The Permanente Medical Group, Inc. and Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

Jul 25, 2012

358 N.L.R.B. 758 (N.L.R.B. 2012)

758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 88
The Permanente Medical Group, Inc., and Kaiser
Foundation Hospitals and National Union of
Healthcare Workers and SEIU-UHW (Service
Employees International Union, United
Healthcare Workers—West). Case 32–RC–
005774
July 25, 2012
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held between October 18 and November 8, 2010,1 and
the administrative law judge’s report recommending dis-
position of them. The election was conducted pursuant
to a Decision and Direction of Election. The tally of
ballots shows 139 votes for Petitioner National Union of
Healthcare Workers (NUHW), 148 votes for Intervenor
SEIU-UHW, 2 votes against representation, 4 void bal-
lots, and 3 challenged ballots, an insufficient number to
affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the administrative law
judge’s findings and recommendations only to the extent
consistent with this Decision, and finds that a certifica-
tion of representative should be issued.2
I. BACKGROUND
This case arises from NUHW’s objections to a repre-
sentation election held for a unit of medical social work-
ers (MSWs) employed by the Employers in Northern

1 The judge inadvertently stated in her report that the critical period
ended on October 4. See, e.g., Cedars-Sinai Medical Center, 342
NLRB 596, 598 fn. 13 (2004) (“As a general rule, the period during
which the Board will consider conduct as objectionable (i.e., the ‘criti-
cal period’) is the period between the filing of the petition and the date
of the election.”).
Unless otherwise stated, all dates refer to 2010.
2 NUHW filed 71 objections to this election. The Regional Director
sent Objections 1 (first part), 2, 3, 4, and 6 to hearing, and those objec-
tions are the subject of the present exceptions. The Regional Director
overruled the remaining objections without a hearing; NUHW request-
ed review of that decision. Today, in a separate order, we deny
NUHW’s request for review.
The judge recommended that the notice for a new election be sup-
plemented as specified in Lufkin Rule Co., 147 NLRB 341 (1964).
SEIU-UHW excepts. Because we overrule NUHW’s objections, we
need not pass on this exception.
NUHW timely filed exceptions with supporting argument. Approx-
imately 5 days after the due date for exceptions, NUHW filed corrected
exceptions. SEIU-UHW moves to strike NUHW’s corrected excep-
tions. We find that SEIU-UHW was not prejudiced by NUHW’s cor-
rections, which were few and unsubstantial; in any event, we do not
find merit in NUHW’s exceptions. We therefore deny the motion to
strike.
California. NUHW’s objections are based on earlier
unlawful employer conduct directed at three units of em-
ployees located in Southern California, and on SEIU-
UHW’s campaign in the instant election that was based
in part on that earlier conduct. We find no merit in any
of these objections.
A. Unlawful Conduct in the Southern California
Professionals Units
In February 2009, NUHW filed representation peti-
tions seeking certification in three units located in South-
ern California, which are collectively known as the
Southern California professionals units (Southern Cali-
fornia units). Those units are employed by Kaiser Foun-
dation Hospitals, an employer in this proceeding, and
Southern California Permanente Medical Group (collec-
tively, “the Southern California employers”). At the time
NUHW filed the 2009 petitions, the Southern California
units were represented by SEIU-UHW. After an exten-
sive campaign, the Southern California unit employees
selected NUHW as their bargaining representative, and
the Board certified NUHW in February 2010.
During initial contract negotiations, NUHW asked the
Southern California employers to continue the extant
terms and conditions of employment. The Southern Cal-
ifornia employers, however, decided to withhold certain
employee benefits3 that arose from their national agree-
ment with the National Coalition of Kaiser-Permanente
Unions (the Coalition). Unlike SEIU-UHW, NUHW
was not a member of the Coalition and thus was not par-
ty to the national agreement. As a result, the Southern
California employers contended, the units could no long-
er take advantage of those benefits.
In response, NUHW filed unfair labor practice charges
against the Southern California employers on March 30.
The Region issued a complaint on August 27 and peti-
tioned the United States District Court for the Central
District of California for a Section 10(j) injunction on
October 4. Administrative Law Judge William L.
Schmidt held hearings on the unfair labor practice com-
plaint on October 18 and 19. Approximately 2 months
later, he issued a decision finding the Southern California
employers’ conduct unlawful. In addition, the district
court issued a preliminary injunction requiring the
Southern California employers to cease and desist their

3 These benefits included scheduled raises, tuition reimbursements,
and paid leave for steward training.
PERMANENTE MEDICAL GROUP

759
unlawful conduct.4 On March 3, 2011, the Board adopt-
ed Judge Schmidt’s decision.5
B. The Campaign in the MSW Unit
In the meantime, on June 29, NUHW filed the instant
petition to represent the MSWs in Northern California.
The Southern California employers’ refusal to apply the
national agreement to the NUHW-represented employees
became a major issue during the MSW unit campaign.
During the critical period,6 SEIU-UHW repeatedly re-
ferred to that conduct and purportedly threatened that, if
the MSWs voted in favor of NUHW, the Employers
would likewise deprive the MSW unit employees of sim-
ilar benefits. NUHW vigorously responded to SEIU-
UHW’s campaign, arguing that the Southern California
employers’ actions were unlawful. For support, NUHW
cited the Acting General Counsel’s decision to issue a
complaint and his decision to petition the Federal district
court for injunctive relief. On October 7, the Employers
announced that, effective October 15, MSW employees
would receive a scheduled raise, a benefit that SEIU-
UHW purportedly threatened would be lost if the MSW
employees selected NUHW as their representative.
As stated above, NUHW ultimately lost the election
conducted between October 18 and November 8.
II. DISCUSSION
A. Objection 1 (first part): The Employers’ Conduct
Under the particular circumstances presented here, we
agree with the judge that the Southern California em-
ployers’ unlawful conduct did not itself have a tendency
to interfere with the MSWs’ free choice in this election.
That conduct was remote in time, predating the critical
period by several months, and did not directly affect the
MSW unit. See Ideal Electric & Mfg. Co., 134 NLRB
1275, 1278 (1961); compare Cedars-Sinai Medical Cen-
ter, 342 NLRB at 598 fn. 13. In fact, the only employer-
related conduct that NUHW contends occurred during
the critical period were statements made by Kaiser
Southern California President Ben Chu in which he ob-
served that certain benefits were tied to the Coalition’s
national agreement. NUHW provides no evidence, how-
ever, that Chu’s statements were directed toward the

4 Small ex rel. NLRB v. Southern California Permanente Medical
Group, No. CV10-7395 GAF FM0x, 2010 WL 5509922 (C.D. Cal.
Dec. 16, 2010).
5 Southern California Permanente Medical Group, 356 NLRB 783
(2011). There were no exceptions to the judge’s findings regarding the
underlying merits of the case; the Acting General Counsel filed a lim-
ited exception to the judge’s unit description.
6 The critical period spanned a time period after the refusal but be-
fore the administrative law judge, district court, or Board decisions on
the lawfulness of that refusal.
MSW unit. We therefore find that Chu’s statements are
irrelevant to this objection.7 But even if the Southern
California employers’ conduct might have had some lin-
gering collateral effect on the MSW unit, we find that it
was countered by NUHW’s vigorous response, which
highlighted the Acting General Counsel’s decision to file
a complaint and to petition for injunctive relief in that
case. That the Southern California employers’ conduct
became the object of SEIU-UHW’s campaign predictions
during the critical period in this case does not change our
analysis of whether that conduct is objectionable here.8
B. Objections 2, 3, 4, and 6: SEIU-UHW’s Conduct
In Objections 2, 3, and 6, NUHW contends that SEIU-
UHW interfered with employee free choice by threaten-
ing that, if NUHW won the election, the Employers
would deprive the MSW unit of certain benefits, includ-
ing scheduled raises and performance bonuses.
The judge found that SEIU-UHW’s statements to the
MSWs about the Southern California employers’ conduct
were factually accurate. She further acknowledged that
SEIU-UHW had no involvement in the unfair labor prac-
tices committed in Southern California and would be
unable to control the Employers’ future actions in the
event that the Board certified NUHW as the representa-
tive of the MSW unit. The judge also noted NUHW’s
spirited response to SEIU-UHW’s campaign. Nonethe-
less, she concluded that SEIU-UHW, in her words, “em-
phasiz[ed] and paralleliz[ed]” the Southern California
case to the present one, and thereby “invited, if not pro-
voked” the obvious inference that the earlier conduct
would be repeated in the MSW unit if the employees
voted for NUHW. The judge therefore sustained these
objections. For the reasons set forth below, we disagree
and so find merit in SEIU-UHW’s exceptions.
Unlike the judge, we find that SEIU-UHW’s state-
ments during the critical period about the Southern Cali-
fornia case did not constitute objectionable threats. Even
assuming that SEIU-UHW’s statements could be con-
strued as “threats,” rather than as predictions of what the
Employers might do based on past conduct, SEIU-UHW
manifestly had no power to carry out such threats. It is

7 Those statements are also the subject of NUHW’s Objection 1 (se-
cond part), in which NUHW claims that the Employers violated Sec.
8(a)(1) by threatening similar reprisals or loss of benefits if NUHW
won the election in the MSW unit. As stated above, the Regional Di-
rector dismissed the second part of Objection 1 without a hearing, and
in a separate order issued today, we deny NUHW’s request for review
of that decision.
8 As the judge found, NUHW failed to cite any authority in which
the Board confronted facts similar to those presented by this objection.
To the extent that her report can be read as holding that the lack of such
authority is, by itself, a sufficient reason to overrule the objection, we
disagree.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

760
well established that the Board will not find a threat by a
party to be objectionable unless the party has the ability
to carry out the threat. See, e.g., Smithfield Packing Co.,
344 NLRB 1, 11 (2004), enfd. 447 F.3d 821 (D.C. Cir.
2006); Pacific Grain Products, 309 NLRB 690, 691
(1992).9 That SEIU-UHW had no control over what the
Employers might do if NUHW won the election is ex-
emplified by the Employers’ decision to grant raises in
October that SEIU-UHW purportedly threatened would
not be paid. Under these circumstances, we find that
SEIU-UHW’s campaign statements were not objectiona-
ble.
In Objection 4, NUHW contends that SEIU-UHW
threatened to bar NUHW from membership in the Coali-
tion if the MSWs voted for NUHW, and thereby deprive
the MSWs of the benefits of membership. The judge did
not specifically address this objection, but we find that it
must also be overruled. SEIU-UHW’s campaign state-
ments do not constitute threats. Rather, they are nothing
more than restatements of the Coalition’s rules and by-
laws, which bar raiding unions from membership, and
the national agreement. To the extent that the statements
suggest a loss of terms and conditions of employment,
they constitute mere misrepresentations that do not war-
rant setting aside the election. See Midland National Life
Insurance Co., 263 NLRB 127, 133 (1982). We there-
fore find that these statements did not have a tendency to
interfere with employee free choice.
Overall, these objections are similar to those raised and
overruled in Air La Carte, 284 NLRB 471 (1987).
There, the employer voluntarily recognized a union as
the collective-bargaining representative for a unit of its
employees, but, before a contract could be signed and
ratified, two other unions jointly petitioned to represent
the unit. The incumbent union and the employer subse-
quently entered into a contract. During the campaign, a
steward for the incumbent union told her fellow employ-
ees that, if they voted for the joint petitioners, they would
lose their contract and, during the interim period of no
contract, they could lose health benefits, seniority rights,
and suffer a reduction in pay. Id. at 473, 478. The Board
concluded that the incumbent union’s statement that the
employees would lose their contract was an accurate one.
It also found that the steward’s statement regarding loss
of existing terms and conditions of employment could

9 Compare Baja’s Place, 268 NLRB 868 (1984) (finding union’s
threat to “get” employee and his job were not idle threats in part be-
cause the union wielded substantial influence in the local industry);
United Broadcasting Company of New York, 248 NLRB 403 (1980)
(finding union’s threat to blacklist employees who voted against union
to be objectionable because employees could reasonably fear it was
within the union’s power).
not constitute an objectionable threat by the incumbent
union because it had no control over what action the em-
ployer might take if it lost the election. The Board ob-
served that, at most, the statement regarding loss of terms
and conditions constituted a misrepresentation that did
not warrant setting the election aside. Id. at 474; see also
More Truck Lines, 336 NLRB 772, 773 (2001), enfd. 324
F.3d 735 (D.C. Cir. 2003).
As in Air La Carte, we leave the task of policing and
evaluating SEIU-UHW’s statements to the parties and,
ultimately, to the employees themselves. See Midland
National Life Insurance Co., above. In this vein, we
reiterate that NUHW presented a spirited counterargu-
ment to SEIU-UHW’s campaign propaganda in which it
repeatedly cited the Acting General Counsel’s decision
to file a complaint against the Southern California em-
ployers and to petition for injunctive relief. In these cir-
cumstances, the employees certainly had an opportunity
to seriously and fairly consider the arguments raised by
SEIU-UHW and NUHW. Cf. National League of Pro-
fessional Baseball Clubs, 330 NLRB 670, 678 (2000).
Accordingly, we find that SEIU-UHW’s campaign
statements did not have a tendency to interfere with the
MSWs’ freedom of choice in the election, and we over-
rule NUHW’s Objections 2, 3, 4, and 6.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Service Employees International Union,
United Healthcare Workers—West, and that it is the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time medical social
workers employed by the Employers in positions
covered by the collective bargaining agreement be-
tween the Employers and SEIU-UHW effective Oc-
tober 1, 2005, including Medical Social Worker I,
Medical Social Worker II, and Medical Social
Worker III; excluding any medical social worker as-
signed to be Director of Social Services at any of the
Employers’ facilities or to whom the Employers
have given the authority to hire, promote, discipline,
discharge, or otherwise change status or to effective-
ly recommend such action, all employees represent-
ed by other unions, confidential employees, guards,
and supervisors as defined in the National Labor Re-
lations Act.
PERMANENTE MEDICAL GROUP

761

For the Petitioner: Florice Orea Hoffman, Atty., of Orange,
California.
For the Intervenor: Bruce A. Harland, Atty. (Weinberg, Roger
& Rosenfeld), of Alameda, California.
For the Employers: Ronald E. Goldman, Atty., Kaiser Perma-
nente, of Oakland, California; Michael R. Lindsay, Atty.
(Nixon Peabody, LLP), of Los Angeles, California.
ADMINISTRATIVE LAW JUDGE REPORT AND
RECOMMENDATIONS ON OBJECTIONS
LANA PARKE, Administrative Law Judge. The National Un-
ion of Healthcare Workers (the Petitioner or NUHW) filed a
petition on June 29, 2010,1 seeking representation of employ-
ees of The Permanente Medical Group, Inc. and Kaiser Founda-
tion Hospitals (the Employers)2 in a medical social workers
bargaining unit (MSW unit) then, and currently, represented by
Service Employees International Union, United Healthcare
Workers - West (the Intervenor or SEIU-UHW). The Regional
Director for Region 32 of the National Labor Relations Board
(the NLRB or the Board) issued his Decision and Direction of
Election on September 7. An election by mail ballot was con-
ducted between October 18 and November 8 in the MSW unit
described below, the employees of which were located in 37
separate Kaiser facilities throughout the Employers’ northern
California region:

All full-time and regular part-time medical social
workers employed by the Employers in positions covered
by the collective bargaining agreement between the Em-
ployers and SEIU-UHW effective October 1, 2005, includ-
ing Medical Social Worker I, Medical Social Worker II,
and Medical Social Worker III; excluding any medical so-
cial worker assigned to be Director of Social Services at
any of the Employers’ facilities or to whom the Employers
have given the authority to hire, promote, discipline, dis-
charge, or otherwise change status or to effectively rec-
ommend such action, all employees represented by other
unions, confidential employees, guards, and supervisors as
defined in the National Labor Relations Act.

The election resulted in the following final tally of ballots:

Approximate number of eligible voters ……………… 378
Number of void ballots …………………..........................4
Number of votes cast for NUHW ……………………..139
Number of votes cast for NEITHER ……………………..2
Number of votes cast for SEIU – UHW ………………..148
Number of valid votes counted ………………………...289
Number, of challenged ballots ……………………………3
Valid votes counted plus challenged ballots …………….292

Following the election, the Petitioner filed timely objections
to the election on November 17. On February 23, 2011, the

1 All dates refer to 2010, unless otherwise indicated.
2 Numerous entities make up the Kaiser Permanente enterprise of
which the Employers are two. Herein, the national enterprise is re-
ferred to as Kaiser Permanente; unless separate designation is neces-
sary, other groupings within Kaiser Permanente, aside from the Em-
ployers, are referred to as Kaiser.
Regional Director issued his Supplemental Decision and Notice
of Hearing (decision on objections), recommending that Peti-
tioner’s Objections 5 and 7–71 be overruled in their entirety
and setting for hearing, as limited in the decision, Objections 1–
4 and 6. Hearing on those objections was held in Oakland,
California, on May 2 and 3, 2011.
Unless otherwise explained, findings of fact herein are based
on party admissions, stipulations, uncontroverted relevant tes-
timony, and findings of fact made by Administrative Law
Judge William L. Schmidt in Case 21–CA–039296 and adopted
by the Board (with minor modification of unit description) at
Southern California Permanente Medical Group, 356 NLRB
783 (2011). On the entire record and after considering the
briefs filed by the Petitioner, the Intervenor, and the Employers,
I find the following events occurred in the circumstances de-
scribed during the critical period.
FINDINGS OF FACT AND DISCUSSION
A. Legal Overview
The critical period during which conduct allegedly affecting
the results of a representation election must be examined
“commences at the filing of the representation petition and
extends through the election.” E.L.C. Electric, Inc., 344 NLRB
1200, 1201 fn. 6 (2005). Here, the critical period is June 29
through October 4.
The Board does not lightly set aside representation elec-
tions.3 “There is a strong presumption that ballots cast under
specific NLRB procedural safeguards reflect the true desires of
the employees.” NLRB v. Hood Furniture Mfg. Co., 941 F.2d
325, 328 (5th Cir. 1991). The burden of proving a Board-
supervised election should be set aside is a “heavy one.”4 The
burden is even heavier where the vote margin is large.” Trump
Plaza Associates, 352 NLRB 628, 629–630 (citing Avis Rent-A-
Car System, 280 NLRB 580, 581–582 (1986)). The objecting
party must show that objectionable conduct affected employees
in the voting unit. Avante At Boca Raton, Inc., 323 NLRB 555,
560 (1997) (overruling employer’s objection where no evidence
unit employees knew of alleged coercive incident).
As the objecting party, the Petitioner has the burden of prov-
ing interference with the election. See Jensen Pre-Cast, 290
NLRB 547 (1988). The test, applied objectively, is whether
election conduct has the tendency to interfere with employees’
freedom of choice.5 The Petitioner must show the conduct in
question had a reasonable tendency to interfere with employ-

3 Quest International, 338 NLRB 856 (2003); Safeway, Inc., 338
NLRB 525 (2002); NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325,
328 (5th Cir. 1991) (citing NLRB v. Monroe Auto Equipment Co., 470
F.2d 1329, 1333 (5th Cir. 1972), cert. denied 412 U.S. 928 (1973)).
4 Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989) (quoting
Harlan No. 4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir.), cert.
denied 416 U.S. 986 (1974).
5 Taylor Wharton Division, 336 NLRB 157, 158 (2001); Cedars-
Sinai Medical Center, 342 NLRB 596 (2004); Baja’s Place, 268 NLRB
868 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

762
ees’ free and uncoerced choice in the election to such an extent
that it materially affected the results of the election.6
B. The Petitioner’s Objections 1 through 4 and 6
(1) The employer, by its agents, violated Section 8(a)(1) and
Section 8(a)(5) by committing unlawful unilateral changes by
withholding and/or cancelling scheduled annual across-the-
board raises, tuition-reimbursement benefits, and union-steward
training programs for employees represented by NUHW in
other units.7
(2) The SEIU, by its agents, widely disseminated to employ-
ees the threat that if NUHW won this election, the employer
would not pay contractually bargained-for wage increases in-
cluding but not limited to threats that the employer would not
provide employees with an upcoming salary increase due in or
around October 2010.
(3) The SEIU, by its agents, widely disseminated to employ-
ees the threat that if NUHW won this election, the employer
would not pay an already bargained-for Performance Sharing
Program (PSP) bonus.
(4) The SEIU, by its agents, widely disseminated to employ-
ees the threat that if NUHW won the election that they would
lose the benefits of the Coalition of Kaiser Permanente Unions
and the benefits of the National Agreements because SEIU
would forever bar NUHW participation in such bargaining.
(6) The SEIU, by its agents, widely disseminated to employ-
ees these threats, including but not limited to the SEIU’s threat
that Kaiser had “confirmed that NUHW members at Kaiser are
not automatically eligible to receive Performance Sharing Pro-
gram (PSP) bonuses” and that employees would not get such
bargained-for bonuses if NUHW won.
1. Facts
a. Unfair labor practices in the southern California
professional units
In 1995, labor organizations representing various units of
Kaiser Permanente employees formed a Coalition of Kaiser
Permanente Unions (the Coalition). The Coalition was com-
prised of local and International unions representing Kaiser
Permanente employees in defined geographic regions and ex-
isted for the purpose of facilitating collective bargaining with
Kaiser Permanente entities.8 The Coalition’s rules and bylaws
determine eligibility for membership. In pertinent part, the
Coalition bars from membership labor organization that obtain
representative status by “raiding”9 a unit of a coalition member.
In 1996, Kaiser Permanente and the Coalition entered into a
national labor management partnership agreement (the LMP).

6 Madison Square Garden Ct., LLC, 350 NLRB 117, 119 (2007) (in-
ternal quotations and citations omitted); Quest International, 338
NLRB 856, 857 (2003).
7 The Regional Director overruled the second part of Objection 1:
“[the employers violated Section 8(a)(5) and (1) of the Act by] threat-
ening similar reprisal and/or loss of benefits if NUHW won in this
unit.”
8 Not all unions representing Kaiser employees participate in the Co-
alition.
9 Raiding is an attempt by one union to obtain collective-bargaining
rights over a unit of employees already represented by another union.
Thereafter, local, regional, and national negotiations were con-
ducted under auspices of the LMP. The negotiations resulted in
successive national collective-bargaining agreements between
Kaiser Permanente and SEIU-UHW, the penultimate of which
was effective by its terms from October 1, 2005, through Sep-
tember 30, 2010 (the national agreement), followed by the cur-
rent agreement effective October 1 through September 30,
2012. SEIU-UHW and the Employers have been parties to
seriatim local agreements covering the MSW unit, effective
October 1, 2005, through September 30, 2010, and October 1,
2010, through September 30, 2013, each of which was integrat-
ed with the relevant national agreement to provide for a basic
wage structure and a variety of fringe benefits, including provi-
sions for tuition reimbursement, PSP bonuses, and across-the-
board wage increases.
The LMP provided, inter alia, a performance sharing plan
(the PSP). The stated purpose of the PSP was to recognize the
value of national agreement-covered employees’ contributions
to Kaiser Permanente by permitting them to share in the com-
pany’s performance gains. The PSP was, in short, a bonus
incentive program, the amounts of which were annually agreed
upon between the Coalition and Kaiser Permanente. Historical-
ly, the PSP was calculated in January and February based on
performance in the preceding year and paid to employees in
March.10
In 2007, following a merger of labor organizations, SEIU-
UHW became the recognized representative for three profes-
sional collective-bargaining units in southern California—the
Health Care Professionals unit, the Psych-Social Chapter unit,
and the American Federation of Nurses unit (the SoCal-pro
units)—comprised within the work forces of Southern Califor-
nia Permanente Medical Group and Kaiser Foundation Hospi-
tals (collectively, the SoCal-pro employers).11 One of the Em-
ployers herein—Kaiser Foundation Hospitals—is also one of
the SoCal-pro employers.
SEIU-UHW and the SoCal-pro employers were, at all mate-
rial times, parties to the national agreement as well as a local
CBA covering each of the SoCal-pro units. The interrelated
national and local CBAs provided for basic wage structures and
a variety of fringe benefits, including provisions for tuition
reimbursement, paid time off for stewards to attend union-
sponsored steward training sessions, PSP bonuses, and across-
the-board wage increases. In 2008, an agreement among the
parties to these agreements provided for across-the-board wage
adjustments for, inter alia, employees in the SoCal-pro units, in
the pay periods closest to October 1, 2008, and 2009 as well as
a further adjustment of 2 percent to be effective in the pay peri-
od closest to April 1. The PSP bonus provisions of the national
agreement applied to each of the SoCal-pro units.
In late January 2009, certain former SEIU-UHW officers and
professional organizers formed NUHW and commenced raid-
ing units represented by SEIU-UHW. On February 27, 2009,

10 Noncoalition negotiated contracts may contain bonus incentive
programs, but they do not necessarily have the same terms as, and are
not designated as, a PSP program.
11 The Southern California pro units are separate and distinct from
the MSW unit.
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763
NUHW filed representation petitions with the Board seeking
certification as the collective-bargaining representative for the
SoCal-pro units.
On February 3, the Board certified NUHW as the exclusive
bargaining representative of the SoCal-pro units, and the
SoCal-pro employers and NUHW commenced bargaining. At
the initial bargaining meeting, NUHW requested that the
SoCal-pro employers continue in effect until October 1 the
terms of its agreements with SEIU-UHW. At a bargaining
meeting held February 26, Kaiser’s representatives told NUHW
representatives that the SoCal-pro employers would not contin-
ue the terms of the agreements with SEIU-UHW, that the em-
ployees would not receive the 2-percent pay increase that had
been negotiated in 2008, that the employees would not receive
further tuition reimbursements, and that the NUHW stewards
would not receive paid time off for steward training. Thereaf-
ter, the following sequence of events occurred:

March—Employees in the SoCal-pro units received
the PSP bonuses based on calculations of Kaiser’s 2009
performance.
March 18—At the March 18 bargaining session, the
SoCal-pro employers presented NUHW negotiators with a
letter stating that participation in the Coalition was a pre-
condition to applying agreement terms to the NUHW-
represented units, a participation NUHW would be unlike-
ly ever to realize.
March 30—NUHW filed ULP charges against the
SoCal-pro employers in Case 21–CA–39296 (ULP charg-
es), alleging that by unilaterally withholding certain bene-
fits from employees in the Southern California pro units,
the SoCal-pro employers had violated Section 8(a)(5) and
(1) of the Act.
April—The SoCal-pro employers refused to pay the
SoCal-pro unit employees the contractually projected two
percent April adjustment. Kaiser paid the adjustment to
employees in the Kaiser service and technical employees
throughout California (the statewide unit) represented by
the Intervenor.
End May—Negotiations on the national agreement
concluded.
June 14 through June 23—National agreement rati-
fied.
June 29—NUHW filed the instant representation peti-
tion, Case 32–RC–5774, beginning the critical period.
June 29—NUHW also filed a representation petition in
Case 32–RC–5775, seeking to represent the statewide unit.
August 27—Based on the ULP charges, the Regional
Director issued a complaint and notice of hearing against
the SoCal-pro employers.
September 13 to October 4—the Regional Director
conducted the mail ballot election among employees in the
statewide unit.
October 18–November 8—the Regional Director con-
ducted the mail-ballot election among employees in the
MSW unit.
October 4—Region 21 in Los Angeles filed with the
U.S. Central District Court a petition for temporary injunc-
tion against the SoCal-pro employers seeking to enjoin the
commission of ULPs in the SoCal pro units.
October 6—Ballots in the statewide unit election tal-
lied: NUHW—11,364; SEIU-UHW—18,290.
October 18 and 19—Judge Schmidt opened hearing on
the ULP charges.
November 11—Ballots in the MSW unit tallied:
NUHW—139; SEIU-UHW—148.
December 13—Judge Schmidt issued decision on the
ULP charges, finding that the SoCal-pro employers violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally with-
holding an April 2010 wage increase, tuition reimburse-
ment for continuing education courses, and paid steward-
training time off from employees in the SoCal-pro units
(Kaiser’s ULPs).12
March 3, 2011—The Board, in the absence of excep-
tions, with a minor unit-description modification, adopted
Judge Schmidt’s findings and conclusions at Southern
California Permanente Medical Group, 356 NLRB 783.
b. Intervenor’s campaign in the MSW unit
During the critical period, the Intervenor widely disseminat-
ed throughout the MSW unit written campaign materials.
Many of these materials referred, explicitly and implicitly, to
the Kaiser ULPs detailed in Judge Schmidt’s decision, as well
as to prospective nonpayment of the PSP incentive bonus. The
following statements are representative excerpts from the Inter-
venor’s campaign materials disseminated widely during the
critical period:

 NUHW has filed a petition to take away our union
and our [new] contract. No matter what they try to
tell us, the bottom line is: Their petition threatens
to wipe away . . . our raises, healthcare, pensions,
and job security. We would have to re-bargain our
entire contract.
 Southern California Kaiser pros who voted for
NUHW in January still don’t have the 2% pay
raises that SEIU-UHW members got in April . . .
[quoting a statewide-unit member]: “NUHW can’t
even get the 2% raise that we’ve seen in our
paychecks for three months now.”
 If [NUHW replaces SEIU-UHW as our union] our
new contract and everything in it is gone and has
to be re-bargained. . . . In January, Kaiser
Healthcare Professionals in So Cal voted to join
NUHW and they lost their contract, the 2% raise
that SEIU-UHW members got in April, continuing
education reimbursements, and more.
 [Quoting an MSW unit member]: “To date, because
the S. CA Professionals voted for NUHW, they are
now at least 5% behind us in raises.”
 [Quoting an SEIU-UHW member]: “We get a total
of 9% in raises over the next three years while
NUHW is scratching and clawing to get their

12 Nonpayment of PSP bonuses was not an issue in the March 30
ULP charges.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

764
members in So CA the 2% raise that we got in
April. We have no changes to our benefits while
NUHW’s benefits are up for grabs. . . . If you look
at the facts, it’s obvious: Win with SEIU-UHW or
lose with NUHW.”
 The National Agreement applies only to the unions in
the Coalition (32 unions including SEIU
bargaining the National Agreement). . . . If a bar-
gaining unit is not represented by a Coalition Un-
ion, then the provisions of this National Agreement
will not apply. NUHW is not a part of the Coali-
tion, and thus employees represented by NUHW
will not be covered by the National Agreement.
 While SEIU-UHW members have enjoyed the bene-
fits of their 2% April raise for five months, NUHW
members at Kaiser are going to trial to try and get
the raise—a process that will likely take years with
no guarantee they will be successful. Worse, the
Southern California professionals who switched to
NUHW are reporting being told by Kaiser that
they will not be getting the 3% raise that all SEIU-
UHW members will receive in October. That
means in 10 months under NUHW, the Southern
RNs and Pros will be 5% behind SEIU-UHW
members on their raises—and facing the loss of
their PSP bonuses.
 Two Approaches to Raises at Kaiser
The SEIU-UHW way: One simple step
A. Vote for SEIU-UHW and get all the raises in your
contract—guaranteed, on time and without going to
court.
The NUHW Way: Years of legal fights
A. File charges with the NLRB
B. Six months later go to a trial
C. Wait months for the judge to make a decision and
hope the judge decides for you not against you
D. The decision gets appealed to the NLRB in Wash-
ington D.C.
E. A year later the NLRB issues a decision, which
could be for or against you
F. That decision is appealed in federal court, which
could rule for or against you, and ultimately could go
the U.S. Supreme Court.
G. Several years later the case could be resolved with
no guarantee of ever getting the raise.
 [From a flyer showing the photographs of five S. CA
professionals] In NUHW, we lost our raises and
guaranteed PSP Bonus. Don’t make the same mis-
take we did. . . .
[Quoting pictured employees of the SoCal-pro units]:
°“It was bad enough that giving up our SEIU-UHW
contract meant we lost the 2% raise we were sup-
posed to get in June. But now we’re also losing our
PSP Bonus.”
° “When I counted up everything I’ve lost since my
co-workers switched to NUHW—the PSP and the
raises for the next three years—I estimate it adds up
to about $20,000. That’s a huge step backwards for
my co-workers and me.”
° [Quote from Cleante Stain (Stain), an employee in
the psych-social SoCal-pro unit]: “We bet our future
on NUHW, and we lost big. It was a mistake to put
our raises and PSP at risk. I urge you not to take the
same chance we did.”
 In January 2010, Kaiser Healthcare Professions in So
Cal voted to join NUHW and they lost their con-
tract, the 2% raise that SEIU-UHW members got
in April, Continuing Education reimbursements
and more.
 With NUHW, we’d have to start bargaining all over
again, just like the Kaiser pros in Southern Cali-
fornia who voted for NUHW in January . . . here’s
what the Kaiser pros already lost with NUHW:
LOST RAISES: NUHW is in an ugly legal
battle with Kaiser over the 2% raises SEIU-UHW
members got in April but they didn’t.
LOST CEU’S: Continuing Education Units
no longer reimbursed.
 [Quoting an MSW unit member]: “I used my last PSP
bonus to confirm a trip reservation to Alaska. I
know co-workers who have used theirs to pay off
credit cards. This is a significant amount of mon-
ey, and I don’t understand why NUHW wants us to
take the risk of losing it.”
 On a conference call with Kaiser employees August
3, Kaiser Southern California President Ben Chu
confirmed that NUHW members at Kaiser are not
automatically eligible to receive Performance
Sharing Program (PSP) bonuses. The PSP adds
thousands of dollars to Kaiser workers’ income
each year . . . Chu made it clear that only members
of unions in the Coalition of Kaiser Permanente
Unions-like SEIU-UHW-are guaranteed the bonus
as part of the national agreement we just approved
by an overwhelming majority. NUHW could try to
negotiate a bonus, but they are unlikely to succeed
because it is a function of the Partnership and Coa-
lition which they are not a part of. No Kaiser un-
ion outside the Coalition or national contract gets
the PSP bonus.
 [Quoting a SoCal-pro unit member]: “It’s bad
enough that we lost our 2% raise in April and our
continuing education reimbursements. Now we
just found out that we’re losing our PSP bonuses
too. It keeps getting worse with NUHW.”

During the critical period, the Intervenor utilized the services
of Cleante Stain (Stain), a psychiatric social worker employed
by Kaiser Permanente in one of its southern California facilities
and a member of the psych-social SoCal-pro unit.13 As ar-

13 Stain’s purported photograph and quotation appears in one of the
Intervenor’s flyers detailed above. The parties stipulated that Stain’s
testimony taken in an earlier hearing in Case 32–RC–2775 be incorpo-
rated herein.
PERMANENTE MEDICAL GROUP

765
ranged by SEIU-UHW,14 Stain was present at an SEIU-UHW-
sponsored meeting of MSW unit employees in Oakland, attend-
ed by as many as 40 employees. It is not clear from Stain’s
testimony what, specifically, she told the MSW unit employees.
Generally, in the course of her visits, Stain told employees the
SoCal-pro units did not get their 2-percent raise after selecting
NUHW as their bargaining representative and suggested em-
ployees ask themselves it they could afford to live without the 2
percent. Stain further told employees that selecting NUHW
might put at risk the 3-percent raise scheduled for October and
that the SoCal-pro units had been told they would not get the
PSP bonus in March because they were not a part of the Coali-
tion. It is reasonable to infer that Stain delivered essentially the
same message to the MSW unit employees in Oakland.
c. Petitioner’s campaign in the MSW unit
During the critical period, the Petitioner widely disseminated
throughout the MSW unit written campaign materials counter-
ing the Intervenor’s communications. The following are rele-
vant, representative excerpts from the Petitioner’s campaign
materials:

 You can keep contract raises and benefits . . . the Na-
tional Labor Relations Board agrees NUHW is
right. SEIU hasn’t been truthful. On August 27,
2010 the National Labor Relations Board General
Counsel took legal action in Case 21–CA–39296 to
protect Kaiser Professions who have joined
NUHW and are entitled to all of their previously
scheduled raises and tuition reimbursements.
When we vote NUHW, our contract raises and
benefits are protected.
 When the National Labor Relations Board sought an
injunction against Kaiser on Oct. 4, they set the
record straight. It was against the law for Kaiser to
withhold the raises and benefits of workers who
voted to join NUHW. When SEIU campaigned for
months saying otherwise, they were lying about
our rights.
 Last week, NUHW’s attorneys filed objections to
both Kaiser’s and SEIU’s conduct in the Service
and Tech election. Misconduct included Kaiser il-
legally withholding raises and threatening to do the
same to workers who were voting to join NUHW.
 [Provided web link for employees to read the injunc-
tion sought by Region 21] The NLRB says Kaiser
broke the law by withholding raises. The NLRB
says we get all the raises and benefits of the Na-
tional Agreement, the local agreements, and the
LMP . . . if we were entitled to it under SEIU,
we’re entitled to it in NUHW . . . U.S. District
courts and appellate courts defer to the NLRB, and
grant almost every request for injunction.
 [NUHW Bulletin story regarding the service and
technical unit election] Employees’ choice thwart-

14 SEIU paid Stain’s travel expenses and an amount comparable to
her hourly pay rate for the time she expended.
ed by delays in NLRB enforcement, false fear
campaign by SEIU and employer [resulted in]
11,364 [votes for NUHW and 18,290 . . . for
SEIU—and workers are calling for a new election.
[Quoting a statewide unit employee]: “Workers
can’t have a fair vote when they don’t know they
have the right to choose without being punished
for it. SEIU and Kaiser management threatened
people’s livelihood and the NLRB didn’t take ac-
tion to protect us until it was too late.”. . . Just
hours after voting ended, the NLRB exposed
SEIU’s scare tactic as a lie [when the NLRB filed
for injunction].
 In charges filed yesterday by the National Labor Re-
lations Board, the federal government has instruct-
ed Kaiser management that all the raises and bene-
fits of workers who vote for NUHW, including our
April raise, are guaranteed by law and must be
paid. . . . This action by the government . . . direct-
ly contradicts what SEIU has been telling Kaiser
workers . . . for months.
 The Federal Government has filed charges against
Kaiser, which will have to pay the professionals
with interest and reinstate all of the protections
they have withheld.
 NLRB puts it in writing: Raises, PSP, and benefits
are all guaranteed by law when we join NUHW.
 There is no other way to put it. SEIU has been lying
to us about our raises and benefits. . . . We all have
the right to join NUHW, and when we do our rais-
es and benefits are guaranteed by law.
 It’s the Law; our PSP is just another benefit that we’ll
keep when we vote to join NUHW. [Citing More
Truck Lines, Inc.] The employer must keep every-
thing the same while we negotiate for improve-
ments.
d. NLRB Regional Office information
During the critical period, NLRB regional staff responded to
public inquiries about Kaiser elections by reading the following
script:

In general, an employer’ is required to maintain existing con-
tract terms when a new union is selected to represent bargain-
ing unit employees, subject to further bargaining . . . the Re-
gional Director in Region 21 (Los Angeles) . . . issued a com-
plaint alleging, among other things, that Kaiser violated the
National Labor Relations Act by refusing to grant a wage in-
crease that had been scheduled to go into effect on April 1,
2010…That matter will go to hearing before an administrative
law judge if the parties are unable to settle the case.

The outcome of every case filed before the NLRB depends on
the particular facts applicable to that case. Because every situ-
ation may have unique facts, it cannot be stated with certainty
what Kaiser’s obligation would be if NUHW became the bar-
gaining representative of the unit employees scheduled to vote
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

766
in the mail ballot representation election that will begin on
September 13, 2010.15
C. Discussion
Petitioner’s Objection 1 asserts, essentially, that the SoCal-
pro employers’ unlawful conduct toward NUHW-represented
employees in the SoCal pro units, in and of itself, interfered
with the election. The Board holds that 8(a) violations may, a
fortiori, interfere with an election unless the unlawful conduct
is so de minimis that it is virtually impossible to conclude the
violations could have affected the results of the election.16
While it is true that one of the Kaiser employers involved in
this case engaged in unlawful conduct, as detailed in South-
ern California Permanente Medical Group, supra, the conduct
did not occur in the MSW unit but in the SoCal pro units,
which are distinct and separate geographically from the MSW
unit. Kaiser argues that its earlier conduct in discrete bargain-
ing units cannot be considered objectionable in the MSW unit
election, as the conduct was not directed at MSW unit employ-
ees. Essentially, Kaiser maintains that conduct affecting one
bargaining unit cannot be applied to a separate bargaining unit
as a fortiori conduct. There being no authority establishing that
conduct in a geographically separate unit can, without more,
interfere with an election in another unit, I recommend that
Objection 1 be overruled.
A determination that Kaiser’s ULPs did not, a fortiori, inter-
fere with the MSW unit election so as to justify setting it aside,
does not eliminate Objections 2, 3, 4, and 6, however. The
Intervenor’s campaign repeatedly correlated Kaiser’s ULPs to
the MSW unit, emphasizing the benefit risk the unlawful con-
duct denoted for employees who selected NUHW as their rep-
resentative. The crucial question, then, is whether by empha-
sizing and parallelizing Kaiser’s ULPs, The Intervenor’s cam-
paign unfairly interfered with MSW unit employees’ election
choice. Also to be considered is whether pronouncements that
MSW unit employees would be ineligible for PSP incentive
bonuses if they selected NUHW interfered with the election.
The Intervenor argues that its campaign statements during
the critical period (1) were neither threatening nor untruthful,
but were factual, good-faith statements of potential voting con-
sequences relevant to employees’ decisions about union repre-
sentation; (2) were factual predictions or statements of risk and
not “unanswerable threats that employees fear because they
know the speaker . . . can carry them out”; (3) caused no em-
ployee fear, which, if any existed, resulted from “employees’
own reasoned choices based on all the available information, in
a campaign in which each union had the ability to present its
version of the facts”; (4) were objective statements about Kai-
ser’s behavior—at worst, misrepresentations or incomplete

15 There is no evidence as to how many, if any, MSW unit employ-
ees sought election information from the Region.
16 See Perdue Farms, 323 NLRB 345 (1997); Pembrook Manage-
ment, 296 NLRB 1226, 1242 (1989); Airstream, Inc., 304 NLRB 151,
152 (1991). In assessing whether unfair labor practices could have
affected the results of the election, the Board considers “the number of
violations, their severity, the extent of dissemination, the size of the
unit, and other relevant factors.” Super Thrift Market, Inc., 233 NLRB
409 (1977).
statements of the law made during a campaign—neither of
which are grounds for setting aside the election.
It is true that the Intervenor had no control over or involve-
ment in Kaiser’s ULPs and that the Intervenor could not control
Kaiser’s future actions regarding MSW unit benefits. As the
Intervenor points out, its challenged statements were factual
recountings of what Kaiser had done in the SoCal-pro units,
which, the Intervenor represents, were made in good faith.17
The accuracy and good faith of the Intervenor’s reporting is
not, however, dispositive of the issues. The Board applies an
objective standard when evaluating whether statements inter-
fere with free election choice, looking neither at motivation nor
subjective effect.18
The Intervenor points out that at the time it described Kai-
ser’s ULPs to MSW unit employees, Kaiser’s actions had not
been judicially found to be unlawful. The absence of a judicial
pronouncement does not alter the fact that Kaiser’s conduct
was, at all times critical to the election, unlawful. However
factually accurate the Intervenor’s statements may have been,
the Intervenor’s campaign specifically linked its predictions or
risk warnings to existing and ongoing Kaiser ULPs not to fu-
ture lawful behavior.
Insofar as the Intervenor’s campaign focused on Kaiser’s
conduct in the SoCal-pro units, its objective effect was to warn
employees that they jeopardized monetary benefits if they
changed representatives. In the Intervenor’s communications,
Kaiser’s ULPs figured as concrete, menacing reminders that
Kaiser had unilaterally withheld benefits from employees in the
SoCal-pro units when they chose to be represented by NUHW.
Viewed objectively, the Intervenor’s statements presented an
obvious cause and effect: SoCal-pro units voted for NUHW;
Kaiser withdrew certain of their established benefits. The In-
tervenor’s communications invited, if not provoked, the obvi-
ous inference that Kaiser’s conduct would be repeated as to
MSW unit benefits if employees voted for the Petitioner.
As the Intervenor points out, MSW unit employees could not
reasonably have feared that the Intervenor could withhold bene-
fits, and employee fears as to what would happen under NUHW
representation may have stemmed from reasoned conclusions
based on available facts, facts that the Intervenor neither creat-
ed nor misrepresented but merely disseminated. But the very
interconnection of unlawful conduct with campaign rhetoric is
the problem here. The Intervenor’s messages rested on coer-
cive bedrock, i.e., the existence of unremedied ULPs that clear-
ly paralleled the MSW employees’ situation. Viewed objective-
ly, the facts—broadcast widely during the critical period—must
have signified to MSW unit employees the likelihood that Kai-
ser would, consistent with continuing misconduct, unlawfully
eliminate certain MSW unit benefits if employees chose
NUHW. Under those circumstances, the known existence of

17 I accept the Petitioner’s good-faith claim even though its dissemi-
nated caution that unit employees could obtain established raises
through NUHW only after years of legal fights suggests awareness that
Kaiser’s conduct was unlawful.
18 S.T.A.R., Inc., 347 NLRB 82 (2006).
PERMANENTE MEDICAL GROUP

767
the facts had, at the very least, the tendency to interfere with
employees’ freedom of choice.19
Prospective curtailment of PSP incentive bonuses to employ-
ees in the SoCal-pro units was not at issue in Southern Califor-
nia Permanente Medical Group, supra, but Judge Schmidt’s
reasoning can be applied to that benefit as well. Employee
entitlement to PSP incentive bonuses was the product of the
national agreement, as were the benefits Kaiser had unlawfully,
unilaterally changed. Judge Schmidt rejected Kaiser’s argu-
ments that (1) participation in the Coalition and the LMP was a
precondition to the application of the national agreement to the
SoCal-pro units and (2) that benefits therein were “creatures of
the national agreement that ceased to apply when the employ-
ees selected a [non-Coalition] bargaining agent, such as the
NUHW.” Rather, as Judge Schmidt explained, “the terms of
each [applicable] agreement as a whole—local, cross-regional,
and national—[made] up the terms and conditions of employ-
ment encompassed by the statutory duty to bargain under Sec-
tion 8(a)(5).”
Under Judge Schmidt’s reasoning, Kaiser was required to
maintain and continue conditions of employment that came into
being “by virtue of prior commitment or practice,”20 i.e., the
prior commitments memorialized by the terms of the applicable
agreements. Although the precise incentive bonus design enti-
tled “Performance Sharing Plan,” the payouts of which required
an annual agreement between the Coalition and Kaiser, might
not have survived a change of bargaining representative, the
granting of incentive bonuses constituted a term and condition
of employment that Kaiser was required to maintain and con-
tinue in substance if not in specific form, unless altered through
collective bargaining.
The Intervenor’s widely disseminated warnings that PSP in-
centive bonuses could be lost if employees selected NUHW
were erroneous since Kaiser’s practice of granting incentive
bonuses was subject to change only through collective bargain-
ing. Further, the Intervenor was joined in its warnings by Kai-
ser’s president, Chu, who informed employees that only mem-
bers of coalition unions were guaranteed PSP incentive bonus-
es. The Intervenor widely disseminated Chu’s statement, giv-
ing weight to the Intervenor’s repeated forewarnings that repre-
sentational change might endanger PSP incentive bonuses. In
these circumstances, widely disseminated warnings that PSP
incentive bonuses would not survive a change of representative
must also have tended to interfere with employees’ freedom of
choice.
Employers and SEIU-UHW argue that both unions actively
campaigned and had ample opportunity to urge their respective
merits on the voters and to promulgate their respective messag-
es in the campaign. Employers argue that the Petitioner’s ex-

19 See Taylor Wharton, 336 NLRB 157, 158 (2001), and Vegas Vil-
lage Shopping Corp., 229 NLRB 279, 280 (1977) (employer’s unlawful
conduct among one unit of employees in a metropolitan area “would
tend to discourage all employees in the . . . area from voting for the
same Union which was on the ballot for both units” and have a coercive
impact on the employees in both units.
20 Alpha Cellulose Corp., 265 NLRB 177, 178 fn. 1 (1982), enfd.
mem. 718 F.2d 1088 (4th Cir. 1983).
tensive counteractive campaign, as well as the Region’s well-
publicized complaint and notice of hearing and court injunction
filings, gave voters sufficient information to permit a free and
uncoerced choice in the election. It is true the Petitioner in-
formed voters of all relevant Board proceedings, repeatedly
accused the Intervenor of lying, and assured unit employees
that Kaiser’s benefit withdrawals could not lawfully be repeat-
ed. While the Board’s legal proceedings against Kaiser
weighted the Petitioner’s assurances, since Kaiser actively dis-
puted the charges, employees must have realized that only liti-
gation would resolve the issues. Indeed, one of the Intervenor’s
handouts emphasized that if unit employees chose the Petition-
er, they would receive established raises only through “The
NUHW Way: [after] Years of legal fights.” The timeline of
legal proceedings tended to affirm the Intervenor’s caution:
although complaint issued on August 27, the ULP hearing did
not open until October 18, the day balloting commenced, and
initial decision would not issue for nearly 2 months. The Peti-
tioner’s counter-campaign could not, when weighed against
pending litigation of indeterminate outcome and unremedied
ULPs, be reasonably expected to persuade voters that the Inter-
venor’s warnings were mere campaign propaganda. The una-
voidable inference to be drawn from these circumstances is that
MSW unit employees voted with objectively reasonable, albeit
inaccurate and ULP-induced, apprehensions that a vote for the
Petitioner was a vote for benefit reduction.
The Intervenor’s widely disseminated, consistent warnings
that Kaiser was likely to repeat its 2009 unlawful conduct in the
MSW unit if unit employees selected the Petitioner as their
collective-bargaining representative tended to stoke unwarrant-
ed and coerced voter fears. Given the Intervenor’s relatively
small margin of victory, the Intervenor’s conduct, viewed ob-
jectively, had a reasonable tendency to interfere with unit em-
ployees’ free and uncoerced choice in the election. According-
ly, I recommend that Objections 2, 3, 4, and 6, in the circum-
stances described by Objection 1, be sustained.
RECOMMENDATION
Based on the above, I recommend that Objections 2, 3, 4,
and 6 be sustained and that Objection 1 be overruled. Ac-
cordingly, I recommend that the Board election in Case 32–
RC–005774 be set aside and a new election be held.21 Inas-
much as I have recommended that Objections 2, 3, 4, and 6 be
sustained, I recommend that the mail-ballot election held in
Case 32–RC–005774 be set aside and that the representation
proceeding be remanded to the Regional Director for Region 32
for the purpose of conducting a second election.
Further, and in accordance with Lufkin Rule Co., 147
NLRB 341 (1964), and Fieldcrest Cannon, Inc., 327 NLRB

21 Pursuant to the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, within 14 days from the date of issuance of this Recom-
mended Decision, either party may file with the Board in Washington,
D.C., an original and eight copies of exceptions thereto. Immediately
upon the filing of such exceptions, the party filing same shall serve a
copy thereof upon the other parties and shall file a copy with the Re-
gional Director. If no exceptions are filed thereto, the Board may adopt
this Recommended Decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

768
109 fn. 3 (1998), I recommend that the following notice be
issued in the Notice of Second Election in Case 32–RC–
005774:
NOTICE TO ALL VOTERS

The mail ballot election held between October 18 and No-
vember 8 was set aside because the National Labor Relations
Board found that certain conduct of SEIU-UHW-West in the
circumstances of unfair labor practices committed by Kaiser
Foundation Hospitals and Southern California Permanente
Medical Group among three professional collective-bargaining
units of Kaiser employees in Southern California interfered
with the exercise of a free and reasoned choice among employ-
ees in the following unit:

All full-time and regular part-time medical social workers
employed by the Employers in positions covered by the col-
lective bargaining agreement between the Employers and
SEIU-UHW effective October 1, 2005, including Medical
Social Worker I, Medical Social Worker II, and Medical So-
cial Worker III; excluding any medical social worker assigned
to be Director of Social Services at any of the Employers’ fa-
cilities or to whom the Employers have given the authority to
hire, promote, discipline, discharge, or otherwise change sta-
tus or to effectively recommend such action, all employees
represented by other unions, confidential employees, guards,
and supervisors as defined in the National Labor Relations
Act.

Therefore, a new election will be held in accordance with the
terms of this notice of election. All eligible voters should un-
derstand that the National labor Relations Act, as amended,
gives them the right to cast their ballots as they see fit and pro-
tects them in the exercise of this right, free from interference by
any of the parties.22

22 Under the provisions of Sec. 102.69 of the Board’s Rules and
Regulations, exceptions to this Report may be filed with the Board in
Washington, DC, within 14 days from the date of issuance of this Re-
port and recommendations. Exceptions must be received by the Board
in Washington by August 2, 2011.