strad long please proceed when you're ready good morning may it please the court i'm daniel had long counsel for appellant alaska communications systems all the requests that the court analysis rd in its community aventuras analysis the board pigeonholes facts into a specific conclusion it sought but it lacked substantial evidence to justify a conclusion in the party from precedent without providing a reason justification for these three reasons we believe that this court should and are important to the border st the board failed to follow the l r b representation rules which deprived deprive the company of notice an opportunity to be heard the union fall the petition seeking to seeking to add the organ bass cable systems employees to the alaska unit in response the company filed a petition statement at that point one of two point six four a requires that there is a hearing that there is a hearing to determine if a question of representation exists in a separate if a proper petition has been filed concerning an appropriate unit at the outset of the hearing the rules require that the union respond to the position to the position statement we're joined by back up and ask a question before we get to the union's statement to yours as i read the regulations and maybe i'm not reading it correctly one of the two point six three also the classifications locations or other employee groupings that must be added to make it an appropriate union added or excluded but you were talking here about you had to add them to have an appropriate unit and so and i'm i'm confident your your client complies with the regulations so isn't it a fair reading of your statement vission that you were you were doing what the regulation required you're no let me explain so when you read those rules the rules require that you follow a statement of position and up a statement of position includes multiple employ us one list is a list that identifies who is in the petition for  another list identifies who should be excluded and another list identifies who should be included who you only include those that should be included should you seek to expand the unit here the company took the position that the petition for unit did not share community of interest with the alaska base unit we did not seek to expand the unit or change the composition we only saw that it be in a standalone unit and so we made no suggestion army our position was that if the to our position was in separate apart from a if it was not a globe a standalone unit of the cable systems employees was appropriate the reason why we pointed out the alaska employees was because they were not included in the analysis of the of the globe it made the unit inappropriate when you conduct a globe analysis the st question is  identifiable distinct segment of the population that's what the regional director explained in the regional director said no it's not identity it's not an identifiable or distinct segment of the population as a result it's fragmented and the regional director decision says at that point the analysis should and you only continue to the community of interest analysis if there's an identifiable distinct segment of population sensor wasn't issued to stop the analysis and what we were saying is the stand alone unit if it was not being globe in was a unit that would be appropriate for gardening direct one of the issues to to remember that has not really been part of this litigation and doesn't stand out is that at the start of the hearing there was some discussion with respect to whether or not this constituted a system wide unit and if it's a system wide unit that makes up for sumption of an approach of appropriateness so when you take a look for example there's six times during the hearing where we ask unspecified that  alaska based employees are included that specifically speaks to the presumption that these employees are not out so there is not an approach to presumption of appropriateness in the petition for unit so that there is a full review of the community interest where do you say if those two are in you still don't have a community of interest in your statement of position we're in our statement of position we didn't specifically speak to that we merely said that the standalone unit did not have a we merely identified in the statement a position that it was an inappropriate unit to add to the community to add to the globe to go to the alaska unit so you didn't put anybody on notice that you were objecting to the exclusion of these  well i know i would say that we did well you're brave enough if you argue tradition in the position statement there would have been no reason to say we're jacked into their decision because it was never identified as an issue i'm not asking that i'm asking where you said that this unit with these two employees added would not be would not have a community of interests with the last year you clearly were  throughout the whole hearing was the alaska base unit and the petition for unit which only included the organ and we never had reason to suggest that we need to argue about the community of interest regulation you know just some that with those two alaskan way that it they don't have a community of interest no i would disagree and the reason i disagree like i said is that the regulation requires identifying what would make the unit appropriate if you're seeking to expand it or change it here are objection was to the globe adding them to the alaska unit was not necessarily that that unit by itself was inappropriate it was that adding them to the globe it was inappropriate that they shouldn't that they shouldn't be part of the last because they lacked a community of interest and then when you talk about the alaska based employees that speaks to the geographic proximity that speaks to interchange and other issues that speak to the community of interest when you do the community interest analysis for the separate cable systems organ base unit yes a candidate can i just  so i understand the history here so the unit and as and with respect to the alaska employed isn't defined as such at the at the time of the proceeding starts so your position is a bad point we had no reason to object because we didn't know they were going to be considered to be part of it then during the hearing you make several statements during the hearing that address the fact that the alaska employees are part of the hillsborough group right that the sec statements you're talking about so at that the company's at least put into issue whether the it makes sense to have a unit that doesn't encompass the alaska employees i would disagree i would look at it like this we were given a true false test true or false is a community of interest between the alaska based employees and the oregon based employees explain you're now office we said paul we explained the reason why the regional director came out and agreed but then the regional director said even though you're right i'm still going to change and say we're going to allow the i'll ask you ask employees we merely pointed to the alaska employees to show what the appropriate burden was in to also show that it was a fragmented unit when you look at one or two point six four and a that speaks to an appropriate unit question a representation of this if a proper petition has been filed concerning a unit appropriate for the purposes of collective bargaining at all times we were speaking to the unit petition for because nobody at any time said we are going to include these alaska based employees into the unit we used to highlight the fragmentation and to highlight the fact that because of the fact that it was fragmented and oprah adding them to alaska unit was inappropriate and we also use it to properly allocate the burden case in any way i don't think resolution of the case affects this case what happened there is the collective bargaining agreement has a grievance an arbitration procedure and it also has a scope of agreement provision that says that only applies within the state of alaska the union sought to arbitrate a demand for voluntary recognition we denied that they moved to compel arbitration the judges ruled that pending before the th circuit and we are betrayed that case and that arbitration and the resolution of that speaks to whether or not the collective bargaining agreement requires that we add all the employees in oregon into the alaska base unit so i guess in that respect it does should we lose the arbitration should we lose that the th circuit then at that point this proceeding would become i guess moot because at that point we would have an arbitrator saying you need to add these employees in with all the terms and conditions and you have the th circuit saying no you are supposed to arbitrate that issue tell your interpretation right neal we yeah we're filing a briefing this issue slightly different with respect to when you have an arm or a globe analysis you add employees into a unit but when those employees go in you still bargain the terms and conditions of employment for the employees whereas with the union seeks to do through that arbitration is compel the company to put the employees into the unit in give them the exact same terms and conditions of employment that the collective bargaining agreement applies to me but we don't but it sounds like that includes there's the issue of what terms and conditions apply but there's also a predicate question of whether an arbitrator what role that you have to include all amazing employees with the alaska read let me explain my reasoning for why view is slightly different is that because under the current global houses we still have bargaining rights with respect to these employees and although they go into the unit the ultimate affects of that are very different than if the employees are forced and through arbitration with that being said the ultimate effect if they are couldn't through arbitration that would make this proceeding moot and as a result as best as i would understand it is territory yeah during the hearing before the regional director this came up and the position from the regional director was that that's not something to be decided here and if you want to pursue from arbitration that's fine but we will proceed with this hearing before us so if we were to rule for you when you then take that decision to this arbitration will have an impact on the arbitration speak to community of interest and appropriateness of unit thanks a thank you council will hear from the government will give you some rebel time mister francisco fits maur recognize and bargain with the union after a majority of its employees in the cable systems group voted to join an existing party unit are already represented by the unit not a start up focusing my comments on the inclusion of the two consider a modified unit the regional director could have indicated to the parties that there is a consideration of a different kind of unit and then given the parties an opportunity to talk to address the bona fides of the different shape of unit that was being considered but that didn't happen right it did happen your honor so i would say two things you know one is that they're at every single representation hearing the point is to what you know really the fact is that during the exchange that you were just talking about that's that's at the end of the hearing when the regional director said and at that point the regional director specifically talked about adding these to your employees to the unit yes and the union acquiesced that notion that's correct you are and then what was the was there what happened with the company shorts though i mean at that point the company very well could have said you know we didn't know that was an issue  any evidence they wanted to introduce and for that reason at this point they can't show how they've been prejudiced at all proceedings and for that reason i would argue that there's a note due process eilish neither really counter to the evidence that shows that these two groups share a community of interest so the fact that there is this tension or you know this is bits of evidence that runs counter to one another really doesn't undermine the community's interests and also  question under nine b you do have the latitude to pick the appropriate unit but would you say that this is an employer unit a craft unit a plant unit homes and all the employees at the hillsboro facility he left the company in two thousand and seventeen and was not replaced his office remained vacant in full fully equipped so that managers visiting from alaska could use his office managers  however what i would say is that you know this is a litigation that's been going home for a few years now these employees voted twenty thousand to be represented by the union and the board you know took it went through the process to  find facts and find that it was appropriate for them to be included in the you know and they voted yes they do want to be included i think that would defer and wait for an arbitration decision would be to you know to lay employees rights under the act and i don't see any reason to do that thank you i like to address a couple issues very quickly st with respect to the strategy had the regional director found that the unit was not appropriate for he had the full discretion to direct an election in the stand alone unit which would not have resulted in any request for review or any objections from the employer so there were two options the only it was not only he was not choosing between dismissing the petition or adding the alaska based employees he could have directed an an appropriate unit all those cases come up in a regular r c petition none of them occur in this self determination self determinant determination context in the self determination context you ask if is an identifiable segment if it is not an identifiable segment as a result directors decision states it ends the analysis you don't conduct a community of interest analysis that doesn't necessarily mean the petition is dismissed it just means that you do not add them to the group finally as it concerns farm well what i'm saying is is when you look at this case decided by the board authority that they cited all of it none of it speaks to self determination context all of it goes to cases that had to do with a standard for a unit will always be an r c it can have an armor glow component to it so i think if for example every case will have this one with nineteen r c a bunch of numbers every one will be an