193 F.3d 539 (D.C. Cir. 1999)
Associated Milk Producers, Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 98-1481
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 1, 1999Decided October 22, 1999

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Patrick W. Jordan argued the cause for petitioner.  With  him on the briefs was Bradford K. Newman.
Jill A. Griffin, Attorney, National Labor Relations Board,  argued the cause for respondent.  With her on the brief was  Frederick C. Havard, Supervisory Attorney, Linda Sher,  Associate General Counsel, John D. Burgoyne, Acting Deputy  Associate General Counsel.
Before:  Edwards, Chief Judge, Wald and Williams,  Circuit Judges.
Opinion for the Court Filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
The National Labor Relations  Board ("Board") seeks to enforce an order directing Associated Milk Producers, Inc. ("Associated Milk") to bargain in  good faith with the Chauffeurs, Teamsters and Helpers, Local  Union No. 238 ("Union").  The Board found Associated Milk  in violation of  8(a)(1) and (5) of the National Labor Relations Act ("NLRA") because Associated Milk refused to bargain with the Union after it had been certified.  See 29 U.S.C.   158(a)(1) and (5) (1994).  The Union had been certified  after an election in which 23 votes were cast for the Union, 20  against, and challenges to 4 ballots were sustained.  Associated Milk argues that the certification of the election was  invalid, because challenges to three of the ballots should have  been rejected.  Associated Milk seeks to have this court  accept the votes of the challenged employees, reverse the  Board's certification of the election, and vacate the Board's  order that Associated Milk bargain in good faith.


2
The Union challenged the votes of three employees who, it  argued, were not a part of the stipulated bargaining unit. Prior to the election, the Union and Associated Milk agreed  to a stipulated bargaining unit consisting of "employees ...  employed by the Employer at its Arlington, Iowa facility."The Board's Regional Director determined that the stipulation is unambiguous, but he then went on to treat it as if it  were ambiguous by conducting an ex parte "investigation"  which led him to conclude that the three employees did not  work at the Arlington facility.  For the most part, the Regional Director's decision, affirmed by the Board, has no basis  in a record.  This is because his so-called investigation fell  short of a hearing pursuant to which a record could have been  established. In the absence of such a record, there is no basis  upon which to uphold the judgment of the Board.  Accordingly, we remand the case to the Board for a hearing to  determine whether the challenged employees are part of the  stipulated bargaining unit.


3
It is clear from the briefs and arguments in this case that  the parties, and possibly the Board as well, are terribly  confused over the meaning of this court's decision in Avecor,  Inc. v. NLRB, 931 F.2d 924 (D.C. Cir. 1991), which we herein  clarify.  The point of confusion is over the Board's responsibility when it is faced with a stipulated bargaining unit that is  ambiguous.  As we explain below, in such a situation, the  Board must seek to determine the parties' intent through  normal methods of contract interpretation, including the examination of extrinsic evidence.  Only when the stipulation is  a nullity from which no intent can be discerned should the  Board ignore the stipulated agreement and determine the  bargaining unit on the basis of its community of interest test.

I. Background

4
The facts surrounding the election and the stipulated bargaining agreement are un-controverted.  After the Union  petitioned to represent Associated Milk's employees, the Union and Associated Milk stipulated to a bargaining unit.  The  stipulation provides that the Union would represent


5
[a]ll full-time and regular part-time production and maintenance employees, including lead persons, operators,baggers, sanitation workers, truck mechanics, milk quality technicians, maintenance workers, local drivers, bulktruck drivers and waste water operator employed by the Employer at its Arlington, Iowa facility;  excluding allover-the-road drivers, milk quality lab clerical employees, other clerical employees, salespersons, professional employees, guards and supervisors, as defined by the Na-tional Labor Relations Act, as amended.


6
Decision and Direction of Election, reprinted in Petitioner's  Appendix ("P.A.") 18 (emphasis added).  The Regional Director approved the stipulation, noting that it constitutes an  appropriate unit for the purposes of collective bargaining  within the meaning of  9(b) of the NLRA.  See id.


7
During the representation election, the Union challenged  the votes of three bulk truck drivers on the basis that those  drivers were employed not at Associated Milk's Arlington, Iowa facility, but, instead, at Associated Milk's Fredericksburg facility.  Associated Milk disagreed.  The stipulation is  clear that the bargaining unit includes only employees who  work at the Arlington facility;  it is unclear whether the  three challenged drivers fit that description.


8
Bulk truck drivers are responsible for delivering whole  milk from neighboring farms to Associated Milk's processing  facilities.  Associated Milk employs a number of bulk drivers,  most of whom deliver all of their loads to the Arlington  facility.  The three challenged drivers, however, deliver three  out of every four loads to Associated Milk's Fredericksburg  facility.  Only the fourth load is delivered to Associated Milk's  Arlington facility.  The Fredericksburg facility is, however, a  part of the Arlington Division, which is based at the Arlington facility.  As a result, in addition to making one out of four  deliveries to Arlington, there are other factors to suggest the  drivers are employed at the Arlington facility.  For instance,  the challenged drivers wash and maintain their trucks at the  Arlington facility, they are supervised by someone at Arlington, and all of their personnel records are kept at Arlington.


9
Despite this ambiguity, the Regional Director found that  the stipulation is unambiguous.  He did not, however, treat it  that way:  He treated it like an ambiguous stipulation by  conducting an ex parte investigation to determine whether, in  fact, the challenged bulk drivers worked at the Arlington  facility.  Based on the evidence he gathered through the  investigation, the Regional Director upheld the Union's challenges.  See Supplemental Decision and Certification of Representative, reprinted in P.A. 26.  Most of the evidence he  gathered, however, is not in the record.


10
Associated Milk appealed the Regional Director's decision  asking the Board either to reverse the Regional Director's  findings on the challenged ballots or to remand for a hearing  according to the Board's community of interest standard. Associated Milk's position was muddled.  On the one hand, it  argued that the drivers fall within the terms of the stipulation;  on the other, it argued that the parties' intent was not  clear and that the Board should determine the bargaining unit on the basis of the community of interest standard.  In  any case, Associated Milk disputed many of the Regional  Director's findings.


11
Despite these factual disputes, and without much of a  record to review, the Board denied Associated Milk's appeal. Soon thereafter, the Union attempted to bargain with Associated Milk.  Associated Milk refused to bargain, choosing  instead to precipitate an unfair labor practice charge so that  it could seek review of the Board's decision.  See Family  Serv. Agency San Francisco v. NLRB, 163 F.3d 1369, 1373  n.2 (D.C. Cir. 1999) (noting that the proper path to seek  review of a Board's certification of an election is to precipitate  an unfair labor practice charge).  The Union then filed a  charge against Associated Milk and, based on that charge, the  Regional Director filed a complaint alleging that Associated  Milk's refusal to bargain with the Union was an unfair labor  practice.  The Board, on a motion for summary judgment,  upheld the complaint and ordered Associated Milk to bargain  in good faith with the Union.  This appeal followed.

II. Analysis

12
Under  10(e) and (f) of the NLRA, 29 U.S.C.  160(e), (f)  (1994), this court will "reverse the Board if, upon reviewing  the record as a whole, we conclude that the Board's findings  are not supported by substantial evidence."  Micro Pacific  Dev. Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999)  (citation and internal quotation marks omitted).  Substantial  evidence "is more than a mere scintilla.  It means such  relevant evidence as a reasonable mind might accept as  adequate to support a conclusion."  Id. (quoting Consolidated  Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  Associated  Milk argues that the Board's order should be overturned  because the stipulation unambiguously includes the three  challenged drivers.  In the alternative, Associated Milk argues that if the stipulation is ambiguous, the Board was  required to ignore the stipulation and determine the status of  the three drivers by employing its normal community of  interest standard.  As petitioners put it, "either the stipulation is unambiguous, and the Challenged Bulk Drivers ...  are included, or the stipulation is ambiguous, and their inclusion had to be determined under a community of interest  test."  Petitioner's Opening Br. at 30.


13
The Company's position is not only wrong, but it reflects a  fundamental misunderstanding of the law regarding ambiguous stipulations.  Associated Milk is not alone in its confusion:The Board here seems to make the same mistake.  It argues  that the "parties here clearly and unambiguously defined the  unit."  Br. for the NLRB at 19.  And it notes that its own  precedent states that "if the unit description of that agreement is expressed in clear and unambiguous terms, the Board  will not examine extrinsic evidence to determine the parties'  intent regarding the bargaining unit composition."  Id. (quoting Laidlaw Transit, Inc., 322 N.L.R.B. 895, 895 (1997)).Nonetheless, the Board then cites extrinsic evidence to support its interpretation of what it argues is an unambiguous  stipulation.  The Board's studious aversion to admitting that  the stipulation is ambiguous suggests that it also believes that  an ambiguous stipulation must be disregarded in favor of a  community of interest inquiry.  This belief is a misunderstanding of this court's holding in Avecor, Inc. v. NLRB, 931  F.2d 924 (D.C. Cir. 1991), which we will now clarify.


14
In Avecor, this court noted that when the Board creates a  bargaining unit de novo, it "determines which employees  share common interests such that they could fruitfully bargain in concert."  931 F.2d at 932.  But, the court held,


15
[w]hen the parties stipulate the bargaining unit, ... the Board has a more limited role.  First it must ensure that the stipulated terms do not conflict with fundamental labor principles.  Having done so, its task is simply to enforce the agreement.  If the terms of the stipulation are unambiguous, the Board must hold the parties to its text.  If the terms are ambiguous, the Board may look to the usual factors governing the definition of an 'appropriate unit,' including the community-of-interest standard.


16
Id.  Avecor did not mean, however, that any time a stipulation is ambiguous, the Board must ignore it and turn to the community of interest standard.  In a stipulated unit case,  the Board's primary responsibility is to discern the parties'  intent.  That responsibility does not fall away at the first hint  of ambiguity.  Rather, the Board should only turn to the  community of interest test when it is unable to discern the  parties' intent from the stipulation.  In other words, the  ambiguity to which Avecor refers is ambiguity about the  parties' intent, not ambiguity in the stipulation itself.


17
When faced with a stipulated bargaining unit, the Board  must first determine whether the stipulation is ambiguous. If it is not, then the Board must simply enforce the agreement.  See id.  If, however, the stipulation is ambiguous, then  the Board must determine whether the parties' intent can  nonetheless be discerned from the stipulation.  If the stipulation is a nullity such that the parties' intent cannot be  discerned, then the Board determines the bargaining unit by  employing its normal community of interest standard.  See  id.;  International Union of Elec., Radio and Mach. Workers  v. NLRB, 418 F.2d 1191, 1201 (D.C. Cir. 1969) (noting that a  de novo approach to determining the bargaining unit is  appropriate when intent of parties cannot be discerned);Venture Indus., Inc., 327 N.L.R.B. No. 165 (Mar. 19, 1999)  (noting that the Board will apply the community of interest  test when the parties' intent is not clear).


18
If the parties' intent can be discerned, then the Board  should interpret the ambiguous stipulation as one would  interpret an ambiguous contract, including resort to extrinsic  evidence.  See International Union, 418 F.2d at 1201 (noting  that when a stipulation is ambiguous, the Board properly  turns to extrinsic evidence "in order to ascertain the intent of  the parties").  Avecor did not articulate this approach, but it  certainly did not reject it either.  Moreover, some of our  sister circuits have followed it for years.  See NLRB v.  Barker Steel Co., 800 F.2d 284, 286 (1st Cir. 1986) (noting that  where a stipulation is ambiguous, "the Board has the authority to interpret the agreement according to what it finds to  have been the intent of the parties") (citation and internal  quotation marks omitted);  NLRB v. Detective Intelligence  Serv., 448 F.2d 1022, 1025 (9th Cir. 1971) ("[W]here a stipulation is ambiguous, the Board has the authority to interpret  the agreement according to what it finds to have been the  intent of the parties.");  NLRB v. Joclin Mfg. Co., 314 F.2d  627, 634 (2d Cir. 1963) ("Certainly [if] the stipulation ... was  ambiguous, evidence of practical construction would be of  moment.").  Indeed, the Board itself recognizes its ability to  interpret ambiguous stipulations.  See Gala Food Processing,  Inc., 310 N.L.R.B. 1193, 1193 (1993) (noting that the Board  has the authority to interpret ambiguous stipulations by  resorting to extrinsic evidence as to parties' intent).


19
However, in interpreting an ambiguous stipulation, the  Board must create a record.  An appellate court can only  uphold the Board's findings as to the meaning of an ambiguous stipulation if those findings are supported by substantial  evidence, see Micro Pacific Dev. Inc., 178 F.3d at 1329, and  there will only be evidence to support the Board's findings if  a record is created.  Thus, the Board must hold a hearing to  examine extrinsic evidence of the parties' intent.  Cf. International Union, 418 F.2d at 1201 (holding that when examining  extrinsic evidence to discern parties' intent, the Board must  examine evidence from both sides).


20
The Board's failure to create a record in this case requires  us to remand.  The stipulation in this case indicates that the  bargaining unit is to include "bulk truck drivers ... employed  by the Employer at its Arlington, Iowa facility."  Decision  and Direction of Election, reprinted in P.A. 18.  This stipulation is ambiguous.  It clearly expresses the parties' intent to  include only those bulk truck drivers employed at the Arlington facility.  However, there is ambiguity about whether the  three challenged drivers fit that description.  That ambiguity  could not be resolved without reference to extrinsic evidence. The Regional Director knew that:  He conducted an investigation to determine where the three challenged drivers worked. But he did not create a record.  Thus, there is no substantial  evidence to support his resolution of the ambiguity in the  Union's favor.  In other words, this court cannot know whether there was any evidence to support his finding that the  three challenged drivers were not employed at the Arlington  facility.

III. Conclusion

21
For the reasons given above, enforcement of the Board's  order is denied, the petition for review is granted, and the  case is remanded to the Board for a hearing to determine  whether the three challenged drivers belong in the bargaining  unit.

