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board at a truck stop; however, the terms and the acceptance of
the contract were petitioner's domain. The drivers were unable
to exert initiative in any of the major components open to
initiative; i.e., advertising, pricing, and choice of clients.
See Brock v. Mr. W Fireworks, Inc., supra; Usery v. Pilgrim
Equip. Co., 527 F.2d 1308, 1313 (5th Cir. 1976). The drivers
were not allowed the initiative and did not have the independence
or the decision-making authority normally associated with an
independent contractor.
Finally, petitioner argues that the drivers had an
opportunity to profit through the use of their management skills
in unloading the trucks. Petitioner's argument is that the
driver could choose to hire a lumper to unload the truck, or the
driver could profit by unloading the truck himself. We disagree.
Unloading a truck to earn a lumper's fee is not profiting by
management skill. See United States v. Silk, supra at 717-718.
Furthermore, if a driver hired a lumper instead of unloading the
truck himself, he did not incur a loss through mismanagement.
The lumper's fee was provided by petitioner, not by the driver;
therefore, a driver who hired a lumper incurred an opportunity
cost, not an out-of-pocket expense.
Because the drivers were paid by the mile, they had no real
risk of loss. One driver, appearing as respondent's witness,
testified that when he chose an alternate route which required
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