In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐1360 & 16‐1395
FEDEX FREIGHT, INC.,
Petitioner/Cross‐Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross‐Petitioner,
and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 439,
Intervenor.
____________________
Petition for Review and Cross‐Application for Enforcement of an
Order of the National Labor Relations Board.
363 NLRB 126, No. 32‐CA‐164936
____________________
ARGUED SEPTEMBER 16, 2016 — DECIDED OCTOBER 12, 2016
____________________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The petitioner, FedEx Freight, Inc.,
a subsidiary of FedEx Corporation, uses trucks rather than
planes to transport freight. This case concerns the workers at
2 Nos. 16‐1360 & 16‐1395
its terminal in Stockton, California, an inland seaport, at
which the company employs 50 truck drivers and 27 dock‐
workers—the latter use forklifts to load and unload the
trucks that use the terminal. A Teamsters Local petitioned
the Labor Board to be permitted to organize the drivers. Re‐
jecting the company’s contention that the local should repre‐
sent the dockworkers as well on the ground asserted by the
company that the drivers and the dockworkers share a
community of interest, the Board concluded that a drivers‐
only unit was proper and submitted the issue to a secret‐
ballot election of the drivers, who voted to be represented by
the local union in collective bargaining. The company asks
us to overrule the Board, and the Board asks us to enforce its
order.
At the oral argument the company’s lawyer said that the
reason there should be a single union for both the drivers
and the dockworkers is that if the latter were included in the
vote on whether to unionize “we [FedEx Freight] think we’d
have a better chance of winning the election”—it’s a win for
the company if the employees don’t unionize. That however
is not a reason recognized in the National Labor Relations
Act for rejecting the certification of a union for collective
bargaining, and is tangential to whether or not different
worker groups have a community of interest.
The company also argues, however, that there should be
a single union because the drivers and the dockworkers have
the same employment interests and concerns, and on that
ground as well it asks us to set aside the Board’s approval of
a drivers‐only union at the Stockton terminal. The Board and
the Teamsters local of course disagree.
Nos. 16‐1360 & 16‐1395 3
The statutory criterion for whether a union can represent
a unit of workers is whether the unit is “appropriate” for col‐
lective bargaining, 29 U.S.C. § 159(a), which as a practical
matter requires a determination that the members of the unit
have common employment concerns—a “community of in‐
terest”—different from the concerns of the company’s other
employees (if there are other employees). If the drivers in
this case had a community of interest because they did the
same work, were paid the same, and received the same ben‐
efits, yet the dockworkers did similar work (it could not be
identical work, however, because their work consists of
moving freight loads by forklift rather than by truck),
worked the same number of hours, were paid the same as
the truck drivers, and received the same benefits, they might
well be thought to be part of the same community of interest
as the truck drivers. The focus of analysis should be on the
similarity or dissimilarity in working conditions across dif‐
ferent groups of workers at the Stockton terminal rather than
on the similarity or dissimilarity of the employment condi‐
tions of just one of the groups, the drivers.
But while by clinging to the unhelpful term “community
of interest” (unhelpful except when modified by the adjec‐
tive “distinct,” which clarifies it considerably) the Board
muddied the waters a bit, it also took pains to compare the
two groups and found on the basis of compelling evidence
that they differ significantly. The drivers work full time, the
dockworkers only part time. And the drivers are paid about
twice as much as the dockworkers though they have less
physically strenuous, and probably safer, work, because
maneuvering a forklift is quite difficult and potentially quite
dangerous. According to Wikipedia, “Forklift,” https://en.
wikipedia.org/wiki/Forklift (visited Oct. 11, 2016),
4 Nos. 16‐1360 & 16‐1395
An important aspect of forklift operation is that most [fork‐
lifts] have rear‐wheel steering. While this increases ma‐
neuverability in tight cornering situations, it differs from a
driver’s traditional experience with other wheeled vehi‐
cles. … [A] critical characteristic of the forklift is its insta‐
bility. The forklift and load must be considered a unit with
a continually varying center of gravity with every move‐
ment of the load. A forklift must never negotiate a turn at
speed with a raised load, where centrifugal and gravita‐
tional forces may combine to cause a disastrous tip‐over
accident.
The company’s truck drivers spend most of their work‐
day outside the terminal, while the dockworkers remain in‐
side it. The truck drivers have two or more weeks of paid
vacation time plus seven paid holidays and half a dozen
“personal days,” while the dockworkers must use their per‐
sonal days to cover illness, family emergencies, vacations,
and holidays. The two groups can sign up for the same
health insurance plan and contribute to a 401(k) plan, but the
record says nothing about dental insurance or whether bene‐
fits become available to both part‐time and full‐time workers
after the same amount of time with the company. FedEx
Freight’s lawyer told us at oral argument that the drivers
and dockworkers have identical benefits; they don’t.
Granted, the Board remarked some differences between
the two worker groups that seem marginal, such as that the
company requires the drivers but not the dockworkers to
take meal breaks and to wear uniforms and that the drivers
require licensure and the dockworkers do not. These differ‐
ences may help explain the wage differences, but it is the ex‐
istence of substantial wage and benefits differences that
count and they are documented in the record.
Nos. 16‐1360 & 16‐1395 5
The record is clear that the dockworkers are second‐class
citizens of the employment force at the Stockton terminal
when all benefits and costs are toted up, and this suggests a
potential for serious discord should the dockworkers be
placed in the same union as the drivers. They would be
pushing for equality of compensation and of conditions of
work generally. There would it is true be expectation of such
strife if the dockworkers were to form their own union to
bargain separately with their employer, but there is no indi‐
cation that they seek to do that or that if they did any union
would be interested in representing so small and, more to
the point, so impecunious a group—a group that might not
be able to pay union dues adequate to induce a union to en‐
gage in collective bargaining for them. And consistent with
29 U.S.C. § 159(c)(5), which states that “in determining
whether a unit is appropriate … the extent to which the em‐
ployees have organized shall not be controlling,” the Board
did not give controlling weight to the fact that the union had
already organized the drivers.
The company takes issue with the Board’s ruling in Spe‐
cialty Healthcare and Rehabilitation Center of Mobile (Specialty
Healthcare), 357 N.L.R.B. 934, 934 (2011), that “in cases in
which a party contends that a petitioned‐for unit containing
employees readily identifiable as a group who share a com‐
munity of interest is nevertheless inappropriate because it
does not contain additional employees, the burden is on the
party so contending to demonstrate that the excluded em‐
ployees share an overwhelming community of interest with
the included employees.” The word that we’ve italicized is
the focus of the company’s criticism; it argues that the word
imposes too heavy a burden of proof on the employer in a
labor dispute. But “overwhelming community interest” is
6 Nos. 16‐1360 & 16‐1395
not the invention of the Specialty Healthcare case; one can find
it in two 40‐year‐old NLRB cases: Jewish Hospital Association
of Cincinnati, 223 N.L.R.B. 614, 617 (1976), and Chatham Tow‐
ing Co, Inc., 226 N.L.R.B. 502, 502 (1976); and in Blue Man Ve‐
gas v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008). Moreover,
“overwhelming” appears to be treated by the NLRB as a
synonym for “inappropriate,” Country Ford Trucks, Inc. v.
NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 1984), for “truly inap‐
propriate,” id., and for “clearly inappropriate,” Dunbar Ar‐
mored, Inc. v. NLRB, 186 F.3d 844, 847 (7th Cir. 1999)—terms
that pull the sting of “overwhelming.”
Enough; whatever the precise force of “overwhelming”
in Specialty Healthcare, it is evident that the community of in‐
terest between the truck drivers and the dockworkers not
only is in no sense overwhelming but in fact is slight, owing
to the differences in working conditions and benefits be‐
tween the two types of worker and the undeniable danger of
strife between the drivers and the dockworkers should they
be placed in the same bargaining unit.
FedEx Freight’s petition to decertify the union is denied
and the Labor Board’s cross‐petition for enforcement of its
certification order is granted.