Fedex Home Delivery v. National Labor Relations Board

dissenting in part:

In National Labor Relations Board v. United Insurance Co. of America, the Supreme Court held that Congress intended “the Board and the courts” to “apply the common-law agency test ... in distinguishing an employee from an independent contractor” under the National Labor Relations Act (NLRA). 390 U.S. 254, 256, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). In this case, the National Labor Relations Board (NLRB) applied that multi-factor test and concluded that FedEx Home Delivery’s drivers are the company’s employees. My colleagues disagree, concluding that the drivers are independent 'contractors.

This is not merely a factual dispute. Underlying my colleagues’ conclusion is their view that the common-law test has gradually evolved until one factor— “whether the position presents the opportunities and risks inherent in entrepreneurialism” — has become the focus of the test. Op. at 497, 503. Moreover, in their view, this factor can be satisfied by showing a few examples, or even a single instance, of a driver seizing an entrepreneurial opportunity. Id. at 502.

Although I do not doubt my colleagues’ sincerity, I detect no such evolution. To the contrary, the Board and the courts have continued to follow the Supreme Court’s injunction that “there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” United Ins., 390 U.S. at 258, 88 S.Ct. 988. The common-law test may well be “unwieldy,” Op. at.497, but a court of appeals 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.’ ” United Ins., 390 U.S. at 260, 88 S.Ct. 988 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). While the NLRB may have authority to alter the focus of the common-law test, see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 863-64, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), this court does not. Because “the least that can be said for the Board’s decision is that it made a choice between two fairly conflicting views, ... the Court of Appeals should have enforced the Board’s order.” United Ins., 390 U.S. at 260, 88 S.Ct. 988. Accordingly, on the *505existing record, I cannot join in condemning the Board’s determination.

I can and do, however, fault the Board’s refusal to give FedEx a fair opportunity to make its case under the appropriate test. As the court correctly notes, the Regional Director refused to permit FedEx to introduce evidence that may be relevant to the question of whether its drivers have significant entrepreneurial opportunities. Regardless of whether one considers entrepreneurial opportunity as only one factor (as it is in the common-law test) or as the focus of the test (as my colleagues believe it to be), FedEx surely had the right to introduce the evidence necessary to make its case.

I

A

The NLRA makes it “an unfair labor practice for an employer ... to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Section 2(3) of the Act, as amended by the 1947 Labor Management Relations Act, provides that the term “employee” “shall not include ... any individual having the status of an independent contractor.” 29 U.S.C. § 152(3). In United Insurance, the Supreme Court held that 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.... Thus there is no doubt that we should apply the common-law agency test ... in distinguishing an employee from an independent contractor.” United Ins., 390 U.S. at 256, 88 S.Ct. 988.1 The Court recognized that “[tjhere are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or an independent contractor.... In such a situation as this there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles.” Id. at 258, 88 S.Ct. 988.

The cases under review in United Insurance presented the question of whether certain agents of an insurance company were employees or independent contractors. The Supreme Court determined that

the decisive factors in these cases become the following: the agents ... perform functions that are an essential part of the company’s normal operations; they need not have any prior training or experience, but are trained by company supervisory personnel; they do business in the company’s name with considerable assistance and guidance from the company and its managerial personnel and ordinarily sell only the company’s policies; the “Agent’s Commission Plan” that contains the terms and conditions under which they operate is promulgated and changed unilaterally by the company; the agents account to the company for the funds they collect under an elaborate and regular reporting procedure; the agents receive the benefits of the company’s vacation plan and group insurance and pension fund; and the *506agents have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory.

Id. at 258-59, 88 S.Ct. 988. The Court confirmed that the Board had “examined all of these facts and found that they showed the debit agents to be employees.” Id. at 260, 88 S.Ct. 988. This finding, the Court said, “involved the application of law to facts — what do the facts establish under the common law of agency: employee or independent contractor?” Id. Although the Court noted that such a determination “involved no special administrative expertise that a court does not possess,” it nonetheless held that, “ ‘even as to matters not requiring expertise,’ ” a court of appeals 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.’ ” Id. (quoting Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456). As long as it “can be said for the Board’s decision ... that it made a choice between two fairly conflicting views, ... the Court of Appeals should ... enforce[ ] the Board’s order. It [is] error to refuse to do so.” Id.

In the succeeding decades, the NLRB has consistently “[a]ppl[ied] the common-law agency test as interpreted by the Supreme Court in NLRB v. United Insurance Co.” to determine whether a worker is an employee or an independent contractor. Roadway Package Sys., Inc. (Roadway II), 326 N.L.R.B. 842, 843 (1998); id. at 849 (declaring that the Supreme Court’s “cases teach us not only that the common law of agency is the standard to measure employee status but also that we have no authority to change it”).2 In so doing, the Board has looked to the Restatement (Second) of Agency for the factors relevant to making that determination. See, e.g., cases cited supra note 2. Those ten (nonexhaustive) factors are set out in the margin.3 Following the injunction of the Supreme Court, the Board has continued to reaffirm that “ ‘all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.’ ” Roadway III, 326 N.L.R.B. at 850 (quoting United Ins., 390 U.S. at 258, 88 S.Ct. 988); see, e.g., Ariz. Republic, 349 N.L.R.B. at 1042-46; St. Joseph News-Press, 345 N.L.R.B. at 477-78.

This Circuit has likewise recognized that “Congress intended that traditional agency *507law principles guide the determination whether workers are employees ... or independent contractors,” N. Am. Van Lines, Inc. v. NLRB (NAVL), 869 F.2d 596, 598 (D.C.Cir.1989), and has looked to the Restatement factors for those principles, id. at 599-600. See Local 777, Democratic Union Org. Comm. v. NLRB (Local 777), 603 F.2d 862, 872-73 (D.C.Cir.1978); cf. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (citing both United Insurance and the Restatement’s “nonexhaustive list of factors relevant to determining whether a hired party is an employee” in construing the meaning of the term “employee” under the Copyright Act of 1976). “[T]he ultimate determination,” we have said, “requires a broad examination of all facets of the relationship between [the] company and” the worker. NAVL, 869 F.2d at 604 (citing United Ins., 390 U.S. at 258, 88 S.Ct. 988); see C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C.Cir.1995). As we further noted in NAVL, “[i]n applying traditional agency law principles, the NLRB and the courts have adopted a right-to-control test.” 869 F.2d at 599. That “test requires an evaluation of all the circumstances,” but it focuses the greatest attention on those factors indicating “ ‘the extent of the actual supervision exercised by a putative employer over the “means and manner” of the workers’ performance.’ ” Id. (quoting Local 777, 603 F.2d at 873); see C.C. Eastern, 60 F.3d at 858 (same).4

B

My colleagues contend that “[gradually,” both this Court and the Board shifted away from “the unwieldy control inquiry in favor of a more accurate proxy: whether the ‘putative independent contractors have significant entrepreneurial opportunity for gain or loss.’ ” Op. at 496-97 (quoting Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777, 780 (D.C.Cir.2002)). “[W]hile all the considerations at common law remain in play,” my colleagues maintain that now the “emphasis” is on “whether the position presents the opportunities and risks inherent in entrepreneurialism.” Id. at 497.

The cases, however, do not evidence this gradual evolution to a test that emphasizes entrepreneurial opportunity. According to my colleagues, the evolutionary process began “implicitly]” in our decisions in NAVL and C.C. Eastern. Op. at 497. It is true that those decisions listed entrepreneurial opportunity as a relevant factor, notwithstanding that it is not expressly mentioned in either United Insurance or the Restatement (or in any comment to the Restatement5). But those decisions explicitly stated that entrepreneurial opportunity was only one of multiple factors to consider' — and not the most important one.

*508In C.C. Eastern, for example, we concluded that the entrepreneurial opportunities afforded by a driver’s “right to hire ... his own employees to help him” and to “use his tractor himself to haul for anyone” had “some probative weight,” but that they were “less important to our determination of the drivers’ status than [wa]s the absence of evidence that the Company supervises the means and manner of their work.” 60 F.3d at 859, 860 (emphasis added).6 Similarly, we said in NAVL that: “Other factors [than control] weigh in the determination,” including “the extent to which the worker has assumed entrepreneurial risk and stands to gain from risks undertaken.... However, these factors are of far less importance than the central inquiry whether the corporation exercises control over the manner and means of the details of the worker’s performance; indeed, these factors are probative only to the extent that they bear upon and further that inquiry.” 869 F.2d at 599-600 (emphasis added). Nothing in these unambiguous declarations suggests any kind of “struggle[] to articulate exactly what we meant” in those cases. Op. at 496. The contention that C.C. Eastern and NAVL implicitly signaled the advent of an evolutionary process, id. at 496-97, is simply incorrect.

My colleagues cite only one case from this (or- any) Circuit, our 2002 opinion in Corporate Express, for the proposition that entrepreneurial opportunity has “explicitly]” become the emphasis of the independent contractor test. Op. at 497. I do not dispute that theirs is one fair reading of that opinion, which contains considerable language regarding entrepreneurial opportunity and the benefits of using such a test. But Corporate Express did not purport to overrule Supreme Court, Circuit, and Board precedent. Indeed, in affirming as reasonable the Board’s determination that the owner-operator drivers in that case were not independent contractors, the court not only agreed that they lacked entrepreneurial opportunity, but also acknowledged that the Board may have correctly determined that the employer controlled the way in which they performed their jobs. Corporate Express, 292 F.3d at 779-80. Hence, Corporate Express can also be read as merely holding that the Board was reasonable in determining that entrepreneurial opportunity tipped the balance in that case — a logical result given that the court thought the vector of the other common-law factors somewhat unclear, see id. at 780 & n. *, while finding that the “owner-operators lacked all entrepreneurial opportunity,” id. at 780-81 (emphasis added). And when there are two possible readings of an opinion, only one of which is consistent with earlier precedent, the appropriate course is to adopt the consistent reading — on the presumption that the court followed the command of stare decisis. Cf. Indep. Cmty. Bankers of Am. v. Bd. of Governors of the Fed. Reserve Sys., 195 F.3d 28, 34 (D.C.Cir.1999) (“In the event of conflicting panel opinions ... the earlier one controls, as one panel of this court may not overrule another.” (internal quotation marks and citation omitted)).7

*509There was certainly nothing in the NLRB’s opinion in Corporate Express to suggest that entrepreneurial opportunity had become the focus of the Board’s own analysis. To the contrary, the Board simply followed its traditional approach of examining the common-law factors — including, inter alia, both entrepreneurial opportunity and employer control. Corporate Express Delivery Sys., 332 N.L.R.B. 1522, 1522 (2000). After doing so, it concluded that, “weighing all of the incidents of their relationship with the Respondent, we find that the owner-operators are employees and not independent contractors.” Id. (emphasis added).

My colleagues maintain that the evolution toward an emphasis on entrepreneurial opportunity “seems to play a part in the Board’s own cases,” although they “readily concede the Board’s language has not been ... unambiguous.” Op. at 498. The principal NLRB decision upon which they rely is Arizona Republic, a decision issued after the Regional Director’s decision in this case. Ariz. Republic, 349 N.L.R.B. 1040 (May 8, 2007). But Arizona Republic does not support my colleagues’ proposition either. Once again, it is true that one of the factors weighing in favor of the independent contractor determination in that case was “entrepreneurial potential.” Id. at 1042. There simply is no indication, however, that this factor was the “emphasis” of the test Arizona Republic applied. To the contrary, the Board announced that, “[i]n determining the status of the [newspaper] carriers in this case, we rely on ... the common-law factors.” Id. at 1043. It then proceeded to examine the Restatement factors individually, id. at 1043-46, repeating its oft-stated mantra that “this list of factors is not exclusive or exhaustive, and that, in applying the common-law agency test, [we] will consider ‘all the incidents of the individual’s relationship to the employing entity,’ ” id. at 1042 (quoting Roadway III, 326 N.L.R.B. at 850). The Board ultimately concluded that the majority of the factors “weigh[ed] in favor” of finding that the carriers were independent contractors. Id. at 1043-46. One of those factors was entrepreneurial opportunity; another was the employer’s lack of control over the carriers. Id. But the Board gave pride of place to neither one, declaring only that the common-law factors, “on balance,” yielded the conclusion that the carriers were independent contractors. Id. at 1043. The same traditional common-law analysis was employed in both of the other NLRB decisions that my colleagues cite. Op. at 498.8

Finally, I do not dispute my colleagues’ contention that the multi-factor analysis of the common law is “not especially amenable to any sort of bright-line rule.” Op. at 495-96. Although they acknowledge that an emphasis on entrepreneurial opportunity “does not make applying the test purely mechanical,” they maintain that “the line drawing is easier” under that test. Id. at 498. There is no question that the common-law agency test makes for difficult line drawing. Indeed, the Supreme Court expressly acknowledged as much when it announced the test. See United Ins., 390 U.S. at 258, 88 S.Ct. 988 (“There are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or *510an independent contractor.... ”). It may also be true that line drawing under an entrepreneurial opportunity test would be easier, although that is hardly assured. After all, while my colleagues perceive clear entrepreneurial opportunity in this case, neither the Board nor I see it that way. See infra Part II.

But the comparative practical advantage of one or the other of these two tests has no bearing on which one we must apply. Although the NLRB may have authority to alter the test, or at least to alter its focus, see Chevron, 467 U.S. at 842-43, 863-64, 104 S.Ct. 2778, this court does not. Until the Supreme Court or the Board tells us differently, we must continue to apply the multi-factor common-law test as set forth by the Supreme Court and applied by the Board.

II

In this case, the NLRB’s Regional Director applied the traditional “common law agency test.” FedEx Home Delivery and Local 25, N.L.R.B. Case Nos. 1-RC-22034, 22035, slip op. at 33 (First Region, Sept. 20, 2006) [hereinafter Regional Director’s Decision], In so doing, she “considered] all the incidents of the individual’s relationship with the employing entity,” id., including both the extent of FedEx’s control over the drivers and the extent of the drivers’ entrepreneurial opportunities, id. at 35-36. Although the Regional Director acknowledged many of the facts cited by my colleagues in support of FedEx’s contention that the contractors are independent contractors, facts that I do not rehearse here, she concluded that they were outweighed by other factors supporting employee status. Id. at 39. Part II.A reviews the bulk of the factors that the Director found to support employee status. Part II.B discusses her analysis of the issue of entrepreneurial opportunity.

A

In a lengthy and considered opinion, the Regional Director found the following facts to favor a determination that FedEx Home Delivery’s drivers, whom the company calls “contractors,” were employees:

[A]ll the FedEx Home contractors perform a function that is a regular and essential part of FedEx Home’s normal operations, the delivery of packages.... [A]ll contractors must do business in the name of FedEx Home[,] ... wear[ ] FedEx Home-approved uniforms and badges, ... [and] operate vehicles that must meet FedEx Home specifications and uniformly display the FedEx Home name, logo, and colors.... No prior delivery training or experience is required, and FedEx Home will train those with no experience....

... [Contractors are not permitted to use their vehicles for other purposes while providing service for FedEx Home. The contractors have a contractual right to use their FedEx Home trucks in business activity outside their relationship with FedEx Home during off-hours, provided they remove all FedEx Home markings, but only one former multiple route contractor ... and no current contractors at either Wilmington terminal have ever done so....

... FedEx Home exercises substantial control over all the contractors’ performance of their functions. FedEx Home offers what is essentially a take-it-or-leave-it agreement.... [It] retains the right to reconfigure the service area unilaterally. All contractors must furnish a FedEx Home-approved vehicle and FedEx Home-approved driver daily from Tuesday through Saturday; they do not have discretion not to provide delivery service on a given day. While all contractors control their starting times and take breaks when they wish, their control over their work schedule is *511circumscribed by the requirement that all packages be delivered on the day of assignment____

... FedEx Home provides support to all its contractors in various ways that are inconsistent with independent contractor status.... FedEx Home provides extensive support to contractors by offering the Business Support Package and arranging for the required insurance, thus providing an array of required goods and services that would be far more difficult for contractors to arrange on their own.... FedEx Home also offers to arrange for approved substitute drivers for its contractors by virtue of the Time Off Program. FedEx Home provides contractors who maintain sufficient vehicle maintenance accounts with $100 per accounting period to help defray repair costs[, and] requires contractors to permit FedEx Home to pay certain vehicle-related taxes and fees on their behalf and to have the payments deducted from their settlement.

Regional Director’s Decision at 34-37 (internal citations omitted). Many of these are the kind of facts that United Insurance, the Restatement, and numerous Circuit and Board decisions confirm are indicative of employee status.9

My colleagues nonetheless reject the import of many of these facts, arguing that they merely “reflect differences in the type of service the contractors are providing rather than differences in the employment relationship.” Op. at 501. In particular, the court rejects the import of the following requirements imposed by FedEx: that drivers wear a recognizable uniform; that vehicles be of a particular color and size range; that trucks display the FedEx logo in a size larger than Department of Transportation regulations require; that drivers complete a driving course if they do not have prior training; that drivers submit to two customer service rides per year to audit their performance; and that a truck and driver be available for deliveries every Tuesday through Saturday. Id. The courts and the Board,10 however, have repeatedly regarded the presence or absence of these very factors as important in determining whether a worker is an employee or independent contractor.11

*512One factor that the Regional Director emphasized was that the drivers “perform a function that is a regular and essential part of FedEx Home’s normal operations, the delivery of packages” to homes. Op. at 502. Although my colleagues acknowledge that “the essential nature of a worker’s role is a legitimate consideration,” they minimize it as “not determinative.” Id. But that is true of every factor in the common-law test. See United Ins., 390 U.S. at 258, 88 S.Ct. 988 (holding that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive”). Moreover, the cases have repeatedly cited this particular factor in concluding that workers are employees.12 In short, there is no basis for discounting the significance of the traditional factors upon which the Regional Director relied in concluding that the FedEx drivers are employees rather than independent contractors.

B

In accord with court and agency precedent, the Regional Director also considered whether FedEx Home Delivery’s drivers have significant entrepreneurial opportunity for gain or loss. For the following reasons, she concluded that the evidence of entrepreneurial opportunity was weak:

The contractors’ compensation package also supports employee status. With [one] exception ..., FedEx Home unilaterally establishes the rates of compensation for all contractors.... [T]here is little room for the contractors to influence their income through their own efforts or ingenuity, as their terminal manager determines, for the most part, how many deliveries they will make each day.... A contractor’s territory may be unilaterally reconfigured by FedEx Home. FedEx Home tries to insulate its contractors from loss to some degree by means of the vehicle availability payment, which they receive just for showing up, and the temporary core zone density payment, both of which payments guarantee contractors an income level predetermined by FedEx Home, irrespective of the contractors’ personal initiative. FedEx Home also shields drivers from loss due to substantial increases in fuel prices by means of the fuel/mileage settlement.

Regional Director’s Decision at 37.

Notwithstanding these findings, my colleagues perceive many “characteristics of entrepreneurial potential” in the drivers’ relationship to FedEx. Op. at 498. Some of the characteristics they cite, however, appear to have little to do with entrepreneurial opportunity. For example, the court’s opinion notes that FedEx’s Standard Contractor Operating Agreement “specifies the contractor is not an employee of FedEx for any purpose.” Id. at 498-99. But the label FedEx puts on its rela*513tionship with its workers does not affect whether they have entrepreneurial opportunity for gain or loss.13

My colleagues also observe that FedEx “may not prescribe hours of work [or] whether or when the contractors take breaks,” and that the drivers “are not subject to reprimands or other discipline,” Op. at 498 — all of which go not to the workers’ entrepreneurial opportunity but to the extent of the employer’s control, a factor discussed in Part II.A above. In any event, although FedEx does not fix specific hours or break times, it does require its contractors to provide delivery services every day, Tuesday through Saturday, and to finish each day’s deliveries by the end of the day. Regional Director’s Decision at 17, 36.14 The insurance agents in United Insurance had neither fixed hours nor fixed break times, yet the Supreme Court affirmed the Board’s determination that they were employees. See 390 U.S. at 258, 88 S.Ct. 988 (noting that the “agents perform their work primarily away from the company’s offices and fix their own hours of work and work days”). And while FedEx does not have a disciplinary system based on “reprimands,” Op. at 498, it does deny drivers bonuses if they fail release audits and uses both counseling and termination as tools to ensure compliance with work rules. Regional Director’s Decision at 12, 21. Again, the same was true in United Insurance. See 390 U.S. at 258, 88 S.Ct. 988 (noting that if a complaint against an agent is “well founded, the manager talks with the agent to set him straight,” “caution[s]” him, and “[i]f improvement does not follow,” the company may “fire [him] at any time”).

In addition, my colleagues state that “[a]t least one contractor has negotiated with FedEx for higher fees.” Op. at 499. Without agreeing that a worker’s ability to negotiate his salary takes him out of the category of “employee,” the Regional Director rightly regarded the only evidence on this point as quite weak: One former manager testified that one former driver “once requested some customer service rides to gauge if his core zone payment was set properly, and the payment was raised as a result, although [the manager] was not sure by how much. There is no evidence that any other contractors at the Wilmington facilities have negotiated a change in their core zone payment.” Regional Director’s Decision at 20.

Closer to the mark on the issue of entrepreneurial opportunity is the court’s observation that drivers “are responsible for all the costs associated with operating and *514maintaining their vehicles.” Op. at 498.15 But FedEx does much to limit the drivers’ risk of loss. As the Regional Director found, the company “shields drivers from loss due to substantial increases in fuel prices by means of the fuel/mileage settlement” and guarantees them a significant amount of income “just for showing up.” Regional Director’s Decision at 37. My colleagues maintain that this “contractual willingness to share a small part of the risk ... does not an employee make.” Op. at 502. The NLRB reasonably differs, as to both the magnitude of the shared risk and its import.

My colleagues further note that, under the Operator Agreement, drivers “may use the vehicles for other commercial or personal purposes” when they are not in the service of FedEx, “so long as they remove or mask all FedEx Home logos and markings.” Op. at 498. But do the drivers actually use their trucks for other purposes? Not so much. Indeed, the most that can be said is that “some do use them for personal uses like moving family members,” id., hardly an indicator of a “ ‘significant entrepreneurial opportunity for gain or loss,’ ” id. at 497 (quoting Corporate Express, 292 F.3d at 780). Although the drivers’ use of their trucks to conduct business independent of FedEx could well be an indicator of entrepreneurialism, the Regional Director found that “no current contractors at either Wilmington terminal have ever done so.” Regional Director’s Decision at 35.16 Nor would they have much time, even if they wanted to. The Operator Agreement states that the company “seek[s] to manage its business so that it can provide sufficient volume of packages to Contractor to make full use of Contractor’s equipment.” FedEx Home Delivery Standard Contractor Operating Agreement, Private Background Statement (J.A. 720) (emphasis added). The contractor must provide daily service,17 and “[wjhile the Equipment is in the service of [FedEx], it shall be used by Contractor exclusively for the carriage of the goods of [FedEx], and for no other purpose.” Id. § 1.4 (J.A. 722).

Based on these facts, the Regional Director found that the

“lack of pursuit of outside business activity appears to be less a reflection of entrepreneurial choice by the ... drivers and more a matter of the obstacles created by their relationship with [the Company.]” Thus, the contractors’ contractual right to engage in outside business falls within the category of “entrepreneurial opportunities that they cannot realistically take,” because the contractors’ work schedules prevent them from taking on additional business during their off-hours during the workweek.

Regional Director’s Decision at 35 (quoting Roadway III, 326 N.L.R.B. at 851 & n. 36). That is at least a fair conclusion, and consequently one that we may not displace. See United Ins., 390 U.S. at 260, 88 S.Ct. 988.

*515Another indicator of entreprene