FedEx Freight, Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 07 March 2016 |
| Docket Number | 15–1999,15–2494,Nos. 15–1848,15–2732.,s. 15–1848 |
| Citation | 816 F.3d 515 |
| Parties | FEDEX FREIGHT, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Brotherhood of Teamsters, Local 71, Intervenor. FedEx Freight, Inc., Respondent v. National Labor Relations Board, Petitioner International Brotherhood of Teamsters, Local 71, Intervenor. FedEx Freight, Petitioner v. National Labor Relations Board, Respondent International Brotherhood of Teamsters, Local 107, Intervenor. FedEx Freight, Inc., Respondent v. National Labor Relations Board, Petitioner International Brotherhood of Teamsters, Local 107, Intervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ivan H. Rich, Jr., argued, David A. Prather, on the brief, Memphis, TN, for petitioner.
Milakshmi V. Rajapakse, argued, Jill A. Griffin, on the brief, Washington, DC, for respondent.
Before MURPHY, SMITH, and BENTON, Circuit Judges.
MURPHY
, Circuit Judge.
The International Brotherhood of Teamsters locals in Charlotte, North Carolina and Croydon, Pennsylvania petitioned the National Labor Relations Board (NLRB) seeking to represent collective bargaining units including both city and road drivers who work at terminals operated by FedEx Freight, Inc. FedEx proposed that the units should also include the dockworkers at the terminals. In considering the proposal the NLRB regional director applied a two step analysis from Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)
. In each case the director found that (1) the union's proposed bargaining unit was composed of a readily identifiable group of employees sharing a community of interest, and (2) FedEx did not meet its burden to show that the dockworkers shared an "overwhelming community of interest" with the drivers which required their inclusion in the same unit. The Board denied review, and the Teamsters won the elections in both cities.
FedEx now petitions for review of the Board's orders forcing it to bargain with the unions, arguing that the Specialty Healthcare standard violates the National Labor Relations Act, our own circuit law, and the Administrative Procedure Act. The Board petitions for enforcement of its orders. After full consideration, we deny the FedEx petitions and grant the Board's petitions for enforcement.
FedEx operates freight terminals across the country. The terminal in Charlotte, North Carolina includes a main building containing a dock with 224 operational doors surrounded by a yard. FedEx employs approximately 115 city drivers, 106 road drivers, and 186 dockworkers at this terminal. The city drivers pick up and deliver freight to and from customers in the area while the road drivers transport freight between the terminal and other FedEx facilities. All these drivers are employed full time and must possess a commercial driver license and wear a uniform while driving. FedEx maintains separate seniority lists for each class of driver. While city drivers occasionally do road driving, road drivers rarely do city driving.
The dockworkers load and unload freight from the trailers and move freight around the dock using forklifts. This work takes place exclusively at the terminal. One hundred and fourteen of the 186 dockworkers are "supplemental" part time employees and are not on a seniority list. The other 72 dockworkers work full time. These individuals are part of a one year "dock to driver" program in which they work full time on the dock while taking a course to obtain their commercial driver license. Eighteen of the 221 drivers are graduates of this program. The full time dockworkers have a seniority list. The only requirement for employment as a dockworker is being at least 18 years of age; they are not required to wear uniforms.
Around one quarter of the drivers performed some dock work during the six month period surveyed in the stipulated record. City drivers also occasionally perform "hostling" work, which involves moving trailers and other equipment around the yard. Road drivers rarely do hostling work. Dock and hostling work take up a total of around 5% of the city drivers' time and less than 1% of the road drivers' time. Although dockworkers do not do any driving work, they use specialized trucks that do not require a commercial driver license to perform hostling work.
The terminal in Croydon, Pennsylvania (referred to as the East Philadelphia terminal) is smaller than the one in Charlotte, having only 51 operational doors. FedEx employs about 29 city drivers, 14 road drivers, and 19 part time supplemental dockworkers in East Philadelphia. Seven of these drivers are graduates of the dock to driver program. In comparison to the Charlotte terminal, more of the East Philadelphia dock work is done by drivers. Approximately 34% of the dock and hostling hours there are worked by drivers. Forty one of the 43 drivers performed dock or hostling work, and 13 of the drivers performed over 100 hours of dock work in six months.
The Teamsters locals in both cities petitioned the Board to represent bargaining units for both the city drivers and the road drivers. FedEx contended that such units were inappropriate because they did not include the dockworkers. After hearings, the NLRB regional director employed the Specialty Healthcare two step analysis and found that the proposed units were appropriate but that FedEx had not met its burden to show the dockworkers must be included in these units. FedEx filed requests for review of the regional director's decisions which the Board summarily denied. After the drivers in both cities voted to unionize, FedEx contested the certification of the bargaining units by refusing to bargain. See NLRB v. St. Clair Die Casting, LLC, 423 F.3d 843, 848 (8th Cir.2005)
. The Board's general counsel filed refusal to bargain complaints against FedEx, and the Board granted the general counsel's motions for summary judgment and ordered FedEx to bargain with the unions. Now before us are petitions for review by FedEx and for enforcement by the Board. We have jurisdiction over the matter under 29 U.S.C. § 160(e), (f) because FedEx transacts business in this circuit.1
The first question raised is whether FedEx preserved its challenges to the Specialty Healthcare framework. The Board argues that in the proceedings below FedEx failed to raise and preserve an argument against Specialty Healthcare. An objection to a Board decision cannot be heard unless it has been "urged before the Board, its member, agent, or agency" such that the Board has "received adequate notice of the basis for the objection." Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981, 985 (D.C.Cir.2001)
; 29 U.S.C. § 160(e).
FedEx stated in a footnote in each of its requests for review of the determinations by the regional director that "Specialty Healthcare was decided erroneously" for the reasons stated in Board member Hayes' dissent. See 357 NLRB No. 83 at *15
(Hayes, dissenting). FedEx indicated that it would focus its briefing assuming that the Board would not revisit its decision. FedEx later incorporated its arguments in its responses to the Board's show cause orders in the refusal to bargain cases. The Board was aware of the FedEx challenge to Specialty Healthcare, as shown by member Johnson's concurring statements attached to the two summary affirmance orders by the Board. By adopting member Hayes' dissent, FedEx signaled that it might bring a challenge to the Specialty Healthcare framework if the Board were to apply it. This gave the Board adequate notice that FedEx was objecting to the regional director's use of the Specialty Healthcare framework. We therefore have jurisdiction to review the FedEx claims. See Nathan Katz Realty, 251 F.3d at 985.
The central question here is whether the Board's Specialty Healthcare analysis comports with the National Labor Relations Act (the Act), our own case law applying the Act, and the Administrative Procedure Act (the APA). Section 9 of the Act "gives the Board the power to determine the unit appropriate for the purpose of collective bargaining." NLRB v. St. Clair Die Casting, LLC, 423 F.3d 843, 848 (8th Cir.2005)
. Review of the Board's certification decision "is limited to a determination of whether the decision is arbitrary, capricious, an abuse of discretion, or lacking in substantial evidentiary support." Id. The Board's interpretations of the Act are also "entitled to considerable deference." St. John's Mercy Health Sys. v. NLRB, 436 F.3d 843, 846 (8th Cir.2006) (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 495, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979) ).
Section 9(a) of the Act provides for the designation or selection of an exclusive representative for the purposes of collective bargaining "by the majority of the employees in a unit appropriate for such purposes." 29 U.S.C. § 159(a)
. Section 9(b) requires the Board to "decide in each case" which unit of employees is appropriate. Id. § 159(b). To make that determination, the Board applies a "community of interests" analysis. Cedar Valley Corp. v. NLRB, 977 F.2d 1211, 1217 (8th Cir.1992). The relevant factors in that analysis include "bargaining history, operational integration, geographic proximity, common supervisor, similarity in job function, and employee interchange." Id. (quoting Elec. Data Sys. Corp. v. NLRB, 938 F.2d 570, 573 (5th Cir.1991) ). The Board has "broad discretion to determine whether a group of employees has a sufficient ‘community of interest.’ " NLRB v. MEMC Elec. Materials, Inc., 363 F.3d 705, 707 (8th Cir.2004)
. On appeal, "the NLRB's determination as to the appropriateness of a bargaining unit will rarely be disturbed and this court's scope of review is narrow." Cedar Valley Corp., 977 F.2d at 1218.
In Specialty Healthcare, the Board reviewed its standards for making unit determinations. The Board explained that it begins by examining the unit sought by the union. 357 NLRB No. 83 at *8
. The Board determines whether the proposed unit is...
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