Riviera Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1972

200 N.L.R.B. 333 (N.L.R.B. 1972)

RIVIERA MANOR NURSING HOME 333
Riviera Manor Nursing Home, Inc. and Council 19,
American Federation of State, County, and Munici-
pal Employees, AFL-CIO. Case 13-CA-8979
November 16, 1972
SUPPLEMENTAL DECISION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On November 25, 1970, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding,' finding that the Respon-
dent had engaged in and was engaging in certain
unfair labor practices in violation of Section 8(a)(I)
and (5) of the National Labor Relations Act, as
amended, and ordered that the Respondent cease
and desist therefrom and take certain affirmative
action to remedy the unfair labor practices. Thereaf-
ter, on July 13, 1972, the United States Court of
Appeals for the Seventh Circuit entered an order
remanding the matter to the Board for further
findings regarding the Union's majority status
stating:
We think it inappropriate to enforce the
Board's order . . . in the absence of a finding that
when Alicia and Victoria Washington and View-
elta Smith signed their authorization cards, they
were in position to make an informed choice as to
whether they would desire the Union's represent-
ation while working for respondent. As matters
now stand, no determination has been made
whether they had been accepted for employment
or were employees when they signed their
authorization in December 1968 or at least had
signed their cards after arranging their employ-
ment or in anticipation of employment by
respondent. Consequently, . . . this matter must
be remanded . . . for further findings as to these
cards.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Based on the undisputed facts in the record, we
conclude that the Union's majority status was
established and shall reaffirm our original findings
herein. When the Union made its demand for
recognition on January 9, 1969, there were 36
employees in the unit and it possessed signed
authorization cards from 20 of them, including those
of Alicia Washington, Victoria Washington, and
Viewelta Smith.
While the evidence as to whether or not the
1 186 NLRB 806
Washington sisters were actually working for the
Respondent when they signed their authorization
cards is in conflict, we do not believe a resolution of
this specific question is necessary to reach the
conclusion that their authorization cards were validly
counted to determine the Union's majority status.
For, it is clear that the Washington sisters signed the
cards in anticipation of employment by Respondent.
Thus, it is undisputed that in mid-December 1968,
Olga Brown, acting as Respondent's conduit in the
hiring process, telephoned Alicia Washington, who
had worked for the Respondent during the preceding
summer, and asked her to return to work for the
Respondent. Alicia agreed to do so and Brown then
asked if her sister, Victoria, would also be interested
in working for Respondent. Alicia asked Victoria,
who was present, if she wanted a job with Respon-
dent and she answered affirmatively. Alicia so
informed Brown who in turn told them when to
report. Both signed authorization cards for the
Union on December 24, 1968, and testified that this
was after they had started working for the Respon-
dent. Documentary evidence adduced by the Re-
spondent indicated that these two employees actually
started work several days after December 24, 1968.
It is clear from the undenied testimony of the
Washington sisters that they first learned of the
Union's attempt to organize Respondent's employees
and signed their authorization cards after they were
offered jobs by Brown and accepted them. Thus,
even though they may not have actually been
working for Respondent when they signed their
authorization cards, they had an interest in the
representation issue at that time because definite
arrangements had been made for their employment.
It is undisputed that Viewelta Smith was employed
by Respondent prior to signing an authorization card
for the Union and left work after complaining of
illness on December 16, 1968. It is also undisputed
that she returned to work for the Respondent on
December 30, 1968, and that she signed her authori-
zation card during the interim between these two
dates. Respondent offered testimony that Smith left
work on December 16, 1968, after being told that if
she did so not to bother to come back. Smith denied
the foregoing and testified that she returned to work
with a statement from her physician concerning her
illness which was accepted by Respondent. It is clear
from Smith's testimony that she never thought she
had been discharged and that as far as she was
concerned she anticipated that she would return to
work when she recovered from her illness, as she in
fact did. However, as the Trial Examiner did not
resolve the credibility issue concerning what Smith
200 NLRB No. 53
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was told when she left work on December 16, 1968, Accordingly , upon reconsideration, we affirm the
and as the validity of her authorization card is not conclusions of our Decision and Order as published
necessary to establish the Union's majority status, we at 186 NLRB 806.
shall not pass on this matter.