849 F.3d 1123
D.C. Cir.2017Background
- FedEx Home Delivery drivers at Hartford, CT deliver designated residential routes; some drivers work a single route. In 2007 Hartford single-route drivers voted for Teamsters Local 671.
- The NLRB’s Regional Director certified the Union; FedEx objected and sought review. After litigation, the Board found the Hartford single-route drivers to be employees under the National Labor Relations Act and certified the Union.
- In 2009 this court decided FedEx I, holding materially identical single-route FedEx drivers in Wilmington, MA were independent contractors under common-law agency principles (563 F.3d 492).
- The Board, acknowledging the factual similarity, declined to follow FedEx I and adopted a revised common-law agency approach de-emphasizing entrepreneurial opportunity and emphasizing control and core-business integration; it found Hartford drivers were employees and ordered FedEx to bargain.
- FedEx sought review, arguing FedEx I controls; the Board argued it could reinterpret the agency test and that its employee finding should be upheld.
- The D.C. Circuit held FedEx I controls (law-of-the-circuit), treated the agency question as one of common-law (not Chevron) and ruled the Hartford single-route drivers are independent contractors; it vacated the Board’s orders and denied enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hartford single-route drivers are "employees" under the NLRA or independent contractors | FedEx: FedEx I compels finding drivers are independent contractors; same parties and virtually identical facts | NLRB: drivers are employees because FedEx exerts pervasive control and drivers are integral to its business; entrepreneurial-opportunity focus should not be dispositive | Court: FedEx I governs; drivers are independent contractors under common-law agency analysis; Board orders vacated |
| Whether the Board can reinterpret the common-law agency test and overrule FedEx I | FedEx: Board cannot evade precedent by reworking the legal test for same facts between same parties | NLRB: Board may revise its approach and give different weight to factors (no single-factor dominance) | Court: Question is pure common-law agency (United Insurance), not an agency-technical question; Brand X/Chevron deference does not apply; panel must follow prior circuit decision |
| Whether courts must defer to Board if two fairly conflicting views exist | FedEx: FedEx I showed one clear result; not two fairly conflicting views | NLRB: where Board and court differ, Board’s factual-application choices deserve deference if reasonably based | Court: Deference to Board’s application of law to fact only applies when it is a permissible interpretation; here FedEx I resolves the issue and no deference overturns it |
Key Cases Cited
- NLRB v. United Ins. Co. of Am., 390 U.S. 254 (1968) (worker classification governed by common-law agency principles; no single decisive factor)
- FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009) (FedEx I: materially similar single-route drivers are independent contractors)
- National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency interpretation can receive deference in appropriate contexts; court explains limits)
- C.C. Eastern, Inc. v. NLRB, 60 F.3d 855 (D.C. Cir. 1995) (NLRB jurisdiction limited to employer–employee relationships; discussion of deference when two fairly conflicting views exist)
- Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563 (D.C. Cir. 2016) (summarizes common-law agency factors used in employee/independent-contractor analysis)