Riviera Manor Nursing Home, Inc.

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.