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Fedex Home Delivery v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

March 3, 2017

FedEx Home Delivery, an operating division of FedEx Ground Package System, Inc., Petitioner
National Labor Relations Board, Respondent

          Argued September 21, 2016

         On Petitions for Review and Cross-Application for Enforcement of Orders of the National Labor Relations Board

          Maurice Baskin argued the cause for petitioner. With him on the briefs was Joshua Waxman.

          Michael J. Gray, E. Michael Rossman, Steven P. Lehotsky, Warren Postman, Richard Pianka, and Linda E. Kelly were on the brief for amici curiae Chamber of Commerce of the United States of America, American Trucking Associations & National Association of Manufacturers in support of petitioner.

          Kellie Isbell, Attorney, National Labor Relations Board, argued the cause and filed the brief for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert Englehart, Supervisory Attorney.

          James B. Coppess argued the cause and filed the brief for amicus curiae AFL-CIO in support of respondent. With him on the brief were Lynn K. Rhinehart, Matthew J. Ginsburg, and Laurence Gold.

          Before: Henderson, Kavanaugh, and Millett, Circuit Judges.



         FedEx Home Delivery ("FedEx") offers package-delivery services to residential customers throughout the United States. In FedEx Home Delivery v. NLRB (FedEx I), 563 F.3d 492 (D.C. Cir. 2009), this court held that single-route FedEx drivers working out of Wilmington, Massachusetts are independent contractors, not employees, as the latter term is defined in the National Labor Relations Act, id. at 504. In this case, the National Labor Relations Board held, on a materially indistinguishable factual record, that single-route FedEx drivers are statutorily protected employees, not independent contractors, when located in Hartford, Connecticut. Both cannot be right. Having already answered this same legal question involving the same parties and functionally the same factual record in Fed Ex I, we give the same answer here. The Hartford single-route FedEx drivers are independent contractors to whom the National Labor Relations Act's protections for collective action do not apply. We accordingly grant FedEx's petitions, vacate the Board's orders, and deny the Board's cross-application for enforcement.



         The National Labor Relations Act, 29 U.S.C. §§ 151- 169, offers a variety of protections to "employees" in workplaces across the United States. The Act is explicit, however, that the term "'employee' * * * shall not include * * * any individual having the status of an independent contractor[.]" Id. § 152(3). Accordingly, "[t]he jurisdiction of the NLRB extends only to the relationship between an employer and its 'employees'; it does not encompass the relationship between a company and its 'independent contractors.'" C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 857 (D.C. Cir. 1995).

         In NLRB v. United Insurance Company of America, 390 U.S. 254 (1968), the Supreme Court held that the determination whether a worker is a statutorily protected "employee" or a statutorily exempt "independent contractor" is governed by "common-law agency" principles, id. at 256. In applying the common law, the Supreme Court stressed that "there is no shorthand formula or magic phrase that can be applied to find the answer." Id. at 258. Rather, "all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Id. "What is important, " the Supreme Court explained, "is that the total factual context is assessed in light of the pertinent common-law agency principles." Id.

         Following United Insurance, the Board and this court have generally consulted the Restatement (Second) of Agency for guidance in conducting the common-law agency analysis. See Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563, 565-566 (D.C. Cir. 2016); North Am. Van Lines, Inc. v. NLRB, 869 F.2d 596, 599-600 (D.C. Cir. 1989).[1] The Restatement (Second) of Agency provides a non-exhaustive list of ten factors to consider in deciding whether a worker is an independent contractor: "(1) 'the extent of control' the employer has over the work; (2) whether the worker 'is engaged in a distinct occupation or business'; (3) whether the 'kind of occupation' is 'usually done under the direction of the employer or by a specialist without supervision'; (4) the 'skill required in the particular occupation'; (5) whether the employer or worker 'supplies the instrumentalities, tools, and the place of work for the person doing the work'; (6) the 'length of time for which the person is employed'; (7) whether the employer pays 'by the time or by the job'; (8) whether the worker's 'work is a part of the regular ...

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