IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60022

MACY'S, INCORPORATED, 

 Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD, 

 Respondent Cross-Petitioner

On Petition for Review and Cross-Application 

for Enforcement of an Order of the

National Labor Relations Board

ON PETITION FOR REHEARING EN BANC

(Opinion June 2, 2016, 824 F.3d 557)

Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled 

at the request of one of its members, and a majority of the judges who are in 

regular active service and not disqualified not having voted in favor (FED. R.

APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2016

Lyle W. Cayce

Clerk
No. 15-60022

2

In the en banc poll, 6 judges voted in favor of rehearing (Judges Jolly, 

Jones, Smith, Clement, Owen, and Elrod), and 9 judges voted against

rehearing (Chief Judge Stewart and Judges Davis, Dennis, Prado, Southwick, 

Haynes, Graves, Higginson, and Costa).

ENTERED FOR THE COURT:

/s/ James L. Dennis 

JAMES L. DENNIS

United States Circuit Judge
No. 15-60022

3

E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, CLEMENT, 

OWEN, and ELROD, Circuit Judges, dissenting from the denial of rehearing 

en banc:

This appeal presents another example of the current National Labor 

Relations Board’s (“NLRB”) determination to disregard established principles 

of labor law. The NLRB certified a small bargaining unit consisting of only the 

cosmetics and fragrances employees at a Macy’s department store in Saugus, 

Massachusetts. On appeal, the panel denied Macy’s’ petition for review and 

granted the NLRB’s application for enforcement of its unfair labor practices 

order, which ordered Macy’s to bargain with the Union.1 Macy’s, Inc. v. NLRB, 

824 F.3d 557, 560–61 (5th Cir. 2016). On petition for en banc review, the en 

banc Court, in a split vote, denied further review. I respectfully dissent from 

that denial. 

As an initial matter, the panel erred by allowing the NLRB’s decision to 

stand when it and its underlying foundations are marred by the misapplication 

of the NLRA and its historical interpretation. As the NLRB acknowledges, it 

has long held that, in the retail industry, storewide units of salesforce 

employees are the presumptively appropriate collective bargaining unit. 

Macy’s & Local 1445, 361 N.L.R.B. 4, at *17–19 (2014); see also, e.g., I. Magnin 

& Co., 119 N.L.R.B. 642 (1957); May Dep’t Stores, 97 N.L.R.B. 1007 (1952). 

Even if this presumption has been overcome on infrequent occasions, the 

NLRB has only authorized smaller units where a petitioned-for unit of 

employees has “a ‘mutuality of interests’ not shared by all other selling 

employees . . . and are ‘sufficiently different’ from the other selling employees 

so as to justify representation on a separate basis.” Macy’s & Local 1445, 361 

N.L.R.B. 4, at *20. Such cases have been rare for an obvious reason: no matter 

the titular differences, such as employees’ assignment to different 

 

1 Local 1445, United Food and Commercial Workers Union.
No. 15-60022

4

departments, all salesforce workers have the same basic employment, skills, 

interests, function, and working conditions. 

Here, there are no circumstances that isolate the cosmetics and 

fragrances employees from the presumptive bargaining unit of all salesforce 

employees. The NLRB nonetheless applied, inaptly, the two-prong standard 

from Specialty Healthcare & Rehab. Ctr. of Mobile, 357 N.L.R.B. 83 (2011), to 

allow the smaller and select unit that the Union had successfully organized. 

There are statutory constraints on the NLRB’s evaluation of a union’s 

requested collective bargaining unit. Section 9(c)(5) of the NLRA expressly 

provides that “the extent to which the employees have organized shall not be 

controlling.” 29 U.S.C. § 159(c)(5). Courts have interpreted this to mean that 

the extent of union organization may only be “‘consider[ed] . . . as one factor’ in 

determining whether a proposed unit is appropriate.” Blue Man Vegas, LLC 

v. N.L.R.B., 529 F.3d 417, 421 (D.C. Cir. 2008) (quoting NLRB v. Metro. Life 

Ins. Co., 380 U.S. 438, 442 (1965)). But, here, the only justification for a unit 

of only cosmetics and fragrances employees is that it reflects the apex of the 

Union’s organizational strength. Indeed, the Union failed in two efforts to 

organize larger bargaining units at this store. The Union was only successful 

on its third try: this time with a micro-unit of cosmetics and fragrances 

employees that evidently reflected its greatest strength. But the en banc Court 

must acknowledge that the Supreme Court has explained that “the enforcing 

court should not overlook or ignore an evasion of the § 9(c)(5) command.” 

Metro. Life Ins. Co., 380 U.S. at 442. In short, the NLRB’s decision here 

challenges this admonition.
No. 15-60022

5

Furthermore, the panel decision pays little respect to one of the 

underlying policies of the NLRA: the promotion of labor peace and stability.2 

Peace and stability are weakened by the balkanization of bargaining units in 

a single, coordinated workplace. NLRB v. R. C. Can Co., 328 F.2d 974, 978–79 

(5th Cir. 1964). In this case, the NLRB sacrificed considerations of promoting 

labor peace by using a rationale that approved a small, carved-out bargaining 

unit that contains no real limiting principle in future cases. For example, 

nothing in the NLRB’s rationale prevents a dozen micro-units within a retail 

store’s salesforce—all fraught with mini-bargaining at multiple times and the 

possibility of disputes and mini-strikes occurring continually over the working

year. One is led to assume, as the amici suggest, that three bowtie salesman 

would be an appropriate bargaining unit if they sold bowties at a separate 

counter from other merchandise. So much for promoting labor peace and 

stability.

On a different level, the panel has effectively disregarded our own 

precedent in NLRB v. Purnell’s Pride, Inc., 609 F.2d 1153 (5th Cir. 1980). 

When the NLRB “exercises the discretion given to it by Congress, it must 

‘disclose the basis of its order’ and ‘give clear indication that it has exercised 

the discretion with which Congress has empowered it.’” Id. at 1161 (quoting 

Metro. Life Ins. Co., 380 U.S. at 443). Although the panel acknowledged

 

2 E.g., 29 U.S.C. § 151; Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271 (1964) 

(“‘The Act, as has repeatedly been stated, is primarily designed to promote industrial peace 

and stability by encouraging the practice and procedure of collective bargaining.’” (citation 

omitted)); Brooks v. NLRB, 348 U.S. 96, 103 (1954) (“The underlying purpose of [the NLRA] 

is industrial peace.”); Am. Bread Co. v. NLRB, 411 F.2d 147, 155 (6th Cir. 1969) (“One of the 

objectives of the National Labor Relations Act is to promote peace and tranquility between 

labor and management while insuring employees the opportunity to be represented by the 

union of their choice.”).
No. 15-60022

6

Purnell’s Pride, it gave the NLRB a pass on its requirements: in the words of 

one panel member, the NLRB’s decision reads like “a bad law school exam.” 

And now, from the broad strokes, to the analysis. 

I.

“This court . . . reviews unit determinations only to determine ‘whether 

the decision is arbitrary, capricious, an abuse of discretion, or lacking in 

evidentiary support.’” Macy’s, 824 F.3d at 563 (citation omitted). But this 

deference does not require the Court to “bow to the mysteries of administrative 

expertise.” E.g., Envtl. Def. Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 597 (D.C. 

Cir. 1971). This Court has “refused to enforce [NLRB] orders where they have 

no reasonable basis in law” because they “fail[ed] to apply the community of 

interest standard” and where “the reasons supporting the Decision . . . [were] 

not sufficiently articulated to permit proper judicial review.” NLRB v. Magna 

Corp., 734 F.2d 1057, 1061, 1064 (5th Cir. 1984) (citation and internal 

quotation marks omitted); Purnell’s Pride, 609 F.2d at 1161. The panel opinion 

is a troublesome decision that permits the NLRB’s decision to stand despite 

the fact that it contains both of these critical flaws; troublesome especially 

when we have precedent that rejects the breezy analysis employed by the 

threesome. 

A.

The NLRB abused its discretion by applying an incorrect standard for 

analyzing the first prong of the Specialty Healthcare framework: whether the 

petitioned-for employees share a community of interest. Moreover, the flawed 

analysis demonstrates that the NLRB’s determination was controlled by the 

extent of union organization, which NLRA § 9(c)(5) explicitly prohibits. 

1.

The NLRA constrains the NLRB’s evaluation of a union’s proffered 

collective bargaining unit. As noted, NLRA § 9(c)(5) provides that “the extent 
No. 15-60022

7

to which the employees have organized shall not be controlling,” although it 

“may be ‘consider[ed] . . . as one factor’ in determining whether a proposed unit 

is appropriate.” 29 U.S.C. § 159(c)(5); Blue Man Vegas, 529 F.3d at 421 

(citation omitted). Thus, “while still taking into account the petitioner’s 

preference,” the NLRB “must proceed to determine, based on additional 

grounds,” whether “the proposed unit is . . . appropriate.” Specialty 

Healthcare, 357 N.L.R.B. 83, at *13.

“To guide its discretion, and to avoid giving controlling weight to the 

extent of organization,” the NLRB traditionally uses a multi-factor community 

of interest analysis to determine whether a petitioned-for unit is appropriate. 

Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489, 495 (4th Cir. 2016) 

(citation omitted). In Specialty Healthcare, the NLRB clarified3 the traditional 

principles of unit determination and explained how the traditional standard 

applies when an employer contends that the appropriate unit contains more 

employees than those in the petitioned-for unit, as Macy’s does here. 357 

N.L.R.B. 83, at *12–20. In such cases, the NLRB applies a two-step test.

In the first step, the NLRB decides whether the petitioned-for unit is 

prima facie appropriate. It begins by determining whether the employees in 

the petitioned-for unit “are readily identifiable as a group (based on job 

classifications, departments, functions, work locations, skills, or similar 

factors).” Id. at *17. This first step is completed by examining whether “the 

employees in the group share a community of interest.” Id. In making this 

decision, the NLRB examines: 

whether the employees are organized into a separate department; 

have distinct skills and training; have distinct job functions and 

perform distinct work, including inquiry into the amount and type 

 

3 The NLRB and courts have described the community of interest factors in various 

ways over time. E.g., Nestle, 821 F.3d at 495; NLRB v. Catalytic Indus. Maint. Co., 964 F.2d 

513, 518 (5th Cir. 1992). 
No. 15-60022

8

of job overlap between classifications; are functionally integrated 

with the Employer’s other employees; have frequent contact with 

other employees; interchange with other employees; have distinct

terms and conditions of employment; and are separately

supervised.

Macy’s, 824 F.3d at 568–69 (emphasis in original) (quoting Specialty 

Healthcare, 357 N.L.R.B. 83, at *14). If it finds that a petitioned-for unit is 

“readily identifiable as a group” and “that the employees in the group share a 

community of interest after considering the traditional criteria,” the NLRB 

proceeds to the second step. Specialty Healthcare, 357 N.L.R.B. 83, at *17. 

In the second step, the burden shifts from the petitioner to the employer 

to show that “employees in [a] larger unit share an overwhelming community 

of interest with those in the petitioned-for unit.” Id. An employer satisfies this 

burden if it shows that “there ‘is no legitimate basis upon which to exclude 

certain employees from it’” so that the community of interest “factors ‘overlap 

almost completely.’” Id. at *16 (quoting Blue Man Vegas, 529 F.3d at 421–22). 

If the employer cannot make this showing, the NLRB “will find the petitionedfor unit to be an appropriate unit.” Id. at *17.

But the NLRB itself has more than a perfunctory obligation when 

analyzing the community of interest factors in the first step: the NLRB must 

compare and contrast the employees in the group with each other and with 

employees outside of the group. The NLRB has repeatedly recognized the 

importance of this comparison. It has stated, for example, that:

[T]he [NLRB]’s inquiry never addresses, solely and in isolation, the 

question whether the employees in the unit sought have interests 

in common with one another. . . . Our inquiry . . . necessarily 

proceeds to a further determination whether the interests of the 

group sought are sufficiently distinct from those of other employees 

to warrant the establishment of a separate unit. The [NLRB] has 

a long history of applying this standard in initial unit 

determinations. 
No. 15-60022

9

Wheeling Island Gaming, Inc., 355 N.L.R.B. 637, at *1 n.2 (2010) (emphasis in 

original) (citations and internal quotation marks omitted). The NLRB 

maintained this requirement in Specialty Healthcare. It formulated the 

community of interest test detailed above, which emphasizes this comparison, 

and applied the test using an analysis replete with distinctions between the 

employees in the petitioned-for unit and excluded employees. Specialty 

Healthcare, 357 N.L.R.B. 83, at *14. Moreover, the Fifth Circuit and its sister 

circuits have recognized that employees in a petitioned-for unit must be 

compared with employees who share common interests but have nonetheless 

been excluded from the petitioned-for unit.4

Ultimately, in applying Specialty Healthcare, the NLRB must guard 

against violating NLRA § 9(c) by making “arbitrary exclusions.” Nestle, 821 

F.3d at 499. If it does not compare employees in the petitioned-for group with 

excluded employees in the first step or if it only identifies “meager differences” 

between these employees, the NLRB “conduct[s] a deficient community-ofinterest analysis” that “fails to guard against arbitrary exclusions” and creates 

an “apparent union gerrymander.” Id.; see also Blue Man Vegas, 529 F.3d at 

425–26; NLRB v. Lundy Packing Co., 68 F.3d 1577, 1580, 1580–81 (4th Cir. 

1995), supplemented, 81 F.3d 25 (4th Cir. 1996); see Macy’s, 824 F.3d at 568–

 

4 E.g., NLRB v. FedEx Freight, Inc., 832 F.3d 432, 440 (3d Cir. 2016) (recognizing that 

Specialty Healthcare’s “initial community-of-interest test . . . noted similarities among the 

employees within the petitioned-for unit, and distinctions between them and excluded 

employees”); Macy’s, 824 F.3d at 568–69; Nestle, 821 F.3d at 495 (“The test ensures not only 

that the employees in the unit share common interests, but also that these interests are 

distinct from those of excluded employees.”); FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 523 

(8th Cir. 2016) (“[T]he community of interest test does in fact compare the interests and 

characteristics of the workers in the proposed unit with those of other workers. . . . The 

precedents relied on by the [NLRB] in Specialty Healthcare make clear that the [NLRB] does 

not look at the proposed unit in isolation.”); Amalgamated Clothing Workers of Am. v. NLRB, 

491 F.2d 595, 598 n.3 (5th Cir. 1974) (“The touchstone of appropriate unit determinations is 

whether the unit’s members have a ‘recognizable community of interest sufficiently distinct 

from others.’” (citation omitted)).
No. 15-60022

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69. This conduct violates § 9(c) because, “[b]y rubber-stamping [a union’s 

petitioned-for unit] and then applying the overwhelming-community-ofinterest test, ‘the [NLRB would] effectively accord[] controlling weight to the 

extent of union organization.’” Nestle, 821 F.3d at 499 (citation omitted). 

2.

Here, the NLRB conducted a deficient analysis of whether the petitionedfor unit of cosmetics and fragrances employees was prima facie appropriate. 

The NLRB began by incorrectly phrasing step one of the Specialty Healthcare 

analysis as being concerned only with “whether employees in a proposed unit 

share a community of interest.” Macy’s & Local 1445, 361 N.L.R.B. 4, at *10 

(emphasis added). Then, in conducting this community of interest analysis, 

the NLRB barely noticed how the employees in the petitioned-for group 

differed from excluded employees and made no effort to explain how the 

admittedly questionable difference it identified was not, in fact, “meager.” 

The NLRB discussed similarities between employees within the 

petitioned-for group, but it did not discuss similarities between the included 

employees and the excluded employees. Id. at *10–11. For example, it 

addressed Macy’s’ arguments as to why employees within the petitioned-for 

group did not share similar interests. Id. at *11. But it only acknowledged 

Macy’s’ contention that the cosmetics and fragrances employees’ interests did 

not meaningfully differ from those of other sales employees once it advanced 

to step two of the Specialty Healthcare analysis. Id. at *11–17. 

The NLRB also cited only one5 distinction between cosmetics and 

fragrances employees and Macy’s’ other selling employees: only cosmetics and 

 

5 The NLRB may have also made the distinction that only cosmetics and fragrances 

employees work almost exclusively in a specific area of the store. Id. at *10–11 (stating that 

cosmetics and fragrances employees “perform their functions in two connected, defined work 

areas” and “are not expected to work in other departments”). Assuming the NLRB made this 
No. 15-60022

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fragrances employees sell fragrance and cosmetic products to customers. Id.

at *10. This distinction is, however, hollow and just plain meaningless. The 

NLRB had to admit that there was “evidence regarding cosmetics and 

fragrances products being rung up in other departments.” Id. at *13 n.41. And 

the NLRB did not explain why this purported difference had contextual 

substance or was not “meager”—an explanation that was particularly 

necessary because the NLRB later conceded that “the petitioned-for employees 

and other selling employees perform similar, related duties.” Id. at *14. 

3.

Regrettably, the panel has failed properly to grasp and to apply the 

principles that guide step one of the Specialty Healthcare analysis. It is clear 

to any reasonable reader that the panel did not require the NLRB actually to 

engage the crucial step of rigorously weighing the community of interest 

factors by comparing the employees in a petitioned-for unit with employees 

outside of that unit. Instead, in a blow-by treatment of whether the NLRB 

applied the correct standard, the panel stated without further explanation 

“[t]hat [rigorously weighing the factors] is precisely what the [NLRB] has done 

in the instant case. As a result, the test and its application do not violate 

Section 9(c).” Macy’s, 824 F.3d at 568. 

This conclusionary expression does not reconcile the NLRB’s analysis 

with the NLRA’s and Specialty Healthcare’s requirements. The fact remains 

that, in its analysis under Specialty Healthcare’s first prong, the NLRB 

articulated and applied the wrong standard. The NLRB failed to consider any 

of the similarities between included and excluded employees, only identified 

one questionable distinction between them, and did not explain how that 

 

distinction, it is, in the NLRB’s words, “analytically insignificant.” Id. at *11 & n.34; see also 

D.V. Displays Corp., 134 N.L.R.B. 568, at *1 (1961).
No. 15-60022

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distinction was meaningful. Because the NLRB did not apply the correct 

community of interest standard, its decision, in the final analysis, had “no 

reasonable basis in law” and was therefore an abuse of discretion. Magna 

Corp., 734 F.2d at 1061, 1064 (citation omitted). 

Moreover, and crucially, this case is a picture-perfect example of the 

NLRB violating the NLRA by approving a bargaining unit defined by the 

limited success of a union’s organizational efforts in the larger and appropriate 

unit. This bypassing of statutory barriers has been achieved by avoiding an 

analysis of the guiding precedents in shaping bargaining units. After the 

Union was stymied from organizing a storewide unit to join a multi-store unit 

and lost an election for a stand-alone storewide unit, the Union cherry-picked 

a unit of only cosmetics and fragrances employees—the group apparently most 

favorable to the Union’s organization efforts.6 And the NLRB allowed it to 

hobble across the finish line as a survivor “substitute” bargaining unit. The 

NLRB has long used a thorough community of interest test, which compares 

employees within and outside of the proposed unit, “to avoid giving controlling 

weight to the extent” to which employees have organized, which NLRA § 9(c)(5) 

unequivocally prohibits. Nestle, 821 F.3d at 495 (citation omitted). But, here, 

the NLRB rubber-stamped the Union’s proffered unit by engaging in a callow 

community of interest analysis. It then improperly forced Macy’s to satisfy an 

overwhelming community of interest standard. Thus, the NLRB gave 

excessive deference to the composition of the requested unit and arbitrarily 

 

6 “On March 24, 2011, the [Union] filed a petition seeking a self-determination election 

to determine whether Saugus employees wished to join [an] existing five-store unit; the 

petition covered all full-time and regular part-time employees at the Saugus store.” Macy’s 

& Local 1445, 361 N.L.R.B. 4, at *7. Macy’s opposed this election on the ground that “adding 

the Saugus employees to the existing five-store unit would be inappropriate.” Id. “The 

Regional Director agreed with [Macy’s], and instead directed an election to determine 

whether the Saugus employees wished to be represented in a single-store unit.” Id. The 

Union lost that election. Id. 
No. 15-60022

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disregarded the collective bargaining interests of other salesforce employees to 

be in the same unit, “‘effectively accord[ing] controlling weight to the extent of 

union organization.’” See id. at 499 (citation omitted); see also, e.g., Blue Man 

Vegas, 529 F.3d at 425–26; Lundy Packing Co., 68 F.3d at 1580, 1580–81.

B.

The NLRB not only abused its discretion and violated the NLRA as 

noted, but it also inadequately explained the reasons for its decision, thereby

disregarding our circuit precedent and preventing proper judicial review. 

1.

While “a bargaining unit designation by the [NLRB] is not lightly to be 

overturned,” “it was manifestly not the congressional intent that appellate 

scrutiny of [NLRB] decisions be relegated to a formalistic ritual of stamping an 

appellate imprimatur on administrative determinations without having 

undertaken a careful examination of the basis of the [NLRB]’s action.” 

Amalgamated Clothing Workers of Am. v. NLRB, 491 F.2d 595, 597 (5th Cir. 

1974). Rather, courts must carefully review the record “to determine whether 

the [NLRB]’s decision is a rational one supported by the evidence.” Id. This 

“translates into a duty by the [NLRB] . . . to articulate ‘substantial reasons’ 

for its unit determinations.” Id. (citation omitted); see also Metro. Life, 380 

U.S. at 443.

To satisfy this requirement, the NLRB must “do more than simply tally 

the factors on either side of a proposition.” Purnell’s Pride, 609 F.2d at 1156.7 

Because “[t]he crucial consideration is the weight or significance . . . of factors 

relevant to a particular case,” the NLRB “must assign a relative weight to each 

 

7 It is irrelevant that Purnell’s Pride is a pre-Specialty Healthcare case because the 

Supreme Court has explained that “the basis of the [NLRB]’s action, in whatever manner the 

[NLRB] chooses to formulate it,” must “meet[] the criteria for judicial review.” Metro. Life, 

380 U.S. at 443 n.6 (citations omitted). 
No. 15-60022

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of the competing factors it considers” in order “to permit proper judicial 

review.” Id. Thus, “unit determination[s] will be upheld only if the [NLRB] 

has indicated clearly how the facts of the case, analyzed in light of the policies 

underlying the community of interest test, support its appraisal of the 

significance of each factor.” Id. at 1156–57 (citing Metro. Life, 380 U.S. at 442–

43 (remanding a unit determination case to the NLRB because its “lack of 

articulated reasons for the decisions in and distinctions among [unit 

determination] cases” frustrated judicial review)). 

2.

Here, the NLRB has determined that Macy’s’ cosmetics and fragrances 

employees share a community of interest using a remarkably similar analysis 

to one this Court rejected in Purnell’s Pride. In Purnell’s Pride, the NLRB8: (1) 

made findings of fact; (2) discussed the traditional community of interest 

factors; (3) stated the employer’s objections; (4) addressed them by applying 

the facts to the factors and citing four times to precedent; (5) “concluded that 

evidence bearing on [some factors] supported approval of the proposed unit 

while evidence [on other factors] militated against the proposed unit”; and (6) 

found that the evidence supported approval of the proposed unit. 609 F.2d at 

1159–60. This Court held that the analysis contained a crucial flaw: the NLRB 

“d[id] not adequately explain . . . the weight . . . assigned to each individual 

factor.” Id. at 1160. The reasons supporting the NLRB’s decision were 

therefore “not sufficiently articulated to permit proper judicial review.” Id. at 

1161–62. 

Here, like the decision we overruled in Purnell’s Pride, the NLRB: (1) 

made findings of fact; (2) discussed the traditional community of interest 

factors; (3) applied the facts to the factors; (4) stated the employer’s objections; 

 

8 The NLRB adopted the Regional Director’s analysis. 609 F.2d at 1160.
No. 15-60022

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(5) addressed them by applying the facts to the factors and citing to four cases; 

(6) concluded that “differences among the petitioned-for employees . . . are 

insignificant compared to the strong evidence of community of interest that 

they share”; and (7) found that the evidence supported approval of the proposed 

unit. Macy’s & Local 1445, 361 N.L.R.B. 4, *10–11. But, as in Purnell’s Pride, 

the NLRB did not address the weight it assigned to each competing factor. 

3.

The panel fails to acknowledge that, just as in Purnell’s Pride, the NLRB 

committed a “fatal” error by not weighing the community of interest factors 

and explaining why the differences between the cosmetics and fragrances 

employees and other selling employees outweighed the similarities. Macy’s, 

824 F.3d at 565. The panel summarily dismissed Macy’s argument in three 

sentences: 

In Purnell’s Pride, the Regional Director had simply listed the 

factors that guided his unit determination. Finding that the 

[NLRB], in upholding the Regional Director’s ruling, had failed to 

adequately explain its weighing of the community interest factors, 

this court remanded the case to allow the [NLRB] to disclose the 

basis of its order. Here, the [NLRB] satisfied Purnell’s Pride’s

requirements: the decision identified some factors that could weigh 

against the petitioned-for unit and explained—with citation to 

[NLRB] precedent—why these factors did not render the 

petitioned-for unit inappropriate. Macy’s & Local 1445, 361 

N.L.R.B. No. 4, *11.

Macy’s, 824 F.3d at 565–66 (citations omitted).

Respectfully, the panel’s analysis is obviously flawed. First, as discussed 

above, in Purnell’s Pride, the NLRB patently did not, as the panel asserts, 

simply list the factors that guide the unit determination. Second, in Purnell’s 

Pride, we required more of the NLRB than, as the panel asserts, identifying 

some factors that could weigh against a petitioned-for unit because the NLRB 

did precisely that in Purnell’s Pride. Instead, Purnell’s Pride required the 
No. 15-60022

16

NLRB to assign a weight to each community of interest factor and weigh the 

factors. 609 F.2d at 1156–57. Third, the NLRB neither weighed the 

community of interest factors here nor explained why the differences between 

the cosmetics and fragrances employees and other selling employees 

outweighed the similarities. Consequently, “the reasons supporting the 

Decision . . . [were] not sufficiently articulated to permit proper judicial 

review.” See id. at 1161. 

In this light, the panel’s decision to nevertheless uphold the NLRB’s 

decision contravenes circuit precedent. The next panel that addresses the 

question of whether the NLRB, or another agency, has sufficiently articulated 

the reasons for its decision may not be bound by the panel opinion in this case 

because Purnell’s Pride predates the panel’s decision and remains cognizable 

law in this circuit. Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 

2006) (“The rule in this circuit is that where two previous holdings or lines of 

precedent conflict the earlier opinion controls and is the binding precedent in 

this circuit (absent an intervening holding to the contrary by the Supreme 

Court or this court en banc).”). In short, when we fail to follow clearly 

applicable precedent, we send confusing signals to the litigants and to the 

district courts. They deserve better.

II.

For these reasons, I respectfully dissent from the failure of the Court to 

vote this case en banc.