ATA, Two Lobbying Groups Ask Appeals Court to Side With FedEx Over NLRB

American Trucking Associations and two major business lobbying groups filed a friend-of-the-court brief with the U.S. Court of Appeals for the D.C. Circuit asking a three-judge panel to find in favor of a FedEx Corp. subsidiary and against the National Labor Relations Board.

ATA was joined by the National Association of Manufacturers and the U.S. Chamber of Commerce in its support of the Home Delivery unit of FedEx Ground. Last year, Home Delivery got on the court’s docket to appeal an NLRB order that said drivers in Windsor, Connecticut, are employees rather than independent contractors.

The board faulted Home Delivery for its refusal to bargain with the Teamsters union regarding the drivers.

The Aug. 17 brief from the three lobbying groups said the case is similar to a 2009 decision by the same appellate court that also concerned FedEx.

“The D.C. Circuit effectively decided this matter six years ago, and its prior decision may not be disregarded,” the brief said. “The appropriate outcome of this case should be a foregone conclusion.”

The classification issue of drivers in trucking is important because company employees may ask a labor union to represent them in contract negotiations. In contrast, contractors or owner-operators are considered small independent businesses, and it is illegal for them to join in negotiations.

The brief’s conclusion is that, “FedEx’s petitions for review should be granted and the [NLRB]’s orders should be vacated and denied enforcement.”

Independent contractors have long been a key component of FedEx Ground’s business strategy. The corporation also uses company drivers, especially at its less-than-truckload FedEx Freight division.

AFL-CIO has said it will file a brief backing NLRB’s order. A court scheduling document said it is due Oct. 13

The court has not yet announced which three of its 17 judges will hear the case. Final briefs are due by Nov. 23.