FedEx Freight, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jan 20, 2015

06-RC-141025 (N.L.R.B. Jan. 20, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX FREIGHT, INC.
Employer
and Case 06-RC-141025
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 175
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 7% 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. Member Johnson notes that
in cases such as FedEx Freight, 04-RC-138218 (petition withdrawn prior to the Board ruling on
the Employer’s Request for Review), where drivers work almost exclusively on the dock, he
would find that an appropriate unit of drivers must include the dockworkers. However, that is
not the case here. Furthermore, 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 22 n.4), 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 and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom.
MARK GASTON PEARCE, CHAIRMAN
KENT Y. HIROZAWA, MEMBER
HARRY I. JOHNSON, III, MEMBER
Dated, Washington, D.C., January 20, 2015

Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), and whether the
Regional Director correctly applied it here.