author: PER CURIAM: E. GRADY JOLLY, Circuit Judge,

text:
    MACY’S, INCORPORATED, Petitioner Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner
    No. 15-60022
    United States Court of Appeals, Fifth Circuit.
    Filed November 18, 2016

      Shay Dvoretzky, Jones Day, Washington, DC, Willis j. Goldsmith, Jones Day, New York, NY, for Petitioner Cross-Respondent.
    Linda Dreeben, Esq., Deputy Associate General Counsel, Julie Brock Broido, Supervisory Attorney, Gregory Paul Lauro, Trial Attorney, National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Jonathan Kreisberg, National Labor Relations Board, Boston, MA, for Respondent Cross-Petitioner.
    Alfred Sebastian Gordon O’Connell, Pyle, Rome, Ehrenberg, P.C., Boston, MA, Matthew James Ginsburg, AFL-CIO, Washington, DC, for Intervenor Local 1445, United Food and Commercial Workers International Union.
    George Roger King, Esq., HR Policy Association, Washington, DC, Howard Shapiro, Esq., Proskauer, New Orleans, LA, for HR Policy Association, Amicus Curiae.
    Todd Clifford Duffield, Ogletree Dea-kins, P.C., Atlanta, GA, Gavin Samuel Martinson, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Dallas, TX, for Chamber of Commerce of the United States of America, National Federation of Independent Business, National Restaurant Association, and Coalition for a Democratic Workplace, Amici Curiae.
    Todd Clifford Duffield, Ogletree Dea-kins, P.C., Atlanta, GA, for International Foodservice Distributors Association, National Association of Manufacturers, National Association of Wholesaler-Distributors, and Society for Human Resource Management, Amici Curiae.
    Jason C. Schwartz, Esq., Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Retail Litigation Center and National Retail Federation, Amici Curiae.
    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.

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, Hig-ginson, and Costa).

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. 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 péti-tioned-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 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 “ ‘considered] ... 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, 85 S.Ct. 1061, 13 L.Ed.2d 951 (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, 85 S.Ct. 1061. In short, the NLRB’s decision here challenges this admonition.

Furthermore, the panel decision pays little respect to one of the underlying policies of the NLRA: the promotion of labor peace and stability. 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 sales-force—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, 85 S.Ct. 1061). Although the panel acknowledged 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 análysis 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 bar-gaming unit. As noted, NLRA § 9(c)(5) provides that “the extent to which the employees have organized shall not be controlling,” although it “may be ‘considered] ... 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 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 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 employeés to warrant the establishment of a separate unit. The [NLRB] has a long history of applying this standard in initial unit determinations.

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.

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 568-69. 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 distinction between cosmetics and fragrances employees and Macy’s’ other selling employees: only cosmetics and 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 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. 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 disregarded the collective bargaining interests of other sales-force employees to be in the same unit, “ ‘effectively according] 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, 85 S.Gt. 1061.

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. 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 of the competing factors it considers” in order “to permit proper judicial review.” Id. Thus, “unit determination^] 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, 85 S.Ct. 1061 (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: (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; (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 insighificant 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 Pñde. Instead, Purnell’s Pñde required the 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.

      , Local 1445, United Food and Commercial Workers Union.

      . E.g., 29 U.S.C. § 151; Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 271, 84 S.Ct. 401, 11 L.Ed.2d 320 (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, 75 S.Ct. 176, 99 L.Ed. 125 (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.”).

      . 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).

      . 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)).

      . 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 f 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 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).

        . "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.

      . 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, 85 S.Ct. 1061 (citations omitted).

      . The NLRB adopted the Regional Director's analysis. 609 F.2d at 1160.


source: Caselaw Access Project

license: Public Domain

text:
    AIG SPECIALTY INSURANCE COMPANY, formerly known as Chartis Specialty Insurance Company, Plaintiff-Appellee v. TESORO CORPORATION, Defendant-Appellant Tesoro Corporation, a Delaware Corporation; Tesoro Refining and Marketing Company, L.L.C., Plaintiffs-Appellants v. AIG Specialty Insurance Company, formerly known as Chartis Specialty Insurance Company, Defendant-Appellee
    No. 15-50953
    United States Court of Appeals, Fifth Circuit.
    Filed November 29, 2016

      Stacy R. Obenhaus, Scott Louis Davis, Jason Bryan Heep, Litigation Counsel, Elliot Strader, David Howard Timmins, Gardere Wynne Sewell, L.L.P., Dallas, TX, for Plaintiff-Appellee.
    Allyson Newton Ho, John Clay Sullivan, Morgan, Lewis & Bockius, L.L.P., Dallas, TX, David Sean Cox, Esq., Morgan, Lewis & Bockius, L.L.P., Los Angeles, CA, Joshua Lee Fuchs, Jones Day, Houston, TX, Judd Edwhrd Stone, II, Morgan, Lewis & Bockius, L.L.P., Washington, DC, for Defendant-Appellant, Plaintiffs-Appellants.
    Dustin Mark Howell, Esq., McKool Smith, P.C., Austin, TX, for McKool Smith, P.C.
    Before SMITH, HAYNES, and COSTA, Circuit Judges,
   ORDER:

The petition for panel rehearing filed by Tesoro Corporation and Tesoro Refining and Marketing (collectively, “the Tesoro Parties”) is DENIED. Furthermore, the Tesoro Parties’ belated request that this court certify the question of how the discovery rule applies in light of Cosgrove v. Cade, 468 S.W.3d 32 (Tex. 2015), to the Texas Supreme Court is also DENIED.

The opinion in this case follows clear Texas precedent. However, even if we were to assume arguendo that the discovery rule could apply to a' case such as this, the Tesoro Parties fail to point to evidence that would support a conclusion that, exercising diligence, they should not have discovered their claimed injury before August of 2008 (four years before they asserted the reformation claim and six years after they received the allegedly mistaken policy). See Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 675 (5th Cir. 2013) (explaining discovery rule). Indeed, the Tesoro Parties’ real argument is that they did not discover the alleged mistake not that they could or should not have discovered it had they exercised reasonable diligence. Clearly, any diligence at all would have revealed the alleged mistake, which is obvious in the listing of-Tesoro Corporation as named insured and the definition of “Insured” in the policy. Certainly at some point in the six years between receipt of the policy in 2002 and August 2008, during several years of ongoing litigation where the policy was front and center, someone could and should have looked at the policy. Thus, the issue is not “determinative.” Tex. R. App. Pro. 58.1

      . The Tesoro Parties' argument on diligence is as follows: "The proper inquiry for the district court was to consider when, through the exercise of reasonable diligence, the Teso-ro parties ought to have realized the error in the Chartis policy. And on this point, Chartis’s own behavior demonstrated the existence of a material fact issue. If the district court’s conclusion were an accurate generalization of what any reasonably prudent corporation might have done—to 'examine the Policy and the scope of coverage’ in the dispute—Chartis would have presumably realized, and asserted, the defense that Tesoro Refining is not an insured party when Tesoro Refining first notified Chartis of a potential claim.”

      . While the Tesoro Parties argue that diligence is usually a fact question, they point to no evidence about their own 'conduct that would raise such a fact issue. See In re Placid. Oil Co., 932 F.2d 394, 398-99 (5th Cir. 1991) ("Even if PGI had no inkling that its rights were being invaded, it was in a circumstance in which a reasonable person would have investigated the situation.”).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jose Javier VILLAFRANCA, Defendant-Appellant
    No. 16-40022
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed December 1, 2016
    Jimmy Eric Pardue, Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plain-tiffAppellee.
    Roberto Balli, Attorney, Laredo, TX, for Defendant-Appellant.
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   PER CURIAM:

Jose Javier Villafranca appeals his 57-month sentence following his jury-trial conviction for conspiring to transport and transporting undocumented aliens within the .United States for financial gain, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii), (v)(I) & (B)(i), Villafranca asserts that the district court clearly erred in applying the special skill enhancement under U.S.S.G. § 3B1.3 based on his possession of a commercial driver’s license. Because there is no constitutional right to hybrid representation on appeal, see United States v. Og-bonna, 184 F.3d 447, 449 & n.l (5th Cir. 1999), Villafranca’s pro se letter filed after the close of briefing is not considered herein.

Section 3B1.3 provides for a two-level upward adjustment if the defendant used a special skill in a manner that significantly facilitated the commission or concealment of the offense. We have held that the ability to drive a tractor trailer truck as evidenced by the possession of a commercial driver’s license constitutes a special skill for purposes of § 3B1.3. See United States v. Gonzalez, 627 Fed.Appx. 381, 382 (5th Cir 2015); United States v. Ordonez, 334 Fed.Appx. 619, 624 (5th Cir. 2009). While merely persuasive, see Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006), our unpublished decisions are consistent with the decisions of - other circuits on this issue. See, e.g., United States v. Berry, 717 F.3d 823, 834-35 (10th Cir. 2013); United States v. Martinez, 509 Fed.Appx. 889, 894 (11th Cir. 2013); United States v. Vasallo, 518 Fed.Appx. 147, 149 (4th Cir. 2013); United States v. Smith, 332 F.3d 455, 458-59 (7th Cir. 2003); United States v. Mendoza, 78 F.3d 460, 465 (9th Cir. 1996).

Furthermore, in Gonzalez, 627 Fed. Appx. at 382, we concluded that the defendant’s commercial driver’s license and years of truck-driving experience significantly facilitated his commission of the offense of transporting undocumented aliens because, without those special skills, he would have been unable to tow the tractors in which the aliens were hidden. As we explained in United States v. Gill, 642 Fed.Appx. 323, 326 (5th Cir. 2016), by carrying the aliens in the truck’s trailer, the defendant “gave the appearance that he was hauling a legitimate load and made it much more difficult to identify the aliens.” The record showed that Villafranca, who had fifteen years of commercial truck-driving experience, acted as a licensed truck driver purporting to carry a legitimate load through a checkpoint on one of the nation’s busiest corridors where there are thousands of other tractor-trailers. Accordingly, the district court did not clearly err in determining that Villafranca’s special skill of driving a tractor trailer truck significantly facilitated the commission of the offenses. See § 3B1.3; United States v. Pruett, 681 F.3d 232, 248 (5th Cir. 2012). The judgment of the district court is AFFIRMED.

      . Although both Gonzalez and Ordonez refer to this skill merely as "possession” of a commercial driver’s license ("CDL”), their analysis makes it clear that possession of a CDL is shorthand for the knowledge and ability to drive a tractor trailer truck, evinced by the legitimate acquisition of a CDL. See Gonzalez, 627 Fed.Appx, at 382 (“As the district court determined, Gonzalez not only possessed a commercial driver's license but also had a particular ability to drive a truck towing two additional tractors,”); Ordonez, 334 Fed.Appx. at 624 ("We have never directly addressed the issue of whether a CDL may constitute a 'special skill,’ but other courts have determined that a special skill enhancement based on the ability to drive a tractor trailer truck may be appropriate.”).


author: EDWARD C. PRADO, Circuit Judge:

text:
    Lisa Velasquez OLIVAREZ, Plaintiff, v. GEO GROUP, INCORPORATED; et al, Defendants, Shawn K. Fitzpatrick; Timothy Flocos, Appellants.
    No. 16-50191
    United States Court of Appeals, Fifth Circuit.
    Filed December 12, 2016

      Shawn Kevin Fitzpatrick, Pro Se.
    Timothy J. Flocos, Pro Se.
    Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Attorneys Shawn K. Fitzpatrick and Timothy Flocos (collectively, “Appellants”) were sanctioned by the district court for certifying that them clients’ initial disclosures under Federal Rule of Civil Procedure 26(a)(1) were complete and correct even though the, disclosures- failed to mention evidence that Appellants later used during a deposition. Appellants now ask this Court to reverse the district court’s decision and remit to them the monetary sanctions collected by the district court. We AFFIRM.

I. BACKGROUND

In 2012 and 2013, Plaintiff Lisa Velasquez Olivarez was allegedly sexually .assaulted on multiple occasions while incarcerated at the Maverick County Detention Center (“MCDC”),. a facility which was then operated by the GEO Group, Inc. (“GEO”). Olivarez alleged that she was sexually assaulted by Defendant Luis Armando Valladarez, who was a GEO employee at the time. Around the time of the alleged assaults, Olivarez made a series of phone calls to her mother and a friend named Juan using the MCDC’s phone system. Each call began with a prerecorded message indicating that the call might be monitored and recorded. GEO recorded at least three of Olivarez’s phone calls. During these phone calls, Olivarez discussed her encounters with Valladarez in ways that might be construed to suggest Oliva-rez consented to the sexual conduct.

On November 26, 2014, Olivarez filed a complaint against GEO, Valladarez, and other MCDC officials, raising various claims related to the alleged sexual assaults, including a civil rights claim under 42 U.S.C. § 1983. In response to these claims, Defendants argued, among other things, that Olivarez had “initiated consensual sex” with Valladarez and that the purportedly consensual sexual encounters did not deprive Oliyarez of any civil rights under § 1983. On May 19, 2015, Fitzpatrick, in his capacity as GEO’s attorney, submitted GEO’s initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)(A). Flocos, who was representing Valladarez, submitted initial disclosures on behalf of his client the following day. Neither of these initial disclosures mentioned the audio recordings of Olivarez’s conversations with her mother and her friend Juan.

Appellants deposed Olivarez on May 29, 2015. During the deposition,- Fitzpatrick first questioned Olivarez about her phone conversations with her mother and her friend Juan. Olivarez testified that she told her mother and Juan about the incidents with Valladarez, that her mother told her to be careful, and that she told Juan that Valladarez had forced her to have sex. Later in the deposition, Flocos played the recordings of Olivarez’s phone calls and questioned her extensively about her conversations with her mother and Juan. After the deposition ended, Fitzpatrick provided Olivarez’s counsel with an online iink to the recordings.

On July 31, 2015, Olivarez filed a motion requesting that the district court impose sanctions on GEO and Valladarez under Federal Rules of Civil Procedure 26 and 37 for failing to include the audio recordings in their clients’ initial disclosures. Under Rule 26(a)(1)(A):

a party must, without awaiting a discovery request, provide to the other parties ... a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment .... ...

In addition, Rule 26(g)(1) requires that “[e]very disclosure under Rule 26(a)(1) ... be signed by at least one attorney of record.” By signing, an attorney certifies that an initial disclosure is “complete and correct” under the requirements of Rule 26(a)(1) “to the best of the [attorney’s] knowledge, information, and belief formed after a reasonable inquiry.” Fed. R. Civ. P. 26(g)(1). “If a certification violates [Rule 26(g) ] without substantial justification, the court ... must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.” Fed. R. Civ. P. 26(g)(3). Likewise, a party is subject to sanctions under Rule 37(c)(1) if the “party fails to provide information or identify a witness as required by Rule 26(a) or (e), ... unless the failure was substantially justified or is harmless.”

The parties settled their case while the motion for sanctions was under consideration by the district court. However, on October 20, 2016, the district court issued an order holding that the “audio recordings [did] not solely contain impeachment evidence, .therefore Rule 26 required their disclosure.” Pursuant to Rule 37 and the court’s inherent authority, the .district court imposed sanctions requiring each Appellant to pay a $1,000 fine. Appellants subsequently filed motions for reconsideration. On January 27, 2016, the district court issued an order denying the motions for reconsideration. The district court explained that Appellants had certified that their clients’ initial disclosures were “complete and correct” pursuant to Rule 26(g)(1); but the “disclosures did not include recorded phone calls despite their being encompassed by Rule 26(a)(l)(A)(ii).” After determining these omissions were not substantially justified, the district court concluded that sanctions were required under Rule 26(g)(3). On the same day, the district court dismissed Oli-varez’s cause of action-with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(l)(A)(ii). . .

Appellants timely appealed. On appeal, Appellants argue that the district court abused, its discretion by (1) incorrectly applying-Rule 26(a)(l)’s disclosure requirement and (2) failing to properly consider whether Appellants’ purported violation of Rule 26 was substantially justified under Rule 26(g)(3).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal under 28 U.S.C. § 1291 because the district court’s dismissal of the underlying action with prejudice constituted a final decision. Marshall v. Kansas City S. Ry. Co., 378 F.3d 495, 500 (5th Cir. 2004); Click v. Abilene Nat’l Bank, 822 F.2d 544, 545 (5th Cir. 1987). “The district courts wield their various sanction powers at their broad discretion.” Topalian v. Ehrman, 3 F.3d 931, 934 (5th Cir. 1993). Thus, we “may reverse a district court’s award of sanctions only if we find that the court abused its discretion in imposing them.” Id. “A district court abuses its discretion if it awards sanctions based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 526 (5th Cir. 2002) (quoting Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999)).

III. DISCUSSION

A. Substantive Versus Impeachment Evidence

Appellants first argue that they used the recordings < solely to impeach Olivarez’s credibility; therefore, they were not required to disclose the recordings under Rule 26(a)(1), which specifically states evidence need not be disclosed if “the use would be solely for impeachment.” Appellants contend the district court abused its discretion by announcing a novel standard under Rule 26(a)(1) and then sanctioning them for not complying with that novel standard. But contrary to Appellants’ contentions, the district court’s decision was firmly grounded in this Court’s precedent.

“Substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact.” Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993). “Impeachment evidence, on the other hand, is that which is offered to ‘discredit a witness ... to reduce the effectiveness of [her] testimony, by bringing forth evidence which explains why the jury should not put faith in [her] or [her] testimony.’ ” Id. (quoting John P. Frank, Pretrial Conferences and Discovery—Disclosure or Surprise?, 1965 Ins. Law J. 661, 664).

This Court has made clear that some evidence serves both substantive and impeachment functions and thus should not be treated as “solely” impeachment evidence. Id.; see also Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 368-69 (5th Cir. 2008) (acknowledging that surveillance videos contradicting testimony from plaintiffs witnesses were of a substantive nature, regardless of their impeachment value). Other courts have taken similar approaches. See Searles v. Van Bebber, 251 F.3d 869, 877 (10th Cir. 2001) (“If, as the judge saw it, the evidence was really more than mere impeachment evidence, then the witnesses should have been disclosed.”); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1122 (7th Cir. 1999) (holding that witnesses who provided impeachment testimony should have been disclosed prior to trial because the testimony was part of defendant’s “primary line of defense”); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (holding‘that evidence was not introduced “solely for impeachment purposes” where the evidence was “both impeaching and substantive”). Rule 26(a)(l)’s automatic disclosure requirement “was adopted to end two evils that had threatened civil litigation: expensive and time-consuming pretrial discovery techniques and trial-by-ambúsh.” Standley v. Edmonds-Leach, 783 F.3d 1276, 1283 (D.C. Cir. 2015) (quoting Hayes v. Cha, 338 F.Supp.2d 470, 503 (D.N.J. 2004)). “A too expansive reading of the impeachment exception ‘could cause a resurgence of these evils.’ ” Id. at 1283-84 (quoting Hayes, 338 F.Supp.2d at 503).

In Chiasson, a local rule required “each party to list the exhibits to be presented at trial,” but if a party had “good cause not to disclose exhibits to be used solely for the purpose of impeachment,” the party was permitted to request an ex parte conference with the court to explain why the exhibits should not be disclosed prior to the trial. 988 F.2d at 515. The district court ruled that a video surveillance tape could be shown to the jury during trial, even though it was not previously disclosed pursuant to the local rule. Id. at 513. In doing so, the district court implicitly found that the video, which showed the plaintiff “sweeping [a] carport, working under a car, entering a store, and buying food,” was being used at trial solely to challenge the credibility of the plaintiffs testimony that she was “unable to carry on daily activities without pain.” Id. at 513, 515-17. On appeal, however, this Court pointed out that the evidence tended to establish the truth of “key issues” to be determined by the jury, namely “the severity of [the plaintiffs] pain and the extent to which she ha[d] lost the enjoyment of normal activity.” Id. at 517. This Court held that “[b]ecause the tape is, at the very least[,j in part substantive, it should have been disclosed prior to trial, regardless of its impeachment value.” Id. at 517-18.

In the instant case, the recordings of Olivarez’s phone calls likely had some impeachment value because they were at least arguably inconsistent with Olivarez’s testimony during the deposition regarding her conversations with her mother and her friend Juan. But the recordings also had substantive value because they seemed to suggest that Olivarez may have consented to the sexual encounters with Valladarez. The recordings tended to establish the truth of a key issue Defendants raised as a defense in the case—that Olivarez had “initiated consensual sex” with Valladarez. Accordingly, the recordings were, at the very least, in part substantive, and the district court did not abuse its discretion in concluding that Appellants were required to disclose the recordings under Rule 26(a)(1).

B. Substantial Justification

Appellants also argue that, the district court failed to properly consider whether their decision to withhold the audio recordings from the initial disclosures was substantially justified. “Substantial justification for the failure to make a required disclosure has been regarded as justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure [obligation].” Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 140 n.23 (3d Cir. 2009) (quoting Tolerico v. Home Depot, 205 F.R.D. 169, 175-76 (M.D. Pa. 2002)); see also Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (holding, in another context, that “substantially justified” means “justified to a degree that could satisfy a reasonable person”); Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1227-29 (10th Cir. 2015) (holding that “substantial justification” under Rule 37 means “justified to a degree that could satisfy a reasonable person”); Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1, 12 (1st Cir. 2005) (same); Preuss v. Kolmar Labs., Inc., 970 F.Supp.2d 171, 175 (S.D.N.Y. 2013) (same). The attorney’s decision to refrain from disclosing the information must have had a “reasonable basis both in law and fact.” Underwood, 487 U.S. at 565, 108 S.Ct. 2541.

Appellants cite several cases in support of their contention that they had a reasonable basis for concluding that disclosure was not required. Some of these cases suggest that evidence does not need to be disclosed under Rule 26(a)(1), even if the evidence has substantive value, so long as the evidence is offered solely for impeachment. See DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 686 (7th Cir. 1995); Ruddell v. Weakley Cty. Sheriff’s Dep’t, No. 1:07-CV-01159, 2009 WL 7355081, at *1 (W.D. Tenn. May 22, 2009); Lomascolo v. Otto Oldsmobile-Cadillac, Inc., 253 F.Supp.2d 354, 359-60 (N.D.N.Y. 2003); Halbasch v. Med-Data, Inc., 192 F.R.D. 641, 648-50 (D. Or. 2000). Appellants also cite cases suggesting that evidence does not need to be disclosed under Rule 26(a)(1) if a party’s subjective intent is to use the evidence solely for impeachment. See Nehara v. California, No. 1:10-CV-00491, 2013 WL 1281618, at *3 (E.D. Cal. Mar. 26, 2013); Doyle v. N.J. Transit Rail Operations, Inc., No. CIV.A.04-5209, 2008 WL 4755735, at *3 (D.N.J. Oct. 29, 2008),

However, all of the cases cited by Appellants were decided by courts outside this Circuit. The only controlling authority on the issue is Chiasson. In that case, we held that evidence should not be treated as “solely” impeachment evidence if it tends to establish the truth of key issues to be determined by the jury. 988 F.2d at 517-18. Instead, the evidence must be treated as having at least some substantive value and must be disclosed to the opposing party. Id. Given that this Court had previously addressed the issue, it was unreasonable for Appellants to rely on authorities outside this Circuit to support their own litigation strategy. A reasonable person would have applied this Court’s precedents to the facts and determined that the audio recordings needed to be disclosed because they had substantive value. Accordingly, we hold that the district court did not abuse its discretion in concluding that Appellants had no substantial justification for violating Rule 26.

IV. CONCLUSION

For the foregoing reasons, the district' court’s judgment is AFFIRMED.

      . Chiasson predated the current version of Rule 26(a). Prior to December 1, 1993, Rule 26 imposed no duty to disclose information to an opposing party in the absence of formal discovery requests. See Fed. R. Civ. P. 26 advisory committee’s note to 1993 amendment. Despite this historical difference in the rule, however, Chiasson still provides clear guidance on how this Court interprets the phrase "solely for the purpose of impeachment” in the context of pretrial disclosures.