Mercy General Hospital

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100 Mercy Healthcare Sacramento d/b/a Mercy General Hospital, Mercy Medical Plaza, Mercy Ameri- can River Hospital, Mercy San Juan Hospital, Methodist Hospital and Mercy Hospital Folsom and Health Care Workers Union, Local 250, Service Employees International Union, AFL– CIO, Petitioner. Cases 20–RC–17563 and 20– RC–17564 May 24, 2001 DECISION AND DIRECTION OF SECOND ELECTIONS BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH The National Labor Relations Board, by a three- member panel, has considered objections to elections held on January 27, 2000, and the hearing officer’s report recommending disposition of them. The elections were conducted pursuant to a Decision and Direction of Elec- tions. The revised tally of ballots in Case 20–RC–17563 shows 598 for and 701 against the Petitioner, with 89 challenged ballots; and in Case 20–RC–17564, the tally shows 193 for and 305 against the Petitioner, with 25 challenged ballots. The challenges were insufficient to affect the results of either election. The Board has reviewed the record in light of the ex- ceptions and briefs, has adopted the hearing officer’s findings and recommendations1 only to the extent consis- tent with this Decision and Direction of Second Elec- tions, and finds that both elections must be set aside and new elections held. I. INTRODUCTION Two units were stipulated to by the Employer and the Petitioner, and determined to be appropriate by the Act- ing Regional Director. These units, as described by the hearing officer, include employees employed by the Em- ployer at five California hospitals: Mercy General Hos- pital, located in Sacramento;2 Mercy American River Hospital and Mercy San Juan Hospital, located in Carmi- chael; Mercy Hospital Folsom, located in Folsom; and Methodist Hospital, located in South Sacramento. The unit determined appropriate in Case 20–RC–17563 is referred to as the service unit. The unit determined ap- propriate in Case 20–RC–17564 is referred to as the technical unit. 1 The Petitioner and the Employer have excepted to some of the hearing officer’s credibility findings. The Board’s established policy is not to overrule a hearing officer’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for reversing the hearing officer’s findings. In the absence of exceptions, we adopt pro forma the hearing offi- cer’s recommendations to overrule: the Petitioner’s Objections 1, 2, 3, 4, and 5; the portions of the Petitioner’s Objection 7 alleging that em- ployees were impermissibly restricted from wearing union pins, that a nonemployee organizer was improperly excluded from a hospital cafe- teria, that an agent of the Employer created the impression of surveil- lance when he told an employee that “there are people around the hos- pital watching you,” and that the Employer closed a side-door hospital entrance to coerce, restrain, and interfere with protected activities; and the Petitioner’s Objection 8 alleging that the Employer threatened em- ployees who engaged in protected activities. We also adopt, pro forma, in the absence of exceptions, the hearing officer’s finding that the evi- dence was insufficient to establish the supervisory status of any of the individuals alleged to have engaged in objectionable conduct. The hearing officer found certain conduct engaged in by agents of the Employer to be objectionable and other conduct to be unobjectionable. The hearing officer found, however, that the objectionable conduct was in- sufficient to warrant setting aside the elections. Both the Employer and the Petitioner filed exceptions to the hearing officer’s report. In its exceptions, the Peti- tioner alleges that the Employer engaged in additional objectionable conduct not found by the hearing officer, and that the totality of objectionable conduct was suffi- cient to warrant setting aside the elections. In its excep- tions, the Employer contends, inter alia, that the hearing officer erred in finding that the individuals who engaged in the conduct found objectionable are agents of the Em- ployer, and that no objectionable conduct occurred in any event. The resolution of the Petitioner’s and the Employer’s exceptions requires, as a threshold matter, that the Board determine whether the individuals alleged to have en- gaged in objectionable conduct are agents of the Em- ployer so that their conduct is attributable to the Em- ployer.3 Yale Industries, 324 NLRB 848, 851 (1997). If an agency relationship is established, we must then re- solve whether the conduct of these agents was objection- able. Finally, if the conduct of the Employer’s agents is deemed objectionable, the Board must determine whether this misconduct warrants invalidating either or both elections because the conduct was more than de minimis with respect to affecting the results of the elec- tions. Caron International, 246 NLRB 1120 (1979). II. ANALYSIS A. Agency The hearing officer concluded, inter alia, that Tom Pe- terson, Jean Scrafton, Candie Kenner, Scott Travis, Tim 2 Employees at Mercy Medical Plaza, which is associated with and located on the same property as Mercy General Hospital, also are in- cluded in the unit. 3 The hearing officer determined that the evidence was insufficient to establish that these individuals possessed supervisory authority under Sec. 2(11) of the Act. Because neither the Employer nor the Petitioner challenges this determination, our inquiry here is limited to the issue of agency. 334 NLRB No. 13 MERCY GENERAL HOSPITAL 101 Frates, Lori Kehoe, Allison Jones, Elizabeth Garcia, Lorraine Shalanar, K. D. Lowe, Sara Clemons, and Ja- bari Jahi4 are agents of the Employer.5 The Employer has excepted to the hearing officer’s agency findings, arguing that the hearing officer’s reliance on job titles as establishing agency status is misplaced. We agree with the Employer, for the reasons that follow, that the evi- dence is insufficient to establish that Clemons and Jahi were agents of the Employer. Otherwise, we agree with the hearing officer’s conclusions that each of the other above-named individuals is an agent of the Employer, but we do so for the following reasons. It is a long-established policy and practice of the Board to apply the common-law principles of agency. Allegany Aggregates, 311 NLRB 1165 (1993). Under the doctrine of apparent authority, an agency relationship is estab- lished where a principal’s manifestations to a third party supply a reasonable basis for the third party to believe that the principal has authorized the alleged agent to per- form the acts in question. Id.; see generally, Dentech Corp., 294 NLRB 924, 925 (1989). Thus, in determining whether the actions by individuals towards employees are attributable to the Employer, the test is whether “un- der all the circumstances, ‘the employees would reasona- bly believe that the employee in question was reflecting company policy and speaking and acting for manage- ment.’” Waterbed World, 286 NLRB 425, 426–427 (1987), supplemented by 289 NLRB 808 (1988), sup- plemented by 301 NLRB 589 (1991), enfd. sub nom. NLRB v. Omnix International Corp., 974 F.2d 1329 (1st Cir. 1992) (quoting Einhorn Enterprises, 279 NLRB 576 (1986), enfd. 843 F.2d 1507 (2d Cir. 1988), cert. denied 488 U.S. 828 (1988)); see also Victor’s Cafe 52, 321 NLRB 504, 513 (1996). 1. Tom Peterson Peterson is described by both Petitioner and Employer witnesses as “president,” “CEO,”6 and “COO” of the hospital.7 Less than 1 week before the elections, Peter- son addressed a group of four employees at Mercy Gen- eral, talked about voting in the upcoming elections, and told employees that they would lose their accrued, paid time off if employees selected the Petitioner to represent them. On a separate occasion, Peterson also explained Mercy General Hospital’s solicitation policy to a fifth employee, Robert Daggs, after Daggs had attempted to leave prounion literature in a hospital breakroom.8 Peter- son did so at the behest of Jean Scrafton.9 Peterson told Daggs not to be angry with Scrafton for removing union literature from the breakroom because she was “follow- ing the advice of management.”10 Under these circum- stances, where it was well known that Peterson was head of the hospital and where he spoke on the Employer’s behalf with employees about the hospital’s personnel policies, we conclude that employees would reasonably believe that Peterson was acting on the Employer’s be- half and, thus, was vested with apparent authority. Ac- cordingly, we conclude that Peterson is an agent of the Employer. 4 Jabari Jahi is referred to as such by the Employer in its exceptions; he is referred to as Jahib Jabari by the hearing officer. The record does not conclusively resolve this discrepancy. For the purpose of consis- tency, our decision will refer to this individual as Jabari Jahi, the name provided by the Employer. 5 The hearing officer also concluded that Sherry Franchescia was an agent of the Employer. Because no party has excepted to the hearing officer’s determination that the incident involving Sherry Franchescia did not occur during the critical period, we do not address the hearing officer’s conclusion that Franchescia was an agent of the Employer. 6 Testimony of Maria Ramirez, Tr. 246. 7 Testimony of Tim Frates, Tr. 474 (stating that “Tom is the COO of the hospital, and this is his hospital”). See also testimony of Robert Daggs at Tr. 347. 2. Jean Scrafton Scrafton is a clinical coordinator at Mercy General. Scrafton told an employee that if the Union came in, Scrafton would not be able to grant the employee 2 con- secutive weeks of time off during a year. The record establishes that Scrafton communicates employment matters to employees on behalf of the Employer. For example, Scrafton has disciplined11 employees within her department.12 Scrafton also assigns work to employees,13 and grants them time off.14 Accordingly, we conclude that employees would reasonably believe that Scrafton was acting for management when making the statement in issue here. 3. Candie Kenner Kenner is employed at Mercy General as a clinical co- ordinator. Kenner told employee Lisa Sweeting that if the Union were selected, bargaining would start from “ground zero.” Sweeting described Kenner as her “im- mediate supervisor.”15 Kenner communicates employ- ment matters to employees on behalf of the Employer. For example, Sweeting testified that Kenner fills out her 8 Testimony of Daggs, Tr. 347–349. 9 According to Daggs, Peterson told him that “Jean called me here to explain our policy because it seems like you don’t understand the pol- icy here.” Tr. 348. Daggs described Scrafton as the “PM supervisor, clinical supervisor.” Tr. 344. 10 Tr. 349. 11 As set forth above, there were no exceptions to the hearing offi- cer’s finding that there was insufficient evidence to establish supervi- sory status. 12 Testimony of Lisa Sweeting, Tr. 313. 13 Tr. 312–313. 14 Tr. 310; see also testimony of Daggs, Tr. 344. 15 Tr. 310. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102 annual performance evaluation and that the evaluation affects her ability to get a raise.16 In addition, Kenner assigns work to employees. The record also establishes that Kenner, like Scrafton, disciplined employees.17 Ac- cordingly, we conclude that Kenner was speaking for management when she raised the spectre of the loss of existing benefits. 4. Scott Travis Travis is employed at Mercy General Hospital. Travis made three statements that are alleged to constitute threats of adverse consequences if employees selected the Petitioner as their collective-bargaining representa- tive. Travis, who identified himself as a supervisor,18 communicates employment matters on behalf of the Em- ployer. Thus, the record shows that Travis evaluates employees and that the evaluation affects the employee’s ability to get a raise.19 In addition, Travis disciplines employees.20 Accordingly, we conclude that employees would reasonably believe that Travis was speaking for management when he made the statements alleged to be objectionable. 5. Tim Frates Frates works at both Methodist and Mercy General Hospitals. He is the manager for the Central Sterile Processing Department. Frates removed union literature from breakrooms at Methodist21 and Mercy General Hospitals22 and told employees to “do their business out- side the [Central Service] department.”23 Frates identi- fied himself as a supervisor.24 In addition, the record shows that Frates evaluates employees,25 advising them of the Employer’s assessment of their job performance. Accordingly, because Frates communicates employment matters to employees on behalf of the Employer, we con- clude that employees would reasonably believe that Frates’ conduct reflected the position of the Employer. 6. Lori Kehoe Kehoe is the Nutrition Services supervisor at Mercy Hospital Folsom. Kehoe prohibited employee Nikki Sparks from talking about the Union in Mercy Hospital Folsom’s cafeteria. The record shows that Kehoe evalu- ates employees and, thus, communicates the Employer’s assessment of their job performance to them.26 Under these circumstances, where Kehoe communicates em- ployment matters to employees on behalf of the Em- ployer, employee Sparks would reasonably believe that Kehoe was acting for management when she barred Sparks from talking about the Union. 16 Tr. 311. 17 Tr. 312–313. 18 Testimony of Scott Travis, Tr. 490. 19 Testimony of Darlene Burleson, Tr. 364, 369. 20 Testimony of Zoia Quinn, Tr. 98–99. 21 Testimony of Mark Nielsen, Tr. 404–405. 22 Testimony of Burleson, Tr. 378–379. 23 Testimony of Frates, Tr. 473. 24 Tr. 468. 25 Testimony of Burleson, Tr. 364, 369. 7. Allison Jones Jones is the supervisor of the Medical Telemetry unit at Mercy General Hospital.27 Jones told an employee that if the Union were selected she could no longer allow the employee to take certain days off. Jones also prohib- ited conversations about the Union at employee worksta- tions during working hours while permitting conversa- tions about other subjects. Jones disciplines employees and, thus, communicates to employees the Employer’s assessment of employees’ job performance.28 Under these circumstances, we conclude that employees would reasonably believe that Jones was speaking for manage- ment. 8. Elizabeth Garcia Garcia was identified at the hearing as a supervisor in the Orthopedic Surgery unit at Mercy General Hospital. Garcia told employee Zoia Quinn to remove a prounion message from a button. Unrebutted testimony estab- lishes that Garcia has the authority to discipline employ- ees and approve leave requests.29 The record shows that Garcia enforced the Employer’s no-solicitation policy.30 Under these circumstances, where the record reveals that Garcia communicates employment matters to employees on behalf of the Employer, employees would reasonably believe that Garcia was speaking and acting for the Em- ployer. 9. Lorraine Shalanar Shalanar is employed at Methodist Hospital. The re- cord establishes that, during the critical period, Shalanar left an urgent phone message with an employee and, sub- sequently, questioned that employee regarding whether the Petitioner’s organizers had accompanied the em- ployee into the hospital.31 Shalanar is identified by em- ployee Robert Nielsen in unrebutted testimony as the “nursing supervisor” who “runs the house” and is the “ultimate authority on weekends” at Methodist Hospi- tal.32 Shalanar did not testify. Based on Nielsen’s unre- butted testimony, we conclude that employees would 26 Testimony of Nikki Sparks, Tr. 120. 27 Testimony of Allison Jones, Tr. 447. 28 Testimony of Laura Zamora-Gaffney, Tr. 421–422. 29 Testimony of Quinn, Tr. 91–92. 30 Tr. 91. 31 Testimony of Nielsen, Tr. 407–408. 32 Tr. 407. MERCY GENERAL HOSPITAL 103 reasonably believe that Shalanar was acting for the Em- ployer. 10. K.D. Lowe Lowe is identified in the record as a hospital adminis- trator at Methodist Hospital.33 Lowe led a meeting dur- ing January 2000 in which he is alleged to have threat- ened employees with adverse consequences if the Peti- tioner were selected by employees as their collective- bargaining representative. At this meeting, attended by supervisors, managers, and employees, employees were given the opportunity to ask questions about union repre- sentation and discuss the Employer’s personnel poli- cies.34 Lowe responded to employment-related matters raised by employees.35 Under these circumstances, we conclude that employees would reasonably view Lowe as speaking on behalf of the Employer. 11. Sara Clemons Employee Margie Ulibarri identified Clemons as a su- pervisor at the Surgery Center,36 which is associated with Mercy American River Hospital. Clemons enforced the Employer’s policy against discussing the Union during work hours.37 There is no evidence, however, establish- ing that, prior to the incident alleged to be objectionable, employees would reasonably view Clemons as acting or speaking on behalf of management or reflecting company policy. Unlike the hearing officer, therefore, we con- clude that the record is insufficient to warrant a finding that Clemons was an agent of the Employer. 12. Jabari Jahi Martin Jone—an organizer for the Petitioner— identified Jahi as “the head of human resources” at Methodist Hospital,38 stating that Jahi introduced himself to Jones by that title.39 Jahi did not testify. Except for Jones’ bare assertions, there is no evidence establishing employees would reasonably believe that Jahi acted or spoke on behalf of management or was reflecting com- pany policy. Unlike the hearing officer, therefore, we conclude that the record is insufficient to warrant a find- ing that Jahi was an agent of the Employer. Accordingly, we conclude-—as did the hearing offi- cer—that the conduct of Peterson, Scrafton, Kenner, Travis, Frates, Kehoe, Jones, Garcia, Shalanar, and Lowe is attributable to the Employer. Thus, having concluded that these individuals were acting as agents of the Em- ployer, we turn to the issue of whether their conduct was objectionable. 33 Testimony of Myra Bennett, Tr. at 229. 34 Tr. at 229. 35 Tr. at 229–230. (Bennett testified that Lowe asked, “What [are] your issues?” and pointedly asked about “a separate time bank” for employees’ sick leave, family health benefits, and pay raises.) 36 Testimony of Margie Ulibarri, Tr. at 432. 37 Tr. at 433. 38 Testimony of Martin Jones, Tr. at 143. 39 Id. B. Alleged Objectionable Conduct 1.Threats made to hospital employees The hearing officer determined that threats made by six agents of the Employer—Travis, Scrafton, Jones, Peterson, Kenner, and Lowe—constituted objectionable conduct. We agree. With regard to Travis, Scrafton, Jones, and Peterson, the hearing officer credited employee testimony that each one of them told employees that they would no longer receive certain benefits that they were currently receiv- ing, if they selected the Petitioner as their bargaining representative. Travis told employee Burleson, inter alia, “that if the union came in that we wouldn’t be able to take time off, we would have to give at least a year in advance for vacation.”40 Scrafton told employee Sweet- ing that if the Union came in she would not be able to grant 2 weeks consecutive time off to Sweeting and that other employees would lose their ability to visit their families because of this restriction.41 Jones told em- ployee Zamora-Gaffney that if the Petitioner won the election, Jones would no longer be able to schedule cer- tain days off for employees. And employee Ramirez testified that Peterson told employees that they would lose their accrued, paid time off if they selected the Peti- tioner to represent them.42 It is well established that such threats are objectionable. Story Oldsmobile, Inc., 244 NLRB 835, 838 (1979). (“[T]he threat of loss of vacation benefits or other scheduled time off clearly tends to inter- fere with [employees’] Section 7 right to seek union rep- resentation.”) The Employer argues that, in making these statements, Travis, Scrafton, Jones, and Peterson were simply refer- ring to a collective-bargaining agreement that the Peti- tioner had with another employer. The Employer’s con- tention is not supported by credible evidence. In the case of Travis and Jones, the Employer’s argument is based on their testimony, which was not credited. And in the case of Scrafton, it is not supported by the testimony of Sweeting, which was credited. With regard to Peterson, employee Ramirez specifically denied that Peterson re- ferred to a collective-bargaining agreement,43 and Peter- son did not testify. We therefore reject the Employer’s argument, and find that each of these Employer agents 40 Testimony of Burleson, Tr. at 366. 41 Testimony of Sweeting, Tr. at 314–315. 42 Testimony of Ramirez, Tr. at 248. 43 Tr. at 252. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104 engaged in objectionable conduct by threatening em- ployees with loss of benefits if they selected the Peti- tioner as their bargaining representative. The hearing officer found that agent Kenner told em- ployee Sweeting that if the Petitioner won the election, bargaining would start at “ground zero” and that employ- ees “wouldn’t have anything.”44 The Board has held that an employer’s statement that negotiations would start from “ground zero” if employees selected union repre- sentation constitutes an unlawful threat. Webco Indus- tries, 327 NLRB 172, 172 fn. 4 (1998), enfd. 217 F.3d 1306 (10th Cir. 2000) (quoting Plastronics, Inc., 233 NLRB 155, 156 (1977)). In Plastronics, the Board stated that “[s]uch statements are objectionable when, in con- text, they effectively threaten employees with the loss of existing benefits and leave them with the impression that what they may ultimately receive depends in large meas- ure on what the Union can induce the employer to re- store.” Id. Such comments, however, are not objection- able “when additional communication to the employees dispels any implication that wages and/or benefits will be reduced during the course of bargaining and establishes that any reduction in wages or benefits will occur only as a result of the normal give and take of collective bargain- ing.” Id. The Employer presented no evidence placing Kenner’s statement in such a context. Kenner did not testify. Thus, we conclude that Kenner’s statement con- stituted a threat and is objectionable. Id. The statement attributed to agent Lowe by employee Bennett was that, under the future union contract, em- ployees would be forced to give 60 days’ advance notice for any time off requests. At the time of Lowe’s state- ment, employees were not required to give 60 days’ ad- vance notice when requesting time off. Bennett replied that the rules governing time off would be dependent on the contract that was negotiated by the parties. The Employer argues that Bennett’s comment miti- gated any threat flowing from Lowe’s statement. We disagree. Under similar circumstances, in St. Vincent’s Hospital, 244 NLRB 84, 92 (1979), the Board found impermissible statements from supervisors that if em- ployees voted for union representation, they would no longer be able to follow the current practice of granting requests for time off. In that case, the supervisors subse- quently “failed to qualify their language” that the loss of benefits would occur if employees voted for union repre- sentation. Id. Here, Lowe never disavowed or qualified his statement that employees would lose an established benefit if employees voted for union representation. Ac- cordingly, we conclude that the circumstances surround- ing Lowe’s exchange with employees in no way militates against the conclusion that his comments constituted an objectionable threat of loss of benefits. 44 Testimony of Sweeting, Tr. 317–318. 2. Surveillance The hearing officer determined that the Employer en- gaged in objectionable surveillance when security guards hired by the Employer followed employees at Mercy General Hospital, Methodist Hospital, and Mercy San Juan Hospital. The hearing officer also concluded that the Employer engaged in objectionable surveillance through the use of a security camera at the main entrance into Mercy General Hospital. The Employer challenges these determinations by the hearing officer. We agree, except as set forth below, with the hearing officer’s con- clusion that the Employer engaged in objectionable con- duct in both instances, but we do so for the following reasons.45 The hearing officer’s conclusion that open union ad- herents Quinn, Burleson, and Teresa Schwager at Mercy General Hospital, Susan Cripe at Methodist Hospital, and Karissa Ann Lujan of Mercy San Juan Hospital were followed by security guards is fully supported by the record. The hearing officer credited the testimony of these employees that they were regularly and deliberately followed by security guards, and that fellow employees noticed that they were being followed.46 There is noth- ing in the record—other than contradictory, discredited testimony from Employer witnesses—supporting the Employer’s exception. As stated supra, the clear pre- ponderance of the evidence establishes that the hearing officer properly resolved conflicts in witness credibility. Accordingly, we conclude that the Employer’s surveil- lance of employees Quinn, Burleson, Schwager, Cripe, and Lujan was objectionable.47 45 The Petitioner excepts to the hearing officer’s conclusion that the Employer’s hiring of additional security guards during the critical pe- riod did not constitute objectionable surveillance of employees’ union activities. We conclude, for the reasons stated by the hearing officer, that the Employer’s hiring of additional security guards did not consti- tute objectionable surveillance. In addition, as stated supra, we do not agree with the hearing offi- cer’s conclusion that Jahi was an agent of the Employer. Thus, we do not adopt the hearing officer’s finding that Jahi engaged in objection- able surveillance through his activities at Methodist Hospital. 46 Testimony of Susan Cripe, Tr. 137–138. (“My nursing co- workers had noticed the man following me[.]” “They were just dis- cussing how it was apparently obvious that he was following me.”) See also testimony of Quinn, Tr. 83. 47 However, contrary to the hearing officer, we find, in agreement with the Employer, that the alleged following of employee Bright dur- ing his meeting in the Mercy General Hospital cafeteria did not consti- tute objectionable surveillance because the record does not show that the incident occurred during the critical period. MERCY GENERAL HOSPITAL 105 The hearing officer also concluded that it was objec- tionable for the Employer to point its security camera directly at employees engaged in union leafleting outside of Mercy General Hospital. The Employer challenges this conclusion, arguing that its observation of employee campaign activities on its property is not objectionable and comports with conduct that the Board deemed per- missible in Roadway Package System, 302 NLRB 961 (1991). According to the Employer, “[o]bservation in this particular instance would have been warranted both because of the pre-existing practice of focusing the cam- era on that location at shift changes, and because the site can be restrictive and contains substantial pedestrian and vehicular traffic.” In Roadway Package System, the Board concluded that a manager who visibly observed employees as they dis- tributed prounion literature on the employer’s property did not violate Section 8(a)(1) because, “where . . . em- ployees are conducting their activities openly on or near the company premises, open observation of such activi- ties by an employer is not unlawful.” Id. at 961. How- ever, the Board also has recognized that, “absent proper justification, the photographing of employees engaged in protected concerted activities violates the Act because it has a tendency to intimidate.” F. W. Woolworth Co., 310 NLRB 1197 (1993) (citing Waco, Inc., 273 NLRB 746, 747 (1984)). The Board warned in F. W. Woolworth that “[w]hen an employer’s surveillance activity constitutes more than ‘mere observation,’ the Board has found a violation of the Act.” Id. at 1197 (citations omitted). “Photographing and videotaping clearly constitute more than ‘mere observation’ because such pictorial record- keeping tends to create fear among employees of future reprisals.” Id. Thus, the facts in Roadway Package System are distin- guishable because that case did not involve the use of a security camera but, instead, concerned a manager who merely observed employees as they leafleted. Here, the hearing officer found that the Employer pointed its secu- rity camera at employees as they distributed pro-union leaflets outside Mercy General Hospital, and “that the direction in which the camera was pointing on such oc- casions did not result from the established way in which the camera was operating.” The hearing officer also found, and we agree, that the Employer failed to intro- duce evidence sufficient to demonstrate a business justi- fication for engaging in surveillance of employees’ union activity. The Employer also argues that the camera’s operation was reviewed prior to the critical period by Region 20 of the Board. Even assuming that such a review occurred, however, at issue is how the security camera actually was operated by the Employer during the critical period, i.e., whether the camera’s operation would have the reason- able tendency to intimidate employees in the exercise of their protected rights. Here, we find that the security camera’s actual used during the critical period had the reasonable tendency to intimidate. Accordingly, we af- firm the hearing officer’s finding of objectionable sur- veillance. 3. Interrogation The hearing officer also concluded that an agent for the Employer, Shalanar, interrogated employee Nielsen at Methodist Hospital, concerning his union activities. Specifically, the hearing officer found that Shalanar asked Nielsen to identify the two nonemployees who accompanied him in the hospital during his lunchbreak, whether any organizers were present, and whether any organizing occurred. Shalanar did not testify. The Em- ployer challenges the hearing officer’s conclusions, argu- ing that Shalanar’s questioning of Nielsen was not an interrogation about an employee’s union sympathies but concerned an activity that was not protected (the pres- ence of two strangers touring the hospital). Whether the questioning of an employee concerning union activity constitutes objectionable interrogation is determined by all of the existing circumstances, includ- ing the background, nature of the information sought, the identity of the questioner, and the place and method of interrogation. Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. Hotel & Restaurant Em- ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). See also NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338 (5th Cir. 1980), cert. denied 449 U.S. 889 (1980). In Laredo, the U.S. Court of Appeals for the Fifth Circuit observed: [A]n employee is entitled to keep from his employer his views so that the employee may exercise a full and free choice on whether to select the Union or not, unin- fluenced by the employer’s knowledge or suspicion about those views and the possible reaction toward the employee that his views may stimulate in the employer. Id. at 1342 fn. 7. In Sea Breeze Health Care Center, 331 NLRB 1131 (2000), the Board determined that a supervi- sor’s questioning of employees that “made it clear to them that the Respondent wanted to find out about any union organizing activity, and implied to the employees that they were to let [the respondent] know what they found out” violated Section 8(a)(1). See also Crown Cork & Seal Co., 308 NLRB 445, 449 (1992) (employer’s questioning as to who served on a union organizing committee “went well beyond the question of [the employee’s] own union activi- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106 ties and was an attempt to seek out information concerning how widespread union support was”), enf. denied on other grounds 36 F.3d 1130, 1142 (D.C. Cir. 1994). Here, Nielsen’s uncontradicted testimony is that Sha- lanar asked whether he had engaged in union organizing at the hospital. Thus, contrary to the Employer’s asser- tion, Shalanar’s question directly inquired into Nielsen’s protected union activities. Under these circumstances, we agree with the hearing officer that Shalanar’s ques- tioning of Nielsen was objectionable. Rossmore House, supra. 4. Employer restrictions on union activity a. Conduct found objectionable by the hearing officer The hearing officer concluded that on several occa- sions the Employer impermissibly restricted union activi- ties at the Employer’s facilities.48 In each instance, the Employer excepts to the hearing officer’s conclusions. As to employee Hensley, who is employed in the ser- vice unit at Mercy General, the hearing officer found that the Employer, through agent Jones, discriminatorily pro- hibited conversations about the Union at employee work- stations while permitting conversations covering other subject matters. Thus, the hearing officer concluded that the Employer had engaged in objectionable conduct. The Employer argues that Jones was attempting to main- tain order in a patient care area, which the Employer as- serts is permissible under Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978). Although the Employer argues that Beth Israel Hospi- tal allows the Employer greater control to prohibit solici- tation in patient care areas, nothing in that decision em- powers an employer to discriminate against conversa- tions pertaining to the Union. See Opryland Hotel, 323 NLRB 723, 728–729 (1997) (stating that “[w]here an employer maintains a no-solicitation rule which is valid it must be applied uniformly, not sporadically, not springing up only when union activities begin, and not singling out union activities only for enforcement”). Here, even accepting the Employer’s assertion that the incident took place in a patient care area, Hensley’s tes- timony that employees discussed other subject matters without limitation in the same area of the hospital is not contradicted. Accordingly, we agree with the hearing officer that the Employer’s discriminatory prohibition against union talk was objectionable. As to employee Quinn, who is employed at Mercy General, the hearing officer concluded that Employer agent Garcia told her to remove a ribbon containing a prounion message from a button. The Employer does not dispute Quinn’s account, but argues that Garcia’s actions were permissible because the removal of the message was necessary to maintain the integrity of the hospital’s uniform. 48 As stated supra, we disagree with the hearing officer’s conclusion that Clemons was an agent of the Employer. Accordingly, we find that Clemons’ activities did not constitute objectionable conduct. The Board has held that the wearing of pins by em- ployees engaged in protected activities may not be pro- hibited absent special circumstances. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); see also St. Luke’s Hospital, 314 NLRB 434, 435 (1994) (finding that the record did not support the company’s assertion that pa- tients would become upset by a button’s prounion mes- sage). As found by the hearing officer, the message on the button read, “working together works SEIU Local 250.” Similar to St. Luke’s, there is no evidence in the record that the button’s message in any way undermined the integrity of the hospital’s uniform. The fact that the Em- ployer permitted the button itself, which is described by the hearing officer as a “little fuzzy, purple ball with eyes, antennae and feet on it,” to remain visible on the uniform belies the Employer’s assertion that it in any way was concerned with the button’s effect on the hospi- tal’s uniform. That the Employer required Quinn to re- move only the ribbon containing the prounion message supports the hearing officer’s conclusion that the Em- ployer interfered with an employee’s exercise of a pro- tected activity. St. Luke’s, supra. Accordingly, we agree with the hearing officer that the Employer’s conduct was objectionable.49 b. Conduct not found objectionable by the hearing officer The Petitioner excepts to the hearing officer’s conclu- sion that an incident involving employee Sparks at Mercy Hospital Folsom was not objectionable because it did not occur during the critical period. Specifically, Sparks stated in testimony credited by the hearing officer that Employer agent Kehoe verbally reprimanded her for talking about the Union while working. The Petitioner argues that, although Sparks’ testimony does not estab- lish the incident’s timing, Kehoe’s testimony does estab- lish that the incident took place well within the critical period. 49 For the reasons stated by the hearing officer, we also agree with his finding of objectionable conduct based on security guard Barry’s interference with employees’ right to express their support for the Un- ion to the Speaker of the California Assembly when he visited Mercy General Hospital. Member Truesdale finds it unnecessary to pass on this finding given that any findings of objectionable restriction of union activities on the Employer’s premises by Barry would be cumulative. MERCY GENERAL HOSPITAL 107 The Petitioner’s assertion is correct.50 Accordingly, we conclude that the hearing officer erred in determining that the conversation between Sparks and Kehoe did not occur during the critical period. Further, as found by the hearing officer, Sparks testified that while working em- ployees discussed a variety of nonwork subjects without restriction. This testimony was not contradicted. No similar restrictions were placed on other subject matters. The Employer therefore engaged in objectionable con- duct by discriminating against employee discussions re- garding the Union. See Opryland Hotel, supra. The Petitioner also excepts to the hearing officer’s failure to find objectionable the Employer’s restriction during the critical period on the distribution of union literature in the Employer’s facilities. Specifically, the hearing officer found the restrictions unobjectionable because they began before the critical period began. The hearing officer stated: According to the Union’s evidence, Union literature and notices were treated differently from other non- work related notices and literature. Two of the Em- ployer’s supervisors who acknowledged removing Un- ion literature and notices from break rooms, [agent] Frates and [agent] Scrafton, testified that they started such removals in about March and April 1999 . . . . There is no testimony showing that the Employer’s pol- icy was first enforced during the critical period from November 15, 1999 to the date of the election. There- fore, the maintenance of the Employer’s policy after the start of the critical period does not constitute objec- tionable conduct, even if the establishment of the policy was initially motivated by a desire to prevent the distri- bution and posting of Union materials within the Em- ployer’s facilities. Hearing officer’s report at 31. The Petitioner argues that it was objectionable for the Employer to remove union litera- ture from breakrooms during the critical period. We agree with the Petitioner. It is well settled that an employer may not confiscate prounion literature from employee breakrooms. Venture Industries, 330 NLRB 1133, 1134 (2000). Here, as found by the hearing officer, Employer agents Frates and Scrafton removed and threw away prounion literature from breakrooms at the Employer’s facilities during the critical period. Consistent with the Board’s holding in Venture Industries, we find that the Employer’s conduct was objectionable because it interfered with employees’ right to distribute union literature in nonwork areas on nonworking time. Further, contrary to the hearing offi- cer, we also find that it is irrelevant that the Employer’s policy of removing union literature from the breakrooms may have begun before the start of the critical period. See Custom Trim Products, 255 NLRB 787, 788 (1981) (overbroad no-distribution rule held to be objectionable, even thought it was first posted outside the critical pe- riod). 50 Testimony of Lori Kehoe, Tr. 507. (Q: “When did—when was this conversation that you had with Ms. Sparks?” A: “It was January 15th.”) The critical period is November 15, 1999, to January 27, 2000. C. Impact of the Objectionable Conduct On the Elections Having found that the Employer engaged in objection- able conduct, we turn to the issue of whether this mis- conduct warrants setting aside the elections. “In resolv- ing the question of whether certain Employer misconduct is de minimis with respect to affecting the results of an election, the Board takes into consideration the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors.” Caron International, 246 NLRB 1120 (1979). The hearing offi- cer found that the Employer’s objectionable conduct “had a minimal impact on the election process” and, thus did not require setting aside the elections. We disagree. The first factor to be considered in determining whether the Employer’s conduct warrants setting aside the elections is the number of incidents involved. Here, a significant number of instances of objectionable conduct occurred, including six incidents involving surveillance, six incidents involving Employer threats, and one inci- dent of interrogation. In addition, the Employer’s objec- tionable conduct included five instances where it imper- missibly restricted union activity in its facilities. We find that the number of instances of objectionable conduct engaged in by the Employer was more than minimal.51 Another factor to be considered in determining whether the Employer’s conduct warrants setting aside the elections is the severity of the conduct. We disagree with the hearing officer’s conclusion that the Employer’s conduct was “not sufficiently serious” to warrant setting aside the elections. The Board has held that the employ- ees’ opportunity to be informed as to the issues in the exercise of their statutory right to vote is of primary im- portance. Excelsior Underwear, 156 NLRB 1236, 1238 (1966). Employees must have “an effective opportunity to hear the arguments concerning representation.” Id. Thus, conduct that impermissibly interferes with the dis- 51 Although Member Truesdale finds it unnecessary to pass on one of the five incidents in which the Employer is found to have impermis- sibly restricted union activity in its facilities, he agrees that the number of instances of objectionable conduct engaged in by the Employer was more than minimal. He also notes that this incident is only one of a large number of instances of objectionable conduct found to have oc- curred at Mercy General Hospital. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108 semination of campaign information to employees has a tendency to interfere with employees’ free choice in the election. See generally AK Steel Corp., 317 NLRB 260 (1995); see also Alcohol & Drug Dependency Services, 326 NLRB 519 (1998) (the Board finding objectionable the employer’s tardy furnishing of an Excelsior list and, in ordering a new election, stating that the objectionable conduct interfered with employees’ opportunities “to be informed of the arguments concerning representation, so that that they can freely exercise their Section 7 rights”). Here, much of the objectionable conduct engaged in by the Employer had the effect of restricting the employees’ access to information concerning the issues raised by the organizational campaign. For example, the objectionable surveillance reasonably had the effect of discouraging employees from leafleting for the Union. Removing campaign materials from hospital breakrooms, discrimi- natorily prohibiting employees from talking about the Union at workstations, and prohibiting an employee from wearing a button containing a prounion message, all had a tendency to inhibit the free flow of information and employees’ willingness to participate in union campaign activities. The objectionable threats and interrogation also had a tendency to seriously inhibit the employees’ willingness to engage in union activity, and to impede the free flow of information. Accordingly, we find the Employer’s objectionable conduct to be sufficiently seri- ous to warrant setting aside the election. We also disagree with the hearing officer’s conclusion that the Petitioner failed to establish significant dissemi- nation of the Employer’s objectionable conduct. A large number of instances of objectionable conduct occurred at Mercy General Hospital, the largest hospital; but objec- tionable conduct also occurred at Methodist Hospital, Mercy San Juan Hospital and Mercy Hospital Folsom. The record demonstrates that a large number of employ- ees, from both units, were told of or witnessed such con- duct.52 In addition, a large, but unknown, number of employees in both units entering and exiting the hospital during shift changes and at other times would have ob- served the Employer’s objectionable videotape surveil- lance at Mercy General Hospital. A large, but also un- known, number of employees in both units at Mercy General Hospital, Methodist Hospital, and Mercy San Juan Hospital likely would have noticed the objection- able conduct of security guards following prounion em- ployees. Another group of employees witnessed the ob- jectionable conduct of a security guard in front of Mercy General Hospital during the Petitioner’s campaign event. Another unknown number of employees in both units were directly affected by the various restrictions on cam- paigning and literature distribution imposed by the Em- ployer. Thus, contrary to the finding of the hearing offi- cer, the record demonstrates that, despite the large size of the units, the Employer’s objectionable conduct was widely disseminated among employees in both units. 52 As to the objectionable threats, Burleson testified that other em- ployees heard Travis’ threats, and Sweeting testified that several em- ployees heard Kenner’s threats. Ramirez testified that three other em- ployees heard Peterson’s threat. Bennett testified that 10 to 15 employ- ees heard Lowe’s threat. As to the objectionable surveillance, Cripe testified that coworkers noticed guards following her. Quinn testified that she spoke to co- workers about being followed. Lujan testified that a guard followed 5 feet behind her “wherever I went” outside her department during the 2 weeks before the election. Schwager testified that one employee was with her when a guard followed her, and that coworkers commented to her about the security camera’s movement. As to the objectionable restrictions on union activity, Hensley testi- fied that at least one employee witnessed Jones’ conduct. Sparks testi- fied that she told coworkers about Kehoe’s conduct. Schwager testified that “a group” of coworkers was present during the Speaker incident. Quinn testified that she told coworkers about Garcia’s conduct. Daggs testified that coworkers witnessed the 15- to 20-minute conversation he had with Peterson regarding the hospital’s solicitation policy. Finally, we disagree with the hearing officer’s conclu- sion that the ballot tallies weigh in favor of a determina- tion that the elections should not be set aside. In Case 20–RC–17563, a switch of only 52 votes from 1299 cast—not counting the 89 unresolved challenged bal- lots—would have resulted in an election victory for the Petitioner. In Case 20–RC–17564, a switch of only 57 votes from 317 cast—not counting 25 unresolved chal- lenged ballots—would have resulted in an election vic- tory for the Petitioner. We conclude, therefore that, in light of the potentially large number of employees di- rectly affected by the objectionable conduct, the voting margins in both Case 20–RC–17563 and Case 20–RC– 17564 hardly preclude a determination that the Em- ployer’s conduct affected the election results.53 53Although the hearing officer correctly pointed out that the Board gives great weight to the closeness of an election, this factor is but one of several factors the Board considers in determining whether an elec- tion result should be set aside. In Scientific Atlanta, Inc., 278 NLRB 467, 468 (1986), for example, the Board set aside an election even though 717 votes separated the number of votes for the petitioner and those opposed. The Board stated that the employer’s misconduct “was far more than de minimis” and directed a second election even though “the extent of the effect of the misconduct here cannot be determined with any mathematical certainty.” MERCY GENERAL HOSPITAL 109 Accordingly, for all these reasons, we conclude, con- trary to the hearing officer, that the Employer’s objec- tionable conduct cannot be dismissed as de minimis in either the service unit or the technical unit. Therefore, we shall set both elections aside.54 54 As the Union has excepted to the hearing officer’s failure to order that the notice of the new election include, pursuant to Lufkin Rule Co., 147 NLRB 341 (1964), a statement of the reason for the first elections being set aside, we order that such language be included in the notice of the new election. See NLRB Casehandling Manual (Part Two), Repre- sentation Proceedings, Sec. 11452.1. [Direction of Second Elections omitted from publica- tion.]