## Facts

- A union petitioned to represent SuperShuttle DFW franchisee drivers operating shared-ride airport shuttle vans at Dallas–Fort Worth International Airport.
- Drivers signed franchise agreements describing them as nonemployee franchisees and paid an initial franchise fee plus a flat weekly fee for brand use and access to a proprietary reservation/dispatch system.
- Drivers supplied their own shuttle vans, made the related capital investment, and did not receive wages.
- Drivers generally set their own work schedules by choosing when to use the dispatch system and how much to work.
- Drivers kept the fares they earned, subject to the required franchise fees, creating the possibility of profit or loss based on how they operated.
- The franchise agreement restricted drivers from working for competing shuttle companies.
- The Acting Regional Director found the drivers were independent contractors under the common-law agency test and dismissed the representation petition; the union sought Board review.
- While review was pending, the Board issued a decision altering how entrepreneurial opportunity was treated in independent-contractor analysis, prompting the Board to address whether that approach should remain controlling.

## Issues

1. Whether SuperShuttle DFW franchisee drivers are “employees” under NLRA § 2(3) or independent contractors excluded from the Act.
2. Whether the Board’s then-recent approach to entrepreneurial opportunity departed from the traditional common-law test, and whether that approach should be overruled.

## Decision

- The Board reaffirmed the traditional multifactor common-law agency test for independent-contractor status.
- The Board overruled the prior approach to the extent it reconfigured the common-law analysis by diminishing entrepreneurial opportunity and recasting the inquiry toward economic-realities concepts.
- Applying the traditional test, the Board held the franchisee drivers were independent contractors, not statutory employees under NLRA § 2(3).
- The Board affirmed the Acting Regional Director and dismissed the representation petition.

## Legal Principles

- Independent-contractor status under the NLRA is determined by the totality of the circumstances using the traditional common-law agency factors.
- “Entrepreneurial opportunity for gain or loss” is a central indicator within the common-law analysis of whether an individual is operating an independent business, not merely an incidental consideration.
- Ownership of significant tools/equipment, substantial personal investment, method of compensation (retaining revenue after fixed fees rather than receiving wages), and discretion over working time may support independent-contractor status.
- Certain brand, franchise, or system controls may be consistent with an independent-contractor relationship if they do not amount to control over the manner and means of performing the work.

## Conclusion

The Board returned to a traditional common-law independent-contractor framework that places substantial weight on entrepreneurial opportunity, and it concluded that SuperShuttle’s franchisee drivers operated as independent business operators rather than statutory employees, requiring dismissal of the union’s representation petition.


SuperShuttle DFW, Inc. & Amalgamated Transit Union Loc. 1338, 367 N.L.R.B. No. 75 (2019)