The Wackenhut Corp.

374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Wackenhut Corporation and International Union, United Plant Guard Workers of America General Service Employees Union Local 73, Service Employees International Union, AFL-CIO- CLC and International Union, United Plant Guard Workers of America . Cases 33-CA- 7230, 33-CB-2237, 33-CC-765, and 33-CP- 200 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 11 December 1985 Administrative Law Judge Michael O. Miller issued the attached deci- sion. General Service Employees Union Local 73, Service Employees International Union, AFL- CIO-CLC (Local 73) (the Respondent Union)' and the International Union, United Plant Guard Work- ers of America (UPGWA) (the Charging Party), filed exceptions and supporting briefs. The General Counsel filed cross-exceptions and a supporting brief and also filed a brief in partial support of the judge's decision. The Respondent Union filed an- swering briefs to the exceptions filed by the Charg- ing Party and the General Counsel. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to ' affirm the judge's rulings, findings, 2 and conclusions, as modified, and to adopt the recom- mended Order as modified and set forth in full below. 3 The judge found that the Respondent Union vio- lated (1) Section 8(b)(4)(ii)(B) of the Act by threat- ening to picket Commonwealth Edison's nuclear power plant at Byron, Illinois, to force Common- wealth Edison to cease doing business with the Wackenhut Corporation (Wackenhut) unless Wack- ' The Respondent Union's request for oral argument is denied as in our opinion the record in this case, including the exceptions and briefs, ade- quately presents the issues 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 The Respondent Union excepts to the inclusion in the judge's recom- mended Order of a visitatorial clause authorizing the Board, for compli- ance purposes, to obtain discovery from the Respondent Union under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order We find merit in the Re- spondent Union's exception, having concluded that under the circum- stances of this case such a clause is not warranted The judge's recom- mended Order will be modified accordingly enhut agreed to a card check or non-Board elec- tion among its guard employees, and (2) Section 8(b)(7)(C) by threatening to picket Wackenhut to force Wackenhut to recognize and bargain with the Respondent Union as the collective-bargaining rep- resentative of its guard employees, although Sec- tion 9(b)(3) precludes Board certification. We agree with the judge's conclusions concerning these vio- lations. However, for the reasons set forth below, we find, contrary to the judge, that Wackenhut (the Respondent Employer) violated Section 8(a)(2) by recognizing the Respondent, Union as the col- lective-bargaining representative of, its guard em- ployees at the Byron site and that the Respondent Union violated Section 8(b)(1)(A) by accepting rec- ognition. The facts are set forth fully in the judge's deci- sion. Wackenhut was employed by Commonwealth Edison to supply guards at its Byron, Illinois nucle- ar power plant. Both Local 73 and UPGWA sought to represent the guards. Local 73 is a mixed, guards-nonguards union while UPGWA limits its membership to guards. On 19 November 19844 UPGWA filed a petition with the Board seeking certification as the collective-bargaining representatives of the Wackenhut guard employees at the Byron site on 13 December. Local 73's peti- tion to intervene in that proceeding and to appear on the ballot was denied by the Acting Regional Director. That same date he approved a Consent Election Agreement, which the UPGWA and the Employer had executed. Between the filing of the petition and the hold- ing of the election Local 73 conducted a counter- campaign urging the guard employees to vote "no" on the ballot. It assured them that if UPGWA lost the election, Local 73 would "immediately move to obtain recognition and a contract at Byron." In re- sponse, Wackenhut circulated a leaflet informing the guards that Local 73 could not be certified as their bargaining representative and that Wackenhut could not be compelled to bargain with it. Local 73 representatives met during the latter part of De- cember with Louis Fulgaro, Wackenhut's Chicago manager. Fulgaro agreed to an informal card check as the means by which Local 73 would gain recog- nition if there was a substantial "No" vote.5 At the 11 January election one employee voted for the UPGWA while the remaining 150 voted "No." UPGWA filed a timely objection to the 4 All dates are in the last half of 1984 or the first half of 1985 unless otherwise stated 5 The judge did not resolve the question of whether Fulgaro was au- thorized to deal with the Union regarding the Byron site at that time The judge described the events only to shed light on Local 73's subse- quent actions 287 NLRB No. 40 WACKENHUT CORP. 375 election, which the Regional Director on 5 Febru- ary overruled. Thereafter, UPGWA filed with the Board a request for review of the Regional Direc- tor's report. Meanwhile, on 14 January, Local 73 contacted Fulgaro and arranged for a meeting on 18 January to discuss a card check. However, when the Local 73 representatives arrived at Ful- garo's office on 18 January Fulgaro refused to see them. On 22 January Local 73 sent a mailgram to Commonwealth Edison to require Wackenhut to submit to either a card check or a non-Labor Board election stating that "[t]his is the only avenue which can assure labor relations peace at the Byron facility." In addition, Local 73 met with representatives of the building trades, which had members on the Byron site. Local 73 sought their assistance in obtaining a card check or a third- party election as suggested in the 22 January mail- gram. Through the auspices of the governor of Illinois, a meeting was arranged for 15 February. The chief participants were Harry Kurshenbaum, Local 73 business manager; William Bitter, Wackenhut vice president in charge of labor relations; and Thomas Smith, business representative for the Council.6 During the discussion, Kurshenbaum warned Bitter that "If Wackenhut was not willing to test his con- tention that the employees by voting against UPGWA were seeking representation by Local 73 by either a card check or non-Board election, then he would set up picket lines and shut down the plant." Bitter expressed concern about holding an election while objections were pending, but agreed at the end of the meeting to call Joel Kaplan, Wackenhut's attorney, after 19 February to discuss further a card check or non-Board election. After the meeting Bitter consulted with Kaplan. Bitter authorized Kaplan to agree to a non-Board election. Representatives of Local 73 and Wacken- hut met again on 26 February to discuss the effica- cy of holding a non-Board election. Kurshenbaum acted as spokesman for Local 73 and Kaplan repre- sented Wackenhut. Kaplan attempted to explain the legal problems involved in conducting an election while the UPGWA's objection was still pending. Kurshenbaum responded by declaring "Let's cut through the stuff. The real issue here . . . is Com- monwealth Edison. That if there is any disruption on the site . . . Commonwealth Edison is going to have no choice but to get rid of the supplier; and .. . if we don't reach an agreement, there would be disruption." The parties agreed that an election, conducted by the American Arbitration Associa- 6 Edison had advised Bitter and Smith about the meet- ing but did not have a representative present. tion, would be held among the guard employees on 23 April with the UPGWA invited to participate. `At the 23 April election, 170 employees voted for and 6 employees voted against representation by Local 73. On 26 April Wackenhut recognized Local 73 as the collective-bargaining representative of its guard employees and has participated in bar- gaining sessions with it. On 29 May the Board adopted the Regional Di- rector's recommendations, overruled UPGWA's objection to the 11 January election, and certified the results of the election. The judge found that the guard employees had demonstrated their support for Local 73 in an at- mosphere free of coercion or assistance, that the parties had waited a reasonable time for the Board to act before they risked recognition, and that rec- ognition was granted only a few weeks before the Board finally acted on UPGWA's objection. He noted that, had the Board sustained UPGWA's ob- jection, Wackenhut and Local 73 would have been found in violation and found that because the par- ties correctly anticipated that the Board would overrule the objection, Wackenhut's recognition of Local 73 was not "tainted by the technically pend- ing objection" and there was no violation of Sec- tion 8(a)(2) and Section 8(b)(1)(A). We disagree and find that the recognition was unlawful both be- cause it was accorded while an election petition was pending and because the recognition was co- erced by a mixed-guard unit in this guard unit. The judge correctly noted that the Board, in Bruckner Nursing Home, 262 NLRB 955 (1982), held that employers are prohibited from recogniz- ing any competing unions for the limited period during which a representation petition is in process. See also Haddon House Food Products, 269 NLRB 338 (1984). However, he finds that Bruckner and Haddon House are distinguishable and instead relies on Gulf & Western Mfg. Co., 227 NLRB 696 (1977). In our view it is Gulf & Western that is distinguish- able. There an incumbent union had won. While objections were pending, the employer and the in- cumbent union negotiated and executed a new agreement. Subsequently, the objections were over- ruled. The Board affirmed the administrative law, judge, who had found that the parties acted at their peril in negotiating the agreement while the objec- tions were pending, but having anticipated the dis- position of the objections, their actions did not vio- late the Act. The judge noted that, during the long period that the objections were pending, progress was made in resolving employer and union differ- ences and the employees would have been denied representation by the incumbent union for which over two-thirds of them voted. 376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The instant case involves initial bargaining when the question is which of two rivals is to be recog- nized. It does not pose a situation in which em- ployee free choice must be balanced against the stability of an existing collective-bargaining rela- tionship.7 Accordingly, we find the rule set forth in Bruckner is controlling and that Wackenhut's recognition of Local 73 while the UPGWA's ob- jection to the 11 January election was pending vio- lated Section 8(a)(2) and Section 8(b)(1)(A) of the Act, respectively.8 Further, even in the absence of the pending rep- resentation case, we would find that the mixed- guard union unlawfully obtained recognition from the Employer. As correctly noted by the judge, the Act does not prohibit a mixed-guard union from accepting recognition for a guard unit if such rec- ognition is willingly extended . However, a mixed- guard union may do no more than ask an employer for such recognition . When recognition is refused it cannot resort to economic weapons to obtain what the employer chooses not to grant. As the court stated in NLRB v. White Motor Corp., 404 F.2d 1100, 1103 (6th Cir. 1968): While it is not improper for a . . . [mixed guard union] . . . to make an initial request for recognition as agent of the guards, it is impor- tant to realize that this request is one which, unlike most labor-management matters, the employer has the unqualified right to refuse, unilaterally. When an employer refuses recog- nition, the union may press its case no further. Thus, the Union has lawfully obtained recogni- tion only if such recognition is as a result of the employer's free choice.9 Here, as fully described above, the 23 April election was the direct result of threats to take economic action if the Respondent Union's demands for such election were not hon- ored. The Union's demand for recognition and the Employer's grant of recognition were the direct result of this election . That being the case, we find that the recognition was not a result of the employ- er's free choice and therefore was unlawfully ob- tained in violation of Section 8(b)(1)(A). Further, the Employer's grant of recognition pursuant to an unlawful union demand violates Section 8(a)(2) and (1).10 7 Cf. RCA del Caribe, 262 NLRB 963 (1982). 8 Bruckner Nursing Home, 262 NLRB 955 (1982), Midwest Piping Co, 63 NLRB 1060 ( 1945). 8 Wells Fargo Corp, 270 NLRB 787 (1984). is We recognize that past cases have dealt with the Employer 's right to resist a demand for recognition or to withdraw recognition previously granted. See, e.g, NLRB v. White Motor Corp., supra, and Wells Fargo, supra. However, the same principles apply to a demand for recognition which the union unlawfully urges on the employer and which an employ- er grants as a result of such demands ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that A. The Respondent, The Wackenhut Corpora- tion, Byron, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Recognizing or negotiating with General Service Employees Union Local 73, Service Em- ployees International Union, AFL-CIO-CLC as the exclusive collective-bargaining representative of its guard employees at the Commonwealth Edison Corporation, Byron, Illinois Nuclear Power Station, while an election petition for another union is in process or pursuant to a demand for recognition that is supported by threats of or actual coercive activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from General Service Employees Union Local 73, Serv- ice Employees International Union, AFL-CIO- CLC as the collective-bargaining representative of its guard employees at the Commonwealth Edison Corporation, Byron, Illinois Nuclear Power Station while an election petition for a rival union is in process and as long as Local 73 seeks to coerce recognition to act as the exclusive collective-bar- gaining representative of these employees. (b) Post at its location in Byron , Illinois, copies of the attached notice marked "Appendix A."11 Contrary to our dissenting colleague's intimation, the 8(b)(1)(A) viola- tion found here is not a "threat to picket to obtain recognition." The threats by the Respondent Union have been already found to be 8(b)(4)(u)(B) and 8(b)(7)(C) violations. The 8(b)(1)(A) violation here is the Union's acceptance of recognition, which was effectively extended as a result of the unlawful threats. In such circumstances, NLRB v. Teamsters Local 639 (Curtis Bros), 362 U.S. 274 (1960), cited by our colleague, is factually inapposite. Further, notwithstanding the Respondent Union's majority status, we are satisfied that an 8(a)(2) violation has been estab- lished on these particular facts given the Respondent Union's unique status as a mixed-guard union In finding that the Respondent Union violated Sec 8(b)(1)(A) and that the Respondent Employer violated Sec. 8(a)(2), Member Johansen relies solely on Bruckner Nursing Home and Haddon House Unlike his col- leagues, he does not view the constraints affecting a mixed-guard union under Sec. 9(b)(3) to render a threat to picket to obtain recognition and acceptance thereof, "restraint or coercion" within the meaning of Sec. 8(b)(1)(A). See generally NLRB Y. Teamsters Local 639, supra Further, Member Johansen does not find that an employer coerced into recogniz- ing the majority representative of its employees thereby violates Sec. 8(a)(2) without more. i i If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- Continued WACKENHUT CORP. 377 Copies of the notice on forms provided by the Re- gional Director for Region 33, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. B. The Respondent, General Service Employees Union Local 73, Service Employees International Union, AFL-CIO-CLC, its officers, agents, and representatives, shall 1. Cease and desist from (a) Acting as the exclusive bargaining representa- tive of the guard employees employed by the Re- spondent Employer at the Commonwealth Edison Corporation, Byron, Illinois Nuclear Power Sta- tion, for the purposes of collective bargaining until, at a time when no representation petition is pend- ing, it has Wackenhut Corporation's uncoerced rec- ognition to act as their exclusive collective-bargain- ing representative. (b) Threatening, coercing, or restraining Com- monwealth Edison Corporation, or any other person engaged in commerce or in an industry af- fecting commerce, with an object of forcing or re- quiring Commonwealth Edison, or any other person, to cease doing business with Wackenhut Corporation. (c) Threatening to picket or causing to be picket- ed the Wackenhut Corporation, or any other em- ployer, where an object is to force or require the Wackenhut Corporation, or any other employer, to recognize or bargain with the Respondent Union as the representative of their guard employees or to force or require the guard employees of Wacken- hut Corporation, or any other employer, to accept or select the Respondent Union as their collective- bargaining representative when it has not been cer- tified as the collective-bargaining representative of these employees and cannot be certified under the provisions of Section 9(b)(3) of the Act. (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (a) Post at its Chicago, Illinois and Byron, Illi- nois facilities, if any, copies of the attached notice marked "Appendix B."12 Copies of the notice, on forms provided by the Regional Director for Region 33, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (b) Forward to the Regional Director for Region 33 signed copies of the notice for posting by the Respondent Employer, if the employer is willing, at all locations where notices to employees are cus- tomarily posted. (c) Publish, at its expense, the terms of the notice in a form and size approved by the Regional Direc- tor for Region 33 , in a daily newspaper of general circulation in the Chicago , Illinois area and in The Local 73 Journal. Newspaper publication is to be made on 3 separate days within a 3-week period at a time designated by the Regional Director. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT recognize, or negotiate with Gen- eral Service Employees Union Local 73, Service 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Employees International Union , AF-L-CIO-CLC, as the collective-bargaining representatives of guard employees at Byron, Illinois Nuclear Power Station location , which is supported by threats of or actual coercive activities , while an election peti- tion is in process as pursuant to a demand for rec- ognition. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold recognition from General Service Employees Union Local 73, Service Employees International Union, AFL- CIO-CLC, as the collective-bargaining representa- tive of guard employees at the Commonwealth Edison Corporation, Byron, Illinois Nuclear Power Plant while an election petition for a rival union is in process and as long as Local 73 seeks to coerce recognition as the exclusive bargaining representa- tive of the guard employees. THE WACKENHUT CORPORATION APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT act as the collective-bargaining representative of guard employees employed by the Wackenhut Corporation at the Commonwealth Edison Corporation, Byron, Illinois Nuclear Power Plant until we have obtained from the Wackenhut Corporation uncoerced recognition as the exclusive bargaining representative of the guard employees at a time when no representation petition is pend- ing. WE WILL NOT threaten, coerce, or restrain Com- monwealth Edison Corporation, or any other person engaged in commerce or in an industry af- fecting commerce, with an object of forcing or re- quiring Commonwealth Edison, or any other person, to cease doing business with the Wacken- hut Corporation. WE WILL NOT threaten to picket or "cause to be picketed the Wackenhut Corporation, or any other employer, when the object is to force or require the Wackenhut Corporation, or any other employ- er, to recognize or bargain with us as the repre- sentative of their guard employees or to force or require the guard employee's of the Wackenhut Corporation, or any other employer, to accept or select us as their collective-bargaining representa- tive when we have not been certified as the collec- tive-bargaining representative of such employees and can not be certified by virtue of the provisions of Section 9(b)(3) of the Act. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. GENERAL SERVICE EMPLOYEES UNION LOCAL 73, SERVICE EMPLOY- EES INTERNATIONAL UNION, AFL- CIO-CLC Judith T Poltz, Esq., for the General Counsel. John W. Powers, Esq. (Seyfarth, Shaw, Fairweather & Ger- aldson), of Chicago, Illinois, for the Respondent Em- ployer. Irving M. Friedman, Esq. and Ann C Hodges, Esq. (Katz, Friedman, Schur & Eagle), of Chicago , Illinois, for the Respondent Union. Jeffrey J. Ellison, Esq., of Detroit, Michigan , for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on 28-29 August 1985, in Rockford, Illi- nois, based on unfair labor practice charges filed by International Union, United Plant Guard Workers of America (UPGWA) (UPGWA or the Union), on 29 April 1985 , and a complaint issued by the Acting Re- gional Director for Region 33 of the National Labor Re- • lations Board (the Board), on 8 May 1985 , as thereafter amended. The complaint alleges that the Wackenhut Corporation (Wackenhut or Respondent Employer), vio- lated Section 8(a)(1) and (2) of the National Labor Rela- tions Act (the Act), by recognizing General Service Em- ployees Union Local 73, Service Employees Internation- al Union, AFL-CIO-CLC (Local 73 or Respondent Union), as the exclusive bargaining representative of cer- tain of its employees , notwithstanding the existence of a question concerning recognition . The complaint further alleges that Local 73 violated Section 8(b)(4)(ii)(B), 8(b)(7)(C), and 8(b)(1)(A) by threatening to cause the employees of secondary employers to strike in order to force Wackenhut to grant it recognition , by threatening to strike or picket for recognition , and by accepting rec- ognition from Wackenhut . The Respondents filed timely answers to the complaint and amended complaint, deny- ing the substantive allegations. All parties were afforded full opportunity to appear, to examine, and to cross-examine witnesses, and to argue orally. I have carefully considered the briefs that were filed on behalf of the General Counsel , Respondent Em- ployer, and Respondent Union. WACKENHUT CORP. 379 Based on the entire record,' including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. RESPONDENT EMPLOYER'S BUSINESS AND THE UNION'S LABOR ORGNAIZATION STATUS- PRELIMINARY CONCLUSIONS OF LAW Wackenhut is, and has been at all times material, a Florida Corporation with one of its offices and place of business at Byron, Illinois . Jurisdiction is not disputed. The complaint alleges, Wackenhut admits, and I find and conclude that Wackenhut is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, both Respondents admit, and I find and conclude that both Local 73 and UPGWA are labor organizations within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICE ALLEGATIONS A. Background Local 73 is a union that represents and admits to mem- bership both guard and nonguard employees . Because of this guard-nonguard or mixed union status, it is disquali- fied from Board certification as bargaining representative of units of guard employees by Section 9(b)(3) of the Act. Additionally, it is precluded from participation in Board-conducted representation elections either as peti- tioner or intervenor. University of Chicago, 272 NLRB 873 (1984). Wackenhut's business is the furnishing of guard service to other employers. Since about 1983, it has provided the guard services to Commonwealth Edison Corporation at the latter's Byron, Illinois Nuclear Power Station. In early 1985, Wackenhut had about 200 guards working at that site. Also employed there, by various employers, were several thousand other employees . Some of these employees were members of local unions that were, themselves, members of the Northwestern Illinois Build- ing and Construction Trades Council (BCTC). Since at least the latter part of 1983, Local 73 has sought to represent the guards at the Byron site . Since at least late 1984, UPGWA has had the same interest. B. Events Preceding Mid-February 19852 On 19 November, UPGWA filed a petition, seeking certification as collective-bargaining representative of Wackenhut's Bryon site employees. On 5 December, Local 73 petitioned to intervene in that proceeding on the basis of signed authorization cards. Intervention was denied by the Acting Regional Director on 13 Decem- ber; on that same day he approved a Stipulation for Cer- tification Upon Consent Election that UPGWA and the Employer had executed . The stipulation provided for an election to be conducted among the guards on 11 Janu- ary. Local 73 continued to organize Wackenhut's employ- ees, encouraging them to vote "NO" as a way of show- ing their support for Local 73. In one leaflet, Local 73 assured the employees that, after they had rejected UPGWA, Local 73 would "immediately move to obtain recognition and a contract at Byron." Wackenhut coun- tered this leaflet with a letter of its own, advising the employees that Local 73 could not be certified and that Wackenhut could not be compelled to bargain with it. About 28 December, representatives of Local 73 met with Wackenhut's Chicago area manager, Louis Fulgaro, at the latter's office. 3 Fulgaro was told that Local 73 was orchestrating a "NO" vote as a show of support for itself. The parties discussed how recognition might be granted if, indeed, there was a substantial "NO" vote and Fulgaro agreed that an informal card check could be held.4 On 10 January the Board denied Local 73's appeal from the rejection of its motion to intervene . The Board election was held, as scheduled, on 11 January. Local 73 did not appear as a choice on the ballot. Of the 187 eligi- ble voters, 151 cast ballots. UPGWA received but one vote; 150 "NO" votes were cast. UPGWA filed a timely objection alleging, in substance, that by conducting an organizational campaign among the unit employees even though it "was ineligible to represent the employees," Local 73 had informed "unit employees that it could compel recognition from the Employer if the employees defeated petitioner's bid for certification." This cam- paign, UPGWA contended, "misled the employees and destroyed `the laboratory conditions' necessary for an election." On 5 February, the Regional Director over- ruled UPGWA's objection in its entirety. On 14 January Local 73 business representative, Gerald Lee, called Fulgaro . Pursuant to the 28 Decem- ber agreement for a card check , a meeting was scheduled for 18 January. However, when Local 73's representa- tives arrived at Fulgaro's office on that date, they were turned away without explanation. On 22 January Local 73 sent a mailgram to the Nucle- ar Security Administrator for Commonwealth Edison, advising him of what it deemed to be the true meaning of the vote and of the agreement, now breached, with Fulgaro. Local 73 stated: Wackenhut employees are restless , frustrated and aggressive, they want representation. We are being called upon to supply that vehicle. We are sorry Commonwealth Edison is caught in the middle, it is not of our choosing. Wackenhut, the contractor, has deliberately planned to destroy labor relations tran- I The unopposed motions of the General Counsel and counsel for Local 73 to correct transcript are granted. The General Counsel's un- timely and overbroad motion to amend the complaint to conform to the evidence is denied. 2 All events described here occurred between November 1984 and May 1985, unless otherwise specified. ' It is immaterial whether Fulgaro was authorized to deal with unions regarding the Byron site at that time. The events of this meeting are de- scribed only to shed light on Local 73's subsequent actions. 4 This testimony, by Richard Wesley, a Local 73 business representa- tive, was uncontradicted and was not implausible , particularly in light of earlier dealings between Fulgaro and Local 73 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quility at the Byron facility. Commonwealth Edison as a customer, can and must resolve this problem. The mailgram continued- We are committed to represent "all" Wackenhut employees at the Byron installation . We are pro- ceeding to take every step necessary to establish that fact. We call upon yop to make Wackenhut comply with the employees' request, namely, Local 73 have its card check (which was agreed to with Wackenhut), or, a non-Labor Board election with any third party selected by Commonwealth Edison. This is the only avenue which can assure labor rela- tions peace at the facility.5 About this same period of time, Local 73 representatives met with representatives of the building trades unions, which had members on the Byron site, through the BCTC. Support of these unions was sought to achieve the same ends as suggested in the 22 January mailgram, recognition on proof of majority status through a card check or non-Board election C Credibility Regarding the disputed conversations in the 15 and 26 February meeting, discussed in the following sections, I have credited the testimony of William Bitter, Wacken- hut's consultant, and formerly its vice president for labor relations, and Joel Kaplan, Wackenhut's counsel, over that offered by Harry Kurshenbaum, Gerald Lee, and Richard Wesley, Local 73's business manager and its business representatives, respectively, and Thomas Smith, the BCTC business representative. The testimony offered on behalf of Local 73 was, in each of the relevant in- stances, less convincing regarding demeanor than the tes- timony offered by the General Counsel. Smith appeared to have but a vague recollection of the events and what recollection he did possess was hindered by his apparent unfamiliarity with both the rules and nomenclature of labor relations. Wesley and Lee were simply unpersua- sive and Kurshenbaum was a reluctant, hostile, sometime contradictory, and frequently unresponsive witness. The most significant factor, however, in resolving the credi- bility conflicts was Kurshenbaum's article in Local 73's own newspaper, The Journal, for March and April 1985, quoted at length, infra. Kurshenbaum's article, as well as the 22 January mailgram to Commonwealth Edison, with its references to "aggressive" and "restless" employees and destruction of "labor relations tranquility," corrobo- rates in words and tone the testimony of Bitter and Kaplan. It describes employee pledges to strike, BCTC pledges of support for a strike "to help shut the nuclear operation down," strike preparations, and the imminence of a strike if no agreement could be reached with Wack- enhut. The language of the article is both plain and clear. Kurshenbaum's claim that it was mere hyperbole, an ex- ercise in "journalistic license," asks too much of the trier of fact's credulity. On the facts before me, I believe he wrote a basically accurate article; it was his testimony that lacked candor. The article, of course, similarly re- flects adversely on the candor of Wesley, Lee, and Smith. D. The Meeting of 15 February 1985 On 15 February William Bitter, on behalf of Wacken- hut, met with Local 73's representatives Kurshenbaum, Wesley, and Lee, and the BCTC representative, Thomas Smith, in the State of Illinois building in Chicago. Also present, chairing the meeting, was Terry Bedgood, a rep- resentative of the Governor of Illinois. Although both Bitter and Smith had been advised of this meeting by Commonwealth Edison, no representative of that compa- ny was present. Bedgood opened the meeting by stating the Governor's concern for a peaceful settlement of the question at the Byron site. Smith explained his presence at the meeting on the basis that the AFL-CIO did not want to see its brothers in Local 73 have unnecessary roadblocks to recognition thrown in their way. He asked for Wackenhut's position concerning Local 73's claim of representative status. Bitter voiced his concern about conducting an election while the Board's certification of results was still pending, noting that UPGWA still had until Tuesday, 19 February, to appeal to the Board from the Regional Director's report overruling UPGWA's ob- jections to the 11 January election Bitter stated that if UPGWA did not appeal, a certification of results would issue. At this juncture, Kurshenbaum interrupted. He stated, "It could take . . . years to get a certification out of the Board in this particular case . his union was not going to sit by and wait for that certification to issue . . if Wackenhut was not willing to test his contention that the employees, by voting against United Plant Guard Work- ers were seeking representation by Local 73, then he would set up picket lines and shut down the plant." Bitter replied, suggesting that the "NO" vote could also be construed as indicating that the employees wanted no union representation Kurshenbaum offered to participate with the Company in either a card check or election conducted by a neutral third party. Bitter repeated his concern about discussing an election during the pendency of UPGWA's objection, and Kurshenbaum agreed to wait until the following Wednesday, after the exceptions filing period expired. Kurshenbaum further agreed that after 19 February he would contact Wackenhut's attorney in Chicago to fur- ther discuss either an election or a card check.6 E. The Meeting of 26 February 1985 Kurshenbaum's threat of a shutdown was taken seri- ously by Bitter, who discussed it with others at Wacken- hut. Bitter advised Wackenhut's counsel, Joel Kaplan, that a representative of Local 73 would be calling him and authorized Kaplan to set up an election with Local 73. 5 This mailgram has not been alleged as separately containing any threat violative of the Act 6 Kurshenbaum , Wesley, Lee, and Smith denied that any threats were made by Kurshenbaum in this meeting For the reasons previously stated, I credit Bitter WACKENHUT CORP 381 Kurshenbaum and Wesley, together with union coun- sel, met with Bitter and Kaplan at Kaplan's office on 26 February. Kaplan opened the meeting by describing the legal problems involved in conducting an election with- out UPGWA and while UPGWA's objections to the Board-conducted election were pending. Respondent's counsel and Kaplan agreed to postpone their disagree- ment over the potential problems to another forum Kur- shenbaum then spoke up stating, "Let's cut through this stuff. The real issue here . is Commonwealth Edison. That if there is any disruption on the site . . Common- wealth Edison is going to have no choice but to get rid of the supplier; and . . if we don't reach an agreement, there would be disruption " The parties discussed the mechanics of conducting an election and agreed that they would participate in an election conducted by the American Arbitration Associa- tion (AAA). They also agreed that UPGWA would be invited to participate. In the course of these latter discus- sions, Kurshenbaum stated that Local 73 wanted a quick election because both the building trades and the guards wanted to go on strike over Wackenhut's failure to rec- ognize Local 73 He repeated his statement that "Com- monwealth Edison wanted peace on the site. And, that if there wasn't an agreement that they would shut down the site. They would be expected to. 117 Following this meeting, Wackenhut and Local 73 worked out an election agreement through AAA and Wackenhut agreed to recognize Local 73 and bargain in good faith if Local 73 won the election The election was scheduled for 23 April. UPGWA did not accept a proffered invitation to participate.' F The Local 73 Journal The Local 73 Journal is Respondent Union's house organ. It is distributed by mail to Local 73's 18,000 mem- bers in Cook and surrounding counties. It is also mailed to officers of some other local unions, and some copies, those remaining after the mailing is complete , are avail- able to, be picked up in the Union's hall in Chicago. It is not distributed at the various facilities where Local 73's members are employed. The March-Apirl 1985 edition of the Local 73 Journal contains a lengthy article under the caption "Business Manager's Memo," written by Harry Kurshenbaum. In his article, as previously alluded to, Kurshenbaum de- scribed the chain of events leading to the election agree- ment with Wackenhut. The Union's adversaries, Kur- shenbaum wrote, included Wackenhut, Wackenhut's law- yers, the Labor Board, Commonwealth Edison, and UPGWA. The supporters included Wackenhut's security officers and guards, the BCTC leadership, several thou- sand tradesmen, and friends in the Governor's office. ' Kurshenbaum admitted discussing the Union 's desire for a quick card check or an election but denied making the threats attributed to him For the reasons previously stated , I have credited Kaplan and Bitter over both Kurshenbaum and Wesley regarding both the 15 and 26 February meetings I note that Kurshenbaum wrote the following about these meetings in the Local 73 Journal We were firm If we did not get rec- ognition, a strike was hours away after much bickering, Wackenhut suddenly collapsed In one big heap They agreed to a quick election, run by the American Arbitration Association " After the Labor Board election, Kurshenbaum contin- ued, Local 73 "contacted" Wackenhut and "confronted" Commonwealth Edison, without success Thereafter, Local 73 . . met with Northwestern Building Trades rep- resentatives in Dixon , Illinois. After lengthy discus- sion, they agreed to back us in this fight. What a show of solidarity) Tom Smith, business representa- tive, was assigned to work with us. The locals quickly committed several thousand members to help shut the nuclear operation down. This strike would cost Edison approximately $4 million a day. Local 73 laid out a careful strategy More meet- ings were held in the Rock River area. A mobile headquarters was rented , to be placed in a friendly farmer's cornfield . Actually, it was adjacent to the nuclear site. Everything was GO! The Governor's office, alerted to an explosive sit- uation, began prodding all parties into a meeting A nuclear strike could be damaging to Illinois' busi- ness image They volunteered to moderate the tense situation. We met . . . We were firm. If we did not get recognition, a strike was hours away. Tom Smith, representing Building Trades Council stated emphatically-no stalling. After much bickering, Wackenhut suddenly collapsed . In one big heap They agreed to a quick election, run by the American Arbitration Associa- tion . . . . The General Counsel offered no evidence to establish that this, house organ was distributed to or acquired by representatives of Wackenhut, Commonwealth Edison, any employers or employees on the Byron site, or any employers anywhere else G. The Election and Recognition The election among Wackenhut's guards and security officers was conducted under AAA auspices on 23 April; 176, valid votes were cast , 170 in favor of representation by Local 73, only 6 against . On 26 April Wackenhut rec- ognized Local 73 as the collective-bargaining representa- tive of the unit employees. Since that date there have been several negotiating meetings. On 29 May 1985 the Board adopted the Regional Di- rector's recommendations, overruled UPGWA's objec- tion to the Board election, and certified the results of that election H Analysis and Conclusions 1. Section 8(b)(4)(ii)(B) The evidence that I have credited establishes that Local 73's representative threatened , in the course of two meetings , to cause a strike at the Byron site in order to put pressure on Commonwealth Edison , a neutral em- ployer, to force Wackenhut, the primary employer, to 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD comply with Local 73's demands for an election or card check. Local 73 argues that no violation of Section 8(b)(4)(ii)(B) may be found inasmuch as no representa- tives of the neutral employer were present when the threats were made. The Board has previously considered and rejected this argument In Tri-State Building Trades Council (Backman Sheet Metal), 272 NLRB 815 (1984), Blankenship, the union's agent, told the primary employ- er, Backman, "at a prejob conference that he was going to `talk to . . . [the neutral general contractor] and see if they couldn't get Backman . removed from the project."' The Board, with Member Dennis dissenting, stated, in footnote 1. Although a representative of the neutral employer was not present when Blankenship's statement was made, the judge found, and we agree, that a viola- tion of Sec. 8(b)(4)(ii)(B) occurred. In Iron Workers Local 40 (Spancrete Northeast), 249 NLRB 917, 920 fn. 12 (1980), the Board found it was immaterial that representatives of the employer were not present when a union representative threatened to engage in a strike and picket unless the work assign- ment was changed, on the grounds that a threat made in order to cause a person to influence an em- ployer' to change a work assignment coerces not only the person threatened but also the employer from whom the work assignment is sought. While that case involved a violation of Sec. 8(b)(4)(ii)(D), it is relevant to the issue here. Blankenship's state- ment is clearly directed toward the-neutral employ- er and is a threat to exert pressure to remove the primary employer from the job In this sense, it is a threat of secondary pressure within the meaning of Sec. 8(b)(4). Backman Sheet Metal and Spancrete, on which it is based, are controlling here.8 No valid distinction may be found in the fact that, in Backman Sheet Metal, the threat was made at a prejob conference held on the neutral's in- structions. That fact was noted by the Board as addition- al support for its conclusion that the threat was violative, not as a prerequisite for such a finding. Moreover, the meeting of 15 February, wherein Kursheiibaum first -voiced the threat, was held with Commonwealth Edis- on's knowledge, and both Bitter and Smith were advised of the meeting by Commonwealth Edison. That meeting was thus akin to the prejob conference in Backman Sheet Metal. Similarly lacking in merit is Local 73's argument that Kurshenbaum "only threatened to engage in lawful pri- mary activity. The threats "to shut down the plant," to "shut down the site," and to disturb the peace that Com- monwealth Edison wanted to maintain on that site, evi- dence the secondary nature of the threats That second- ary nature is further demonstrated by Local 73's 22 Janu- ary mailgram, enmeshing Commonwealth Edison in the dispute. Accordingly, I find that by the threats of secondary activity uttered in the meetings of 15 and 26 February, Local 73 violated Section 8(b)(4)(ii)(B) of the Act. The General Counsel contends that the publication of Local 73's Journal constituted a further violation of Sec- tion 8(b)(4)(ii)(B), notwithstanding that it was distributed only to union members and officers of some other local unions. I cannot agree. Section 8(b)(4)(ii)(B) is violated when threats, restraint, or coercion are directed at "any person engaged in commerce or in an industry affecting commerce " Here, notwithstanding that wide distribution of The Journal (18,000 or more copies in the Chicago metropolitan area), it was not distributed at the Byron site and there is not a scintilla of evidence that anyone who might be deemed a "person engaged in commerce" ever saw a copy prior to the litigation in this case. Spec- ulation or suspicion that it must have happened will not substitute for proof. Accordingly, I shall recommend that this separate allegation be dismissed Cf. Newspaper & Mail Deliverers Union (New York News), 269 NLRB 102 (1984), and Television Artists AFTRA (First Media), 240 NLRB 378, 384 (1979), in which violations were found on statements made to secondary employees in the pres- ence of a secondary employer.9 2. Section 8(b)(7)(C) Do Local 73's threats to picket in order to force Wackenhut to agree to either a card check or an elec- tion, so that Local 73 might thereby establish its repre- sentative status and secure recognition, violate the 8(b)(7)(C) limitations on recognitional picketing? The question appears to be novel , neither the parties' briefs nor independent research reveal any clearly supporting authority Respondent Union presents an appealing argu- ment that to find such threats violative would be con- trary to both the plain language of the statute , defining the prohibited object as "forcing or requiring an employ- er. to recognize or bargain with a labor organization," and to the statutory intent, which was to prohibit "black- mail" picketing for recognition by unions that do not represent a majority of the employees . The General Counsel, on the other hand , argues persuasively that rec- ognition was the ultimate object of Respondent's threats and that recognition need only be "an" object of the threats for a violation to be established. Mixed guard , unions such as Local 73 are in 'a very dif- ficult position, somewhere between the proverbial "rock and a hard place." The Act does not prohibit such a union from representing guard employees or accepting recognition as their representative if such recognition is voluntarily extended Wells Fargo Corp., 270 NLRB 767 (1984), enfd . sub nom Teamsters Local 807 v. NLRB, 755 F.2d 5 (2d Cir 1985). However, they may neither peti- tion for nor, any longer, participate at all in Board-con- ducted elections . University of Chicago, above. Neither may they picket or threaten to picket for recognition. I For the same reason, and without further discussion, I shall recom- mend dismissal of the separate allegation that distribution of The Journal 8 Local 73 contends that Backman Sheet Metal "is at most an aberra- violated Sec 8(b)(7)(C) of the Act I note that Sec 8(b)(7) prohibits pick- tion in Board law " Aberration or not, it is the Board's most recent pro- eting, or threats to picket, "employers " The evidence fails to establish nouncement on the issue and I am obligated to apply it communication of The Journal to any employer WACKENHUT CORP 383 Service Employees Local 73 (Active Detective Agency), 240 NLRB 465 (1979). Moreover, such recognition as a mixed guard union might receive is tenuous at best. The Board, in Wells Fargo, held, Member Zimmerman dis- senting, that, at least under certain circumstances, such recognition may be withdrawn without violating Section 8(a)(5). Difficult though it is, the difficult position of mixed guard unions is the result of congressional will, the Board has determined. Thus, as the Board stated in Wells Fargo, supra at 789. It is clear that the remarks of Senator Taft show that Congress' purpose in enacting Section 9(b)(3) was to shield employers of guards from the poten- tial conflict of loyalties arising from the guard union's representation of nonguard employees or its affiliation with other unions who represent non- guard employees. However, this potential conflict of loyalties exists whether a mixed guard union is certified or not. The Board went on to warn against "a too literal reading of the statute" which "effectively would thwart that con- gressional purposes" and found no 8(a)(5) violation in withdrawal of voluntary recognition. The constraints applicable in Wells Fargo are, I be- lieve, applicable here. Although a very literal reading of the statute might permit threats to picket for an election, as distinguished from immediate recognition, such a read- ing would be too literal and, in this case, conflict with the congressional intent underlying Section 9(b)(3). Local 73 threatened to picket unless it was given an op- portunity to prove its majority status; that proof was not a goal in itself. Rather, it was the prelude to recognition, Local 73's ultimate goal. i ° I must therefore find that by threatening to picket for an election, thereby to gain rec- ognition, Respondent Local 73 has violated Section 8(b)(7)(C). 3. Sections 8(a)(2) and 8(b)(1)(A) At the moment when Wackenhut recognized Local 73 following Local 73's overwhelming victory in the AAA election, UPGWA's objection to the conduct of the Board's election was still pending before the Board The General Counsel contends that by granting and accept- ing recognition at that point in time, Wackenhut and Local 73 violated Sections 8(a)(2) and 8(b)(1)(A), respec- tively, i i citing Bruckner Nursing Home, 262 NLRB 955 (1982), and Haddon House Food Products, 269 NLRB 338 (1984). In Bruckner, the employer had recognized one of two competing unions during an initial organizing cam- paign, prior to the filing of a representation petition. The Board utilized Bruckner as the vehicle to set forth new principles regarding Section 8(a)(2): 10 Logic, as well as the 22 January mailgram and the AAA election agreement, providing for recognition and bargaining on a favorable vote, establish the ultimate objective 11 The General Counsel makes no contention that Local 73 was not the chosen representative of an uncoerced majority of the unit employees when recognition was granted .. . we will no longer find 8(a)(2) violations in rival union, initial organizing which represents an uncoerced, unassisted majority, before a valid peti- tion for an election has been filed with the Board. However, once notified of a valid petition, an em- ployer must refrain from recognizing any of the rival unions Without questioning the reliability of authorization cards or unduly exalting election procedure, we be- lieve the proper balance will be struck by prohibit- ing an employer from recognizing any of the com- peting unions for the limited time during which a representation petition is in process even though one or more of the unions may present a valid card majority. [262 NLRB at 957-958.] No petition having been filed in Bruckner, the Board dis- missed the complaint. The Board applied Bruckner in Haddon House to find 8(a)(2) and 8(b)(1)(A) violations in a situation where the employer recognized one union at a time when another union's petition was being held in abeyance due to the meritorious unfair labor practices filed by the petitioning union. No election had yet been held. Local 73 argues that both Bruckner and Haddon House are factually distinguishable and asserts that the more ap- propriate analogy is to Taylor Forge Division, 227 NLRB 696 (1977). In Taylor Forge, a representation election had been held in which an incumbent independent union won an overwhelming victory (more than two-to-one) over the union with which it had been in competition. The de- feated union filed objections to that election and while those objections were pending, the employer and the in- dependent union negotiated and executed a new agree- ment. The objections were ultimately overruled. The Board held that while the parties had acted at their, peril in negotiating the new agreement and would have been found in violation of the Act had the objections been sustained, they did not violate the Act when their actions correctly anticipated the disposition of the objections. I find Local 73's arguments here more persuasive than the General Counsel's. Unlike Taylor Forge and the in- stant case, neither Bruckner nor Haddon House involved a situation in which an election had been held. In Haddon House, unlike the instant case, the employer's misconduct had prevented the exercise of a free choice by the employees. Here, even more strongly than in Taylor Forge, the employees had demonstrated, in an at- mosphere entirely free of coercion or assistance, their support for the union that was then recognized And, in the instant case, the parties waited a reasonable time for the Board to act before they risked recognition; that rec- ognition was granted only a few weeks before the Board finally acted on the objection. Finally, of course, as in Taylor Forge, they correctly anticipated the Board's deci- sion regarding the pending objection. Accordingly, I find that Wackenhut's recognition of Local 73 was not tainted by the technically pending ob- jection and recommend that the allegations of Sections 8(a)(2) and 8(b)(1)(A) be dismissed. 384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Local 73 violated Section 8(b)(4)(ii)(B) on 15 and 26 February 1985 by stating, in Wackenhut's presence, that it would set up picket lines and shut down the Commonwealth Edison Byron Nuclear Power Sta- tion with the object of forcing or requiring Common- wealth Edison to cease doing business with Wackenhut and in order to force Commonwealth Edison to remove Wackenhut from the Byron Nuclear Power Station site unless Wackenhut agreed to a card check or non-Board election among its guard employees. 2. Respondent Local 73 violated Section 8(b)(7)(C) of the Act by threatening to picket Wackenhut with the object of forcing or requiring Wackenhut to recognize and bargain with Local 73 as the collective-bargaining representative of its guard employees when Local 73 had not been certified as representative of such employees and could not be so certified by virtue of the provisions of Section 9(b)(3) of the Act. 3. The aforesaid unfair labor practices have a close, in- timate, and substantial effect on commerce between the several States and are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. The evidence fails to establish that Respondent Local 73 has otherwise violated the Act in any manner set forth in the complaint. 5. The evidence fails to establish that Respondent Wackenhut has violated the Act in any manner set forth in the complaint. THE REMEDY Having found that Respondent Local 73 has violated the Act in certain respects, I shall recommend that it be required to cease and desist from such conduct and to post appropriate notices. The General Counsel seeks a broad order against Re- spondent Local-73 on the ground that its unfair labor, practices here and in prior cases have shown that it has a proclivity to violate Sections 8(b)(4)(u)(B) and 8(b)(7)(C). The General Counsel also seeks an order re- quiring Respondent Local 73 to publish the notice re- quired here, at its own expense, at least three times in 3 separate weeks in a newspaper of general circulation in the Byron and Greater Chicago, Illinois area where most of Respondent Union's membership, representation, and organizational activities are to be found, as well as in its own newsletter in order to dissipate the effects of the threats. In support of its requested remedy, the General Counsel cites Service Employees Local 73 (Andy Frain, Inc.), 239 NLRB 295 (1978), Service Employees Local 73 (Rainey 's Security Agency), 239 NLRB 1233 (1979); Serv- ice Employees Local 73 (Active Detective Agency), 240 NLRB 462 (1979); and the consent order of the Board and consent judgment by the Seventh Circuit, unpub- lished, in Service Employees Local 73 (Curtis Detective Agency), Cases 33-CC-619 and 33-CP-612, in which broad orders and/or publication in newspapers of gener- al circulation were ordered by the Board based on Re- spondent's proclivity to violate these sections of the Act. Although there has been a considerable passage of time since the last prior violation of these sections of the Act by this Respondent, I believe these prior cases establish sufficient justification for the imposition of both broad orders and for the requirement of publication of those orders. I note that, notwithstanding the passage of time, the same person, Kurshenbaum, is involved in the viola- tions in this case as was involved in at least some of the prior cases. I note, too, that while the Journal was not distributed in such a way as to make its publication a violation of the Act, it essentially carried, in an almost boastful manner, reports of those threats. Negation of those threats'is best accomplished by publication in the same newsletter. The General Counsel further seeks a visitatorial clause in order that it might monitor the Respondent's compli- ance with the Board's Order. I believe that such a clause is warranted and will include a visitatorial clause in the recommended Order here. Finally, the General Counsel seeks, as a remedy to the 8(b)(4)(ii)(B) and 8(b)(7)(C) violations, an order requiring Respondent Local 73 to cease giving effect to the elec- tion and recognition agreements and to cease and desist from accepting recognition as the bargaining representa- tive of Wackenhut's guard employees at the Byron Nu- clear Power Station. I do not believe that such a remedy is warranted here. Such coercion was directed at Wack- enhut only indirectly to force recognition; the, stated ob- jective was to provide Local 73 with an opportunity to prove its majority status. And prove it Local 73 did, overwhelmingly and without any assistance from the Employer or coercion of the employees. I note, more- over, that in the meeting of 15 February, even before Kurshenbaum voiced any threat of picketing or plant shutdown, Wackenhut only expressed concern for the holding of an election while the Board' s representation case was still pending. Bitter was not, at that point, ob- jecting to the concept of recognition on a non-Board election, but only to the risk that such recognition might be invalid if prematurely granted. Under these circum- stances, I deemed it unwarranted to consider Wacken- hut's recognition of Local 73 to be the fruits of Local 73's unlawful conduct such that the order sought by the General Counsel would be necessitated. [Recommended Order omitted from publication.]