FedEx Freight, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2015

362 NLRB No. 140 (N.L.R.B. 2015)

362 NLRB No. 140
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
FedEx Freight, Inc. and International Brother-
hood of Teamsters Local No. 107. Case 04–
CA–150263
June 30, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON, AND MCFERRAN
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 filed by International
Brotherhood of Teamsters Local No. 107 (the Union) on
April 16, 2015, the General Counsel issued the complaint
on April 29, 2015, alleging that FedEx Freight, Inc. (the
Respondent) has violated Section 8(a)(5) and (1) of the
Act by refusing the Union’s request to recognize and
bargain following the Union’s certification in Case 04–
RC–134614. (Official notice is taken of the record in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 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 asserting affirmative
defenses.
On May 13, 2015, the General Counsel filed a Motion
for Summary Judgment. On May 14, 2015, the Board
issued 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 basis of its
position that the petitioned-for unit consists of drivers
only but should include both drivers and dockworkers.
In addition, the Respondent contends that the Regional
Director erred in failing to consider the significant
amount of work performed by some drivers as dock-
workers at other locations.
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.1 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). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Arkansas
corporation with a facility in Croydon, Pennsylvania, has
been engaged in interstate transportation of freight.
During the past year, the Respondent received more
than $50,000 for its interstate transportation operations.
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 is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on October
14, 2014, the Union was certified on March 24, 2015, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
Included: All full-time and regular part-time road driv-
ers and city drivers employed by the Employer at its
Croydon, Pennsylvania facility;
Excluded: All other employees, dockworkers, mechan-
ics, office clerical employees, guards and supervisors as
defined in the Act.

1 In its response to the Notice to Show Cause, the Respondent urges
the Board to consider a “clarification of the evidence presented” in the
representation proceeding and deny the General Counsel’s Motion for
Summary Judgment. The alleged clarification that the Respondent
seeks to offer includes a revised report showing the amount of dock
work performed by drivers at “non-domiciled” terminals (i.e., locations
other than the East Philadelphia Terminal). We find no merit in the
Respondent’s contention. The Respondent does not contend that the
proffered evidence is newly discovered or previously unavailable, nor
would such evidence, if adduced, establish special circumstances.
Newly discovered evidence is evidence in existence at the time of the
hearing that could not be discovered by reasonable diligence. Manhat-
tan Center Studios, Inc., 357 NLRB No. 139 (2011). In addition, in
order to warrant a further hearing, the newly discovered evidence must
be such that if adduced and credited it would require a different result.
See Sec. 102.48(d)(1) of the Board’s Rules and Regulations. The prof-
fered evidence concerns facts that were in existence at the time of the
representation hearing, and it is offered in support of the same argu-
ments by the Respondent that were fully litigated at the hearing and
subsequently rejected. Further, even assuming that the proffered evi-
dence is newly discovered, the Respondent has failed to show that it
would require a different result.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated March 27, 2015, the Union requested
that the Respondent bargain with it as the exclusive col-
lective-bargaining representative of the unit employees
and, since about March 27, 2015, the Respondent has
refused to do so.
We find that this failure and refusal constitutes an un-
lawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since about March 27, 2015, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing 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 law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, FedEx Freight, Inc., Croydon, Pennsylva-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters Local No. 107 as
the exclusive collective-bargaining representative 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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
Included: All full-time and regular part-time road driv-
ers and city drivers employed by the Employer at its
Croydon, Pennsylvania facility;
Excluded: All other employees, dockworkers, mechan-
ics, office clerical employees, guards and supervisors as
defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Croydon, Pennsylvania, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
4, 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 27, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 30, 2015
______________________________________
Kent Y. Hirozawa, Member

2 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.”
FEDEX FREIGHT, INC. 3
______________________________________
Harry I. Johnson, III, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
violated 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 No.
107 as the exclusive collective-bargaining representative
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
listed above.
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:
Included: All full-time and regular part-time road driv-
ers and city drivers employed by the Employer at its
Croydon, Pennsylvania facility;
Excluded: All other employees, dockworkers, mechan-
ics, office clerical employees, guards and supervisors as
defined in the Act.
FEDEX FREIGHT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/04-CA-150263 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.