South Coast Hospice, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 2006

347 N.L.R.B. 863 (N.L.R.B. 2006)

SOUTH COAST HOSPICE, INC.
347 NLRB No. 81
863
South Coast Hospice, Inc. and Cherrill F. Corliss,
Petitioner and International Longshore and
Warehouse Union, Local 5. Case 36–RD–1607
August 2, 2006
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held August 15, 2002, and the hearing of-
ficer’s report recommending disposition of them. The
election was conducted pursuant to a Stipulated Election
Agreement. The tally of ballots shows 11 for and 12
against the Union, with 7 challenged ballots, a number
sufficient to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and brief and has adopted the hearing officer’s
findings and recommendations.1
DIRECTION
IT IS DIRECTED that the Regional Director for Region
19 shall, within 14 days from the date of this Decision
and Direction, open and count the ballots of Michelle

1 In directing a hearing in this case on 6 of the 7 challenges, the Re-
gional Director concluded that the question of whether or not voter
Staci Standlee was an employee on the date of the election would be
determined through the parties’ grievance procedure.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendations to overrule the challenges to the ballots of
voters Michelle Whitus and Kim Kyllo and to sustain the challenge to
voter Wendy Kohanes. Accordingly, the disposition of challenges to
the ballots of Cherrill Corliss, Lori Barton, and Barbara Bates are be-
fore the Board on exceptions. We agree with the hearing officer, for
the reasons stated in his report, that employees Corliss and Barton were
ineligible to vote under Davison-Paxon Co., 185 NLRB 21 (1970), and
that employee Bates was on disability leave and had neither resigned
nor been affirmatively discharged as of the time of the election, and
was therefore eligible to vote under Red Arrow Freight Lines, 278
NLRB 965 (1986). The Board has recently reaffirmed the Red Arrow
standard in Home Care Network, Inc., 347 NLRB 82 (2006). The
dissent does not dispute Bates’ eligibility under the Red Arrow stan-
dard.
Whitus, Kim Kyllo, and Barbara Bates. The Regional
Director shall then prepare and serve on the parties a
revised tally of ballots and issue the appropriate certifica-
tion.
CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I would sustain the chal-
lenge to the ballot of employee Barbara Bates. As dis-
cussed in my partial dissent in Home Care Network, 347
NLRB 82 (2006), I would not apply the test in Red Ar-
row Freight Lines, 278 NLRB 965 (1986), to determine
the voting eligibility of individuals who are absent from
their unit positions for medical reasons. Rather, consis-
tent with the standard applied by the Board regarding
laid-off employees,1 I would examine whether, as of the
date of the election, the employee has a reasonable ex-
pectancy of returning to the unit. Applying that standard,
I would find Bates ineligible to vote in the election.
Bates, a registered nurse, sustained an ankle injury in
May 2001. After a brief period of light duty work, Bates
was off work entirely by the end of 2001 and remained
so as of the August 15, 2002 election.2 According to the
Employer, no work was available within her medical
restrictions.
On August 13, the Employer’s workers’ compensation
insurer informed the Employer that it had reached a
global settlement agreement with Bates’ attorney. The
agreement provided that Bates would resign her em-
ployment with the Employer effective August 20. Also
under the global settlement, a stipulation and settlement
agreement was filed with the State Workers’ Compensa-
tion Board concerning her claim. That document states
that the parties agreed to its terms on August 14.
Thus, as of the date of the election, Bates had no rea-
sonable expectancy of returning to the unit. She was
therefore not eligible to vote.

1 See, e.g., Madison Industries, 311 NLRB 865 (1993); S&G Con-
crete Co., 274 NLRB 895 (1985).
2 All dates are 2002 unless otherwise indicated.