Cedars-Sinai Medical Center

National Labor Relations Board - Board Decisions

Jul 28, 2004

342 N.L.R.B. 596 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 58
596
Cedars-Sinai Medical Center and California Nurses
Association. Case 31–RC–8180
July 28, 2004
DECISION AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held December 11, 12, and 13, 2002, and the administra-
tive law judge’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 695
votes for and 627 against the Petitioner, with 10 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has decided to adopt the judge’s
findings1 and recommendations only to the extent consis-
tent with this Decision and Direction of Second Election.
Introduction
The Employer filed timely objections to the election,
numbered from 1 through 19, with multiple subparts. In
Objection 1, the Employer alleged, inter alia, that the
Petitioner, by its agents or supporters, made anonymous
telephonic threats to antiunion bargaining unit employees
during the “critical period” between the filing of the peti-
tion for election, on October 30, 2002,2 and the election
itself.
The judge found that, in the months and weeks preced-
ing the election, agents of the Petitioner made several
threatening telephone calls to antiunion employees Chris-
tine Foxon and Scott Barnes; she also found that these
threats were disseminated to other employees in the bar-
gaining unit. However, applying the Board’s standard
for party conduct, the judge concluded that the threats
did not have the tendency to interfere with employees’
freedom of choice. She therefore recommended that the
portions of Objection 1 relating to the threats to Foxon
and Barnes be overruled.3

1 The Employer has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 All dates herein are in 2002, unless otherwise noted.
3 In addition, the judge ultimately recommended that Objection 1 be
overruled in its entirety.
The Employer excepts, inter alia, to the judge’s rec-
ommendation to overrule Objection 1, and contends that
the threats to Foxon and Barnes require that the election
be set aside. For the reasons set forth below, we find
merit in the Employer’s exceptions as they pertain to the
threats to Barnes.4 Accordingly, we sustain the portion
of Objection 1 relating to these threats, set aside the elec-
tion on this basis, and order that a new election be held.5
Background
The relevant facts are as follows. During the Peti-
tioner’s organizing campaign at the Employer, emer-
gency room nurses Foxon and Barnes were among the
most active opponents of the Petitioner’s organizing ef-
forts. In this regard, they were involved in recruiting
other nurses who opposed the organizing efforts to attend
antiunion meetings; in handing out antiunion flyers and
information; and in cofounding an antiunion organization
called “One Voice, Our Voice.”
Beginning sometime in August and spanning through
October or November, Foxon began to receive a series of
threatening anonymous telephone calls.6 The first three
calls essentially warned Foxon to “back off” her opposi-
tion to the Petitioner and that she “needed to be careful”
about opposing the Petitioner. After receiving the third
call, Foxon dialed “*69,” and the individual who an-

4 As explained further below, we find that the Employer has failed to
show that the threats to Foxon took place during the critical period;
thus, we rely on those threats only to the extent that they add meaning
and dimension to the threats to Barnes. See Dresser Industries, 242
NLRB 74, 74 (1979).
5 In light of our finding that the threats to Barnes, standing alone,
warrant setting aside the election, we find it unnecessary to pass on the
Employer’s exceptions to the judge’s recommendation to overrule
Objections 2 through 19 and the portions of Objection 1 that do not
relate to these threats.
Although Member Walsh agrees that the election should be set aside
on the basis of the threats to Barnes, and that the threats to Foxon
should be relied upon as background evidence, he would adopt, rather
than find it unnecessary to pass on, the judge’s recommendation to
overrule the remaining objections, except Objection 3, as he finds that
they are without merit. He joins Member Schaumber in finding it un-
necessary to pass on the portions of Objection 3 relating to the vandal-
ism of antiunion employees’ vehicles.
Chairman Battista would also find that the vandalism of the cars of
three antiunion nonunit employees was objectionable. News of the
vandalism was widely disseminated among unit employees. This van-
dalism, when coupled with the other conduct found objectionable,
created a general atmosphere of fear and reprisal.
6 The record does not reflect the specific dates that these calls oc-
curred. It indicates only that Foxon spoke to the Petitioner’s lead or-
ganizer, David Monkawa, about the calls shortly after what turned out
to be the final call, and that this discussion took place in November.
However, there is no indication as to when the final call took place in
relation to this discussion.
CEDARS-SINAI MEDICAL CENTER 597
swered the telephone said, “California Nurses.”7 During
the fourth and final call, the caller told Foxon that he or
she knew that Foxon had two young daughters and that
she needed to “think about [her] family and [her] girls
and back off.”
In November, Barnes also began to receive threatening
anonymous calls. Barnes, a pet owner and animal lover,
received a total of 7 to 10 calls in which the callers vari-
ously told him to “stop fucking with the Union”; that
“little kittens look good in frying pans;” that they would
stab his dogs; and that “wouldn’t it be terrible if [his]
Corgis were run over.”8 These calls stopped at the end of
November, about 2 weeks before the election.
Barnes credibly testified that he discussed these threats
with Foxon, employee Suzanne Geimer, and other co-
workers; he also told 20 to 30 other nurses about the
threats at an emergency room department meeting.9 In
addition, there is evidence in the record that the threats
had been widely discussed outside of this context, as
news of the threats had reached a number of other unit
employees with whom Barnes had not spoken. In this
respect, several unit employees, who did not even know
Barnes, testified that they had heard about the threats.
Analysis
In evaluating party conduct during the critical period,
the Board applies an objective standard, under which
conduct is found to be objectionable if it has “the ten-
dency to interfere with the employees’ freedom of
choice.” Cambridge Tool & Mfg. Co., 316 NLRB 716,
716 (1995). In deciding whether such interference has
occurred under this standard, the Board considers: (1) the
number of incidents of misconduct; (2) the severity of
the incidents and whether they were likely to cause fear
among employees in the bargaining unit; (3) the number
of employees in the bargaining unit subjected to the mis-
conduct; (4) the proximity of the misconduct to the elec-
tion date; (5) the degree of persistence of the misconduct
in the minds of the bargaining unit employees; (6) the
extent of dissemination of the misconduct among bar-
gaining unit employees; (7) the effect, if any, of miscon-
duct by the opposing party to cancel out the effects of the
original misconduct; (8) the closeness of the final vote;
(9) the degree to which the misconduct can be attributed
to the party. See, e.g., Taylor Wharton Division, 336
NLRB 157, 158 (2001); Chicago Metallic Corp., 273
NLRB 1677, 1704 (1985), enfd. 794 F.2d 527 (9th Cir.
1986).

7 At the hearing, the judge took notice of the fact that the “*69” pro-
cedure allows the recipient of a call to be automatically connected with
the last caller.
8 “Corgis” referred to the breed of dogs Barnes owned.
9 Apparently, all of these individuals were unit employees.
As noted above, the judge, applying the above stan-
dard,10 concluded that the threats to Foxon and Barnes
did not have “the tendency to interfere with employees’
freedom of choice” and was therefore not objectionable.
In so concluding, the judge reasoned that, even though
the calls were menacing and intimidating, and were
likely disseminated to more than 34 voters,11 anonymous
threats such as these are viewed as less likely to be exe-
cuted than direct threats; and, she observed that the calls
targeted only two members of the bargaining unit. The
judge further stated that employees in the unit would
have no reason to believe that the callers who had threat-
ened Foxon and Barnes had the power to effectuate vio-
lence on a significant segment of the bargaining unit;
thus, she found that the threatening calls would not ob-
jectively cause fear among employees in the unit who
had heard about the calls but did not receive them. In
addition, the judge found that the calls ended 2 weeks
before the election, and it was reasonable to assume that
information of their cessation was disseminated, and that
the calls did not persist in the minds of voters. As dis-
cussed below, we disagree with the judge’s findings as
they relate to the threats to Barnes.
Contrary to the judge, we find that the threats to Bar-
nes constituted objectionable conduct under the standard
for party conduct.12 At the outset, we find that the judge
erred in positing that these threats were somehow less
“threatening” because they were made anonymously
rather than directly. Conversely, we believe that, in these
circumstances, the anonymous threats were potentially
even more menacing than a direct threat might have
been, given that the callers, through some unexplained
means, knew specific details about Barnes’ life—
including the type, and even breed, of pets he owned—
and Barnes could not take definite measures to protect
himself and his pets against individuals whose identities
he did not know. Threats such as these are certainly
quite severe; and where, as here, they are tied to an em-
ployee’s antiunion stance or activities, the threats are
reasonably calculated to interfere with his freedom of
choice. See, e.g., G.H. Hess, Inc., 82 NLRB 463, 465

10 Although it is not clear from the record that the Petitioner’s agents
made these threats, the judge nonetheless applied the standard for party
conduct since, in her view, based on all the circumstances, unit em-
ployees who heard about the threats to Foxon and Barnes could have
reasonably attributed them to the Petitioner. Neither party has excepted
to the judge’s application of this standard.
11 The judge reasoned that, even though the actual margin between
votes for and against the Petitioner was 68, a “swing” of only 34 votes
could have changed the results of the election.
12 We apply the standard for party conduct here because, as noted
above, there are no exceptions to the judge’s application of this stan-
dard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
(1949) (recognizing that statements made to employees
by union representatives that are reasonably calculated to
interfere with the employees’ exercise of freedom of
choice exceed the permissible bounds of preelection ac-
tivities). These threats would tend to cause the employ-
ees who had heard about them to reasonably assume that
the Petitioner was willing to physically harm any em-
ployee—or the loved ones of any employee—who op-
posed it or voted against it in the election. The threats to
Barnes are even more disturbing when viewed in the
context of the threats to Foxon, which similarly involved
threats of bodily harm to Foxon and her two young
daughters.13
Further, the threats were disseminated to a determina-
tive number of unit employees. As noted above, Barnes
testified that, prior to the election, he personally told 20
to 30 unit employees about the threats; thereafter, the
threats were widely discussed throughout the unit, as
evidenced by the fact that a number of employees with
whom Barnes had not spoken had also heard about the
threats. As the judge noted, a relatively narrow “swing”
of only 34 votes could have changed the results of the
election;14 and, based on this evidence, it appears that at
least 34 unit employees—if not many more—had, in fact,
heard about the threats prior to the election.
Moreover, the effect of the threats was not diminished
by the fact that they ended 2 weeks before the election,
as the judge found. The evidence in the record indicates
that the threats were discussed by unit employees in the
intervening period between their cessation and the elec-
tion. In any event, the serious nature of the threats was
such that they would tend to linger in the minds of em-
ployees who had heard about them for weeks after the
threats themselves had ended. Thus, it is reasonable to

13 As to the threats to Foxon, we note that, because there is no defini-
tive evidence in the record indicating that she received any of the
threatening calls on or after October 30, the date the petition for elec-
tion was filed, the Employer has failed to show that these threats oc-
curred during the critical period. As a general rule, the period during
which the Board will consider conduct as objectionable (i.e., the “criti-
cal period”) is the period between the filing of the petition and the date
of the election. Ideal Electric & Mfg. Co., 134 NLRB 1275, 1278
(1961). However, the Board has held that this rule does not preclude
the consideration of prepetition conduct where it “adds meaning and
dimension to related postpetition conduct.” Dresser Industries, 242
NLRB 74 (1979). Thus, we rely on the prepetition threats to Foxon
only to the extent that they add meaning and dimension to the threats to
Barnes, which occurred in the postpetition period. In this regard, we
find that the threats to Foxon were sufficiently similar in nature, and
related to, the threats to Barnes to warrant such reliance under the prin-
ciples set forth in Dresser Industries, supra.
14 See generally Cambridge Tool & Mfg., supra at 716, in which the
Board noted that, in making its determination as to whether conduct has
the tendency to interfere with employees’ freedom of choice, it consid-
ers, inter alia, the closeness of the election.
assume that the threats were still fresh in the minds of
these employees at the time of the election.15
In sum, for all of the foregoing reasons, we find that
the threats to Barnes tended to interfere with the free
choice of a determinative number of unit employees.
Accordingly, we do not view the election as reflecting
the employees’ free choice, and we therefore sustain the
portion of the Employer’s Objection 1 relating to the
threats to Barnes, set aside the election, and direct a sec-
ond election.
[Direction of Second Election omitted from publication.]

Allen J. Gross, Mark A. Wasserman, and, Cheryl Kopizke, At-
tys. (Mitchell, Silberberg & Knupp LLP), of Los Angeles,
CA, for the Employer.
M. Jane Lawhon, (Law Offices of James Eggleston), Oakland,
CA, for the Petitioner.
ADMINISTRATIVE LAW JUDGE REPORT AND
RECOMMENDATIONS ON OBJECTIONS
LANA PARKE, Administrative Law Judge. Pursuant to a peti-
tion filed on October 30, 2002 1and a Stipulated Election
Agreement entered into by the parties, an election by secret
ballot was conducted under the direction and supervision of the
Regional Director of Region 31 of the National Labor Relations
Board (the Board or NLRB) on December 11, 12, and 13 in the
unit agreed appropriate:

All full-time, regular part-time Clinical Nurses I, II, III, and
staff nurses per diem in positions requiring a current regis-
tered nurse (RN) license, including registered nurses in the
above classifications who serve as relief charge and/or charge
nurses, who are employed by the Employer at the Max Factor
Building, the main towers [North and South], Thalians Build-
ing, Spielberg Building, 310 Surgery Center, in the Neurosur-
gical Institute, Prostate, Skull Base Institute, GI Motility, IBD
(Inflammatory Bowel Disorder) Clinic, Pituitary Center, and
Imaging departments of the Medical Office Towers, and in
the Pain Center, ISD (Institute for Spine Disorders), Pediatrics
and Medical Genetics Clinics, Cardiology Rehab, OB-GYN-
Antenatal Testing, and Imaging departments of the Mark
Goodson Building; excluding all other employees.

On December 20, the Employer filed timely objections to
conduct affecting the references are not available for results of
the election. On January 17, 2003, the Regional Director issued
a Report on Objections, Order Directing Hearing and Notice of
Hearing.2The Report on Objections states that the tally of bal-
lots showed that of approximately 1481 eligible voters, a total

15 Further, there is no evidence in the record to support the judge’s
assumption that the news of the cessation of the threats was dissemi-
nated to unit employees.
1 All dates refer to 2002 unless otherwise indicated.
2 The report sets forth the Employer’s objections. Each objection in-
cludes multiple subparts, which the Employer represented were sup-
porting offers of proof supplied at the request of Region 31. In order
not to confuse the supporting offers of proof with offers of proof made
at the hearing, I will refer to them herein as “subparts.”
CEDARS-SINAI MEDICAL CENTER 599
of 1332 employees cast ballots, of which 695 were cast in favor
of the Petitioner (also referred to as the Union or CNA), 627
were cast against the Petitioner, two ballots were void, and 10
ballots were challenged. 3 The challenged ballots were not suf-
ficient in number to affect the results of the election. All of the
Employer’s objections—1 through 19—were set for hearing
before the undersigned. At the hearing, the Employer withdrew
Objection 8.4 The Employer did not specifically withdraw Ob-
jection 7.5 Inasmuch as the content of Objection 7 is essentially
the same as Objection 8, the subparts for Objection 7 are
grouped with those for Objection 8, and as no evidence was
adduced in support of Objection 7, I also do not consider Ob-
jection 7 in this report. Accordingly, objections 1 through 6 and
9 through 19 are before me. I conducted a hearing in Los Ange-
les, California on February 4 through February 14, 2003.
On the entire record,6 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Employer and the Petitioner, I make the following
FINDINGS OF FACT AND DISCUSSION
I. THREATS AND VANDALISM: OBJECTIONS 1 THROUGH 3
AND OBJECTION 5
Objections 1 through 3 (with subparts) involve allegations
that the Union, through agents, officials, or supporters, con-
fronted, intimidated, threatened, and committed violence
against individual employees and supervisors and their families
and committed acts of vandalism on their property based upon
their refusal to support the Union.7 Objection 5 (with subparts)
alleges that the Union, by its agents, officials, or supporters,
intimidated and threatened employees by targeting individuals
and/or groups for scorn and opprobrium.
A. Anonymous telephone calls to Cristine Foxon
During the union campaign, Cristine Foxon (Ms. Foxon) was
an openly antiunion unit employee and part of an ad hoc anti-
union employee group called “One Voice, Our Voice.”8 Be-
tween August and October, Ms. Foxon, who has two young
daughters, was the object of four anonymous telephone calls.9

3 As the Employer points out, the tally numbers, as stated in the Re-
port on Objections, do not accurately compute.
4 Objection no. 8 reads: The Union, by its agents, officials, or sup-
porters, unlawfully used supervisors to create the impression of support
for the Union. Two subparts set forth the specific conduct supporting
the objection.
5 Objection 7 reads: The Union, by its agents, officials, or support-
ers, used supervisors to unlawfully influence employees to support the
Union.
6 Petitioner’s unopposed post hearing motion to correct the transcript
is granted. The motion and enclosed corrections are received as ALJ
Exh. 3.
7 At the hearing, the Employer withdrew subpart 8 of Objection 1
and subpart 2 of Objection 3, both of which related to a hit-and-run
accident.
8 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
9 Ms. Foxon was somewhat inconsistent as to the timing of the tele-
phone calls. At one point, she said the calls occurred between August
and November, later she said they were between September and Octo-
Ms. Foxon’s child-caregiver took the first two calls. The care-
giver reported to Ms. Foxon that the callers warned that Ms.
Foxon needed to be very careful about opposition to CNA. Ms.
Foxon took the third call, and a voice she did not recognize
asked why she was opposed to CNA and warned her to back
off. After hanging up, Ms. Foxon pressed Star-69.10 She then
heard either an electronic answering system or a live voice say,
“California Nurses . . .” whereupon she interrupted the greeting
by disconnecting. Sometime in September through October, a
fourth call was made to Ms. Foxon’s cell phone while she was
driving home from work. A voice she did not recognize told her
to be careful with her involvement in One Voice, Our Voice,
saying that the caller knew Ms Foxon had two little girls, that
she needed to think about her family and her girls, and that she
needed to back off. These anonymous calls unquestionably
constitute threats of harm to Ms. Foxon and her children.
Following the last call, Ms. Foxon told antiunion employees
Suzanne Geimer (Ms. Geimer), Tina Tyner (Ms. Tyner), Scott
Barnes (Mr. Barnes), and other nurses of the threatening calls.
Shortly thereafter, Ms. Foxon called the Petitioner’s Glendale
office and spoke to David Monkawa (Mr. Monkawa), lead or-
ganizer.11 Ms. Foxon expressed her outrage at the threatening
telephone calls. Mr. Monkawa denied that the Petitioner was
involved, pointing out that Ms. Foxon could not prove CNA’s
involvement. Ms. Foxon asked Mr. Monkawa how he would
like it if she put out a letter to nurses about CNA’s threatening
phone calls. According to Ms. Foxon, Mr. Monkawa said it
would not be in Ms. Foxon’s best interest to do that.12 Ms.
Foxon answered, “Fine. Then it is understood. Stop making the
threatening phone calls to my friends and to myself. Leave me
alone and we will leave it at that.” At some point during the
conversation, Mr. Monkawa invited Ms. Foxon to meet with
CNA supporters as a group or one-on-one, which she declined.
Thereafter, Ms. Foxon received no further threats. Although her
testimony on this point is somewhat unclear, Ms. Foxon said

ber. Within either time frame, the calls began and ended well in ad-
vance of the election.
10 That procedure permits a telephone call recipient to be connected
with the last caller.
11 Mr. Monkawa’s testimony, which I accept, placed this call some-
time in November.
12 Mr. Monkawa denied making any such statement. While I found
Mr. Monkawa’s testimony to be generally more reliable than that of
Ms. Foxon, I find it unnecessary to resolve credibility in this instance.
Although Ms. Foxon testified that she felt threatened by Mr. Mon-
kawa’s alleged statement, there is nothing in the tenor of the conversa-
tion as she related it, reasonably or objectively to suggest any threat.
The statement is susceptible of a nonthreatening meaning. Given Mr.
Monkawa’s assertion that Ms. Foxon could not prove the origin of the
calls, the statement, even if made, may have related to the imprudence
of making ill-founded accusations. Mr. Monkawa denied making any
such statement. While I found Mr. Monkawa’s testimony to be gener-
ally more reliable than that of Ms. Foxon, I find it unnecessary to re-
solve credibility in this instance. Although Ms. Foxon testified that she
felt threatened by Mr. Monkawa’s alleged statement, there is nothing in
the tenor of the conversation as she related it, reasonably or objectively
to suggest any threat. The statement is susceptible of a nonthreatening
meaning. Given Mr. Monkawa’s assertion that Ms. Foxon could not
prove the origin of the calls, the statement, even if made, may have
related to the imprudence of making ill-founded accusations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
she became an outspoken opponent of CNA after receiving the
last call in which her children were mentioned.
B. Anonymous telephone calls to Scott Barnes
Mr. Barnes was an active opponent of unionization, making
and distributing antiunion flyers and co-founding One Voice,
Our Voice. He was also a fond animal owner. Beginning in
November, Mr. Barnes received seven to ten anonymous
threatening telephone calls prior to the election. The callers,
both men and women, told Mr. Barnes, variously, to stop
f_______ with the union, that little kittens looked good in a
frying pan, and that it would be terrible if his Corgis were run
over. One caller made reference to stabbing his dogs. These
anonymous calls unquestionably constitute threats of harm to
Mr. Barnes’ pets and, by extension, to him.
Mr. Barnes told Ms. Geimer, Ms. Foxon, and various other
coworkers of the threats, and related them to 20 to 30 employee
attendees at a staff meeting of the emergency room department.
Sometime toward the end of November, at the emergency room
nurses’ station, Mr. Barnes asked Ms. Foxon, whose husband
was a sergeant with the Beverly Hills police department, how to
trace telephone calls through the police. Thereafter, Mr. Barnes
received no further threatening calls. He reported their cessa-
tion to Ms. Foxon and Ms. Geimer.
C. Anonymous telephone calls to Suzanne Geimer
In the 2 months prior to the election, Ms. Geimer, a vocal
opponent of the Petitioner, received ten or more phone calls in
which the caller hung up when the phone was answered. On
two occasions, lengthy musical recordings were left on her
answering machine. Ms. Geimer told other unit employees that
“different ones of us” had gotten “strange” telephone calls and
“threatening” telephone calls and that Ms. Foxon was con-
cerned because she had two children. Viewed objectively, the
telephone calls to Ms. Geimer were annoying and even unset-
tling. However, I cannot find that receipt of merely annoying
telephone calls can reasonably constitute any threat.
The Employer also contends that Rudy Cole (Mr. Cole) who
manages political campaigns in Beverly Hills, threatened Ms.
Geimer by telling her she should pull back from her antiunion
stance as it might damage her husband’s political career. Even
assuming the advice emanated from the Union, there is nothing
in that statement that could be considered an objectionable
threat. Viewed objectively, the statement is no more than a
reasonable political prediction that antiunion opinions may
repulse some constituents.
D. Confrontation of employees in the Employer’s cafeteria
Regarding this subpart, the Employer presented evidence
from employee Russell Van Stroud (Mr. Stroud). Mr. Stroud
testified that on the Sunday before the election after visiting
hours, he saw two unidentified women in “scrubs” in the cafe-
teria surrounded by a group of five to eight (also unidentified)
individuals.13 Members of the group yelled and screamed at the

13 “Scrubs” designates the casual medical garb worn at work by
many of the Employer’s nurses and other employees. Under the cir-
cumstances, it is reasonable to infer that the two targets were antiunion
unit nurses and that the group was composed of union supporters.
two women such statements as, “We need this. Our future de-
pends on this. F___ you.” The two women who had been the
focus of the group hurried out of the cafeteria, and the group
gathered around a table and talked. When security entered the
cafeteria, the group left. The Petitioner disputes the accuracy of
Mr. Stroud’s account, and it is true that there are unexplained
inconsistencies between his testimony and that of security offi-
cers. However, I find it unnecessary to resolve any credibility
issues, as, even when viewed in a light most favorable to the
Employer, I do not find any threat(s) were made. In determin-
ing whether statements amount to threats of retaliation, the
Board applies the test of “whether a remark can reasonably be
interpreted by an employee as a threat.” The actual intent of the
speaker or the effect on the listener is immaterial. Smithers
Tire, 308 NLRB 72 (1992). Applying that test, I find that in
spite of the offensiveness of the confrontational conduct by
unidentified union supporters, the supporters made no menac-
ing gestures or undertakings, and I cannot find their conduct to
constitute threats. Even assuming the conduct constituted im-
plied threats to the two employees, it is not sufficient to require
setting aside the election. The Board recognizes that, as stated
by the court in Nabisco, Inc. v. NLRB, 738 F.2d 955, 957 (8th
Cir. 1984), “A certain measure of bad feeling and even hostile
behavior is probably inevitable in any hotly contested election.”
In Nabisco, the Board overruled objections based on anony-
mous stoning of an antiunion employee’s house and accompa-
nying threat of coworker ostracism. Citing Nabisco, the Board
found a coworker’s warning that an employee “could just wait
and see what happened to him” if he did not vote for the union
did not require the election be set aside. Cal-West Periodicals,
Inc., 330 NLRB 599 (2000).
E. Confrontation of Janice Buehler by unidentified party
Janice Buehler (Ms. Buehler) is the Employer’s Director of
Recruitment and Work Force Planning, a nonunit position.
Prior to the election, while wearing a “No Union” button on her
identification badge, Ms. Buehler was accosted in the elevator
by an unidentified male. The man told her he “should pull that
badge from [her].” I find the unprovoked conduct of the uni-
dentified man to be threatening and that Ms. Buehler could
reasonably infer that it related to her antiunion position. Ms.
Buehler reported the incident only to nonunit employees.
F. Request for information to Imelda Pichon-Queja
CNA representative “Daphne” asked employee Imelda
Pichon Queja (Ms. Queja) to give her a work schedule for the
Employer’s per diem nurses, which request Ms. Queja re-
fused.14 [] There is no evidence of any menace in the request,
and I find Daphne’s conduct cannot reasonably be construed as
a threat.
G. Alleged threat to Concepcion Arostegui
During the month of October, unit employee and CNA sup-
porter, Esther Wood (Ms. Wood) solicited employee signatures
on a union-sponsored petition stating employee support for a

However, there is insufficient evidence to support an inference that any
confronter was a union representative.
14 The Employer also contends that this incident supports Objection 4.
CEDARS-SINAI MEDICAL CENTER 601
pension plan. Ms. Wood solicited in all nursing departments,
speaking to about 40 employees. In the second weck of Octo-
ber, Ms. Wood solicited the signature of employee Concepcion
Arostegui (Ms. Arostegui). According to Ms. Arostegui, when
she told Ms. Wood she was not interested in the petition, Ms.
Wood said, in her normal tone of voice, “Well, if the Union
passes through, you are going to regret this.” Ms. Concepcion
testified she had been “irritated” by Ms. Wood; she told co-
workers she did not know what business Ms. Wood, as a per
diem nurse, had talking about retirement.
Ms. Wood denied telling Ms. Concepcion she would “regret
this.” As a witness, Ms. Wood had an exceptionally gentle
manner and soft voice. She had to be reminded repeatedly to
speak up. Because of her manner and because there is no evi-
dence any other employee complained of her solicitation meth-
ods, I credit Ms. Wood’s account. I conclude that Ms.
Arostegui could not reasonably have perceived any threat.
H. Alleged threats to Usa Kanchanapoomi
Prior to December, unit employee Usa Kanchanapoomi (Ms.
Kanchanapoomi) was accustomed to walking from work to her
parked car with the same group of coworkers. Two weeks be-
fore the election, while the group walked to the parking area, a
CNA representative joined them. The representative tried un-
successfully to interest Ms. Kanchanapoomi in the Union.
When rebuffed, the representative said to Ms. Kanchanapoomi,
“If you are not interested, can you do me one thing? Do not
come to vote now.”
Ms. Kanchanapoomi’s coworkers said, “If the Union [is
elected], you are going to be included in the Union. Why do
you not work somewhere else [where] they do not have the
Union?”As the group neared their cars, the CNA representative
said, “Remember, do not come to vote.”
Following the above exchange, Ms. Kanchanapoomi’s co-
workers no longer walked with her. I find there is nothing in the
CNA representative’s request to Ms. Kanchanapoomi that she
not vote or in her coworkers’ suggestion that she find another
job and their subsequent avoidance of her to constitute any
threat. See Terry Machine Co., 332 NLRB 855 (2000).
Some days later, upon Ms. Kanchanapoomi’s saying she had
voted “no” in the election, prounion coworker “Penny” warned
her to be careful what she said because the Union was “a ma-
fia.” I find Penny’s statement constitutes an implied threat by a
third-party. Ms. Kanchanapoomi did not mention the “mafia”
statement to anyone.
I. Union dissemination of false information about
Ninfa “Lana” Espejo
Sometime the week of the election, the Petitioner or its sup-
porters widely disseminated a flyer falsely accusing Ninfa
“Lana” Espejo (Ms. Espejo) of violations of federal labor law.
The flyer stated:

WARNING! nurse Alert! Lana Espejo, RN, Clin 3 . . .
CNA charges Espejo with violations of federal labor
law for bribery–openly soliciting “NO” votes against CNA
in exchange for promotions due to her “connections” with
[Human Resources]. (Incidents documented: December 2
through December 9, 2002.)

Ms. Espejo learned of the flyer on December 10. Over the
following 2 days, Ms. Espejo visited every nursing unit and
told employees the flyer was false. Some employees joked that
they wanted their promotions, some were sympathetic, some
gave her “dirty looks,” and some “yelled” at her. Employee
Lily Factor said in an unpleasant voice, “Well what do you
have there, Lana!” During her self-vindication tour of the units,
Ms. Espejo’s beeper sounded eight times. When she returned
the calls, she was connected, variously, with a modem, fax
machines, patient room, and a phone booth. Every day after
that, Ms. Espejo received at least three false beeper signals a
day. While possibly libelous, I find the flyer’s fabrications can-
not objectively be considered threatening. I also find the obnox-
ious beeper misuse, while annoying, cannot reasonably have
been perceived as threatening.
J. Alleged threat to Maria Basco
In early December, without her permission, the Petitioner
printed a photograph of unit employee Maria Basco (Ms.
Basco) as a union supporter on a union flyer. Ms. Basco circu-
lated an open letter to coworkers expressing outrage over the
Union’s use of her photograph. She also confronted the co-
worker photographer who apologized. On December 5, Mr.
Monkawa called Ms. Basco and also apologized for the unau-
thorized photograph. Ms. Basco scolded him; he continued to
apologize and offered to send a union attorney to talk to her.15
Ms. Basco said, “If there is going to be a lawyer, it is my law-
yer against you.” On the same day, Ms. Basco distributed her
own flyer to coworkers stating her anger that the Union had
published her photograph without her consent. While the unau-
thorized use of Ms. Basco’s photograph might be civilly ac-
tionable, it cannot reasonably be found threatening or coercive
and does not otherwise constitute objectionable behavior. See
Gormac Custom, Mfg., 335 NLRB 1192 (2001).
K. Alleged harassment of Scott Barnes
On November 20, the Petitioner held an open community
meeting to allow unit employees to talk to political representa-
tives about the union drive at the Employer. The Petitioner
established a sign-in table outside the conference room of a
local hotel where the meeting was held. Mr. Barnes gave the
following account of his experience:

Prior to the commencement of the meeting, Mr. Barnes
appeared at the sign-in table carrying a box of antiunion
flyers. The CNA representative conducting sign-in told
him that CNA was not passing out leaflets, and they would
appreciate it if he also refrained. Mr. Barnes walked a
short distance away to the elevators and while there, heard
the CNA representative tell someone to “call security.”
Shortly thereafter, a hotel security guard came to Mr. Bar-
nes at the elevators and told him he could not stand there.

15 In its posthearing brief, the Employer characterizes Mr. Mon-
kawa’s offer as a threat, but it appears from Ms. Basco’s somewhat
confused testimony that the offer of an attorney was presented as an
offer to “help [Ms. Basco] out on something.” Although Ms. Basco
testified that Mr. Monkawa’s offer both scared and upset her, there is
nothing in her relation of the conversation that would reasonably justify
such a reaction.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
The guard then followed Mr. Barnes as he moved about
the lobby area, telling him two more times that he could
not stand where he was. Mr. Barnes believed employees
coming to the meeting saw his interaction with CNA and
the security guards. Mr. Barnes left the hotel, telephoned
the Employer’s human resources hot line and reported
what had occurred. Thereafter, when he returned to the ho-
tel without his box of flyers, the hotel manager apologized
to him. Mr. Barnes was told that questions would be an-
swered at the end of the meeting and that people who
wanted to ask questions were to submit them in writing.
Mr. Barnes chose not to submit a written question. He
asked a CNA representative if he could ask a question dur-
ing the meeting; the representative told him if he had any
questions, he could put them on a card and leave it on his
way out. Mr. Barnes attended the meeting and saw atten-
dees asking questions and making comments.

CNA representative Elizabeth Campbell (Ms. Campbell)
gave a different account. Ms. Campbell testified that Mr. Bar-
nes told her he had campaign literature in the box. Ms. Camp-
bell told him no literature would be distributed at the meeting
and offered to store the box. She neither called hotel security
nor encouraged security to follow Mr. Barnes. CNA did noth-
ing to prevent Mr. Barnes’ attendance at the meeting.
I do not find it necessary to resolve credibility between Mr.
Barnes and Ms. Campbell as I find that, even if Mr. Barnes’
version is accepted, it evidences no objectionable conduct. The
Employer argues that the harassment of Mr. Barnes by hotel
security “gave the clear impression to others that, if you were a
known [employer] supporter . . . CNA would aggressively har-
ass and intimidate you if you expressed opposition to their or-
ganizational efforts, thus violating Section 7 rights.” However,
there is no evidence linking hotel security’s actions to the Peti-
tioner, and, particularly in light of the fact that Mr. Barnes re-
ceived an apology from the hotel manager, no evidence that
knowledge of the incident would, objectively, intimidate other
employees. The only conduct at the hotel reasonably ascribable
to the Petitioner amounted to no more than a possibly discour-
teous rejection of Mr. Barnes’ full participation at a union-
organized meeting and cannot reasonably be construed as a
threat. See Bell Trans, 297 NLRB 280 (1989).
L. Vandalism of employees’ automobiles
Laura Weatherby (Ms. Weatherby), assistant to the nurse
manager, was employed as a Clinical Nurse 4 (CN4), a classifi-
cation the parties had stipulated was a supervisory position,
ineligible to vote. She passed out antiunion material and expli-
cated the Employer’s union opposition to unit employees prior
to the election. On December 7, upon returning to her automo-
bile after work, she saw a two-foot long deep scratch on the
driver’s door. At home, she discovered a similar scratch on the
trunk. On the following Monday, December 9, she reported the
damage to security and her coworkers. A professional estimate
obtained after the election set the damage at about $585.
Kimberly Townsend, CN4, disseminated information about
the Employer’s union opposition to unit employees prior to the
election. On December 11, the first day of voting, she found
catsup on her car. She had it buffed off at a cost of $65. She
told a coworker of the incident and reported it to security. Four
to five employees commiserated with her.
Cristine Luper (Ms. Luper), CN4, was openly antiunion. On
the second day of the election, December 12, at about 7:10
p.m., she found her automobile damaged by a long, deep
scratch on its front. A paper protruded from the hood seam of
the car, on which was typed, “This is for being Pro Administra-
tion.” On the following day, December 13, Ms. Luper gave the
note to the Employer’s counsel and told coworkers of the inci-
dent. Damage repair estimate, obtained after the election, is
$1396.16
M. Discussion
The Board applies an objective test in evaluating party con-
duct during an election’s critical period, i.e., whether the con-
duct has “the tendency to interfere with the employees’ free-
dom of choice.” Cambridge Tool Mfg., 316 NLRB 716
(1995).17 The Board considers nine factors in applying the
Cambridge test:

(1) The number of incidents; (2) the severity of the incidents
and whether they were likely to cause fear among the em-
ployees in the bargaining unit’ (3) the number of employees
in the bargaining unit subjected to the misconduct; (4) the
proximity of the misconduct to the election; (5) the degree to
which the misconduct persists in the minds of the bargaining
unit employees; (6) the extent of dissemination of the mis-
conduct among the bargaining unit employees; (7) the effect,
if any, of misconduct by the opposing party to cancel out the
effects of the original misconduct; (8) the closeness of the fi-
nal vote; and (9) the degree to which the misconduct can be
attributed to the party. [Harsco Corp., 336 NLRB 157, 158
(2001)].

The Board, accepting “the general proposition that employ-
ees reasonably are less concerned about nonagent threats than
about threats emanating from the union,”18 applies a more strin-
gent objective test if the conduct in question is that of a third
party rather than a union agent. Third party threats rise to the
level of objectionable conduct only when “so aggravated as to
create a general atmosphere of fear of reprisal rendering a free
election impossible.” Westwood Horizons Hotel, 270 NLRB
802, 803 (1984). In evaluating the conduct, the Board considers
the following criteria:

16 I rejected the Employer’s offers of proof as to two additional
anonymous acts of vandalism: the egging of antiunion employee Tina
Tyner’s car following a heated discussion with prounion employee Joao
De Silva and the discovery of a nail in the tire of antiunion employee
Margo Herman’s car on December 13. I also rejected the Employer’s
offer to prove that during the first 8 months of 2002, security received
no reports of damage to employees’ cars but, during the critical period,
received five reports of automobile vandalism.
17 Specifically with regard to threats, the Board invokes “the familiar
rule that the test to be applied is whether a remark can reasonably be
interpreted by an employee as a threat.” Smithers Tire, 308 NLRB 72
(1992).
18 Robert Orr-Sysco Food Services, LLC, 338 NLRB 614, 615
(2002).
CEDARS-SINAI MEDICAL CENTER 603
[T]he nature of the threat itself . . . whether the threat en-
compassed the entire bargaining unit; whether reports of the
threat were disseminated widely within the unit; whether the
person making the threat was capable of carrying it out, and
whether it is likely that the employees acted in fear of his
capability of carrying out the threat; and whether the threat
was ‘rejuvenated’ at or near the time of the election. [Foot-
notes omitted.] Ibid.

The threats herein consist of those made in anonymous
phone calls to Ms. Foxon and Mr. Barnes, the threat to Ms.
Buehler by an unknown party, and the coworker threat to Ms.
Kanchanapoomi. The latter two threats are clearly third party
threats and must be evaluated under the third party standard of
Westwood Horizons Hotel, supra. Neither of the threats to Ms.
Buehler or Ms. Kanchanapoomi encompassed the bargaining
unit and neither was disseminated widely within the unit. Since
the threat to Ms. Buehler was not made to or disseminated to
any unit employee, there is no basis for finding it had any im-
pact on voter action. Antioch Rock & Ready Mix, 327 NLRB
1091, 1093 (1999). As to the “mafia” statement made to Ms.
Kanchanapoomi, the coworker predicted only a speculative and
objectively farfetched peril. Merely “overbearing or exuberant
remarks to coworkers” do not overturn an election, Q.B. Re-
builders, Inc., 312 NLRB 1141, 1142 (1993), and neither
should fantastic comments. Moreover, neither threat affected
Ms. Buehler or Ms. Kanchanapoomi’s actions with regard to
the election—Ms. Buehler was not an eligible voter, and Ms.
Kanchanapoomi had already voted at the time the “mafia”
statement was made. Accordingly, none of the criteria being
met, the threats to Ms. Buehler and Ms. Kanchanapoomi did
not “create a general atmosphere of fear of reprisal rendering a
free election impossible.” Westwood Horizons Hotel, supra.
The threats to Ms. Foxon and Mr. Barnes are not so easily
categorized as third-party threats. The telephone threats as well
as the acts of vandalism committed during the critical period
were anonymous. In an effort to identify sources of the anony-
mous telephone calls, the Employer subpoenaed the Union’s
telephone billing records. The Employer contended that tele-
phone records of CNA representatives’ cell phone use would, if
they showed calls to Ms. Foxon, Mr. Barnes, or other targeted
antiunion employees, create a strong inference that the anony-
mous calls were placed by the CNA possessor of the cell
phone. While agreeing with the Employer’s reasoning, I con-
cluded that after-the-fact establishment of responsibility for the
telephone calls is not relevant to the question of what impact
the calls had on employees’ election choice. Rather, the ques-
tion is whether employees who knew of the telephone threats
could objectively and reasonably infer that representatives of
the Union had made them.19 Although the threats were anony-
mous and therefore not clearly attributable to the Petitioner,
Ms. Foxon, by employing her telephone’s star-69 function,
gained information that gave her reason to believe that at least
one of the calls had been placed from the Petitioner’s office.
She and others disseminated that information along with the
substance of the calls. Ms. Foxon and Mr. Barnes’ calls appear

19 Accordingly, I did not require the Petitioner to furnish billing re-
cords of cell phones issued to its employees.
to have been grouped together in the minds of the dissemina-
tors, and it is not unreasonable to infer that employees learning
of the anonymous calls may have attributed them to the peti-
tioner. I have, therefore, evaluated the threats to Ms. Foxon and
Mr. Barnes under the criteria the Board has established for
determining if party conduct has “the tendency to interfere with
the employees’ freedom of choice.” Cambridge Tool Mfg.,
supra.
Ms. Foxon and Mr. Barnes collectively received fourteen
anonymous telephone calls between October and the end of
November. Many of the calls were menacing and intimidating,
threatening harm to family and pets.20 Although the voting
complement is large--approximately 1481 eligible voters—the
Petitioner won the election by a relatively small margin of 68
votes and a shift of 34 votes could have changed the election
results. As the Employer contends, the election was close.21
From the evidence presented, it is reasonable to infer that in-
formation about the telephone threats was disseminated to more
than that 34 voters. However, in spite of the malice behind the
calls. they were anonymous and targeted only two members of
the bargaining unit. Objectively, anonymous threats are proba-
bly viewed as less likely to be executed than direct threats.22
Further, unit employees had no reason to believe that the callers
had the power or motivation to effectuate violence on “a sig-
nificant segment of the bargaining unit.” See Q.B. Rebuilders,
supra at 1142. I find the calls would not reasonably be expected
to cause general fear among employees in the bargaining unit
who learned of them but did not themselves receive calls.
Moreover, the threatening calls ended approximately 2 weeks
before the election.23 It is reasonable to assume that information
of their cessation was also disseminated, and no evidence was
adduced to show that consciousness of the misconduct persisted
in the minds of unit employees. Therefore, I find that the
anonymous telephone calls to Ms. Foxon and Mr. Barnes, al-
though despicable, did not have “the tendency to interfere with
voting employees’ freedom of choice” Cambridge Tool Mfg.,
supra, and do not warrant setting aside the election.
As to the acts of vandalism, there is nothing to justify attrib-
uting that conduct to the Petitioner. I have considered whether
the acts of vandalism should be considered in conjunction with

20 Even when applying the third-party test, the Board has consis-
tently considered threats of physical violence and property damage to
create an atmosphere of fear and reprisal sufficient to set aside an elec-
tion. Robert Orr-Sysco Food Services, LLC, supra at slip op. 2, and
cases cited therein; Stannah Stairlifts, Inc., 325 NLRB 572 (1998);
Westwood Horizon Hotel, supra; Electra Food Machinery, Inc., 279
NLRB 279 (1986); RJR Archer, Inc., 274 NLRB 335 (1985).
21 The Board carefully scrutinizes objections when the vote is close.
Robert Orr-Sysco Food Services, LLC, supra; Smithers Tire, supra at 73.
22 Cases in which the Board has set aside elections based, in part, on
anonymous threats generally include one or more direct threats: Electra
Food Machinery, Inc., supra; RJR Archer, Inc., supra. See also Armour
Food Co., 288 NLRB 1 (1988) (anonymous threatening and harassing
phone calls to employees with reputations as informers not likely to
cause employees to fear similar treatment simply because they did not
favor the union.)
23 See Duralam, Inc., 284 NLRB 1419 (1987) effects of third-party
threats occurring 2 weeks before the election were dissipated by the
time of the election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
the anonymous telephone threats to Ms. Foxon and Mr. Barnes.
I don’t find the evidence supports any such linkage. The van-
dalism was separate in time from the telephone threats, targeted
different employees, involved actions different from those
threatened in the telephone calls, and did not suggest any over-
lap. Therefore, I view the telephone threats and the vandalism
as separate instances of misconduct, the latter being ascribable
only to anonymous third parties. Evaluating the acts of vandal-
ism under the third party test, I cannot find that the conduct was
“so aggravated as to create a general atmosphere of fear of
reprisal rendering a free election impossible.” Westwood Hori-
zons Hotel, supra, at 803. The acts of vandalism were limited in
number, and there is no evidence of widespread dissemination.
I find the acts of vandalism do not justify setting aside the elec-
tion.
Accordingly, I recommend that Objections 1 through 3 and 5
be overruled.
II. OBJECTION 4
Objection 4 (with subparts) involves allegations that the Un-
ion, by its agents, officials, or supporters, intimidated and
threatened employees by acts of trespass to the Employer’s
property, and unlawfully created the impression that the Em-
ployer was not in control of its own facility.
A. Alleged Acts of Trespass
1. During early to mid November, nurse supervisor Michael
Manasse (Mr. Manasse) and three security guards confronted a
person with union literature in the conference room of floor 5
NE who was speaking to several on-duty members of the nurs-
ing staff. When asked to leave, the self-identified representative
of CNA protested that the Employer was interfering with em-
ployees’ right to organize but left without further discussion.
2. On the Saturday before the election, Mr. Manasse along
with security guards confronted a CNA representative in the
conference room of floor 5 SW A security officer told the rep-
resentative that it was the fourth time they had escorted him
from the Employer’s premises and that if the trespass occurred
again, security would call LAPD.24 The representative protested
loudly but left.
3. In November, four CNA representatives, including
Fredrico “Chito” Quijano (Chito) came to Ms. Arostegui’s
work area and tried to give her a card and CNA literature. She
told them she was not interested in the Union.
4. During the 2 months preceding the election, Sgt. Alex
Acevedo (Sgt. Acevedo), employer security officer, received
50-60 reports of unauthorized CNA representative presence in
areas of the Employer’s premises.
5. On November 25, Sgt. Acevedo received a complaint that
a CNA representative was in the employee break area of the
sixth floor. On arrival on the sixth floor, Sgt. Acevedo found
the representative in the sitting area and instructed him to leave.
With a raised voice the representative insisted that he would not
leave because he was in a public area. After about 10 minutes,
Sgt. Acevedo and two other security guards escorted him out.

24 Los Angeles Police Department.
6. On two occasions, Sgt. Acevedo asked Mr. Monkawa to
leave the plaza level where members of the public gathered.
Mr. Monakawa refused, saying it was a public area.
7. In the first week of December, Sgt. Acevedo found a CNA
representative sitting on the plaza level calling to nurses and
handing out union flyers.
8. On December 7, after visiting hours, Wilbur Guevare (Of-
ficer Guevare), employer security officer, was called to the fifth
floor where he found three to four security guards. The guards
then escorted several CNA representatives from the hospital.
Later that same evening, in the course of making security
rounds after 9:00 p.m., Officer Guevare discovered eight CNA
representatives without hospital passes talking to nurses in the
cafeteria. The guards asked them to leave and after loud pro-
tests from both CNA representatives and nurses, they did. The
episode lasted about 15 minutes.
9. On December 9, Officer Guevare with two other security
guards confronted a CNA representative in the cafeteria who
was filming with a video camera. During the confrontation, the
CNA representative “kind of push[ed]” the guards. Officer
Guevare asked him to leave, and the security guards “walked
him out.”
10. On November 14, Gary Armstrong (Officer Armstrong),
employer security officer, was called to the plaza level at 7 p.m.
Security officers Flores and Harris were also there. More than
five CNA representatives were passing out flyers. The officers
asked for the union literature, and the representatives handed it
over. The officers told the CNA group they could not be there.
One of the representatives, in a loud voice, asked for the
guards’ names. After about 10–15 minutes, the group left the
plaza level and went to the cafeteria.
11. Later on the same day, November 14, Officer Armstrong
witnessed a confrontation between the Administrator on Duty
(AOD) and a CNA representative in the plaza area. When the
AOD asked the representative to leave, she protested, asked the
AOD for identification, and threatened to report her. The repre-
sentative left after about 10 minutes.
12. On November 22, Officer Armstrong told three to four
CNA representatives they could not be on the plaza level and
directed them to the cafeteria. One of the representatives argued
and protested in a loud voice. After 10–12 minutes, Officer
Armstrong escorted them to the elevator.
13. On December 8, Cassius Harris (Officer Harris), em-
ployer security officer, confronted an individual on the plaza
level who could not account for his presence there. The officers
escorted him from the property.
14. On December 11, Officer Harris told about ten CNA rep-
resentatives they were not allowed to be on the plaza level, and
they left without incident.
15. On one occasion within the 2 months preceding the elec-
tion, Officer Harris found CNA representatives and people both
with and without employee badges in the cafeteria after hours.
Security supervisor told the officers to “back off,” which they
did, and the group applauded.
16. Ms. Espejo testified that prior to the election, she saw
CNA representatives on patient floors nearly every evening she
worked. A few days before the election, between 7 to 8:30
p.m., she called security to report a CNA representative’s pres-
CEDARS-SINAI MEDICAL CENTER 605
ence on her work floor (sixth floor). When security reported to
the floor, the CNA representative was sitting in the sixth floor
lobby.25
Viewed objectively, there is no basis for considering the
CNA agents’ unauthorized forays into unit employees’ work
areas to have threatened any employee. There is no evidence
CNA representatives did other than solicit employee support
for the union during their visits, and employees apparently felt
free to call for security assistance to remove the interlopers.
The Employer cites no authority for the proposition that a un-
ion’s campaign techniques of trespass and even work disruption
constitute objectionable conduct. An unpublished decision re-
ferred to by the Board in Sunshine Convalescent Hospital, Inc.,
187 NLRB 688 (1971), suggests that such conduct does not
warrant setting aside an election. As to the Employer’s conten-
tion that the repeated trespasses created the impression the Em-
ployer was not in control of its own facility, the evidence sup-
ports a contrary impression. Although unit employees repeat-
edly received visits from CNA representatives during working
time, they also repeatedly saw security escort the CNA repre-
sentatives, sometimes under vociferous protest, from the work
areas. Objectively, it is reasonable to infer that unit employees
saw an ongoing demonstration of the Employer’s control of its
facility. The cases cited by the Employer in support of this
objection are inapposite. In Phillips Chrysler Plymouth, 304
NLRB 16 (1991), two union organizers were present in the
employer’s shop area during the 45-minute period prior to the 9
a.m. preelection conference. The organizers refused the man-
ager’s request to leave the shop area and wait in the reception
area until the preelection conference, engaged in a “shouting
match” in front of employees, and persisted in remaining in the
shop area even after police arrived. Again, the conduct set out
in North of Market Senior Services, 204 F.3d 1163, 1169 (D.C.
Cir. 2000), which warranted remand to the Board, involved
election-day conduct. In that case, at the direction of the Board
agent conducting the election, union agents walked through the
employer’s facilities, telling employees that they had been sent
by the Board to tell them when the polls were open, even going
so far as to walk into rooms where patients were being exam-
ined and openly rejecting a manager’s instruction that employ-
ees were to use their lunch breaks to vote. The conduct in those
cases involves successful flouting of the employers’ property
rights and is far more egregious than the Petitioner’s often-
thwarted surreptitious campaign maneuvers, herein. Accord-
ingly, I find no basis in the Petitioner’s conduct in this regard
for setting aside the election.

25 I rejected, as cumulative, the Employer’s offers to prove the fol-
lowing alleged trespass incidents: that employee Jean Eskenazi saw
Chito soliciting authorization cards and/or conferring with nurses in the
8 SE patient care area three times prior to the election, the last two 1 to
2 weeks before the election, that employee Violeta Husain saw Chito
conferring with nurses in the patient care area of 8 SE on three occa-
sions prior to the election (security was not present on any of these
occasions), that Marilyn Bustamante saw CNA representatives on two
occasions prior to the election representatives were occasionally ver-
bally resistant to expulsion,
B. Confrontations with employees
The Employer contends that the incidents described in Sec-
tion I, subparagraphs D and E, supra, (confrontation of two
employees in the cafeteria, and the threat to Ms. Buehler in the
elevator) also support Objection 4 as they constitute intimida-
tion and threats to employees and create the impression that the
Employer was not in control of its facility. For the reasons set
forth above, I conclude that the two incidents did not create any
impression of lost facility control.
Accordingly, I recommend that Objection 4 be overruled.
III. OBJECTION 6
Objection 6 (with subparts) involves allegations that the Un-
ion, by its agents, officials, and supporters unlawfully rewarded
employees who supported the Union with items of value.
A: Petitioner Provided Food to Unit Employees
During the critical period, CNA representatives brought food
such as pastries and lunches to work areas of the Employer
apparently when meeting or attempting to meet with employ-
ees. In B & D Plastics, 302 NLRB 245 (1991), the Board ar-
ticulated a four-factor objective standard to determine whether
a preelection grant of benefit improperly tends to influence the
outcome of an election: (1) the size of the benefit conferred in
relation to the stated purpose for granting it; (2) the number of
employees receiving it; (3) how employees reasonably would
view the purpose of the benefit; and (4) the timing of the bene-
fit. The Board later noted that, in formulating the test, it did not
overrule its “long line of cases holding that ‘campaign parties,
absent special circumstances, are legitimate campaign devices’
and that it will not set aside an election simply because the
union or employer provided free food and drink to the employ-
ees.” Chicagoland Television News, 328 NLRB 367, 367
(1999), and cases cited therein. The Board has also noted that a
petitioner’s providing “free, low cost meals to attendees at its
organizational meetings” is permissible. Hallandale Rehabilita-
tion & Convalescent Center, 313 NLRB 835 fn.6 (1994). Here,
the size of the benefit, the number of employees receiving it,
and the timing neither singly nor in combination objectively
suggest that Petitioner’s culinary offerings tended to influence
the outcome of the election. I find this conduct does not warrant
setting aside the election.
The Petitioner admittedly compensated employees who
served as its observers for salary lost because they served as
observers. No evidence was presented that any payment was
disproportionate to an observer’s usual pay rate, that the Peti-
tioner linked its payments to the way the observers would vote,
or that the Petitioner intended the payments to influence the
vote. See Easco Tools, 248 NLRB 700 (1980).26 Indeed, several

26 The Employer cited Eastco in support of this objection. However,
the Eastco facts differ from the instant situation. There, the union in-
formed three eligible voters that if they served as election observers for
the Union they would be paid for their regular 8-hour workday even if
they returned to work after the election. In S & C Security, Inc., 271
NLRB 1300, 1301 (1984) cited by the Employer, the union observer
was paid the equivalent of over 7 hours of work even though he acted
as observer on his day off and, thus, required no reimbursement. Here,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
employees who served as union observers testified that they did
not know they would be compensated for time lost until after
the election. Union observers who served on a day or days
when not scheduled to work received no compensation at all. I
find no objectionable conduct in the Petitioner’s having com-
pensated its observers for lost wages.27
Accordingly, I recommend that Objection 6 be overruled.
IV. OBJECTIONS 9 THROUGH 11 AND OBJECTION 13
Objections 9 through 11 and objection 13 (with subparts) in-
volve related allegations that the Union destroyed the fair op-
eration of the election process and election laboratory condi-
tions and interfered with the election: (1) by its use of campaign
material and other communications that gave voters the impres-
sion that the federal, state and/or local government and/or the
National Labor Relations Board endorsed the selection of the
Union as the bargaining representative, (2) by its officials,
agents, and supporters making material misrepresentations of
fact and law with respect to official NLRB processes, (3) by its
agents, officials, and supporters telling eligible voters they were
ineligible to vote, falsely telling voters the polls were closed,
and telling voters that the legal effect of not voting was the
same as voting “no.”
A. Union Campaign Material
The campaign material complained of and period of distribu-
tion is described below:
1. Distributed in October: flyers bearing the Union’s name
and logo and a photograph of several employees seated beneath
the NLRB seal in what appears to be a Board hearing room.
2. Distributed in mid-November: flyers representing that a
California state senator and several California state assembly
members supported the Union’s efforts to organize; flyers rep-
resenting that California’s attorney general told nurses that the
“law favors unionization.”
3. Distributed on December 10: flyers falsely accusing Ms.
Espejo of unlawful conduct as described in Section I, subsec-
tion I, above.
4. Distributed during the week of December 9: flyers alleg-
edly misrepresenting the results of the Union’s negotiations
with other employers.
5. Distributed in November and December: union flyers stat-
ing the incorrect voting time sent to some employees’ homes.28
In Midland National Life Insurance, 263 NLRB 127 (1982),
the Board returned to its Shopping Kart Food Marts29 rule that
it would not set aside an election because of misrepresentations
unless the misrepresentations involved misuse of the Board’s
election process or forged documents. Even misrepresentation

union observers who served during nonwork periods were not compen-
sated.
27 The Employer requests that I reverse my ruling limiting the scope
of its subpoena of union documents relating to prepetition payments
made to employees. In the absence of some threshold evidence to sup-
port a belief that such payments were made, the subpoena constitutes a
“fishing expedition.” In re Coinmatch Laundry Corp., 337 NLRB 1286
(2002). Therefore, I reject the Employer’s request.
28 I declined to hear testimony regarding the truth or falsity of the
flyers.
29 228 NLRB 1311 (1971).
of NLRB action is not a basis to set aside an election so long as
a Board document has not been altered to give the impression
that the Board endorses an election party. The Employer argues
that item 1 above showing employees seated beneath the NLRB
seal falsely suggested that the NLRB favored the Petitioner.
However, the Board expressly treats misstatements about Board
neutrality the same as other misrepresentations. Riveredge
Hospital, 264 NLRB 1094 (1982)30 (stating, “ we see no sound
reason why misrepresentations of Board action should be on
their face objectionable or be treated differently than other mis-
representations.” Id at 1095); TEG-LVI 326 NLRB 1469
(1998). The misrepresentations alleged by the Employer in-
volve neither misuse of the Board’s election process nor forged
documents. They fall, therefore, within the precepts of Midland
National Life Insurance, supra, and do not warrant setting aside
the election.
B. Direct contact with unit employees
The Employer alleges that unidentified union representatives
(1) in mid-November, told antiunion employees not to vote as
such was the equivalent to voting against the Union and thus
deterred voters from going to the polls, (2) during the election,
falsely told potential voters that the polls were closed and thus
deterred voters from going to the polls, and (3) on December
13, falsely told employees they were ineligible to vote and thus
deterred voters from going to the polls. I rejected the Em-
ployer’s offer to present two witnesses to testify as to misrepre-
sentations made to them of election times. Even assuming the
accuracy of the proffered and alleged evidence, the Employer
has cited no authority that such conduct forms a basis for over-
turning an election.
Accordingly, I recommend that Objections 9 through 11 and
Objection 13 be overruled.
V. OBJECTION 12
Objection 12 (with subparts) involves allegations that the
Union, by its officials, agents, and supporters unlawfully used
official NLRB documents or facsimiles thereof, including bal-
lots, to influence and/or alter the election results. The Employer
contends that a compilation of circumstantial evidence leads to
the conclusion that unofficial voting ballots were utilized in the
voting. Essentially, the Employer argues that ballot box “stuff-
ing” or tampering occurred. The circumstantial evidence the
Employer relies on is as follows:

1. On December 12, nurse supervisor Joey Zimmer-
man (Ms. Zimmerman) went to dinner at Jerry’s Deli with
three nurses. Ms. Zimmerman could see three CNA repre-
sentatives/supporters seated at another table. At some
point, Ms. Zimmerman noticed one of the CNA represen-
tatives was holding about half a ream of paper. Although
Ms. Zimmerman could not see what, if anything, was
printed on the paper, she could see it was a green color.
The following day, Ms. Zimmerman attended the vote
count. She saw that the ballots used by the NLRB in the
election were the same size and the same green color as

30 Supplementing 251 NLRB 196 (1980), enfd. as modified 789 F.
2d 524 (7 superth Cir. 1986).
CEDARS-SINAI MEDICAL CENTER 607
the paper carried by the CNA representative the previous
evening. While serving as an observer, Ms. Tynan saw a
voter come to the observer table with a green paper under
her arm, but could not tell whether it was a per diem nurse
assignment form, which was almost the identical shade of
green, or a ballot.
2. Employer election observer, Mercedes Mendez (Ms.
Mendez), on several occasions during her four observation
periods, saw unused ballots left unattended on the floor, on
the table and on chairs. By “unattended,” Ms. Mendez ap-
parently meant not within the actual physical possession of
a Board agent, as she testified that the Board agents con-
trolled the ballots carefully. Ms. Mendez saw no voter go
to the unattended ballots. Ms. Mendez observed that when
voters arrived at the polling area, they were promptly
checked in by observers and were given a ballot by a
Board agent within a very short period of time. Employer
observer, Francis Turner, (Mr. Turner), during the Decem-
ber 13, 5 to 9 a.m. voting session, saw unused ballots in a
loose pile on the floor by a chair in the area behind the ob-
server tables. At times, no Board agent was nearby. Mr.
Turner never saw anyone but a Board agent go to where
the ballots were kept and never saw a ballot in anyone’s
hand but that of the Board Agent or a voter about to vote.
During her stints as observer, Ms. Tyner saw ballots in an
open manila envelope underneath a chair behind the area
between the observer tables at times when no Board agent
was within 5 feet of the ballots.31
3. At times only two Board agents were present to
monitor the polls. There is no dispute that sometimes three
Board agents were present in the voting area when the
polls were open, and on other occasions, only two were
present.
4. Ms. Tyner voted on December 11 at 5:15 a.m. She
did not, at the time of voting, form an impression that the
person who handed her a ballot was not a Board agent.
Later, when she served as an observer during the 5 to 9
a.m. sessions of December 12 and 13, she recalled that she
had received her ballot from a man seated at one of the ob-
server tables who was not wearing an identifying badge.
She then formed an impression that the individual was not
a Board agent. Ms. Tyner’s recollection in this regard was
vague. In the absence of some corroborative evidence, I
cannot give it any weight. I find, therefore, no evidence
anyone other than Board agents handed out ballots to vot-
ers.
5. The Employer contends that discrepancies and
anomalies exist in the number of ballots shown on the of-
ficial tally and the number of ballots cast. The Region, af-
ter redacting names and identifying information from the
eligible voter list marked by observers during the election,
provided the parties with copies of the list. The parties
stipulated that review of the list showed a count of 1321 or

31 Ms. Tyner denied seeing any loose pile of blank ballots during the
December 13, 5 a.m. to 9 a.m. session. Her testimony, in this regard,
contradicts that of Mr. Turner. I do not credit Mr. Turner’s testimony of
“loose” ballots.
1322 checked-off voters depending on whether the name
of one voter is deemed to have been checked off. Only one
mark appears next to the redacted voter name at page 38,
line 7, of the copy of the voter eligibility list in evidence.
After reviewing the questioned line, I conclude that al-
though only one check mark appears on the redacted list
for that name, it constitutes a valid voter check-off. The
number of unchallenged checked-off voters (1322) is the
same as the total of votes cast for the Petitioner (695) and
the number cast against the Petitioner (627).

Considerable and varied testimony was adduced from both
employer and union observers concerning the location and
maintenance of unmarked ballots.
Considering the testimony as a whole, including the manner
and demeanor of witnesses, except as specifically stated, I find
no basis for crediting the testimony of one witness over an-
other. Even giving weight to the testimony of the Employer’s
witnesses, I find the Employer presented no probative evidence
that unofficial ballots were used in the voting, that the official
ballots were ever out of the control of the Board agents, that the
Board agents exhibited any carelessness concerning the ballots,
or that the ballots were misused or tampered with in any way.
See Polymers, Inc., 174 NLRB 282 (1969). Insofar as a dis-
crepancy exists in the tally of ballots, the Employer does not
explain, and I cannot determine, how the discrepancy could
provide evidence of ballot box stuffing or tampering or that
improper balloting occurred. See Allied Acoustics, Inc., 300
NLRB 1181 (1990). I rejected the Employer’s offer to present
expert statistical evidence that the vote distribution during one
50-ballot segment of the voting was—statistically—abnormally
in favor of the Petitioner, as I concluded the expert opinion
would not be of probative value. Without probative evidence of
some misconduct relating to the ballots, neither the discrepant
tally nor the proffered statistical opinion affords evidence of
improper voting. In sum, the evidence shows no discrepancy or
anomaly that would raise a suspicion that ballot box “stuffing”
or improper voting had occurred. As the objecting party, the
Employer carries the burden “to prove that there has been mis-
conduct that warrants setting aside the election. If the evidence
is insufficient, then the Employer has failed to meet its burden.”
Consumers Energy Co., 337 NLRB 752 (2002). The Employer
has not carried its burden here. Accordingly, I recommend that
Objection 12 be overruled.
VI. OBJECTIONS 14 THROUGH 17
Objections 14 through 17 (with subparts) relate to conduct at
the election polls. The thrust of these objections is that the in-
tegrity of the election process herein was compromised. The
Employer contends that the Petitioner, by its observers, main-
tained its own list of voters, engaged in electioneering and in-
appropriate communication with voters and observers, engaged
in or gave the appearance of surveillance near the voting area
during voting hours, left the voting area, tracked and transmit-
ted information to union supporters, remained in the vicinity of
unattended ballots, and failed to conform to lawful election
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
conduct rules.32 The test the Board applies when the election
process integrity is challenged is whether the evidence raises a
“reasonable doubt as to the fairness and validity of the elec-
tion.” Sawyer Lumber Co., 326 NLRB 1331 (1998) (and cases
cited therein.)33
A: Voting area layout and procedures
Region 31 conducted the election herein on three consecu-
tive days with three voting sessions each day as follows:

Wednesday,
December 11
5 a.m. to 9
a.m.
11 a.m. to 3
p.m.
4 p.m. to 8
p.m.
Thursday,
December 12
5 a.m. to 9
a.m.
11 a.m. to 3
p.m.
4 p.m. to 8
p.m.
5 a.m. to 9
a.m.
11 a.m. to 3
p.m.
11 a.m. to 3
p.m.
4 p.m. to 8
p.m.

During the preelection conference and before each voting
session, Board agent, Steve Alduenda (Mr. Alduenda), who
supervised the election, instructed observers not to keep notes
or tallies of the voting but told them they could read books or
magazines.
The election was held in the Employer’s educational confer-
ence center, a room 90 to 100 feet long and 45 to 50 feet deep.
Two observer tables were set up for voter identification. Signs
designated one table as being for voters with last names begin-
ning with the letters A through K and the other for voters with
last names beginning with the letters L through Z. Four observ-
ers sat at each table: two for the Petitioner and two for the Em-
ployer. For most of the voting sessions, four voting booths were
available to voters. The ballot box was positioned on a table
against the wall opposite the observers.
Individuals arriving at the polls were asked to show their
employee badges to the observers who matched and checked
off names on the voter eligibility list.
B: Unattended Ballots, the Presence of only two Board Agents
at the Polls, Failure of Union Observers to Wear Identifying
Buttons, and Voter Instruction Given by Union Observers
(Subparts 1, 15, and 16)
Essentially, this objection is that the Board agents conduct-
ing this election did not follow established guidelines for moni-
toring unused ballots or overseeing the polling area and ob-
server conduct. Part of the Employer’s evidence underlying this

32 Ms. Tyner denied seeing any loose pile of blank ballots during the
December 13, 5 a.m. to 9 a.m. session. Her testimony, in this regard,
contradicts that of Mr. Turner. I do not credit Mr. Turner’s testimony of
“loose” ballots. Match the eligibility list. When the voters asked ob-
servers to check under their married names, and the names were veri-
fied, observers permitted the voters to vote without challenge. Other-
wise, the objection regarding voter identification was not litigated.
Accordingly, I decline to consider this newly raised objection. Fleet-
Boston Pavilion, 333 NLRB 655, 656 (2001) (citing Precision Products
Group, 319 NLRB 640, 641 (1995) and Iowa Lamb, 275 NLRB 185
(1985).
33 Subparts 2, 3, and 4 allege, respectively, that a voter was handed a
ballot by a union observer rather than a Board agent, that unofficial
ballots were produced by the Union and used at the election, and that
discrepancies exist between the number of voters voting and the ballots
cast. These allegations are discussed in section V above.
allegation is set forth at section V, herein. Other evidence in-
cludes the testimony of Lisa West Noble (Ms. Noble), em-
ployer observer at the December 11, 5 a.m. to 9 a.m. session,
who testified that on two to three occasions, union observers
gave instructions to voters, telling them to take a ballot into the
voting booth, mark it, and deposit it into the ballot box. She
also observed union observers take breaks, one of whom left for
about 20 seconds and spoke to an employee just outside the
polling area who had already voted. Employer observer Mer-
cedes Mendez (Ms. Mendez) observed that Board agent, Mr.
Alduenda, left the polling area for about 20 minutes, followed
about five minutes later by another Board agent who was gone
for 5 to 10 minutes. During that period, only one Board agent
remained in the polling area. The remaining Board agent
stepped briefly behind a rolling partition where a refreshment
table was set up.34 No voters appeared during the time the
Board agent was behind the partition as, according to Ms.
Mendez, “If someone came in, we would have alerted her.” Ms.
Mendez saw no voter or observer do anything with or to the
blank ballots.
Board agents sometimes socialized with observers during pe-
riods when no voters were in the polling area. During one of the
sessions, a Board agent reportedly felt unwell and lay down in a
curtained recess for about an hour, leaving two Board agents on
duty in the polling area.
Union observer Joao Da Silva (Mr. Da Silva) who served at
the December 13, 5 to 9 a.m. and 11 a.m. to 3 p.m. sessions,
left the session on several occasions. According to Mr. Da
Silva, during his brief absences, he used his cell phone to an-
swer pages from his wife and a friend. On one occasion, he was
wearing his union observer button when he left. There is no
evidence to controvert his explanation for his absences or to
suggest that the voting was in any way affected by his absences
or by his wearing the observer button during one of them.
In order to set aside an election on the basis of a Board
agent’s conduct, the facts must raise a reasonable doubt as to
the fairness and validity of the election. Failure to follow guide-
lines will not warrant setting aside an election absent a reason-
able doubt as to the fairness and validity of the election. Con-
sumers Energy C.o, supra; Rheems Mfg. Co., 309 NLRB 459
(1992). Here, there is no evidence of any impropriety in the
Board agents’ conduct as set forth above that could reasonably
be supposed to affect the election or to destroy the appearance
of the Board’s impartiality. As to the oversight of blank ballots,
there is no evidence that the location of unused ballots or the
occasional presence of only two (and on one brief occasion,
only one) Board agents created any doubt about the fairness
and validity of the election. Several observers for both parties
were always present at the polls, and it is clear that the observ-
ers, particularly the Employer’s, were attentive to all aspects of
the election proceedings. There is no evidence that anyone
tampered with any of the unmarked ballots; indeed, there is no
evidence that anyone other than Board agents touched the un-

34 In its posthearing brief, the Employer states, “Sometimes, the
Board agents left the voting room altogether.” Insofar as this assertion
suggests that all Board agents were absent from the voting room at
some point during the voting sessions, it is inaccurate.
CEDARS-SINAI MEDICAL CENTER 609
marked ballots until they were handed to eligible voters. The
Employer’s reliance on Hook Drugs, Inc., 117 NLRB 846, 848
(1957), is misplaced. In that case, unlike the instant situation,
the Board agent and all observers inadvertently abandoned an
unsealed package of blank ballots at a polling location for some
20 minutes. Notwithstanding the absence of any evidence of
impropriety, because of the possibility of irregularity, the Board
set aside the election in Hook. Here, in addition to the absence
of impropriety, the blank ballots were always within the over-
sight of Board agent(s) and observers. As to observers speaking
to employees while taking breaks, there is no evidence that any
exchange related to the election or was other than innocuous.
See Sawyer Lumber Co., supra at 1334. Similarly, there is no
evidence or basis for inference that observers instructing voters,
on rare occasions, to take their ballots into the voting booth,
mark them, and deposit them into the ballot box could have
compromised the fairness or validity of the election.
C. Failure of Observers to Initial the Seal on the Ballot Box at
the Conclusion of the Final Voting Session (Subpart 5)
Following the conclusion of the voting on Friday, December
13, the observers did not sign the ballot box. The box remained
in the custody of the Board agent at all times.
Assuming that the failure of observers to initial the ballot
box following the election constitutes an election irregularity,
the Board has stated that possibility of irregularity alone does
not “raise a reasonable doubt as to the fairness and validity of
the election.” Sawyer Lumber Co., supra at 1332. The evidence
establishes that the ballot box was never unattended but was
always watched over by a combination of observers and Board
agent[s]. The number of ballots cast is consistent with the ob-
servers’ eligibility list check-offs, showing that no extra ballots
were cast. There is no evidence that anyone tampered with the
ballot box or that there was any other security breach of the
ballot box. In similar circumstances, the Board has concluded
that the integrity of an election was not compromised. Sawyer
Lumber Co., supra at 1332 and fn. 8. See also, Queen Kapiolani
Hotel, 316 NLRB 655 (1995). I conclude likewise.
D. Electioneering at the Polls (subparts 6, 7, and 14)
The Employer alleges that a flyer disparaging the Em-
ployer’s CEO was posted in the vicinity of the polls, that during
the election, two prounion nurses cheered loudly and made
victory gestures immediately after voting, and that a union
observer held a union button in plain view of voters while sit-
ting at the observers’ table and attempted to engage an em-
ployer observer in a discussion about benefits.
At a time when at least ten voters were in line, Ms. Noble
observed two female voters to cast their ballots and then cheer
loudly, “Yeah, union. Way to go. Great!” The two voters asked
Mr. Alduenda when they would know that the Union won. Mr.
Alduenda said, “The election ends on Friday. Then we will be
counting the ballots. We will have the results then, and you can
contact the nursing office.” After he answered, the two voters
left the voting area.
During the December 13, 5 a.m. to 9 a.m. session, union ob-
server, Mr. Da Silva observed to employer observer Mr. Turner
that the Employer’s benefits “sucked” and that there were better
ones available. Mr. Turner immediately discouraged the con-
versation, telling Mr. Da Silva it was not the time to discuss the
matter.35 There is no evidence any voter was in the area at the
time. Ms. Tyner, who served as employer observer during that
session, testified that all observers stopped talking when people
walked into the voting room.
The Board prohibits electioneering at or near election polls but
does not apply a per se rule. The Board examines evidence of
electioneering to determine whether it interfered with voter free
choice, applying such factors as “whether the conduct occurred
within or near the polling place . . . the extent and nature of the
alleged electioneering, and whether it is conducted by a party to
the election or by employees . . . or contrary to the instructions of
the Board agent.” Boston Insulated Wire & Cable Co.36 Further,
the Board’s rule in Milchem, 170 NLRB 362 (1968) prohibits
“prolonged conversations between representatives of any party to
the election and voters waiting to cast ballots.” The Board will
automatically set aside an election for such conduct without in-
quiring into the nature of the conversations.
As to the cheering voters, I cannot infer that their behavior
interfered with voter free choice. Although the conduct oc-
curred within the polling area, no observer was involved, no
prolonged conversation or interaction occurred, and only a
small fraction of the voting complement could have observed
the incident. The two voters spontaneously and briefly cele-
brated after casting their ballots, an unsurprising occurrence in
a vigorously contested campaign and one unlikely to sway
watching voters. See Midway Hospital Medical Center, 330
NLRB 1420 fn. 1 (2000). That is not conduct sufficient to set
aside an election.
As to Mr. Da Silva’s comments to a co-observer about bene-
fits, even accepting Mr. Turner’s account, there is no evidence
that he engaged in any prolonged conversation with voters
waiting to cast ballots, that he attempted to communicate a
prounion message to voters, or that his statements interfered
with employees’ free choice. Ibid. Accordingly, I cannot con-
clude that any electioneering occurred to warrant setting aside
the election.
E. Maintenance of a Separate Voting List and Observer Recor-
dation of Voter Information (subparts 8, 9, 10, 11, and 12)
Mr. Da Silva had an electronic device called a personal digi-
tal assistant, sometimes known as a “Palm Pilot” (herein called
PDA) with him during his observation session. No witness
observed what was on the PDA screen, but Mr. Da Silva was
observed using the stylus to touch the screen. An employer
observer pointed out Mr. Da Silva’s PDA use to Board agent,
Mr. Alduenda, who said that Mr. Da Silva was playing com-
puter games, which was okay. Employer observer, Mr. Turner,
overheard Mr. Da Silva ask a Board agent if he could transcribe
numbers from his beeper to his Palm Pilot, which the Board
agent said was permissible.

35 Mr. Da Silva’s account of this conversation differs somewhat from
that of Mr. Turner. Mr. Da Silva testified that he only mentioned that if
he moved to Denver and got a job with benefits, he would take up
skiing. He denied saying the Employer’s benefits “sucked.” I find it
unnecessary to resolve this testimonial conflict.
36 259 NLRB 1118, 1119 (1982) enfd. 703 F.2d 876 (5th Cir. 1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
When voters came into the polling area, Mr. Da Silva put the
PDA away. Some employer observers recalled that Mr. Da
Silva only put the PDA down when voters came to his table to
have their names checked off but otherwise used the PDA
while voters were in the polling area. Mr. Da Silva testified that
he played video games on the PDA during the voting session
but never when voters were in the polling area. I credit Mr. Da
Silva’s testimony and find that he did not use the PDA when
voters were in the polling area.
During the course of the hearing, a technical expert exam-
ined Mr. Da Silva’s PDA and provided a summary of its con-
tents including a list of all PDA files, which summary I re-
viewed in camera. Nothing in the summary of findings or in the
listed PDA files suggests that Mr. Da Silva kept any list or
record of voters on his PDA. In fact, nothing in the summary of
findings or in the listed PDA files reveals any information rele-
vant to the objections. Consequently, there is no evidence to
controvert Mr. Da Silva’s testimony as to the purpose for which
he used the PDA, and I have no reason to doubt his testimony. I
credit his account of his PDA use while he served as a union
observer during the election.
Ms. Mendez, during the December 13, 11 a.m. to 3 p.m. ses-
sion, saw a union observer writing from time to time on a
newspaper even when voters were in the room. Ms. Mendez
could not see what the observer was writing and said nothing
about it to any Board agent. This testimony probably refers to
Union observer Ms. Drilon, who testified she read a newspaper
and worked a crossword puzzle when no voters were in the
polling area. Considering all the evidence and testimony on this
subject, I specifically credit Ms. Drilon’s testimony that she
neither read the newspaper nor worked the crossword when she
realized voters had entered the polling area. Ms. Mendez also
observed another union observer named Mariano Mendoza
(Mr. Mendoza) write a voter’s name on a newspaper about 5
minutes after the voter had left. Ms. Mendez could not recall if
any voter was present at that time.
During the session she served as union observer, Rosary C.
Castro-Olega (Ms. Castro) filled out a scholastic book order
form for her children. I credit Ms. Castro’s testimony that she
never wrote on it when she saw voters were in the room. Al-
though employer observer Rachel Keller opined that Ms. Cas-
tro’s writing was more extensive than the book order form
could justify, there is no evidence that Ms. Castro kept a voter
list or that any voter could reasonably have drawn that infer-
ence.
The only list of voters to be maintained in Board-conducted
elections is the official voter eligibility list. The keeping of any
other voter list is grounds in itself for setting aside an election if
“it can be shown or inferred from the circumstances that the
employees knew that their names were being recorded. And
this is so even when there has been no showing of actual inter-
ference with the voters’ free choice.” Days Inn Management
Co., 299 NLRB 735, 737 (1992).
See also Cross Pointe Paper Corp., 330 NLRB 658 (2000)
and Masonic Homes of California, 258 NLRB 41 (1981). The
Board has focused on what voters observed and whether they
could reasonably have inferred that their names were recorded.
Indeck Energy Services, 316 NLRB 300 (1995), citing South-
land Containers, 312 NLRB 1087 (1993). In its posthearing
brief, the Employer asserts, “The Union failed to establish that
voters did not see Union observers recording information.”
However, that is not the Petitioner’s burden. As the objecting
party, the Employer carries the burden to prove misconduct that
warrants setting aside the election. Consumers Energy Com-
pany, supra. Here, there is no evidence that any observer kept
any list of persons who voted aside from the official eligibility
list on which voters’ names were checked off as they received
ballots. There is also no evidence that employees believed their
names were being recorded. The Employer points out that voter
perception is critical and that some voters entering the polling
area undoubtedly perceived, at least briefly, union observers
Ms. Castro with a book order form, Mr. Mendoza and Ms.
Drilon with newspapers, and Mr. Da Silva with his PDA. I
agree it is likely some voters may have seen that. However,
credible evidence establishes that each observer put aside any
diversionary object as soon as they saw voters approach.
Viewed objectively, it is likely that voters, including other ob-
servers, perceived the actuality: that observers whiled away
down time in innocuous pursuits. There is no basis for finding
that voters could reasonably have inferred that their names were
being recorded on unauthorized lists. The Employer has failed
to meet its burden in this regard.
G. Signaling Among Voters and Observers (Subpart 13)
Several employer observers perceived voters pound or tap
the ballot box after casting their ballots as detailed in the fol-
lowing:

Name Voting Ses-
sion(s) and
Table
Conduct Observed
Lisa Noble Dec. 11, A K
table 5 to 9
a.m.,
Fifteen voters during
the course of the
session rhythmically
pounded or tapped
the ballot box three
to five taps after
casing ballots. Ap-
proximately eight of
those times two un-
ion observers re-
sponded, “thank
you.”
CEDARS-SINAI MEDICAL CENTER 611
Erika
McCormick
Dec. 11, L-Z
table 11 a.m.
to 3 p.m.
During times when
prospective voters
were in the voting
area, about 40 % of
the voters tapped the
ballot box and then
made eye contact
with union observers
who waved, smiled,
nodded, and/or
winked. Ten to Fif-
teen voters also gave
“thumbsup” sign.37
Ms. McCormick
told a Board Agent
of the tapping and
that it could be un-
derstood as a signal.
The Board agent
said that there was
not tampering, it
was a problem.
Mercedes
Mendez
December11,
A – K table 4 –
8 p.m.
Dec. 12, A – K
table
11 a.m. – 3
p.m. Dec. 13,
A – K table
11 a,m., - 3
p.m.
L – Z table
4 p.m. – 8 p.m.

Observed that voters
tapped the side or
top of the ballot box
two to three times
when casting their
ballots. The voters
then made eye con-
tact with and/or
nodded to observers.
Francis
Turner
Dec. 13, A – K
table
5 a.m. – 9 a.m.
Saw and heard 75 –
100 voters tap the
top of the ballot box
after casting the
ballot and then took
toward the observer
tables. Saw Mr. Da
Silva nod or
“smirk.”38 He said

37 On cross-examination, Ms. McCormick testified that union ob-
servers returned the “thumbs-up” signs. Her testimony was vague and
somewhat vacillatory, e.g., she initially said both union observers had
made the sign but then said she wasn’t sure that both had. I find this
witness’ memory too tenuous to conclude that observers did, in fact,
make any “thumbs-up” gestures.
38 Mr. Turner initially testified that the tapping voters looked at Mr. Da
Silva after casting their ballots but admitted, under cross-examination,
that he could not tell whom the voters looked at.
nothing to any
Board agent about it.
Rachel Kel-
ler
Dec. 13, L – Z
table
5 a.m. – 9 a.m.
Heard tapping on
the ballot box after
voters cast ballots
and formed an im-
pression that the
voters cast ballots
and formed an im-
pression that the
voters then looked
over their shoulders
at union observers.
Did not see union
observers respond.
Tina Tyner Dec. 12, L – Z
5 a.m. to 9
a.m. Dec. 13 L
- Z 5 a.m. to 9
a.m
Did not notice any
tapping during the
Dec. 12 session. At
the Dec. 13 session,
after being alerted
by Rachel Keller,
noticed about 50%
of the voters tapping
on the box as they
cast their heads after
casting their ballots
and nodded and/or
smiled. During the
Dec. 13 session,
noticed some tap-
pers look at the table
where Mr. Da Silva
sat. Saw Mr. Da
Silva “mak[e]
glances toward
them” and smile or
smirk or nod.39

39 I give little weight to Ms. Tyner’s testimony of seeing Mr. Da
Silva’s responses. It is unlikely that she could reliably have seen Mr.
Da Silva’s expression as she had to move her chair back to be able to
see him, which she did not do when checking in voters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
Natividad
Portugal
Dec. 11, L – Z
table 5 a.m. to
9 a.m. Dec. 13,
A – K table 8
a.m. to 9 a.m.
as relief ob-
server 11 a.m.
to 3 p.m.
At all three sessions,
noticed voters tap-
ping on the ballot
box in a pattern of
one to two times
when casting their
votes, then smiling
or grinning at the
observers. Some
also said “See you
later.”

Union observers Ms. Castro, Ms. Wood, and Ms. Drilon,
heard no ballot box tapping during the sessions they attended.
The Employer contends that ballot box tapping as described
by its observers constituted a concerted and conspiratorial
communication among union observers and voters. That is an
inference unsupported by the evidence. Although some em-
ployer observers noticed a tapping pattern among ballot casters,
other union observers perceived no any such pattern, and em-
ployer observer Ms. Tynan did not notice the pattern until Ms.
Keller called it to her attention. I do not discount observer tes-
timony of hearing ballot box tapping. There were undoubtedly
tapping sounds at the ballot box as voters cast their ballots, but
there is no clear evidence that a general pattern of tapping oc-
curred. There is also no evidence of any preplanned communi-
cation and no basis for supposing that voters in line noticed the
tapping, or drew any inferences from it if they did, or were
thereby influenced in their voting. With regard to post-voting
signals, it is likely that many voters made gestures of acknowl-
edgment to observers such as smiles or nods. The Board has
stated that a “chance, isolated, innocuous comment or inquiry”
between voters and observers will not “necessarily void the
election.” Milchem, supra at 363; Sawyer Lumber Co., supra at
1334 and cases cited therein. The brief, innocuously amiable
gestures described by the employer observers herein do not rise
to the level of the conduct prohibited by Milchem. Although a
voter gave a “thumbs-up” sign after casting the ballot, such a
gesture is no more likely to signal support for the Union than
for the Employer, and was not, in any event, a communication
by any party agent. See Brinks Incorporated, 331 NLRB 46
(2000) (union observer, in addition to other objectionable con-
duct, gave “thumbs-up” signals to prospective voters.)
In sum, the evidence does not establish that there were any
irregularities in the conduct of this election to cast doubt on the
validity of the results. None of the evidence presented in sup-
port of Objections 14 through 17, either individually or cumula-
tively, raises any reasonable doubt about the integrity of the
election. Accordingly, I recommend that Objections 14 through
17 be overruled.
VII. OBJECTIONS 18 AND 19
Objections 18 and 19 (with subparts) relate to misrepresenta-
tions allegedly made by the Petitioner and the unauthorized use
of employee photographs and statements. Those allegations
have been dealt with in Sections I and IV herein. For the rea-
sons stated in Sections I and IV, I recommend that Objections
18 and 19 be overruled
CONCLUSION
Based on the above, I recommend that the Employer’s objec-
tions, in their entirety, be overruled and that this matter be re-
manded to the Regional Director for appropriate action.40

40 Pursuant to the provisions of Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended, within 14 days from the date of
issuance of this Recommended Decision, either party may file with the
Board in Washington D.C. an original and eight copies of exceptions
thereto. Immediately upon the filing of such exceptions, the party filing
same shall serve a copy thereof upon the other parties and shall file a
copy with the Regional Director. If no exceptions are filed thereto, the
Board may adopt this Recommended Decision.