Bakersfield Memorial Hospital

National Labor Relations Board - Board Decisions

Nov 16, 1994

315 N.L.R.B. 596 (N.L.R.B. 1994)

596
315 NLRB No. 53
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge did not set forth the tally of ballots from the March
9, 1993 rerun election. The record reflects that among approximately
494 eligible voters, 200 cast votes for Petitioner and 227 cast votes
against Petitioner, with 19 nondeterminative challenged ballots.
We adopt the judge’s recommendation that the Union’s objections
to the conduct of this election, which parallel meritorious 8(a)(1)
complaint allegations, be sustained. We therefore set aside the sec-
ond election, sever Case 31–RC–6923 from Case 31–CA–19878, and
direct a third election.
1 Unless stated otherwise, all dates occurred in 1993.
Bakersfield Memorial Hospital and International
Brotherhood of Teamsters, Local No. 87, AFL–
CIO. Cases 31–CA–19878 and 31–RC–6923
November 16, 1994
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On March 29, 1994, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bakersfield Memorial Hos-
pital, Bakersfield, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
[Direction of Third Election omitted from publica-
tion.]
Gary Freelen Ellison, Esq., for the General Counsel.
Gary F. Overstreet (Musick, Peeler & Garrett), of Los An-
geles, California, appearing for the Respondent Employer.
James Rutkowski, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), and with him on brief James G. Varga, Esq.,
of Los Angeles, California, appearing for the Union Peti-
tioner.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Bakersfield, California, on October 7,
1993.1 On July 13 the Regional Director for Region 31 of
the National Labor Relations Board (the Board) issued a
complaint and notice of hearing in Case 31–CA–19878,
based on an unfair labor practice charge filed on April 16
and amended on May 27, alleging violations of Section
8(a)(1) of the National Labor Relations Act (the Act). On
August 4 the Regional Director issued a second supplemental
decision, order directing hearing, notice of hearing, and order
consolidating cases, consolidating for hearing and decision
with Case 31–CA–19878 certain objections to a second or
rerun election conducted on March 9 in Case 31–RC–6923.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine wit-
nesses, and to file briefs. Based on the entire record, on the
briefs that have been filed, and on my observation of the de-
meanor of the witnesses, I enter the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Bakersfield Memorial Hospital (Re-
spondent) has been a corporation duly organized under and
existing by virtue of the laws of the State of California, with
an office and place of business located in Bakersfield, Cali-
fornia, where it engages in operation of a nonprofit hospital.
In the course and conduct of those operations, Respondent
annually derives gross revenues in excess of $250,000 and,
further, annually purchases and receives goods or services
valued in excess of $5000 directly from suppliers located
outside the State of California. Therefore, I conclude, as ad-
mitted in the answer to complaint, that at all times material,
Respondent has been a health care institution within the
meaning of Section 2(14) of the Act and has been an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, International Brotherhood of Team-
sters, Local No. 87, AFL–CIO (the Union) has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The petition in Case 31–RC–6923 was filed on April 16,
1992. As a result of a Decision and Direction of Election,
an election was conducted on June 30, 1992, among approxi-
mately 475 eligible employees in a unit of:
All full-time and regular part-time non-professional em-
ployees, excluding technical employees, skilled mainte-
nance employees, business office clerical employees,
professional employees, guards, managerial employees,
confidential employees, and supervisors as defined in
the Act.
After resolution of all but 12 of the 73 challenged ballots,
a revised tally of ballots stated that 182 votes had been cast
for the Union and 195 votes had been cast against represen-
tation by it, leaving the 12 remaining challenged ballots not
determinative.
One of the Union’s objections to the conduct of that elec-
tion was upheld. As a result, on February 8 a notice of sec-
ond election issued, setting March 9 as the date for a second
or rerun election. Between those dates, Director of Human
597BAKERSFIELD MEMORIAL HOSPITAL
Resources Roby Hunt, an admitted statutory supervisor and
agent of Respondent since June 1, 1992, when he had com-
menced working for it, conducted a total of 34 meetings with
groups of eligible employees. Both the complaint and the ob-
jections allege that, during those meetings, Hunt made ex-
press and implied promises of wage and/or benefit increases
to dissuade employees from supporting the Union and, also,
solicited from them grievances and complaints, implying that
Respondent would act favorably with regard to those griev-
ances and complaints.
According to the Union’s president, Gene Kelly, the Union
had leafleted at the entrance/exit to Respondent’s employee
parking lot for 8 to 10 days before the election. That activity
culminated during the afternoon of March 8, the day before
the representation election, with a rally on the 34th Street pe-
rimeter of that parking lot. At that rally union supporters
marched on the sidewalk the length of Respondent’s prop-
erty. Leaflets and balloons were offered to occupants of vehi-
cles departing from work that afternoon. The complaint al-
leges, and the Union objects, that Respondent unlawfully en-
gaged in surveillance of those activities by surveilling them
through binoculars from the hospital’s rooftop, by photo-
graphing them, and by recording license plate numbers of ve-
hicles whose occupants accepted leaflets and/or balloons, or
who otherwise displayed support for the Union.
Respondent denies having engaged in any unlawful or ob-
jectionable conduct. However, for the reasons set forth post,
I conclude that a preponderance of the credible evidence es-
tablishes that Respondent did make express and implied
promises of benefit improvements and did solicit employee
desires for benefit improvements in the context of those
promises. Moreover, I conclude that while there is no credi-
ble evidence to support some of the specific acts of surveil-
lance alleged in the complaint and raised by the objections,
a preponderance of the evidence does show that by other ac-
tions Respondent did engage in unlawful surveillance, or at
least unlawfully created an impression of it.
B. The Preelection Meetings
For purposes of his presentations to groups of employees
with whom he met, Hunt had been provided with what is en-
titled ‘‘Outline for Small Group Meetings,’’ but which is, in
reality, a script. After reciting that the meeting’s purpose is
‘‘to talk about [the Union’s] attempt to organize [Respond-
ent’s] non-professional employees,’’ the outline covers such
subjects as history of the representation proceeding, details of
how the March 9 election is to be conducted, and possible
consequences of the election’s alternative outcomes, as well
as strikes, collective-bargaining contracts, financial obliga-
tions of representation, effect of representation on Respond-
ent and its relationship with employees, and termination of
representation. Its prepared remarks conclude with the obser-
vation that ‘‘if only a few [employees] vote, those few could
control the future of everyone at [Respondent],’’ and with an
appeal for employee support: ‘‘[Respondent] asks for your
vote and hopes that you mark your ballot in the box labeled
NO.’’
Neither the General Counsel, in connection with the com-
plaint, nor the Union, in connection with its objections to the
March 9 election, challenge the propriety of statements con-
tained in the outline, which was received into evidence as
General Counsel’s Exhibit 2. However, two witnesses de-
scribed remarks by Hunt that go beyond those appearing in
the outline. And, in the end, he acknowledged having made
statements to employees during at least some of those meet-
ings that do not appear in the outline.
Transporter Jeanine Evertse testified that, along with 20 to
25 other employees, she had attended a meeting conducted
by Hunt approximately 2 weeks before the election. She tes-
tified that, after welcoming the employees, Hunt had said
‘‘that he would like the opportunity to explain to us why we
didn’t need a union.’’ At a later point during the meeting,
testified Evertse, Hunt ‘‘asked us what we would like to see
in the way of improvements and benefits.’’ When no one re-
sponded, she testified, Hunt said, ‘‘Well, how about medical,
dental, eye and some others that I don’t recall.’’ According
to Evertse, as Hunt enumerated those items, ‘‘He was writing
them on a blackboard.’’
Asked what Hunt had said about eye or vision benefits,
Evertse testified, ‘‘The only thing I recall is that it would be
July before he would know if they were going to implement
it.’’ With regard to what Hunt had said about dental benefits,
she testified that the employees already had a dental plan and
that, ‘‘It was more or less on the improvements of it.’’ How-
ever, she acknowledged that, in the course of his remarks,
Hunt had made no direct or specific connection between the
benefits and keeping the Union out. Indeed, she testified that,
during his speech, Hunt did not ‘‘knock the [u]nion.’’
Unit secretary, monitor tech, CPR instructor Beth Ann
Brentlinger testified that, along with three or four other em-
ployees, she had attended a meeting conducted by Hunt ap-
proximately a week before the representation election. He
had begun that meeting, she testified, by drawing on a large
greaseboard ‘‘a circle and put[ting] the word ‘vision’ at the
top of the circle and the word[s] ‘prescription card’ to the
right of that,’’ and wrote the word ‘‘dues’’ in the lower right
corner. While Brentlinger conceded that ‘‘I cannot quote him
word for word,’’ she testified that ‘‘he informed us that the
hospital was looking into getting us a vision plan and pos-
sibly down the road getting us a prescription card plan to en-
hance our benefits.’’ According to Brentlinger, ‘‘He said that
this plan would go into play after July, because that’s when
the new fiscal year starts at the hospital,’’ adding ‘‘that it
would be a lot easier to get these benefits for us referring
to the vision and the prescription card—if management or
administration does not have to deal with a third party.’’
As Respondent has pointed out in its brief, several poten-
tial problems were posed by the testimony of Evertse and
Brentlinger, not the least of which was their conceded lack
of specific recall about what Hunt had said during those
meetings and their own acknowledged inattention to every-
thing that had occurred during the one that each had at-
tended. However, as cross-examination of Hunt progressed,
his admissions posed greater problems for Respondent than
the accounts of his remarks provided during the testimony of
those two employees.
The outline contains only limited references to benefits:
that wage and benefit increases would not automatically fol-
low from selection of the Union as a bargaining agent, that
benefits could decline as well as increase during bargaining,
that, ‘‘You want more money and better benefits. So do I,’’
that among other things unions want ‘‘Employers to switch
your present employee benefits to union benefit plans,’’ that
a union could call a strike to try ‘‘to force the employer to
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. . . switch[ ] to a union proposed benefit plan,’’ and that
Respondent did not know whether, should it prevail in the
election, the Union would ask Respondent to change its ben-
efit plans. Yet, Hunt admitted that he also had brought up
during the meetings ‘‘past employee attitude surveys and es-
pecially we started a compensation benefit program.’’ The
outline contains no mention whatsoever of past attitude sur-
veys of employees. Nor does it mention any specific benefits
such as a compensation benefit program.
In the outline there is no mention of Respondent’s fiscal
year. Nor is there any specific reference in it to the month
of July. But, as quoted above, Evertse and Brentlinger testi-
fied that Hunt had made mention of both subjects. In fact,
he conceded, ‘‘I told them if we did anything, it would not
be until July because that was the beginning of the next fis-
cal year.’’
The outline refers generally to employees, as well as Hunt,
desiring more money and better benefits and, further, ex-
presses Respondent’s concern for employees. However, it
contains no particularized references to Respondent actually
looking into providing better benefits or actually considering
enhancing the benefits that employees then enjoyed. Yet, as
quoted above, both Evertse and Brentlinger testified that
Hunt had mentioned enhancing the employees’ benefits. In-
deed, he admitted, ‘‘I said we were considering enhancing
benefits,’’ and, also, mentioned ‘‘other changes that we were
doing.’’ In fact, although the outline is devoid of mention of
inquiries about specific benefits that employees might like to
see enhanced, when interrogated as to whether he had asked
employees at times what they would like to see as improve-
ments, Hunt admitted, ‘‘I believe I may have said that on oc-
casion to where, what would you like to see as improve-
ments.’’
The foregoing testimony by Hunt provides some examples
of a series of statements he admittedly had made to employ-
ees, during at least some meetings, that are not contained in
the outline. Accordingly, it cannot be concluded that Hunt
had done no more during those meetings than simply read,
or even paraphrase, the outline’s statements. Furthermore, by
his own admissions, he had made certain statements that ex-
ceeded the bounds both of permissible preelection campaign-
ing and of allowable expressions of views, argument, or
opinion. However, before reviewing that testimony, to clarify
some of Hunt’s admitted statements, as well as for purposes
of analysis, it is necessary to review the facts of the related,
in the circumstances, subject to surveys conducted by Re-
spondent.
Since 1990 three surveys, so far as the record discloses,
have been conducted at Respondent. The first two—one in
1990 and another in 1992—had been conducted by Manage-
ment Science Associates. According to Gerald Starr, senior
vice president, operations, an admitted supervisor and agent
of Respondent, those had been opinion and attitude surveys
that encompassed specifically employee attitudes concerning
existing wages and benefits. However, neither one had been
intended to develop a proposed plan of benefits that could
be implemented by Respondent. Rather, the reports resulting
from them merely had recited a comparison of Respondent’s
overall situation, including employee benefits, to those of
other hospitals in Management Science Associates’ data
bank. Nevertheless, those results were reported to Respond-
ent’s employees in department meetings separately conducted
by each department’s manager.
The most recent survey had been conducted by Hay Asso-
ciates during 1992. It was an analysis of Respondent’s direct
and indirect compensation and consisted of three phases:
meetings with focus groups during July 1992, distribution to
all unrepresented employees, later that month or during early
August 1992, of questionnaires regarding position descrip-
tions, and distribution 3 months later to about 15 percent of
management and nonmanagerial personnel, selected ran-
domly, of questionnaires concerning the adequacy of existing
benefits and benefits that the questioned individuals would
like to see instituted. Among the benefits enumerated in the
latter portion of those questionnaires were vision care and
prescription drug benefits.
After completing this process, Hay Associates analyzed the
information gathered and submitted a report to Respondent.
Recommendations were included for benefit modifications
and improvements. Starr testified that Hay’s report had not
been received until after the second representation election
had been conducted, but Hunt testified that Respondent had
received it, ‘‘Approximately the end of December’’ 1992.
Initially, Hunt testified, ‘‘somewhere on the 1st of January,’’
he had communicated the substance of that report to ‘‘senior
management,’’ including Starr, ‘‘as to which of those bene-
fits I thought we should implement.’’ Later, however, he tes-
tified that, ‘‘I have made recommendations to [senior man-
agement] probably in and about March of 1993 to senior
management which included Mr. Starr, as to what I thought
we should change and what the cost would be.’’
It is not the discrepancies in time, however, that is one of
the two crucial considerations regarding the Hay report.
Rather, Hunt conceded that no decisions had been made at
the time of his report to senior management about the re-
port’s recommendations. Second, of more importance, Starr
testified, ‘‘the Hay study was not done in order to report
back to the employees.’’ In consequence, he testified,
[A]s I recall it, the detailed analysis of the findings and
recommendations and fringe benefits were not reported
back to the employees.
And as I recall, a discussion occurred about that, that
is, we were preparing for an election, it would be an
inappropriate time to appear to be bargaining.
Turning back to Hunt’s extemporaneous statements—ones
not included in the outline—to employees during his meet-
ings with them, as quoted above, he admitted having asked
‘‘on occasion’’ what benefits improvements they desired. In
the course of admitting having done so, he referred to ‘‘the
results of previous surveys we had done.’’ Yet, to the extent
that he was attempting by that latter statement to advance a
legitimate explanation for having questioned employees
about desired improvements, in the course of a presentation
intended to persuade them to vote against the Union in the
upcoming representation election, Hunt’s statement fails to
accomplish that objective.
Since Respondent already possessed the information about
which Hunt questioned the employees during preelection
meetings with them, his questioning reexplored terrain al-
ready explored and mapped. Seemingly, neither he nor Re-
spondent gained anything further from, in effect, resurveying
599BAKERSFIELD MEMORIAL HOSPITAL
employees concerning their reasons for dissatisfaction with
existing benefits. Nor does the other evidence supply any
basis for inferring a legitimate reason for Hunt’s questions to
employees during meetings in which he tried to persuade
them not to support the Union in the second election.
Hunt did not confine his extemporaneous remarks to ques-
tioning assembled employees. He also conceded that ‘‘I
wrote down what I thought the employees felt they wanted
as improvements,’’ which, of course, is consistent with testi-
mony provided by the General Counsel. The very act of re-
cording responses inherently displays an intention to take
some future action on the basis of replies received to ques-
tioning about improvements sought in benefits. In fact, such
an intention was articulated expressly to employees by Hunt
when, first, he admittedly notified them of the Hay Associ-
ates recommendations and, second, expressly promised that
benefits improvements would be forthcoming.
As to the first, despite Respondent’s above-described deci-
sion not to relate to employees the details of Hay’s rec-
ommendations, Hunt testified that he had recited to groups
of employees that ‘‘we started a compensation benefit pro-
gram,’’ and also had told employees
what the Hay group had reported back to us as far as
what our employees wanted. I reported back to them
that the Hay group had told us that employees wanted
a vision plan and wanted a prescription drug plan and
wanted a few other things.
Of course, both Evertse and Brentlinger testified, as de-
scribed above, that vision and prescription drug plans had
been ones specifically singled out by Hunt during his meet-
ings with the group in which each of them had been in-
cluded. Yet, at no point did Hunt explain why he had chosen
to disregard Respondent’s decision to avoid discussing Hay’s
report with employees, for fear of creating an appearance of
trying to bargain with them.
Second, not only did Hunt, as quoted above, admit having
told employees ‘‘we were considering enhancing benefits,’’
but he also admittedly ‘‘told them about other changes that
we were doing that had come out of the surveys that had
been done in the past, as well as the consultant we had hired
had made these suggestions, and out of that I told them there
would be some changes.’’ Although Hunt added hastily, ‘‘I
didn’t tell them everything was going to be better,’’ the fact
is that he had expressly promised ‘‘some changes’’ as a re-
sult of the already conducted survey or surveys and had said
that Respondent was ‘‘considering enhancing benefits.’’
Given those remarks, one need not be a Cardozo to make the
connection that the ‘‘changes’’ being contemplated involved
‘‘enhancing benefits.’’ Indeed, Hunt did not confine his
promises to benefit enhancements, but admittedly he had
‘‘also told them about our proposed changes with the pay for
performance plan, the performance appraisal system,’’ al-
though at no point did Respondent explain what those par-
ticular changes would entail. For that matter, at no point did
any of the Respondent’s witnesses testify that those specific
items had been embraced by Hay’s survey.
Hunt’s promises were not concrete. They were carefully
hedged ones. He did not commit Respondent to any specific
benefit enhancement or addition. As quoted above, he in-
formed the employees ‘‘if we did anything, it would not be
until July because that was the beginning of the next fiscal
year.’’ It also, of course, would be a month well after the
one in which the second election would be conducted. Hunt
added one further qualification to his promises.
He admitted that in the course of telling employees ‘‘there
would be some changes,’’ he had ‘‘told them that anything
that would happen if the [U]nion was voted in would be sub-
ject to negotiations.’’ Obviously, that particular remark was
one made in a presentation that included the outline’s state-
ments that should the Union win the election, it would be
‘‘difficult to tell’’ when bargaining might begin, as ‘‘Legal
objections to conduct of elections sometimes delay bargain-
ing for years,’’ and, further, no one could say how long ne-
gotiations might last before, if ever, agreement was reached
on a contract’s terms.
In sum, notwithstanding the less than precise recollection
of Evertse and Brentlinger, there is no reliable basis for con-
cluding that, during his 34 meetings with groups of employ-
ees, Hunt had not read or paraphrased the statements printed
in the outline prepared for him. However, his own above-de-
scribed admission establishes that, at least at some of those
meetings, he had addressed additional remarks to employees.
Since those admissions were elicited during cross-examina-
tion, it is not possible to conclude the precise order of his
prepared and additional statements to employees at the meet-
ings. Indeed, his own testimony shows that his extempo-
raneous statements may have been made at different points
during the various meetings. What can be concluded, how-
ever, is that at some meetings, if not all, eight messages, to
the extent pertinent here, were communicated to the assem-
bled employees.
First, that the meeting’s purpose was to discuss the
Union’s organizing effort and the March 9 second or rerun
representation election arising as a result of it. Second, that
if the Union prevailed in that election, it would become the
employees’ bargaining agent but, given possible legal objec-
tions to the election’s conduct, it could not be predicted
when bargaining would begin and, once it did commence, no
one could say how long, if ever, it would take to reach
agreement on a contract’s terms. Third, that he wanted to
know what benefits employees desired, writing down ones
that he perceived employees as desiring. Fourth, that Re-
spondent had undertaken a compensation benefit program, as
part of which a survey had been conducted which showed
that employees desired a vision plan, a prescription drug pro-
gram, lower health insurance premiums, and additional dental
benefits. Fifth, that Respondent was considering instituting or
improving those benefits, as well as programs for perform-
ance appraisals and pay, had hired a consultant to suggest
changes, and that ‘‘some changes’’ would be made. Sixth,
that while enhancements to existing benefits or any additions
to them could not be implemented until at least the beginning
of Respondent’s next fiscal year on July 1, selection of the
Union in the election could delay their implementation, and
possibly even their institution, for a prolonged period due to
the election objection and subsequent negotiation processes.
Seventh, that ‘‘only you and I really care’’ about the prob-
lems at a big institution like Respondent, at which problems
will always arise, and ‘‘only you and I can solve those prob-
lems.’’ Finally, that Respondent ‘‘asks for your vote and
hopes that you mark your ballot in the box labeled NO.’’
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Evaluation of those messages involves, in reality, consider-
ation of three areas encompassed by Section 8(a)(1) of the
Act. The first, covered by the complaint and by the objec-
tions, is that of solicitation of grievances and complaints in
response to an organizing campaign and, more particularly,
a representation election. Consideration of that issue arises,
of course, because of Hunt’s sometime questioning of em-
ployees at meetings about improvements they desired. Had
he done no more than direct such questions to employees,
there might be no basis for concluding that Section 8(a)(1)
of the Act had been violated. ‘‘An expressed willingness to
listen to grievances is not sufficient to constitute a viola-
tion.’’ (Citation omitted.) Idaho Falls Consolidated Hospitals
v. NLRB, 731 F.2d 1384, 1387 (9th Cir. 1984).
Such questioning clearly does violate the Act whenever
coupled with an express or implied promise to, at least, con-
sider and try to correct the sources of employee dissatisfac-
tion. ‘‘Grievance solicitation during the preelection period
. . . constitutes an unfair labor practice if the employer also
promises or implies that it will remedy the grievance if the
union is rejected . . . or if its promise or implication other-
wise serves as an inducement to vote against the union.’’
(Citations omitted.) Presbyterian/St. Luke’s Medical Center
v. NLRB, 723 F.2d 1468, 1474 (10th Cir. 1973). Con-
sequently, in evaluating the legality of Hunt’s questioning,
the significant predicate is whether or not he also expressly
or impliedly promised, or at least led employees to believe,
that Respondent intended to remedy, or at least consider rem-
edying, what employees perceived as deficiencies in their
benefits.
The area of promise under Section 8(a)(1) of the Act is
not addressed in this case exclusively in connection with that
of solicitation of employee grievances and complaints. It also
is alleged as an independent violation of that subsection’s
general proscription. As a result, this second area must be
considered on its own, as well as in the context of grievance
and complaint solicitation.
Like the vice inherent in an actual conferral of benefits,
a promise of benefits, made in response to initiation of an
organizing campaign or in anticipation of a representation
election, violates the Act because, ‘‘[e]mployees are not like-
ly to miss the inference that the source of benefits now con-
ferred [or promised] is also the source from which benefits
must flow and which may dry up if it is not obliged.’’ NLRB
v. Exchange Parts Co., 375 U.S. 405, 409–410 (1964). To
impress that inference on its employees, an employer’s prom-
ise need not be express. As pointed out above in
Presbyterian/St. Luke’s, a promise that is implied is equally
pernicious. Based on his own admissions, in the course of
speaking during at least some preelection meetings with em-
ployees, Hunt made both express and implied promises to
them.
That Hunt made express promises is shown by the fore-
going fourth and fifth summarized messages from Hunt’s
speeches and the evidence underlying them. That is, Hunt
told employees that Respondent had commissioned a survey
that had disclosed employee desires for certain enumerated
additional benefits. He also told them that Respondent had
retained a consultant who had suggested changes. Finally, he
specifically promised that ‘‘some changes’’ would be made.
Promises that were implied by Hunt arise from the evi-
dence underlying the third through fifth above enumerated
messages. Even had Hunt not said specifically that ‘‘some
changes’’ would be made, he had asked what benefits em-
ployees desired, had written down ones that he perceived
they desired, had pointed out that Respondent had already
undertaken a compensation benefit program that included a
survey of benefits desired by employees, had announced that
Respondent retained a consultant who had suggested
changes, and had further announced that Respondent was
considering instituting or improving benefits. To be sure, the
evidence must show not only that promises, express or im-
plied, were made, but, also, must show that those promises
could be viewed, by an objective standard, as connected to
discontinuance of employee support for representation. Sev-
eral factors about Hunt’s speech do demonstrate as much.
First, based on the outline’s prepared statement, Hunt had
told the employees that his purpose for meeting with them
had been to discuss the Union’s organizing effort and the up-
coming election. Further, based on the outline, his conclud-
ing prepared remark was an appeal for employees to ‘‘mark
your ballot in the box labeled NO.’’ Consequently, Hunt’s
promises had been made in the course of speeches that ‘‘stat-
ed opposition to employee unionization’’ and stated an ‘‘in-
vitation to employees to vote against the Union.’’ NLRB v.
Windsor Industries, 730 F.2d 860, 864 (2d Cir. 1984).
Second, while Hay Associates and, before it, Management
Science Associates had surveyed employee attitudes regard-
ing, inter alia, benefits, there is no evidence that Respond-
ent’s director of human resources, or any other official of
Respondent, had ever personally and directly done so. Yet,
as Hunt admitted, during some meetings he had questioned
employees about benefit improvements they desired. ‘‘It is
well established . . . that an employer cannot rely on past
practice to justify solicitation of employee grievances if the
employer significantly alters its past manner and methods of
solicitation during the union campaign.’’ (Citation omitted.)
House of Raeford Farms, 308 NLRB 568, 569 (1992).
Indeed, not only was Hunt’s surveying of employee atti-
tudes novel, but so, too, were his announcements about
Hay’s survey results concerning employee attitudes. Starr tes-
tified that Management Science’s surveys had been confined
to employee attitudes:
Q. So the Management Science report was to reflect
employees’ attitudes?
A. That’s correct.
Q. Not to come up with a proposed plan of benefits
that at some point may be implemented?
A. That’s correct.
Hay’s survey had done so, thereby differentiating it from
previous surveys. Although Respondent had made a decision
not to discuss the Hay survey and resultant report with em-
ployees prior to the election, Hunt admittedly had done so.
In consequence, that discussion by Hunt disclosed an aspect
of surveying that was novel for employees—that differed as
much from past practice as the type of meetings in which
those discussions were conducted by Hunt.
Third, Hunt’s remarks were specific as to the types of ben-
efits, such as vision plan and prescription drug program, al-
though not as to when, or even whether, specific programs
were firmly to be instituted. Further, he admittedly told em-
ployees, inter alia, that those specific benefit enhancements
601BAKERSFIELD MEMORIAL HOSPITAL
were being considered not only as a result of the Hay survey,
but also because of a consultant’s suggestions. An indicia, at
least, of implied promise exists whenever, in a preelection
setting, an employer makes statements that are not simply
‘‘general and vague,’’ such as enhancements are ‘‘a good
idea or that [the employer] would at some indefinite time
look into [them],’’ but instead ‘‘communicate[s] to the as-
sembled [employees] that’’ enhancements of specific benefits
are ‘‘under active study or consideration by the [employer].’’
(Citation omitted.) Pennsy Supply, 295 NLRB 324, 325
(1989).
Further indication to employees of a nexus between imple-
mentation of enhanced benefits and rejection of the Union in
the election is supplied by Hunt’s statements that while bene-
fit enhancements could not be implemented by Respondent
until at least July 1, selection of the Union by a majority in
the election would subject any benefit changes to negotia-
tions. Not only might negotiations be prolonged, Hunt told
the employees, but even their initiation might be delayed by
objections to the election’s conduct. Of course, if the Union
prevailed in the second election, those objections could only
be ones filed by Respondent.
In sum, Hunt made both express and implied promises of
improved benefits to employees during his speeches. Further,
those promises were made in a context, and in the company,
of other remarks that, measured by an objective standard,
created a nexus between rejection of representation by the
Union and implementation by Respondent of such enhanced
benefits. To be sure, there had been prior surveys of em-
ployee attitudes and Respondent’s compensation benefit plan,
which had bred Hay’s survey, had been in progress at the
time of the election and of Hunt’s preelection statements to
employees. Yet, turning to the third pertinent area under Sec-
tion 8(a)(1) of the Act, this is not a situation where Hunt did
no more than publicize an ongoing process arising from a
predetermined benefit enhancement program. That is, it can-
not be concluded that he had only been ‘‘pointing with pride
to an already implemented process as a basis for seeking
support in the representation election.’’ Nissan Motor Corp.,
263 NLRB 635, 640 (1980).
The Board has held that nothing in the Act prevents an
employer from publicizing an existing benefit, even one of
which employees may not have been fully aware, as ‘‘a le-
gitimate campaign strategy necessary to counter the union’s
claim that it offers better benefits.’’ Weather Shield of Con-
necticut, 300 NLRB 93, 96–97 (1990). See also Schwab
Foods, 223 NLRB 394, 397–398 (1976). Indeed, an em-
ployer may even lawfully announce during the preelection
period improved benefits that have become concretized as a
result of an already initiated and ongoing process. NLRB v.
Tommy’s Spanish Foods, 463 F.2d 116, 119 (9th Cir. 1972);
Southbridge Sheet Metal Works, 158 NLRB 819 (1966), affd.
380 F.2d 851 (1st Cir. 1967). Here, however, Hunt went fur-
ther in his speeches than permitted by those cases.
By the time that he had addressed employees, the only
steps that had been accomplished, as a result of the com-
pensation benefit plan, had been completion of Hay’s survey
and submission of its recommendations to Respondent. Con-
cededly, Respondent’s senior management had made no final
determination regarding enhancement of specific benefits. In
fact, there is no evidence that its senior management had
made a determination to enhance any benefit, whatsoever.
Consequently, there is no basis for concluding that Hunt’s
benefit promises pertained to enhancements ‘‘already existing
or that [Respondent] had made a binding commitment to put
. . . into effect regardless of the outcome of the election.’’
(Footnote omitted.) NLRB v. Arrow Electric Co., 573 F.2d
702, 705 (1st Cir. 1978).
To the contrary, Hunt specifically told employees that no
benefit enhancements could be implemented until July 1, al-
most 4 months after the announcement of the tally of, at
least, unchallenged votes in the March 9 election. Moreover,
as pointed out above, he not only told employees that any
enhancements would be subject to negotiation if a majority
selected representation, but in the context of his remarks
about possible prolongation of initiation and conduct of bar-
gaining, any implementation of benefit enhancements, should
a majority vote for the Union, was portrayed by Hunt as pos-
sibly being delayed well beyond July 1.
Not only had there been no determination by Respondent
to enhance any benefits provided to employees by the time
that Hunt addressed them, but Respondent has made no
showing ‘‘of a proper business purpose or necessity for the
timing of [Hunt’s] announcement[s]’’ concerning their possi-
bility. J. P. Stevens Co. v. NLRB, 461 F.2d 490, 493–494
(4th Cir. 1972). Inapplicability of the predetermination an-
nouncement doctrine to Hunt’s remarks is reinforced by the
contrast between his preelection meetings and the past de-
partmental basis for conveying survey results to employees,
NLRB v. Rich’s of Plymouth, Inc., 578 F.2d 880, 883 (1st
Cir. 1978), by the fact that some benefits discussed by Hunt
were different in kind from those then being enjoyed by Re-
spondent’s nonprofessional employees, NLRB v. K & K
Meats, 640 F.2d 460, 466 (3d Cir. 1981), and by the fact that
Hunt made the benefits statements during ‘‘a meeting called
for the purpose of urging employees to reject a union.’’
Faith Garment Co. v. NLRB, 630 F.2d 630, 632 (8th Cir.
1980).
Therefore, I conclude that a preponderance of the evidence
establishes that Respondent violated Section 8(a)(1) of the
Act by unlawfully promising benefits to employees to dis-
suade them from voting for the Union and by soliciting their
desires about benefit enhancements in the context of those
promises. To be sure, those statements may not have been
made at every one of Hunt’s 34 meetings with Respondent’s
employees. Yet, before resolution of the 12 remaining chal-
lenges from the first election, a swing of but 7 votes in that
election would have left the Union with a 1-vote advantage.
In fact, as described above, the outline mentioned expressly
that the votes of ‘‘only a few’’ employees in the second elec-
tion ‘‘could control the future of everyone.’’ Accordingly, it
cannot be said that the impact on unit employees of Hunt’s
unlawful statements are somehow mitigated by the fact that
he may not have directed them to employees at every one
of the 34 meetings that he had conducted. Therefore, I con-
clude that his unlawful remarks destroyed the laboratory con-
ditions of the second election.
C. The Asserted Acts of Surveillance
With respect to the Union’s preelection activity outside of
the employee parking lot during the closing days before the
second election, the General Counsel and the Union pre-
sented evidence pertaining to two of those occasions: the
afternoons of March 2 and 8. As to the first date, Michael
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Capps, a former employee of Respondent whom it terminated
in 1991, testified that as the leafleting had progressed that
day, it had been watched by security guards and that one of
them told the leafleters they ‘‘were trespassing, this was pri-
vate property, we were harassing the employees and they
were threatening us with the police.’’ The guards also, testi-
fied Capps, ‘‘point[ed] their fingers at us, telling us to stay
on the sidewalk, stay out of the driveway entrance and
threatening us with arrest.’’ In fact, Capps testified, the po-
lice did arrive that day and, according to Capps, he had over-
heard one guard telling them that the leafleting ‘‘were out of
harassment, we were trespassing and we were on private
property and he wanted us removed or arrested.’’
Leaflets were being offered to employees departing work
for the day as their vehicles reached the parking lot’s
entrance/exit. Capps testified that, as this was taking place on
March 2, one of the guards had been standing to the rear of
the departing vehicles and, with a camera that he was hold-
ing, photographed the rear license plates of vehicles whose
occupants accepted leaflets or otherwise indicated support for
the Union, such as by giving ‘‘a V, victory sign’’ or shouting
‘‘union, yes’’ or ‘‘right on.’’ In addition, testified Capps, two
guards were jotting down license plate numbers.
Capps also testified that he had observed Starr and another
man standing on top of the older hospital building,
‘‘[s]everal hundred feet’’ across from the parking lot’s
entrance/exit. According to Capps, Starr had a pair of bin-
oculars and, for about 30 minutes, ‘‘was observing the activi-
ties that were taking place in the east parking lot.’’ Capps
testified that he had pointed out the people on the roof to
Union President Kelly who also had been present in the
parking lot that afternoon.
In fact, Kelly was the only other witness called by the
General Counsel who described the leafleting on March 2.
He agreed that, as he had been leafleting departing vehicles
that afternoon, his attention had been directed by Capps to
‘‘the two guys on the top of the roof.’’ Kelly testified that
he had ‘‘looked up, seen the two guys and just went on with
my leafleting.’’ According to Kelly, when he had seen them,
the two men were ‘‘just standing on the roof looking over
our way,’’ but he had not seen either one holding a pair of
binoculars nor, for that matter, had he seen either one hold-
ing anything in his hand.
That was not the sole testimony by Capps that Kelly did
not corroborate. He made no mention of the police arriving
that day, nor of any guard addressing remarks to police or
to leafleters, nor of any guard having photographed license
plates of departing employees’ vehicles. Further, Kelly did
not testify that any guard had jotted down license plate num-
bers of employees’ vehicles. In fact, he did not corroborate
even Capps’ assertion that six guards had been present dur-
ing that afternoon. Instead, testified Kelly, ‘‘I believe there
was [sic] three there at that one time’’—‘‘one particular guy
that I remember was standing in the driveway facing us
about probably 20, 30 feet away’’ and the other two were
riding around and came up in ‘‘a little golf cart.’’ Moreover,
according to Kelly, the first guard had been ‘‘just standing
[in the driveway] with his hands behind his back watching
what was going on.’’
Capps made plain his antagonism toward Respondent and,
based on my observation of him as he testified, I do not
think that he was testifying candidly. Certainly, at least some
of the matters that he claimed to have observed should have
been plainly apparent to Kelly. Yet, neither he, nor any other
witness, corroborated Capps’s description of threats by
guards, appearance of the police, photographing, and jotting
down of license numbers on March 2.
Nor do I credit the testimony that Starr, or any other offi-
cial of Respondent had been observing the union activity that
day through binoculars from the facility’s rooftop. Again,
Kelly did not corroborate the testimony that such conduct
had been occurring. He did, of course, confirm the testimony
that two individuals had been up there. However, Starr gave
testimony showing that there was no ulterior reason for his
presence there.
Starr testified that, as part of his duties as vice president,
operations, he ordinarily went up to the hospital’s roof ‘‘to
walk around, see if mainly the rooftops are clean, haven’t got
any loose doors on air conditioning units, those kinds of
things and then leave.’’ Additionally, approximately 90 per-
cent of the hospital’s buildings had been reroofed from the
fall of 1992 through the late spring of 1993. With regard to
that particular project, testified Starr, he once had gone to the
roof with someone from the construction company and had
‘‘spent 15 or 20 minutes up there’’ in connection with demo-
lition of the existing roof. He testified that that had been the
only time that he had been on the roof with anyone else dur-
ing the preelection period. He also denied ever having gone
to the hospital’s roof with binoculars. Given that testimony,
and the unreliability of that given by Capps, there is no cred-
ible basis for concluding that Starr, or any other official of
Respondent, had watched union activities in progress through
binoculars from the hospital’s rooftop on March 2. More-
over, there is insufficient basis for concluding that Starr had
been present there for an improper purpose on March 2,
when he had been pointed out to Kelly.
A very different conclusion is warranted by a preponder-
ance of the evidence concerning the Union’s rally on March
8. The General Counsel and the Union argue that the evi-
dence shows that, on that date, an unusually large number of
guards had been observing the rally and, further, that nota-
tions had been made of what appeared to be license plate
number of departing vehicles whose occupant accepted leaf-
lets and/or balloons from the Union’s supporters, or who oth-
erwise indicated support for the Union, such as by calling
out remarks favorable to it. That evidence, they argue, estab-
lishes that Respondent engaged in unlawful surveillance—or,
at least, unlawfully created the impression of it—by virtue of
intensified observation of union activity that day by guards,
see, e.g., Impact Industries, 285 NLRB 5 fn. 2, 19–21
(1987), and by virtue of recording license numbers of vehi-
cles whose occupants appeared supportive of the Union.
Aside from Capps, the General Counsel presented three
other employee-witnesses who had been present at the March
8 rally: Evertse, Brentlinger, and food service worker Stanley
Davis. Abstracts of their accounts do disclose inconsistencies
and conflicts among them regarding events that day—a fact
not overlooked by Respondent in its brief. However, unlike
Capps, I felt that Evertse, Brentlinger, and Davis were at-
tempting to testify candidly. It seemed to me that inconsist-
encies and conflicts among their accounts were a result of
lack of full attention to events surrounding their participation
in the rally and of failure to recall perfectly what they had
seen that afternoon. To be sure, perception and recollection
603BAKERSFIELD MEMORIAL HOSPITAL
are no less credibility considerations than honesty in evaluat-
ing testimony. Accounts by witnesses whose perceptions are
impaired or whose recollections are imperfect cannot be re-
lied on to the extent of those impairments or imperfections.
Nevertheless, unlike failure to testify truthfully, accounts of
such witnesses must be considered and are subject to height-
ened scrutiny only, not to complete disregard.
The accounts of Evertse, Brentlinger, and Davis do estab-
lish that more than the usual number of guards had been
present, watching the rally, on March 8. At that time the
guards were employed by an independent firm which had a
contract to supply guards to Respondent’s hospital. There is
no contention, however, that they had not been acting in Re-
spondent’s interest on March 8. As to the number of guards
who typically worked around the emergency room, located
approximately 100 feet across the parking lot from 34th
Street, Starr testified, ‘‘at that time we would have had two
in the day, two in the evening and one at night.’’ In addition,
according to Starr, ‘‘The contract provisions provide for a se-
curity supervisor in the hospital and I believe a shift super-
visor.’’ However, there is no evidence that the security su-
pervisor ordinarily leaves the hospital to patrol the area out-
side of it. Nor is there evidence that the shift supervisor usu-
ally patrolled the premises. Finally, there is no evidence that
the two day-shift guards ordinarily stationed themselves for
prolonged periods in, or in the vicinity of, the employee
parking lot.
Evertse testified that she had seen four or five guards
watching the rally during the approximately half hour that
she had attended it. So, also, did Davis who had been there,
he estimated, for 2 or 2-1/2 hours that day. Brentlinger had
been there from approximately 1:30 p.m. until around 4:10
p.m. She testified that she had seen a total of six guards dur-
ing that time. Obviously, those numbers represent double,
based on the lowest number about which there is testimony,
and possible triple, based on Brentlinger’s testimony, the
number of guards ordinarily stationed at Respondent’s facil-
ity during the day shift. Even taking into account the shift
and security supervisors, a fifth and, possibly, a sixth guard
would still exceed the number of security personnel usually
working days at the hospital.
Respondent produced evidence that security at the hospital
had been intensified in late February or early March as a re-
sult of thefts from a construction project adjoining the em-
ployee parking lot and, moreover, because of a threat to ‘‘get
even’’ with emergency room personnel made by the father
of a child who had passed away after being treated and re-
leased from there. Respondent also presented evidence of a
history of vandalism in that parking lot and, further, of an
incident when the police had been called in response to a
fight between an employee and someone picketing at Re-
spondent. In fact, Starr testified that after the latter incident,
he had issued instructions that guards be particularly vigilant.
Yet, Respondent produced no specific evidence that those
events, or any one of them, had prompted the decision to as-
sign a seemingly unusually high number of guards to observe
the Union’s afternoon rally on March 8.
In that regard, it is important to bear in mind that ‘‘Board
law does not permit the trier of fact to substitute his own
subjective impression of what he would have done were he
in the Respondent’s position.’’ (Citation omitted.) Super Tire
Stores, 236 NLRB 877 fn. 1 (1978). Consequently, even
where valid grounds may exist for an employer’s particular
action, their mere existence, absent evidence by the employer
connecting them to the action that it took, does not allow the
trier to conclude that, in fact, those grounds actually had
been the basis for that action. ‘‘The employer alone is re-
sponsible for its conduct and it alone bears the burden of ex-
plaining the motivation for its actions.’’ Inland Steel Co.,
257 NLRB 65 (1981).
Those principles guide evaluation of the evidence pertain-
ing to the surveillance allegations and objections in the in-
stant case. Starr testified that when security is intensified or
heightened at Respondent, ‘‘we’ve typically added one more
person per shift,’’ but he conceded, ‘‘I don’t know exactly
if that’s what we did at that time or not.’’ Aside from the
security and shift supervisors, the official who might have
been able to supply a more particularized explanation—both
as to the specific steps taken to intensify security in light of
the above-described incidents and concerning the unusually
high number of guards present during the March 8 rally—
was, as Starr put it, ‘‘A gentleman named Rantham.’’ On
March 8 he had been employed as director of health services
at Respondent by a firm, Service Master, that has a contract
for supervision of Respondent’s dietary and facilities support
areas. In that capacity he had been responsible in the first in-
stance for security at Respondent’s hospital.
According to Starr, to intensify security, Rantham ‘‘gave
me an increased number [of guards] that he was going to
add,’’ but Starr admitted that ‘‘I don’t recall’’ the number of
guards that Rantham had said that he intended to add.
Rantham was never called as a witness. Although Respond-
ent adduced evidence that he was no longer working at its
hospital, Respondent never represented that Rantham was un-
available to it as a witness. Indeed, there is every indication
that Rantham was available to explain how he had intensified
security at Respondent. For, Starr acknowledged not only
that, as of the hearing, Rantham was ‘‘still in the commu-
nity,’’ but, also, is ‘‘the spouse of a person employed at the
hospital.’’ Yet no explanation was advanced for failing to
call him as a witness.
In some situations evidence that is presented might allow
an inference as to an employer’s reason(s) for particular ac-
tion, such as assigning as many as six guards to watch the
Union’s afternoon rally on March 8. Given the record in the
instant case, however, a conclusion of legitimate reason
would rest on nothing more than speculation. Respondent did
not contend that the Union or its supporters had stolen mate-
rials and equipment from the construction site. Nor is there
evidence that those thefts had occurred during daytime hours.
Similarly, there is no evidence that it had been during day-
time hours that vandalism had been occurring in the em-
ployee parking lot. So far as the record discloses, the parent
who had uttered the threat against emergency room personnel
had not been an employee of Respondent. And, as stated
above, the emergency room is approximately 100 feet across
the parking lot from the sidewalk where the rally had been
in progress on March 8.
There is no dispute about the occurrence of a fight that in-
volved a picketing employee. Still, Starr admitted that he had
received only ‘‘one report, about an altercation at that point
in time.’’ He did not testify about any like reports at any
other time. Nor did Respondent adduce evidence of any other
incidents or altercations, nor of other misconduct, involving
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union supporters. To the contrary, Assistant to the President
Jan Van Boening testified that on the one occasion in March
when he had gone to the parking lot entrance/exit and had
asked two leafleters to move off Respondent’s property to
the sidewalk, ‘‘they said, sure, no problem and they moved.’’
In sum, there is no evidence of repeated acrimonious, or
even improper, acts by the Union and its supporters, nor of
repeated acts of trespass that provoked incidents justifying,
viewed from the employees’ perspective, the presence of so
unusually high a number of guards during the afternoon
union rally on March 8.
That heightened number of guards was not the sole un-
usual aspect of the guards’ presence in the employees’ park-
ing lot on that date. In addition to Capps, the three other em-
ployee-witnesses testified that notes had been taken of what
appeared to be license plate numbers of vehicles whose occu-
pants accepted leaflets and/or balloons, or otherwise indi-
cated support for the Union. To be sure, the individual ac-
counts were not identical and, consequently, were not nec-
essarily corroborative as to any individual guard. On the
other hand, there had been four to six guards present that
afternoon and the employees had been marching back and
forth along the sidewalk, from one end of Respondent’s
property on 34th Street to the other, during a rally that lasted
approximately 2 hours. In those circumstances, variances be-
tween specific observations are not inherently indicative of
lack of candor. Rather, they can be attributed with equal
force to observations of different guards from separate per-
spectives at different times over the course of that afternoon.
For example, Evertse testified that she had observed one
guard, standing approximately 30 or 40 feet from the drive-
way and approximately 20 feet from the sidewalk, writing
down something, although she could not see what it was.
However, she had been at the rally for approximately 30
minutes and had been marching during that time. Evaluated
by an objective standard, her observations would have been
limited both by time and location.
Brentlinger testified that she had observed an individual
writing down information after looking at the rear of vehicles
leaving the parking lot. She described that individual as a
person wearing a suit and identified him as Van Boening. He
credibly denied having engaged in such conduct and, more-
over, denied having been in the employee parking lot that
afternoon. However, the credibility of his denials does not
mean that Brentlinger’s description of someone writing down
what appeared to be license plate numbers cannot be cred-
ited. At least some guards had to be unfamiliar to the em-
ployees, given the added numbers present at the rally that
afternoon. Van Boening had only started working for Re-
spondent on January 1 and, accordingly, was not as familiar
to employees, based on length of service and possibly also
on day-to-day contact with them, as the longer-employer
Starr and, even, Hunt. With respect to her testimony about
the suit, not only is it undisputed that the guards had been
wearing white shirts, ties, and dark pants, but Starr testified,
‘‘They were wearing blazers at that time.’’
As discussed in subsection III,B, supra, Brentlinger’s de-
scription of Hunt’s remarks, during the preelection meeting
that she had attended, while not a complete account of what
he had said that day, had been largely corroborated by
Hunt’s admissions when he later testified. Although her per-
ception may have been colored by a mistake as to the exact
identity of the notetaker she saw on March 8, I felt she was
being candid regarding that aspect of her observation. Fur-
thermore, her testimony about notes being made of what ap-
peared to be license plate numbers tends to be confirmed by
the credible testimony of food service worker Davis.
He described two guards—a Hispanic male and a younger
Caucasian male—whom he had seen writing down notes on
pads whenever a departing vehicle’s occupants accepted leaf-
lets and/or balloons, or whenever they indicated support or
the Union in some other fashion. Similar to Brentlinger’s de-
scription, Davis testified that the guards he had seen had first
looked at the rear of those vehicles before writing on their
pads.
The fact is that Respondent never presented any evidence
contradicting those descriptions of notetaking by guards on
March 8. It did present testimony that no directions had been
issued to record license plate numbers of apparent union sup-
porters and, also, that no lists of license plate numbers had
been turned in to Starr, at least, following the rally. Yet, ab-
sence of such added features does not diminish the inhibition
on employee communication with a union that is inherent in
the action of recording license plate numbers of vehicles
whose occupants appear to display receptivity to a labor or-
ganization’s overtures. See Crown Cork & Seal Co., 254
NLRB 1340 (1981). That the guards may not have been ex-
pressly authorized by Respondent’s higher management to
record those license numbers does not diminish the coercive
effect on employees who witnessed the guards doing so in
the apparent interest of Respondent.
As is true of the unusually high number of guards sta-
tioned at the Union’s March 8 rally, Respondent has pre-
sented no evidence of a legitimate reason for recording, or
appearing to record, license plate numbers of vehicles whose
occupants displayed favoritism toward the Union. Given the
absence of evidence of a legitimate purpose, and in light of
the inherent adverse effect of such actions under the cir-
cumstances on employee activities protected by Section 7 of
the Act, I conclude that by that conduct on March 8, Re-
spondent violated Section 8(a)(1) of the Act and, further, en-
gaged in conduct that disrupted the laboratory conditions of
the following day’s election.
CONCLUSION OF LAW
Bakersfield Memorial Hospital, a statutory health care in-
stitution and employer, has committed unfair labor practices
affecting commerce by promising benefit improvements to
employees and by soliciting employee desires for benefit im-
provements, in conjunction with those promises, to dissuade
employees from supporting International Brotherhood of
Teamsters, Local No. 87, AFL–CIO, and, further, by engag-
ing in surveillance and by creating the impression of surveil-
lance of employees’ union activities, thereby violating Sec-
tion 8(a)(1) of the Act and, furthermore, engaging in conduct
that destroyed the laboratory conditions for the representation
election on March 9, 1993.
REMEDY
Having found that Bakersfield Memorial Hospital engaged
in certain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and, further, that it be
605BAKERSFIELD MEMORIAL HOSPITAL
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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
National 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.’’
ordered to take certain affirmative action to effectuate the
policies of the Act.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Bakersfield Memorial Hospital, Bakers-
field, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Expressly or impliedly promising benefits to employees
and soliciting from employees their desires for benefit im-
provements, in conjunction with those promises, to dissuade
employees from supporting International Brotherhood of
Teamsters, Local No. 87, AFL–CIO or any other labor orga-
nization.
(b) Engaging in surveillance and creating the impression
of surveillance of employee activity on behalf of the above-
named labor organization, or any other labor organization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Bakersfield, California hospital copies of the
attached notice marked ‘‘Appendix.’’3 Copies of that notice
on forms provided by the Regional Director for Region 31,
after being signed by Respondent’s authorized representative,
shall be posted by it immediately on 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 it to ensure that those no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps it has taken to com-
ply.
IT IS RECOMMENDED that the objections to the election
conducted on March 9, 1993, in Case 31–RC–6923 be sus-
tained, that the results of that election be set aside, and that
Case 31–RC–6923 be severed from Case 31–CA–19878 and
remanded to the Regional Director for Region 31 so that an-
other election can be scheduled and conducted.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act and
we have been ordered to post this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT expressly nor impliedly promise benefits to
you to dissuade you from supporting International Brother-
hood of Teamsters, Local No. 87, AFL–CIO or any other
labor organization.
WE WILL NOT solicit your desires for benefit improve-
ments, and expressly or impliedly promise to grant or con-
sider granting those improvements, to dissuade you from
supporting the above-named labor organization, or any other
labor organization.
WE WILL NOT engage in surveillance of your union activi-
ties and
WE WILL NOT create the impression that we are engaging
in surveillance of your union activity.
WE WILL NOT in any like or related manner interfere with
any of your rights set forth above which are guaranteed by
the National Labor Relations Act.
BAKERSFIELD MEMORIAL HOSPITAL