FEDEX HOME DELIVERY

National Labor Relations Board - Unpublished Board Decisions

Aug 27, 2010

34-RC-002205 (N.L.R.B. Aug. 27, 2010)

1
NOT INCLUDED IN LSP
BOUND VOLUMES Windsor, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
FEDEX HOME DELIVERY, AN OPERATING DIVISION OF
FEDEX GROUND PACKAGE SYSTEMS, INC.
Employer
and Case 34-RC-2205
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 671
Petitioner
ORDER
On September 29, 2008, a two-member Board issued a
Decision and Order remanding this matter to the judge1 with
instructions to reopen the record for the presentation of
additional evidence. On May 22, 2009, the judge issued his
Supplemental Decision on Objections. On May 27, 2010, a
three-member Board issued an unpublished Decision and
Certification of Representative sustaining in part, and
overruling in part, the judge’s findings and
recommendations.
On June 17, 2010, the United States Supreme Court
issued its decision in New Process Steel, L.P. v. NLRB, 130
S. Ct. 2635, holding that under Section 3(b) of the Act, in
order to exercise the delegated authority of the Board, a

1 The judge was sitting as a hearing officer in this
representation proceeding.
2
delegee group of at least three members must be maintained.
Thereafter, the Employer filed an Amended Motion for
Reconsideration2 contesting the validity of the Board’s May
27, 2010 Decision and Certification of Representative
because of its reliance on the judge’s supplemental decision
that followed a remand by a two-member Board.
Having carefully considered the matter, we reaffirm the
earlier decision to remand the case. In addition, we have
considered the judge’s supplemental decision and the record
in light of the exceptions and briefs, and we reaffirm our
May 27, 2010 Decision and Certification of Representative
for the reasons stated in that decision. Further, having
duly considered the arguments in the Employer’s Amended

2 On March 17, 2010, the Employer filed a Motion to
Dismiss Petition. On June 10, 2010, the Employer filed a
timely Motion for Reconsideration requesting that the Board
grant its Motion to Dismiss. In these motions, the Employer
argues that the Regional Director’s finding that the
bargaining unit drivers are statutory employees is contrary
to the D.C. Circuit’s decision in FedEx Home Delivery v.
NLRB, 563 F.3d 492 (2009). The Employer incorporates this
argument by reference in its Amended Motion for
Reconsideration. To the extent that the Employer seeks
reconsideration of the Regional Director’s April 11, 2007
Decision and Direction of Election, that portion of the
Amended Motion for Reconsideration is untimely. We thus
adhere to the Regional Director’s decision on the above
issue, particularly in light of the fact that the matter was
not litigated in this specific election objections
proceeding, and find the Employer’s argument to lack merit.
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Motion for Reconsideration, we deny the motion as lacking
merit.
Dated, Washington, D.C., August 27, 2010.
__________________________
WILMA B. LIEBMAN, CHAIRMAN
__________________________
PETER C. SCHAUMBER, MEMBER
__________________________
MARK GASTON PEARCE, MEMBER
(SEAL) NATIONAL LABOR RELATIONS BOARD