12/25/2024: FedEx Remains Outside NLRA Jurisdiction
Temporary fellows can unionize.
Federal Express, 28-CA-284189 (Advice Memo)
The NLRB's Division of Advice recently addressed jurisdiction over a labor dispute at FedEx Express in Las Vegas. A FedEx courier, who transported bulk items between a North Las Vegas facility and Harry Reid Airport, faced discipline after protesting managerial treatment with a coworker's support. This prompted an examination of whether the Railway Labor Act (RLA) or National Labor Relations Act (NLRA) governed the case.
The legal question turned on FedEx's status as a common carrier. The RLA extends to air carriers in interstate commerce and their employees. FedEx directly employs couriers for work essential to its air carrier operations.
In 1995, the National Mediation Board ruled that RLA coverage encompasses virtually all employees performing carrier services. In 1997, the NLRB found that trucking employees, including couriers, fall under RLA jurisdiction when operations are "integrally related" and more than 85% of shipments travel by air.
The Division found no evidence that FedEx's status as a common carrier had changed or that its air and trucking operations were no longer substantially connected. They distinguished this case from contractor-related precedents like ABM Onsite Services-West, since FedEx is a carrier rather than a contractor.
A recent 2024 National Mediation Board decision in Swissport Cargo Services limited RLA jurisdiction to air carriers and their direct employees, excluding contractor companies. While this might affect future cases involving contractors, it didn't impact the FedEx case since FedEx is a direct carrier.
The Division instructed the Region to dismiss the charge for lack of jurisdiction, barring withdrawal. They noted that in future cases involving actual contractors rather than carriers, the General Counsel might advocate for NLRB jurisdiction without using the traditional function and control test.
Significant Cases Cited
Federal Express Corp., 23 NMB 32 (1995) - Established that RLA coverage extends to virtually all employees performing carrier services for passenger/freight transport
Federal Express Corp., 323 NLRB 871 (1997) - Found trucking operation employees, including couriers, are subject to RLA when operations are "integrally related" and more than 85% of shipments go by air
ABM Onsite Services-West, Inc., 367 NLRB No. 35 (2018) - Distinguished as inapplicable since it dealt with carrier contractors rather than direct carriers
Swissport Cargo Services, LP, 52 NMB No. 8 (2024) - Recent NMB decision limiting jurisdiction to air carriers and their employees, excluding contractor companies
Union Tank Car Company, 374 NLRB No. 3, 08-CA-240492 (Published Board Decision)
The NLRB reviewed allegations against Union Tank Car Company and Brotherhood of Railway Carmen Division regarding employee Jennifer Logan.
Logan worked as a carhelper at the company's Marion, Ohio facility. In December 2018, multiple employees complained about Logan's hostile and aggressive behavior, including confronting coworkers about statements they made to management. The company suspended Logan on December 11, 2018, pending investigation. After an investigatory meeting on December 17, 2018, where Union representative Moore took notes, the company terminated Logan on December 21, 2018.
Logan requested copies of Moore's meeting notes multiple times, but the Union refused to provide them based on its practice of not sharing internal notes that may contain sensitive information or reveal strategy. The Union filed a grievance over Logan's termination on January 3, 2019, but failed to properly process it or keep Logan informed of its status.
The ALJ found the Union violated Section 8(b)(1)(A) both by failing to handle the grievance properly and by arbitrarily refusing to provide Moore's notes. The NLRB agreed regarding the grievance handling violations but reversed on the notes issue, finding the Union had legitimate reasons for its confidentiality practice.
The Board determined make-whole relief was not warranted since the evidence did not show the grievance would have succeeded if properly processed. The Board ordered the Union to cease the violations and post notices but declined to order any monetary remedy.
Regarding the company's actions, the NLRB affirmed the ALJ's dismissal of allegations that the suspension and termination violated Section 8(a)(3), finding Logan's misconduct provided legitimate grounds for the discipline regardless of any protected activity.
Significant Cases Cited
Air Line Pilots v. O'Neill, 499 U.S. 65 (1991) - Union conduct is arbitrary only if "so far outside a wide range of reasonableness as to be irrational"
Mail Handlers Local 307 (USPS), 339 NLRB 93 (2003) - Union lawfully refused to provide witness statements where safety concerns were legitimate
NNOC-Texas/NNU, 371 NLRB No. 132 (2022) - Union may lawfully deny information requests if reasons are not arbitrary, discriminatory or in bad faith
United States Postal Service, 374 NLRB No. 7, 07-CA-299320 (Published Board Decision)
The NLRB issued a decision involving three consolidated cases about information requests made to the US Postal Service by APWU Locals in Michigan.
Administrative Law Judge Ira Sandron initially found that USPS violated labor law by:
Delaying information to Local 143 at the Colon facility
Delaying information to Local 281 at the Big Rapids facility
Refusing to provide information to Local 281 at the Grand Rapids processing facility
The Board panel, consisting of Chairman McFerran and Members Prouty and Wilcox, affirmed these violations.
At the Colon facility, Local 143 requested information on April 28, 2022, about an employee placed on administrative leave pending investigation. USPS did not provide all requested information until July 28 - a 3.5 month delay. USPS claimed staffing shortages and unfamiliarity with information requests but offered no concrete justification for the delay.
At Big Rapids, Local 281 requested information in September 2022 about complaints regarding hostile workplace conditions. USPS initially questioned the union's right to certain information but ultimately provided it in November, about 6 weeks later.
At the Grand Rapids processing facility, Local 281 requested information in August 2022 about three probationary employee terminations. USPS refused to provide the information, claiming probationary employees lacked grievance rights. The Board found the union was entitled to verify whether terminations properly occurred during the probationary period.
For remedies, the Board required USPS to:
Post separate notices at each facility
Provide the outstanding requested information
Cease and desist from similar violations
The Board declined broader remedies like statewide notice posting or a general bargaining order, noting that given USPS's size, more violations would be needed to establish a pattern of misconduct
Significant Cases Cited
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): Established employer duty to provide relevant information to unions
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Duty to bargain extends beyond contract negotiations to ongoing labor relations
Palace Station Hotel & Casino, 368 NLRB No. 148 (2019): Information about bargaining unit employees' terms and conditions is "presumptively relevant"
Capitol Steel & Iron Co., 317 NLRB 809 (1995): 2-week delay violated Act
Postal Service, 332 NLRB 635 (2000): 5-week delay violated Act
Nexstar Media, Inc. (Denver Hub), 374 NLRB No. 1, 27-CA-342707 (Published Board Decision)
Nexstar Media's Denver Hub refused to bargain with the National Association of Broadcast Employees & Technicians-CWA after the union won a secret ballot election on April 4, 2024. The Regional Director certified the union on April 29, 2024, but Nexstar declined to provide bargaining dates when requested on May 17, 2024, stating it would file a request for review of the certification.
The Board denied Nexstar's request for review on September 19, 2024. The General Counsel then filed a Motion for Summary Judgment, which the Board granted. The Board found that Nexstar violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the certified union.
Nexstar raised several constitutional challenges, arguing that Board members and administrative law judges were unconstitutionally insulated from presidential removal and that it was entitled to a jury trial. The Board rejected these arguments based on established Supreme Court precedent.
The Board issued a standard remedial order requiring Nexstar to bargain with the union and post notices. However, it severed for later consideration the General Counsel's request for additional make-whole remedies, which would have required overturning Ex-Cell-O Corp.
Significant Cases Cited
Ex-Cell-O Corp., 185 NLRB 107 (1970): Held that make-whole remedies are not available in refusal-to-bargain cases
Mar-Jac Poultry Co., 136 NLRB 785 (1962): Established that certification year begins when employer starts bargaining in good faith
Longmont United Hospital, 371 NLRB No. 162 (2022): Precedent for severing make-whole remedy issues for separate consideration
Starbucks Corporation, 374 NLRB No. 9, 31-CA-299464 (Published Board Decision)
The NLRB issued a decision regarding unfair labor practice charges against Starbucks Corporation at its Sylmar, California location, which arose during a union organizing campaign by Workers United.
Administrative Law Judge (ALJ) Ira Sandron had previously heard the case and issued a decision on October 19, 2023. Both Starbucks and the General Counsel filed exceptions to the ALJ's decision.
The case centered on events that occurred in 2022 during the union organizing campaign. In May 2022, employees began organizing with Workers United. The Union filed a representation petition on May 18, 2022. Between May and July, Store Manager Tiffany Fuller and District Manager Jennifer Tayarah held one-on-one meetings with employees to discuss unionization.
During these meetings, Fuller made statements about potential loss of benefits if employees unionized, including Arizona State University tuition benefits and healthcare benefits. Tayarah told one employee that unionization would be futile and suggested the employee look for work elsewhere when they raised concerns about wages and working conditions.
On July 1, 2022, Starbucks terminated employee Jason Untaran, shortly after he participated in a public meeting with Congressman Anthony Cardenas in support of the union on June 28. A mail ballot election was conducted from July 6-27, 2022, resulting in 15 votes against the union and 7 votes for the union.
The Board found that Starbucks violated the National Labor Relations Act through:
Fuller's statements about benefit losses
Tayarah's statements about union futility and suggesting employees quit
The discriminatory discharge of Untaran
Coercive interrogation of employees about union support
The Board ordered:
Reinstatement and backpay for Untaran
Standard remedial notice posting
A new election
Significant Cases Cited
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Employer statements about unionization consequences must be carefully phrased and based on demonstrable facts.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for determining if an employee's termination was motivated by anti-union animus.
Rossmore House, 269 NLRB 1176 (1984): Laid out factors to determine whether employer interrogation constitutes coercion.
Franklinton Preparatory Academy, 366 NLRB No. 67 (2018): Threats about potential loss of benefits during collective bargaining violate Section 8(a)(1).
Somerset Welding & Steel, 314 NLRB 829 (1994): Statements about loss of benefits cannot be made in a coercive context.
Norel Service Co., Inc., 01-RC-347874 (Regional Election Decision)
IBEW Local 103 filed a petition to represent employees at Norel Service Co., a company that installs fire prevention systems in Littleton, Massachusetts. The union sought to include about 38 workers, including both fire alarm technicians and sprinkler technicians.
Two main disputes arose. First, the company wanted to exclude six working supervisors/foremen from the unit, arguing they were supervisors under the law. Second, the company wanted to exclude four sprinkler technicians, claiming they didn't share enough in common with the fire alarm technicians to be in the same unit.
The Regional Director decided to put off the supervisor question until after the election. Those six people can vote, but their votes will be challenged and dealt with later if they matter to the outcome.
On the sprinkler technician issue, the Regional Director looked at how the two groups of technicians actually work together. While they have different licenses and can't do each other's specialized work, they often need to coordinate closely. Fire alarm technicians have to shut down systems so sprinkler technicians can work, and both groups maintain parts of the same integrated fire prevention systems. They work the same hours, follow the same company policies, wear similar uniforms, and often work at the same locations.
After weighing these factors, the Regional Director decided the sprinkler technicians should be included in the voting unit. An election was scheduled for January 6, 2025, with voting sessions in both morning and afternoon.
The final unit will include all full-time and regular part-time Fleet, Service Inspection/Testing and Installation employees and sprinkler technicians at the Littleton facility. It won't include managers, sales employees, office workers, guards, or professional employees. The six disputed supervisors can vote but their votes will be set aside and counted only if they could affect the outcome.
Significant Cases Cited
Overnite Transportation Co., 322 NLRB 723 (1996): Establishes that petitioned-for unit need only be "an" appropriate unit, not necessarily the most appropriate unit
Berea Publishing Co., 140 NLRB 516 (1963): Different processes alone don't make a combined unit inappropriate if sufficient community of interest exists
Casino Aztar, 349 NLRB 603 (2007): Separate supervision doesn't mandate separate units
Turner Industries Group, LLC, 349 NLRB 428 (2007): Rejects arbitrary or artificial employee groupings
KAG Specialty Products Group, LLC, 13-RM-340915 (Regional Election Decision)
On April 12, 2024, Teamsters Local 705 demanded recognition to represent seven truck drivers who worked for KAG Specialty Products at GCP's Chicago facility. KAG was a trucking company that transported chemicals, with GCP being one of its clients since 2006. The drivers exclusively serviced the GCP account.
After receiving the union's demand, KAG told GCP about the union organizing on April 18. GCP had already been complaining about driver performance since June 2023 and had noticed market slowdown since February 2024.
Events then moved quickly:
April 22: GCP reduced driver count from 7 to 5
April 25: GCP asked to buy KAG's tanker trucks
May 3: GCP confirmed it would buy the trucks and switch to a different carrier
May 15: GCP set May 17 as the final contract termination date
May 17: KAG laid off all seven drivers
By May 31, a new company called WTL was handling GCP's deliveries using four of its own drivers and the tanker trucks it bought from KAG.
The union argued the shutdown wasn't really "imminent and definite" as required by NLRB law. They questioned whether drivers got proper notice and pointed out the timing right after union organizing began.
The Regional Director focused on the concrete facts: the contract was terminated, the trucks were sold, all drivers were laid off, and a new company was already doing the work. Since there were no operations left to vote on, the Director dismissed the election petition.
However, the Director left the door open - if evidence shows KAG didn't actually stop operations as claimed, the union can ask to revive their election petition.
Significant Cases Cited
Canterbury of Puerto Rico, 225 NLRB 309 (1976): Established that conjecture or uncertainty about future operations isn't enough for dismissal
Hughes Aircraft Co., 308 NLRB 82 (1992): Found cessation imminent where employer had concrete subcontracting plans within 90 days
Davey McKee Corp, 308 NLRB 839 (1992): Held that termination within 3-4 months makes election purposeless
Norfolk Maintenance Corp., 310 NLRB 527 (1993): Required election where cessation wasn't expected for 7+ months
High Country News, 27-RC-354421 (Regional Election Decision)
The Denver Newspaper Guild filed a petition to represent Editorial Fellows at High Country News, a Colorado-based magazine publisher. These Fellows are temporary employees who work for either 6 months or up to one year, writing stories and fact-checking for the magazine's print and online editions.
The Fellows get a full work schedule (40 hours per week), health benefits, and work-from-home allowances. Since 2021, High Country News has employed nine Fellows, usually one or two at a time, funded through grants rather than their operating budget.
The company opposed the union petition for two reasons:
They said temporary employees shouldn't be allowed to form their own bargaining unit
They claimed an election held earlier in 2024 barred any new election for 12 months
The earlier election gets complicated: It was for a larger group of permanent employees, and while Fellows were allowed to vote, their votes were set aside as challenged ballots. The union won that election, but no one ever decided whether Fellows should be part of that larger unit.
The Regional Director sided with the union on both issues:
First, temporary employees can have their own union. Even though each Fellow only works for 6-12 months, the Fellowship program itself is stable and ongoing. The Director pointed out that the Fellows share common supervision, schedules, and working conditions - all the usual things that make a group appropriate for collective bargaining.
Second, the earlier election didn't block this one. Since no one ever decided whether Fellows belonged in that first unit, they're free to vote in their own election now.
Significant Cases Cited
Kansas City Repertory Theatre, 356 NLRB 147 (2010): Temporary employees with no expectation of continued employment can constitute appropriate unit
S.S. Joachim & Anne Residence, 314 NLRB 1191 (1994): Election bar doesn't apply to employees excluded from prior election unit
Pen Mar Packaging Corp., 261 NLRB 874 (1982): Temporary employees generally ineligible for units of permanent employees