FedEx Freight v. NLRB

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Duane Benton AUTHORING JUDGE:Diana E. Murphy (PUBLISHED); Denying [4268669-2] petition for review filed by Petitioner FedEx Freight. in 15-1848; Granting [4304320-2] Application for enforcement. in 15-2732 [4374670] [15-1848, 15-1999, 15-2494, 15-2732]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1848
___________________________
FedEx Freight, Inc.
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
International Brotherhood of Teamsters, Local 71
lllllllllllllllllllllIntervenor
___________________________
No. 15-1999
___________________________
FedEx Freight, Inc.
lllllllllllllllllllllRespondent
v.
National Labor Relations Board
lllllllllllllllllllllPetitioner
International Brotherhood of Teamsters, Local 71
lllllllllllllllllllllIntervenor

Appellate Case: 15-1848

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___________________________
No. 15-2494
___________________________
FedEx Freight
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
International Brotherhood of Teamsters, Local 107
lllllllllllllllllllllIntervenor
___________________________
No. 15-2732
___________________________
FedEx Freight
lllllllllllllllllllllRespondent
v.
National Labor Relations Board
lllllllllllllllllllllPetitioner
International Brotherhood of Teamsters, Local 107
lllllllllllllllllllllIntervenor

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____________
National Labor Relations Board
____________
Submitted: January 12, 2016
Filed: March 7, 2016
____________
Before MURPHY, SMITH, and BENTON, Circuit Judges.
____________
MURPHY, Circuit Judge.
The International Brotherhood of Teamsters locals in Charlotte, North Carolina
and Croydon, Pennsylvania petitioned the National Labor Relations Board (NLRB)
seeking to represent collective bargaining units including both city and road drivers
who work at terminals operated by FedEx Freight, Inc. FedEx proposed that the units
should also include the dockworkers at the terminals. In considering the proposal the
NLRB regional director applied a two step analysis from Specialty Healthcare and
Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In each case the director
found that (1) the union's proposed bargaining unit was composed of a readily
identifiable group of employees sharing a community of interest, and (2) FedEx did
not meet its burden to show that the dockworkers shared an "overwhelming
community of interest" with the drivers which required their inclusion in the same
unit. The Board denied review, and the Teamsters won the elections in both cities.
FedEx now petitions for review of the Board's orders forcing it to bargain with
the unions, arguing that the Specialty Healthcare standard violates the National Labor
Relations Act, our own circuit law, and the Administrative Procedure Act. The Board
petitions for enforcement of its orders. After full consideration, we deny the FedEx
petitions and grant the Board's petitions for enforcement.
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I.
FedEx operates freight terminals across the country. The terminal in Charlotte,
North Carolina includes a main building containing a dock with 224 operational
doors surrounded by a yard. FedEx employs approximately 115 city drivers, 106 road
drivers, and 186 dockworkers at this terminal. The city drivers pick up and deliver
freight to and from customers in the area while the road drivers transport freight
between the terminal and other FedEx facilities. All these drivers are employed full
time and must possess a commercial driver license and wear a uniform while driving.
FedEx maintains separate seniority lists for each class of driver. While city drivers
occasionally do road driving, road drivers rarely do city driving.
The dockworkers load and unload freight from the trailers and move freight
around the dock using forklifts. This work takes place exclusively at the terminal.
One hundred and fourteen of the 186 dockworkers are "supplemental" part time
employees and are not on a seniority list. The other 72 dockworkers work full time.
These individuals are part of a one year "dock to driver" program in which they work
full time on the dock while taking a course to obtain their commercial driver license.
Eighteen of the 221 drivers are graduates of this program. The full time dockworkers
have a seniority list. The only requirement for employment as a dockworker is being
at least 18 years of age; they are not required to wear uniforms.
Around one quarter of the drivers performed some dock work during the six
month period surveyed in the stipulated record. City drivers also occasionally
perform "hostling" work, which involves moving trailers and other equipment around
the yard. Road drivers rarely do hostling work. Dock and hostling work take up a
total of around 5% of the city drivers' time and less than 1% of the road drivers' time.
Although dockworkers do not do any driving work, they use specialized trucks that
do not require a commercial driver license to perform hostling work.

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The terminal in Croydon, Pennsylvania (referred to as the East Philadelphia
terminal) is smaller than the one in Charlotte, having only 51 operational doors.
FedEx employs about 29 city drivers, 14 road drivers, and 19 part time supplemental
dockworkers in East Philadelphia. Seven of these drivers are graduates of the dock
to driver program. In comparison to the Charlotte terminal, more of the East
Philadelphia dock work is done by drivers. Approximately 34% of the dock and
hostling hours there are worked by drivers. Forty one of the 43 drivers performed
dock or hostling work, and 13 of the drivers performed over 100 hours of dock work
in six months.
The Teamsters locals in both cities petitioned the Board to represent bargaining
units for both the city drivers and the road drivers. FedEx contended that such units
were inappropriate because they did not include the dockworkers. After hearings, the
NLRB regional director employed the Specialty Healthcare two step analysis and
found that the proposed units were appropriate but that FedEx had not met its burden
to show the dockworkers must be included in these units. FedEx filed requests for
review of the regional director's decisions which the Board summarily denied. After
the drivers in both cities voted to unionize, FedEx contested the certification of the
bargaining units by refusing to bargain. See NLRB v. St. Clair Die Casting, LLC,
423 F.3d 843, 848 (8th Cir. 2005). The Board's general counsel filed refusal to
bargain complaints against FedEx, and the Board granted the general counsel's
motions for summary judgment and ordered FedEx to bargain with the unions. Now
before us are petitions for review by FedEx and for enforcement by the Board. We
have jurisdiction over the matter under 29 U.S.C. § 160(e), (f) because FedEx
transacts business in this circuit.1

1

FedEx has also filed a petition for review raising the same issues as here in a
case about driver unionization at its terminal in Monmouth Junction, New Jersey.
FedEx Freight, Inc. v. NLRB, No. 15-2712 (3d Cir. filed July 16, 2015).
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II.
The first question raised is whether FedEx preserved its challenges to the
Specialty Healthcare framework. The Board argues that in the proceedings below
FedEx failed to raise and preserve an argument against Specialty Healthcare. An
objection to a Board decision cannot be heard unless it has been "urged before the
Board, its member, agent, or agency" such that the Board has "received adequate
notice of the basis for the objection." Nathan Katz Realty, LLC v. NLRB, 251 F.3d
981, 985 (D.C. Cir. 2001); 29 U.S.C. § 160(e).
FedEx stated in a footnote in each of its requests for review of the
determinations by the regional director that "Specialty Healthcare was decided
erroneously" for the reasons stated in Board member Hayes' dissent. See 357 NLRB
No. 83 at *15 (Hayes, dissenting). FedEx indicated that it would focus its briefing
assuming that the Board would not revisit its decision. FedEx later incorporated its
arguments in its responses to the Board's show cause orders in the refusal to bargain
cases. The Board was aware of the FedEx challenge to Specialty Healthcare, as
shown by member Johnson's concurring statements attached to the two summary
affirmance orders by the Board. By adopting member Hayes' dissent, FedEx signaled
that it might bring a challenge to the Specialty Healthcare framework if the Board
were to apply it. This gave the Board adequate notice that FedEx was objecting to
the regional director's use of the Specialty Healthcare framework. We therefore have
jurisdiction to review the FedEx claims. See Nathan Katz Realty, 251 F.3d at 985.
III.
The central question here is whether the Board's Specialty Healthcare analysis
comports with the National Labor Relations Act (the Act), our own case law applying
the Act, and the Administrative Procedure Act (the APA). Section 9 of the Act "gives
the Board the power to determine the unit appropriate for the purpose of collective
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bargaining." NLRB v. St. Clair Die Casting, LLC, 423 F.3d 843, 848 (8th Cir. 2005).
Review of the Board's certification decision "is limited to a determination of whether
the decision is arbitrary, capricious, an abuse of discretion, or lacking in substantial
evidentiary support." Id. The Board's interpretations of the Act are also "entitled to
considerable deference." St. John's Mercy Health Sys. v. NLRB, 436 F.3d 843, 846
(8th Cir. 2006) (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 495 (1979)).
Section 9(a) of the Act provides for the designation or selection of an exclusive
representative for the purposes of collective bargaining "by the majority of the
employees in a unit appropriate for such purposes." 29 U.S.C. § 159(a). Section 9(b)
requires the Board to "decide in each case" which unit of employees is appropriate.
Id. § 159(b). To make that determination, the Board applies a "community of
interests" analysis. Cedar Valley Corp. v. NLRB, 977 F.2d 1211, 1217 (8th Cir.
1992). The relevant factors in that analysis include "bargaining history, operational
integration, geographic proximity, common supervisor, similarity in job function, and
employee interchange." Id. (quoting Elec. Data Sys. Corp. v. NLRB, 938 F.2d 570,
573 (5th Cir. 1991)). The Board has "broad discretion to determine whether a group
of employees has a sufficient 'community of interest.'" NLRB v. MEMC Elec.
Materials, Inc., 363 F.3d 705, 707 (8th Cir. 2004). On appeal, "the NLRB's
determination as to the appropriateness of a bargaining unit will rarely be disturbed
and this court's scope of review is narrow." Cedar Valley Corp., 977 F.2d at 1218.
In Specialty Healthcare, the Board reviewed its standards for making unit
determinations. The Board explained that it begins by examining the unit sought by
the union. 357 NLRB No. 83 at *8. The Board determines whether the proposed unit
is appropriate because it consists of employees who are "readily identifiable as a
group (based on job classifications, departments, functions, work locations, skills, or
similar factors)" and who "share a community of interest after considering the
traditional criteria." Id. at *9, 12.

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Next, the Board described what would be required "to demonstrate that a
proposed unit consisting of employees readily identifiable as a group who share a
community of interest is nevertheless not an appropriate unit because the smallest
appropriate unit contains additional employees." Specialty Healthcare, 357 NLRB
No. 83 at *10 (emphasis in original). Merely showing that another unit is appropriate
or even more appropriate than the proposed unit "is not sufficient." Id. Thus, when
the proposed unit is shown to be prima facie appropriate under the community of
interest test, a "heightened showing" by the party opposing the proposed unit is
required. Id. at *11. The party favoring the larger unit must demonstrate "that
employees in the larger unit share an overwhelming community of interest with those
in the petitioned-for unit." Id. at 12–13.
On appeal, the Sixth Circuit enforced the Board's decision in Kindred Nursing
Ctrs. E., LLC v. NLRB, 727 F.3d 552, 554 (2013). The court concluded that the
overwhelming community of interest test was not a material change in the Board's
section 9 jurisprudence, because the Board had used the standard before. Id. at 561.
The court also noted that the same overwhelming community of interest test had been
approved by the D.C. Circuit in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C.
Cir. 2008). In Kindred Nursing the Sixth Circuit also rejected the employer's
argument that the Specialty Healthcare framework violated the Act "by making it
impossible for an employer to challenge the petitioned-for unit." 727 F.3d at 563–64.
The court also concluded that the Board had not violated the Administrative
Procedure Act. Id. at 565.
A.
The Specialty Healthcare decision comports with section 9(b) of the Act and
our cases interpreting that statute. In the first step, the Board evaluates whether the
employees in the proposed unit are "readily identifiable as a group" and "share a
community of interest." 357 NLRB No. 83 at *12. The Board applies the "traditional
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criteria" for determining whether the employees share a community of interest. Id.
It has also listed a number of factors it uses to determine whether a community of
interest exists:
[W]hether the employees are organized into a separate department; have
distinct skills and training; have distinct job functions and perform
distinct work, including inquiry into the amount and type of job overlap
between classifications; are functionally integrated with the Employer's
other employees; have frequent contact with other employees;
interchange with other employees; have distinct terms and conditions of
employment; and are separately supervised.
Id. at *9 (quoting United Operations, Inc., 338 NLRB 123, 123 (2002)). These
factors parallel our previous description of the community of interest test. Cedar
Valley Corp., 977 F.2d at 1217. The Specialty Healthcare framework thus begins by
applying the same test we have approved.
FedEx contends that Specialty Healthcare is a departure from precedent
because it examines the proposed unit in isolation, but the community of interest test
does in fact compare the interests and characteristics of the workers in the proposed
unit with those of other workers. The factors listed by the Board question whether
the employees in the proposed unit have characteristics that are "distinct" and
"separate," and compare the employees to "other employees." 357 NLRB No. 83 at
*9; see Blue Man Vegas, 529 F.3d at 421 (the Board looks at the characteristics of
the employees in the proposed unit "in distinction from other employees"). The
precedents relied on by the Board in Specialty Healthcare make clear that the Board
does not look at the proposed unit in isolation. See Wheeling Island Gaming, Inc.,
355 NLRB No. 127 at *1 n.2 (2010).
FedEx suggests that the Board must consider other possible units before
determining whether the union's proposed unit is appropriate, but nothing in the Act
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prohibits the Board from focusing its analysis on the proposed unit. The language of
section 9(a) "implies that the initiative in selecting an appropriate unit resides with
the employees," and "suggests that employees may seek to organize 'a unit' that is
'appropriate'—not necessarily the single most appropriate unit." Am. Hosp. Ass'n v.
NLRB, 499 U.S. 606, 610 (1991) (emphasis in original). In our circuit it is a "longstanding principle" of unit determination under the community of interest test that
"the Board need only certify 'an appropriate' bargaining unit, rather than 'the most
appropriate' one." Watonwan Mem'l Hosp., Inc. v. NLRB, 711 F.2d 848, 850 (8th
Cir. 1983) (emphasis in original).2 The Board explained well before Specialty
Healthcare that "[i]n deciding the appropriate unit, the Board first considers the
union's petition and whether that unit is appropriate." Overnite Transp. Co., 322
NLRB 723, 723 (1996). If the Board concludes that the petitioned for unit is "an
appropriate unit," it has fulfilled the requirements of the Act and need not look to
alternative units. See Boeing Co., 337 NLRB 152, 153 (2001). We conclude that the
first step in the analysis described by Specialty Healthcare, in which the Board
analyzes the union's proposed bargaining unit under the traditional community of
interest test, is not a departure from the Board's precedent and is consistent with the
requirements of section 9(b) of the Act.

2

This principle has long been applied by the other circuits as well. Friendly Ice
Cream Corp. v. NLRB, 705 F.2d 570, 574 (1st Cir. 1983); Staten Island Univ. Hosp.
v. NLRB, 24 F.3d 450, 455 (2d Cir. 1994); NLRB v. Saint Francis Coll., 562 F.2d
246, 249 (3d Cir. 1977); Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 119 (4th Cir.
1978); NLRB v. Bogart Sportswear Mfg. Co., 485 F.2d 1203, 1206 (5th Cir. 1973);
NLRB v. First Union Mgmt., Inc., 777 F.2d 330, 333 (6th Cir. 1985); NLRB v.
Aaron's Office Furniture Co., 825 F.2d 1167, 1169 (7th Cir. 1987); NLRB v. Mercy
Hosps. of Sacramento, Inc., 589 F.2d 968, 972 (9th Cir. 1978); NLRB v. Foodland,
Inc., 744 F.2d 735, 737 (10th Cir. 1984); Daylight Grocery Co. v. NLRB, 678 F.2d
905, 908 (11th Cir. 1982); Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1267
(D.C. Cir. 1991).
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FedEx also contends that the "overwhelming community of interest" standard
applied in the second step of the Specialty Healthcare analysis is a departure from
precedent. The Board has however repeatedly required a heightened showing to
challenge a proposed unit found appropriate under the community of interest test. In
Engineered Storage Products Co., the Board explained that under this step in the
analysis:
[C]ontrary to the Employer's contentions, the fact that [other employees]
may share a community of interest with the petitioned-for employees
does not mean that they must be included in the unit or that the
petitioned for unit is inappropriate. Rather, the test is whether the
community of interest they share with the solely employed employees
is so strong that it requires or mandates their inclusion in the unit.
334 NLRB 1063, 1063 (2001) (emphasis added). In Laneco Construction Systems,
Inc., the Board rejected the employer's argument that certain other employees "shared
such an overwhelming community of interests" with the employees in the unit "that
a unit excluding the former employees would be inappropriate." 339 NLRB 1048,
1049 (2003); see also Overnite Transp., 322 NLRB at 726 (group of employees "do
not share such a close community of interest . . . as would mandate their inclusion")
(emphasis in original). Although the Board has used different phrasing to describe
its heightened standard, we agree with the Sixth Circuit that the overwhelming
community of interest standard "is not new." Kindred Nursing, 727 F.3d at 561; see
also Colo. Nat'l Bank of Denver, 204 NLRB 243, 243 (1973) ("substantial community
of interest"); Mc-Mor-Han Trucking Co., 166 NLRB 700, 701 (1967) (shared
interests "not so significant as to require the inclusion of all the employees in a single
unit"); United Rentals, Inc., 341 NLRB 540, 541 (2004) ("overwhelming and
undisputed evidence" of shared interests).
The courts have also imposed a heightened standard on parties seeking to show
that a group of employees has been improperly excluded from a bargaining unit. Our
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court has held that "[t]o set aside a Board certified unit, the employer must show that
the designated unit is not appropriate. It is not enough to show that another kind of
unit would have been more appropriate." NLRB v. Metal Container Corp., 660 F.2d
1309, 1313 (8th Cir. 1981). Like the Board, our requirement for a heightened
showing stems from the Act's requirement that the Board must certify an appropriate
bargaining unit. In Arlington Hotel Co. v. NLRB, the union petitioned for a unit
consisting of various hotel employees but excluding four categories of employees
such as front desk personnel and clerical workers. 712 F.2d 333, 334 (8th Cir. 1983).
The hotel contended that the only appropriate bargaining unit included all hotel
employees. Id. at 335–36. We upheld the Board's determination: "although the unit
found by the Board is not the only possible unit, it is an appropriate unit and that is
all that is required." Id. at 336 (citing 29 U.S.C. § 159(a)). The hotel, we concluded,
"has not shown that the unit is totally inappropriate or that the Board abused its
discretion in designating this unit." Id.; see also NLRB v. Cell Agric. Mfg. Co., 41
F.3d 389, 397 (8th Cir. 1994) (concluding that "overwhelming evidence" showed the
certified unit was inappropriate and the record "support[ed] only one plausible
conclusion"—that the appropriate bargaining unit needed to include other
employees).
Other circuits have also applied a heightened standard. Most instructive is the
D.C. Circuit's comprehensive opinion in Blue Man Vegas, LLC v. NLRB, a case
decided three years before Specialty Healthcare. 529 F.3d 417 (D.C. Cir. 2008). The
court explained that previous decisions by the Board and the courts "generally
conform to a consistent analytic framework":
If the employees in the proposed unit share a community of interest, then
the unit is prima facie appropriate. In order successfully to challenge
that unit, the employer must do more than show there is another
appropriate unit because “more than one appropriate bargaining unit
logically can be defined in any particular factual setting.” Rather, as the

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Board emphasizes, the employer's burden is to show the prima facie
appropriate unit is “truly inappropriate.”
Id. at 421 (quoting Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C.
Cir. 2000)) (citation omitted).
A unit is truly inappropriate "if, for example, there is no legitimate basis upon
which to exclude certain employees from it," such as employees who "share an
overwhelming community of interest with the included employees." Id. The Blue
Man Vegas "truly inappropriate" standard closely resembles our use of a "totally
inappropriate" requirement. See Arlington Hotel, 712 F.2d at 336. Other circuits use
the same standard with slight variations of phrasing. Sandvik Rock Tools, Inc. v.
NLRB, 194 F.3d 531, 534 (4th Cir. 1999) (employer has the burden to show that the
approved bargaining unit is "utterly inappropriate"); Dunbar Armored, Inc. v. NLRB,
186 F.3d 844, 847 (7th Cir. 1999) ("clearly inappropriate"); Friendly Ice Cream Corp.
v. NLRB, 705 F.2d 570, 574 (1st Cir. 1983) (same); NLRB v. J.C. Penney Co., 559
F.2d 373, 375 (5th Cir. 1977) ("clearly not appropriate"). The Board's framework is
thus consistent with appellate precedent.
In summary, the Specialty Healthcare framework is a reasonable interpretation
of how the Board should apply section 9(b) and decide on an appropriate unit, and is
therefore an interpretation to which we must defer. St. John's Mercy Health Sys., 436
F.3d at 846. We conclude that the overwhelming community of interest standard
articulated in Specialty Healthcare is not a material departure from past precedent and
is consistent with the requirements of section 9(b) of the Act.
B.
FedEx next contends that the Specialty Healthcare standard violates section
9(c)(5) of the Act, which states that when the Board is determining an appropriate
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bargaining unit, "the extent to which the employees have organized shall not be
controlling." We disagree.
The Supreme Court has stated that the extent of organization may be
considered by the Board as one factor in the Board's determination, so long as it is not
given controlling weight. NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 442 & n.4
(1965). According to Specialty Healthcare, the Board begins by analyzing whether
the union's proposed unit is appropriate using the multifactor community of interest
test. 357 NLRB No. 83 at *9. In Kindred Nursing, the Sixth Circuit followed the
D.C. Circuit's analysis and concluded that so long as the overwhelming community
of interest test is applied "only after the proposed unit has been shown to be prima
facie appropriate, the Board does not run afoul of the statutory injunction that the
extent of the union's organization not be given controlling weight." 727 F.3d at 565
(emphasis in original) (quoting Blue Man Vegas, 529 F.3d at 423). We agree.
FedEx argues that the Specialty Healthcare framework is foreclosed by NLRB
v. Lundy Packing Co., in which the Fourth Circuit rejected the Board's use of a
version of the overwhelming community of interest test. 68 F.3d 1577, 1581 (4th Cir.
1995). The Lundy court concluded that the Board violated section 9(c)(5) when it
adopted a "novel legal standard" under which "any union-proposed unit is presumed
appropriate unless an 'overwhelming community of interest' exists between the
excluded employees and the union-proposed unit." Id. By making that presumption,
the court reasoned, "the Board effectively accorded controlling weight to the extent
of union organization." Id. FedEx contends that Specialty Healthcare similarly
stacks the deck against employers, but it "misread[s] the Fourth Circuit's opinion."
Blue Man Vegas, 529 F.3d at 423. The Lundy court did not hold that any heightened
standard violates section 9(c)(5), and four years after Lundy the Fourth Circuit
reiterated that an employer challenging a bargaining unit selected by the Board must
show that the unit is "utterly inappropriate." Sandvik Rock Tools, 194 F.3d at 534;
see id. at 538 (distinguishing Lundy on its facts). We agree with the D.C. Circuit that
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the use of an overwhelming community of interest test at the second step of the
Board's analysis does not violate section 9(c)(5) because the Board "did not presume
the union's proposed unit was valid, as it had done in Lundy." Blue Man Vegas, 529
F.3d at 423.
FedEx also argues that Specialty Healthcare violates section 9(c)(5) because
it creates an impossible standard, and that in practice the union's choice of a
bargaining unit is "sure to prevail." In at least one case however the Board has
applied Specialty Healthcare to find that the employer successfully challenged a
union's proposed unit. Odwalla, Inc., 357 NLRB No. 132 (2011). In Odwalla, the
Board found that certain excluded employees shared an overwhelming community of
interest with the employees included in the union's proposed unit. Id. at *5. Quoting
Specialty Healthcare, the Board explained that the union had proposed a "fractured"
unit consisting of an arbitrary segment of an appropriate unit. Id. There was "no
legitimate basis upon which to exclude" the other employees, the Board reasoned,
because they shared the relevant community of interest characteristics with the
employees in the proposed unit. Id. (quoting Blue Man Vegas, 529 F.3d at 421).
Moreover, "none of the traditional bases for drawing unit boundaries," such as
classification lines drawn by the employer, supervision, or methods of compensation,
supported the union's division of the employees. Id. at *5–6. Courts have
demonstrated a willingness to reject bargaining units that are inappropriate. E.g., Cell
Agric. Mfg., 41 F.3d at 397. Because the Specialty Healthcare framework does not
make the extent of union organization "controlling," we conclude that it does not
violate section 9(c)(5) of the Act.
C.
FedEx also contends that the Board violated the APA by announcing the
overwhelming community of interest standard in the course of adjudicating Specialty
Healthcare rather than by notice and comment rulemaking. The Supreme Court has
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held that "the Board is not precluded from announcing new principles in an
adjudicative proceeding," and that "the choice between rulemaking and adjudication
lies in the first instance within the Board's discretion." NLRB v. Bell Aerospace Co.
Div. of Textron, Inc., 416 U.S. 267, 294 (1974); Oiciyapi Fed. Credit Union v. Nat'l
Credit Union Admin., 936 F.2d 1007, 1010 (8th Cir. 1991). The Board clarified the
state of the law in a reasoned opinion that cited its own precedent and relevant
appellate decisions. We agree with the Sixth Circuit that the Board's decision to
proceed by adjudication was not an abuse of discretion and therefore not a violation
of the APA. Kindred Nursing, 727 F.3d at 565.
D.
Having approved of the Specialty Healthcare standard, we next ask whether in
this case substantial evidence supported the Board's unit determinations under that
standard. See St. Clair Die Casting, 423 F.3d at 848. FedEx has never taken the
position that the road and city drivers do not share a community of interest and form
an identifiable group. FedEx thus has the burden to show that there is no legitimate
basis for excluding dockworkers from the unit because they share an overwhelming
community of interest with the drivers. Specialty Healthcare, 357 NLRB No. 83 at
*12–13. Keeping in mind the Board's discretion and our deferential standard of
review, we conclude that several common sense logical distinctions separate the
drivers and the dockworkers.
Most importantly, the drivers and dockworkers are hired to do substantially
different jobs. Drivers are required to have a commercial driver license. The
qualifications to become a dockworker are minimal. Although drivers occasionally
work on the dock, their primary role is to transport freight between the distribution
centers and other centers or customers. Moreover, the drivers are all full time
employees, whereas all (in East Philadelphia) or a majority (in Charlotte) of the
dockworkers are part time. FedEx asserts that the "best evidence of the total
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integration" of the drivers and dockworkers is the amount of dock work performed
by drivers. Although the drivers in East Philadelphia perform about one third of the
dock work, the more important fact is that dock workers cannot and do not perform
driving work for FedEx. These differences support the Board's determination that the
dockworkers do not share an overwhelming community of interest with the drivers.
We conclude that the Board's decisions to certify bargaining units consisting of the
road and city drivers were supported by substantial evidence and were not arbitrary,
capricious, or an abuse of discretion.
IV.
For these reasons we deny FedEx's petitions for review and grant the Board's
petitions for enforcement.
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Appellate Case: 15-1848

Page: 17

Date Filed: 03/07/2016 Entry ID: 4374670