Alaska Communications Systems Holdings, Inc. v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2020 Decided July 30, 2021

No. 20-1032

ALASKA COMMUNICATIONS SYSTEMS HOLDINGS, INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with 20-1069

On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board

Daniel A. Adlong argued the cause for petitioner. On the
briefs were Matthew J. Kelley and Kenneth B. Siepman.
Christopher C. Murray entered an appearance.

Brady Francisco-FitzMaurice, Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Ruth E. Burdick, Acting Deputy Associate
General Counsel, David S. Habenstreit, Assistant General
Counsel, and Usha Dheenan, Supervisory Attorney.
 2
Before: SRINIVASAN, Chief Judge, HENDERSON and
MILLETT, Circuit Judges.

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: Alaska Communications
Systems Holdings, Inc. provides telecommunications services
throughout Alaska and in Oregon. While most of the
company’s employees are based in Alaska, some are in
Oregon. Before the proceedings in this case, the union that
represents a majority of the company’s employees did not
represent any of the Oregon-based employees. The union then
sought to hold a representation election among a subset of the
Oregon-based employees. The National Labor Relations
Board certified a voting group that differed slightly from the
petitioned-for unit, and that group voted to join the preexisting
bargaining unit.

The company now challenges the Board’s certification of
the voting group. We conclude that the Board permissibly
adjusted the composition of the voting group and permissibly
determined that the group shares a community of interest with
the preexisting bargaining unit it voted to join. We thus reject
the company’s challenges.

I.

A.

Section 7 of the National Labor Relations Act guarantees
employees the right to “bargain collectively through
representatives of their own choosing.” 29 U.S.C. § 157.
Under Section 9, representatives “selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes[] shall be the exclusive
 3
representatives of all the employees in such unit.” Id. § 159(a).
The Act tasks the Board with deciding “in each case . . . the
unit appropriate for the purposes of collective bargaining.” Id.
§ 159(b).

The Act also sets out the procedures the Board uses to
determine an appropriate bargaining unit. After a labor union
files a petition for a representation election, if the Board
determines that the petitioned-for unit is appropriate, the Board
orders an election in which employees in the unit vote on
whether to select union representation. See id. § 159(c). If the
Board, though, determines that the petitioned-for unit is
inappropriate, “the Board may examine the alternative units
suggested by the parties, but it also has the discretion to select
an appropriate unit that is different from the alternative
proposals of the parties.” Bartlett Collins Co., 334 NLRB 484,
484 (2001).

This case involves a “self-determination” election, in
which a union petitions to “add residual employees to an
already existing unit rather than to create a new unit.” Rush
Univ. Med. Ctr. v. NLRB, 833 F.3d 202, 205 (D.C. Cir. 2016).
In such an election, employees unrepresented by a union vote
on whether to join a preexisting unit of represented employees.
The Board’s approval of a self-determination election is
contingent on, among other things, a determination that the
voting group and the preexisting unit share a “community of
interest.” See id.

B.

Alaska Communications Systems Holdings, Inc. (the
Company) provides a range of telecommunications services,
including landline telephone, internet service, fiber optic data
transport, and more. The Company is principally based in
 4
Alaska but also has an office and employees in Oregon. Before
the proceedings in this case, approximately 320 of the
Company’s 580 employees were represented by the
International Brotherhood of Electrical Workers, Local 1547
(the Union) in a bargaining unit known as the Alaska Unit.
Until these proceedings, none of the Company’s Oregon-based
employees belonged to a union.

In Alaska, the Company provides local exchange carrier
services, commercial and residential internet service, and data
transport services. The Alaska-based group responsible for
remote network monitoring is called the Integrated Network
Management Center. The Center remotely monitors the
Company’s vast network in Alaska, as well as certain
equipment located in Oregon and Washington. The Alaska
group responsible for physically tending to the Company’s
cables throughout Alaska is called the Network Engineering
group.

The Company’s Oregon branch is headquartered in
Hillsboro, near Portland. The organization of the Oregon-
based operations resembles that of the Alaska-based
operations. The Cable Systems Group consists of two sub-
groups: the Network Operations Center remotely monitors the
telecommunications networks, and the Cable Operations
department physically maintains the Company’s cables.

The Network Operations Center includes only Oregon-
based employees. They remotely monitor the Company’s
network in Oregon, its cables running across the Pacific Ocean
between Alaska and Oregon, and a line in northern Alaska. The
Cable Operations department, meanwhile, has five employees
in Oregon and two in Alaska. That department tends to the
Company cables’ landing stations in Oregon and Alaska. The
Alaska landing stations are serviced by Jacob Kelley and
 5
Stephen Huff, the two employees stationed in Alaska. They
work on equipment throughout Alaska, including servicing the
line in northern Alaska. Prior to these proceedings, Kelley and
Huff did not belong to the Union.

The Company’s Alaska and Oregon operations are
overseen by common management. The Company’s Vice
President supervises Thomas Brewer and Greg Tooke. Brewer,
whose primary office is in Anchorage, oversees the network
monitoring groups in both Anchorage and Hillsboro. And
Tooke, who is also primarily stationed in Anchorage, oversees
the cable operations groups, which consist of the Alaska-based
Network Engineering group and the Oregon-based Cable
Operations department.

Under Brewer, Network Operations consists of seven
employees, including Jeffrey Holmes and six employees who
report to Holmes. Under Tooke, Cable Operations consists of
seven employees, including Anatoliy Pavlenko and six
employees who report to him. That group of six employees is
made up of four Oregon-based employees, as well as Kelley
and Huff, the two Anchorage-based technicians. Both Brewer
and Tooke spend some time working in Oregon.

C.

In 2018, the Union filed a petition seeking a representation
election among a group of the Company’s Oregon-based
employees. The petitioned-for unit encompassed twelve Cable
Systems Group employees, including both Holmes and
Pavlenko. The lone Cable Systems Group employees excluded
from the unit were the Alaska-based Kelley and Huff.

The Company opposed the petition on two grounds. First,
the Company contended that Holmes and Pavlenko were
 6
supervisors and thus were ineligible employees under the Act.
See 29 U.S.C. § 152(11). Second, the Company argued that the
petitioned-for unit did not share a community of interest with
the existing Alaska Unit.

Following hearings spanning multiple days, the Regional
Director issued a Decision and Direction of Election. The
Regional Director credited the Company’s first objection and
excluded Holmes and Pavlenko from the voting group because
they were supervisors. The Regional Director further found
that excluding Kelley and Huff—the sole Cable Systems Group
employees not included in the unit—“would unduly fragment
the workforce and render the proposed Voting Group an
irrational and indistinct one.” Reg’l Dir.’s Decision &
Direction of Election at 23, J.A. 427. The Regional Director
explained that the record adduced at the hearing “includes
ample evidence” to justify the inclusion of those two Alaska-
based employees in the voting group. Id. at 23 n.30. The
Regional Director then applied the Board’s community-of-
interest standard and concluded that the voting group—
consisting of the petitioned-for unit, but with Kelley and Huff
replacing Holmes and Pavlenko—was an appropriate unit.

The Board denied the Company’s request for review.
Although the Board modified certain of the Regional Director’s
findings, the Board agreed with the Regional Director’s
ultimate conclusion that the selected unit shared a community
of interest with the Alaska Unit.

The approved voting group held a self-determination
election and voted to join the Alaska Unit. The Regional
Director then certified the Union as the exclusive collective-
bargaining representative of the voting group.
 7
To enable judicial review of the Board’s certification
decision, see, e.g., Ozark Auto. Distribs., Inc. v. NLRB, 779
F.3d 576, 579–80 (D.C. Cir. 2015), the Company refused to
bargain with the Union over the Cable System Group’s terms
of employment. The Board’s General Counsel issued an
unfair-labor-practice complaint and later moved for summary
judgment, which the Board granted. The Company filed a
timely petition for review in our court, and the Board filed a
cross-application for enforcement of its order.

II.

“[W]e will uphold the Board’s decision if its ruling is not
arbitrary, capricious, or founded on an erroneous application of
the law, and if its factual findings are supported by substantial
evidence.” Advanced Life Sys. Inc. v. NLRB, 898 F.3d 38, 43
(D.C. Cir. 2018). We “accord the Board an especially wide
degree of discretion on questions of representation.” Rush
Univ. Med. Ctr., 833 F.3d at 206 (internal quotation marks
omitted). The Board’s “broad” discretion “in this area . . .
reflect[s] Congress’ recognition of the need for flexibility in
shaping the bargaining unit to the particular case.” Dodge of
Naperville, Inc. v. NLRB, 796 F.3d 31, 38 (D.C. Cir. 2015)
(quoting Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227,
236 (D.C. Cir. 1996)). When reviewing the Board’s findings
of fact under the substantial evidence standard, we reverse
“only when the record is so compelling that no reasonable
factfinder could fail to find to the contrary.” Inova Health Sys.
v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (quoting Bally’s
Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)).

Before turning to the merits of the company’s challenges,
we note that a pending lawsuit in the Court of Appeals for the
Ninth Circuit involving the same factual background poses no
obstacle to our deciding this case. See Int’l Brotherhood of
 8
Elec. Workers, Local 1547 v. Alaska Commc’ns Sys. Holdings,
Inc., 424 F. Supp. 3d 598 (D. Alaska 2019), appeal docketed,
No. 20-35021 (9th Cir. Jan. 14, 2020). That litigation, filed
directly by the Union, stems from an effort to arbitrate the
dispute between the Union and the Company under the terms
of the parties’ collective bargaining agreement. See 424 F.
Supp. 3d at 602. The Board—which is seeking to enforce its
order against the Company here—is not a party to that separate
litigation. And the Company, the only common party between
the two lawsuits, does not object to our deciding this appeal.
See Oral Argument at 12:30–19:00.

A.

The Company first argues that the Board acted unlawfully
in various ways when it modified the petitioned-for unit to
include Kelley and Huff, the two Alaska-based employees in
the Cable Systems Group. We find no merit in the Company’s
arguments.

1.

Section 102.66(d) of the Board’s regulations precludes
parties from “raising any issue, presenting any evidence
relating to any issue, cross-examining any witness concerning
any issue, and presenting argument concerning any issue that
the party failed to raise in its timely Statement of Position or to
place in dispute in response to another party’s Statement of
Position.” 29 C.F.R. § 102.66(d) (2017). The Company argues
that the Union violated that rule by belatedly attempting to
include Kelley and Huff in the voting group.

The Company’s argument stems from a mistaken premise:
the Company itself, rather than the Union, introduced the
notion that excluding Kelley and Huff from the voting group
 9
would be improper. The Union initially sought to incorporate
only the Oregon-based Cable Systems Group employees into
the existing Alaska Unit. The Company responded by
challenging whether a sufficient community of interest existed
between those employees and the existing unit. Then, at the
hearing, the Company repeatedly elicited testimony suggesting
that the petitioned-for unit would be inappropriate without
Kelley and Huff’s inclusion. The Hearing Officer then asked
the Union if it wished to proceed to an election with an
alternative unit if the petitioned-for unit was found
inappropriate by the Regional Director or the Board. In
response, the Union deferred to the Board’s authority to select
an appropriate unit. The Union thus did not raise the issue of
Kelley and Huff’s inclusion, and the rule cited by the Company
has no bearing on the Board’s decision to add the two
employees.

The Company next attempts to reframe its procedural
challenge by arguing that the Board violated its rules by
recognizing an alternate unit not proposed by either party and
without affirmatively soliciting evidence on that unit. Nothing
in the Board’s rules, however, constrains its authority to
identify an appropriate unit not presented by the parties. To the
contrary, while Section 102.66(d) precludes a party from
raising arguments not made in its Statement of Position,
another subsection expressly preserves “the regional director’s
discretion to direct the receipt of evidence concerning any
issue, such as the appropriateness of the proposed unit, as to
which the regional director determines that record evidence is
necessary.” Id. § 102.66(b) (2017).

That rule “ensures that the Board will have sufficient
evidence in the record to make an appropriate unit
determination,” as “it is the Board’s responsibility under
Section 9(b) of the Act to make appropriate unit
 10
determinations.” Representation—Case Procedures, 79 Fed.
Reg. 74,308, 74,365 (Dec. 15, 2014). Accordingly, the
Company errs insofar as it suggests that the Board’s
recognition of a bargaining unit not proposed by the parties
exceeds the Board’s authority under the statute: the Act calls
for the Board, not the parties, to “decide in each case” a “unit
appropriate for the purposes of collective bargaining.” 29
U.S.C. § 159(b); see State Farm Mut. Auto Ins. Co. v. NLRB,
411 F.2d 356, 361 (7th Cir. 1969) (en banc) (“The Board’s
determination is not confined to the units suggested by the
parties, but it may choose any unit which it reasonably deems
appropriate.”).

With regard to the solicitation of evidence about an
alternate unit, the Act requires the Board to “provide for an
appropriate hearing” when representation questions arise. 29
U.S.C. § 159(c)(1). And the Board’s regulations require the
Hearing Officer to “inquire fully into all matters and issues
necessary to obtain a full and complete record.” 29 C.F.R.
§ 102.64(b) (2017). Here, the Company presented extensive
evidence at the hearing about the two Alaska-based employees
and their relationship with the rest of the Cable Systems Group.
In that context, the fact that the Hearing Officer did not
expressly solicit evidence about the alternative unit caused no
discernible prejudice to the Company. Indeed, despite
challenging the Regional Director’s decision before the Board
and again in this court, the Company “suggests no specific
information that it was foreclosed from presenting that
contradicts the NLRB’s findings.” NLRB v. Lake Cnty. Ass’n
for the Retarded, Inc., 128 F.3d 1181, 1185 n.2 (7th Cir. 1997).

The Company relatedly suggests that, because it ostensibly
received inadequate notice of possible bargaining units, the
Board’s unit-selection procedures failed to provide an
“appropriate hearing” within the meaning of Section 9(c) of the
 11
Act. 29 U.S.C. § 159(c)(1). But the Board held two sets of
multiday hearings on the record about the appropriate
bargaining unit, and the Board collected extensive evidence
from the parties about that determination. It was only after the
Company raised the issue of Kelley and Huff’s exclusion from
the unit that the Board determined they were integral to an
appropriate unit. The Board’s process was fully consistent with
its duty under the Act to “provide for an appropriate hearing
upon due notice.” Id.

2.

The Company next argues that the Board’s procedures
deprived the Company of due process. “The fundamental
requisite of due process of law is the opportunity to be heard”
at “a meaningful time and in a meaningful manner.” Goldberg
v. Kelly, 397 U.S. 254, 267 (1970) (internal quotation marks
omitted). As noted, Section 9(c) of Act provides for such a
hearing. See 29 U.S.C. § 159(c)(1). The Company does not
dispute that “the parties spent seven days at hearing, generating
over 1,300 pages of transcript and submitting dozens of
exhibits,” and that the “Regional Director also allowed the
Parties to file post-hearing briefs.” Company Br. 26. Rather,
the Company contends that the Board acted unconstitutionally
by including Kelley and Huff in the bargaining unit without
providing appropriate notice.

“[T]he contours of due process are flexible and vary
depending upon the circumstances of a given case.” Propert v.
District of Columbia, 948 F.2d 1327, 1332 (D.C. Cir. 1991)
(citing Zinermon v. Burch, 494 U.S. 113, 127 (1990)).
“[R]epresentation cases, unlike unfair labor practice cases, are
not adversarial in nature but are fact-finding hearings.”
Springfield Terrace, 355 NLRB 937, 940 (2010); accord NLRB
v. ARA Servs., Inc., 717 F.2d 57, 64 (3d Cir. 1983) (en banc).
 12
A representation hearing “is designed primarily to enable the
Board to fulfill its statutory function with respect to the
certification of bargaining representatives.” State Farm Mut.
Auto. Ins. Co., 411 F.2d at 360. And in that investigatory
context, “all persons concerned have the duty to produce all
information relevant to the issue.” Id. at 360–61. In that
setting, the Board was not obligated to provide explicit notice
to the Company of every possible alternate unit it might
consider, especially when the Company itself introduced
evidence relating to the alternate unit ultimately chosen by the
Board.

Given the non-adversarial nature of the representation
hearing, the Company’s appeal to cases involving the Board’s
finding of an unfair labor practice without providing adequate
notice is inapposite. This case, for instance, is quite unlike
NLRB v. Blake Constr. Co., 663 F.2d 272 (D.C. Cir. 1981), in
which we held that the Board violated an employer’s due
process rights when it found the employer had committed an
unfair labor practice that was neither alleged in the complaint
nor fully litigated. See id. at 280. Here, the Company was not
charged with any violation at the time of the hearing. Rather,
the hearing was meant to investigate which set of employees
constituted an appropriate bargaining unit so that the Board
could fulfill its statutory mandate to select an appropriate unit.
See 29 U.S.C. § 159.

B.

The Company’s other main challenge is to the Board’s
conclusion that the voting group shares a community of interest
with the preexisting Alaska Unit. We hold that the Board’s
conclusion is supported by substantial evidence.
 13
A self-determination election “permits employees sharing
a community of interest with an already represented unit of
employees to vote whether they wish to be added to the existing
unit.” Rush Univ. Med. Ctr., 833 F.3d at 205 (quoting St.
Vincent Charity Med. Ctr., 357 NLRB 854, 855 (2011)). Such
an election is warranted when (i) the “employees to be added
constitute an identifiable, distinct segment” of the
unrepresented employees, and (ii) the “employees to be
included share a community of interest” with employees in the
preexisting unit. Id. at 209 (quoting Warner-Lambert Co., 298
NLRB 993, 995 (1990)). The first prong is not in dispute in
this case. The sole question is whether, under the second
prong, the voting group shares a community of interest with the
preexisting unit.

The Board considers a series of factors in examining that
question. Specifically, the Board assesses whether the two sets
of employees: are organized into a separate department; have
distinct job functions and perform distinct work; are
functionally integrated; have interchange and frequent contact
with each other; have distinct skills and training and distinct
terms and conditions of employment; and are separately
supervised. PCC Structurals, Inc., 365 NLRB No. 160, 2017
WL 6507219, at *13 (Dec. 15, 2017) (citing United
Operations, Inc., 338 NLRB 123, 123 (2002)). And when, as
here, the potential unit encompasses employees in different
locations, the Board also examines “geographic proximity;
centralized control of management and supervision; and
bargaining history.” Alamo Rent-A-Car, 330 NLRB 897, 897
(2000).

We see no basis for setting aside the Board’s determination
that the factors relating to the employees’ organization within
the Company weigh in favor of finding the requisite
community of interest. As the Board found, including the
 14
voting group within the existing Alaska Unit coheres with the
Company’s departmental structure. The voting group is
coextensive with the Cable Systems Group (aside from
supervisors, whom the Board found to be ineligible), which the
Company organizes together with the Alaska Unit under the
broader Network Development and Engineering department.
Thus, as the Regional Director explained, “[a]llowing the
Cable Systems Group employees to vote in a self-
determination election would not fracture the Alaska Unit.
Instead, it would more closely ‘complete’ the Alaska Unit by
integrating the additional statutory employees under the
Network Development and Engineering umbrella.” Reg’l
Dir.’s Decision & Direction of Election at 25, J.A. 429.

Relatedly, because the same managers—Brewer and
Tooke—supervise both the voting group and the Alaska Unit,
the Board reasonably determined that common supervision
also supports finding a community of interest. True, working
under Brewer and Tooke are Holmes and Pavlenko, who at
least partially oversee only the voting group. But the record
demonstrates that Brewer and Tooke, who oversee the Alaska
Unit, also engage in some day-to-day supervision of the voting
group.

Additionally, the Board permissibly viewed the factors
relating to the employees’ duties and functional integration to
fortify its finding of a community of interest. As the Board
determined, there is significant overlap in job duties between
the units, as well as some functional integration of the
employees. Technicians at the Hillsboro Network Operations
Center “have very similar skills and duties and must be
proficient in the use of most of the same software as the
Network Technicians in Anchorage.” Id. at 28. And the Cable
Operations employees share many of the same responsibilities
as the field technicians in the Alaska Unit, including installing,
 15
repairing, and maintaining network equipment. While the
Cable Operations employees largely work separately from their
counterparts in the Alaska Unit, the network monitoring groups
work closely together on the same matters.

Substantial evidence supports the Board’s conclusion that
the two remaining factors in the ordinary community-of-
interest assessment—whether the two units have frequent
interchange and contact and whether they share similar terms
and conditions of employment—are neutral. With regard to the
first of those factors, the two groups regularly worked together
on issues relating to troubleshooting and network monitoring.
While those contacts typically took place via phone and email
rather than in person, the nature of the network monitoring
employees’ work lends itself to virtual contact instead of face-
to-face collaboration.

The record also includes two examples of employees
making permanent transfers between the Company’s Alaska
and Oregon locations. This, then, is not a case like NLRB v.
Tito Contractors, Inc., 847 F.3d 724 (D.C. Cir. 2017), in which
the Board disregarded the Regional Director’s finding that
“[t]here [was] no evidence of any interchange between the
recycling employees, or between the recycling employees and
any other classification of employee.” Id. at 733 (alterations in
original). In fact, the Board here corrected the Regional
Director’s finding that there was evidence of temporary
interchange between the Alaska and Oregon locations,
explaining that the record did not support that conclusion.
Based on that evidence, the Board permissibly assigned a
neutral value to whether the two groups have frequent
interchange and contact.

The same is true with regard to the employees’ terms and
conditions of employment. On the one hand, the employees in
 16
both groups are paid on an hourly basis and earn comparable
hourly wages, and are subject to some universal Company
policies and benefits. On the other hand, certain benefits—
including pensions and health insurance plans—vary between
the groups. But differences with respect to terms and
conditions of employment “may reasonably be expected” when
unrepresented workers seek to join an existing bargaining unit,
in which such items are governed by a labor contract. Dillon
Cos., Inc. v. NLRB, 809 F. App’x 1, 2 (D.C. Cir. 2020) (quoting
Pub. Serv. Co. of Colo., 365 NLRB No. 104, 2017 WL
3115256, at *1 n.4 (July 5, 2017)). For that reason, the Board
has previously explained that, in self-representation elections,
differences in employment terms attributable to one group’s
union membership should not weigh heavily against finding a
community of interest. See Pub. Serv. Co. of Colo., 2017 WL
3115256, at *1 n.4. It may be that the employees seeking to
join the union hope to attain precisely the benefits enjoyed by
their unionized colleagues.

Because the potential unit comprises employees in
different locations, the Board also examined “geographic
proximity; centralized control of management and supervision;
and bargaining history.” Alamo Rent-A-Car, 330 NLRB at
897. The Board’s conclusions with regard to those factors are
supported by the record.

As the Board acknowledged, the lack of geographic
proximity between most of the employees in the voting group
and those in the Alaska Unit is the lone factor that weighs
against finding a community of interest. With the exception of
Kelley and Huff, the employees in the voting group are all
based in Oregon, while the preexisting unit is based in Alaska.
But the Board could permissibly conclude that the unique facts
of this case temper the degree to which the distance between
the groups militates against finding a community of interest.
 17
Two members of the voting group are stationed in Anchorage
alongside many other employees in the Alaska Unit. And the
nature of the Company’s operations lessens the salience of
geographic distance in this case. The Company’s work
requires it to have employees spread across large distances: it
offers telecommunications services throughout the entirety of
Alaska, and it maintains cables that run across the Pacific
Ocean from Alaska to Oregon. The Alaska Unit thus already
included employees in far-flung portions of Alaska, some of
which are more difficult to reach from Anchorage than is
Hillsboro, Oregon.

With regard to the remaining two considerations—
centralized control of management and supervision and
bargaining history—the Board permissibly found that the first
supports the overall finding of a community of interest while
the second factor is neutral. The record amply supports the
Board’s determination (which the Company does not contest)
that the Company exerts centralized control of management
and supervision over both groups of employees. And the Board
appropriately corrected the Regional Director’s determination
that the employees’ bargaining history favored finding a
community of interest. The Board recognized that “there is no
bargaining history relevant to the community of interest
analysis in the instant self-determination dispute, as the
petitioned-for Cable Systems Group employees have never
been represented by a labor union.” J.A. 440 n.1.

In sum, the Board appropriately considered the full record
in concluding that the voting group shares a community of
interest with the existing bargaining unit, and the Board took
account of evidence that tended to cut against its finding. We
thus hold that the Board’s ultimate finding of a community of
interest is supported by substantial evidence.
 18

* * * * *

For the foregoing reasons, we deny the petition for review
and grant the Board’s cross-application for enforcement of its
order.

So ordered.