FedEx Freight, Inc.

National Labor Relations Board - Unpublished Board Decisions

Mar 11, 2015

32-RC-144041 (N.L.R.B. Mar. 11, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX FREIGHT, INC.
Employer
and Case 32-RC-144041
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 439
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 6% 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138218 (petition withdrawn prior to the Board ruling on the Employer’s Request for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 26 n.8), 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
MARK GASTON PEARCE, CHAIRMAN
KENT Y. HIROZAWA, MEMBER
HARRY I. JOHNSON, III, MEMBER
Dated, Washington, D.C., March 11, 2015

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