The opinion
MURNAGHAN, Circuit Judge,
dissenting:
The case concerns whether Henry Cunningham was an “employee” of Tri-State Transport Corporation (Tri-State), and *998 therefore covered by the National Labor Relations Act, 29 U.S.C. § 152 (3) (1976), or whether he possessed independent contractor, or some other inconsistent status in relation to a vehicle lessor, deemed to exclude him from the protections of the Act. Because I believe that the record as a whole evidences substantial support for the Board’s view that Cunningham was an employee within the meaning of § 2(3) of the Act, 29 U.S.C. § 152 (3), I respectfully dissent. 1
In the labor relations context, Congress has entrusted the Board with the principal duty of determining whether a particular person is an employee or not. Under the substantial evidence standard, where there are two “fairly conflicting views” of the matter, a reviewing court must defer to the Board’s judgment. NLRB v. United Ins. Co., 390 U.S. 254, 260 , 88 S.Ct. 988, 991 , 19 L.Ed.2d 1083 (1968). Our mission on review is not to sift and weigh the evidence, or to choose between conflicting versions of the facts, but solely to determine whether the line the Board has drawn is reasonably based in the record. The majority view, unfortunately, allows insufficient weight to certain significant evidence upon which the Board has relied, and fails altogether to mention other facts which for the Board were dispositive. The majority decision amounts to a de novo review of Cunningham’s status and concludes that Cunningham “was either an employee of or a profit sharer with Joseph Coss.” At 997. There appears to be an implicit further conclusion that such status would preclude a finding that Cunningham was a Tri-State employee. With respect, I disagree with the majority’s conclusions.
As a basis for departure, I first mention my agreement with the majority position that whether a particular person is an employee is to be tested under the “right to control” doctrine borrowed from the common law of agency. NLRB v. A. S. Abell Co., 327 F.2d 1, 4 (4th Cir. 1964). See United Ins. Co., supra, 390 U.S. at 258 , 88 S.Ct. at 990 . Applying the right to control criterion has proved to be a difficult proposition for both the Board and the courts of appeal in the context of the highly regulated trucking industry in which the classic employer-employee relationship is rarely found. In the interests of responsible trucking and highway safety, government agencies such as the Interstate Commerce Commission (ICC) and the Department of Transportation (DOT) require carriers to adopt particular relationships to equipment lessors and exert certain types of controls over the drivers of leased vehicles. One issue is the weight to be accorded those aspects of an employment relationship that are mandated by federal regulations. As does the majority, I reject the view that the forms of employee control mandated by such regulations, merely because compelled or “involuntary,” should- therefore be discarded in determining employee status.
First, many employers are “involuntarily” subject to the provisions of the Act. Second, while perhaps involuntary for an employer, obedience to ICC or DOT regulations is also involuntary for the employee. If Congress and various regulatory agencies have validly required the nation’s shippers or haulers to exercise considerable control over their drivers in the interest of highway safety, there is no reason why such controls should not play a significant role in determining whether certain drivers are “employees” within the meaning of the Labor Relations Act. For purposes of tort law and workers compensation, the government regulations create what has been termed a “statutory employee.” White v. Excalibur Ins. Co., 599 F.2d 50, 52-53 (5th Cir.), cert. denied, 444 U.S. 965 , 100 S.Ct. 452 , 62 L.Ed.2d 377 (1979). Consequently, if the overall effect of government regulation is to require someone to exercise employer like controls over a particular person, he is nonetheless an employee. Congress contemplated that such a statutory employee should be accorded the labor Act’s protec *999 tions against potential abuses of employer power, even though the employer might have preferred a relationship other than that of employer-employee.
Recognizing that the right to control, and not the reason for its existence, is the crucial element, apparently every reviewing court decision in the trucking context relies on regulatory mandates as significant, if not definitive, factors in resolving the question of whether a particular driver is an employee. See, e. g., NLRB v. A. Duie Pyle, Inc., 606 F.2d 379, 385 (3d Cir. 1979); NLRB v. Deaton, Inc., 502 F.2d 1221, 1225 (5th Cir. 1975), cert. denied, 442 U.S. 1047 , 95 S.Ct. 2665 , 45 L.Ed.2d 700 (1975). Therefore, we are called upon carefully to consider all incidents governing the actual relationship between the parties, see United Ins. Co., supra, 390 U.S. at 258-60 , 88 S.Ct. at 990-91 , without regard to whether some of the control derives from government regulation. Ace Doran Hauling & Rigging Co. v. NLRB, 462 F.2d 190, 194 (6th Cir. 1972). Furthermore, and in any event, the Board relied on ample evidence showing that TriState exercised controls over Cunningham that substantially exceeded Tri-State controls arguably mandated by federal regulations.
Evidence received at the hearing showed that Cunningham, an unemployed driver, had accompanied Violet Coss, wife of Joseph Coss, to negotiate the equipment lease. 2 The same day, Cunningham filled out an “Application for Employment” required by Tri-State of all its employees. 3 In accordance with federal regulations governing “regularly employed drivers,” Cunningham was given a physical examination and a truckdriving test. 4 Significantly, the lease gave Tri-State “exclusive possession, control, and use of equipment for the duration of this Agreement.” See Deaton, supra, 502 F.2d at 1225 (“Control over trucks involves control over drivers”). Tri-State also assumed responsibility for insuring the truck and the driver for public liability and property damage.
*1000 Over and beyond the “involuntary” incidents to which we have referred, and which constitute evidence that an employer-employee relationship existed between TriState and Cunningham, the Board also relied on extensive record evidence showing that Tri-State, as a matter of choice and not as a consequence of ICC or DOT mandates, repeatedly and directly exercised controls over Cunningham’s work. The controls took three distinct forms: first, the evidence was abundant and uncontradicted that Jean Witsberger, President of TriState, held herself out to Cunningham, Coss, and Coss’ wife as Cunningham’s “boss,”, and imposed upon Cunningham a special code of conduct; second, Tri-State exercised direct and immediate supervision of Cunningham’s work; and third, Tri-State enforced certain rules that effectively prevented Cunningham from seeking or accepting other work.
First, the evidence showed that Tri-State held itself out as Cunningham’s employer. Under General Counsel examination, Cunningham testified without contradiction that, after he had filled out the employment application and passed the tests, Witsberger took him aside, and, in private, gave him instructions:
Q. Who did you talk to after you completed all of these application procedures?
A. Jean Witsberger.
Q. What do you recall being said at that time?
A. She said that she leased the truck and I was hired as a driver.
Q. Do you recall anything else?
A. She said I was hired and was working for Jean Witsberger not Joe Coss, and I was not to have any unauthorized passengers, no hitchhikers, and no female passengers, and there would be no moonlighting or we would be dismissed, and if we didn’t turn our logs in on time we wouldn’t get paid.
Q. Do you recall anything else being said at that time?
A. She said that there would be no drinking, or loafing in the shop or we would be dismissed. 5
Some of the instructions directed to Cunningham by Witsberger (no drinking while driving, e. g.) are mandated by law. 6 Some (e. g., loafing in the shop, moonlighting, turning in of logs on time) are not. The substance of Witsberger’s instructions possesses the character of an employer’s charge to its employee. Combined with Witsberger’s demand, as stated by the ALJ, “that Cunningham follow only her instructions,” the demand for compliance with the employee code of driver behavior, no matter how reasonable or unreasonable the rules it contained, structured Cunningham’s working environment in a manner supportive of the Board’s conclusion that Cunningham was an employee subject to Tri-State’s control. See Aetna Freight Lines v. NLRB, 520 F.2d 928, 931 (6th Cir. 1975), cert. denied, 424 U.S. 910 , 96 S.Ct. 1105 , 47 L.Ed.2d 314 (1976). The majority opinion is altogether silent on that testimony, and consequently accorded it no significance.
In addition to the content of the instructions, it is worth noting the context in which they were made. After directing Cunningham to complete an application form and take tests required of other employees, Witsberger excused a bystander — . Mrs. Coss — in order to instruct Cunningham in Tri-State’s special rules of employee conduct, without an outsider present. Referring to the time of the initial signing of the lease, Mrs. Coss testified under cross-examination by Witsberger that “I assumed he was your [Tri-State’s] driver, if you recall you asked me if I would step outside for a *1001 while, you wanted to instruct your driver in privacy, and I went out on the porch at that time, [and in] approximately ten or fifteen minutes you opened the door and told me I could come back in.”
Moreover, that Witsberger, not Coss, possessed the authority to hire and fire Cunningham is illustrated by each incident in which there was conflict between Witsberger and Cunningham. 7 For example, Witsberger, not Coss, threatened to discharge Cunningham after she learned he might have carried an unauthorized female passenger. Further, Cunningham was required to accept all dispatch assignments directly from Tri-State; this too supports the Board’s conclusion that Tri-State exercised control over Cunningham. On one occasion, Cunningham initially refused to make a run to Jamesburg, New Jersey, because, since Tri-State’s drivers received a percentage of the gross, he thought he would lose money. However, after Witsberger became angry, Cunningham decided to make the run rather than risk losing his job. Again, it was Witsberger, not Coss, who prevailed on Cunningham to make the run. Indeed, Coss testified that since he, too, lost money on the run, he would have told Cunningham not to make the run if he had thought it would do any good. Yet Witsberger’s wishes were the ones that counted.
On several other occasions, according to Cunningham, Witsberger in direct communication with him emphasized that she, not Coss, was the “boss.” The term certainly carries the connotation of “employer.” Additionally, Coss testified about two instances in the first of which Witsberger “made the rules clear that she was the boss[;] I tried to interrupt her once and she said to me [‘]I am not through talking, you shut up until I get through talkingf’].” On the second occasion, when Cunningham was refusing to make the Jamesburg run, Coss told Witsberger “Jean, you are his boss, I am not his boss, you ordered him to take it, you do what you want to ....” 8 Again, the testimony, although not mentioned by the majority, supports the Board’s conclusion.
Turning from assertions by Tri-State of employer status over Cunningham to evidence that Tri-State in fact exercised direct and immediate supervision over Cunningham’s work, it should be observed that it was Tri-State, not Coss, who dispatched Cunningham on various trips, told him where to go, what loads to pick up, and where to deliver the loads. That Witsberger sometimes left messages with the Coss’s for Cunningham to call in does not support the majority’s declaration that dispatch information was “routed” through Joe Coss. At 996. No one testified that Coss ever personally directed Cunningham where to go or what loads to pick up. On the contrary, Tri-State’s dispatch procedure called for Witsberger, not Coss, to direct Cunningham to his destination. Tri-State set the schedule of hours and driving timetables, and checked his activities through the use of logs. If Cunningham did not already *1002 know what route to follow, he checked with Tri-State, not Coss. When he reached the end of a run, he was to call Witsberger, not Coss, for instructions regarding any back-haul. The long distance phone calls were paid for by Tri-State. Upon returning from a run, Cunningham would again contact Witsberger. The occasional use of Coss as a relay for getting the message to Cunningham provides no necessary inference that Coss controlled Cunningham’s routes, or, indeed, contributed in any way to the content of the message. Substantial evidence supports the Board’s conclusion that Witsberger dispatched Cunningham and that she did not go through Coss in controlling Cunningham’s movements.
In Aetna Freight Lines, supra, 520 F.2d at 930 , the court relied primarily upon two indicia of control, in addition to the elements imposed by governmental regulation, in sustaining a Board finding that an employer/employee relationship existed. First, Aetna exercised control over the hiring and firing of drivers by “employing lease cancellation as a means of enforcing driver discipline and discharge.” Id. at 930 . Here, Witsberger once threatened to discharge Cunningham after she learned he might have carried a female passenger. 9 Moreover, Cunningham made the James-burg run out of fear he would otherwise lose his job. Finally, when Cunningham refused to break the strike, the same day Witsberger indeed cancelled the equipment lease, and, accordingly, Cunningham’s employment “partly in retaliation for Cunningham’s refusal to cross [Tri-State’s] employees’ picket line,” in the words of the ALJ. The company’s retention of the right to discharge Cunningham is a further indication of his employee status.
Second, in Aetna, drivers took complaints to and received instructions concerning daily tasks from Aetna, and not the equipment owner. Here, like the employer in Aetna, Tri-State directly supervised and gave daily instructions to Cunningham. Tri-State did all dispatching, and required Cunningham to report directly to it, not to Coss. In addition, when Cunningham did not know what routes to take, he asked Witsberger. Finally, Cunningham retained little discretion over whether to accept particular assignments, a conclusion aptly illustrated by the Jamesburg incident. In sum, to quote the ALJ below, “[Tri-State] exercised virtually complete control over Cunningham’s hours of work and other conditions of employment.”
Other courts have reached results similar to Aetna. In NLRB v. Deaton, Inc., supra, 502 F.2d at 1226-28 , for example, the court upheld a Board finding that nonowner drivers of leased vehicles were employees where, in addition to the controls mandated by federal regulations, the carrier (1) exercised power over the qualifications of the drivers that were hired beyond that required by law, and (2) exercised power over a driver’s conduct by threatening the equipment owner with lease cancellation. See also News-Journal Co. v. NLRB, 447 F.2d 65 (3d Cir. 1971), cert. denied, 404 U.S. 1016 , 92 S.Ct. 676 , 30 L.Ed.2d 664 (1972); Frank Hager, Inc., 230 NLRB 476 , 477 n.10 (1977) (owner-operators are employees where carrier exercised control over “the assignment of runs, including the distance, the nature of the load, and to whom they deliver, the maintenance of their equipment, the selection of their insurance, and the performance standards with which they must comply”)-
The situation here is even stronger than that in Aetna, et al. Unlike Aetna, TriState held itself out as Cunningham’s employer. Tri-State established detailed rules of day-to-day conduct for all its drivers, including both Cunningham and Coss (who also, on occasion, drove for Tri-State), infraction of which risked immediate termination. Thus, the parties’ practices and understandings support the Board’s conclusion that Cunningham was Tri-State’s employee.
*1003 Finally, indicative all on its own of the employer-employee relationship existing between Tri-State and Cunningham was TriState’s insistence that Cunningham not engage in any backhauling on his own. The work Cunningham performed was performed exclusively for Tri-State. At the end of a run, Cunningham was required to return empty to the plant unless Tri-State had a pickup to assign him. Cunningham simply did not have the characteristics of an independent contractor when he depended solely on Tri-State for direction. The prohibition upon backhauling indicates that Cunningham lacked an entrepreneurial interest that diverged from Tri-State’s. As pointed out below by the Administrative Law Judge, Tri-State’s ban on moonlighting effectively gave it control over the amount of Cunningham’s earnings.
In Ace Doran Hauling & Rigging Co. v. NLRB, supra, 462 F.2d at 194 (enforcing Board determination of employee status where drivers drove exclusively for company, and performed duties similar to those of other employees, even though driver-owners could refuse trips and were permitted to backhaul), the “exclusivity” principle was utilized to distinguish between those drivers who were employees because they “dr[o]ve ‘exclusively’ for Ace,” and those who also performed other, unrelated work for the truckowner and were therefore nonemployees. See also News-Journal Co. v. NLRB, supra, 447 F.2d at 68 (upholding Board finding of employee status because the Board considered, among other factors, “the possibility of realizing additional profits through the exercise of entrepreneurial skill”). The absence of any possibility of Cunningham’s realizing additional profits supports the Board’s conclusion that he was Tri-State’s employee.
The majority relies heavily on the method by which Cunningham was paid to support its assertion ab initio that Cunningham “was either an employee of or a profit sharer with Joseph Coss.” At 997. It is true that the lease stated that Coss would receive “75% of gross revenue, including all driver wages and fringes which are the responsibility of the lessor [Coss].” However, the provision pertains to the method by which whoever drove the vehicle would receive payment, and itself sheds no light on the particular issue of what Cunningham was required to do, and of who supervised his activities. Indeed, uncontradicted hearing testimony indicates that Witsberger explicitly told Cunningham he would be paid 25% of the gross, because “her drivers get 25%.” Further, even despite lease language to the contrary, when Cunningham first began driving the Coss equipment for TriState, Tri-State deducted Cunningham’s 25% share from the rental, paid that directly to Cunningham, and then transmitted the balance to Coss. In addition, the ALJ found that Tri-State required Cunningham to maintain a trip log which had to be correctly maintained and turned over to it before Cunningham, as well as Coss, would be paid. That Tri-State, whose general manager wrote the lease, chose an indirect method by which to pay Cunningham cannot obscure the fact that it set the percentage of his wages and controlled his total income by virtue of its control over his driving assignments. 10
Even were the majority correct in asserting that Cunningham was either an employee of or profit sharer with Coss, such conclusion does not resolve Cunningham’s relationship to Tri-State. In Boire v. Greyhound Corp., 376 U.S. 473, 481 , 84 S.Ct. 894, 898 , 11 L.Ed.2d 849 (1964), the Supreme Court affirmed that two employers may exercise sufficient control over an employee to qualify as a “joint employer.” In Boire , *1004 the Board had found that Greyhound had contracted with another company to provide janitorial services at four terminals. While the independent contractor “hired, paid, disciplined, transferred, promoted and discharged the employees, Greyhound took part in setting up work schedules, in determining the number of employees required to meet those schedules, and in directing the work of the employees in question.” 376 U.S. at 475 , 84 S.Ct. at 895 . In addition, the Board had found that Greyhound had prompted the discharge of a cleaning employee and that the independent contractor’s supervisor visited the terminals irregularly. Id. Subsequent to the Supreme Court’s decision, the Fifth Circuit enforced the Board determination that Greyhound was a joint employer. NLRB v. Greyhound Corp., 368 F.2d 778 (5th Cir. 1966). In light of Boire , surely the evidence relied on here by the Board is sufficient to support its decision that Tri-State was Cunningham’s employer. Even if the evidence is given the gloss put on by the majority, at best we would face two conflicting versions of the facts, in which event the Board’s interpretation controls. See United Ins., supra, 390 U.S. at 260 , 88 S.Ct. at 991 .
There is another important reason for affirming the Board’s decision. While there is no evidence in the case of intentional evasion of the Act, a ruling contrary to the Board’s will encourage other employers to seek to expand the “nonemployee” category constructed by today’s decision through unconventional arrangements with their employees.
Therefore, since the Board’s order is supported by substantial evidence in the record as a whole, I would grant the application for enforcement. 11
. Obviously, this is not to say that, acting independently as a finder of fact, I would have reached the same result as the NLRB. I conclude only that there was substantial evidence to support the decision which the NLRB reached.
. Cunningham stated at the hearing that he possessed a power of attorney from Coss to negotiate the equipment lease. However, Violet Coss, not Cunningham, actually signed the lease. Moreover, Cunningham stated that the parties did not bargain over the terms of the lease. Therefore, there is little significance in the fact that Cunningham may have assisted Violet Coss on behalf of the hospitalized Joe Coss.
. The majority opinion dismisses the significance of Tri-State’s giving Cunningham an “Application for Employment” to fill out for several reasons. First, it states that the application “was only partially completed,” implying that substantial sections were left blank. However, the form was as complete as a similar form introduced into evidence, which had been submitted by an admitted Tri-State employee. Cunningham responded to each section of the three-page form, leaving blank such items as “reason for [previously] leaving [TriState]” when he had already indicated he had never previously worked for the company. Second, the majority suggests the application solicited only information “required by federal regulations.” However, federal regulations specifically exempt carriers from requiring applications of “a person who is not a regularly employed driver ... [or who drives] on an intermittent, casual, or occasional basis,” or who is a regularly employed driver of another carrier. See 49 C.F.R. 391.63, 391.65 (1977). If, as suggested by the majority, Cunningham was employed by another carrier, Cunningham need not have filed this information. Therefore, Cunningham’s filling out the application suggests he did something more than required by federal regulations. Cunningham indicated on his application form that he was not currently employed.
Third, the majority speculates that “it is not surprising that a company whose general manager worked only part-time did not have special pre-printed forms for non-employee drivers.” At 996. However, neither should it surprise us that a company that hired Cunningham as its employee might use the same form required of other employees. Moreover, there was no testimony to the effect that Tri-State did not have forms for non-employee drivers. The Board was entitled to point to the “Application for Employment” as evidence of Cunningham’s employee status.
Finally, the majority opinion gives no weight to the fact that, in the response to the application inquiry “Are you now employed?”, Cunningham wrote “no.” And, in a space denomi nated “Applicant hired/rejected,” a Tri-State official had checked the “hired” space and written in the “date employed” as June 10, 1978.
. Also in accordance with government regulations, the leased equipment bore Tri-State’s name and address.
. Joe Coss testified that Witsberger subsequently repeated the conversation to him. His version of what occurred was substantially the same as Cunningham’s version. Moreover, President Witsberger admitted the conversation occurred, though she contended that the rules were required by DOT regulations.
. Even as to the requirements mandated by regulation, a word should be said about the penalty for infraction. A federal regulation forbids drivers from drinking. See 49 C.F.R. § 392.5 . But the regulation neither requires a lecture on the rule by the carrier, nor necessitates that, for infraction of the regulation, the driver be dismissed.
. As support for its belief that Cunningham was an employee of Coss, not Tri-State, the majority points to an incident in which a driver of another of Coss’ vehicles was involved in an accident and Coss, not Witsberger, took the other driver’s keys away. Whatever probative value the symbolic act of collecting keys from the other driver has for suggesting that Coss was his employer, the issue here is Cunningham’s status.
. The majority refers to Witsberger’s testimony that if Cunningham were unable to drive the leased vehicles, “she would have to contact Coss for his permission to put some other driver on that rig.” At 996. However, President Witsberger admitted that her statement was purely hypothetical as the situation had never arisen. The ALJ described no significance to Witsberger’s conjecture in the heat of litigation. Furthermore, the terms of the lease contradict Witsberger’s assertion. The lease provided that Tri-State “shall have exclusive possession, control, and use of equipment for the duration of this Agreement.” While the lease vests explicit authority over the vehicle in TriState, it says nothing about Coss’ authority to approve a driver. In any case, even if Coss’ approval of a substitute driver would have been required, little light is thereby cast upon Cunningham’s relationship to Tri-State. There is nothing surprising about an arrangement between the lessor and the lessee of equipment by which the lessor would only permit it to be operated by a lessee employee approved by lessor.
. Cunningham’s version of the event was corroborated by Coss. Coss testified about a conversation with President Witsberger in which she told him of her suspicion and stated that if she ever caught Cunningham with a female rider she would discharge him. Tri-State made no effort to discredit the story, of which the versions of Cunningham and Coss were consistent and which supported a conclusion that Cunningham was an employee of Tri-State.
. In footnote 3, At 996, the majority opinion hypothesizes: “Cunningham’s arrangement with Coss appears to have been that he would receive twenty-five percent of whatever amount Coss received from Tri-State.” The record contains no evidence that Coss and Cunningham ever made any such agreement. The only evidence pertaining to the percentage Cunningham would receive was Witsberger’s statement to Cunningham that “her drivers get 25%.”
The majority also points out that Tri-State did not make payroll deductions from Cunningham’s earnings, although it did so for its other employees. Nothing in the record indicates who, if anyone, complied with legal requirements that payroll deductions of that nature be made.
. Tri-State also contended that it was denied a fair hearing because, though it had engaged an attorney, it was represented at the hearing only by its president, Jean Witsberger, who is not an attorney. Tri-State neither requested a delay in the hearing, nor gave any indication to the ALJ that it preferred to appear with counsel. Additionally, although midway through the proceeding President Witsberger indicated that Tri-State’s counsel was tied up elsewhere that day, she did not request postponement. Ms. Witsberger, president of an interstate carrier, was accorded great latitude in presenting her case to the ALJ, who also gave her assistance.
In factfinding proceedings such as this, a pro se litigant undoubtedly struggles at a grave disadvantage when opposed by attorneys well-versed in the legal significance attached to certain facts, and skilled in the art of exposing them to a hearing officer. However, the Labor Relations Act allows a party to choose its representative in appearing in Board proceedings, see 29 U.S.C. § 160 (b) (1976), including a non-attorney. See Tred-Air of California, Inc., 193 NLRB 672 , 673 (1971), enforced, 82 LRRM 2080 (9th Cir. 1972), cert. denied, 411 U.S. 906 , 93 S.Ct. 1529 , 36 L.Ed.2d 195 (1973) (corporation may be represented by its president). Absent evidence that Tri-State objected to proceeding at the hearing without counsel, the case raises no tenable issue of due process. Local Union No. 742, UBCJA v. NLRB, 377 F.2d 929 (D.C.Cir. 1967).