Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 53

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          ployee.  Respondent called as a witness Beverly Fiereck (Ms.                
          Fiereck), the president of Parkway Auto Transport (Parkway), one            
          of TLC’s trucking company clients.41  She testified that TLC, and           
          not Parkway, decided whether or not to hire a truck driver whom             
          Parkway referred to it.42  We found Ms. Fiereck to be credible.             
               Moreover, the record establishes (1) that TLC successfully             
          recruited and hired approximately 25 percent of its driver-                 
          employees through its own recruiting efforts and (2) that TLC               
          rejected 10 to 15 percent of the truck drivers whom its trucking            
          company clients referred to it.                                             
               We shall not rely on Mr. Ankerfelt’s testimony to support              
          petitioner’s position that TLC was not the employer of each                 
          driver-employee.  See Lerch v. Commissioner, 877 F.2d 624, 631-             


               41The parties stipulated that the testimony of any person              
          representing Parkway is to be considered representative of the              
          testimony that would be given by any persons representing other             
          trucking company clients of TLC if they had been called to                  
          testify at the trial in this case.                                          
               42Each exclusive lease agreement provided in pertinent part:           
                    Lessor agrees to use its reasonable best efforts                  
               in furnishing Lessee with drivers as may be requested                  
               from Lessee from time to time during the term of this                  
               Agreement.  Lessee understands and agrees Lessor cannot                
               absolutely guarantee the availability of drivers for                   
               Lessee upon demand but Lessor nevertheless agrees to                   
               use its reasonable best efforts in furnishing Lessee                   
               with any and all drivers required at all times during                  
               the terms of this Agreement.  To facilitate the avail-                 
               ability of drivers to Lessee, Lessee shall refer to                    
               Lessor any and all qualified drivers known to it who                   
               may be suitable for employment by Lessor.                              




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