                                                          [DO NOT PUBLISH]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
