Lake Mary Health & Rehabilitation

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 544 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 37
544
Lake Mary Health Care Associates, LLC, d/b/a Lake
Mary Health and Rehabilitation and Annie Hol-
lie and Service Employees International Union,
1199 Florida, AFL–CIO.1 Case 12–RD–978
August 27, 2005
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered
objections to an election held September 17, 2004, and
the hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 37
for and 40 against the Union, with 1 challenged ballot, an
insufficient number to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief, adopts the hearing officer’s findings2
and recommendations to sustain part of the Petitioner’s
Objection 4 for the reasons set forth below, and finds that
the election must be set aside and a new election held.3
The only issue in this case is whether the Employer’s
announced elimination of an extra shift bonus improperly
interfered with employees’ free choice in the election.
Contrary to our dissenting colleague, we agree with the
hearing officer that the Employer engaged in objection-
able conduct by announcing, just prior to the election, the
elimination of its practice of paying a $25 extra shift bo-
nus to certified nursing assistants (CNAs) for each extra
shift they worked after 40 hours.
The Employer operates a 120-bed skilled nursing and
rehabilitation center facility as well as a 32-bed secured
Alzheimer’s unit. On August 6, 2003, the Union was
certified to represent a unit of service employees that
included CNAs. On August 9, 2004,4 a decertification
petition was filed.
The CNAs worked various shifts and had a variety of
days off because the Employer operates 24 hours a day 7
days a week. The Employer had a longstanding practice

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers from the AFL–CIO effective
July 29, 2005.
2 The Employer has excepted to some of the hearing officer's credi-
bility findings. The Board's established policy is not to overrule a hear-
ing 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
findings.
3 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendation to overrule Union’s Objections 1, 2, 3, 5, and 6,
and the portion of Objection 4 that alleged the refusal to process a
grievance.
4 All dates hereafter refer to 2004.
of paying an extra shift bonus of $25 to CNAs for each
extra shift they worked after 40 hours. Two days before
the September 17 decertification election, the Employer
announced through the signup sheet posted for extra
shifts, and by word of mouth, that there would no longer
be an extra shift bonus. Scheduling secretary Martha
Rodriguez, who posted the notice after talking with the
director of nursing, testified that the Employer was inten-
tionally trying to get the same work from the bargaining
unit employees for lower wages. CNAs were quite upset
over the elimination of the bonus.
It was not until about 24 hours later, at 2:30 p.m. the
following day—the day before the election—that the
Employer removed the “No Bonus” signup sheet. Rod-
riguez orally informed employees later that afternoon
that the bonus had been reinstated. Despite Rodriquiz’
assertion that she told “everyone” of the bonus restora-
tion, only certain CNAs worked the September 16 after-
noon shift. Further, although Rodriguez testified that she
repeated this message on September 17, the date of the
election, the polls opened at 6:30 a.m. that morning, and
the Employer did not establish that Rodriguez informed
employees prior to the start of the election that the bonus
had been restored.
We agree with the hearing officer that the Employer’s
announced elimination of the extra shift bonus interfered
with the election. The cancellation of benefits during the
critical period is reasonably susceptible of being under-
stood by bargaining unit employees as interference with
their Section 7 rights.
The dissent says that no rational employer “reasonably
calculates” that announcing the rescission of a popular
benefit shortly before a decertification vote is likely to
influence employees to vote against the union. How-
ever, the test is not what the employer would calculate,
but rather the impact of the employer’s action on a rea-
sonable employee. It is extremely doubtful that a rea-
sonable employee would infer that the Employer’s mes-
sage was to influence the employees to vote for the un-
ion. After all, the Employer had waged a vigorous anti-
union campaign. Rather, in light of that campaign, it is
far more reasonable to believe that employees would
view the Employer’s message as being an antiunion one.5
The Employer was placing its finger on one of the em-
ployees’ most vulnerable spots—wages—and, in effect,
indicating “Here is where we can hurt you and your un-
ion is powerless to do anything about it.” We conclude

5 See Comet Electric, 314 NLRB 1215, 1216 (1994). In that case,
the employer withheld pay as a “punishment” of employees for seeking
union representation. We see no significant distinction between that
case and a case where, as here, the Employer supports an antiunion
decertification effort.
LAKE MARY HEALTH & REHABILITATION 545
that the unilateral elimination of a longstanding eco-
nomic benefit 2 days before the election would reasona-
bly send a message to unit employees that the seeming
inability of the incumbent Union5 to protect them from
the Employer’s detrimental actions made the Union’s
continued presence as a bargaining representative point-
less.6
The dissent suggests that there is a difference between
the grant of a benefit and the imposition of a detriment.
We disagree. The use of carrots and sticks can upset the
atmosphere in an election campaign. With respect to the
former, the Supreme Court said in NLRB v. Exchange
Parts, 375 U.S. 405 (1964):
The danger inherent in well-time[d] increases in bene-
fits is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged.
With respect to the latter (the stick), the benefit here has
in fact dried up, and the timing suggests that this was tied
to the campaign.7

6 The dissent suggests that the announcement might have been a
mere miscommunication. However, Rodriguez testified that, by re-
scinding the bonus, the Employer was intentionally attempting to get
the same work from the CNAs (and its nurses) for lower wages. We
therefore agree with the hearing officer that the announcement was
more than just an inadvertent mistake or clerical error but the purpose-
ful conduct by two of the Employer’s agents. In any event, even if it
were a “miscommunication,” the fact remains that the Employer told
employees that they had lost a longstanding benefit.
The dissent then proceeds to assume that the announcement had a
purpose but that the purpose was to reduce costs rather than to influ-
ence the election. However, the Board’s test is whether the conduct
had a tendency to interfere with the free choice of employees. The
conduct here, including its timing, had such a tendency.
The dissent also states that the Employer did not oppose the decerti-
fication initiative, and thus “no retributive or punitive inference is war-
ranted.” The logic of his argument eludes us because it is clear that the
Employer opposed the Union and made that fact known to employees.
The elimination of the benefit was in the context of that opposition to
continuing representation. Moreover, the announcement, occurring
after the decertification petition was filed and 2 days before the elec-
tion, would reasonably be construed as an attempt to undermine the
employees’ support for the Union and to coerce them into voting to
oust the incumbent Union by making it seem impotent in the face of the
Employer’s action.
7 The dissent makes much of the observation that the Employer’s
conduct here cannot be viewed as a rational attempt to influence the
outcome of the election, and thus no reasonable employee could view
the conduct as such an attempt. However, the objective fact here is that
the Employer did announce, on the eve of the election, a unilateral
change in employee compensation, and, in fact, this announcement did
cause employees to become alarmed and concerned about their pay.
Whether or not the Employer’s conduct was “rational,” it did have the
tendency to interfere with the election, and to find otherwise is to ig-
nore the reality of the workplace.
The Employer defends its conduct on two grounds.
First, it argues that its conduct was not a purposeful act
designed to influence the election. Second, it contends
that its conduct was de minimis. The hearing officer
properly rejected these arguments. In determining
whether conduct is objectionable, the Board does not
inquire whether an employer’s actions were intentional
or actually affected the results of the election. The test is
not a subjective one, but an objective determination of
whether the conduct of a party to an election has the ten-
dency to interfere with the employees’ free choice. Ce-
dars-Sinai Medical Center, 342 NLRB 596 (2004); Cam-
bridge Tool & Mfg. Co., 316 NLRB 716 (1995). The
Board has long held that the subjective reactions of em-
ployees are irrelevant to the question of whether there
was in fact objectionable conduct. Hopkins Nursing
Center, 309 NLRB 958 (1992). Thus, the asserted lack of
purpose or actual effect on the election is not germane to
whether the conduct was objectionable. We find that the
test is met here, given the seriousness of the Employer’s
conduct, the timing of the announcement of the elimina-
tion of the bonus 2 days before the election, the wide
dissemination of the announcement, the closeness of the
vote and the Employer’s failure to effectively inform
employees that the bonus had been restored.
Further, we find that the elimination of the bonus was
not de minimis. The announced discontinuance of the
bonus was directed to CNAs, who constitute almost
three-quarters of the unit employees. The announcement
was also widely disseminated throughout the facility to
more than a determinative number of unit employees.8
Not only was it posted, but, as noted above, Rodriguez
also personally informed all of the CNAs who were pre-
sent that the bonus had been eliminated. It was also
widely discussed up until at least the start of the election.
The Employer did not attempt to retract its announced
decision until less than a day before the election, and it
failed to establish that all affected individuals were noti-
fied of its attempted recall of the new, economically det-
rimental policy.
Additionally, we cannot ignore the fact that the elec-
tion was extremely close.9 The Board has held that ob-
jections must be more carefully scrutinized in close elec-

8 Delta Brands, Inc., 344 NLRB No. 10 (2005), relied upon by our
colleague, is inapposite. There the Board (Member Liebman dissent-
ing) found that an employer’s handbook rule did not affect the elections
on the basis that there was no evidence that the unit employees were
aware of the rule. In contrast, here, knowledge of the elimination of the
bonus was widespread.
9 Cedar-Sinai Medical Center, supra; Cambridge Tool & Mfg. Co.,
supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD546
tions.10 Here, the election margin was only three votes,
and many more unit employees than that heard of the
Employer’s revocation of the bonus.11 In fact, the Em-
ployer’s announcement had caused an angry disruption
in the facility and even at the time of the voting employ-
ees were questioning Rodriguez as to whether the bonus
was still eliminated. Under these circumstances, we find
that the announced elimination of the bonus could well
have affected the outcome of the election.12
Our dissenting colleague, citing Virginia Concrete
Corp., 338 NLRB 1182 (2003), argues that the objection
should also be dismissed inasmuch as no unfair labor
practice charge was filed or litigated. We disagree. First,
this argument was not raised by the Employer, and the
Petitioner’s objection is not based on a failure to bargain
allegation. Moreover, the failure to file an unfair labor
practice charge regarding preelection conduct does not
constitute a waiver of a party’s right to allege that the
conduct was objectionable. Even if there are no unfair
labor practice charges, the Board can find the conduct
objectionable unless such conduct can only be held to
interfere with the election upon an initial finding that an
unfair labor practice was committed. Virginia Concrete
Corp., supra at 1186 fn. 8; National League of Profes-
sional Baseball Clubs, 330 NLRB 670, 677 (2000).
Here, unlike Virginia Concrete Corp., the objection does
not depend on the finding of an unfair labor practice. As
demonstrated above, we can determine whether the an-
nounced elimination of the bonus interfered with the
election independent of any unfair labor practice finding.
Indeed, in Virginia Concrete itself the Board analyzed,
apart from unfair labor practice considerations, whether
under representation case principles an employer’s grant

10 Robert Orr-Sysco Food Services, 338 NLRB 614 (2002); Cam-
bridge Tool & Mfg. Co., supra.
11 That is, a shift of two votes could possibly have altered the out-
come of the election.
12 Our colleague believes that because no employee actually suffered
a detriment, the announcement of the change in bonus pay could not
have affected the results of the election. However, that analysis misses
the mark, for two reasons. First, it is premised on faulty assertions—
that only a few employees were affected and that the announcement
was quickly withdrawn. As the record shows, however, the vote was
close—only a three vote margin—and those most affected by the an-
nouncement constituted over a majority of the unit. Further, the Em-
ployer’s attempted withdrawal did not occur until almost a day later,
and the Employer failed to show it reached all of the affected employ-
ees. Second, as explained above, the issue is not whether employees
suffered a detriment; rather, it is whether the Employer’s conduct inter-
fered with the election. Similarly, the test is not whether the conduct
actually affected the vote of any particular employee. Rather, the test is
whether the conduct had a tendency to interfere with the free choice of
a reasonable employee.
of a wage increase during a decertification campaign
constituted objectionable conduct. Id at 1184 fn. 5.13
Thus, we agree with the hearing officer that the Em-
ployer’s announced elimination of the extra shift bonus
tended to interfere with the expression of employees’
free choice in the election. Accordingly, we sustain that
portion of Objection 4, set aside the election on this ba-
sis, and order that a new election be held.
[Direction of a Second Election omitted from publica-
tion.]
MEMBER SCHAUMBER, dissenting in part.
My colleagues properly adopt, in the absence of excep-
tions, the hearing officer’s recommendation to overrule
Objections 1, 2, 3, 5, and 6, and I join them in doing so.
However, I disagree that the underlying election, a decer-
tification vote, should be set aside because an apparent
miscommunication1 between a frontline supervisor and
clerk resulted in the announcement, shortly before the
election, of the discontinuation of a popular benefit, an
extra shift bonus. Apart from the fact that the an-
nouncement was immediately rescinded when brought to
the attention of management the next day, the bonus was
never discontinued, and good-faith efforts were made to
communicate the correction to employees, employees
would not reasonably view the announcement of the re-
scission of a benefit prior to a vote to decertify the union
as an effort to discourage their support for the union. . . .
In this regard, while not relied upon for purposes of this
dissent, no evidence exists that the miscommunication

13 In fact, as there has been no finding that a contract is in effect, the
change could not be alleged as an unlawful unilateral change in con-
tractual benefits. As noted above, the Employer does not argue that its
announced change in removing extra shift bonuses was privileged as
consistent with past practice; it simply claims that the announcement
was a mistake that was not intended to influence the election and that
whatever impact it had on the election was de minimis. As discussed
above, we find these arguments to be without merit. Contrary to the
dissent’s claim, we are not establishing a rule that any unilateral change
during the critical period is objectionable. Rather, we find that the
conduct engaged in by this Employer during this campaign was objec-
tionable.
1 Oddly, my colleagues assert that the announcement of the discon-
tinuation of the bonus was “purposeful” conduct, then accuse me of
“assuming” a purpose. I do not contend that the announcement was not
purposeful, but rather that the clerical employee who made the an-
nouncement did so after misinterpreting an instruction from a supervi-
sor, as testimony at the hearing indicated. However, even if one as-
sumes, as my colleagues and the hearing officer do, that the purpose of
the announcement was to see whether employees would work extra
shifts without a bonus, that is a purpose wholly unrelated to interfer-
ence with the election. I would agree that reasonable employees would
be far more likely to view the announcement as an effort to reduce
costs than an attempt to interfere with or coerce them in their choice on
union representation. Of course, the most reasonable reaction on the
facts of this case would be that a mistake was made and promptly cor-
rected.
LAKE MARY HEALTH & REHABILITATION 547
affected the vote of any eligible voter much less that it
was intended to achieve such a result. Nonetheless, the
hearing officer found, and my colleagues agree that “the
announcement sent the message to unit employees that
the Employer had the power to grant or eliminate wages
and benefits, and was reasonably calculated to influence
employees to vote against the Union.” As more fully
explained herein, my colleagues’ decision is inconsistent
with the law, logic, and common experience. Accord-
ingly, I respectfully dissent.
As we recently reiterated, “representation elections are
not lightly set aside” and “the burden of proof on parties
seeking to have a Board-supervised election set aside is a
heavy one.” Delta Brands, Inc., 344 NLRB No. 10, slip
op. at 2 (2005) (citations and internal quotations omit-
ted). “[T]he Board looks to all of the facts and circum-
stances to determine whether the atmosphere was so
tainted as to warrant the setting aside of the election.”
Id. In the instant case, the hearing officer did not hold
the Union to that “heavy burden,” but instead inferred
interference, relying upon a line of precedent holding that
wage and benefit increases implemented during the criti-
cal period create a presumption or inference of unlawful
interference that the employer may rebut with proof of a
legitimate business reason for the increase unrelated to
the election outcome.2 See generally Virginia Concrete
Corp., 338 NLRB 1182, 1184 (2003). Such a presump-
tion or inference, however reasonable in the context of a
conferral of a benefit, loses its logical moorings in the
context of an announced change that is detrimental to
employees; no rational employer “reasonably calculates”
that announcing the rescission of a popular benefit
shortly before a decertification vote is likely to influence
employees to vote against the union.3 Nor is there war-

2 The hearing officer relied on Atlantic Forest Products, 282 NLRB
855 (1987); NLRB v. Exchange Parts Co., 375 U.S. 405 (1964); and
Doane Pet Care, DPC, 342 NLRB 1116 fn. 2 (2004).
3 The Supreme Court has instructed the Board that its presumptions
“must rest on a sound factual connection between the proved and in-
ferred facts.” NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979);
Republic Aviation v. NLRB, 324 U.S. 793 (1945). No such connection
exists between the announcement of a detrimental change and an infer-
ence of intent to thereby coerce employees to vote against an incum-
bent union. Indeed, such an inference is contrary to common sense and
experience. My colleagues assert that whether an employer intends its
conduct to interfere with an election or whether the conduct actually
affected the election are irrelevant because the test is an objective one
viewed from the standpoint of a reasonable employee. That is true to a
point. However, the test with respect to a conferral of a benefit within
the critical period is whether employees “would reasonably view the
grant of benefits as an attempt to interfere with or coerce them in the
choice on union representation.” See fn. 4, infra. If no rational em-
ployer would engage in particular conduct in order to influence the
outcome of an election, here the discontinuance of an extra bonus shift,
no reasonable employee would view the conduct as such an attempt.
rant to presume or infer that employees would reasonably
view such an announcement as an attempt to discourage
their support for the incumbent union.
Even in cases considering the effect of a critical period
conferral of benefit, the burden is on the general Counsel
to prove, by a preponderance of the evidence, “that em-
ployees would reasonably view the grant of benefits as
an attempt to interfere with or coerce them in their choice
on union representation.” Southgate Village Inc., 319
NLRB 916 (1995). That burden was on the objecting
party here and has not been met. My colleagues’ will-
ingness to substitute presumptions for proof (or to infer
motivation without a sound basis in fact) contravenes the
principles set forth in Delta Brands, Inc., supra, slip op.
at 2 (“Our [dissenting] colleague presumes that employ-
ees are ‘affected’ by [a handbook rule]. She indulges in
this presumption because there is no evidence of such an
effect . . . . [T]he burden is on the objecting party to
prove its objection, and without such a presumption, that
burden is not satisfied here.”).
In limited circumstances, the Board has found that the
delay (or announcement of delay) of a wage increase or
imposition of some other economic detriment constituted
objectionable conduct, but only where a demonstrable
causal nexus exists between the detriment and the elec-
tion campaign such that “employees would reasonably
perceive that the Union’s campaign had caused them to
suffer an economic detriment.” Comet Electric, 314
NLRB 1215 (1994) (objectionable conduct found where
employer forced employees to sit through captive audi-
ence speech in order to pick up paychecks and failed to
pay employees for the meeting; by its conduct employer
“effectively punished [employees] for seeking union rep-
resentation.”).4 No such causal connection exists here.5

4 See also Martin Industries, 290 NLRB 857, 860 (1988) (adopting
judge’s findings of 8(a)(3) and (1) violations where historic merit wage
increases were granted to other employees but admittedly withheld
from employees in petitioned-for unit because of pending representa-
tion case and only after the employees selected the union; unit employ-
ees “would clearly attribute the loss of wages to the successful union
campaign.”). My colleagues see no “significant difference” between
this case and others, such as Comet Electric, in which there was a direct
tie between the conduct at issue and the representation election.
Therein lies the problem. In Comet Electric, the employer forced virtu-
ally all of its employees to attend a 2-1/2 hour antiunion captive audi-
ence speech on payday, withheld employee paychecks until the conclu-
sion of the meeting, and did not pay the employees for most of the time
spent in the meeting, which extended well beyond the conclusion of the
employees’ normal workday. Under those circumstances, the Board
concluded that the “employees would reasonably perceive that the
Union’s campaign had caused them to suffer an economic detriment”
and that “by failing to pay employees for the time spent in the meeting
and by delaying their paychecks, it effectively punished them for seek-
ing union representation.” By contrast, no employee in the instant case
suffered an economic detriment as a result of the announcement, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD548
The campaign at issue was a decertification initiative,
which the Employer did not oppose, so no retributive or
punitive inference is warranted.6 Nor did the Employer
tie the announcement in any way to the pendency of the
election or to its outcome. Thus, this case is both factu-
ally and analytically distinguishable from decisions such
as Atlantic Forest Products, relied upon by the hearing
officer, in which the Board found violations and, a forti-
ori, objectionable conduct,7 where an employer an-
nounced a delay and postponed a scheduled wage in-
crease because of a pending representation election,
made various statements disparaging the union and blam-
ing it for the delay, and suggested that both the timing
and amount of future increases would be uncertain if the
union prevailed in the election. 282 NLRB 858–859.
Unable to demonstrate any factual nexus between the
announcement and the election (compare the cases cited
in fn. 5, supra, and accompanying text), my colleagues
invoke the “fist in the velvet glove” maxim, from which
to infer, contrary to logic and common experience, that
rather than interpreting the announcement as a promptly
rectified mistake, reasonable employees would construe

announcement was tied in no way to the existence of the decertification
election, the benefit at issue applied only to employees who signed up
for extra shifts, and the announcement was withdrawn within hours.
5 My colleagues suggest that no causal connection need be estab-
lished because “it is clear that the Employer opposed the Union . . . and
the elimination of the benefit was, in the context of that opposition.”
However, employers have a statutory right to oppose unions, see Sec.
8(c), and nothing in the manner in which the Employer expressed its
opposition in this case was alleged or found to be unlawful. Again, my
colleagues simply infer from the fact of opposition that any change
occurring in that “context”—even one as de minimis as the short-lived
announcement here—constitutes objectionable conduct. As noted
above, Board precedent is to the contrary, and requires a causal nexus
between the allegedly unlawful detrimental change and the representa-
tion election, such that employees would reasonably view the change as
an attempt to coerce or interfere with employee choice on union repre-
sentation.
6 My colleagues would infer a punitive or retributive motive from
the fact of the Employer’s opposition to the Union. However, that
opposition only negates the inference my colleagues draw. Here, the
Union was the incumbent representative of the employees, and the
announcement occurred only after employees had petitioned to vote out
the Union. Had the announcement followed on the heels of the initial
certification of the Union, such an inference might make sense. But
reasonable employees undoubtedly recognize that you do not punish
someone for doing something which you presumably support.
7 In Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787 (1962), the
Board stated that “conduct violative of Section 8(a)(1) is, a fortiori,
conduct which interferes with the exercise of a free and untrammeled
choice in an election.” Applying that reasoning, Board decisions have
directed new elections where objections parallel to conduct found to
violate Sec. 8(a)(1) have been filed, unless “it is virtually impossible to
conclude that the misconduct could have affected the election results.”
Such was the case in Forest Products. I do not pass on the merits of
the “virtually impossible” standard, which is plainly inapplicable here
because no 8(a)(1) violations were alleged or found.
what happened as an deliberate “attempt to undermine
the employees’ support for the Union and to coerce them
into voting to oust the incumbent Union by making it
seem impotent in the face of the Employer’s action.” I
disagree. While I do not question generally the wisdom
of the Board’s approach to resolving objections in repre-
sentation cases, I do question the wisdom of my col-
leagues’ decision and their substituting presumptions for
burdens of proof under the guise of the “fist in the velvet
glove” doctrine which was applied by the Supreme Court
and all subsequent Board cases relying on it to grants of
benefits before a vote for union representation, not with-
drawal of benefits before a vote for union decertification.
Further, how an isolated incident such as this, one cor-
rected literally overnight with no actual adverse impact
on anyone, would make the Union seem impotent in the
eyes of a reasonable employee, my colleagues fail to
explain. Certainly, as mentioned, no employee testified
to that interpretation. Indeed, the one employee who
protested most vocally in response to the announcement,
testified that the incident did not impact her vote all.
But, again, neither facts, nor logic, nor common experi-
ence carry the day here; at bottom my colleagues con-
clude that the announcement had a reasonable tendency
to affect the election simply because they say it did (to
find otherwise is to ignore the reality of the workplace).
In effect, my colleagues apply a rule that any unilateral
change or announcement thereof during the critical pe-
riod—regardless of whether that change has been alleged
as and found to be an unfair labor practice, and regard-
less of whether there is evidence that the change or an-
nouncement affected the election outcome—constitutes
objectionable conduct. That is not the law. See, e.g.,
Virginia Concrete Corp., supra, 338 NLRB at 1186 (de-
clining to find objectionable conduct in the absence of an
unfair labor practice charge where the gravaman of the
objection was that a wage increase violated Section
8(a)(5) because it was granted without giving the union
notice and an opportunity to bargain). See also National
League of Professional Baseball Clubs, 330 NLRB 670,
677 (2000) (regardless of whether alleged unilateral
withholding of contractual wage increases might consti-
tute an unfair labor practice, sole issue in a representation
proceeding is whether the conduct was taken for or had
the effect of influencing the election). In this case, no
unfair labor practice charge was filed or litigated, nor
was there any evidence that the short-lived announce-
ment was intended to or did affect the outcome of the
election.8 Thus, the objecting party failed to carry its

8 I do not, as my colleagues contend, argue that objectionable con-
duct may not be found absent the filing of an unfair labor practice
charge. Rather, my point is that conduct that might be found to consti-
LAKE MARY HEALTH & REHABILITATION 549

tute an unlawful unilateral change if alleged and proven, does not, a
fortiori, constitute objectionable conduct in the absence of such a find-
ing. My colleagues effectively extend the Dal-Tex Optical Co. stan-
dard to any unilateral change or announcement thereof within the criti-
cal period.
burden of proof, the objection should be overruled, and a
certification of results should issue.