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" date_filed="1988-04-26" court="11th Cir." case_name="National Labor Relations Board v. Brinks, Incorporated of Florida">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" date_filed="1999-01-15" court="D.C. Cir." case_name="Family Service Agency San Francisco v. National Labor Relations Board, Service Employees International Union, Local 790, Afl-Cio, Intervenor">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" date_filed="1996-05-07" court="D.C. Cir." case_name="Kwik Care Ltd. v. National Labor Relations Board">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" date_filed="1941-05-26" court="SCOTUS" case_name="Pittsburgh Plate Glass Co. v. National Labor Relations Board">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 1369" date_filed="1999-01-15" court="D.C. Cir." case_name="Family Service Agency San Francisco v. National Labor Relations Board, Service Employees International Union, Local 790, Afl-Cio, Intervenor">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" date_filed="1990-06-15" court="D.C. Cir." case_name="North Bay Development Disabilities Services, Inc. D/B/A North Bay Regional Center v. National Labor Relations Board">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" date_filed="1979-05-14" court="SCOTUS" case_name="Ford Motor Co. (Chicago Stamping Plant) v. National Labor Relations Board">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" date_filed="1951-02-26" court="SCOTUS" case_name="Universal Camera Corp. v. National Labor Relations Board">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" date_filed="1984-06-25" court="SCOTUS" case_name="Chevron U. S. A. Inc. v. Natural Resources 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" date_filed="1952-12-15" court="SCOTUS" case_name="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. 837" date_filed="1984-06-25" court="SCOTUS" case_name="Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.">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. 474" date_filed="1951-02-26" court="SCOTUS" case_name="Universal Camera Corp. v. National Labor Relations Board">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" date_filed="1988-04-26" court="11th Cir." case_name="National Labor Relations Board v. Brinks, Incorporated of Florida">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.