United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

        Argued April 5, 1999        Decided June 8, 1999 

                           No. 98-1319

                   The Wackenhut Corporation, 
                   Petitioner/Cross-Respondent

                                v.

                 National Labor Relations Board, 
                   Respondent/Cross-Petitioner

     Santa Clara County Public Safety Officers' Association, 
                            Intervenor

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

     John W. Powers argued the cause for petitioner/cross- respondent.  On the briefs was Brian T. Ashe.  Ronald A. 
Lindsay entered an appearance.

     Anne M. Lofaso, Attorney, National Labor Relations 
Board, argued the cause for respondent.  With her on the 
brief were Linda Sher, Associate General Counsel, John D. 
Burgoyne, Acting Deputy Associate General Counsel, and 
Peter D. Winkler, Supervisory Attorney.  David A. Rosenfeld 
entered an appearance.

     Before:  Wald, Randolph and Garland, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Wald.

     Wald, Circuit Judge:  The Wackenhut Corporation ("Wack- enhut"), a company which provides security guard services, 
argues that a union of 11 guards1 employed by Wackenhut 
was improperly certified because it is impermissibly affiliated 
with a union that has non-guard members, in violation of the 
Labor-Management Relations Act, 29 U.S.C. s 159(b)(3) 
("the Act").  The National Labor Relations Board ("Board" 
or "NLRB") rejected this argument.  We find that although 
the challenged unit of guards was undoubtedly reliant on a 
member of a non-guard union for advice and assistance, the 
Board's conclusion that the unions were not "indirectly affili- ated" within the meaning of the Act is supported by substan- tial evidence.  See Universal Camera Corp. v. NLRB, 340 
U.S. 474, 488 (1951).  Thus, we grant the Board's cross- petition for enforcement and deny Wackenhut's petition for 
review.

                          I. Background

     Wackenhut provides security services for the Santa Clara 
Valley Transit Authority.  In 1998, the Santa Clara County 
Public Safety Officers' Association ("Officers' Association"), a 
newly-spawned union of guards, was certified to represent 
Wackenhut's full- and part-time security officers who service 
the transit authority.  The company refuses to bargain with 

__________
     1 Although the Regional Director estimated that there were ap- proximately 14 guards eligible for membership in this union, see 
Joint Appendix ("J.A.") at 124 n.10, the Tally of Ballots indicates 
that there were 11 eligible voters at the time of the election, see id. 
at 277.

the Officers' Association on the ground that the union is 
ineligible for certification because of the help the guards 
received from the business agent and special advisor for the 
Northern California Regional Council of Carpenters ("Car- penters"), a union which admits non-guards to its member- ship. A.    Legal Background

     Wackenhut contends that the help the Officers' Association 
received from the Carpenters' agent violated section 9(b)(3) of 
the Labor-Management Relations Act, 29 U.S.C. s 159(b)(3), 
which provides that:

     The Board shall decide in each case whether, in order to 
     assure employees the fullest freedom in exercising the 
     rights guaranteed by this Act, the unit appropriate for 
     the purposes of collective bargaining shall be the employ-
     er unit, craft unit, plant unit, or subdivision thereof:  
     Provided, [t]hat the Board shall not ... (3) decide that 
     any unit is appropriate for such purposes if it includes, 
     together with other employees, any individual employed 
     as a guard to enforce against employees and other 
     persons rules to protect property of the employer or to 
     protect the safety of persons on the employer's premises;  
     but no labor organization shall be certified as the repre-
     sentative of employees in a bargaining unit of guards if 
     such organization admits to membership, or is affiliated 
     directly or indirectly with an organization which admits 
     to membership, employees other than guards.
     
29 U.S.C. s 159(b)(3).  Congress drafted this provision "to 
minimize the danger of divided loyalty that arises when a 
guard is called upon to enforce the rules of his employer 
against a fellow union member."  Drivers, Chauffeurs, Ware- housemen and Helpers, Local No. 71 v. NLRB, 553 F.2d 
1368, 1373 (D.C. Cir. 1977);  see also NLRB v. Brinks, Inc. of 
Fla., 843 F.2d 448, 451 (11th Cir. 1988) ("In separating guard 
and non-guard unions, Congress sought to assure employers 
of a core of faithful employees that would not be subject to a 
possible conflict of loyalties during a dispute between an 
employer and a union representing non-guards.") (citing 

Wells Fargo Armored Serv. Corp., 270 N.L.R.B. 787, 789 
(1984)).

     There is no dispute that the employees at issue here are 
"guards" within the meaning of the Act, that the Carpenters 
admit non-guards to membership, and that the two unions are 
not "directly affiliated" under the Act.  The issue is whether 
the unions are "indirectly affiliated."  The Board's position 
that there is no unlawful "indirect affiliation" between these 
two unions is rooted in a series of prior Board decisions 
issued shortly after the Act's passage in 1947.  In those 
cases, the Board determined that Congress' goal of ensuring 
that guards remain faithful to their employers would not be 
well-served by a strict interpretation of the Act that forbad 
fledgling guards' unions from seeking and receiving any form 
of assistance from established non-guard unions.  The Board, 
interpreting the meaning of "indirect affiliation," ruled that a 
guards' union does not violate the Act if it receives help in its 
formative stages from a union of non-guards.  This doctrine 
was based in large part on practical necessity;  a new union 
that is barred from receiving any measure of assistance from 
a more established one is likely never to get off the ground.  
Thus, in International Harvester Co., 81 N.L.R.B. 374 (1949), 
the Board held that a guards' union, conscientiously engaged 
in the process of breaking off from the local CIO affiliate in 
order to comply with the Act, was still capable of formulating 
its own policies and deciding its own course of action, even 
though the head of the CIO local represented the guards' 
union before the employer in a bid for recognition, the 
election ballots for officers bore the non-guards' union's 
name,2 and the guards' union continued to use the CIO local's 
hall rent-free.  Similarly, when the unionized guards at a 
Westinghouse Electric Corporation plant severed ties with 
the local CIO non-guard affiliate, the Board held that it was 
permissible for the non-guard affiliate to continue to let the 
guards use its union hall, and for the non-guards' chief 

__________
     2 The Board noted, however, that in the representation election 
which the Board ordered in its opinion, the ballots would bear only 
the guard union's name.  Id. at 376.

steward to help at the guards' first organizational meeting.  
See Westinghouse Elec. Corp., 96 N.L.R.B. 1250 (1951).  The 
Board ruled that indirect affiliation existed in one case, 
however, when two informal organizational meetings of a 
guards' union were held rent-free at a local non-guard CIO 
affiliate's union hall while other labor organizations were 
required to pay rent;  the CIO local's secretary, treasurer and 
president attended those meetings, assisted in organizing 
guards and electing officers, and drafted the guards' constitu- tion and bylaws;  the CIO local had union cards printed for 
the guards;  and the guards' union collected no dues and had 
no formal organizational meetings.  See Magnavox Co., 97 
N.L.R.B. 1111, 1112 (1952).  The Board held that while 
assistance from a non-guard union during a guards' union's 
infancy does not necessarily establish indirect affiliation, the 
"extent and duration" of the aid from the CIO affiliate in 
Magnavox indicated that the guards' union "ha[d] [n]ever 
taken any action without the assistance of Local 910 or its 
officers."  Id. at 1113;  see also Mack Manuf. Corp., 107 
N.L.R.B. 209 (1953) (finding indirect affiliation where commit- teeman of local CIO non-guard affiliate conducted most, if not 
all, of actual soliciting and organizing, CIO leader witnessed 
the union cards, and testimony showed that CIO leader stated 
publicly that he had organized the guards and they would 
report to him).  The upshot is that a nascent guards' union 
may receive help from a non-guards' union, but to avoid the 
"indirect affiliation" prohibited by the Act, the extent and 
duration of the unions' contact must demonstrate that they 
ultimately became "completely divorced" from each other.  
Id. The substantive measure of "completely divorced" is 
whether "the extent and duration of [the guard union's] 
dependence upon [the non-guard union] indicates a lack of 
freedom and independence in formulating its own policies and 
deciding its own course of action."  Magnavox, 97 N.L.R.B. 
at 1113. B.    Procedural Background

     Because the procedural history of this case is relevant to 
whether the Board properly denied consideration of certain 
evidence presented by Wackenhut (discussed in the next 

section), we set it forth in some detail.  The Board's regional 
office conducted a pre-election representation hearing on the 
affiliation issue on September 3, 1997.  On September 30, 
1997, the Regional Director issued his Decision and Direction 
of Election, ruling that the Officers' Association and Carpen- ters were not unlawfully affiliated with each other.  J.A. at 
120.  Wackenhut requested Board review of the decision, and 
the Board denied review on November 3, 1997.  Id. at 270.  
An election was held November 5, and with 8 eligible voters 
voting, the union won unanimously save for one challenged 
ballot.  Based on new evidence, Wackenhut asked the Board 
on November 10 to reconsider its November 3 order denying 
review, and two days later filed timely objections to the 
election;  the motion to reconsider and the objections were 
based solely on the union's alleged affiliation with the Carpen- ters, id. at 279, 289.  Wackenhut supplemented its motion to 
reconsider with new evidence by a letter to the Board dated 
December 3.  Id. at 301.  On March 16, 1998, the Board 
denied the motion for reconsideration, id. at 305, and the next 
day, the Regional Director issued a Supplemental Decision 
and Certification of Representative, id. at 307.  On April 13, 
Wackenhut asked the Board to review the certification deci- sion based on more new evidence, which review was denied on 
May 6, 1998.  Id. at 532.  On May 7, after receiving a letter 
from the company indicating its refusal to bargain, the Offi- cers' Association filed an unfair labor practice charge alleging 
that Wackenhut had refused to bargain collectively with the 
union in violation of sections 8(a)(5) and 8(a)(1) of the Nation- al Labor Relations Act, 29 U.S.C. s 158(a)(1) & (5).  A 
complaint issued May 14.  Subsequently, the Board granted 
the General Counsel's motion for summary judgment, denied 
Wackenhut's request for an evidentiary hearing on July 10, 
1998, and ordered the employer to bargain with the Officers' 
Association.  J.A. at 1814. C.    The Record Before the Board

     Representation proceedings before the Board are not sub- ject to direct judicial review because they do not result in a 
final agency order.  See, e.g., Family Serv. Agency San 
Francisco v. NLRB, 163 F.3d 1369 (D.C. Cir. 1999);  29 

U.S.C. s 160(e)-(f).  An employer seeking review of the rec- ord in a representation proceeding must refuse to bargain 
with the union, suffer an unfair labor practice charge, and in 
challenging the charge rely on the objections and correspond- ing evidence raised in the representation proceeding.  That is 
what Wackenhut has done in this so-called "technical refusal- to-bargain" proceeding.  Therefore, we review the record in 
the representation proceeding in order to determine whether 
the Officers' Association was properly certified and whether 
Wackenhut properly refused to bargain with the association.

     At the pre-election hearing on the affiliation issue, the 
Board's hearing officer took testimony from Dennis Murray, 
the vice president of the Officers' Association, and Mel Saka- ta, the agent for the Carpenters who served as the associa- tion's agent and then advisor.3  See J.A. at 221 (testimony of 
Sakata) (stating he is a member and agent of Carpenters).  
The testimony showed that Sakata first met Pascual Oliveres, 
Jr., who became the president of the association, at a gather- ing of Wackenhut police officers in July 1997.  See id. at 204.  
Oliveres introduced Sakata to Murray and other guards on 
July 27, 1997, at an organizational meeting of Wackenhut 
guards employed by the transit authority.  See id. at 168.  
Murray recalled that Sakata attended five or six early meet- ings, which were held rent-free at the Carpenters' meeting 
hall, and that the Officers' Association held an additional four 
or five that were not at the Carpenters' hall and that Sakata 
did not attend.  See id. at 174-76.  At the meetings Sakata 
attended, Murray recalled, Sakata's role consisted of answer- ing questions posed by the union members.  See id. at 174;  
see also id. at 211 (testimony of Sakata).  Sakata obtained 
copies of other unions' constitutions and bylaws--specifically, 
those of the Bay Area Rapid Transit Police Officers' Associa- tion--for the Santa Clara County Officers' Association's draft- ing committee to use.  See id. at 181.  According to Sakata, 
on August 3, he helped the association fill out its LM-1 
Organizational Report for filing with the Board.  See id. at 

__________
     3 Wackenhut does not challenge the testimony of Murray and 
Sakata.

144.  On the form, Sakata simply indicated the sections of the 
association's bylaws and constitution that govern certain un- ion practices and procedures;  he did not sign the form 
himself (it was signed by the association's president and 
secretary).  Sakata was, however, named in the form as the 
person authorized to receive mail for the association because, 
according to Murray, "he was kind enough to volunteer to 
receive mail for us," and the 11-guard association did not 
have its own office or post office box.  See id. at 179-80.4  
Sakata also filled out a representation petition for the 
guards--he checked off boxes on a type-written form--and 
sent it to the guards' law firm for filing.  See id. at 247.  At 
around this time (some time in early August), the association 
gave Sakata a "permission card" to act as an "agent."  See id. 
at 170-71.  It does not appear that Sakata's role as an agent 
was ever formally defined, but the tasks Sakata actually 
performed included sharing the Carpenters' office supplies, 
meeting facilities and staff with the Officers' Association, see 
id. at 195, "hand[ing] out" union authorization cards, see id. at 
202,5 and referring the association to the Carpenters' law 
firm, which now represents the association pro bono, see id. at 
199.  In addition, Sakata sent letters on Officers' Association 
letterhead to the Santa Clara County Board of Supervisors 
and to the transportation authority, notifying them of the 
organization effort and requesting that Wackenhut allow the 
association to engage in lawful organizing activities.  See id. 
at 217-22.6  Murray testified that he did not know that 
Sakata had actually written letters to these bodies, but he 
acknowledged that Sakata had been authorized to contact 

__________
     4 Sakata testified that he received mail at the Carpenters' office 
for the Officers' Association, but that he does not open it and read 
it.  See J.A. at 231.  He also received service of a subpoena duces 
tecum for documents pertaining to the association in conjunction 
with the Board proceedings in this case.  See id. at 232.

     5 The record contains no elaboration as to whether Sakata handed 
out union cards individually to guards or whether he provided them 
to the association at a meeting.

     6 It does not appear that these letters are part of the record, but 
their existence is not disputed.

them to "warn[ ] them so that they wouldn't be caught off 
guard if [the unionization drive] became an issue."  Id. at 186.  
Finally, Sakata composed a letter dated August 12, 1997, 
from the association to Wackenhut that asked the company to 
recognize the Officers' Association as the collective bargaining 
unit for 11 security guards.  See id. at 105.  As he was 
authorized to do, Sakata signed the letter as the association's 
"agent."

     In sum, Sakata testified that he performed whatever ser- vices the association requested of him, see id. at 205, and that 
it would "please [him] very much" to continue to help the 
association through collective bargaining, see id. at 208.  
Murray described Sakata's role as "giving us advice on the 
process that we needed to go through to get recognition."  Id. 
at 168.  Murray also stated in uncontested testimony that 
Sakata would not participate in collective bargaining because 
"[w]e have a bargaining committee that includes myself, and 
that would really be our job."  Id. at 172.

     Based on this record, the Regional Director found that:  (1) 
Sakata provided "substantial unpaid assistance" to the associ- ation;  (2) Sakata obtained free meeting space and authorized 
the association to use the Carpenters' mailing address and 
telephone number;  (3) Sakata obtained authorization cards 
for the association to use;  (4) Sakata wrote on the associa- tion's behalf to Wackenhut and other local political figures;  
(5) Sakata "assisted" the association with "drafting its consti- tution and bylaws and filing its initial LM-1 statement";  and 
(6) the association planned to continue to use Sakata "in the 
near future, including for the possible negotiation of an initial 
collective bargaining agreement with the Employer."  See id. 
at 120-23.7  The Regional Director applied the doctrine that a 
guards' union in its formative stages may receive assistance 

__________
     7 Our perusal of the record does not lead us to conclude that 
Sakata helped to write the association's constitution and bylaws, 
and it does not appear that this is the intended meaning of the fifth 
finding that Sakata "assisted" the association in drafting the docu- ments.  Rather, it is clear, as outlined above, that Sakata's involve- ment was limited to obtaining copies of other such documents for 
the association to use.  The Board in its brief confirms that this is 

from a non-guards' union without creating a forbidden affilia- tion, and concluded that the two unions were not "indirectly 
affiliated" within the meaning of the Act.

     In the present case, there is no question that Sakata 
     played an important part in the initial formation of the 
     [Officers' Association] and continues to play a significant 
     part in its current organizing activities among the Em-
     ployer's armed security personnel.  However, I also note 
     that Sakata's assistance to the [association] was provided 
     at a time when the [association] was plainly still in its 
     "formative stages."  The [association] had come into 
     being just about a month prior to the hearing and its 
     officers and directors have little, if any, experience in 
     organizing or administering a union.  In addition, the 
     [association's] organizing activities among the Employ-
     er's armed guards appears to be its first venture in the 
     area and its current membership also appears very small, 
     probably under a dozen members.
     
Id. at 122.

     After the election in which the association prevailed, the 
Board, in two separate orders, considered four other incidents 
raised by Wackenhut that allegedly showed indirect affiliation 
between the Officers' Association and the Carpenters.  In its 
November 10 motion for reconsideration of the Board's denial 
of review of the Direction of Election based on new evidence, 
Wackenhut asked the Board to consider two incidents that 

__________ the correct interpretation of this finding.  See Brief for Cross- Petitioner ("Board's Br.") at 14.

   In addition, we do not take finding 6 to mean that the record 
showed Sakata would actually negotiate a future collective bargain- ing agreement.  We believe the Regional Director meant, and the 
record reflects, that Sakata was to be available for advice during 
the bargaining period.  Indeed, later in his decision, the Regional 
Director observed that the association established "a number of 
committees, including a bargaining committee, which will make 
decisions for it, and none on which Sakata sits," J.A. at 123, 
indicating that the Regional Director believed Sakata's role in 
collective bargaining would be merely advisory. occurred around or after the time of the election and that 
Wackenhut had not been able to raise prior to the election.  
First, Wackenhut contended that before the election, Sakata 
contacted a regional Board official to protest Wackenhut's 
"Excelsior list" of employees eligible to vote, and that during 
the election he questioned a Board agent about the authority 
of a Wackenhut representative to tally ballots.  See id. at 
281-82, 285.  Second, outside of the polling area on the day of 
the election, Sakata told a Wackenhut manager that it was 
time to sit down and bargain to " 'get these guys an in- crease.' "  Id. at 287 (affidavit of Max Marcel, Wackenhut 
office manager).  Wackenhut raised a third incident in its 
supplemental filing with the Board on December 3, 1997:  a 
letter dated November 18, 1997 that Sakata sent to Wacken- hut as the association's "special advisor" and "agent," in 
which Sakata asked the company to designate a bargaining 
agent.  See id. at 304.  In its March 16, 1998 order, the 
Board reviewed all three of these additional incidents but 
denied reconsideration of its refusal to review the Direction of 
Election.  Regarding the first two incidents, the Board con- cluded that "[t]here is no indication that Petitioner [the 
Officers' Association] has chosen Sakata as its negotiator;  
that the Petitioner has given Sakata authority to formulate 
any bargaining proposals;  that Sakata has, in fact, put to- gether any proposals;  or that Petitioner no longer intends to 
rely on its bargaining committee."  Id. at 305 (March 16, 
1998, denial of reconsideration of denial of review).  Address- ing the third incident (raised in Wackenhut's December 3 
letter), the Board concluded that "[t]here is no indication in 
the letter that Sakata would be involved in the negotiations.  
Further, according to the Petitioner, its vice president sent a 
letter dated November 28, 1997, to the Employer stating that 
Sakata is 'no longer authorized to act as an agent of the 
[Petitioner]' and would 'continue to serve only as an advisor.'  
The letter also designates the Petitioner's vice president as 
the 'duly authorized agent and spokesperson of the [Petition- er].' "  Id. at 305-06.8 __________
     8 This letter does not appear in the record, but Wackenhut does 
not challenge its existence.

     Finally, in its May 6, 1998 order denying Wackenhut's 
request for review of the Regional Director's certification, the 
Board considered a fourth incident, which Wackenhut raised 
for the first time in its April 13 request for review of the 
Regional Director's certification decision.  On March 17, 1998, 
according to the company, Sakata was present at an unem- ployment hearing on a claim filed by a member of the 
association's bargaining unit.  Sakata reportedly sat a foot 
away from the former employee and they "whispered to each 
other and exchanged notes."  Id. at 522.  The Board declined 
to reverse the Regional Director's decision based on this 
incident, finding that "the Employer presents no evidence 
that Sakata was acting as an agent for the Petitioner."  Id. at 
532.

         II. Additional Proffered Evidence of Affiliation

     These events formed the record that the Board considered 
when it ordered Wackenhut to the bargaining table.  See J.A. 
at 1814.  However, Wackenhut argues that during the repre- sentation proceeding, the Board erred in declining to consider 
three additional incidents showing "indirect affiliation."  
Wackenhut raised this new evidence in its April 13 request 
for review of the Regional Director's certification.  The Board 
declined in its May 6, 1998 order to consider the evidence 
because it was raised in an untimely fashion.  Wackenhut 
contended that on December 3, 1997, Sakata met and con- ferred with voting unit members before a state labor commis- sion hearing on a wage-and-hour claim;  that on January 27, 
1998, Sakata appeared at a Wackenhut office and asked to see 
the personnel file of a discharged voting unit employee;  and 
that on February 5, 1998, Sakata appeared at a transit 
authority meeting and informed the transit representatives 
that the association would strike if Wackenhut refused to 
bargain.  See id. at 522-31.

     We find that the Board was well within its authority in 
deciding that these incidents should have been raised prior to 
the Board's March 16, 1998 denial of reconsideration of the 
Direction of Election and the Regional Director's March 17, 

1998 certification order.  As the Board found in its May 6 
order, "[t]he Employer had the opportunity and the obligation 
to present the new evidence it wished to have considered by 
the Board during those proceedings, and it has failed to 
explain the reason it did not previously adduce these facts."  
Id. at 532.  The Board noted that while the NLRB Casehan- dling Manual allows some latitude for parties to submit later 
adduced evidence in support of post-election objections, it also 
states, "An objecting party normally should not be permitted 
to 'piecemeal' the submission of evidence but should be 
required to disclose promptly all the evidence in support of 
his/her objections.  Absent the timely receipt of evidence, the 
Regional Director should overrule the objections."  NLRB 
Casehandling Manual s 11292.5;  see also 29 C.F.R. 
s 102.69(a)-(c).  Thus, the Regional Director has some discre- tion to consider late evidence but is not required to accept it 
(in fact, he is discouraged from so doing), and by the same 
token, barring extraordinary circumstances, the Board is 
certainly not required to order the Regional Director to 
accept it.  In this case, the Board acted reasonably in refus- ing to reconsider a final ruling on post-election objections 
based on conduct that occurred well before the final ruling 
issued.  Cf. Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1126-27 
(D.C. Cir. 1996) (upholding Regional Director's reasonable 
use of discretion in conducting a mail-ballot election, based on 
the procedural guidance contained in the Casehandling Manu- al).

     Wackenhut urges us to read the Casehandling Manual as 
applying only to late-filed evidence in support of objections to 
the way an election was conducted.  Therefore, it says, the 
Manual should not bar Wackenhut from later presenting 
evidence, such as these additional incidents, that is relevant to 
the association's general eligibility for certification and not to 
election-related conduct.  However, even assuming that the 
distinction between objections to the association's qualifica- tions and objections to its electoral conduct is relevant for 
this purpose, and thus that the Board was free to allow 
Wackenhut to file supporting evidence even after a final 
decision had issued denying the objections, we would still find 

that under these circumstances the Board was justified in 
ruling Wackenhut was too late in its proffer.9  The incidents 
Wackenhut seeks to raise occurred one to four months before 
the Board and the Regional Director issued their final orders, 
and the company does not argue that it lacked knowledge of 
the incidents before March 16 (Board's order denying recon- sideration of denial of review of Direction of Election) and 
March 17 (Regional Director's certification of representative).  
The Board's rules do not require it to reopen the proceeding 
based on evidence that could have been, but was not, present- ed so long before the orders issued.

     Wackenhut also argues that re-raising these three incidents 
in this unfair labor practice proceeding entitles the company 
to an evidentiary hearing in this proceeding.  Again, the 
Board correctly rejected this argument.  It is well- established that only newly-adduced evidence that was un- available during the representation proceeding, or a special 
circumstance, entitles a party to a new hearing during a 
related unfair labor practice case.  See Pittsburgh Glass Co. 
v. NLRB, 313 U.S. 146, 161-62 (1941);  29 C.F.R. s 102.67(f).  
Board rules prohibit relitigating an issue that "was, or could 
have been, raised in the representation proceeding.  Denial of 
a request for review shall constitute an affirmance of the 
regional director's action which shall also preclude relitigating 
any such issues in any related subsequent unfair labor prac- tice proceeding."  29 C.F.R. s 102.67(c).  A technical refusal- to-bargain case is a "related unfair labor practice proceeding" 
under this rule.  See Family Serv. Agency, 163 F.3d at 1381 
(listing cases).  Furthermore, as discussed above, these three 
incidents were raised in the representation proceeding (and, 
therefore, were not "newly adduced"), and the Board properly 
denied reconsideration of its final orders based on them.  

__________
     9 Wackenhut also argues, Petitioner's Brief ("Pet. Br.") at 38, that 
the new evidence was not submitted in support of its post-election 
objections, but was actually submitted in support of its Request for 
Review of the Regional Director's Supplemental Decision and Certi- fication.  This argument is ill-conceived, given that the supplemen- tal certification order was, in fact, the ruling on Wackenhut's 
objections.

Wackenhut is thus barred from what amounts to a second 
trial based on this evidence.  See Coin Devices Corp., 325 
N.L.R.B. No. 75, 1998 WL 136113 (1998).10

     Wackenhut also argues that the Board erred in refusing to 
consider a fourth incident that occurred on May 7.  Wacken- hut raised this incident for the first time in the unfair labor 
practice proceeding.  We find that in its decision granting 
summary judgment to the General Counsel, J.A. at 1814, the 
Board correctly determined that the incident, in which Sakata 
allegedly helped to organize guards' pickets, is irrelevant to 
this refusal-to-bargain case.  Wackenhut refused to bargain 
with the association by letter dated May 4, 1998, and conduct 
occurring after the company refused to bargain is simply not 
germane to this proceeding.  See id. at n.2 (proper procedure 
is to file a petition to revoke certification).

                    III. The Affiliation Issue

     "Under well-established principles of deference, we must 
uphold the Board's determination unless it has 'acted arbi- trarily or otherwise erred in applying established law to the 
facts at issue.' "  Pittsburgh Press Co. v. NLRB, 977 F.2d 
652, 654 (D.C. Cir. 1992) (quoting North Bay Dev. Disabili- ties Servs. v. NLRB, 905 F.2d 476, 478 (D.C. Cir. 1990) 
(citation omitted)).  We affirm the legal conclusions of the 
Board if they are "reasonably defensible."  Ford Motor Co. v. 
NLRB, 441 U.S. 488, 495-97 (1979).  In reviewing the 
Board's findings of fact, we may not "displace the Board's 
choice between two fairly conflicting views, even though the 

__________
     10 Insofar as Brinks, Inc. of Fla. v. NLRB, 276 N.L.R.B. 1 (1985), 
appears to hold that the mere re-raising of an issue in a technical 
refusal-to-bargain proceeding in which the employer claims that the 
union has violated section 9(b)(3) of the LMRA is a "special 
circumstance" sufficient to warrant a new hearing, it appears to be 
inconsistent with mainstream Board precedent.  See, e.g., id. at 2 
(Member Hunter, concurring in the judgment);  Coin Devices Corp., 
325 N.L.R.B. at nn.1 & 2;  Dunbar Armored, Inc., 326 N.L.R.B. No. 
139, 1998 WL 700003 (1998);  Santa Clara Co. Pub. Safety Officers' 
Ass'n, 325 N.L.R.B. No. 201, 1998 WL 398268 (1998).

court would justifiably have made a different choice had the 
matter been before it de novo."  Universal Camera Corp. v. 
NLRB, 340 U.S. 474, 488 (1951).

     As a threshold matter, Wackenhut contends that the 
Board's tolerance for the aid, assistance and support of non- guard unions towards fledgling guards' unions violates the 
Act's "unambiguous" prohibition of "indirect affiliation" be- tween the two kinds of unions, and its line of cases reflecting 
that tolerance should be overturned as violating the plain 
meaning of section 9(b)(3) of the Act.  Wackenhut's argument 
for invalidating the Board's long-standing precedent under 
Chevron step one, see Chevron U.S.A. Inc. v. Natural Re- sources Defense Council, Inc., 467 U.S. 837, 844 (1984), is 
unpersuasive.

     Chevron step one requires us to set aside an agency's 
interpretation of a statute if the interpretation violates Con- gress' clear and unambiguous directive.  The meaning of the 
term "indirect affiliation" is far from clear and unambiguous.  
To "affiliate" is "to join as a member," or "to connect or 
associate oneself:  combine."  Webster's Third New Int'l Dic- tionary 35 (1981).  The terms "directly" and "indirectly" are 
often juxtaposed to mean (1) officially as opposed to unoffi- cially, as in, " 'I am not affiliated directly or indirectly with 
the Communist Party,' " Wieman v. Updegraff, 344 U.S. 183, 
185 n.1 (1952) (Oklahoma's loyalty oath), or (2) a first degree 
relationship, such as an individual's ownership of stock, as 
opposed to a more attenuated one, as when an individual 
owns stock through a corporate form.  See, e.g., Investment 
Company Act of 1940, 15 U.S.C. s 80a-2(a)(3) (barring direct 
and indirect owners of stock from certain activities).  An 
"indirect affiliation," it follows, can take a variety of guises, 
requiring a fact-intensive inquiry as to whether an association 
or two entities, while not official or formal, nonetheless is 
close enough so that one of the entities must be realistically 
viewed as connected to or dependent on the other.  In short, 
"indirect affiliation" is hardly a self-administering concept.  
We proceed, therefore, under Chevron step two to determine 
"whether the agency's answer is based on a permissible 
construction of the statute," Chevron, 467 U.S. at 843, giving 

"particular weight" to the Board's interpretation of an ambig- uous statute that it is charged with administering.  Pitts- burgh Press Co., 977 F.2d at 655.  In this case, we find the 
Board's interpretation of the phrase was reasonable.  The 
Board has repeatedly held that a union is indirectly affiliated 
with another if it is "not free to formulate its own policies and 
decide its own course of action independently."  Internation- al Harvester Co., 145 N.L.R.B. 1747, 1749 (1964).  "[M]utual 
sympathy, common purpose, and assistance between such 
unions" is not, standing alone, sufficient to show an indirect 
affiliation.  Id. When a guards' union is in its formative 
stages, and has received logistical and clerical assistance and 
sundry advice from other established unions, the Board has 
determined that the spirit of the Act--to insure that the 
employer maintains a faithful pool of employees to protect its 
business and property--is not violated.  In sum the Board's 
interpretation of the term "indirectly affiliated," as reflected 
in its cases, requires a substantive bond that binds the two 
unions in management and policy, so that the guards' union 
cannot determine its own course without approval of the non- guard union;  that interpretation is an entirely reasonable 
one.

     Wackenhut argues more specifically that the Board erred 
in applying its "formative stage" precedent to the facts in this 
case.  In what admittedly is a close case, we ultimately defer 
to the Board's conclusion that the duration and extent of 
Sakata's involvement with the Officers' Association did not 
amount to an indirect affiliation between the Carpenters and 
the guards.  Our deference is based in part on the extremely 
fact-intensive nature of this inquiry and on the Board's exten- sive experience in examining the relative independence of 
guards' unions.  Cf. International Harvester, 145 N.L.R.B. at 
1749 (listing facts shown to be dispostive of affiliation issue).

     The Regional Director concluded that Sakata played "an 
important part in the initial formation of the Union and 
continues to play a significant part in its current organizing 
activities among the Employer's armed security personnel."  
J.A. at 122.  However, the Regional Director continued, 
"Sakata's assistance to the Union was provided at a time 

when the Union was plainly still in its 'formative stages.'  The 
Union had come into being just about a month prior to the 
hearing and its officers and directors have little, if any, 
experience in organizing or administering a union."  Id.  
There is always a lurking question, of course, in these cases, 
of how long a "formative stage" should last.  Although Board 
precedent on this issue is a bit fuzzy, we agree that in this 
case at the time of the pre-election representation hearing, 
the Officers' Association was in its formative stage.  The 
association convened its first meeting at the end of July, held 
10 or so further organizational meetings, and obtained autho- rization cards and filed the necessary organizational docu- ments with the Board.  The pre-election hearing was held a 
scant two months after the officers first began discussing 
their own union, before it had begun to collect dues or 
attempt to bargain.  See, e.g., U.S. Corrections Corp, 325 
N.L.R.B. No. 54, 1998 WL 65903 (1998) (no unlawful affilia- tion when business agent of non-guard union assists guards' 
union through collective bargaining but ceases assistance in 
the midst of bargaining);  Inspiration Consol. Copper Co., 142 
N.L.R.B. 53 (1963) (no unlawful affiliation when non-guard 
union representative served as conduit between international 
guards' union and fledgling local;  guards' international union 
relied on non-guard organizer and had no direct contact with 
guards until two days before representation hearing;  non- guard representative obtained authorization cards and dis- tributed them, and announced at organizational meeting two 
days before representation hearing that he could no longer 
represent them);  Federal Servs. & Indep. Guard Ass'n of 
Nev., 115 N.L.R.B. 1729 (1956) (no affiliation when officers of 
two non-guard unions served as officers of and negotiators for 
guards' union in first two months' of guards' union's exis- tence).

     We hold further that it was reasonable for the Regional 
Director to conclude that Sakata's help did not compromise 
the new union's independence.  See J.A. at 123 ("there is no 
evidence in the record which indicates or even suggests that 
the Union, once it passes its formative stages and attains 
some degree of maturity, will not act freely and independent-

ly of Sakata").  The Regional Director noted that the associa- tion had established "a number of committees, including a 
bargaining committee, which will make decisions for it, and 
none on which Sakata sits," id., and that Sakata's assistance 
was largely logistical and clerical in nature.  See id.  This 
sets the case apart from those previous Board cases in which 
guards' unions received more substantive aid and for longer 
periods of time--thus calling into serious doubt their ability 
to exercise freedom and independence in formulating their 
own policies and deciding their own courses of action.  See 
Magnavox, 97 N.L.R.B. at 1113.  For example, in Brinks, 
Inc., 274 N.L.R.B. 970 (1985), the Board refused to certify as 
a guards' bargaining representative a union whose "main 
force" and secretary-treasurer was an officer of the Team- sters' local and a member of the regional Joint Council of 
Teamsters.  This individual drafted the guards' bylaws and 
authorization cards, which the Board found were identical to 
those of the Teamsters' local, and presided over the guards' 
only meeting.  Similarly, in Stewart-Warner Corp., 273 
N.L.R.B. 1736 (1985), a case on which Wackenhut heavily 
relies, a guards' union was denied certification where a Team- sters' local (Local 714) had begun organizing guards at a 
plant but, realizing it could not admit guards and non-guards 
to the same union, recruited a guard to continue the organiz- ing efforts.

          [ ] Petitioner's president was a longtime friend of 
     officers and agents of Local 714 and was "sought" by 
     Local 714 to continue organizational efforts among the 
     Employer's guards immediately after Local 714 withdrew 
     its own petition.  Local 714 prepared the showing of 
     interest petition circulated among the Employer's 
     guards, including therein language which waived dues 
     until a collective-bargaining agreement was obtained by 
     Petitioner.  In addition, Local 714 obtained employee 
     signatures on this petition and prepared the representa-
     tion petition which was filed by Petitioner with the 
     Board.
     
Id. at 1737.  Accord Bally's Park Place, Inc., 257 N.L.R.B. 
777 (1981) (indirect affiliation where business manager of 

guards' union attended and participated in non-guards' un- ion's weekly business meetings, and guards' union participat- ed in picketing at non-guards' union site);  The Wackenhut 
Corp., 223 N.L.R.B. 1131 (1976) (indirect affiliation found 
where same individual served as secretary-treasurer of 
guards' union and assistant to the president of non-guards' 
union, guards' union's president was employed by non-guards' 
union and negotiated the collective-bargaining agreement, 
two officers of non-guards' union had check-signing authority 
for guards' union, and shared office and secretarial staff 
continued for six years);  Mack Manuf. Corp., 107 N.L.R.B. 
209 (1953) (indirect affiliation where local CIO committeeman 
conducted all of the actual organizing and soliciting and 
witnessed guards' authorization cards, and meetings were 
held in CIO's building).  This case is more like The Midvale 
Co., 114 N.L.R.B. 372 (1955), in which the non-guard union's 
involvement in the guards' union's affairs involved principally 
advice as to organizational strategies, a shared lawyer, a 
shared meeting room for one organizational meeting, mimeo- graphed authorization cards provided by the non-guards' 
union, and attendance by guards at a meeting of the non- guards' union.  Although Sakata participated in a half dozen 
meetings of the guards' union that occurred in the Carpen- ters' offices, that does not seem enough to us to "displace the 
Board's choice," Universal Camera, 340 U.S. at 488;  the 
testimony showed that Sakata provided more advice than 
direction at these meetings.  See J.A. at 174, 211 (testimony 
of Murray;  Sakata).

     We are cognizant that utilization of the "formative stage" 
doctrine should not immunize any new guards' union that 
receives help from a non-guards' union;  rather, the facts of 
each case require careful attention.  We caution that two of 
the Regional Director's conclusions, while supported by the 
record in this case, could be applied in another case to nudge 
the "formative stage" doctrine from a fact-bound analysis to a 
broader exemption that would cover most new guards' unions.  
First, the Regional Director supported his ruling on certifica- tion with observations that the union was new, inexperienced, 
small, and without financial or other resources, suggesting its 

critical need for experienced help in getting started.  See J.A. 
at 122.  However, a different reading of similar facts was 
adopted in Stewart-Warner, 273 N.L.R.B. at 1738, in which 
the Board noted that a new, inexperienced, small and poor 
guards' union could easily be overborne by an experienced 
non-guards' union.  Second, the Regional Director here relied 
on the fact that the association was not created as a "proxy" 
for the Carpenters, and that Sakata had no "veto" authority 
over the association's decisions.  J.A. at 123.  But as the 
Eleventh Circuit has noted, section 9(b)(3) of the Act "pre- vents 'affiliation,' not merely 'control.' "  NLRB v. Brinks, 
Inc. of Fla., 843 F.2d 448 (11th Cir. 1988).  Nonetheless, we 
agree that at the end of the day, the record supports the 
conclusion that the two unions in this case are not "affiliated," 
such that the guards' union cannot act independently and 
make its own policy choices.  Credible testimony showed that 
Sakata's filling out of the LM-1 petition, obtaining of sample 
bylaws and constitutions, attendance at meetings and answer- ing questions, and distribution of authorization cards were all 
done at the behest of the guards, who never gave him carte 
blanche to act on their behalf but rather asked him to provide 
particular advice and certain clerical services.  In addition 
there is uncontroverted evidence showing that the union had 
been in existence for only two months before the hearing, 
that Sakata's role was primarily advisory, and that Sakata 
was the only non-guard providing assistance, lend substantial 
support to the Regional Director's conclusion of no indirect 
affiliation.11  Cf. Brinks, Inc., 274 N.L.R.B. at n.4 (indirect 
affiliation found where close affiliation between two unions, 

__________
     11 Wackenhut argues that strong evidence in its favor lies in a 
claim made by the Officers' Association lawyer during the represen- tation hearing that Sakata's communications with the lawyer were 
protected by attorney-client privilege.  See J.A. at 236-37.  We do 
not find this claim of privilege to be dispositive of Sakata's relation- ship with the union for purposes of this case.  The determination of 
who can claim attorney-client privilege on behalf of an organization 
and in what situations is a highly fact-specific inquiry, and it is 
natural that the union would seek to invoke it for any advisor or 
agent who communicated with its lawyer about union business.

including a common officer, existed for at least 10 months 
before hearing).

     We also conclude that the Board did not err in its rulings 
on the past election incidents raised by Wackenhut.  In its 
March 16 order denying reconsideration of the Direction of 
Election, the Board considered evidence of three additional 
incidents that occurred between Sakata and the guards' asso- ciation post-election:  that Sakata contacted the Board about 
election procedures;  that Sakata orally told a Wackenhut 
manager after the election to start bargaining with the associ- ation;  and that Sakata sent Wackenhut a letter asking the 
company to designate a bargaining agent.  The Board con- cluded that none of these events indicated that Sakata was 
directing the union, instead of vice versa, and we agree.  We 
observe, in addition, that Sakata did not represent himself as 
the association's bargaining agent;  his function was more 
akin to shepherding a new union through its post-election, 
adolescent pangs.  Again, we decline to "displace the Board's 
choice between two fairly conflicting views," Universal Cam- era, 340 U.S. at 488, and we sustain the Board's conclusions 
here as reasonably defensible.

     Finally, the Board reasonably found that Sakata's involve- ment as the union's "agent" stopped as of November 28, 1997, 
the date of the Officers' Association letter to Wackenhut 
announcing that the association's vice-president would hence- forth serve as its agent.  See J.A. at 305 (March 16 order 
denying reconsideration of decisions denying review of Di- rection of Election).  The Board has consistently held that no 
indirect affiliation exists even where involvement of a non- guards' union in a guards' union affairs has been extensive 
but stops at the conclusion of the union's formative stage.  
See, e.g., International Harvester, 145 N.L.R.B. at 1749 ("The 
Board has refused to find indirect affiliation where, on the 
record, it appeared that the assistance and advice once re- ceived by the guard union from the nonguard union had, in 
fact, terminated.");  Inspiration Consol. Copper Co., 142 
N.L.R.B. 53 (1963) (no indirect affiliation when no prospect of 
future assistance, where union representative from smelters' 
union once served as liaison between local and international 

guards' union);  Federal Servs., 115 N.L.R.B. at 1730 (no 
indirect affiliation when help from non-guards' union officers 
ceased after formative stage).  Recently, in U.S. Corrections 
Corp., 325 N.L.R.B. No. 54, 1998 WL 65903 (1998), the Board 
found that even though the business agent for a non-guard 
local participated in collective bargaining on the guards' 
behalf and helped to conduct their organizational efforts for 8 
months, there was no indirect affiliation at the time the 
employer filed a petition to revoke the union's certification.  
By then, the non-guard business agent had announced that he 
would no longer take part in collective bargaining, and the 
Board declined to revoke the certification because any prior 
affiliation had terminated.

     A reviewing body will of course look behind a professed 
intention to cease assistance to a guards' union to ensure that 
it is bona fide.  See Bally's Park Place, Inc., 257 N.L.R.B. 
777 (1981) (considering conflicting evidence regarding wheth- er an indirect affiliation had actually ceased).  In this case, 
the Board considered the only timely presented piece of 
evidence presented by Wackenhut that pertained to Sakata's 
activities after the November 28 letter from the Officers' 
Association stating that Sakata would no longer serve as the 
association's agent:  Sakata's attendance at an unemployment 
hearing with a former guard employee.  The Board conclud- ed, and we agree, that by itself this incident does not amount 
to enough to show that Sakata was still acting as an agent for 
the association.  See J.A. at 532 (May 6, 1998, order denying 
review of Regional Director's certification decision).12

                         IV.  Conclusion

     For the reasons stated above, we grant the Board's cross- petition for enforcement and deny Wackenhut's petition for 
review and for an evidentiary hearing.

                                                      So ordered. __________
     12 We observe that the Officers' Association April 7, 1998, bar- gaining demand to Wackenhut was neither authored by nor "cc'd" 
to Sakata.  See J.A. at 1167-68.