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National Labor Relations Board v. Riviera Manor Nursing Home Inc.


July 13, 1972


Before CASTLE, CUMMINGS and SPRECHER, Circuit Judges.


This case is before us on the National Labor Relations Board's application for enforcement of an order setting aside an election lost by the Union,*fn1 and directing the respondent nursing home to bargain with the Union. 186 NLRB No. 113. The order was based on the Board's conclusions that the respondent had violated Sections 8(a)(1) and (5) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) and (5)). The order is dependent upon the Board's finding that the authorization cards of Victoria Washington, Alicia Washington, and Viewelta Smith could be validly counted to determine that the Union represented a majority of respondent's employees in a 36-member unit when it made its demand for recognition on January 9, 1969.*fn2

Relying solely upon a trial examiner's decision in General Steel Products, Inc ., 157 NLRB 636, 646, the Board argues that since these three persons were admittedly employees on the demand date, their authorization cards properly accrued to the Union's majority status. In General Steel Products, Inc . the employee signed his authorization card on July 6, 1964, and commenced working two days later, so that the examiner inferred that the employee "had already made arrangements for employment by Respondent and signed the card in anticipation of that employment" and had not "revoked his designation either prior to or after July 8." No such comparable inferences were made by the examiner here, and the evidence is sharply contested as to whether these three persons were in respondent's employ when they signed their authorization cards. Because of the conflict in the evidence, it is for the Board and not us initially to resolve this matter.

Section 9(a) of the Act states that the exclusive bargaining representatives of the employees shall be "representatives designated * * * by the majority of the employees in a unit appropriate for bargaining." 29 U.S.C. § 159(a). While this language may not require a hard and fast rule that authorization cards must be signed by persons who are employees at the time of signing, here there has been no showing that any of the three persons in question had any interest or stake in the representation issue at the time they signed their cards.

We think it inappropriate to enforce the Board's order, assuming without deciding that it is otherwise enforceable, in the absence of a finding that when Alicia and Victoria Washington and Viewelta Smith signed their authorization cards, they were in a position to make an informed choice as to whether they would desire the Union's representation 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 cards in December 1968 or at least had signed their cards after arranging their employment or in anticipation of employment by respondent. Consequently, before we can consider the other issues presented, this matter must be remanded to the Labor Board for further findings as to these cards. Until such time, the order of the Board may not be enforced.

Enforcement denied pending outcome of remand.

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