FEDEX FREIGHT, INC.

National Labor Relations Board - Board Decisions

Nov 12, 2014

22-RC-135473 (N.L.R.B. Nov. 12, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX FREIGHT, INC.
Employer
and Case 22-RC-135473
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS LOCAL 641
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

1 In its request for review, the Employer disputes the Regional Director’s statement that it
did not seek to include part-time dockworkers in the unit in its stipulation, and did so
only in its post-hearing brief. Regardless of the Regional Director’s statement, he clearly
considered whether an appropriate unit must include full-time and part-time
dockworkers.
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 9% and 5%, 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.11), 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
MARK GASTON PEARCE, CHAIRMAN
HARRY I. JOHNSON, III, MEMBER
NANCY SCHIFFER, MEMBER
Dated, Washington, D.C., November 12, 2014

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.