Mercy Hospital Mercy Southwest Hospital

National Labor Relations Board - Board Decisions

Nov 20, 2002

338 N.L.R.B. 545 (N.L.R.B. 2002)

MERCY HOSPITAL MERCY SOUTHWEST HOSPITAL 545
Mercy Hospital Mercy Southwest Hospital and Cali-
fornia Nurses’ Associations

Mercy Hospital Mercy Southwest Hospital and SEIU
Nurse Alliance Local 535 and California Nurses’
Association. Cases 31–CA–25139 and 31–RC–
7993
November 20, 2002
DECISION, ORDER, AND DIRECTION
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
This case involves the issue of whether the Respon-
dent’s implementation of wage increases, or the timing
of their announcement or implementation, granted to its
registered nurses who were the subject of organizing
drives by two competing labor organizations, violates the
Act or constitutes election misconduct sufficient to set
aside the May 30–31, 2001 election.1 We agree with the
judge’s conclusion that because there is sufficient evi-
dence that the Respondent had been planning, in advance
of the union activity, to implement a system-wide wage
survey and corresponding adjustments to the nurses’
salaries as a result of its recruitment and retention prob-
lems, the wage increase itself does not violate Section
8(a)(3) of the Act. However, we further agree with the
judge, for the reasons set forth below, that the timing of
the Respondent’s announcements of the nurses’ wage
increases during the critical period violates Section
8(a)(1) of the Act and constitutes election misconduct.2
In determining whether a grant of benefits during an
election campaign violates the Act, the Board has held

1 On November 19, 2001, Administrative Law Judge Lana H. Parke
issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel filed cross-exceptions and a
combined supporting brief and brief in opposition to the Respondent’s
exceptions, and the Charging Party/Intervenor filed cross-exceptions
and a combined supporting brief and answering brief to the Respon-
dent’s exceptions.
The National Labor Relations Board has considered the decision and
record in light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions as modified above, and to
adopt the recommended Order.
The Respondent and the Charging Party/Intervenor have excepted to
some of the judge’s credibility findings. 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 exam-
ined the record and find no basis for reversing the findings.
We shall substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket America, 337 NLRB 175 (2001).
2 The complaint alleges that the Respondent discriminated against
employees in order to discourage their union activities, in violation of
Sec. 8(a)(1) and (3) of the Act. It did not independently allege that the
Respondent interfered with, restrained, or coerced them in the exercise
of Sec. 7 rights, in violation of Sec. 8(a)(1). However, no party filed
exceptions to the judge’s finding of an independent 8(a)(1) violation.
that such conduct “is not per se unlawful where the em-
ployer can show that its actions were governed by factors
other than the pending election. . . . [A]n employer can
meet this burden by showing that the benefits granted
were part of an already established company policy and
the employer did not deviate from that policy upon the
advent of the Union.” American Sunroof Corp., 248
NLRB 748 (1980), modified on other grounds 667 F.2d
20 (6th Cir. 1981). Similarly, an employer cannot time
the announcement of the benefit in order to discourage
union support, and the Board may separately scrutinize
the timing of the benefit announcement to determine its
lawfulness. See, e.g., Capitol EMI Music, 311 NLRB
997, 1012 fn. 4 (1993), enfd. 23 F.3d 399 (4th Cir. 1994).
The standard for determining whether the timing of bene-
fit announcement during the critical period is unlawful is
essentially the same as the standard for determining
whether the grant of benefit itself violates the Act. Ac-
cordingly, “[t]he Board will infer that an announcement
or grant of benefits during the critical period is coercive,
but the employer may rebut the inference by establishing
an explanation other than the pending election for the
timing of the announcement or bestowal of the benefit.”
STAR, Inc., 337 NLRB 962, 962 (2002).
In this case, the timing of the Respondent’s April 18
and May 24, 2001 announcements occurred during the
critical period, and thus, raises an inference of coercive
conduct.3 In order to overcome this evidentiary infer-
ence, the Respondent has the burden of “establishing an
explanation other than the pending election” for the tim-
ing of its benefit announcements. To this end, the Re-
spondent produced only one witness, Sheri Comaianni,
its human relations advisor. Comaianni testified that she
participated in developing and implementing a wage sur-
vey for the nurses and a corresponding salary adjustment
based on that survey. However, when asked by the Gen-
eral Counsel whether she “participate[d] in the decision
as to when the increases—as to the timing of the an-
nouncement of the increases,” Comaianni replied, “No, I
did not.” Asked a second time, “Did you participate in
the decision of the timing of the granting of the in-
creases?” Comaianni again replied, “No, I did not.” As a
result, the Respondent’s sole witness, who was called to
rebut the established inference that the timing of the
April 18 and May 24, 2001 announcements were coer-
3 The amended complaint alleges that the Respondent’s April 18 and
May 24, 2001 announcements violated the Act. The judge found that
the Respondent’s March 21 and May 24, 2001 announcements violate
the Act. We do not base our finding of unlawful conduct on the Re-
spondent’s March 21, 2001 announcement because this announcement
was not alleged as a violation in the complaint, it occurred before the
petition was filed on April 10, 2001, and, ultimately, it is not necessary
to rely on it for the disposition of this case.
338 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546
cive, was completely unqualified to testify about the rea-
sons the announcements were timed as they were. Re-
spondent elicited no further testimonial or documentary
evidence to carry its burden to show that the timing of
the announcements was for reasons “other than the pend-
ing election.”4 Therefore, we conclude that the Respon-
dent’s April 18 and May 24, 2001 announcements vio-
lated Section 8(a)(1) of the Act.5 In so finding, we fur-
ther conclude that the Respondent engaged in objection-
able conduct warranting setting aside the election in the
event that the revised tally of ballots shows that there is
not a majority vote in favor of Petitioner SEIU Nurse
Alliance Local 535.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mercy Hospital Mercy
Southwest Hospital, Bakersfield, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
IT IS FURTHER ORDERED that Case 31–RC–7993 is sev-
ered and remanded to the Regional Director for Region
31 for further appropriate action consistent with this De-
cision.

4 We also find it significant that the Respondent’s May 24, 2001 an-
nouncement was directed solely to the two facilities at which there was
union activity, and no announcement was made at the facilities not the
subject of the unions’ campaigns, even though the announced increases
were equally applicable to the nurses at those facilities as well. Such
targeted announcements underscore the inference that the May 24 an-
nouncement was related to the union activity.
5 In finding this violation, Members Bartlett and Cowen do not rely
on K-Mart Corp., 336 NLRB 455 (2001).
6 If the revised tally of ballots shows that the election results are in-
conclusive and no ballot selection is favored by a majority of the vot-
ers, a rerun election shall be conducted. See Cook Family Foods, 317
NLRB 1137 fn. 3 (1995) (the Board will order rerun rather than runoff
election where two unions have competed, the results were inconclu-
sive, and the Board has found the Employer engaged in objectionable
conduct).
If the revised tally of ballots favors the Petitioner, the Board will
certify the representative. As stated in Showell Poultry Co., 105 NLRB
580 (1953), in an election involving two competing unions in which
one union has won the election decisively, the election will not be set
aside because of employer conduct equally affecting both unions. See
also Randall Rents of Indiana, 327 NLRB 867, 868 (1999) (the Board
declined to set aside two-union election where employer issued unusu-
ally large bonuses to unit employees during the critical period); Flat
River Glass Co., 234 NLRB 1307 (1978) (the Board declined to set
aside two-union election where employer maintained invalid no-
solicitation rule). In the absence of evidence that the Employer’s mis-
conduct disparately impacted the competing unions, the Board will
presume that the objectionable conduct had equal effect on both unions,
and the prevailing union will be certified.
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
violated 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 announce wage adjustments in a manner
to influence the outcome of any union election.
WE WILL NOT implement wage adjustments in a manner
to influence the outcome of any union election.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

MERCY HOSPITAL MERCY SOUTHWEST HOSPITAL

Ann Weinman, Esq., for the General Counsel.
Mary P. Palmer, Esq., of Newport Beach, California, for the
Respondent.
Jane Lawhon, Esq., of Oakland, California, for the Interve-
nor/Charging party.
James Rutkowskey, Esq., of Los Angeles, California, for the
Petitioner.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. Pursuant to a
petition for election filed on April 10, 2001,1 Region 31 con-
ducted a union representation election among Respondent’s
employees on May 30 and 31 in which California Nurses’ As-
sociation (Intervenor/Charging Party) and SEIU Nurse Alliance
Local 535 (Petitioner) appeared as competing labor organiza-
tions. Challenged ballots were sufficient in number to affect
the results of the election.2 On June 7, Intervenor/Charging
Party filed timely objections to conduct affecting the results of
the election (objections). Intervenor/Charging Party filed initial
and first amended unfair labor practice charges on June 29 and
1 All dates are in 2001 unless otherwise indicated.
2 At the hearing, the parties resolved the challenged ballots by stipu-
lation as follows: challenges were sustained as to the ballots of Stepha-
nie Eyherabid, Brenda Heideman, Cynthia Morlane, Cindy Relyea,
Joann Seaton, and Cindy Frey. Challenges were overruled as to the
ballots of Dianne Fuller, Erlinda Nitro, and Joanne Burris. Therefore,
no issue exists as to challenged ballots.
MERCY HOSPITAL MERCY SOUTHWEST HOSPITAL 547
July 24, respectively. The complaint issued August 9, and the
supplemental decision on objections and challenges and order
consolidating cases issued September 7, consolidating Case 31–
RC–7993 with Case 31–CA–25139. The consolidated cases
were tried in Los Angeles, California, on October 2. The com-
plaint, as amended at the hearing alleges: (1) that Mercy Hospi-
tal and Mercy Southwest Hospital (Respondent or Mercy) on
April 18, announced and on May 13 implemented a registered
nurse compensation plan (the plan) for registered nurses (RNs)
that increased their wages in various respects; (2) that Respon-
dent on May 24, announced and on May 27, implemented a
weekend differential for RNs and an increase in the casual rate
of pay; (3) that Respondent’s conduct was intended to discour-
age employees from engaging in protected activity and, thus,
violated Section 8(a)(1) and (3) of the Act. Interve-
nor/Charging Party bases its objections on the same conduct.
Issues
1. Did Respondent, by announcing and implementing the
plan for RNs, discourage employees from engaging in protected
activity and thereby violate Section 8(a)(1) and (3) of the Act?
2. Did Respondent, by announcing and implementing a
weekend wage differential and a casual per diem increase for
RNs discourage employees from engaging in protected activity
and thereby violate Section 8(a)(1) and (3) of the Act?
3. Did Respondent, by the conduct set forth above, interfere
with the election?
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, is engaged in the
operation of hospitals and provides inpatient and outpatient
medical care at facilities in Bakersfield, California. In the 12-
month period preceding the complaint, Respondent derived
gross revenues in excess of $250,000 and purchased and re-
ceived at its Bakersfield, California hospitals products, goods,
and materials valued in excess of $5000 directly from enter-
prises located outside the State of California. Respondent ad-
mits, 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
that Petitioner and Intervenor/Charging Party are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Credible Evidence
Where not otherwise noted, the facts herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged
credible evidence.3 There is little dispute regarding the events.
Respondent operates four hospitals. Bakersfield Memorial,
Memorial Center, and Mercy Westside are separate facilities.
Mercy Truxton/Mercy Southwest are two campuses of the same
facility (Mercy), employing approximately 254 RNs. The four
hospitals are operated under a parent company, Catholic Health

3 I grant the General Counsel’s motion to correct the transcript as the
context and my notes support the proposed changes. I make no finding
that the transcript is free of other errors. The motion to correct is
hereby made a part of the record.
Care West. Intervenor/Charging Party has a Section 9(a) rela-
tionship and collective-bargaining agreement with Bakersfield
Memorial. No union represents RNs at Mercy Westside or
Memorial Center. By at least February, union organizational
campaigns had commenced at Mercy.
For more than a year prior to the election, Respondent con-
sidered changing its compensation plan for RNs in order to
address RN recruitment and retention problems. In January or
February, Supervisor Jill Haley told RNs employed at theTrux-
ton campus that Respondent was considering increases in RN
salaries as part of its recruitment and retention program. Prior
to March, Respondent held town hall meetings of unit employ-
ees during which management representatives told RNs that
Respondent was planning salary adjustments. On March 20,
Chuck Van Sluyter (Van Sluyter), Respondent’s interim presi-
dent, held an employee meeting where he discussed a market
adjustment to RN wages. The following day, Van Sluyter is-
sued a memorandum to all Mercy RNs stating that he had mis-
takenly told employees at the meeting that Respondent could
not give wage increases after a union had demonstrated a 30
percent showing of interest. In correction, he stated:

Because the hospital has been planning a market ad-
justment for some time, and has announced this to the staff
prior to receiving any mention of formal notice from a un-
ion, the hospital may proceed to make the adjustment.
The hospital is still committed to making a market ad-
justment so that we can continue to attract and retain
qualified nursing staff. It is my hope that we will be able
to make this adjustment no later than the end of April.
This adjustment is not intended in any way to influence an
employee’s decision to be represented by a third party.
However, I also want to make it clear that Catholic
Healthcare West prefers to maintain a direct working rela-
tionship with all of its employees.4

At the end of March, beginning of April, Respondent drafted
a registered nurse compensation plan (the plan) to cover RNs in
all its hospitals except Bakersfield Memorial, the facility repre-
sented by Intervenor/Charging Party. By that time, Respondent
was well aware of union activity among the Mercy unit em-
ployees. On April 10, Petitioner filed a petition for election in
a unit of Respondent’s employees at Mercy. 5
On April 18, Respondent announced the plan to its Mercy
RNs, the increases to be effective May 13. The plan included a
4 It is clear from the content of this email that Respondent was aware
the Union had obtained a showing of interest among unit employees
and that the filing of a representation petition was imminent.
5 The May 4 Decision and Direction of Election found the following
unit to be appropriate:
INCLUDED: All full time and regular part time Registered
Nurses (“RNs”) employed in positions requiring an RN license
who are employed at the Employer’s facilities at 2215 Truxtun
Avenue and 400 Old River Road in Bakersfield, California.
EXCLUDED: Home health nurses, all other employees, guards
and supervisors as defined in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 548
2-percent market adjustment for all RNs, a 5-percent longevity
increase, an equity increase, and a 2-percent BSN differential. 6
On May 18, Respondent and Intervenor/Charging Party en-
tered into a Memorandum of Agreement to modify the collec-
tive-bargaining agreement covering Bakersfield Memorial to
increase RN wages. The agreement provided that if Interve-
nor/Charging Party were certified as the representative of
Mercy unit employees, the Mercy unit would be accreted to and
become a part of the parties’ existing agreement.
On May 24, Respondent announced a 10-percent weekend
differential for RNs and an increase of the casual pay rate from
$22.50 to $28 per hour to be effective May 27. No such notice
was given to Mercy Westside and Mercy Hospital where no
union elections were pending.
B. Positions of the Parties
The General Counsel and Intervenor/Charging Party contend
that Respondent granted salary increases to unit employees to
influence them to vote against union representation in violation
of Section 8(a)(1) and (3) of the Act. Intervenor/Charging
Party further argues that Respondent’s conduct requires the
holding of a second representation election. Petitioner and
Respondent maintain that no violations of the Act or objection-
able conduct occurred. Petitioner further argues that even if
unlawful conduct occurred, the conduct impacted both unions
equally and Intervenor/Charging Party, having lost the election
by a large margin, should not be able to obtain a rerun election.
C. Discussion of Alleged Unfair Labor Practices
The Board particularly scrutinizes wage increases given dur-
ing a preelection period as they have “a potential long-lasting
effect, not only because of their significance to employees, but
also . . . because the increases regularly appear in paychecks
[as] a continuing reminder.” Holly Farms, Corp., 311 NLRB
273, 281–282 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995).
While a wage increase during an organizational campaign is
suspect, it is not presumptively unlawful. Rather, in determin-
ing whether a grant of benefits during a union organizing cam-
paign is unlawful, the Board looks at all the evidence presented
and draws inferences of unlawful motivation and interference
with protected rights. Holly Farms, above at 274. The Board
allows an employer to rebut the inference by “coming forward
with an explanation, other than a pending election, for the tim-
ing of the grant or announcement of such benefits [citations
omitted].” Lampi, L.L.C., 322 NLRB 502 (1996), followed in
Noah’s Bay Area Bagels, 331 NLRB 188 (2000).
The Board uses the same standard in unfair labor practice
cases for determining unlawfulness of wage increases as it does
for deciding whether the grant of benefits during the critical
preelection period is objectionable conduct:

The critical inquiry is whether the benefits were granted for
the purpose of influencing the employees’ vote in the election
and were of a type reasonably calculated to have that effect.
As a general rule, an employer’s legal duty in deciding
whether to grant benefits while a representation proceeding is

6 All RNs received the market adjustment, half received the equity
increase, and fewer than 30 received the longevity increase.
pending is to decide that question precisely as it would if the
union were not on the scene. In determining whether a grant
of benefits is objectionable, the Board has drawn the inference
that benefits granted during the critical period are coercive,
but it has allowed the employer to rebut the inference by com-
ing forward with an explanation, other than a pending elec-
tion, for the timing of the grant or announcement of such
benefits [citations omitted]. United Airlines Services Corp.,
290 NLRB 954 (1988).

General Counsel has shown that discretionary wage adjust-
ments occurred during the union organizing campaign warrant-
ing a presumption of unlawful effects. Respondent bears the
rebuttal burden to show that its purpose was not to influence
employees’ representation vote. Southgate Village, Inc., 319
NLRB 916 (1995); Hawkins Lumber Co., 316 NLRB 837
(1995); Kauai Coconut Beach Resort, 317 NLRB 996 (1995).
Here, uncontroverted (though unspecific and somewhat vague)
evidence established that Respondent suffered recruitment and
retention problems among its RNs because their wage scales
were not at market comparability. That is a legitimate business
reason for adjusting wages that is unrelated to union activity.
Royal Manor Convalescent Hospital, 322 NLRB 354 (1996).
Evidence was also adduced that Respondent had been consider-
ing wage adjustments for RNs prior to its employees’ union
organizational activities, that employees were generally aware
of Respondent’s plans and queried supervisors about them.
There is no evidence that the wage adjustments subsequently
made were motivated by antiunion animus. In fact, Respondent
has a collective-bargaining agreement with Intervenor/Charging
Party covering one of its facilities and agreed that if Interve-
nor/Charging Party were certified as the representative of
Mercy unit employees, the existing agreement would apply to
the Mercy unit. The wage adjustments occurred in an atmos-
phere free of threats or other coercive conduct by Respondent.
I find, therefore, that the wage adjustments would ultimately
have been made even if no union were on the scene, and that
Respondent’s adjustment of RN wages was not itself a violation
of Section 8(a)(1) and (3) of the Act. See Home Health, Inc.,
334 NLRB 279 (2001).
The conclusion that Respondent did not violate the act by ad-
justing RN wages is not, however, dispositive of all the issues.
While an employer may not have violated Section 8(a)(3) of the
Act by granting nondiscriminatorily planned wage increases, its
announcement and effectuation timing may violate 8(a)(1).
“[I]t is well established that an employer cannot time the an-
nouncement of increased benefits to dissuade employees from
supporting the union. [Citation omitted.]” K-Mart Corp., supra
at 457. Such an announcement “becomes perilous . . . when the
employer has, and exercises, discretion in choosing the time for
the announcement; timing may not be manipulated to heighten
the impact of a new benefit, a subject to which employees are
keenly sensitive.” Waste Management of Palm Beach, 329
NLRB 198, 199 fn. 4 (1999). Respondent bears the burden of
showing that the announcement would have been made at the
same time even if there had been no union activity, K-Mart
Corp., supra at 457, and it follows that the same rule applies to
the effectuation timing. Respondent has not met that burden.
MERCY HOSPITAL MERCY SOUTHWEST HOSPITAL 549
The only evidence regarding Respondent’s preorganizational
intention to raise wages consisted of testimony that Respondent
was experiencing employee recruitment and retention prob-
lems, that some kind of comparability study was conducted,
and that Respondent had discussed changing its compensation
plan for RNs with both management and employees. After
union activity commenced early in the year, Respondent was
still in the consideration stage of wage adjustment planning. It
was only after Respondent was well aware of Petitioner’s
standing to file a representation petition that its plans for wage
adjustments crystallized. Even then, Respondent had not, ap-
parently, resolved the details of the adjustment. Without hav-
ing finalized wage adjustment details or amounts, Respondent
announced its intended wage adjustment plans. Both the pre-
mature announcement and the method of announcement justify
an inference that the timing of the announcement was related to
union activity. Thus, the initial announcement came in a March
21 e-mail in which Respondent also stated clearly its preference
for maintaining a direct (nonunion) working relationship with
its employees. Moreover, a more detailed announcement made
a month later and very shortly before the election was made
only to employees at Mercy, the only facility facing a union
election. The timing of the wage adjustment effectuation, com-
ing shortly before the election, also justifies an inference that
the timing of the effectuation was related to union activity.
While an employer has the right to enumerate its benefits dur-
ing a union campaign, it may not manipulate announcement (or
effectuation) timing to heighten the impact of a new benefit.
Speco Corp., 298 NLRB 439, 443 (1990); see American Sun-
roof Corp., 248 NLRB 748 (1980), modified on other grounds
667 F.2d 20 (6th Cir. 1981), where announcement of a pension
plan was not unlawful as the employer announced the benefit
when, in the normal course of business, the plan was finalized
and would have done so even if there had been no union activ-
ity.
Here, at the time of the initial announcement, Respondent
apparently had not determined the amount or form of any wage
adjustment. Its rush to advise employees of the anticipated
change before any definite decisions were made suggests an
unlawful motivation. The fact that the announcement was
made more than 2 months prior to the election does not vitiate
its unlawfulness or impact. The promise of a future wage ad-
justment coupled with Respondent’s stated preference for re-
maining nonunion would reasonably cause employees to be-
lieve the announcement and any forthcoming adjustment were
designed to influence their vote in the union election. As the
Board recognized in Holly Farms, Corp., above, the an-
nouncement of a future wage adjustment would have a long-
lasting effect as anticipation of the wage adjustments would be
an ongoing reminder. Finally, the fact that the wage adjust-
ments themselves were not motivated by a desire to influence
employees to vote against the Union does not affect these con-
clusions. The Board has held that a finding that a raise was
lawfully granted is not inconsistent with a further finding that
the announcement of the wage increase violated the Act. K-
Mart Corp., supra at fn. 6. It follows that the timing of the
effectuation of the wage adjustments also violates the Act.
Although the evidence shows that Respondent would have
made the wage adjustments at some point, Respondent has
made no showing as to why it timed effectuation of the adjust-
ments to occur shortly before the election. Therefore, Respon-
dent has not met its rebuttal burden. Accordingly, I find that
Respondent violated Section 8(a)(1) of the Act by its March 21
and May 24 announcements of wage adjustments for RNs and
by its May 13 and May 27 effectuation of those wage adjust-
ments.
III. OBJECTIONS TO CONDUCT AFFECTING RESULTS
OF ELECTION
Following the election, the tally of ballots recorded that 216
persons cast ballots: 103 in favor of Petitioner, 49 in favor of
Intervenor/Charging Party, and 55 against either labor organi-
zation. Nine ballots were challenged. By the parties’ stipula-
tions, six of the challenges are sustained and three overruled.
Pursuant to the parties’ stipulations on challenged ballots, the
number of valid votes cast is 210. The Petitioner, with 103
counted votes in its favor, has not received a majority of the
valid votes, but may do so when the three formerly challenged
ballots are opened and counted. Having received only 49 votes,
the status of Intervenor/Charging Party will be unaffected by
the additional vote count.

Intervenor/Charging Party filed timely objections to the elec-
tion that essentially parallel the complaint allegations. As set
forth above regarding the unfair labor practice allegations, I
have found that Respondent, by its timing of wage adjustment
announcement and implementation, violated Section 8(a)(1) of
the Act. A finding of an unfair labor practice does not, per se,
require nullification of an election. Recycle America, 310
NLRB 629 (1993). However, the grant of a wage increase
during the pendency of an election constitutes both an unfair
labor practice and objectionable conduct. Lampi, L.L.C.,
above. An announcement of wage increases and manipulated
effectuation of wage increases can reasonably be expected to
have the same effect on employees as a wage increase, and I
find, Respondent’s unlawful actions herein constitute both un-
fair labor practices and objectionable conduct.
It is true that the initial announcement of wage adjustments
herein was made prepetition. The Board has consistently held
that the critical period during which preelection conduct will be
examined commences with the filing of the petition. Ideal
Electric Co., 134 NLRB 1275 (1961), and progeny. However,
the Board will also consider prepetition conduct that is directly
related to postpetition conduct. National League of Profes-
sional Baseball Clubs, 330 NLRB 670 (2000). Here the initial
unlawful announcement of wage adjustments was an integral
part of Respondent’s wage adjustment implementation and was
followed up by later announcements and by effectuation shortly
before the election. From the first announcement, the effect of
announcement and implementation timing was ongoing as unit
employees anticipated future wage adjustments. See Holly
Farms, Corp., above. Made to a large portion, if not all, of the
unit RNs, it is reasonable to assume that the prepetition an-
nouncement left a coercive aroma redolent during the entire
election process. Both the announcements and the implementa-
tion of wage adjustments could reasonably be expected to affect
the results of the election. Therefore, I find that the timing of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550
announcements and implementations of wage adjustments con-
stitutes grounds for setting aside the election.
Petitioner argues that, on equitable considerations, the elec-
tion should not be set aside. Petitioner points out that as Inter-
venor/Charging Party placed last among the three ballot
choices, it would not appear on the ballot in any runoff election
and would only receive another shot at representation if the
election were rerun.7 Petitioner asks that if, upon opening the
three remaining determinative challenges, the tally of ballots
shows that Petitioner did not receive a majority of the valid
votes counted, a runoff—rather than a rerun—election be held
in which Intervenor/Charging Party would not participate.
It is true that in spite of Respondent’s conduct, employee
support for Petitioner substantially outstripped that for Interve-
nor/Charging Party or against any labor organization. There is
no evidence or permissible inference that Respondent’s conduct
caused or was likely to cause employees to favor Petitioner
over Intervenor/Charging Party. Indeed, by agreeing to accrete
the petitioned-for unit into Respondent’s existing agreement
with Intervenor/Charging Party, any inferential preference
would appear to accrue to Intervenor/Charging Party’s benefit.
Petitioner engaged in no objectionable conduct. To permit a
rerun election when Petitioner may have won the election even
in the face of Respondent’s objectionable conduct is unneces-
sary and unfair to Petitioner. The Board has held that if a union
has won an election despite an employer’s unlawful conduct,
“the election results are entitled to stand as against a mechani-
cal insistence on the normal ‘laboratory conditions.’ Any other
result would permit the [e]mployer to benefit from its unlawful
conduct and provide it with another opportunity to defeat the
[u]nion. [Citations omitted].” Axelson, Inc., 263 NLRB 77, 78
(1982). See also Randall Rents of Indiana, 327 NLRB 867
(1999); Empresas Inabon, Inc., 309 NLRB 291 (1992); Nestle
Co., 248 NLRB 732 (1980). Therefore, should Petitioner re-
ceive a majority of votes after the determinative challenges are
counted, I recommend that the Regional Director issue the ap-
propriate certification of representative.
Petitioner also seeks to prevent a rerun election in the event
it loses the election, citing a number of cases, including Axel-
son, Inc., above, Swingline Co., 256 NLRB 704 (1981); Nestle
Co., above, and Packerland Packing Co., 185 NLRB 653
(1970). The cases do not, however, support Petitioner’s posi-
tion that only a runoff—and not a rerun—election should be
held if Petitioner does not obtain a majority of valid votes when
the determinative challenges are counted. In each of the cited
cases, the union won the election over which objections were
filed. Petitioner has not cited any authority where, following
objectionable employer conduct, only a runoff election was
conducted. Indeed, the Board, in Cook Family Foods, Ltd., 317
NLRB 1137 (1995), demonstrated a clear disinclination for
such a proceeding even where one union dramatically out-
stripped the other. In setting aside the results of the first elec-

7 NLRB Rules and Regulations Sec. 102.70 provides that where no
choice in a three-choice union election received a majority of the valid
ballots cast and no objections are filed, the ballot in any runoff election
shall provide for a selection between the two choices receiving the
largest and second largest number of votes.
tion and directing that a second election be held, the Board
said:

In light of the unfair labor practices set forth above . . . which
the Board has . . . found constituted objectionable conduct, we
find no merit to the contention that a runoff election should be
held based on the revised tally of ballots of the first election,
which indicate that the results of the first election were incon-
clusive. To the contrary, the Board’s prior findings establish
that the first election did not fairly indicate the desires of em-
ployees concerning representation. Accordingly, we shall di-
rect a rerun election.

Id at fn. 3.
I find, therefore, that the ballots of Diane Fuller, Erlinda Ni-
tro, and Joanne Burris, shall be opened and counted and that a
revised tally of ballots be issued. If the revised tally shows that
Petitioner received a majority of the valid ballots cast in the
election, the Regional Director shall issue a certification of
representative. In the event the Petitioner fails to receive a
majority of the valid ballots cast, the election shall be set aside
and a new election conducted. See High Energy Corp., 259
NLRB 747 (1981).
Accordingly, I recommend that Case 31–RC–7993 be re-
manded to the Regional Director for appropriate action.
CONCLUSIONS OF LAW
1. By announcing its intention to implement wage adjust-
ments for RNs, Respondent violated Section 8(a)(1) of the Act.
2. By its timing of wage adjustment implementation for
RNs, Respondent violated Section 8(a)(1) of the Act.
3. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
4. The Employer has not otherwise violated the Act.
5. By the conduct set forth in paragraphs 1 and 2 above, Re-
spondent has interfered with the representation election con-
ducted in Case 31–RC–7993.
REMEDY—UNFAIR LABOR PRACTICE CASE
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
REMEDY—REPRESENTATION CASE
Case 31–RC–7993 is severed and remanded to the Regional
Director for Region 31 for the purpose of opening and counting
the ballots cast in the election by Diane Fuller, Erlinda Nitro,
and Joanne Burris. If the revised tally of ballots shows that
Petitioner received a majority of the valid ballots cast in the
election, the Regional Director shall issue a Certification of
Representative certifying Petitioner as the representative of the
appropriate unit.
In the event the revised tally of ballots shows that Petitioner
failed to receive a majority of the valid ballots cast, I recom-
mend that the election be set aside and that the Regional Direc-
tor for Region 31 conduct a second election.
MERCY HOSPITAL MERCY SOUTHWEST HOSPITAL 551
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, Mercy Hospital and Mercy Southwest
Hospital, Bakersfield, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Announcing its intention to implement wage adjustments
for employees in order to dissuade employees from selecting a
union as their collective-bargaining representative.
(b) Timing the implementation of wage adjustments for em-
ployees so as to dissuade employees from selecting a union as
their collective-bargaining representative.
(c) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its
Mercy Hospital and Mercy Southwest Hospital campuses in
Bakersfield, California, copies of the attached notice marked

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
“Appendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facilities involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at Mercy Hospital and Mercy Southwest Hospital
at any time since March 21, 2001.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
9
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.”