Appeals court rules against FedEx in its attempt to avoid collective bargaining

A three-judge panel on the US Court of Appeals for the Eighth Circuit has told FedEx that it must engage in collective bargaining with company drivers in Charlotte, North Carolina and Croydon, Pennsylvania who voted to join Teamster locals.

The Croydon and Charlotte drivers voted in 2014 to join Teamsters Local 107 and Local 71 respectively.

Since the two votes, FedEx has refused to recognize and bargain with the workers’ unions.

FedEx contended that the NLRB erred when it recognized the drivers as a group of workers with a shared community interests and called for a union representation election among the drivers.

The judges, however, disagreed with FedEx.

In ruling in favor of the NLRB, the court upheld the NLRB’s Specialty Healthcare framework for determining an appropriate bargaining unit for a union representation election.

The Specialty Healthcare framework allows a group of workers who share a community of interests to form a union even if the group does not include all other workers on the job.

In 2011, the NLRB ruled that a group of certified nursing assistants working at a nursing home operated by Specialty Healthcare in Mobile, Alabama could form a union that did not include nurses and other nursing home workers.

That decision ignited an outcry from anti-union businesses, which contended that the Specialty Healthcare framework would allow the formation of “micro unions” that would create an unfair burden for businesses.

In 2013, the Sixth Circuit Court of Appeals rejected an appeal by one of these anti-union businesses seeking to overturn the Specialty Healthcare framework.

Like their cohorts on the Sixth Circuit Appeals Court, The three-judge panel of the Eighth Circuit Court also refused to overturn the Specialty Healthcare framework and noted that the NLRB acted within its authority.

FedEx argued that the appropriate bargaining unit at Croydon and Charlotte should have included dockworkers, most of whom were part-time temporary workers, who would have then been eligible to vote in the union representation election.

But the NLRB found that the work of drivers and dockworkers did not overlap enough to create an overwhelming community of interests; therefore, if the drivers wanted a union to represent them alone they had a right to vote for such a union.

The Eighth Circuit Court judges concurred.

Before the Eighth Circuit Court panel issued its ruling, the NLRB ruled that FedEx had to bargain with another group of who voted to join the Teamsters.

The NLRB in February ordered FedEx to cease and desist from refusing to bargain with its drivers at its terminal in Stockton, California. The drivers voted a year ago to join Teamsters Local 439.

“This is a huge victory for the drivers who voted to form their union with Local 439, and we will continue to fight on behalf of these workers until they ratify their first contract,” said Ken Guertin, Local 439 secretary-treasurer after the NLRB issued its ruling.

The FedEx workers at Stockton, Charlotte, and Croydon joined drivers in South Brunswick, New Jersey in voting to join the Teamsters, which has been trying to organize non-union FexEx in a terminal-by-terminal campaign.

The terminal-by-terminal approach has been tough going for the Teamsters. They’ve lost six out of ten terminal elections.

In trying to keep its workers from joining a union, FedEx has used a carrot and stick approach.

In Croydon when drivers filed a petition for a union representation election, FedEx gave them an $0.80 an hour raise and stopped using an overly punitive report card to grade workers’ performance.

In Stockton when the organizing effort got underway, FedEx used the stick. In one instance it took away work hours from Edgar Aguilar, an active union supporter. The company recently agreed to pay Aguilar $4,900 in back pay for hours it took away from him at the time of the election.

Despite a mixed record of union representation elections at FedEx, the Teamsters said that they are still committed to organizing FedEx.

“The International Union, working side-by-side with all the freight local unions, is committed to this campaign over the long-term,” said Tyson Johnson, director of the Teamsters National Freight Division. “We hope that the company will get serious and negotiate a fair contract for the workers.”

The recent victories at the Eighth Circuit Court and at the NLRB should help boost the organizing campaign.



Workers at two FedEx termnals vote “yes” for Teamster membership

Despite a relentless anti-union campaign, FexEx drivers at two locations have voted to join the Teamsters.

Drivers at FedEx’s terminal in South Brunswick, New Jersey on October 31 voted to join Teamsters Local 701. Earlier in the month, FexEx Freight drivers in Croydon, Pennsylvania voted to join Teamsters Local 107.

“We are tired of the unfair and inconsistent work rules and policies handed down by management,” said Mike Thiemer, a driver a the South Brunswick terminal explaining why he and his fellow workers voted for the union. “It comes down to wanting to be treated with respect and dignity.”

The pro-union vote at Croydon was the first victory in the US for the Teamsters’ FedEx organizing drive. Prior to the Croydon vote, workers at a FedEx terminal in Surrey, British Columbia became the first FedEx ground workers in North America to join the Teamsters.

FedEx workers in Louisville, Kentucky will vote in a union representation election on November 19. Another union representation election is scheduled to take place in Charlotte, North Carolina on November 26.

An election was to take place earlier in November in North Harrisburg, Pennsylvania, but the Teamsters citing illegal management interference withdrew the petition requesting an election and said that a new petition would be filed within six months.

Drivers at the Cinnaminson, New Jersey FedEx terminal on October 14 voted against joining the Teamsters.

FedEx, whose chief business rival is UPS, has a long history of opposing their employees’ right to join a union and bargain collectively.

According to the Leadership Conference, a civil and human rights coalition, from its beginning, FedEx’s business plan stressed the importance of keeping the company union free.

In 1989, FedEx’s then CEO Fred Smith was quoted as saying, “I don’t intend to recognize any unions at Federal Express.”

In 1993, FedEx  distributed to its managers a booklet with instructions on how to keep their facilities non-union.

In 2006, FedEx’s corporate headquarters published a paper for its local human resources staff that included five union avoidance strategies.

When FedEx’s airline pilots tried to join a union in the 1990s, FedEx conducted an aggressive anti-union campaign that included illegal interference with the pilot’s right to choose union representation.

The pilot’s eventually overcame management’s interference and voted for a union.

The Teamsters launched their most recent organizing campaign at FedEx in 2011 when the Teamsters national convention passed a resolution stating that the union would “assist our FedEx brothers and sisters in organizing and achieving their goal of a union contract.”

In response, FedEx has relied on a number of strategies to keep the company union free including classifying many of its drivers as independent contractors, who are forbidden by law from joining a union.

In addition to making some of it workers ineligible to become union members, FedEx sometimes uses the carrot to avoid unionization.

After its Cinnaminson workers filed a petition seeking a union vote, the company raised pay by $0.80 an hour and announced an end to its use of driver score cards, which the company used to discipline workers and which most workers agreed was an unfair form of coercion.

“(FedEx and other non-union) companies are offering pay raises and other improvements at the same time we are organizing, but the workers know that these things can be taken away just as quickly without a binding contract,” said Tyson Johnson, director of the Teamsters National Freight Division.

In addition to the carrot, FedEx also uses the stick.

The Teamsters recently withdrew a request for a union election at FedEx’s North Harrisburg terminal in Pennsylvania after the union accused the company of committing “numerous unfair labor practices including intimidation, threats, surveillance, and many other (illegal actions).”

According to the Teamsters, leaders in the North Harrisburg union movement were singled out for threats and intimidation.

The company also sought to spread dissension among North Harrisburg FedEx workers by passing out a flyer with misleading information.

The flyer disingenuously urged FedEx workers to get guarantees in writing from the Teamsters about the outcomes resulting from the collective bargaining that would take place if the workers voted for the union.

Anyone with the slightest knowledge of bargaining knows that neither side can guarantee the results of the collective bargaining process before it takes place.

The successful union elections at South Brunswick and Croydon have Teamster leaders feeling optimistic about the FedEx organizing campaign.

“This victory shows that drivers are fed up with FedEx Freight,” said Jim Hoffa, Teamsters general president after the South Brunswick vote. “The (organizing) campaign is building momentum, and we will work hard to win these workers the fairness, respect and dignity they deserve.”




Canadian FedEx workers win union recognition

A small group of FedEx warehouse workers in British Columbia, Canada became the first non-pilot FedEx workers in North America to win union recognition.

Fourteen warehouse workers in Surrey, British Columbia joined Teamsters Local 31 after the Canadian Industrial Labor Relations Board certified Local 31 as their collective bargaining representative.

“We are tremendously excited to welcome the FedEx Freight workers into the Teamsters, and we hope this is the first of many victories at this company,” said Stan Hennessy, president of Local 31.  “We will now work hard to negotiate a strong first contract.”

The Teamsters are hoping to expand its recently established foothold at FedEx.

In October, warehouse workers in New Jersey will be voting in a union representation election, and FedEx workers at other sites have filed petitions with the US National Labor Relations Board seeking a union vote.

“We are seeing workers at FedEx Freight across North America saying they want their wages, benefits, and working conditions negotiated in a legally binding union contract,” said Jim Hoffa, Teamsters general president. “They are turning to the Teamsters for help and we will be there for them.”

In British Columbia, the FedEx workers who joined the Teamsters were seeking parity with unionized warehouse workers. Their wages are lower than union wages, and their benefits are practically non-existent, said Hennessy.

Additionally, most of the new Teamster members were working only 20 hours a week.

“How are they supposed to improve their quality of life (working just 20 hours a week)?” said Hennessy. “They have had enough of living without the slightest safety net!”

FedEx has been in the forefront of keeping labor costs down by maintaining a so-called flexible labor force that lacks a collective voice.

It has classified many of its drivers as independent contractors, so that they can’t unionize. Additionally, by classifying these workers as independent contractors, FedEx doesn’t have to pay Social Security taxes, workers compensation taxes, overtime, and other benefits that employers are legally required to pay their workers.

But a three-judge panel of the US 9th of Appeals in California in August ruled that FedEx has misclassified 2,300 drivers in Oregon and California as independent contractors.

“The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards,” wrote Judge William Fletcher in explaining why the court ruled that the plaintiffs were employees not independent contractors. “FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent.”

The ruling if upheld allows the drivers to pursue claims that FedEx did not pay them overtime and other benefits to which employees are entitled.

FedEx is facing similar suits in other states.

FedEx has engaged in other questionable practices that appear to skirt the law.

The New York Attorney General in March filed a $70 million lawsuit against FedEx for delivering untaxed cigarettes in the state.

According to a media release by the New York Attorney General, “between 2006 and 2012, FedEx made nearly 33,000 illegal shipments of cigarettes to consumers in New York State, amounting to over 400,000 cartons of untaxed cigarettes and a direct tax loss to the state of over $10 million. Each illegal shipment carries a maximum penalty of $5,000. The shipments were in clear violation of an agreement FedEx entered into with the New York State Attorney General’s Office in 2006, in which it agreed to cease all unlawful cigarette deliveries to consumers both in New York and throughout the country.”

In 2013, FedEx settled a class action suit charging the company with overcharging “customers more than $5 million in bogus fees by charging these customers a higher-priced residential delivery rate. In addition, the company allegedly failed to advise consumers that there are certain ZIP codes that would necessitate an additional fee due to the addresses’ remote location.”

FedEx agreed to pay $21.5 million to resolve the suit.

With all of its legal troubles, you might think that 14 of its workers in British Columbia wanting to join a union wouldn’t be much cause for alarm at FedEx, but the company conducted an aggressive anti-union campaign in Surrey.

“The company sent representatives from other cities to the warehouse to meet with workers in group settings and one-on-one to dissuade them from supporting the union,” said Ben Hennessey, Local 31 organizer. “But the workers remained united in their support to become Teamsters.”