so let me explain why those other circuits got it wrong about especially health care where they went wrong was they didn't acknowledge the extent to which specially built here change the law all of the opinions recognize that specially health care was a change in the law but it's minimized and the courts basically stay well it's the n l r b did more than just clarify but it's familiar enough that we're going to let them get by with it i submit to this court that the change in specially health care was a fundamental change in the way the board decides application of specialty health care but rather the standard itself but with the standard make a difference in this case member johnson seem to think that your position would fail even under a traditional community of interest analysis well right and that's a very that's a very interesting point the board could have decided the case the same one under through traditional community of interest analysis but they chose not to and i suggest to you the reason that they chose not to was they are trying to extend the standard and really impinge on future board's discretion in making these cases now the words they're trying to to sit this well are for argument is essentially that that the specially health care standard that they applied was wrong why do you want one one large local union rather than two little ones these things are all about sorry to be candid to run but why on earth should the election board care about accommodating your desire to win the election well that the this we're saying the lead to apply the labor board to say look you can have two little unions kind of a big union but we want the big union because we think we can win the election have the to the to to have one union with both of these rather disparate groups of workers or the two little unions because the standard and especially health care look i'm wan know why is that a good thing for society to have the one big union rather than two little ones because an employer who has to bargain in a bunch of little bit what is what good is it do for society why should the company's interest take the proceedings over that of the of the of the of the union because the smaller  units have increased costs on the employer which are passed on to society his are compatible with the policy of the labor it is not compatible with a policy of lay rector out or in fact what specially health care amounts to is an institutional section one c five because what they have done they have allowed the unions petition to go through an extremely small unit without any employer participation at all  little bitty group then that is effectively zero what the in the smaller the better the labor board will find that to be an appropriate unit because something worth considering than the community of interest and this is where the board changed between of interest and it used to be applied to all the employees that were in contention are so different terms of wage and and the nature of their work that they so little people versus the drivers had with a prestigious job the question is whether these two groups the initial burden very small of the union and imposes a no we're after in order to get a unit in order to defeat of the employer has to show that the selected unit has no rational basis with of constituents now the question is how many unions does fed at the fed ex empire deal with one of the airline pilots association might or one of the airline pilots association for is so burdens well i'm talking about the test here the test the chest and what you're never certain i don't know what you're talking about what's the big bird the burden is to show that the the kitchen for unit is inappropriate and has no rational basis yes a rational rational basis is that the dock workers are very different workers from the driver just different tasks different status why aren't those relevant consideration the relevant considerations under the old test why aren't they relative considerations under any test they the law is and i think it's fairly fundamental that ministry law principles by understand it and i cannot if you understand it better than i do but aid and then asserting the agency uses the wrong standard it's up to the court of appeals to say you go back and use the right to understand do you really think the supreme court has said that the labor board can't board to consider how uniform a working group is and deciding whether they should be in two unions or one you know of course i however that's not what they did here they apply their own test oh come on the wrong test the question is is there a reason is there good reason to have the dock workers in a separate union from the from the drivers that's the question forget about the case just look at it as a question of fact is it better or worse to have them from their standpoint from  what is the community of interest what are they have in common that makes it appropriate to have one union for common supervision part of a common supervision or supervised the same it's in the paid the same amount of money no your honor well why did you say they're paid the same you release you are not answering our questions here you're skirting them with you're pre rehearsed spiel health insurance pension do they have this do they have this by their benefits tied to their wages the motivation you see that he would be nice to have the dock workers in this market unit because it would be easier for you to whip that the board has decided that that motivation has had to  to the purposes and the underlying policies of the labor act in that it is within their power in effect to prevent you from using a poison pill to are upset the representational they do and why the employers take the position on voting units that they do everybody knows that and if if that is somehow a secret i'm sorry to spill that but that's no in fact it goes quite the other way is not bargaining with any unions in fact the company is under in order to bargain with two different teamsters locals and two other cases so i'm having trouble to the teamsters to different teamsters locals should be bargaining with the at the with the company at this point because the the company has made essentially the same arguments two other cases one before the circuit excuse me two for the circuit and one of the for the third circuit and has lost both of those cases so in fact fed ex freight does have unionized employees at this point  to to go to that specialty health care challenges that the company has raised as the court is i'm sure well aware the company the company's position at actually every every portion of its argument has been  my open focus is on the proposed unit in isolation at the first step of the analysis and it seems to me that the regional directors determination in this members might share with the workers who are outside of the proposed human that you're on or under under the letter of specialty healthcare in the first stage of the analysis the board is supposed to consider  or separateness so not only the internal of the so called internal community of interests that the employees share but also what sets them apart from other employees and whether they have distinct attributes and in this case i think the regional director actually was quite clear about what distinguishes this group of drivers from the dock workers they are vastly different skilled employees who who are paid between twenty five and forty five thousand dollars more than the dock workers they are all full time employees whereas the dock workers are part time employees and by virtue of that distinction alone they get different benefits some of the benefits are the same i think mr rich correctly referred to the fact that all of the fed ex freight including dock workers get retirement benefits and health benefits but beyond what are the different benefits the drivers earn title to two to four weeks of vacation paid vacation they also get seven holidays off during the year they the job or curse get no vacation they get no paid vacation and they have five to seven personal days i believe that they get and that's what every all of the employees get as a baseline and when you say five to seven per snow days are you talking about sick days are you talking about christmas day are you talking what are you talking about it's not clear your honor from the record what exactly constitutes a personal day it's not a holiday it could be a sick day it could be a sick day but they don't dock workers don't accrue paid vacation we don't want they don't accrue paid vacation leave the end they also are not entitled to the seven paid holidays over the course of the year that the drivers do get it and that really was what researchers also don't get this seven paid holiday they don't get rain right now that would include that would include christmas day for instance yet i believe so your honor they're not i know they have to take that as a person all day i would see it would seem so your honor but you'd have to ask mr rich about the details of the company's arrangement on that front there really are as the court has already observed in this argument there are a litany of differences between these two different groups of workers and their very practical reasons why the drivers really should be part of a separate unit for purposes of collective bargaining in terms of the specialty health care challenge which is really the company has put all its chips so to speak basket of challenging the standard that was applied it isn't seriously contending that under specialty healthcare it can win this case so turning to the challenges i will say the i  understand the company's point that this court is not in any way bound by what other courts have said in response in responding to specialty healthcare challenges however the other courts have spoken quite persuasively to all board for adopting the standard i think the fifth circuit in macy's and the fourth circuit in nestle have both found that the board's rationale was really little bit your honor the board has the authority obviously to designate an appropriate unit and is this court has recognized in many courts of recognized in order to overcome the board's finding of an appropriate unit the company has or the employer has to do more appropriate unit is all that is required under the statute right so if the so the board allows the petition for unit to drive its analysis it looks first at the petition and asks is this an standard is grounded in statutory like it's grounded in statutory law in the language that many courts have used including this court to describe the company's heightened burden when it's challenging an appropriate unit and claiming that more employees nursing the use of varying verbal formulations does not serve the purposes of the act it doesn't assist the parties to assess what they need to do in a given case in a unit determination case and so the board identified this language that actually comes from the d c circuits decision in blue man vegas that he really just describes what it takes for a party to meet its burden in challenging an appropriate unit the party cannot show another possible appropriate unit which by the way is essentially what the company is attempting to do here it has to show that there is such an overwhelming community of interest between the employees in the unit that has been found appropriate and the x clued employees that the exploited employees actually must be included in the unit and this is perfectly consistent with earlier law and that's why the five circuit courts that have addressed specialty resoundingly found that it is not a major overhaul of the law it is simply a clarification and and it's just going methodically through the steps of the specialty health care  analysis the first step incorporates the traditional community of interest analysis that my colleague has referred to and that is an analysis that goes back to united operations which itself is based on cases going back to one thousand nine hundred sixty four so it's far from new as the company claims the second step of the specialty healthcare analysis builds on these other cases that we've discussed that uniformly talk about the employers burden as a heightened burden and different words have been used but overwhelming does appear in the board's cases on initial unit determination cases i understand that the company believes that the board improperly as imported that standard from a different kind of different context called the creation cases but that's simply not true as as the macy's court recently recognized the word overwhelming has been used in the has not consistently used the word overwhelming it has not even perhaps frequently used the word overwhelming but overwhelming is one of the words that has been used to describe the employer's burden and all that specialty healthcare does is nailed down for the parties that overwhelming is the standard to be applied currently apart from the five other circuits that have already spoken are there other circuits that have the same issue pending before them i believe there's a case pending in the second circuit your honor a constellation brands i believe is is another case involving a special sale care challenge may please the court my name is co secure sends you a piece of paper and i represent teamsters local four thirty nine out of stockton california your national brotherhood of teamsters as represent employees in a particular craft truck drivers for over  hundred years and my view has great expertise in doing so and dealing with the interests are unique to such employees a collective bargaining that's what the teams are seek to do in this case going back to the facts of the case the teams who seek to collectively bargain the safely says it's there to protect self organization were the truck drivers not the dock workers but going them or point to a collective bargaining point as the regional director found in this case the truck drivers have distinct and unique terms and conditions of employment that would be important in dealing with and collective bargaining that might be at odds with the dock workers for example going over time to use and not entitle overtime correctly and also under california law because of the size of the trucks they would have won because of the size of their trucks they would not be entitled to overtime the dock workers are so in a collective bargaining context as a union we would be seeking to address that issue for before the truck drivers through collective bargaining additionally the truck drivers are licensed and have to pay their own workers have is there is there were physically more strenuous there they are moving in the product or the freight at the at the dock conceivably that is physically more strenuous it depends of course they could be using hand ollie's but there are differences in the physical strain potentially of the two employees to employ groups the other differences as drivers you know the drivers are outside of the terminal they are primarily supervised contrary to what mr rich said they're primarily supervised by a different supervisor and dispatcher than the dock workers or dis are supervised by dock workers supervisors have so in other words it in the unions you it would undermine some way i'm sorry you cut out facts your honor it is the the union's view that certainly the the truck drivers are a appropriate bargaining unit we haven't assessed fully if a unit that includes that they share some community of interest or not that would be an appropriate argument but in the unions view in this case the uniqueness of the truck drivers make them an appropriate party unit there are the drivers who sought out the union which is that what the act calls for and they are i mean they are the employees that sought out the union and they have unique interests so and so does it mean that the dock workers don't have their own union place and you know the another the differences between the two employees in this case are stark and the regional director in this case did apply a community of interest test which as this co it looked at not only inwardly the commonalities between the drivers but outwardly the distinction of the drivers from the dock workers and in doing so decided even to home depot which showed why those factors are important and found it is an appropriate argument so kind of bring back to why i'm here today hunters i'm not here to argue i fully agree with the n l r b and the sister circuit courts at specialty healthcare is an appropriate test as simply a clarification of the tests that have been always applied in terms of disturbing it argument but i'm here to say is based on the facts of this case under any permutation of cases that fed ex may wish to advance there's absolutely no rational basis to argue that the drivers here are not an appropriate bargaining unit that can collectively bargain under the act of going back to the act the purpose of the act is to encourage collective bargaining the purpose of the of the community of interest test is to do it is to determine factors that are porton in collective bargaining that's what the regional director did in this case and that's what why that the truck drivers are an appropriate unit ok thank you benefits the same benefits part timers had the same benefits as full time employees that that is my understanding said she was she was wrong are you saying she was for all i'm saying she was wrong they have all the same paid vacation and the seven days and all that stuff yes i call yes or let me finish with my concessions by let me finish with this concession you're on it if we're going to argue the facts the n l r b could have found against us under the old test but they chose not to go and the reason they want to to in call kate this especially