        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 15-60022                   United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
MACY'S, INCORPORATED,                                         November 18, 2016
                                                                 Lyle W. Cayce
            Petitioner Cross-Respondent                               Clerk

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 rehear-
ing, 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.
                               No. 15-60022
     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




                                     2
                                     No. 15-60022
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.
                                           3
                                  No. 15-60022
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.




                                        4
                                      No. 15-60022
       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.”).

                                             5
                                 No. 15-60022
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
                                       6
                                      No. 15-60022
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 clarified 3 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


       3The 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).
                                             7
                                  No. 15-60022
      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 petitioned-
for 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.

                                        8
                                       No. 15-60022
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-of-
interest 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)).
                                              9
                                       No. 15-60022
69. This conduct violates § 9(c) because, “[b]y rubber-stamping [a union’s
petitioned-for unit] and then applying the overwhelming-community-of-
interest 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 petitioned-
for 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 one 5 distinction between cosmetics and
fragrances employees and Macy’s’ other selling employees: only cosmetics and



       5The 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
                                             10
                                        No. 15-60022
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).
                                               11
                                       No. 15-60022
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.
                                             12
                                      No. 15-60022
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



       7It 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).
                                             13
                                      No. 15-60022
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 NLRB 8: (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.
                                            14
                                 No. 15-60022
(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
                                       15
                                  No. 15-60022
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.




                                         16
