FEDEX Home Delivery

National Labor Relations Board - Board Decisions

Oct 29, 2010

356 N.L.R.B. 39 (N.L.R.B. 2010)

FEDEX HOME DELIVERY 39
FedEx Home Delivery, an Operating Division of Fed-
Ex Ground Package Systems, Inc. and Interna-
tional Brotherhood of Teamsters, Local Union,
No. 671. Case 34–CA–12735
October 29, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
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 and an amended charge
filed by the Union on June 24 and July 7, 2010, respec-
tively, the Acting General Counsel issued the complaint
on July 8, 2010, alleging that the Respondent has violat-
ed Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 34–RC–2205. (Official notice is taken of
the “record” in the representation proceeding as defined
in the Board’s Rules and Regulations, Sections 102.68
and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).)
The Respondent filed an answer admitting in part and
denying in part the allegations in the complaint, and as-
serting affirmative defenses.
On August 3, 2010, the Acting General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support of Motion. On August 12, 2010, the Board is-
sued 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.
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 certification on the grounds that:
the certified unit is comprised of independent contractors
and not employees within the meaning of the Act; evi-
dence of independent contractor status was improperly
excluded from the underlying representation proceeding;
new evidence of independent contractor status has arisen
since the record in the representation proceeding closed;
and the May 27, 2010 certification decision is based on
an invalid two-member Board decision.1 In addition, the
1 The two-member decision of which the Respondent complains is a
September 29, 2008 Decision and Order Remanding the representation
proceeding in Case 34–RC–2205 to the administrative law judge on the
basis of the Respondent’s objections to the election. Accordingly, it is
difficult to determine how the Respondent was prejudiced by this deci-
sion. Nevertheless, on August 27, 2010, the Board issued an un-
published Order in which a three-member panel of the Board specifical-
ly reaffirmed the two-member Board’s September 29, 2008 Decision
Respondent maintains that the issuance of a decision by
the court of appeals for the District of Columbia in Fed-
Ex Home Delivery v. NLRB, 563 F.3d 492 (2009), consti-
tutes a special circumstance that warrants the denial of
the Acting General Counsel’s motion and dismissal of
the complaint.
With respect to the contentions that the certified unit is
not appropriate, evidence was improperly excluded from
the record, and the issuance of the District of Columbia
Circuit’s decision in FedEx Home Delivery v. NLRB,
supra, requires the reexamination of the Board’s unit
determination in the underlying representation proceed-
ing, we find that these issues were raised and rejected in
the underlying representation proceeding, and cannot be
relitigated here.2 In addition, we find that the Respond-
ent has not presented any special or unusual circum-
stances requiring the Board to reexamine the findings
made in the representation proceeding.3
and Order Remanding. Member Hayes did not participate in the under-
lying representation proceedings. However, he agrees that the Re-
spondent has not raised any new matters or special circumstances war-
ranting a hearing in this proceeding or reconsideration of the decisions
and orders in the representation proceedings.
2 The Respondent first raised to the Board the impact of the D.C.
Circuit’s decision in FedEx Home Delivery v. NLRB on March 17,
2010, almost 11 months after the court’s decision had issued. Although
styled as a “motion to dismiss petition,” the substance of the motion
requested that the Board revisit the issues addressed in the Regional
Director’s April 11, 2007 Decision and Direction of Election. In the
Board’s August 27, 2010 Order in Case 34–RC–2205, the Board found
that to the extent that the Employer was seeking reconsideration of the
Regional Director’s April 11, 2007 Decision and Direction of Election
based on the court’s decision, that portion of its Amended Motion for
Reconsideration (which, inter alia, sought to have the Board grant its
motion to dismiss petition) was untimely. The Board further stated that
it adhered to the Regional Director’s decision finding that the drivers at
issue are statutory employees, and that it found no merit in the Employ-
er’s position. Order at 2 fn. 2.
In addition, we find that to the extent that the Respondent’s March
17, 2010 motion seeks to have the Board review the Regional Direc-
tor’s failure to dismiss the petition as requested in the Respondent’s
letters of May 4, 2009 and January 4, 2010, its motion is also untimely
in this respect. The Respondent’s motion was not filed until over 10
months after its initial request, over 2 months after its “renewed” re-
quest, and 40 days after the Respondent claims that it was advised that
the Region “was not in a position to act on the request to dismiss at that
time because the case was pending before the Board . . . .” See Re-
spondent’s Response to the Notice to Show Cause, p. 8. In any event,
the March 17, 2010 motion was the first formal pleading in which the
Respondent raised the court’s decision; accordingly, it was untimely
filed.
3 The Respondent argues, inter alia, that new evidence establishes
that at the time of the election in May 2007, there were 20 “single-work
area” contactors at the Hartford facility who were in the petitioned-for
unit, and as of March 2010, there were only three “single-work area”
contractors in the unit. However, the number of individuals who were
“single-work area” drivers was only one of several factors considered
by the Regional Director and the Board in determining that the drivers
were employees and not independent contractors. The reduction of the
356 NLRB No. 10

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
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. 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).
Accordingly, we grant the Motion for Summary Judg-
ment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with a place of business in Windsor, Connecti-
cut, the Respondent’s facility, has operated a home pack-
age delivery service.5
During the 12-month period ending June 30, 2010, the
Respondent, in conducting its operations described
above, derived gross revenues in excess of $500,000 and
purchased and received at its facility goods valued in
excess of $50,000 directly from points located outside
the State of Connecticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union, International Brother-
hood of Teamsters, Local Union, No. 671, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on May 11,
2007, the Union was certified on May 27, 2010, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

number of employees in the unit, without more, does not establish
special or unusual circumstances warranting reconsideration of the
representation proceedings. See, e.g., Super K-Mart, 322 NLRB 583,
583 fn. 3 (1996), enfd. mem. 132 F.3d 1481 (D.C. Cir. 1997) (posthear-
ing reduction in number of unit employees from 11 to 3 did not warrant
reconsideration of certification in a test-of-certification proceeding
where the number of unit employees was one of several factors consid-
ered in the representation proceedings).
4 The Respondent’s request that the complaint be dismissed in its en-
tirety is therefore denied.
5 In its answer to the complaint, the Respondent admits that FedEx
Ground Package System, Inc. is a Delaware corporation with a place of
business in Windsor, Connecticut, and that the corporation has a home
delivery service offering.
All contract drivers employed by Respondent at its
Hartford terminal, but excluding drivers and helpers
hired by contract drivers, temporary drivers, supple-
mental drivers, multiple-route contract drivers, package
handlers, office clerical employees, and guards, profes-
sional employees and supervisors as defined in 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 letters dated June 2 and 11, 2010, the Union re-
quested that the Respondent bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since about June 2, 2010, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit. We find that this failure and refusal consti-
tutes an unlawful failure and refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since about June 2, 2010, to
recognize and bargain with the Union as the exclusive
collective-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 the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, FedEx Home Delivery, an Operating Divi-
sion of FedEx Ground Package Systems, Inc., Windsor,
Connecticut, its officers, agents, successors, and assigns,
shall

FEDEX HOME DELIVERY 41
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters, Local Union,
No. 671 as the exclusive collective-bargaining repre-
sentative of the employees 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 exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All contract drivers employed by Respondent at its
Hartford terminal, but excluding drivers and helpers
hired by contract drivers, temporary drivers, supple-
mental drivers, multiple-route contract drivers, package
handlers, office clerical employees, and guards, profes-
sional employees and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Windsor, Connecticut, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
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 on or about June 2,
2010.
6 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.”
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

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 Un-
ion, No. 671 as the exclusive collective-bargaining repre-
sentative 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
guaranteed you by Section 7 of the Act.
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 contract drivers employed by us at our Hartford
terminal, but excluding drivers and helpers hired by
contract drivers, temporary drivers, supplemental driv-
ers, multiple-route contract drivers, package handlers,
office clerical employees, and guards, professional em-
ployees and supervisors as defined in the Act.

FEDEX HOME DELIVERY, AN OPERATING
DIVISION OF FEDEX GROUND PACKAGE
SYSTEMS, INC.