                                                                 [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-13920         ELEVENTH CIRCUIT
                        ________________________       JAN 27, 2012
                                                        JOHN LEY
                                                         CLERK
                          Agency No. 12-CA-26377


NATIONAL LABOR RELATIONS BOARD,

                                                                  Petitioner,

INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,

                                                                  Intervenor,

                                   versus

CONTEMPORARY CARS, INC.,
d.b.a. Mercedes-Benz of Orlando,

                                                                 Respondent.
                        ________________________

                Application for Enforcement of an Order of the
                       National Labor Relations Board
                        ________________________

                              (January 27, 2012)
Before HULL, MARCUS and BLACK, Circuit Judges.

BLACK, Circuit Judge:

      Petitioner National Labor Relations Board (the Board or NLRB) seeks

enforcement of its order against Respondent Contemporary Cars, Inc.

(Contemporary). See 355 NLRB No. 113 (2010). Because we conclude that

(1) we lack jurisdiction to consider Contemporary’s due process challenge and

(2) the Board’s bargaining-unit determination is supported by substantial

evidence, we grant the Board’s petition.

                        I. PROCEDURAL BACKGROUND

      On October 3, 2008, the International Association of Machinists and

Aerospace Workers (the Union) filed a petition with the Board seeking

certification as the representative of Mercedes-Benz service technicians employed

at Contemporary. The Board’s Regional Director held a hearing, determined the

proposed bargaining unit was appropriate under two different theories, and

directed that an election occur. Contemporary requested that the Board review the

Regional Director’s decision regarding the bargaining unit. Despite only having

two members, the Board summarily denied the request. Members of the

bargaining unit voted in favor of representation by the Union, and the Regional

Director certified the Union. To preserve its right to challenge the validity of the

                                           2
bargaining-unit determination in a court of appeals, Contemporary refused to

bargain. The Union filed an unfair labor practice charge with the Board.

Contemporary conceded the violation, and on August 28, 2009, the two-member

Board issued an order finding Contemporary in violation of the National Labor

Relations Act (the Act). See 354 NLRB No. 72 (2009).

       On September 3, 2009, Contemporary filed a petition for review of the

NLRB’s order with the United States Court of Appeals for the District of

Columbia Circuit, seeking review of the bargaining-unit determination. The

NLRB filed a cross-petition seeking enforcement. The D.C. Circuit granted

Contemporary’s motion to hold the case in abeyance pending the Supreme Court’s

decision in New Process Steel, L.P. v. NLRB, __ U.S. __, 130 S. Ct. 2635 (2010).

On June 17, 2010, the Supreme Court held the Act requires that the Board render

decisions with a minimum of three members. Id. at 2645.

       On August 17, 2010, the NLRB issued an order setting aside its previous

two-member decision to “take further action as appropriate.”1 355 NLRB No. 113

(2010). On August 23, 2010, the original two members plus an obligatory third

member issued a new order, again affirming the Regional Director’s bargaining-



       1
         The NLRB had never filed the record with the D.C. Circuit, thus retaining jurisdiction
over the matter despite the filing of a petition for review. See 29 U.S.C. § 160(e).

                                                3
unit decision. Id. The August 23 order incorporated by reference the two-member

order, and found Contemporary in violation of the Act. On August 25, 2010, the

NLRB filed a petition for enforcement of its order with this Court.2

                           II. DUE PROCESS CHALLENGE

       Contemporary argues that the NLRB’s decision-making procedures post-

New Process Steel violated due process. Section 10(e) of the Act proscribes

judicial review of any question not raised before the Board, except upon a

showing of extraordinary circumstances. Woelke & Romero Framing, Inc. v.

NLRB, 456 U.S. 645, 665-66, 102 S. Ct. 2071, 2083 (1982); NLRB v. Ochoa

Fertilizer Corp., 368 U.S. 318, 322, 82 S. Ct. 344, 347-48 (1961). This procedural

bar extends to procedural and due process objections. Goya Foods of Fla., 525

F.3d 1117, 1127 n.13 (11th Cir. 2008); Ala. Roofing & Metal Co. v. NLRB, 331

F.2d 965, 967 (5th Cir. 1964)3; N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723,

733 (D.C. Cir. 2011).



       2
        Although a company may seek review in the D.C. Circuit, see 29 U.S.C. § 160(f), the
NLRB must file for enforcement in the circuit where the unfair labor practice occurred or where
the company resides or transacts business. 29 U.S.C. § 160(e). Thus, venue is proper. See
NLRB v. Goya Foods of Fla., 525 F.3d 1117, 1129 n.16 (11th Cir. 2008).
       3
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981, as well as all decisions by a Unit B panel of the former
Fifth Circuit, Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).

                                               4
      Contemporary contends § 10(e)’s exception for “extraordinary

circumstances” applies for two reasons. First, Contemporary claims its due

process argument could only be made to a court of appeals. Ample precedent

belies this argument.

      In United States v. L.A. Tucker Truck Lines, Inc., the Supreme Court applied

a procedural bar similar to § 10(e) to a due process challenge. 344 U.S. 33, 36-37

& n.6, 73 S. Ct. 67, 68-69 & n.6 (1952). The appellee alleged that the Interstate

Commerce Commission (ICC) referred his case to a hearing examiner that had not

been appointed pursuant to the Administrative Procedure Act. Id. at 35, 73 S. Ct.

at 68. The appellee failed to raise that objection to the ICC, but rather raised it for

the first time during judicial review. Id. Although no statutory procedural bar

existed, the Court found that precedent and similar statutes (including § 10(e) of

the Act) required “objections to the proceedings of an administrative agency be

made while [the agency] has opportunity for correction in order to raise issues

reviewable by the courts.” Id. at 37, 73 S. Ct. at 69. Because the appellee’s

objection was not timely, it was procedurally barred.

      In Goya Foods of Florida, we applied § 10(e) to bar a due process

objection. 525 F.3d at 1127 n.13. Goya argued that the Board violated its due

process right to full and fair notice by deciding issues not alleged in the complaint.

                                           5
We found that Goya’s failure to object to the alleged due process violation before

the Board prevented consideration of it by this Court. Id.

      Finally, in Alabama Roofing & Metal Co., the former Fifth Circuit applied

§ 10(e) to bar a due process objection. 331 F.2d at 967. Alabama Roofing alleged

the Board erred by not rejecting the trial examiner’s “obviously” biased and

prejudiced findings. Because the allegation of bias was raised for the first time

before the Fifth Circuit, the court found the statutory bar precluded review. Id.

L.A. Tucker Truck Lines, Inc., Goya Foods of Florida, and Alabama Roofing &

Metal Co. all involved new allegations of due process deprivations which were

found procedurally barred. There is no support for Contemporary’s argument that

its due process challenge could only be made to a court of appeals.

      Second, Contemporary contends extraordinary circumstances exist because

a motion for reconsideration raising its due process argument would have been

futile. This Court has discussed futility under § 10(e) in only one case. NLRB v.

Robin Am. Corp., 667 F.2d 1170, 1171 (5th Cir. Unit B 1982). In Robin

American, the Board requested enforcement of an order that required Robin

American to notify and bargain with its employees’ union prior to closing any

department of its manufacturing facilities. Because “the Fifth Circuit had imposed

a (general) duty to bargain over [all] partial closing decisions,” Robin American

                                          6
did not object to the breadth of this order. Robin Am. Corp., 667 F.2d at 1171

(internal quotations omitted). In First National Maintenance Corp. v. NLRB, the

Supreme Court overruled the Fifth Circuit, finding that a refusal to bargain over an

economically-motivated closing decision would not violate the Act. 452 U.S. 666,

101 S. Ct. 2573 (1981). Following First National, Robin American objected for

the first time to the breadth of the Board’s order. We held that because the

Board’s order was fully in accord with Fifth Circuit precedent at the time it was

issued, any objection to the Board would have been “futile, if not frivolous.”

Robin Am. Corp., 667 F.2d at 1171. The futility of objecting to the Board’s order

based on binding circuit precedent presented an extraordinary circumstance

warranting relief from the statute’s procedural bar.

       Robin American is not controlling in this case because no binding precedent

foreclosed Contemporary from making its due process objection to the Board in a

motion for reconsideration. See Woelke & Romero Framing, Inc., 456 U.S. at 666.

Robin American establishes, however, that the status of the law at the time the

omitted objection could have been filed with the Board is important to determining

futility.

       Two circuits have recognized additional instances that establish futility. In

Kitchen Fresh, Inc. v. NLRB, the United States Court of Appeals for the Sixth

                                          7
Circuit found the extraordinary circumstance of futility. 716 F.2d 351 (6th Cir.

1983). However, the court observed that “only when the Board has unequivocally

rejected a party’s position by expressly refusing to follow the authority or line of

authorities relied upon by that party” would a failure to object be excused as futile.

Id. at 358 n.13. The Sixth Circuit distinguished prior instances when the Board

“had simply not considered the question,” finding retrospectively “fruitless”

motions distinct from futile motions. Id.

      In W&M Properties of Connecticut, Inc. v. NLRB, the United States Court of

Appeals for the District of Columbia Circuit refused to find futility. 514 F.3d

1341, 1346 (D.C. Cir. 2008). The court found that only “patent futility” would

excuse a failure to object to the Board. Patent futility could be established only by

“pointing to instances in which the agency had already rejected [the] contested

argument in other proceedings.” Id. The court held that “an assessment of the

Board’s likely disposition, relying on highly subjective indicia . . . is insufficient

to prove patent futility because it does not show that a motion for reconsideration

was ‘clearly doomed’ by the agency’s rejection of identical arguments.” Id.

      Robin American, Kitchen Fresh, and W&M Properties highlight that the

futility of an omitted objection must be shown as of the time it could have been

made to rise to the level of extraordinary circumstances. Although establishing the

                                            8
Board’s subsequent rejection of a similar argument may retrospectively establish

probable futility, “probable futility cannot be equated with extraordinary

circumstances.” Keystone Roofing Co. v. OSHA, 539 F.2d 960, 964 (3d Cir. 1976)

(applying extraordinary circumstances under 29 U.S.C. § 660(a)); see Power Plant

Div., Brown & Root v. OSHA, 673 F.2d 111, 115 (5th Cir. Unit B 1982) (probable

futility insufficient to establish extraordinary circumstances under 29 U.S.C.

§ 660(a)).

       In support of its futility argument, Contemporary cites only one order in

which the Board rejected a similar due process challenge, Fred Meyer Stores,

NLRB Order, Case No. 19-CA-32311, 2011 WL 826176, at *1 (Feb. 25, 2011).4

The Board issued its order in Fred Meyer Stores after Contemporary could have

moved for reconsideration, making that order irrelevant to the futility analysis in

this case. Beyond Fred Meyer Stores, Contemporary has provided nothing but

“highly subjective indicia” that its motion would have been futile. See W&M

Props., 514 F.3d at 1346. Because Contemporary has failed to demonstrate

extraordinary circumstances, this Court lacks jurisdiction to consider


       4
        Although the Board’s summary order does not reference the nature of the objection, the
motion made by Fred Meyer Stores included a due process challenge substantially similar to
Contemporary’s argument. See Resp’t’s Mot. Recons. at 2-3, Fred Meyer Stores, NLRB Case
No. 19-CA-32311 (Oct. 21, 2010), available at http://mynlrb.nlrb.gov/link/document.
aspx/09031d45803be01f.

                                               9
Contemporary’s challenge to the Board’s procedures. We now turn to the merits

of the Board’s petition.

                           III. STANDARD OF REVIEW

      This Court reviews the NLRB’s factual findings to ensure that they are

supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e);

NLRB v. U.S. Postal Serv., 526 F.3d 729, 732 (11th Cir. 2008). Substantial

evidence is more than a mere scintilla of evidence. “It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Bickerstaff Clay Prods. Co. v. NLRB, 871 F.2d 980, 984 (11th Cir. 1989).

Provided any inferences drawn from the record were plausible, this Court may not

overturn the Board’s determination even if it would make a different finding under

a de novo review. Cooper/T. Smith, Inc. v. NLRB, 177 F.3d 1259, 1261 (11th Cir.

1999). This is an exceedingly narrow standard of review designed to allow

disruption of the NLRB’s decision only when the NLRB exercises its discretion

“in an arbitrary or capricious manner.” Daylight Grocery Co. v. NLRB, 678 F.2d

905, 908 (11th Cir. 1982).

                                   IV. FACTS

      Contemporary concedes it refused to bargain, but challenges the Board’s

bargaining-unit determination. To put Contemporary’s argument in context, we

                                        10
detail some aspects of Contemporary’s operations and its employees’

responsibilities.

      Contemporary is a Mercedes-Benz dealership that offers maintenance for

Mercedes automobiles. Maintenance is performed by employees of the “fixed

operations department.” Contemporary employs approximately 75 non-

supervisory fixed operations employees, including service technicians, detail

technicians, service advisors, parts advisors, parts runners, parts shipping

associates, a trainee, a greeter, a courtesy driver, a porter, service appointment

coordinators, and various payment administrators. Contemporary divides some of

these positions into three “teams.” Each team consists of 9 to 13 service

technicians, 2 service advisors, 1 team leader, and 1 parts advisor. All fixed

operations employees share changing room and locker facilities.

A. Service Technicians

      Service technicians include both general technicians and

alignment/tire/wheel specialists. Alignment/tire/wheel technicians perform

primarily alignment/tire/wheel work. Some general technicians perform

occasional tire work. All service technicians are paid on a “flat rate” system,

whereby they receive compensation based on the number of hours Mercedes-Benz

allots for completion of a particular job. All service technicians are paid between

                                          11
$16 and $26 per “flat rate hour.” Their exact rate is determined by assessed skill

sets, performance reviews, and production bonuses. Skill-set adjustments function

on a categorical system, which rates technicians from D (lowest) to A (highest).

Service technicians receive semiannual performance reviews by their team leaders

and the service director. Any skill-set adjustment or performance-related raise is

recommended by the team leader, approved by the service director, and then

approved by the general manager. Service technicians are also eligible for

production bonuses based on their average daily flat-rate hours. In addition to

identical pay and performance review structures, all service technicians wear a

blue uniform and are required to be certified by Mercedes-Benz. Further, all

service technicians use valuable and specialized tools and machinery while

performing mechanical work on automobiles. Although Mercedes-Benz does not

give a certification for each machine used by the alignment/tire/wheel technicians,

Contemporary provides on-the-job training for those machines.

B. Detail Technicians

      Detail technicians are tasked with cleaning vehicles and removing damage

to paint. They do not perform mechanical tasks or automotive repairs. Detail

technicians wear a blue uniform identical to the service technicians, and are paid

between $12 and $14 per “flat rate hour.” However, they do not share the skill-set

                                         12
and production-bonus components of the service technicians’ compensation

scheme.

C. “Trainee”

      Contemporary’s “trainee” is not in training for a service technician position,

but rather performs window tinting and applies edge guards on vehicle doors.

Thus, the trainee never diagnoses or repairs vehicles, or uses the service

technician’s equipment. Further, the trainee is compensated on a simple hourly

rate with a guarantee of 35 hours per week, and does not wear the blue uniform

worn by service and detail technicians.

D. Service Advisors

      Contemporary’s team system strives to create a highly integrated,

streamlined unit that provides an exceptional customer service experience. The

service advisors provide the friendly face for the team system by greeting

customers, conducting initial vehicle inspections, writing work orders, assisting in

estimate preparation, and performing minor vehicular maintenance, such as

changing wiper blades or light bulbs. Their pay is commission-based, and

dependent in part on the work performed by their service technician and parts

“teammates.”




                                          13
E. Approved Bargaining Unit

      The Board found that the service technicians were an appropriate bargaining

unit. The Board concluded the unit was supported under either a craft-unit or

traditional-unit analysis. Contemporary insists that the unit must consist of only

the general technicians and exclude the alignment/tire/wheel technicians or,

alternatively, the unit must include every non-supervisory employee in their fixed

operations department.

                                 V. DISCUSSION

      “The NLRA does not establish an ‘absolute rule of law’ as to what

constitutes an appropriate bargaining unit. Rather, it delegates to the Board the

responsibility to make a reasonable determination supported by its own precedent

and evidence in the record.” Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184,

1189 (D.C. Cir. 2000) (citation omitted). “Where more than one unit would be

appropriate, the Board need not pick the most appropriate unit, provided that the

unit selected is also appropriate.” NLRB v. Episcopal Cmty. of St. Petersburg, 726

F.2d 1537, 1541 (11th Cir. 1984). “A unit is truly inappropriate if, for example,

there is no legitimate basis upon which to exclude certain employees from it.”

Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008). The burden

rests with Contemporary to demonstrate that the Board’s determination lacked

                                         14
substantial evidentiary support or was otherwise arbitrary, capricious, or an abuse

of discretion. Episcopal Cmty. of St. Petersburg, 726 F.2d at 1541. However, “it

is not our province to insure an abstract and academic consistency in Board

decisions.” NLRB v. Deaton Inc., 502 F.2d 1221, 1228 (5th Cir. 1974).

      The Board found the bargaining-unit determination supported by both a

craft-unit and traditional-unit analysis. We will examine both grounds in turn.

A. Craft Unit

      “A craft unit is one consisting of a distinct and homogeneous group of

skilled journeymen craftsmen, who, together with helpers or apprentices, are

primarily engaged in the performance of tasks which are not performed by other

employees and which require the use of substantial craft skills and specialized

tools and equipment.” Burns & Roe Servs. Corp., 313 NLRB 1307, 1308 (1994).

To determine whether a proposed group of employees constitutes a separate craft

unit, the Board considers whether: (1) the employer assigns work according to

need rather than on craft or jurisdictional lines; (2) the group participates in a

formal training or apprenticeship program; (3) the group’s work is functionally

integrated with the work of excluded employees; (4) the group’s duties overlap

with the duties of excluded employees; and (5) the group shares common interests

with excluded employees, including wages, benefits, and cross-training. Id.

                                          15
      Contemporary contends that the craft-unit determination disregarded the

Board’s order in W.R. Shadoff, 154 NLRB 992 (1965), and, in light of

Contemporary’s modern integrated approach to automotive maintenance,

improperly applied the Board’s decisions in Fletcher Jones Chevrolet, 300 NLRB

875 (1990), and Country Ford Trucks, Inc. v. NLRB, 330 NLRB 328 (1999), enf’d,

229 F.3d 1184 (D.C. Cir. 2000). However, integration is only one factor to be

considered in making a craft-unit determination. Burns & Roe Servs. Corp., 313

NLRB at 1308. After reviewing the record as a whole, we conclude that

substantial evidence supports the Board’s determination that the proposed

bargaining unit was an appropriate craft unit under the Act. Although

Contemporary disputes certain factual findings made by the Board, sufficient

independent relevant evidence exists to adequately support the Board’s

conclusion. For example, only service technicians receive compensation under a

flat-rate pay scheme that includes unique skill-set adjustments; only service

technicians receive production bonuses; all service technicians receive distinct

performance evaluations and supervision; and all service technicians perform

mechanical automotive tasks not performed by other fixed operations employees

that require skill and the use of specialized tools and equipment. Contemporary

has not met its burden of demonstrating the Board’s craft-unit determination

                                         16
lacked substantial evidentiary support. See Episcopal Cmty. of St. Petersburg, 726

F.2d at 1541.

B. Traditional Unit

      The order may also be enforced under the alternative traditional-unit

ground. “Under traditional unit criteria, the critical consideration in determining

the appropriateness of a proposed unit is whether the employees comprising the

unit share a community of interest.” Episcopal Cmty. of St. Petersburg, 726 F.2d

at 1541 (quotations omitted). In determining a community of interest, “the Board

looks to such factors as bargaining history, operational integration, geographic

proximity, common supervision, similarity in job function, and degree of

employee interchange.” NLRB v. J.C. Penney Co., 559 F.2d 373, 375 (5th Cir.

1977). In addition, the Board considers the method and level of compensation,

number of hours worked, and other terms and conditions of employment. Ore-Ida

Foods, Inc., 313 NLRB 1016, 1019-20 (1994).

      Contemporary argues that the extent of integration requires inclusion of all

fixed operations department employees in the bargaining unit. However, the

integration of employees and the interchanges between them are only two factors

in the traditional-unit analysis. Even if the character of the modern automotive

service department represents a significant shift from the past, this Court must

                                         17
defer to the special competency of the Board in rectifying the conflicting interests

of labor and management. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-66, 95

S. Ct. 959, 968 (1975). Further, Contemporary has not met its burden of

demonstrating the Board’s traditional-unit determination lacked substantial

evidentiary support. See Episcopal Cmty. of St. Petersburg, 726 F.2d at 1541.

                                 VI. CONCLUSION

      We lack jurisdiction to consider Contemporary’s due process challenge.

Moreover, Contemporary has not met its burden of demonstrating the Board’s

determination lacked substantial evidentiary support. Therefore, the Board’s

petition is granted and its order is enforced.

      GRANTED.




                                          18
