South Coast Hospice, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 198 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198
South Coast Hospice, Inc. and International Long-
shore and Warehouse Union, Local 5. Case 36–
RC–6015
January 31, 2001
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held August 3, 2000, and the hearing offi-
cer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 14 for and 11
against the Petitioner, with 8 determinative challenged
ballots.1
The Board has reviewed the record in light of the ex-
ceptions2 and briefs and has adopted the hearing offi-
cer’s findings and recommendations,3 except for the
hearing officer’s recommendation that the Petitioner’s
challenge to the ballot of Dr. Dallas Carter be sustained.
Dr. Dallas Carter has the title “medical director.” The
Employer argues in its exceptions that Carter must be
included in the bargaining unit and the challenge to his
ballot overruled because the Stipulated Election Agree-
ment explicitly includes the classification of “medical
director” in the bargaining unit description.4 The Peti-
tioner responds in its answering brief that the Employer
failed to raise this argument at the hearing. The Peti-
tioner further asserts that had the Employer raised this
argument, the Petitioner would have adduced evidence
at the hearing to show that its potential challenge to
Carter’s ballot was an “express condition” of its agree-
ment to the stipulated unit description and “[the Em-
ployer] knew it, and the Region knew it before approv-
ing the agreement.”

1 At the hearing, the Employer withdrew its challenge to the ballot of
Janet Jester, and the Petitioner withdrew its challenge to the ballot of
Susan Potter. We shall accordingly order that their ballots be opened and
counted.
2 In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation that the Petitioner’s challenge to the ballot of
Kathie Hatchitt be overruled. We shall accordingly order that her ballot
be opened and counted.
3 We adopt the hearing officer’s recommendation that the Petitioner’s
challenge to the ballots of Anna Anderson, Jeff Friedman, and Linda
Devereaux should be sustained because, as established in the hearing
officer’s report, they fail to satisfy the test for voting eligibility set forth in
Davison-Paxon Co., 185 NLRB 21, 24 (1970). Absent a showing of
special circumstances, part-time employees who do not satisfy the Davi-
son-Paxon formula are ineligible to vote. Trump Taj Mahal Casino, 306
NLRB 294, 295 (1992), affd. in the sum. judg. proceeding 307 NLRB
No. 219 (1992) (not reported in Board volumes), enfd. 2 F.3d 35 (3d Cir.
1993). We find that the Employer has not shown special circumstances in
this proceeding justifying deviation from the Davison-Paxon formula.
4 The Stipulated Election Agreement sets forth the following bargain-
ing unit description:
UNIT A: All professional employees, including registered nurse(s),
chaplain(s), medical director(s), social worker(s), and dietician(s)
employed by the Employer at its Coos Bay, Oregon facilities who
were employed during the payroll period ending immediately pre-
ceding July 7, 2000; but excluding all other employees, nonprofes-
sional employees, temporary agency employees, confidential em-
ployees, guards and supervisors as defined in the Act.
UNIT B: All full time and regular part-time employees employed
by the Employer at its Coos Bay, Oregon facilities who were em-
ployed during the payroll period ending immediately preceding July
7, 2000; but excluding all other employees, professional employees,
temporary agency employees, confidential employees, guards and
supervisors as defined in the Act.
We find that, even assuming the truth of the Peti-
tioner’s assertions, the challenge to Carter’s ballot
should be overruled. In Laidlaw Transit, Inc., 322
NLRB 895 (1997), the Board explained:
It is well-settled Board policy that a Stipulated Elec-
tion Agreement is a binding contract to which the
parties will be held, and that if the unit description
of that agreement is expressed in clear and unambi-
guous terms, the Board will not examine extrinsic
evidence to determine the parties’ intent regarding
bargaining unit composition.
The unit stipulation in this proceeding is clear and un-
ambiguous on its face: it explicitly includes the classifi-
cation of medical director. Further, there is only one
person in that classification, Dr. Carter. Because the
unit description is unambiguous, there is no need to re-
sort to extrinsic evidence to determine the parties’ in-
tent. Thus, even if the Petitioner had produced evidence
that its agreement with the Stipulation was conditioned
on its ability to challenge Carter’s ballot, that evidence
would be insufficient under Laidlaw to nullify the Peti-
tioner’s subsequent signing of the Stipulation to the con-
trary. The Stipulated Election Agreement contains noth-
ing which conditions or modifies the plain meaning of
the stipulated unit description. We accordingly find that
Dr. Dallas Carter should be included in the unit, and his
vote will be opened and counted.
DIRECTION AND ORDER
IT IS DIRECTED that the Regional Director shall,
within 14 days from the date of this decision, open and
count the ballots of Rhonda Carver, Janet Jester, Susan
Potter, Kathie Hatchitt, and Dallas Carter, prepare and
cause to be served on the parties a revised tally of bal-
lots, and issue the appropriate certification.
IT IS ORDERED that the matter is remanded to the
Regional Director for further processing.

A majority of ballots cast by professional employees in Unit A voted
to be included with the nonprofessional employees in Unit B.
333 NLRB No. 21