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

ON PETITION FOR REHEARING

Before TAMM and MacKINNON, Circuit Judges; and MARKEY,* Chief Judge, United States Court of Customs and Patent Appeals.

ORDER

PER CURIAM.

Upon consideration of respondent’s petition for rehearing, and of the response filed thereto, it is

ORDERED, by the Court, that respondent’s aforesaid petition for rehearing is denied for the reasons set forth in the opinion for the Court filed herein this date.

Opinion for the Court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

The Board and the Union (hereinafter “petitioners”) petition for rehearing contending that the court must defer to the Board’s decision that the lessee cab drivers were “employees” within the meaning of the Labor Act, and that the panel’s failure to do so was “revolutionary.” 1 Specifically, petitioners make the following arguments: (1) the panel exceeded the scope of its judicial authority by conducting a “de novo review” of the Board’s decision; (2) “the *310Board’s history of vacillation and the basically legal nature of the question”2 should not reduce the amount of deference due the Board’s determination; and (3) the panel ignored substantial evidence supporting the Board’s finding that the lessee cab drivers are “employees” rather than “independent contractors.” In addition, petitioners argue that the panel opinion is inconsistent with Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).3 Since these arguments misinterpret both the panel opinion and the relevant decisional and statutory law, a response is appropriate.

*309those which can fairly be said to effectuate the policies of the Act.

*310I

Petitioners describe the court’s opinion as constituting a de novo review, and cite a number of cases which hold that courts should not engage in de novo review of administrative decisions. Of course, de novo review of the Board’s decisions is ordinarily inappropriate,4 and should not be indulged in “as an original matter.”5 The flaw in petitioners’ argument is their assertion that the court’s decision is a product of de novo review. It is not.

The term “do novo review” is often used loosely. Losing parties tend to apply it to unfavorable court decisions as an epithet. But actually, it has a rather precise meaning.

We must always be conscious of the distinction between a de novo trial, where the case is tried a second time and the record is made up in the district court, and a court’s review of findings of an administrative body, where the record is solely that of the administrative body.

Globe-Union, Inc. v. Chicago Telephone Supply Co., 103 F.2d 722, 728 (7th Cir. 1939).6

In light of this definition, it is clear that the court did not engage in objectional de novo review. It did not re-examine the Board’s findings of fact. Rather we considered whether the uncontroverted facts, when they were applied to the settled law, were sufficient in law to warrant the Board’s conclusion that the lessee drivers are employees rather than independent contractors. Following that standard the opinion pointed out that the Board’s findings of fact did not support its conclusion of law7 that the lessee drivers are employees. The defects in the ruling were set forth in considerable detail, and the Board’s decision was therefore reversed.8 In sum, while de novo review would have been improper, that rule is not relevant here because our decision is not a product of a de novo review. Rather it is a product of the responsibility placed on a court that reviews the action of an administrative agency to “fully review . . . administrative decisions.” In our view the facts of record are insufficient to support a conclusion of law that the lessee cab drivers are employees, and, as we develop below, to so hold would violate the *311“statutory mandate” and the “congressional policy” underlying the statute.

II

This Court’s opinion states:

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.

195 U.S.App.D.C. at 290, 603 F.2d at 872. Petitioners acknowledge that there is some tension between the Board’s early decisions holding lessee cab drivers are “employees” and its more recent decisions finding-that lessees are “independent contractors.”9 The Board contends, however, that neither its vacillating record on this issue, nor the basically legal nature of the question, reduces the extent to which courts must defer to the Board. This argument substantially answers itself and we are not in any doubt that when an agency on a particular legal issue, without giving any reasoned decision for changing, arrives at three different interpretations within a few years, where there has not been any demonstrated change in decisional law, statute, or circumstances to justify changing the law, then a court is justified in examining more closely the basis for the unexplained shift in the Board’s decisions.

A

We recognize that the Board’s decision is not subject to de novo review merely because it was “a determination of pure agency law involving] no special administrative expertise that a court does not possess.” NLRB v. United Insurance, 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). We also recognize the “authority of the Board to modify its construction of the Act in light of its cumulative experience . . . .” Beth Israel Hospital v. NLRB, 437 U.S. 483, 508, 98 S.Ct. 2463, 2477, 57 L.Ed.2d 370 (1978).10 Beth Israel related to a new law applying the labor act to non-industrial public hospitals for the first time. However, the instant case merely called for an application of settled common law principles of agency law to uncontroverted facts under a statutory definition that has not been changed in any respect since it was significantly amended in 1947 to correct the construction that was applied in NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944).

We also recognize, as the Supreme Court stated in NLRB v. Weingarten, Inc., 420 U.S. 251, 265, 95 S.Ct. 959, 967-68, 43 L.Ed.2d 171 (1975), that:

The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board’s earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking.

The instant decision, however, is erratic rather than evolutional. In Weingarten the Board carried out its obligation to explain the shift by pointing to “significant developments in industrial life . . . .” 420 U.S. at 265, 95 S.Ct. at 967. Here the Board points to no significant developments, and refuses to recognize the precedential nature of its prior decisions. It tersely states: “suffice it to say that [cases coming to the opposite conclusion that such lessees are not employees] must be narrowly construed. . . . ”11 (Emphasis add*312ed). That statement, and the factual recitations which lead merely to the conclusory judgment, fall far short of the reasoned analysis or satisfactory explanation that an agency must give when it seeks to ignore a line of precedential decisions and change the law established by judicial decisions.

We are not disposed to argue whether the Board has ignored prior precedent or whether the Board’s decisions on this issue have, as it states, created a situation where, “Significantly, none of the later cases [arriving at a different result] overruled any of the prior cases.”12 Either situation requires us to examine its decision with especial care. An agency has an admitted discretion in matters of policy, but the principal issue here is a matter of decisional law, not policy. As we indicated previously, the only significant development that impacted on the Board’s current decision is the recent change in the composition of the Board that reversed the decision of the Administrative Law Judge and “narrowly construed” the latest existing precedents to the point of extinction.13 Such erratic decisionmaking is unacceptable — particularly as to issues of law. While the Board is authorized to change its mind, when it does so it must at least carefully explain its reasons, justify the change and follow controlling law. Otherwise previously created propositions of law based on factual determinations operate as precedents, stare decisis. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), c.f., Matter of Peyton Packing Co., 49 N.L.R.B. 828 (1943). Radio Officers’ Union v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954). As Professor Davis wrote with respect to the Interstate Commerce Commission:

[An agency] not only may but must take notice of applicable law, whether the law is embodied in the Constitution, a statute, judicial decisions, or administrative decisions . . . That those decisions rested upon findings which in turn rested upon evidence, is no reason for saying that the [Interstate Commerce] Commission was not bound to follow them — or to distinguish or overrule them.

K. C. Davis, Administrative Law Treatise § 15.04 at 376 (1958) [hereinafter Davis]. While the Board may' change its mind it cannot change the statutory and decisional law as fixed by court decisions following the express mandate of Congress. The Board’s failure here to follow, not its own vacillating decisions, but the decisions of the federal courts cannot be condoned.14

B

Our decision does not depend on the niceties between various standards of review and our conclusion that the Board’s decisionmaking has been unacceptably erratic is not necessary to the result we reach. On the contrary, even if the Board’s decision followed prior Board precedent, it would be necessary to reverse the Board’s determination that the lessee cab drivers are “employees” under the National Labor Relations Act because it does violence to the intent of Congress and established principles of agency law as enunciated by the courts. The operative facts here fall considerably short of the amount and character of control necessary to a finding that the lessees are employees.

The Supreme Court has consistently stated that reviewing courts should not defer to the Board when the Board’s decision is inconsistent with the statute that is supposedly being applied.15 A recent decision to this *313effect is NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) where the Labor Board held that an employer’s lockout of striking employees was a violation of the Act. The reversal of the Board by the Court of Appeals was affirmed by the Supreme Court despite the Board’s claim, as here, that “the Court of Appeals exceeded the authorized scope of judicial review.” The Supreme Court stated:

This proposition rests upon our statement in Buffalo Linen [353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676] that in reconciling the conflicting interests of labor and management the Board’s determination is to be subjected to “limited judicial review.” 353 U.S., at 96, 77 S.Ct. 643. When we used the phrase “limited judicial review” we did not mean that the balance struck by the Board is immune from judicial examination and reversal in proper cases. Courts are expressly empowered to enforce, modify or set aside, in whole or in part, the Board’s orders, except that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole shall be conclusive. National Labor Relations Act, as amended, §§ 10(e), (f), 29 U.S.C. §§ 160(e), (f) (1958 ed.). Courts should be “slow to overturn an administrative decision,” Labor Board v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 100 L.Ed. 975, but they are not left “to ‘sheer acceptance’ of the Board’s conclusions,” Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 803, 65 S.Ct. 982, 89 L.Ed. 1372. Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their responsibility if they did not fully review such administrative decisions. Of course due deference is to be rendered to agency determinations of fact, so long as there is substantial evidence to be found in the record as a whole. But where, as here, the review is not of a question of fact, but of a judgment as to the proper balance to be struck between conflicting interests, “[t]he deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” American Ship Building Co. v. Labor Board [, 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855] post, at 318, 85 S.Ct. 955.

380 U.S. at 290-92, 85 S.Ct. at 987-988 (emphasis added). The Supreme Court recently reaffirmed the rule in Brown in NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975).16 (“Reviewing courts are of course not ‘to stand aside and rubber stamp’ Board determinations that run contrary to the language or tenor of the Act . . . .”).17

*314The cases cited by petitioners do not undercut the rationale of Brown. In NLRB v. Local 103, Iron Workers, 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978) the Court deferred to the Board’s decision — but only after noting that the decision was not “fundamentally inconsistent with the structure of the Act . . . 18 Similarly, in Beth Israel the Court stated:

The judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board’s application of the rule, if supported by substantial evidence on the record as a whole, must be enforced.

437 U.S. at 501, 98 S.Ct. at 2474 (emphasis added). Finally, United Insurance, infra, which is discussed more fully below, held that a reviewing court should not “displace the Board’s choice between two fairly conflicting views . . . .”19 Thus, in each case, although the Court deferred to the Board, it indicated that courts should not defer when the Board’s decisions conflict with the Labor Act. To this should also be added those cases where the Board has deviated from its previously existing position without satisfactory explanation.

In a number of cases since United Insurance, supra, on which petitioners chiefly rely, courts of appeals have found it necessary to reverse the Board’s determination that certain workers were not “independent contractors.” See, e. g., Lorenz Schneider Co., Inc. v. NLRB, 517 F.2d 445, 452-53 (2d Cir. 1975) (Friendly, J.); Assoc. General Contractors v. NLRB, 564 F.2d 271, 279 (9th Cir. 1977); SIDA of Hawaii, Inc. v. NLRB, 512 F.2d 354, 357 (9th Cir. 1975) (“This court recognizes that it may not displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. . [But] we cannot uphold the Board where it has in its ‘application of the law to the facts overlooked accepted principles of the law of agency . . . .’ [Brown v. NLRB, 462 F.2d 699, 702 (9th Cir.), cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972)] . . . quoting Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970).”); Meyer Dairy, Inc. v. NLRB, 429 F.2d 697 (10th Cir. 1970).

In short, under United Insurance, Iron Workers, Beth Israel, and other cases, supra, courts should defer to the Board’s decisions as long as the decisions are consistent with the National Labor Relations Act, but none of these cases signal a departure from the admonition in Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839, that courts must not allow the Board to rule contrary to the tenor of the Act, which calls for the application of controlling principles of agency law. This case falls into that category and to the extent that the Board’s decision refuses to find that the lessee cab drivers are independent contractors it is inconsistent with the Act, as interpreted by the courts. Under Brown, therefore, the Board’s decision must be reversed.

Ill

The National Labor Relations Act provides that “independent contractors” are not “employees.” 29 U.S.C. § 152(3). Yet, the Board held here that the lessee cab *315drivers involved are “employees.” In accordance with Brown, supra, we reversed the Board’s decision because under the applicable law “we are able to determine that the lessees in this case were independent contractors . . . 195 U.S.App.D.C. at 300, 603 F.2d at 882.

Petitioners assert that the list of thirteen factors included in the Board’s opinion20 provides reasonable and substantial support for the Board’s determination. Those thirteen factors are support for the Board’s decision, however, only if they are evidence that the Companies have a “right to control . the means to be used in attaining the result. . . . [W]here the employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists.” Yellow Cab Co., 229 NLRB 1329, 1332. See 195 U.S. App.D.C. at 292, 603 F.2d at 874.

Party Cab Co. v. United States, 172 F.2d 87 (7th Cir. 1949), also sets forth a good statement of the applicable law. At issue in that case was the status of lessee cab drivers under the taxing provisions of the Social Security Act, which taxed “employees”. The Court quoted an excerpt from the applicable Treasury regulation which set forth the general standards to be followed in determining whether individuals were independent contractors or employees:

[Generally the [employee] relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, 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. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor, not an employee.

172 F.2d at 92. (Emphasis added). This is the well recognized common law agency rule. The opinion also made it clear that:

The matter of control which is material is that which the plaintiff exercised over the drivers during the period they were in possession of the cabs rather than what the plaintiff might do either prior or subsequent to such period.

Id.

The issue, therefore resolves itself into determining whether the Board’s thirteen enumerated factors are sufficient proof of the Companies’ right to control the detail, means and methods by which the lessee drivers conduct their operations. The court’s opinion already discussed these factors at some length, but more can be said. In considering the relevant facts, which are not in dispute, it must be recognized that the lessee drivers here do not work for hire, for wages or salaries, or under direct supervision. They are not paid any money by the Company. They depend for their income solely upon their own efforts and the profits that they are able to derive from the difference between their cost of leasing and operating the cab and what they collect from the public in fares.

At no time in the conduct of their operation are their physical activities controlled by the lessor. As the Board recognized, the lessees are “not required to operate in any prescribed manner, to accept any calls or dispatches, to report the location of the cab during the lease period, ... to maintain the cab in any designated place,”21 or to buy their gasoline from the company. In addition, “drivers are admittedly on their own once they leave the garage and are free to prospect for fares when and where they choose . . ,”22 There is only an agreement to pay a daily rate for the least of the cab, to use care and skill in driving it, and to comply with applicable laws and regulations. See, Restatement of Agency *3162d, § 220, Comment (e) at 487-88. As in Associated General Contractor of California, Inc. v. NLRB, 564 F.2d 271 (9th Cir. 1977), where the Board was reversed and the drivers held not to be employees, the lease of the cab to the driver placed the car in his exclusive domain and its operation while it was in the lessee’s possession was beyond the authority of the company.

The lease arrangement between the parties also states that the parties intend to create an independent contractor relationship. This provision is pertinent to the nature of the relationship created since it is some indication of a refusal by the lessee to submit to pervasive control by the company and a recognition by the company of the absence of a master’s control over the lessee. See, Restatement of Agency 2d, § 200, Comment (m) at page 492. The Treasury Department has also ruled that the drivers are not “employees” for purposes of the Social Security taxing statutes. From this it can be concluded that they pay income and social security taxes as self-employed persons.

We now address the Board’s thirteen points. The italicized statement at the head of each of the following numbered paragraphs sets forth the fact the Board asserted in support of its conclusion:

1.“No investment in the instrumentalities of their work.”23 Generally, employees do not rent the tools of their trade from their employer or pay their operating costs nor put up bonds to compensate the employer for damage to his tools. Here, however, over the course of a year, a lessee driver will invest close to $7,000 in lease payments for the car and substantial additional sums in the necessary gasoline and oil. 195 U.S. App.D.C. at 296, 603 F.2d at 878. This sum of money, paid daily, cannot be considered as anything less than a substantial investment — though the lessee never acquires title to the cab. The sums thus paid appear to be roughly equivalent to what a driver would invest if he were purchasing the cab — though he gets more than just the cab. These facts contradict the Board’s decision which states “the lessee drivers have no investment in the instrumentalities of their work.”24 (Emphasis added.) Payments totalling approximately $7,000 for the use of a cab for a year and a year’s fuel costs are not insubstantial. In addition the lessee invests his entire time in the operation of the cab. He also posts bonds varying from $100 (Checker) to $250 (Yellow) to cover the cost of repairing the cab following accidents for which the lessee is at fault.

2. Goodwill. The Board asserts that “all goodwill arising from the operation of the cabs inure to the Companies’ benefit.”25 (Emphasis added.) This factor, even if true, has no relevance to the Companies’ control of the drivers. It is only of minimal, if any, importance.26 Moreover, goodwill does inure directly to the benefit of the lessees who drive the cabs. It is their principal stock in trade. Every fare a cab driver receives is based in substantial part on the goodwill which the drivers build up. The attractiveness of their cab service to passengers constitutes the principal basis for the income of the lessees. It is incorrect for the Board to state that the drivers do not benefit from the goodwill they create.

3. Drivers’ work is essential to companies operations. This is true, but it has no relevance to the issue of whether the lessor controls the means and methods by which lessees operate their cabs. Moreover, one would expect this to be true in many recognized independent contractor situations. See Judge Friendly’s comment in Lorenz Schneider Co., Inc. v. NLRB, 517 F.2d 445, 451 (2d Cir. 1975). For instance, many insurance companies operate through general agents and their sales are essential to the companies’ operations, but this latter factor in no way converts such agents into employees. Any company can attempt to conduct *317certain phases of its operations through independent contractors and the fact that the operation is “essential” does not stamp as employees those who would otherwise be independent contractors.

4.Lease term is short and renewable at the companies’ option. The Board finds control of the lessees in the companies’ “use of day and night leases (i.e., those of less than 24-hour duration)” whereby it argues the companies “are able to prescribe the hours of work.”27 This argument conveniently overlooks that leases are available for “24 hour[s]” and “for 2 days at a time, or 3 days on weekends . . . ”28 Moreover, the term of the lease whether for 12 hours or 3 days does not authorize the company to control the lessee in the manner in which he operates his cab. At most, it could furnish an opportunity for the companies to exercise some indirect control, but since there is no evidence that the companies use the threat of nonrenewal to exercise pervasive control over the manner and means in which drivers conduct their business, the provision in the lease does not furnish any support for the conclusion that the drivers are employees.29 195 U.S.App. D.C. at 295-296, 603 F.2d at 877-878.

It is informative to contrast the variously expressed attitudes of the Board and the courts as to the probative effect of the duration of the relationship in these cases. Here, the Board argues that a short lease renewal at the Companies’ option is indicative of an employee relationship. This is in sharp contrast to a decision in the 4th Circuit which commented that:

[T]he relatively permanent nature of the relationship and the manner in which it may be terminated . . . are more characteristic of the employment relationship than of independent contractor status.

NLRB v. A. S. Abell Company, 327 F.2d 1, 9 (4th Cir. 1964). Also in NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968) the court noted, as one element indicating an employee status, that “the agents have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory.” If permanence of relationship is an element that tends to indicate an employee relationship, and logic indicates that it does in many cases, then impermanence must be some indication of an independent contractor status. The Board’s view that short and renewable leases are indicative of an employee relationship is thus in conflict with the view expressed by the Supreme Court.

5. Lease terms unilaterally set by the companies. This is evidence of bargaining power, but the Board does not explain how the terms of the lease, which are uniform, have in any way been used to control the drivers in the manner and means that they operate their cabs under the lease. Nothing in the record indicates that this power has been so used.

6. Lessee must obey municipal regulations. The Board has long recognized that agency regulations are evidence of government rather than employer control. Back *318in 1963, in Reisch Trucking and Transportation Co., Inc., 143 NLRB 953, 957 (1963), the Board stated: “[t]he control exercised by the Company over the work of owners and drivers is for the purpose of complying with the rules and regulations of the Interstate Commerce Commission and is not inconsistent with the independent contractor relationship.” Similarly, in Portage Transfer Co., Inc., 204 NLRB 787 (1973) the Board held that truck drivers hauling steel who own their trucks, but lease them to their “employers” were independent contractors even though the “lease, consistent with ICC regulations, provides, that the lessor [drivers] shall surrender full control, possession and management of the leased equipment to the employer for the term of the lease.”30 (Emphasis added). These Board decisions are clearly applicable to the laws and regulations with which the instant lessees must comply and the Board has not offered any reasoned explanation as to why compliance here with the applicable local regulations is indicative of an employee relationship while the greater “full control, possession and management” in Portage and Reisch is consistent with an independent contractor relationship. In Portage and Reisch the right to control in the company was complete, yet because it resulted from a government regulation it was held not to upset the independent contractor relationship.

The same issue of required compliance with governmental controls was involved in Local 814, Int. Brotherhood of Teamsters v. NLRB, 178 U.S.App.D.C. 223, 564 F.2d 989 (1976), where after a remand (167 U.S.App.D.C. 387, 512 F.2d 564) to the Board to distinguish its decision therein (also referred to as Santini, 208 NLRB 184 (1974)), from its simultaneous decision in Molloy (208 NLRB 276 (1974), the Court approved the Board’s Supplemental Decision holding the two cases were distinguishable because of the greater degree of control over household goods drivers that Molloy reserved. The principal difference, which the Board summarized, was that in Molloy—

there was a layer of carrier regulation put upon the [owner-operators] beyond what was required by government regulation, impairing the [owner-operators] independence.

223 NLRB at 752 (emphasis added). The Board thus did not find the control necessary to create an employee relationship in requiring compliance with rather broad government regulations but only with respect to the company imposed requirements “which went beyond the required governmental controls.”31 Judge Bazelon dissented on the ground that in the “seven factual distinctions between Molloy and Santini there is no reasoned discussion as to why the [factual] distinctions are significant.” 178 U.S.App.D.C. at 226, 546 F.2d at 992. (Emphasis added). We make the same point generally about the Board’s opinions in this area.

Meyer Dairy, Inc. v. NLRB, 429 F.2d 697, 701 (10th Cir. 1970), reaches the same conclusion as to the effect of local regulations. The court there held milk truck drivers to be independent contractors although their “contract provides for certain standards which the distributors must maintain . [which] are designed to meet health and cleanliness standards . . . .”

In SIDA of Hawaii, Inc. v. NLRB, 512 F.2d 354, 359 (9th Cir. 1975); the Ninth Circuit also observed:

The Board has itself noted that the fact that a putative employer incorporates into its regulations controls required by a government agency does not establish an employer-employee relationship.

See 195 U.S.App.D.C. at 293-295, 603 F.2d at 875-877. The Board failed to follow or distinguish these decisions — a fatal defect.

*3197. No subleasing is permitted. This restriction is designed to protect the lessors’ property (the cab) by insuring that the licensed driver to whom they have agreed to lease the cab will personally drive the cab and not turn it over to some other person whose reliability and responsibility the lessor has not had an opportunity to determine. As long as the lessee is the driver, he is free to conduct his business as he pleases. 195 U.S.App.D.C. at 296 n.45, 603 F.2d at 878 n.45.32 Technically, this is a restriction, but it is not evidence of pervasive employer control over the means and method by which the lessee does his job. It is merely an exercise of normal business caution to contract with responsible people.

8. Companies discipline lessee drivers through the threat of city action. This is a partial repetition of 6 above.33 The companies give notice to their drivers that they must follow the law. The drivers would be required to comply with the law even if the lease did not so provide. And companies would be required to cease doing business with drivers who used company property to violate the law even if the contract did not so provide. “[Rjequiring 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. ... It is the law that controls the driver.” 195 U.S.App.D.C. at 293, 603 F.2d at 875. The general insistence that the driver comply with the law is not the type of control of a driver that will create an employee relationship since the source of the control is statutory law and municipal regulations.

9.Drivers are subject to having their references checked when they apply for a lease. This is another factor which is not in any way probative of employer control over the manner and means in which the driver conducts his business.34 The Board’s reliance on this fact, which is not relevant to control, is a good example of the paucity of support for the Board’s conclusion. We are particularly unimpressed with the Board’s reference to the garage manager’s “wide latitude” in deciding who qualifies to be a lessee. The Board states:

the lease garage manager will refuse to lease to someone who has a record of unsafe driving or is addicted to drugs, as well as to those who lack experience or who have no chauffeur’s license. . As a practical matter, the lease garage manager will refuse to renew a lease for reason of a bad at-fault accident, unsafe driving, subleasing, drinking, and failure to pay money. . . . Customer complaints will not, however, constitute grounds for refusing to lease unless the complaint relates to matters which indicate unsafe driving, drinking, etc.35

In our view it is in the public interest that such policies should be followed by all transportation companies whether they operate through independent contractors or *320employees, and the application of operating policies to overcome such hazards is not indicative of that control that influences a determination of employee status.

10. Companies determine fault in accidents. This is a minor example of Company control over a business decision, but is not evidence of pervasive control.36 That the decision as to who is legally at fault in an accident is made in this way does not support the claim that the Company controls the means and methods by which the lessee conducts his operation.

11. 250 mile limitation. The mileage limitation for one day’s driving (like the lease term) defines the outer boundary of the lease. A lessee driver is free to drive the cab as he pleases within the 250 mile limit. This is about twice as much mileage as the 111 miles that lessees drive their cabs in an average day.37 The limitation operates to prevent subleasing. The Board’s opinion virtually concedes that this is not an important restriction; it says “[theoretically, at least, this mileage limitation imposes a limit on the lessee drivers earnings.”38 But with 111 miles being the average daily mileage, a 250 mile limitation is more theoretical than real. Obviously this is not proof of pervasive employer control.

12. Dress restrictions. The Administrative Law Judge found that in practice dress restrictions were limited to a “no sandal” rule.39 Beyond this the only dress restrictions are those imposed by municipal regulations.40 The Union acknowledges that this is “not the most weighty control.”41 Actually, it is very minimal.

13.Workmen’s Compensation. Illinois Courts have interpreted the Chicago Municipal Code as requiring cab companies to provide workmen’s compensation insurance to all drivers, even if they are independent contractors. This is an example of government control. The requirement that such insurance be carried does not affect “the basic relationship established [consensually] between the Companies and their drivers.” 195 U.S.App.D.C. at 294-295 n.38, 603 F.2d at 876-877 n.38. It does not create an “employee” relationship under federal law. It merely means that independent contractors are to be covered by such insurance.

As a sub-part of the argument addressed to the workmen’s compensation coverage the Board argues that one of the factors which “support our conclusion that the drivers herein are employees . . [is that the] Companies have considered offering group hospitalization and retirement plans .” (Emphasis added)42 It further asserts that “[t]he absence of fringe benefits is of some relevance [as indicating that the lessees are independent contractors] but is of little probative value (especially in light of the fact that the Companies have considered making fringe benefits available to the lessees).”43 That is a specious argument: group hospitalization is clearly available to groups of independent contractors and retirement benefits can be worked out for the self-employed. To hold that merely “considering" such plans somehow indicates a master-servant relationship is even more *321“far-fetched” than the rationale in Hearst, which Congress repudiated. Participation in group medical and liability insurance were also held not to bring the drivers into an employee status in Meyer Dairy, Inc. v. NLRB, 429 F.2d 679 (10th Cir. 1970).

Thus, of the thirteen factors listed by the Board, only 7, 10, 11 and 12 relate to control and these are plainly insufficient to support a finding that the lessee drivers are employees. The inclusion of the other 9 items, which for the reasons stated are not indicative of control over the manner and means of the drivers’ operations, indicates that the Board is straining at gnats to find some evidence to support its conclusion that the drivers are “employees.” The balance between “control” over the details of the cab driving operation and the independence of the drivers is heavily on the side of “independence”. As Judge Sanborn found in Site Oil Company of Missouri v. NLRB, 319 F.2d 86, 89 (8th Cir. 1963) each lessee is “free to exercise his independent operational judgment in the significant areas which would determine whether he made a profit or incurred a loss.”

In reaching its conclusion the Board relied upon many factors that obviously are not indicative of an employer-employee relationship and it gave inordinate weight to factors which were merely very minimal instances of lessee control. This was substantially the same erroneous pattern that Judge Sneed pointed out the Board had followed in Associated General Contractors of California, Inc. v. NLRB, 564 F.2d 271 (9th Cir. 1977), in its attempt to support an expansion of its jurisdiction to include independent contractors.

Some circumstances, like the Companies’ power to impose lease terms unilaterally, are evidence of economic power, but as the 9th Circuit stated in Carnation Company v. NLRB, 429 F.2d 1130, 1134 (9th Cir. 1970), “[e]vidence of economic control is not necessarily proof of the kind of control that is relevant to a decision whether a person is a contractor or an employee.” Other factors (for example, the subleasing prohibition, the 250 mile limit, the so-called limited dress restriction, and the Company’s determination of fault in accidents) have a minor relevance, but neither alone nor collectively do they show “pervasive control”44 that “so ‘overshadow[s] considerations of the worker’s right to assert his own prerogatives’ that an employment relationship can be said to exist.”45 While only minor factors point toward employee status, the crucial factors, which permit the lessees to operate their cabs without the lessor controlling or supervising the means and method of their operation, indicate that the lessee drivers clearly are independent contractors.

The House Report on the bill that eventually excluded independent contractors from coverage under the National Labor Relations Act stated:

“Employees” work for wages or salaries under direct supervision. “Independent contractors” undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials, and labor and what they receive for the end result, that is, upon profits.

H.R.Rep.No.245, 80th Cong., 1st Sess. 18 (1947), reprinted in 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, 309 (1948). Except for the reference to hiring of others,46 the lessee cab drivers involved here exactly fit the mold of those the House Report indicated were “independent contractors.”

*322Petitioners assert that we have established a per se rule “that all persons who lease taxicabs are independent contractors for purposes of the Act, regardless of the extent to which the employer controls their actions while they are driving his cabs.”47 That is incorrect. We hold only that when the lessee drivers are not subject to that control by the Company that is determinative of employee status as determined by the courts, and by agency decisions cited by the Administrative Law Judge,48 they clearly fall within the common law definition of independent contractors and the Board cannot bring them within its jurisdiction. In this case under well established common law rules of agency, the minor controls, analyzed above, are simply too insubstantial to justify a conclusion that the lessee cab drivers are “employees.”

IV

This opinion would be incomplete without a more detailed discussion of the legislative history of the controlling provisions of the statute and some of the subsequent judicial decisions that have excluded “independent contractors” from Labor Board jurisdiction.

A

It all started with the Supreme Court decision by Justice Rutledge in NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). Therein the Supreme Court, reversing the 9th Circuit and affirming a NLRB decision, held that newsdealers were employees and subject to the Board’s jurisdiction. The Supreme Court deferred to the Board’s “[djetermination [holding for coverage under the Act] . ‘where all the conditions of the relation require protection ’ . . . .”49 (Emphasis added). The opinion further stated that the Labor Act was “not confined exclusively to ‘employees’ within the traditional legal distinctions separating them from ‘independent contractors.’ ” 322 U.S. at 126, 64 S.Ct. at 858. On the contrary, the Act applies to persons who were “subject, as a matter of economic fact, to the evils the statute was designed to eradicate.” 322 U.S. at 127, 64 S.Ct. at 858 (emphasis added). Then, expanding on the theory that “economic fact” was to determine coverage under the Act, the court stated:

when the particular situation of employment combines these characteristics, so that the economic facts of the relation make it more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the legislation, those characteristics may outweigh technical legal classification for purposes unrelated to the statute’s objectives and bring the relation within its protections [The Act’s] applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications. Cf. Labor Board v. Blount, supra [131 F.2d 585 (8th Cir. 1942)].

322 U.S. at 128, 64 S.Ct. at 859 (emphasis added).

The opinion proceeded to assign the “definitive limitation around the term ‘employee’ . . primarily to the agency created by Congress to administer the Act. ‘[and] to the usual administrative routine’ of the Board.” 322 U.S. at 130, 64 S.Ct. at 860.

In United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947), which shortly followed Hearst, Justice Reed applied the Hearst rationale to the same issue under the Social Security tax on “employees.” In so doing he described the court’s rationale in Hearst as follows:

We conclude that, since [the object of the Labor Act] was the elimination of labor disputes and industrial strife, ‘employees’ included workers who were such as a matter of economic reality. We approved the statement of the National Labor Relations Board that ‘the *323primary consideration in the determination of the applicability of the statutory definition is whether effectuation of the declared policy and purposes of the Act comprehend securing to the individual the rights guaranteed and protection afforded by the Act.’ Labor Board v. Hearst Publications. 322 U.S. 111, 120, 124, 128, 129, 131, 64 S.Ct. 851, 88 L.Ed. 1170.

331 U.S. at 713, 67 S.Ct. at 1468. (Emphasis added).

Congress was so incensed with the fanciful construction of its legislative intention in Hearst that in 1947 it specifically excluded “independent contractors” from the coverage of the Act and condemned the Court’s rationale in Hearst Publications as giving “far fetched meanings” to the words that Congress had used. Congress went on to state that the Board should give these words their “ordinary meaning.” This means that the first step in determining the coverage of the Act is to decide whether the individuals involved meet the technical legal classifications of “employees.” The Committee Report in the House, where the 1947 amendment originated, set forth the Congressional intent as follows:

(D) An “employee”, according to all standard dictionaries, according to the law as the courts have stated it, and according to the understanding of almost everyone, with the exception of members of the National Labor Relations Board, means someone who works for another for hire. But in the case of National Labor Relations Board v. Hearst Publications, Inc. (322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944)), the Board expanded the definition of the term “employee” beyond anything that it ever had included before, and the Supreme Court, relying upon the theoretic “expertness” of the Board, upheld the Board. In this case the Board held independent merchants who bought newspapers from the publisher and hired people to sell them to be “employees”. The people the merchants hired to sell the papers were “employees” of the merchants, but holding the merchants to be “employees” of the publisher of the papers was most far reaching. It must be presumed that when Congress passed the Labor Act, it intended words it used to have the meanings that they had when Congress passed the act, not new meanings that, 9 years later, the Labor Board might think up. In the law, there always has been a difference, and a big difference, between “employees” and “independent contractors”. “Employees” work for wages or salaries under direct supervision. “Independent contractors” undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials, and labor and what they receive for the end result, that is upon profits. It is inconceivable that Congress, when it passed the act, authorized the Board to give to every word in the act whatever meaning it wished. On the contrary, Congress intended then, and it intends now, that the Board give to words not farfetched meanings but ordinary meanings. To correct what the Board has done, and what the Supreme Court, putting misplaced reliance upon the Board’s expertness, has approved, the bill excludes “independent contractors” from the definition of “employee”.

House Report No. 245 on H.R. 3020, p. 309.

The Conference Report on the Bill evidenced the same congressional intent:

Although independent contractors can in no sense be considered to be employees, the Supreme Court in N. L. R. B. v. Hearst Publications, Inc. (1944), 322 U.S. 111, 64 S.Ct. 851, 86 L.Ed. 1170, held that the ordinary tests of the law of agency could be ignored by the Board in determining whether or not particular occupational groups were “employees” within the meaning of the Labor Act. Consequently it refused to consider the question of whether certain categories of persons whom the Board had deemed to be “employees” were not in fact and in law really independent contractors.

House Conference Report No. 510 on H.R. 3020, p. 536-7, U.S.Code Cong.Serv.1948, pp. 1135, 1138.

*324Senator Taft, one of the principal contributors and advocates of the legislation, in remarks summarizing the principal differences between the Conference Agreement on H.R. 3020 and the Bill which the Senate passed, stated:

The legal effect of the amendment [exempting “independent contractors”] therefore is merely to make it clear that the question whether or not a person is an employee is always a question of law, since the term is not meant to embrace persons outside that category under the general principles of the law of agency.

93 Cong.Ree. 6441-6442 (emphasis added).

It is very significant to this case, as the Senator noted, that “the question whether or not a person is an employee is always a question of law.” Id. It is a legal conclusion to be drawn from the facts — not a question of policy. The court in Allied Chemical and Alkali Workers v. Pittsburgh Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971) similarly observed that the Board’s holding in such a case “depends on the application of law to facts, and the legal standard to be applied is ultimately for the courts to decide and enforce.” 404 U.S. at 182, 92 S.Ct. at 399. Thus within our assigned duty we reverse the Board on a conclusion of law — not a factual finding or a matter of policy.

In NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968), Justice Black outlined very clearly what it was that the Court had earlier attempted in Hearst, and Congress’s response to that effort:

Initially this Court held in NLRB v. Hearst Publications, 322 U.S. Ill, 64 S.Ct. 851, 88 L.Ed. 1170, that “Whether . . the term ‘employee’ includes [particular] workers . . . must be answered primarily from the history, terms and purposes of the legislation.” 322 U.S., at 124, 64 S.Ct. 851. Thus the standard was one of economic and policy considerations within the labor field. Congressional reaction to this construction of the Act was adverse and Congress passed an amendment specifically excluding “any individual having the status of an independent contractor” from the definition of “employee” contained in § 2(3) of the Act. The 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. And both petitioners and respondents agree that the proper standard here is the law of agency. Thus there is no doubt that we should apply the common-law agency test here in distinguishing an employee from an independent contractor.

390 U.S. at 256, 88 S.Ct. at 989-999 (emphasis added) (footnote omitted).

The significant observation in this quotation is its description of the standard for coverage that Hearst had attempted and which Congress rejected, i. e., it was a standard whereby the ordinary meaning of the words used in the Act, principally the word “employee,” would be largely ignored and the Board’s jurisdiction would be determined by a “standard ... of economic and policy considerations within the labor field.” When this standard was applied, workers who were considered to be subject “as a matter of economic fact, to the evils the statute was designed to eradicate and . the remedies it afford[ed],” were to be found by the Board to be covered by the Act even though they might not be employees in the ordinary usage of that term. By this construction the court ruled that the Act would be applied to all situations where “employers and employees not in proximate relationship may be drawn into common controversies by economic forces." (Emphasis added). This was truly a remarkable expansion. The application of the Act was to be determined “by underlying economic facts rather than technically and exclusively by previously established legal classifications.” (Emphasis added). Such construction did away with the application of common law principles of agency. Finally came the almost open ended standard for coverage that “where all the conditions of the relation require protection, protection ought to be given.” (Emphasis added) 322 U.S. at 127-29, 64 S.Ct. at 860.

*325The vice of this construction lay in the fact that it was grossly indefinite and it began at the wrong end. Instead of first determining that the workers in question were within the “legal classification” of employees as that word is normally understood, and therefore subject to the Act, it began by inquiring whether “economic forces,” or “economic reality” as Silk interpreted Hearst, had drawn the parties into a controversy that the Board considered required “protection” in furtherance of the policy of the Act. If so they were found to be subject to the Act even though they might not be ordinarily considered to be employees. The opinion continued on to state that the task of making a completely definitive limitation around the term of employee was “assigned primarily to the agency created by Congress to administer the Act.” 322 U.S. at 130, 64 S.Ct. at 860.

So under the construction of the Act in Hearst the Labor Board was to define the extent of its own jurisdiction by discarding “established legal elassification[s].” When “economic facts ” or “economic reality” indicated with respect to individuals “drawn into common controversies by economic forces ” that there existed a “relation [that] require[d] protection” under the Act, the Board was to rule that such “protection” be given the individuals in question even though they might be independent contractors, lessees, or joint venturers.

As indicated above, this construction of the Board’s jurisdiction under the Act was completely rejected by Congress in its 1947 amendments and so recognized by the Court in United Insurance Co., and Allied Chemical, supra.

The decision in United Insurance, held, as had been generally recognized, that debit agents of insurance companies are employees. Basically debit agents are collectors of insurance premiums who go door to door in a prescribed area on a regular basis under supervision by the company. They participate in fringe benefits and are paid a percentage of the premiums collected. Collected premiums are turned in weekly. The case “involved the application of law to facts” — as the court stated:

The Board examined all of these facts and found that they showed the debit agents to be employees. This was not a purely factual finding by the Board, but involved the application of law to facts— what do the facts establish under the common law of agency: employee or independent contractor? It should also be pointed out that such a determination of pure agency law involved no special administrative expertise that a court does not possess. On the other hand, the Board’s determination was a judgment made after a hearing with witnesses and oral argument had been held and on the basis of written briefs. Such a determination should not be set aside just because a court would, as an original matter, decide the case the other way. As we said in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, “Nor does it [the requirement for canvassing the whole record] mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” 340 U.S., at 488, 71 S.Ct. 465. Here the least that can be said for the Board’s decision is that it made a choice between two fairly conflicting views, and under these circumstances the Court of Appeals should have enforced the Board’s order. It was error to refuse to do so.

390 U.S. at 260, 88 S.Ct. at 991, 992. (Emphasis added).

We also note the admonition of Justice Reed that the determination of independent contractor status from litigated facts is not a “specialized field of knowledge” to the extent that the Labor Board “carrpes] the authority of an expertness which courts do not possess and therefore must respect Radio Officers v. Labor Board, 347 U.S. 17, 50, 74 S.Ct. 323, 341, 98 L.Ed. 455 (1954).

The opinion of the majority of the Board in the instant case seeks support from the *326same rationale of Congress’ intent as was expressed in Hearst Publications, and that Congress specifically rejected as far back as 1947. Thus, the current Board opinion vaguely claims its conclusion is supported by the “business realities ” of the relationship, which is merely another way of relying upon what Hearst Publications described as “economic facts,”50 and what Silk referred to as “economic realities.”

Such contentions are a repetition of the same argument advanced by the dissent to Columbus Green Cabs, Inc.

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.

214 NLRB 751, 753.

The Board also argues here that its prior decision in Columbus Green Cabs, Inc., which held cab drivers, who were subject to more control than those here, were independent contractors, was to be narrowly construed “in order that employees not be denied the protection of the Act through an undue extension of independent contractor status.”51 This is a partial reversion to the same “protection of the Act” argument that was advanced in Hearst as a beginning point in determining coverage, and thereafter rejected by Congress, United Insurance and other decisions.

The dissent in Greater Houston Transportation, 208 NLRB 1020, 1023 (1974) presented another argument rejected after Hearst when it contended that the drivers should be covered under the Act because “the effect upon Commerce of a work stoppage by drivers in the system would be substantial.” Cf., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 126, 64 S.Ct. 851, 858, 88 L.Ed. 1170 (1944) (“The Act, as its first section states, was designed to avert the ‘substantial obstruction to the free flow of commerce’ which result from ‘strikes and other forms of industrial strife and unrest’ by eliminating the causes of that unrest.”)

It is difficult to know exactly what the members of the Board are referring to when they rely on “economic facts,” “economic realities” and “business realities.” Plainly such vague generalities do not rise to the dignity of factual findings. There is a strong indication that the Board is harking back to vestiges of the Hearst rationale when it includes among the numerated items in its opinion many that are not indicative of control but nevertheless are illogically relied upon as upholding a determination of employee status. The factors the Board enumerated that clearly fall into this category are: (2) Goodwill; (3) Drivers’ work is essential to Companies’ operations; (4) Lease term is short and renewable at the Companies’ option; (5) Lease term unilaterally set by the Companies; (9) Drivers are subject to having their references checked when they apply for a lease; and (13) Workmen’s Compensation. The Board has been criticized for giving inordinate weight to isolated examples of company control and to factors which are not persuasive evidence of the employer-employee relationship. Associated General Contractors, supra, 564 F.2d at 280. The Board’s reliance on the above numerated factors is another example of this.

Also when the Board points in its Petition for Rehearing, at 3, to the substantial number of lessees it implicitly is contending that since the drivers are a large group they obviously should be given “protection” and be deemed to be “employees” because of their number and substantial effect on commerce. Actually, the number of drivers involved is an irrelevant consideration as to whether or not they are employees subject to the Act. The numbers argument is a reversion to part of the Hearst rationale and ignores the fact that Congress gave “independent contractors” as much right to be excluded from the Board’s jurisdiction, regardless of their numbers, as “employees” were given to be included, regardless of their numbers.

*327To argue further that prior decisions applying the control test and holding certain individuals to be independent contractors should be given a “narrow construction” is nothing more than an attempt by the Board in its construction of the Act to ignore the Congressional direction that the terms “independent contractors” and “employees” be given their “ordinary meanings” — not narrow meanings. House Report, supra. Congress was very specific in its language and it was very specific in the Committee Report that it intended its 1947 amendment to be given its ordinary meaning, the same as the other provisions in the Act. The Board’s “narrow construction” does not do that.

B

The history delineated above establishes that principles of agency law determine whether a worker is an employee or an independent contractor, and that “employee” and “independent contractor” are to be given their “ordinary meanings” by the Board. It is not acceptable for the Board to expand its jurisdiction by a narrow reading of “independent contractor.” Congress clearly intended that only employees would be covered by the Act. Thus, if a worker is an independent contractor, as that term is normally understood, then the Board has no authority under the Labor Act.

We have already cited a number of decisions in which courts of appeals have reversed the Board on this point. See, e. g., Associated General Contractors v. NLRB, 564 F.2d 271 (9th Cir. 1977), SIDA of Hawaii, Inc. v. NLRB, 512 F.2d 354 (9th Cir. 1975), 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), Carnation Co. v. NLRB, 429 F.2d 1130 (9th Cir. 1970), Meyer Dairy, Inc. v. NLRB, 429 F.2d 697 (10th Cir. 1970), NLRB v. A. S. Abell Company, 327 F.2d 1 (4th Cir. 1964). Party Cab Co. v. United States, 172 F.2d 87 (7th Cir. 1949) reaches the same conclusion under the Act taxing “employees” compensation. Another important case is Lorenz Schneider Co., Inc. v. NLRB, 517 F.2d 445 (2d Cir. 1975). In Lorenz Schneider, Judge Friendly writing for the court, made an observation that conforms to our own view of the Board’s decisions in the area of “independent contractors”:

the natural tendency of the Board and of reviewing courts to look primarily to other NLRB cases involves some degree of moving away from the “pure agency law” test mandated by Congress in the TaftHartley Act and inching back toward the view expressed in the Hearst opinion, 322 U.S. at 124, 64 S.Ct. at 857 .. . that “Congress had in mind a wider field than the narrow technical legal relation of ‘master and servant’ . . . .”

517 F.2d at 453 n.15. The court stated that reviewing courts should resist this tendency, and must reverse the Board whenever its application of agency principles is erroneous. Judge Friendly wrote:

We cannot say that here the Board had no basis for its conclusion. But Universal Camera, as implemented in this area by United Insurance, could not have meant to extend immunity from judicial review that far; to do so would run counter to the whole thrust of that important opinion as to the new “mood” concerning judicial review, 340 U.S. 487, 71 S.Ct. 456, 95 L.Ed. 456, which Congress carried into the Taft-Hartley Act and the APA. The respect required to be accorded the Board’s application of “pure agency law” surely cannot exceed what is demanded when it acts within the area of its expertise, where “a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view”, 340 U.S. 488, 71 S.Ct. 465. A reviewing court must bow to the Board’s view in an area outside its exper*328tise only when this is “fairly conflicting” (emphasis added).

517 F.2d at 453.52

The foregoing comments are equally applicable here and they accurately express our opinion and findings as to the instant case. Particularly in view of those frequent instances where the Board enumerated items it considered evidence of a master-servant relationship, when in reality they were not relevant to control, we cannot conscientiously agree when the common law test is applied to the whole record that there is substantial evidence fairly supporting the Board’s decision.

V

In our initial opinion we reversed the Board’s decision that “the Companies unlawfully refused to bargain about their decision to lease cabs to drivers,”53 and held that “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.”54 The Board and the Union contend that this was error. They maintain that the “panel’s conclusion is simply not supported by the record”55 and that “the panel has wholly misapprehended the rationale of the Board’s decision.” 56 They also contend that Fibreboard principles were violated by some comments in the decision. We have reviewed the petitioners’ points in this respect and as hereinafter indicated we rest our opinion in this regard wholly upon the Union’s improper refusal to bargain.

Both the Administrative Law Judge (ALJ) and the Board acknowledged that the Union refused to bargain about leasing unless it was recognized as the bargaining representative of the lessee drivers. The ALJ conceded that the Companies “had no intention of permitting the Union to participate in [the decision to lease.]” In addition, however, he found:

For its part, the Union was equally adamant in insisting that any negotiations about the leasing program be conditioned upon company recognition of the Union as the collective bargaining representative of the lessees.57

Later in his opinion the ALJ held:

the Union precluded bargaining along •these lines [about the decision to go into leasing] by adamantly insisting that it could not consider any alternative to the Companies’ plan unless they recognized the Union as the bargaining representative of the lessees under the existing collective bargaining contract.58

In its opinion reversing the ALJ, the Board did not contest this factual finding. It stated: “The Union, for its part, insisted that any negotiations about the leasing program be conditioned upon company recognition of the Union as the collective bargaining representative of the lessee drivers.”59 Yet despite this Union imposed prerequisite to bargaining, the Board held that the Companies were guilty of unfair labor practices. The Board stated:

*329Given the Companies’ preordained refusal to bargain about the decision to lease, we, contrary to the Administrative Law Judge, find it immaterial and no defense for the Companies that the Union adamantly sought to condition negotiations upon its being recognized as the bargaining representative of the lessee drivers.60

The Board’s decision is wrong as a matter of law. A union “may not insist on recognition as representative of persons wholly outside the coverage of the Labor Act.”61 If a union requires such recognition as a pre-condition to bargaining, then the employer’s refusal to bargain on those terms is not an unfair labor practice. As Judge Friendly wrote:

if a union insists on speaking on behalf of persons for whom it cannot properly so insist, an employer cannot be faulted for refusing to bargain.

NLRB v. Kelley Brothers Nurseries, Inc., 341 F.2d 433, 440 (2d Cir. 1965).62

Here, the Union wrongly pre-conditioned its willingness to bargain on the companies’ recognition of it (the Union) as representative of the lessee drivers. Since those drivers are independent contractors, the Union has no right to represent them.63 More important, the Union had no right to refuse to negotiate about the leasing decision until it was recognized. By making recognition a prerequisite to bargaining, the Union effectively excused the companies’ obligation to bargain.

The Board did not explain why it concluded that the Union imposed prerequisite to bargaining was “immaterial.” The most likely reason is that in the posture of the case then, the Union was entitled to be the bargaining agent for the lessee drivers. The Board’s opinion held that those drivers were “employees” subject to the coverage of the Labor Act. Assuming that, there is nothing unfair or unreasonable about the Union requiring the Companies to recognize it as bargaining agent for those “employees.” After all, the Union has long been “certified as the collective-bargaining representative of both Companies’ employees. . ” 64 But the whole justification for the Board’s decision crumbles in light of our holding that the lessee drivers are independent contractors, not employees. Independent contractors are outside the coverage of the Labor Act, and a union may not require that it be recognized as the representative of independent contractors as a condition to participating in negotiations.

Another possible justification for finding the Union’s refusal to bargain to be “immaterial” is that the Companies were allegedly “first” in refusing to bargain. Though this argument was not made in its opinion, the Board’s petition for rehearing states: “it was the Companies which first adopted an intrasigent attitude on the subject, wholly independent of any actions on the Union’s part. . . . ”65 We find this newly advanced argument to be based on an incomplete application of the admitted facts66 and to be unpersuasive.

*330Neither the Board’s nor the ALJ’s opinion establishes that the Companies’ refusal to bargain was the cause of the Union’s refusal to negotiate. The Board’s petition for rehearing alleges two grounds that assertedly prove that the Companies’ decision to lease was irrevocable long before the negotiation process started: (1) “the Companies began formulating their leasing plans as early as the summer of 1974 . . .; . the Union indirectly found out about the plans shortly thereafter, and sought a meeting, which the Companies refused”; and (2) “the Companies did not meet with the Union until the following summer, when the Companies specifically stated that, ‘We are not asking for your permission [to lease]. We are going to do it.’ . . .”67 Because of other facts which were overlooked neither fact proves the Board’s contention.

(1) The Company’s refusal to negotiate in the summer of 1974 is irrelevant to this appeal. First, the Board’s complaint, which defines the boundaries of this case, cites the Companies’ alleged refusal to bargain “[s]ince on or about June 5, 1975. ”68 The complaint, and therefore this appeal, has nothing to do with alleged refusals to bargain before that date.69 Second, there is a good reason for the June 5, 1975 date in the Complaint. In 1974 the Companies were considering a different leasing plan involving the transfer of cab licenses to separate companies to be newly incorporated as wholly owned subsidiaries. When this transfer was denied by the city of Chicago, the Companies “for the first time manifested consideration of a plan for direct leasing of cabs.”70 The alleged refusal to bargain involved in this appeal is with respect to the subsequent direct leasing plan, not with the discarded plan to use new corporations. The Companies’ position on bargaining about the earlier leasing plans is irrelevant, and was not cited as evidence of the Companies’ intransigence by either the ALJ or the Board. To raise it now also amounts to impermissible post hoc rationalization.71

(2) While it is true that the ALJ and the Board found that the Companies “had no intention of permitting the Union to participate in [the decision to lease]” 72, this finding does not establish that the Companies’ decision was reached “first,” or that it caused the Union to take a hard line. There is a great deal of evidence that the Union was every bit as intransigent on the leasing question as the Companies were. In its statements to the press, the Union indicated that it was opposed to leasing.73 When the Companies subsequently “invited discussion [with the Union] before their final decision” (emphasis added), they referred to the Union’s public position on leasing, and asked the Union to “confirm, deny, or qualify” its earlier statements.74 The Union never responded to this request. Thus, even if the Companies were the first to take an intransigent position they subsequently offered to correct their error and negotiate thereon but the Union refused to negotiate. And there is evidence that the Union’s only comment to the Companies during June, 1975, when negotiations were under way was to “[g]et out of the leasing business.”75 Thus the evidence indicates that the Union, like the Companies, was unwilling to bargain about leasing. *331More important, neither the ALJ nor the Board concluded from the evidence that the Companies’ refusal to bargain caused the Union’s intransigent position on the recognition issue. Both the Board and the ALJ found that the Companies had a preordained position on leasing, and that the Union would not negotiate at all unless it was recognized as representative of the lessee drivers. Though they disagreed as to the significance of the Union’s precondition to bargaining, the Board and the ALJ approached the question in exactly the same way. The ALJ wrote:

If General Counsel is correct, and the lessees are employees within the bargaining units, then the Union was entitled to adhere to its contractual rights, and the Companies violated the contract and the Act by embarking upon leasing. If, however, General Counsel is wrong, then the Union effectively precluded negotiations about leasing by conditioning such negotiations on a nonmandatory subject of bargaining, i. e., recognition of the Union as representative of a group of individuals who were either not employees or who were employees outside of the bargaining unit.76

Similarly, the Board recognized and applied the principle that the scope of the valid bargaining unit controls the extent of the bargaining obligation:77

If, as General Counsel and the Union contend, the lessee drivers are employees within the meaning of the Act, then by failing to apply the terms of its collective-bargaining agreement with the Union to these lessees the Companies violated Section 8(a)(5) of the Act. If, as the Companies contend (and the Administrative Law Judge found), the lessee drivers are not employees within the meaning of the Act, but are instead independent contractors, then Respondent Companies’ refusal to recognize the Union was not a violation of the Act.78

The Board and the ALJ reached opposite results because the Board held that the lessee drivers were employees, whereas the ALJ found them to be independent contractors. The Board’s conclusion did not rest on the Companies’ alleged responsibility for the Union’s precondition to bargaining.

In short, neither the evidence nor the opinions below support the Board’s assertion that the Companies are primarily responsible for the break-down of negotiations. On the uncontroverted facts, such a conclusion would be remarkable. Even accepting the Union’s position, the Companies only had “preordained” views on the issue of whether to institute a leasing program. There is absolutely no evidence that the Companies would not negotiate on the details of a leasing plan and there is evidence that they subsequently “invited” such discussion. The Union, however, refused to bargain entirely — both with respect to the decision to lease and the details of any leasing plan. Thus, if it were necessary to decide which party was more at fault in the last analysis, we would have to choose the Union.

With respect to its representation of the commission drivers the opinion of the Administrative Law Judge found the following uncontroverted facts:

The Union raised some questions about the possible impact of the leasing program upon the commission drivers and the commission fleet. However, the Union never requested the Companies to bargain about any possible or asserted removal of work from the commission fleet, beyond declaring its opposition to .leasing, nor did the Companies manifest an unwillingness to discuss such matters as distinct from their decision to go into *332leasing. If, for example, the Union felt that the Companies were failing to provide their commission drivers with cabs, as provided in article III, section 3 of their contract, or were unreasonably suspending or discharging commission drivers for low bookings or high mileage, whether or not such actions were influenced by the leasing program, they could have filed appropriate grievances and pursued them to arbitration. However, the Union did not do so. Moreover, as will be discussed infra, such matters are beyond the scope of the present complaint.79

In summary, the Union refused to bargain unless it was recognized as bargaining representative for the lessee drivers. Since the lessee drivers are not employees, the Union had no right to make this demand. This Union imposed obstacle to bargaining undercuts the Union’s claim that the Companies committed an unfair labor practice by refusing to bargain.

Conclusion

We adhere to our conclusion that the leasing of the cabs did not constitute a hiring of the lessees under a master-servant relationship and that the companies did not commit an unfair labor practice within the period covered by the General Counsel’s complaint. The petitioners’ motions, addressed to the division of the court, to rehear the case are therefore denied.

So ordered.

. Petition for Rehearing (Local 777) 1 [hereinafter Union Petition].

. 195 U.S.App.D.C. at 290, 603 F.2d at 872.

. Petition for Rehearing (NLRB) 9 [hereinafter NLRB Petition]; Union Petition 12-14.

. See, e. g., NLRB v. Local 103, Iron Workers, 434 U.S. 335, 351, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978), NLRB v. United Insurance Co., 390 U.S. 254, 259, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968).

. United Insurance, supra, 390 U.S. at 260, 88 S.Ct. 988.

. See also United States v. First City Nat’l Bank of Houston, 386 U.S. 361, 368, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967), and Farmingdale Supermarket, Inc. v. United States, 336 F.Supp. 534, 536 (D.N.J.1971).

.229 NLRB at 1334.

. The court’s opinion states:

[The Board] 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.
We deny enforcement of the Board’s order because we are able to determine that the lessees in this case were independent contractors.

195 U.S.App.D.C. at 292, 300, 603 F.2d at 874, 882.

. 229 NLRB at 1333.

. Accord: NLRB v. Local 103, Iron Workers, 434 U.S. 335, 351, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978).

. 229 NLRB 1329, 1333. The Board also lists factors that it claims distinguish the instant case from Columbus Green Cabs I, 214 NLRB 751 (1974), an earlier case in which the Board held that lessee cab drivers were independent contractors. As Justice Marshall stated, “[t]hose factual differences serve to distinguish the cases only when some legislative policy makes the differences relevant . . . Atchison, Topeka & Santa Fe Railway Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973) (plurality opinion for four Justices). Our opinion explains why the factors cited by the Board are *312largely irrelevant to the issue of control, which determines whether a worker is an “employee” or an “independent contractor.” 195 U.S.App. D.C. at 292-299, 603 F.2d at 874-881.

. 229 NLRB at 1333.

. 229 NLRB at 1333. 195 U.S.App.D.C. 287-289, at nn. 20, 22, 603 F.2d 869-871 at nn. 20, 22.

. See cases and authorities cited in 195 U.S.App.D.C. at 290, 300, 603 F.2d at 872, 882.

. For example, in Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) the Supreme Court

directed] that courts [of appeal] now assume more responsibility for the reasonableness and fairness of Labor Board decisions *313than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds .

. In Weingarten, the Board’s order was enforced because “the Board’s construction there, while it may not be required by the Act, is at least permissible under it . . . 420 U.S. at 266-67, 95 S.Ct. at 968.

. See Allied Chemical & Alkali Workers v. Pittsburgh Glass Co,, 404 U.S. 157, 166, 92 S.Ct. 383, 391, 30 L.Ed.2d 341 (1977):

We have repeatedly affirmed that the task of determining the contours of the term “employee” “has been assigned primarily to the agency created by Congress to administer the Act.” NLRB v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). See also Iron Workers v. Perko, 373 U.S. 701, 706, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963); NLRB v. Atkins & Co., 331 U.S. 398, 67 S.Ct. 1265, 91 L.Ed. 1563 (1947). But we have never immunized Board judgments from judicial review in this respect. ”[T]he Board’s determination that specified persons are ‘employees’ under this Act is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.” NLRB v. Hearst Publications, supra, 322 U.S. at 131, 64 S.Ct. 861.

One could argue that the language in Chemical Workers discussing the Board’s broad discretion to determine which workers are employees exceeds the intention of Congress *314when it repudiated Hearst and adopted the 1947 amendment excluding independent contractors from the definition of employees. In any event, that discretion in the Board that Hearst referred to is lessened when independent contractors are involved because of the 1947 amendments which followed the 1944 decision in Hearst and narrowed the range of discretion by specifically excluding them. The resulting decision thus becomes more one of law where independent contractors are concerned. The Board’s discretion is greater when considering other forms of relationships.

. 434 U.S. at 350, 98 S.Ct. at 660/ The Supreme Court distinguished the facts in Iron Workers from those in American Ship Building v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), which reversed the Board because its (the Board’s) decision was inconsistent with the Act.

. 390 U.S. at 260, 88 S.Ct. at 991 (emphasis added).

.See 195 U.S.App.D.C. at 291 n.25, 603 F.2d at 873 n.25.

.229 NLRB at 1330.

.229 NLRB at 1333.

. 229 NLRB at 1332.

. 229 NLRB at 1332.

. 229 NLRB at 1332.

. 195 U.S.App.D.C. at 296 n.45, 603 F.2d at 878 n.45.

. 229 NLRB at 1333.

. 229 NLRB at 1330.

. See, e. g. NLRB v. A. S. Abell Co., 327 F.2d 1 (4th Cir. 1964) (Held newspaper carriers are independent contractors despite “the almost-at-will terminability of the relationship.” 327 F.2d at 3. “The essential business decisions concerning the operation of his route are largely within the discretion of the carrier and, like most independent businessmen, he may either reap the profits or bear the losses which are the consequences of his judgments.” 327 F.2d at 7.); Portage Transfer Co., Inc., 204 NLRB 787 (1973). But cf.: Joint Council of Teamsters No. 42 v. NLRB, 146 U.S.App.D.C. 275, 280, 450 F.2d 1322, 1327 (1971) (affirmed the Board’s determination that truck owner-operators were employees because the employers either “explicitly reserved the right to supervise the work” or “in practice had exercised pervasive control over the owner-operators”; stated in dictum that a truck driver “may be deemed an employee rather than an independent contractor, if the principal explicitly or implicitly reserves the right to supervise the details of his work.”) Joint Council is not inconsistent with the result we reach because the Companies do not reserve the right to control the details of the lessee drivers’ work, nor do they in fact exercise pervasive control.

. See Local 814, I.B.T. (Santini Brothers), 223 NLRB 752 (1976), aff’d, Local 814, Int’l Bhd. of Teamsters v. NLRB, 178 U.S.App.D.C. 223, 546 F.2d 989 (1976), cert. denied, 434 U.S. 818, 98 S.Ct. 56, 54 L.Ed.2d 73 (1977).

. 223 NLRB at 753.

. In Columbus Green Cabs I, 214 NLRB 751 (1974) the Board found that lessee drivers were independent contractors despite a no subleasing provision. The Board in a later decision held in Columbus Green Cabs II, 237 NLRB No. 176 (1978) that the drivers were employees. The Board said it changed its position “based on an expanded current record” which included significant additional evidence of control. 237 NLRB No. 176 at 6. See 195 U.S.App.D.C. at

, n.22. 603 F.2d at 871, n.22. The subleasing provision, therefore, is not overwhelmingly important.

. Perhaps this is why the Board’s petition for rehearing referred to the “pervasive scheme of municipal regulations” (at 7), but did not even mention the Companies’ requirement that these regulations be followed.

. The Board states that employees ’ references undergo similar checks, but the similarities in the method of handling the applications does not in any way indicate any control over drivers. Reference checks are a common business practice in non-employee situations (e. g. apartment leasing, bank loans, franchise agreements); this is not evidence that the lessee drivers are employees. Such checks are required by the law to weed out those with certain criminal records if the owner of an automobile wants to protect his property against forfeiture to the government for carrying contraband drugs. That a lessor follows the practice of only contracting with responsible persons is no indication of control over such person’s actions.

. 229 NLRB at 1331.

. The Board did not mention this factor in its petition, and the Board’s opinion never explains how this factor is relevant to control. Yellow Cab Co., 229 NLRB at 1332-33.

Cf. Joint Council of Teamsters No. 42 v. NLRB, 146 U.S.App.D.C. 275, 286, 450 F.2d 1322, 1333 (1971).

. App. 53a.

. 229 NLRB at 1332.

. App. 56a. Companies’ Response to the Petition for Rehearing 9 n.7. Neither the Board’s opinion nor the petitions for rehearing state the nature of the supposedly significant dress restrictions.

. App. 56a.

. Union Petition 5.

In SIDA of Hawaii, Inc. v. NLRB, 512 F.2d 354, 358-59 (9th Cir. 1975) the Court reversed a Board order and held that lessee drivers were independent contractors despite an extensive dress code requiring uniforms and name tags. No petition for rehearing was filed.

. 229 NLRB at 1333.

. 229 NLRB at 1332-33.

. Local 814, I.B.T. (Santini Brothers), 233 NLRB 752 (1976).

. 195 U.S.App.D.C. at 293, 603 F.2d at 875 quoting 4 Kheel, Labor Law 14-139 (1978).

. The “hiring of others” referred to was a general reference to the relationship of artisans, and not to those instances where the work by its nature is not transferrable. This minimal restriction on the lessee drivers’ freedom pointed to by the Board and the Union is not sufficient to change the drivers’ status to that of “employees” — obviously only one person can drive a cab at one time and contracting on that basis is not pervasive control.

. NLRB Petition 8.

. JA 58a-61a.

. 322 U.S. at 130, 64 S.Ct. at 860.

. 229 NLRB at 1332.

. 229 NLRB at 1333.

. Allied Chemical, supra, also stated: “we have never immunized Board judgments [as to which persons are ‘employees’ under the Act] from judicial review.” 404 U.S. at 166, 92 S.Ct. at 390.

. 229 NLRB at 1333.

. 195 U.S.App.D.C. 304, 603 F.2d 886. The Court also noted that the decision to lease was probably not a mandatory subject of bargaining under Fibreboard, supra. But because of the “ambiguity” in that area of the law, the Court’s decision rested on the Union’s preclusion of bargaining.

. NLRB Petition 10.

.Union Petition 13.

. JA 47a.

. JA 62a (emphasis added).

. 229 NLRB 1329. The Board’s petition for rehearing, of course, does not challenge this factual conclusion. The Union, however, argues that “there are two kinds of bargaining obligations”: (1) bargaining about the decision to lease, and (2) bargaining about the effects of that decision. The Union maintains that it only required recognition as a prerequisite to bargaining about the effects of the leasing decision. The ALJ’s and Board’s opinions do not support this claim, and the Union cites no evidence that does.

. 229 NLRB at 1334.

. R. Gorman, Basic Text on Labor Law 528 (1976). See NLRB v. Sheet Metal Workers Int’l Ass’n, 575 F.2d 394, 398 (2d Cir. 1978).

. Accord: NLRB v. Retail Clerks Int’l Ass’n, 203 F.2d 165, 169-70 (9th Cir. 1953), cert. denied, 348 U.S. 839, 75 S.Ct. 47, 99 L.Ed. 662 (1954) (union may not insist on representing supervisors who are not employees).

. See Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971) (Held that retirees’ benefits are not a mandatory subject of bargaining, although employees’ benefits are a mandatory subject: (1) “pensioners are not ‘employees’ within the meaning of the collecfive-bargaining obligations of the Act”; and therefore, (2) “they were not and could not be ‘employees’ included in the bargaining unit.”); Retail Clerks, supra at n.61.

. 229 NLRB 1329.

. NLRB Petition 10-11.

. It is well established that the findings of the administrative law judge are a part of the entire record and must be considered by the Court when it determines whether the Board has decided in accordance with substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 493, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Int'l Bhd. of Teamsters v. NLRB, 190 U.S.App.D.C. 279, 283, 587 F.2d 1176, 1180 (1978); *330Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 396, 444 F.2d 841, 853 (1970) (Leventhal, J.).

. NLRB Petition 10.

. Complaint, Yellow Cab Co. v. Local 777, No. 13-CA-14142, at 4.

. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 142, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975).

. JA 46a (ALJ opinion).

. Burlington Truck Lines, Inc. v. United States. 371 U.S. 156. 168-69. 83 S.Ct. 239. 9 L.Ed.2d 207 (1962); SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Ace Motor Freight, Inc. v. ICC, 181 U.S.App.D.C. 236, 241, 557 F.2d 859, 864 (1977).

. See JA 47a, cited in text at n.56.

. JA 45a (ALJ opinion).

. JA 46a (ALJ opinion).

. Id.

. JA 48a.

. Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass, 427 F.2d 936, 945 (6th Cir. 1970), aff’d, 404 U.S. 157, 165, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971).

. 229 NLRB at 1330 (footnote omitted). Justice Brennan in Allied Chemical, supra, remarked: “[T]he term ‘employee’ is not to be stretched beyond its plain meaning, embracing only those who work for another for hire." 404 U.S. at 166, 92 S.Ct. at 391 (emphasis added).

. JA 48.