FedEx FREIGHT INC.

National Labor Relations Board - Unpublished Board Decisions

Sep 3, 2015

22-CA-146653 (N.L.R.B. Sep. 3, 2015)

362 NLRB No. 91
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
FedEx Freight, Inc. and International Brotherhood of
Teamsters, Local 701. Case 22–CA–146653
May 19, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed by International
Brotherhood of Teamsters, Local 701 (the Union) on
February 19, 2015, the General Counsel issued the com-
plaint on March 4, 2015, alleging that FedEx Freight,
Inc. (the Respondent) has violated Section 8(a)(5) and
(1) of the Act by refusing the Union’s request for recog-
nition and to bargain following the Union’s certification
in Case 22–RC–134873. (Official notice is taken of the
record in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations of the complaint, and asserting
certain affirmative defenses.
On March 25, 2015, the General Counsel filed a Mo-
tion for Summary Judgment. On March 27, 2015, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response,
in which it requested that the Board clarify the record to
include additional evidence. The General Counsel filed
an opposition to the Respondent’s request to clarify the
record.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the Union’s certification on the basis
of its arguments, raised and rejected in the representation
proceeding, that the certified bargaining unit is inappro-
priate because it excludes the Respondent’s dockwork-
ers.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding.1 We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Arkansas
corporation, has been engaged in interstate transportation
of less than truckload commodity freight, with an end-of-
the-line terminal located at 9 Distribution Way, Mon-
mouth Junction, New Jersey.
During the 12-month period preceding issuance of the
complaint, the Respondent derived gross revenues in
excess of $50,000 directly from enterprises located out-
side the State of New Jersey.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and

1 The Respondent requests that the Board “clarify” the record in the
representation proceeding by admitting into evidence a report purport-
edly detailing the hours worked by city drivers, road drivers, and
dockworkers at other “non-domiciled” locations for the time period of
February 1 to July 31, 2014. The Respondent made the same request in
FedEx Freight, Inc., 362 NLRB No. 74 (2015). Here, as there, we shall
treat the request as a motion to reopen the representation proceeding
record. Further, here, as there, the request is denied. The proffered
information does not constitute newly discovered and previously una-
vailable evidence, nor would the evidence, if adduced, establish special
circumstances.
A party seeking to introduce new evidence after the record of a rep-
resentation proceeding has closed must establish that (1) the evidence
existed but was unavailable to the party before the close of the hearing;
(2) the evidence would have changed the result of the proceeding; and
(3) it moved promptly upon discovery of the evidence. Manhattan
Center Studios, 357 NLRB No. 139, slip op. at 3 (2011); Rules and
Regulations, Sec. 102.65(e). To qualify as newly discovered evidence,
such evidence must have been in existence at the time of the representa-
tion hearing and could not have been discovered by reasonable dili-
gence. Crew One Productions, 362 NLRB No. 8, slip op. at 1 fn. 1
(2015); Manhattan Center Studios, 357 NLRB No. 139, slip op. at 3.
The evidence the Respondent proffers is merely an expansion of the
same class of information (i.e., dock work performed by the city drivers
and road drivers during the period of February 1 to July 31, 2014) that
the Respondent presented during the representation case proceeding.
Here, the proffered evidence concerns facts that were in existence at the
time of the representation hearing and it is offered in support of the
same arguments by the Respondent that were fully litigated at the hear-
ing and subsequently rejected. The Respondent has not submitted any
reason why this additional evidence was unavailable during the course
of the hearing or why it could not have been discovered with reasonable
diligence. Further, the Respondent has failed to establish that the prof-
fered evidence, if adduced, would change the result in the representa-
tion proceeding and has additionally failed to establish that it moved
promptly to present this evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a representation election held on October
31, 2014, the Union was certified on November 12,
2014, as the exclusive collective-bargaining representa-
tive of employees in the following appropriate unit:
All full-time and regular part-time Road Drivers and
City Drivers; excluding all other employees, Dock-
workers, Supplemental Dockworkers, Mechanics,
building maintenance employees, office clerical em-
ployees, and guards and supervisors as defined by the
Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
By letter dated January 20, 2015, the Union requested
that the Respondent recognize it and bargain with it as
the exclusive collective-bargaining representative of the
unit employees. Since about January 20, 2015, the Re-
spondent has failed and refused to do so.
We find that this failure and refusal constitutes an un-
lawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since January 20, 2015, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement. To ensure that employees are
accorded the services of their selected bargaining agent
for the period provided by law, we shall construe the
initial period of the certification as beginning the date
that the Respondent begins to bargain in good faith with
the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
accord Burnett Construction Co., 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, FedEx Freight, Inc., Monmouth Junction,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters, Local 701 as the
exclusive collective-bargaining representative of em-
ployees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time Road Drivers and
City Drivers; excluding all other employees, Dock-
workers, Supplemental Dockworkers, Mechanics,
building maintenance employees, office clerical em-
ployees, and guards and supervisors as defined by the
Act.
(b) Within 14 days after service by the Region, post at
its facility in Monmouth Junction, New Jersey, copies of
the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDEX FREIGHT, INC. 3
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 20, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 19, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Teamsters, Local 701
as the exclusive collective-bargaining representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time and regular part-time Road Drivers and
City Drivers; excluding all other employees, Dock-
workers, Supplemental Dockworkers, Mechanics,
building maintenance employees, office clerical em-
ployees, and guards and supervisors as defined by the
Act.
FEDEX FREIGHT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-146653 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.