Fedex Home Delivery

National Labor Relations Board - Administrative Judge Opinions

Aug 2, 2007

34-RC-002205 (N.L.R.B. Aug. 2, 2007)

JD(NY)–35-07
Windsor, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FEDEX HOME DELIVERY, AN OPERATING DIVISION
OF FEDEX GROUND PACKAGE SYSTEMS, INC.
Employer
and Case No. 34-RC-2205
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 671
Petitioner
Doreen Davis, Esq. and Amanda Sonneborn, Esq., Morgan, Lewis & Bockius, LLP, for the
Employer.
Gabriel Dumont, Esq., Dumont, Morris & Burk, PC, for the Petitioner.
Terri Craig, Esq., Counsel for the Regional Director.
DECISION ON OBJECTIONS
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on July 2
and 3, 2007 in Hartford, Connecticut. International Brotherhood of Teamsters, Local 671, herein
called the Petitioner or the Union, filed a petition to represent the contract drivers at the
Windsor, Connecticut terminal (also referred to as the Hartford terminal) of FEDEX Home
Delivery, An Operating Division of FEDEX Ground Package Systems, Inc., herein called the
Employer. By Decision and Direction of Election dated April 11, 2007, the Regional Director for
Region 34 found that the Employer was an employer within the Act and that it would effectuate
the purposes of the Act to assert jurisdiction. Substantively, the Decision rejected the
Employer’s argument that the petitioned for contract drivers were independent contractors
within the meaning of Section 2(3) of the Act and found that they were employees within the
meaning of the Act. The Decision further found that the Employer had failed to satisfy its burden
that contract driver Paul Chiappa was a supervisor within the meaning of Section 2(11) of the
Act, and was therefore an eligible voter, and that Robert Dizinno shared a community of interest
with the other contract drivers to warrant his inclusion in the petitioned-for unit. The Decision set
forth the following as the appropriate unit herein:
All contract drivers employed by the Employer at its Hartford terminal; but excluding
drivers and helpers hired by contract drivers, temporary drivers, supplemental drivers,
multiple-route contract drivers, package handlers, office clerical employees, and guards,
professional employees and supervisors as defined in the Act.
A secret ballot election was conducted on May 11, 2007, but because the Employer had
filed a Request for Review of the April 11, 2007 Decision and Direction of Election, the ballots
were impounded. By Order dated May 22, 2007, the Board denied the Employer’s Request for
Review of the Decision and Direction of Election, and the Tally of Ballots took place at the
regional office on June 1, 2007. The Tally of Ballots states that 12 votes were cast for the
Petitioner, 9 votes were cast against the Petitioner, there were 2 challenged ballots, and,
therefore, challenges were not determinative. On June 8, 2007, the Employer filed Objections to
Election consisting of two objections, set forth below, verbatim:
JD(NY)–35-07
5
10
15
20
25
30
35
40
45
50
2
1. During the critical period before the representation election on May 11, 2007,
Teamster Union Local 671, Affiliated with IBT (“Union”), by and through its agents and
others with whom it acted in concert, improperly conferred valuable benefits, including
legal services, to eligible voters and caused two civil actions on their behalf to
commence in the U.S. District Court for the District of Connecticut. The civil actions
identify six (6) voters as named plaintiffs. The Union’s conduct constitutes, among other
things, an impermissible benefit that interfered with laboratory conditions necessary to
conduct a free and fair election.
2. At the election, the Company challenged the ballots cast by Paul Chiappa and Robert
Dizinno, including for the reason that certain circumstances had changed since the time
when the petition was filed. Before the Region counted the ballots, the Company notified
the Board Agent that it maintained its challenge to the ballots of Chiappa and Dizinno for
the reasons stated previously, and it objected to the Region opening and commingling
their ballots without first (1) counting the unchallenged ballots to determine whether all
challenged ballots were outcome determinative and (2) if so, giving the Company an
opportunity to present evidence in support of its challenges, conducting an investigation,
and then making a determination as to Chiappa’s and Dizinno’s eligibility. Over the
Company’s objection, the Board Agent opened and counted the challenged ballots of
Chiappa and Dizinno; however, he did not open and count the other two challenged
ballots (one by the Union and one by the Company). The count yielded 12 votes for the
Union and 9 votes for no union. The Board Agent’s conduct in prematurely opening and
counting challenged ballots was improper.
The Union and Board Agent’s conduct was improper and affected the outcome of the
election, which turned on three votes (two of which should not have been counted
without an investigation). For these reasons and the additional reasons that the Region
and the Company might discover, the Company requests that the results of the election
in the above-captioned matter be set aside.
Objection No. 1
This objection alleges that the Union improperly conferred valuable benefits, including
legal services to the eligible employees herein, and caused two civil actions to be commenced
on their behalf. It is alleged that these “benefits” constituted impermissible benefits that
interfered with the laboratory conditions necessary for a free and fair elections. Without even
discussing the legal issues herein, it is clear that there is no record evidence supporting this
objection and it must therefore be overruled. The uncontradicted testimony establishes that the
Union did not initiate or pay any part of the legal fees or any incidental expenses of the lawsuits
against the Employer, either directly or indirectly, or confer any valuable benefit upon the unit
employees as alleged in the objection. Rather, the Retainer Agreement reluctantly turned over
by counsel for the plaintiffs in the cases, states unequivocally, that the law firm is handling the
matter “on a complete contingent fee basis” and the testimony of the employee/plaintiffs is in
complete accord. In other words, neither the Petitioner nor the unit employees paid anything
toward this lawsuit.
The only “support” provided by the Union relating to the lawsuits involves the
maintenance of two websites that provide information relating to the Employer, its attempts to
classify contract drivers as independent contractors, and the resulting lawsuits. One, is
fedexdriverslawsuit.com, which is maintained by the law firm representing the plaintiffs in the
lawsuit. David Welker, who is employed by the Union as senior project coordinator for the IBT
JD(NY)–35-07
5
10
15
20
25
30
35
40
45
50
3
parcel and small package division, testified that he provided this website information to the
Employer’s unit employees at a meeting in December 2006. The other website, which is
maintained by the Union, is called FEDEX WATCH. As a union is entitled to notify employees of
their rights, I find nothing objectionable about the maintenance of, or publicity about, either of
these websites. Further, Objection No. 2 alleges that the Union “conferred valuable benefits” to
the employees. These websites simply kept the employees informed about the numerous
lawsuits that were pending against the Employer on the independent contractor issue. As there
is no evidence that the Union conferred valuable benefits or, in fact, any benefits to the
employees herein, as alleged in Objection No. 1, I recommend that this objection be overruled.
Objection No. 2
This objection is substantially more complicated than Objection 1. At the pre-election
conference on May 11, 2007, the Employer was represented by Robert Hodavance, Esq., an
attorney employed by the law firm of Morgan, Lewis & Bockius, the Union by Anthony Lepore,
the Union president, and the Board’s regional office by Board Agent and Compliance Officer
Nestor Diaz. Hodovance testified that at this conference, Diaz asked him and Lepore if there
were going to be any challenge ballots. Hodovance responded that the Employer was going to
challenge three voters, Garrett Anderson (who Diaz, apparently, knew would be challenged)
and Chiappa and Dizinno. Lepore asked him why he was challenging Dizinno and Chiappa and
Hodovance said that, in addition to the fact that the Board had not yet ruled upon their Request
for Review, “the circumstances for these two individuals had changed from the time of the end
of the hearing to the time of the election, and they were now in positions that would be ineligible
to vote.” Diaz said that he would accept all of the challenges, which he did. Lepore testified that
at this pre-election conference, Hodovance said that the Employer was going to challenge the
ballots of Dizinno and Chiappa, as well as Garrett Anderson. Lepore responded that the region
had already determined that Chiappa and Dizinno were eligible voters and that their votes
should be counted. Diaz said that the Employer had the right to challenge them if it wished to do
so. Lepore said that the Union was going to challenge the ballot of Sandra Lott as not eligible
because she was a multi-vehicle contractor. Diaz testified that he began the conference by
asking the parties if there would be any challenges. Hodovance said that the Employer was
going to challenge the ballots of Dizinno, Chiappa and Anderson, and the Union was going to
challenge the ballot of Lott. Diaz could not recall whether Hodovance stated any reason for
challenging the ballots of Dizinno and Chiappa. The parties were not able to resolve any of the
four proposed challenges, they left the area, and Diaz and the observers conducted the
election, at which the four individuals were challenged as stated in the conference. The
Employer’s observer challenged the ballots of Dizinno and Chiappa, stating: “Not a single route
driver” and that is what Diaz wrote on the challenge ballot envelopes. Because the Board had
not yet ruled on the Employer’s Request for Review the ballots were impounded. By Order
dated May 22, 2007, the Board denied the Employer’s Request for Review of the Decision and
Direction of Election, and the ballot count was scheduled for June 1, 2007 at the regional office.
Hodovance testified that two days prior to the date set for the counting of the ballots, he
received a call from Diaz, who told him that he would be in charge of the vote count and that “he
had been instructed by the Board to count the ballots of Dizinno and Chiappa.” Hodovance
responded: “Is this even with the fact that there were changed circumstances from the time of
the hearing to the time of the election?” Diaz answered, “Well, I guess if either one were no
longer employed as of the time of the election, or either one had been promoted into a pre-
existing supervisory position, that might make a difference.” Hodovance responded that the
challenged ballot procedure was the way to determine whether changed circumstances rose to
that level, and Diaz responded, “Well, I have my instructions. I just hope that these are not going
to be determinative of the outcome of the election.” Diaz testified that on the morning prior to the
JD(NY)–35-07
5
10
15
20
25
30
35
40
45
50
4
count he called Lepore and Hodovance to tell them that he would be conducting the ballot
count; however he does not recall having any conversation with Hodovance about the count or
the challenges at that time, or a day or two prior to the day of the count. Hodovance testified
further that at the count on June 1, Diaz began by saying that he had received instructions from
the Board to count the two ballots, and Hodovance replied that the Employer objected to that.
Diaz told him that the region was going to do it anyway. Diaz then asked if there was any
chance of resolving the other two challenges, and Hodovance and Lepore indicated that there
wasn’t. Diaz then opened the challenged ballot envelopes of Dizinno and Chiappa and mixed
them with the other open ballots, and counted the ballots. Hodovance testified that in none of
these three conversations with Diaz about the changed circumstances for Dizinno and Chiappa
did he specify what the changed circumstances were.
Lepore testified that on the morning of June 1, 2007, Diaz told the parties that he was
going to count the ballots of Dizinno and Chiappa and Hodovance said that the Employer did
not agree with that. Diaz then asked if the parties could resolve the remaining two challenges,
and when they said that they couldn’t, he opened the ballot box, after mixing in the ballots of
Dizinno and Chiappa, and counted the ballots. Diaz testified that when he arrived for the ballot
count, he told the parties that the Board had decided that Dizinno and Chiappa were eligible
employees and that their ballots should be opened and counted, “and that’s what I intend to do.”
He testified that Hodovance did not respond to this statement. He then asked the parties if they
wished to withdraw their challenges to Anderson and Lott, and they said that they did not. He
then opened the ballot box, separated the ballots of Anderson and Lott, and opened the
challenged ballot envelopes of Dizinno and Chiappa and dropped them in the ballot box, mixing
them with the other ballots. He counted the ballots and prepared the Tally of Ballots stating that
12 votes were cast for the Petitioner, 9 votes were cast against the Petitioner, there were two
remaining challenged ballots, and that these challenges were not determinative.
Initially, I credit the testimony of Hodovance regarding his conversations with Board
Agent Diaz. I do this not because I found Diaz to be less than a credible witness. Rather, his
testimony clearly reveals that his memory of the events was lacking. In addition, the testimony
of Hodovance that he informed Diaz at the election and prior to the ballot count that there had
been a change in circumstances is a reasonable, and expected, position for an attorney to take.
The credited evidence therefore establishes that two days prior to the ballot count Diaz called
Hodovance and told him that the ballots of Chiappa and Dizinno were going to be opened and
counted at the ballot count. Hodovance questioned the propriety of this procedure as “…there
were changed circumstances from the time of the hearing to the time of the election.” On the
morning of the count when Diaz again informed the parties that he was going to open, mix, and
count the challenged ballots of Chiappa and Dizinno, Hodovance again objected to this
procedure but, apparently, did not repeat the allegation of changed circumstances from the
close of the hearing.
The law is clear that the party challenging a voter bears the burden of establishing that
he/she should not be allowed to vote. NLRB v. Kentucky River Community Care, Inc., 532 U.S.
706 (2001); Nurses United for Improved Patient Healthcare, 338 NLRB 837 (2003). In the
instant matter it is undisputed that the Employer’s sole objection to opening and counting
Chiappa and Dizinno’s ballots was that there was a change of circumstances from the time of
the hearing to the date of the election. I find that this challenge/objection was insufficient for two
reasons. As the Employer bears the burden of establishing the ineligible status of Chiappa and
Dizinno, it must do more than simply repeat that there was a change of circumstances. Did their
jobs change to make them supervisors within the meaning of the Act, or were they to be
excluded from the unit for some other reason? In addition, the Employer has a difficult burden
herein because the hearing that was the basis for the Decision and Direction of Election
JD(NY)–35-07
5
10
15
20
25
30
35
40
45
50
5
concluded on March 2, 2007, approximately ten weeks prior to the election. Further, I note that
Dizinno, who testified in this matter on July 3, 2007, testified that he was currently driving a
route for the Employer in Manchester, Connecticut, which would be a unit position. I therefore
find that the Employer did not satisfy its burden by adequately establishing that there was a
change of circumstances since the close of the hearing in the job responsibilities of Chiappa
and Dizinno, and that the region properly opened and counted their ballots. I therefore
recommend that Objection No. 2 be overruled.
Conclusion
Based upon the above, I recommend that the Employer’s objections be overruled and
that the Regional Director issue an appropriate certification.1
Dated, Washington, D.C. August 2, 2007
_________________________________
Joel P. Biblowitz
Administrative Law Judge

1 Under the provisions of Section 102.69 of the Board’s Rules and Regulations, Exceptions
to this Report may be filed with the Board in Washington, DC within 14 days from the date of
issuance of this Report and recommendations. Exceptions must be received by the Board in
Washington by August 16, 2007.