Marcus J. Lawrence Memorial Hospital

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marcus J. Lawrence Memorial Hospital and Office and Professional Employees International Union, Local No. 56, AFL-CIO. Cases 28-CA- 5142, 5190, and 28-RC-3582 May 19, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUSEDALE On January 31, 1980, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and cross-excep- tions and a supporting brief. The General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, 3 as modified herein.4 ' Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect, Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Among the credibility findings so affirmed is the Administrative Law Judge's crediting of King, rather than Borth, in the King-Borth ex- change, This credibility resolution results in the Administrative Law Judge's finding that a statement to the effect that union supporters would lose their jobs if the Union lost the election is not attributable to Re- spondent and, thus, is not a violation of Sec. 8(a)(1) of the Act. Since we agree that the credited testimony fails to establish a violation, we see no need to pass on the Administrative Law Judge's further finding that even if the discredited version of Borth were accepted there would have been no violation. 2 The Administrative Law Judge inadvertently failed to translate, to his Conclusions of Law, the full impact of his specific finding that Re- spondent impliedly threatened to close the Hospital in the event the Union won the election. Said Conclusions shall be modified accordingly by inserting in paragraph 3, following the phrase "loss of their jobs," the phrase "through the closing of the Hospital" The recommended Order and notice shall also be modified accordingly. s For the reasons cited in his separate opinions in Beasley Energy. Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), and Hambre Hombre Enterprises, Inc., d/b/a Panchito's, 228 NLRB 136 (1977), Chairman Fanning would make the bargaining order prospective as there is no evidence that the Union demanded and Respondent refused bargaining even though, as of November 25, 1978, such a demand could have been made. 4 In addition to the modification noted in the Order, infra, which con- forms the language of the Order and the notice, the Administrative Law Judge's proposed notice to employees shall be modified by deleting in full the fifth unnumbered paragraph 249 NLRB No. 90 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Marcus J. Lawrence Memorial Hospital, Cotton- wood, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(a): "(a) Restraining or coercing employees with regard to the exercise of their Section 7 rights by threatening them with loss of employment through the closing of the Hospital in the event they select a union to represent them for collective-bargaining purposes." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on December 19, 1978, in Case 28-RC-3582 be set aside, and that the petition therein be, and it hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT restrain or coerce our em- ployees with regard to their Section 7 rights by threatening them with loss of employment through the closing of our Hospital in the event they select a union to represent them for the purpose of collective bargaining. WE WILL NOT grant our employees wage in- creases in order to induce them to reject Office and Professional Employees Interna- tional Union, Local No. 56, AFL-CIO, or any MARCUS J. LAWRENCE MEMORIAL HOSPITAL 609 other labor organization whom they select as their collective-bargaining representative, but without prejudice to any wage increases or other economic betterments heretofore grant- ed. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL immediately recognize and bar- gain in good faith with Office and Professional Employees International Union, Local No. 56, AFL-CIO, as the exclusive collective-bargain- ing representative of our employees in the bar- gaining unit described below. Such recognition and bargaining shall be retroactive to Decem- ber 14, 1978. If we reach an understanding, we will reduce such agreement to writing and will sign and honor it. The bargaining unit is: All employees employed at our Cottonwood, Arizona, Hospital excluding doctors, regis- tered nurses, other professional employees, se- curity guards and supervisors within the mean- ing of the Act. MARCUS J. LAWRENCE MEMORIAL HOSPITAL DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me at Cottonwood, Arizona, on July 10-13, 1979, pursuant to an amended consolidated complaint issued by the Regional Director of the Nation- al Labor Relations Board for Region 28 on February 16, 1979. Earlier, on January 25, 1979, the Regional Director ordered consolidated with the original complaint certain issues arising from a representation election in Case 28- RC-3582. The amended consolidated complaint, based upon charges filed on December 8, 1978,1 and January 15, 1979, by Office and Professional Employees Interna- tional Union, Local No. 56, AFL-CIO (herein called the Union), alleges that Marcus J. Lawrence Memorial Hos- pital (herein called Respondent or the Hospital) has en- gaged in certain violations of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended; at the hearing the complaint was further amended to also allege a viola- tion of Section 8(a)(5) of the Act. The Union's representation petition was filed on No- vember 28 and sought a representation election among all of Respondent's nonprofessional employees. An elec- tion was held on December 19, pursuant to a Stipulation for Certification Upon Consent Election. Objections to conduct affecting the outcome of the election were filed by the Union on December 27. ' All dates herein refer to 1978 unless otherwise indicated Issues Whether or not Respondent prior to the election vio- lated Section 8(a)(l) of the Act by threatening, on three occasions, employees with loss of their jobs (either di- rectly or by threatening to close its Hospital) and by the disparate application of a no-distribution rule. If any or all of those violations are proven, I must decide whether a bargaining order is the appropriate remedy, particular- ly taking into account a postelection wage increase which is separately alleged to violate the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of both the General Counsel and Respondent. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits it is an Arizona corporation operat- ing a nonprofit health care institution in Cottonwood, Arizona, and further admits that its annual gross volume of business exceeds $250,000 and that during the same period it purchased goods and materials valued in excess of $5,000 which originated from sources outside Arizona. Accordingly, it admits, and I find, that it is a health care institution within the meaning of Section 2(14) of the Act and that it is engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. IlI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Participants Respondent is a general hospital located in Cotton- wood, Arizona. It services the entire Verde Valley, which has a population of approximately 40,000 people. Most of the people it serves live in Yavapai County, al- though one community, Sedona, is located in Coconino County. Aside from a cement plant located in nearby Clarkdale, Respondent is the largest employer in the Verde Valley. It is the only hospital between Prescott and Flagstaff. Until the fall of 1978 Respondent's administrator was Roland Wilpitz. For health reasons Wilpitz was unable to continue his duties that fall and Respondent's board of directors sought a successor. In mid-December the board selected Reid Wood. During the hiatus between Wilpitz and Wood the Hospital's assistant administrator, Richard Shanks, served as the acting administrator, assuming those duties on October 15 and relinquishing them to Wood during a transition period between December 15 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and January 15. Shanks has now resumed his duties as assistant administrator. Other officials of Respondent who are involved in this matter are Mike King, then the comptroller and now the director of finance; Dr. Robert H. Jochim, chief of staff and member of the board of directors; Dr. Joel E. Futral, cardiologist; Minnie Hostetter, nursing supervi- sor; and Don Smart, chief physical therapist. In approximately September, ward clerk Judy Porter, on a trip to Phoenix, sought the assistance of the Union, obtaining authorization cards from a union vice presi- dent. The Union's chief executive officer, Secretary- Treasurer Margie Wick, with the assistance of Porter and some others, obtained a mailing list of Respondent's nonprofessional employees and about October I mailed a letter and return-mail authorization envelope to all em- ployees on the list. Shortly thereafter ward clerk Frances Borth also became involved in the drive. The Union's In- ternational representative, Richard Holober, arrived in Cottonwood on December 5, 2 weeks before the elec- tion. Also in December, as the election drew near, about 18 employees, including some authorization slip signers, formed a committee opposing union representation. They distributed a two-page flyer stating their views. There is no contention that Respondent sponsored that committee or utilized it as its own counterorganizational tool. Where pertinent, testimony of members of that commit- tee shall be noted. B. The October 19 Conversation Between Smart and Figy On October 19, after the Union's organizing campaign was underway and after it had become a general topic for conversation among hospital employees, physical therapist Robin Figy had a conversation with her super- visor, Don Smart, physical therapy department head. She testified that Smart told her that he had worked in a unionized hospital in Douglas, Arizona, which had been unable to pay the contract wages, had gone bankrupt, and had been taken over by Cochise County. She said Smart told her, "It could probably happen here." In her pretrial affidavit she stated Smart had previous- ly worked in a hospital in Michigan or Ohio and de- scribed the conversation as having been in reference to one of those States. Before me she explained she was then confused because she thought Douglas was in Michigan or Ohio. Later, in an interview with one of Respondent's attorneys in Smart's presence, she admitted she said that Smart had told her regarding the topic of bankruptcy that "maybe it could, maybe it couldn't occur here." She later testified that she now believes Smart said, "[M]aybe it could happen here." In October, when the conversation occurred, Figy was a new arrival to Arizona, having lived there for only 3 months. Smart testified that, although he had once worked in a Michigan hospital, immediately before being hired by Respondent he had worked at Cochise County Hospital in Douglas, Arizona. He said that in his October conver- sation with Figy regarding that hospital he told her that the Retail Clerks Union had won a hotly contested elec- tion by a small margin and that shortly thereafter he had come to work for Respondent. He said he told her that, after he left, it had gone bankrupt and had been taken over by the county. He said he also told her that at the time it had gone bankrupt no union contract had yet been negotiated and the union's presence had nothing to do with that hospital's financial circumstances. He also said Figy asked him whether such a thing could happen at Respondent and he replied, "There is no way of knowing, it could or it could not." Furthermore, Smart admits having told other employees the same thing during coffeebreaks and the like. The General Counsel has not alleged his other conversations as violations. I was not impressed with Figy's ability to report accu- rately what Smart said. As a new arrival to the State she may well have been confused about the location of Douglas which, standing alone, might not be enough to warrant discrediting her. Yet, she first testified that Smart tied bankruptcy to unionization at Douglas and then said he told her "it could probably happen here." On two other occasions, one pretrial and one on cross- examination, she said Smart told her "maybe" bankrupt- cy could happen here and "maybe it couldn't." While even these testimonial differences are not particularly significant, together they cause me to view her testimony carefully. When compared to Smart, who testified in greater detail with both logic and clarity, I am compelled to credit him over her. His reference to the election and the noncontract status of the union at that hospital and his perception that the financial circumstances there had nothing to do with the union there is a detail which would unlikely be said if he were trying to coerce Figy. I conclude that Figy's testimony is not as reliable as Smart's and that the threat, as alleged, did not occur. C. The December 5 Pizza Hut Threat In the evening of December 5 the International's orga- nizer, Richard Holober, conducted a meeting of employ- ees at the Cottonwood Pizza Hut Restaurant. Approxi- mately 25 employees were present and that group had pulled 4 or 5 tables together for their discussion. In addi- tion, other patrons of the restaurant sat nearby. It ap- pears to be a typical pizza parlor, attendant with the noise and hurly-burly associated with such businesses. The meeting began about 7:30. At approximately 9:30, as the union business ended, Respondent's comptroller, Mike King, entered the restaurant ostensibly to purchase a takeout pizza. Larry Aksentowitz, a respiratory thera- pist attending the meeting, saw him and waved him over. Other employees who testified about King's presence were Albert Krug, Dennis Franco, and Frances Borth. Holober also testified about the meeting. It appears that King, whose original intention was simply to order a pizza, have a beer while he was wait- ing, and leave, decided to stay. He recognized it as a union meeting and as such told Aksentowitz he should not stay. However, Aksentowitz and some of the others urged him to stay as the meeting was over. King did so. Holober testified that after King arrived, when he learned who King was, he suggested King leave because his presence created the risk that he would be accused of unfair labor practices. King denies that. After sociability ---- MARCUS J. LAWRENCE MEMORIAL HOSPITAL 611 took over, Holober reports King needled him occasional- ly by suggesting that the Union's only purpose in orga- nizing the Hospital was to obtain a collective-bargaining contract with a dues-checkoff clause in it. King admits doing so. Later, according to Frances Borth, she was sitting with King at the same table, separated by employee Ro- berta Hubbard. Borth said King leaned back in his chair, tapped her on the shoulder, and talking behind Hubbard said he was going to "pull management" on Borth and told her she really should not "do this" but should give (acting administrator) Shanks a chance, saying Shanks was a "great guy" and he had done some good things for the Hospital. She testified further that "he also said that all employees that were connected with the organization of the union, would lose our job because the union would fail to get in." Borth said she responded by telling him she did not want to talk to him any more but also told him she was involved with the Union or she would not have been at the meeting. Borth did not repeat King's statement to anybody at that time but said that later that evening she reported it to Holober, Hubbard, and fellow employee Wanda Sue Baird. King testified that upon arriving at the meeting at ap- proximately 9:15 he socialized with Aksentowitz, Franco, and Krug and continued to do so on and off throughout his stay. Contrary to Holober and Borth, King says he did not move around and that Hubbard never sat next to him that night. He does recall that, at one point, from across the table Borth asserted some- thing to the effect that "everyone that was involved with the organization, the union activities, probably would be fired if the union did not get in." He said that he replied the Hospital was so short of help that he did not think there would be any action taken one way or the other whether the Union got in or not. Borth, on cross-examination, testified that she recalled the conversation well because King's use of the phrase "pull management" was unusual. Even so, despite that unique phraseology she failed to so quote him in her pre- trial affidavit. Hubbard, called as a witness to authenti- cate her authorization card, was not asked whether she overheard this conversation though from Borth's testi- mony it appears that she and King were speaking direct- ly in her ears. Frankly, I am skeptical of Borth's version here, par- ticularly as Hubbard did no: testify about the topic (per- haps she was engaged in another conversation and simply did not hear it). Even so, Borth's version was that King, rather than coercing people to vote against union representation, seemed to be favoring it (that conclusion is somewhat tempered by Borth's additional statement that King told her she should not be involved with the Union). Indeed, King's version, although he attributes it to Borth, was similar in import-that people would be fired if they did not vote for the Union. The question, however, boils down to the issue of who made the statement. In observing Borth I noted that she was an assertive individual; she also omitted from her af- fidavit the remark King made which allegedly prompted her recollection. In observing King I noted that he can- didly admitted needling Holober and he seems to have testified openly. I also note, as discussed infra, that Re- spondent was somewhat short-handed and was having difficulty filling some medically related jobs. Thus King's claim that he answered by saying he did not think Re- spondent would take any action one way or the other is a more probable version. In the circumstances, King's entire version seems the more probable. I find, therefore, that it was Borth, not King, who made the remark and she likely adopted it as his. In any event the remark as reported by both 2 tended to "coerce" employees to vote in favor of union representation-i.e., employees would lose their jobs if the Union failed to become the representative. Since the remark seems to have favored union representation, it would be anomalous to find a violation where the Union was the beneficiary of the remark rather than a victim. I regard the allegation here as unproven and so find. D. The Doctors' Meeting of December 14 On December 14 a series of four employee meetings was held by Respondent's management. Approximately 50 employees attended the 4 meetings, 15 at the first 3 and approximately 5 at the last. Testimony was taken only with respect to the first three. The meetings were conducted by two of Respondent's staff physicians, its chief of staff, Dr. Robert Jochim, and Dr. Joel Futral, a cardiologist who serves as the director of Respondent's cardiac care unit and its cardiac diagnostic laboratory. Also in attendance at each of the meetings was Acting Administrator Richard Shanks. Each meeting began with the explanation that the physicians were there to discuss the medical staffs view regarding the possible unioniza- tion of the Hospital. Although the physicians took care to preface their remarks by saying the views expressed were theirs, rather than the Hospital's, Shanks' presence, together with Jochim's membership on the board of di- rectors, demonstrates that their view was the same as the hospital administration's. Indeed, their agency status is admitted. Each meeting will be taken separately. Meeting No. 1 The first meeting began at approximately 7:30 a.m. It was conducted principally by Futral, as Jochim was late, having been in surgery that morning. Futral testified he told the employees he was there to express his opinion about what might happen to "patient care" if a union came into the Hospital. Futral had never worked in a unionized hospital himself, though he claimed familiarity through colleagues with Cook County (Illinois) Hospital, whose employees are union represented. He had, howev- er, worked at a Veterans Administration hospital. He as- serted, during the meeting, that union hospitals had re- strictive job assignment rules similar to those he had seen at the VA hospital. He told the employees that the VA hospitals, as a result of those rules, delivered inferior pa- tient care; so did Cook County Hospital, and employees could assume that Respondent would suffer the same fate. The thrust of his message was that unionization of 2 Neither Borth nor King heard each other's testimony. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Hospital would have a "detrimental effect" on pa- tient care. Futral said that, after Jochim arrived, Robin Figy and others complained that large amounts of money were being spent on constructing a new wing while the Hospi- tal was understaffed and employees were underpaid. Jochim said a question was also raised about how the Hospital could afford to buy expensive new equipment, such as the nuclear medicine apparatus, while not also paying its employees better. He replied that the medical staff was concerned with understaffing and underpay- ment as well, but it looked as if the new equipment would pay for itself. He denies that the topic of closing the Hospital was discussed. Six employees testified about that meeting. Figy re- called Futral said that, in the event the Hospital was unionized, patient care would fall. She remembers him saying the Hospital could not afford union wages and would close if the Union became the employees' repre- sentative. Howard Engel recalled Futral saying that if the Union got into the Hospital it would have to close because wages would undoubtedly be increased and the Hospital could not afford to pay union wages. Engel re- called, without specifically remembering the details, that bankruptcy was also discussed. Chalee Byrne testified that Futral gave a speech from an "unprepared text" saying a unionized hospital "would not prosper" and would probably close because people would not want to go to a unionized hospital. She recalled Futral was refer- ring to hospitals in general, not to Respondent specifical- ly. She also said both she and Figy asked how Futral could expect to obtain people to run the new equipment, but he replied that the machines would pay for them- selves. When Jochim arrived he said he could guarantee that, if the employees gave management a try, things would be better. Futral's also said that he was there to talk only about patient care, not about wages. She does not remember the subject of bankruptcy being mentioned and does not recall any discussion about the Hospital's ability to meet union demands. Steve Bentley recalled Futral's referring to material he had read and observations he had made about other unionized hospitals. Bently remembers Futral referring to the allegedly detrimental effects unionization would have on patient care. He also said there was no discussion re- garding the Hospital's closing if the Union came in. However, he remembers Futral's saying "In my opinion, what I have seen in the past, whenever a union came into a health care institution, because of the demands, it eventually went bankrupt." He admitted that when the subject of bankruptcy was raised the possibility that the Hospital might close crossed his mind. He also remem- bered Futral's saying that a hospital "back East" had gone bankrupt and had closed. Becky Lewis testified that Futral mentioned a Chicago hospital which had become unionized. She remembers him saying the quality of patient care dropped at that in- stitution when it was unionized and young physicians no longer wished to do residencies there. He also likened a unionized hospital to those operated by the Veterans Ad- ministration, saying that job descriptions in those systems made the delivery of medical care more difficult. She re- members an employee asking about the expensive fur- nishings and the money being spent on the new wing and asking why that money could not be used for higher pay. She remembers Futral replying that the question was not germane to the doctors' view. She denies there was any discussion of closing the Hospital. Cecil Shull, a housekeeper, testified Futral explained that the Hospital was everyone's source of income, that the expenses of operating a hospital are high-not all money is profit. She recalls Futral further observed that everyone's livelihood depended on the Hospital's profit- ability. He observed that some hospitals "had gone broke" due to union activity and patients might not wish to come to a unionized hospital because they would be afraid of strikes and lack of proper care. She remembers him saying "a unionized hospital would not be prosper- ous and might have to close down and we would all lose our jobs." Meeting No. 2 Futral testified that during this meeting Borth "took over," saying she doubted things would get better be- cause doctors did not want to put patients on her station. He recalled he and Jochim agreed that the old adminis- tration had been difficult to work with but that Jochim said to give the new administrator a chance. He remem- bered utilizing his VA hospital example. Jochim remem- bered saying he could not promise any wage increases but employees should give the new administrator a chance. He also recalled a discussion regarding the ex- pensive furniture and the money being spent on the new wing. Both physicians said that the topic of closing the Hospital was not discussed by them at all, although Joann Dillion remarked at the end of the meeting that, if employees failed to work, such a situation would close any business. Borth testified she had taken notes of the meeting but had lost them. She recalled Futral's saying he had worked in a union hospital and that patient care there was not good. She remembers Jochim responding to a question by saying he did not think the Hospital had suf- ficient money to meet the union demands and that Futral said the Hospital might have to close if the Union came in. She denies Dillion mentioned anything about closing the Hospital. Borth also remembers replying to Futral's remark that the Hospital had insufficient moneys to meet the union demands by referring to the money being spent to build the new wing. Rosemary Beecher is a registered nurse. Although not in this bargaining unit, she is a member of the unit sought by the Arizona Nurses Association in a contem- poraneous proceeding. She attended the second meeting and recalls Futral ended the meeting by saying some- thing to the effect that "the Hospital did not have to bar- gain with the union and . . . [and] even if they did . . . we probably wouldn't and couldn't meet their demands and we would have to close the Hospital down." At the time Beecher gave her testimony she was hospitalized in Respondent's facility and her testimony was taken in the hospital conference room. Dillion testified that the only time closing the Hospital was discussed was at the end of the meeting when she, in MARCUS J. LAWRENCE MEMORIAL HOSPITAL 613 a response to something Beecher had said, hotly re- marked, "Job security is when you're the very best you can be and you do the very best job you can. Otherwise, if you don't, you can close down [even] a hospital. Even the doctors won't have patients if they don't give quality care." Her testimony was corroborated by Jean Eaklor- Hood. Dillion is also certain that there was no remark to the effect that hospitals which go union go bankrupt or the Hospital might have to close if the Union came in. Meeting No. 3 At this meeting Futral said very little; Jochim carried the principal burden. Jochim remembers Judy Porter's asking if a prounion doctor could be present and he re- plied that he had no objection but there was not enough time to get one. He denied there was any reference to closing the Hospital or employees's losing their positions, saying that the third meeting was essentially a repeat of the second. Futral recalled that the atmosphere was "hostile and prounion" and that Porter asked most of the questions. He remembers an employee asking him if he had had any experience at a union hospital and that he replied he had none, but then repeated his VA hospital example. He denies anyone said there was a possibility that Respondent would close if the Union became the employees' representative. Al Krug remembers Jochim's asking employees to give the new administrator, Wood, a chance. He also remem- bers remarks made by each doctor, which Krug said were not connected for they were separated by a signifi- cant amount of time. The first was an apparently rhetori- cal question by Jochim: "What if the Hospital was unable to meet the demands placed on it by the labor union?" Later, Futral said either, "What if the Hospital had to shut down?" or "The Hospital might have to be shut down." Sally McNabb remembers Jochim's refer- ring to declining patient care and asking employees to give Wood a chance. She remembers his saying that other hospitals had had to close because of the advent of a union, but also remembers he was not specifically re- ferring to Respondent. Sandra Brindley recalled Jochim merely said he did not think the Union would be good for the Hospital and most of the the conversation was between Jochim and Porter. She said no one discussed the question whether the Hospital would close. Dennis Franco, who attended the meeting, testified he had blotted the meeting out of his head. Judy Porter, who is alleged to have taken over the meeting, was not questioned about it at all. In evaluating the relative crediblity of the doctors and the various employees I observe that five employees (Becky Lewis, Bentley, Dillion, Eaklor-Hood, and Brind- ley), who testified to the effect that no threats of closing were made were all members of the antiunion committee. Indeed, two of them, Eaklor-Hood and Brindley, auth- ored the committee's flyer. It should also be observed that Brindley, a cardiovascular technician who works closely with Futral and Becky Lewis, is a medical rec- ords typist who does some typing for Futral. In analyz- ing their testimony I shall assume that they have an an- tiunion bias. Two employees (Krug and Byrne) who tes- tified that Futral and Jochim made threats were members of the Union's original organizing committee and signed a public statement in favor of union representation. 3 Others who testified with seeming fervor for the Union were Figy and Borth. Likewise, I shall assume that these people have a prounion bias. Only a few employees seemed to be without visible bias. These were Engel, Shull, Beecher, and McNabb. That is not to say that they are not affected by bias, only that it was not as visible. It can be seen, fairly readily, that the reports of what transpired during the meeting vary depending on the point of view each witness had toward unionization. The apparently unbiased witnesses are not consistent either. Nonetheless, it seems to me that in balancing the various testimony and weighing the probabilities, tempered by my view of the witnesses' abilities to accurately recall, the General Counsel has proven that during the meetings the physicians made an implied threat to close the Hospi- tal in the event that the Union won the election. In reaching this conclusion I recognize that there is little likelihood that the Hospital would actually have closed no matter what the circumstances. Respondent is a modern hospital having a virtual monopoly on health care delivery in the Verde Valley and has recently begun building a $9 million expansion, referred to as the new wing. It has invested further in expensive medical technology designed to keep patients in the valley rather than having them seek treatment in larger communities which are less accessible. Thus, in the abstract it is un- likely that against such a background a threat to close would be made seriously. Nonetheless, the specter was raised, probably in the context that hospitals suffer from unionization in a way more acute than ordinary business- es. Thus it appears that the physicians' assertions that unionized hospitals failed to deliver the same quality medical care as nonunion hospitals, coupled with their observation that Respondent was the source of livelihood for all concerned, was designed to express the message that unionization carried the terrible risk of financial fail- ure. That specter was followed by a discussion of finan- cial possibilities, including bankruptcy or simply the fail- ure to maintain a reasonable level of business. Those two things can be translated easily to an implication of finan- cial collapse (the possibility of a reorganization under the Bankruptcy Act notwithstanding) or something less, both of which would result in at least partial, if not total, loss of employment. Even Bentley, an employee who op- posed union representation, said that, after Futral dis- cussed bankruptcy as an eventuality, the possibility of the Hospital's closing crossed his mind. Certainly his re- action is typical of most lay people when discussing bankruptcy. I do not, however, believe that the threat was as blatant as Figy reported. She said that Futral flatly stated that the Hospital could not afford to pay the union wages and would have to close if the Union got in. Closer to the mark is Byrne's version to the effect that a unionized hospital would not prosper and would probably close because patients would not go to a union- ' Porter also signed the public statement. -. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ized hospital. Shull's testimony is very close to that and essentially corroborates Byrne. Engel corroborates Figy but both versions seem too unsophisticated to be exactly accurate. No doubt their testimony accurately sums up the physicians' message, but their accounts are exaggerated. Becky Lewis is simply discredited on the basis that she is too close to Futral and her denial that Futral ever mentioned the Hospital's closing is improbable. With respect to the second and third meetings, princi- pally run by Jochim, the message was the same. In the second meeting there is the testimonial split between Borth and Beecher on the one hand and Dillion and Eaklor-Hood on the other. The latter two flatly state that neither physician said the Hospital would close and the only time the subject was discussed was when Dil- lion, in an angry response to Beecher, remarked that any business would close if employees failed to do their jobs. No doubt Dillion did make that remark as a parting shot, but that does not negate the version reported by Beecher and Borth. Beecher's testimony is particularly credible as she had no interest in the outcome of this particular elec- tion. She recalled Futral's saying the Hospital was not obligated to bargain with the Union and even if the obli- gation were imposed it could not meet the Union's de- mands and would probably close. She concedes those were not the exact words used by Futral but Borth testi- fied generally consistently. She recalled Futral's observ- ing that the Hospital might close if the Union came in and Jochim's saying he did not think the Hospital had sufficient moneys to meet union demands. The versions of Dillion and Eaklor-Hood are also consistent with my finding, for I doubt Futral or Jochim ever flatly said that Respondent would close. Their threat to close was couched in hypothetical or comparative phraseology. That being the case, it is likely that these witnesses did not view the statement as a threat to close and answered questions consistent with that view. Similarly, in the third meeting McNabb recalled one of the two physicians saying other hospitals had to close because of unionization, but he did not specifically say Respondent would close. Krug recalled Jochim's hypo- thetically asking what would happen if Respondent were unable to meet the union demands and Futral's later asking what would happen if the Hospital had to shut down or that the Hospital might have to shut down. Brindley's testimony denying that there was any discus- sion of closure is rejected. The sum of the above conversations simply is that Futral and Jochim, while carefully attempting to avoid straightforward threats to close the Hospital, nonetheless subtly, through the use of analogy and hypothesis, fa- shioned the specter of financial illness in the event of unionization and implied that the illness would eventual- ly be measured in terms of the employees' jobs. I con- clude that such a "prediction," absent any objective facts to support it, violates Section 8(a)(1) of the Act. See Jimmy-Richard Co. Inc., 210 NLRB 802, 804-805 (1974), enfd. 527 F.2d 803, 806 (D.C. Cir. 1975). E. The Alleged Incident Involving Hostetter and Porter Ward clerk Judy Porter testified that, a few days before the December 19 election, she and Nursing Super- visor Minnie Hostetter had a conversation at the nurses' station. Porter testified Hostetter had some medically re- lated papers with her and handed them to her together with the remark, "Here, I read you-all's material, you read mine." Porter said Hostetter gave her a copy of the flyer issued by the antiunion employee group known as Employees for Individual Rights. Hostetter said nothing further to her and Porter could not remember if the flyer was on the top of the medical material or mixed with it. She was unable to recall the shift or who else was on duty that day. She further testified that although Hostet- ter is from Texas she normally did not speak with a Texas accent, but on this occasion did so, apparently for emphasis. Hostetter, who has recently retired and is no longer employed by Respondent, denied the incident in its en- tirety. When she was shown the flyer she said she had never seen it until that moment and on cross-examination stated Respondent's lawyer had not even shown it to her prior to her taking the witness stand. She did, however, say whenever management issued campaign propaganda to the employees she, apparently like other supervisory staff members, distributed that material to rank-and-file employees as instructed. The General Counsel has alleged that Hostetter's dis- tribution of the antiunion committee's literature during working hours and in a working area violated Section 8(a)(l) of the Act, although the theory is not clear. First, although it is true that Respondent maintains a rule pro- hibiting employees from distributing literature "for any purpose" during working time or in working areas, Hos- tetter was not an employee, but a supervisor and not sub- ject to the rule. Second, it is doubtful that mere distribu- tion of a statement having an antiunion sentiment unac- companied by interference, restraint, or coercion violates the Act. Third, Hostetter's denial appeared credible to me. She had no ax to grind, no longer being employed by Respondent. Moreover, the case cited by the General Counsel, Bannon Mills, Inc., 146 NLRB 611 (1964), is distinguishable. To begin with, the rule in question there was promulgated as a discriminatory response to the union organizing drive; that did not occur here. Second, that rule applied to anyone and was not limited to em- ployees. Third, the supervisory issue was not addressed by the Board; and, fourth, it occurred in a context of massive unfair labor practices on other fronts. Accord- ingly, the case is not applicable here. In all the circum- stances, therefore, I conclude that the General Counsel has failed to sustain its burden of proof with respect to this allegation. F. The Postelection Wage Increase The election was conducted on December 19 and on December 27 the Union filed timely objections. Five days later, on January 1, 1979, the Federal Minimum Wage Law required an hourly increase of 25 cents to all those who were at the then minimum wage. Most of Re- MARCUS J. LAWRENCE MEMORIAL HOSPITAL 615 spondent's employees, of course, were paid rates higher than that called for by the Federal Minimum Wage Law, but some were not. A year previously, on January 1, 1978, when a similar increase was mandated, Respondent granted the increase only to those employees who were then at the statutory minimum. That "practice," if it can be termed such, was not followed in January 1979. At that time all rank-and-file employees were given a 25- cent across-the-board increase, not just those who were at the minimum wage. On January 5 Respondent issued a memo (G.C. Exh. 58) to all employees which contained the following state- ments: On January 1, 1979, the minimum wage per hour was raised from $2.65 to $2.90. Because we are legally able to do so, your man- agement is happy to take the opportunity to extend this twenty-five cent per hour increase to all em- ployees on the hourly payroll. The increase will appear on your next paychecks deliverable January 12. Unfortunately, the union is prolonging certifica- tion of the recent election. The uncertainty generat- ed by these actions precludes any possible further specific adjustments at this time. As can be seen the third paragraph blamed the Union for prolonging the election process and for creating an "un- certainty" which barred any further wage adjustments. The last remark seems particularly unjustified in light of certain material generated by Respondent toward the end of its 1977-78 and the beginning of its 1978-79 fiscal years. The fiscal year had ended on June 30, 1978. Ten days before, on June 20, at an administrative staff meet- ing Administrator Wilpitz granted a 6-percent across-the- board wage adjustment with an additional 2-1/2 percent available for merit increase. The minutes of that meeting state: "There will be no other raises in the hospital until July 1979; however [merit] evaluation will still take place." Similarly, on that date a department head meet- ing was conducted by Wilpitz in which he informed the department heads of the decision to implement the in- crease. He reiterated, according to those minutes, that "there would be no further salary increases for the re- mainder of the fiscal year 1978-79." On July 7 Wilpitz issued a memo to employees explaining the across-the- board wage increase. The memo stated, "We have chosen to give the entire amount available during this fiscal year at this time rather than require employees to wait until their normal evaluation date." Thus the memo implies that Respondent had reached its budgetary limit regarding wage increases for the entire 1978-79 fiscal year. Respondent observes that it had been faced for some time with two separate but related personnel problems. These were an inability to recruit qualified hospital em- ployees and an unfair pay system which had resulted in wage compression. The General Counsel does not dis- pute that Respondent was faced with these problems. Indeed, as early as October 1977 it had begun taking steps to rectify them. Respondent is a member of the Ar- izona Hospital Association and specially hired that orga- nization to study wage and salary data and to make rec- ommendations to correct the deficiencies. By February 1978 most of the data had been collected and a report followed on March 1. However, Wilpitz did not follow many of the AHA's recommendations. At some point during the year Wilpitz became ill; he later relinquished his post as administrator. When Shanks became the acting administrator the AHA representative, Tom Grimes, apprised him of the situation and of Wilpitz' in- action on the recommendations. Although Grimes had responsibility for the earlier study, Respondent also sought his counsel (through the AHA) in dealing with the two union organizing drives which began that fall. Respondent argues that the January 1979 25-cent grant to those employees whom Respondent was not mandated to give a raise was merely a partial attempt to follow the AHA's wage recommendations and had at least the bene- ficial legitimate business purpose of not further compress- ing wages and might have assisted recruitment as well. I might be persuaded by that argument if Respondent had not in its January 5, 1979, memo blamed the Union for the loss of certain additional salary increases in view of the fact that such increases had not even been budget- ed. In that circumstance I must conclude Respondent was attempting to reward its employees for having re- jected the Union and was also seeking an advantage in the event a second election was ordered. The Board has held both motivations to be unlawful. 4 G. The Bargaining Unit and the Union's Majority Status Respondent has admitted that the appropriate unit in- volved herein is: All employees employed by Respondent at its hos- pital in Cottonwood, Arizona, excluding doctors, registered nurses and other professional employees, security guards and supervisors within the meaning of the Act. The parties are in agreement for the most part with re- spect to the members of that unit except that Respondent alleges that two individuals, Katherine Schamp and James Randall, should be included. The General Counsel and the Union oppose their inclusion. In addition, Re- spondent raises questions regarding the validity of the designation of agency to the Union by four individuals. These are Judy Tourville nee Butler, Darlene Geiser, Roma Hamrick, and Vivian Derosia. The complaint alleges that the Union had obtained ma- jority status as of November 25 and maintained that status until shortly before the election of December 19 at which time the majority was destroyed by Respondent's unfair labor practices. Before discussing the question of 4 The reward cases include Eagle Material Handling of New Jersey. 224 NLRB 1529 (1976), 558 F.2d 160 (3d Cir. 1977) Westminster Communlrt Hospital. Inc., 221 NLRB 185 (1975). The advantage cases are Ielsenthal Plastics, Inc n/k/a Grede Plastics, a Division of Grede Foundries. Inc., 224 NLRB 1312 (1976); Centralia Container Corporation, 195 NRB 65() (1972) See also Raleyvs, Inc. 236 NLRB 971 (1978), enfd suh noma Retail Clerks Local 588, Retail Cerk International 4socsiaton,. 41-t.--C10. 587 F.2d 984 (9th Cir 1979). 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the validity of the challenged agency designations, I shall first deal with the issue of whether or not Schamp and Randall should properly be included in the unit. Katherine Schamp: Respondent contends Schamp should be included as she is an office clerical whose duties are not different from other office clericals cov- ered by the unit description. The General Counsel and the Union oppose her inclusion averring that she is a confidential employee. At the outset of the hearing the parties stipulated that Respondent already employed two confidential employ- ees, Mary Ann Van Landingham and Elaine Finley. Schamp was hired in November as a secretary and was assigned to work for the Hospital's assistant administra- tor, Harry Bouton. Bouton continued to be employed by Respondent for only 3 more months and, according to Acting Administrator Shanks, in November Bouton's au- thority had been substantially diminished for he was not included in the Hospital's future plans. Schamp became secretary to the project inspector overseeing the con- struction of the new wing in March 1979. Schamp testified she did general typing for Bouton, who had little work to do, and as a result during the latter part of 1978 was available to perform overflow work for others. She says Bouton did some personnel work, but during that time the personnel department had an acting manager, David S. Weiss. She said Bouton had no confidential files in his office; the personnel office had its own secretary, Finley; and she never had access to Finley's files. Respondent submitted several items Schamp had typed and she stated that they were typical of the matter that she was asked to work on. None of those appear to involve confidential material, although some are personnel related. On one occasion she typed a letter for Weiss acknowledging an employment applica- tion and offering an interview to a technologist. On an- other occasion she typed a memo for Bouton regarding an employee who was dissatisfied with her pay rate. She says that is the only time she did that. During the course of the election she typed one docu- ment for Grimes which could be described as campaign material and she also typed, pursuant to a directive from the personnel department, the voter eligibility listS which was later given to the Union after having been submitted to the Board's Regional Office. She describes both of those items as overflow work. Based on this testimony I am unable to conclude that she is a confidential employee. I am particularly im- pressed by the fact that the parties have stipulated that there are already two confidential employees employed by Respondent and it seems unlikely that a third would be required. Furthermore, none of the documents she typed was of a confidential nature and she did not, except in a marginal way, serve as a secretary to anyone engaging in labor relations work. Neither her typing one item of campaign propaganda nor her typing the eligibil- ity list, both on an overflow basis, warrants that conclu- sion. Accordingly, I conclude that she is a rank-and-file employee properly includable in the unit. Comtmonly know. n as Ihe Excelsior list. James Randall: Randall is a long-time employee having been hired in 1967 as a medical technician. He was the first individual so hired. He was followed by the current head of his department, Donald Hahn, a medical technologist. Later, other medical technologists were hired and for some time Randall remained a technician. Those technologists were certified by the American So- ciety of Clinical Pathologists as being competent medical technologists. Randall remained a technician until 1975 when he was certified as a medical technologist by the United States Department of Health, Education and Wel- fare for Medicare purposes. The other technologists in that department have bachelor's degrees as well as having successfully completed the ASCP national exami- nation. Randall does not have a bachelor's degree but has graduated from a medical technician school. He has performed essentially the same work as the technologists since his hire. Indeed, in 1975, after having been certified as a medical technologist by HEW, his duties remained exactly the same as they had been before. It appears that Randall and the other technologists routinely perform the same work. Only occasionally, when a particular task is beyond Randall's expertise, is the work given to one of the ASCP technologists. Like the others he regularly fills out lab reports,6 calls physicians to report abnormal test results, and routinely places those reports in the pa- tients' charts. In fact, from 6:30 to 8 a.m. every day Ran- dall works in the technology lab by himself. In view of the fact that Randall has the same supervi- sion as the other technologists, performs the same rou- tine functions, and is also considered a responsible tech- nologist by the Hospital it appears to me that he should be excluded from the bargaining unit as a professional as are the other technologists. The Mason Clinic, 221 NLRB 374, 375 (1975). Thus, having determined that Schamp should be in- cluded in the unit and Randall should be excluded it ap- pears from a stipulation that between November 25 and the December 19 election the voting unit ranged be- tween 94 and 98 employees. The next question which must be answered is whether the Union prior to the elec- tion had achieved majority status. Proof of that status must be determined by the authorization envelopes signed by the employees on behalf of the Union. Re- spondent challenges four such authorizations: Roma Hamrick: Hamrick, a licensed practical nurse in the coronary care unit, testified that she had received an authorization envelope (the back side of the business reply envelope containing authorization language) which she signed on October 8. She testified that she placed it on her television set at home but never sent it to the Union as she had changed her mind. Nonetheless, the Union submitted her envelope to the Board's Regional Office on November 28 together with others in support of the election petition. Contrary to her testimony, her pretrial affidavit states that she did mail the envelope. However, she now denies telling the Board investigator who drafted the affidavit that she had mailed it even though she admits signing the statement to that effect. 6 Hahn routinely reviews all the reports issued by the technologists. Randall's reports receive the same review as that given the ASCP's. MARCUS J. LAWRENCE MEMORIAL HOSPITAL 617 The business reply envelope does not show any evidence that it was mailed; usually the postal service causes those items to be affixed with a cancellation mark. Even though Hamrick now denies she mailed the doc- ument and even though she claims no one could have mailed it without her consent, I nonetheless conclude that she did so and that she intended to designate the Union as her collective-bargaining representative. Her admission in her affidavit that she had mailed it (even if that simply meant she had turned it over to a union so- licitor, which would explain the absence of a postmark) merely demonstrates that she has had second thoughts about her action and now wishes to cancel it. Such a cancellation in July 1979 is of no effect with regard to its validity in late 1978. Her card should be counted. Judy Tourville nee Butler: Butler's authorization card is dated November 21. She testified that she had a conver- sation in her home with Frances Borth and Union Orga- nizer Richard Holober and one of them told her that by signing the slip she was not joining the Union and its purpose was to bring in the Union so that "we have a chance to vote upon it." However, she did not then sign it. Several days later she went to a local laundromat, met with Borth, and actually signed the envelope. Butler's testimony here is out of chronology as Ho- lober did not arrive in Arizona until early December. If she had such a conversation with Holober it must have been after she signed it. Thus it does not seem likely that Holober was the individual who induced her to sign but Borth. Even assuming Borth made the remarks which Butler recalls, Butler admits having read the card and it is clear the remarks she attributes to the solicitor were not calculated to deliberately change the plain meaning of the authorization language or to induce her to disre- gard it. In that circumstance, Butler's card is deemed valid. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 606 (1969). See also Cumberland Shoe Corporation, 144 NLRB 1268 (1973); and Levi Strauss & Co., 172 NLRB 732 (1968). Vivian Derosia: Derosia is a licensed practical nurse who has been employed for about 3 years. She was one of the members of the Union's organizing committee in October and signed an authorization card on October 10. On December 14, after having attended one of the physi- cians' meetings discussed supra, section III,C, she wrote a letter to the Board's Regional Office attempting to revoke her previously executed card. It is clear that until that her authorization was unques- tionably valid and includable as part of the Union's claimed majority status. Nonetheless, her revocation fol- lowing on the heels of the unlawful threat made during the physicians' meetings must be deemed ineffective. The law is settled that a Respondent may not take advantage of its unlawful act in such a fashion. See Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 687 (1944), and The Colson Corporation v. N.L.R.B., 347 F.2d 128, 134 (8th Cir. 1965). Accordingly, I concluded that Dero- sia's card is valid for all purposes. Darlene Geiser: Geiser is a food service worker who testified she received her authorization envelope in the mail. She says she signed it and returned it just before Thanksgiving. However, the Union never received it and it appears to no longer be in existence. She was shown a sample envelope and testified she signed one exactly like it. The Board has held in Hedstrom Company, a subsidi- ary of Brown Group, Inc., 223 NLRB 1409, 1411 (i976), that it will accept as true an employee's testimony that he or she signed a card and will count that assertion for majority purposes even though the document itself has been misplaced. In Hedstrom the employee's testimony was corroborated by a fellow employee who remem- bered collecting it. That is not the case here, but the considerations are the same. It is unlikely that Geiser fal- sified her testimony here and there is no reason to think that she did. Accordingly, I conclude, based on Hed- strom, that Geiser in late November authorized the Union to represent her for collective-bargaining pur- poses. Her designation should be counted. Thus, Respondent's challenge to all four of the above- cited employee designations fails. On November 25 the unit consisted of 94 employees and the Union had ob- tained 49 valid authorizations, a majority. On November 28 the bargaining unit consisted of 96, but because one card signer had quit, the Union only had 48 designations. On that day it did not have a majority, only half. On the following day another employee was hired and the Union fell one person below half. Similarly, on Novem- ber 30 it fell one more person behind as another individ- ual was hired. However, on December I four more em- ployees signed authorizations. On that day the unit con- sisted of 98 and the Union had 51 valid designations, reattaining its majority. It maintained that majority there- after until the election, obtaining three more signatures as late as December 17. In that circumstance I conclude that as of Respondent's first unfair labor practice on De- cember 14 the Union had obtained the valid representa- tion designations from a majority of the bargaining unit employees. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act by impliedly threatening its employees with loss of their jobs by creating the specter of financial disaster in the event that they obtained union representation, I shall recommend that it shall be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. At the very least these threats, made by Doctors Jochim and Futral during the December 14 employee meetings, are grounds to set aside the election. See Dal-Tex Optical Company. Inc., 137 NLRB 1782 (1962), where the Board said: "Conduct which is violative r Section 8(a)(l) is, a for- tiori, conduct which interferes with a free and untram- meled choice in an election." But the Board has gone further and held such threats to be sufficiently egregious to warrant a bargaining order as a remedy. See The Stride Rite Corporation, 228 NLRB 224, 236 (1977), and the citation found therein, Milgo Industrial, Inc., 203 NLRB 1196, 1200-01 (1976). Here, too, it seems to me that the threats, while subtle, were not lost on the em- ployees whose livelihood depended on a viable economic entity such as Respondent, the second largest employer in the community. Accordingly, I find the threats to be 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so pervasive as to have undermined the Union's majority and to be unremedial except by a bargaining order. In addition, I have also found that Respondent took advantage of a minimum wage law requirement to grant a wage increase to all employees as a reward for their having voted against union representation and to gain an unfair advantage in the event of a second election. Both the Board and the courts have held that such a wage in- crease cannot be remedied in the ordinary way by a cease-and-desist order. Westminster Community Hospital, Inc.., supra, Raley's. Inc., supra. Certainly the across-the- board wage increase affected a large number of the unit employees and will have a long-lasting, if not permanent effect, on their freedom of choice in selecting or reject- ing a bargaining representative. In that circumstance, too, I conclude that a fair second election cannot be run. To remedy both types of unfair labor practices I shall recommend that the petition be dismissed and that Re- spondent be ordered to bargain with the Union. 7 The bargaining order shall be retroactive to December 14, the day it embarked upon its effort to undermine the Union's majority status. See N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969); Trading Port, Inc., 219 NLRB 298 (1978); and Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). 8 Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Marcus J. Lawrence Memorial Hospital is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and a health care insti- tution within the meaning of Section 2(14) of the Act. 2. Office and Professional Employees International Union, Local No. 56, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, on December 14, 1978, acting through its agents, Dr. Robert Jochim and Dr. Joel Futral, violat- ed Section 8(a)(l) by threatening employees with loss of their jobs in the event they selected the Union as their collective-bargaining representative. 4. Respondent, on January 1, 1979, as announced on January 5, 1979, violated Section 8(a)(1) of the Act by granting certain of its employees a wage increase as a reward for their having voted against union representa- tion and in order to obtain an unfair advantage in the event that a second election was directed. 5. The unfair labor practices found in paragraphs 3 and 4 above are so pervasive and egregious that they cannot be remedied by a cease-and-desist order and have created an atmosphere which will not permit the holding of a fair second election and therefore can only be remedied by an order requiring Respondent to recognize and bar- gain with the Union. 6. Respondent did not engage in any other unfair labor practices as alleged. I7 I is therefore unnecessary to determine if Respondent's conduct also violated Sec. 8(a)(5) as the remedy is the same in any event. I Because o(if the pervasive nature of Respondent's violations I shall recommend a broad cease-and-desist order. Hickmot Foods, Inc.. 242 NLRB No. 177 (1979). Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER9 The Respondent, Marcus J. Lawrence Memorial Hos- pital, Cottonwood, Arizona, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Restraining or coercing employees with regard to the exercise of their Section 7 rights by threatening them with loss of employment in the event that they selected a union to represent them for collective-bargaining pur- poses. (b) Granting wage increases to its employees in order to reward them for having rejected the Union as their collective-bargaining representative and to induce them to reject the Union as their representative in the event a second representation election is held. This order shall not be construed as to require rescission of wage in- creases or economic betterments previously granted. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Immediately recognize and bargain collectively with Office and Professional Employees International Union, Local No. 56, AFL-CIO, as the exlcusive bar- gaining representative of the employees in the following apropriate unit, retroactive to December 14, 1978, and, upon request, embody in a signed agreement any under- standing reached: All employees employed by Respondent at its hos- pital in Cottonwood, Arizona, excluding doctors, registered nurses and other professional employees, security guards and supervisors within the meaning of the Act. (b) Post at its Cottonwood, Arizona, facility copies of the attached notice marked "Apendix." '0 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. '0 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." MARCUS J. LAWRENCE MEMORIAL HOSPITAL 619 (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election held on De- cember 19, 1978, among Respondent's employees be set aside, and that the petition in Case 28-RC-3582 be, and it hereby is, dismissed.