Highlands Regional Medical Center

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 347 NLRB No. 120 1404 Highlands Hospital Corporation, Inc. d/b/a Highlands Regional Medical Center and Service Employees International Union, District 1199, SEIU.1 Cases 9–CA–39186 and 9–CA–39460 August 31, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The issue presented in this case is whether the Re- spondent, Highlands Regional Medical Center, acted unlawfully when it withdrew recognition from the Union and when it subsequently announced and implemented a wage increase without notifying or bargaining with the Union.2 We conclude, for the reasons stated below, that the Respondent violated the Act as alleged.3 Factual Background In June 1999, the Board certified the Union as the col- lective-bargaining representative of a unit of the Respon- dent’s registered nurses (the RNs). The parties negoti- ated an initial collective-bargaining agreement effective by its terms from November 14, 1999, to April 12, 2002. In September 2001, several unit members, led by RN 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. 2 On January 9, 2003, Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed an amended reply brief. In addition, the General Counsel filed limited cross-exceptions and a supporting brief, and the Respondent filed an amended answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided, for the reasons stated in this Decision, to affirm the judge’s rulings, findings, and conclusions, as modified, and to adopt the recommended Order as modified and set forth in full below. The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 The General Counsel has moved to strike portions of the Respon- dent’s amended answering brief and amended reply brief that did not appear in the Respondent’s initial “Reply Brief to General Counsel’s Answering Brief and Answering Brief to Counsel for the General Counsel’s Limited Cross Exceptions.” In view of our disposition of this case on the merits, adverse to the Respondent’s contentions, we find the General Counsel’s motion moot, and we therefore need not address it. Further, because we conclude that the Respondent violated Sec. 8(a)(5) and (1) as alleged, for the reasons stated below, we need not address the arguments raised by the General Counsel in his limited cross-exceptions, which rely on additional bases to find the Respon- dent’s conduct unlawful. Ilene Lewis, formed a “Nurses Decertification Commit- tee” (NDC), primarily because of dissatisfaction over their pay. In accordance with information Lewis ob- tained from the Board’s Regional Office, the NDC began collecting signatures on an employee petition titled as follows. Highlands Regional Medical Center Showing of Interest for Decertification of SEIU Union Registered Nurses The NDC also sent a letter to the Respondent stating that the nurses were planning to file a decertification petition, and asking for the Respondent’s assistance in obtaining an election. Thirty-six RNs signed the employee petition in Sep- tember and October 2001. Two of those RNs, Tracy Wright and Melissa Allen, signed the petition after the signature solicitors told them that the petition was in- tended only for a showing of interest to obtain an elec- tion.4 A third RN, Shirley Mausser, who wanted to have the opportunity to express her choice regarding union representation, signed the petition on October 1, 2001, after the NDC signature solicitors told her that the pur- pose of the petition was to retain the nurses’ freedom of choice about whether to join the Union. Subsequently, in January 2002,5 Mausser joined the Union and signed a dues-checkoff authorization.6 On January 2, the NDC filed a decertification petition with the Board’s Regional Office, and submitted the sig- natures as the showing of interest in support of the peti- tion. At that time, the bargaining unit consisted of 77 employees; thus, the showing of interest reflected slightly fewer than 50 percent of the unit employees’ signatures. On January 3, RN Lewis provided copies of the decertification petition and the showing of interest to the Respondent. On January 10, the Respondent’s CEO, Harold (Bud) Warman, sent a memo to unit employees informing them that some nurses “are asking the NLRB to conduct a se- cret ballot election to determine whether or not a major- ity of RNs still wish to be represented by this union.” 4 Wright, who supported the Union, stated that she felt surprised and misled when the Respondent later used the petition as a basis for the withdrawal of recognition. She added that she would not have signed the petition if she had been told that the petition’s purpose was to get rid of the Union. 5 All subsequent dates are in 2002, unless otherwise indicated. 6 The judge found that the Respondent knew of Shirley Mausser’s postsignature decision to join the Union, because it had processed her dues-checkoff authorization and had been deducting union dues from her paycheck since receiving her authorization on February 7. More- over, the employee lists that CEO Warman reviewed weekly—from about March 11 until April 12—to calculate how many signers were in the bargaining unit expressly identified Mausser as a member of the Union. HIGHLANDS REGIONAL MEDICAL CENTER 1405 The memo further stated that the Union had filed a blocking charge, but that the Respondent would work with the Board “to resolve any issues so that an election can be conducted.” The Respondent did, in fact, make efforts to resolve the blocking charge. Meanwhile, the NDC, in a series of newsletters distributed to unit em- ployees and the Respondent, continued to call for a de- certification election and to express its increasing frustra- tion about the delay.7 The NDC obtained two more sig- natures on the showing of interest on February 7. On March 11, the NDC sent the decertification petition and updated showing of interest to the Respondent.8 In an accompanying cover letter, the NDC stated that the signers comprised more than 50 percent of the bargaining unit and requested that the Respondent “support [the NDC] in the decertification process” by “not enter[ing] into negotiations until the NLRB grants us an election, then all parties involved will know what the majority of RNs want.” Based on the NDC’s March 11 communication, Re- spondent’s CEO, Warman, sent a letter to the nurses on March 19, and the Respondent’s counsel sent a letter to the Union the same day. Each of those letters stated that, based on the NDC’s March 11 letter and attached show- ing of interest, the Respondent was canceling a bargain- ing session with the Union scheduled for the following day and that the Respondent would withdraw its recogni- tion of the Union when the collective-bargaining agree- ment expired on April 12. Warman’s letter inaccurately described the NDC’s March 11 letter as “stating that the majority of RN’s no longer wished to be represented by the . . . union.”9 And counsel’s letter to the Union inac- curately stated that the nurses’ letter and petition “ask[ed] the Medical Center to withdraw recognition from the Union as the bargaining representative of the registered nurse bargaining unit.” On April 12, consistent with its March 19 announce- ment, the Respondent withdrew recognition from the Union. Nevertheless, the Respondent and the NDC con- tinued to circulate documents expressing their support for a decertification election.10 7 The initial blocking charge filed by the Union was settled; the 8(a)(5) and (1) charges at issue here, however, have continued to block the election. 8 The NDC, in its cover letter to Warman, described the attached documents as “the decertification petition and a list of names showing their interest for decertification of SEIU union registered nurses.” 9 A March 19 memo that CEO Warman sent to the Respondent’s board of trustees and medical staff contained the same inaccurate char- acterization of the NDC’s March 11 letter. 10 For example, in an April 18 “Question and Answer” document re- sponding to questions asked on the Respondent’s telephone hotline, the Respondent stated, “Since the decertification petition was filed, the goal has been to have an election.” In an April 12 e-mail message to managers, which ex- plained certain administrative consequences of the Re- spondent’s withdrawal of recognition from the Union, CEO Warman stated, “We will be making some im- provements to wages.” But in later “Question and An- swer” documents dated April 18 and May 2, the Respon- dent informed employees of its concern that raising nurses’ wages could jeopardize the scheduling or the finality of the decertification election. On May 17, how- ever, the Respondent announced a pay increase for all nurses, which it put into effect on May 26. The Respon- dent did not notify the Union of the pay increase or offer the Union an opportunity to bargain over it. The Parties’ Contentions and the Judge’s Decision The General Counsel alleges in the complaint that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union and by sub- sequently raising unit employees’ wages without notify- ing and offering to bargain with the Union. The Respon- dent admits the facts, but contends that its withdrawal of recognition was lawful, in accordance with the require- ments of Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), and that it was therefore privileged to im- plement a unilateral pay increase. The judge found that the Respondent violated the Act as alleged. First, the judge found that the Respondent based its withdrawal of recognition on the NDC’s March 11 letter and the attached showing of interest.11 The judge found that those materials did not demonstrate that the Union had lost majority support, for two reasons: (1) the written and oral statements made in connection with the gathering of employee signatures demonstrated that the petition did not show lack of support for the Union and (2) the petition was not validly signed by at least half of the unit employees. As to the first of those reasons, the judge observed that the heading on the employee petition stated that it was a “showing of interest for decertification,” not a request to the Respondent for withdrawal of recognition. More- over, as shown, the judge credited testimony showing that some employees had signed the petition based on 11 The Respondent’s April 5 statement of position to the Board’s re- gional office, and the separate March 19 letters notifying the unit mem- bers and the Union of the withdrawal of recognition, all stated that the Respondent had withdrawn recognition based on the showing of inter- est. At the hearing, CEO Warman testified that he also relied on vari- ous other documents and alleged conversations about unit members’ opposition to representation. Although the judge did not expressly find that Warman had relied exclusively on the NDC’s March 11 letter and showing of interest, he discredited much of Warman’s testimony re- garding alleged conversations, and he concluded that Warman’s addi- tional reasons and the additional documents cited did not show that the Union had actually lost majority status on April 12. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1406 express oral representations that the petition would be used only to obtain an election, and also credited testi- mony that at least one of those employees would not have signed the petition if she had known that it would be used as the basis for withdrawing recognition. Based on that evidence, the judge concluded that the employ- ees’ signatures on the petition did not establish that they opposed union representation. As to the second reason, the judge found that, when considered in light of the facts at the time of the with- drawal of recognition, the petition contained valid signa- tures of fewer than half of the unit members. Specifi- cally, the judge eliminated three signers who had left the bargaining unit before March 19, when the Respondent announced its decision to withdraw recognition, and one more signer, RN Mausser, who had joined the Union on January 23 after signing the petition on October 1, 2001. The parties stipulated that on April 12, when the Re- spondent withdrew recognition from the Union, the unit contained 68 employees, of whom 34 (including Mausser) had signed the showing of interest. Thus, with Mausser’s signature eliminated, the petition comprised less than half of the unit employees. Analysis For the reasons stated in the judge’s decision, as modi- fied and supplemented below, we agree with the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and by later implementing a pay increase without first notifying the Union and offering it an opportunity to bargain over the change. 1. Withdrawal of recognition In evaluating whether the Respondent acted unlawfully in withdrawing recognition from the Union on April 12, we apply the standard established in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): an employer must show that the bargaining representative had actually lost its majority status when the employer withdrew recogni- tion.12 See also Port Printing Ad & Specialties, 344 NLRB 354, 355 fn. 2 (2005), enfd. sub nom. NLRB v. Seaport Printing & Ad Specialties, Inc., No. 05-60347 (5th Cir. July 27, 2006) (unpublished). We agree with the judge that, here, the evidence on which the Respon- dent relied in withdrawing recognition did not demon- strate the Union’s actual loss of majority status. 12 Chairman Battista notes that, although the underlying decision correctly applied the “actual loss of majority” standard established in Levitz to find that the Respondent unlawfully withdrew recognition from the Union, he did not participate in Levitz and expresses no view as to whether it was correctly decided. In this regard he notes that the Respondent does not contend that Levitz should be overruled. a. Petition’s purpose First, as the judge found, the petition does not state that the signers desire not to be represented by the Union, nor does it request that the Respondent withdraw recog- nition from the Union. Rather, on its face the document states that it is a “showing of interest for decertification” of the Union. NDC activist RN Lewis chose that lan- guage based on her conversation with a Board agent in the regional office about obtaining a decertification elec- tion. That the NDC intended this document to serve as a showing of interest to obtain an election is demonstrated, first and foremost, by Lewis’ use of it for this precise purpose when she provided it to the regional office as an attachment to the decertification petition. Moreover, numerous newsletters and other documents authored and distributed by the NDC over subsequent months expressly stated the NDC’s goal of obtaining a decertification election. Those same newsletters and other documents, which Lewis provided to CEO Warman when they circulated, amply demonstrate the Respon- dent’s knowledge that the signatures had been obtained for the purpose of requesting an election.13 The last of those documents, the NDC’s March 11 letter, which asked the Respondent to postpone bargaining with the Union, made clear that the NDC was requesting the Re- spondent’s assistance in obtaining the election that the NDC had been seeking for months.14 As shown above, in addition to the foregoing docu- mentary indications that the petition was for the purpose of seeking decertification, several employees testified that they signed the petition only after being told that the petition’s sole purpose was to support a request for an election. Accordingly, their signatures, without which the petition does not show majority support, cannot be relied upon by the Respondent to withdraw recognition. In light of all the circumstances, we agree with the judge that the petition did not establish that the employees no longer desired union representation.15 13 Lewis also testified that she sometimes asked Warman to confirm the accuracy of statements in the documents before she circulated them. 14 Lewis testified that, in following the Regional Office’s advice, she was trying to get rid of the Union any way she could, and that she was neither specifically seeking an election nor aware that this was the Board’s purpose for having her file the decertification petition and showing of interest. The judge, however, discredited her testimony. 15 Just as there are dual-purpose authorization cards, we are willing to assume that a decertification petition could have a dual purpose, i.e., that it could indicate both nonsupport for a union and support for a decertification election. In light of the Levitz standard, however, we will not permit a petition that describes itself solely in terms of a show- ing of interest for decertification (i.e., an election) to be used by the employer to prove actual loss of majority support. Moreover, as explained in Levitz, 333 NLRB at 725, even when an employer has objective evidence tending to show that the Union has HIGHLANDS REGIONAL MEDICAL CENTER 1407 b. Number of valid signatures on petition We also agree with the judge that, even if the em- ployee petition clearly expressed the signers’ desire not to be represented by the Union, the petition contained an insufficient number of valid signatures. As stated above, the parties agree that the petition was signed by half of the unit members only if the signature of employee Mausser is counted. As shown, however, after signing and dating the petition on October 1, 2001, Mausser joined the Union in January 2002. Pursuant to her signed authorization, the Respondent began deducting her union dues from her paycheck in February. Mausser’s un- equivocal, postpetition demonstration of support for the Union precludes counting her among the opponents of the Union in determining whether the Union had lost majority support when the Respondent withdrew recog- nition.16 We therefore find that the Respondent’s with- drawal of recognition based on the employee petition violated the Act.17 2. Unilateral pay increase After its withdrawal of recognition, the Respondent announced and implemented a substantial raise in unit members’ wages.18 The Respondent admits acting unilat- erally; it contends, however, that its conduct was privi- leged by its withdrawal of recognition. Because, as we lost majority support, it “withdraws recognition at its peril.” Thus, in withdrawing recognition, an employer assumes the risk that the evi- dence it relies on for its decision will later be determined not to show actual loss of majority status. Here, as we have found, the Respondent wrongly relied on a petition that did not actually demonstrate employ- ees’ opposition to union representation. 16 Although, under the pre-Levitz standard for lawful withdrawal of recognition, the Board would not have presumed that nonmembership in a union or failure to execute a dues-checkoff authorization supported a good-faith doubt of majority support, that was because there is no inconsistency between desiring union representation and choosing not to pay for it. See, e.g., Terrell Machine Co., 427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied 398 U.S. 929 (1970). But where an employee who has signed a decertification petition then voluntarily joins the union and begins paying dues, the employer may no longer count that employee as opposing union representation. A fortiori, this reasoning applies to Mausser, who signed only a “showing of interest,” and did so only after being told that the purpose of the petition was to preserve employee choice. 17 We need not address the sufficiency of the hearing testimony re- garding employees’ bare recollections of their sentiments for or against union representation as of April 12, because this evidence was not before the Respondent when it withdrew recognition. As the judge explained, Levitz makes clear that an employer may withdraw recogni- tion from a union that represents its employees only when it acts on objective evidence showing that the union lacks the support of a major- ity of bargaining-unit members. Levitz, 333 NLRB at 723–726. Ac- cordingly, the judge correctly deemed the foregoing employee testi- mony irrelevant. 18 As stated above, dissatisfaction with the wages provided by the collective-bargaining agreement was one of the primary motivators for the decertification campaign. have found, that withdrawal of recognition was unlawful, it follows that the Respondent’s subsequent unilateral change was unlawful, as well. We thus adopt the judge’s conclusion that the Respondent’s May 26 unilateral pay increase for unit members violated Section 8(a)(5) and (1). 3. Remedy19 Having found that the Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order the Respondent to cease and desist from engaging in such conduct and to take certain steps to effectuate the policies of the Act. In accordance with the judge’s recommendation, we shall order the Respondent, for 6 months after the date of this Order, to permit the Union to post union notices on em- ployee bulletin boards at its facility and to provide the Union with up-to-date lists of bargaining unit members, as well as their current addresses.20 We shall also order the Respondent, if requested by the Union, to rescind the unilateral pay increase implemented on May 26, and any other unilateral changes in benefits and conditions of employment implemented since the withdrawal of recog- nition on April 12. Nothing in this Order, however, should be construed to require the Respondent to with- draw any benefit previously granted unless requested by the Union. See Taft Broadcasting Co., 264 NLRB 185 fn. 6 (1982). Finally, having found that Respondent unlawfully withdrew recognition of the Union, we shall order that the Respondent bargain with the Union in the bargaining unit described below, with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. For the reasons set forth in Caterair International, 322 NLRB 64 (1996), we find that an affirmative bargaining order is warranted in this case as a remedy for the Re- spondent’s unlawful withdrawal of recognition. We ad- here to the view that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal 19 The Respondent excepts both to the imposition of any remedy and to the “excessive breadth” of the remedy granted. As to the former, the Respondent’s exception is based on its contention, which we reject, that it did not commit any unfair labor practices. As to the latter, the Re- spondent does not offer any argument in support of its exception. Nev- ertheless, we have considered the appropriateness of the judge’s rec- ommended remedies, and for the reasons given by the judge, as well as those stated below, we adopt these remedies. 20 In addition to the judge’s rationale supporting these remedies, we observe that the collective-bargaining agreement that expired on April 12, 2002, imposed comparable obligations on the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1408 to bargain with the lawful collective-bargaining represen- tative of an appropriate unit of employees.” Id. at 68.21 In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra, the court summa- rized its requirement that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the em- ployees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Id. at 738. Although we respectfully disagree with the court’s re- quirement for the reasons set forth in Caterair, supra, we have examined the particular facts of this case as the court requires and find that a balancing of the three fac- tors warrants an affirmative bargaining order. (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Re- spondent’s withdrawal of recognition and resulting re- fusal to bargain with the Union for a successor collec- tive-bargaining agreement. At the same time, an affirma- tive bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose con- tinued union representation because the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. To the extent such opposi- tion exists, moreover, it may be at least in part the prod- uct of the Respondent’s unfair labor practices. In concluding that a bargaining order is appropriate, we are mindful of the decertification petition already pending in this case. This petition has remained blocked by the Respondent’s own unlawful conduct at issue here. To proceed with an election, without first giving the Un- ion an opportunity to re-establish itself with the bargain- 21 Chairman Battista does not agree with the view expressed in Caterair International, supra, that an affirmative bargaining order is “the traditional, appropriate remedy” for an 8(a)(5) violation. He agrees with the United States Court of Appeals for the District of Columbia Circuit that a case-by-case analysis is required to determine if the rem- edy is appropriate. Saginaw Control & Engineering, 339 NLRB 541, 546 fn. 8 (2003). He recognizes, however, that the view expressed in Caterair International represents extant Board law. See Flying Foods, 345 NLRB 101, 109 fn. 23 (2005). ing-unit employees, would unjustly reward the Respon- dent for its willful interference with the fairness of the election process that was underway when it withdrew recognition. (2) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s incentive to delay bargaining in the hope of further discouraging support for the Union. It also ensures that the Union will not be pressured by the Re- spondent’s withdrawal of recognition to achieve immedi- ate results at the bargaining table following the Board’s resolution of its unfair labor practice charges and issu- ance of a cease-and-desist order. (3) A cease-and-desist order, alone, would be inade- quate to remedy the Respondent’s refusal to bargain with the Union in these circumstances, because it would per- mit the pending decertification petition to be processed (or another such petition to be filed) before the Respon- dent has afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a successor collective-bargaining agree- ment. Such a result would be particularly unjust in cir- cumstances such as those here, where the Respondent’s unfair labor practices—both the withdrawal of recogni- tion and the unilateral pay increase—were of a continu- ing nature and were likely to have a continuing effect, thereby tainting employee disaffection with the Union arising during that period or immediately thereafter. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union repre- sentation. For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge, as modified and set forth in full below and orders that the Respondent, Highlands Hospital Corporation, Inc. d/b/a Highlands Regional Medical Center, Prestonsburg, Ken- tucky, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with Service Employees International Union, District 1199, SEIU as the exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit: HIGHLANDS REGIONAL MEDICAL CENTER 1409 All registered nurses including charge nurses employed by the Respondent at its 5000 Ky. Route 321, Pres- tonsburg, Kentucky facility, but excluding assistant vice-presidents of nursing, clinical and other patient service managers, house supervisors, RN circulators in surgery (or 1st Floor), clinical liaison, manager of edu- cation, staff development education, infection control employee health nurse, diabetic education CME pro- gram coordinator, UR Case Manager, case manager, discharge planner, certified registered nurse anesthe- tists, PACU charge nurse, dieticians, pharmacists, phy- sicians, employee health nurses, office clerical employ- ees, service and maintenance employees, LPNs, techni- cal employees, business office clericals, other profes- sional employees, guards and supervisors as defined in the Act. (b) Unilaterally granting pay increases, or making other changes to wages, hours, or other terms and condi- tions of employment, without notifying the Union and providing it an opportunity to bargain about these changes. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the Re- spondent’s employees in the above unit with respect to wages, hours, and other terms and conditions of em- ployment and, if an agreement is reached, embody it in a signed document. (b) If the Union requests, cancel the pay increase unlawfully granted to unit employees through the Re- spondent’s unilateral action on May 26, 2002, and any other unilateral changes made to wages, hours, or other terms and conditions of employment since its withdrawal of recognition of the Union on April 12, 2002; provided, however, that nothing in this Order shall be construed as requiring the Respondent to rescind the pay increase granted unless the Union requests such action. (c) Within 14 days after service by the Region, post at its facility in Prestonsburg, Kentucky, copies of the at- tached notice marked “Appendix.”22 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 9, after being signed by the Respondent’s author- 22 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since April 12, 2002. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to recognize and bargain in good faith with Service Employees International Union, Dis- trict 1199, SEIU as collective-bargaining representative of the employees in the following bargaining unit: All registered nurses including charge nurses employed by us at our 5000 Ky. Route 321, Prestonsburg, Ken- tucky facility, but excluding assistant vice-presidents of nursing, clinical and other patient service managers, house supervisors, RN circulators in surgery (or 1st Floor), clinical liaison, manager of education, staff de- velopment education, infection control employee health nurse, diabetic education CME program coordinator, UR Case Manager, case manager, discharge planner, certified registered nurse anesthetists, PACU charge nurse, dieticians, pharmacists, physicians, employee DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1410 health nurses, office clerical employees, service and maintenance employees, LPNs, technical employees, business office clericals, other professional employees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally grant pay increases, or make other changes to your wages, hours, or other terms and conditions of employment, without notifying the Union and giving it an opportunity to bargain about these changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL recognize and, on request, bargain collec- tively with the Union as the exclusive representative of our employees in the above unit with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. WE WILL, on the Union’s request, cancel and rescind the pay increase unilaterally implemented on or after May 26, 2002, and any other unilateral changes made to wages, hours, or other terms and conditions of employ- ment since its withdrawal of recognition of the Union on April 12, 2002. HIGHLANDS HOSPITAL CORPORATIONI, INC. D/B/A HIGHLANDS REGIONAL MEDICAL CENTER Theresa Donnelly Laite, Esq., for the General Counsel. Vincent Candiello, Esq. (Morgan, Lewis & Bockius), of Harris- burg, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. These cases were tried in Prestonsburg, Kentucky, on September 17–19, 2002.1 The charges were filed by SEIU District 1199 (the Un- ion) against the Respondent (Medical Center) on March 20 and July 22, and the complaint was issued August 23. The cases involve the Medical Center’s withdrawal of union recognition of a unit of registered nurses (RNs) upon the April 12 expiration of the RN Agreement, followed by the large uni- lateral wage increase, effective May 26. On March 19 the Medical Center (by counsel) had sent the Union a letter (GC Exh. 4), which referred to a March 11 letter received from a group of RNs, along with a copy of a petition signed by 38 RNs (R. Exhs. 14, 18). The letter stated that “con- sistent with the law as announced” in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), “the Medical Center. . . . intends to withdraw recognition of the Union . . . as of April 12.” In Levitz supra at 719 the employee petition, signed by a ma- jority of the unit employees, stated that the employees no longer desired to be represented by the union. 1 All dates are 2002, unless otherwise indicated. The petition attached to the March 11 letter, however, is not such a petition. As later admitted at the trial, the petition does not “prove actual loss [of majority support of the Union on April 12]. It proves the rationale for the decision [to withdraw recognition].” The petition (except for two names added in February) is a copy of a petition (R. Exh. 2) signed by 36 RNs in September and October 2001 and submitted January 2, 2002, to make a 47 percent “showing of interest” for a decertification election in a bargaining unit of 77 RNs. The petition reads: Highlands Regional Medical Center Showing of Interest For Decertification of Seiu Union Registered Nurses On January 10 the Medical Center’s CEO, Harold Warman, notified the RNs by memorandum (Tr. 37–38; R. Exh. 3) that nurses “are asking the NLRB to conduct a secret ballot election to determine whether or not a majority of RNs still wish to be represented by this union.” He added that the Union had filed a blocking charge and that “[t]he NLRB and the hospital will be working to resolve any issues so that an election can be con- ducted.” On February 21 the Medical Center notified all employees (R. Exh. 10; Tr. 43) that it “will make a good faith attempt to settle the [blocking] charges.” On March 11—after solicitation of signatures on another pe- tition (R. Exhs. 12 & 13) failed, except for the addition of two names to the 36-name petition—the RN Decertification Com- mittee sent CEO Warman a letter (R. Exh. 14), stating: Enclosed, please find a copy of the decertification peti- tion and a list of names showing their interest for decerti- fication of SEIU union registered nurses. This petition [when it had 36 names] was filed with the National Labor Relations Board. At the time this petition was filed, 77 employees held RN union positions. This number has now decreased to 71 RNs. As you can see, the list of names total 38 RNs [includ- ing the two names added in February]. Thirty-three RNs chose not to sign the petition. A number of these 33 RNs have verbally shown their support for decertification. They did not want to put their names in writing in fear of reper- cussions from the union. We have more than 50% of the 71 RNs showing sup- port for decertification. We feel the hospital should sup- port us in the decertification process. The agreement between [the Medical Center] and SEIU/District 1199 ends April 12, 2002. The majority of RNs thinks the hospital should not enter into negotiations until the NLRB grants us an election, then all parties in- volved will know what the majority of RNs want. [Em- phasis added.] The following week, the Medical Center sent its March 19 letter (GC Exh. 4) to the Union, stating: On March 11, 2002, Bud Warman received a letter from a group of registered nurses, along with a copy of a petition containing the names of 38 nurses, asking the Medical Center to withdraw recognition from the Union as HIGHLANDS REGIONAL MEDICAL CENTER 1411 the bargaining representative of the registered nurse bar- gaining unit. The number of nurses who signed the peti- tion (38 of 69) represented 55% of the current registered nurses. [Emphasis added.] Accordingly, consistent with the law as announced . . . in Levitz . . . the Medical Center hereby informs you that it has concluded, based on objective considerations, that the Union, in fact, has lost the support of a majority of the bargaining unit registered nurses. Therefore, the Medical Center intends to withdraw recognition of the Union as the representative of the nurses as of April 12, 2002, when the contract expires. Until April 12, 2002, the Medical Center will continue to comply with the terms of the contract. Accordingly, please be advised that the bargaining ses- sion scheduled for Wednesday, March 20, 2002 is can- celed. On the same date, March 19, CEO Warman sent the RNs a letter (R. Exh. 19) (with a copy of the Medical Center’s March 19 letter on the back), repeating the false claim that 38 of the 69 current registered nurses signed the petition. He stated: Last week, I received a letter from the decertification committee stating that the majority of RNs no longer wished to be represented by the 1199/SEIU union. To support this statement, they attached a petition with signatures from the majority of RNs on staff (38 of 69). As you are aware, the RN contract expires on April 12, 2002. The union and the medical center were to meet to- morrow, March 20th, to begin negotiations. Today, a letter was sent to the union indicating that, in light of the petition [emphasis added], the medical center will withdraw recognition of 1199/SEIU as the bargaining representative of the RNs. I have been advised that I can do this, since the letter and petition served on me are evi- dence that the union has, in fact, lost the support of the majority of the bargaining unit nurses. I have provided a copy of the letter sent to the union on the back of this let- ter. Thus, the Medical Center informed the RNs that it was with- drawing recognition of the Union “in light of the petition”— falsely claiming that all 38 of the 69 RNs (38 of 69) had signed the petition, “represent[ing] 55 percent of the current registered nurses.” On April 1, the Medical Center published a newsletter (R. Exh. 22), in which it informed all employees that it notified the Union on March 19 that it was withdrawing recognition of the Union at the expiration of the RN Agreement, “based on the Medical Center’s good faith belief [emphasis added] the major- ity of RNs no longer desire representation” by the Union. It added in the April 1 newsletter that “it is the Medical Cen- ter’s position the RNs should be allowed to vote” and assured the employees, “The Medical Center is developing a settlement offer that would resolve the charges and allow the election to move forward.” Nevertheless, upon the April 12 expiration of the RN Agreement, the Medical Center proceeded to withdraw recogni- tion of the Union (GC Exh. 16). No election was held, although requested by the decertification committee to determine “what the majority of RNs want.” Following the withdrawal, the Medical Center granted a large unilateral wage increase without prior notice to the Union. By letter dated May 17 (GC Exh. 2) it announced, effective May 26, a $2.60-pay raise to all employees in the staff RN position, to a maximum $25.35 rate. This was a raise in the starting rate from $13.20 to $15.80—about 20 percent. The primary issues are whether the withdrawal of recogni- tion and unilateral wage increase were lawful, and if not, what is an adequate remedy. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Medical Center, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Medical Center, a corporation, operates an acute care hospital in Prestonsburg, Kentucky, where it annually receives goods valued over $50,000 directly from outside the State. It admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care facility within the meaning of Section 2(14) of the Act and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Levitz Standard for Withdrawing Recognition In March 2001, the Board decided Levitz, 333 NLRB 717 (2001), taking into account (1) the Supreme Court’s holding in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), that the Board’s “good-faith doubt” standard (for an employer to withdraw union recognition under Celanese Corp., 95 NLRB 664 (1951)), must be interpreted to permit the em- ployer to act where it has a “reasonable uncertainty” of the union’s majority status, and (2) the Court’s indicating that the Board could impose a more stringent requirement for with- drawal of recognition. The Board held 333 NLRB 717: After careful consideration, we have concluded that there are compelling legal and policy reasons why em- ployers should not be allowed to withdraw recognition merely because they harbor uncertainty or even disbelief concerning unions’ majority status. We therefore hold that an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employ- ees. In this Levitz decision (at 723–725), after stating that an em- ployer must have “some objective evidence that the representa- tive the employees have designated no longer enjoys majority support,” the Board repeatedly indicated that there must be a showing of actual loss of majority support of the union before the employer may lawfully withdraw recognition: If a majority of the unit employees present evidence that they no longer support their union, their employer may lawfully withdraw recognition. . . . DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1412 . . . . [W]e hold that an employer may unilaterally withdraw recog- nition, only on a showing that the union has, in fact, lost the support of a majority of the employees in the bargaining unit. . . . . [W]e anticipate that as a result of our decision today, employ- ers will be likely to withdraw recognition only if the evidence before them clearly indicates that unions have lost majority support. [Emphasis added.] The Board also indicated in the Levitz decision (at 723) that its standard was more stringent for withdrawing recognition, but was more lenient for obtaining RM elections, holding: While adopting a more stringent [emphasis added] standard for withdrawals of recognition, we find it appro- priate to adopt a different, more lenient standard for ob- taining RM elections.... [W]e shall allow employers to ob- tain RM elections by demonstrating reasonable good-faith uncertainty as to incumbent unions’ continued majority status. B. No Showing of Actual Loss of Majority Support 1. No showing on March 19 Documentary evidence introduced at the trial shows that both the Medical Center’s and CEO Warman’s March 19 letters (GC Exh. 4; R. Exh. 19) falsely claimed that all 38 of the 69 RNs (38 of 69—representing 55 percent of the RNs in the bar- gaining unit—had signed the petition attached to the decertifi- cation committee’s March 11 letter. The decertification committee incorrectly stated in its March 11 letter (R. Exh. 14) that a total of 38 (rather than 36) RNs had signed the petition filed with the Board (in January) and that there were currently 71 (38 plus 33) RNs in the bargaining unit. Both of the March 19 letters corrected the number of current RNs in the bargaining unit (69 instead of 71), but failed to cor- rect the number of the petition signers who were currently em- ployed in the unit. The Medical Center’s own records show that, in fact, not all of the 38 RNs who signed the petition were currently in the bargaining unit. Three of the 36 RNs who signed the petition in September and October 2001 (casual/PRN employees Paula Howell and Melissa Moore and resigned employee Sara Osborne) were not in the current bargaining unit (Tr. 81–82; GC Exh. 3 p. 29; R. Exh. 17 pp. 1–4). Subtracting 3 from 38 (the original 36 peti- tion signers, plus the two who signed on February 7) leaves only 35—not 38—petition signers currently in the unit. Moreover, one of the 35 petition signers (Shirley Mausser) had signed the Union’s application for membership on January 23 (after signing the petition on October 1, 2001). The Medical Center had been deducting her union dues since February 7 (GC Exhs. 9, 14 p. 5; Tr. 252–253, 450–451). Of course, the Medical Center was aware that Mausser was supporting the Union on March 19. Without her name (assuming that the sig- natures of all the others indicated nonsupport of the Union), the petition would show a total of 34 nonsupporters—49 percent (not 55 percent) of the 69 current RNs in the bargaining unit. Even if the Medical Center had relied on the hearsay conten- tion in the decertification committee’s March 11 letter (R. Exh. 14), that a number of other RNs have “verbally shown their support for decertification,” that could not be considered in determining actual loss of majority support of the Union. Re- garding the hearsay testimony, the Medical Center’s counsel at the trial stated that “it’s not offered to prove that these people were opposed [to the Union]” (Tr. 200, 431–433). In Allentown Mack Sales, 522 U.S. 359, 369 (1998), the Su- preme Court held: Unsubstantiated assertions that other employees do not sup- port the union certainly do not establish the fact of that disfa- vor with the degree of reliability ordinarily demanded in legal proceedings. 2. No showing of actual loss of majority support on April 12 On April 12, as stipulated (Tr. 422–423), “there were 68 in- dividuals in the RN bargaining unit” and “of that number, 34 had signed . . . the decertification petition.” As indicated, RN Shirley Mausser (one of the 34 petition signers in the bargaining unit on April 12), joined the Union after signing the petition on October 1, 2001. Without her name, the petition would show, at most, only 33 nonsupporters of the Union—less than 49 percent of the 68 RNs in the bar- gaining unit. Thus, the petition did not show an actual lost of majority of union support when the Medical Center withdrew recognition on April 12. I note that at the trial in September, RN Tracy Wright credi- bly testified (Tr. 440) that RN Sandra Johnson (a member of the decertification committee) told her that signing the showing of interest for decertification petition “was just to get another vote for the RN union representation. That the hospital would show their side, and the union would show their side, and then we would have another vote.” By her demeanor on the stand, Wright impressed me most favorably as a truthful witness. I also note that Wright was not the only RN who was told that the petition was for an election in which they could vote for or against decertification of the Union. RN Melissa Allen, a Medical Center witness at the trial, credibly testified on direct examination (Tr. 309) that Ilene Lewis (the leading member of the decertification committee) “asked me if I would like to sign” the petition, and “She just told me it was a petition . . . where they could revote whether to keep [the Union] or get rid of it.” (Lewis did not impress me by her demeanor as a candid witness.) Thus, it is clear that signatures on the petition do not neces- sarily indicate nonsupport of the Union. C. Medical Center’s Shifting Positions 1. Showing of interest for decertification petition a. Position at the time and position at the trial As found, CEO Warman informed the RNs on March 19 that “in light of the petition,” the Medical Center was withdrawing recognition of the Union as bargaining representative of RNs. At the trial, however, the Medical Center admitted that, as worded, the petition itself would not show such an actual loss. Pointing out that the word “Election” does not appear in the wording of the petition (Tr. 153), the Medical Center’s counsel HIGHLANDS REGIONAL MEDICAL CENTER 1413 admitted (emphasis added): “[I]n primary part we relied upon a petition. The question is, what does that petition represent” (Tr. 147), and “We have the petition, people signed it, what did it mean to them” (Tr. 156). The counsel also admitted (Tr. 144–145) that Warman’s tes- timony at the trial, relying in part on the petition (Tr. 37), “Standing alone, it doesn’t prove actual loss [of majority sup- port of the Union]. It proves the rationale [emphasis added] for the decision that he made.” b. Contentions of the parties and findings Contrary to the Board’s above-quoted repeated indications in its Levitz decision that there must be a showing of actual loss of majority support of the union before the employer may lawfully withdraw recognition, the Medical Center contends in its brief (at 10): The text of Levitz left open the question of whether an employer must show actual knowledge of the union’s loss of majority status at the time it withdraws recognition, or must an employer only prove an actual loss at a subse- quent trial involving an 8(a)(5) challenge. The Medical Center further contends in its brief (at 10) that “contrary to the General Counsel’s objection at trial, [its] evi- dence is not confined to what it knew [on the date of the with- drawal], but rather to what it can prove [at the trial].” Its brief includes a 9-page appendix A, “Summary of Nurs- ing Unit Employees’ Testimony.” The summary has columns indicating “Sign the Petition?” “Why Signed?” “Why Included by Mr. Warman?” and “Support SEIU at Recognition With- drawal?” In the brief (at 8), the Medical Center contends that it has demonstrated at the trial that “there were 37 employees who did not support the Union as of the date of recognition withdrawal.” In making this contention the Medical Center asserts in its brief (at 7–8): Of the 34 nurses who signed the showing of interest, 32 testified. Of the 32 who testified, 30 demonstrated that, on April 12, 2002, they did not support the Union. The remaining two signers [referring to Shirley Mausser and Tracy Wright] indicated at the trial they supported the Un- ion. . . . In addition, [the Medical Center] presented Kristal Bradley, Tena Hackney, Vicky Harmon, Tammie Ratliff, and Leslie Tucker, each of whom were members of the bargaining unit on April 12, 2002, and each of whom voiced their nonsupport for the Union as of that date. With those individuals added in, there were 35 employees indi- cating nonsupport of the Union on the date of actual with- drawal of recognition. [The Medical Center] also authenti- cated the signatures of Amanda Fraley and Arlene Gibson, who signed the showing of interest, were employees in the bargaining unit on April 12, 2002, but no longer were em- ployed by [the Medical Center] as of the date of trial. No evidence was submitted indicating these individuals in any way sought to remove their names from the showing of in- terest. Therefore, in the end, [the Medical Center] demon- strated there were 37 employees who did not support the Union as of the date of recognition withdrawal. The General Counsel contends (Br. at 5): Clearly, the actual loss standard is based on the evidence the Employer possessed at the time that it withdrew recognition. Respondent contends that as long as it can present evi- dence of actual loss at the trial stage then it has met its burden, even if Respondent did not possess this evidence at the time it withdrew. Under such an interpretation, em- ployers could simply withdraw recognition based on less than actual loss, less than good-faith doubt even [empha- sis added], as long as months later, with the Union nulli- fied, and new benefits granted, it was able to present a suf- ficient number of employees who would testify that, months before, they did not wish to be represented by the Union. In Levitz, the Board made clear it was imposing a “more stringent requirement” for withdrawals of recogni- tion. . . . Respondent’s interpretation would undermine the essence and purpose of the Levitz decision. I agree and find that this evidence—not possessed by the Medical Center when it withdrew recognition of the Union on April 12, but introduced at the trial over 5 months later—is irrelevant in making a showing of actual loss of majority sup- port of the Union before withdrawing recognition. On April 12, when the Medical Center withdrew recognition of the Union, there was a showing that Shirley Mausser was a supporter of the Union among the 34 RNs who signed the showing of interest petition. Without her name, as found, the petition would show, at most, only 33 nonsupporters of the Union—less that 49 percent of the 68 RNs in the bargaining unit. I therefore find that there was no showing, as required in Levitz, that the Union had actually lost the support of the major- ity of the bargaining unit employees when the Medical Center withdrew recognition of the Union on the April 12 expiration of the union contract. c. Alternative findings Even if considered relevant in proving actual loss of union support on April 12 when the Medical Center withdrew recog- nition of the Union, the evidence presented at the trial on Sep- tember 17–19 disproves the Medical Center’s contention that there was an actual loss of majority support—that “there were 37 employees who did not support the Union as of the date of recognition withdrawal.” As indicated above, the Medical Center asserts in its brief (at 7) that 30 of the 32 RN witnesses who signed the petition dem- onstrated that they did not support the Union on April 12. Three of the 30, Jonnie Ousley (Tr. 389), Kimberley Preston (Tr. 357), and Carolyn Tackett (Tr. 284), however, credibly testified as Medical Center witnesses on direct examination merely that they did not want to be a union member, not that they did not desire to be represented by the Union—thus, reducing the num- ber from 30 to 27. CEO Warman admitted (Tr. 124) that he was sure “an employee could support the Union and decide not to become a member.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1414 Also in its brief (at 7), the Medical Center asserts that its witness Kristal Bradley, as well as its four witnesses Tena Hackney, Vicky Harmon, Tammie Ratliff, and Leslie Tucker who also did not sign the petition, voiced nonsupport of the Union on April 12 at the trial. Bradley, however, credibly testi- fied on direct examination (Tr. 299–300) merely that she—like Ousley, Preston, and Tackett—did not want to be a union mem- ber, not that she did not desire to be represented by the Union. If the remaining 4 nonsigners are added to the 27 petition sign- ers, the total would be only 31. In addition, the Medical Center asserts in its brief (at 8) that two former RNs, Amanda Fraley and Arlene Gibson, who were in the bargaining unit on April 12 but did not testify, had indi- cated nonsupport of the Union by signing the petition (in Sep- tember and October 2001 (R. Exh. 14 p. 1). The evidence, however, does not reveal whether members of the decertifica- tion committee told them, as they did Melissa Allen and Tracy Wright, that the petition was for an election in which they could vote for or against decertification of the Union. Only one of those two witnesses, Allen (Tr. 309–310), voiced nonsupport of the Union on April 12 at the trial. The other one, Wright (Tr. 441), had signed the petition only for a vote and voiced support of the Union on April 12 at the trial. Because the evidence does not reveal what Fraley and Gib- son were told when they signed the petition or whether they would have voiced support or nonsupport of the Union if they had testified, I find that the Medical Center failed to prove at the trial that they did not support the Union when it withdrew recognition on April 12. I therefore find that if (1) evidence of nonsupport presented at the trial is considered relevant and if (2) testimony of the 31 RNs is assumed to be reliable—even though given after they worked without union representation for over 5 months and were being paid the large unilateral wage increase for nearly 4 months—the Medical Center failed to prove that the Union had actually lost majority support of the bargaining unit RNs when the Medical Center withdrew union recognition. The evidence would show that a total of only 31 (not 37) of the RNs, about 46 percent of the 68 RNs in the bargaining unit, were nonsup- porters of the Union on April 12. 2. Other reasons for withdrawing recognition a. Position at the time and position at the trial The documentary evidence shows that in both the Medical Center’s and CEO Warman’s March 19 letters regarding with- draw of recognition, the Medical Center relied solely on the decertification committee’s March 11 letter and petition as the basis for withdrawing recognition. By the time of trial over 5 months after April 12, however, Warman was prepared to give a number of other reasons for his decision to withdraw recognition. First testifying (Tr. 35) that he relied on “Multiple pieces of paper,” Warman next listed the following 14 exhibits, besides the decertification committee’s March 11 letter and petition: (1) September 19, 2001 letter from the decertification committee [R. Exh. 1], stating that a majority of the RNs “do not want to be a part of this union.” (2) January 2 cover letter to the Regional Office, at- taching a RD-Decertification (Removal of Representative) Petition for an election in the unit described in the Union’s RN Agreement (effective November 14, 1999 through 6:59 a.m., April 12, 2002) and the 36-name showing of in- terest for decertification petition [Tr. 36-37; GC Exh. 3 pp. 1, 60; R. Exh. 2]. (3) His own January 2 memo to the RNs, regarding nurses asking the NLRB to conduct a secret ballot election [Tr. 37-38; R. Exh. 3]. (4) His January 22 memo to the RNs, regarding the de- certification petition [Tr. 39; R. Exh. 4]. (5) February 8 letter from the Regional Director, ex- plaining the decertification petition being blocked [Tr. 39; R. Exh. 5]. (6) His February 13 memo to all employees about the election being blocked [Tr. 40; R. Exh. 6]. (7) RN Ilene Lewis’ February 15 cover letter, enclos- ing a letter to a senator and congressman [Tr. 40; R. Exh. 7]. (8) February 15 R.N. Decertification Newsletter [Tr. 41; R. Exh. 8], complaining in part about the union wages. (9) Lewis’ February 18 letter to Secretary Chao [Tr. 42; R. Exh. 9], complaining in part that “we are falling be- hind the national average in pay.” (10) February 21 Medical Center’s NLRB update, stat- ing that it “understands the position of the NLRB [on the blocking charges] and will make a good faith attempt to settle the charges” [Tr. 43–44; R. Exh. 10]. (11) February 22 R.N. Decertification Newsletter [Tr. 44; R. Exh. 11], complaining in part about the union wages. (12) March 1 R.N. Decertification Newsletter [Tr. 44; R. Exh. 12], regarding soliciting signatures on another pe- tition. (13) March 8 R.N. Decertification Newsletter [Tr. 45; R. Exh. 13], regarding a “great RN shortage” and solicit- ing signatures on another petition. (14) March 15 R.N. Decertification Newsletter [Tr. 46; R. Exh. 15], regarding wages. Referring to the decertification committee’s March 11 letter to him, with the attached 38-name petition (Tr. 45–46; R. Exh. 14), Warman testified (Tr. 47): “We understood, at that point in time, that the Union did not enjoy a very strong membership”— with 30 paying members (R. Exh. 16). As indicated, he later testified (Tr. 124) that he was sure “an employee could support the Union and decide not to become a member.” Warman next mentioned hearsay about other RNs voicing opposition to the Union. As discussed above, the Medical Cen- ter’s counsel at the trial stated: “[I]t’s not offered to prove that these people were opposed [to the Union]” (Tr. 200), “it proves the rationale [emphasis added] for the decision that [Warman] made” (Tr. 144-–45), and “Not offer[ed] it to prove the truth” of he hearsay (Tr. 431–433). When asked if he actually heard this information personally, or if it was reported to him, he answered, “Both” (Tr. 49). He next claimed (Tr. 49–50) that he “actually personally heard this HIGHLANDS REGIONAL MEDICAL CENTER 1415 information” from a “variety of people” and then testified, “One example would be Polly Parker.” He then admitted, “I don’t recall if she told me personally.” After further question- ing, Warman testified on direct examination (Tr. 52): Q. You cannot recall or link any particular statement with any particular individual, is that you testimony? A. Yes. Later, when specifically asked on direct examination why the Medical Center withdrew recognition of the Union on April 12, Warman testified (Tr. 108): A. We believed that the Union had lost their majority support in the RN unit. Q. And that was a result of looking at and considering what? A. All of the information that we have reviewed, the petitions that they filed, the fact that, you know, there was a real need with any organization to have the issue of rep- resentation addressed once and for all. I do not credit Warman’s later testimony (Tr. 115) that in a meeting with RN Tena Hackney, she “indicated to me that she was unhappy with the Union.” To the contrary, Hackney testi- fied (Tr. 296–297), “No, I’ve never talked to anybody from management until the other night [a day or two before the trial].” Warman admitted (Tr. 119–120) that there is no mention of conversations (with RNs) in documents in evidence regard- ing the withdrawal of recognition. b. Contentions of the parties and findings In its brief (at 5, 7), the Medical Center relies on hearsay tes- timony, ignoring its counsel’s stating at the trial that “it’s not offered to prove that these people were opposed [to the Union]” (Tr. 200, 431–433). The Medical Center also asserts in the brief (at 7) that “Warman added that he considered that he spoke with Polly Parker and Tena Hackney” and that “both of whom expressed nonsupport of the Union”—ignoring the evidence cited above. The Medical Center also contends in its brief (at 15) that the clear language of the petition “justifies the addition of [petition signers] Amanda Fraley and Arlene Gibson [who did not tes- tify] to the total of nonsupporters of the Union.” To the con- trary, as discussed above, its counsel admitted at the trial: “The question is, what does that petition represent” (Tr. 147) and “We had the petition, people signed it, what did it mean to them” (Tr. 156). As found, it is clear that signatures on the petition do not necessarily indicate nonsupport of the Union. The General Counsel contends (brief at 7) that “it is the Gen- eral Counsel’s contention that Warman’s testimony that he relied on these other factors is simply not worthy of credit. Respondent withdrew recognition for the reasons Warman communicated to his employees and the Board—the March 11 petition and cover letter.” I find that the 14 documents and other reasons Warman gave for his decision to withdraw recognition do not show that the Union had actually lost support of the majority of the bargain- ing unit employees on April 12. D. Concluding Findings The documentary evidence clearly shows that in its letters on March 19—when it informed the bargaining unit RNs that it “intends to withdraw recognition of the Union” on the April 12 expiration of the union contract—the Medical Center planned to eliminate the Union, even though it knew there was no show- ing of actual loss of majority support of the Union, as required by the Board’s decision in Levitz, 333 NLRB 717 at 713–715 (2001). First, on March 19, the Medical Center was relying on a showing of interest petition, not on an employee petition (as in Levitz) stating that the employees no longer desired to be rep- resented by the union. Months later at the trial it admitted that the showing of interest petition does not “prove actual loss” of majority support of the Union. Second, it deliberately misled the RNs by falsely claiming in its March 19 letters that all 38 of the nurses who signed the petition (38 of 69) were currently in the bargaining unit, repre- senting 55 percent of the current registered nurses. In fact, only 35 of the petition signers were then in the RN bargaining unit. Third, it concealed from the RNs the fact that 1 of the 35 pe- tition signers had joined the Union after signing the petition, leaving at most only 34 RNs who may have indicated nonsup- port of the Union by signing the showing of interest petition, rather than merely seeking a vote on decertification. Even if all 34 of the petition signers were nonsupporters of the Union, they represented only 49 percent—not 55 percent—of the 69 current registered nurses on March 19. Fourth, on April 12 when the union contract expired, the number of RNs in the bargaining unit was reduced to 68. The number of petition signers in the unit was reduced to 34, in- cluding the RN who joined the Union after signing the petition. Excluding this new member of the Union would leave, at most, only 33 nonsupporters, less than 49 percent of the 68 RNs. Fifth, on April 12—while claiming that it had a “good faith belief” the majority of RNs “no longer desire representation” of the Union and claiming it “is developing a settlement offer that would resolve the [blocking] charges and allow the election to move forward”—the Medical Center proceeded with its plan to eliminate the Union by withdrawing recognition of the Union. This prevented the election, sought by the decertification com- mittee, so that “all parties involved will know what the majority of RNs want.” Then, effective May 26, while it was refusing to bargain with the Union, the Medical Center unilaterally granted a $2.60-pay raise to all employees in the staff RN position, to a maximum $25.35 rate. This raised the starting rate from $13.20 to $15.80—about a 20 percent (exactly a 19.69 percent) wage increase. I find that the Medical Center unlawfully withdrew recogni- tion of the Union on April 12 and unilaterally granted the wage increase to all the bargaining unit RNs effective May 26, refus- ing to bargain in violation of Section 8(a)(1) and (5) of the Act. E. Required Remedy This case represents a deliberate violation of the Board’s de- cision in Levitz, adopting a more stringent standard for unilater- ally withdrawing recognition from an incumbent union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1416 In that case, the Board ruled that “employers should not be allowed to withdraw recognition merely because they harbor uncertainty or even disbelief concerning unions’ majority status” and held that “an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees.” The Board repeatedly indicated that there must be a showing of actual loss of majority support before the em- ployer may lawfully withdraw recognition. Here, as found, the Medical Center knew there was no show- ing of actual loss of majority support when it withdrew recogni- tion of the Union on April 12, claiming that it had a “good faith belief” the majority of RNs no longer desire representation by the Union. As shown in the Medical Center’s own exhibits, there was at the time a “great RN shortage” and the decertification commit- tee’s principal complaint against union representation was that “we are falling behind the national average in pay.” By canceling the bargaining session scheduled for March 20 (the day after it announced its intention to withdraw recognition on April 12), the Medical Center avoided making any wage offer in negotiations with the Union. Then after unlawfully eliminating the Union, the Medical Center granted the large wage increase, a benefit about which the RNs were primarily concerned. Particularly under these circumstances, I find it obvious that more than a simple bargaining order is required to restore some semblance of the status quo on April 12. At that time, the Un- ion was an active representative of the RNs at the facility, sup- ported by an apparent majority of the RNs in the bargaining unit, and prepared to engage in negotiations under the prevail- ing conditions. During the months since then, after the Medical Center unlawfully withdrew recognition of the Union and the union contract expired without any negotiations, the Union has been without its contractual visitation privileges (GC Exh. 3 p. 28), without any access to the RNs in the bargaining unit at the fa- cility, and would be faced in negotiations with conditions far different from those that existed on April 12 when recognition was withdrawn. For the employees in the bargaining unit to have the status of their union representation restored, the Union must be provided the opportunity to reestablish its majority support among the bargaining RNs to make a bargaining order meaningful. I find that the remedial order must include not only a bar- gaining order but also, for a period of 6 months (1) an order requiring the Medical Center to permit the Union to post union notices on employee bulletin boards in the facility and (2) an order requiring that it provide the Union with up-to-date lists of bargaining unit RNs, with their current addresses, for the Union to correspond with them, as well as (3) an order requiring it to rescind, upon the Union’s request, any unilateral change in benefits and conditions of employment since the withdrawal of recognition. I find that without such a remedial order, the Medical Center would be granted immunity for its unlawful elimination of the Union. CONCLUSIONS OF LAW 1. By withdrawing recognition of and refusing to bargain with the Union on April 12, 2002, as the exclusive collective- bargaining representative of the registered nurses in the con- tractual bargaining unit, the Medical Center has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. 2. By unilaterally increasing the wages for employees in the bargaining unit, effective May 26, 2002, without affording the Union an opportunity to bargain, the Medical Center violated Section 8(a)(1) and (5) of the Act. REMEDY Having found that the Medical Center, the Respondent, has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative ac- tion designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]