Full opinion text
Enforcement denied by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge DUNCAN joined. Judge DUNCAN wrote a separate concurring opinion. Judge DIAZ wrote an opinion concurring in part and dissenting in part. HAMILTON, Senior Circuit Judge: Before the court are two cases that we have consolidated. In the first case, Enterprise Leasing Company — Southeast, LLC (Enterprise) seeks review of a National Labor Relations Board (the Board) decision and order finding that Enterprise violated § 8(a)(1) and (a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain with Local 391 of the International Brotherhood of Teamsters (Local 391) after the Board certified Local 391 as the exclusive bargaining representative of a unit of Enterprise’s employees. The Board has filed an application for enforcement of its order. In the second case, Huntington Ingalls, Inc. (Huntington) petitions for review of a Board decision and order finding that Huntington violated § 8(a)(1) and (a)(5) of the NLRA, id., by refusing to bargain with the International Association of Machinists and Aerospace Workers (Machinists Union) after the Board certified the Machinists Union as the exclusive bargaining representative of a unit of Huntington’s employees. The Board has filed an application for enforcement of its order. The determinative question in these cases is whether the Board had a quorum at the time it issued its decisions in 2012. See New Process Steel, L.P. v. NLRB, 560 U.S. 674, 130 S.Ct. 2635, 2639-45, 177 L.Ed.2d 162 (2010) (holding that, following a delegation of the NLRB’s powers to a three-member group, two members cannot continue to exercise that delegated authority once the group’s (and the Board’s) membership falls to two). Resolution of this question turns on whether the three appointments by the President of the United States to the Board on January 4, 2012 are valid under the Recess Appointments Clause of the United States Constitution, which provides that the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const, art. II, § 2, cl. 3. If these appointments are invalid, the parties agree that the Board could not lawfully act when it issued its decisions in 2012. For the reasons stated below, we conclude that the President’s three January 4, 2012 appointments to the Board are constitutionally infirm, because the appointments were not made during “the Recess of the Senate.” Accordingly, we deny the Board’s applications for enforcement of its orders. I The two cases currently before the court have a similar procedural history. Local 391 prevailed in an election conducted by the Board. Before a Board Hearing Officer in a representation case, Enterprise challenged the election result on multiple fronts. Enterprise lost the representation case before a Board Hearing Officer and lost again on review by the Board. Following these losses, Enterprise refused to bargain with Local 391. Local 391 initiated an unfair labor practice proceeding against Enterprise, and, in response, Enterprise contended, among other things, that the Board lacked a quorum to issue a decision because the President’s three January 4, 2012 appointments to the Board were invalid under the United States Constitution. The Board rejected Enterprise’s arguments and ordered Enterprise to bargain with Local 391. The Board now seeks enforcement of its decision and order. The dispute in Huntington’s case centers on the appropriate bargaining unit for Huntington’s 2,400 technical employees. Before a Board Regional Director (RD), the Machinists Union contended that a portion of Huntington’s 2,400 technical employees, namely those in the “E85 RAD-CON” department, was an appropriate bargaining unit whereas Huntington contended that the bargaining unit should consist of all 2,400 of its technical employees. The RD agreed with the Machinists Union and issued a decision and direction of election (DDE). Huntington then requested Board review of the DDE. On December 30, 2011, the Board affirmed the RD’s decision. In the ensuing election, the Machinists Union prevailed. The Board subsequently certified the Machinists Union as the exclusive representative for purposes of collective bargaining. Following certification, Huntington refused to comply with the Machinists Union bargaining request, and the Machinists Union filed an unfair labor practice charge. In that proceeding, Huntington contended, inter alia, that the Board did not have a quorum to issue a decision, because the President’s three January 4, 2012 appointments to the Board were constitutionally infirm. The Board rejected this argument and others, holding that Huntington’s refusal to bargain was unlawful. The Board seeks enforcement of this decision and order, and Huntington petitions for review of such decision. In their respective briefs, both Enterprise and Huntington raise constitutional and non-constitutional arguments. Before we can address the constitutional arguments, we must first attempt to resolve these cases on non-constitutional grounds, if possible. See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (noting that a court “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of’); see also Noel Canning v. NLRB, 705 F.3d 490, 493 (D.C.Cir.) (pursuant to Spector Motor and Ashwander, court addressed non-constitutional claims concerning company’s refusal to bargain before addressing the question of whether the President’s three January 4, 2012 appointments to the Board were constitutional), cert. granted, — U.S. —, 133 S.Ct. 2861, — L.Ed.2d —, 2013 WL 1774240 (U.S. June 24, 2013). In addressing the non-constitutional arguments advanced by both Enterprise and Huntington, we first will turn to Enterprise’s case and then to Huntington’s case. II A Enterprise operates an Alamo and National car rental facility at the Raleigh-Durham International Airport (RDU Airport). On November 9, 2010, Local 391 filed a petition with the Board seeking to represent a unit of Enterprise’s employees. Enterprise and Local 391 signed an election agreement, and the Board conducted an election by secret ballot at Enterprise’s facility from 7:00 p.m. to 9:00 p.m. on Thursday, December 16, 2010, and from 10:00 a.m. to 12:00 p.m., and again from 3:00 p.m. to 5:00 p.m., on Friday, December 17, 2010. At some point before the election, Local 391 mailed a flyer to all eligible voters which included a photograph of employee and eligible voter Roberto Henriquez without his prior authorization for Local 391 to use his photograph. One side of the flyer contained the words, ‘Tes. Everybody can make the right choice!! To end Unfair treatment & Unfair pay!!” The words were surrounded by the photographs of eight employees of Enterprise, including Henriquez. The other side of the flyer had a note that asked employees to let Local 391 be their voice for better pay, benefits, and treatment. The photograph of Henriquez was taken by Chafik Omerani, an Enterprise employee and Local 391 supporter, at a food court in a shopping mall near the RDU Airport. On the first day of the election, December 16, 2010, Wake County, North Carolina, where the RDU airport is located, experienced inclement weather. Weather records establish that between 1/10 and 1/8 of an inch of freezing rain and 1/2 to one inch of snow fell in Wake County on December 16. No additional freezing rain or snow fell on December 17, and there was no snow accumulation at the RDU airport or Enterprise’s facility on either day. As a result of the inclement weather, area schools and some businesses were closed on December 16. The opening of schools and some government businesses was delayed on December 17. The RDU Airport and Enterprise’s facility at the airport remained open during regular hours on both December 16 and 17. Although Enterprise’s facility remained open, it received ten employee “call-outs” on December 16 and four “call-outs” on December 17. No evidence was presented concerning Enterprise’s normal or average call-out rate. There was also no evidence presented indicating that any eligible Enterprise employee was unable to vote on account of the weather. Moreover, neither party sought to postpone the election on account of the weather. On December 16, 2010, Local 391 organizer Steve Jones entered Enterprise’s facility approximately thirty minutes before the start of the election. He approached the customer service counter where two Enterprise Customer Service Representatives, one of whom was Damion Knowles, were seated. After greeting Knowles, Jones asked him how his interview had gone for a management position that Knowles had mentioned in an earlier conversation between the two. Knowles replied that the interview went well and that with more experience he would receive his own store in Dallas, Texas. Jones noted that the International Brotherhood of Teamsters had members in the Dallas area and asked Knowles if he still had Jones’ business card. After Knowles answered affirmatively, Jones stated, “[w]ell, keep it, you know, you never know, you might need me sometime. You never want to burn any bridges.” Eighty-seven votes were cast in the election. Forty-four employees voted for Local 391; forty-one against. There were two challenged ballots, an insufficient number to affect the outcome of the election. On December 27, 2010, Enterprise filed six objections to the election with the RD. A hearing was ordered before a Board Hearing Officer. On February 7, 2011, the Board Hearing Officer issued his Report and Recommendation recommending that Enterprise’s objections be overruled and that a Certification of Representative issue. Enterprise then filed exceptions with the Board to the Board Hearing Officer’s Report and Recommendation. On December 29, 2011, the Board adopted the Board Hearing Officer’s recommendations to overrule Enterprise’s objections, and the Board certified Local 391 as collective bargaining representative of the Enterprise unit employees. On January 17, 2012, Local 391 asked Enterprise to bargain with it, and Enterprise refused. On February 3, 2012, Local 391 filed an unfair labor practices charge with the Board alleging that Enterprise violated the NLRA by refusing to bargain with it. On February 27, 2012 the Board’s General Counsel issued a complaint against Enterprise. On March 14, 2012, the Board’s General Counsel filed a motion for summary judgment. On April 18, 2012, the Board granted the Board’s General Counsel’s motion for summary judgment, holding that Enterprise violated § 8(a)(1) and (a)(5) of the NLRA by refusing to bargain with Local 391. The Board’s order requires Enterprise to cease and desist from engaging in the unfair labor practices found and from in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA. Affirmatively, the Board’s order requires Enterprise to bargain with Local 391 upon request and embody any understanding reached in a signed agreement. The order also requires Enterprise to post a remedial notice and, if appropriate, distribute copies of the notice electronically. B Section 8(a)(1) of the NLRA makes it an unfair labor practice to “interfere with, restrain, or coerce employees in the exercise of [their rights under the NLRA],” while § 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(1), (5). Enterprise admits that it refused to bargain with Local 391, but claims that the Board erred in refusing to set aside the results of the election. A union may obtain certification in one of two ways: through an election or the employer’s voluntary recognition. Lincoln Park Zoological Soc. v. NLRB, 116 F.3d 216, 219 (7th Cir.1997). Here, of course, there was no voluntary recognition. Thus, we must address whether Local 391 obtained recognition through a valid election. “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). Consequently, we presume the validity of a Board-supervised election and will overturn such an election only if the Board has clearly abused its discretion. NLRB v. Media Gen. Operations, Inc., 360 F.3d 434, 441 (4th Cir.2004); NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707 (4th Cir.1999). A party seeking to have an election set aside bears a heavy burden and must prove by specific evidence not only that improprieties occurred, but also that they prevented a fair election. Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 262 (4th Cir.2000). When evaluating whether a party has met this heavy burden, we must be “mindful of the real world environment in which an election takes place.” NLRB v. Coca-Cola Bottling Co., 132 F.3d 1001, 1003 (4th Cir.1997). “Although the Board strives to maintain laboratory conditions in elections, clinical asepsis is an unattainable goal. An election is by its nature a rough and tumble affair, and a certain amount of exaggerations, hyperbole, and appeals to emotion are to be expected.” Id. (citation and internal quotation marks omitted). The Board’s “findings of fact are conclusive as long as they are ‘supported by substantial evidence on the record considered as a whole.’ ” Evergreen Am. Corp. v. NLRB, 531 F.3d 321, 326 (4th Cir.2008) (quoting 29 U.S.C. § 160(e)). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “While the Board may not base its inference on pure speculation^] it may draw reasonable inferences from the evidence.” Overnite Transp. Co. v. NLRB, 280 F.3d 417, 428 (4th Cir.2002) (en banc) (alteration, ellipsis, and internal quotation marks omitted). 1 Enterprise first contends that the results of the election must be set aside because Local 391 used a photograph of Enterprise employee Roberto Henriquez on a campaign flyer without Henriquez’s prior authorization. In rejecting this contention, the Board found that, at most, Local 391 “implicitly misrepresented that Henriquez authorized the use of his image in the flyer.” Enterprise Leasing Co.—Southeast, LLC, 2011 WL 6853530, at *2 (N.L.R.B.2011). According to the Board, such misrepresentation did not warrant setting aside the results of the election, because there was no evidence that Local 391 in fact misrepresented Henriquez’s support for Local 391 or that he objected to Local 391’s use of his photograph on the flyer. The Board also emphasized that there was no evidence of pervasive misrepresentations regarding Enterprise employee authorization for use of photographs or any claim that eligible Enterprise employees were unable to recognize the flyer as anything else than Local 391 propaganda. In Midland National Life Insurance Company, 263 NLRB 127 (1982), which was approved by this court in Case Farms of North Carolina, Incorporated v. NLRB, 128 F.3d 841 (4th Cir.1997), the Board outlined the standard regarding misrepresentations occurring in the context of campaign statements. Midland, 263 NLRB at 129-33. Under the Midland standard, the Board “no longer probe[s] into the truth or falsity of the parties’ campaign statements” nor will it “set elections aside on the basis of misleading campaign statements.” Id. at 133; see also Case Farms, 128 F.3d at 844 (quoting Midland). The only exception to the Midland standard concerns forged documents. Midland, 263 NLRB at 133. The premise behind this particular exception evidences the Board’s central concern that employee voters not be deceived with respect to the true nature of the statement in campaign propaganda. Id. In outlining the Midland standard, the Board displayed'its faith in the employee voters’ ability not to accept what they are told at face value, but, instead, to weigh it according to its potential for bias. Accordingly, the Board determined that it would “set an election aside not because of the substance of the representation, but because of the deceptive manner in which it was made, a manner which renders employees unable to evaluate the forgery for what it is.” Id. The Board further distinguished misrepresentations, which would not require the election to be set aside, from other types of campaign misconduct, “such as threats, promises, or the like,” which if adequately proven would warrant setting aside the results of an election. Id. In this case, we cannot say that the Board misapplied “the permissive Midland standard.” Case Farms, 128 F.3d at 845. Even if, as Enterprise suggests, the evidence proved that Henriquez did not authorize the use of his image, such evidence would still amount to a mere misrepresentation in the campaign context. Local 391’s conduct involved no forgery, and there is nothing in the record to indicate that the eligible Enterprise employees’ ability to recognize the flyer as campaign propaganda was compromised. Moreover, the Board’s rejection of Enterprise’s campaign flyer claim is consistent with its prior precedent. See Somerset Valley Rehab. & Nursing Center, 2011 WL 4498270, at **1-3 (N.L.R.B.2011) (overruling objection where a union falsely quoted union supporters as actually stating that they would vote for the union); BFI Waste Servs., 343 NLRB 254, 254 n. 2 (2004) (overruling objection where a union arguably misrepresented quotes from two employees); Champaign Residential Servs., Inc., 325 NLRB 687, 687 (1998) (overruling objection where two employees did not know that their signatures in support of a union would be shared with others on a flyer); Findlay Indus., Inc., 323 NLRB 766, 766 n. 2 (1997) (overruling objection where a union, at most, misrepresented that two employees would vote for it). In support of its position, Enterprise asserts that the Board has established a per se rule preventing unions and employers from using the photograph of an employee without the employee’s prior authorization, citing Brentwood At Hobart v. NLRB, 675 F.3d 999 (6th Cir.2012), Sprain Brook Manor Nursing Home, LLC, 348 NLRB 851 (2006), Allegheny Ludlum Corporation, 333 NLRB 734 (2001), and Sony Corporation of America, 313 NLRB 420 (1993). However, the Board’s precedent has not established such a per se rule. In Brentwood At Hobart, the court merely recited an unremarkable proposition that unauthorized photos “may taint” an election, but found that the employer waived its claim by failing to present it to the Board. 675 F.3d at 1001, 1005-07. Thus, the court did not recognize a per se rule. In Sprain Brook, the Board declined to overturn an election because the union had purportedly photographed employees without their consent and then used the photographs in its campaign materials. 348 NLRB at 851. The Board noted that the union had obtained signed consent forms from employees prior to using their photographs, id., but it did not hold that the use of employee photographs without such consent is per se objectionable. In Allegheny Ludlwm, the Board set forth five prerequisites for permissible employer videotaping of employees for a campaign video which included assurances that an employee’s participation was voluntary, 333 NLRB at 743; it also explicitly stated that it was not creating a per se rule that “employers must obtain employees’ explicit consent before including their images in campaign videotapes.” Id. at 744. Further, to the extent that its earlier decision in Sony was being construed as establishing a per se rule requiring explicit employee consent, the Board in Allegheny Ludlum said that such a construction was “unintended and unwarranted.” Id. In sum, we hold that the Board’s determination that the results of the election should not be set aside because Local 391 used a photograph of Enterprise employee Roberto Henriquez on a campaign flyer without Henriquez’s prior authorization is supported by substantial evidence. 2 Enterprise also contends that the election results should be set aside because an ice/snow storm on December 16, 2010 in the Wake County, North Carolina area caused a determinative number of eligible Enterprise employees not to vote in the election held on December 16 and 17. Adopting the reasoning of the Board Hearing Officer, the Board concluded that Enterprise failed to show that the severity of the weather conditions reasonably denied eligible Enterprise employees an adequate opportunity to vote. In In re Baker Victory Services, Inc., 331 NLRB 1068 (2000), the Board stated that an election “should be set aside where severe weather conditions on the day of the election reasonably denied eligible voters an adequate opportunity to vote and a determinative number did not vote.” Id. at 1070; see also V.I.P. Limousine, Inc., 274 NLRB 641, 641 (1985) (noting that an election should be set aside where the inclement weather “affect[s] the electorate as a whole” and “[a] substantial number of employees did not vote in the election”). Applying this standard, we find no reason to disturb the Board’s decision. Neither the RDU Airport nor Enterprise’s car rental facility closed at any time on December 16 or 17, 2010 because of the inclement weather. Moreover, there is no evidence that the weather conditions affected the ability of any eligible Enterprise employee to vote, especially when the weather improved on December 17, a day where eligible Enterprise employees were offered two different time periods in which to vote. Enterprise turns our attention to the testimony of Jill Trout, Enterprise’s Human Resources Manager, that Enterprise received about ten “call outs” on December 16, 2010 and four more on December 17. However, Enterprise presented no evidence regarding its normal call-out rate, and, thus, the meaning of this evidence cannot be discerned. Moreover, Trout testified that she had no personal knowledge of the reason for the call-outs, nor did she have any knowledge of any eligible Enterprise employee who did not vote on account of the weather. Under such circumstances, Trout’s testimony sheds no light on whether eligible Enterprise employees were denied an opportunity to vote. The Board’s ruling on Enterprise’s contention concerning the inclement weather is consistent with its reasoned decisions. For example, in V.I.P. Limousine, the Board understandably set aside an election where twenty inches of snow fell around the election site in Connecticut during the polling period, “making navigation of the roads extremely difficult, if not impossible.” 274 NLRB at 641. Similarly, in Baker Victory, the Board properly set aside an election where more than four feet of snow had fallen in the City of Buffalo during the two-week period preceding the election, and a state of emergency had been declared for the city during the week of the election. 331 NLRB at 1069. Unlike the weather conditions in V.I.P. Limousine and Baker Victory, there is no evidence that weather conditions impacted the ability of the eligible Enterprise employees to vote. As noted above, Enterprise’s car rental facility remained open throughout the inclement weather on December 16, 2010, and there is no evidence that weather was a serious issue when the polls were open on December 17. Accordingly, the Board’s determination that the results of the election should not be set aside because of the ice/snow storm on December 16 in the Wake County, North Carolina area is supported by substantial evidence. 3 Enterprise contends that the results of the election should be set aside because union organizer Steve Jones told Enterprise employee Damion Knowles in the presence of other Enterprise employees that “[y]ou never want to burn any bridges.” In support of this contention, Enterprise heavily relies on the subjective reaction of Knowles, who says he felt physically threatened by Jones’s statement. However, adopting the reasoning of the Board Hearing Officer, the Board concluded that Jones’s statement failed to establish that the free choice of a reasonable employee would have been hindered. We agree with the Board. First off, we have recognized that the “‘[sjubjective reactions of employees are irrelevant to the question of whether there was, in fact, objectionable conduct.’ ” Media Gen. Operations, 360 F.3d at 442 (quoting Kmart Corp., 322 NLRB 1014, 1015 (1997)). This is so because the test for coercion is an objective one. Id. Second, embracing Enterprise’s argument would do harm to the precedent that recognizes that “election campaigns, by their nature, are rough and tumble affairs, and they typically involve elements of pressure or inducement.” Id. A certain amount of hyperbole and exaggeration is expected in an election campaign, which is why the responsibility for assessing the relevant facts and deciding whether the union’s conduct interfered with a reasonable employee’s free and fair choice in a representation election lies with the Board. Id. This case is no different. Third and finally, we agree with the Board that, even if Knowles’ statement could somehow be construed as a threat, the statement merely implied that Knowles should not forsake a good relationship with Jones, even if Knowles moved into management, because no one knows what the future may bring. As such, the statement would not coerce a voter or cause a voter to change his or her vote. Cf id. (holding that a union- agent did not engage in coercive conduct when he told employees that they should sign a petition stating they would vote for the union to “ ‘separate the men from the boys’ ”). In sum, the Board’s determination that the results of the election should not be set aside because Jones told Knowles that “[y]ou never want to burn any bridges” is supported by substantial evidence. Ill A Huntington, formerly Northrop Grumman Shipbuilding, operates a shipbuilding and dry dock facility in Newport News, Virginia. Its principal business is the construction, repair, and overhaul of United States Navy vessels, particularly nuclear-powered aircraft carriers and submarines. The construction of an aircraft carrier is a complicated task. Its construction requires a carefully planned and highly integrated design and manufacturing process involving thousands of employees. The lifespan of an aircraft carrier construction project, from the time the keel is laid through completion, takes between five and six years. Submarines are smaller than aircraft carriers but similarly challenging to design and construct. The process used to build submarines is not unlike that used for aircraft carriers. Huntington also performs considerable refueling and overhaul work. Nuclear-powered aircraft carriers require refueling of their nuclear core after about twenty-five years of operation. This intricate process requires over three years to complete. During refueling, Huntington also performs a general overhaul of the ship, updating computer, electronic, and combat systems. As with initial construction, refueling and overhaul involves the integrated work of thousands of employees. Huntington employs approximately 18,-500 people. It divides its workforce into four categories — professional, administrative, production and maintenance, and technical. This case concerns Huntington’s approximately 2,400 technical employees. Technical employees perform non-manual work requiring some sort of specialized training. Huntington groups technical employees into ten job classifications: (1) quality inspectors; (2) test technicians; (3) designers; (4) engineering technicians; (5) dimensional control technicians; (6) laboratory technicians; (7) chemical handlers; (8) planners; (9) radiological control technicians (RCTs); and (10) calibration technicians. The technical employees in almost all of these job classifications work in various divisions and departments, and work at various locations throughout the shipyard. The RCTs and calibration technicians are only assigned to one department within Huntington’s Nuclear Services Division called “E85 RADCON.” Technical employees are salaried, have their own labor and salary grades separate from all other employees and are paid under the same bi-weekly payroll system. They are covered by the same personnel policies and are eligible for the same pension, 401(k), medical, dental, insurance, and sick leave plans and other benefits programs, as are all unrepresented salaried employees. They all perform non-manual work of a technical nature, requiring the exercise of specialized training, some on-the-job and others requiring additional extensive coursework. Seven of the ten technical classifications have some limited radiation worker training. Aside from the RCTs, who have extensive radiological control training, designers, test technicians, quality inspectors, laboratory technicians, calibration technicians, and chemical handlers all are given dosimetry training of two to five days because their duties require that they enter radiological controlled areas. Many employees do not enter such areas. Quality inspectors provide oversight for the construction, maintenance and overhaul, and refueling of the nuclear vessels. They use drawings prepared by other technicians to ensure that all construction and repair work is performed within the specifications of the drawing requirements. Test technicians perform a variety of nuclear and non-nuclear mechanical and electrical testing on a ship’s component systems. The non-nuclear test technicians work on propulsion and combat systems while the nuclear test technicians work on various nuclear systems. Both nuclear and non-nuclear test technicians help establish system conditions and execute work control documents during the shipbuilding process. Designers create drawings and blueprints that serve as guides for the manufacturing of ship components and ship assembly. They frequently visit the ships to analyze various components and systems on which they are working. Engineering technicians typically are former Navy personnel with aptitude in mechanical and electrical systems. They interface with engineers, designers, and the construction workers who build ship systems. They also prepare technical work documents that guide certain work processes. Dimension control technicians provide metrology services. They use precision instruments to measure the dimensions of large ship structures and machinery foundations so that components can be constructed to fit together properly. They map these materials with photogrammetric instruments and laser trackers, which requires extensive training. Laboratory technicians test production materials and elements generated by shipbuilding. They perform environmental sampling, metals and coating analysis, water chemistry analysis, and mechanical and metallurgy testing. They also examine and test materials generated during nuclear work. Chemical Handlers dispose of hazardous materials generated during shipbuilding and overhaul. They primarily handle the radioactive waste generated during nuclear work. Planners review ship designs, technical work documents, and other drawings to determine the proper sequencing of work and material procurement. They determine needed materials and when they need to be delivered. RCTs are part of a department within Huntington’s Nuclear Services Division called “E85 RADCON.” There are approximately 140 RCTs in the E85 RAD-CON department. There are also other technical employees in the department, namely, twenty laboratory technicians, three calibration technicians, and sixty RCT trainees. RCTs essentially perform a safety function: providing independent radiological oversight for nuclear work areas. RCTs track radiation levels and ensure that individual employees’ exposure remains within safe limits. They are also responsible for ensuring that employees meet the radiological control standards required for Huntington to maintain its license to work with nuclear materials. Huntington’s overall radiological control philosophy is known as “ALARA” (As Low As Reasonably Achievable), and RCT independence is the key to that approach. Under ALARA, although all nuclear workers are expected to minimize both their personal exposure and wider contamination, RCTs are responsible for maintaining protocols and achieving the required containment. Therefore, under the ALARA program, RCTs are in a separate department from the rest of the work force in order to facilitate oversight that is independent of both production and quality control. RCT oversight has two prongs: maintaining radiological control areas and performing routine radiological surveys. RCTs set up control areas to restrict access near nuclear reactors, work sites, components, and materials, both on ships and in the shops. They use Technical Work Documents (TWDs) and drawings to make a map of areas that require controls and then survey to establish the baseline radiation levels and find “hot spots,” which are then marked on the maps. In monitored controlled areas, RCTs set up barriers, signs, and employee checkpoints. In less restricted control areas, RCTs simply leave an area roped off with signs designating the requirements for entry. At monitored control areas with established checkpoints, RCTs observe and restrict employee traffic. Only employees with radiological safety training can enter, and RCTs question them about their jobs and the materials and tools they are taking in with them. Then, RCTs assign each employee a dosimeter to record the employee’s dose of radiation, and brief employees about the hot spots before allowing entry. As employees leave, RCTs collect the dosimeters, note employees’ exposure, confirm that they followed control protocols and screen materials that they bring out of the area. When they observe contamination or irregularity, they order that work be stopped and submit a radiological deficiency report. RCTs conduct routine radiological surveys around the shipyard on rotations ranging from daily to annually, in addition to performing surveys that are required during particular tests and projects. For “contamination surveys,” RCTs wipe surfaces to test for contaminants and in “radiation surveys,” they use a probe to take contact or ambient radiation readings. Surveys can take anywhere from fifteen minutes to two hours, depending on the type of survey required. Laboratory technicians within the E85 RADCON department test the materials collected by the RCTs, help calibrate dosimetry equipment, and screen potentially contaminated materials that require laboratory tests. E85 RADCON calibration technicians maintain and calibrate the instruments used by RCTs.- As a result, they are qualified to operate all of the instruments that RCTs use. They interact with RCTs when they pick up and replace faulty equipment. RCT trainees perform some of the routine surveys and monitor limited control points during their on-the-job training. They can set up the area and allow certain workers inside. Occasionally, other technical employees perform work similar to the surveys performed by RCTs. Environmental laboratory technicians perform radiation and contamination surveys of drainage ditches and outfalls to make sure that various contaminants do not spread to the environment, but it is unclear from the record how often they do this. Nuclear chemical handlers are qualified to do radiation and contamination surveys on their vehicles, although, again, the record does not show how often they actually do so. There are no temporary transfers into or out of E85 RAD-CON classifications. However, there have been permanent transfers. There is evidence that RCTs have transferred into other technical classifications, but no evidence about how many or how often this occurs. RCTs receive highly specialized training. They attend orientation at the shipyard for their first month and then leave for a twenty-two week training course run by the United States Navy. This training requires math and physical sciences aptitude and only half of the RCT trainees graduate. After graduation, Huntington conducts five weeks of training at its facility and then administers a full-day oral examination. RCTs must take requalification training every thirty months and attend “spill drills” to practice responding to emergencies on a quarterly basis. Other technical employees receive, at most, only a few days of radiological safety training. Like most other employees, RCTs are required to possess government security clearance of “confidential” or higher. RCTs use specialized tools, including approximately twenty-seven radiation detection instruments. They receive orange kit bags and additional supplies such as “wipes, laws, tweezers, [and] bags.” Only RCTs receive the orange bags. A few other technical classifications are qualified to use some of these tools, including environmental laboratory technicians and nuclear chemical handlers who perform occasional surveys. RCTs have daily, work-related contact with all employees who enter radiological control areas. Most of these are trades employees (painters, machinists, pipefitters, etc.), supervisors, and other non-technical employees. At certain stages during refueling overhauls and during the final months of new ship construction, RCTs have increased contact at control points with other technical employees, mostly quality inspectors and test technicians, but also designers and engineering.technicians. Contact with employees at the control points is brief and involves monitoring them as described above, not working together to perform technical or production-oriented jobs. During new construction, there is a period of five or more years before RCTs are present on the ships. Even during refueling overhauls, which require radiological oversight from the beginning, RCTs’ contact with other technicians varies substantially throughout the period of the ship’s availability depending on the phase of production and whether RCTs are assigned to the ship or the shops. B On March 3, 2009, the Machinists Union petitioned the Board to represent the RCTs in the E85 RADCON department. In the alternative, the Machinists Union agreed to proceed to an election in a departmental unit of all of the technical employees in the E85 RADCON department. Huntington argued that the smallest appropriate unit had to include all of its 2,400 technical employees. Following a hearing, the RD issued a DDE on May 29, 2009, finding that a unit consisting of the technical employees in the E85 RADCON department (namely, the RCTs, calibration technicians, laboratory technicians, and RCT trainees) was appropriate for purposes of collective bargaining. Huntington requested Board review of the DDE, contending that an appropriate unit must include all of its 2,400 technical employees. On December 30, 2011, the Board affirmed the RD’s decision. In the ensuing Board-conducted election, the technical employees of the E85 RADCON department voted for representation by the Machinists Union. The Board subsequently certified the Machinists Union as the exclusive representative for purposes of collective bargaining. Following certification, Huntington refused to comply with the Machinists Union bargaining request in order to contest the validity of the certification. The Machinists Union filed an unfair labor practices charge, and the Board’s General Counsel issued a complaint alleging that Huntington’s refusal was unlawful. The General Counsel subsequently filed a motion for summary judgment, which Huntington opposed. Huntington claimed once again that the bargaining unit must include all 2,400 of Huntington’s technical employees. Alternatively, Huntington argued that the Board lacked a quorum to issue its decision and order. On August 14, 2012, the Board issued a decision and order granting the motion for summary judgment, finding that Huntington’s refusal to bargain was unlawful. The Board’s decision and order requires Huntington to cease and desist from its unlawful conduct and from, in any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA. Affirmatively, the Board’s decision and order requires Huntington to bargain with the Machinists Union upon request and embody any understanding reached in a signed agreement. The decision and order also requires Huntington to post a remedial notice and, if appropriate, distribute copies of the notice electronically. C Section 9(a) of the NLRA provides that a union will be the exclusive bargaining representative if chosen “by the majority of the employees in a unit appropriate for” collective bargaining. 29 U.S.C. § 159(a). Section 9(b) authorizes the Board to “decide in each case whether, in order to assure the employees the fullest freedom in exercising the rights guaranteed by [the NLRA], the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.” Id. § 159(b). The Supreme Court, in construing § 9(b), has stated that the determination of an appropriate unit “lies largely within the discretion of the Board, whose decision, if not final is rarely to be disturbed.” South Prairie Constr. Co. v. Operating Eng’rs, Local 627, 425 U.S. 800, 805, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (citation and internal quotation marks omitted). Further, the Board is possessed of the widest possible discretion in determining the appropriate unit. Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531, 534 (4th Cir.1999). Section 9(b), however, does not direct the Board how it is to decide in a given case whether a particular grouping of employees is appropriate. Accordingly, the Board’s selection of an appropriate unit “involves of necessity a large measure of informed discretion.” Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). Nothing in the NLRA requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the NLRA only requires that the unit be “appropriate.” Sandvik Rock, 194 F.3d at 534; see also Overnite Transp. Co., 322 NLRB 723, 723 (1996) (“The Board, however, does not compel a petitioner to seek any particular appropriate unit. The Board’s declared policy is to consider only whether the unit requested is an appropriate one, even though it may not be the optimum or most appropriate unit for collective bargaining.”). As the Supreme Court has stated, “employees may seek to organize ‘a unit’ that is ‘appropriate’ — not necessarily the single most appropriate unit.” Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991). The focus of the Board’s determination begins with the bargaining unit sought by the petitioner, because, under § 9(d) of the NLRA, “the initiative in selecting an appropriate unit resides with the employees.” Id. Further, “[i]n many cases, there is no ‘right unit’ and the Board is faced with alternative appropriate units.” Corrie Corp. of Charleston v. NLRB, 375 F.2d 149, 154 (4th Cir.1967). It is within the Board’s discretion to select among different potential groupings of employees in determining an appropriate unit. Fair Oaks Anesthesia Assocs., P.C. v. NLRB, 975 F.2d 1068, 1071 (4th Cir.1992). 1 In this case, the RD applied the bargaining unit standard the Board has applied in cases involving technical employees. Under this standard, a unit consisting of only a subset of an employer’s technical employees is appropriate “when the employees in the requested unit possess a sufficiently distinct community of interest apart from other technicals to warrant their establishment as a separate appropriate unit.” Trw Carr Div., 266 NLRB 326, 326 n. 4 (1983). Under the Trw Carr standard, the burden is on the union seeking representation of the subset of technical employees to demonstrate the distinct community of interest. Id. at 326 n. 3 (“Showing that some technical employees perform their duties in another phase of the Employer’s operation is not enough to establish affirmatively why the segmented group of technical employees should be represented separately.”); see also Bendix Corp., 150 NLRB 718, 720 (1964) (“But it is not enough for the Petitioner to show that it is willing to represent all the electronic technicians at the plant; it must also establish affirmatively why they should be represented separately.”). The RD concluded that Huntington’s RCTs possess a distinct community of interest from all other technicals outside of the E85 RADCON department. The RD noted that the RCTs, inter alia, possess unique skills, undergo intensive, lengthy, and specialized training, have distinct job functions, utilize special tools and equipment, do not temporarily interchange with other technicals, and have separate supervision. The RD further noted that the level of functional integration and contact with non-radiological control technicals was not so substantial as to negate their separate and distinct community of interest. With regard to the RCT trainees, calibration technicians, and laboratory technicians in the E85 RADCON department, the RD concluded that these employees share a community of interest with the RCTs sufficient to require their inclusion in the bargaining unit. The RD noted that the calibration technicians and laboratory technicians are in the same department, have job duties functionally related and integrated in that all are responsible for radiological control at the facility, are trained to use the same specialized equipment, work out of the E85 RADCON facilities, and are under the same departmental supervision hierarchy. The RD also noted that most of the laboratory technicians in the E85 RADCON department have progressed from the RCT classification and that laboratory technicians generally do not interact with the laboratory technicians outside of the E85 RADCON department. With regard to the calibration technicians in the E85 RADCON department, the RD noted that, while not required to possess the same training or perform the same duties as the RCTs, these employees work on and operate the instruments and equipment used by the RCTs and are responsible for ensuring that these instruments and equipment are in working order. With regard to the RCT trainees, the RD noted that it was undisputed that these employees received the same training as the RCTs in order for them to become monitors in the next step of their job progression. Based on all of this evidence, the RD held that a departmental unit of technical employees (RCTs, laboratory technicians, calibration technicians, and RCT trainees) in the E85 RADCON department constituted a functionally distinct group with a sufficiently distinct community of interest as to warrant a separate unit appropriate for the purposes of collective bargaining. On review of the RD’s decision, the Board analyzed the case under both the Trw Carr standard and the “community of interest” standard, which the Board clarified in Specialty Healthcare & Rehab. Ctr. of Mobile, 2011 WL 3916077 (N.L.R.B. 2011), a case decided after the RD’s decision. Following a line of Board authority, Specialty Healthcare made clear that the appropriate bargaining unit determination turns on whether the petitioned-for employees share a “community of interest.” Specialty Healthcare, 2011 WL 3916077, at *14 (citation and internal quotation marks omitted). An employer challenging the Board’s unit determination under the community of interest standard has the burden to prove that the bargaining unit selected is “utterly inappropriate.” Sandvik Rock, 194 F.3d at 534 (citation and internal quotation marks omitted); see also Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C.Cir.2008) (noting that, if the objecting party shows that excluded employees “share an overwhelming community of interest” with the employees in the otherwise appropriate unit, then there is no legitimate basis to exclude them); Specialty Healthcare, 2011 WL 3916077, at *17 (noting that “the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit”). In Specialty Healthcare, the Board noted that additional employees share an overwhelming community of interest with the petitioned-for employees only when there is no legitimate basis upon which to exclude the employees from the larger unit because the traditional community of interest factors “ ‘overlap almost completely.’ ” 2011 WL 3916077, at *16 (quoting Blue Man Vegas, 529 F.3d at 422). In analyzing the case under both of these standards, the Board first turned to the Specialty Healthcare standard. Applying this standard, the Board concluded that the E85 RADCON technical employees shared a community of interest under the Board’s community of interest criteria. The Board noted that the E85 RADCON technical employees all worked in the same department under common supervision and their work had a shared purpose and was functionally integrated. The Board further noted that the RCTs monitor employees and collect samples when appropriate; they rely on laboratory technicians to analyze the samples they collect; and calibration technicians keep the RCTs’ instruments in proper working order. The Board noted that RCT. trainees assist RCTs and operate limited control checkpoints as they learn the job, and that many of the E85 RADCON laboratory technicians used to be RCTs. The Board rejected Huntington’s argument that the technical employees outside of the E85 RADCON department shared an overwhelming community of interest with the E85 RADCON technical employees. The Board noted that all of the facts relied upon by Huntington (namely, that all of Huntington’s technicians operate under the same salary structure and personnel policies, share break facilities, and enjoy the same benefits) were outweighed by the facts distinguishing the E85 RADCON technicians from the other technicians. In so noting, the Board emphasized that the RCTs’ job function was to ensure workplace safety and control radioactive contamination at the shipyard, a task distinct from the production-oriented jobs of technical employees outside of the E85 RAD-CON department. Consequently, the Board concluded that the RCTs are not functionally integrated into the production work flow of the shipyard, but instead have an independent oversight role, and often their role conflicted with the production and quality control goals of other technical employees. The Board also emphasized that, in keeping with the RCTs’ independent oversight role, Huntington had placed all the RCTs in a separate department, under separate supervision from its production employees. In addition, work contacts between the RCTs and other technical employees were brief and limited to the same radioactive screening at safety checkpoints that thousands of trades employees receive, with only a few exceptions during particular projects. The Board further emphasized that the RCTs receive extensive and highly-specialized radiological training and use numerous radiation detection instruments specific to their job; as a result, they possess unique skills. Based on this evidence, the Board concluded that the technical employees in the E85 RAD-CON department shared a community of interest sufficiently distinct from Huntington’s production-oriented technical employees at the shipyard. The Board then turned to the standard set forth in Trw Carr. The Board agreed with the RD’s extensive reasoning, discussed above, supporting his conclusion that, under the Trw Carr standard, the technical employees in the E85 RADCON department shared a community of interest distinct from that which they share with the production-oriented technical employees in Huntington’s shipyard. Accordingly, the Board concluded that, under the Trw Carr standard, a unit of all of the technical employees in the E85 RADCON department was an appropriate unit for collective bargaining. 2 Huntington attacks the Specialty Healthcare standard on a variety of fronts. For example, Huntington argues that the Board’s Specialty Healthcare standard, in particular the overwhelming community of interest portion of that standard, improperly gives controlling weight to a union’s extent [of organization] in the workplace and, thus, offends § 9(c)(5) of the NLRA, which provides that the Board, in making unit determinations, shall ensure that “the extent of organization shall not be controlling.” 29 U.S.C. § 159(c)(5). Huntington also argues that the Specialty Healthcare standard usurps the well-settled standard for technical employees set forth in Trw Carr. According to Huntington, the TRW Carr standard applies here, and the Board erred when it concluded under that standard that all of the technical employees in the E85 RADCON department was an appropriate unit for collective bargaining. We need not decide whether the Board erred in applying the standard set forth in Specialty Healthcare, as Huntington submits, or even address whether Specialty Healthcare is consistent with the NLRA or our decision in Lundy Packing. This is so because the Board’s decision under the Trw Carr standard is supported by substantial evidence. Under the Trw Carr standard, when technical employees work in similar jobs and have similar working conditions and benefits, the smallest appropriate unit for a group of technical employees must include all technical employees similarly employed. See Western Electric, 268 NLRB 351, 352 (1983) (“In general, the smallest appropriate unit of technical employees working in similar jobs with similar working conditions and benefits comprises all such technical employees.”); Trw Carr, 266 NLRB at 326 (“When technical employees work in similar jobs and have similar working conditions and benefits, the only appropriate unit for a group of technicals must include all such employees similarly employed.”). Thus, while the Board has found units of some, but not all, similarly situated technical employees to be inappropriate, it has also found a smaller unit to be appropriate when the petitioned-for technical unit possesses a sufficiently distinct community of interest apart from other technical units to warrant their establishment as a separate appropriate unit. See Western Electric, 268 NLRB at 352 (“Although a unit of less than all professional employees may be appropriate if that unit consists of a readily identifiable group with distinct skills and functions, the Board will not certify an arbitrarily defined segment of an employer’s similarly situated professionals.”); Trw Carr, 266 NLRB at 326 n. 4 (“[I]t is the Board’s policy to grant a unit including some, but not all, technical employees only when the employees in the requested unit possess a sufficiently distinct community of interest apart from other technicals to warrant their establishment as a separate appropriate unit.”). In this case, it was within the discretion of the Board to find that the technical employees in the E85 RADCON department possessed a sufficiently distinct community of interest apart from other technical employees at the shipyard to warrant their establishment as a separate bargaining unit. First, the RCTs perform — with the integrated support of calibration technicians, laboratory technicians, and RCT trainees in the E85 RADCON department — the unique function of providing independent radiological oversight at the shipyard. No employees outside of the E85 RADCON department perform that task. The E85 RADCON technical employees are also distinct from other technical employees because they possess unique skills, have distinct job functions, are qualified to use specialized tools and equipment, have separate supervision, and do not temporarily interchange with other technical employees. The E85 RADCON technical employees’ work contacts with other technical employees, and their level of functional integration, is not so substantial as to negate their separate and distinct community of interest. The RCTs’ work contacts with technical employees outside the E85 RAD-CON department are limited to subjecting them to the same radiological screening that other employees receive. Employees in technical classifications outside of the E85 RADCON department perform tasks that are directly related to production, as opposed to radiological safety, and the E85 RADCON technical employees are not part of the production work flow. In sum, the technical employees in the E85 RAD-CON department perform a radiological safety function that is sufficiently distinct from all other employees at the shipyard to warrant their having a separate bargaining unit. In support of its contention that the only appropriate bargaining unit must include all of Huntington’s technical employees, Huntington heavily relies on two cases in which the Board found that units not including all of the employer’s technical employees were not appropriate. Both cases involved RCTs at Westinghouse Electric Corporation’s Naval Reactors Facility (NRF) at the National Reactor Testing Station in Idaho Falls, Idaho. Westinghouse Elec. Corp., 137 NLRB 332 (1962) (Westinghouse I), and Westinghouse Elec. Corp., 300 NLRB 834 (1990) (Westing house II). According to Huntington, our case is controlled by the Westinghouse cases because Huntington’s RCTs perform similar, if not identical, duties at its facility as did the employees at issue in the Westinghouse cases. In Westinghouse /, the union sought to establish two units of technical employees, excluding industrial hygiene technicians among others. 137 NLRB at 332. The Board found that the petitioned-for units were not “functionally distinct or homogenous groups of employees, [or] administrative or departmental units.” Id. at 337. In so finding, the Board explained that NRF was “one big scientific laboratory for the development and simulation of scientific problems, and the analysis and discovery of answers to those problems.” Id. at 334. Consequently, the Board found that the “technical functions of NRF [were] thoroughly integrated,” that the skills of all the technical employees were “quite similar,” that technical employees all “receive the same training course,” and that the petitioned-for employees were not a “departmental unit.” Id. at 337. The Board concluded that all of the NRF’s technical employees “must be taken together as constituting an appropriate unit.” Id. In Westinghouse II, the RD found a bargaining unit of RCTs and chemistry technicians, excluding other technical employees, to be appropriate. 300 NLRB at 834. On review, the Board found that that unit was not appropriate. Id. at 835. The Board heavily relied on its earlier decision in Westinghouse I concerning the functional integration of the techni