According to NLRB, the XPO / STG port truck driver is an employee and ordered a union vote

The California-based multimodal transport driver of STG Logistics, which was owned by XPO Logistics a few months ago, will vote union next month under the order of the National Labor Relations Commission.

NLRB Regional decision William Cohen, regional director of the agency, has determined that a group of seemingly independent owners-operators driving XPO are actually employees of the company, which can have a significant impact. ..The driver owns his truck and leases it back to XPO (NYSE: XPO).

The sale of XPO’s intermodal operations to STG Announced at Markh, the efforts by the Team Stars unit to organize the drivers were prior to sales, and the company and driver actions studied by NLRB were under the control of XPO. There is no mention of the decision on STG action.

The union movement began with an application for a union vote submitted by Teamsters Local 848 wholesale delivery drivers, general truck drivers, drivers, sales, industry and coalition workers. XPO’s response at the time was that more than 260 workers were independent contractors, so it was not possible to form a union.

Of those workers, 213 were owner-operators and 49 were second-seat drivers, who were to be paid from the amount XPO paid to the owner-operator. All of them received 1099 tax documents instead of W-2. 1099 is an IRS tax form offered to independent contractors in all industries.

Drivers used XPO intermodal operations in San Diego, California and Commerce, primarily transporting cargo from ports in Southern California. The latter was the larger of the two facilities.

The ballot will be mailed to employees on June 23rd. It counts on July 15th. Qualified employees must be hired during the STG salary period ending on Saturday.

NLRB is known as SuperShuttle DFW, even though XPO drivers have signed an employment contract that clearly states that they are independent contractors when determining that they are employees rather than independent owners-operators. We used the multifaceted tests found in the NLRB decision. The 2019 SuperShuttle decision has 10 points that lead to the employer’s control of the worker and the nature of the relationship, whether the worker is an employee or an independent contractor.

In a decision reported on Monday, Cohen passed 10 points one by one and found that in most cases the driver’s position made them employees under the Super Shuttle test.

Cohen’s discussion begins with the issue of control. “According to the records, XPO has almost complete control over what the owner-operator and the second seat driver do to the XPO,” the decision said, the XPO planner creating a “move command” and the dispatcher which driver. He added that he would decide which load to get. “The XPO Dispatcher can take into account driver preferences, but it doesn’t have to,” the decision wrote. “Only the XPO dispatcher decides when and where to send the driver.” It can be said that the driver prefers to start work at 4am, but according to the decision, whether it actually happens or not. It is up to the coordinator to decide.

“When a driver works on XPO, technical XPO will continue to closely monitor where it works,” Cohen wrote.

Other important points:

  • Engagement: “There is no doubt that drivers are well integrated into XPO’s business,” Cowen writes. “While working, the XPO driver must ensure that he is working at XPO and use the XPO’s DOT authority even if he has his own DOT authority.” In addition, lease to XPO. Once done, the driver will lose control of his car, including the choice of insurance company. But elsewhere in the decision, looking at the level of truck management, NLRB officials said that offsetting the facts about the level of vehicle management is a balance that “supports both independent contractor status and employee status. I concluded that it means “no”. It was the only place in Cohen’s decision where he respected the argument that workers were employees.
  • External work: There was testimony that drivers could work outside of XPO, but “these testimonies are inconsistent with the testimonies of other drivers,” Cohen wrote. And even if they could, there is a legal precedent that such abilities alone do not automatically establish workers as independent.
  • Employment Period: The contract period is 90 days, but it is constantly renewed and some drivers say they have played that role at XPO for years.
  • Contract: The operating contract of the independent contractor has been signed by the driver. However, according to Cohen’s decision, the contract was “unilaterally drafted and promulgated” by XPO, and over the years many drivers and second employees have signed union approval cards and filed proceedings. I have been engaged in activities. Employee behavior.

Under the definition of the National Labor Relations Act, Cohen said, “By considering all relevant legal factors, XPO is an independent contractor for drivers (both the owner operator and the second seat driver). I conclude that I was not responsible for proving that. “

NLRB also ruled in favor of the union by requesting the participation of San Diego and Commerce facilities as a unit of negotiation.

An XPO spokeswoman introduced the query to STG. The request for comment by STG was not responded by the publication time.

In its statement, the International Brotherhood of Teamsters said, “This is the first time a port truck driver has been ordered to elect an independent contractor when he was a real employee.” So I called this decision a “precedented setting”.

“It paves the way for potentially millions of misclassified workers in other industries, as well as other port drivers, to be properly classified as employees of the companies that employ them.” Team Stars said in a prepared statement.

Eric Tate, Local848’s secretarial accountant, told FreightWaves that the union hasn’t been in contact with the STG since the sale.

Other articles by John Kingston

The FREIGHTWAVES TOP 500 The For-Hire Carriers list includes: XPO Logistics (No.8).

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