United States Court of Appeals, District of Columbia Circuit
FedEx Home Delivery, an operating division of FedEx Ground Package System, Inc., Petitioner
National Labor Relations Board, Respondent
September 21, 2016
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
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
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
Before: Henderson, Kavanaugh, and Millett, Circuit Judges.
MILLETT, CIRCUIT JUDGE.
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.
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).
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.
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). 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 ...