The opinion
BROWNING, Circuit Judge,
dissenting:
The majority, it seems to me, crosses the line between review and de novo determination. The Board’s judgment is not accorded the deference that is its due. It is the Board’s function, not the courts’, to accommodate the employer’s right to transfer his business and the union’s right to a stable collective bargaining relationship, and, as part of that task, to evaluate the bona fides of a particular transfer of a particular business. See NLRB v. Lewis, 246 F.2d 886 (9th Cir. 1957).
It is improper for a reviewing court to 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.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 , 71 S.Ct. 465 (1951). See also NLRB v. Miller Redwood Co., 407 F.2d 1366, 1369 (9th Cir. 1969); Suprenant Manufacturing Co. v. NLRB, 341 F.2d 756, 760 (6th Cir. 1965). The Board has made such a choice in this instance. Indeed, a brief consideration of the law and facts will demonstrate that the Board’s view of the record is more reasonable than that adopted by the majority.
The Board did not find that respondent and Cynatron were a “single integrated enterprise” or a “single employer,” as the majority suggests. The Board did find that “Shaw and Krutilek were [respondent’s] employees, or at best its agents or managers.” 216 N.L.R.B. at 1113. The majority finds instead that Shaw and Krutilek were independent contractors.
In distinguishing between independent contractors and employees for purposes of the Act, the Board and the courts must apply general agency principles. NLRB v. United Insurance Co., 390 U.S. 254, 256 , 88 S.Ct. 988 , 19 L.Ed.2d 1083 (1968). The principal inquiry is the right of control respondent reserved over Cynatron’s operation of the business. Associated Independent Owner-Operators, Inc. v. NLRB, 407 F.2d 1383, 1385 (9th Cir. 1969). The majority incorrectly implies that it is not the right to intervene but the control actually exercised that is determinative. The law is to the contrary. Joint Council of Teamsters No. 42 v. NLRB, 146 U.S.App.D.C. 275 , 450 F.2d 1322 , 1327 (1971); Associated Independent Owner-Operators, Inc. v. NLRB, supra, 407 F.2d at 1387.
Respondent retained the power to impose a ceiling on operating expenditures, including labor costs, and could therefore effectively control the operation of the theater, including the number and kinds of employees that could be hired. Respondent also tied Cynatron’s bookkeeping in with its own and reserved the right to assist Cynatron in buying and booking films. Shaw and Krutilek had no personal investment in the enterprise; they paid no money down and advanced no security for the theater equipment. They brought no previous skill or experience to the business. Their opportunity for profit was closely circumscribed by the sublease; in addition to rental payments and commission on concessions, respondent reserved an amount equal to 75 percent of the net profits.
Under the terms of the sublease, Shaw and Krutilek enjoyed only nominal entrepreneurial independence, faced no risk of loss, had only a limited opportunity for profit, and made no personal investment in the business. These facts indicate an employee and not an independent contractor relationship. See Brown v. NLRB, 462 F.2d 699 , 703 (9th Cir. 1972). Moreover, their lack of special expertise, the fact that they were paid primarily on a weekly basis, and the fact that respondent supplied all the instrumentalities of the business also suggest they are simply employees. See Restatement of Agency 2d § 220.
*133 On this record, the Board’s conclusion should be accepted and its order enforced.