Mercy General Hospital

National Labor Relations Board - Board Decisions

May 24, 2001

334 N.L.R.B. 100 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
Mercy Healthcare Sacramento d/b/a Mercy General
Hospital, Mercy Medical Plaza, Mercy Ameri-
can River Hospital, Mercy San Juan Hospital,
Methodist Hospital and Mercy Hospital Folsom
and Health Care Workers Union, Local 250,
Service Employees International Union, AFL–
CIO, Petitioner. Cases 20–RC–17563 and 20–
RC–17564
May 24, 2001
DECISION AND DIRECTION OF SECOND
ELECTIONS
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to elections
held on January 27, 2000, and the hearing officer’s report
recommending disposition of them. The elections were
conducted pursuant to a Decision and Direction of Elec-
tions. The revised tally of ballots in Case 20–RC–17563
shows 598 for and 701 against the Petitioner, with 89
challenged ballots; and in Case 20–RC–17564, the tally
shows 193 for and 305 against the Petitioner, with 25
challenged ballots. The challenges were insufficient to
affect the results of either election.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations1 only to the extent consis-
tent with this Decision and Direction of Second Elec-
tions, and finds that both elections must be set aside and
new elections held.
I. INTRODUCTION
Two units were stipulated to by the Employer and the
Petitioner, and determined to be appropriate by the Act-
ing Regional Director. These units, as described by the
hearing officer, include employees employed by the Em-
ployer at five California hospitals: Mercy General Hos-
pital, located in Sacramento;2 Mercy American River
Hospital and Mercy San Juan Hospital, located in Carmi-
chael; Mercy Hospital Folsom, located in Folsom; and
Methodist Hospital, located in South Sacramento. The
unit determined appropriate in Case 20–RC–17563 is
referred to as the service unit. The unit determined ap-
propriate in Case 20–RC–17564 is referred to as the
technical unit.

1 The Petitioner and the Employer have excepted to some of the
hearing officer’s credibility findings. The Board’s established policy is
not to overrule a hearing officer’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find
no basis for reversing the hearing officer’s findings.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations to overrule: the Petitioner’s Objections 1, 2, 3,
4, and 5; the portions of the Petitioner’s Objection 7 alleging that em-
ployees were impermissibly restricted from wearing union pins, that a
nonemployee organizer was improperly excluded from a hospital cafe-
teria, that an agent of the Employer created the impression of surveil-
lance when he told an employee that “there are people around the hos-
pital watching you,” and that the Employer closed a side-door hospital
entrance to coerce, restrain, and interfere with protected activities; and
the Petitioner’s Objection 8 alleging that the Employer threatened em-
ployees who engaged in protected activities. We also adopt, pro forma,
in the absence of exceptions, the hearing officer’s finding that the evi-
dence was insufficient to establish the supervisory status of any of the
individuals alleged to have engaged in objectionable conduct.
The hearing officer found certain conduct engaged in
by agents of the Employer to be objectionable and other
conduct to be unobjectionable. The hearing officer
found, however, that the objectionable conduct was in-
sufficient to warrant setting aside the elections.
Both the Employer and the Petitioner filed exceptions
to the hearing officer’s report. In its exceptions, the Peti-
tioner alleges that the Employer engaged in additional
objectionable conduct not found by the hearing officer,
and that the totality of objectionable conduct was suffi-
cient to warrant setting aside the elections. In its excep-
tions, the Employer contends, inter alia, that the hearing
officer erred in finding that the individuals who engaged
in the conduct found objectionable are agents of the Em-
ployer, and that no objectionable conduct occurred in any
event.
The resolution of the Petitioner’s and the Employer’s
exceptions requires, as a threshold matter, that the Board
determine whether the individuals alleged to have en-
gaged in objectionable conduct are agents of the Em-
ployer so that their conduct is attributable to the Em-
ployer.3 Yale Industries, 324 NLRB 848, 851 (1997). If
an agency relationship is established, we must then re-
solve whether the conduct of these agents was objection-
able. Finally, if the conduct of the Employer’s agents is
deemed objectionable, the Board must determine
whether this misconduct warrants invalidating either or
both elections because the conduct was more than de
minimis with respect to affecting the results of the elec-
tions. Caron International, 246 NLRB 1120 (1979).
II. ANALYSIS
A. Agency
The hearing officer concluded, inter alia, that Tom Pe-
terson, Jean Scrafton, Candie Kenner, Scott Travis, Tim
2 Employees at Mercy Medical Plaza, which is associated with and
located on the same property as Mercy General Hospital, also are in-
cluded in the unit.
3 The hearing officer determined that the evidence was insufficient
to establish that these individuals possessed supervisory authority under
Sec. 2(11) of the Act. Because neither the Employer nor the Petitioner
challenges this determination, our inquiry here is limited to the issue of
agency.
334 NLRB No. 13
MERCY GENERAL HOSPITAL 101
Frates, Lori Kehoe, Allison Jones, Elizabeth Garcia,
Lorraine Shalanar, K. D. Lowe, Sara Clemons, and Ja-
bari Jahi4 are agents of the Employer.5 The Employer
has excepted to the hearing officer’s agency findings,
arguing that the hearing officer’s reliance on job titles as
establishing agency status is misplaced. We agree with
the Employer, for the reasons that follow, that the evi-
dence is insufficient to establish that Clemons and Jahi
were agents of the Employer. Otherwise, we agree with
the hearing officer’s conclusions that each of the other
above-named individuals is an agent of the Employer,
but we do so for the following reasons.
It is a long-established policy and practice of the Board
to apply the common-law principles of agency. Allegany
Aggregates, 311 NLRB 1165 (1993). Under the doctrine
of apparent authority, an agency relationship is estab-
lished where a principal’s manifestations to a third party
supply a reasonable basis for the third party to believe
that the principal has authorized the alleged agent to per-
form the acts in question. Id.; see generally, Dentech
Corp., 294 NLRB 924, 925 (1989). Thus, in determining
whether the actions by individuals towards employees
are attributable to the Employer, the test is whether “un-
der all the circumstances, ‘the employees would reasona-
bly believe that the employee in question was reflecting
company policy and speaking and acting for manage-
ment.’” Waterbed World, 286 NLRB 425, 426–427
(1987), supplemented by 289 NLRB 808 (1988), sup-
plemented by 301 NLRB 589 (1991), enfd. sub nom.
NLRB v. Omnix International Corp., 974 F.2d 1329 (1st
Cir. 1992) (quoting Einhorn Enterprises, 279 NLRB 576
(1986), enfd. 843 F.2d 1507 (2d Cir. 1988), cert. denied
488 U.S. 828 (1988)); see also Victor’s Cafe 52, 321
NLRB 504, 513 (1996).
1. Tom Peterson
Peterson is described by both Petitioner and Employer
witnesses as “president,” “CEO,”6 and “COO” of the
hospital.7 Less than 1 week before the elections, Peter-
son addressed a group of four employees at Mercy Gen-
eral, talked about voting in the upcoming elections, and
told employees that they would lose their accrued, paid
time off if employees selected the Petitioner to represent
them. On a separate occasion, Peterson also explained
Mercy General Hospital’s solicitation policy to a fifth
employee, Robert Daggs, after Daggs had attempted to
leave prounion literature in a hospital breakroom.8 Peter-
son did so at the behest of Jean Scrafton.9 Peterson told
Daggs not to be angry with Scrafton for removing union
literature from the breakroom because she was “follow-
ing the advice of management.”10 Under these circum-
stances, where it was well known that Peterson was head
of the hospital and where he spoke on the Employer’s
behalf with employees about the hospital’s personnel
policies, we conclude that employees would reasonably
believe that Peterson was acting on the Employer’s be-
half and, thus, was vested with apparent authority. Ac-
cordingly, we conclude that Peterson is an agent of the
Employer.

4 Jabari Jahi is referred to as such by the Employer in its exceptions;
he is referred to as Jahib Jabari by the hearing officer. The record does
not conclusively resolve this discrepancy. For the purpose of consis-
tency, our decision will refer to this individual as Jabari Jahi, the name
provided by the Employer.
5 The hearing officer also concluded that Sherry Franchescia was an
agent of the Employer. Because no party has excepted to the hearing
officer’s determination that the incident involving Sherry Franchescia
did not occur during the critical period, we do not address the hearing
officer’s conclusion that Franchescia was an agent of the Employer.
6 Testimony of Maria Ramirez, Tr. 246.
7 Testimony of Tim Frates, Tr. 474 (stating that “Tom is the COO of
the hospital, and this is his hospital”). See also testimony of Robert
Daggs at Tr. 347.
2. Jean Scrafton
Scrafton is a clinical coordinator at Mercy General.
Scrafton told an employee that if the Union came in,
Scrafton would not be able to grant the employee 2 con-
secutive weeks of time off during a year. The record
establishes that Scrafton communicates employment
matters to employees on behalf of the Employer. For
example, Scrafton has disciplined11 employees within her
department.12 Scrafton also assigns work to employees,13
and grants them time off.14 Accordingly, we conclude
that employees would reasonably believe that Scrafton
was acting for management when making the statement
in issue here.
3. Candie Kenner
Kenner is employed at Mercy General as a clinical co-
ordinator. Kenner told employee Lisa Sweeting that if
the Union were selected, bargaining would start from
“ground zero.” Sweeting described Kenner as her “im-
mediate supervisor.”15 Kenner communicates employ-
ment matters to employees on behalf of the Employer.
For example, Sweeting testified that Kenner fills out her
8 Testimony of Daggs, Tr. 347–349.
9 According to Daggs, Peterson told him that “Jean called me here to
explain our policy because it seems like you don’t understand the pol-
icy here.” Tr. 348. Daggs described Scrafton as the “PM supervisor,
clinical supervisor.” Tr. 344.
10 Tr. 349.
11 As set forth above, there were no exceptions to the hearing offi-
cer’s finding that there was insufficient evidence to establish supervi-
sory status.
12 Testimony of Lisa Sweeting, Tr. 313.
13 Tr. 312–313.
14 Tr. 310; see also testimony of Daggs, Tr. 344.
15 Tr. 310.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102
annual performance evaluation and that the evaluation
affects her ability to get a raise.16 In addition, Kenner
assigns work to employees. The record also establishes
that Kenner, like Scrafton, disciplined employees.17 Ac-
cordingly, we conclude that Kenner was speaking for
management when she raised the spectre of the loss of
existing benefits.
4. Scott Travis
Travis is employed at Mercy General Hospital. Travis
made three statements that are alleged to constitute
threats of adverse consequences if employees selected
the Petitioner as their collective-bargaining representa-
tive. Travis, who identified himself as a supervisor,18
communicates employment matters on behalf of the Em-
ployer. Thus, the record shows that Travis evaluates
employees and that the evaluation affects the employee’s
ability to get a raise.19 In addition, Travis disciplines
employees.20 Accordingly, we conclude that employees
would reasonably believe that Travis was speaking for
management when he made the statements alleged to be
objectionable.
5. Tim Frates
Frates works at both Methodist and Mercy General
Hospitals. He is the manager for the Central Sterile
Processing Department. Frates removed union literature
from breakrooms at Methodist21 and Mercy General
Hospitals22 and told employees to “do their business out-
side the [Central Service] department.”23 Frates identi-
fied himself as a supervisor.24 In addition, the record
shows that Frates evaluates employees,25 advising them
of the Employer’s assessment of their job performance.
Accordingly, because Frates communicates employment
matters to employees on behalf of the Employer, we con-
clude that employees would reasonably believe that
Frates’ conduct reflected the position of the Employer.
6. Lori Kehoe
Kehoe is the Nutrition Services supervisor at Mercy
Hospital Folsom. Kehoe prohibited employee Nikki
Sparks from talking about the Union in Mercy Hospital
Folsom’s cafeteria. The record shows that Kehoe evalu-
ates employees and, thus, communicates the Employer’s
assessment of their job performance to them.26 Under
these circumstances, where Kehoe communicates em-
ployment matters to employees on behalf of the Em-
ployer, employee Sparks would reasonably believe that
Kehoe was acting for management when she barred
Sparks from talking about the Union.

16 Tr. 311.
17 Tr. 312–313.
18 Testimony of Scott Travis, Tr. 490.
19 Testimony of Darlene Burleson, Tr. 364, 369.
20 Testimony of Zoia Quinn, Tr. 98–99.
21 Testimony of Mark Nielsen, Tr. 404–405.
22 Testimony of Burleson, Tr. 378–379.
23 Testimony of Frates, Tr. 473.
24 Tr. 468.
25 Testimony of Burleson, Tr. 364, 369.
7. Allison Jones
Jones is the supervisor of the Medical Telemetry unit
at Mercy General Hospital.27 Jones told an employee
that if the Union were selected she could no longer allow
the employee to take certain days off. Jones also prohib-
ited conversations about the Union at employee worksta-
tions during working hours while permitting conversa-
tions about other subjects. Jones disciplines employees
and, thus, communicates to employees the Employer’s
assessment of employees’ job performance.28 Under
these circumstances, we conclude that employees would
reasonably believe that Jones was speaking for manage-
ment.
8. Elizabeth Garcia
Garcia was identified at the hearing as a supervisor in
the Orthopedic Surgery unit at Mercy General Hospital.
Garcia told employee Zoia Quinn to remove a prounion
message from a button. Unrebutted testimony estab-
lishes that Garcia has the authority to discipline employ-
ees and approve leave requests.29 The record shows that
Garcia enforced the Employer’s no-solicitation policy.30
Under these circumstances, where the record reveals that
Garcia communicates employment matters to employees
on behalf of the Employer, employees would reasonably
believe that Garcia was speaking and acting for the Em-
ployer.
9. Lorraine Shalanar
Shalanar is employed at Methodist Hospital. The re-
cord establishes that, during the critical period, Shalanar
left an urgent phone message with an employee and, sub-
sequently, questioned that employee regarding whether
the Petitioner’s organizers had accompanied the em-
ployee into the hospital.31 Shalanar is identified by em-
ployee Robert Nielsen in unrebutted testimony as the
“nursing supervisor” who “runs the house” and is the
“ultimate authority on weekends” at Methodist Hospi-
tal.32 Shalanar did not testify. Based on Nielsen’s unre-
butted testimony, we conclude that employees would
26 Testimony of Nikki Sparks, Tr. 120.
27 Testimony of Allison Jones, Tr. 447.
28 Testimony of Laura Zamora-Gaffney, Tr. 421–422.
29 Testimony of Quinn, Tr. 91–92.
30 Tr. 91.
31 Testimony of Nielsen, Tr. 407–408.
32 Tr. 407.

MERCY GENERAL HOSPITAL 103
reasonably believe that Shalanar was acting for the Em-
ployer.
10. K.D. Lowe
Lowe is identified in the record as a hospital adminis-
trator at Methodist Hospital.33 Lowe led a meeting dur-
ing January 2000 in which he is alleged to have threat-
ened employees with adverse consequences if the Peti-
tioner were selected by employees as their collective-
bargaining representative. At this meeting, attended by
supervisors, managers, and employees, employees were
given the opportunity to ask questions about union repre-
sentation and discuss the Employer’s personnel poli-
cies.34 Lowe responded to employment-related matters
raised by employees.35 Under these circumstances, we
conclude that employees would reasonably view Lowe as
speaking on behalf of the Employer.
11. Sara Clemons
Employee Margie Ulibarri identified Clemons as a su-
pervisor at the Surgery Center,36 which is associated with
Mercy American River Hospital. Clemons enforced the
Employer’s policy against discussing the Union during
work hours.37 There is no evidence, however, establish-
ing that, prior to the incident alleged to be objectionable,
employees would reasonably view Clemons as acting or
speaking on behalf of management or reflecting company
policy. Unlike the hearing officer, therefore, we con-
clude that the record is insufficient to warrant a finding
that Clemons was an agent of the Employer.
12. Jabari Jahi
Martin Jone—an organizer for the Petitioner—
identified Jahi as “the head of human resources” at
Methodist Hospital,38 stating that Jahi introduced himself
to Jones by that title.39 Jahi did not testify. Except for
Jones’ bare assertions, there is no evidence establishing
employees would reasonably believe that Jahi acted or
spoke on behalf of management or was reflecting com-
pany policy. Unlike the hearing officer, therefore, we
conclude that the record is insufficient to warrant a find-
ing that Jahi was an agent of the Employer.
Accordingly, we conclude-—as did the hearing offi-
cer—that the conduct of Peterson, Scrafton, Kenner,
Travis, Frates, Kehoe, Jones, Garcia, Shalanar, and Lowe
is attributable to the Employer. Thus, having concluded
that these individuals were acting as agents of the Em-
ployer, we turn to the issue of whether their conduct was
objectionable.

33 Testimony of Myra Bennett, Tr. at 229.
34 Tr. at 229.
35 Tr. at 229–230. (Bennett testified that Lowe asked, “What [are]
your issues?” and pointedly asked about “a separate time bank” for
employees’ sick leave, family health benefits, and pay raises.)
36 Testimony of Margie Ulibarri, Tr. at 432.
37 Tr. at 433.
38 Testimony of Martin Jones, Tr. at 143.
39 Id.
B. Alleged Objectionable Conduct
1.Threats made to hospital employees
The hearing officer determined that threats made by
six agents of the Employer—Travis, Scrafton, Jones,
Peterson, Kenner, and Lowe—constituted objectionable
conduct. We agree.
With regard to Travis, Scrafton, Jones, and Peterson,
the hearing officer credited employee testimony that each
one of them told employees that they would no longer
receive certain benefits that they were currently receiv-
ing, if they selected the Petitioner as their bargaining
representative. Travis told employee Burleson, inter alia,
“that if the union came in that we wouldn’t be able to
take time off, we would have to give at least a year in
advance for vacation.”40 Scrafton told employee Sweet-
ing that if the Union came in she would not be able to
grant 2 weeks consecutive time off to Sweeting and that
other employees would lose their ability to visit their
families because of this restriction.41 Jones told em-
ployee Zamora-Gaffney that if the Petitioner won the
election, Jones would no longer be able to schedule cer-
tain days off for employees. And employee Ramirez
testified that Peterson told employees that they would
lose their accrued, paid time off if they selected the Peti-
tioner to represent them.42 It is well established that such
threats are objectionable. Story Oldsmobile, Inc., 244
NLRB 835, 838 (1979). (“[T]he threat of loss of vacation
benefits or other scheduled time off clearly tends to inter-
fere with [employees’] Section 7 right to seek union rep-
resentation.”)
The Employer argues that, in making these statements,
Travis, Scrafton, Jones, and Peterson were simply refer-
ring to a collective-bargaining agreement that the Peti-
tioner had with another employer. The Employer’s con-
tention is not supported by credible evidence. In the case
of Travis and Jones, the Employer’s argument is based
on their testimony, which was not credited. And in the
case of Scrafton, it is not supported by the testimony of
Sweeting, which was credited. With regard to Peterson,
employee Ramirez specifically denied that Peterson re-
ferred to a collective-bargaining agreement,43 and Peter-
son did not testify. We therefore reject the Employer’s
argument, and find that each of these Employer agents
40 Testimony of Burleson, Tr. at 366.
41 Testimony of Sweeting, Tr. at 314–315.
42 Testimony of Ramirez, Tr. at 248.
43 Tr. at 252.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104
engaged in objectionable conduct by threatening em-
ployees with loss of benefits if they selected the Peti-
tioner as their bargaining representative.
The hearing officer found that agent Kenner told em-
ployee Sweeting that if the Petitioner won the election,
bargaining would start at “ground zero” and that employ-
ees “wouldn’t have anything.”44 The Board has held that
an employer’s statement that negotiations would start
from “ground zero” if employees selected union repre-
sentation constitutes an unlawful threat. Webco Indus-
tries, 327 NLRB 172, 172 fn. 4 (1998), enfd. 217 F.3d
1306 (10th Cir. 2000) (quoting Plastronics, Inc., 233
NLRB 155, 156 (1977)). In Plastronics, the Board stated
that “[s]uch statements are objectionable when, in con-
text, they effectively threaten employees with the loss of
existing benefits and leave them with the impression that
what they may ultimately receive depends in large meas-
ure on what the Union can induce the employer to re-
store.” Id. Such comments, however, are not objection-
able “when additional communication to the employees
dispels any implication that wages and/or benefits will be
reduced during the course of bargaining and establishes
that any reduction in wages or benefits will occur only as
a result of the normal give and take of collective bargain-
ing.” Id. The Employer presented no evidence placing
Kenner’s statement in such a context. Kenner did not
testify. Thus, we conclude that Kenner’s statement con-
stituted a threat and is objectionable. Id.
The statement attributed to agent Lowe by employee
Bennett was that, under the future union contract, em-
ployees would be forced to give 60 days’ advance notice
for any time off requests. At the time of Lowe’s state-
ment, employees were not required to give 60 days’ ad-
vance notice when requesting time off. Bennett replied
that the rules governing time off would be dependent on
the contract that was negotiated by the parties.
The Employer argues that Bennett’s comment miti-
gated any threat flowing from Lowe’s statement. We
disagree. Under similar circumstances, in St. Vincent’s
Hospital, 244 NLRB 84, 92 (1979), the Board found
impermissible statements from supervisors that if em-
ployees voted for union representation, they would no
longer be able to follow the current practice of granting
requests for time off. In that case, the supervisors subse-
quently “failed to qualify their language” that the loss of
benefits would occur if employees voted for union repre-
sentation. Id. Here, Lowe never disavowed or qualified
his statement that employees would lose an established
benefit if employees voted for union representation. Ac-
cordingly, we conclude that the circumstances surround-
ing Lowe’s exchange with employees in no way militates
against the conclusion that his comments constituted an
objectionable threat of loss of benefits.

44 Testimony of Sweeting, Tr. 317–318.
2. Surveillance
The hearing officer determined that the Employer en-
gaged in objectionable surveillance when security guards
hired by the Employer followed employees at Mercy
General Hospital, Methodist Hospital, and Mercy San
Juan Hospital. The hearing officer also concluded that
the Employer engaged in objectionable surveillance
through the use of a security camera at the main entrance
into Mercy General Hospital. The Employer challenges
these determinations by the hearing officer. We agree,
except as set forth below, with the hearing officer’s con-
clusion that the Employer engaged in objectionable con-
duct in both instances, but we do so for the following
reasons.45
The hearing officer’s conclusion that open union ad-
herents Quinn, Burleson, and Teresa Schwager at Mercy
General Hospital, Susan Cripe at Methodist Hospital, and
Karissa Ann Lujan of Mercy San Juan Hospital were
followed by security guards is fully supported by the
record. The hearing officer credited the testimony of
these employees that they were regularly and deliberately
followed by security guards, and that fellow employees
noticed that they were being followed.46 There is noth-
ing in the record—other than contradictory, discredited
testimony from Employer witnesses—supporting the
Employer’s exception. As stated supra, the clear pre-
ponderance of the evidence establishes that the hearing
officer properly resolved conflicts in witness credibility.
Accordingly, we conclude that the Employer’s surveil-
lance of employees Quinn, Burleson, Schwager, Cripe,
and Lujan was objectionable.47
45 The Petitioner excepts to the hearing officer’s conclusion that the
Employer’s hiring of additional security guards during the critical pe-
riod did not constitute objectionable surveillance of employees’ union
activities. We conclude, for the reasons stated by the hearing officer,
that the Employer’s hiring of additional security guards did not consti-
tute objectionable surveillance.
In addition, as stated supra, we do not agree with the hearing offi-
cer’s conclusion that Jahi was an agent of the Employer. Thus, we do
not adopt the hearing officer’s finding that Jahi engaged in objection-
able surveillance through his activities at Methodist Hospital.
46 Testimony of Susan Cripe, Tr. 137–138. (“My nursing co-
workers had noticed the man following me[.]” “They were just dis-
cussing how it was apparently obvious that he was following me.”) See
also testimony of Quinn, Tr. 83.
47 However, contrary to the hearing officer, we find, in agreement
with the Employer, that the alleged following of employee Bright dur-
ing his meeting in the Mercy General Hospital cafeteria did not consti-
tute objectionable surveillance because the record does not show that
the incident occurred during the critical period.

MERCY GENERAL HOSPITAL 105
The hearing officer also concluded that it was objec-
tionable for the Employer to point its security camera
directly at employees engaged in union leafleting outside
of Mercy General Hospital. The Employer challenges
this conclusion, arguing that its observation of employee
campaign activities on its property is not objectionable
and comports with conduct that the Board deemed per-
missible in Roadway Package System, 302 NLRB 961
(1991). According to the Employer, “[o]bservation in
this particular instance would have been warranted both
because of the pre-existing practice of focusing the cam-
era on that location at shift changes, and because the site
can be restrictive and contains substantial pedestrian and
vehicular traffic.”
In Roadway Package System, the Board concluded that
a manager who visibly observed employees as they dis-
tributed prounion literature on the employer’s property
did not violate Section 8(a)(1) because, “where . . . em-
ployees are conducting their activities openly on or near
the company premises, open observation of such activi-
ties by an employer is not unlawful.” Id. at 961. How-
ever, the Board also has recognized that, “absent proper
justification, the photographing of employees engaged in
protected concerted activities violates the Act because it
has a tendency to intimidate.” F. W. Woolworth Co., 310
NLRB 1197 (1993) (citing Waco, Inc., 273 NLRB 746,
747 (1984)). The Board warned in F. W. Woolworth that
“[w]hen an employer’s surveillance activity constitutes
more than ‘mere observation,’ the Board has found a
violation of the Act.” Id. at 1197 (citations omitted).
“Photographing and videotaping clearly constitute more
than ‘mere observation’ because such pictorial record-
keeping tends to create fear among employees of future
reprisals.” Id.
Thus, the facts in Roadway Package System are distin-
guishable because that case did not involve the use of a
security camera but, instead, concerned a manager who
merely observed employees as they leafleted. Here, the
hearing officer found that the Employer pointed its secu-
rity camera at employees as they distributed pro-union
leaflets outside Mercy General Hospital, and “that the
direction in which the camera was pointing on such oc-
casions did not result from the established way in which
the camera was operating.” The hearing officer also
found, and we agree, that the Employer failed to intro-
duce evidence sufficient to demonstrate a business justi-
fication for engaging in surveillance of employees’ union
activity.
The Employer also argues that the camera’s operation
was reviewed prior to the critical period by Region 20 of
the Board. Even assuming that such a review occurred,
however, at issue is how the security camera actually was
operated by the Employer during the critical period, i.e.,
whether the camera’s operation would have the reason-
able tendency to intimidate employees in the exercise of
their protected rights. Here, we find that the security
camera’s actual used during the critical period had the
reasonable tendency to intimidate. Accordingly, we af-
firm the hearing officer’s finding of objectionable sur-
veillance.
3. Interrogation
The hearing officer also concluded that an agent for
the Employer, Shalanar, interrogated employee Nielsen
at Methodist Hospital, concerning his union activities.
Specifically, the hearing officer found that Shalanar
asked Nielsen to identify the two nonemployees who
accompanied him in the hospital during his lunchbreak,
whether any organizers were present, and whether any
organizing occurred. Shalanar did not testify. The Em-
ployer challenges the hearing officer’s conclusions, argu-
ing that Shalanar’s questioning of Nielsen was not an
interrogation about an employee’s union sympathies but
concerned an activity that was not protected (the pres-
ence of two strangers touring the hospital).
Whether the questioning of an employee concerning
union activity constitutes objectionable interrogation is
determined by all of the existing circumstances, includ-
ing the background, nature of the information sought, the
identity of the questioner, and the place and method of
interrogation. Rossmore House, 269 NLRB 1176, 1178
fn. 20 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). See also NLRB v. Laredo Coca Cola Bottling
Co., 613 F.2d 1338 (5th Cir. 1980), cert. denied 449 U.S.
889 (1980). In Laredo, the U.S. Court of Appeals for the
Fifth Circuit observed:

[A]n employee is entitled to keep from his employer
his views so that the employee may exercise a full and
free choice on whether to select the Union or not, unin-
fluenced by the employer’s knowledge or suspicion
about those views and the possible reaction toward the
employee that his views may stimulate in the employer.

Id. at 1342 fn. 7. In Sea Breeze Health Care Center, 331
NLRB 1131 (2000), the Board determined that a supervi-
sor’s questioning of employees that “made it clear to them
that the Respondent wanted to find out about any union
organizing activity, and implied to the employees that they
were to let [the respondent] know what they found out”
violated Section 8(a)(1). See also Crown Cork & Seal Co.,
308 NLRB 445, 449 (1992) (employer’s questioning as to
who served on a union organizing committee “went well
beyond the question of [the employee’s] own union activi-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106
ties and was an attempt to seek out information concerning
how widespread union support was”), enf. denied on other
grounds 36 F.3d 1130, 1142 (D.C. Cir. 1994).
Here, Nielsen’s uncontradicted testimony is that Sha-
lanar asked whether he had engaged in union organizing
at the hospital. Thus, contrary to the Employer’s asser-
tion, Shalanar’s question directly inquired into Nielsen’s
protected union activities. Under these circumstances,
we agree with the hearing officer that Shalanar’s ques-
tioning of Nielsen was objectionable. Rossmore House,
supra.
4. Employer restrictions on union activity
a. Conduct found objectionable by the hearing officer
The hearing officer concluded that on several occa-
sions the Employer impermissibly restricted union activi-
ties at the Employer’s facilities.48 In each instance, the
Employer excepts to the hearing officer’s conclusions.
As to employee Hensley, who is employed in the ser-
vice unit at Mercy General, the hearing officer found that
the Employer, through agent Jones, discriminatorily pro-
hibited conversations about the Union at employee work-
stations while permitting conversations covering other
subject matters. Thus, the hearing officer concluded that
the Employer had engaged in objectionable conduct.
The Employer argues that Jones was attempting to main-
tain order in a patient care area, which the Employer as-
serts is permissible under Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978).
Although the Employer argues that Beth Israel Hospi-
tal allows the Employer greater control to prohibit solici-
tation in patient care areas, nothing in that decision em-
powers an employer to discriminate against conversa-
tions pertaining to the Union. See Opryland Hotel, 323
NLRB 723, 728–729 (1997) (stating that “[w]here an
employer maintains a no-solicitation rule which is valid
it must be applied uniformly, not sporadically, not
springing up only when union activities begin, and not
singling out union activities only for enforcement”).
Here, even accepting the Employer’s assertion that the
incident took place in a patient care area, Hensley’s tes-
timony that employees discussed other subject matters
without limitation in the same area of the hospital is not
contradicted. Accordingly, we agree with the hearing
officer that the Employer’s discriminatory prohibition
against union talk was objectionable.
As to employee Quinn, who is employed at Mercy
General, the hearing officer concluded that Employer
agent Garcia told her to remove a ribbon containing a
prounion message from a button. The Employer does not
dispute Quinn’s account, but argues that Garcia’s actions
were permissible because the removal of the message
was necessary to maintain the integrity of the hospital’s
uniform.

48 As stated supra, we disagree with the hearing officer’s conclusion
that Clemons was an agent of the Employer. Accordingly, we find that
Clemons’ activities did not constitute objectionable conduct.
The Board has held that the wearing of pins by em-
ployees engaged in protected activities may not be pro-
hibited absent special circumstances. Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945); see also St. Luke’s
Hospital, 314 NLRB 434, 435 (1994) (finding that the
record did not support the company’s assertion that pa-
tients would become upset by a button’s prounion mes-
sage).
As found by the hearing officer, the message on the
button read, “working together works SEIU Local 250.”
Similar to St. Luke’s, there is no evidence in the record
that the button’s message in any way undermined the
integrity of the hospital’s uniform. The fact that the Em-
ployer permitted the button itself, which is described by
the hearing officer as a “little fuzzy, purple ball with
eyes, antennae and feet on it,” to remain visible on the
uniform belies the Employer’s assertion that it in any
way was concerned with the button’s effect on the hospi-
tal’s uniform. That the Employer required Quinn to re-
move only the ribbon containing the prounion message
supports the hearing officer’s conclusion that the Em-
ployer interfered with an employee’s exercise of a pro-
tected activity. St. Luke’s, supra. Accordingly, we agree
with the hearing officer that the Employer’s conduct was
objectionable.49
b. Conduct not found objectionable by the hearing officer
The Petitioner excepts to the hearing officer’s conclu-
sion that an incident involving employee Sparks at
Mercy Hospital Folsom was not objectionable because it
did not occur during the critical period. Specifically,
Sparks stated in testimony credited by the hearing officer
that Employer agent Kehoe verbally reprimanded her for
talking about the Union while working. The Petitioner
argues that, although Sparks’ testimony does not estab-
lish the incident’s timing, Kehoe’s testimony does estab-
lish that the incident took place well within the critical
period.
49 For the reasons stated by the hearing officer, we also agree with
his finding of objectionable conduct based on security guard Barry’s
interference with employees’ right to express their support for the Un-
ion to the Speaker of the California Assembly when he visited Mercy
General Hospital. Member Truesdale finds it unnecessary to pass on
this finding given that any findings of objectionable restriction of union
activities on the Employer’s premises by Barry would be cumulative.

MERCY GENERAL HOSPITAL 107
The Petitioner’s assertion is correct.50 Accordingly,
we conclude that the hearing officer erred in determining
that the conversation between Sparks and Kehoe did not
occur during the critical period. Further, as found by the
hearing officer, Sparks testified that while working em-
ployees discussed a variety of nonwork subjects without
restriction. This testimony was not contradicted. No
similar restrictions were placed on other subject matters.
The Employer therefore engaged in objectionable con-
duct by discriminating against employee discussions re-
garding the Union. See Opryland Hotel, supra.
The Petitioner also excepts to the hearing officer’s
failure to find objectionable the Employer’s restriction
during the critical period on the distribution of union
literature in the Employer’s facilities. Specifically, the
hearing officer found the restrictions unobjectionable
because they began before the critical period began. The
hearing officer stated:

According to the Union’s evidence, Union literature
and notices were treated differently from other non-
work related notices and literature. Two of the Em-
ployer’s supervisors who acknowledged removing Un-
ion literature and notices from break rooms, [agent]
Frates and [agent] Scrafton, testified that they started
such removals in about March and April 1999 . . . .
There is no testimony showing that the Employer’s pol-
icy was first enforced during the critical period from
November 15, 1999 to the date of the election. There-
fore, the maintenance of the Employer’s policy after
the start of the critical period does not constitute objec-
tionable conduct, even if the establishment of the policy
was initially motivated by a desire to prevent the distri-
bution and posting of Union materials within the Em-
ployer’s facilities.

Hearing officer’s report at 31. The Petitioner argues that it
was objectionable for the Employer to remove union litera-
ture from breakrooms during the critical period. We agree
with the Petitioner.
It is well settled that an employer may not confiscate
prounion literature from employee breakrooms. Venture
Industries, 330 NLRB 1133, 1134 (2000). Here, as
found by the hearing officer, Employer agents Frates and
Scrafton removed and threw away prounion literature
from breakrooms at the Employer’s facilities during the
critical period. Consistent with the Board’s holding in
Venture Industries, we find that the Employer’s conduct
was objectionable because it interfered with employees’
right to distribute union literature in nonwork areas on
nonworking time. Further, contrary to the hearing offi-
cer, we also find that it is irrelevant that the Employer’s
policy of removing union literature from the breakrooms
may have begun before the start of the critical period.
See Custom Trim Products, 255 NLRB 787, 788 (1981)
(overbroad no-distribution rule held to be objectionable,
even thought it was first posted outside the critical pe-
riod).

50 Testimony of Lori Kehoe, Tr. 507. (Q: “When did—when was
this conversation that you had with Ms. Sparks?” A: “It was January
15th.”) The critical period is November 15, 1999, to January 27, 2000.
C. Impact of the Objectionable Conduct On the Elections
Having found that the Employer engaged in objection-
able conduct, we turn to the issue of whether this mis-
conduct warrants setting aside the elections. “In resolv-
ing the question of whether certain Employer misconduct
is de minimis with respect to affecting the results of an
election, the Board takes into consideration the number
of violations, their severity, the extent of dissemination,
the size of the unit, and other relevant factors.” Caron
International, 246 NLRB 1120 (1979). The hearing offi-
cer found that the Employer’s objectionable conduct
“had a minimal impact on the election process” and, thus
did not require setting aside the elections. We disagree.
The first factor to be considered in determining
whether the Employer’s conduct warrants setting aside
the elections is the number of incidents involved. Here, a
significant number of instances of objectionable conduct
occurred, including six incidents involving surveillance,
six incidents involving Employer threats, and one inci-
dent of interrogation. In addition, the Employer’s objec-
tionable conduct included five instances where it imper-
missibly restricted union activity in its facilities. We find
that the number of instances of objectionable conduct
engaged in by the Employer was more than minimal.51
Another factor to be considered in determining
whether the Employer’s conduct warrants setting aside
the elections is the severity of the conduct. We disagree
with the hearing officer’s conclusion that the Employer’s
conduct was “not sufficiently serious” to warrant setting
aside the elections. The Board has held that the employ-
ees’ opportunity to be informed as to the issues in the
exercise of their statutory right to vote is of primary im-
portance. Excelsior Underwear, 156 NLRB 1236, 1238
(1966). Employees must have “an effective opportunity
to hear the arguments concerning representation.” Id.
Thus, conduct that impermissibly interferes with the dis-
51 Although Member Truesdale finds it unnecessary to pass on one
of the five incidents in which the Employer is found to have impermis-
sibly restricted union activity in its facilities, he agrees that the number
of instances of objectionable conduct engaged in by the Employer was
more than minimal. He also notes that this incident is only one of a
large number of instances of objectionable conduct found to have oc-
curred at Mercy General Hospital.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108
semination of campaign information to employees has a
tendency to interfere with employees’ free choice in the
election. See generally AK Steel Corp., 317 NLRB 260
(1995); see also Alcohol & Drug Dependency Services,
326 NLRB 519 (1998) (the Board finding objectionable
the employer’s tardy furnishing of an Excelsior list and,
in ordering a new election, stating that the objectionable
conduct interfered with employees’ opportunities “to be
informed of the arguments concerning representation, so
that that they can freely exercise their Section 7 rights”).
Here, much of the objectionable conduct engaged in by
the Employer had the effect of restricting the employees’
access to information concerning the issues raised by the
organizational campaign. For example, the objectionable
surveillance reasonably had the effect of discouraging
employees from leafleting for the Union. Removing
campaign materials from hospital breakrooms, discrimi-
natorily prohibiting employees from talking about the
Union at workstations, and prohibiting an employee from
wearing a button containing a prounion message, all had
a tendency to inhibit the free flow of information and
employees’ willingness to participate in union campaign
activities. The objectionable threats and interrogation
also had a tendency to seriously inhibit the employees’
willingness to engage in union activity, and to impede
the free flow of information. Accordingly, we find the
Employer’s objectionable conduct to be sufficiently seri-
ous to warrant setting aside the election.
We also disagree with the hearing officer’s conclusion
that the Petitioner failed to establish significant dissemi-
nation of the Employer’s objectionable conduct. A large
number of instances of objectionable conduct occurred at
Mercy General Hospital, the largest hospital; but objec-
tionable conduct also occurred at Methodist Hospital,
Mercy San Juan Hospital and Mercy Hospital Folsom.
The record demonstrates that a large number of employ-
ees, from both units, were told of or witnessed such con-
duct.52 In addition, a large, but unknown, number of
employees in both units entering and exiting the hospital
during shift changes and at other times would have ob-
served the Employer’s objectionable videotape surveil-
lance at Mercy General Hospital. A large, but also un-
known, number of employees in both units at Mercy
General Hospital, Methodist Hospital, and Mercy San
Juan Hospital likely would have noticed the objection-
able conduct of security guards following prounion em-
ployees. Another group of employees witnessed the ob-
jectionable conduct of a security guard in front of Mercy
General Hospital during the Petitioner’s campaign event.
Another unknown number of employees in both units
were directly affected by the various restrictions on cam-
paigning and literature distribution imposed by the Em-
ployer. Thus, contrary to the finding of the hearing offi-
cer, the record demonstrates that, despite the large size of
the units, the Employer’s objectionable conduct was
widely disseminated among employees in both units.

52 As to the objectionable threats, Burleson testified that other em-
ployees heard Travis’ threats, and Sweeting testified that several em-
ployees heard Kenner’s threats. Ramirez testified that three other em-
ployees heard Peterson’s threat. Bennett testified that 10 to 15 employ-
ees heard Lowe’s threat.
As to the objectionable surveillance, Cripe testified that coworkers
noticed guards following her. Quinn testified that she spoke to co-
workers about being followed. Lujan testified that a guard followed 5
feet behind her “wherever I went” outside her department during the 2
weeks before the election. Schwager testified that one employee was
with her when a guard followed her, and that coworkers commented to
her about the security camera’s movement.
As to the objectionable restrictions on union activity, Hensley testi-
fied that at least one employee witnessed Jones’ conduct. Sparks testi-
fied that she told coworkers about Kehoe’s conduct. Schwager testified
that “a group” of coworkers was present during the Speaker incident.
Quinn testified that she told coworkers about Garcia’s conduct. Daggs
testified that coworkers witnessed the 15- to 20-minute conversation he
had with Peterson regarding the hospital’s solicitation policy.
Finally, we disagree with the hearing officer’s conclu-
sion that the ballot tallies weigh in favor of a determina-
tion that the elections should not be set aside. In Case
20–RC–17563, a switch of only 52 votes from 1299
cast—not counting the 89 unresolved challenged bal-
lots—would have resulted in an election victory for the
Petitioner. In Case 20–RC–17564, a switch of only 57
votes from 317 cast—not counting 25 unresolved chal-
lenged ballots—would have resulted in an election vic-
tory for the Petitioner. We conclude, therefore that, in
light of the potentially large number of employees di-
rectly affected by the objectionable conduct, the voting
margins in both Case 20–RC–17563 and Case 20–RC–
17564 hardly preclude a determination that the Em-
ployer’s conduct affected the election results.53

53Although the hearing officer correctly pointed out that the Board
gives great weight to the closeness of an election, this factor is but one
of several factors the Board considers in determining whether an elec-
tion result should be set aside. In Scientific Atlanta, Inc., 278 NLRB
467, 468 (1986), for example, the Board set aside an election even
though 717 votes separated the number of votes for the petitioner and
those opposed. The Board stated that the employer’s misconduct “was
far more than de minimis” and directed a second election even though
“the extent of the effect of the misconduct here cannot be determined
with any mathematical certainty.”

MERCY GENERAL HOSPITAL 109
Accordingly, for all these reasons, we conclude, con-
trary to the hearing officer, that the Employer’s objec-
tionable conduct cannot be dismissed as de minimis in
either the service unit or the technical unit. Therefore,
we shall set both elections aside.54

54 As the Union has excepted to the hearing officer’s failure to order
that the notice of the new election include, pursuant to Lufkin Rule Co.,
147 NLRB 341 (1964), a statement of the reason for the first elections
being set aside, we order that such language be included in the notice of
the new election. See NLRB Casehandling Manual (Part Two), Repre-
sentation Proceedings, Sec. 11452.1.
[Direction of Second Elections omitted from publica-
tion.]