FedEx Freight, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 2014

22-RC-134873 (N.L.R.B. Oct. 29, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX FREIGHT, INC.
Employer
and Case 22-RC-134873
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS LOCAL 701
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
MARK GASTON PEARCE, CHAIRMAN
HARRY I. JOHNSON, III, MEMBER
NANCY SCHIFFER, MEMBER
Dated, Washington, D.C., October 29, 2014

1 In its request for review, the Employer disputes the Regional Director’s statement that it does not seek
to include the Supplemental Dockworkers in the election unit, but provides no reason why this would
warrant a different result.
Member 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 4% and 10%, 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 26 n.7), 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 the vast majority 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, just like here, for example,
(1) all drivers performed some non-driver work, 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 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.