of this morning numbers fifteen dash twenty five eighty five and twenty seven twelve national labor relations board the fed ex freight ache and mr other we are the employer trained challenging especially health care especially health care of the labor board fundamentally changed the way they sided which employees can vote on whether to help you get over we get the death let's cats really cases and best products cases the courts of appeal say that's sufficient the court to appeal say it's enough for you to make a passing reference you know what no and that preserves it or do the courts who will say it's appropriate for you later board proceeding to incorporate by reference an argument fully articulated in a previous filing the previous family was the one that made what we're arguing here now and that is the only side here we've worked here so if we've got lots of cases that say well arguments race in passing such as in a footnote but not squarely argued are considered wave that being an argument why why would it be different before you know i want to be when there's actually a statute that says arguments not race action exceptional circumstances will not be considered the was trying to make sense of a number of prior consistent sometimes inconsistent opinions or at least opinions that were intentional of each other and the they were adopted what the d c circuit three years before in the boom in vegas that said you know when you are dealing with what is the smallest unit you can have and you try add people then you need to show an overwhelming community of of interest and that was what the n l r b at said wyndham in vegas and that's what the d c circuit specifically and in twenty eleven the board is taking all of these various disparate opinions and trying to say ok going forward here's how we are to understand what clearly before it was somewhat confusing on our part our part and also making sure made out of whole cloth ok say your opponents now are be points out that they use language like substantial community interests or strong community interests or significant community interest or  highly the integrated community of interest these are all statements that are akin to i take it their argument is these are kids too overwhelming community intrusive they're not making a change they use language but they've they've consistently over the years required some heightened standard it is not it's not what you purport it to feed it both sides came in and proposed a unit and then they picked the best one it's well looking at page forty six it looks like the board applied the overwhelming community of interest test with regard to adding additional people to the to the growing group that could  union the sum of these differences was suppression to justify the words decision that the mits the musical instrument technicians do not share  of employees under the n r a now that may be true but that's ten be the only reason that they adopt the rule because that violence section i don't see five of the at and that's a very important aspect here because right they did not consider there were no specific challenges to specialty healthcare before the board i mean yes as your honor pointed out the same thing i'm i'm just trying to ask questions so now i'm asking you to try to take the other that was in front of a board member johnson addressed it was preserved and addressed and it's what should be open again for the third circuit why are they wrong about that they're fine because it was a one sentence reference to their position obligation on the party regardless of what the board members have discussed among amongst themselves the obligation under section twenty is that a party no objection that has not been raised by a party before the board may be pressed him quiet and the essence of the t argument in this case is essentially that the party here fed ex did not raise any specific objection it didn't make the basis for its challenge clear to the board and as of course the board didn't engage in any discussion of challenges is what you said indicating you said you want us to address special health care on the merits but we also want you to say that the determination which is based on application of special due care if there was a raper of that argument how do we get to there's a waiver of any challenge to so there's the application of specialty healthcare which the board thinks is appropriate in of course the company is not really engaging in any challenge to how specialty healthcare was applied in this case it's its challenges are very much based on the propriety of the standard itself  were do you want us to say that they have waived the challenge to whether specially health care is the correct standard and only address whether specially health care was applied correctly in this case it's the latter yana so i probably would have thought we would ask the court to apply specialty healthcare and uphold the points in a determination in this case and not address any challenge to the specialty that the city and road driver is in the proposed bargaining unit the barney unit that was proposed by the union constitute an appropriate unit they they perform the same function of driving outside the facility delivering fr outside the facility and they share the same terms and conditions of employment they have uniformly higher wages than the dock workers that the company which would include in the unit and in making this determination contrary to what the company has suggested the board did undertake its traditional community of interest analysis so the board considered what these not just what the drivers have in common amongst themselves but also look somewhat outward to what what distinguishes them from other employees life the dock workers and the board took all of the facts into account about the differences and similarities between these various types of workers understand your colleague on the other side to be saying that that statute that requires you know says the extent to which employs a word i shall not be controlling in determining what unit is  roper it is actually overridden by the way the word has adopted health care and treats the employer's position as having to have some  reason you know or or forget it the world is in effect six ing a statutory provision what's your you know what what's wrong with that position from the other side why is that concern ok right at the outset i'll say that this is this is one of the arguments that we would say is ten need but assuming that the argument is properly before the court what we would say is the supreme court has interpreted section one three five to mean simply that the board cannot stop at the observation that the union wants a specific unit or that employees are organizing in a specific group inc the board has to go on statute right under i would begin your honor if we could back up just a little under the american hospital association supreme court case it is perfectly permissible for the initiative in terms of organizing a unit to rest with employees so the board with the result is another was right so what the board does under section nine of the act is it starts with the petition for unit and it considers whether the employees in that unit share a community of interest and what happened in money packing i'd like to just mention that is because i think the ninety five challenge that the companies range raising is very much based that fourth circuit decision and the money backing  unpacking problem was essentially what judge ambrose i believe suggested earlier in this argument which is the board did something characteristic in that case the board did not conduct a community of interest analysis at the outset facts and a misstep by the board if you would the argument that the other side is making that it is that traditionally the board had what the union come forward and then let the employer come forward and did an assessment of which bargaining unit was the better and fairer way to go in that after special health care you had to come in with quote over whelming evidence that that's the standard you set up it changes the field it changes it's not just a little bit but fundamentally changes the field and it in effect ignore snipes he five r yes it has and for example and even mark s which is a point case that the union essentially can put forward a unit but the board independently considers is this a readily identifiable grouping of employees do these employees share a community of interest and sometimes the finding is that they don't know so you're so the argument position is that ninety five doesn't that's an assessment that  side comes and says that one side comes in and proposes a unit the board been independently considers is this an appropriate unit which is all the statute requires independent of what anybody else including that's obvious other party of into account that there's a challenge to this grouping of employees and is really taking very seriously the idea that these employees have to have a distinct community of interest separate in part from other employees but you're not taking it seriously enough to take into account the employer's articulated evidence and views at that point because you haven't heard it right right and again it i think this goes back very much to the idea that the initiative rests with the employees so the board is not entertaining was a fundamental change made by the labor board there were no reasons given for it can i ask you this and reading and taking a look at what she said to the board you know you have argued it didn't appear to me that your to could how that traditional approach would have applied in this instance and how it applying that traditional set of standards in approach would have prompted a different result your argument threw out in the first chance a second submissions was addressed to the supposed health care standard and didn't articulate the alternative my correct about that  you are correct in that our arguments were directed toward specially health care many of the same arguments could be made toward the traditional standard procedures what you compare what they suggest  suggest is that it is that the the what is the traditional way of looking at the tradition your idea is to take the entirety of the employee is that right be included and apply all the factors equally to the entire group under the specially health care they isolate the community of the interest test to just that small group but the implications for and then if the employer wants to change that they have to come up with  can said as a unit was correct so let's say the union says x number or whatever it might be it might be in this case various writers and you say wait a minute you got include the dock workers under the a company in this case about doing what they were really doing and so the thing that i was focusing on previously which especially health care followed by a full three years the decision of  can win this case you had the opportunity to argue it under the traditional test and you didn't articulate that right i did not take the opportunity because i was square look at it specially health care in the face