FedEx Freight, Inc.

National Labor Relations Board - Board Decisions

Oct 29, 2014

04-RC-136233 (N.L.R.B. Oct. 29, 2014)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX FREIGHT, INC.
Employer
and Case 04-RC-136233
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS LOCAL 776
Petitioner
ORDER1
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.
MARK GASTON PEARCE, CHAIRMAN
HARRY I. JOHNSON, III, MEMBER
NANCY SCHIFFER, MEMBER
Dated, Washington, D.C., October 29, 2014

1 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 6% 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.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.