they drive, but in this respect they are no different from a shopkeeper who rents commercial space. The leasehold interest of the drivers is as legitimate a property right as the title retained by Yellow and Checker and is equally the product of an investment by the drivers, see generally I American Law of Property Chapter 2 (Casner ed. 1952).

The extent to which the lessee-drivers do indeed have a legitimate investment in their cabs is accented by a comparison between this case and situations in which an undoubted employer/employee relationship exists. In the usual employment relationship, the employer not only owns the instrumentalities of labor, but also supplies them free of charge to the worker. Rather than leasing out tools so that the “employees” can pursue their chosen ends, the typical employer hires the employees to operate his machines in order to accomplish his chosen ends. The relationship of leasing drivers to their cabs is radically different from that of the ordinary employee using or operating his employer’s tools. The lessee uses the instruments which he leases to produce as much income for himself as possible; the latter merely collects a wage for operating instrumentalities to produce wealth for his employer.

B.) The Dispositive Factors

It would be unjustifiable to claim that the NLRB was incorrect in claiming that the cab-lessees in question did not have some of the characteristics of employees. These characteristics,⁴⁵ however, are of only minor importance compared with the crucial factors that go to determine whether or not cab companies have such control over their lessee-drivers that these drivers should be considered employees rather than independent contractors. When a driver pays a fixed rental, regardless of his earnings on a particular day, and when he retains all the fares he collects without having to account to the company in any way, there is a strong inference that the cab company involved does not exert control over “the means and manner” of his performance. This conclusion is justified because under such circumstances, the company simply would have no financial incentive to exert control over its drivers, other than such as is necessary to immunize the proprietor of a cab from liability which arises from its operation by virtue of the lessor’s ownership. However the driver conducts his occupation, the company has received its financial reward and the cab driver’s self interest in the success of his venture and the municipal regulations are some assurance that the cab service will continue to be attractive to customers.

Not only do cab companies have no financial incentive to impose controls on their lessee-drivers, but also it would be anomalous for them to try to do so. This is true because one of the motivations behind the institution of leasing was an attempt to enable the companies to be less involved in the routine difficulties of directing the daily operation of their cabs.⁴⁶ Moreover, to the extent that the companies’ assertion of control would likely be resented by potential drivers, to the extent that the company sought to assert such controls beyond those required to guard against liability, it would be acting against its own best interests. In sum, once financial accountability is no longer important, Yellow or Checker have little business justification for seeking to continue to hold their drivers accountable in other matters.

The surrender of the right to make the drivers account for their earning causes a fundamental change in the relationship between the companies and their drivers which will usually remove the latter from the category of “employees.” Even though the appearance of the leased cabs might be identical to that of commission cabs, such similarity of appearance has elsewhere been dismissed as unimportant, see Sida of Hawaii, Inc. v. United States, supra; Greater Houston Transportation Co. and all Other Employees d/b/a Yellow Cab Company, supra. Furthermore, the economic realities of the commission and leasing operations are quite different. The Court of Claims, in the context of another statute but in the course of applying the same common law principles explicitly embraced by the Act⁴⁷ has succinctly stated the nature of this difference:

There [under a leasing rather than a commission system], each taxicab driver rented a taxicab from the owner at a flat daily rental; the driver also defrayed the principal expense involved in the operation of the taxicab (i. e. the cost of the gasoline in both cases, and also the cost of the oil in Party Cab Co.); and the driver kept all the fares that he was able to earn through the operation of the taxicab. Thus, each driver was, in essence, a small businessman, either making a profit of sustaining a loss on his activities, depending on the relationship between the total amount of the fares collected, on the one hand, and the total amount of the expenses incurred, on the other hand.

Morish v. United States, 555 F.2d 794 at 800 (1977); cf. Penn Truck Painting and Lettering Corp., 215 NLRB 843 (1974).

When, as in the case of lessee cab drivers, an individual’s labor does not benefit his lessor beyond the sum received for leasing equipment, it is stretching the traditional concept of “employee” to categorize such individuals as servants, i. e., employees. At the very least such lessees do not fit into the usual understanding of employees, and there is clear evidence that Congress did not intend that an unusually expansive meaning should be given to the term “employee” for the purpose of the Act. In 1947, the National Labor Relations Act was amended with the specific intent of overturning two then recent Supreme Court cases, United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) and NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). These decisions had broadly construed “employee” as used in the act.⁴⁸ Given the clear intent of the legislative history, we are not permitted to agree that lessee-drivers who are practically uncontrolled by the cab companies in the manner and means that they operate their cabs should be considered as “employees” within the scope of the NLRA.⁴⁹

The Internal Revenue Service has ruled that if a cab lessee pays only a fixed rental for the cab and the company from which he leases does not require an accounting of its drivers’ receipts, that the lessee will be considered an independent contractor, I.R.S. Rev. Ruling 71-572, C.B. 1971-2 p. 347. The I.R.S. ruling was rendered under the Internal Revenue code rather than the NLRA, and the Board is not compelled to follow that decision, e. g., Lorenz Scheider Co., 209 NLRB No. 16 (1974). On the other hand, in issuing its ruling the service explicitly applied the same “usual ‘common law rules’ applicable in determining the employer/employee relationship” that govern this case, Rev. Ruling 71-572, C.B. 1971-2 p. 34. In doing so, the IRS reasoned that one should look mainly to the presence vel non of “controls” which are not economically beneficial to the lessee’s interests in seeking to determine whether or not a true lessor/lessee relationship exists, as controls which are mutually beneficial to both the cab company (by making its cabs easier to lease) and the driver (by making cab leasing more profitable) are not “repugnant” to the existence of a valid leasing arrangement, see Las Vegas Sun, Inc., 219 N.L.R.B. 889 (1975).

Pursuing this line of analysis, the IRS found that the most important difference between employee cab drivers and lessee cab drivers to be the fact that the latter paid a fixed rate for their car and that their company “has no right to obtain, for its own benefit, an accounting with respect to the fares collected for operation of the taxicabs by either the owners or the lessees.” Rev. Ruling 71-572, C.B. 1971-2 p. 34. This analysis mirrors our own, and we consider it to be a true statement of the law. There are two important elements here which determine that the lessee drivers are independent contractors and not employees. First, is the lack of control by the lessor in the manner and means in which the drivers carry on their business after they leave the garage. Second, is the fact that the compensation (rent) that the Company receives for the lease of the cab is not related to the amount of fares collected by the lessee-driv-

er. Therefore the drivers must be considered independent contractors and beyond the reach of the Act.

C.) The Possibility of Estoppel

Not only are the cab lessees in this case independent contractors for the reasons set forth above, but also, they are, as discussed above, in a virtually identical situation to those that the Board found to be independent contractors in Columbus Green Cabs, Inc., supra. This decision continued the movement begun in Greater Houston Transportation Co. and All Other Employees d/b/a Yellow Cab Company, supra and Barwood, Inc., supra, away from previous NLRB law, e. g., Checker Cab Ass’n, supra; Buffalo Cab Co., Inc., supra, which had held cab-lessees to be employees.

Had the Board continued the decisional pattern of earlier cases without embarking on the new course seen in the Bar-wood-Columbus Green Cabs line of cases,⁵⁰ its decision in this case would at least have had the merit of consistency. As it is, however, not only did the board indicate by the Barwood-Columbus Green Cabs authority that cab-lessees would be considered independent contractors, but moreover, Yellow and Checker — also as mentioned above — explicitly relied on these decisions in formulating their leasing plan.⁵¹ In such circumstances, an element of estoppel enters this particular case.

Although an agency may change its policy as it determines is in the public interest, e. g., NLRB v. Wentworth Institute, 515 F.2d 550 (1st Cir. 1974) when, as here, it announces no principled reason for such a reversal, its action is arbitrary and the courts should be quick to so declare. We have previously held that “an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored,” Greater Boston T. V. Corp. v. FCC, 143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852, cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); International Union v. NLRB, 148 U.S.App.D.C. 305, 317, 459 F.2d 1329, 1341 (1972) (“It is an elementary tenet of administrative law that an agency must either conform to its own precedents or explain its departure from them”); Public Service Commission v. FPC, 167 U.S.App.D.C. 100, 115, 511 F.2d 338, 353 (1975); Garrett v. FCC, 168 U.S. App.D.C. 266, 270, 513 F.2d 1056, 1060 (1975); see NLRB v. International Union of Operating Engineers, Local 925 AFL-CIO, 460 F.2d 589, 604 (5th Cir. 1972); NLRB v. Silver Bay Local Union, 498 F.2d 26 (9th Cir. 1974); see Atchison, T. & S. F. R. Co. v. Wichita Board of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). In this case, whether or not it would be proper actually to work an estoppel against the government, see generally, Davis Administrative Law in the Seventies 399-404 (1976), the vacillation of the Board’s approach compels its demand. We deny enforcement of the Board’s order because we are able to determine that the lessees in this case were independent contractors, but even were this not possible on the record before us, we would not grant enforcement without first having received from the Board an intelligible rationale for the distinctions they have drawn between employees and independent contractors.⁵²

IV. THE DECISION TO LEASE AS A MANDATORY SUBJECT OF BARGAINING

The NLRB concedes that if cab-lessees are not employees, Yellow and Checker have not committed an unfair labor practice in instituting their leasing program.⁵³ The Union, however, advances the alternative argument that the decision to commence leasing was a mandatory subject of bargaining in that it affected the commission drivers’ “wages, hours, and other terms and conditions of employment.” ⁵⁴ Thus, even if the companies were within their rights in not recognizing the Union as representative for the lessee-drivers, the Union contends that the companies nevertheless were guilty of an unfair labor practice by their unilateral creation of a leasing option.⁵⁵

The companies’ response to the Union’s alternative theory is two-fold. They assert that there was no proof that the mere creation of an opportunity for those who desire to lease cabs to do so affected the “conditions of employment” of the commission drivers. Moreover, even if such an effect was demonstrated, Yellow and Checker argue that the decision to begin a leasing operation was not an unfair practice because it constituted a basic change in their corporate operation and thus was within their managerial discretion.⁵⁶ They also raise the additional defense even if the leasing decision was a mandatory subject of bargaining, that the Union itself was the party that refused to bargain by refusing to negotiate for the Commission employees unless the companies first recognized the Union as the representative of the lessee-drivers.

The Administrative Law Judge found that there was no evidence that the institution of leasing affected the conditions of employment of the commission drivers, but we feel that we must defer to the Board’s expertise in this regard and concur in its rejection of this position. Despite the Union’s inability to point to any specific decline in the commission drivers working terms, the Board’s argument that any decision which virtually inevitably reduces the size — and hence the strength — of an employee-group’s bargaining unit affects its conditions of employment seems persuasive.⁵⁷

The fact that an employer’s decision affects conditions of employment does not necessarily imply, however, that it is a mandatory subject of bargaining. The law draws a distinction between those decisions “primarily about the conditions of employment” which must be made a subject of bargaining and those which, while affecting the employees’ working conditions, are entrepreneurial judgments “fundamental to the basic direction of a corporate enterprise” U.A.W. v. NLRB, 152 U.S.App.D.C. 274, 276, 470 F.2d 422, 424 (1972) or which substantially alter the way in which the business is conducted, Gorman, Labor Law 516, 521 (1976). The latter need not be submitted to bargaining.

At the same time that the law has been careful to insist on preserving the integrity of collective bargaining by mandating bargaining on certain issues, the courts have also been careful not to “significantly abridge [the management’s] freedom to manage its own affairs.” NLRB v. Adams Diary, 350 F.2d 108, 111 (8th Cir. 1965). “In each case the interests of the employees and the purpose of the National Labor Relations Act . . . must be carefully balanced against the right of an employer to run his business,” International Ladies Garment Workers Union v. NLRB, 150 U.S.App.D.C. 71, 78, 463 F.2d 907, 916 (1972), citing NLRB v. Royal Plating & Polishing Co., 350 F.2d 191, 195 (3d Cir. 1965); see Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 179, 92 S.Ct. 383, 30 L.Ed.2d 341 n. 19 (1971); Fibreboard Paper Products Co. v. NLRB, 379 U.S. 203, 218, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) (Stewart, J. concurring). Accordingly, major shifts in the capital investment or corporate strategy of a company are not mandatory bargaining subjects, even though they may well have profound effects on the “conditions of employment,” e. g., NLRB v. Drapery Mfg. Co., 425 F.2d 1026, 1028 (8th Cir. 1970); NLRB v. Transmarine Navigation Corp., 380 F.2d 933 (9th Cir. 1967). Indeed even when the change involved affects only a small, but not insubstantial portion of the employer’s business operation, it may still be considered sufficiently “fundamental” to be within entrepreneurial discretion if the decision amounts to a business judgment based on economic considerations rather than an action motivated by antiunion animus, NLRB v. Johnson, 368 F.2d 549 (9th Cir. 1966); NLRB v. American Mfg. Co., 351 F.2d 74 (5th Cir. 1965).

The leading case concerning what is and what is not to be considered so fundamental a change as to lie outside the scope of mandatory bargaining is Fibreboard Paper Products Co. v. NLRB, supra. The ambiguity of this opinion is reflected by the fact that both parties in this, as well as other cases, cite the decision in support of their mutually contradictory positions, e. g., UAW v. NLRB, supra, 152 U.S.App.D.C. at 276, 470 F.2d at 424. In Fibreboard, the Supreme Court decided that when a company replaced its current maintenance employees with those of an independent contractor by contracting out the work involved, it must bargain concerning its decision to do so. The court, emphasized that the “decision to contract out maintenance work did not alter the Company’s basic operation” and that the employees of the independent contractor were engaged “to do the same work under similar conditions of employment” as the employees whom they replaced, 379 U.S. at 213, 215, 85 S.Ct. at 405. Moreover, the opinion specifically mentioned that its holding “need not and does not encompass other forms of contracting out or ‘subcontracting’ which arise daily in our complex economy,” 379 U.S. at 215, 85 S.Ct. at 405.

The precise scope of the Fibreboard decision is unclear, see 5 Kheel, Labor Law 20-175, and the Courts of Appeals have applied a case-by-case approach to delineating what decisions are beyond the scope of compulsory bargaining, U.A.W. v. NLRB, supra, 152 U.S.App.D.C. at 276, 470 F.2d at 424. Given the ambiguity of Fibreboard and the “all of the circumstances” test the courts have adopted, it is difficult to say that any managerial decision short of absolute termination is obviously within the employer’s discretion, but the factual difference between what took place in Fibreboard and the conduct of Yellow and Checker strongly suggests that the result in Fibreboard is not appropriate here.

The Fibreboard company essentially only replaced more expensive union labor with more economical outside workers. By no stretch of the imagination could it be said that the company underwent any basic change in its operations. In the case of Yellow and Checker, on the other hand, the entire point of the companies’ going into leasing was significantly to alter what had become a low profit operation.

The institution of leasing in this case differs markedly from the usual case of subcontracting. The issue here might be much closer had Yellow and Checker merely subcontracted out their commission driving work to some chauffeur agency, e. g., U.A.W. v. NLRB, 127 U.S.App.D.C. 97, 381 F.2d 265, cert. denied, 389 U.S. 857, 88 S.Ct. 82, 19 L.Ed.2d 122 (1967); Winn-Dixie Stores, Inc. v. NLRB, 361 F.2d 512 (5th Cir. 1967), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1968); Torrington Construction Co., 198 NLRB 1158 (1972); Westinghouse Electric Corp., 150 NLRB 1574 (1965). However, to the contrary, the decision to lease did not merely change the identity of the persons employed, but rather the entire basis of the companies’ income. Although the Board places great emphasis on how similar lessee drivers and commission drivers appear to the members of the general public, the simple fact of the financial exigencies that led the cab companies to offer a leasing option indicate that their relationship to the company itself is — as discussed above — significantly different from that of commission drivers, and that the decision to initiate a leasing program constituted a fundamental corporate change, see N.L.R.B. v. Dixie Ohio Express Co., 409 F.2d 10 (6th Cir. 1969); compare U.A.W. v. N.L.R.B., supra ; Weltronic Co. v. N.L.R.B., 419 F.2d 1120 (6th Cir. 1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970).

By moving into cab leasing, Yellow and Checker ceased to be concerned directly with the profitability of the transportation of persons for hire and instead assumed a position analagous to that of a car or truck rental firm.⁵⁸ This alteration in the underlying nature of the business of the companies was unquestionably a change in the “basic direction of the corporate enterprise,” see 5 Kheel, Labor Law 20-101, and when such changes are motivated by economic considerations there is no duty to bargain concerning them. UAW v. NLRB, supra; NLRB v. Drapery Mfg. Co., supra, 425 F.2d at 1028.

The instant case is similar in many respects to the decision in NLRB v. Adams Dairy, Inc., supra. In that case the Eighth Circuit reaffirmed in the light of Fibreboard⁵⁹ its holding that a company’s decision to abandon its own distribution service and rely on independent contractors was not a mandatory subject of bargaining. The court stated:

In Adams Dairy, on the other hand, a basic Operational change did take place when the dairy decided to completely change its existing distribution system by selling its products to independent contractors. . . . The work done by the independent contractors, contrary to the situation in Fibreboard, was not primarily performed in the Adams plant for the benefit of the dairy. Adams was not directly concerned with whether or not any given distributor sustained a profit or loss, as would have been the situation with the driver-salesmen. The only major restrictions that Adams placed upon the independent distributors by contract related to sanitation matters and to the maintenance of high products standards and the maintenance of good will.

Contrary to the situation in Fibreboard, then, there is more involved in Adams Dairy than just the substitution of one set of employees for another. In Adams Dairy there is a change in basic operating procedure .

350 F.2d at 111.

Just as Adams Dairy no longer was concerned with the success of its independent distributors, Yellow and Checker are no longer concerned with the success of their lessees. In both instances a change was made in “basic operating procedure.”

As in other areas of labor law, e. g., American Ship Building v. NLRB, 380 U.S. 300, 308-309, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965) the factor of anti-union animus is germane to the determination of whether a proposed change in a company’s operations is a mandatory subject of bargaining, UAW v. NLRB, supra; NLRB v. Johnson, supra; NLRB v. American Mfg. Co., supra, Gorman, Labor Law 515. In this case there was no proof whatsoever that Yellow and Checker were led into leasing by antiunion animus. Indeed, the prevalence across the nation of newly inaugurated cab-leasing programs⁶⁰ is some indication that Yellow and Checker in adopting such a program were not motivated by hostility towards their particular union, but rather by recognition of the changing economics of operating taxi-fleets. The obviously compelling nature of the financial justifications for switching to a leasing operation forces a heavy burden of persuasion on anyone seeking to argue that other reasons were in fact at the root of the companies’ decision. Neither the Union nor the NLRB has made anything like the requisite showing on this point.

Just as there is no indication that the companies acted from any anti-union animus, there is no reason to suppose that their purpose was merely to replace one set of employees with another — an action which obviously would be a mandatory subject of bargaining, Fibreboard Paper Products Co. v. NLRB, supra; NLRB v. Kelly & Picerne, Inc., 298 F.2d 895 (1st Cir. 1962). On the contrary, the focus of their leasing program was not on personnel at all but on the financial structure of the business. The evidence was uncontroverted that the decision to begin leasing was motivated by economic reasons.⁶¹ Courts have traditionally been reluctant to require employers to bargain about such decisions, see, e. g., NLRB v. Neiderman, 334 F.2d 601, 604 (2d Cir. 1964); Jays Foods, Inc. v. NLRB, 292 F.2d 317 (7th Cir. 1961), cert. denied, 379 U.S. 969, 85 S.Ct. 663, 13 L.Ed.2d 561 (1965)⁶² even when one is dealing with the usual forms of subcontracting which often do little to alter the basic operation of an enterprise and rarely approach changing the basic nature of a corporation’s income to the extent that the institution of leasing affected Yellow and Checker’s, see NLRB v. Rives Co., 288 F.2d 511 (5th Cir. 1961); NLRB v. Lassing, 284 F.2d 781 (6th Cir. 1960), cert. denied, 366 U.S. 909, 81 S.Ct. 1085, 6 L.Ed.2d 235 (1961); 5 Kheel 20-70.

In light of the above analysis, it is highly probable we would decide that the decision to lease cabs was not a mandatory subject of bargaining. However, we cannot ignore the fact that determining which decisions affect “conditions of employment” and which of those that do constitute “fundamental corporate changes” is a procedure inevitably wrapped in some ambiguity, compare Adams Dairy, supra, and Ozark Trailers, Inc., 161 NLRB 561, 565-570 (1966); cf. I.L.G.W.U. v. NLRB, supra; United Electrical Radio and Machine Workers v. NLRB, 133 U.S.App.D.C. 115, 121, 409 F.2d 150,156 (D.C. Cir. 1969); 5 Kheel, Labor Law 20-175. Accordingly, we prefer to rest our decision on the grounds that even if the decision to institute leasing was a mandatory subject of bargaining, the companies’ unilateral action was not an unfair labor practice because the union itself made any negotiation impossible by imposing an improper condition as a prerequisite to bargaining.

The findings of the Administrative Law Judge, unchallenged by the Board, are sufficient testimony of the Union’s preclusion of bargaining:

As the lessees were nonemployees, the Union’s demand was a nonmandatory subject of bargaining, if not improper, and the Companies were warranted in breaking off their discussions at this point. Therefore it cannot be found that the Companies acted unlawfully by unilaterally instituting leasing. The Union was given notice of the Companies’ intention to go into leasing, and an opportunity to discuss the matter and bargain about its impact on the commission drivers, but the Union rejected the opportunity for such bargaining.!⁶³!

The Board argued that even though the Union’s demand to be recognized as the bargaining agent for the cab-lessees prevented bargaining, this action was “immaterial” in view of the Companies’ “preordained refusal to bargain about the decision to lease.”⁶⁴ What the Board failed to recognize was that the companies’ attitude was itself in large part provoked by the Union’s outspoken and unwavering rejection of cab leasing.

The Union did not directly respond to Yellow about the matter [leasing proposals] . . . Instead, the Union flexed its political muscles. At a meeting of the Chicago Federation of Labor on May 5, Union President Clark informed the press that the Union was opposed to leasing, accused the Companies of engaging in union-busting tactics by setting up Bell and Comet [subsidiaries through which Yellow and Checker initially had planned to lease a number of their cabs], and implied that the drivers might strike. In late May, Commissioner Carter informed Yellow that he would not approve transfer of the license; and, in fact, Yellow’s application has never been acted upon.!⁶⁵!

In the face of such overt hostility by the Union, there could be no reasonable expectation of real negotiation on the subject of leasing.⁶⁶ Indeed, set against this background, the fact that the companies informed the union that they were considering leasing and “invited discussion before their final decision” ⁶⁷ (emphasis added) evinces a greater commitment on their part to the collective bargaining process than was reflected by the Union.⁶⁸ When, in addition to its vitriolic attacks on leasing, the Union proceeded to refuse to engage in any negotiations — despite the companies’ explicit invitation to do so — until it was recognized as the bargaining agent for the lessee drivers, it is hard to see what options Yellow and Checker had left other than to initiate their leasing program. It would make a mockery of the labor law for this court to hold that the Company had committed an unfair labor practice by refusing to bargain when the Union gave a public demonstration of its intransigent opposition to a management proposal, attempted to thwart the realization of this proposal by political action, and conditioned any bargaining on an illegal recognition of it as collective bargaining representative. To uphold such conduct would be a distortion rather than a vindication of the Act, see NLRB v. Kelly Bros. Nurseries, Inc., 341 F.2d 433 (2d Cir. 1965); NLRB v. Tex-Tan, Inc., 318 F.2d 472 (5th Cir. 1963).⁶⁹

V. THE UNILATERAL IMPOSITION OF A CAB “TAKE-HOME” FEE

An additional point, having nothing to do with the leasing problem, concerns the companies’ unilateral imposition of a $10 per week charge to commission drivers for the privilege of taking their cabs home with them at night.

In January and February of 1975, some six months before the beginning of their leasing operations, the companies decided that their rule prohibiting overnight privileges was impossible to enforce and instead of prohibiting the practice altogether elected to impose a take-home charge. In doing so, it made no attempt to consult with the Union.

The Board did not question the findings that “the Union adamantly sought to condition negotiations upon its being recognized as the bargaining representative of the lessee drivers,” but rather held that this intransigence was “immaterial,” JA 17a.

eluded negotiation, together with its own premature abandonment of collective bargaining in order to pursue its adamant opposition to any leasing in other forms.

The Companies do not address in their briefs the question of whether or not failing to bargain concerning the imposition of a take-home charge was an unfair labor practice,⁷⁰ nor did Checker except to this finding before the Administrative Law Judge.⁷¹ Accordingly, they may be deemed either to have conceded that the Board’s determination that they committed an unfair labor practice was justified or to be barred on procedural grounds from here challenging this decision. Whether or not one or both of these arguments for dismissing the companies’ petition to review this aspect of the Board’s order has merit, it is clear they did indeed commit an unfair labor practice by not bargaining concerning take-home charges.

There appears to be some dispute as to whether or not it had been the established custom of the companies to allow drivers to take their cabs home at night,⁷² however, whatever the past practice may have been, the imposition of unprecedented take-home fees was a change from such practice, and thus was a mandatory bargaining subject because it affected the drivers’ conditions of employment, see United Electrical Radio and Machine Workers of America v. NLRB, 133 U.S.App.D.C. 115, 409 F.2d 150 (1969); NLRB v. Detroit Resilient Floor Decorators Local 2265, 317 F.2d 269, 270 (6th Cir. 1963) (“All emoluments of value or other benefits accruing to employees out of their relationship with their employer” are mandatory subjects of bargaining.).

Leasing fees for company houses have consistently been held to be a mandatory subject of bargaining, e. g., NLRB v. Lehigh Portland Cement Co., 205 F.2d 821 (4th Cir. 1953), enforcing 101 NLRB 529 (1952); NLRB v. Hart Cotton Mills, Inc., 190 F.2d 964 (4th Cir. 1951); American Smelting and Refining Co. v. NLRB, 406 F.2d 552 (9th Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1998, 23 L.Ed.2d 450 (1969), and leasing fees-for company cars seems only marginally different.⁷³ In fact, a change in policy governing the right to take a company car home at night has specifically been held to be a mandatory subject of bargaining, particularly where, as here, those granted the privilege are thereby enabled to earn additional income,⁷⁴ see Wil-Kil Pest Control Co. v. NLRB, 440 F.2d 371, 374-375 (7th Cir. 1971).

There can be no question that an employer violates section 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5)⁷⁵, by unilaterally changing the conditions of employment without giving the union an opportunity to negotiate concerning the change, NLRB v. Katz, 369 U.S. 739, 743, 747-748, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); NLRB v. C & C Plywood Corp., 385 U.S. 421, 424-425, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967), regardless of what the employer’s motives in instituting such a change may have been, NLRB v. Katz, supra, 369 U.S. at 742-743, 82 S.Ct. .⁷⁶ We see no basis for disputing the Board’s decision that the actions of Yellow and Checker in this respect amounted to unfair labor practices. Obviously, however, in requiring the Companies to bargain concerning the imposition of the take-home fees, we do not suggest that they cannot impose such charges, but only that they must negotiate in good faith with the Union before doing so,⁷⁷ see, e. g., NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); NLRB v. McLane Co., 405 F.2d 483 (5th Cir. 1968); NLRB v. American Compress Warehouse Division of Frost-Whited Co., 350 F.2d 365 (5th Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 558, 15 L.Ed.2d 472 (1966); Radiator Specialty Co. v. NLRB, 336 F.2d 495 (4th Cir. 1964).

VI. THE BOARD’S REMEDY

The final question presented here concerns the appropriateness of the remedy ordered by the Board. The Union submits that as the imposition of the take-home fee without bargaining was an unfair labor practice the Companies should reimburse all those who had paid that fee.⁷⁸ The Board refused to order such relief on the grounds that no showing had been made that the drivers who had paid the ten dollar fee had been injured by doing so.⁷⁹ Although there was testimony that some drivers were allowed to take their cabs home at night before the companies instituted the take-home charges,⁸⁰ most of them were prohibited from doing so.⁸¹ Thus, many of those who paid the $10 fee may in fact have been making a profit in doing so, depending on how many additional fares they could obtain while driving to and from their homes.⁸²

In such circumstances of ambiguous injury, it was clearly within the Board’s discretion to decline to order reimbursement. Not only is the Board directed by the Act to impose only remedial, not punitive relief, see Local 60, United Brotherhood of Carpenters v. NLRB, 365 U.S. 651, 655, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961); NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 97 L.Ed. 377 (1953), but also it is well settled that the Board’s discretion in the selection of remedies is exceedingly broad, see NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1961); NLRB v. Gissel Packing Co., 395 U.S. 575, 612, 89 S.Ct. 1918, 23 L.Ed.2d 547 n.32 (1969); Fibreboard Paper Products Co. v. NLRB, supra, 379 U.S. at 216, 85 S.Ct. 398; Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943)⁸³; United Steelworkers of America, AFL-CIO v. NLRB, 141 U.S.App.D.C. 178, 179, 436 F.2d 908, 909 (1970) cert. denied, 403 U.S. 905, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971); Amalgamated Clothing Workers v. NLRB, 125 U.S.App.D.C. 275, 281, 371 F.2d 740, 746 (1966). The Board’s selection of remedies will not be disturbed absent a clear showing of abuse, and given the doubt as to whether there has in fact been any injury to be remedied we cannot hold that the Board abused its authority in denying reimbursement of the take-home fees that had been paid.

The Union’s other challenge to the remedy imposed by the Board is vitiated by our finding that the companies did not commit an unfair labor practice in refusing to recognize the Union as representative of the lessee drivers, Yellow and Checker cannot be held liable to the union for those “dues and initiation fees which [the Union] certainly would have received”⁸⁴ had it been recognized as the representative of the lessee-drivers.

In accordance with the above analysis, we grant Yellow and Checker’s petition to review in respect to its challenges to the Board’s decision that the companies’ lessee-drivers are employees and not independent contractors and that Yellow and Checker committed an unfair labor practice by refusing to bargain concerning their decision to institute leasing. We deny the Union’s petition for review of that part of the Board’s order that refused its claim for “dues and initiation fees,” “take-home fees” and “interest.” We grant the NLRB’s cross-application for enforcement only insofar as the Board found that the unilateral imposition of a cab take-home fee violated section 8(a)(5) and (1) of the Act and ordered its rescission.

So ordered.

1 . Yellow and Checker Cab Companies are related corporate entities (Yellow is a wholly owned subsidiary, JA 37a). Together they provide three-fourths of the taxis in the Chicago area. The total number of cab licenses is fixed at 4,600 of which Yellow holds 2,166 and Checker 1,500. JA 3a. Both are employers engaged in commerce within the meaning of section 2(6) and (7) of the Act, JA 34a.

2 . 228 NLRB 1311 (1977).

3 . The Union was certified as the commission drivers’ collective bargaining representative in 1961, JA 3a; Checker Taxi Co. et al., 131 NLRB 611 (1961).

4 . The additional remedies requested by the Union were the reimbursement to the cab drivers of “take-home fees,” unlawfully collected from them, see section V and VI, infra, and to compensate the union for initiation fees and dues allegedly lost by the Companies’ refusal to recognize it as the bargaining agent for lessee drivers, see section VI, infra.

5 . Yellow has been engaged in business for over 60 years and Checker since 1951. JA 39a.

6 .The conditions in the cab industry were sufficiently poor that the Union president himself consented to expedited negotiations during the summer of 1974 so that a new collective bargaining agreement could be reached in time for the City Council to vote on a proposed cab fare increase. On August 21, 1974 the Council approved a 19 per cent fare increase rather than the requested 25 per cent increase. This rate increase did little to improve the financial condition of the companies, and did nothing to reduce the “irregular but perceptible decline” in the total number of shifts worked by drivers. The primary cause of this decline was the decrease in full-time drivers. JA 43a-44a (Findings of the Administrative Law Judge).

7 . For an example of the tone of these meetings, when the Company attorney asked the Union attorney if the Union had any proposals to discuss, the truculent response was: “Yes, I have. Get out of the leasing business.” JA 46a (Findings of the Administrative Law Judge).

8 . JA 46a (Findings of the Administrative Law Judge).

9 . JA 5a, 47a (Findings of both the Board and the Administrative Law Judge).

10 .Despite an absence of solicitation, leasing was obviously much more attractive to the drivers than commission work. As of November, 1977, only two-and-a-half years after leasing began some 72% of the Yellow and Checker drivers were lessees rather than commission operators, Brief for Union as Intervenors in No. 77-1673 at 33. Perhaps the popularity of leasing was due to the lack of control that the drivers felt they were under from the Company when they leased as opposed to driving for a commission. A lessee witness testified, concerning leasing: “No trip sheet, nothing. No problem. It is free and I really like that. I love it. I am free” (Tr. 1183).

11 . Checker requires a $100 bond; Yellow requires a $250 bond, JA 49a.

12 . JA 38a (Findings of the Administrative Law Judge).

13 . JA 60a, 62a.

14 . JA 2a-3a, 12a-17a.

15 . JA lla-17a.

16 . JA 17a.

17 . Ordinarily, we show considerable deference to the judgment of the NLRB, e. g., IBT, Local 782 v. NLRB, 126 U.S.App.D.C. 1, 373 F.2d 661, cert. denied sub nom. Blue Cab Co. v. NLRB, 389 U.S. 837, 88 S.Ct. 54, 19 L.Ed.2d 100 (1967); NLRB v. Circle Bindery, Inc., 536 F.2d 447 (1st Cir. 1976); Frattaroli v. NLRB, 526 F.2d 1189 (1st Cir. 1975). However, where the issues involved are purely legal or otherwise outside the Board’s particular expertise, the Board’s interpretation is entitled to no particular deference, Retail Clerks International Ass’n Local 455 AFL-CIO v. NLRB, 166 U.S.App.D.C. 422, 510 F.2d 802 (1975) (contract interpretation). See NLRB v. Universal Services, Inc., 467 F.2d 579, 584 n. 5 (9th Cir. 1972); Jaffe, Judicial Control of Administrative Action 549-550 (1965).

18 . See pages---of 195 U.S.App.D.C., pages 872-878 of 603 F.2d.

19 . The Board has provided so little rationale for its decisions that the Administrative Law Judge was lead to conclude that the only way to reconcile the Board precedents relating to trucks, e. g., John Himmer Transfer, Inc., 221 NLRB No. 52 (1975); Penn Versatile Van Division of Penn Truck Painting and Lettering Corp., 215 NLRB 843 (1974); Dixie Transport Company, 218 NLRB 1243 (1975), and that relating to cabs in the same leasing context was simply to conclude “that there is one line of authority for trucks and another for taxis,” JA 60a.

20 . For example, Members Miller, Kennedy, and Penello have uniformly voted to find that driver-lessees are independent contractors, e. g., Barwood, Inc., 209 NLRB 19 (1974); Greater Houston Transportation Company d/b/a Yellow Cab Company, 208 NLRB 1020 (1974); Columbus Green Cabs, Inc., 214 NLRB 751 (1974), while Members Fanning and Jenkins have uniformly voted to find vehicular lessees to be employees, see cases cited supra and John Himmer Transfer, Inc., 221 NLRB 284 (1975); Association of Independent Taxicab Operators, Inc., T/A Diamond Cab, 164 NLRB 859 (1967). When the present case came before the Board, the panel which heard the case consisted of four members. Predictably, Members Fanning and Jenkins voted to find vehicular lessees to be employees Coined by Chairman Murphy, a February 18, 1975 appointment). Member Penello dissented. Administrative agencies cannot function in that vacillating manner.

21 . JA 14a-15a. The General Counsel to the NLRB has referred rather euphemistically to the “ebb and flow” of the Board’s decisions in this area, JA 59a (Findings of the Administrative Law Judge) see note 19, supra. The Board will have to indulge in less flow.

22 . JA 15a (decision of the NLRB).

Subsequent to oral argument and while this opinion was circulating counsel for the NLRB and the Union directed our attention to the NLRB’s decision of August 25, 1978 in Columbus Green Cabs, Inc., et a I., 237 NLRB No. 176, which involved the same drivers whose status was adjudicated four years earlier in the first Columbus Green Cabs case, supra. The cab drivers that were held to be independent contractors in 1974 are now held by the Board to be employees. In its recent opinion the Board states:

Although the Board found in the 1974 Decision involving the Employer that the drivers therein were independent contractors, our findings as to the employee status of the drivers in the instant case are based on an expanded current record which contains a number of factors not discussed in our earlier Decision, as considered in the light of recent taxicab cases. . . . [T]he current record contains evidence concerning the relationship between the drivers and the taxicab Companies which is similar to that presented in recent taxicab cases. Accordingly, we do not deem ourselves bound by the earlier Decision which was based on a more limited record. [Footnotes omitted.]

237 NLRB No. 176 at 9-10.

The Board’s flip-flop in Columbus Green Cabs highlights the erratic nature of its opinions which decide whether cab drivers are employees or independent contractors. The shift in the second Green Cabs case was predictable since the new panel included both Fanning and Jenkins. See note 20, supra. In the 1974 decision Chairman Fanning had dissented.

Moreover, the 1978 opinion gives only perfunctory attention to the 1974 decision that was being reversed. The Board cited two factors in the “expanded current record” that distinguish the situation in 1974 from that in 1978:

[1] the employer’s unilateral revision of the lease, [2] its arrangement with the railroads, its detailed contracts with the city of Columbus concerning school trips and the airport concession, and the many mandatory provisions and specific directions set forth in these contracts as well as in the manual.

237 NLRB No. 176 at 10. The first factor was mentioned by Chairman Fanning in his 1974 dissent and therefore cannot explain the different result in 1978. The second factor involves some elements of control which might be probative of employee status, but it has no factual counterpart in this case. Thus the result in Columbus Green Cabs II is not inconsistent with the result we reach here.

1. Unilateral revision of the lease. The NLRB states in Green Cabs II that “the provisions of the lease are prepared by the Employer which has unilaterally and without negotiation with the drivers changed the rental and mileage fees.” 237 NLRB No. 176 at 8. This same point had already been discussed in the opinion in the instant case. See note 25(5), infra. The employer’s ability to unilaterally determine lease terms is evidence of superior bargaining power. But as we indicate, infra at-of 195 U.S.App.D.C., at 873 of 603 F.2d, the question is not whether the cab company has economic power; rather it is whether the company has used its power to establish contract terms controlling the manner and means in which the lessees go about their cab business. In short, the ability to establish lease terms unilaterally is not in itself enough to establish the existence of an employer-employee relationship. The critical question is whether the terms of the lease vest excessive control in the lessor.

In addition, the company’s economic bargaining power is not a basis for distinguishing the 1974 Columbus Green Cabs decision from the 1978 decision. In Member (now Chairman) Fanning’s dissent from the 1974 decision, he pointed out that

the Employer!] retain[s] the ultimate power to refuse to renew, or to rescind, a lease at any time for any cause. ... I am not persuaded by the Employer’s contention that the lease fee can be negotiated when the record shows only that the Employer occasionally accepts less than the usual fee when a driver gets sick on the job.

214 NLRB 751, 753-4. Thus, the ability of the company to unilaterally determine a particular term in the lease provisions is not the kind of new fact that warrants the NLRB’s conclusion that its earlier decision is not a binding precedent in this case.

2. Contracts. According to the 1978 opinion, Columbus Green Cabs agreed to provide regular service at the railroad and the airport and contracted with the school board for the transportation of handicapped students to school. 237 NLRB No. 176 at 6-7. The extent to which drivers who participate in these programs must follow “special instructions” governing the manner in which they perform their job (Id.) is relevant to whether those drivers are independent contractors or employees. As we indicated, supra at 291 of 195 U.S.App. D.C., at 873 of 603 F.2d, the critical question is the company’s right to control the manner in which the driver does his job.

However, there are no “special instructions” in the instant case. On the contrary, the Companies exercise virtually no control over the drivers. While the drivers are required to comply with applicable municipal regulations, this would be the case even though it were not so provided in the leases. See 293-294 of 195 U.S.App.D.C., at 875-876 of 603 F.2d, infra. The result in the 1978 Columbus Green Cabs case (to the extent that it depends on the existence of “special instructions” that the drivers must follow), then, does not conflict with the result we reach.

Another point stressed in the 1978 Columbus Green Cabs opinion is that calls from dispatchers account for “75 to 80 percent of [each driver’s] trips.” 237 NLRB No. 176 at 5. This fact is not evidence of the company’s right to control the drivers, for as the Board admits, “drivers are not required to observe special hours or restrict themselves to the calls from dispatchers.” Id. Moreover, it is no basis for reversing the 1974 result. Chairman Fanning made exactly the same point in his 1974 dissent:

[T]hese drivers rely heavily on calls from the dispatch service, which furnishes the best chance to make money, as Employer admits; drivers keep their radios on and use the cab stands. To say that a driver has the “discretion” to cut himself off from what amounts to 70 percent of the business available to him is simply not realistic.

214 NLRB at 754.

In summary, the facts in the 1978 Columbus Green Cabs case are distinguishable from the facts here. More important, the cavalier way in which the Board determined that it was not bound by its 1974 decision is further evidence of the unsatisfactory manner in which it causes its decisions in this area to “flow.” See note 21, supra. With respect to this 1978 decision it should also be noted that it relies on some 19 enumerated items as indicating control by the lessor but a great many of said enumerated items are not probative of control over the manner and means with which the lessee-cab drivers carry out their trade and business. In this respect and elsewhere in the opinion, conclusory assertions are relied upon in place of reasoned analysis and specific discussion. Finally it appears that the three member panel in Columbus Green Cabs (1978) (Fanning, Jenkins, Murphy) is in effect overruling the underlying holding in Greater Houston Transportation Company, 208 NLRB No. 121 (1974), which was decided by the entire membership of the National Labor Relations Board in 1974 with Members Fanning and Jenkins dissenting. In its current opinion the panel repeats many of the arguments that were rejected in Greater Houston, as we reject them here. We recognize that no two cases, particularly in this area, are precisely the same, but the repeated reiteration of factual arguments that have been rejected by the entire Board as not being probative of control should not be constantly revived as a basis for issuing what is essentially a different decision on essentially the same facts. Since the facts are substantially the same, the Agency’s prior application of the statute has not been shown to be wrong and there has not been any change in the governing statute, the result should be the same. The matter is controlled by a specific statutory provision which plainly provides that “independent contractors” are not subject to the Act and which calls for the application of common law principles. The specificity of this statute, and its legislative history, deprives the Board of the same leeway to change as exists in some other areas of its jurisdiction. The Board can change its mind but it cannot change the statute. In this connection it should also be recognized, while decisions of other agencies are not controlling, that in this case and many others the Internal Revenue Service has decided that the lessee-drivers are not employees under the employment taxing acts which does not specifically exempt independent contractors. Cf. 26 U.S.C. § 3121(d).

23 . See note 17, supra.

24 . The Board recently restated the “right-of-control test” in Twin City Freight, Inc., S & B. Nelson, Inc., 221 NLRB 1219, 1220 (1975):

The Board applies the common law right-of-control test in determining whether individuals are employees or independent contractors. [Citing N.L.R.B. v. United Insurance Co. of America, 390 U.S. 254 [, 88 S.Ct. 988, 19 L.Ed.2d 1083] (1968).] Under this test, an employer-employee relationship exists when the employer reserves not only the right to control the result to be achieved, but also the means to be used in attaining the result. On the other hand, where the employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists. It is clear that application of this test is not a “perfunctory exercise.” In order to determine the nature of the relationship, the Board analyzes the facts presented in the particular case, balances them, and arrives at a result [Citation omitted.]

25 . The thirteen factors to which the Board called attention were the following:

(1) the lessee drivers have no investment in the instrumentalities of their work; (2) the lessee cabs display the Companies’ insignia and all goodwill arising from operation of the cabs inures to the Companies’ benefit; (3) the work performed by the lessee drivers is an essential part of the Companies’ normal operations; (4) the lease term is short and is renewable only at the Companies’ discretion; (5) the terms of the lease are unilaterally set by the Companies; (6) the lessee driver is required by the Companies, upon penalty of forfeiture of the lease, to obey a pervasive scheme of municipal regulations; (7) no subleasing is permitted; (8) the Companies discipline lessee drivers through the threat of city action; (9) the lessee drivers are, in the manner of regular employees, subject to reference checks at the time of application for a lease; (10) the Companies unilaterally determine whether a lessee driver is at fault in the event of an accident; (11) the Companies have imposed a 250-mile limitation on miles driven during the term of the lease; (12) the Companies have imposed dress restrictions on the lessee drivers; and (13) the Companies, at least arguably, provide workmen’s compensation insurance for the lessee drivers.

JA 12a-13a.

26 . JA 13a (“only by ignoring business realities can it be said that these drivers exercise any real ‘independence’ ”); compare Member Fanning dissenting in Columbus Green Cabs, Inc., supra, 214 NLRB at 753 (“In my view, the majority is following its new direction as seen in Greater Houston Transportation, ignoring significant evidence and giving no credence to the business realities involved”) (footnote omitted).

27 . JA 13a, 15a-16a.

28 . JA 14a.

29 . Id.

30 . JA 15a.

31 . Restatement (Second) of Agency § 220 (1958) provides:

§ 220. Definition of Servant (1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

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

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

(b) whether or not the one employed is engaged in a distinct occupation or business;

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

(d) the skill required in the particular occupation;

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

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

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

(h) whether or not the work is a part of the regular business of the employer;

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

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

32 . JA 61a.

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34 . The fact that independent drivers, who obviously are not “employees” must also follow the municipal regulations or risk suspension of their chauffeur’s privileges is some indication that obedience to these rules — even if compelled by one’s putative employer — is not an identifying characteristic of an “employee” as opposed to an “independent contractor.”

35 . See note 24, supra.

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37 . See Companies’ Brief at 7; JA 41a (“The trip sheet is, as Checker President Feldman testified, the Companies’ principal means of controlling the driver in order to determine whether he is doing his job properly.”) (footnote omitted).

38 . The Companies also provide no fringe benefits whatsoever for their lessee drivers, JA 48a (findings of the Administrative Law Judge). The Companies do carry liability insurance on each cab, but this coverage is clearly designed to insulate them from the liability imposed upon them as the owner of the cabs, not as a . hidden fringe benefit to their drivers, JA 53a (findings of the Administrative Law Judge). The Companies also did not consider their lessees to be covered by workmen’s compensation. Two recent decisions of the Illinois Supreme Court, Morgan Cab Co. v. Industrial Commission, 60 Ill.2d 92, 324 N.E.2d 425 (1975) and Penny Cab Co. v. Industrial Commission, 60 Ill.2d 217, 326 N.E.2d 393 (1975) have held that section 28-12 of the Chicago Municipal Code requiring that the owner of a cab “carry public liability and property damage and workmen’s compensation insurance for his employees" (emphasis added) imposes on the proprietor of a cab and the driver — despite the possibility that the driver might be an independent contractor — an employer-employee relationship for purposes of workmen's compensation coverage. Both these cases were explicit that their holdings were limited to the interpretation of the term “employee” for the purposes of workmen’s compensation law, and thus clearly are not dispositive in the context of the National Labor Relations Act, particularly in light of the 1947 amendments to that legislation, see note 47, infra.

That the Chicago code specifically requires Companies to pay for workmen’s compensation for their lessee drivers does nothing to affect those factors which are considered fundamental to determining independent contract status under the National Labor Relations Act, see Section 111b, infra. Moreover, the municipal regulation requiring the proprietor of a cab to pay workmen’s compensation for the driver is simply another instance of the external intrusion of government regulations, not affecting the basic relationship established consensually between the Companies and their drivers. We note that despite Section 28-12’s requirement that the proprietor pay workmen’s compensation, Section 28-9 provides that the relationship between the licensee and the driver of a cab may be such as is mutually agreed upon by contract. See generally JA 37a-38a (findings of the Administrative Law Judge).

39 . JA 38a-39a n.7 (findings of the Administrative Law Judge). The regulation was promulgated subsequent to the hearing by the Administrative Law Judge.

40 . In some instances prohibiting subleasing has been considered significant in the determination of employee status, NLRB v. Pony Trucking, Inc., 486 F.2d 1039 (6th Cir. 1973), see also Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190 (6th Cir. 1972).

41 . JA 12a, 13a.

42 . Restatement (Second) of Agency § ' 220, comment k at pages 490-91 (“The ownership of the instrumentalities and tools used in the work is of importance. The fact that a worker supplies his own tools is some evidence that he is not a servant. On the other hand, if the worker is using his employer’s tools or instrumentalities, especially if they are of substantial value, it is normally understood that he will follow the directions of the owner in their use, and this indicates that the owner is a master. This fact, is, however, only of evidential value.”)

43 . JA 49a (findings of the Administrative Law Judge).

44 . $7,000 (actually $6886.00) is a minimum figure for the yearly investment in cab leases, as for this amount a driver would only obtain the use of a cab for some 313 days at $22.00 a day.

45 . For example, that the terms of the lease are unilaterally set by the companies; that the Companies prohibit sub-leasing; that all goodwill arising from the operation of the cabs inures to the Companies’ benefit.

46 . JA 43a~44a (findings of the Administrative Law Judge).

47 . It is clear that when Congress amended the Act in 1947, one of its specific purposes was to overturn two then recent Supreme Court decisions, United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947); NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944), which had given an unusually expansive meaning to the term “employees” in light of what it interpreted to be the policies underlying the Act. Thereafter, Congress explicitly exempted “independent contractors” from the coverage of the Act in order to exempt independent contractors from coverage because they are not employees. “[T]he obvious purpose of this amendment was to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act.” NLRB v. United Insurance Company of America, 390 U.S. 254, 256, 88 S.Ct. 988, 989-990, 19 L.Ed.2d 1083 (1968); 93 Cong.Rec. 6441-6442 (remarks of Senator Taft). The House Report pointed out that: “ ‘Employees’ work for wages or salaries under direct supervision” and “Independent contractors . depend for their income not upon wages but . upon profits.” It then stated that: “To correct what the Board has done [in expanding the definition of the term ‘employee’ beyond anything that it ever had included before] and what the Supreme Court, putting misplaced reliance upon the Board’s [theoretic] expertness, has approved, the bill [H.R. 3020] excludes ‘independent contractors’ from the definition of ‘employee.’ ’’ House Report No. 245, on H.R. 3020, 80th Cong., p. 18, April 11, 1947; Legislative History of the Labor Management Relations Act, 1947, vol. 1, p. 309.

48 . See note 47, supra.

49 . There is no question that under the Act as amended in 1947 independent contractors are not included, e. g., Carpet, Linoleum, Soñ Tile and Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO v. NLRB, 151 U.S.App. D.C. 338, 467 F.2d 392 (1972).

50 . The Administrative Law Judge commented: “If the Board’s decisions ended at volume 207,1 would have little alternative but to find that the lessees are employees. In a line of decisions prior to that point, the Board found lessees of taxicabs to be employees within the meaning of the Act. . However, in Greater Houston Transportation Company d/b/a Yellow Cab Company, 208 NLRB 1020 (1974), as was pointed out by the dissenting members, the Board struck out in a new direction in this area.”) JA 58a-59a.

51 . The fact that the same decisional inconsistency that was the basis for our reluctance to show any particular deference to the Board’s decision in this case, see Section II, supra, is also the basis for the equitable argument made here, illustrates the axiom of administrative law that agencies are only entitled to deference when they act according to the rule of law, in an equitable and non-arbitrary fashion.

Concerning Yellow and Checker’s efforts to model their leasing program after those that had been held to create independent contractor rather than employee drivers, the intent of the parties is not completely dispositive of the question of whether a relationship is one of employment or of independent contracting, but intent is pertinent in that it may reflect on the presence vel non of control, see Lorenz Schneider Co., Inc. v. NLRB, 517 F.2d 445 (2d Cir. 1975); NLRB v. Colonial Press, Inc., 509 F.2d 850 (8th Cir.), cert. denied sub nom. Local 203, Graphic Arts International Union, AFL-CIO v. Colonial Press, Inc., 423 U.S. 833, 96 S.Ct. 56, 46 L.Ed.2d 51 (1975).

As demonstration of how successful Checker and Yellow had been in copying the leasing program instituted in Columbus Green Cabs, Inc., consider the following comments by Member Penello, dissenting from the decision of the Board in this case:

The majority opinion attempts to distinguish this case from Columbus Green Cabs despite the fact that they are virtually indistinguishable. The following similarities exist in both cases: the Companies provide the taxicab, maintenance thereon, as well as licenses, fees, taxes, and insurance; the Companies make no deductions for Federal, State, or local taxes; the lessee driver provides his own gas; the lease agreement expressly disavows the creation of an employer-employee relationship; there are no prescribed or required hours of work for the drivers; the drivers are not required to report their location; the lessees are required to inspect their vehicles for mechanical defects at the beginning of the lease term; the lessee is not permitted to sublease to any other person; the Companies will not refuse to execute a lease because of a customer complaint unless the complaint relates to unsafe driving; and the lessee agrees to operate the taxicab in conformity with all applicable laws.

Moreover, most of the factors upon which the majority relies in distinguishing this case from Columbus Green Cabs are not, in my opinion, indicative of an employer-employee relationship. For example, the majority cites the 250-mile-per-lease limit on drivers and the requirement that drivers have all repairs on cabs performed at the Companies’ garages. These factors, however, more likely represent the Companies’ efforts to preserve the life of the taxicabs they own and keep down the cost of repairs, rather than their attempts to restrict drivers’ earnings or present subleasing, as asserted in the majority opinion. Moreover, by offering day and night leases, the Companies do not, as the majority contends, prescribe the drivers, hours of work. For, as their opinion also indicates, the Companies offer a 24-hour lease as well, as was the case in Columbus Green Cabs.

Furthermore, the majority cites the existence of a provision in the lease making compliance with the pervasive scheme of municipal regulations a condition thereof, However, this provision was also present in Columbus Green Cabs. The majority asserts that this provision allows the Companies to exercise effective control over all matters covered by the regulations. But, the actual effect is just the opposite — it constitutes an abdication by the Companies of control over such matters in favor of the municipal authorities.

In sum the facts in the instant case are virtually indistinguishable from Columbus Green Cabs .

JA 26a-27a (footnotes omitted).

52 .In view of our determination that the lessee drivers are not employees and thus clearly not part of the same bargaining unit as the commission drivers, it is not necessary for us, as it was not necessary for the Administrative Law Judge, to pass on the Companies’ alternative argument that as there are now three times as many lessee as commission drivers it would be improper to “accrete” the larger unit unto the smaller one, see JA 61a n. 18 (findings of the Administrative Law Judge).

53 . JA 34a (“Indeed it is the position of the General Counsel that this [the question of whether or not the lessee-drivers were independent contractors] is the ‘crux’ and only substantial issue in the case, and he concedes that if the lessees are independent contractors, his complaint should be dismissed.”). In their brief before this Court, the NLRB suggests only that the Companies committed an unfair labor practice in not providing information to the unions relevant to how the decision to institute leasing would affect the commission drivers. It nowhere suggests that bargaining had to take place concerning the inauguration of leasing per se, granting that the lessee-drivers were not employees. See Brief for the NLRB 50-53.

54 . 29 U.S.C. § 158(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.” 29 U.S.C. § 159(a) in turn provides that collective bargaining representatives “shall be the exclusive representatives of all the employees in [the bargaining unit] for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . .

55 . Brief for the Union as Intervenor in No. 77-1673 at 28-33.

56 . Brief for the Companies at 16-21.

57 . The Administrative Law Judge found that “the Union failed to prove that leasing has had any adverse impact on the commission drivers, unless the transfer of cabs to the lease garages can be deemed, per se, to have such effect. The Union failed to prove that as a result of leasing, commission drivers have suffered diminution of income, assignment to inferior cabs, inability to obtain safe and operable cabs, or terminations or discharges for low bookings or high mileage, or that applicants for commission driving have been turned down for lack of a cab. JA 62a. The Board’s response to this argument appears at JA 17a.

58 . The Administrative Law Judge commented that he did not see as meaningful the cab companies’ proposed analogy between their leasing operations and rental car businesses because the latter exerted much less control over their renters than the former did over their drivers and, in addition, the rental agencies uniformly prohibited the use of their autos as taxicabs. JA 50a. The differences pointed out by the Administrative Law Judge unquestionably do exist; however, the essential basis of the analogy is not the use or degree of control exerted or the types of car usage prohibited by lessor cab companies and rental agencies, but rather that both enterprises base their income on a flat rate payment by the lessee unconnected with any profit he himself may realize from the use of the car.

59 . The original denial of enforcement of the Board’s order was reported in NLRB v. Adams Dairy, Inc., 322 F.2d 553 (8th Cir. 1963). The Board thereafter petitioned for certiorari which was granted on January 18, 1965. Thereafter, by per curiam order, the prior judgment of the Eighth Circuit was vacated and the case remanded for reconsideration in light of Fibreboard. 379 U.S. 644, 85 S.Ct. 613, 13 L.Ed.2d 550 (1965). Upon remand, the Eighth Circuit found that Fibreboard did not affect its earlier decision. The Board again applied for certiorari which was denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 526 (1966).

60 . JA 44a (Findings of the Administrative Law Judge).

61 . The union denounced the decision to institute leasing as an anti-union attack, JA 45a (findings of the Administrative Law Judge), but other than such self-serving statements, there was no doubt whatsoever concerning the declining profitability of the commission cab operation, the need for a rate increase, and the “serious conditions” in the cab industry in general. Indeed, the Union president himself acknowledged these problems, JA 43a-^44a (findings of the Administrative Law Judge) see note 6, supra.

62 .The reason for this reluctance was aptly expressed by this court in UAW v. NLRB, 152 U.S.App.D.C. 274, 276, 470 F.2d 422, 424 (1972) (“What the UAW would have us do [by mandating bargaining on such economically motivated decisions] would turn over the management to it.”).

63 . JA 62a (findings of the Administrative Law Judge).

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65 . JA 45a — 46a (findings of the Administrative Law Judge).

66 . There is no need to become embroiled in the quandary of whether if the Companies had not arrived at a “preordained” decision to commence leasing the Union might itself have been less intransigent. The fact that the Companies strongly supported leasing does not mean that they had precluded all meaningful collective bargaining. Even assuming that they were not prepared to compromise on the basic concept of leasing, many of the details appear to have been open to compromise and discussion. It was the Union’s refusal to engage in any discussions unless recognized as the bargaining representative for the lessee-drivers which pre-

⁶⁷

68 . The Act was framed with a recognition that refusals to negotiate had been a major cause of industrial unrest, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). In light of Congress’ concern to eliminate this cause of unrest by encouraging and in some cases compelling, collective bargaining, the Union’s refusal to negotiate was clearly violative of the spirit of the Act whose protection it is now attempting to invoke. See generally, International Union of Electrical Radio and Machine Workers, AFL-CIO v. NLRB, 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied sub nom. Tiidee Products, Inc. v. International Union of Electrical Radio and Machine Workers, AFL-CIO, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970).

69 . The Board also held that the Companies had violated 8(a)(5) and (1) of the Act by refusing to give the Union information it requested concerning a.) the number of new cabs purchased and placed into use in 1972-1975 and whether any new cabs had been ordered for assignment to drivers not covered by the collective bargaining contract (i. e., lessees); b.) the reasons for each employee termination in the years 1973-1975; and c.) the Companies’ operating statements and tax returns from 1973 to date. Although the duty to bargain in good faith obliges the employer to furnish information necessary for the union to act intelligently on its grievances, NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.ct. 565, 17 L.Ed.2d 495 (1967); Torrington Co. v. NLRB, 545 F.2d 840 (2d Cir. 1976), we agree with the Administrative Law Judge that the Companies were under no obligation to furnish any of this information. JA 62a-64a.

The basic reason for our conclusion that Yellow and Checker were not required to provide the data requested by the Union is that this data related to the Companies’ decision to institute leasing and this decision was, as we have explained above, not a mandatory subject of bargaining. In addition, as the Union represented only the commission drivers, the information it requested would not “ordinarily [be] relevant to its performance as bargaining representative” and in such cases the courts have required “a special showing of pertinence before obliging the employer to disclose,” Prudential Insurance Company of America v. NLRB, 412 F.2d 77, 84 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969); see NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); San Diego Newspaper Guild, Local No. 95 of Newspaper Guild, AFL-CIO, CLC v. NLRB, 548 F.2d 863 (9th Cir. 1977). In order to prevail the Union would at least have been required to demonstrate, as the information requested concerned individuals outside the bargaining unit, that it was relevant to some bargainable issue, NLRB v. Rockwell-Standard Corp., Transmission & Axle Division, Forge Division, 410 F.2d 953 (6th Cir. 1969); Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965). The Union made no such showing.

In addition to this underlying justification for the Companies’ action, several additional factors supporting their refusal to divulge the information are significant. In arriving at their collective bargaining agreement, the parties had specifically included a provision, Article VI, Section 4 (JA 79a) providing that the Companies must notify the Union within thirty days of any separation of an employee from employment. Nothing whatsoever was said about notifying the Union of the reasons for this termination. Accordingly, by the terms of the agreement itself, there was no obligation to provide the additional information requested. In regard to the request for financial statements, this was made after the June 5 and 17 meetings at which the Union’s position had precluded negotiation. By this point, the Union had forfeited its opportunity to negotiate and was not entitled to further information. Moreover, the Companies’ financial statements were on file with the City of Chicago, and the fact that the Union never examined them suggests that this particular request for information was meant largely for the purpose of harassment, not bargaining. An employer is not obliged to disclose his financial statements merely because they might be helpful to a union, e. g., C-B Buick, Inc. v. NLRB, 506 F.2d 1086 (3d Cir. 1974), and the Union presented no specific question relevant to its role as collective bargaining agent which required recourse to the Companies’ balance sheets.

70 . See Retail Clerks Union, Local 1401, R.C.I.A. v. NLRB, 149 U.S.App.D.C. 370, 374, 463 F.2d 316, 320 (1972); Riverside Press, Inc. v. NLRB, 415 F.2d 281, 284-295 (5th Cir. 1969), cert. denied, 397 U.S. 912, 90 S.Ct. 915, 25 L.Ed.2d 94 (1970).

71 . Brief for NLRB at 54; 29 U.S.C. § 160(e); NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961); Marshall Field & Co. v. NLRB, 318 U.S. 253, 255-256, 63 S.Ct. 585, 87 L.Ed. 744 (1943).

72 . JA 64a-65a (findings of the Administrative Law Judge).

73 . The scope of the mandatory bargaining subjects, “wages, hours, and other terms and conditions of employment,” has been broadly construed, 5 Kheel, Labor Law 19-4 (1974).

74 . For example, one cab driver testified that the arrangement enabling him to take his cab home at night was worth some $46 a day to him, JA 64a (findings of the Administrative Law Judge).

75 . The Board and the Administrative Law Judge were in agreement that Yellow and Checker had committed an unfair labor practice in this aspect of the case. JA 24a, 67a, 69a. There is no question that the Union was the recognized bargaining agent for the commission drivers and thus had to be consulted concerning a change in the terms of their employment, National Labor Relations Act § 8(a)(5), (d), as amended, 29 U.S.C. § 158(a)(5), (d).

76 . Although in many of the cases where the employer has changed the conditions of employment unilaterally there is clear indication of anti-union animus, e. g., Wil-Kil Pest Control Co. v. NLRB, 440 F.2d 371 (7th Cir. 1971), there is no need of demonstrating such motivation in order to prove the commission of an unfair labor practice. NLRB v. Katz, 369 U.S. 736, 747, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230 (“It follows that the Board may hold such unilateral action to be an unfair labor practice in violation of § 8(a)(5), without also finding the employer guilty of overall subjective bad faith.”).

77 . An employer may change terms of employment without bargaining to impasse if he has given a reasonable opportunity for counter-proposals from the Union, NLRB v. Citizens’ Hotel Co., 326 F.2d 501 (5th Cir. 1964); NLRB v. Tex-Tan, Inc., 318 F.2d 472, 479-481 (5th Cir. 1963); see A.H. Belo Corporation (WFAA-TV) v. NLRB, 411 F.2d 959, 970 (5th Cir. 1969), cert. denied, 396 U.S. 1007, 90 S.Ct. 561, 24 L.Ed.2d 498 (1970).

78 . Brief for Union as Petitioner in No. 77-1512 at 23-25.

79 . JA 67a-68a (findings of the Administrative Law Judge adopted by the Board).

80 . See note 65, supra.

81 . JA 64a (findings of the Administrative Law Judge) (“President Feldman testified that he had uniformly demanded adherence to the rule which required drivers to check in their cabs at the end of each shift.”).

82 . See note 74, supra.

83 . Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943) is explicit concerning how limited the court’s scope of review of a Board’s remedial order was intended to be under the Act:

[A Board remedy may not be overturned] unless it can be shown that the order is a patent attempt to achieve ends other than

84 . Brief for the Union as Petitioner in No. 77-1512 at 11. The Union also argues that the rate of interest which the Board assesses on its monetary awards is inadequate. Although the 6% rate assessed by the Board in this case has since been revised somewhat upward by the Board, Florida Steel Corp., 231 NLRB No. 117 (1977), at the time the Board heard this case the 6% rate had been the Board’s policy for some fifteen years, and had repeatedly been upheld by the courts, see Reserve Supply Corporation v. NLRB, 317 F.2d 785, 789 (2d Cir. 1963); Russell Motors, 198 NLRB 351, enf'd 481 F.2d 996, 1006-1007 (2d Cir. 1973). The setting of an appropriate interest rate, comes within the Board’s traditionally broad discretion in fashioning remedies, e. g., NLRB v. Gissel Packing Co., 395 U.S. 575, 612, 89 S.Ct. 1918, 23 L.Ed.2d 547 n.32 (1969); Amalgamated Local Union 355 v. NLRB, 481 F.2d 996, 1006-1007 (2d Cir. 1973).