FedEx Freight, Inc.

National Labor Relations Board - Board Decisions

Nov 19, 2014

05-RC-136673 (N.L.R.B. Nov. 19, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX FREIGHT, INC.
Employer
and Case 05-RC-136673
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 592
Petitioner
ORDER
The Employer’s Request for Review of the Regional Director’s Decision and
Direction of Election is denied as it raises no substantial issues warranting review.1

1Member Johnson finds the petitioned-for unit appropriate under the Board’s traditional
community of interest analysis in similar driver cases. See, e.g., Home Depot USA, Inc.,
331 NLRB 1289, 1291 (2000) (3-0 decision of Chairman Truesdale and Members Fox
and Brame, finding appropriate separate unit of drivers). The Employer contends that,
because the drivers perform a substantial amount of dockwork and hostling work, the
appropriate unit must include dockworkers. This argument is not compelling. Although
city drivers and road drivers spend approximately 3% and less than 1%, respectively, of
their time in non-driving work, this figure is still significantly below the 30-40% figure in
Home Depot. Id. at 1290. Although Member Johnson agrees with the Employer that
Home Depot “does not establish a numerical guide” in a strict sense concerning non-
driver work (see Er. Br. at 24 n.6), and that the Employer may have shown that a
combined driver-dockworker unit would also be appropriate or even more appropriate
due to the fact that a substantial number of drivers perform a limited degree of dock
work, the traditional inquiry Member Johnson applies here is whether a “drivers only”
unit is inappropriate under the traditional unit appropriateness teachings of Home Depot
and related cases. In Home Depot, for example, (1) all drivers performed some non-
driver work (which is not the case here), but (2) drivers had a CDL allowing them to
drive, the lack of which precluded non-drivers from driving the trucks on the open road;
and (3) the majority of the work that the drivers did was that kind of driving. Id. at 1289-
91. Accordingly, while Member Johnson acknowledges the well-argued points of the
Employer in this case and recent prior cases, he would apply the traditional test to find
that a denial of review is warranted and, thus, he finds no need to express a view whether
the Board correctly decided Specialty Healthcare and Rehabilitation Center of Mobile,
357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB,
727 F.3d 552 (6th Cir. 2013), and whether the Regional Director correctly applied it here.
MARK GASTON PEARCE, CHAIRMAN
HARRY I. JOHNSON, III, MEMBER
NANCY SCHIFFER, MEMBER
Dated, Washington, D.C., November 19, 2014