Home Care Network, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 2006

347 N.L.R.B. 859 (N.L.R.B. 2006)

HOME CARE NETWORK, INC.
347 NLRB No. 80
859
Home Care Network, Inc. and SEIU District 1199,
The Health Care and Social Service Union.1
Case 8–RC–16635
August 2, 2006
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, KIRSANOW, AND WALSH
The National Labor Relations Board has considered
determinative challenges in an election held July 29,
2004, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The revised tally
of ballots shows 23 for and 23 against the Petitioner,
with 3 challenged ballots, a sufficient number to affect
the results.
The Board has reviewed the record in light of the ex-
ceptions2 and briefs, and has adopted the hearing offi-
cer’s findings3 and recommendations.
Following a July 29, 2004 election, the Board held a
hearing on three determinative challenged ballots, those
of voters Tonya Davis, Kelly Bays, and Teasha Woods-
Boyd. These voters worked as “home health aides,” pro-
viding personal care and light housekeeping for clients in
the clients’ homes. Before the election, all three voters
sustained injuries that prevented them from working. It
is undisputed that they are not “absent without leave,”
and they have been off work due to their medical condi-
tions. It is also undisputed that the Employer has never
terminated any of the three voters or notified any of them
that they were terminated. The Employer also concedes
that none of the three voters had resigned.
The hearing officer applied the well-established Board
standard that presumes an employee on sick or disability
leave to be eligible to vote absent an affirmative showing
that the employee has resigned or been discharged. See
Red Arrow Freight Lines, 278 NLRB 965 (1986); Pepsi-
Cola Co., 315 NLRB 1322 (1995). Under that standard,
the hearing officer found that Davis, Bays, and Woods-

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 We have treated the Employer’s request for review as exceptions to
the hearing officer’s report, pursuant to Sec. 102.69(e) of the Board’s
Rules and Regulations.
3 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing 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.
Boyd all were eligible voters.4 Applying the same
standard, we reach the same result.
Our dissenting colleague would abandon the Board’s
Red Arrow test, and instead apply the “reasonable ex-
pectancy of return” test that the Board applies to de-
termine the eligibility of employees on layoff status at
the time of the election. The dissent contends that the
Red Arrow test “elevates form over substance” and is
contrary to Board principles. We disagree.5
As the Board and courts have reiterated, the Red Ar-
row test avoids unnecessary litigation and “endless
investigation into states of mind or of future pros-
pects.”6 Abandoning this predictable, bright-line rule
in favor of “reasonable expectancy of recall” could
require the Board to evaluate medical evidence, poten-
tially opening “a new avenue of litigation, possibly
involving paid expert testimony, which is beyond the
traditional expertise of the agency and inimical to the
efficient and expeditious resolution of questions con-
cerning representation.”7 For these reasons, the Board
has repeatedly rejected the test proposed by the dis-
sent, and the courts of appeals have uniformly upheld
the Board’s adherence to the Red Arrow test. See
Supervalu, Inc., 328 NLRB 52 (1999), and cases cited
therein. We find no persuasive reason to abandon the
Red Arrow test, the origins of which date back more
than 50 years. See, e.g., Sylvania Electric Products,
119 NLRB 824, 832 (1957); Wright Mfg. Co., 106
NLRB 1234, 1236–1237 (1953) (both cited in Red
Arrow, supra).8 Accordingly, we adhere to the settled
and time-tested Red Arrow rule. 9

4 The hearing officer also found support for this conclusion in the
fact that Davis and Bays continued to receive work-related mail
while they were absent, as well as the fact that Davis was compen-
sated for her attendance at mandatory meetings held by the Em-
ployer. In addition, the hearing officer found that the Employer was
made aware of the voters’ medical conditions by various workers’
compensation documents, doctors’ slips, and reports of Bays’ health
condition that she and her mother provided. Finally, the hearing
officer noted testimony by the Employer’s Director of Nursing that
the three voters would be considered eligible for employment, with
corporate approval, upon demonstrating the ability to perform the
duties of a home health aide.
5 The dissent does not dispute the eligibility of Davis, Bays, or
Woods-Boyd under the Red Arrow test.
6 Vanalco, Inc., 315 NLRB 618 fn. 4 (1994) (citing Whiting
Corp., 99 NLRB 117, revd. 200 F.2d 43 (7th Cir. 1952), quoted in
NLRB v. Newly Weds Foods, 758 F.2d 4, 8 (1st Cir. 1985) (Breyer,
J.)).
7 Cavert Acquisition Co. v. NLRB, 83 F.3d 598, 606 (3d Cir.
1996) (quoting Associated Constructors, 315 NLRB 1255 fn. 3
(1995)).
8 Contrary to our dissenting colleague, we are not persuaded to
abandon the Red Arrow test by the fact that difficult questions some-
times arise over the eligibility of laid-off employees. The existence
of such situations does not undermine the Board’s policy of favoring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD860
DIRECTION
IT IS DIRECTED that the Regional Director for Region 8
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of Tonya Davis,
Kelly Bays, and Teasha Woods-Boyd. The Regional
Director shall then serve on the parties a revised tally of
ballots and issue the appropriate certification.
CHAIRMAN BATTISTA, concurring and dissenting in part.
Contrary to my colleagues, I would not apply the test
of Red Arrow Freight Lines1 to determine the voting eli-
gibility of employees who are absent from their employ-
ment for medical reasons. Rather, I agree with former
Member Babson’s dissent in Red Arrow, and the views
of several subsequent Board Members, that the appropri-
ate standard is whether the absent employee, as of the
date of the election, has a reasonable expectancy of re-
turning to his or her unit employment.2 Applying that
standard, I concur in my colleagues’ overruling of the
challenges to the ballots of Kelly Bays and Teasha
Woods-Boyd, but I would sustain the challenge to the
ballot of Tonya Davis.
Under the Red Arrow test, an employee on medical
leave is presumed to remain eligible to vote, unless the
presumption is rebutted by a showing that the employee
has resigned or been discharged.3 This standard elevates
form over substance. Specifically, it considers the em-
ployee’s formal status on the employer’s rolls, but not
the more fundamental matter of whether the employee
has a foreseeable ability to return to the job. In the view
of my colleagues, if the employee has not resigned or has
not been formally terminated, he is eligible to vote, even

expeditious resolution of questions concerning representation over
possibly protracted investigation and litigation of medical evidence that
is beyond the Board’s traditional expertise. Our colleague acknowl-
edges that the question of an employee’s reasonable expectancy of
returning to work in the layoff context is determined in view of eco-
nomic factors, and is not generally based on medical evidence. There-
fore, the layoff situation is not analogous to this case.
9 Member Schaumber concurs in the result, based on extant Board
law, but he would modify the test in Red Arrow Freight Lines, Inc., 278
NLRB 965 (1986), for the reasons set forth by former Member Hurtgen
in Supervalu, Inc., 328 NLRB 52, 52–53 (1999) (Member Hurtgen,
dissenting). In a situation such as that of Davis in this case, in which
affirmative evidence demonstrates that an employee is subject to per-
manent medical restrictions that preclude the performance of the duties
of the position, and the employer has no other suitable bargaining unit
position available, Member Schaumber would find that the employee is
not eligible to vote. Additionally, if an employee has been on leave for
a year or more, he would require the party asserting eligibility to show
that the employee has a reasonable expectation of returning to the unit.
1 Red Arrow Freight Lines, Inc., 278 NLRB 965 (1986).
2 Red Arrow, supra (Member Babson, dissenting); Vanalco, Inc., 315
NLRB 618 (1994) (Member Cohen, dissenting); Supervalu, Inc., 328
NLRB 52 (1999) (Member Hurtgen, dissenting).
3 Red Arrow, supra, at 965.
if there is virtually no chance that he will ever return to
the unit. In my view, if there is no foreseeable pros-
pect that the employee will ever return to the job,
he/she does not have a community of interest with the
employees performing unit work.
The Board’s application of the Red Arrow test is
contrary to the principles that normally guide Board
policy in representation elections. For example, in
layoff cases, the reasonable expectancy of return test is
the Board’s established eligibility standard.4 In my
view, regardless of whether the employee is away from
his or her position because of the employer’s economic
circumstances or because of the employee’s medical
condition, the essential question for eligibility pur-
poses remains the same: Does the employee share a
community of interest with the other members of the
bargaining unit? The answer to that question, in turn,
depends on whether the employee can reasonably ex-
pect to resume his or her position in the unit.
The Red Arrow doctrine also leads to incongruous
results. For example, in Supervalu, the Board found an
employee eligible to vote, despite his 2-year absence
due to serious medical conditions including advanced
emphysema, heart failure, and severe exogenous obe-
sity, and despite his physician’s testimony that he
“never” expected a marked change in his condition, as
would be necessary for his return to his truckdriver
position. In my view, the fact that the employer had
not formally removed him from the employment rolls
did not contradict the fact that he was not going to re-
turn to the unit.
By setting so low an eligibility threshold for em-
ployees on medical leave, Red Arrow accepts the bal-
lots of individuals who no longer have substantial ties
to the unit, thereby diluting the votes of those who do.
For example, if an employer, for purely humanitarian
reasons, decides to keep an employee on the payroll,
that employee will be eligible to vote, even if there is
little or no chance of his returning to the unit.
If the employee has resigned or been discharged, he
is ineligible under the Red Arrow standard and under
my standard, for he has no reasonable expectancy of
return. But, as former Member Hurtgen pointed out in
his dissent in Supervalu, there are many circumstances
in which an employee who has not resigned or been
terminated similarly has no reasonable expectancy of
return. Unlike the Red Arrow standard, the reasonable
expectancy of return test evaluates the particular cir-
cumstances of each challenged voter and his or her

4 See, e.g., Madison Industries, 311 NLRB 865 (1993); S&G
Concrete Co., 274 NLRB 895 (1985).
HOME CARE NETWORK, INC. 861
continuing ties to the unit. Thus, if an employee on
medical absence can reasonably expect to resume his unit
employment in the future, his right to vote would be pro-
tected. On the other hand, employees who have no such
reasonable expectation would not be permitted to vote in
an election in which they have no genuine stake.
My colleagues say that the Red Arrow test is a
bright-line rule that avoids unnecessary litigation and the
Board’s examination of medical evidence. However, the
Board routinely handles such matters in other contexts.
For example, the Board regularly determines whether, in
view of economic factors, a laid-off employee has a rea-
sonable expectancy of returning to work. The issues can
be difficult, involving a multi-factor prognostication of
how a company will fare in the future. The question of
whether these issues are more or less difficult than a
medical prognostication is beside the point. The point is
that both issues involve the question of whether an em-
ployee is likely to return to the unit and thereby share a
community of interest with the extant employees.
Further, even though these factual issues may be diffi-
cult to resolve in a particular case, it is important to do so
in order to accurately identify, especially in a close elec-
tion, the individuals who are properly included in the
bargaining unit and eligible to vote in the election. Fur-
thermore, my test does not threaten to take away the eli-
gibility of employees in marginal situations. The burden
of proof lies with the party that asserts an employee’s
ineligibility.
As support for their continuing adherence to the Red
Arrow rule, my colleagues also argue that the courts of
appeals have upheld Board decisions based on that rule.
The courts’ acceptance of a Board rule, however, does
not suggest that the courts have found the rule to be the
best or even an advisable approach, but simply reflects
the courts’ policy of deference with respect to Board
rules. For example, in NLRB v. Economics Laboratory,5
the court remarked that the employer’s arguments against
Red Arrow had “much to commend them.” Similarly, in
Cavert Acquisition v. NLRB, the court emphasized the
limitations of its review.6
Applying the reasonable expectancy of return test to
the facts of this proceeding, I would find that employees
Bays and Woods-Boyd are eligible to vote in the elec-
tion. Bays was struck by an automobile during the week
of April 17, 2004,7 and sustained several broken bones
that required two surgeries. A doctor’s slip, dated May
12, lists Bays’ return to work date as September 1. Al-
though a doctor’s slip, dated October 11, revised the re-

5 857 F.2d 931, 935 (3d Cir. 1988).
6 83 F.3d 598, 602–607 (3d Cir. 1996).
7 All dates are 2004 unless otherwise indicated.
turn date to December 6, I find that, as of the election
date of July 29, Bays had a reasonable expectancy of
returning to her unit position and should be permitted
to vote.8
Woods-Boyd sustained a back injury in a work-
related automobile accident in December 2003. She
periodically performed light duty work for the Em-
ployer until she requested temporary total compensa-
tion on April 7.
After that date, she performed no work at all. An
April 7 physician’s report to the Bureau of Workers’
Compensation states that Woods-Boyd was not able to
return to her position at that time and lists an expected
return date of June 9. The Bureau of Workers’ Com-
pensation awarded temporary total disability payments
for the period from April 8 until August 21.9 I find
that, as of the July 29 election, Woods-Boyd had a
reasonable expectancy of returning to her unit position
and was therefore eligible to vote.
On the other hand, I would find employee Davis in-
eligible to vote under the reasonable expectation of
return standard. Davis underwent total knee replace-
ment surgery as a result of job-related injuries. She
last performed her job as a home health aide on Janu-
ary 8, although she was paid for attending federally
required in-service meetings and a campaign meeting
held by the Employer after that date. An April 17 In-
dividualized Vocational Rehabilitation Plan, which
was completed for the Bureau of Workers’ Compensa-
tion by the managed care organization handling Davis’
claim, states that her physician had prescribed perma-
nent work restrictions prohibiting lifting over 30
pounds and kneeling. The Plan further states that, ac-
cording to her physician, she should not lift or transfer
patients. The document adds,
This causes elimination of returning to work at the
same job/same employer, and different job/same
employer, (per discussion with the employer repre-
sentative). Ms. Davis’ permanent restrictions and the
lack of a different position with the employer of re-
cord, place her at different job/different employer.
A “functional limitations” document completed by Davis’
doctor on June 7, stated that Davis could not squat, climb,
or crawl at all, and that she could do no kneeling.
The permanent work restrictions imposed by Davis’
physician preclude the performance of her duties as a

8 On July 29, Bays was also cleared to do light duty work. How-
ever, this is not unit work, and she never actually returned to perform
it. Consequently, I do not rely upon this fact.
9 A subsequent medical report, dated October 13, states that
Woods-Boyd was able to return to work, with an estimated return
date of December 30.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD862
home health aide, the only job classification in the bar-
gaining unit. I find that, even though she remained on
the Employer’s rolls at the time of the election, Davis
had no reasonable expectancy of returning to work in her
former position, and therefore no continuing commu-
nity of interest with unit employees. Accordingly, I
would sustain the challenge to her ballot.