FEDEX HOME DELIVERY

National Labor Relations Board - Board Decisions

Mar 16, 2015

362 NLRB No. 29 (N.L.R.B. 2015)

362 NLRB No. 29
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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 Home Delivery, an Operating Division of Fedex
Ground Package Systems, Inc. and International
Brotherhood of Teamsters, Local Union No. 671.
Cases 34–CA–012735, 34–RC–002205
March 16, 2015
ORDER DENYING MOTION
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA,
JOHNSON, AND MCFERRAN
On September 30, 2014, the National Labor Relations
Board issued a Decision and Order in this proceeding,
finding that the Respondent’s Hartford drivers were
employees within the meaning of Section 2(3) of the Act
and that the Respondent thus violated Section 8(a)(5) and
(1) by refusing to recognize and bargain with the Union
that represents them. 361 NLRB No. 55 (2014). The
Respondent has moved for reconsideration of these
findings.
We deny the Respondent’s motion. The Respondent
argues why it disagrees with the Board’s decision, but
has not identified any material error or demonstrated
extraordinary circumstances warranting reconsideration
under Section 102.48(d)(1) of the Board’s Rules and
Regulations. Nonetheless, we address the Board’s
retroactive application of its refined independent-
contractor standard in the underlying decision.
The Board’s customary practice is to apply new
policies and standards “to all pending cases in whatever
stage.”1 Accordingly, the Board applies a new rule to the
parties in the case in which the rule is announced so long
as doing so would not work a “manifest injustice.”2 In
determining whether the retroactive application of a
Board decision will cause manifest injustice, the Board
balances three factors: (1) the reliance of the parties on
preexisting law; (2) the effect of retroactivity on
accomplishment of the purposes of the Act; and (3) any
particular injustice arising from retroactive application.3
Here, we find that the Board properly applied its
refined standard in the underlying decision. Regarding
the first factor, the Board’s approach in FedEx did not
represent a marked departure from well-settled

1 Aramark School Services, 337 NLRB 1063, 1063 fn. 1 (2002)
(quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007
(1958)).
2 Pattern Makers (Michigan Model Mfrs.), 310 NLRB 929, 931
(1993).
3 Machinists Local 2777 (L-3 Communications), 355 NLRB 1062,
1069 fn. 37 (2010).
precedent. As fully explained in that decision, the Board
reaffirmed its longstanding “all incidents of the
relationship” approach to evaluating independent-
contractor status, guided by the nonexhaustive common-
law factors enumerated in the Restatement (Second) of
Agency Section 220 (1958).4 Although the Board also
introduced a new independent-business factor to its
analysis, the Board made clear that this factor
“encompasses considerations that the Board has
examined in previous cases.”5 Thus, even assuming that
the Respondent had relied on preexisting precedent in
structuring its driver program, the considerations that the
Board evaluated in FedEx were substantially similar to
those that the Board had assessed in prior decisions.6
Regarding the second factor, we find that retroactivity
aided in accomplishing the purposes of the Act by
clarifying the Board’s independent-contractor standard7
and by illustrating how that standard is to be applied in
future decisions.
Finally, regarding the third factor, we do not find, and
the Respondent does not assert, that any particular
injustice arose from retroactive application of the refined
standard in the underlying decision. Indeed, all of the
factors that the Board analyzed in the decision were
litigated exhaustively in the hearing, and it is difficult to
conceive of anything that the Respondent might have
done differently if this policy had been in effect before
then.8

4 361 NLRB No. 55 slip op. at 1.
5 Id. slip op. at 11–12.
6 In its motion, the Respondent also contends that the Board in this
case was bound to apply the U.S. Court of Appeals of the District of
Columbia Circuit’s decision in FedEx Home Delivery v. NLRB, 563
F.3d 492 (2009), in which the court found FedEx Home Delivery
drivers at another facility to be independent contractors. The
Respondent argues that, because the record in that earlier case was
made part of the record in this case, the court’s decision should have
been applied here as the law of the case. We disagree. In the
underlying decision, the Board expressly declined to consider evidence
regarding practices at FedEx facilities not at issue in this case. The fact
that such evidence was made part of the record did not effectively
merge this case with the one decided by the court. In any event, the
Board declined to adopt the court’s analysis in that decision.
7 361 NLRB No. 55 slip op. at 11.
8 The Respondent contends that the Board violated its due process
rights by faulting the Respondent for failing, in its offer of proof, to
include information about “the circumstances of each [route] sale or
whether any profit was realized by the drivers,” which the Respondent
asserts was a new proof requirement. But the Board had considered the
same type of evidence in previous decisions. See Roadway Package
System III, 326 NLRB 842, 853 (1998). Indeed, the Respondent
elicited testimony on these very topics during the hearing. In any event,
the Board explained in FedEx that such evidence would not “change
the fact that all of these sales would have been made pursuant to the
terms imposed by the Respondent . . . For the same reason, system-
wide evidence of route sales would not weigh significantly in favor of
independent-contractor status.” 3 61 NLRB No. 55 slip op. at 15 fn. 66.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Accordingly, we find that the Board’s application of its
refined standard in the underlying decision and others
currently pending, consistent with our usual practice,
would not cause manifest injustice.
IT IS ORDERED, therefore, that the Respondent’s motion
for reconsideration is denied.9

9 Member Johnson vigorously adheres to the views expressed in his
dissenting opinion in the underlying decision. A fortiori, he would not
apply the majority’s new independent contractor standard retroactively.
However, he agrees that there are no grounds for granting the
Respondent’s motion for reconsideration.
Dated, Washington, D.C. March 16, 2015
Mark Gaston Pearce, Chairman
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD