(concurring in part, dissenting in part):
I agree that Article 24 is not a work preservation agreement but rather a union signatory agreement. The validity of the Board’s decision thus turns on whether it properly adopted the finding of the Administrative Law Judge that the owner-operators of Santini were “independent contractors” and not “employees”. On consideration of that issue, I find myself in a maze of precedents with few standards for decision discernable. I, of course, note that Congress has quite clearly commanded that the common law definition of “independent contractor” be the basic guide for distinguishing between “employees” and “independent contractors.” 1 This does not mean that considerations of labor policy are irrelevant2 but that they be considered in light of the common law test of “control”. Under this test the degree of control which an employer exercises over a worker determines whether the worker is an “employee” or an “independent contractor.” 3 How great a degree of control must exist, how that control is to be quantified and how various incidents of control are to be weighed comparatively are questions left unanswered by Congress and by the Board in its various efforts in this area. We are, however, required to defer to the Board’s determination if that determination involves a reasonable choice among competing considerations.4
The competing considerations in this case are as follows. On the side of “independence”, I notice that the owner-operators own their own “tools”, the tractor cab; that they are paid by the job and not by the hour; that they receive no workmen’s compensation or retirement benefits; that they are responsible for all costs associated with hauling, including repairs and maintenance, road taxes, living expenses, damage insur*392anee, and packing materials; that they may refuse loads and may determine their routes once they accept a load; and that they may hire their own assistants to aid in loading and driving.5 On the other hand, in favor of employee status, I find that the “tools”, the tractor cab, is leased exclusively to Santini and the driver has no right to use it on jobs other than with Santini; that the payment by the job is largely dependent on set rates established by the ICC, the driver receiving a variable percentage depending on what services he performs; that the owner-operator by custom if not by contract works only for Santini and does not drive for other carriers6; that Santini requires driver compliance with workmen’s compensation laws, requires certain kinds of liability insurance, requires a deposit of $3,000 to insure driver compliance with various safety and other regulations; that loads must be delivered within a set time; and that Santini’s arrangements with United Van Lines require the owner-operators working on United jobs to attend United driver training school and to follow the United drivers’ manual.7 Perhaps more important than all of these factors is the *393pervasive government regulation of interstate hauling with the attendant rules and procedures imposed upon the licensed carrier (here Santini) and through the carrier on the owner-drivers.8 Santini, of course, requires that its owner-drivers comply with government regulations. It is not immediately clear to me which way these regulations count, toward “independence”, toward “employee” status or neutral on the question of independence.9
I note one argument drawn from the national labor policy which supports the Board’s position. Here the union sought to impose economic sanctions on an employer to force the employer to coerce employees not members of the union to join the union. This is not a case where a group of employees has joined a union and seeks to bargain with the employer. Thus, the definition of “employee” in this case — in a manner unlike a case where the workers seek to bargain after joining a union — involves the § 7 rights of the relevant workers.10 The TaftHartley Act in its essential structure operates to proscribe efforts by unions to garner jurisdiction over employees without a free choice on their part to forego individual bargaining and embrace collective bargaining.11 Article 24, which operates as a union signatory agreement, is in derogation of this central policy of Taft-Hartley. With this in mind, the union’s charge that Santini and the owner-operators have deliberately drawn their agreements to avoid “employee” status is transformed into a powerful argument against the union’s position, viz. that the owner-operators exercising their § 7 right not to join a union have opted instead for individual bargaining. The union’s apparent remedy under the structure of the NLRA is to organize the owner-operators, to force an alteration in the contracts between the operators and Santini and thereby create an “employee” status. To do this, of course, the union must obtain the consent of the owner-operators which apparently it does not have. The union’s attempt to create “employee” status through pressure on the employer to cause indirect pressure on the owner-operators finds no support in national labor policy.
This argument is, however, defeated for the present by an apparent inconsistency between the Board’s decision in this case and in the closely related case of *394Molloy Brothers Moving and Storage12 Molloy also involved Local 814 and the Moving and Storage Industry of New York, and particularly concerned whether the owner-operators of Molloy were employees or independent contractors. An Administrative Law Judge different from the one that decided this case held that the Molloy owner-operators were employees and not independent contractors. The Board also affirmed Molloy without opinion. There is no apparent distinction between Molloy and the case sub judice. While there was more evidence in Molloy of owner-operator compliance with work rules promulgated by Allied Van Lines with whom Molloy Brothers were affiliated, the extent of Molloy’s right of control13 was no larger than Santini’s and both extended well beyond the requirements of government regulation through use of drivers’ manuals. The Board in its brief suggests that Molloy’s health insurance plan and a profit-sharing plan serve to distinguish it from Santini. I do not think, in the absence of Board explanation, that these two relatively minor distinctions are sufficient to justify different results. I further note that the Board’s decisions in general on the status of truck drivers who own their vehicles seem difficult to reconcile.14
The requirement of a reasoned decision is central to judicial review of administrative action. Fulfillment of this requirment mandates an ageny to reconcile within reason its precedents and to avoid inconsistent decisions.15 The ur*395gency of this requirement is underscored when an agency is charged with administering a broad statutory mandate — such as we confront here — and when courts must by necessity defer to the agency judgment. In this case, I face conflicting decisions of Administrative Law Judges, decisions which the Labor Board has chosen to affirm without opinion. These conflicting decisions exist against a background of barely reconcilable precedents and of a failure of the Labor Board to provide a reasoned basis for its decisions regarding the definition of “employee.”
The Court decides to remedy the situation by remanding the record for supplementation on the issue of the inconsistency between Molloy and the case sub judice. I agree that the Board must develop a distinction between the cases before this Court may affirm its decision, but I do not think that a remand of the record alone is, on the facts of this case, a sufficient remedy for the Board’s failure to provide a reasoned decision of this case. This case in my view presents a classic example of where a diligent reviewing court could determine through a variety of factors that the agency had not given the problem a “hard look”, Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). A remand of the record alone can produce only a post hoc rationalization of the inconsistency between Molloy and this case. Such post hoc rationalizations have been consistently held to be inadequate to justify an otherwise vulnerable decision.16 The reason of this rule is that an agency might simply search for an explanation, in this case a distinction, to satisfy the requirement of a reasoned decision, regardless of whether the agency would have been genuinely impressed with the explanation or distinction if the matter were properly considered in the first instance. The wisdom of this rule is particularly evident when the agency’s error is the failure to give a “hard look” in the first place. Indeed, post hoc rationalizations are hardly the instrument to develop the standards for decision which are so conspicuously lacking in this area. It is my understanding that the record should be remanded for supplementation only when there are minor factual confusions or conflicts within an agency decision. I know of no authority for the proposition that the record may be remanded for supplementation when the agency has failed to comply with the requirement of a reasoned decision. I would reverse the Board and remand for a thorough reconsideration of the doctrinal quicksand in this area.
. See NLRB v. United Ins. Co. of America, 390 U.S. 254, 256 & n. 2, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1326 (1971) and legislative history cited.
. See Carnation Co. v. NLRB, 429 F.2d 1130, 1132 (9th Cir. 1970). For this reason I do not find Harrison v. Greyvan Lines, Inc., 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) controlling.
. Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1326 (1971), citing Grace v. Magruder, 80 U.S.App. D.C. 53, 148 F.2d 679, 681 (1945); Restatement of Agency (Second) § 220(1), (2) (1957). See NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1027 (6th Cir. 1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190, 193 (6th Cir. 1972); News-Journal Co. v. NLRB, 447 F.2d 65, 68 (3d Cir. 1971); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970); 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); Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697, 698-99 (5th Cir. 1964), cert. denied sub nom. Local 612, Teamsters v. NLRB, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965).
While there can be no doubt that Congress intended this “right of control” test to apply, I am impressed by the suggestion of counsel for Local 814 that the better test is one which determines “employee” status on the basis of whether the contested workers are properly represented by the relevant union. This is, I take it, a test virtually identical to the test of whether certain workers belong in the jurisdiction of one union or are part of an appropriate bargaining unit which the union represents. See, e. g., NLRB v. Radio & Television Broadcast Eng’rs, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961); Mallinckrodt Chem. Works, 162 N.L.R.B. No. 48 (1966). Cf. NLRB v. Southern Seating Co., 468 F.2d 1345, 1347-48 & n. 8 (4th Cir. 1972) (distinction between a “supervisor” and an “employee”). The § 7 rights of the workers in dispute may be protected through Labor Board policy on “accretion” to existing units. See Local 455, Retail Clerks v. NLRB, 166 U.S.App.D.C. 422, at 425 & n. 2, 510 F.2d 802, 805 & n. 12 at 6 & n. 12 (1975).
. See NLRB v. United Ins. Co. of America, 390 U.S. 254, 260, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968).
. On the legal significance of these factors, see Harrison v. Greyvan Lines, Inc., 331 U.S. 704, 708, 716-19, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1327-29 (1971); Carnation Co. v. NLRB, 429 F.2d 1130, 1132 (9th Cir. 1970); Associated Independent Owner-Operators, Inc. v. NLRB, 407 F.2d 1383, 1385-87 (9th Cir. 1969); National Van Lines, Inc. v. NLRB, 273 F.2d 402, 406-07 (7th Cir. 1960); Reisch Trucking & Transportation Co., 143 N.L.R.B. 953 (1963).
. Under some, older agreements between Santini and the owner-operators, such as that with Marvin Baggett, Exhibits at 481, 484, and Thomas Wolfe, id. at 468, 471, the owner-operator was subject to termination for driving for another carrier. This provision has been dropped from the newer agreements executed with some drivers at or after the time of the unfair labor practices here in dispute, Exhibits at 38--13, as in the contract with Thomas Wolfe, id. at 450-67. However, even under the newer agreements covering part of Santini’s drivers the owner-operator is required to operate his own vehicle and is also required to notify Santini of any carrier business the owner-operator discovers and to permit Santini to have the right of first refusal of that business. Exhibits at 452-53. Furthermore, it seems inherently persuasive that an owner-operator would want to operate his own equipment and would consider himself bound to it. The Administrative Law Judge apparently found that the owner-operators, if they wished to work overtime, can drive for other carriers with Santini’s permission (one assumes as “moonlighting”). Joint App. at 21 n.14.
. United and Santini have three different types of business arrangements variously called “permanent” lease; “master” lease and “peak” lease. Virtually all of Santini’s 24 owner-operators work on United jobs under one of these business arrangements. Local 814, Teamsters (Santini Bros.), 208 N.L.R.B. No. 22 (1974), Joint App. at 13 (opinion of ALJ). These lease arrangements all require Santini to provide personnel for United jobs who comply with all of United’s business rules. Exhibits at 648, 651. United promulgates a variety of rules through its owner’s manual which is reprinted in Exhibits at 789-948. One of the rules contained in the owner’s manual is that the driver must attend the United training school, if he is on a so-called “permanent” lease, as are 9-10 of Santini’s drivers, id. at 792. The older agreements between Santini and its owner-operators, many of which were still in effect at the time of the unfair labor practices, Exhibits at 38-43, expressly required the owner-operators to follow the rules in the United manual. Exhibits at 471, 484. The newer agreements eliminate this express provision, id. at 450-67, but the provisions in the contracts between Santini and United remain the same and it is reasonable to expect that United still expects to have drivers who comply with United rules. Apparently the practice is that if United is unhappy with any Santini drivers because of failure to live up to United’s expectations, the driver is simply taken off United business, cf. Local 814, Teamsters (Santini Bros.), supra, Joint App. at 27, but since virtually all of Santini’s owner-operators work on United jobs, one may assume either total compliance with United rules or termination by Santini of offending drivers under the newer agreements’ termination clause, Exhibits at 464 (termination at will of Santini on thirty days notice). The Administrative Law Judge made no findings on the effect of the owner’s manual or on the effect of the newer agreements on United’s right to enforce the provisions of the manual. There was testimony in the record that Santini has no record of distributing the United manual and no policy of enforcing it (although we may assume that Santini would affirmatively respond to a United complaint about a particular driver), but as is noted in note 13 infra, it is the right of con*393trol and not the actual exercise of the right which is central to the legal definition of “employee”. Absent further explanation from the Labor Board, I think it established that United through Santini has at least the right of control on the basis of the requirements of the owner’s manual.
. The various governmental regulations promulgated by-the ICC and the Department of Transportation relates to safety, accident reporting, vehicle inspection, use of drugs or alcohol, logging requirements, a carrier (Santini)-imposed exclusive lease on the owner-operator’s tractor cab and the shipper’s rates which define the owner-operator’s compensation. Santini, as the licensed carrier, is responsible for the performance of these duties and may not delegate its responsibility to the owner-operator. See Local 814, Teamsters (Santini Bros.), 208 N.L.R.B. No. 22 (1974), Joint App. at 25-26 (opinion of ALJ).
. See NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1027 (6th Cir. 1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190, 194 (6th Cir. 1972). See also NLRB v. Pony Trucking, Inc., 486 F.2d 1039, 1040 (6th Cir. 1973); Aetna Freight Lines, Inc., 194 N.L. R.B. 740, 741 (1971) (Miller, Member, concurring).
. 29 U.S.C. § 157 (1970) (“Employees . . shall also have the right to refrain from” collective bargaining). -Cf. §§ 8(b)(1), 14(b), 29 U.S.C. §§ 158(b)(1), 164(b) (1970); International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); Local 633, Teamsters v. NLRB, 166 U.S.App. D.C. 157, 509 F.2d 490, 493 (D.C.Cir. 1974). This § 7 right is most profoundly evident in the secondary boycott prohibition as that prohibition has developed over the years.
. See S.Rep. No. 105, 80th Cong., 1st Sess. 5-7 and passim (1947). Numerous provisions in the newer agreements between Santini and the owner-operators state expressly an intention to avoid collective bargaining. Most obvious is the provision that states it is the intent of the contracting parties that the owner-operator is to be an independent contractor. Exhibits at 463; see id. at 450-67.
. Local 814, Teamsters (Molloy Bros.), 208 N.L.R.B. No. 43 (1974) decided nine days after the Santini case.
. It is the right of control and not the exercise of that right which is relevant to a finding of independent contractor status. See NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1027 (6th Cir. 1974); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322, 1326 (1971); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970); NLRB v. A.S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964). The Administrative Law Judge in the Santini case paid very little attention to the United owner’s manual whereas the Administrative Law Judge in Molloy found that the Allied owner’s manual was the source of a number of carrier restrictions over and above that required by the government. Local 814, Teamsters (Molloy Bros.), 208 N.L.R.B. No. 43 (1974), at 6-8 & n.7 (opinion of ALJ). In Molloy the Administrative Law Judge also relied on various Allied bulletins; there is evidence of various United bulletins in the record sub judice. Exhibits at 949-50, 977-79, 982-83, 988-99, 1007-15b. This seems to be the source of inconsistency.
. Compare Reisch Trucking & Transportation Co., 143 N.L.R.B. 953 (1963); Fleet Transport Co., 196 N.L.R.B. 436 (1972); Conley Motor Express, Inc., 197 N.L.R.B. No. 57 (1972); Gold Metal Baking Co., 199 N.L.R.B. No. 132 (1972); Portage Transfer Co., 204 N.L.R.B. No. 117 (1973); George Transfer & Rigging Co., 208 N.L.R.B. No. 25 (1974) with Deaton, Inc., 187 N.L.R.B. 780 (1971); Aetna Freight Lines, Inc., 194 N.L.R.B. 740 (1971); Florida Texas Freight, Inc., 197 N.L.R.B. No. 158 (1972); Pony Trucking, Inc., 198 N.L.R.B. No. 59 (1972), aff’d, NLRB v. Pony Trucking, Inc., 486 F.2d 1039 (6th Cir. 1973). See also the various determinations of the Courts of Appeal, NLRB v. Cement Transport, Inc., 490 F.2d 1024 (6th Cir. 1974); Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190 (6th Cir. 1972); Joint Council No. 42, Teamsters v. NLRB, 146 U.S.App.D.C. 275, 450 F.2d 1322 (1971); Associated Independent Owner-Operators, Inc. v. NLRB, 407 F.2d 1383 (9th Cir. 1969); Maxwell Co. v. NLRB, 414 F.2d 477 (6th Cir. 1969); Deaton Truck Lines, Inc. v. NLRB, 337 F.2d 697 (5th Cir. 1964), cert. denied sub nom. Local 612, Teamsters v. NLRB, 381 U.S. 903, 85 S.Ct. 1448, 14 L.Ed.2d 285 (1965); National Van Lines, Inc. v. NLRB, 273 F.2d 402 (7th Cir. 1960). Cases involving the status of distributors involve different problems and hence are distinguishable. See, e. g., NLRB v. Pepsi Cola Bottling Co. of Mansfield, 455 F.2d 1134 (6th Cir. 1972); News-Journal Co. v. NLRB, 447 F.2d 65 (3d Cir. 1971); Herald Co. v. NLRB, 444 F.2d 430 (2d Cir. 1971).
. See NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) (Goldberg, J.); NLRB v. Gibson Products Co., 494 F.2d 762, 767 (5th Cir. 1974); May Department Stores Co. v. NLRB, 454 F.2d 148, 151-52 (9th Cir. 1972); Herbert Harvey, Inc. v. NLRB, 137 U.S.App.D.C. 282, 424 F.2d 770, 780 (1969); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970); cf. Barrett Line, Inc. v. United States, 326 U.S. 179, 65 S.Ct. 1504, 89 L.Ed. 2128 (1945), discussed L. Jaffe, Judicial Review of Administrative Action 586-88 (1965); Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); Columbia Broadcasting System, Inc. v. FCC, 147 U.S. *395App.D.C. 175, 454 F.2d 1018, 1026-27 (1971); Marco Sales Co. v. FTC, 453 F.2d 1, 7 (2d Cir. 1971); Mesa Petroleum Co. v. FPC, 441 F.2d 182, 192 (5th Cir. 1971); Melody Music, Inc. v. FCC, 120 U.S.App.D.C. 241, 345 F.2d 730 (1965); City of Lawrence v. CAB, 343 F.2d 583 (1st Cir. 1965). See generally Greater Boston Television Corp. v. FCC, 143 U.S.App. D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); cf. FPC v. Texaco, Inc., 417 U.S. 380, 397 (1974); NLRB v. Local 347, Food Store Employees, 417 U.S. 1, 9-10, 94 S.Ct. 2074, 40 L.Ed.2d 612 (1974).
There is nothing in Local 441, Electrical Workers v. NLRB, 167 U.S.App.D.C. 53, 510 F.2d 1274 (1975) which is to the contrary. That case involved a remand because of a confusion in the Board’s handling of a conflict in testimony and the legal implications to be drawn therefrom. As such, a confusion in testimony, it was clearly proper to remand for supplementation of the record. The case sub judice, on the other hand, concerns a failure to supply a reasoned decision. Such failures may not be rectified by a remand of the record alone.