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2019 NLRB LEXIS 488; 2018-19 NLRB Dec. (CCH) P16,580; 368 NLRB No. 61

2019 NLRB LEXIS 488; 2018-19 NLRB Dec. (CCH) P16,580; 368 NLRB No. 61

National Labor Relations Board

August 29, 2019

Case 15-CA-184006

Opinion

DECISION AND ORDER

The issues in this case arise from Respondent Velox Express, Inc.'s allegedly unlawful misclassification of certain of its drivers as independent contractors and its discharge of Charging Party Jeannie Edge allegedly for raising group complaints about that classification.

Velox provides medical courier services under a contract with Associated Pathologists, LLC d/b/a PathGroup, which performs laboratory testing of medical specimens for facilities such as doctors' offices, clinics, and hospitals. Velox's drivers collect medical specimens from PathGroup's customers in Arkansas and western Tennessee. Velox consolidates the specimens collected in Arkansas at its storage unit in Little Rock, Arkansas, and then transports them to its Memphis, Tennessee office, where the Arkansas specimens are further consolidated with the specimens collected in western Tennessee for delivery to PathGroup's laboratory in Nashville, [*2]  Tennessee.

As a threshold matter, the judge found, applying FedEx Home Delivery, 361 NLRB 610 (2014), enf. denied 849 F.3d 1123, 428 U.S. App. D.C. 49 (D.C. Cir. 2017), that Charging Party Edge and Velox's other drivers who service its contract with PathGroup in western Tennessee and Arkansas--hereafter referred to collectively as "the drivers"--are employees under Section 2(3) of the National Labor Relations Act and, contrary to Velox's claim, are therefore not excluded from the coverage of the Act as independent contractors. The judge further found that Velox violated Section 8(a)(1) by discharging Edge, misclassifying Edge and the other drivers as independent contractors, and maintaining a "Non-Disparagement" provision in its contracts with the drivers. 1 

On February 15, 2018, the National Labor Relations Board issued a Notice and Invitation to File Briefs in this matter, asking the parties and interested amici to address the following question:

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2019 NLRB LEXIS 488 *; 2018-19 NLRB Dec. (CCH) P16,580; 368 NLRB No. 61

Velox Express, Inc. and Jeannie Edge.

Prior History:

Velox Express, Inc., 2017 NLRB LEXIS 486 (N.L.R.B., Sept. 25, 2017)

Notice:

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

CORE TERMS

drivers, employees, independent contractor, misclassification, route, specimens, rights, independent-contractor, misclassified, terminate, notice, discharging, protected activity, couriers, unfair labor practice, samples, contractor, violates, employee status, engaging, amici, stand-alone, classification, collected, email, entrepreneurial, communicated, common-law, chill, factors