Its good to see Fedex Drivers are smarter than UPS Drivers.
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TEAMSTERS 177 LOSE NLRB ELECTION AT FEDEX GROUND FAIRFIELD, NEW JERSEY, TERMINAL....OWNER OPERATOR DRIVERS VOTE 34-10 AGAINST NEW JERSEY TEAMSTERS LOCAL 177....
from the BUREAU OF NATIONAL AFFAIRS:
Teamster Local Union 177 Loses Election at FedEx; NLRB
Found Contract Drivers Were Employees
February 23, 2005. Contract drivers at a FedEx Ground Systems Inc. facility in
Fairfield, N.J., have voted against representation by the International
Brotherhood of Teamsters, according to the National Labor Relations Board.
With approximately 45 eligible voters, the drivers voted 34-10 against
certifying Teamsters Local 177 as their collective bargaining representative,
Gary Kendellen, director of NLRB Region 22, told BNA Feb. 17. There were nine
challenged ballots. The election took place Dec. 3, but the ballots were
impounded until Feb. 10 because of a dispute over whether the drivers were
employees or independent contractors for the purpose of the National Labor
Relations Act.
Kendellen ruled Nov. 2 that the voting unit should include drivers who conduct
pickups and deliveries at local customers, as well as "linehaul"
drivers who move packages between FedEx Ground hubs and terminals. Although
they are contractors, Kendellen concluded that the drivers are employees in
part because they form an essential part of the company's operations, their
work schedules preclude conducting significant commercial activity, and there
are limited entrepreneurial opportunities for them.
The NLRB denied the company's request for review in an unpublished Jan. 26
decision, saying FedEx Ground failed to raise any substantial issues warranting
review (FedEx Group Package System Inc., N.L.R.B., No. 22-RC-12508, unpublished
decision 1/26/05).
"In this one particular instance, [the vote] didn't go our way, but the
broader issue did go our way," Victor Palumbo, secretary-treasurer of
Local 177, told BNA Feb. 17. "It certainly opens the door" for the
union to attempt to organize other FedEx Ground units, he added.
IBT does not currently represent any FedEx employees, including its ground and
air operations, according to an IBT representative.
"We are certainly pleased at the outcome of the vote and committed to the
independent [contractor] model and to defending it," David Westrick, a FedEx
Ground spokesman, told BNA Feb. 17.
Petition Filed in July
Local 177 filed a representation petition with the NLRB in July 2004. Palumbo
told BNA certain drivers told the union they were "not getting all the
benefits of being independent contractors," while still not enjoying the
benefits hourly employees had.
At the time of an August 2004 hearing, FedEx Ground employed approximately 31
local drivers and two linehaul drivers at the Fairfield facility, as well as
two "swing" drivers who covered for absent local drivers, Kendellen
said. Each driver must sign an equipment lease and operating agreement
identifying him or her as a contractor willing to provide daily service on
behalf of FedEx Ground.
Local drivers are compensated for each stop they make, each package picked up
and delivered, and for mileage. They also receive a daily payment for making
their vehicle available, performance bonuses, and other payments. Linehaul
drivers receive mileage, payments for assembling and disassembling tractor-trailers,
bonuses, and other compensation. None of the drivers receive paid vacations or
holidays.
In his decision, Kendellen noted that NLRB has addressed the question of
whether the local pickup and delivery drivers at Roadway Package Systems--FedEx
Ground's predecessor company--were employees or independent contractors on
three occasions. In each case, the board found the drivers were
employees.
In this case, the local drivers do business in FedEx Ground's name, wear its
uniforms, drive vehicles bearing its colors, and obey its physical appearance
and grooming standards, Kendellen said. In addition, they go through FedEx
Ground training courses and operate with the company's assistance and guidance.
FedEx Ground determines the customers on their routes, acts as the arbiter of
when they pick up and deliver packages, and loads their trucks. Although the
drivers own or lease their vehicles, the company provides replacement vans when
those vehicles are out of service.
Limited Propriety Interest
FedEx Ground asserted that it has made a number of changes in its relationships
with its local and linehaul drivers since those decisions. In particular, the
employer said drivers now have a "proprietary interest" in their
routes. But Kendellen said the conclusion NLRB reached in Roadway Package
Systems, 326 NLRB 842, 159 LRRM 1153 (1998), still applies. In that case, the
board found the company had shifted certain capital costs to drivers without
providing them with the independence to engage in entrepreneurial opportunities.
Kendellen found that none of the local drivers engage in significant outside
business. Their FedEx Ground schedules--generally 60 hours per week--take up
the entire allotment of commercial driving allowed by federal regulations. They
may not engage in outside activity while driving their routes or wearing their
FedEx Ground uniforms. Although the employer does not officially establish
start times, the company's operational schedule limits the drivers' flexibility
in setting their schedules.
As for their proprietary interest in their routes, individual customer accounts
are established with FedEx Ground, not the drivers. The company regularly
reconfigures drivers' routes, changing the payments drivers receive. This also
reduces the drivers' ability to sell their routes, as does the fact that the
company makes new routes available for free. FedEx must approve any buyer a
driver finds for his or her route.
"The meaningfulness of the proprietary interest that a driver has in his
or her route is additionally constantly compromised by the Employer's ongoing
contemporaneous choices not to also buy or sell any of the routes that come
into its possession," such as when drivers resign or are terminated,
Kendellen said. There was little evidence, he added, that drivers have realized
significant profits from selling their routes.
Although FedEx asserted that all drivers were independent contractors, it said
that if the linehaul drivers were found to be employees, they should be
included in the same unit as local drivers. The Teamsters also sought a single
unit. Kendellen indeed found that the local and linehaul drivers shared a
community of interest, as did the swing drivers.
Robert Fagella, an attorney with Zazzali, Fagella, Nowak, Kleinbaum &
Friedman in Newark, N.J., who represented the Teamsters, said that "in a
perfect world," the drivers might have had a proprietary interest in their
routes. However, in practice, he compared their ability to sell those routes to
the chances of buying "a winning lottery ticket" because they came
along so rarely.
Michael J. Murphy, an attorney with Ogletree Deakins in Washington, D.C., who
represented FedEx Ground, was unavailable for comment Feb. 17.
By Eric Lekus, BNA Daily Labor Report
Myrtle Beach Real Estate http://www.843realtor.com/
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