Highlands Regional Medical Center

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1404 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 120
1404
Highlands Hospital Corporation, Inc. d/b/a Highlands
Regional Medical Center and Service Employees
International Union, District 1199, SEIU.1 Cases
9–CA–39186 and 9–CA–39460
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The issue presented in this case is whether the Re-
spondent, Highlands Regional Medical Center, acted
unlawfully when it withdrew recognition from the Union
and when it subsequently announced and implemented a
wage increase without notifying or bargaining with the
Union.2 We conclude, for the reasons stated below, that
the Respondent violated the Act as alleged.3
Factual Background
In June 1999, the Board certified the Union as the col-
lective-bargaining representative of a unit of the Respon-
dent’s registered nurses (the RNs). The parties negoti-
ated an initial collective-bargaining agreement effective
by its terms from November 14, 1999, to April 12, 2002.
In September 2001, several unit members, led by RN

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 On January 9, 2003, Administrative Law Judge Marion C. Ladwig
issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel filed an answering brief, and the
Respondent filed an amended reply brief. In addition, the General
Counsel filed limited cross-exceptions and a supporting brief, and the
Respondent filed an amended answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided, for the reasons stated in this
Decision, to affirm the judge’s rulings, findings, and conclusions, as
modified, and to adopt the recommended Order as modified and set
forth in full below.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 The General Counsel has moved to strike portions of the Respon-
dent’s amended answering brief and amended reply brief that did not
appear in the Respondent’s initial “Reply Brief to General Counsel’s
Answering Brief and Answering Brief to Counsel for the General
Counsel’s Limited Cross Exceptions.” In view of our disposition of
this case on the merits, adverse to the Respondent’s contentions, we
find the General Counsel’s motion moot, and we therefore need not
address it. Further, because we conclude that the Respondent violated
Sec. 8(a)(5) and (1) as alleged, for the reasons stated below, we need
not address the arguments raised by the General Counsel in his limited
cross-exceptions, which rely on additional bases to find the Respon-
dent’s conduct unlawful.
Ilene Lewis, formed a “Nurses Decertification Commit-
tee” (NDC), primarily because of dissatisfaction over
their pay. In accordance with information Lewis ob-
tained from the Board’s Regional Office, the NDC began
collecting signatures on an employee petition titled as
follows.
Highlands Regional Medical Center Showing of Interest
for Decertification of SEIU Union Registered Nurses
The NDC also sent a letter to the Respondent stating
that the nurses were planning to file a decertification
petition, and asking for the Respondent’s assistance in
obtaining an election.
Thirty-six RNs signed the employee petition in Sep-
tember and October 2001. Two of those RNs, Tracy
Wright and Melissa Allen, signed the petition after the
signature solicitors told them that the petition was in-
tended only for a showing of interest to obtain an elec-
tion.4 A third RN, Shirley Mausser, who wanted to have
the opportunity to express her choice regarding union
representation, signed the petition on October 1, 2001,
after the NDC signature solicitors told her that the pur-
pose of the petition was to retain the nurses’ freedom of
choice about whether to join the Union. Subsequently, in
January 2002,5 Mausser joined the Union and signed a
dues-checkoff authorization.6
On January 2, the NDC filed a decertification petition
with the Board’s Regional Office, and submitted the sig-
natures as the showing of interest in support of the peti-
tion. At that time, the bargaining unit consisted of 77
employees; thus, the showing of interest reflected
slightly fewer than 50 percent of the unit employees’
signatures. On January 3, RN Lewis provided copies of
the decertification petition and the showing of interest to
the Respondent.
On January 10, the Respondent’s CEO, Harold (Bud)
Warman, sent a memo to unit employees informing them
that some nurses “are asking the NLRB to conduct a se-
cret ballot election to determine whether or not a major-
ity of RNs still wish to be represented by this union.”

4 Wright, who supported the Union, stated that she felt surprised and
misled when the Respondent later used the petition as a basis for the
withdrawal of recognition. She added that she would not have signed
the petition if she had been told that the petition’s purpose was to get
rid of the Union.
5 All subsequent dates are in 2002, unless otherwise indicated.
6 The judge found that the Respondent knew of Shirley Mausser’s
postsignature decision to join the Union, because it had processed her
dues-checkoff authorization and had been deducting union dues from
her paycheck since receiving her authorization on February 7. More-
over, the employee lists that CEO Warman reviewed weekly—from
about March 11 until April 12—to calculate how many signers were in
the bargaining unit expressly identified Mausser as a member of the
Union.
HIGHLANDS REGIONAL MEDICAL CENTER 1405
The memo further stated that the Union had filed a
blocking charge, but that the Respondent would work
with the Board “to resolve any issues so that an election
can be conducted.” The Respondent did, in fact, make
efforts to resolve the blocking charge. Meanwhile, the
NDC, in a series of newsletters distributed to unit em-
ployees and the Respondent, continued to call for a de-
certification election and to express its increasing frustra-
tion about the delay.7 The NDC obtained two more sig-
natures on the showing of interest on February 7.
On March 11, the NDC sent the decertification petition
and updated showing of interest to the Respondent.8 In
an accompanying cover letter, the NDC stated that the
signers comprised more than 50 percent of the bargaining
unit and requested that the Respondent “support [the
NDC] in the decertification process” by “not enter[ing]
into negotiations until the NLRB grants us an election,
then all parties involved will know what the majority of
RNs want.”
Based on the NDC’s March 11 communication, Re-
spondent’s CEO, Warman, sent a letter to the nurses on
March 19, and the Respondent’s counsel sent a letter to
the Union the same day. Each of those letters stated that,
based on the NDC’s March 11 letter and attached show-
ing of interest, the Respondent was canceling a bargain-
ing session with the Union scheduled for the following
day and that the Respondent would withdraw its recogni-
tion of the Union when the collective-bargaining agree-
ment expired on April 12. Warman’s letter inaccurately
described the NDC’s March 11 letter as “stating that the
majority of RN’s no longer wished to be represented by
the . . . union.”9 And counsel’s letter to the Union inac-
curately stated that the nurses’ letter and petition
“ask[ed] the Medical Center to withdraw recognition
from the Union as the bargaining representative of the
registered nurse bargaining unit.”
On April 12, consistent with its March 19 announce-
ment, the Respondent withdrew recognition from the
Union. Nevertheless, the Respondent and the NDC con-
tinued to circulate documents expressing their support
for a decertification election.10

7 The initial blocking charge filed by the Union was settled; the
8(a)(5) and (1) charges at issue here, however, have continued to block
the election.
8 The NDC, in its cover letter to Warman, described the attached
documents as “the decertification petition and a list of names showing
their interest for decertification of SEIU union registered nurses.”
9 A March 19 memo that CEO Warman sent to the Respondent’s
board of trustees and medical staff contained the same inaccurate char-
acterization of the NDC’s March 11 letter.
10 For example, in an April 18 “Question and Answer” document re-
sponding to questions asked on the Respondent’s telephone hotline, the
Respondent stated, “Since the decertification petition was filed, the
goal has been to have an election.”
In an April 12 e-mail message to managers, which ex-
plained certain administrative consequences of the Re-
spondent’s withdrawal of recognition from the Union,
CEO Warman stated, “We will be making some im-
provements to wages.” But in later “Question and An-
swer” documents dated April 18 and May 2, the Respon-
dent informed employees of its concern that raising
nurses’ wages could jeopardize the scheduling or the
finality of the decertification election. On May 17, how-
ever, the Respondent announced a pay increase for all
nurses, which it put into effect on May 26. The Respon-
dent did not notify the Union of the pay increase or offer
the Union an opportunity to bargain over it.
The Parties’ Contentions and the Judge’s Decision
The General Counsel alleges in the complaint that the
Respondent violated Section 8(a)(5) and (1) of the Act
by withdrawing recognition from the Union and by sub-
sequently raising unit employees’ wages without notify-
ing and offering to bargain with the Union. The Respon-
dent admits the facts, but contends that its withdrawal of
recognition was lawful, in accordance with the require-
ments of Levitz Furniture Co. of the Pacific, 333 NLRB
717 (2001), and that it was therefore privileged to im-
plement a unilateral pay increase.
The judge found that the Respondent violated the Act
as alleged. First, the judge found that the Respondent
based its withdrawal of recognition on the NDC’s March
11 letter and the attached showing of interest.11 The
judge found that those materials did not demonstrate that
the Union had lost majority support, for two reasons: (1)
the written and oral statements made in connection with
the gathering of employee signatures demonstrated that
the petition did not show lack of support for the Union
and (2) the petition was not validly signed by at least half
of the unit employees.
As to the first of those reasons, the judge observed that
the heading on the employee petition stated that it was a
“showing of interest for decertification,” not a request to
the Respondent for withdrawal of recognition. More-
over, as shown, the judge credited testimony showing
that some employees had signed the petition based on

11 The Respondent’s April 5 statement of position to the Board’s re-
gional office, and the separate March 19 letters notifying the unit mem-
bers and the Union of the withdrawal of recognition, all stated that the
Respondent had withdrawn recognition based on the showing of inter-
est. At the hearing, CEO Warman testified that he also relied on vari-
ous other documents and alleged conversations about unit members’
opposition to representation. Although the judge did not expressly find
that Warman had relied exclusively on the NDC’s March 11 letter and
showing of interest, he discredited much of Warman’s testimony re-
garding alleged conversations, and he concluded that Warman’s addi-
tional reasons and the additional documents cited did not show that the
Union had actually lost majority status on April 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1406
express oral representations that the petition would be
used only to obtain an election, and also credited testi-
mony that at least one of those employees would not
have signed the petition if she had known that it would
be used as the basis for withdrawing recognition. Based
on that evidence, the judge concluded that the employ-
ees’ signatures on the petition did not establish that they
opposed union representation.
As to the second reason, the judge found that, when
considered in light of the facts at the time of the with-
drawal of recognition, the petition contained valid signa-
tures of fewer than half of the unit members. Specifi-
cally, the judge eliminated three signers who had left the
bargaining unit before March 19, when the Respondent
announced its decision to withdraw recognition, and one
more signer, RN Mausser, who had joined the Union on
January 23 after signing the petition on October 1, 2001.
The parties stipulated that on April 12, when the Re-
spondent withdrew recognition from the Union, the unit
contained 68 employees, of whom 34 (including
Mausser) had signed the showing of interest. Thus, with
Mausser’s signature eliminated, the petition comprised
less than half of the unit employees.
Analysis
For the reasons stated in the judge’s decision, as modi-
fied and supplemented below, we agree with the judge’s
finding that the Respondent violated Section 8(a)(5) and
(1) by withdrawing recognition from the Union and by
later implementing a pay increase without first notifying
the Union and offering it an opportunity to bargain over
the change.
1. Withdrawal of recognition
In evaluating whether the Respondent acted unlawfully
in withdrawing recognition from the Union on April 12,
we apply the standard established in Levitz Furniture Co.
of the Pacific, 333 NLRB 717 (2001): an employer must
show that the bargaining representative had actually lost
its majority status when the employer withdrew recogni-
tion.12 See also Port Printing Ad & Specialties, 344
NLRB 354, 355 fn. 2 (2005), enfd. sub nom. NLRB v.
Seaport Printing & Ad Specialties, Inc., No. 05-60347
(5th Cir. July 27, 2006) (unpublished). We agree with
the judge that, here, the evidence on which the Respon-
dent relied in withdrawing recognition did not demon-
strate the Union’s actual loss of majority status.

12 Chairman Battista notes that, although the underlying decision
correctly applied the “actual loss of majority” standard established in
Levitz to find that the Respondent unlawfully withdrew recognition
from the Union, he did not participate in Levitz and expresses no view
as to whether it was correctly decided. In this regard he notes that the
Respondent does not contend that Levitz should be overruled.
a. Petition’s purpose
First, as the judge found, the petition does not state
that the signers desire not to be represented by the Union,
nor does it request that the Respondent withdraw recog-
nition from the Union. Rather, on its face the document
states that it is a “showing of interest for decertification”
of the Union. NDC activist RN Lewis chose that lan-
guage based on her conversation with a Board agent in
the regional office about obtaining a decertification elec-
tion. That the NDC intended this document to serve as a
showing of interest to obtain an election is demonstrated,
first and foremost, by Lewis’ use of it for this precise
purpose when she provided it to the regional office as an
attachment to the decertification petition.
Moreover, numerous newsletters and other documents
authored and distributed by the NDC over subsequent
months expressly stated the NDC’s goal of obtaining a
decertification election. Those same newsletters and
other documents, which Lewis provided to CEO Warman
when they circulated, amply demonstrate the Respon-
dent’s knowledge that the signatures had been obtained
for the purpose of requesting an election.13 The last of
those documents, the NDC’s March 11 letter, which
asked the Respondent to postpone bargaining with the
Union, made clear that the NDC was requesting the Re-
spondent’s assistance in obtaining the election that the
NDC had been seeking for months.14
As shown above, in addition to the foregoing docu-
mentary indications that the petition was for the purpose
of seeking decertification, several employees testified
that they signed the petition only after being told that the
petition’s sole purpose was to support a request for an
election. Accordingly, their signatures, without which
the petition does not show majority support, cannot be
relied upon by the Respondent to withdraw recognition.
In light of all the circumstances, we agree with the judge
that the petition did not establish that the employees no
longer desired union representation.15

13 Lewis also testified that she sometimes asked Warman to confirm
the accuracy of statements in the documents before she circulated them.
14 Lewis testified that, in following the Regional Office’s advice, she
was trying to get rid of the Union any way she could, and that she was
neither specifically seeking an election nor aware that this was the
Board’s purpose for having her file the decertification petition and
showing of interest. The judge, however, discredited her testimony.
15 Just as there are dual-purpose authorization cards, we are willing
to assume that a decertification petition could have a dual purpose, i.e.,
that it could indicate both nonsupport for a union and support for a
decertification election. In light of the Levitz standard, however, we
will not permit a petition that describes itself solely in terms of a show-
ing of interest for decertification (i.e., an election) to be used by the
employer to prove actual loss of majority support.
Moreover, as explained in Levitz, 333 NLRB at 725, even when an
employer has objective evidence tending to show that the Union has
HIGHLANDS REGIONAL MEDICAL CENTER 1407
b. Number of valid signatures on petition
We also agree with the judge that, even if the em-
ployee petition clearly expressed the signers’ desire not
to be represented by the Union, the petition contained an
insufficient number of valid signatures. As stated above,
the parties agree that the petition was signed by half of
the unit members only if the signature of employee
Mausser is counted. As shown, however, after signing
and dating the petition on October 1, 2001, Mausser
joined the Union in January 2002. Pursuant to her signed
authorization, the Respondent began deducting her union
dues from her paycheck in February. Mausser’s un-
equivocal, postpetition demonstration of support for the
Union precludes counting her among the opponents of
the Union in determining whether the Union had lost
majority support when the Respondent withdrew recog-
nition.16 We therefore find that the Respondent’s with-
drawal of recognition based on the employee petition
violated the Act.17
2. Unilateral pay increase
After its withdrawal of recognition, the Respondent
announced and implemented a substantial raise in unit
members’ wages.18 The Respondent admits acting unilat-
erally; it contends, however, that its conduct was privi-
leged by its withdrawal of recognition. Because, as we

lost majority support, it “withdraws recognition at its peril.” Thus, in
withdrawing recognition, an employer assumes the risk that the evi-
dence it relies on for its decision will later be determined not to show
actual loss of majority status. Here, as we have found, the Respondent
wrongly relied on a petition that did not actually demonstrate employ-
ees’ opposition to union representation.
16 Although, under the pre-Levitz standard for lawful withdrawal of
recognition, the Board would not have presumed that nonmembership
in a union or failure to execute a dues-checkoff authorization supported
a good-faith doubt of majority support, that was because there is no
inconsistency between desiring union representation and choosing not
to pay for it. See, e.g., Terrell Machine Co., 427 F.2d 1088, 1090 (4th
Cir. 1970), cert. denied 398 U.S. 929 (1970). But where an employee
who has signed a decertification petition then voluntarily joins the
union and begins paying dues, the employer may no longer count that
employee as opposing union representation. A fortiori, this reasoning
applies to Mausser, who signed only a “showing of interest,” and did so
only after being told that the purpose of the petition was to preserve
employee choice.
17 We need not address the sufficiency of the hearing testimony re-
garding employees’ bare recollections of their sentiments for or against
union representation as of April 12, because this evidence was not
before the Respondent when it withdrew recognition. As the judge
explained, Levitz makes clear that an employer may withdraw recogni-
tion from a union that represents its employees only when it acts on
objective evidence showing that the union lacks the support of a major-
ity of bargaining-unit members. Levitz, 333 NLRB at 723–726. Ac-
cordingly, the judge correctly deemed the foregoing employee testi-
mony irrelevant.
18 As stated above, dissatisfaction with the wages provided by the
collective-bargaining agreement was one of the primary motivators for
the decertification campaign.
have found, that withdrawal of recognition was unlawful,
it follows that the Respondent’s subsequent unilateral
change was unlawful, as well. We thus adopt the judge’s
conclusion that the Respondent’s May 26 unilateral pay
increase for unit members violated Section 8(a)(5) and
(1).
3. Remedy19
Having found that the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act, we shall order the Respondent to
cease and desist from engaging in such conduct and to
take certain steps to effectuate the policies of the Act. In
accordance with the judge’s recommendation, we shall
order the Respondent, for 6 months after the date of this
Order, to permit the Union to post union notices on em-
ployee bulletin boards at its facility and to provide the
Union with up-to-date lists of bargaining unit members,
as well as their current addresses.20 We shall also order
the Respondent, if requested by the Union, to rescind the
unilateral pay increase implemented on May 26, and any
other unilateral changes in benefits and conditions of
employment implemented since the withdrawal of recog-
nition on April 12. Nothing in this Order, however,
should be construed to require the Respondent to with-
draw any benefit previously granted unless requested by
the Union. See Taft Broadcasting Co., 264 NLRB 185
fn. 6 (1982).
Finally, having found that Respondent unlawfully
withdrew recognition of the Union, we shall order that
the Respondent bargain with the Union in the bargaining
unit described below, with respect to wages, hours, and
other terms and conditions of employment and, if an
agreement is reached, embody it in a signed document.
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent’s unlawful withdrawal of recognition. We ad-
here to the view that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) refusal

19 The Respondent excepts both to the imposition of any remedy and
to the “excessive breadth” of the remedy granted. As to the former, the
Respondent’s exception is based on its contention, which we reject, that
it did not commit any unfair labor practices. As to the latter, the Re-
spondent does not offer any argument in support of its exception. Nev-
ertheless, we have considered the appropriateness of the judge’s rec-
ommended remedies, and for the reasons given by the judge, as well as
those stated below, we adopt these remedies.
20 In addition to the judge’s rationale supporting these remedies, we
observe that the collective-bargaining agreement that expired on April
12, 2002, imposed comparable obligations on the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1408
to bargain with the lawful collective-bargaining represen-
tative of an appropriate unit of employees.” Id. at 68.21
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In Vincent, supra, the court summa-
rized its requirement that an affirmative bargaining order
“must be justified by a reasoned analysis that includes an
explicit balancing of three considerations: (1) the em-
ployees’ Section 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, supra, we
have examined the particular facts of this case as the
court requires and find that a balancing of the three fac-
tors warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition and resulting re-
fusal to bargain with the Union for a successor collec-
tive-bargaining agreement. At the same time, an affirma-
tive bargaining order, with its attendant bar to raising a
question concerning the Union’s continuing majority
status for a reasonable time, does not unduly prejudice
the Section 7 rights of employees who may oppose con-
tinued union representation because the duration of the
order is no longer than is reasonably necessary to remedy
the ill effects of the violation. To the extent such opposi-
tion exists, moreover, it may be at least in part the prod-
uct of the Respondent’s unfair labor practices.
In concluding that a bargaining order is appropriate,
we are mindful of the decertification petition already
pending in this case. This petition has remained blocked
by the Respondent’s own unlawful conduct at issue here.
To proceed with an election, without first giving the Un-
ion an opportunity to re-establish itself with the bargain-

21 Chairman Battista does not agree with the view expressed in
Caterair International, supra, that an affirmative bargaining order is
“the traditional, appropriate remedy” for an 8(a)(5) violation. He agrees
with the United States Court of Appeals for the District of Columbia
Circuit that a case-by-case analysis is required to determine if the rem-
edy is appropriate. Saginaw Control & Engineering, 339 NLRB 541,
546 fn. 8 (2003). He recognizes, however, that the view expressed in
Caterair International represents extant Board law. See Flying Foods,
345 NLRB 101, 109 fn. 23 (2005).
ing-unit employees, would unjustly reward the Respon-
dent for its willful interference with the fairness of the
election process that was underway when it withdrew
recognition.
(2) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured by the Re-
spondent’s withdrawal of recognition to achieve immedi-
ate results at the bargaining table following the Board’s
resolution of its unfair labor practice charges and issu-
ance of a cease-and-desist order.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances, because it would per-
mit the pending decertification petition to be processed
(or another such petition to be filed) before the Respon-
dent has afforded the employees a reasonable time to
regroup and bargain through their representative in an
effort to reach a successor collective-bargaining agree-
ment. Such a result would be particularly unjust in cir-
cumstances such as those here, where the Respondent’s
unfair labor practices—both the withdrawal of recogni-
tion and the unilateral pay increase—were of a continu-
ing nature and were likely to have a continuing effect,
thereby tainting employee disaffection with the Union
arising during that period or immediately thereafter. We
find that these circumstances outweigh the temporary
impact the affirmative bargaining order will have on the
rights of employees who oppose continued union repre-
sentation.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified and set forth in full below and orders that the
Respondent, Highlands Hospital Corporation, Inc. d/b/a
Highlands Regional Medical Center, Prestonsburg, Ken-
tucky, and its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with Service Employees International Union, District
1199, SEIU as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit:
HIGHLANDS REGIONAL MEDICAL CENTER 1409
All registered nurses including charge nurses employed
by the Respondent at its 5000 Ky. Route 321, Pres-
tonsburg, Kentucky facility, but excluding assistant
vice-presidents of nursing, clinical and other patient
service managers, house supervisors, RN circulators in
surgery (or 1st Floor), clinical liaison, manager of edu-
cation, staff development education, infection control
employee health nurse, diabetic education CME pro-
gram coordinator, UR Case Manager, case manager,
discharge planner, certified registered nurse anesthe-
tists, PACU charge nurse, dieticians, pharmacists, phy-
sicians, employee health nurses, office clerical employ-
ees, service and maintenance employees, LPNs, techni-
cal employees, business office clericals, other profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Unilaterally granting pay increases, or making
other changes to wages, hours, or other terms and condi-
tions of employment, without notifying the Union and
providing it an opportunity to bargain about these
changes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with the Union as the exclusive representative of the Re-
spondent’s employees in the above unit with respect to
wages, hours, and other terms and conditions of em-
ployment and, if an agreement is reached, embody it in a
signed document.
(b) If the Union requests, cancel the pay increase
unlawfully granted to unit employees through the Re-
spondent’s unilateral action on May 26, 2002, and any
other unilateral changes made to wages, hours, or other
terms and conditions of employment since its withdrawal
of recognition of the Union on April 12, 2002; provided,
however, that nothing in this Order shall be construed as
requiring the Respondent to rescind the pay increase
granted unless the Union requests such action.
(c) Within 14 days after service by the Region, post at
its facility in Prestonsburg, Kentucky, copies of the at-
tached notice marked “Appendix.”22 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 9, after being signed by the Respondent’s author-

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since April 12,
2002.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recognize and bargain in good
faith with Service Employees International Union, Dis-
trict 1199, SEIU as collective-bargaining representative
of the employees in the following bargaining unit:
All registered nurses including charge nurses employed
by us at our 5000 Ky. Route 321, Prestonsburg, Ken-
tucky facility, but excluding assistant vice-presidents of
nursing, clinical and other patient service managers,
house supervisors, RN circulators in surgery (or 1st
Floor), clinical liaison, manager of education, staff de-
velopment education, infection control employee health
nurse, diabetic education CME program coordinator,
UR Case Manager, case manager, discharge planner,
certified registered nurse anesthetists, PACU charge
nurse, dieticians, pharmacists, physicians, employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1410
health nurses, office clerical employees, service and
maintenance employees, LPNs, technical employees,
business office clericals, other professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT unilaterally grant pay increases, or make
other changes to your wages, hours, or other terms and
conditions of employment, without notifying the Union
and giving it an opportunity to bargain about these
changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and, on request, bargain collec-
tively with the Union as the exclusive representative of
our employees in the above unit with respect to wages,
hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed
document.
WE WILL, on the Union’s request, cancel and rescind
the pay increase unilaterally implemented on or after
May 26, 2002, and any other unilateral changes made to
wages, hours, or other terms and conditions of employ-
ment since its withdrawal of recognition of the Union on
April 12, 2002.
HIGHLANDS HOSPITAL CORPORATIONI, INC.
D/B/A HIGHLANDS REGIONAL MEDICAL CENTER
Theresa Donnelly Laite, Esq., for the General Counsel.
Vincent Candiello, Esq. (Morgan, Lewis & Bockius), of Harris-
burg, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These cases
were tried in Prestonsburg, Kentucky, on September 17–19,
2002.1 The charges were filed by SEIU District 1199 (the Un-
ion) against the Respondent (Medical Center) on March 20 and
July 22, and the complaint was issued August 23.
The cases involve the Medical Center’s withdrawal of union
recognition of a unit of registered nurses (RNs) upon the April
12 expiration of the RN Agreement, followed by the large uni-
lateral wage increase, effective May 26.
On March 19 the Medical Center (by counsel) had sent the
Union a letter (GC Exh. 4), which referred to a March 11 letter
received from a group of RNs, along with a copy of a petition
signed by 38 RNs (R. Exhs. 14, 18). The letter stated that “con-
sistent with the law as announced” in Levitz Furniture Co. of
the Pacific, 333 NLRB 717 (2001), “the Medical Center. . . .
intends to withdraw recognition of the Union . . . as of April
12.”
In Levitz supra at 719 the employee petition, signed by a ma-
jority of the unit employees, stated that the employees no
longer desired to be represented by the union.

1 All dates are 2002, unless otherwise indicated.
The petition attached to the March 11 letter, however, is not
such a petition. As later admitted at the trial, the petition does
not “prove actual loss [of majority support of the Union on
April 12]. It proves the rationale for the decision [to withdraw
recognition].”
The petition (except for two names added in February) is a
copy of a petition (R. Exh. 2) signed by 36 RNs in September
and October 2001 and submitted January 2, 2002, to make a 47
percent “showing of interest” for a decertification election in a
bargaining unit of 77 RNs.
The petition reads:
Highlands Regional Medical Center Showing of Interest For
Decertification of Seiu Union Registered Nurses
On January 10 the Medical Center’s CEO, Harold Warman,
notified the RNs by memorandum (Tr. 37–38; R. Exh. 3) that
nurses “are asking the NLRB to conduct a secret ballot election
to determine whether or not a majority of RNs still wish to be
represented by this union.” He added that the Union had filed a
blocking charge and that “[t]he NLRB and the hospital will be
working to resolve any issues so that an election can be con-
ducted.”
On February 21 the Medical Center notified all employees
(R. Exh. 10; Tr. 43) that it “will make a good faith attempt to
settle the [blocking] charges.”
On March 11—after solicitation of signatures on another pe-
tition (R. Exhs. 12 & 13) failed, except for the addition of two
names to the 36-name petition—the RN Decertification Com-
mittee sent CEO Warman a letter (R. Exh. 14), stating:
Enclosed, please find a copy of the decertification peti-
tion and a list of names showing their interest for decerti-
fication of SEIU union registered nurses. This petition
[when it had 36 names] was filed with the National Labor
Relations Board. At the time this petition was filed, 77
employees held RN union positions. This number has now
decreased to 71 RNs.
As you can see, the list of names total 38 RNs [includ-
ing the two names added in February]. Thirty-three RNs
chose not to sign the petition. A number of these 33 RNs
have verbally shown their support for decertification. They
did not want to put their names in writing in fear of reper-
cussions from the union.
We have more than 50% of the 71 RNs showing sup-
port for decertification. We feel the hospital should sup-
port us in the decertification process.
The agreement between [the Medical Center] and
SEIU/District 1199 ends April 12, 2002. The majority of
RNs thinks the hospital should not enter into negotiations
until the NLRB grants us an election, then all parties in-
volved will know what the majority of RNs want. [Em-
phasis added.]
The following week, the Medical Center sent its March 19
letter (GC Exh. 4) to the Union, stating:
On March 11, 2002, Bud Warman received a letter
from a group of registered nurses, along with a copy of a
petition containing the names of 38 nurses, asking the
Medical Center to withdraw recognition from the Union as
HIGHLANDS REGIONAL MEDICAL CENTER 1411
the bargaining representative of the registered nurse bar-
gaining unit. The number of nurses who signed the peti-
tion (38 of 69) represented 55% of the current registered
nurses. [Emphasis added.]
Accordingly, consistent with the law as announced . . .
in Levitz . . . the Medical Center hereby informs you that it
has concluded, based on objective considerations, that the
Union, in fact, has lost the support of a majority of the
bargaining unit registered nurses. Therefore, the Medical
Center intends to withdraw recognition of the Union as the
representative of the nurses as of April 12, 2002, when the
contract expires. Until April 12, 2002, the Medical Center
will continue to comply with the terms of the contract.
Accordingly, please be advised that the bargaining ses-
sion scheduled for Wednesday, March 20, 2002 is can-
celed.
On the same date, March 19, CEO Warman sent the RNs a
letter (R. Exh. 19) (with a copy of the Medical Center’s March
19 letter on the back), repeating the false claim that 38 of the 69
current registered nurses signed the petition. He stated:
Last week, I received a letter from the decertification
committee stating that the majority of RNs no longer
wished to be represented by the 1199/SEIU union. To
support this statement, they attached a petition with
signatures from the majority of RNs on staff (38 of 69).
As you are aware, the RN contract expires on April 12,
2002. The union and the medical center were to meet to-
morrow, March 20th, to begin negotiations.
Today, a letter was sent to the union indicating that, in
light of the petition [emphasis added], the medical center
will withdraw recognition of 1199/SEIU as the bargaining
representative of the RNs. I have been advised that I can
do this, since the letter and petition served on me are evi-
dence that the union has, in fact, lost the support of the
majority of the bargaining unit nurses. I have provided a
copy of the letter sent to the union on the back of this let-
ter.
Thus, the Medical Center informed the RNs that it was with-
drawing recognition of the Union “in light of the petition”—
falsely claiming that all 38 of the 69 RNs (38 of 69) had signed
the petition, “represent[ing] 55 percent of the current registered
nurses.”
On April 1, the Medical Center published a newsletter (R.
Exh. 22), in which it informed all employees that it notified the
Union on March 19 that it was withdrawing recognition of the
Union at the expiration of the RN Agreement, “based on the
Medical Center’s good faith belief [emphasis added] the major-
ity of RNs no longer desire representation” by the Union.
It added in the April 1 newsletter that “it is the Medical Cen-
ter’s position the RNs should be allowed to vote” and assured
the employees, “The Medical Center is developing a settlement
offer that would resolve the charges and allow the election to
move forward.”
Nevertheless, upon the April 12 expiration of the RN
Agreement, the Medical Center proceeded to withdraw recogni-
tion of the Union (GC Exh. 16). No election was held, although
requested by the decertification committee to determine “what
the majority of RNs want.”
Following the withdrawal, the Medical Center granted a
large unilateral wage increase without prior notice to the Union.
By letter dated May 17 (GC Exh. 2) it announced, effective
May 26, a $2.60-pay raise to all employees in the staff RN
position, to a maximum $25.35 rate. This was a raise in the
starting rate from $13.20 to $15.80—about 20 percent.
The primary issues are whether the withdrawal of recogni-
tion and unilateral wage increase were lawful, and if not, what
is an adequate remedy.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Medical Center, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Medical Center, a corporation, operates an acute care
hospital in Prestonsburg, Kentucky, where it annually receives
goods valued over $50,000 directly from outside the State. It
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and a
health care facility within the meaning of Section 2(14) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Levitz Standard for Withdrawing Recognition
In March 2001, the Board decided Levitz, 333 NLRB 717
(2001), taking into account (1) the Supreme Court’s holding in
Allentown Mack Sales & Service v. NLRB, 522 U.S. 359
(1998), that the Board’s “good-faith doubt” standard (for an
employer to withdraw union recognition under Celanese Corp.,
95 NLRB 664 (1951)), must be interpreted to permit the em-
ployer to act where it has a “reasonable uncertainty” of the
union’s majority status, and (2) the Court’s indicating that the
Board could impose a more stringent requirement for with-
drawal of recognition.
The Board held 333 NLRB 717:
After careful consideration, we have concluded that
there are compelling legal and policy reasons why em-
ployers should not be allowed to withdraw recognition
merely because they harbor uncertainty or even disbelief
concerning unions’ majority status. We therefore hold that
an employer may unilaterally withdraw recognition from
an incumbent union only where the union has actually lost
the support of the majority of the bargaining unit employ-
ees.
In this Levitz decision (at 723–725), after stating that an em-
ployer must have “some objective evidence that the representa-
tive the employees have designated no longer enjoys majority
support,” the Board repeatedly indicated that there must be a
showing of actual loss of majority support of the union before
the employer may lawfully withdraw recognition:
If a majority of the unit employees present evidence that they
no longer support their union, their employer may lawfully
withdraw recognition. . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1412
. . . .
[W]e hold that an employer may unilaterally withdraw recog-
nition, only on a showing that the union has, in fact, lost the
support of a majority of the employees in the bargaining unit.
. . . .
[W]e anticipate that as a result of our decision today, employ-
ers will be likely to withdraw recognition only if the evidence
before them clearly indicates that unions have lost majority
support. [Emphasis added.]
The Board also indicated in the Levitz decision (at 723) that
its standard was more stringent for withdrawing recognition,
but was more lenient for obtaining RM elections, holding:
While adopting a more stringent [emphasis added]
standard for withdrawals of recognition, we find it appro-
priate to adopt a different, more lenient standard for ob-
taining RM elections.... [W]e shall allow employers to ob-
tain RM elections by demonstrating reasonable good-faith
uncertainty as to incumbent unions’ continued majority
status.
B. No Showing of Actual Loss of Majority Support
1. No showing on March 19
Documentary evidence introduced at the trial shows that
both the Medical Center’s and CEO Warman’s March 19 letters
(GC Exh. 4; R. Exh. 19) falsely claimed that all 38 of the 69
RNs (38 of 69—representing 55 percent of the RNs in the bar-
gaining unit—had signed the petition attached to the decertifi-
cation committee’s March 11 letter.
The decertification committee incorrectly stated in its March
11 letter (R. Exh. 14) that a total of 38 (rather than 36) RNs had
signed the petition filed with the Board (in January) and that
there were currently 71 (38 plus 33) RNs in the bargaining unit.
Both of the March 19 letters corrected the number of current
RNs in the bargaining unit (69 instead of 71), but failed to cor-
rect the number of the petition signers who were currently em-
ployed in the unit.
The Medical Center’s own records show that, in fact, not all
of the 38 RNs who signed the petition were currently in the
bargaining unit.
Three of the 36 RNs who signed the petition in September
and October 2001 (casual/PRN employees Paula Howell and
Melissa Moore and resigned employee Sara Osborne) were not
in the current bargaining unit (Tr. 81–82; GC Exh. 3 p. 29; R.
Exh. 17 pp. 1–4). Subtracting 3 from 38 (the original 36 peti-
tion signers, plus the two who signed on February 7) leaves
only 35—not 38—petition signers currently in the unit.
Moreover, one of the 35 petition signers (Shirley Mausser)
had signed the Union’s application for membership on January
23 (after signing the petition on October 1, 2001). The Medical
Center had been deducting her union dues since February 7
(GC Exhs. 9, 14 p. 5; Tr. 252–253, 450–451). Of course, the
Medical Center was aware that Mausser was supporting the
Union on March 19. Without her name (assuming that the sig-
natures of all the others indicated nonsupport of the Union), the
petition would show a total of 34 nonsupporters—49 percent
(not 55 percent) of the 69 current RNs in the bargaining unit.
Even if the Medical Center had relied on the hearsay conten-
tion in the decertification committee’s March 11 letter (R. Exh.
14), that a number of other RNs have “verbally shown their
support for decertification,” that could not be considered in
determining actual loss of majority support of the Union. Re-
garding the hearsay testimony, the Medical Center’s counsel at
the trial stated that “it’s not offered to prove that these people
were opposed [to the Union]” (Tr. 200, 431–433).
In Allentown Mack Sales, 522 U.S. 359, 369 (1998), the Su-
preme Court held:
Unsubstantiated assertions that other employees do not sup-
port the union certainly do not establish the fact of that disfa-
vor with the degree of reliability ordinarily demanded in legal
proceedings.
2. No showing of actual loss of majority support on April 12
On April 12, as stipulated (Tr. 422–423), “there were 68 in-
dividuals in the RN bargaining unit” and “of that number, 34
had signed . . . the decertification petition.”
As indicated, RN Shirley Mausser (one of the 34 petition
signers in the bargaining unit on April 12), joined the Union
after signing the petition on October 1, 2001. Without her
name, the petition would show, at most, only 33 nonsupporters
of the Union—less than 49 percent of the 68 RNs in the bar-
gaining unit. Thus, the petition did not show an actual lost of
majority of union support when the Medical Center withdrew
recognition on April 12.
I note that at the trial in September, RN Tracy Wright credi-
bly testified (Tr. 440) that RN Sandra Johnson (a member of
the decertification committee) told her that signing the showing
of interest for decertification petition “was just to get another
vote for the RN union representation. That the hospital would
show their side, and the union would show their side, and then
we would have another vote.” By her demeanor on the stand,
Wright impressed me most favorably as a truthful witness.
I also note that Wright was not the only RN who was told
that the petition was for an election in which they could vote
for or against decertification of the Union. RN Melissa Allen, a
Medical Center witness at the trial, credibly testified on direct
examination (Tr. 309) that Ilene Lewis (the leading member of
the decertification committee) “asked me if I would like to
sign” the petition, and “She just told me it was a petition . . .
where they could revote whether to keep [the Union] or get rid
of it.” (Lewis did not impress me by her demeanor as a candid
witness.)
Thus, it is clear that signatures on the petition do not neces-
sarily indicate nonsupport of the Union.
C. Medical Center’s Shifting Positions
1. Showing of interest for decertification petition
a. Position at the time and position at the trial
As found, CEO Warman informed the RNs on March 19 that
“in light of the petition,” the Medical Center was withdrawing
recognition of the Union as bargaining representative of RNs.
At the trial, however, the Medical Center admitted that, as
worded, the petition itself would not show such an actual loss.
Pointing out that the word “Election” does not appear in the
wording of the petition (Tr. 153), the Medical Center’s counsel
HIGHLANDS REGIONAL MEDICAL CENTER 1413
admitted (emphasis added): “[I]n primary part we relied upon a
petition. The question is, what does that petition represent” (Tr.
147), and “We have the petition, people signed it, what did it
mean to them” (Tr. 156).
The counsel also admitted (Tr. 144–145) that Warman’s tes-
timony at the trial, relying in part on the petition (Tr. 37),
“Standing alone, it doesn’t prove actual loss [of majority sup-
port of the Union]. It proves the rationale [emphasis added] for
the decision that he made.”
b. Contentions of the parties and findings
Contrary to the Board’s above-quoted repeated indications in
its Levitz decision that there must be a showing of actual loss of
majority support of the union before the employer may lawfully
withdraw recognition, the Medical Center contends in its brief
(at 10):
The text of Levitz left open the question of whether an
employer must show actual knowledge of the union’s loss
of majority status at the time it withdraws recognition, or
must an employer only prove an actual loss at a subse-
quent trial involving an 8(a)(5) challenge.
The Medical Center further contends in its brief (at 10) that
“contrary to the General Counsel’s objection at trial, [its] evi-
dence is not confined to what it knew [on the date of the with-
drawal], but rather to what it can prove [at the trial].”
Its brief includes a 9-page appendix A, “Summary of Nurs-
ing Unit Employees’ Testimony.” The summary has columns
indicating “Sign the Petition?” “Why Signed?” “Why Included
by Mr. Warman?” and “Support SEIU at Recognition With-
drawal?”
In the brief (at 8), the Medical Center contends that it has
demonstrated at the trial that “there were 37 employees who did
not support the Union as of the date of recognition withdrawal.”
In making this contention the Medical Center asserts in its
brief (at 7–8):
Of the 34 nurses who signed the showing of interest,
32 testified. Of the 32 who testified, 30 demonstrated that,
on April 12, 2002, they did not support the Union. The
remaining two signers [referring to Shirley Mausser and
Tracy Wright] indicated at the trial they supported the Un-
ion. . . .
In addition, [the Medical Center] presented Kristal
Bradley, Tena Hackney, Vicky Harmon, Tammie Ratliff,
and Leslie Tucker, each of whom were members of the
bargaining unit on April 12, 2002, and each of whom
voiced their nonsupport for the Union as of that date. With
those individuals added in, there were 35 employees indi-
cating nonsupport of the Union on the date of actual with-
drawal of recognition. [The Medical Center] also authenti-
cated the signatures of Amanda Fraley and Arlene Gibson,
who signed the showing of interest, were employees in the
bargaining unit on April 12, 2002, but no longer were em-
ployed by [the Medical Center] as of the date of trial. No
evidence was submitted indicating these individuals in any
way sought to remove their names from the showing of in-
terest. Therefore, in the end, [the Medical Center] demon-
strated there were 37 employees who did not support the
Union as of the date of recognition withdrawal.
The General Counsel contends (Br. at 5):
Clearly, the actual loss standard is based on the evidence the
Employer possessed at the time that it withdrew recognition.
Respondent contends that as long as it can present evi-
dence of actual loss at the trial stage then it has met its
burden, even if Respondent did not possess this evidence
at the time it withdrew. Under such an interpretation, em-
ployers could simply withdraw recognition based on less
than actual loss, less than good-faith doubt even [empha-
sis added], as long as months later, with the Union nulli-
fied, and new benefits granted, it was able to present a suf-
ficient number of employees who would testify that,
months before, they did not wish to be represented by the
Union. In Levitz, the Board made clear it was imposing a
“more stringent requirement” for withdrawals of recogni-
tion. . . . Respondent’s interpretation would undermine the
essence and purpose of the Levitz decision.
I agree and find that this evidence—not possessed by the
Medical Center when it withdrew recognition of the Union on
April 12, but introduced at the trial over 5 months later—is
irrelevant in making a showing of actual loss of majority sup-
port of the Union before withdrawing recognition.
On April 12, when the Medical Center withdrew recognition
of the Union, there was a showing that Shirley Mausser was a
supporter of the Union among the 34 RNs who signed the
showing of interest petition. Without her name, as found, the
petition would show, at most, only 33 nonsupporters of the
Union—less that 49 percent of the 68 RNs in the bargaining
unit.
I therefore find that there was no showing, as required in
Levitz, that the Union had actually lost the support of the major-
ity of the bargaining unit employees when the Medical Center
withdrew recognition of the Union on the April 12 expiration of
the union contract.
c. Alternative findings
Even if considered relevant in proving actual loss of union
support on April 12 when the Medical Center withdrew recog-
nition of the Union, the evidence presented at the trial on Sep-
tember 17–19 disproves the Medical Center’s contention that
there was an actual loss of majority support—that “there were
37 employees who did not support the Union as of the date of
recognition withdrawal.”
As indicated above, the Medical Center asserts in its brief (at
7) that 30 of the 32 RN witnesses who signed the petition dem-
onstrated that they did not support the Union on April 12. Three
of the 30, Jonnie Ousley (Tr. 389), Kimberley Preston (Tr.
357), and Carolyn Tackett (Tr. 284), however, credibly testified
as Medical Center witnesses on direct examination merely that
they did not want to be a union member, not that they did not
desire to be represented by the Union—thus, reducing the num-
ber from 30 to 27. CEO Warman admitted (Tr. 124) that he was
sure “an employee could support the Union and decide not to
become a member.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1414
Also in its brief (at 7), the Medical Center asserts that its
witness Kristal Bradley, as well as its four witnesses Tena
Hackney, Vicky Harmon, Tammie Ratliff, and Leslie Tucker
who also did not sign the petition, voiced nonsupport of the
Union on April 12 at the trial. Bradley, however, credibly testi-
fied on direct examination (Tr. 299–300) merely that she—like
Ousley, Preston, and Tackett—did not want to be a union mem-
ber, not that she did not desire to be represented by the Union.
If the remaining 4 nonsigners are added to the 27 petition sign-
ers, the total would be only 31.
In addition, the Medical Center asserts in its brief (at 8) that
two former RNs, Amanda Fraley and Arlene Gibson, who were
in the bargaining unit on April 12 but did not testify, had indi-
cated nonsupport of the Union by signing the petition (in Sep-
tember and October 2001 (R. Exh. 14 p. 1). The evidence,
however, does not reveal whether members of the decertifica-
tion committee told them, as they did Melissa Allen and Tracy
Wright, that the petition was for an election in which they could
vote for or against decertification of the Union. Only one of
those two witnesses, Allen (Tr. 309–310), voiced nonsupport of
the Union on April 12 at the trial. The other one, Wright (Tr.
441), had signed the petition only for a vote and voiced support
of the Union on April 12 at the trial.
Because the evidence does not reveal what Fraley and Gib-
son were told when they signed the petition or whether they
would have voiced support or nonsupport of the Union if they
had testified, I find that the Medical Center failed to prove at
the trial that they did not support the Union when it withdrew
recognition on April 12.
I therefore find that if (1) evidence of nonsupport presented
at the trial is considered relevant and if (2) testimony of the 31
RNs is assumed to be reliable—even though given after they
worked without union representation for over 5 months and
were being paid the large unilateral wage increase for nearly 4
months—the Medical Center failed to prove that the Union had
actually lost majority support of the bargaining unit RNs when
the Medical Center withdrew union recognition. The evidence
would show that a total of only 31 (not 37) of the RNs, about
46 percent of the 68 RNs in the bargaining unit, were nonsup-
porters of the Union on April 12.
2. Other reasons for withdrawing recognition
a. Position at the time and position at the trial
The documentary evidence shows that in both the Medical
Center’s and CEO Warman’s March 19 letters regarding with-
draw of recognition, the Medical Center relied solely on the
decertification committee’s March 11 letter and petition as the
basis for withdrawing recognition.
By the time of trial over 5 months after April 12, however,
Warman was prepared to give a number of other reasons for his
decision to withdraw recognition.
First testifying (Tr. 35) that he relied on “Multiple pieces of
paper,” Warman next listed the following 14 exhibits, besides
the decertification committee’s March 11 letter and petition:
(1) September 19, 2001 letter from the decertification
committee [R. Exh. 1], stating that a majority of the RNs
“do not want to be a part of this union.”
(2) January 2 cover letter to the Regional Office, at-
taching a RD-Decertification (Removal of Representative)
Petition for an election in the unit described in the Union’s
RN Agreement (effective November 14, 1999 through
6:59 a.m., April 12, 2002) and the 36-name showing of in-
terest for decertification petition [Tr. 36-37; GC Exh. 3 pp.
1, 60; R. Exh. 2].
(3) His own January 2 memo to the RNs, regarding
nurses asking the NLRB to conduct a secret ballot election
[Tr. 37-38; R. Exh. 3].
(4) His January 22 memo to the RNs, regarding the de-
certification petition [Tr. 39; R. Exh. 4].
(5) February 8 letter from the Regional Director, ex-
plaining the decertification petition being blocked [Tr. 39;
R. Exh. 5].
(6) His February 13 memo to all employees about the
election being blocked [Tr. 40; R. Exh. 6].
(7) RN Ilene Lewis’ February 15 cover letter, enclos-
ing a letter to a senator and congressman [Tr. 40; R. Exh.
7].
(8) February 15 R.N. Decertification Newsletter [Tr.
41; R. Exh. 8], complaining in part about the union wages.
(9) Lewis’ February 18 letter to Secretary Chao [Tr.
42; R. Exh. 9], complaining in part that “we are falling be-
hind the national average in pay.”
(10) February 21 Medical Center’s NLRB update, stat-
ing that it “understands the position of the NLRB [on the
blocking charges] and will make a good faith attempt to
settle the charges” [Tr. 43–44; R. Exh. 10].
(11) February 22 R.N. Decertification Newsletter [Tr.
44; R. Exh. 11], complaining in part about the union
wages.
(12) March 1 R.N. Decertification Newsletter [Tr. 44;
R. Exh. 12], regarding soliciting signatures on another pe-
tition.
(13) March 8 R.N. Decertification Newsletter [Tr. 45;
R. Exh. 13], regarding a “great RN shortage” and solicit-
ing signatures on another petition.
(14) March 15 R.N. Decertification Newsletter [Tr. 46;
R. Exh. 15], regarding wages.
Referring to the decertification committee’s March 11 letter
to him, with the attached 38-name petition (Tr. 45–46; R. Exh.
14), Warman testified (Tr. 47): “We understood, at that point in
time, that the Union did not enjoy a very strong membership”—
with 30 paying members (R. Exh. 16). As indicated, he later
testified (Tr. 124) that he was sure “an employee could support
the Union and decide not to become a member.”
Warman next mentioned hearsay about other RNs voicing
opposition to the Union. As discussed above, the Medical Cen-
ter’s counsel at the trial stated: “[I]t’s not offered to prove that
these people were opposed [to the Union]” (Tr. 200), “it proves
the rationale [emphasis added] for the decision that [Warman]
made” (Tr. 144-–45), and “Not offer[ed] it to prove the truth”
of he hearsay (Tr. 431–433).
When asked if he actually heard this information personally,
or if it was reported to him, he answered, “Both” (Tr. 49). He
next claimed (Tr. 49–50) that he “actually personally heard this
HIGHLANDS REGIONAL MEDICAL CENTER 1415
information” from a “variety of people” and then testified,
“One example would be Polly Parker.” He then admitted, “I
don’t recall if she told me personally.” After further question-
ing, Warman testified on direct examination (Tr. 52):
Q. You cannot recall or link any particular statement
with any particular individual, is that you testimony?
A. Yes.
Later, when specifically asked on direct examination why the
Medical Center withdrew recognition of the Union on April 12,
Warman testified (Tr. 108):
A. We believed that the Union had lost their majority
support in the RN unit.
Q. And that was a result of looking at and considering
what?
A. All of the information that we have reviewed, the
petitions that they filed, the fact that, you know, there was
a real need with any organization to have the issue of rep-
resentation addressed once and for all.
I do not credit Warman’s later testimony (Tr. 115) that in a
meeting with RN Tena Hackney, she “indicated to me that she
was unhappy with the Union.” To the contrary, Hackney testi-
fied (Tr. 296–297), “No, I’ve never talked to anybody from
management until the other night [a day or two before the
trial].” Warman admitted (Tr. 119–120) that there is no mention
of conversations (with RNs) in documents in evidence regard-
ing the withdrawal of recognition.
b. Contentions of the parties and findings
In its brief (at 5, 7), the Medical Center relies on hearsay tes-
timony, ignoring its counsel’s stating at the trial that “it’s not
offered to prove that these people were opposed [to the Union]”
(Tr. 200, 431–433).
The Medical Center also asserts in the brief (at 7) that
“Warman added that he considered that he spoke with Polly
Parker and Tena Hackney” and that “both of whom expressed
nonsupport of the Union”—ignoring the evidence cited above.
The Medical Center also contends in its brief (at 15) that the
clear language of the petition “justifies the addition of [petition
signers] Amanda Fraley and Arlene Gibson [who did not tes-
tify] to the total of nonsupporters of the Union.” To the con-
trary, as discussed above, its counsel admitted at the trial: “The
question is, what does that petition represent” (Tr. 147) and
“We had the petition, people signed it, what did it mean to
them” (Tr. 156). As found, it is clear that signatures on the
petition do not necessarily indicate nonsupport of the Union.
The General Counsel contends (brief at 7) that “it is the Gen-
eral Counsel’s contention that Warman’s testimony that he
relied on these other factors is simply not worthy of credit.
Respondent withdrew recognition for the reasons Warman
communicated to his employees and the Board—the March 11
petition and cover letter.”
I find that the 14 documents and other reasons Warman gave
for his decision to withdraw recognition do not show that the
Union had actually lost support of the majority of the bargain-
ing unit employees on April 12.
D. Concluding Findings
The documentary evidence clearly shows that in its letters on
March 19—when it informed the bargaining unit RNs that it
“intends to withdraw recognition of the Union” on the April 12
expiration of the union contract—the Medical Center planned
to eliminate the Union, even though it knew there was no show-
ing of actual loss of majority support of the Union, as required
by the Board’s decision in Levitz, 333 NLRB 717 at 713–715
(2001).
First, on March 19, the Medical Center was relying on a
showing of interest petition, not on an employee petition (as in
Levitz) stating that the employees no longer desired to be rep-
resented by the union. Months later at the trial it admitted that
the showing of interest petition does not “prove actual loss” of
majority support of the Union.
Second, it deliberately misled the RNs by falsely claiming in
its March 19 letters that all 38 of the nurses who signed the
petition (38 of 69) were currently in the bargaining unit, repre-
senting 55 percent of the current registered nurses. In fact, only
35 of the petition signers were then in the RN bargaining unit.
Third, it concealed from the RNs the fact that 1 of the 35 pe-
tition signers had joined the Union after signing the petition,
leaving at most only 34 RNs who may have indicated nonsup-
port of the Union by signing the showing of interest petition,
rather than merely seeking a vote on decertification. Even if all
34 of the petition signers were nonsupporters of the Union, they
represented only 49 percent—not 55 percent—of the 69 current
registered nurses on March 19.
Fourth, on April 12 when the union contract expired, the
number of RNs in the bargaining unit was reduced to 68. The
number of petition signers in the unit was reduced to 34, in-
cluding the RN who joined the Union after signing the petition.
Excluding this new member of the Union would leave, at most,
only 33 nonsupporters, less than 49 percent of the 68 RNs.
Fifth, on April 12—while claiming that it had a “good faith
belief” the majority of RNs “no longer desire representation” of
the Union and claiming it “is developing a settlement offer that
would resolve the [blocking] charges and allow the election to
move forward”—the Medical Center proceeded with its plan to
eliminate the Union by withdrawing recognition of the Union.
This prevented the election, sought by the decertification com-
mittee, so that “all parties involved will know what the majority
of RNs want.”
Then, effective May 26, while it was refusing to bargain with
the Union, the Medical Center unilaterally granted a $2.60-pay
raise to all employees in the staff RN position, to a maximum
$25.35 rate. This raised the starting rate from $13.20 to
$15.80—about a 20 percent (exactly a 19.69 percent) wage
increase.
I find that the Medical Center unlawfully withdrew recogni-
tion of the Union on April 12 and unilaterally granted the wage
increase to all the bargaining unit RNs effective May 26, refus-
ing to bargain in violation of Section 8(a)(1) and (5) of the Act.
E. Required Remedy
This case represents a deliberate violation of the Board’s de-
cision in Levitz, adopting a more stringent standard for unilater-
ally withdrawing recognition from an incumbent union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1416
In that case, the Board ruled that “employers should not be
allowed to withdraw recognition merely because they harbor
uncertainty or even disbelief concerning unions’ majority
status” and held that “an employer may unilaterally withdraw
recognition from an incumbent union only where the union has
actually lost the support of the majority of the bargaining unit
employees.” The Board repeatedly indicated that there must be
a showing of actual loss of majority support before the em-
ployer may lawfully withdraw recognition.
Here, as found, the Medical Center knew there was no show-
ing of actual loss of majority support when it withdrew recogni-
tion of the Union on April 12, claiming that it had a “good faith
belief” the majority of RNs no longer desire representation by
the Union.
As shown in the Medical Center’s own exhibits, there was at
the time a “great RN shortage” and the decertification commit-
tee’s principal complaint against union representation was that
“we are falling behind the national average in pay.”
By canceling the bargaining session scheduled for March 20
(the day after it announced its intention to withdraw recognition
on April 12), the Medical Center avoided making any wage
offer in negotiations with the Union. Then after unlawfully
eliminating the Union, the Medical Center granted the large
wage increase, a benefit about which the RNs were primarily
concerned.
Particularly under these circumstances, I find it obvious that
more than a simple bargaining order is required to restore some
semblance of the status quo on April 12. At that time, the Un-
ion was an active representative of the RNs at the facility, sup-
ported by an apparent majority of the RNs in the bargaining
unit, and prepared to engage in negotiations under the prevail-
ing conditions.
During the months since then, after the Medical Center
unlawfully withdrew recognition of the Union and the union
contract expired without any negotiations, the Union has been
without its contractual visitation privileges (GC Exh. 3 p. 28),
without any access to the RNs in the bargaining unit at the fa-
cility, and would be faced in negotiations with conditions far
different from those that existed on April 12 when recognition
was withdrawn.
For the employees in the bargaining unit to have the status of
their union representation restored, the Union must be provided
the opportunity to reestablish its majority support among the
bargaining RNs to make a bargaining order meaningful.
I find that the remedial order must include not only a bar-
gaining order but also, for a period of 6 months (1) an order
requiring the Medical Center to permit the Union to post union
notices on employee bulletin boards in the facility and (2) an
order requiring that it provide the Union with up-to-date lists of
bargaining unit RNs, with their current addresses, for the Union
to correspond with them, as well as (3) an order requiring it to
rescind, upon the Union’s request, any unilateral change in
benefits and conditions of employment since the withdrawal of
recognition.
I find that without such a remedial order, the Medical Center
would be granted immunity for its unlawful elimination of the
Union.
CONCLUSIONS OF LAW
1. By withdrawing recognition of and refusing to bargain
with the Union on April 12, 2002, as the exclusive collective-
bargaining representative of the registered nurses in the con-
tractual bargaining unit, the Medical Center has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
2. By unilaterally increasing the wages for employees in the
bargaining unit, effective May 26, 2002, without affording the
Union an opportunity to bargain, the Medical Center violated
Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Medical Center, the Respondent, has
engaged in certain unfair labor practices, I find that it must be
ordered to cease and desist and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]