UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

BEVERLY HEALTH AND REHABILITATION

No. 96-2195

SERVICES, INCORPORATED, d/b/a

Morgan Manor Nursing and

Rehabilitation Center,

Respondent.

On Application for Enforcement of an Order

of the National Labor Relations Board.

(6-CA-27750)

Argued: May 9, 1997

Decided: August 12, 1997

Before HAMILTON and MOTZ, Circuit Judges, and

CURRIE, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Enforcement denied by unpublished per curiam opinion. Judge Motz

wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Josef Michalski, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Martin J.

Saunders, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Pitts-
burgh, Pennsylvania, for Respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel,

Aileen A. Armstrong, Deputy Associate General Counsel, David

Fleischer, Senior Attorney, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for Petitioner. Terri Imbarlina Patak,

JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Pittsburgh,

Pennsylvania, for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The National Labor Relations Board (the Board) seeks enforcement

of its bargaining order against Beverly Health and Rehabilitative Services, Inc. (Beverly). Beverly asserts that the Board improperly certified election results in favor of representation by the Health Care and

Social Service Union, SEIU, AFL-CIO (the Union), after modifying

the bargaining unit post-election to exclude all licensed practical

nurses (LPNs). Because the Board's election procedures denied the

employees an opportunity to vote for representation in the unit certified by the Board, we deny the Board's application for enforcement

of its order.

I.

Beverly, d/b/a Morgan Manor Nursing and Rehabilitation Center,

operates a 100-bed long-term nursing care facility in Morgantown,

West Virginia. On June 16, 1992, the Union filed a petition for certification of representation with Region Six of the Board. The petition

included a proposed bargaining unit consisting of all full-time and

regular part-time service and maintenance employees at the nursing

home, including LPNs and nine other job classifications. The petition

 2
excluded, among others, all supervisors as defined in § 2(11) of the

National Labor Relations Act (the Act).1 See 29 U.S.C. § 152(11).

On July 13, 1992, a Board hearing officer conducted a representation hearing, the primary issue of which was whether the LPNs at the

Beverly facility were "supervisors" within the meaning of § 2(11) of

the Act. See id. Beverly argued that the LPNs should be excluded

from the bargaining unit as supervisors. Of the approximately eightytwo employees in the proposed bargaining unit, sixteen were LPNs.

These LPNs had a certain amount of authority over another forty-six

employees included in the proposed bargaining unit, including the

authority to arrange work schedules and to evaluate the performance

of these employees.

On July 31, 1992, the Regional Director for Region Six issued a

decision and direction of election in which he found that the LPNs

were not supervisors under § 2(11) of the Act. Beverly filed a timely

request for review of the Regional Director's decision, and on August

27, 1992, the Board denied Beverly's request for review. On that

same day, an election was conducted at the Beverly facility. In conducting the election, the Regional Director permitted the LPNs to

vote, and he did not segregate the ballots of the LPNs from the ballots

of the other employees. In addition, Beverly was not permitted to

challenge the ballots of the LPNs. Of the eighty-two eligible employees, seventy-five employees voted. Fifty-five employees voted in

favor of Union representation, while twenty employees voted against

Union representation. Three ballots were challenged. On September

9, 1992, the Regional Director, noting that no objections to the elec-

_________________________________________________________________

1 The unit described on the official notice of election included:

All full-time and regular part-time service and maintenance

employees, including licensed practical nurses, certified nurse's

aides, nurse's aides, dietary employees, environmental service

employees, medical records coordinator, central supply clerk,

physical therapy aides, activities director's assistants and maintenance employees employed by [Beverly] at its Morgantown,

West Virginia facility; excluding all office clerical employees,

registered nurses and guards, professional employees and

supervisors as defined in the Act.

(J.A. 21 (emphasis added)).

 3
tion had been filed, certified the Union as the exclusive bargaining

representative of the unit employees.

Two days later, on September 11, 1992, we denied enforcement of

the Board's order in a case in which the issue was whether LPNs at

a different health care facility were statutory supervisors under

§ 2(11) of the Act. See Beverly Calif. Corp. v. NLRB, 1992 WL

223815 (4th Cir. Sept. 11, 1992) (unpublished opinion). Following

this decision, Beverly filed a request for reconsideration of the

Board's certification of the election in this case. On May 26, 1993,

the Board granted Beverly's request for reconsideration, finding that

it raised substantial issues warranting review. Almost one year later,

on May 11, 1994, the Board affirmed the Regional Director's decision

and direction of election.

Two weeks later, on May 23, 1994, the Supreme Court issued its

decision in NLRB v. Health Care & Retirement Corp., 511 U.S. 571

(1994), in which it rejected the "patient care analysis" on which both

the Regional Director and the Board had relied in finding that the

LPNs in this case were employees and not "supervisors" under

§ 2(11) of the Act. In light of this decision, Beverly filed a second

motion for reconsideration. On August 4, 1994, the Board granted

Beverly's motion and remanded the case to the Regional Director for

reconsideration in light of the Supreme Court's decision.

On October 24, 1994, a hearing officer conducted a hearing pursuant to the Board's August 4 order. At the hearing, the parties stipulated that the LPNs at the Beverly facility were, at all times relevant

to the petition, "supervisors" within the meaning of § 2(11) of the Act.

However, the parties disputed whether the election should be set aside

and the certification revoked or, alternatively, whether the certification could be merely amended to exclude the LPNs from the bargaining unit. Additionally, Beverly argued that the entire election process,

including the Union's showing of interest, was tainted by the LPNs'

active participation in the election campaign. In support of this position, Beverly attempted, but was not permitted, to put on evidence

with regard to the LPNs' conduct prior to the election. Specifically,

Beverly proffered the testimony of LPNs who were employed during

the 1992 campaign, the content of which was that a number of LPNs

attended Union meetings, signed Union authorization cards, solicited

 4
authorization cards from non-supervisory employees, actively campaigned for the Union with employees over whom the LPNs exercised

supervisory authority, and encouraged such employees to vote for the

Union.

On November 16, 1994, the Regional Director issued a supplemental decision revoking the certification of the Union and directing a

new election. The Regional Director found that the exclusion of the

LPNs represented a major change in the scope and character of the

bargaining unit, thereby invalidating the election and requiring that a

new election be held. The Regional Director rejected, however, Beverly's contention that the representation petition should be dismissed

because of the participation of the LPNs in the organizational campaign, noting that the validity of the showing of interest is not subject

to litigation and that Beverly's challenge thereto, coming two years

after the filing of the petition, was untimely.

On December 2, 1994, the Union filed a request for review of the

Regional Director's decision; Beverly did not file a request for

review. On October 31, 1995, the Board issued a decision in which

it reinstated the Union's certification, amending the certified bargaining unit to exclude LPNs and vacating the Regional Director's direction of a new election. Contrary to the Regional Director, the Board

found that the exclusion of the LPNs, one of ten job classifications

and sixteen of eighty-two employees, from the pre-election unit did

not change the basic character and scope of the unit. In addition, the

Board noted that the election was not close and that, even without the

votes of the LPNs, the Union had won by at least nineteen votes. Noting that Beverly had not requested review of the Regional Director's

decision, the Board declined to address the Regional Director's rejection of Beverly's argument that the LPNs' pre-election conduct

tainted both the showing of interest and the election and required the

dismissal of the representation petition.

On November 15, 1995, the Union requested that Beverly meet for

negotiations. On December 1, 1995, two days after the issuance of the

amended certification, the Union renewed its bargaining request. Beverly did not respond, and on December 6, 1995, the Union filed an

unfair labor practice charge against Beverly, alleging violations of

§§ 8(a)(1) and (5) of the Act. See 29 U.S.C. §§ 158(a)(1) and (5). The

 5
Union filed an amended charge on January 23, 1996, and on February

1, 1996, the Regional Director issued a complaint, to which Beverly

timely filed an answer.

On April 2, 1996, the Board's general counsel filed a motion for

summary judgment with the Board. On April 10, 1996, the Board

issued a notice to show cause why the motion for summary judgment

should not be granted. On April 23, 1996, Beverly filed its response,

reiterating its position that the exclusion of the LPNs from the bargaining unit changed its character and scope so as to render the election invalid. In addition, Beverly argued that the alleged participation

of the LPNs in the organizational campaign raised a serious question

as to the validity of the election.

On May 15, 1996, the Board granted the general counsel's motion

for summary judgment and ordered Beverly to bargain with the

Union. In its decision, the Board found that all representation issues

raised by Beverly had been or could have been litigated in the prior

representation proceeding. On August 28, 1996, the Board filed an

application in this court for enforcement of the Board's order.

II.

The Board enjoys broad latitude to develop and implement the procedures for certification elections. See Sears, Roebuck & Co. v.

NLRB, 957 F.2d 52, 55 (2d Cir. 1992); Nightingale Oil Co. v. NLRB,

905 F.2d 528, 531 (1st Cir. 1990); NLRB v. Lorimar Productions,

Inc., 771 F.2d 1294, 1298 (9th Cir. 1985). As a general rule, the

Board's findings are to be accepted if they are supported by substantial evidence on the record as a whole. See Monongahela Power Co.

v. NLRB, 657 F.2d 608, 611 (4th Cir. 1981). We review the Board's

decision to uphold an election for abuse of discretion. See NLRB v.

VSA, Inc., 24 F.3d 588, 592 (4th Cir. 1994); NLRB v. Manufacturers

Packaging Co., Inc., 645 F.2d 223, 225 (4th Cir. 1981).

III.

As a general rule, the burden is on the party challenging the validity of the election to prove that its fairness has been compromised.

 6
See Manufacturers Packaging Co., 645 F.2d at 225. The test is not

whether optimum practices were followed, but whether the manner in

which the election was held raises a reasonable doubt as to its validity. See Nightingale Oil Co., 905 F.2d at 531; see also NLRB v. Herbert Halperin Distrib. Corp., 826 F.2d 287, 290 (4th Cir. 1987) (party

challenging election "must show by specific evidence `not only that

improprieties occurred, but also that . . . they materially affected the

election results'" (citation omitted)). Nevertheless, "when the Board

has effectively denied employees the right to make an informed

choice in a representation election," an order of the Board will not be

enforced. See Hamilton Test Sys. v. NLRB, 743 F.2d 136, 142 (2d Cir.

1984).

Where employees are led to believe that they are voting on a particular bargaining unit and that bargaining unit is subsequently modified

post-election, such that the bargaining unit, as modified, is fundamentally different in scope or character from the proposed bargaining

unit, the employees have effectively been denied the right to make an

informed choice in the representation election. See NLRB v. Parsons

Sch. of Design, 793 F.2d 503, 506-08 (2d Cir. 1986); Lorimar

Productions, 771 F.2d at 1301-02; Hamilton Test Sys., 743 F.2d at

140-42. Thus, the Board may not "inform employees that they are

voting for representation in [one] unit and later . . . consider the ballot

as a vote for representation in a [different] unit." Hamilton Test Sys.,

743 F.2d at 140; see also Lorimar Productions , 771 F.2d at 1301

(quoting Hamilton Test Sys.). In determining whether an employee's

freedom to make an informed choice has been compromised by the

subsequent modification of the bargaining unit for which he voted, we

consider several factors: (1) the difference in size between the bargaining unit proposed to the employees before the election and the

final size of the unit; (2) the character and scope of the pre- and postelection units; and (3) the closeness of the election results. See Sears,

Roebuck & Co., 957 F.2d at 57.

The first factor to be considered in determining whether a postelection modification of the bargaining unit necessitates the invalidation of the election is the difference in size between the bargaining

unit proposed to the employees before the election and the final size

of the unit. In this case, the exclusion of the LPNs from the bargaining unit decreased its size by approximately 20%. Although the Board

 7
argues that the exclusion of one out of ten employee classifications

and 20% of the number of eligible voters is not a significant change

in the size of the bargaining unit, it is certainly true, as the Second

Circuit Court of Appeals has recognized, that "a smaller bargaining

unit may be less attractive to potential union members because of

reduced bargaining power." Sears, Roebuck & Co., 957 F.2d at 57.

Thus, while a 20% increase in the size of the bargaining unit may not

be likely to affect the other employees' votes, a 20% decrease may

well have such an effect. Compare Parsons Sch. of Design, 793 F.2d

at 507-08 (10% decrease in size of unit) with Nightingale Oil Co., 905

F.2d at 57 (10% increase in size of unit). Accordingly, this factor

weighs in favor of denying the Board's application for enforcement.

The second factor to be considered is the character and scope of the

pre- and post-election units. This factor requires the court to consider

the similarity or dissimilarity of job classifications between the original and final units and the possibility that the final unit split an otherwise unified work force. See Sears, Roebuck & Co., 957 F.2d at 57-

58. For example, in Parsons School of Design, the Second Circuit

held that an election in favor of union representation should be set

aside because of the post-election modification of the bargaining unit

to exclude all full-time faculty members. See Parsons Sch. of Design,

793 F.2d at 507-08. As originally proposed and voted upon, the bargaining unit included both part-time and full-time faculty members.

See id. at 504-05. Although the exclusion of the full-time faculty

members resulted in a numerical reduction of only 10% of the bargaining unit, the Second Circuit recognized that full-time faculty

members were "particularly important to the school and carr[ied]

great weight in all matters affecting it," making their exclusion from

the bargaining unit particularly significant. Id. at 507-08.

In this case, although the LPNs numbered only sixteen of eightytwo eligible employees in the bargaining unit, they supervised fortysix of the eligible employees. As supervisors, they had the responsibility for scheduling the daily assignments for their subordinates and

for evaluating their performance. Because the LPNs wielded such a

significant amount of influence, it is likely that a number of the

employees voted in favor of Union representation in this case with the

understanding that the bargaining unit would, if successful, include

their supervisors. It is also quite possible that had the proposed bar-

 8
gaining unit not included the LPNs, many of their forty-six subordinates may not have voted in favor of representation, fearing a division

between them and their supervisors. Therefore, the influence wielded

by the LPNs may have been an important factor in the decision of

other employees to vote in favor of representation. The impact of their

exclusion from the bargaining unit, then, may go well beyond their

sixteen votes. In short, because of the importance of the LPNs to the

proposed bargaining unit as a whole, their subsequent exclusion postelection fundamentally changed the character of the unit, and this factor also weighs in favor of denying the Board's application for

enforcement.

The third and final factor to be considered when determining

whether to invalidate an election based on a post-election modification of the bargaining unit is the closeness of the election results. See

Sears, Roebuck & Co., 957 F.2d at 57. In this case, the Union victory

was decisive with fifty-five votes cast in favor of Union representation and twenty votes cast against Union representation. Even if every

LPN who voted in the election voted in favor of Union representation,

the exclusion of the LPNs as part of the bargaining unit would result

in an election in favor of Union representation by nineteen votes. This

factor, then, weighs in favor of granting the Board's application for

enforcement.

Considering all three factors in this case, we conclude that the

Board abused its discretion in certifying a bargaining unit that differed significantly both in the number of employees included in the

bargaining unit and in the unit's character and scope from the bargaining unit voted upon by the employees. Although the strength of

the Union's victory clearly weighs against invalidation of the election,

this factor must be considered in light of the fact that the excluded

LPNs had direct supervisory authority over forty-six of the sixty-six

employees remaining in the bargaining unit after the LPNs' exclusion.

If only ten of those employees who voted in favor of Union representation did so because of their understanding that their supervisors

would also be part of the bargaining unit, the election results might

have been different had the LPNs been excluded prior to the vote. To

the extent that the third factor weighs against the invalidation of the

election, then, it is outweighed by the first two factors, both of which

weigh heavily in favor of invalidation of the election. Because the

 9
post-election exclusion of the LPNs from the bargaining unit so significantly changed the character and scope of the bargaining unit, the

Beverly employees were effectively denied the right to make an

informed choice in the representation election. As a result, the Board

abused its discretion in certifying the election results, and its order

compelling Beverly to bargain with the Union based on the validity

of the election may not be enforced.

We reject the Board's suggestion that our decision is inconsistent

with this court's decision in Prudential Ins. Co. of Am. v. NLRB, 832

F.2d 857 (4th Cir. 1987). In Prudential, one employee was erroneously included in a proposed bargaining unit because she was a "confidential employee." See id. at 860 (recognizing that certain

confidential employees are excluded from collective bargaining

units). Including the confidential employee, the bargaining unit contained seven members. The vote in the representation election was 4-

1 in favor of union representation, with two challenged votes sealed

and not counted in the election tally. On appeal, we rejected Prudential's argument that the exclusion of the confidential employee necessarily required the invalidation of the representation election because

the other employees' votes may have been different had they known

that the confidential employee was not a member of the bargaining

unit. See id. at 861. Instead, we remanded the case for the Board to

consider whether, based on the Board's resolution of the two challenged ballots, the exclusion of the confidential employee's vote

could have affected the union's victory. See id. 

The Board argues that Prudential requires us to uphold its decision

validating the representation election in this case, suggesting, in

essence, that Prudential stands for the proposition that a new election

is unnecessary where a proposed bargaining unit has been modified

post-election, unless we conclude, based on a numerical analysis

alone, that the election results would have been different had the

employees voted on the appropriate bargaining unit. We do not

believe that Prudential stands for such a broad proposition. Instead,

Prudential stands for the narrower proposition that a new election is

not always required where a bargaining unit is modified post-election;

rather, the court must assess the potential impact of the modification

on several levels. In that decision, for example, when distinguishing

Hamilton Test Systems, we specifically noted that the modified bar-

 10
gaining unit in Hamilton Test Systems was less than half the size and

"`considerably different in character'" from the proposed bargaining

unit, while the modified bargaining unit in Prudential was only one

employee smaller than the proposed bargaining unit. Id. at 861 (citation omitted). Our discussion in Prudential about Hamilton Test

Systems, then, suggests that, in addition to the closeness of the election results, both the size and the character and scope of the modified

bargaining unit are appropriate considerations when deciding whether

an election must be invalidated.

When all relevant factors are considered, it is clear that the circumstances in this case differ significantly from those presented to the

court in Prudential. First, the modified bargaining unit in Prudential

contained only one less employee than the proposed bargaining unit,

while the modified bargaining unit in this case contains sixteen fewer

employees. Second, and more importantly, in this case, there was a

supervisory relationship between the LPNs and the other employees,

and it affected over two-thirds of the employees remaining in the bargaining unit after the LPNs were excluded. Therefore, while the

exclusion of only one employee who does not have supervisory

authority over other members of the proposed bargaining unit may not

change the character and scope of the bargaining unit, as the court

implicitly held in Prudential, the exclusion of the LPNs in this case

who supervised most of the other employees in the bargaining unit

fundamentally changed the character and scope of the bargaining unit.

Because the circumstances in this case are fundamentally different

from those presented to the court in Prudential , a different conclusion

is warranted.

IV.

For the foregoing reasons, we deny the Board's application for

enforcement of its bargaining order against Beverly. 2

_________________________________________________________________

2 In addition to arguing that the Board abused its discretion in certifying

the election results in light of the post-election modification of the bargaining unit, Beverly argues that the election should be set aside because

of inappropriate supervisor behavior during the election campaign.

Because we conclude that the Board's application for enforcement of its

bargaining order should be denied on the former ground, we decline to

consider the latter.

 11
ENFORCEMENT DENIED.3

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

I would enforce the bargaining order of the National Labor Relations Board certifying the election. In formulating procedures for the

conduct of an election, the Board is entitled to make "justifiable and

reasonable adjustment[s] of the democratic process," to accommodate

interests such as finality and minimizing delay. NLRB v. A.J. Tower

Co., 329 U.S. 324, 333 (1946). Furthermore, the Board's factual findings are conclusive if supported by substantial evidence in the record

as a whole, even if "we might have decided the case differently de

novo." National Poster, Inc. v. NLRB, 885 F.2d 175, 178 (4th Cir.

1989). The Board's determination that the election was fairly conducted can be set aside only for an abuse of discretion. See

Nightingale Oil Co. v. NLRB, 905 F.2d 528, 531 (1st Cir. 1990); see

also NLRB v. VSA, Inc., 24 F.3d 588, 592 (4th Cir. 1994). After a

careful review of the record, I cannot conclude that the Board abused

its discretion. Accordingly, I respectfully dissent from the majority's

holding to the contrary.

I agree with the majority that the non-exclusive, three factor test

stated in Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 57 (2d Cir.

1992) governs our analysis. Under Sears, we look to: "(1) the difference in size between the bargaining unit proposed to the employees

before the election and the final size of the unit; (2) the character and

scope of the pre- and post-election unit; and (3) the closeness of the

election results." Id.

_________________________________________________________________

3 Because over five years have elapsed since the representation petition

in this case was filed and because of the particular factual circumstances

of this case, we simply deny the Board's application for enforcement and

choose not to remand this case for further proceedings by the Board. See

NLRB v. Lundy Packing Co., 68 F.3d 1577, 1583 (4th Cir. 1995) (denying petition for enforcement of bargaining order where the Board certified an inappropriate bargaining unit). In accordance with our decision

in NLRB v. Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996), the Board

no longer has jurisdiction over this case and may not revive the representation petition that is the subject of this decision. See id. at 25-26.

 12
Unlike the majority, however, I believe, as the Board found, that

the facts of this case do not indicate "a significant change in unit size

to warrant setting aside the election" under the first prong of the Sears

test. In this case the pre-election unit included 82 eligible voters,

including 16 LPNs. The exclusion of the LPNs reduced the size of the

bargaining unit by approximately twenty percent. In upholding the

election, the Board compared this modification with those in another

Board decision, Toledo Hospital, 315 NLRB 594 (1994), in which the

Board upheld an election after the addition of a number of employees

expanded the unit by 19.5 percent. The Board then distinguished

Hamilton Test Sys. v. NLRB, 743 F.2d 136 (2d Cir. 1984) and NLRB

v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir. 1985), where

the unit differentials exceeded 40 percent, by the size of the numerical

change in the unit.

The Board's conclusion maintains consistency with this court's

application of the Sears test in Prudential Ins. Co. v. NLRB, 832 F.2d

857, 859 (4th Cir. 1987). In Prudential, the employees had voted for

the union 4-1, with two votes disputed. We held that one of the voters

was a confidential employee who could not be a member of the bargaining unit. Id. at 860. Despite this twenty percent change in the size

of the unit, the same differential at stake in the present case, we did

not order a new election, as the employer requested. Id. at 861.

Instead, we remanded the case to the NLRB "to consider the two

votes challenged by the Union and not included in the tally" to establish whether the disputed votes and the removal of the confidential

employee "would affect the Union's majority status." Id. If the Union

lost its majority it would "be necessary to hold a new election in a

properly constituted unit. Otherwise, the representation result must

stand." Id. Thus, despite the removal of the confidential employee

from a five member unit, a potential loss of 20 percent, we held that

a new election was not automatically required.

The majority, citing Sears, places significant weight on the fact that

the unit size approved by the Board was smaller than that voted on

by the employees, just as it was in NLRB v. Parsons School of Design,

793 F.2d 503 (2d Cir. 1986)(invalidating the election procedures). In

Parsons, however, the election was extremely close and the court

emphasized that the character and scope of the unit had been significantly altered. Parsons, 793 F.2d at 504. Neither of these factors are

 13
present here. Furthermore, though it may be true that "a smaller bargaining unit may be less attractive to potential union members

because of reduced bargaining power," Sears , 957 F.2d at 57, I see

no reason why the opposite may not be true as well. Some union

members may prefer smaller units that better represent their specific

interests, or they may prefer to separate themselves from other

employees who do not perform similar work, earn equivalent pay, or

otherwise share their community of interests.

The second Sears factor focuses on the change in character and

scope of the unit before and after modification:

This factor requires consideration of the similarity or dissimilarity of job classifications between the original and

final units and the chance that the ultimate unit split an otherwise unified workforce. . . . If the new composition of the

unit excludes workers performing under conditions similar

to those already included in the unit, employees are more

likely to have voted differently because they may feel that

their individual interests cannot be best represented by a

group consisting of diverse, potentially adverse interests.

Sears, 957 F.2d at 57-58 (citations omitted).

In the present case, the Board found that "the scope and character

of the unit has not changed to any significant extent, and the unit

remains the service and maintenance unit petitioned-for originally." In

my view, although I recognize that it is a close question, the fact that

there is no evidence that the LPNs had greater bargaining power than

the other unit members as well as the large margin of victory provide

sufficient evidentiary support for these findings.

Beverly argues to the contrary, asserting that because the LPNs

supervised approximately half of the members of the bargaining unit,

the LPNs' removal is very significant and would alter the vote. In

making this contention, the company relies heavily on the Second

Circuit's decision in Parsons. In Parsons, both full-time and part-time

faculty had originally voted for the union but the court subsequently

removed the full-time faculty from the unit. This action was held to

have significantly altered the unit because the"full-time faculty

 14
employees excluded from the unit, while comparatively few in number, are particularly important to the school and carry great weight in

all matters affecting it." Parsons, 793 F.2d at 507. Because "the election was a very close one" and "the part-time instructors may have

feared insufficient strength in a unit comprising less than all of the

faculty," the Second Circuit ordered a new election. Id. at 508.

Although there are similarities between this case and Parsons,

there are two critical differences. First, the remaining employees in

the bargaining unit at issue in the case at hand are all classified as

full-time. There is no evidence of a bargaining power differential

between the LPNs and the other Beverly employees like that between

the full-time and part-time faculty at issue in Parsons. Second, the

election in the present case was not nearly as close as that in Parsons,

where a vote change by "only four of the 99 part-time instructors who

voted for the Union" would have changed the result of the election.

Id. at 508. Here, even assuming that all 16 LPNs voted for the union,

the margin of victory would still be 39-22.

The final factor addressed under the Sears test is the margin of victory in the election. "A narrow victory heightens the need to scrutinize the election process to ensure that votes would not change with

a more fully informed electorate. [Parsons , 793 F.2d at 507]. This

factor must be observed in combination with the two other factors

addressed above in order to see if the concerns uncovered in examining the other factors would have led to a vote change sufficient to

alter the election outcome." Sears, 957 F.2d at 58 (emphasis added).

The purpose of this third factor is to weigh the potential votes lost

through the change in the size, scope, and character of the unit against

the margin of victory for the union. In instances where the margin of

victory is small, any change in the size of the unit or character may

necessitate a new election. See Parsons, 793 F.2d at 508 (noting that

if "four of the 99 part-time instructors" changed their vote, union

would lose); Lorimar Productions, 771 F.2d at 1302 ("The vote was

so close that the union would have lost had one employee voted differently."); Hamilton Test Systems, 743 F.2d at 141 ("A change of one

vote from union to non-union would have altered the outcome of the

election."); Monongahela Power Co. v. NLRB , 657 F.2d 608, 609 (4th

Cir. 1981)(noting that the union won vote 58-56).

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In the present case, as the Board found and the majority acknowledges, the election was not close: 55 employees voted for the union

and 22 against. Even assuming that all 16 LPNs voted for the union,

an assumption with no support in the record, the margin would still

be 39-22. In weighing this margin of victory with the other two factors, it seems to me that the Board did not abuse its discretion by concluding that the exclusion of the LPNs would not change the votes of

the employees in a new election. Beverly is unable to cite a single

case in which a court ordered a new election or refused to abide by

the Board's decision not to do so when the margin of the original

union victory was as great as that in this case. As the majority recognizes, the National Labor Relations Board "enjoys broad latitude to

develop and implement the procedure for certification of elections."

Ante at 9. Given the margin of victory, I cannot agree with the majority that the Board exceeded that broad authority and abused its discretion.

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