Lake Mary Health Care Associates, LLC v. National Labor Relations Board , 211 F. App'x 878 ( 2006 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    FILED
    ________________________
    .U .S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 06-12825
    DECEMBER 20, 2006
    Non-Argument Calendar
    THOMAS K. KAHN
    ________________________                       CLERK
    Agency No. 12-CA-24810
    LAKE MARY HEALTH CARE ASSOCIATES, LLC,
    d.b.a. Lake Mary Health and Rehabilitation,
    Petitioner-
    Cross-Respondent,
    versus
    NATIONAL LABOR RELATIONS BOARD,
    Respondent-
    Cross-Petitioner.
    ________________________
    Petition for Review of a Decision of the
    National Labor Relations Board
    _________________________
    (December 20, 2006)
    Before BLACK, HULL and MARCUS, Circuit Judges.
    PER CURIAM:
    Lake Mary Health Care Associates, LLC (“Lake Mary”) petitions for review
    of the April 28, 2006 order of the National Labor Relations Board (“the Board”).
    In that order, the Board found that Lake Mary had engaged in unfair labor practices
    by refusing to bargain collectively with employee representatives, in violation of
    section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)
    and (5) (“NLRA”). The Board filed a cross-application to enforce its order. After
    review, we deny Lake Mary’s petition and grant the Board’s cross-application.
    I. FACTUAL BACKGROUND
    Lake Mary operates a nursing home and rehabilitation center. The Service
    Employees International Union, Local 1199 (“the Union”) represented a unit of
    Lake Mary’s service employees. Three-quarters of the 92-employee unit was
    comprised of certified nursing assistants (“CNA”).
    On August 9, 2004, an employee in the unit represented by the Union filed a
    decertification petition with the Board seeking to decertify the Union.
    Consequently, an election was scheduled for September 17, 2004 to determine
    whether the unit employees wished to continue being represented by the Union.
    For several years, Lake Mary had paid its CNAs a $25.00 shift bonus if they
    worked an extra shift in addition to their 40-hour week. On September 15, 2004,
    two days before the scheduled election, Lake Mary’s scheduling secretary, Martha
    Rodriguez, posted a notice on the extra-shift sign up sheet indicating that there
    2
    would be no bonus. Rodriguez did so at the direction of Pat Mulkey, Lake Mary’s
    director of nursing. Rodriguez also told CNAs whom she encountered that day that
    Lake Mary would no longer pay extra shift bonuses.
    As word spread of the change, some CNAs on the night shift complained to
    Rodriguez. Rodriguez passed those complaints on to Mulkey.
    On September 16, 2004, Mulkey spoke with Lake Mary’s administrator,
    Maureen Kehoe, who explained that the extra-shift bonuses should be given.
    Mulkey returned to Rodriguez and stated that they had “made a mistake.”
    At 2:30 p.m. on September 16, Rodriguez took down the sign up sheet with
    the “no bonuses” notice. Rodriguez also told CNAs who had signed up for extra
    shifts and any CNAs she encountered at the facility until she left work at 5:00 p.m.
    that extra-shift bonuses would be given. When Rodriguez returned to work at 6:15
    a.m. on September 17, 2004 – the morning of the election –, CNAs continued to
    question her about the elimination of the extra-shift bonus. Rodriguez told them
    that extra-shift bonus would be given.
    On September 17, voting occurred between 6:30 a.m. and 8:30 a.m. and
    again between 2:00 p.m. and 4:00 p.m. Out of 92 eligible voters, 40 voted against
    union representation and 37 voted in favor, with one challenged ballot.
    The Union filed election objections, alleging, inter alia, that Lake Mary’s
    change in the extra-shift bonus on the eve of the election was conduct that tended
    3
    to interfere with the free expression of employee choice in the election. A Board
    hearing officer conducted a hearing at which the parties were able to present
    evidence. Thereafter, the hearing officer recommended that the Board sustain the
    Union’s objection relating to the change in extra-shift bonuses and that a new
    election be held. After considering Lake Mary’s exceptions, the Board adopted the
    hearing officer’s report and recommendation and directed a second decertification
    election. See Lake Mary Health Care Assocs., L.L.C., 345 N.L.R.B. No. 37, 
    2005 WL 2115871
    (2005).
    On October 28, 2005, a second election was held, and the Union won by a
    vote of 40 to 36, with two challenged ballots. On November 10, 2005, the Board’s
    regional director certified the Union as the collective bargaining agent for Lake
    Mary’s CNAs.
    Despite certification, Lake Mary refused to comply with the Union’s request
    to bargain. The Union filed a charge of unfair labor practice with the Board. The
    Board’s general counsel filed a complaint against Lake Mary based on the Union’s
    charge. Lake Mary filed an answer admitting its refusal to bargain, but contending
    that it was not obligated to bargain with the Union because the Board had erred in
    setting aside the first election and directing a second election. The Board’s general
    counsel moved for summary judgment, which the Board granted.
    4
    Specifically, the Board concluded that Lake Mary had engaged in unfair
    labor practices by refusing to bargain with the Union and thus violated sections
    8(a)(1) and (5) of the NLRA and ordered Lake Mary to cease and desist and to
    bargain upon the Union’s request. As for Lake Clare’s argument that the Board
    had erred in directing the second election, the Board concluded that this argument
    raised representation issues that “were or could have been litigated in the prior
    representation proceeding” and that Lake Mary had not presented any new
    evidence or special circumstances that required the Board to re-examine its prior
    decision to set aside the first election and direct a second election. Thus, the Board
    concluded that Lake Mary “ha[d] not raised any representation issue that [wa]s
    properly litigable in this unfair labor practice proceeding.” Lake Mary Health Care
    Assocs., L.L.C., 346 N.L.R.B. No. 103, 
    2006 WL 1168873
    (2006). Lake Mary
    filed this petition for review and the Board cross-petitioned seeking enforcement of
    its order.
    II. DISCUSSION
    The NLRA prohibits an employer from interfering with its employees’
    exercise of their NLRA rights and from refusing to bargain with its employees’
    duly certified representative. See 29 U.S.C. § 158(a)(1), (5). It is undisputed that
    Lake Mary refused to bargain with the Union. The only issue on appeal is whether
    the Union was duly certified.
    5
    Lake Mary argues that the Union was not duly certified because the Board
    erroneously invalidated the results of the first decertification election, in which
    union representation was defeated. According to Lake Mary, the record does not
    support the Board’s conclusion in the representation proceeding that the change in
    the extra-shift bonus improperly interfered with employees’ free choice in the first
    decertification election.1
    The ultimate question in representation election cases is whether the
    challenged conduct “created an environment of tension or coercion which
    precluded employees from exercising a free choice.” TRW-United Greenfield
    Div., 
    716 F.2d 1391
    , 1394 (11th Cir. 1983). “For conduct to warrant setting aside
    an election, not only must that conduct be coercive, but it must be so related to the
    election as to have had a probable effect upon the employees’ actions at the polls.”
    
    Id. (quotation marks
    omitted).
    The burden is on the party objecting to the conduct to prove by specific
    evidence that the conduct “interfered with the employees’ exercise of free choice to
    such an extent that they materially affected the results of the election.” N.L.R.B v.
    1
    The NLRA does not provide for direct review of a representation election proceeding.
    Therefore, “where unfair labor practice is charged for refusal to bargain, and the employer has
    refused to recognize the certification, the election proceeding is before the court for review. The
    representation case and the unfair labor practice case become as one and the complete record is
    fully reviewable.” U.S. Rubber Co. v. N.L.R.B., 
    373 F.2d 602
    , 604 n.3 (5th Cir. 1967); see also
    29 U.S.C. § 159(d).
    6
    Gulf States Canners, Inc., 
    585 F.2d 757
    , 759 (5th Cir. 1978) (quotation marks
    omitted).2 In determining whether the objecting party has proved the effect of
    particular conduct on a representation election, we apply the “tendency-to-
    influence test” rather than speculate about the “subjective reaction of employees to
    electioneering . . . .” 
    Id. Under the
    tendency-to-influence test, the Board must
    assess “whether the questioned action by an election candidate had a tendency to
    influence the outcome of the voting.” Id.3
    Substantial evidence supports the Board determination that Lake Mary’s
    announced elimination of the extra-shift bonus was conduct that warranted setting
    aside the first decertification election. Evidence in the record indicates that the
    abrupt change in such a long-established monetary benefit created an atmosphere
    of confusion and alarm that continued up to the minutes before the polls opened.
    2
    This Court adopted as binding precedent all Fifth Circuit decisions rendered prior to
    October 1, 1981. Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1982) (en banc).
    3
    “Determination of whether a union representation election was unfairly conducted and
    should be set aside is primarily a question for the National Labor Relations Board.” TRW-
    United Greenfield Div. v. N.L.R.B., 
    716 F.2d 1391
    , 1393 (11th Cir. 1983). “Because it is for the
    Board to decide if the conduct charged reasonably tends to interfere with the employees’ free
    choice, this Court, in reviewing this decision, must be slow to overrule a discretionary
    determination by the Board.” N.L.R.B. v. Golden Age Beverage Co., 
    415 F.2d 26
    , 29 (5th Cir.
    1969) (citations and quotation marks omitted). To this end, “[w]hether this Court would reach
    the same conclusion as the Board from the conflicting evidence is immaterial, so long as the
    Board’s finding that the election was fairly conducted is supported by substantial evidence in the
    record considered as a whole.” Id.; see also N.L.R.B. v. Dynatron/Bondo Corp., 
    176 F.3d 1310
    ,
    1313 (11th Cir. 1999); 29 U.S.C. § 160(e). We uphold the Board’s legal conclusions unless they
    are “arbitrary or contrary to the law.” N.L.R.B. v. Dynatron/Bondo Corp., 
    992 F.2d 313
    , 315
    (11th Cir. 1993).
    7
    The elimination of the bonus came just two days before the election and after Lake
    Mary had waged a vigorous anti-union campaign. Therefore, the timing of and
    context within which the announced change in benefits occurred supports an
    inference that it was tied to the campaign. Under these circumstances, the CNAs
    reasonably could have interpreted the bonus elimination to be an attempt by Lake
    Mary to influence their votes against the Union as an unsuccessful advocate for the
    employees. Specifically, as the Board stated, “the unilateral elimination of a
    longstanding economic benefit 2 days before the election would reasonably send a
    message to unit employees that the seeming inability of the incumbent Union to
    protect them from the Employer’s detrimental actions made the Union’s continued
    presence as a bargaining representative pointless.” Lake Mary, 
    2005 WL 2115871
    ,
    at *2. Therefore, Lake Mary’s elimination of the bonus was sufficiently coercive.
    In addition, the first decertification election was very close – 40 to 37
    against the Union. A change in just a few votes would have altered the outcome.
    See N.L.R.B. v. Overland Hauling, Inc., 
    461 F.2d 944
    , 946-47 (5th Cir. 1972)
    (“Conduct which could have affected only a few voters may not have any effect on
    the ultimate outcome of the election in cases where the vote disparity is large, but
    the same conduct in a close election could be determinative.”); Gulf States
    
    Canners, 585 F.2d at 759
    (“[W]hen, as is the case here, a change of only a few
    votes would affect the outcome of the election, less egregious actions may require
    8
    a rerun of the election than a case in which a clear-cut choice has emerged from the
    balloting.”). Although Lake Mary reinstated the extra shift bonus just prior to the
    election, all of the CNAs were not notified of this change of heart before the polls
    opened. Instead, Lake Mary relied upon “word of mouth.” Given the extremely
    narrow voting margin and all the other circumstances surrounding the elimination
    of the bonus, substantial evidence supports the Board’s finding that Lake Mary’s
    conduct had a tendency to influence the results of the election.
    Lake Mary argues that the Union, as the objecting party, failed to meet its
    burden to show that Lake Mary intentionally eliminated the bonus to affect the
    election. The objecting party, however, need not show an intent to influence the
    election. See Gulf States 
    Canners, 585 F.2d at 759
    . Rather, “[i]n determining
    whether an election should be invalidated, the focus should be on the effects of a
    particular act on the electorate rather than on the actor’s intent.” 
    Id. Lake Mary
    also argues that, even if intent was not necessary, the Board
    nonetheless made an unsupported finding that Lake Mary acted with intent. Lake
    Mary points to unrebutted evidence in the record showing that the elimination of
    the bonus was a mistake resulting from a miscommunication. Lake Mary further
    contends that the Board “effectively” shifted the burden of persuasion to the
    Employer by ignoring the unrebutted evidence of innocent mistake.
    9
    These arguments are without merit. The Board did not find that Lake Mary
    intentionally eliminated the bonus in an effort to affect the election. Indeed, the
    Board explicitly rejected Lake Mary’s argument that intentional conduct was
    necessary and instead focused on whether the conduct tended to effect the election,
    as follows:
    In determining whether conduct is objectionable, the Board does not
    inquire whether the 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 tendency to interfere with the employees’ free choice.
    Lake Mary, 
    2005 WL 2115871
    , at *2. The Board further stated that Lake Mary’s
    subjective intent was “not germane to whether the conduct was objectionable.” 
    Id. Instead, in
    concluding that the Union met its burden, the Board relied upon “the
    timing of the announcement of the elimination 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.” 
    Id. Finally, Lake
    Mary also argues that the elimination of the extra-shift bonus
    was de minimis because it lasted only 24 hours and was rescinded before the
    election began. The Board has long held that conduct during a “critical election
    period,” that is itself a violation of Section 8(a)(1) of the NLRA, is “a fortiori”
    conduct that interferes with the results of the election. Airstream, Inc., 304
    
    10 N.L.R.B. 151
    , 152 (1991). However, the Board has carved out a narrow exception
    to this per se rule where the conduct “is so de minimis that it is virtually impossible
    to conclude that [the violation] could have affected the results of the election.” 
    Id. (quotation marks
    omitted).
    This is not a case in which the Board concluded that the challenged conduct
    itself was an unfair labor practice that violated Section 8(a)(1). Indeed, the Board
    explicitly declined to do so, instead concluding that the elimination of the bonus
    interfered with the election independent of any Section 8(a)(1) finding. Lake Mary
    , 
    2005 WL 2115871
    , at *3. Furthermore, given the circumstances already
    discussed – the timing of the elimination of the bonus, the widespread
    dissemination of the change in policy and the resulting tension in the workplace,
    the closeness of the vote, etc. – it is not “virtually impossible” to conclude that the
    elimination of the bonus affected the election results. Therefore, we cannot say
    that Lake Mary’s conduct, even assuming arguendo it was a violation of Section
    8(a)(1), was de minimis.
    For the reasons discussed, we deny Lake Mary’s petition for review and
    grant the Board’s cross-application for enforcement.
    PETITION FOR REVIEW DENIED; ENFORCEMENT GRANTED.
    11